ML20246H694
| ML20246H694 | |
| Person / Time | |
|---|---|
| Issue date: | 04/19/1988 |
| From: | Lambert J NRC |
| To: | NRC |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-26, NUDOCS 8905160170 | |
| Download: ML20246H694 (343) | |
Text
/ s yg y %pav 1.ua pbe N Wm/es wcb
) OW2 ccI Ic<.7 [xAf[x Ouz2 dido 7d4 bhune E
( j d i C[e -
j5;u GJ A<posa.s $saw)in i oc ne Azs ca !
> 0+
1 .
- Sye<e !
i
~ I kl$4 ~
Y$tcb Scem 13tL cA_crpz. la2S/2ecs c lJ S $L<A %. b l W u ;
Y .I()hla/. (Cbm,
.f3
- OG~C '
u ~
L L cd M
- 'l 2)1ir che
- 3) Fct<il hzuham -
Nlt l
'n Caig suauk - GPA l 0 hick %~g 7tcn - MNssfuVus L) . Ol3 na Slup/d - 4L 7% ceux.h au cleu had cs %$ 9.
Olk, Afb bon as % aDachd s cAu&& , y c; p g}f l
Y&WW % .WCl Y 0 Gh aus og A &/30 m s a eka to w & a CGLd b( .
Ja +.
s A
8905160170 890505 P
6 52 47578 PDR1 g hh egLtuzs2 %,
9)iclu Proposed Schedule for 10 CFR Part 62 - Final Rule
- 1. Prepare Comment Analysis / Revise rule per Comments:
Draft Comment Analysis / Revise Rule - completed by 4/19 Distribute to NMSS/NRR/0GC/etc for office review and comment 4/19 Office Comments Due Back 4/29 Revisions made by 5/5
- 2. Draft Preamble for Final Rule:
Draft preamble 4/19-25
- Due to SL for review 4/25
- SL Comments due 4/28 Revisions completed 4/29 Request Office Comments from WM/NMSS, NRR, OGC, etc 4/29 Comments due back 5/5 Revisions completed 5/9
- 3. Draft Commission Paper:_
Draft Commission Paper 4/26-5/5
- To SL for review 5/5
- SL Comments due 5/10 Revisions completed /sent out to Program Office for comments 5/11 Program Office comments due 5/16 Revisions completed 5/19
- 4. Revise Reg Analysis -
Revise 5/5-5/9 To SL 5/9 SL comments due 5/11 Revisions due 5/12
Concurrence schedule
- 1. Package to SL 5/19
- 2. Package to BC 5/25
- 3. Package to Mr. A 5/31
- 4. Package to Mr. Beckjord 6/15
- 5. Package to EDO 6/30
- Key Assumptions
- 1. To EDO by end of June
- 2. Published in FR by end of August (as promised in Reg Agenda, etc. )
- 3. Drafts will be reviewed as developed for SL and Program Offices
- 4. Concurrence package completed and into concurrence by 5/19 f
2
q l) 6 4.5 6 6 Commumien ma, "ra) !ar Omsmas -The Neslaar daspasal fastlity or nori.
speas enseguesy asses to say that is not a member of a Federal daspuent sesnity wishis a esapass for spesids new4evet redasesuve wassa, if neessaary to enhamasse as imamediase and sensus threns to the publis health and sedusy or the 8 sauces assessdedanse shall be as and securtty.
providad Thesecuen.
in this procedure for grammag > ACCanE-Any generasar oflow4evei "1bl RaeUWF Fem I
radionsnve wassa, or any Governer tor. for any Stase without a G.,erner, the chnet esseunve oNiser of the Statal en isehalf of any generaser or gemarators Locased in has or har Stata, may request tnat 4 commindse grams asmus to a j the Nusnese fasdity or a ass > Federal withis a reemaal for=P= 1r*4e'el Smass thss as ass a insebar of a omatais any ladurmansa
)
redimesstve weses. Any sask . ~
may requae.
and sortidsstises the Musimar .-
"(s) *=== or Neesaa Basts. 4 leone assesthss 48 days star "fD _-
ressleias a regasus ander saksassies % the Nasisar Esse- .
lasary Cammismes shall demorensas whosher-knames of as imm>
"(A) emergener assues is diese and sensus threes to the basisk and afssr er the esames defense and assarny;and br aar alterneste
"(si the thrams enmass be and snessy. lasiuding cenamams with the puhua storage of tow 4evel radianssive weste as the ese of tua or in a scoregs facdity otsanaang assoas to a facdisy by voluntary agreement purunessag disposal casse-try avedable for aangassess pursuans to saastes Wel er cesang activities that sensrar.e Iowdevel radienssive wassa.
121 Reevinas wirrtricattow.-(f the Numiser Conunasses makes the deteradaanans requued is ase-W in the astrusasive, is shan dengaans sa Governer Federal dispassi fandity or fasditias, and (or clust anseente of5ser) of the Stasa in which sash findlity is lassted and the apprepnasa compass asaansass that emer-aseems is requared. Such earMandam sha&L spondaally the lee 4evel radiancave wasta as ta newes, phyesat and radioissient charestensusa, and the minunum volume and durensa. not sesseding 180 days, assomary se allsetase the unamedasus threas to gentis banath and endsey or the assumes defense and soeurtsy. De Nuclear Regulasary Comuniales ahmE dsc nottfy the Governer tor canst esecumve odSoar) of the $sess ta wmch the low 4evel radiascute wasse roquartag emergeasy sceems was
- .:=d that smorgency access Las been grantedv and taat. pursuant to suaseenoa 'es. no extensson of etaersone.
access enay be senated annent diligent State acusa dunas tae
"(d)penod of the intual grans.TtxponAav FMmascv Acesss.-I* pen deteraming th emerpncy access ta necessary because of as tamediate and sertous threat to the cublic healta and safety or tne ecmmon doiense and secunty. me Nue: ear Regulatory Cornm.smon may as its discronon grant se:porary emergency access. pendag its detersuaanon whee.er *.r.s t . rest could be aungsted my any alternauve conststerit wita r.s :'uolic r.saita and satety. In grantag secess unser this suneset :e. me Nuclear Regulatory Commaston snail provide the sams .:c.dcacen and tarcrmacon requtrod under suneoction tes.
Aasent a ce<er'umacon that no alternanve conststent with the pucac maith rna safety would musste tr.e threat. access granted under tms rumon shall emptre 45 days after the granung of temporsry emergency acteus under th:2 sucosenoa.
Not ErrottoM or ExanGsNCT Ac!tas.-The Nuclear Regulaterv Commtssoa may grant one attension of emergency access oeyond the pened prtmdae is sah t c:. if it deterfunes thas emergemey ascoes comanuas to be assumary Descuse et sa unasadaara sad sensus threes to the publis banish and safety or the summes defense and secunty chas maass be matigased by any alternaeve sensastmas with the publas heelsk and saissy, and thas the gamerseer of low-1
/
4 1
leseg rensassive wasse granted emergeosy assess and the Stase in I wedsk sonia Iw4evet redisasuve wesis was osserasad have diik gangythongt. assed during the pened of the imitaal ersus e aum' mass the for amargoesy assau Any ensamen ander tids saummsise shall be ser the sammann veieme and the Nasisar Esgalasary Commismen Sads maananary as l ensiasse me imanadiate crees se pubim bealth and smisty or the l asummasa defasse and assert y, and -* vill aos in any evens esamed las '
days, att) Itsesynocas, Accuss,-Any comp,Je regisa or State not a assaker of a compact that ynmass emergency accam to non Faleral disposal fasilinas withis its bordere shall be enntled to restpiemal assums to any subsequently opersanas non.Feeeral disposal facility that serves the State or compass reston in which lowlevel radio-asuve wasu granted emergency asenes was generased. The 1 ea==*=maa or State havtag authority to approve importanos of .l levet radioactive waste to the disposal facility to whicit emergensy I assens was granted shall designate for reciprocal aceses an equal volume of low level ranzoacave waste havtag maalar charastensass to thas v.-.4.4 emergency acuses.
"tg) AnnovAE, sv C0ssFACT ComGnsm0N.-Any grtas of assess under this secnon shall be submastad to the essapest comaussten for {
l the regina in which the dangnated dispoen1 facility is Issesad fler i such approval as may be requaged undar the terms of is sempesk Any such compact enemisman sha!! ass to approve essergeosy necess not !atar than 15 days after ressmag asudenman frons the j Nuciaar Raguissory h=i==aa or reciprocal assess aos later than 15 days after receiving nauticanon from the apprognase authoney under subseccaniD. !
"th) 1.1MrTAT!CNs.-No State shall be required to provide emer.
gency or reciprocal aceses to any regnonal disposal facility witnan its bortiers for low level radioacave wasta not meenns criteria estab-lished by the license or license agreement of such factlity, or is excess of the approved cassetty of such facsiity, or to delay the clostag of any such facility pursuant to phas established before recetving a request for emergency or recprocal access. No State shall. during any 1:1 month period. ce requ red to provide emerfency or romprocal acesse to any regiont.1 cisposal factlity within its borders for more than 10 percent of the total volume of low levet i radtoecnve waste accepted for d sposal at such facility dunng the {
previous caler.dar year. l "ti) Vot.t:ws Rant cTroM 4.n 5t:mexAacas.-Any low level ndio. . I acuve wasce delivered for dispcani under this secuan shall. be re-duesd in volume to the massmum extent precucable and shall be i l
subpect ta surcharges established in this Act.
"tj) DamMTION Fnow AuocArroN.-Any voluma of low level redacecuve waste granted emergency or romprocal access uncer th:s escean. J generated by any commermal nuclear power react:r. sna11 be deaucted trem the low level radanacave wasta volume allocante under terv'.ca 5 cf.
"'k: Ac e rwrvT STATES.-Anv agreement under seccon 2~4 of the Atomic T. etry Act :(1954 (42 U.S.C. 20211 shall not be applicaele to the : ster =r.auons of the Nue!aar Regulatory Commission uncer this sec :n.
I 1
8 i$f96 o
Part 62 Comment Analysis Pw
- of % nfh B. Responses to Individual Comments:
CJMrs.hthO B.1 Comment Letter #1 -- W. Clough Toppas. Dept. of Human Services Maine Comment 1.1
- 1. The premise for granting emergency acesss is sound and takes into account a variety of factors to include some initial oversight actions.
l We are not in opposition to the proposal.
RESPONSE: No response necessary.
M Comment 1.2,
- 2. The proposed rules (e.g., 662.26) should include a small subsection stating "...the designation of a disposal facility pursuant to 662.21 l shall not preclude the implementation of any specific conditions, l regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Commission's deter-mination to grant emergency access..."
l RESPONSE: The Commission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act) and which would meet all the general requirements and regulations of the disposal facility designated by NRC to receive the wastes. To assure that NRC will designate a site suitably matched to the LLW granted emergency access, NRC included a provision in the proposed rule which states that a LLW disposal site will be excluded from consideration to receive emergency access waste if the waste does not meet the criteria established by the license or licensee agreement for the facility [62.26(b)(1)]. The license or licensee agreements incorporate the regulations and requirements that affect each particular facility. Taken with the other information in 62.26 which the NRC will
2 consider before designating a site, the Commission believes Section 62.26 as proposed adequately addresses the NRC'S responsibility to designate a site which does not preclude "the implementation of.any specific regulations, and requirements at the designated disposal facilities."
Mr. Clough's comment' also lists " fees, taxes and conditions" as. items which NRC should consider in designating a site. The Commission does not agree that such information can or should be used by NRC in making its site designation decision. .The Commission recognizes their administrative importance. in the actual implementation of emergency access decisions once they are made by the Commission and has. responded -
to that part of his~ comment by adding a new "Section 62.27 - Terms and Conditions of Emergency' Access." The new Section sets out the responsibilities of the generator and the disposal facility operator once emergency access has been approved. (See also responses to Comments 5.5, 8.4 and 9.1.)
l l
l l
'3 B.2 Comment Letter #2 -- Sally Dicmas, " Concerned About Radiation in the Environment,"'(Citizens Group)
Comment 2.1
- 1. Commercial waste only shall b'e eligible for state and compact LLRW dumps. Federal waste (D' _j shall be prohibited.
RESPONSE: In developing the proposed rule, NRC assumed that only those LLW's designated by Section 3(a)(1) of the Act to be the disposal responsibility of the States, would be eligible for disposal' pursuant to the emergency access provision. UnderSection3(a)(1)(A),the_ States are assigned the. responsibility for disposing of commercially. generated LLW, and under Section 3(a)(1)(B) they are assigned the responsibility for disposing of "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommis-sioning of vessels, or as a result of any research, development, testing or production of any atomic weapons." Since LLW generated by the Federal government that does not fall into the above categories is eligible for disposal at the State / Compact LLW disposal facilities, those same Federally i generated LLWs are eligible for emergency access. To clarify the NRC's i l
intent regarding the scope of wastes which will qualify for emergency l access, NRC has added appropriate text to Section 62.1 " Purpose and l Scope," and to the " Assumptions" discussion in the preamble. For further elaboration on this subject, see the response to Comment 5.6. j Comment 2.2
- 2. No Greater-than-Class-C waste shall be forced upon these commercial dumps since this is not part of their design criteria.
RESF0NSE: NRC developed the proposed rule assuming that emergency access can only be granted to those LLW's for which the States have routine LLW disposal responsibility under the Act. Section 3(a)(1)(A) of the Act makes the States responsible for providing disposal only for those LLW's in classes A, B, and C.
4 Thus, greater-than-Class-C wastes are not considered by NRC to be eligible for emergency access disposal. .To help clarify this point, NRC has added an explanation of the scope of. the LLW eligible for emergency access to Section 62.1 of. the rule, and under the " Assumptions portion of the Preamble. (See also discussion in the response te Comment 5.6.)
Comment 2.3
- 3. If States choose to " store" rather than to affect'to " dispose" of waste, the NRC shull not force waste to go to those sites.
RESPONSE: Section 6 of the Act sets out NRC's mandate for emergency access decisions, and provides only that "the Nuclear Regulatory Commission may grant emergency access to any regional disposal facility or non-Federal disposal facility..." (emphasis added). Thus, by law, emergency access can only be granted to those facilities which provide permanent isolation of low-level radioactive waste. Facilities developed by States to store LLW would not, by definition, qualify and would automatically be precluded from consideration by NRC as sites to receive emergency access wastes.
(See also the responses to Comments 3.3, 8.4, and 10.5.)
l i
5 B.3 Comment Letter #3 -- Shirley & Lloyd Gilbert, Citizens; Fresno, California Comment 3.1
- 1. Since state and. compact dumps are being developed for commercial waste, this is the only type of. waste that should~ be eligible 'for Emergency Access. The' rule should clearly prohibit federal waste, example - waste 1
from the Departments of Energy or Defense.
i RESPONSE: See responses to Comments 2.1 and 5.6.
1
~
i Comment 3.2 2.. Since state and compact ' low-level' dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit NRC from forcing Greater-than-Class-C waste on any_ state or compact dump. The rule should make clear that if state.or compact dumps have other restrictions such as prohibitions on wastes that are hazardous
~
longer than 100 years or on Class B and C waste, NRC will respect those criteria.
RESPONSE: See responses to Comments 2.2 and 5.6. ]
l j
Comment 3.3
- 3. If states choose to store, rather than pretend to ' dispose' of waste, NRC should never force waste to go to those sites.
RESPONSE: As discussed under coment 2.3, NRC cannot legally designate anything but a facility designed for permanant isolation of LLW to receive waste granted emergency access under this rule, and pursuant to Section 6 of the Act. (See also the responses to 8.4 and 10.5).
6 B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Comission.
Comment 4.1 Page 47580 of the Federal Register Notice states that the Nuclear 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, the proposed rule omits any reference '
to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. This Section provides that the regional compact or state receiving (
the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact or l state that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
While the NRC may not wish to be involved in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extracted from the compact region or state in which the emergency access waste was generated before any determination for granting emergency access is made. This acknowledgement should be required as part of the contents of a i
request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledge-ment could then be included as part of the Section 62.22 notification i provided to the receiving state and, if appropriate, the compact commission.
RESPONSE: NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believed that assuring reciprocal access was beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. NRC believed that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts involved.
The NRC still believes an enforcement role regarding reciprocal access
7 is inappropriate for the Agency. However, from this comment and others like it, NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, and as such, should be addressed in Part 62. The following changes have been made to the final rule in response to this comment:
l l -
A new (n) has been added to 62.12 "A formal acknowledgement of I reciprocal access from the State and or the appropriate Compact Commission promising reciprocal access for an equal volume of LLW l
having similar characteristics to that requiring emergency access, l and indicating an approximate date when it would be available."
l A new sentence (underlined) has been added to 62.22(a)-- "...(not I to exceed 180 days) necessary to alleviate the immediate and serious threat to the pub,]ic_h,ealth and safety or the common defense and security. Et shoulii also include a fonnal promise of reciprocal access for aYequal' volume of LLW having similar characteristics to that requiring emer'gency access from the State and/or appropriate Compact Commissio'threquesting emergency ,
access. For the Governor of the State...." , n .
'} -
(See also responses to 4.2,4.3,4.4,4.5,5.4,17.14) k' (v* l] ,,
- lum l 0 Comment 4.2 Before granting emergency access, the NRC should determine whether or not there would be any limitations (e.g., timing, license restrictions, etc.) on the ability of the facility that serves the compact region or state in which the emergency access waste was generated to accept reciprocal access waste with similar characteristics (i.e., source, physical, and radiological).
This specific determination should be added to the Section 62.25 criteria.
RESPONSE: In response to Coment 4.1 and other similar comments, NRC has decided to require a formal promise of reciprocal access as part of each request for emergency access. However, as stated in the response to Comment 4.1, NRC will not be involved in brokering reciprocal access arrangements, as would be required if NRC were to carry out the
i i
8 i
I determination requested by this comment. Since there are no limitations i established either in the Act, or the rule as.to when reciprocal access must be provided, and.since it would be unlikely that determinations made by NRC at_the time emergency access _is granted will be applicable at the time reciprocal access may be us,ed, no change was made to the final rule in response to this comment. _SeeComment4.1)
(
Comment 4.3 Before designating a disposal facility, the NRC also should determine if the regional compact or state that would receive the caergency access waste has an equal volume of reciprocal access waste with similar characteristics.
This specific determination should be added to the Section 62.26(c) criteria.'
RESPONSE: (See response to Coments 4.1 and 4.2)
Comment 4.4 Finally, the NRC should be aware of any potential liability. obstacles before f making' final decisions. It is possible that differing liability requirements among Compacts or states could affect receipt of emergency access or I reciprocal access waste.
l RESPONSE: (To be provided by Chip Cameron) 4 Comment 4.5 We believe that the reciprocal access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facility. This is of particular concern because the receiving compact region or state has virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of Section 6, and should be recognized as such in the proposed rule.
RESPONSE: (See responses to Comments 4.1 and 4.2) l
r l
l 9
Comment 4.6 Because the NRC has already indicated, on p. 47583, that it will attempt to i
2 distribute emergency access waste as equitably as possible, a: criterion related to past acceptance of such waste should be included in Section 62.26(c). The criterion would require the Commission to consider, "The volume and characteristics of emergency access waste previously accepted."-
RESP 0NSE: In.the proposed rule, NRC intended that past patterns of {
distributing emergency access wastes should be considered in the process l of designating a site. This is evidenced by language in the'."Designa-tion of Site" discussion in the preamble which states that "NRC will consider how much waste has been designated for emergency access disposal i to each site to date (both for the year and overall)." NRC did not I include a criterion addressing past acceptance of emergency access waste !
in the actual regulatory text of the proposed rule. However, NRC agrees that the addition of such a criterion will be useful in clarifiying the intended site designation process. In the final rule NRC has added the criterion as suggested in the comment as the new provision identified i as62.26(c)(6). The provision identified as 62.26(c)(6) in the proposed rule has been renumbered and appears as 62.26(c)(7) in the. final rule.
I
10 B.5 Comment Letter #5 -- Terry Lash, State of Illinois Department of Nuclear Safety i
1 Comment 5.1
- 1. . IDNS agrees with the_ NRC's determination the.t establishing criteria and procedures by rule, in advance, is an appropriate approach.
Establishing procedures in advance of'a request allows the NRC to respond quickly in the event of an imminent threat. Establishing criteria in advance allows potential applicants to plan accordingly, and-4 serves notice that the emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act.
1 l
RESPONSE: No response is necessary given that the comment essentially
]
reiterates the rationale presented by NRC in the preamble for developing )
a rule for emergency access. f Comment 5.2 IDNS agrees with the statement preceding the proposed rule that NRC should
... reinforce the idea that problems with LLW disposal are to be worked out i to the extent practical among the states..." The proposed rule does not, !
however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such l agreements would be consistent with the intent of Congress and should help to aovid any immediate and serious threat to the public health and safety or the comon defense. The rule should expressly encourage states-and compacts to enter cooperative agreements.
RESPONSE: NRC is sympathetic to the motivation behind this coment.
However, the Commission does not believe it would be appropriate for NRC to expressly encourage States and Compacts to enter into cooperative agreements for emergency access in the regulatory text of Part 62.
First of all if NRC were to provide such express encouragement in the regulatory text of the rule, NRC would be assuming the role of advocate for such agreements. W' nile Congress clearly hoped that States / Compacts
b lA \
g l should be able to resolve problems associated with LLW disposal access )
through cooperative agreements (or " voluntary agreements." as they are referredtointheAct)'CongressdidnotdirectNRCtopromotesuch' agreements between States or Compacts any more.than the other alterna- {
tives to emergency access. Further, including such express j encouragement would be outside the scope of the rule, that is..to I
establish the process and criteria that NRC will use tomake decisions regarding requests for emergency access. The_ Commission t elieves the proposed rule which includes.a discussion in the preambic on states ]
responsibility under " Legislative History," and provision 62.13(b)(3) -
" obtaining access to a disposal facility by voluntary agreement" has addressed this concern appropriately and adequately. As a result, no changes have been made to the final rule in response to this comment.
Comment 5.3 IDNS_strongly agrees with the statement preceding the rule that " Congress believed it was important for the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity." We believe this statement should be made part of the rule. Development of new LLW disposal-capacity is a controversial and difficult task. The task is even more difficult when citizens in states such as Illinois, where progress is being made, hear and read statements from officials in other states that the-framework set out by Congress is flawed and that it may not be necessary for every state to take steps to provide for the disposal of low-leve1 radioactive waste generated within its borders. It is IDNS's experience that Illinois' citizens want assurances that the Illinois disposal facility will accept only low-level radioactive waste generated in the CMC region. It is imperative that emergency access not be perceived the states as an alternative to making diligent effort to fulfill their responsibility.
RESPONSE: While NRC is sympathetic to the motivation behind this comment, the Commission does not believe that the subject statement would be appropriate in the codified text of the rule. Part 62 contains only the criteria and procedures to be used by the Commission in considering
_ _ _---.----__ . _ - - - _ - - _ _ _ i
12 requests for emergency access. The Commission believes that the procedures and criteria in the proposed rule establish sufficiently stringent requirements for granting emergency access to clearly convey that emergency access should be viewed by.the States solely as a last resort and not as an alternative to the mandated development of new LLW disposal capacity.
Comment 5.4 IDNS observes that the proposed rule does not address the provisions of Section 6(f) of the Amendments Act, which pertain to reciprocal access. IDNS recommends that the proposed rule address reciprocal access is providing"
... reciprocal access for an equal. volume of low-level radioactive waste having similar characteristics to that provided equalaccess."
RESPONSE: (See response to Comments 4.1 and 4.2)
Comment 5.5 The proposed rule does not address the issue of disposal fees for wastes disposed of under an emergency access determination. The obligation of a State or Compact to accept wastes grnated emergency access should be con-ditioned upon the applicant's payment of disposal fees and surcharges as applicable.
RESPONSE: NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as any additional fees or surcharges specifically applicable to emergency access waste under the provisions of the Act. A new Section 62.27 -
" Terms and Conditions of Emergency Access" has been added to the final l
rule that addresses such obligations. (Also see the response for Comment 1.2.).
Comment 5.6 l
l 1
13 k i
662.2 The definition of Low-level Radioactive Waste is incorrect. For purposes of emergency access to non-federal and regional disposal facilities, 3 the definition should be limited to that subclass of low-level radioactive l waste for which states have been given responsibility under 42 USC 2021(c). 1 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 defined by j section 61.55 of Title 10, Code of. Federal Regulations, as in effect on l January 26, 1983, and.B) radioactive waste described in A) that is generated by the federal government, unless such waste is 1) owned or j generated by the Department of Energy, 2) owned or generated by the United States Navy as a result of decommissioning.of vessels of the United States Navy, 3) owned or generated as a result of any research, i development, testing, or production of any atomic weapon, or 4) f i
identified under the Formerly. Utilized Sites Remedial Action Program.
Under the Amendments Act, disposal of waste that is above class C, as L defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility of the states. The Nuclear Regulatory Commission may not, through 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." IDNS objects to any attempt, whether deliberate or inadvertent, to place additional burdens on the states in contravention of express statutory limits. The proposed definition is particularly troubling in light of the Amendments Act's express prohibition on requiring any regional facility to accept waste that is above Class C, or FUSRAP wastes. IDNS also notes that providing disposal capacity for naturally-occurring and accelerator-produced materials is not the 4 states' responsibility under the Amendments Act, and that the NRC has no I
authority under the Atomic Energy Act to include these materials in any definition of low-level radioactive waste. ,
RESPONSE: The definition that appears in the proposed rule is not incorrect. It is the same definition for LLW which appears in the Act l l
u-_---_---------------_--------_-----_------
14 itself. Although the NRC does not agree that the definition of low-level waste should be changed, NRC does agree that the qualification on the-scope of the LLW eligible for emergency access provided by the commentor's proposed definition is extremely relevant to emergency access decisions and would afford useful clarification if included in the rule. The commentorhasquotedSection3(a)(1)oftheAct,thesectionthatspecifies the subclass of LLW for which the states were given responsibility for disposal. It is important to the States that they be assured that they have the responsibility for disposing of only the subclass of LLW described in that Section. The States want assurance that NRC will not use the emergency access provision to require them to accept wastes for disposal, !
such as above Class C, and D0D or DOE LLW, which are not their responsibility pursuant to Section 3 of the Act. NRC has provided this assurance in the final rule by adding the recommended text to Section "62.1 - Purpose and Scope," as well as to the Section V, " Assumptions" discussion in the Freamble. (See also Comment 14.10.)
Comment 5.7 Section 3(b)(1) of the Amendments Act provides that the federal. government is responsible for the disposal of certain types of radioactive waste (i.e.,
above Class C) and radioactive waste generated by certain activities of the federal government (e.g., DOE waste, defense waste). Although the three l comercial 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 disposal facilities for waste that is a federal responsibility. In the Supplementary Information j section of its Federal Register notice, the NRC states that the emergency )
I access provision was "not intended to be used to circumvent other provisions of the Act." (52 Fed. Reg. 47579.) The implementing rule should clearly state that no request for emergency access for waste that is a federal l
responsibility shall ever be considered or granted. As the House Energy Committee pointed out, the NRC may grant access only for waste which is a state responsibility. Language proposed for inclusion in the Amendments Act by the DOE that would allow emergency access for waste generated by the D0D l was expressly considered and rejected by Congress. The NRC should abide by l
l
I 15 that decision and the express language of the Amendments Act in promulgating this rule.
RESPONSE: NRC plans to use the criteria in Sections 3(a)(1)(A) and (B) of the Act to determine what wastes could be eligible for emergency access disposal. (Also see responses to Comments 2.1, 2.2, 5.6, and-14.2.)
Comment 5.8 662.2 The definition of " Temporary Emergency Access" should be changed as follows:
"' Temporary Emergency Access' means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an immediate and serious threat to the public health and safety, or the common defense and security. Such access expires 45 days after granting."
The NRC's authority to grant emergency access, whether temporary or not, is limited to those situations where such access is "necessary to eliminate an immediate threat" (42 USC 2021, emphasis added). The Amendments Act does not, as the proposed rule suggests, allow the NRC to grant emergency access to " alleviate" such a threat. " Alleviate" is not synonymous with
" eliminate." Only where the applicant can show, and the NRC can find, that the threat would be eliminated by emergency access, can the NRC grant emergency access.
RESPONSE: The definition presented in this comment for " temporary emergency
)
access" is the precise language used to describe temporary emergency I I
access in Section 6(d) of the Act. The definition in the proposed rule is the same except it reads "necessary because of an immediate and serious threat" instead of "necessary to eliminate an immediate and serious threat." The definition has been changed in the final rule to match the language of the Act and the comment.
I
f q
16 ,
Comment 5.9
$62.12 Add a new subsection (c) as follows:
"(c) That the material for which emergency access is requested is
' low-level radioactive waste' as defined in this Part."
and redesignated the proposed subsection (c), and following subsections, as appropriate. This will help assure that no state will be asked to dispose of waste that is not a state responsibility under the Amendments Act. i i
l RESPONSE: A new subsection (c) has been added to 62.12 which reads
" certification that the material for which emergency access is requested is ' low-level radioactive waste' as defined in this Part." Proposed I l
subsection (c) and the following subsections were redesignated as appropriate. ;
Comment 5.10 662.12(f)(3) should be trodified as follows:
"(3) The minimum volume of the waste requiring emergency access to q eliminate the threat to the public health and safety, or_the common defense and security."
RESPONSE: In the proposed rule, NRC used " alleviate" rather than l " eliminate " which is used in the Act. The recommended change has been made to the final rule. (See also Comment 5.8)
'l Comment 5.11 562.12 Add a new $62.12(k) as follows:
"(k) A description of how granting emergency access would eliminate an immediate and serious threat to the public health and safety or the common defense and security."
RESPONSE: Adding the recommended provision would be redundant. If the l requestor is able to demonstrate to NRC that disposal to a LLW disposal J site is necessary because of a serious and immediate threat to the f public health and safety or the common defense and security which cannot be mitigated by any available alternative, and routine LLW j l disposal has been denied to the generator of that waste, then emergency access is the only way to get that disposal.
L___. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _
.)'
17
)
1 Comment 5.12 662.12 Amend the proposed 662.12(k) as follows and re-designate as 662.12(1):
"(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,' certification lby the Secretary of Energy and the Secretary of: Defense that the waste for which emergency access is granted is not owned or, generated by the Department of Energy, owned or generated by the United States Navy as a result of any
' decommissioning of vessels of the United States Navy, or owned or generated-by the federal government as a result of any research, development, testing, or production of any atomic weapon, and that access to disposal is necessary to eliminate the threat to the common defense and security."
As explained in Comment #1, under the Amendments Act it is'the responsibility of the federal government, not the states, to dispose of radioactive waste generated by certain federal activities safely. IDNS holds that no state can be forced to accept responsibility for disposing of these wastes under the emergency access provisions of the Amendments Act or through any action of a federal regulatory agency. In addition to the generator's certification that 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 for access is based on a claim of immediate and serious threat to the common defense and security.
l In Section 62.12(k) of the proposed rule, NRC requires that a
RESPONSE
recuest for emergency access based wholly, or in significant part, on )
the basis of a threat to the common defense and security, should include "a statement of support from DOE or D0D certifying that access to disposal is necessary to mitigate the threat to the common defense and security." This comment recommends that DOE and D0D also certify that the wastes for which emergency access is requested are not LLWs for which the Federal Government has disposal responsibility under Section 3(a)(1)(A) and (B) of the Act. NRC has modified "Section 62.1 - Purpose and Scope" of the final rule and "Section V - Assumptions" of the
_ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ 1
s i
18 ,
preamble to clarify that only LLW which is th'e disposal responsibility of the States is eligible for emergency access consideration. With these two changes in tra final rule, NRC believes- the objective of the.
change recommended in this comment has been..accoramodated. (Seealso responses to comments 2.1, 2.2, and 5.6.)
Comment 5.13 -
l Modify 962.13(c)(6) as follows:
"(6) Any legal impediments to implementation of each alternative including whether the alternatives will comply with applicable NRC requirements, and the requirements of the Com.act Commission and the State where access was considered."
It should be made clear from the application for emergency access whether denial of access was based on failure to comply with applicable standards.
NRC should not grant emergency access when the emergency was brought about by the applicant's own failure to comply with regulatory standards.
RESPONSE: NRC agrees with this change. It has been made to the final.
Comment 5.14 Modify $62.13(d) to read:
"Tne request must include clear and convincing evidence that the applicant has exhausted all other options for managing its wastes and must include the basis for:
(1) Rejecting each alternative; and (2) Concluding that no alternative is available."
Section 62.13 of the proposed rule specifies that a description of alter-natives considered must be included in a request for emergency access, but it does not include the provision in the statement preceding the rule that,
" applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their 1
19 i
i wastes." This language is appropriate and should be incorporated into the rule.
RESP 0NSE: NRC agrees that this.is a worthwhile change. It has been made in the final rule.
Comment 5.15 .
962.14 Add a new 662.14(c) as follows:
"(c) A description of how granting emergency access as requested would eliminate an immediate and serious threat to the public health and safety or the common defense and security."
RESPONSE: (S'ee response to Comment 5.11.)
Comment 5.16 662.18 Replace "may" with "shall" in this section.
This section provides that the Commission may deny a request if it is based on circumstances that are too remote and speculative to allow an informed decision. IDNS recommends that "may" be changed to "shall." If the Commis-sion cannot make an informed decision on a request, it should not grant the request.
RESPONSE: The Comission does not intend to make uninformed emergency access decisions. The word "may" was used in the proposed rule in preference to "shall" to provide NRC with options in the event that additional information is needed by the Commission to reach its decision. The recommended change was not made to the final rule.
Comment 5.17 )
562.21(a) should be modified as follows: l
"(a) Not later than forty-five (45) days after the 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
20 or generators located in his or her state, the Comission shall make a determination whether--
(1) The request for emergency access to a regional disposal facility or a facility within a state that is not a member of a compact, for specific low-level radioactive waste is based on an immediate and serious threat to:
(i) the public health and safety, or j (ii) the common defense and security; I l
(2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in 962.13, 1
- (3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access is requested is low-level radioactive waste as defined in this Part and a State responsibility under Section (3)(a)(1) of the Low-Level Radioactive Waste Policy Amendments Act of 1985.
RESPONSE: This comment recommends a few changes to the language and a few additions to the procedures for making a determination for granting emergency access under Section 62.21. The Act very precisely sets out the process to be followed for making a determination and NRC developed the proposed rule to incorporate that language. NRC decided to incorporate a part of one of the changes recommended in this comment but rejected the others because they departed from the process Congress set out in the Act.
(1) Section 62.21(a) of the proposed rule specifies, "the Comission shall make a determination that..."
l 21
- The comment recommends ", the Commission shall make a determination whether..."
- Neither of these precisely duplicates the language of the directiveintheSection6(c)(1),soNRCadoptedtheprecise wording in the Act. Section 62.21(a) of the final now reads ", !
the Commission shall determine whether..."
Other changes proposed in the Consnent include 1
(2) Replacing " Emergency access to a regional disposal facility or a j 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..." with ... "The request l for emergency access to a regional disposal facility or a facility )
within a State that is not a member of a-Compact, for specific low-level radioactive waste is based on an immediate and serious !
threat to:," (differences are underlined for emphasis)
(3) The addition of items 3 and 4, neither of which are part of the Act l where the determination for granting emergency access is discussed. 3 NRC did not make either of the changes discussed under (2) and (3) above l because they do not track the language of the Act and serve to alter the meaning we believe was intended by Congress.
Comment 5.19
$62.22 Add a new $62.22(d) as follows:
"(d) Any grant, denial, or refusal to consider a request for emergency access or temporary emergency access under this Part is a final agency action."
If the request is indeed based on an immediate threat, and the decision is challenged, then prompt judicial review is necessary to resolve the issue.
22 Clarifying that a grant or refusal is a final agency action may remove potential obstacles to obtaining prompt judicial review.
RESPONSE: (To be provided by Chip Cameron.)
Comment 5.20 562.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under the circumstances," in this subsection.
Subsection (e)(1) ;;rovides that the Commission, in making an emergency access determination, will consider whether the applicant "[h]as demonstrated that a good faith effort was made to identify and evaluate alternatives that would mitigate the need for emergency access." IDNS submits that subjective good faith should not be sufficient. The effort must be objectively reasonable and diligent.
RESPONSE: NRC agrees that the phrase " good faith effort" does not convey the same meaning as " diligent effort." However, NRC decided not touse"diligenteffort"because"diligenteffort"wasusedin6(e)of the Act in specific regards to requests for extensions of emergency access only. NRC did not want to comprors t ) the legislated use and meaning of the phrase by using it in disic,etiorr ry text in the proposed rule. NRC agrees that " good faith effort" couid b improved, but the Commission does not believe " reasonable under the circumstances" captures the sense correctly either.
NRC has changed 62.25(e)(1) in the final to read "(1) has identified and l evaluated any alternatives that could mitigate the need for emergency l access." NRC believes this is an improvement over the original language and is consistent with the precise language in the Act regarding the requestor's responsibilities towards identifying alternatives.
l i
23 Comment 5.21
/ new E62.26(b) should be added as follows:
w w
. (b) If the Commission designates a regional dispsal facility to receive the waste for which emergency access has been granted, the Commission shall request the approval of the Compact Commission for the designated regional facility. The request for approval shall include the entire administrative record of the request for emergency access under this Part, including the reasons for the Commission's findings.
No grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Comission.
Section 6(g) of the Amendments Act provides that:
"any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its compact."
This requirement of the Amendments Act has not been incorporated in the rule.
While the effect of a refusal by the Compact Commission to allow emergency access is not clear, the NRC may not, by rule, remove this option from the Compacts. IDNS also notes that this option applies only to regional disposal facilities, and that the Amendments Act makes no similar provision for i non-federal, non-regionti facilities.
i RESPONSE: This comment correctly states that NRC did not reflect the Section 6(g) provision in the proposed rule. Based on the legislative history for both Section 6 of the Act and tha Jmnibus Low-Level Radioactive Waste Interstate Compact Act which was passed with the Act NRC believes that disapproval is not really an option for the Regional Compact Comission in which the designated emergency access disposal facility would be located. NRC has interpreted the approval specified under 6(g) to be somewhat pro fonna. So the Commission did not believe it was necessary to make the Compact Commission's approval part of the formal emergency access process. This position was explained under the discussion of Legislative History in the preamble to the proposed rule. While
24' disapproval may not be an option under the' Act, clearly the Act intended l l
the receiving Compact Commission to be fully informed regarding the emergency access decision made by NRC and the Commission believed the l Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section 62.22 of the proposed rule provides that NRC will notify the Compact Commission of {
the State in which the designated disposal facility is located that emergency access is required. It further provides that "the notifications must set'forth the reasons that emergency ' access was granted and 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 the public health and safety or the common defense and security."
It appears that the_commentor does not believe this is sufficient. In response to this comment NRC has made the following change in the final rule: A new 62.22(b) is added which requires the NRC to submit this-written determination to the appropriate Compact Commission as part of l
the notification. The Sections 62.22(b) and 62.22(c) in the proposed rule have been relettered as appropriate.
The new 62.22(b) reads: "The Secretary of the Commission will submit the notification described under 62.22(a), and the written determination described in 62.21(c) to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be j required under the terms of its compact. Any such Compact Commission shall act to approve emergency access not later than 15 days after receiving notification."
In order to accommodate the 15 day approval period NRC has added the following to the end of 62.22(b) of the proposed rule "... issuance of a determination, indicating it will be effective 15 days after the date the determination was issued,"
1
25 Comment 5.22 662.27 Add a new $62.27, as follows:
"S62.27 Compliance with conditions of emergency access; termination of emergency access.
(a) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(b) The Commission shall terminate a grant of emergency acce u when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
(c) The Commission may terminate a grant of emergency access if an applicant has made a material false statement in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
The proposed rule does not address termination of emergency access. Further-more, under the rule as proposed it is not clear that a state or compact could refuse to dispose of waste granted emergency access even if the applicant or the wastes did not meet the conditions of disposal set by the Commission.
RESPONSE: The Commission agrees that terms and conditions should be established in the rule for grants of emergency access. For the reasons given in the comment, NRC has added a new Section 62.27 to the final rule which incorporates the suggested conditions for termination as recommended in this comment, along with the terms and conditions which l the recipient is expected to meet. The new 62.27 reads:
62.27 , Terms and Conditions for Emergency Acces ) General:Any
'LLW granted emergency access pursuant to this rule is subject to the general requirements for LLW disposal under
La the Act, as well as those pro isions which s ecifically address emergency access. OcetheNRChas[ granted emergency access the waste o concernQhdii3) reprocessed and disposed of by the gene ator and the designated receiving site in a manner that is consistent with other LLW disposed of under the terrrys of the Act. The disposal of emergencyaccesswast(s,h[u[l[notr'ecludethe impleir tation of any specific conditions, regulations, requirements, fees, surcharges, or taxes prescribed by the "o((
(
disposalfacilitywhichma3peineffectatthetimeofthe N Commission's determination to grant emergency access.
x ' Additionally, generators with wastes approved for emergency access (sh[1}dnothavetomeetunusualrequirementsorpay unusual fees (when specified in the Act) simply because their waste is emergency access waste.
i (b) Compliance with conditions of emergency access; termination of emergency access.
(1) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
)
(2) The Commission shall; terminate a grant of emergency
\ access when emergency 1ccess is no longer necessary to V eliminate an immediate threat to public health and safety or (W <
I
,s m the common defense and security. l t - . . _ _.
< l (3) The Commission,s mayit erminate a grant of emergency access if an applicant has made a material false statement in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
27 Comment 5.23 Miscellaneous Comments and Questions
$62.6 Specific Exemptions The provisions of this section would allow the Commission to bypass all of the procedures of the emergency access rule by granting special exemptions.
Why is this section necessary? Under what circumstances would NRC grant special exemptions. What assurances do states and compacts have that this exception will not, in pract;ce, become the rule? This provisions should be deleted.
1 RESPONSE: Provision 62.6 is not intended to allow NRC to arbitrarily bypass the procedures that will be established by the emergency access rule. It is impossible for the Commission to anticipate every situation i i
under which emergency access may be requested or needed. The Commission '
believes the procedures and criteria established in the proposed rule would accommodate most circumstances and scenarios. However, in the
{
event that something unanticipated requires action ommission may have l
to apply its discretion and grant an exemption. Provision 62.6 is .
1 included in the Part 62 only to acknowledge the Commission's overriding ]
mandate to protect the public health and safety and the common defense
)
and security and to provide the flexibility it may require in dealing with emergency access decisions to meet that mandate. Provision 61.6 remains unchanged in the final rule. i l
. Comment 5.24 l
l S62.11 Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Commission's Public '
l Document Room and in the " Local Public Document Room of the facility sub-mitting the request." A request for emergency access could be submitted by any Governor or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public document rooms?
'28' 4
RESPONSE: There is no requirement that a given generator or Governor specifically maintain a. local:public document room for documents.
relating to emergency access requests. Usually there-is a " local public document room," however distant it may be, that maintains documents of public interest for every NRC or Agreement-State licensed facility. Provision 62.11 was included in the proposed rule in order to assure.that
! documents relating to emergency access decisions would be made available, as conveniently as possible, to concerned members of.the public.
Comment 5.25 l
662.23 Determination of Granting Temporary Emergency Access I
'This section provides for the granting of temporary emergency access.to
. . .an appropriate non-federal disposal' facility or. facilities. . ." The.
provisions in Section 6(d) of the Amendments Act which pertain to temporary emergency access do not distinguish between non-federal disposal facilities and regional disposal facilities. Does the NRC propose to limit temporary emergency access to non-federal facilities in order to avoid the provisionc of Section 6(g) of the Amendments Act, pertaining to approval by a Compact Commission?
RESPONSE: The exclusion of " regional disposal facilities" was an ]
oversight on the part of NRC. The final rule has been revised to ;
include regional disposal facilities as recipients of temporary '
emergency access waste.
)
29 B.6 Comment Letter #6 -- Faith Young, Tennessee Resident Comment 6.1 Only commercial wastes should be eligible for emergency access since the dumps are developed for that purpose.
l.,
RESPONSE: See responses to Comments 2.1, 2.2 and 5.6.
Comment 6.2
[
NRC must respect state or compact dump restrictions (including no greater-than-class-C waste).
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
i Comment 6.3 Please register these as firm requests in your comment considerations and inform me of the outcome.
RESPONSE: Noted. No comment necessary.
30
)
B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident Comment 7.1 The rule has a basic flaw: The Federal Government and the NRC is regulating a State function or at least a Compact function. This is an obvious infringement of State's rights and an' infringement which has both financial and health impacts. The compacts are state engineered agreements. The LL-
-radwaste dump is a State or compact administrated facility. The Federal government and the NRC has less than any right to regulate when a site will be opened up to out of compact wastes.
RESPONSE: When Congress passed the original law called the Low Level Radioactive Waste olijc g t of 1982, it made each state responsible for providing its own Ibw-Tevel radioactive waste (LLW) f :;:::' ' m generated within its borders. State responsibility for LLW-disposal was reconfirmed in 1985 when Congress passed the Low-Level Radioactive Waste Act Amendments (The Act). In the Act, Congress also conferred certain regulatory or administrative responsibilities to both the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE). One of the responsibilities conferred to NRC was to grant requests'for emergency access under the provisions of Section 6 of the Act. As stated in the preamble for the proposed rule, Congress believed if the states / compacts with LLW disposal sites denied other states / compacts access to their facilities, the public health and safety could be seriouslyjeopardized. NRC was given the authority to override such decisions to assure that the public health and safety would be protected. NRC does not intend to use grants of emergency access to 1 interfere with the States' operation of their LLW facilities except as is necessary pursuant to its responsibilities under the Act to protect Sa-
- public health and safety. (See also response to Comment 7.5.)
l l
Comment 7.2 l Also the sites have been carefully designed for what the State compact l
expects. Allowing unplanned wastes in will hurt the financial and planning picture for the particular compact. Implementation of the emergency access
_ _ ____--_-__ _ _ _ _ _ _ _ - - - - _ _ _ - - . - - - - - - - - - - - . - J
31 provision should not force unplanned quantities or kinds of wastes on the states with operating LLW disposal facilities and should not create financial problems either.
RESPONSE: The Act sets upper limits on the number of cu.ft. of LLW that are to be accepted by each facility through 1992. The amount of LLW granted emergency access is to fall within those limits. In addition,
]
as discussed in more detail in Comment 1.2, waste granted emergency I 1
access will have to meet all the requirements and conditions for routine I i
1 LLW disposal established by the facility designated, including the
(
payment of appropriate fees, taxes, surcharges, etc. x I
~
f Comment 7.3 )
States are also very worried about having to take D0D and DOE wastes.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 7.4 Also many compacts are not planning on large amounts of Class C wastes.
RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 7.5 All the above and more make this rule very premature and ill-conceived. j Please retract this rule for good and abundant cause. Let the non-Federal l and the Regional authorities regulate their own access. This is an area which the Federal authority and the NRC should not get into.
RESPONSE: NRC did not propose the emergency access rule without due cause. As is explained in the preamble to the proposed rule, NRC is required by law (Section 6 of the Act) to make emergency access determinations.
l L______-____-_____- _
f, 32.
In that same law Congress specified the conditions'that must be met by persons requesting ~ emergency access,.the factors NRC-is to'conside'r in making its determinations and establish the terms of grants of emergency access. The proposed 10 CFR Part 62 serves to codify the requirements.
in the law-and NRC has tried to assure that the rule assumes no responsibilities for the NRC which were not mandated. (See'also response to Comment 7.1).
l 1 i
-l i
1 I
l f
w__-_-_______________-___ - _ _ _ -
33 B.8 Comment Letter #8 -- William Gold,'_Lorraine Gold.(citizens, New Jersey)
Comment 8.1 It has come to our attention that the NRC is authorized by the NRC to super-sede state and compact rights-in situations where the NRC deems the
" disposal" of waste from outside the region or state to be an emergency.
It is of primary'importance to the whole concept of compact and state dump siting that this emergency authority be used only as a last resort, when-clear danger to the public is evident.
RESPONSE: The Commission agrees and so stated in the' discussion under Legislative History in the preamble of the proposed rule.
Comment 8.2 Further, only commercial waste and not waste-from the Departments of Energy or Defense should be eligible for Emergency Access, since.these sites are' being developed for commercial waste only.
RESPONSE: See responses to Comments 2.1 and 5.6.
1 l
l Comment 8.3 Regulations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or compact dump.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 8.4 r
All criteria and restrictions on types of nuclear waste acceptable at that state or compact's dump should supersede any NRC order.
RESPONSE: Criteria and restrictions at disposal facilities are to be considered and accommodated in NRC's decision to designate a site and in
.34 any disposal of emergency access waste'. (See response to Comments 1.2, 5.5) l l
Comment 8.5
~
Some states'may choose to store nuclear waste rather than;"dispo'se"'of:it, since the technology. to dispose of. nuclear wastes is still experimental. :The rules should state that the NRC cannot force out-of-region waste to go,to-
' ~
those sites.
RESPONSE: .NRC cannot force a state to dispose of emergency access LLW at a facility designed for storage. (See the response-to Comments 2.3, .
3.3, and 10.5)
.l 1
l l
l I
l
35 B.9 Comment Letter #9 -- Jon R. Montan (St. Lawrence County Environmental Management Council)
Comment 9.1 The recipient facility should be allowed to collect 1ees at levels sufficient to pay full expenses associated with the long-term operation and maintenance costs of the facility for any wastes that are received under direction by the Nuclear Regulatory Commission.
RESPONSE: NRC believes this statement expresses the intent of Congress regarding disposal fees and has applied this interpretation in develop-ing 10 CFR Part 62. To clarify the financial responsibilities of the
\
person granted emergency access, NRC has added a new "62.27: Terms and Conditions of Emergency Access" to the final rule. (See also Responses to Comments 1.2, 5.5, and 8.4)
Comment 9.2 The references in Section 62.25(d)(1) and (1) to activities generating wastes being "necessary for the protection of the common defense and security" are cryptic. What are examples of such activities by the Def.artment of Energy and Department of Defense and what are the types of waste which could be involved?
RESPONSE: (use in combo with exclusion in Act & scenarios developed previously) l Comment'9.3 The Council members also wanted to express their concern that the states in which recipient faiclities 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.
l
- 36. ?
NRC does have the authorityLto override the sited States /
RESPONSE
Compacts to grant. emergency access because Congress decided that establishing a mechanism for~ such an override would be .in' the public interest. As indicated in the discussions'in the. preamble for the
. proposed rule, Congress expected that responsible. action from the generators and.the States / Compacts.sh'ould result in the resolution of most' access problems outside the emergency access process, so that hopefully NRC would not have to get involved in something that is~really the States' responsibility (See also responses to Comments 7.1'and 7.5) i i
I l
1 f
a l
i i
___ _ _ _ _ _ _ _ _ _ _ __._m__ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ - _ _ _ . . _ _ . _ _ _
L 37 B.10 Comment Letter #10 -- Anne Rabe, Executive Director NewYork Environmental Institute (Lobby Group)
Comment 10.1 We are writing in regard to 10 CFR 62, 52FR240:47578 on the-proposed rule by .
NRC to force compact and state " low-level" radioactive waste dumps to accept out-of-state and federal nuclear waste in " emergency" situations.
RESPONSE: See ti e responses to Comments 7.1 and 9.3.
~
Comment-10.2 New York State law (the Low-Level Radioactive Waste Management Act of 1986) specifically prohibits federal wastes, such as Department of Enesgy wastes, at any New York State " low-level" radioactive waste facility. There are a number of DOE FUSRAP sites, with long-lieved high-level waste, in New York which currently are being cleaned up or temporarily stored. We are aware that DOE has approached New York requesting access to its " low-level" radio-active waste facility for certain DOE wastes (such as U-238 and U-235 at the former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ-mental Conservation disapproved this request and the subsequent law upheld the state's policy to exempt any federal wastes. Therefore, we. totally oppose the proposed rule to accept federal wastes.
RESPONSE: None necessary.
, Comment 10.3 To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste Policy Act which supports compacting and state's rights. The NRC is directly threatening the state's authority to exclude wastes.
RESPONSE: As indicated in the preamble to the proposed rule, the amendment to the Low-Level Radioactive Waste Policy Act direct NRC to
38 designate LLW disposal facilities:to receive emergency access' waste.
(See responses to 7.1, 7.5, and 9.3T
]
1 -
Comment 10.4 For states to accept federal wastes will in many cases cause the state's-management of facilities (in terms of storage / disposal capacity, etc.) to be 'I radically changed. How will states / compacts be able to adequately plan and )
t manage their facilities with the threat of-NRC emergency declarations forcing i 1
i substantial amounts of waste on them at anytime? q I
At the very least, the NRC should change the rules to: .1) Require strict .
adherence to state / compact requirements, including allowing only commercial wastes (not federal) up to Greater than Class C waste.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 10.5 Other state restrictions on 100 year hazardous life, or only Class A, B or C wastes, must be strictly adhered to by NRC.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 10.6 Lastly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes.
)
RESPONSE: See responses to Comments 2.3, 3.3, and 8.5. ,
I Comment 10.7 i Also, the term " emergency" is no assurance at all - the federal government 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 I
\
39 i production has caused the_" emergency" in'the first place. States should not l have to bail out the Federal-government.
i RESPONSE: NRC does not believe Congress intended the emergency access provision would serve to' require States to_" bail out the Federal ,
1 government." _As is explained in responses to Comments 2.1, 5.6, and 3 14.2, through Section 3(a)(1) of the Act,. Congress gave States the- l responsibility for disposal of specific classes and types of LLW. Some
~
of that waste is generated by the Federal government, but because that fact is all laid out in the Act, the States should be well aware of what
" Federal government" LLW's they.will or won't have to take. There are federally operated LLW disposal fccilities and in an emergency involving LLW's that are the Federal government's disposal responsibility, NRC anticipates that the Federal facilities'would be available to provide necessary disposal for wastes that are not the State's responsibility.
Comment 10.8 In closing, we call on the NRC to withdraw the proposed rule in its entirety and tu establish a comprehensive storage and reduction of production program which will ensure that no emergency will exist for federal government wastes.
RESPONSE: Most of the provisions included in the proposed emergency access rule came directly from Congressional mandater,in Section 6 of the et, so the requirements for NRC to make emergency access determinations would remain even if NRC were to withdraw the rule. As far as establishing a comprehensive storage and reduction of production program is concerned, such programs and related decisions are not among NRC's responsibilities.
i 1
40 B.11 Comment Letter #11 -- David Woodbury, President, American College of Nuclear Physicians Comment 11.1 We are writing on behalf of the American College of Nuclear Physicians and theSocietyofNuclearMedicineregardigtheNRC'sproposedruleto'estab- %
lish procedures and criteria for grantinguemergency access to non-Federal and regional low-level waste disposal facilities. The Society represents over 11,000 physicians, physicists, radiochemist, radiopharmacists and technol-ogists dedicated to the overall advancement of Nuclear Medicine and has' major interests in the scientific, educational and re w arch 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 Amendments of 1985 (LLRWPAA).
During congressional deliberations on the LLRWPAA, the College and Society testified on several occasions in support of the emergency access provisions for generators of biomedical waste to LLW disposal facilities. Because access to disposal facilities is critical for 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 radiopharmaceutical production.
The medical applications of radioactive materials are not just a matter of importance to the specialty of Nuclear Medicine, but to the entire medical i
field as a whole. While an 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 research is dependent on radioactive tracers, and approximately 95% of all the prescription drugs in America are developed with the use of radioactive 1
41 tracers. It is clear, then, that radioactive materials permeate'every aspect of medical practice.
RESPONSE: No response necessary..
Comment 11.2 Disposal capacity for LLW generated by the manufacturers of radiopharmaceuti-
'cals is just as important, if not more, than disposal capacity for direct generators of medical LLW (i.e., hospitals, laboratories). We would urge the.
Commission to consider that on-site storage, while a feasible alternative'in some situations, may create problems for others. For example, today, most hospital and laboratory waste is subject to volume reduction and on-site storage and decay, as is evidenced by the fact that in 1986, medical waste accounted for only 1.3% of the total volume of LLRW received at disposal sites (and only .0001% of _the total activity), Unfortunately, however, in the case of lost access, the manufacturers of radiopharmaceuticals on which the Nuclear Medicine community depends would not be able to accommodate on-site storage because their higher-activity materials would conceivably exceed available on-site storage capacity within one to six months.
In addition, we would like to draw your attention to the fact that on-site storage may not be feasible or desirable for larger volume and activity .
generators in academic research institutions and pharmaceutical houses because of the possession limits specified in the generators' licenses. For example, if most of the generator's possession limit 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 development. 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, all of the medical activities using these materials would cease or be significantly curtailed.
RESPONSE: In the legislative history of the Act, Congress acknowledged the special LLW storage / disposal problems of the manufacturers of
42 q
radiopharmaceuticals. The proposed and expressed concern th'at essential l medical services might be. curtailed'if access to LLW disposal were not available. NRC is aware of these Congressional concerns, As' indicated in the proposed rule, in order to determine.if emergency access should be granted, NRC intends to consider both the. threat-to the public health
-and safety if access.is denied and also the impact on public health and safety if essential medical services would have to' cease as an alter--
native to granting emergency access.
Comment 11.3 The College and Society raise these fine points on possession limits and on-site storage so that the NRC recognizes the delicate balance between the medical community's ability to provide necessary health care services and the availability of adequate LLRW disposal capacity.
RESPONSE: Noted.
Comment 11.4 We agree with the Commission and the Congres that emergency access should not be used as an alternative to diligently pursuing the compacting and siting j processes mandated by the LLRWPAA. We also agree with the NRC that emergency access provisions are necessary as a contingency in the event that access is denied or is unavailable, so that important health care services and research can continue uninterrupted.
l RESPONSE: No response necessary.
l Comment 11.5 I In conclusion, the College and Society support the emergency access provisions of the LLRWPAA and the NRC's efforts to establish procedures and criteria for granting such access. We hope the Commission will bear in mind the unique characteristics of LLRW generated by medical institutions and radiopharmaceutical manufacturers and the necessity of access to disposal for
43 l
the provision of vital medical care services in this country. Please feel 1 free to consult with us if you require further information or assistance. l RESPONSE: Noted i
1 1
i l
l
)
'44 j l
1 1
B.12 Commer.t Letter #12 -- Kathy Lyons,; Concerned Citizen, New Hampshire Comment 12.1' I wish to comment on the Low-Level Radioactive Waste Policy Act in which NRC has the right to force unwanted waste on state dumps.
RESPONSE: None necessary.'
l Comment 12.2 Please, in doing so consider this: Do not'give us federal' waste (D0D or DOE),
RESPONSE See response to Comment 2.1.
Comment 12.3
...and do not give us waste outside of our Class, that's not acting re:ponsibly.
i RESPONSE: See response to Comment 2.2. ,
l Comment 12.4 Also, please keep in mind that state dumps couldn't handle waste with long !
half lives and that some states may not have compatible wastes dump j practices.
RESPONSE: NRC cannot force a state LLW disposal facility to accept LLW that is incompatible with its license agreement. (See responses to 3 comments 7.1,7.2,7.5,9.3)
l i l i
-45 .
I B.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology Alert .
.l Comment 13.1
~
Although the Low-Level Radioactive Waste Policy Amendments Act of 1985 j doesn't require _ NRC to develop a rule, we agree your' doing so is an excellent '
idea.
But we_ feel the proposed rule could stand a bit of tightening.
RESPONSE: None needed.
Comment 13.2 Section 62.6 - We question the need and advisability of making any Specific Exemptions. It seems to us this lends itself to the granting of too much leeway by NRC - and possible abuse.
RESPONSE: (See response to Comment 5.23)
Comment 13.3 Section 62.11(b) - The provision that you'll publish notice of requests received in the Federal Register, then allow 10 days for public comment,.is ridiculous.
Probablynotonein20,000membersofthegeneralpublicever/seesthe Federal Register. If you want to notify them, you should publish such' notice as a news release (not a legal advertisement) in a newspaper of local circu-lation, and allow a comment period of at least 20-30 days.
RESPONSE: NRC recognizes that a 10 day public comment period is unusually short. However, the alternatives were a shorter comment period or no comment period at all, and both of those were unacceptable to the Commissioners. The Act does not require NRC to provide a comment period on requests for emergency access, probably because the Act i
46 -!
provides NRC only 45 days to review a' request and determine if. emergency _
access should be granted. Nevertheless, the Commission believes.that-the public should be notified when emergency access is requested and-should have some opportunity for input-into.NRC's decisionmaking
~
1 process. The Commission decided that a 10 day public comment period would, to a limited extent, meet those objectives and still hopefully 1 allow NRC to complete its review in the' allotted time. The Commission I concluded that a longer public comment period would likely preclude a timely response on the part of NRC.
Comment 13.4 Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be included in the category of low-level waste?
RESPONSE: Section 62.12 sets out the information required by in order to decide whether or not emergency access should be granted. The presence of transuranic in the waste would affect the Commission's decision.
Comment 13.5 Section 62.23 - Before granting temporary emergency access, why not allow a 10 day waiting period, so possible alternatives may be considered?
We feel this provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration.
l RESPONSE: The sequence of events for granting temporary emergency access is established in the Act. Section 6(d) of the Act provides that l "upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the common defense and security, the NRC may, at its discretion, grant temporary emergency access, pending its determination whether the threat could be mitigated by any alternative consistent with the public health j i
47 and safety." The CommissionLhas interpreted.this to mean that when'NRC concludes there is an urgent need for access to disposal in order to protect the public health and safety or.the common defense and security,'
NRC can grant a request for temporary emergency access for no more than 45 days, while possible alternatives to disposal are evaluated. NRC does not have.to grant requests for temporary emergency access,,
particularly if a request is made because a generator failed to plan for obvious or routine disposal needs. NRC will always have the option of denying emergency access or encouraging a requestor to cease generating such waste.
Comment 13.6 Section 62.24(b) - Re: extension of emergency access, this says the require-ments of Section 62.21(c) and (d) must be followed. 'There is no Section 62.21(d).
RESPONSE: The typographical error noted in.this comment has been corrected.
Comment 13.7 Finally, under Specific request for comments, you ask what should NRC do if no site is found to be suitable for emergency access?
l l
We suggest you then require the operator to cover the pile of low-level waste with lead shielding, topped with enough soild to stop radiation from escaping.
Response: Noted.
l l
48 B.14 Comment Letter #14 -- Diane D' Amigo, Nuclear Information and Resource Service Comment 14.1 Although the intent is that NRC use its Emergency Access authority only as a last resort, the danger is present that states could be required to take waste they choose to exclude. This loophole in the 1985 Low-Level Radioactive Waste Policy Amendments Act threatens states' authority to exclude waste.
We have very serious concerns with the emergency access provisions but under-standing that NRC is not in the position to change the federal law, we submit the following suggestions to make the regulation as strict as possible and to guarantee, to the greatest possible extent, that the provision not be abused.
RESPONSE: None necessary.
Comment 14.2
- 1. Clarify that Federal waste (at least that for which states and compacts are not currently responsible) is not eligible for emergency access.
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 that should be eligible for Emergency Access. The rule should clearly prohibit Federal waste (ex: waste from Departments of Energy or Defense). There are two places in the regulation which indicate that such wastes could be given emergency access. They are in Section 62.2, the definition of " person" who can apply for emergency access and in Section 62.13(a)(5) which gives a condition for " Federal and defense related generator (s) of LLW" to meet in their " request for emergency access."
First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive officer on behalf of "any generator or generators of low-level radioactive waste located in his or her i
49
" State..." Such generators could include generators that are not NRC or NRC Agreement State licensed. We would like to see provision made to clearly prohibit DOE and D0D and other federal agencies and contractors from gaining access to state and compact dumps via emergency access.
Second, Section 62.13(a)(5) (which appears misprinted as 82.13 in 52 FR240:
47587 December 15,1987) requires that Federal or 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 requirement is
~
essential.
Both the definition of " person" and Section 62.13(a)(5) should clarify that only those Federally generated wastes for which states are already responsible (as defined in the 1985 Low-Level Radioactive Waste Policy Amendments Act Section 3(a)(1)(B)) are eligible for emergency access. This excludes Department of Energy waste and U.S. Navy waste from decommissioning Navy vessels and any nuclear weapons research, development, testing or production waste. That waste should be clearly excluded from eligibility for emergency access.
RESPONSE: As discussed in responses 2.1, 2.2 and 5.6, NRC intends only to grant emergency access to LLW that would otherwise be eligible for routine disposal at regional or state disposal facilities according to the terms and conditions of the Act. NRC does not intend for emergency access to be used by ineligible parties or for ineligible wastes as a means of acquiring access to LLW disposal. In the proposed rule, NRC was silent on this particular point, assuming that it would be clear in the context of the other provisions of the Act. It is now obvious to l
the NRC that the intention must be specifically addressed in the final )
rule to reduce concerns the States or public might have that emergency access will provide a mechanism for undesired and unplanned for wastes !
to access their sites, 1
I
50 In direct ' response to this specific comment,. the . definition for " Person" has been revised in the final rule to read " 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 a low-level radioactive waste which was designated the States' responsibility: for disposal by the Act';
any Governor (or-for any " State" without a GJvernor, the chief executive officer,of the " State") on behalf'of any NRC or NRC Agreement' State licensed generator or Generators of low-level radioactive waste located
.in his or her " State".which was designated the States' responsibility for disposal; or their duly authorized representative, legal successor or agent." Section 62.13(a)(5).was also revised in response to'this comment and in the final it reads "..., (5) requesting disposal.at a.
Federal low-level radioactive watse disposal facility in the case of a Federal or defense related generator of LLW whose wastes'would normally be eligible for State or Regional LLW disposal under the Act." (In both cases the changes have been underlined here to facilitate review.)
Comment 14.3 Arguments against leaving the regulations open to Federal waste: (1) 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 generation of large volumes, concentrations, and numbers of curies in radioactive waste. We would encourage remedial action and clean up of many of those sites but can foresee the usual dilemma of where to put the waste that is " cleaned up." Unless non-federal facilities are planning for such responsibilities, they should not be saddled with Federal waste, as the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow, i
RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
I 1
l
51 Comment 14.4 i (2) Furthermore, 00D, DOE and other Federal waste-is not currently i classified as Class A, B, C or Greater-than-Class-C (C+), as is commercial waste. It will be difficult to determine whether Federal. waste meets the license criteria for any non-federal sites that use.the A, B, C, C+ method of categorizing " low-level" waste. Even if DOE relcassifies.its wastes as A,' B, C and C+, the source of such waste'is much different than commercial waste and could pose technical problems which states and compa::ts are not considering in their dump planning.
RESPONSE: See responses to Comments 2.1, 5.6, and 14 2. j Comment 14.5 A pote'itial concern here however, is that' state and compact dumps that take
]
j on the extra burden of accomE, dating DOE waste (and tnis could happen because states are dissatisfied with DOE's performance at its sites in that state or compact) will be the only non-Federal LLW disposal. facilities eligible' to accept such waste thus would'be required to accept such waste every time NRC l granted emergency access to Federal and defense related generators. We only-wish to point out that such a provision could penalize states and compacts j for taking on longer-lived and more concentrated wastes.
RESPONSE: Noted. No comment necessary.
Comment 14.6 Althuugh there are serious unresolved problems with this method (10 CFR 61.55) of classifying " low-level" radioactive waste, we understand that many ]
states and compacts will likely 10110w those regulations. {
RESPONS{: None necessary.
- 52 i
.. /
Comment 14.7 (3) There could be a conflict of interest if DOE and D00 waste are eligible for Emergency Access when they are providing NRC with the assessment of the {
impacts on the common defense and security" of (a) accepting the waste for emergency access, and (b) allowing the continued generation of the waste requiring emergency access.
RESPONSE: NRC is aware that the proposed rule creates the potential for a conflict of interest in those situations where D0D or DOE is required to certify that a particular generator requires emergency access in order to mitigate a serious and immediate threat to the common defense and security. However, the preamble also indicates that while NRC will require such certification from DOE or D00 in order to even consider a generator's request for emergency access on the grounds of- a threat to the common defense and security, NRC plans to consider the certifications but not to treat them as conclusive. Congress deliberately gave NRC the responsibility for making the common defense and security determinations and the Commission intends to exercise this discretion in making its emergency access decisions.
Comment 14.8
- 2. States' and compacts' right to refuse waste that does not meet the'speci-fications they are designed and licensed to accept should be strengthened.
RESPONSE: NRC is not in a position to strengthen the rights of States and compacts to refuse emergency access waste that doesn't meet the specifications of their sites. Both NRC and the States must work within the bounds established in the Act. However, as discussed previously in responses to Comments 7.5, 9.3, and 10.1, NRC believes the mandate from Congress in this area was quite clear. NRC does not believe Congress intended NRC to grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to receive them. So States should not have to be too concerned about the right to refuse wastes granted emergency access by the NRC pursuant to 10 CFR Part 62, i
)
53 Comment 14.9 WesupporttheprovisioninSection62.26(ascorrectedin53'FN15:1926, Monday, January 25,1988) requiring the NRC to exclude a disposal ~ facility.
from consideration (from taking Emergency A'ccess waste) if-the waste doesn't meet the license criteria'of the facility. .The rule.should make clear that
~
if state or compact dumps have other restrictions such as prohibitions on wastes that are hazardous longer than 100 years-'or on Class B and C waste'~,
NRC will respect those criteria and not grant access to waste thatLdoes not meet those criteria.
RESPONSE: According to the Limitations set out in Section 6(h):ofLthe Act, regulatory restrictions on disposal at a site must be considered by NRC in making its site designation and as NRC has indicated'in responses-to Comments 2.1, 2.2, 5.6 and 14.1, NRC is committed to observing those limitations.
Comment 14.10 2.A. Since state and compact " low-level" dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit NRC from accepting applications for Greater-than-Class-C" waste for emergency access.
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" definition is left as is for the sake of 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 make 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).)
RESPONSE: See responses to Comments 2.2, 5.6 and 14.2.
i L_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -
54 Comment 14.11
- 3. Incineration should not be required as a part of maximum vol'ume reduction or waste treatment. prior to NRC granting emergency access.
Compaction and supercompaction may be required and possibly other solidifica-tion treatments but incineration releases radionuclides.s into the environment, generates radioactive ash that must then be solidified and continues the process of generating more " low-level" radioactive waste. This rule should innowayrequireradioactivewaste[ci"8tMN' RESPONSE: The proposed rule does not require that LLW be incinerated prior to NRC granting his waste emergency access. Provision (i) of the Emergency Access Section of the Act " Volume Reduction and Surcharges" 3
- requires that "any low-level radioactive waste delivered for disposal under this Section (emergency access) shall be reduced in volume to the maximum extent practicable." For the proposed rule, the Commission decided it would be worthwhile for NRC to evaluate the extent to which volume reduction methods or techniques will be or have been applied to to the wastes since the Commission is mandated to evaluate alternatives available to the generator and volume reduction is one of.those alternatives. In the preamble, NRC listed incineration as one of the treatment technologies that the Commission would evaluate to determine if the emergency access waste had been reduced in volume to an extent consistent with the directive in the Act. The preamble further explains that NRC believes the optional level of volume reduction will likely vary with the waste, the conditions under which it is stored, and whether volume reduction processing creates new wastes requiring treatment or disposal (as would be the case for incineration). NRC anticipates that decisions on adequate volume reduction will have to be made on a case-by-case basis. The Commission does not expect that one particular approach will be maximally effective in all cases, so the rule does not prescribe any particular method as a must to achieve maximal volume reduction. Rather, the Commission will be looking to see that available volume reduction techniques, including incineration, have been thoroughly investigated by the requestor as possible alternatives to requesting emergency access. Incineration may be attractive to one
55 generator as an alternative but may pose serious difficulties for I another. Whatever the decision, incineration should be addressed and the rationale for the decision should be explained in the analysis of alternatives that is to be part of a request for emergency access.
I Comment 14.12
- 4. States and Compacts that are required to accept emergency access waste should be permitted to charge fees and surcharges on emergency access waste and to enforce regulations and criteria that they determine are necessary for responsible isolation of the waste from the environment and to hold the generators liable. for long-term care costs.
l RESP 0ilS_E: See the responses to Comments 14.7, 5.6, 8.4, and 9.1.
Cominent 14.13
- 5. We encourage NRC not to weaken any of the requirements for Emergency Access applicants.
RESPONSE: Noted.
I i
c 56-B.15 Comment Letter #15 -- Hannah Katz, Concerned Citizen, N.Y.
Comment 15.1 I hear that your.Commissfon may consider to send greater-than-Class-C-waste' to any state or compact dump. Though it is said,. "in emergency only, nobody doubts that such emergencies will' happen frequently as long as you produce weapon grade plutonium.
RESPONSE: The emergency access rule applies only to LLW, which for the'.
-most part is generated by utilities with' nuclear reactors, hospitals,.
and research facilities. Weapon grade plutonium is not considered'to be-1 low-level radioactive waste and would not qualify for emergency access-to LLW disposal facilities under the'Act. Also, under Sec. 3(a)(B)(iii):
LLW owned or generated as a result of any research. development, testing or production of any atomic weapon is deemed not to be eligible'for disposal at State LLW disposal facilities.
Comment 15.2 I urge you to reconsider such interference in the rights of states and of citizenry.
1 RESPONSE: The NRC is not trying to interfere with the rights of states j by proposing this rule. The NRC was mandated by Congress to.make.
determinations on requests for emergency access to LLW disposal facilities in order to protect the public health and safety. The NRC's emergency access rule will only be implemented when a generator or a state requests LLW emergency access disposal assistance from the NRC.
Comment 15.3 I Clean earth, clean water, and clean air are essential for life and more important for healthy citizens than weapons whose production contains deadly radioactive waste. Your consideration in favor of human beings will be appreciated. Thank you.
RESPONSE: Noted.
)
I'
57 B. 16 Comment Letter #16 -- Donald Hughes, Sr. Manager, Kentucky Radiation Control Office and Commissioner of the Midwest Compact Comment 16.1
.The Kentucky Radiation Control Program would like to make its wishes known, relative to the above referenced proposed rule, by totally supporting the comments provided by Terry R. Lash, Director,. Illinois Department of Nuclear-Safety, in a letter (attached) submitted to the U.S. Nuclear. Regulatory Commission dated February 11, 1988.
Rather than reiterate the various comments contained in the attached letter,.
we feel that Dr. Lash's comments are.not only reasonable but fully justified.
Not only does he agree with much'of the proposed rule but he points out-errors that must be corrected.
RESPONSE: Noted.
Comment 16.2 In addition to managing the Kentucky Radiation Control. Program, I also serve as Commissioner on the Central Midwest Compact Commission. As Dr. Lash stated, the state of Illinois is presently engaged in the process of selecting a site for the proposed low-level radioactive /aste 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 dramatically effect how low-level radioactive waste disposal facilities can function.
RESPONSE: None necessary.
_ _ - - - - _ - - - _ - - - - _ - - - - --__ - - - _ _ _ - - - - 1
.58 B. 17 Comment Letter #17 -- William Dornsife, Bureau of Radiation Protection, Pennsylvania Comment 17.1 This proposed rulemaking has several major flaws that if not corrected could a l potentially act to undermine the substantial progress that has been made to date on implementing the Low-Lovel Waste Policy Amendments Act of 1988.
RESPONSE: None Necessary.
Comment 17.2 First and foremost, this proposed rule appears to violate the entire premise of the Act, that each State is responsible for disposal of its own low-level radioactive waste. The rule should require that the State or Compact where the problem is located must demonstrate that it has exhausted its options for dealing with the problem. This should include the attempt to enter into reciprocal agreements with other States or Compacts, or the State taking title to and storing the waste until access can be provided under the normal terms of the Act.
RESPONSE: The Commission drafted the proposed rule fully intending that the States and Compacts whose generators have been denied access to LLW disposal would share in the responsibility for identifying or providing alternatives to emergency access. In fact, the NRC's understanding was that several of the alternatives listed in Section 65.13, specifically
"(2) storage of low-level radioactive waste in a licensed storage facility," and "(3) obtaining access to a disposal facility by voluntary agreement," were actually State or Compact alternatives. In reviewing the proposed rule, it has become evident that the NRC's expectations for the States and Compacts to also exhaust their options for dealing with the problems caused by denial of access were not adequately conveyed.
As a result, the Commission has made the-following/ changes to 62.13(a), f (a)(5&8) and 62.13(b): (See the response to Comment 17.2 for changes) ' \
59 In addition, a discussion of the St.ates'/ Compacts' responsibility in eambl this area has been added to the [ q e)) s 1
. sp&vR'.
Comment 17.3 E ,
It appears as if waste which is not a State responsibility under the Act l (i.e.,' DOE waste) could be included under the' emergency access provisions. 1
~
We do not believe that this was-the intent of Section 6 of the Act.-'We find
i t hard to believe that the Federal Government, with all it's infinite :
resources, should not be first and only party responsible for disposal of.
this waste.
1 RESPONSE: The discrete State and Federal responsibilities for LLW j disposalhadeenaddressedinthefinalrule. 'See responses.to.
Comments- 2.1, 2.2, 5.6, and 14.2. l Comment 17.4 The most likely scenario that may require emergency access appears to be that of a bankrupt generator where the State or Compact cannot or will'not provide for disposal. Under these circumstances, it is not clear who would have the responsibility for the application, liability, volume reduction, and cost requirements. !
RESPONSE
b %n b
- Comment 17.5 In order that the credibility of the process be maintained, this rule must.
not be vie (ed as a way of circumventing the 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 provisions and restrictions concerning out of Compact access. If at all possible, those provisions should dictate when and under what circumstances emergency access should occur. The provisions of this rule should only be i
i
_ _ _ _ _ - _ _ _______-_ . - - - - - - - - - - - - _ _ - - - - - - -)
7_ _ _. .___ ._
l 60 I 1
used as a last resort and the language should be such that this intent is j clear. g RESPONSE: This is NRC's intent, as is stated in the preamble,;to the ,
proposed rule and elaborated on in responses.to Comments 2.1, 2.2 and 5.6.
l 1
Comment 17.6 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 written, the rule could require acceptance for disposal of' federal waste under " temporary emergency access" provisions.
If a State or Compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing.
A generator is denied access to a State or Compact disposal facility for whatever reason.
An unusual occurrence such as bankruptcy of a generator causes abandonment of extremely large volumes of waste which exceed State or Compact capacity for safe disposal.
RESPONSE: The scenarios described in this comment have been considered and do not ner.essitate any changes to the proposed rule. l i
Comment 17.7 {
- 2) What are the potential problems with NRC's approach to determine an immediate and serious threat to the public health and safety?
I... .
)
61 The difference between " emergency access".and " temporary emergency access" provisions for this determination are not consistent with Section 6(d) of the Act. The Act clearly states that an' emergency access determination must be made before temporary emergency access can be considered. "Upon determining that emergency' access'is necessary. . .the commission." .This is not. consistent with the' definitions and suggested implementation of the two' terms in the; proposed rule.
RESPONSE: See th'e response to Comment 13.5 for clarification on the distinction made in the proposed rule between temporary emergency access
.and emergency access.
Comment 17.8
- 3) . What are the potential problems with the determination of serious and immediate threat to the. common defense and security?
In making this determination, can all or part of the information provided by the generator be kept confidential, or not.be released to the receiving facility, under the claim of national. security?
RESPONSE: (To be provided by Chip. Cameron)
Comment 17.9 The Host' State or-Compact in which the requesting generator resides should be required to exhaust all options and accept responsibility for dealing with the problem before being allowed to make a request.
RESPONSE: See the response to Comment 17.2.
Comment 17.10 The issue of economic feasibility and a person's financial capability should not be a. consideration in dealing with emergency access.
l i
62 t
RESPONSE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency access decisions. !
I I,
I 1
I
63 Comment 17.11 If a legitimate emergency access condition is determined, and the Host State or Compact cannot provide for a safe solution.to the problem, either by-themselves or through reciprochi agreement, then the use of Federal disposal facilities should be the first priority before other non-Federal disposal facilities.
RESPONSE: The statute did not provide for that option. Section 6(a) states that NRC "may grant emergency access to any' regional disposal facility or non-Federal disposal facility --- if necessary to eliminate an immediate and serious threat to the public health and safety or the )
common defense and security." While the proposed rule does require that any Federal or defense related generators attempt to arrange for. j disposal at a Federal LLW disposal facility prior to requesting emergency access to a non-Federal facility, the Act does not confer to NRC the Authority to designate Federal disposal facilities to receive emergency access waste.
The purpose of the Act is to make the disposal of LLW a State !
responsibility and to encourage States.to work out disposal problems amongst themselves. Congress believes that if Federal LLW disposal facilities would provide backup disposal in the event that the States do 1 not provide needed capacity, this would serve as a disincentive to the States.
Comment 17.12 The are no provisions for equitable distribution of the waste if non-Federal facilities are needed for disposal.
)
i RESPONSE: Under VII(c) of the proposed rule, NRC explained that in order to distribute the waste as equitably as possible the designation of a receiving site will be rotated and, for the three currently operating facilities, allocations will be made in proportion to the volume limitations established by the Act, to the extent that these are I w_-_______-__________
y , --
'64' practical. (Note to reviewers - should a provision stating.these intentions be added to the rule itself? at the end of 62.26?)
Comment 17.13 As written, the 20% volume criteria could eliminate:the smaller non-Federal facilities from consideration almost immediately. Provisions can be'added which would divide up 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.
RESPONSE: The 20% volume criteria that appears in Section 62.26 of'the proposed rule came directly from Section 6(h) of the Act. Apparently, Congress believed that establishing such a limitation would be the most equitable way of distributing emergency access waste.
Comment 17.14 There are no provisions for existing State or Compact laws with respect to reciprocal agreements or time requirements for emergency disposal conditions as covered in Section 6(f) of the Act.
RESPONSE: (See responses to Comments 4.1 and 4.2)
Comment 17.15 7 a determination appealable?
RESPONSE: (To be provided by Chip Cameron)
Comment 17.16
- 5) What should the NRC do if no site is found to be suitable for waste requiring emergency access. l
\
65 The NRC should develop contingency plans BEFORE an emergency occurs.
Such plans could include the development of an NRC facility especially for emergency conditions. The NRC could also develop equitable reciprocal agreements now for the determination of emergency disposal sites in the future. Such agreements should include Federal disposal facilities.
RESPONSE: Noted.
I J
.66 B.18 Comment Letter #18.- Clark Bullard, Chairman,' Central' Midwest CompactJ
. Commission Comment 18.1 l The Central Midwest Compact Commission fully endorses the comments submitted L
by the Illinois Department'of Nuclear Safety (IDNS) on. February 11, 1988.
-RESPONSE: Noted.
Comment 18.2 The IDNS comments deal with' sensitive political issues;that must be resolved promptly if the Central Midwest Compact is to meet the remaining milestones.
under the LLRWPAA of 1985. Moreover, the integrity of the entire Compact system could be undermined by any hints that NRC is less.than fully committed-to respecting the statutory exclusion of greater-than-Class-C waste.
RESPONSE: See the response to Comment 2.2.
Comment 18.3 We urge you to adopt the IDNS comments intact so our ability to meet the i remaining milestones is not impaired. l l
l l RE,SPONSE: Noted.
l
67 B.19 Comment Letter #19 -- John S. Kemper, Philadelphia Electric Company Comment 19.1 Notice of a proposed rule on emergency access to non-Federal low-level radwaste disposal facilities appeared in the Federal Register on December 15, 1987. Philadelphia Electric Company believes 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.
RESPONSE: Noted.
Comment 19.2 One aspect of this process, however, may prove to be a detriment to its smooth administration: the 10-day public comment period. ,
If a situation is truly an emergency, delaying the disposal of waste may result in an increased hazard to public health and safety. Additionally, the i current climate of public awareness and tendency towards legal intervention l could combirie in action aimed at the cessation of the generation of waste (i.e., the shutdown of the generator). Another method to keep the public informed should be developed: perhapc a periodic publication of all j petitions for emergency access, and the results of each.
RESPONSE: The 10-day public comment period provided in the rule should j not delay the disposal of waste pursuant to a request for emergency access because that 10 days is intended to occur as part of the 45 days j provided for NRC to make its decision. As explained in the response to j Comment 13.3, the Commission believes it is important to provide the public some opportunity to comment on requests for emergency access. If the situation is truly an emer0ency and no alternatives are available, public comment will not likely alter NRC's response to any particular request. (See response to Comment 13.3 for elaboration.)
68 Comment 19.3 We are confident that the proposed criteria are strict enough to protect the public health and safety without delaying the process to consider public concerns for each occurrence.
RESPONSE: None necessary.
69 1
B.20 Comment Letter #20 -- Jessie DeerInWater, Chairperson, Native Americans for a Clean Environment l Comment 20.1 NACE joins with Mr. Marvin Lewis of Philadelphia, PA in his opposition to Proposed Rule: Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Rad Waste Sites.
l RESPONSE: Noted.
Comment 20.2 (L
The rule would allow the Federal Government and the NT'C to regulate a State function...or at least a Compact function. This is an infringement of State's rights which has both financial and health impacts.
RESPONSE: See the responses to Comments 7.1, 7.5, 9.3, and 10.1.
Comment 20.3 Since State and Compact dumps are being developed for commercial waste, this is the only waste that should be placed into the dumpsites. Federal waste should be disposed of at their own facility, since it would be unknown what might be contained in waste coming from the DOE and the 00D. It is our belief that federal waste is of ten greater-than-Class-C waste.
RESPONSE: See responses to Comments 2.1, 2.2, 5.6, and 14.2.
Comment 20.4 We must all act now to protect future generations.
RESPONSE: None needed.
70 B.21 Comment Letter #21 -- Greta J. Dicus, Arkansas Dept. of Health Comment 21.1 General Comment The provisions for emergency access outlined in Section 6 of the Low-Level l 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 stringent enough to render it improbable that waste generators would qualify for emergency access. We support the concept of emergency access as presented in the proposed rule and make special reference to the fact that the process must not be used to circumvent the development of regional Compacts.
RESPONSE: None necessary.
Comment 21.2 Specific Comments The Act and the proposed rule imply that granting temporary emergency access is a one time action that cannot be extended. If this is 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.
RESPONSE: Neither the Act nor its legislative history specify whether temporary emergency access can or cannot be extended. However, NRC does not believe Congress anticipated that extensions of temporary emergency access would be needed. After 45 days, the requestor would lose access to disposal unless he could demonstrate to NRC that the serious and immediate threat persisted and the threat could not be mitigted by any reasonable alternative, at which point he would be granted regular emergency access. Thus, in the absence of any specific guidance from Congress, NRC plans to grant emergency access for up to 45 days only, with no extensions. If a serious and immediate threat were to persist after45daysbecauseofalackofaccess[todisposal,butthe alternative analysis was'not complete, the Commission would have to use
- , 3 f ll q q_
71 its discretion to decide what action to take. (Note: should this be addressed in the preamble or rule?)
l Comment 21.3 If the need for emergency access is the result of a regional or non-Federal facility denying access to a generator, the reason (s) access was denied should be considered by the NRC when making its decision.
RESPONSE: NRC plans to consider the reason access was denied and has required that information to that effect be included as part of a request for emergency access. Section 62.12(g)(1) of the proposed rule requires a description of "the circumstances which led to the denial of l
access" and 62.12(i) requires the requestor provide NRC with
" documentation certifying that access has been denied."
Cornnent 21.4 l 1. What scenarios are envisioned where emergency access would be required?
, Response: The regional or non-federal facility utilized by generators
'^
is closed by regulating authorities, the facility operator or extraordinary events.
s h Access to a facility has been denied for non-technical reasons.
/c xs s
, Extraordinary waste streams that do not conform to those acceptable at a
, M,/y
~
regional or non-federal facility.
/
/
, 2. What are the potential problems with NRC's approach to determining an C'
immediate and serious threat to the public health and safety?
\
Response: No comments at this time.
- 3. What are the potential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense and security?
i 72 l
i Response: No comments at this time.
l
- 4. What are the potential difficulties with the proposed approach for designating the receiving site?
Response: No comment at this time.
- 5. What should NRC do if no site is found to be suitable for waste requiring emergency access?
Response: - Consider disposal at a federally-operated facility.
- Allow indefinite "in situ" or " intermediate location" storage.
RESPONSE: All have been noted.
i i
)
l l
u- __ - _ - - - - - - - - - - - - - - - - - - - - - - - - I
k ru f
":/S Document Name:
PART 62 COMIENT ANALYSIS -72>degf g Requestor's ID: % .wmga, f f,p RINN Author's Name: "
janet lambert Document Comments:
comments and responses
vyucsumu : y - - --- g -
bgg W flJ590-01]
. w ,--
3 g Q A'h_e Ko C' "
^ &uaw l
^
NUCLEAR REGULATORY COMMISSION
/9 j
'10 CFR:PART 62 !
l Criteria and Procedures for Emergency. Access.to Non Federal !
and Regional Low-Level. Waste Disposal Facilities 2 1
. AGENCY: Nuclear Regulatory Commission-.
i ACTION: Proposed Rule.
I
SUMMARY
- The Nuclear. Regulatory Commission (NRC) is proposing a rule to:
]
establish procedures and criteria for fulfilling its responsibilities-- 4 associated with acting on requests by low-level radioactive waste (LLW) generaters, 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 defense and security.
DATES: Comments should be submitted on or before .
i i
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. I l
1 1 l i
1 N
5 N A WC j 05Y$$
accos5 cam q, s.g y m s -W.,p g c.ga,., 4 Lccd 4 4 aousm map w y ae p La a ca.yo q 6 w m kn.cn 3GL)lo.)y44 dcf, TA4 ms1%r
"(A) low-level ra'dioact'ive waste generated within the State (other than by the Federal Government) that consists of or contains class A, B, or C radioactive waste as defined by section 61.55 of title 10, Code of Federal Regulations, as in effect on January 26,1983; '
- "(B) low-level radioactive waste described in subparagraph (A) that is generated by the Federal Government except such waste that is-8 "(i) owned or generated by the Department of Energy;
"(ii) owned or generated by the United States Navy as a result of the decommissioning of vessels of the United States Navy; or
"(iii) owned c,r generated as a result of any research, f development, testing, or production of any atomic weapon; and al "(C) low level radioactive waste described in subparagraphs
( A) and (D) that is generated outside of the State and accepted for disposal in accordance, with sections 5 or 6. ,
i.,,4+ Y#
accew g /Jec.
l l
A (f
t acid:le): % reg <.danens n' l% pad apq q % q dow subasses qaw's #at % unre = @
to cuspoa o((pusuad 40 kitza 3(c.)(a) of %
~
044 , m % s n af y - 02%
lat.gt&~td h Luds LAtNL are :
- u. . . .
"(A) low-level ra'dioactive waste generated within the State (other than by the Federal Government) that consists of or contains class A, B, or C radioactive waste as defined by section p 61.55 of title 10, Code of Federal Regulations, as in efTect on January 26,1983;
"(B) low level radioactive waste described in subparagraph (A) that is generated by the Federal Government except such waste that is-
"(i) owned or generated by the Department of Energy
"(ii) owned or generated by the United States Navy as a; result of the decommissionmg of vessels of the United States Navy; or "liii) owned or generated as a result of any research, development, testing, or production of any atomic weapon; and (M and (3) that is generated outside of the State and accepted"tC) lo Mr disom.al in accordance with sections 5 or 6.
(Nf)A (p).31 CO $ b fGW.)
a), ... - .
~ . . _ _
Compliance with conditions of emergency access; termination of
. a. . . _
"~
~em'ergency access.
(/) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access may refu.s,e_to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(% The Commission shall terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
(g) The Commission may terminate a grant of emergency access if an applicant has made a material false statement in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
_ . . . . . ~ . . - . . . ,
,, ;zy , , , .
- 3 3, , ..;s y- -
}
l.2. , S 5 Y E 2
- , j i
q ADDRESS: Submit written comments' to the Secretary of the Commission, '
I U.S. Nuclear Regulatory Commission, Washington,. DC 20555, Attention:
I Docketing and Service Branch. Copies'of comments received and the:
regulatory analysis'may be examined at th'e NRC Public Document. Room, i 1717 H Street NW., Washington, DC 20555.
J t
'FOR FURTHER INFORMATION CONTACT: Janet Lambert ~ Division of Low-Level Waste Management and Decommissioning, U.S. Nuclear Regulatory Commission, H91 38LT Washington, DC 20555, telephone (301) M 2 7700.
SUPPLEMENTARY INFORMATION:
- 1. Background II. Legislative Requirements III. Legislative History IV. NRC Approach V. Assumptions VI. The Proposed Action 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: Availability XI. Papelvork Reduction Act Statement ,
)
XII. Regulatory Analysis XIII. Regulatory Flexibility Certification XIV. List of Subjects in 10 CFR Part 62 2
l
_ -__- - - - - - - - - - - - - - - - - - - - - t
- 1. Background.
The Low-Level Radioactive Waste. Policy Amendments Act of 1985 o (PL 99-240, January 15, 1986), "the Act" directs the States to develop.
~
their own LLW disposal. faci 11 ties or to form Compacts and cooperate;in-the development of regional LLW dis'posal facilities so.that the new-facilities will be available by January 1,1993.
I The Act establishes procedures an/ t lestones for the selection and development of the LLW; disp'osal facilities. The Act'also establishes a l
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. facilities 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 facilities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities.
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 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 '
)
3 L _ _ _ _ _ _ _ --_ --_--_---- _ -- -
consistent with the public health and safety, including ceasing-the activ-ities 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 criteria.that will be used by the Commission 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 acc ss as discussed in the Background section, the Act further directs NRC 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 generated that emergency access has been granted, and'to notify the State and Compact which will be receiving the waste that emergency access to.
i their LLW disposal facility is required. The Act limits NRC to 45 days i 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 diligently though unsuccessfully I 4
acted during the period of the initial. grant to eliminate'the need'for.-
emergency access.
The Act also provides that requests'for emergency access shall contain all information and certifications that NRC requires to make its determination.
i
" Temporary emergency acces~s" to non-Federal or regional ' LLW disposal l
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, defense and security pending a Commission determination as 'to whether
, the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
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 making the required emergency access determinations. Since the requisite condition that must' be met in ordet for a requestor to be eligible for emergency access con-'=
sideration 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 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 responsibility 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 the procedures and criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to provide an opportunity 5
1 i
l l
for input from potentially affected individuals and organizations, add predictability to the decisionmaking process, and to help ensure that the .
NRC will be able to make its decisions on emergency access requests l 1
within the time allowed by the Act.
l III. Legislative History i
The legislative history of the Act emphasizes the Congressional )
1 intent that emergency access be used only in very limited and rare I 1
circumstances and that it was not intended to be used to circumvent other i provisions of the Act. Congress believed it was important for the I i
successful implementation of the Act that emergency access not be viewed i l
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 var tous management options available to l
\
\
l l
LLW generators, including, for example, storage or ceasing to generate j the waste, the instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from i the generators and the States / Compacts should resolve most access prcblems 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.
i In developing the emergency access rule, NRC has tried to be consistent both with the actual text of Section 6 of the Act and with the intent expressed by Congress regarding decisions made pursuant to Section 6. The proposed rule sets strict requirements for granting emer-gency access and serves to encourage potential requestors to seek other 6
y means.for resolving the problems created.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 - I j 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-interids to reinforce the idea that problems with'LLW disposal are to be j
worked out to the extent practical among the States', and that emergency
)
, access to existing LLW facilities will not-automatically be available as. j 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.
9 Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact. The Compact Commission "shall act to approve emergency access not later than fifteen days af ter receiving notifica- 1 I
tion" from the NRC. The purpose of this provision is to-- I ensure that the Compart Commission is aware of the NRC's grant of emergency access and the terms of the grant, e 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. I However, it is clear from the legislative history of the Act that !
Section 6(g) should not be construed as providing the Compact Commission 1
7 1
d 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 contrary to the legislative f.ramework established in the Act. As emphasized in the House Ccmmittee on Interior and Insular Affairs Report on the Act, ratification of a Compact should bt conditioned on the Compact's acting-in accord with the provisions of the Act.' If the Compact refuses to -
provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void.
H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).
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 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 receive the waste which are fair and equitaDie and which are consistent with the other provisions of the Act, including t,he limits on the amount of waste that can be disposed of at each operating facility.
8 l
- 5. establish requirements for granting _ emergency access'that are stringent enough to discourage the unsited States and regions from viewing emergency access as an alternative to' diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC.to' respond appropriately in~ situations where emergency access is genuinely nee'ded' to protect the public health ' arid safety or the common defense and security.
V. Assumptions
[ In developing the rule'NRC made several assumptions. Thes'e assumptions are discussed below.
q NRC staff are assuming that the wastes requiring disposal under the W l
emergency access provision will be the result of unusual circumstances. :j l
The nature of routine LLW management is such that it'is' difficult _to con- j ceive of situations where denial of access to disphal would create a serious and immediate threat to the public health and safety or the national security. In most cases generators should be able to safely store routinely generated LLW or employ other options for managing the !
waste without requiring emergency access. Thus, if'all the LLW 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 requests for emer-gency access will not be made for wastes which would otherwise qualify 9
for disposal by the Department of Energy (00E) 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 t
\
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 scenarios which would create a need for emergency access, it is unlikely t'1at all possibilities can be predicted or anticipated. Largely because of the uncertainty associated <ith identifyfup 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 l requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here.
10
1 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 as. defined by this regulation who have been denied 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 ared ti.e procedures that must be followed by a person' seeking a Commission deter-mination cn emergency access.
Specifically, Subpart B requires the submission of information. j on the need for access to LLW disposal sites, the quantity and type of l 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.
11
____-_-__---a
i i
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, Subpar.t B provides for a 10-day public comment period on the. request for' emergency access.
In the event that the case' for requesting emergency access is to be based totally or in part on the threat posed to the common defense and security, Subpart B requires that a statement.'of. support from the Department of Energy '(DOE) or the Department of Defense (D0D) (as appro-
, priate) be submitted as part of the initial request for emergency access.
i 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.
Subpart C - Issuance of a Commission Determination For the NRC to grant emergency access, the Commission must first 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 c ats out i
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 procedures 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 consider: (1) the nature and extent of the radiation hazard that 12
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 medical, therapeutic, diagnostic, or-research activities will be
~
disrupted by the denial of emergency access. '
l In making the determination that there is a~ serious and immediate threat to the common defense and security, Subpart C provides that'the Cortmission 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-l 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 technology and the impacts of the alternatives on the public health and i
13 l
1 l
I safety. For each alternative, the Commission will also consider whether
]
the requestor has demonstrated that the implementation of the alternative 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 j l
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 cess dion or curtailment of essential medical services. In the proposed i
rule, the Commission considers the impact on medica: services from ceas- '
ing the activity in making its determination that there is a serious and I immediate threat to the public health and safety under Section 62.25.
However, the Commission is also concerned as to whether the implementa- f I
tion of other alternatives may have a disruptive effect on essential ]
medical services. The Commission specifically requests information on j these impacts in S 62.12 so they can be considered in its overall determination about reasonable alternatives.
According to the procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency access if the nailable alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for emergency access will be denied.
If the Concission determines that there is a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigated by any alternative, then the Commission will decide which operating non-Federal LLW disposal facility should receive the LLW approved for emergency access disposal.
14
1
]
1 Subpart C sets out that in' designating a disposal facility or-facilities to provide emergency acces:s disposal, the Commission will . .=
j
.i 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't'he 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 the designation -
~1
{ cannot be made on these factors alone, then the Commission will consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, and any other information the Commission deems.necessary. 'k i
l In making a determination regarding a request for an extension of .
emergency access, Subpart C provides that the Commission will consider.
whether the circumstances still warrant emergency. access and whether ,
the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access.
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access
.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 VII. Rationale for Criteria The proposed rule establishes the criteria for making the emergency access determinations required by the Act. The rationale for these decisions is discussed below:
15
(a) Determination that a Serious and Immediate Threat Exists Establishing the criteria to be used in determining that a serious and immediate threat exist to the ptn'ic health and safety or the common defense and security is key to NRL = decisions to grant emergency access.
Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what Would constitute "a serious and immediate threat."
(1) To the Putlic 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 that is generating the LLV. Section 62.25(b)(ii) addresses the situation where the threat to public health and safety would result from disruption of the activity that g worates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary emergency access.
The criteria in the proposed rule for determining whether a serious and immediate threat to the public health and safety exists is qualitative in nature in order to provide the Commission with the flexibility 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. These consist of the Commission's standards for radiation protection in 10 CFR Part 20, any standards on the release of radioactive niaterials to the general environment that are applicable to the facility that generated the low level waste, and any other Commission requirements 16
specifically applicable to the facility or activity which is the subject 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 was to ensure that a serious and immediate threat to the public health and j ' safety did not result from a denial of access. In addressing this l concern, the Commission will evaluate the request for emergency access in 1
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 what threat would be unacceptable assuming that no alternatives are available. In the Commission's judgment, any situation that would result in exceeding the occupational dose limits or basic limits.of public exposure upon which certain' requirements in 10 CFR Part 20 are founded would be an unacceptable threat to the public health and safety, and should be 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 safety 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 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 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 17
I proposed rule establishes criteria.to address this possibility. Under ;
its normal regulatory responsibility es 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,Lif the low level waste 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 i immediate threat to the public health and safety will ever result at the generator's facility from tha 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 radiatio'n hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards,. J no serious and immediate threat would exist from the waste itself. This i 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 i l
l l 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 l
18 l
i l
i 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 ;
i 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 I whether an event at a facility or activity licensed or otherwise regulated ;
1 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 1 e
1 public informed of unscheduled incidents or events which the Commission )
{
considers significant from the standpoint of public health and safety. l i
Under the criteria established in the Commission's policy ttatement, an ]
{
event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and I
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 Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal occurrences.
(2) To the common defense and security--
Although NRC is required by the Act to determine that there is either a serious and immediate threat "to the public health and 1
19
safety," or to "the common defense and security," realistically NRC cannot make the latter judgement without some information from D00 and DOE which will assist NRC in identifying those situations involving the denial of access to LLW disposal which constitute a serious and immediate 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 cnd DOE information as part of the decision making process.
NRC considered several approaches for involving D0D and DOE in the process of determining whether requests for emergency access should be granted on the basis of a serious and immediate threat to the common defense and -security. 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 D00 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 determination with D0D or D0E. So while the Commission intends to give the D0D and DOE certifications and recommendations full consideration l 20
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 arid security, emergency access is not to be granted if alternatives are available to mitigate the threat in a manner consistent with the public health and safety. As proposed in the rule, requestors for emergency access will have to demonstrate that they have
~
, 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 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 alternatives 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 in the event that unusual or unexpected operating, maintenance, repair i
21
or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access provision was to apply to the Section 5(c)(5) wastes unless the capacity required for disposals under the unusual 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 disposal, 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 i 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 to rion-Federal facilities urder 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 to demonstrate that he has considered all pertinent alternatives and to provide a detailed analysis comparing all of the alternatives considered. The requestor will be expected to demonstrate that he has considered combining alternatives in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even i
on a temporary basis, until other arrangements can be made. The requestor l 1
will be expected to evaluate the costs, economic feasibility, and benefits
to the public health and safety of the potential alternatives, and to incorporate the results into the request.
(c) Designation of Site In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the LLW requiring emergency access, NRC will determine which of the disposal facilities would qualify under the limitations set out in Section 6(h) of the Act. According to those limitations, a site would be excluded from receiving 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 i disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act alone, the Commission will consider other factors including the type of waste, previous disposal practices, transportation requirements, radio-logical effects of the waste, the capability for handling the waste at each site, 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 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 proportion to the volume limitations established in the Act. In most cases, NRC 23
i 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.
the public health and safety. 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 from the same requestor, In addition to the above, NRC will also consider how much waste has been designated for emergency access disposal to each site to date (both for the year and overall), and whether the serious and 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 continuous basis.
It should be noted that in setting out the site designation provision for Section 5, Congress assumed there would always be a site deemed appro-priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations provision set forth in the Act. It is not clear what options 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 the future.
(d) Volume Reduction Determination I 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 i
24
___-_--___A
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 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 mandated 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 optical level of volume reduction will vary with the waste, the cond!tions unau wnich it is being processed or stored, the administrative options available, and whether volume reduction process-ing 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 l
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 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 arrangertent proposeai for making the determination of serious and immediate threat to the common defense and security? (4) What are the potential difficulties with the proposed approach for designating the receiving site? and (5) What should 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 !
i anticipate when the first request might be made so the final rule would l i
26 )
be in place before that time. However, it may be necessary for a 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 received before the final rule is in place will be guided by the criteria and procedures provided in this proposed rule.
X. Finding of No Significant Environmental Impact: Availability 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 pub'lic health and safety or the common defense and security. For the most part, the proposed rule $s an administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and crite- i ria by promulgation of a final rule does not have an environmental effect. I i
Therefore, the Commission has determined under the National Environ-mental Policy Act of 1969, as amended, and the Commission's regulations I in Subpart A of 10 CFR Part 51, that this proposed rule, if adopted, l 1
would not be a major Federal action significantly affecting the quality l 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 draf t regulatory analysis is noted below.
27
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.
XII. Regulatory Analysis The Commission has prepared a draft regulatory analysis of the proposed regulations. The analysis examines the costs and benefits of tl,e alternatives considered by the Commission. The draft analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555.
XIII. Regulatory Flexibility Certification NRC is using this proposed rule to implement the statutory l 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 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 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 be considered to be a small entity. The generators of LLW are nuclear pow n plants, medical and academic facilities, industrial licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 28 l
l i
these categories, all but the power plants, fuel fabrication facilities,- l and government licensees could potentially include small entities.
Although these categories may contain a " substantial number of small' entities," the Commission does not believe there will be a significant economic impact to these generators because the Commission does not' l
anticipate that many generators will be affected by the proposed rule. I In order for the requirements of the rule to be imposed on a generator,. j 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, l
The Commission is required 1o make emergency access determinations by statute. Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of lack of access to ,
LLW disposal, the provision of emergency access will benefit any genere tor of LLW including small entities.
Establishing criteria and procedures for requesting and granting j i
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 roauired for making requests for emergency access l 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 1 and development.
I 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 ,
29
L i
part of any process to decide a course of actionLif necessary.. access to.
LLW disposal was not going to be available.
The NRC is seeking public comment on the initial regulatory ficxibil.ity analysis. The NRC is particularly seeking comment from small entities (i.e., small businesses, small organizations, and small jurisdictions,-
under the Regulatory. Flexibility Act) as' to how the regulations'will affect them 'and how the regulations may be tiered'or otherwise modifieds to impose less stringent requirements on'small. entities while still adequately protecting the public health and safety. ThoseL small entities which offer comments on how the regulation could be modified to take into account the differing needs of small entities should specifically.
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 to larger organizations in the-same business community.
(b) How the proposed regulations could be modified to take 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 modified as suggested by.the commenter.
(d) How the proposed regulations, as modified, would more closely equalize the impact of NRC regulations or create more equal access to 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.
30
The comments should be sent to the Secretary of.the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.
XIV. List of Subjects in 10 CFR Part 62 Administrative Practice and Procedure, Low-Level Radioactive Waste, Nuclear Materials, LLW Treatment and Disposal, Emergency Access to Low-Level Waste Disposal, Low-Lavel Radioactive Waste Policy Amendments Act of 1985, Denial of Access.
For the reasons set out in the preamble and under.the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 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.
- 1. A new Part 62 is added to 10 CFR to read as follows:
Subpavt A - General Provisions Section:
6
2.1 Purpose and Scope
62.2 Definitions 62.3 Communications 62.4 Interpretations 1 l
l 62.5 Information Collection Requirements 62.6 Specific Exemptions 31 u- _ _ _ _ _ _ _ _ _ _ - - - . - /
i Subpart B - Request for a Commission Determination 62.11 Filing and distribution of a determination request ij 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 i
elimination of repetition 62.17 l 62.18 Denial of access Subpart C - Issuance of a Commission Determination j I
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 fa::ility 62,a 7 Terwis M C.thd2 Hot.s (<n 6vny DU Authority: See- 81, 161, as amended, 68 Stat. 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, I 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
1 l
l Subpart A--General Provisions S 62.1 Purpose and scope.
(a)' The regulations in this'part establish for specific low-level radioactive waste (1) procedures and criteria for granting emeroency access under Section 6 of the Low-Level Radioactive Wast'e Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a State that is not a member of a Compact, and-(2) the terms and conditions upon which the Commission will grant this 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-level radioactive waste disposal facilities and who submit a request to the Commission for a determination pursuant to this part.
M 2.- '- M S 62.2 Definitions.
As used this part:
"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 agreement with the Nuclear Regulatory Commission under section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to regulate the disposal of low-level radioactive waste under such agreement.
33
" Commission" means the Nuclear Regulatory Commission or its duly authorized representatives.
" Compact" means a Compact entered into by two or more States pursuant to the Low-Level Radioactive Waste Policy Amendments Adt 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 I regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days, which is granted by NRC to a generator 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 regiona; low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
l " Low-Level Radioactive Waste" (LLW) means radioactive material that (a) is not high-level radioactive waste, spent nuclear fuel, or byproduct material (as defined in Section IIe(2) of the Atomic Energy Act of 1954
[U.S.C. 2014(e)(2)]; and (b) 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
.> tate .
" Regional Disposal Facility" means a non-Federal low-level radio-l active waste disposal facility in operation on January 1, 1985, or l
l subsequently established and operated under a Compact. ;
34 i
l
1
" Person" means any individual, corporation, partnership, firm, association, trust, State, public or private institution, group or #>' . )
gtSi 1 agencywhoisanNRCorNRCAgreementStatelicensedgenerator,gIs whicA 25 designafad W . sinks 'rv5pss
[e g@f g low-level radioactive waste; any Governor (or for any " State" with ut 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 i Aid w+s clasipaind tis 5%hi'tuspensMI% 4h cusfosnL (Pl< tv.2) 1 her " State"; or their duly authorized repr6entativd', legal successor or !
^
agent.
)
" State" means any State of the United States, the District of j Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's ,
f o c li m I w d cc h (48) j discretion upon determining that access is necessary i:::_:. ef an
{,
immediate and serious threat to the public health and safety or the l 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 j 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
1 i
I j
officer or employee of the Commission other than a written interpreta- ,
I tion by the General Counsel will be considered binding on the Commission. )
i 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.)
The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Manage-ment and Budget (0MB) for review and approval of the paperwork requirements.
S 62.6 Specific exemptions.
The Commission may, upon application of any interested person or upon its own initiative, grant an exemption from the requirements of the l regulations in this part that it determines is authorized by law and will 1
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 ,
i S 62.11 Filing and distribution of a determination request. )
l (a) The person submitting a request for a Commission determina-l 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 36
Appendix D to Part 20 of this chapter. The. request must b'e signed by' the 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 of -
the Commission will cause to be published in-the Federal Register a.
notice: acknowledging receipt'of the request and asking that public comment on the request.is submitted within 10 days of the date of th'e 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' 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.
t l
(c) Fees applicable to a request for a Commission determination 'I
'l '
under this part will be determined in accordance with the procedures set forth for special projects under category ~12 of S 170.31 of this chapter.
(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 1 1
regional LLW disposal facilities, the Commission may suspend the f I
processing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
l 37
S 62.12 Contents of a request for emergency access: General h Information.
A request for a Commission determination under this part must include
%(
p% '
the following information for each generator to which the request applies:
' ff (a) Name and address of the person making the request; Y
q
.' (b) Name and address of the person (s) or company (ies) generating i
- g {' che low-level radioactive. waste for which the determination is sought; cf( The low-level waste generation facility (ies) producing the f waste for which the request is being made;
- f g (#[ A description of the activity that generated the waste;
.f % Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied V access; h % A description of the low-level radioactive waste for which dm[i V emergency access is requested, including: {
<j (1) The characteristics and composition of the waste, including, l Q but not limited to--
(i) type of waste (e.g. solidified oil, scintillation fluid, i failed equipment);
I (ii) principal chemical composition; (iii) physical State (solid, liquid, gas);
(iv) type of solidification media; and (v) concentrations and percentages of any hazardous or toxic chemicals, chelating agents, infectious or biological agents associated with the waste; 38
(2) The radiological characteristics of the waste such as--
(i) the classification of the waste in accordance with 6 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 (surface or volume distribution); ;
l (iv) amount of transuranic (nanocuries/ gram);
(3) The minimum volume of the waste requiring emergency access to l
&' ' -- qbl. (S. l 0) j
- " the threat to the public health and safety or the common i i 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 q
(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;
() Basis for requesting the determination set out in this part, including: i (1) The circumstances which led to the denial of access to existing 1
j 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; 39
m 1
b 1
(3) A chronology and description of'the'actionsLtaken by the person requesting emergency access to prevent.the need for making.such a request, including consideration of all alternatives s'et.forth in 6 62.13, and-any supporting documentation as appropriate; (4) An explanation of the impactstof the waste.on the public health!
and safety or the common defense and security if emergency' access.is.notc 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.safetyL 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;.
l () Steps taken by the person requesting emergency a'ccess to correct the situation requiring emergency access and the person's plans to eliminate the need for additional or future emergency access requests;
) ~
(p Documentation certifying that access has been denied; Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the Unusual Voluta provision [Section 5(c)(5) of the- Act] or is not l simultaneously under consideration by the Department of Energy. (00E) for access through the unusual volumes allocation; 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 D0D certifying thet access to disposal is necessary to mitigate the threat to the common defense and security; 40
y -. -m . ~ ~ ; ~ ~ wm M.y j & 01 04 W M 'S M l;h e m /s *
&CceSC fAom am & &W LUJ E You 'st?c's%
~ YA W Wy W'ed M M Date by which access is required;.pfP Wg lk a p (in) Any other information which the Commission should consider in ~
making its determination.
S 62.13 Contents of a request for emergency access: alternatives.
(a) A request for emergency access under this part must include j i
information on alternatives to emergency access. The request sho g4 include a discussion of the consideration givenAt at ves, 4 including, but not limited to, the following:
m (1) storage of low-level &(DJ 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) purc s ,ispo a capacity available for assignment pursuant to the Act; p requa ing g disposal at a Federal low-level radioactive waste disposal fact.lity iL S 710$ost wasks the case of a Federal or defense related generator of LLWf, reducin3 17. 1) the volume of the wast (/)ceasingactivitiesthatgeneratelow-level J
(<g ,
Subpart (b) of this Section.
(b) The request must identify all of the alternatives to ergency v
bj &. cpd4Ah,W StA od n N %M(/7,2 g
access considered and include a description of the pr6 cess use to A
identify them, including any not specified in paragraph (a) of this section. The request should also include a description of the factors l
that were considered in identifying and evaluating alternatives, a !
i chronology of actions taken to identify and implement alternatives during the process, and a discussion of any actions that were considered, but 1 1
not implemented. l l
I 41
(c) The evaluation of each alternative must consider: (1) its.
potential for mitigating the serious and immediate threat to public t
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 5
r- and the ccamon defense and security, if any, of implementing each alter-D native, including the curtailment or cessation of any essential services
)-
affecting the public health and safety or the common defense and secu-l q rity; (3) the technical and economic feasibility of each alternative I Q l including the person's financial capability to implement the alterna- l
%S h tives; (4) any other pertinent societal' costs and benefits (5) impacts i
Q . <
to the environment; (6) any legal impediments to implementation of each-5 *g alternative including whether the alternatives will comply with arnli- . :
Otd Hn W4s of th %' p2d& &
f cable NRC regulatory requirements;.and (7) the time required tb develop yn I
^ Stects. Ose ,
and implement each alternative, y,yy, gs 1 (d)/\ e request must include the basis for: (1) rejecting each
- Q alternative; and (2) concluding that no alternative is available.
)d Nb S 62.14 Contents of a request for an extension of emergency access. j 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 42
I 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 Commission.determina-tion under this part if the person making the request fails to respond to a request for additional information under paragraph (a) of this section within ten (10) days from the date of the request for additional .informa-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 under this part.
I S 62.16 Withdrawal.of a determination request.
(a) A person may withdraw a request for a Commission determination under this part withcut 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, i
43
Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific.
E 62.18 Denial of. request.
If-a request for a' determination'is' base'dLon 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
S 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 radioactive waste, or any Governor on behalf of any generator or genera-tors located in I.is or her State, the Commission shall make a deter-mination 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 shall be puided by the criteria set forth in 6 62.25.
(c)' A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is 44 !
based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, pnysical and radiological characteristics, and the minimum volame and duration und& (S.I9 >
(not to exceed 180 days) necessary to C . M M the i'mmediate threat to public health and safety or the common defense and security. It may also contain conditions upon which the determination is dependent.
S 62.C2 Notice of issuance of a determination.
(a) Upon the issuance of a Commission determination the Secretary 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 dis-posal 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 appro-priate 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 e common 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 S 62.24 absent dili- i gent State and generator action during the period of the initial grant.
{
4 w w aw o
- s. a mm .u y a-M
. "*" 11 W")wcai aqw.aq}
a w s u a.dn m &Wcavak1D 0
^-
1 I sa - u.2aw --
j b pagkatuk cbscabulth f0 D. D 2 (") adA umEh's & eb.saAbadcl6c.2<fc},Ih
& Cr>qad CJw
(%of G u)Md4 c % w ab.;oxsai fns tay 'bcabs p w appuvaL as q % y aa4 41e'una 4al crycui. 9 swA anpas O as -
e m wan an w %s + 9 m i s S.
h_. _ - _ _ _ _ _ _ __.__.. _ _ _ . _ . . .
1
- l -
)} [
4
(/) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination) (-
. {ch,pd The Secretary of the Commission will make a copy 'of the final determination available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC.
q h :j
' p@ctwe
- . IT N !
deTwnu.nakes 1 S 62.23 Determiriatio'n for granting temporary emergency access. w W, . .]
l (a)
The Commission #1 may grant L ( T. temporary)' emergency access to MA 2.S an appropriate non-Federal disp sal facility or facilities provided i that the determination required under S 62.21(a)(1) is made; (b) the notification procedures under S 62.22 are complied with; and (c) the temporary emergency access duration will not exceed forty-five (45) days.
S 62.24 Extension of emergency access.
(a) After the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or. I her State, for an extension of emergency access that was initially ;
granted under S 62.21, the Commission shall make an initial determina-l tion of whether--
l (1) emergency access continues to be necessary because of an immed-iate and serious threat to the public health and safety or the common defense and security;.
(2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and 46
(3) the generator of low-level waste and the State have diligently j though casuccessfully acted during the period of the initial grant to j eliminate the need for emergency access.
(b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) M , and 62.22, '
must be followed. b O*
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, I
notwithstanding the availability of any alternative identified in Sec-tion 62.13 of this part:
(i) the nature and extent of the radiation hazard that would 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 (C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access i
request; f
l 47 L_____-__________________-________-_____.
3
)
(ii) the extent to which essential services affecting the public health and safety (such as medical, therapeutic, diagnostic, or.research? l 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 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.)-
(d) In making the determination that.a serious and immediate thre'at-to the common defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in sec-tion 62.13 of this part: (1) whether the activity generating the wastes is necessary to the protection of the. common defense and security, (2) 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. The Commission will consider the views of the Department of Defense (D00) and the Department of Energy (D0E) 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 S 62.21(a)(2), the Commission will consider whether the person submitting the request: -
M and CNCA4aliLA. a.fdownbh (W A*
(1) has de&nnc+ w od +hst a onnd faith ffnyt wa c: mmda tn 4d n+4fy :-d m, , o - ,n
- .ms that could mitigate the need for emergency access; 48
i (2) has considered all. pertinent factors in its evaluation of alterna-tives 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 Commission will consider implementation of an alternative to be unreason- l 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-l cant curtailment or cessation of essential services, 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 !
l 6 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 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 practicable using available technology.
49
r .i i
l 6 62.26 Criteria for designating a disposal facility.
(a) The Commission shall designate an appropriate non-Federal or.
regional disposal ' facility Lif an affirmative determination is. made pursuant to 6 62.21.
(b) The Commission will exclude a disposal facility from' cons'idera-tion.if:
(1) the low-level ' radioactive wastes of the' generator .do'not meet the criteria established by the license agreement or the license agreement of the facility; or' (2) the disposal' facility'is in excess of its app' roved capacity; or; (3) granting emergency access would delay the closing of the 3 a
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 j disposal at the facility during the previous calendar year.
(c) If, after applying the exclusionary criteria in paragraph (b) 1 of this section, more than one disposal facility is identified as appro-priate for designation, the Commission will then consider additional factors in designating a facility or facilities including:
(1) type of wasteOd df CIM4A4b4 57thS (dM8 j (2) previous disposal practices, (3) transportation, (4) radiological effects, ;
(5) site capability for handling waste, en*
() any other considerations deemed appropriate by the Commission. I
)N f WMU aa.mte4 y aa m %u.a,s pawa pd M od i (4
I (d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW disposal sites, or any information submitted by the public in response to a Federal Register notice requesting comment, as provided in paragraph (b) of S 62.11.
' W Butsf s--
Dated at Washington DC, this day of , 1987.
(o'l M For the Nuclear Regulatory Commission.
f {Gl &
Samuel J. Chilk, Secretary of the Commission.
w, ms a m %pe 0 3 u LU f y a cc' " q w +c '
a is e ;s su gect h A W WL%eu. 4 LLV) cdspoSa) & OA' O.cf, as & GL Odd ^tts' pro vAlcas <ehicA sr
. u m a us ru m2 _<
% s e cg m% asu a pmeu cGpored wf by /4< penarcan ad the das7 9 &
a.wnw ea+ is c.ensiske neceiv;3 L tay ',m wdh o%< LLLJ a1yosed c>Fvndue s 4ennc c>f ac.eass wack
% Qxt. Th cDspo. sat of ernqm l
SQ & prec. ludo % SplenMah% of "}
w . wpresea%
n ws a ~ , y % usp aw~,+a,s, -
ohict ms
% ha a Qt& cd-%. % cy%. Cow is au,'s & l 31acurr. asar azas A
- ma.s . fu 'W a.c a ss s. ~ ~ e n w w m pl)
W -hv a a,ttsaed;j
\
Gn6L o.ppro --
lO6'Lbl %J (&jLLg O
((?co<sk/ / usfsd Document. Name: [T 10 CFR 62 ENCL B FRN of, P4 p C M h C Requestor's ID: V KIMINAS Q g[g gc xd Author's Name: (ggy J7QQ LAMBERT J
- Document Comments
SPE 3/24/88 - ETPB REVISIONS
%d CH
^
4lI5. _
r
%mx"S .
(
. M *5 4h9
--m
,y i A cav-2.
Pbp) 30YS9 R1234100 NUCLEARRE6ULAiDRYC0MMiSSION PAGE: 23 DATA AS OF: 04/29/88 WDRK ITEMTRACKIN6 SYSTEM NUCLEAR REACTOR RESEARCH OPTION 1: OPEN ITEMS AND ITEMS CLOSED ( 30 DAYS (!NCLUDING BRN/PRI TICKETS -CDMPLETED ITEMS OMITTEDI - BY PRIORITY, ASSIGNEE, ITEM ASSIGNEE: RES 333333J333333333333333333333333333333333333333333333333333333333333=3333333333333333333333333333333333333333333333333333333333333333' PRIORITY: (A) 0FFICE: RES
.................................. ..- ...........- _ = ........................__ -
ITEM ND: 860079 CONTACT: LAMBERT SECY NO: 87-205 1 ED0-REF: TASK BASIS: 860079 ORI6 BY: TYPE: %III CURR DUE: 06/30/88 CURR DAYS: +62 REV: 06
- CURR DUE: 06/30/8B CURR DAYS: +62 REV:.06 DElG DUE: 06/30/88 ORIG CAYS: +62 BA0/0!A: * 'ORI6 DUE: 06/30/88 DRIG DAYS: +62 UPDTD: 12/17/87 REEvD: 07/31/87
- COMPL:
START: COMPL a E00 NO: SRM:
i DESC: FINAL RULE - PART 62 - CRITERIA AND PROCEDURES
- BASIS: SECY 86 85 - LOW LEVEL RADIDACilVE WASTE POLICY FOR 6 RANTING EMERGENCY ACCESS 10 NON-FEDERAL
- AMENDMENTS ACT OF 1985. SECY MEMD 11/4/87 RE AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES
- 87-205 BASIS: SECY 86 LOW LEVEL RAD 10ACTlVE WASTE POLICY AMEN 0MENTS ACT OF 1985. SECY MEMD 11/4/87 RE-97-205 [/p-U '
STATUS: Y g4.le -
08/21/88: DRAFT COMMENT A'ALYSIS PROPOSED REVIS!DNS TO RULE ISTRIBUTED FOR OFF 4/19 MM, 1 04/14/88: DRAFT TO EE SUBMITTED FOR OFFICE REVIEW BY 4/22/88 /
03/30/88: COMMENT ANALYSIS CONTINUES. DRAFT REVISIONS TO RULE UNDERWAY 03/23/88: THREE ADDITIONAL COMMENT LETTERS RECEIVED ON 3/24/88 AS A RESULT OF THE INFORMAL EITENSION.
COMMENT ANALYSIS CONTINUES g
03/10/88: COMMENT ANALYSIS CONTINUES 03/03/88: FORMAL EXTENSION NOT 6 RANTED. INFORMAL EXTENSION TO 3/18/88. COMMENT ANALYSIS UNDERWAY.
02/16/88: REQUEST RECEIVED FOR 60 DAY EXTENSION-UNDER CONSIDERATION _
01/27/88: CCMMENT PERIOD CLOSES 2/12/88 -
12/17/871 FRN SIGNED 12/9/87. COMMENT PERIOD ENDS 2/12/85. FINAL RULE DU Sf30,/%
a d3 4$
I -
fV . 7 Y, f eps ,
O 1 l
I I
ow w % - m wyop M.
.y n' 9J.QA *. y dar p hs Q- p. . . nw .. - .
fqDL d Y'* [kd -lo l N c4l/ Mj' FAG Y$Y&
xxya tcG o - i u.w && v s /ufLOW RDB NUMBER: 90 LATEST UPDATE: 03/21/88 TITLE:
Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities CFR CITATION:
10 CFR 62 CURRENT STATUS:
This rulemaking was transferred from NMSS to RES after '
publication of the proposed rulemaking. The proposed action ,j9 was published on December 15, 1987 (52 FR 47578) andthe__g/pwfEk fi public comment period ended on February 12, 1988. 6Tn ita , gxh'd E 22 comment letters h="r 50cn received. Lad 5 Twe.M Oh- 'Le w I9'I ABSTRACT: p M The proposed rule would establish procedures and criteria for fulfilling NRC's responsibilities associated with acting on requests by low-level radioactive waste 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 (LLRWPAA).
Section 6 of the LLRWPAA authorizes the NRC to grant emergency access to any non-Federal low-level waste disposal facility, if necessary, to eliminate the immediate and serious threat to the public health and safety or the common defense and security, provided the threat cannot be mitigated by any alternative.
TIMETABLE:
COMPLETED ACTIONS: 1 Rulemaking Initiated 08/25/86 Office Concurrence 6n Proposed Action 05/87 Proposed Action to EDD- 07/30/87 ' /
Proposed Action to Commission 08/12/87, Proposed Action Published- 12/15/87 52 FR 47578 t Public Comment Period End 02/12/88 a t
' M ,jf Sg '. II Final Action to CRGR/ACRS--Not Applicable SCHEDULED ACTIONS: . .
[hpod .
Office Concurrence on' Final Action 05/00/88 7 . L l l
Final Action to EDD '06/30/88 6 il Final Action to Commission 07/00/88 /f Final Action Published 08/31/88 B (J B8 1 19 i;i NOTE: Timetable schedulediaction dates reflect EDO-approved. -
, i due dates. Dates included in- parentheses, if any,' represent task leader estimates.
Q'lplgu ;
- 9k(6 63
% v( n>hdas 1< f hhdn '
18
, ,s', '
~ SCHEDULING NOTES:
The EDD-approved schedule call s f or of fic' e concurrence on the final action to be completed in 05/88. Staf4--si Li ulppesc- ,
t flat-ttTmi-les tene_.w i 1-1-be-1nete ud Vo E O m un nrf lud tdmte Juaib caua)toZZ
~
n
- d The schedule establishi 8/31/88 as t e date for publication of the f' rule called f r the proposed rule to be. issued in 09/87. his proposed l rul e waa::schtrart-l a .. _ - r'--""13. - -
gf 12/15/87, 2-1/2 months later than planned.
staf f +jyn lost 2-1/2 months of the time provided(for work on As a result, ,tdUs # j[' d p'Yp , t the final rul ey -A4 h 1.1. .a , - R -! ' dr: ,9 tan--4e -r-equest er se i.m 70. p u 2- @ _ d th. 4i;;-ci -ul e. -
9HoERFPer , i th br i i e rame r pr ring he fi 1, Jd a req e t m , _ ec' sa y, ar icu ar y - iif ext s I ve h n es mu t b ma in re on e t p1 bli cm A de n c ss y ched e han es il b mad ft nt(j .
revie a 1 t on f the p li co me ts. . A inf mal 4 comment rio e:, nsio ends 03 8/88.
REASONS FOR PROJECTED SLfPPAGES, IN DETAIL: 9 no s we e .g =--on.
(V4
- LEGAL AUTHORITY
- 4 42 USC 2021 EFFECTS ON SMALL BUSINESS AND OTHER ENTITIES: Yes AGENCY CONTACT: 'd '
Janet Lambert ~
Nuclear Regulatory Commission .
f Office of Nuclear Regulatory Research ,
g k .f Washington, DC 20555 ;
301 492-3855 '
I h
4
+ .~ O :: p4c& M~%. .. .
y F
gg ,.
day ~o4 Y+)wgik h
\
W . .
. . p w @ ,a h ,' n h
. , a
- u -
\;
1; ta w f ? ~
%,w s ; _.
a 19
-m_______________m_m____ --__ m
@ j (C) 8OB
- 77- A .scL&4 A n h&4,@ ~.k (
w x a .. n t a & & q a , aAM m A e. < A A s<a 4 (d) nob 70 - A .addA A u Od"aA M -
EDo ST sA Zb$ JPW _ $w 6>ul5e Ph to && r/t/88 Sou- (f A 1 fo E D O G/30/87 f/w 10 % 7/3//rF W4 9MM&r r/at/eF /r~g)
- 4 - A& AA ma J ,4 -ri w Ay Ajuntsoo wb~.dz A h. n y Am.
u)A q ynA4,m Aa .
n np 4 .,en ~
--wp fa. M w A A J a- Ay riLo ' M wm-&
Cab @ ) p 9 AM
.dwm. Q2tsLeAgk n 'u2JJ. -
~ d' i
1 w A A o+ J & 4 -
- 4. A yde A w AfL '
y.
e) RDis " 107 - h uLL& 4 JM hazl #4*"
Nat 8 A A A L geaA.g.co4 m, M g/by y.a a a a Dee %n p -& -
- . ~d
&ccara A
- ~
Y Q A 1
}
dL.DO _
Q-
! Part 62 Comment Analysis .
B. Responses to Individual Conrnents: I Amd44 l
tsygg5s Cnsn Wn/n g B.1 Comment Letter #1 l- W. Clough Toppas, Dept. of Human Services, Maine ~ ^
k
, Comment 1.1 a .
The premise for granting emergency access is sound and takes into l
- 1. 1 account a variety of factors to include some initial oversight actions.
We are not in opposition to the proposal.
RESPONSE: No response necessary. ,
1 l
Comment 1.2
- 2. The proposed rules (e.g., 662.26) should include a small subsection stating "...the designation of a disposal facility pursuant to 662.21 i shall not preclude the implementation of any specific conditions, J regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Commission's deter-
)
mination to grant emergency access..."
RESF0NSE: The Commission believes that Congress intended emergency access only to be granted for waste which would routinely quMify for j LLW disposal under the terms of the low-Level Radioactive Waste Policy I Act Amendments of 1985 (the Act) and which would meet all the general requirements and regulations of the disposal facility designated by NRC to receive the wastes. To assure that NRC will designate a site suitably .
matched to the LLW granted emergency access, NRC included a provision in the proposed rule which states that a LLW disposal site will be excluded from consideration to receive emergency access waste if the waste does not meet the criteria established by the license or licensee agreement ,
forthefacility[62.26(b)(1)]. The license or licensee agreements incorporate the regulations and requirements that affect each particular i facility. Taken with the other information in 62.26 which the NRC will bb
? Mb
2 consider before designating a site, the Commission believes Section.
62.26 as proposed adaquately addresses the NRC'S responsibility to designate a site which does not preclude "the implementation of any specific regulations,.
and requirements at the designated disposal facilities."
% #2: j 's comment also lists " fees, taxes and conditions" as items which NRC should consider in designating a site. The Commission does not agree that_ such information car; or should be used by NRC in making its site designation decision. The Commission recognizes their administrative importance in the actual implementation of emergency access decisiens once they are made by the Commission and has responded to that part of his comment by adding a new "Sectior. 62.27 - Terms and Conditions of Emergency Access." The new Section sets out the responsibilities of the generator and the disposal facility operator once emergency access has been approved. (See also responses to Comments l 5.5,8.4and9.1.)
l l
l 1
3 B.2 Comment Letter #2 -- Sally Dicmas, " Concerned About ' Radiation in the Environment," (Citizens Group)
Comment 2.1
- 1. Commercial waste only shall be eligible for state and compact LLRW dumps. Federal waste (La ) shall be prohibited.
RESPONSE: In developing the proposed rule, NRC assumed that only those LLW's designated by Section 3(a)(1) of the Act to be the disposal-responsibility of the States, would be eligible for disposal pursuant to the emer0ency access provision. Under Section 3(a)(1)(A), the States are assigned the responsibility for disposing of commercially generated LLW, and under Section 3(a)(1)(B) they are assigned the responsibility for disposing of "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommis-sioning of vessels, or as a result of any research, development, testing or production of any atomic weapons." Since LLW generated by the Federal government that does not fall into the above categories is eligible for I
disposal at the State / Compact LIW disposal facilities, those same Federally generated LLWs are eligible for emergency access. To clarify the NRC's intent regarding the scope of wastes which will qualify for emergency access, NRC has added appropriate text to Section 62.1 " Purpose and i Scope," and to the " Assumptions" discussion in the preamble. For further elaboration on this subject, see the response to Comment 5.6.
1 Comment 2.2
- 2. No Greater-than-Class-C waste shall be forced upon these commercial dumps since this is not part of their design criteria.
RESPONSE: NRC developed the proposed rule assuming that emergency l access can only be granted to those LLW's for which the States have routine LLW disposal responsibility under the Act. Section 3(a)(1)(A) of the Act makes the States responsible for providing disposal only for those LLW's in classes A, B, and C.
i
4 Thus, greater-than-Class-C wastes are not considered by NRC to be eligible for emergency access disposal. To help clarify ~ this point, NRC has-added an explanation'of the scope of the LLW eligible.for emergency access to Section 62.1 of. the rule, and under the " Assumptions portion of the Preamble. (See also discussion in the response to Coment.5.6.)
Comment 2.3
- 3. If States choose to " store" rather than to affect to " dispose" of waste.
l the NRC shall not force waste to go to those sites.
RESPONSE: Section 6 of the Act sets out NRC's mandate for emergency' access decisions, and provides only that "the Nuclear Regulatory Commission.
may grant emergency access to any regional disposal facility or non-Federal disposal facility..." (emphasis added). Thus, by law, emergency access-can only be granted to those facilities which provide permanent isolation of low-level radioactive waste. Facilities developed by States to' store LLW would not, by definition, qualify. and would automatically be. precluded from consideration by NRC as' sites to receive emergency access wastes.
(See also the responses to Comments 3.3, 8.4, and 10.5.)
l l
l
5 B.3 Comment Letter #3 -- Shirley & Lloyd Gilbert, Citizens; Fresno, California Comment 3.1
- 1. Since state and compact dumps are being developed for commercial waste, this is the only type of waste that should be eligible for Emergency Access. The rule shuuld clearly prohibi'. federal waste, example - waste from the Departments of Energy or Defense.
RESPONSE: See responses to Coments 2.1 and 5.6.
Comment 3.2
- 2. Since state and compact ' low-level' dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit NRC fNm forcing Greater-than-Class-C waste on any state or compact dump. The rule should make clear that if state or compact dumps have other restrictions such as prohibitions on wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those criteria.
RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 3.3
- 3. If states choose to store, rather than pretend to ' dispose' of waste, NRC should never force waste to go to those sites.
RESPONSE: As discusse nder commen [NRCcannotlegallydesignate anything but a facility des e or perma .nt isolation of LLW to receive waste granted eme cy a ess under this rule, and pursuant to 1 1
Section 6 of the Act. ee also the r nses to 8.4 and 10,5). l l
Q 2 . 3, 8 Y * /o . C)
6 B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Commission
, Comment 4.1 1 Page 47580 of the Federal Register Notice states that the Nuclear 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, the proposed rule omits any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. .This Section provides that the regional compact or state receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact or.
state that receives the emergency access waste shall designate. for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
While the NRC may not wish to be involved.in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extracted from the compact region or state in which the emergency access waste was generated before any determination for granting emergency access is made. This acknowledgement should be required as part of the contents of a 3 l request for emergency access (Section 62.12) and should include some j indication of when the reciprocal access would be provided. The acknowledge- l ment could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the compact commission.
RESPONSE: NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believed that assuring reciprocal access was beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. NRC believed that arranging for reciprocal access in response to grants of emergency access is the sponsibility of the States and Compacts involved.
The NRC sM41 believe[ a enforcement role regarding reciprocal access Mb V
7 is inappropriate for the Agency. However, from this comment and others like it, NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, and as such, should be, addressed in Part 62. The following changes have been made to the final
- y. rule in response to this comment:-
A new (n) has been added to 62.12 "A formal acknowledgement of
, reciprocal access from the State and or the appropriate Compact Commission promising reciprocal access for an equal volume-of LLW having similar characteristics to that requiring emergency access,
- and indicating an approximate'date when it would be available."-
p}6 A new sentence (underlined) has been added to 62.22(a)--
...(not to exceed 180 days) necessary to alleviate the immediate and ;
serious threat to the public health and safety or the common g defense and security. It should also include a formgTTr'omfhC) .
of reciprocal access for an equal volume of LLW having similar characteristics to that requiring emergency access from the 1 State and/or appropriate Compact Commission requesting emergency '
I access. For the Governor of-the State...." j l (See also responses to 4.2,4.3,4.4,4.5,5.4,17.14) ]
i Comment 4.2 Before granting emergency access, the NRC should determine whether or not there would be any limitations (e.g., timing, license restrictions, etc.) on the ability of ti,e facility that serves the compact region or state in which the emergency access waste was generated to accept reciprocal access waste with similar characteristics (i.e., source, physical, and radiological).
This specific determination should be added to the Section 62.25 criteria.
RESPONSE: In response to Comment 4.1 and other similar comments, NRC has decided to require a ' formal promisjof reciprocal access as part of each request for emergency access. However, as stated in the response to Comment 4.1, NRC will not be involved in trckerir,g reciprocal access arrangements, as would be required if NRC were to carry out the
8 i determination requested by this comment. Since there are no limitations established either in the Act, or the rule as to when reciprocal access must be provided, and since it would be unlikely.that. determinations' l made by NRC at the time. emergency access is' granted will. be applicable j at the time reciprocal access may be used, no change was made to the l final rule in response to this comment. (See Comment'4.1)
Comment 4.3 Before designating a disposal' facility, the.NRC also should determine if the regional compact or state that would' receive the emergency access waste has- 'I an equal volume of reciprocal access waste with similar characteristics..
This specific determination should be added to the Section 62.26(c) criteria.
RESP 0NJ: (See response to Comments 4.1 and 4.2).
Comment 4.4 Finally, the NRC should be aware of any potential liability obstacles before making final decisions. It is possible that differing liability requirements among compacts or states could affect receipt of emergency access or reciprocal access waste.
RESPONSE: (To be provided by Chip Cameron)
Comment 4.5 We believe that the reciprocal access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facility. This is of particular concern because the receiving compact region or state has virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of Section 6, and should be recognized as such in the proposed rule.
RESPONSE: (SeeresponsestoComments4.1and4.2) l L -_ _ _ _ _ _ - - _ - _ _ _ - _ _ _ _ - _
9 Comment 4.6 i Because the NRC has already indicated, on p. '47583, that it will attempt to j distribute emergency access waste as equitably as possible 'a criterion-related to past acceptance of such waste should be included in Section 62.26(c). The criterion would require the Commission to consider, "The volume and characteristics of emergency access waste previously accepted." )
1 1
RESP 0NSE: In the proposed rule, NRC intended that past patterns of l
-.a -
i distributing emergency access wastes deem be considered in the process ' j
, of designating a sitc. This is evidenced b language in the "Designa- l tion of Site" discussion in the hich ',tates that "NRC will
' O(( consider how much waste has been designated for emergency' access disposal f to each site to date (both for the year and overall)." NRC did not include a criterion addressing past acceptance of emergency access waste i
in the actual regulatory text of the proposed rule. However, NRC agrees q that the addition of such a criterion will be useful in clarifiying the
/ intended site designation process. In the final rule NRC has added the- j A criterion as suggested in the comment as the new provision identified .
U as62.26(c)(6). The provision identified as 62.26(c)(6) in the proposed !
rule has been renumbered and appears as 62.26(c)(7) in the final rule.
l
10 B.5 Comment Letter #5 -- Terry Lash, State of Illinois Department of Nuclear Safety Comment 5.1
- 1. IDNS agrees with the NRC's determination that establishing criteria and procedures by rule, in advance, is an appropriate approach.
Establishing procedures in advance of a request allows the NRC to respond quickly in the event of an imminent threat. Establishing criteria in advance allows potential applicants to plan accordingly, and serves notice that the emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act.
RESPONSE: No response is necessary,given that the cerent essentially reiteretes the retioncic preser,ted by "C 4" the a-c=ble #er develaping.
4 ruit: Ivr voirg6nC,7 5CCe53.
Comment 5.2 IDNS agrees with the statement preceding the proposed rule that NRC should
... reinforce the idea that problems with LLW disposal are to be worked out
, to the extent practical among the states..." The proposed rule does not, 1
l however, expressly encourage states and compacts to enter into cooperative l agreements for emergency access before the need for such access arises. Such agreements would be consistent with the intent of Congress and should help to l apidanyimmediateandseriousthreattothepublichealthandsafetyorthe common defense. The rule should expressly encourage states and compacts to enter cooperative agreements.
RESPONSE: MC 1: :Nethetic te um mui.ivation b; hind this cc-nente l
1 w ereven, the Commission does not believe it would be appropriate for NRC to expressly encourage States and Compacts to enter into cooperative agreements for emergency access in the regulatory text of Part 62.
First of all if NRC were to provide such express encouragement in the regulatory text of the rule, NRC would be assuming the role of advocate for such agreements. While Congress clearly hoped that States / Compacts l
11 should be able to resolve problems associated with LLW disposal access- 1 i
through cooperative agreements (or " voluntary' agreements." as they are {
~
p referred to in the Act) Congress did not direct NRC to promote such b agreements between States or Compacts any more than the other alterna-tives to emergency access.. Further, including such express Y encouragement would be outside the scope of the rule, that is, to 1 establish the process and criteria that NRC will use to make decisions-regarding requests for emergency access. The Commission believes the
/ proposed rule which includes a discussion in the preamble on states responsibilityundtr"LegislativeHistory,"andprovision62.13(b)(3)-
f V
(( V ,,"addressed obtaining access to a disposal facility by voluntary agreement" has this concern appropriately and adequately. As a result, no changes have been made to the final rule in response to this' comment.
[ ['
g Comment 5.3 IDNS strongly agrees with the statement preceding the rule that " Congress believed it was important for the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity." We believe this
)
statement should be made part of the rule. Development of new LLW disposal ]
capacity is a controversial and difficult task. The' task is even more difficult when citizens in states such as Illinois, where progress is being made, hear and read statements from officials in other states that the framework set out by Congress is flawed and that it may not be necessary for every state to take steps to provide for the disposal of low-levelradioactive waste generated within its borders. It is IDNS's experience that Illinois' citizens want assurances that the Illinois disposal facility will accept only I low-level radioactive waste generated in the CMC region. It is imperative that emergency access not be perceived the states as an alternative to making diligent effort to fulfill their responsibility. !
RESPONSE: Uh41e " C is une thetic iv L'n e uivi;.atica behind this
.ce'""'er,t, the- Cummission uues nvi bdieve that die subject >Laiement ,
+muld be approprhte h tiic ccdif4ed text of tbo rule. Part 62 contains only the criteria and procedures to be used by the Commission in considering
i 12-1 I
requests for emergency access. The Commission believes that the' procedures and criteria in the proposed rule establish sufficiently stringent requirements for granting emergency access to clearly convey that emergency access should be viewed by the States solely as a last resort and not as an alternative to the mandated development of new LLW disposal capacity.
Comment 5.4 IDNS observes that the proposed rule does not address the~ provisions.of l Section 6(f) of the Amendments Act,-which pertain to reciprocal access. .'IDNS recommends that the proposed rule address reciprocal access is providing"
.?
... reciprocal access for an equal ~ volume of low-level radioactive waste having similar characteristics to that provided equalaccess."
l RESPONSE: (See response to Comments 4.1 and 4.2)
I 1
1 Comment 5.5 ]
The proposed rule does not address the issue of disposal fees for wastes disposed of under an emergency access determination. The obligation of a State or Compact to accept wastes grpfted emergency access should be con- '
ditioned upon the applicant's payment of disposal fees and surcharges as applicable.
l l
RESPONSE: NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as any l additional fees or surcharges specifically applicable to emergency access waste under the provisions of the Act. A new Section 62.27 -
" Terms and Conditions of Emergency Access" has been added to the final rule that addresses such obligations. (Also see the response for Comment l
1.2.).
Comment 5.6
13 662.2 The definition of Low-Level Radioactive Waste'is' incorrect. For purposes of emergency access to non-federal and regional' disposal facilities, the definition'should be limited.to that subclass of low-level radioactive waste for which states have been given responsibility under 42.USC 2021(c).
.The definition should read:
i
" Low-Level Radioactive Waste,":(LLW) means A)'radica'ctive waste, other ;
than radioactive waste generated by the federal _ government,- that
~
consists of or cont'ains class A, B, or C radioactive waste as ' define'd by-section 61.55 of Title 10, Code of Federal Regulations,'as'in effect on' January 26, 1983, and B) radioactive waste described in A) that is generated by. the federal government, unless such waste is 1) ' owned or -
generated by the Department of Energy, 2)-owned or generated by the.
I United States Navy as a result of decommissioning 'of vessels -of the United States Navy, 3) owned or generated as a. result of.any research, development, testing, or production of any atomic weapon, or 4) identified under the Formerly Utilized Sites Remedial Action Program. ]
l Under the Amendments Act, disposal of waste.that is above class C,'as defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility of the states. The Nuclear Regulatory Commission may not, through' 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." IDNS. objects to any attempt, whether' deliberate or inadvertent, to place additional burdens on the states in contravention of express !
statutory limits. The proposed definition is particularly troubling in i light of the Amendments Act's express prohibition on requiring any regional facility to accept waste that is above Class C, or FUSRAP wastes. IDNS also notes that providing disposal capacity for naturally-occurring'and accelerator-produced materials is not the i 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. ;
I RESPONSE: The definition _that appears in the proposed rule is W
" - -ct. 2^ t the same definition for LLW which appears in the Act L-___---___ _ -- _--- _
14 itself. Although the NRC does not agree that the definition of low-level waste should be changed, NRC does agree that the qualification on the scope of the LLW eligible for emergency access provided by the commentor's proposed definition is extremely relevant to emergency access decisions and would afford useful clarification if included in the rule. The commentor has quoted Section 3(a)(1) of the Act, the section that specifies the subclass of LLW for which the states were given responsibility for disposal. It is important to the States that they be assured that they have the responsibility for disposing of only the subclass of LLW described in that Section. The States want assurance that NRC will not use the emergency access provision to require them to accept wastes for disposal, such as above Class C, and D0D or DOE LLW, which are not their responsibility pursuant to Section 3 of the Act. NRC has provided this assurance in the final rule by adding the recommended text to Section "62.1 - Furpose ,
i and Scope," as well as to the Section V, " Assumptions" discussion in the >
Freamble. (See also Comment 14.10.)
Comment 5.7 l
Section 3(b)(1) of the Amendments Act provides that the federal government is responsible for the disposal of certain types of radioactive waste (i.e.,
above Class C) and radioactive waste generated by certain activities of the federal government (e.g., 00E waste, defense waste). Although the three 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 disposal facilities for waste that is a federal responsibility. In the Supplementary Information section of its Federal Register notice, the NRC states that the emergency access provision was "not intended to be used to circumvent other provisions of the Act." (52 Fed. Reg. 47579.) The implementing rule should clearly state that no request for emergency access for waste that is a federal responsibility shall ever be considered or granted. As the House Energy Committee pointed out, the NRC may grant access only for waste which is a state responsibility. Language proposed for inclusion in the Amendments Act by the DOE that would allow emergency access for waste generated by the D0D was expressly considered and rejected by Congress. The NRC should abide by u ____________. _
15- )
'I
- . I that decision and.the. express language of the Amendments Act in promulgating j this rule. t
' RESPONSE: NRCplanstouse'thecriteriainSections3(a)(1)(A)and(B) of the Act to determine what wastes could be eligible for emergency.-
access disposal. '(Also see responses to Comments 2.1 -2.2, 5.6 and.
14.' 2. )
Comment 5.8 662.2 The definition of " Temporary Emergency Access" should be changed as follows:
, "' Temporary Emergency Access' means access that is granted.at NRC's1 discretion upon determining that access is necessary-to eliminate an 1 immediate and serious threat to the public health and safety, or the-common defense and security. Such access expires 45 days after granting."
The NRCls authority to grant emergency access, whether temporary or not,.is -
limited to those situations where such access is "necessary to eliminate an-immediate threet" (42 USC 2021, emphasis added). The Amendments Act does-not, as the proposed rule suggests, allow the NRC to grant emergency access.
to " alleviate" such a threat. " Alleviate" is not synonymous with
" eliminate." Only where the applicant can show, and the NRC can find, that the threat would be eliminated by emergency access, can the NRC grant emergency access. ]
l RESPONSE: The definition presented in this comment for temporary emergency ,
i access" is the precise language used to describe temporary emergency i accessinSection6(d)oftheAct. The definition in the proposed rule is the same except it reads "necessary because of an immediate and serious threat" instead of "necessary to eliminate an immediate and serious j
threat." The definition has been changed'in the final rule to match the ;
language of the Act and the comment. )
l I
l l
. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - . _ _ _ _ _ _ _ _ _ _ _ _ _ _ - . 1
1 16 Comment 5.9 ;
562.12 Add a new subsection (c) as follows: !
"(c) That the material for which emergency access is requested is l
' low-level radioactive waste' as defined in this Part." !
and redesignated the proposed subsection (c), and following subsections, as i appropriate. This will help assure that no state will be asked to dispose of waste that is not a state responsibility under the Amendments Act.
I RESPONSE: A new subsection (c) has been added to 62.1? which reads
" certification that the material for whii.h emergency access is requested is ' low-level radioactive waste' as defined in this Part." Proposed subsection (c) and the following subsections were redesignated as 1 appropriate.
l 1
Comment 5.10 662.12(f)(3) should be modified as follows:
"(3) The minimum volume of the waste requiring emergency access to l eliminate the threat to the public health and safety, or the common defense and security."
I RESPONSE: In the proposed rule, NRC soed " alleviate" rather than )
" eliminate," whico is used in the Act. The recommended change has been l made to the final rule. (See also Comment 5.8) l Comment 5.11 l 562.12 Add a new 662.12(k) as follows:
"(k) A description of how granting emergency access would eliminate an immediate and serious threat to the public health and safety or the common defense and security."
RESPONSE: Adding the recommended provision would be redundant. If the requestor is able to demonstrate to NRC that disposal to a LLW disposal site is necessary because of a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigated by any available alternative, and routine LLW
- disposal has been denied to the generator of that waste, then emergency l
l access is the only way to get that disposal.
l
]
17 i
Comment 5.12 ;
562.12 Amend the proposed $62.12(k)~as follows and re-designata as i 662.12(1): L
"(1) Where.the request is made wholly or in part on the basis of a serious 1 and immediate threat to the commo:t defense an'd security, certification by the ]
Secretary of Energy and the Secretary of Defense that the waste for which emergency access is granted is not owned or generated by the. Department of Energy, owned or generated by the United States. Navy'Es a result of any l
decommissioning of vessels of the United States Navy, or owned or generated by the federal government as a result of any research, development, testing,
- or production of any atomic weapon, and that access to dis 90 sal is necessary to eliminate the threat to the common defense and security."
As explained in Comment #1, under the Amendments Act it it, the responsibility of the federal government, not the states, to dispose of radioactive waste generated by certain federal activities safely. IDNS holds that no state can be forced to accept responsibility for disposing of these wastes under the emergency access provisions of the Amendments Act or thrcq h any action of a ,
fcJeral regulatory agency. In addition to the generator's certification that 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 for access is based on a claim of immediate and serious threat to the common defense and security.
RESPONSE: In Section 62.12(k) of the proposed rule, NRC requires that a reouest for emergency access based wholly, or in significant part, on j the basis of a threat to the common defense and secyrity, should include "a statement of support from DOE or D0D certifying that access to l disposal is necessary to mitigate the threat to the common defense and security." This comment recommends that DOE and D0D also certify that the wastes for which emergency access is requested are not LLWs for which the Federal Government has disposal responsibility under Section ,
3(a)(1)(A) and (B) of the Act. NRC has modified "Section 62.1 - Purpose and Scope" of the final rule and "Section V - Assumptions" of the 1
18 preamble to clariis that only LLW which is the disposal responsibility of the States is eligible for emergency access consideration. With these two changes in the final rule, NRC believes the objective of the change recommended in this comment has been accommodated. (See also responses to coments 2.1, 2.2, and 5.6.)
d Comment 5.13 Modify 662.13(c)(6) as follows: l
"(6) Any legal impediments to implementation of each alternative {
including whether the alternatives will comply with' applicable NRC requirements, and the requirements of the Compact Commission and the 1 State where access was considered."
)
It should be made cleer from the application ibr emergency access ehether denial of access was based on failure to comply with applicable standards. ]
NRC should not grant emergency access when the emergency was brought about by j the applicant's own failure to comply with regulatory standards. !
RESPONSE: NRC agrees with this change. It has been made'to the final.
l l
1 Comment 5.14 Modify $62.13(d) to read:
"The request must include clear and convincing evidtnce that the applicant has exhausted all other options for managing its wastes and must include the basis for:
i (1) Rejecting each alternative; and (2) Concluding that no alternative.is available."
Section 62.13 of the proposed rule specifies. that a description of alter-natives considered must be included in a request for emergency access, but it does not include the provision in the statement preceding the rule that,
" applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their
I 19 ,
1 wastes." This language is appropriate and should be incorpore :d into the i i
rule. 1 A l RESPONSE: NRC agrees that thh i e a;-th hii; ch:n;:. P has been madesin the final rule.
yC gJA Q Comment 5.15 '
662.14 Add a new 662.14(c) as follows: .,
"(c) A description of how granting emergency access as req'uested would ')
eliminate an immediate and serious threat-to the public healtn and safety or the common defense and security."
RESPONSE: (See response to Comment 5.11.)
)
comment 5.16 662.18 Replace "may" with "shall" in this section. I This section provides that the Commission may deny a request if it is based ;
on circumstances that are too remote and speculative to' allow an informed I decision. IDNS recommends that "may" be changed to "shall." If the Commis-sion cannot make an infonned decision on a request, it should not grant the request.
RESPONSE: The Commission does not intend to make uninformed emergency access decisions. The word 'may" was used in the proposed rule in preference to "shall" to provide NRC with options in the event that additional information is needed by the Commission to reach its decision. The recommended change was not made to the tinal rule.
Comment 5.17 662.21(a) should be modified as follows:
"(a) Not later than forty-five (45) days after the 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
20 l
I or generators located in his 'or her state, the Commission shall make a determination whether--
(1) The request for emergency access to a regional disposal faciie / or a facility within a~ state that is not a member of a compact, specific low-level radioactive waste is based on an immediate and serious threat to:-
-(i ) thepubiichealthandsafety.or. I (ii) the common defense and security; (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in 662.13 .
(3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access is requested is low-level radioactive waste as defined in this Part and a State responsibility under Section (3)(a)(1) cf the Low-Level Radioactive Waste Policy Amendments Act of 1985.
RESPONSE: This comment recommends a few changes to the language and a j few additions to the procedures for making a determination for granting ]
emergency access under Section 62.21. The Act very precisely sets out ]
l the process to be followed for making a determination and NRC developed .
the proposed rule to incorporate that language. NRC decided to I incorporate a part of one of the changes recommended in this comment but rejected the others because they departed from the process Congress set j out in the Act.
(1) Section 62.21(a) of the proposed rule specifies, "the Comission !
shall make a determination that..."
i 1 .
L_-__.______________-___-____-__________---___________ _ _ _ _ _ _ _ _ _______
1 21
{
I i
- The comment recommends ", the Commission shall make a determination whether.. ." l 4
- Neither of these precisely duplicates the language of the l directive in the Section 6(c)(1), so NRC adopted the precise wording in the Act. Section 62.21(a) of the final now reads ", j the Commission shall determine whether..." j 1
1 Other changes proposed in the Comment include j j
(2) Replacing " 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..." with ... "The request j for emergency access to a regional disposal facility or a facility within a State that is not a member of a Compact, for specific l
low-level radioactive waste is based on an immediate and serious l threat to:," (differences are underlined for emphasis) l 1
(3) The addition of items 3 and 4, neither of which are part of the Act I where the determination for granting emergency access is discussed.
NRC did not make either of the changes discussed under (2) and (3) above because they do not track the language of the Act and serve to alter the j meaning we believe was intended by Congress.
l l
Comment 5.19 662.22 Add a new $62.22(d) as follows:
"(d) Any grant, denial, or refusal to consider a request for emergency access or temporary emergency access under this Part is a final agency action."
If the request is indeed based on an immediate threat, and the decision is challenged, then prompt judicial review is necessary to resolve the issue.
l l
L______________________
t 22 Clarifying that a grant or refusal is a final agency action may' remove potential obstacles to obtaining prompt judicial review.
RESPONSE: (To be provided by Chip Cameron.)
1 Comment 5.20 !
662.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under'the circumstances," in this subsection.
Subsection (e)(1) provides that the Commission, in making an emergency access i determination, will consider whether the applicant "[h]as demonstrated that'a '
j good faith effort was made to identify and evaluate alternatives that would )
1
} mitigate the need for emergency access." IDNS submits that~ subjective good f faith should not be sufficient. The effort must be objectively reasonable and diligent.
RESPONSE: NRC agrees that the phrase " good faith effort" does not convey the same meaning as " diligent effort." However, NRC decided not touse"diligenteffort"because"diligenteffort"was'usedin6(e)of the Act in specific regards to requests .for extensions' of' emergency q access only. NRC did not want to compromise the legislated use and 1 meaning of the phrase by using it in discretional y text in the proposed rule. NRC agrees that " good faith effort" could be improved, but the i l
Commission does not believe " reasonable under the circumstances" captures j the sense correctly either.
NRC has changed 62.25(e)(1) in the final to read "(1) has identified and evaluated any alternatives that could mitigate the need for emergency access." NRC believes this is an improvement over the original language and is consistent with the precise language in the Act regarding the requestor's responsibilities towards identifying alternatives.
i i
~23 l 1
Comment 5.21 A new 962.26(b) should be added as follows: l (b) If the Commission designates a regional disposal facility to.
receive the waste for which emergency access.has been granted, the ;
Commission shall request the approval of the Compact Commission for the )
designated regional facility. The request for approval shall include the entire administrative record of the request for emergency access under this Part, including the reasons for the Commission's findings.
No grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Commission. !
Section 6(g) of the Amendments Act provides that: i I
"any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal i facility is located for such approval as may be required under the terms of its compact."
This requirement of the Amendments Act has not been incorporated in the. rule.
While the effect of a refusal by the Compact Commission to allow emergency access is not clear, the NRC may not, by rule, remove this option-from the Compacts. IDNS also notes that this option applies only to regional disposal facilities, and that the Amendments Act makes no similar provision for non-federal, non-regional facilities, i
RESPONSE: This comment correctly states that NRC did not reflect the Section 6(g) provision in the proposed rule. Based on the legislative history for both Section 6 of the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact Act which was passed with the Act, NRC believes that disapproval is not really an option for the Regional Compact Commission q in which the designated emergency access disposal facility would be located. NRC has interpreted the approval specified under 6(g) to be somewhat pro fonna. So the Commission did not believe it was necessary to make the Compact Commission's approval part of the formal emergency access process. This position was explained under the discussion of Legislative History in the preamble to the proposed rule. While
disapproval may not be an option under the Act, clearly the Act intended the receiving Compact Commission to be fully informed regarding the emergency access decision made by NRC and the Comission believed the Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section 62.22 of the proposed rule provides that NRC will notify the Compact Comission of the State in which the designated disposal facility is located that emergency access is required. It further provides that "the notifications must set forth the reasons that emergency access was granted and 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 the public health and safety or the common defense and security."
It appears that the commentor does not believe this is sufficient. In response to this comment NRC has made the following change in the final rule: A new 62.22(b) is added which requires the NRC to submit this written determination to the appropriate Compact Commission as part of the notification. The Sections 62.22(b) and 62.22(c) in the proposed rule have been relettered as appropriate.
The new 62.22(b) reads: "The Secretary of the Commission will submit the notification described under 62.22(a), and the written determination described in 62.21(c) to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its compact. Any such Compact Commission shall act to approve emergency access not later than 15 days after receiving notification."
In order to accommodate the 15 day approval period, NRC has added the following to the end of 62.22(b) of the proposed rule "... issuance of a determination, indicating it will be effective 15 days after the date the determination was issued,"
25 !
Comment 5.22 j 662.27 Add a new S62.27,.as follows:
"S62.27 Compliance with conditions of emergency access; termination of I
(
emergency access. 1 (a) The operator of a regional _ disposal facility or a non-federal ]
disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(b) The Commission shall terminate a grant of emergency access when 1
emergency access is no longer necessary to eliminate'an immediate threat to public health and safety or the common defense and security.
(c) The Commission may terminate a grant of emergency access if an applicant has made a material false statement in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
The proposed rule does not address termination of emergency access. Further-more, under the rule as proposed it is not clear that a state or compact could refuse to dispose of waste granted emergency access even if the applicant or the wastes did not meet the conditions of disposal set by the '
Commission.
l RESPONSE: The Commission agrees that terms and conditions should be j established in the rule for grants of emergency access. For the reasons I given in the comment, NRC has added a new Section 62.27 to the final rule which incorporates the suggested conditions for termination as recommended in this comment, along with the terms and conditions which the recipient is expected to meet. The new 62.27 readg 62.27,TermsandConditionsforEmergencyAccess)(a) General:Any j
'LLW granted emergency access pursuant to this rule is subject to the general requirements for LLW disposal under 1
=____________-__-__________-
26 i
the Act, as well as those' provisions which specifically.
. address emergency' access. Once the NRC has' granted emergency access the waste of concern should be processed and disposed of by the generator and the designated receiving site in a manner that is consistent with other LLW disposed of under the terms of the Act. The disposal of-
' emergency access waste should not preclude the-implementation of any ' specific conditions, regulations, requirements, fees, surcharges, or taxes prescribed by the
!. disposal facility which make in effect at the time of the l
Commission's determination to grant emergency access.
Additionally,-generators with wastes approved for emergency-access should not have to meet unusual requirements or' pay !
unusual fees (when specified in.the Act) simply because their waste is emergency access waste.
(b) Compliance with conditions of emergency access; termination ..
of emergency access.
(1) The operator of.a regional disposcl facility or a non-federal disposal facility designated'by the Commission to provide emergency access may refuse to accept the wastes i
! for disposal if the applicant'or the waste does not meet conditions set by the Commission pursuant to this Part.
i l (2) The Commission shall terminate a grant of emergency l
. access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
(3) The Commission may terminate a grant of emergency access if an applicant has made a material false statement in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
I
27' Comment 5.23 Miscellaneous Comments and Questions-S62.6 Specific-Exemptions The provisions of this section would allow the Commission to bypass all of the procedures of the emergency access rule by granting special. exemptions.
Why is this section necessary? Under what circumstances would NRC grant special exemptions. What assurances do states and compacts have that this exception will not, in practice', become'the rule?- This provisions should be deleted.
l RESPONSE: Provision 62.6 is not intended to allow NRC to arbitrarily bypass the procedures that will be established by the emergency access l rule. It is impossible for the Commission to anticipate every situation under which emergency access may be requested or needed. The Commission believes the procedures and criteria established in the proposed rule would accommodate most circumstances and scenarios. However, in the event that something u' n anticipated requires action ommission may have to apply its discretion and grant an exemption. Provision 62.6 is-included in the Part 62 only to acknowledge the Commission's overriding mandate to protect the public health and safety and the common defense and security and to provide the flexibility it may require in dealing with emergency access decisions to meet that mandate. Provision 62.6 l
remains unchanged in the final rule.
1 Comment 5.24 S62.11 Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Commission's Public Document Room and in the " Local Public Document Room of the facility sub-
, mitting the request." A request for emergency access could be submitted by any Governor or any generator of low-level radioactive waste' What is the .
source of the requirement that all such persons maintain local public document rooms?
l l
l.
1 L_____-________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
28 J RESPONSE: There is. no-requirement that a given generator or Governor' i specifically maintain a. local pub.lic document room for documents relating to. emergency access requests. Usually there isLa " local'public document room," however distant it may be, that' maintains documents of public interest for every NRC or' Agreement State licensed facility. Provision 62.11 was included in the proposed: rule.in. order.to assure that documents relating to emergency access decisions would be made q l
available, as conveniently as possible, to concerned members of the. -f public. i l
'l Comment 5.25 '!
S62.23 Determination of Granting Temporary Emergency Access .
.I This section provides' for. the granting of' temporary emergency access to j
...an appropriate non-federal disposal' facility or facilities..."- The -
~
provisions in Section 6(d) of the Amendments Act which pertain to temporary emergency access do not distinguish between non-federal disposal facilities and regional disposal facilities. Does the NRC propose to limit temporary
]
]
emergency access to non federal facilities in' order to avoid ~the provisions.
of Section 6(g) of the Amendments Act, pertaining to approval by a Compact' ,
Commission? I 1
RESPONSE: The exclusion of " regional' disposal facilities" was an i oversight on the part of NRC. The final rule has been revised to !
include regional disposal facilities as recipients of temporary emergency access waste.
[. . . - -
29 B.6 Comment Letter #6 -- Faith Young, Tennessee Resident Comment 6.1 Only commercial wastes should be eligible for emergency access since the dumps are developed for that purpose.
RESPONSE: Sc; responses to Comments 2.1, 2.2 and 5.6.
Comment 6.2 NRC must respect state or compact dump restrictions (including no greater-than-class-C waste).
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6. '
Comment 6.3 Please register these as firm requests in your comment considerations and inform me of the outcome.
i RESPONSE: Noted. No comment necessa;y.
_ _ _ _ - - _ _ - _ - . _ - - -a- -- - - - - - - - -
l 30 B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident Comment 7.1 The rute has a basic flaw: The Federal Government and the NRC is regulating 3 a State function or at least a Compact function. This is an obvious .)
infringement of State's rights and an infringement which has both' financial l and health impacts. The compacts are state engineered agreements. The LL radwaste dump is a State or compact administrated facility. The Federal ,
government and the NRC has less than any right to regulate when a site will
.be opened up to out of compact wastes. {
RESPONSE: When Congress passed the original law called the Low Level Radioactive Waste oli{cygtof1982,itmadeeachstateresponsiblefor providing its own lbw-Tevel radioactive waste (LLW) d':;:::' ' r i generated within its borders. State responsibility for LLW disposal was q reconfirmed in 1985 when Congress passed the Low-Level' Radioactive Waste Act Amendments (The Act). In the Act, Congress also conferred certain regulatory or administrative responsibilities to both the Nuclear Regulatory Commission (NRC) and the Department of Energy (D0E). One of the responsibilities conferred to NRC was to grant requests for emergency access under the provisions of Section 6 of the Act. As stated in the preamble for the proposed rule, Congress believed if the states / compacts with LLW disposal sites denied other states / compacts access to their facilities, the public health ano safety cculd be seriously jeopardized. NRC was given the authority to override such decisions to assure that the public health and safety would be protected. NRC does not intend to use grants of emergency access to interfere with the States' operation of their LLW facilities except as l is necessary pursuant to its responsibilities under the Act to protect public health and safety. (See also44 re,sponse to Comment 7.5.) i l
Comment 7.2 Also the sites have been carefully designed for what the State compact expects. Allowing unplanned westes in will hurt the financial and planning l picture for the particular compact. Implementation of the emergency access l
31.
provision should not force unplanned quantities or kinds of wastes.on.the states with operating LLW disposal facilities and should not create financial problems either.
RESPONSE: 'The Act sets upper limits on the number of cu.ft. of LLW that are to be accepted by each facility through 1992. The amount of LLW granted emergency access is to fall within those limits. In addition, as discussed in more' detail in Comment ~1.2, waste granted emergency.
access will have to meet all.the requirements and conditions for routine LLW disposal established by the facility. designated, including the payment of appropriate fees, taxes, surcharges, etc.
Comment 7.3 States are also very worried about having to take D0D and DOE wastes.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 7.4 Also many compacts are not planning on large amounts of Class C wastes.
RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 7.5 All the above and more make this rule very premature and ill-conceived.
Please retract this rule for good and abundant cause. Let the non-Federal and the Regional authorities regulate their own access. This is an area which the Federal authority and the NRC should not get into. !
RESPONSE: NRC did not propose the emergency access rule without due cause. As is explained in the preamble to the proposed rule, NRC is required by law (Section 6 of the Act) to make emergency access determinations.
1
32 In that same law Congress specified the conditions that must be met by persons requesting emergency access, the factors NRC is to consider in making its determinations and establish the terms of grants of emergency access. The proposed 10 CFR Part 62 serves to codify the requirements in the law and NRC has tried to assure that the rule assumes no responsibilities for the NRC which were not mandated. (See also response to Comment 7.1).
l l
I 1
33-I B.8 Comment Letter #8 -- William Gold, Lorraine Gold (citizens, New Jersey) 1 Comment 8.1 It has come to our attention that the NRC is authorized by the NRC to super-sede state and compact rights in situations where the NRC deems the
" disposal" of waste from outside the region or state to be'an emergency.
It is of primary importance to the whole concept.of compact and state ' dump siting that this emergency authority be used only'as a last resort, when clear danger to the public is' evident.
RESPONSE: The Commission agrees and so stated in the discussion under
~
Legislative History in the preamble of the proposed rule.
Comment 8.2 Further, only commercial waste and not waste from the Departments of Energy or Defense should be eligible for Emergency Access,-since these sites are being developed for commercial waste only.
RESPONSE: See responses to Comments 2.1 and 5.6. l l
Comment 8.3 Regulations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or compact dump.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 8.4 All criteria and restrictions on types of nuclear waste acceptable at that state or compact's dump should supersede any NRC order.
RESPONSE: Criteria and restrictions at disposal facilities are to be considered and accommodated in NRC's decision to designate a site and in
34 any disposal of emergency access waste. (See response to Comments 1.2, 5.5)
Comment 8.5 Some states may choose to store nuclear waste rather than " dispose" of it, since the technology to dispose of nuclear wastes is still experimental. The rules should state that the NRC cannot force out-of-region waste to go to those sites. -
RESPONSE: NRC cannot force a state to dispose of emergency access LLW at a facility designed for storage. (See the response to Comments 2.3, 3.3, and 10.5) l l
35 ,
i i
B.9 Comment Letter #9 -- Jon R. Montan (St. Lawrence County Environmental Management Council) J Comment 9.1 The recipient facility should be allowed to collect fees at levels sufficient to pay full expenses associated with the long-term operation and maintenance l costs of the facility for any wastes that are received under direction by the i Nuclear Regulatory Commission.
RESPONSE: NRC believes this statement expresses the intent of Congress j
\
regarding disposal fees and has a? plied this interpretation in develop-ing 10 CFR Part 62. To clarify the financial responsibilities of the person granted emergency access, NRC has added a new "62.27: Terms and Conditions of Emergency Access" to the final rule. (See also Responses l to Comments 1.2, 5.5, and 8.4) l i
l Comment 9.2 1 The references in Section 62.25(d)(1) and (1) to activities generating wastes being "necessary for the protection of the common defense and security" are cryptic. What are examples of such activities by the Department of Energy and Department of Defense and what are the types of waste which could be involved?
RESPONSE: (use in combo with exclusion in Act & scenarios developed previously)
Comment 9.3 The Council members also wanted to express their concern that the states in which recipient faiclities 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.
.l 36 1 l
i
-f RESPONSE: NRC does have the authority.to overridethe sited States / '
Compacts to grant emergency access'because Congress decided that establishing a achanism for such an' override would be in tle blic interest. As indicated in the discussions in the M _f r the proposed rule, Congress expected that responsible. action from the -3 generators and the. States / Compacts should result in the' resolution of. O most access problems;outside the' emergency access process, so that-
~
hopefully NRC would not have to.'get involved in something that.is really.
the States' responsibili.ty. (See also responses to Comments',7.1 and
~
)
7.5) I
^
.1 l
1 i
j 37 ..
B.10 Comment Letter #10 -- Anne Rabe, Executive Director NewYork Environmental Institute (Lobby Group)
Comment 10.1 We are writing in regard to 10 CFR 62, 52FR240:47578 on the proposed rule by NRC to force compact and state " low-level" radioactive waste dumps to. accept out-of-state and federal nuclear waste in " emergency" situations.
]
RESPONSE: See the responses to Comments 7.1 and 9.3. j Comment 10.2 New York State law (the Low-Level Radioactive Waste Management Act of 1986) specifically prohibits federal wastes, such as Department of Energy wastes, at any New York State " low-level" radioactive waste facility. TMre. are a number of DOE FUSRAP sites, with long-lieved high-level waste, irdew York which curre.'ly are being cleaned up or temporarily stored. Wearbaware that DOE ho: : $proached New York requesting access to its " low-level" radio-active waste facility for certain DOE wastes (such as U-238 and U-235 at the former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ- I mental Conservation disapproved this request and the subsequent law upheld the state's policy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wastes.
RESPONSE: None nececsary.
Comment 10.3 To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste Policy Act which' supports compacting and state's rights. The NRC is directly threatening the state's authority to exclude wastes.
RESPONSE: 'As indicated in the preamble to the proposed rule, the amendment to the Low-Level Radioactive '4aste Policy Act direct NRC to i
38 designate LLW disposal facilities to receive emergency access waste. 1 (See responses to 7.1, 7.5, and 9.3)
Comment 10.4 For states to accept federal wastes will-in many cases cause the state's management of facilities (in terms of storage / disposal capacity, etc.) to be radically changed. How will states / compacts be able to adequately plan and manage their facilities with the threat of NRC emergency declarat'ons forcing substantial amounts of waste on them at anytime?
At the very least, the NRC should change the rules to: 1) Require strict adherence to state / compact requirements, including allowing only commercial
)'
wastes (not federal) up to Greater than Class C waste.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 10.5 Other state restrictions on 100 year hazardous life, or only Class A, B or C wi.stes, must be strictly adhered to by NRC.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
i l
Comment 10.6 l
1 Lastly, states which choose to store rather than dispose of wastes should not ;
be forced to accept any wastes. 1 1
RESPONSE: See responses to Comments 2.3, 3.3, and 8.5.
Comment 10.7 Also, the term " emergency" is no assurance at all - the federal government 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
[
39 L
i production has caused the " emergency" in the first place. States should not l have to bail out the Federal government.
i RESPONSE: 'NRC / not believe Congress intended the. emergency access provision wou' serve to require States to " bail out the' Federal government." As is explained in responses to Comments 2.1, 5.6, and _
14.2, through Section 3(a)(1) of the Act, Congress gave States.the responsibility for disposal of specific classes and types of LLW. Some of that waste is generated by the Federal government, but because that fact is all' laid out in the Act, the States should be well aware'of what
" Federal government" LLW's they will or won't have to take. There are federally operated LLW disposal facilities and in an emergency involving
~
LLW's that are the Federal government's disposal responsibility,'NRC anticipates that the Federal facilities would be available to provide necessary disposal for wai>tes that-are not the State's responsibility.
Comment 10.8 In closing, we call on the NRC to withdraw the prbposed rule in~ its entirety and to establish a comprehensive storage and reduction of production program which will ensure that no emergency will exist for federal government wastes.
RESPONSE: Most of the provisions included in the proposed emergency ,
access rule came directly from Congressional mandates in Section 6 of the ct, so the requirements for NRC.to make emergency access determinations would remain even if NRC were to withdraw the rule. As far as establishing a comprehensive storage and reduction of production program is concerned, such programs and related decisions are not among NRC's responsibilities, i
40 B.11 Comment Letter #11 -- David Woodbury, President, American College of Nuclear Physicians Comment 11.1 We are writing on behalf of the American College of Nuclear Physicians and the Society of Nuclear Medicine regardine the NRC's proposed rule to estab-lish 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 technol-ogists dedicated to the overall advancement of Nuclear Medicine and'has major interests in the scientific, educational and research ac+ivities 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 formath of !
compacts and siting of disposal areas following the passage of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (LLRWPAA).
During congressional deliberations on the LLRWPAA, the College and Society '
testified on several occasions in support of the emergency access provisions for generators of biomedical waste to LLW disposal facilities. Because access to disposal facilities is critical for the delivery of health care services, we strongly supported the enacted emergency access provisions i l
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 I Nucl: Medicine procedures or radiopharmaceutical production.
l The medical applications of radioactive materials are not just a matter of J im90rtance to the specialty of Nuclear Medicine, but to the entire medical as a whole. While an estimated 120 million Nuclear Medicine procedures L.si.c 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 research is dependent on radioactive tracers, and approximately 95% of all the prescription drugs in America are developed with the use of radioactive
R i
41 I l
l l
\
tracers. It is clear, then, that radioactive materials permeate every aspect l l of medical practice. l RESPONSE: No response necessary.
l l
Comment 11.2 l Disposal capacity for LLW generated by the manufacturers of radiopharmaceuti-cals is just as important, if not more, than disposal capacity for direct generators of medical LLW (i.e., hospitals, laboratories). We would urge the Commission to consider that on-site storage, while a feasible alternative in ,
some situations, may create problems for others. For example, today, most hospital and laboratory waste is subject to volume reduction and on-site storage and decay, as is evidenced by the fact that in 1986, medical waste I accounted for only 1.3% of the total volume of LLRW received at disposal sites (and only .0001% of the total activity). Unfortunately, however, in the case of lost access, the manufacturers of radiopharmaceuticals on which 1 i
the Nuclear Medicine community depends would not be able to accommodate i on-site storage because their higher-activity materials would conceivably exceed available on-site storage capacity within one to six months. l l
In addition, we would like to draw your attention to the fact that on-site storage may not be feasible or desirable for larger volume and activity generators in academic research institutions and pharmaceutical houses i because of the possession limits specified in the generators' licenses. For example, if most of the generator's possession limit is consumed by the l activities present in the waste stored on-site, then obviously there would be less radioactive materials available for important research or pharmaceutical development. 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, all of the medical activities using these materials would cease or be significantly curtailed.
RESPONSE: In the legislative history of the Act, Congress acknowledged the special LLW storage / disposal problems of the manufacturers of
42 radiopharmaceuticals. The proposed and expressed concern that essential ;
medical services might be curtailed if access to LLW disposal were not available. NRC is aware of these Congressional concerns. As indicated in the proposed rule, in order to determine if emergency access should be granted, NRC intends to consider both the threat to the public health and safety if access is denied and also the impact on public health and j safety if essential medical services would have to cease as an alter-native to granting emergency access.
Comment 11.3 The College and Society raise these fine points on possession limits and on-site storage so that the NRC recognizes the delicate balance tastween the medical community's ability to provide necessary health care services and the availability of adequate LLRW disposal capacity.
! RESPONSE: Noted.
Comment 11.4 We agree with the Commission and the Congres that emergency access should not be used as an alternative to diligently pursuing the compacting and siting !
processes mandated by the LLRWPAA. We also agree with the NRC that emergency access provisions are necessary as a contingency in tne event that access is denied or is unavailable, so that important health care services and research ;
can continue uninterrupted.
l l RESPONSE: No response necessary.
Comment 11.5 In conclusion, the College and Society support the emergency access l provisions of the LLRWPAA and the NRC's efforts to establish procedures and criteria for granting such access. We hope the Commission will bear in mind l
the unique characteristics of LLRW generated by medical institutions and
{
radiopharmaceutical manufacturers and the necessity of access to disposal for '
43' the provision of vital medical care services in this country. Please feel free to consult with us if you require further information or assistance. 3 RESPONSE: Noted.
l I
l 1
i i
l 1
1 l
l
'l
- - - _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ]
, i 44 B 12 Comment Letter #12 -- Kathy Lyons, Concerned' Citizen,'New Hampshire 1
Comment 12.1 I wish to comment on the Low-Level Radioactive Waste. Policy Act in which NRC has the right to force unwanted waste on state dumps. ]
- I RESPONSE: .None necessary. 1 i
Comment 12.2 $
Please,'in doing so consider this: -Do not give us federal waste (D0D'or -i 1
DOE),
)
RESPONSE See response to Comment 2.1.
i Comment 12.3
'l
...and do not give us waste outside.of our Class, that's not acting '
responsibly.
RESPONSE: See response to Comment.2.2.
Comment 12.4 Also, please keep in mind that state dumps couldn't handle waste with long half lives and that some states may not have compatible wastes dump practices.
-RESPONSE: NRC cannot force'a state LLW disposal facility to accept LLW that is incompatible with its license agreement. (See responses to comments 7.1,7.2,7.5,9.3) i i
.i 4S i B.13 Comment Letter #13 -- E. Nemethy,-Secretary, Ecology Alert Comment 13.1 Although the Low-Level Radioactive Waste Policy Amendments Act of 1985 doesn't require NRC to develop a rule, we agree your doing so is an' excellent' l idea.
I
~
1 l But we feel the proposed rule could stand a bit of tightening. l l
RESPONSE: None-needed. 4 1
1 Comment 13.2 .j q
Section 62.6 - We' question the need and advisability of making any Specific '
Exemptions. It seems to us this-lends itself to the granting of too much leeway by NRC - and possible ab'use. .i RESPONSE: (See response to Comment 5.23)
Comment 13.3 Section 62.11(b) - The provision that you'll publish notice of requests; received in the Federal Register, then allow 10 days for public comment', is ridiculous.
Probablynotonein20,000membersofthegeneralpublicever[seesthe Federal Register. If you want to notify them, you should publish such notice as a news release.(not a legal advertisement) in a newspaper of local iircu- ,
lation, and allow a comment period of at least 20-30 days.
RESPONSE: NRC recognizes that a 10 day public comment period is unusually short. However, the alternatives were a shorter comment period or no comment period at all, and both of those were unacceptable to the Commissioners. The Act does not require NRC to provide a comment period on requests for emergency access, probably because the Act
(
3 46 .
1
. . 1 provides NRC only 45 days .to review a request and determine if emergency l' access should be granted. Nevertheless, the Commission believes that the public should be notified when emergoney access is requested and should have some ' opportunity for input into NRC's decisionmaking process. The Commission decided that a 10 day public comment period would, to a limited extent, meet those objectives and still hopefully allow NRC to complete its review in the. allotted time. The Commission concluded that.a. longer public comment period would likely preclude a - ;
timely response on the part of NRC. ,
1 i
Comment 13.4 Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be I included in the category of low-level waste?
RESPONSE: Section 62.12 sets out the information required by in order l to decide whether or not emergency access should be granted. The presence of transuranic in the waste would affect the Commission's dec. i sion. j Comment 13.5 l
Section 62.23 - Before granting temporary emergency access, why not allow a
(
10 day waiting period, so possible alternatives may be considered? I We feel this provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration.
RESPONSE: The sequence of events for grantirg temporary emergency access is established in the Act. Section 6(d) of the Act provides that "upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the common defense and security, the NRC may, at its discretion, grant temporary emergency access, pending its determination whether the threat could be mitigated by any alternative consistent with the public health
1 47-i and safety." The Commission has. interpreted this to mean that when NRC q concludes there is an urgent need for access to disposal in order to- l protect the public health and safety or the common-defense and. security, j NRC can grant a request for. temporary emergency ~ access'for no more than .
45 days, while possible alternatives to disposal are. evaluated. NRC' j does not'have to grant requests for temporary emergency access, .
particularly if a request is made because a generator failed.to plan.for ]
obvious or routine disposal needs. .NRC will always have.the option of l denying emergency access or encouraging a' requestor-to' cease generating j such waste. ,
1 Comment 13.6 d
. Section 62.24(b) - Re: extsinsion of emergency access, this.says the require-ments of Section 62.21(c) and (d) must be followed. There is no Section 62.21(d).
1
'i RESPONSE: The typographical error noted in-this comment has been corrected. 1 l 'l
\ \
l l Comment 13.7 Finally, under Specific request for comments, you ask what should NRC do if I no site is found to be suitable for emergency access? i We suggest you then require the operator to cover the pile of low-level waste with lead shielding, topped with enough soild to stop radiation from escaping.
Response: Noted.
48-B.14 Comment Letter #14 -- Diane D' Amigo, Nuclear Information and Resource Seivice Comment 14.1 Although the intent is that NRC use its Emergency Access authority only as a j last resort, the danger is present that states could be required to take '
i waste they choose to exclude. This loophole in the 1985 Low-Level t Radioactive Waste Policy Amendments Act threatens states' authority to-exclude waste.
a i
We have very serious concerns with the emergency access provisions but under- j standing that NRC'is not in the position to change the federal law, we submit )
the following suggestions to make the regulation as strict as possible and to' guarantee, to the greatest possible extent, that the provision not be abused.
RESPONSE: None necessary.
Comment 14.2
- 1. Clarify that Federal waste (at least that for which states'and compacts are not currently responsible) is not eligible for emergency access.
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 that should be eligible for Emergency Access. The rule should clearly prohibit Federal waste (ex: waste from Departments of Energy or Defense). There are two places in the regulation which indicate that such wastes could be given emergency access. They are in Section 62.2, the definition of " person" who can apply for emergency access ;
and in Section 62.13(a)(5) which gives a condition for " Federal and defense related generator (s) of LLW" to meet in their " request for emergency access."
First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive officer on behalf of "any generator or generators of low-level radioactive waste located in his or her
49 ;
1
" State..." Such generators could include generators that are not NRC or NRC Agreement State licensed. We would like to see provision made to clearly prohibit DOE and D00 and other federal agencies and contractors from gaining access to state and compact dumps via emergency access. ;
1 i
Second, Section 62.13(a)(5) (which appears misprinted as 82.13.in.52 FR240:
47587 December 15,1987) requires that Federal or 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 requirement is I essential.
Both the definition of " person"'and Section 62.13(a)(5) should clarify that only those Federally generated wastes' for which states are already responsible (as defined in the 1985 Low-Level Radioactive Waste Policy Amendments Act Section 3(a)(1)(B)) are eligible for emergency access. This excludes Department of Energy waste and U.S. Navy waste from decommissioning Navy vessels and any nuclear weapons research, development, testing or production waste. That waste should be clearly excluded from eligibility for emergency access.
RESPONSE: As discussed in responses 2.1, 2.2 and 5.6, NRC intends only to grant emergency access to LLW that would otherwise be eligible for routine disposal at regional or state disposal facilities according to the terms and conditions of the Act. NRC does not intend for emergency access to be used by ineligible parties or for ineligible wastes as a ]
means of acquiring access to LLW disposal. In the proposed rule, NRC was silent on this particular point, assuming that it would be clear in the context of the other provisions of the Act. It is now obvious to the NRC that the intention must be specifically addressed in the final rule to reduce concerns the States or public might have that emergency access will provide a mechanism for undesired and unplanned for wastes to access their sites.
I
i 50 In direct response to this specific comment, the definition for " Person" has been revised in the final rule to read " 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 a low-level radioactive waste which was designated the States' responsibility for disposal by the Act; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any NRC or NRC Agreement State
. licensed generator or Generators of low-level radioactive waste located in his or her " State" which was designated the States' responsibility for disposal; or their duly authorized representative, legal successor or agent." Section 62.13(a)(5) was also revised in response to this comment and in the final it reads "..., (5) requesting disposal at a Federal low-level radioactive watse disposal facility in the case of a Federal or defense related generator of LLW whose wastes would normally be eligible for State or Regional LLW disposal under the Act." (In both cases the changes have been underlined here to facilitate review.)
Comment 14.3 Arguments against leaving the regulations open to Federal waste: (1) 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 generation of large volumes, concentrations, and numbers of curies in radioactive waste. We would encourage remedial action and clean up of many of those sites but can foresee the usual dilemma of where to put j the waste that is " cleaned up." Unless non-federal facilities are planning for such responsibilities, they should not be saddled with Federal waste, as i the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow.
RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
i
)
1 l 4
51 Comment 14.4 (2) Furthermore, D0D, 00E and other Federal waste is not currently classified as Class A, B, C or Greater-than-Class-C (C+), as is commercial waste. It will be difficult to determine whether Federal waste meets the license criteria for any non-federal sites that use the A, B, C, C+ method of categorizing " low-level" waste. Even if DOE relcassifies its wastes as A, B, C and C+, the source of such waste is much different than commercial waste and could pose technical problems which states and compacts are not considering in their dump planning.
RESPONSE: See responses to Comments 2.1, 5.6, and 14.2. 3 Comment 14.5
)
A potential concern here however, is that state and' compact 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 only non-Federal LLW disposal facilities eligible to l
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 I for taking on longer-lived and more concentrated wastes.
RESPONSE: Noted. No comment necessary.
I Comment 14.6 Although there are serious unresolved problems with this method (10 CFR 61.55) of classifying " low-level" radioactive waste, we understand that many states and compacts will likely follow those regulations.
RESPONSE: None necessary.
l
52 s i Comment 14.7 (3) There could be a conflict of interest if DOE and DCD waste are eligible for Emergency Access when they are providing NRC witt, the assessment of the.
impacts on the " common defense and security" of (a) accepting the waste for i emergency access, and (b) allowing the continued generation of the waste requiring emergency access. ]
i RESPONSE: NRC is aware that the proposed rule creates the potential for a conflict of interest in those situations where D0D or DOE is required to certify that a particular generator requires emergency access in oroer to mitigate a serious and immediate threat to the common' defense
.q and security. However, the preamble also. indicates that while NRC will
.l require such certification from DOE or 00D in order to even consider a
~
generator's request for emergency access on the grounds of a threat to. I the common defense and security, NRC plans to consider the ;
certifications but not to treat them as conclusive. Congress
]
deliberately gave NRC the responsibility for making the common defense )
and security determinations and the Commission intends to exercise this l
discretion in making its emergency access decisions.
Comment 14.8
- 2. States' and compacts' right to refuse waste that does not meet the speci-fications they are designed and licensed to accept should be strengthened.
RESPONSE: NRC is not in a position to strengthen the rights of States and compacts to refuse emergency access waste that doesn't meet the specifications of their sites. Both NRC and the States must work within the bounds established in the Act. However, as discussed previously in responses to Comments 7.5, 9.3, and 10.1, NRC believes the mandate from Congress in this area was quite clear. NRC does not believe Congress intended NRC to grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to receive them. So States should not have to be too concerned about the right to refuse wastes granted emergency access by the NRC pursuant to 10 CFR Part 62.
53 Comment 14.9 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 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 dumps have other restrictions such as prohibitions on wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those criteria and not grant access to waste that does not meet those criteria.
RESPONSE: According to the Limitations set out in Section 6(h) of the :
Act, regulatory restrictions on disposal at a site must be considered by NRC in making its site designation and as NRC has indicated in responses l
to Comments 2.1, 2.2, 5.6 and 14.1, NRC is committed to observing those limitations.
l i
l I Comment 14.10 2.A. Since state and compact " low-level" dumps are not required to accept f'
Greater-than-Class-C waste, the regulations should explicitly prohibit NRC from accepting applications for Greater-than-Class-C waste for emergency access.
i The definition of " Low-Level Radioactive Waste" in Section 62.2 should be i changed to exclude the waste (C+ and its equivalent) which is excluded from state responsibility in the 1985 Low-Level Radioactive Waste" definition is left as is for the sake of 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 make 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).)
RESPONSE: See responses to Comments 2.2, 5.6 and 14.2.
l l
L_-_____-_. _.
54 Comment 14.11
- 3. Incineration should not be required as a part of maximum volume reduction or waste treatment prior to NRC granting emergency access.
Compaction and supercompaction may be required and possibly other solidifica-tion treatments but incineration releases radionuclides into the environment, generates radioactive ash that must then be solidified and continues the !
process of generating more " low-level" radioactive waste. This rule should in no way require radioactive wasteAincin erd'cm .
I RESPONSE: The proposed rule does not require that LLW be incinerated
]
prior to NRC granting his waste emergency access. Provision (i) of the Emergency Access Section of the Act; " Volume Reduction and Surcharges" q
- requires that "any low-level radioactive waste delivered for disposal j under this Section (emergency access) shall be reduced in volume to the I maximum extent practicable." For the proposed rule, the Commission decided it would be worthwhile for NRC to evaluate the extent to which volume reduction methods or techniques will be or have been applied to to the wastes since the Commission is mandated to evaluate alternatives available to the generator and volume reduction is one of those alternatives. In the preamble, NRC listed incineration as one of the treatment technologies that the Commission would evaluate to determine if the emergency access waste had been reduced in volume to an extent consistent with the directive in the Act. The preamble further explains that NRC believes the optional level of volume reduction will likely vary with the waste, the conditions under which it is stored, and whether volume reduction processing creates new wastes requiring treatment or disposal (as would be the case for incineration). NRC anticipates that decisions on adequate volume reduction will have to be .
I made on a case-by-case basis. The Commission does not expect that one '
particular approach will be maximally effective in all cases, so the rule does not prescribe any particular method as a must to achieve maximal volume reduction. Rather, the Commission will be looking to see that available volume reduction techniques, including incineration, have been thoroughly investigated by the requestor as possible alternatives to requesting emergency access. Incineration may be attractive to one 1
55' generator as an alternative but n'ay pose serious difficulties for another. Whatever the decision, incineration should be addressed and the rationale for the decision should be explained in the analysis of alternatives that is to be part of a request'for emergency access.
Comment 14.12
- 4. States'and Compacts that are required to accept emergency access waste should be permitted to charge fees and surcharges on emergency access waste and to enforce regulations and criteria that they determine are'necessary for responsible isolation.of the waste from the environment and to hold the generators liable for long-term care costs.
RESPONSE: See the responses to Comments 14.7; 5.6, 8.4,.and 9.1.
Comment 14.13
- 5. We encourage NRC not to weaken any of the requirements for Emergency Access applicants.
RESPONSE: Noted.
I 1
I l
l O____---_-_-______---_-_=_--_--_-_-_--_------- - - -
'l!
56 B.15 Comment Letter. #15 -- Hannah Katz, Concerned Citizen, N.Y.
Comment 15.1 I hear that your Commission may consider to send greater-than-Class-C waste j to any state or compact dump. Though it is said, "in emergency only," nobody )
doubts that such emergencies will happen frequently as long as you produce I weapon grade plutonium.
- l RESPONSE: The emergency access rule applies only to LLW, which for the' !
most part is generated by utilities with nuclear reactors, hospitals, i and research facilities. Weapon grade plutonium is not considered.to be L low-level radioactive waste and would.not qualify for emergency access to LLW disposal facilities under the Act. Also,'under Sec. 3(a)(B)(iii)
LLW owned or generated as a result of any research development, testing or production of any atomic weapon is deemed not to.be eligible for disposal at State LLW disposal facilities.
Comment 15.2 I urge you to reconsider such interference in the rights of states end of citizenry.
RESPONSE: The NRC is not trying to interfere with the rights of states by proposing this rule. The NRC was mandated by Congress to make detenninations on requests for emergency access to LLW disposal facilities in order to protect the public health and safety. The NRC's emergency access rule will only be implemented when a generator or a state requests LLW emergency access disposal assistance from the NRC.
1 Comment 15.3 l
Clean earth, clean water, and clean air are essential for life and more I important for healthy citizens than weapons whose production contains deadly radioactive waste. Your consideration in favor of human beings will be ;
appreciated. Thank you.
RESPONSE: Noted. '
57 B.16 Comment Letter #16 -- Donald Hughes, Sr. Manager, Kentucky Radiation Control Office and Commissioner of the Midwest Compact Comment 16.1 The Kentucky Radiation Control Program would like to make its wishes known, relative to the above referenced proposed rule, by totally supporting the comments provided by Terry R. Lash, Director, Illinois Department of Nuclear i
Safety, in a letter (attached) submitted to the U.S. Nuclear Regulatory Commission dated February 11, 1988.
I Rather than reiterate the various comments contained in the attached letter, we feel that Dr. Lash's comments are not only reasonable but fully justified. j Not osity does he agree with much of the proposed rule but he points out f
errors that must be corrected.
1 RESPONSE: Noted, i
I Comment 16.2 l In addition to managing the Kentucky Radiation Control Program, I also serve as Commissioner on the Central Midwest Compact Commission. As Dr. Lash stated, the state of Illinois is presently engaged in the process of selecting a site for the proposed low-level radioactive waste disposal facility and the Central Midwest Ccmpact 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 stateinents will dramatically effect how low-level radioactive waste disposal facilities can function.
l RESPONSE: None necessary.
58 B. 17 Comment Letter #17 -- 1illiam Dornsife, Bureau of Radiation ,
Protection, Pennsylv'ania l
Comment 17.1 This proposed rulemaking has several major flaws that if not' corrected could potentially act to undermine the substantial progress that has been made to date on implementing the Low-Level Waste Policy Amendments Act of 1986.
RESPONSE: None Necessary.
Comment 17.2 1 First and foremost, this proposed rule appears to violate the entire p.emise '
of the Act, that each State is responsible for disposal of its own low-leve.
radioactive waste. The rule should require that the State or Compact where i the problem is located must demonstrate that it has exhausted its options for !
dealing with the problem. This should include the attempt to enter into reciprocal agreements with other States or Compacts, or the State taking title to and storing the waste until access can be provided under the normal terms of the Act.
, RESPONSE: The Commission drafted the proposed rule fully intending that the StD es and Compacts whose generators have been denied access to LLW j dispo:3. would share in the responsibility for identifying or providiag i alternatives to emergency access. In fact, the NRC's understanding was that several of the alternatives listed in Section 63.13, specifically
"(2) storage of low-level radioactive waste in a licensed storage facility," and "(3) obtaining access to a disposal facility by voluntary ;
) agreement," were actually State or Compact alternatives. In reviewing l
l the proposed rule, it has become evident that the NRC's expectations for j the Stater and Compacts to also exhaust their options for dealing with )
the problems caused by denial of access were not adequately conveyed. l As a result, the Commission has made the following changes to 62.13(a), )
(a)(b&8) and 62.13(b): (See the response to Comment 17.2 for changes) l l
1 l
L_---_---------------------------_ ---- ------ ---
59- l 1
-l ;
In addition, a discussion of.the States'/ Compacts' responsibility in this area has,been added to.the preamble.
Comment 17.3
. i It appears as if waste which is~not a State responsibility under the Act (i.e., DOE waste) could be included under the emergency access provisions.
We do not believe that this was the intent of Section 6 of the Act. We find )
it hard to believe that'the Federal Government, with all its infinite l resources, should not be first and only party responsible for disposal of this waste. .
I RESPONSE: The discrete State and Federal responsibilities for LLW disposal hadeen addressed in the final rule. See responses to Comments 2.1, 2.2, 5.6, and 14.2.
Comment 17.4 The most likely scenario that may require emergency access appears to be that of a bankrupt generator where the State or Compact cannot or will not provide for disposal. Under these circumstances, it is not clear who would have the responsibility for the application, liability, volume reduction, and cost requirements.
RESPONSE
(to % n h )
Comment 17.5 In order that the credibility of the process be maintained, this rule must not be viewed as a way of circumventing the responsibilities and arrangements that have been carefully implemented as required under the Act. Most of the Host State implementing laws and/or Compact lavts have very specific provisions and restrict!ons concerning out of Compact access. If at'all i possible, those provisions should dictate when and under what circumstances emergency access should occur. The provisions of this rule should only be f
l
'l 60 F
'l used as a last resort and the language should be such th'at this intent is-
' clear. ]
]
RESPONSE: This is NRC's intent, as is stated in the preamble to the proposed rule and elaborated on.in responses to Comments 2.1, 2.2 and 5.6.
l Comment 17.6 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 written, the rule could require acceptance for disposal of federal l waste under " temporary emergency access" provisions.
If a State or Compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing. j A generator is denied access to a State or Compact disposal facility for whatever reason.
An unusual occurrence such as bankruptcy of a generator causes abandonment of extremely large volumes of waste which exceed State or j Compact capacity for safe disposal. 1 RESPONSE: The scenarios described in this comment have been considered and do not necessitate any changes to the proposed rule, gmment17.7
- 2) What are the potential problems with NRC's approach to determine an immediate and serious threat to the public health and safety?
61 The difference between " emergency access" and " temporary emergency access" provisions for this determination are not consistent with Section 6(d) of the Act. The Act clearly states that an emergency access determination must be made before temporary emergency access can be considered. "Upon determining that emergency access is necessary. . .the commission." This is not consistent with the definitions and suggested implementation of the two terms in the proposed rule.
RESPONSE: See the response to Comment 13.5 for clarification on the distinction made in the proposed rule between temporary emergency access and emergency access.
l Comment 17.8 l
l 3) What are the potential problems with the determination of serious and immediate threst to the common defense and security?
In making this determination, can all or part of the information provided by the generator be kept confidential, or not be released to ;
the receiving facility, under the claim of national security?
RESPONSE: (To be provided by Chip Cameron)
Comment 17.9 The Ho.t State or Compact in which the requesting generator resides should be required to exhaust all options and accept responsibility for G aling with l the problem before being allowed to make a request.
RESPONSE: See the response to Comment 17.2.
Comment 17.10 .
t The issue of economic feasibility and a person's financial capability should l
not be a consideration in dealing with emergency access. j i
l l
e-_-____-_____ . _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ .
62 RESPONSE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency access decisions.
I t
I 63 Comment 17.11 i
If a legitimate emergency access condition is determined, and the Host State' i.
or Compact cannot provide for a safe solution to the problem, either by )
-themselves or through' reciprocal agreement, then the use of Federal' disposal j facilities should be the first priority before other non-Federal disposal I facilities.
RESPONSE: The statute did not provide for.that' option. Section.6(a) states that NRC "may grant emergency access to any regional' disposal I facility or non-Federal disposal facility --- if necessary to eliminate I an immediate and serious threat to the public-health and safety or the < l common defense and security." While the proposed rule does require that l -
any Federal or defense related generators attempt to arrange for 1 disposal at a Federal LLW disposal facility prior to requesting :
emergency access to a non-Federal-facility, the Act does not confer to !
NRC the Authority to designate Federal disposal facilities to receive ;
emergency access waste.
The purpose'of the Act is to make the disposal of LLW a State responsibility and to encourage States to work out dispo' sal problems amongst themselves. Congress believes that if Federal LLW disposal l facilities would provide backup disposal in the event that the States do not provide needed capacity, this would serve as a disincentive to the States.
l Comment 17.12 The are no provisions for equitable distribution of the waste if non-Federal facilities are needed for disposal.
RESPONSE: Under VII(c) of the proposed rule, NRC explained that in order to distribute the waste as equitably as possible the designation of a receiving site will be rotatad and, for the three currently j operating facilities, allocations will be made in proportion to the l volume limitations established by the Act, to the extent that these are i
1 i
j
_ _ _ - _ _ _ _ _ - - _ _ _ _ _ = _ - _ _ _ - _ - _ _ _ - _ _ _ _ - _ _ - _ _ _ _ _ _ _
I
64 i
practical. (Note to reviewers - should a provision stating these intentiens be added to the rule itself? at the end of 62.26?) ]
l Comment 17.13 As written, the 20% volume criteria could eliminate the smaller non-Federal facilities from consideration almost immediately. Provisions can be added I which would divide up emergency waste if necessary to ensure that all j operating facilities receive their fair share. Such provisions could also be j consistent with any established reciprocal agreements a receiving facility ,
i had in place at the time.
l RESPONSE: The 20% volume criteria that appears in Section 62.26 of the I i
proposed rule came directly from Section 6(h) of the Act. Apparently, 1 Congress believed that establishing such a limitation would be the most equitable way of distributing emergency access waste.
1 I1 Comment 17.14 i There are no provisions for existing State or Compact laws with respect to reciprocal agreements or time requirements for emergency disposal conditions as covered in Section 6(f) of the Act.
RESPONSE: (See responses to Comments 4.1 and 4.2) i 1
Comment 17.15 Is a determination appealable?
RESPONSE: (To be provided by Chip Cameron)
Comment 17.16
- 5) What should the NRC do if no site is found to be suitable for waste reouiring emergency access.
65 The NRC should develop contingency plans BEFORE an emergency occurs.
Such plans could include the development of an NRC facility especially for emergency conditions. The NRC could also develop equitable reciprocal agreements now for the determination of emergency disposal sites in the future. Such agreements should include Federal disposal facilities.
RESPONSE: Noted. l k
J I
I I
1 i
1
66 8.18 Comment' Letter #18 -- Clark Bullard,l Chairman,' Central Midwest Compact Commission Comment 18.1
.The Central Midwest Compact ^ Commission' fully endorses the comments submitted by the I'linois Department of' Nuclear Safety-(IDNS) on February 11, 1988.
RESPONSE: Noted.
Comment 18.2 The IONS comments deal with sensitive political. issues that must be resolved promptly if-the Central Midwest Compact is b net the remaining milestones under the LLRWPAA of 1985. Moreover, the ir. . grity. of the entire Compact system could be undermined by any hints-that NRC is less than-fully committed j to respecting the statutory exclusion of greater-than-Class-C waste.
l RESPONSE: See the response to Cor<nent 2.2.
Comment 18.3 We urge you to adopt the IDNS comments intact so our ability to meet the-remaining milestones is not impaired.
RESPONSE: Noted.
1 N 1
l
67 B.19 Comment Letter #19 -- John 5. Kemper, Philadelphia Electric Company Comment 19.1 Notice of a proposcd rule on emergency access te non-Federal low-level radwaste disposal facilities appeared in the Federal Register an December 15, 1987. Philadelphia Electric Company believes that the proposed criteria foi allowing emergency access to disposal sites are well developed and wi'il be effective in maintaining control of the amount of radioactive waste sent to such sites. ;
il
[ESPONSE: Noted. 1 i
Comment 19.2 One aspect of this process, however, may prove to be a detriment to its smooth administration: the 10-day public commant period.
If a situation is truly an emergency, delaying the disposal of waste may result in an increased hazard to public health and safety. Additionally, the current climate of public awareness and tendency towards legal intervention could combine in action aimed at the cessation of the generation of waste (i.e., the shutdown of the generator). Another method to keep the public informed should be developed: perhaps a periodic publication of all petitions for emergency cccess, and the results of each.
3 I
RESPONSE: The 10-day public comment period provided in the rule should !
not delay the disposal of waste pursuant to a request for emergency access because that 10 days is intended to occur as part of the 45 days j provided for NRC to make its decision. As explained in the response to I Comment 13.3, the Commission believes it is important to provide the public some opportunity to comment on requests for emergency access. If the sittiation is truly an emergency and no alternatives are available, j public comment will not likely alter NRC's response to any particular request. (See response to Comment 13.3 for elaboration.)
l
68 i
Comment 19.3
{
We are confident that the proposed criteria are strict enough to protect the ;
public health and safety without delaying the process to consider public I concerns for each occurrence.
RESPONSE: None necessary.-
I i
i 1
l l
3 i
i i
l E_--_-- -- - -- - ]
69 L
B.20:. Comment Letter #20;- Jessie DeerInWater, Chairperson, Native Americans'.
for a: Clean. Environment -
Comment 20.1 NACE joins with Mr. Marvin Lewis of Philadelphia,'PA in his oppositionLto Proposed Rule: Criteria a~nd Procedures for Emergency Access 'o t Non-Federal
- l. and Regional Low-Level' Rad Waste Sites.
RESPONS_E: Noted.
Comment 20.2 The rule would allow the Federal Government and'the NTC to regulate a State
- function...or at least a Compact function. This is anLinfringement of- ,
State's rights which has both financial and health impacts. !
i RESPONSE: See the responses to Comments;7.1, 7.5, 9.3, and 10.1. '
Comment 20.3 Since State and Compact dumps are being developed for commercial waste,.this ,
is the only waste that should be placed into the dumpsites. Federal waste should be disposed of at their own facility, since it would be unknown what might be contained in waste coming from the DOE and the D0D. It is our belief that federal waste is often Dreater-than-Class-C waste.
l RESPONSE: See responses to Comments'2.1, 2.2, 5.6, and 14.2.
I Comment 20.4 We must all act now to protect future generations.
RESPONSE: None needed.
i
(, ... . ,
70 B.21 Comment Letter #21 -- Greta J. Dicus, Arkansas Dept. of. Health Comment 21.1 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 l compatible with these provisions'in that1the criteria set forth are stringent.
enough to render it improbable that waste generators would qualify for -
emergency access. We support'the concept of emergency access as presented in 1 the proposed rule and make special reference to the fact that the nrocess must not be used to circumvent the development of regional Compacts.
RESPONSE: None necessary.
I Comment 21.2 Specific Comments The Act and the proposed rule imply that granting temporary emergency access l is a one time action that cannot be extended. If this is 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. i RESPONSE: Neither the Act nor its legislative history specify whether temporary emergency access can or cannot be extended. However, NRC does not believe Congress anticipated that extensions of temporary emergency access would be needed. After 45 days, the requestor would lose access i i
to disposal unless he :ould demonstrate to NRC that the serious' and
{
immediate threat persisted and the threat could not be mitigted by any reasonable alternative, at which point he would be granted regular emergency access. Thus, in the absence of any specific guidance from
' Congress, NRC plans to grant emergency access for up to 45 days only, with no extensions. If a serious and imradiate threat were to persist after 45 days because of a lack of access, to disposal, Nt the alternative analy:,;. as not complete, the Commission would have to use
,1 71 its discretion to decide what action to;take. (Note: should this be addressed. in the preamble or rule?)
Comment 21.3 If the need for emergency access is the result of a regi_onal or'non-Federal' facility denying access to a generator,.the. reason (s) access was' denied
~
should be considered by the NRC when making its decision.
RESPONSE: NRC plans to consider the-reason access was' denied and has required that information to that effect be included as part'of a request for emergency access. Section 62.12(g)(1) of the proposed rule requires a description of "the circumstances wHeh led to the denial of-access" and.62.12(i) requires the requestor provide NRC with
" documentation certifying that access has been denied."
Comment 21.4
- 1. What scenarios are envisioned where emergency access would be required?
.)
Response: The regional or non-federal facility utilized by generators !
is closed by regulating authorities, the facility operator
.J or extraordinary events. 1 Access to a facility has been denied for non-technical reasons. !
Extraordinary waste streams that do not conform to those acceptable at a regional or non-federal facility.
1
- 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 arrangement proposed for making the determination of serious and immediate threat to the common defense and security?
I 72 i l
Response: No comments at this time. .1
- 4. What are the potential difficulties with the proposed approach for designating the receiving site? j i
i Response: No comment at this time. I
- 5. What should NRC do if no site is found to be suitable for waste requiring emergency access?
)
-i Response: - ConsiAr disposal at a federally-operated facility.
- Allow indefinite "in situ" or " intermediate location" j storage. )
l l
RESPONSE: All have been noted. j
)
i I
l l
l-l L
_ s !
ADMS<Df.) Ceknu.,3~
j',
%:a Document Name: V//B/B S PART 62 COMMENT ANALYSIS
- D k Wh/
Requestor's ID:
rih 3 N h u s.erf f ers Author's Name:
Janet lambert Document Comments:
comments and responses I
i i
l l
I l
l l
l l
l u_____________ _ >
,; T -
t 7, ..
.. f g jyf fg* L] <* h sLt -QQtf Y
.: Y,-,e + '
Tu w//9/99 ElacumuALp
.s .gujaws .ccc Egith Brtaus-@
(&.$cLMU$s-hl
.kla:thopl%&54r4 ~ A^
- I AC2Y- 6 Pbl AloVe vb
- /%;ds%?!{af tocice Padx sus,,eit
'2a ea gk adEunons A AvposutRai / Pywaznd g gi flatto,cgacl .' .
&ctosu/ c) a Q & hop hekddwG +
0 % sd c7 s G CD n anaus /tecix-wt f'to cre Padfy a cyy p fog a-w wc gs ag y44 cowmods, as ai sm f, % w/wabiofa p u.
1&appa fygoa coa.a&w &
as ysas+ ~ A % m waveg Qx & 4 % Fehuz'aA- (he se h dub w t) ywt -pum &bo/s e, A dah .% apca y
& n aubpaaay W% eBa )
1 T1M L yHauaaOy Q W ,
zh e aspsn JZat-qJAzh NLd J
i q
-O i
s Proposed Schedule for 10 CFR Part 6E - Final Rule j l
1.- Prepare Comment Analysis / Revise rule per Comments: l Draft Comment rnalysis/ Revise Rule - completed by 4/19 i
_D_istribute tn NMRR/NRR/Ar,C/etc fnr nffice review and comment 4/19 0ffice Comments Due Back 4/29 Revisions made by 5/5
- 2. Draft Preamble for Final Rule:
Draft preamble 4/19-25
- Due to SL for review 4/25
- SL Comments due 4/28 i Revisions completed 4/29 Request Office Comments from WM/NMSS, NRR, OGC, etc 4/29
-~
.._ Comments due back 5/5 _
Revisions completed 5/9 3 Draft Commission Paper:
Draft Commission Paper 4/26-5/5
- To SL for review 5/5
- SL Comments due 5/10 Revisions completed /sent out to Program Office for comments 5/11
_ Program Office comments due 5/16 Revisions completed 5/19
- 4. Revise Reg Analysis -
Revise 5/5-5/9 To SL 5/9 SL comments due 5/11 Revisions due 5/12
~
q E ,
)
.L i
.' Concurrence schedule
- 1. Package'to SL 5/19-
- 2. Package to BC.5/251 3.: Package .to Mr. A 5/31,
- 4. Package to Mr. Beckjord 6/15 ;
- 5. Packagelto ED0 6/30 l Key Assumptions
- 1. To ED0 by end'of June
~2. Published in FR by end of August (as_ promised in' Reg Agenda ,etc. )' l
'3. Drafts will be' reviewed as developed for SL.and; Program Offices
- 4. Concurrence package completed and into concurrence.by-5/19~
i
.I I
l i
i i
l 2 <
l
gl$ -
i
\
Part 62 Comment Analysis P** 'i %wtoh-i B. Responses to Individual Comments:-
M.thO .
1 B.1 Comment Letter #1 -- W. Clough Toppas, Dept. of Human Services, Maine 1
Comment 1._1
- 1. The premise for granting emergency accdss is sound and takes into account a variety of factors to include some initial oversight actions. ,
We are not in opposition to the proposal.
RESPONSE: No response necessary.
Comment 1.2
- 2. The proposed rules (e.g., 662.26) should include a small subsection stating "...the designation of a disposal facility pursuant to 662.21 l
shall not preclude the implementation of any specific conditions, regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Commission's deter-mination to grant emergency access..."
RESPONSE: The Commission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy l Act Amendments of 1985 (the Act) and which would meet all the general requirements and regulations of the disposal facility designated by NRC l to receive the wastes. To assure that NRC will designate a site suitably matched to the LLW granted emergency access, NRC included a provision in the proposed rule which states that a LLW disposal site will be excluded from consideration to receive emergency access waste if the waste does not meet the criteria established by the license or licensee agreement for the facility [62.26(b)(1)]. The license or licensee agreements incorporate the regulations and requirements that affect each particular facili ty. Taken with the other information in 62.26 which the NRC will I
2 consider before designating a site, the' Commission believes Section 62.26 as proposed adequately' addresses-the NRC'S responsibility to designate a site which does not preclude "the implementation of any specific regulations',
and requirements at the' designated disposal. facilities."
Mr. Clough's comment also lists " fees, taxes and conditions" as items which NRC should consider in designating a site. The Commission does not agree that such information can or should be.used by NRC in making its site designation decision. The Commission recognizes'their administrative importance in'the actual implementation of emergency access decisions once they are made by the Commission and.has responded to that part of his comment by edding ~a new "Section 62.27 - Tems and Conditions of Emergency Access." The new Section sets.out the-responsibilities of the generator and the disposal facility operator once emergency access has been approved. (See also responses to Comments 5.5,8.4and9.1.)
l
l 3 1 ;
B.2 Comment Letter #2~-- Sally Dicmas, " Concerned About Radiation in the Environment," (Citizens Group)'
H l
Comment 2.1 l 1.- Commercial waste-only shall be eligible for state and compact LLRW ,
dumps. Federal waste (DOE) shall be prohibited.
RESPONSE: In developing the proposed rule, NRC assumed-that only those LLW's designated by Section 3(a)(1) of the Act to be the disposal-responsibility.of the States, would be eligible for disposal' pursuant'to the emergency access provision. Under Section 3(a)(1)(A), the States !
are assigned the responsibility for disposing of commercially generated LLW, and under Section 3(a)(1)(B) they.are assigned the responsibility 4 for disposing of "LLW generated by the Federal government except that . ]
which is owned or generated by DOE, by the Navy as a result of decommis- f sioning of vessels, or as a result of any research, development, testing or production of any atomic weapons." Since LLW generated by the Federal government that does not fall into the above categories is eligible for disposal at the State / Compact LLW disposal facilities, those same Federally generated LLWs are eligible for emergency access. To clarify the NRC's intent regarding the scope of wastes which will qualify for emergency l access, NRC has added appropriate text to Section 62.1 " Purpose and Scope," and to the " Assumptions" discussion in the preamble. For further j elaboration on this subject, see the response to Comment 5.6.
Comment 2.2
- 2. No Greater-than-C'ess-C waste shall be forced upon these commercial j dumps since this is not part of their design criteria. !
RESPONSE: NRC developed the proposed rule assuming that emergency I access can only be granted to those LLW's for which the States have routine LLW disposal responsibility under the Act. Section 3(a)(1)(A) of the Act makes the States responsible for providing j disposal only for those LLW's in classes A, B, and C. '
. i Thus, greater-than-Class-CwastesarenotconsideredbiNRCto.beeligible' for emergency access disposal. - To help clarifyLthis point, NRC has added an explanation of the scope of the LLW eligible for emergency access to Section 62.1 of the rule, and under the " Assumptions portion of the Preamble. (See.also' discussion in the' response to Comment 5.6.)
Comment 2.3
- 3. If States choose to " store" rath'er than to' affect to " dispose" of' waste, the NRC shall not force waste to go to those sites.
RESPONSE: Section 6 of the Act sets out NRC's mandate.for emergency access decisions, and provides only that "the Nuclear Regulatory Commission may grant emergency access. to any regional disposal facility or non-Federal disposal facility..." (emphasis added). Thus, by law, emergency access can only be granted to those. facilities which provide permanent isolation-of low-level radioactive waste. Facilities developed by States to store LLW would not, by definition, qualify and would automatically be precluded from consideration by NRC as sites to receive emergency access wastes.
(See also the responses to Comments 3.0, 8.4, and 10.5.)
1 I
i l
0 r
1 m _ - _ - _ _ _ _ - _ _ _ _ _ _ _ _ - - - _ - _ _ - - - - _ - - - - - -_- - - - - - - - -
-,--____---____---___J
1 5 B.3 Comment Letter #3 -- Shirley & Lloyd Gilbert, Citizens; Fresno, California Comment 3.1
- 1. Since state and compact dumps are being developed for commercial waste, this is the only type of waste that should be eligible for Emergency Access. The rule should clearly prohibit federal waste, example - waste from the Departments of Energy or Defense.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 3.2
- 2. Since state and compact ' low-level' dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit NRC f rom forcing Greater-than-Class-C waste'ol any state or compact dump. The rule should make clear that if state or compact dumps have other restrictions such as prohibitions on war,tes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those l
criteria.
RESPONSE: See responses to Comments 2.2 and 5.6.
1 Comment 3.3 i
- 3. If states choose to store, rather than pretend to ' dispose' of waste, NRC should never force waste to go to those sites. ,
RESPONSE: As discussed under coment 2.3, NRC cannot legally designate anything but a facility designed for permanant isolation of LLW to ,
receive waste granted emergency access under this rule, and pursuant to Section 6 of the Act. (See also the responses to 8.4 and 10,5).
t
____________________________________d
6 B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Comission Comment 4.1 Page 47580 of the Federal Register Notice states that the Nuclear 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, the proposed rule omits any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. This Section provides that the regional compact or state receiving the emergency access waste is entitled tc reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact or state that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioac. a waste having similar characteristics to that provided emergency access."
While the NRC may not wish to be involved in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extracted from the compact region or state in which the emergency access waste was generated before any determination for granting emergency access is made. This acknowledgement should be required as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledge-ment could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the corpact commission. l RESPONSE: NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believed that assuring reciprocal access was beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. NRC believed that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts involved.
The NRC still believes an enforcement role regarding reciprocal access l
7 is inappropriate for the Agency. However, from this comment and others like it, NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, and as such, should be addressed in Part 62. The following changes have been made to the final rule in response to this comment:
A new (n) has been added to 62.12 "A formal acknowledgement of reciprocal access from the State and or the appropriate Compact Commission promising reciprocal access for an equal volume of LLW having similar characteristics to that requiring emergency access, and indicating an approximate date when it would be available."
A new sentence (underlined) has been added to 62.22(a)--
...(not to exceed 180 days) necessary to alleviate the immediate and serious threat to the public health and safety or the common defense and security. It should. also include a formal promise of reciprocal access for an equal volume of LLW having similar characteristics to that requiring emergency access from the State and/or appropriate Compact Commission requesting emergency access. For the Governor of the State...."
(See also responses to 4.2,4.3,4.4,4.5,5.4,17.14)
Comment 4.2 Before granting emergency access, the NRC should determine whether or not there would be any limitations (e.g., timing, license restrictions, etc.) on the ability of the facility that serves the compact region or state in which the emergency access waste was generated to accept reciprocal access waste with similar characteristics (i.e., source, physical, and radiological).
This specific determination should be added to the Section 62.25 criteria.
RESPONSE: In response to Comment 4.1 and other similar comments, NRC has decided to require a fonnal promise of reciprocal access as part of each request for emergency access. However, as stated in the response to Comment 4.1, NRC will not be involved in brokering reciprocal access arrangements, as would be required if NRC were to carry out the
8 determinatic'n requested by this comment. Since there are no limitations estabi r ' ., either in the Act, or the rule as to when reciprocal access must be provided, and since it would be unlikely that determinations made by NRC at the time emergency access is granted will be applicable at the time reciprocal access may be used, no change was made to the final rule in response to this comment. (See Comment 4.1)
Comment 4.3 Before designating a disposal facility, the NRC also should determine if the regional compact or state that would receive the emergency access waste has an equal volume of reciprocal access waste with similar characteristics.
This specific determination should be added to the Section 62.26(c) criteria.
RESPONSE: (See response to Comments 4.1 and 4.2)
Comment 4.4 Finally, the NRC should be aware of any potential liability obstacles before making final decisions. It is possible that differing liability requirements among compacts or states could affect receipt of emergency access or reciprocal access waste.
RESPONSE: (To be provided by Chip Cameron)
Comment 4.5 We believe that the reciprocal access provision of the Act is a s'.,aificant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facility. This is of particular concern because the receiving compact region or state has virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of Section 6. and should be recognized as such in the proposed rule.
RESPONSE: (See responses to Concents 4.1 and 4.2)
{
9 Comment 4.6 Because the NRC has already indicated, on p. 47583, that it will attempt to distribute emergency access waste as equitably as possible, a criterion related to past acceptance of such waste should be included in Section 62.26(c). The criterion would require the Commission to consider, "The volume and characteristics of emergency access waste previously accepted."
RESP 0NSE: In the proposed rule, NRC intended that past patterns of distributing emergency access wastes should be considered in the process of designating a site. This is evidenced by language in the "Designa-tion of Site" discussion in the preamble which states that "NRC will consider how much waste has been designated for emergency access disposal to each site to date (both for the year and overall)." NRC did not include a criterion addressing past acceptance of emergency access waste in the actual regulatory text of the proposed rule. However, NRC agrees that the addition of such a criterion will be useful in clarifiying the intended site designation process. In the final rule NRC has added the i
criterion as suggested in the comment as the new provision identified as62.26(c)(6). The provision identified as 62.26(c)(6) in the proposed rule has been renumbered and appears as 62.26(c)(7) in the final rule.
E
10.
B.5 Comment Letter #5 -- Terry Lash, State of Illinois Department of Nuclear Safety Comment 5.1
- 1. IDNS agrees with the NRC's determination that establishing criteria and procedures by rule, in advance, is an appropriate approach.
Establishing procedures in advance of a request allows the NRC to respond quickly in the event of an imminent threat. Establishing criteria in advance allows potential applicants to plan accordingly, and serves notice that the emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act.
RESPONSE: No response is necessary given that the comment essentially reiterates the rationale presented by NRC in the preamble for developing a rule for emergency access.
1 Comment 5.2 l IDNS agrees with the statement preceding the proposed rule that NRC should l I
... reinforce the idea that problems with LLW disposal are to be worked out to the extent practical among the states..." The proposed rule does not, however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such agreements would be consistent with the intent of Congress and should help to aovid any immediate and serious threat to the public health and safety or the common defense. The rule should expressly encourage states and compacts to enter cooperative agreements.
RESPONSE: NRC is sympathetic to the motivation behind this coment.
However, the Commission does not believe it would he appropriate for NRC to expressly encourage States and Compacts to enter into cooperative ,
agreements for emergency access in the regulatory text of Part 62.
First of all if NRC were to provide such express encouragement in the regulatory text of the rule, NRC would be assuming the role of advocate for such agreements. While Congress clearly hoped that States / Compacts l
L__ _- ___ -
11-should be able to . resolve problems associated with LLW disposal access through cooperative agreements (or " voluntary agreements." as they are referred to in the Act) Congress did not direct'NRC to promote such agreements between States or Compacts any more than the other alterna- j tives to emergency access. Further, including such express.
encouragement would be outside the scope of the rule, that is, to establish the process and criteria that NRC will use to make decisions
' regarding requests for emergency access. The Commission believes the proposed rule which includes a discussion in the preamble on states responsibility under " Legislative History," and provision 62.13(b)(3) -
" obtaining access to a disposal facility by voluntary agreement" has addressed this concern appropriately and adequately. As a result, no changes have been made to the final rule in response to this comment.
Comment 5.3 IDNS strongly agrees with the statement preceding the rule that " Congress believed it was important for the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity." We believe this statement thould be made part of the rule. Development of new LLW disposal l capacity is a controversial and difficult task. The task is even more l difficult when citizens in states such as Illinois, where progress is being made, hear and read statements from officials in other states that the framework set out by Congress is flawed and that it may not be necessary for every state to take steps to provide for the disposal of low-levelradioactive l
waste generated within its borders. It is IONS's experience that Illinois' citizens want assurances that the Illinois disposal facility will accept only low-level radioactive waste generated in the CMC region. It is imperative that emergency access not be perceived the states as an alternative to making diligent effort to fulfill their responsibility.
RESPONSE: While NRC is sympathetic to the motivation behind this l
comment, the Commission does not believe that the st.Sject statement l would be appropriate in the codified text of the rule. Part 62 contains j only the criteria and procedures to be used by the Commission in considering l 1 i
12 requests for emergency access. The Commission believes that the procedures and criteria in the proposed rule establish sufficiently stringent requirements for granting emergency access to clearly convey that emergency access should be viewed by the States solely as a last resort and not as an alternative to the mandated development of new LLW disposal capacity.
Comment 5.4 IDNS observes that the proposed rule does not address the provisions.of Section 6(f) of the Amendments Act, which pertain to reciprocal access. IDNS recommends that the proposed rule address reciprocal a ass is providing"
... reciprocal access for an equal volume of low-level radioactive waste having similar characteristics to that provided equalaccess."
RESPONSE: (See response to Comments 4.1 and 4.2)
Comment 5.5 The proposed rule does not address the issue of disposal fees for wastes disposed of under an emergency access determination. The obligation of a State or Compact to accept wastes grnated emergency access should be con-ditioned upon the applicant's payment of disposal fees and surcharges as applicable.
RESPONSE: NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as any additional fees or surcharges specifically applicable to emergency access waste under the provisions of the Act. A new Section 62.27 -
" Terms and Conditions of Emergency Access" has been added to the final rule that addresses such obligations. (Also see the response for Comment 1.2.).
Comment 5.6
13 i
i
$62.2 The definition of Low-Level Radioactive Waste is incorrect. For j purposes of emergency access to non-federal and regional disposal facilities, the definition should be limited to that subclass of low-level radioactive waste for which states have been given respons%ility under 42 USC 2021(c).
f The definition should read:
" Low-Level Radioactive Waste," (LLW) means A) radioactive waste, other than radioactive waste generated by the federal government, that l
consists of or contains class A, B, or'C radioactive waste as defined by section 61.55 of Title 10, Code of Federal Regulations, as in effect on January 26, 1983, and B) radioactive waste described in A) that is generated by the federal government, unless such waste is 1) owned or generated by the Department of Energy, 2) owned or generated by the United States Navy as a result of decommissioning of vessels of the I United States Navy, 3) owned or generated as a result of any research, development, testing, or production of any atomic weapon, or 4) identified under the Formerly Utilized Sites Remedial Action Program, q l
Under the Amendments Act, disposal of waste that is above class C, as defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility of the states. The Nuclear Regulatory Commission may not, through <
l 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." IDNS objects to any attempt, whether deliberate or inadvertent, to place additional burdens on the states in contravention of express statutory limits. The proposed definition is particularly troubling in ,
light of the Amendments Act's express prohibition on requiring any ,
regional facility to accept waste that is above Class C, or FUSRAP wastes. IDNS also notes that providing disposal capacity for naturally-occurring 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.
l I
l RESPONSE: The definition that appears in the proposed rule is not incorrect. It is the same def1nition for LLW which appears in the Act l
l
14' itself. Although the NRC does not agree that the definition'of low-level ~
waste should be changed, NRC does. agree that the. qualification on the scope 4 the LLW eligible for emergency access provided by the commentor's proposed definition is extremely relevant.to emergency access decisions and would afford useful clarification 'if included in the rule. The commentor has quoted Section 3(a)(1) of the Act, the section that specifies the subclass 'of LLW for which the states were given responsibility for disposal. It is'important to the States that they be assured that they have the responsibility for disposing of only the subclass of LLW described
-in that Section. The States want' assurance that NRC will not use the i
emergency access provision to require them to accept wastes for disposal, such as above Class C, and D0D or DOE LLW, which are not their' responsibility-pursuant to Section 3 of the Act. NRC has provided this assurance in the final rule by adding the recommended text to Section "62.1 - Purpose and Scope," as well as to the Section V, " Assumptions" discussion in the-Freamble. (See also Comment'14.10.)
Comment 5.7 Section 3(b)(1) of the Amendments Act provides that the federal. government is responsible for the disposal of certain types of radioactive waste (i.e.,
above Class C) and radioactive waste generated by certain activities of the federalgovernment(e.g.,DOEwaste,defensewaste). Although the three 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 disposal facilities for waste that is a federal responsibility. In the Supplementary Information section of its Federal Regiswr notice, the NRC states that the emergency access provision was "not intended to be used to circumvent other provisions of the Act." (52 Fed. Reg. 47579.) The implementing rule should clearly state that no request for emergency access for waste that is a federal responsibility shall ever be considered or granted. As the House Energy Committee pointed out, the NRC may grant access only for waste which is a state responsibility. Language proposed for inclusion in the Amendments Act by the DOE that would allow emergency access for waste generated by the D0D was expressly considered and rejected by Congress. The NRC should abide by
15 that decision and the express language of the Amendments Act in promulgating this rule. ,
RESPONSE: NRC plans to use the criteria in Sections 3(a)(1)(A) and (B) of the Act to determine what wastes could be eligible for emergency access disposal. (Also see responses to Comments 2.1, 2.2, 5.6, and 14.2.)
Comment 5.8 962.2 The definition of " Temporary Emergency Access" should be changed as follows:
"' Temporary Emergency Access' means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an j
immediate and serious threat to the public health and safety, or the
~
common defense and security. Such access expires 45 days after granting."
The NRC's authority to grant emergency access, whether temporary or not, is I limited to those situations where'such access is "necessary to eliminate an immediate threat" (42 USC 2021, emphasis added). The Amendments Act does not, as the proposed rule suggests, allow the NRC to grant emergency access to " alleviate" such a threat. " Alleviate" is not synonymous with
" eliminate." Only where the applicant can show, and the NRC can find, that the threat would be eliminated by emergency access, can the NRC grant emergency access.
RESPONSE: The definition presented in this comment for " temporary emergency
, access" is the precise language used to describe temporary emergency accessinSection6(d)oftheAct. The definition in the proposed rule is the same except it reads "necessary because of an immediate and serious threat" instead of "necessary to eliminate an immediate and serious I threat." The definition has been changed in the final rule to match the
}
language of the Act and the comment.
L__---_ - - - - - - - - - - - - - - - - - - - - - - -
16 j Comment 5.9
$62.12 Add a new subsection (c) as follows: )
"(c) That the material for which emergency access is requested is I t
' low-level radioactive waste' as defined in this Part."
and redesignated the proposed subsection (c), and following subsections, as appropriate. This will help assure that no state will be asked to dispose of waste that is not a state responsibility under the Amendments Act.
RESP 0NSE: A new subsection (c) has been added to 62.12 which reads
" certification that the material for which emergency access is requested I is ' low-level radioactive waste' as defined in this Part." Proposed subsection (c) and the following subsections were redesignated as appropriate.
Comment 5.10 662.12(f)(3) should be modified as follows:
"(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety, or the common defense and security."
RESPONSE: In the proposed rule, NRC used " alleviate" rather than
" eliminate," which is used in the Act. The recommended change has been made to the final rule. (See also Comment u.t..
1 Comment 5.11 662.12 Add a new 662.12(k) as follows:
"(k) A description of how granting emergency access would eliminate an l immediate and serious threat to the public health and safety or the l
common defense and security."
RESPONSE: Adding the recommended provision would be redundant. If the requestor is able to demonstrate to NRC that disposal to a LLW disposal site is necessary because of a serious and immediate threat to the ,
public health and safety or the common defense and security which l cannot be mitigated by any available alternative, and routine LLW l disposal has been denied to the generator of that waste, then emergency l
l access is the only way to get that disposal. )
1 l
17 Comment 5.12 662.12 Amend the proposed 662.12(k) as follows and re-designate as 662.12(1):
"(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, certification by the '
Secretary of Energy and the Secretary of Defense that the waste for which emergency access is granted is not owned or generated by the Department of ,
Energy, owned or generated by the United States Navy as a result of any decommissioning of vessels of the United States Navy, or owned or generated by the federal government as a result of any research, development, testing, !
or production of any atomic weapon, and that access to disposal is necessary l to eliminate the threat to the common defense and security."
As explained in Comment #1, under the Amendments Act it is the responsibility of the federal government, not the states, to dispose of radioactive waste generated by certain federal activities safely. IDNS holds that no state can be forced to accept responsibility for disposing of these wastes under the emergency access provisions of the Amendments Act or through any action of a federal regulatory agency. In addition to the generator's certification that the waste for which emergency access is requested meets the operational definition suggested in Comment #1 above, these additional safeguards are i
.I necessary to assure protection of states' rights in the event that the {
request for access is based on a claim of immediate and serious threat to the common defense and security, j l
RESPONSE: In Section 62.12(k) of the proposed rule, NRC requires that a i reouest for emergency access based wholly, or in significant part, on the basis of a threat to the common defense and security, should include "a statement of support from DOE or D00 certifying that access to !
disposal is necessary to mitigate the threat to the common defense and j security." This comment recommends that DOE and 00D also certify that the wastes for which emergency access is requested are not LLWs for which the Federal Government has disposal responsibility under Section l
3(a)(1)(A)and(B)oftheAct. NRC has modified "Section 62.1 - Purpose '
1 and Scope" of the final rule and "Section V - Assumptions" of the l
l 4
\ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . _
I.
l 28 preamble to clarify that only LLW which is the disposal responsibility of the States is eligible for emergency access consideration. With these two changes in the final rule, NRC believes the objective of the change recommended in this comment has been accommodated. (See also responses to comments 2.1, 2.2, and 5.6.)
Comment 5.13 .
Modify 662.13(c)(6) as follows:
"(6) Any legal impediments to implementation of each alternative including whether the alternatives will comply with applicable NRC requirements, and the requirements of the Compact Commission and the State ';ere access was considered."
It should be made clear from the application for emergency access whether denial of access was based on failure to comply with applicable standards.
NRC should not grant emergency access when the emergency was brought about by the applicant's own failure to comply with regulatory standards.
RESPONSE: NRC agrees with this change. It has been made to the final.
Comment 5.14 Modify 662.13(d) to read:
"The request must include clear and convincing evidence that the applicant has exhausted all other options for managing its wastes and must include the basis for:
(1) Rejecting each alternative; and l
(2) Concluding that no alternative is available." '
Section 62.13 of the proposed rule specifies that a description of alter-natives considered must be included in a request for emergency access, but it does not include the provision in the statement preceding the rule that,
" applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their !
l l
.19
.q wastes." This language is appropriate and should be' incorporated into the-rule. .
. 1 RESPONSE: NRC agrees that this is a worthwhile change. It has been made'in the final rule. ,
l l l i
l Comment 5.15 ;
l
$62.14 Add a new $62.14(c) as follows:- q
"(c) A description of how granting emergency access as requested would eliminate an immediate.and serious threat to the public health and safety or the common defense and security."
RESPONSE: ( h response to Comment 5.11.)
Comment 5.16 662.18 Replace "may" with "shall" in this section.
This section provides that the Commission may deny a request if it is based: I on circumstances that are too remote and speculative to allow an informed decision. IDNS recommends that "may" be changed to "shall." If the Commis-sion cannot make an informed decision on a request, it should not grant the request.
RESPONSE: The Comission does not intend to make uninformed emergency l access decisions. The word "may" was used in the proposed rule in preference to "shall" to provide NRC with options in the event that additional information is needed by the Commission to reach its decision. The recommended change was not made to the final rule.
Comment 5.17 662.21(a) should be modified as follows:
"(a) Not later than forty-five (45) days after the 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 L _- _ . .- - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
20 or generators located in his or her state, the Commission shall make a determination whether--
(1) The request for emergency access to a regional disposal facility or a facility within a state that is not a member of a compact, for specific low-level radioactive waste is based on an immediate and serious threat to:
(1) the public health and safety, or (ii) the common defense and security; 1
l l (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in 962.13, (3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access is requested is low-level radioactive waste as defined in this Part and a State responsibility under Section (3)(a)(1) of the Low-Level Radioactive Waste Policy Amendments Act of 1985. '
RESPONSE: This comment recommends a few changes to the language and a few additions to the procedures for making a determination for granting emergency access under Section 62.21. The Act very precisely sets out the process to be followed for making a determination and NRC developed j the proposed rule to incorporate that language. NRC decided to !
incorporate a part of one of the changes recommended in this comment but I rejected the others because they departed from the process Congress ~et s !
out in the Act. l (1) Section 62.21(e) of the proposed rule specifies, "the Commission l shall make a determination that..." ,
1
- _ _ - - - _ - - - - - - - _ - _ -. )
H I
'21
- The comment recommends ", the Commission ~shall make a determination whether..." -
Neither of tgse precisely duplicates the language of the directive in the Section 6(c)(1), so'NRC adopted.the precise j wording in the Act. Section 62.21(a) of the final now reads?",
the Commission shall determine whether..."
l Other changes proposed in the Comment include (2) Replacing " Emergency access to a regional disposal facility or a q non-Federal disposal facility within a State that.is not a member -!
of a Compact for specific low-level radioactive waste is necessary _ l because of an immediate and serious threat..." with ... "The request for emergency access to a regional disposal facility or a facility within a State that is not a member of a Compact for specific low-level radioactive waste is based on an immediate and serious threat to:," (differences are underlined for emphasis)
(3) The addition of items 3 and 4, neither of which are part of the Act where the determination for granting emergency access is discussed.
]
NRC did not make either of the changes discussed under (2) and (3) above ,
because they do not track the language of the Act and serve to alter the' )
meaning we believe was intended by Congress.
Comment 5.19 662.22 Add a new 562.22(d) as follows:
"(d) Any grant, denial, or refusal to consider a request for emergency access or temporary emergency access under this Part is a final agency I action."
If the request is indeed based on an immediate threat, and the decision is challenged, then prompt judicial review is necessary to resolve the issue.
l l
l
22 Clarifying that a grant or refusal is a final agency action may remove potential obstacles to obtaining prompt judicial review, RESPONSE: (To be provided by Chip Cameron.)
i Comment 5.20 662.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under the circumstances," in this subsection.
Subsection (e)(1) provides that the Commission, in making an emergency access determination, will consider whether the applicant "[h]as demonstrated that a good faith effort was made to identify and evaluate alternatives that would mitigate the need for emergency access." IDNS submits that subjective good faith should not be sufficient. The effort must be objectively reasonable and diligent.
l RESPONSE: NRC agrees that the phrase " good faith effort" does not convey the same meaning as " diligent effort." However, NRC decided not to use " diligent effort" because " diligent effort" was used in 6(e) of the Act in specific regards to requests for extensions of emergency I access only. NRC did r.ot want to compromise the legislated use and meaning of the phrase by using it in discretionary text in the proposed rule. NRC agrees that " good faith effort" could be improved, but the Commission does not believe " reasonable under the circumstances" captures the sense correctly either.
NRC has changed 62.25(e)(1) in the final to read "(1) has identified and l evaluated any alternatives that could mitigate the need for emergency access." NRC believes this is an improvement over the original language and is consistent with the precise language in the Act regarding the requestor's responsibilities towards identifying alternatives.
1
23 Comment 5.21 A new $62.26(b) should be added as follows:
(b) If the Commission designates a regional disposal facility to receive the waste for which emergency access has been granted, the Commission shall request the approval of the Compact Commission for the designated regional facility. The request for approval shall include the entire administrative record of the request for emergency access under this Part, including the reasons for the Commission's findings.
No grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Comission.
Section 6(g) of the Amendments Act provides that:
"any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms j of its compact." ;
1 This requirement of the Amendments Act has not been incorporated in the rule. l While the effect of a refusal by the Compact Commission to allow emergency l l access is not clear, the NRC may not, by rule, remove this option from the Compacts. IDNS also notes that this option applies only to regional disposal
! facilities, and that the Amendments Act makes no similar provision for !
non-federal, non-regional facilities. !
1 RESPONSE: This comment correctly states that NRC did not reflect the i i
Section 6(g) provision in the proposed rule. Based on the legislative j history for both Section 6 of the Act and the Omnibus Low-Level Radioactive :
Waste Interstate Compact Act which was passed with the Act, NRC believes l that disapproval is not really an option for the Regional Compact Comission in which the designated emergency access disposal facility would be located. NRC has interpreted the approval specified under 6(g) to be i somewhat pro fonna. So the Commission did not believe it was necessary to make the Compact Commission's approval part of the formal emergency access process. This position was explained under the discussion of Legislative History in the preamble to the proposed rule. While i
_ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . __ __ .1
24 I
disapproval may not be an option under the Act, clearly the Act intended the receiving Compact Commission to be fully informed regarding the emergency access decision made by NRC and the Comission believed the Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with infonnation consistent with the specifications in the Act. Section 62.22 of the proposed rule provides that NRC will notify the Compact Commission of the State in which the designated disposal facility is located that emergency access is required. It further provides.that "the notifications must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not toexceed180 days)necessarytoalleviatetheimmediateandserious threat to the public health and safety or the common defense and security."
It appears that the commentor does not believe this is sufficient. In response to this comment NRC has made the following change in the final rule: A new 62.22(b) is added which requires the NRC to submit this written determination to the appropriate Compact Commission as part of q the notification. The Sections 62.22(b) and 62.22(c) in the proposed
]
rule have been relettered as appropriate. 1 The new 62.22(b) reads: "The Secretary of the Commission will submit the notification described under 62.22(a), and the written determination described in 62.21(c) to the Compact Commission for the region in which the designated disposal facility is locatec' for such approval as may be I required under the terms of its compact. Any such Compact Commission shall act to approve emergency access not later than 15 days after receiving notification."
In order to accommodate the 15 day approval period, NRC has added the j following to the end of 62.22(b) of the proposed rule "... issuance of a determination, indicating it will be effective 15 days after the date the determination was issued,"
25 l
Comment 5.22 S62.27 Add a new $62.27, as follows: ;
"S62.27 Compliance with conditions of emergency access; termination of emergency access.
(a) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part. 1 (b) The Commission shall terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat {
to public health and safety or the common defense and security.
I (c) The Commission may terminate a grant of emergency access if an l applicant has made a material false statement in the application for I emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
l l
l The proposed rule does not address termination of emergency access. Further- I more, under the rule as proposed it is not clear that a state or compact could refuse to dispose of waste granted emergency access even if the i applicant or the wastes did not meet the conditions of disposal set by the Commission.
RESPONSE: The Commission agrees that terms and conditions should be established in the rule for grants of emergency access. For the reasons given in the comment, NRC has added a new Section 62.27 to the final rule which incorporates the suggested conditions for termination as recommended in this comment, along with the terms and conditions which the recipient is expected to meet. The new 62.27 reads:
62.27 Terms and Conditions for Emergency Acces[) General:Any
'LLW granted emergency access pursuant to this rule is subject to the general requirements for LLW disposal under L-____-_______________ __ _ . _ _
1 26 i
the Act, as well as those provisions which specifically address emergency access. Once the NRC has granted emergency access the waste of concern should be processed and disposed of by the generator and the designated receiving site in a manner that is consistent with other LLW disposed of under the terms of the Act. The disposal of emergency access waste should not preclude the implementation of any specific conditions, regulations, requirements, fees, surcharges, or taxes prescribed by the disposalfacilitywhichma3peineffectatthetimeofthe q Commission's determination to grant emergency access. !
Additionally, generators with wastes approved for emergency f
access should'not have to meet unusual requirements or pay )
l unusual fees (when specified in the Act) simply because l their waste is emergency access waste.
(b) Compliance with conditions of emergency access; termination of emergency access.
l (1) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission !
to provide emergency access may refuse to accept the wastes )
for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(2) The Commission shall terminate a grant of emergency i access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
(3) The Commission may terminate a grant of emergency access if an applicant has made a material false statement 1
in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
i 27 Comment 5.23 Miscellaneous Comments and Questions S62.6 Specific Exemptions i The provisions of this section would allow the Commission to bypass all of. !
the procedures of the emergency access rule by granting special exemptions. l Why is this section necessary? Under what circumstances would NRC grant special exemptions. What assurances do states and compacts have that this exception will not, in practice, become the rule? This provisions should be )
deleted.
RESPONSE: Provision 62.6 is not intended to allow NRC to arbitrarily ;
l bypass the procedures that will be established by the emergency access rule. It is impossible for the Commission to anticipate every situation j under which emergency access may be requested or needed. The Commission l l
believes the procedures and criteria established in the proposed rule l would accommodate most circumstances and scenarios. However, in the !
event that something unanticipated requires action ommission may have to apply its discretion and grant an exemption. Provision 62.6 is ,
included in the Part 62 only to acknowledge the Commission's overriding mandate to protect the public health and safety and the common defense and security and to provide the flexibility it may require in dealing with emergency access decisions to meet that mandate. Provision 62.6 remains unchanged in the final rule.
l Comment 5.24 662.11 Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Commission's Public Document Room and in the " Local Public Document Room of the facility sub-mitting the request." A request for emergency access could be submitted by any Governor or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public document rooms?
28 i
9 RESPONSE: There is no requirement that a given generator or' Governor 3 i
specifically maintain a local public document room for documents '
relating to emergency access requests. Usually there is a " local:public -;
document l room," however distant it may be, that maintains documents of public l
interest for every NRC or Agreement. State licensed fac.ility. Provision 62.11 was included in.the proposed rule in order tc' assure that documents relating to' emergency; access decisions would be made l available, as conveniently as possible, to concerned members of the public.
1 Comment 5.25 S62.23 Determination of Granting Temporary Emergency Access This section provides for the granting of temporary emergency ' access.to q
...an' appropriate non-federal disposal facility or facilities..." The provisions in Section 6(d) of the Amendments Act which pertain to~ temporary emergency access do not distinguish between non-federal. disposal facilities.
and regional disposal facilities. Does the NRC propose to limit temporary-emergency access to non-federal facilities in order to avoid the provisions i of Section 6(g) of the' Amendments Act, pertaining to approval'by a Compact j Commission?
l RESPONSE: The exclusion of "re'gional disposal facilities" was an oversight on the part of NRC. The final rule has been revised to include regional disposal facilities as recipients of temporary emergency access waste. l i
i
'29 B.6 Comment Letter #6 -- Faith Young, Tennessee Resident Comment 6.1 Only commercial wastes should be eligible for emergency access since the dumps are developed for that purpose.
RESPONSE: See responses to Comments 2.1, 2.2 and 5.6.
Comment 6.2 NRC must respect state or compact dump restrictions (including no greater-than-class-C waste).
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 6.3 Please register these as firm requests in your comment considerations and inform me of the outcome.
RESPONSE: Noted. No comment necessary.
l i
I
30 B.7 Comment Letter #7.-- Marvin Lewis - Pennsylvania Resident Comment 7.1 The rule has a basic flaw: The Federal Government and the NRC is regulating a State function or at least a Compact function. This is an obvious
' infringement of State's rights and an infringement which has both financial and health impacts. The compacts are state engineered agreements. The LL radwaste dump is a State or compact administrated facility. The Federal government and the NRC has less than any right to regulate when a site will be opened up to out of compact wastes.
RESPONSE: When Congress passed the original law called the Low Level Radioactive Waste Polijc g t of 1982, it made each state responsible for providingitsown[,bw-Tevelradioactivewaste(LLW)fg:::^r generated within its borders. State responsibility for LLW disposal-was reconfirmed in 1985 when Congress passed the low-Level Radioactive Waste Act Amendments (The Act). In the Act, Congress _also conferred certain regulatory or administrative responsibilities to both the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE). One of the responsibilities conferred to NRC was to grant requests for emergency access under the provisions of Section 6 of the Act. As stated in the preamble for the proposed rule, Congress believed if the states / compacts with LLW disposal sites denied other states / compacts access to their facilities, the public health and safety could be seriously jeopardized. NRC was given the authority to override such decisions to assure that the public health and safety would be protected. NRC does not intend to use grants of emergency access to interfere with the States' operation of their LLW facilities except as is necessary pursuant to its responsibilities under the Act to protect public health and safety. (SeealsoNesponsetoComment7.5.)
I
{
Comment 7.2 Also the sites have been carefully designed for what the State compact expects. Allowing unplanned wastes in will hurt the financial and planning picture for the particular compact. Implementation of the emergency access
31 l
provision should not force unplanned quantities or kinds of wastes on the-states with operating LLW disposal facilities and should not create financ 41 problems either.
RESPONSE: The Act sets upper limits on the number of cu.ft. of LLW that'. l are to be accepted by each facility through 1992. -The amount of LLW l granted emergency access is to fall within those limits. In addition,-
as discussed.in more detail in Comment 1.2, waste granted emergency y access will have to meet all the requirements and conditions for routine LLW disposal established by the facility designated, including the
. payment of appropriate fees, taxes, surcharges, etc.
Comment 7.3 States are also very worried about having to take D0D and DOE wastes.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 7.4 Also many compacts are not planning on large amounts of Class C wastes.
RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 7.5 All the above and more make this rule very premature and ill-conceived.
Please retract this rule for good and abundant cause. Let the non-Federal and the Regional authorities regulate their own access. This is an area l which the Federal authority and the NRC should not get into.
RESPONSE: NRC did not propose the emergency access rule without due cause. As is explained in the preamble to the proposed rule, NRC is l required by law (Section 6 of the Act) to make emergency access determinations.
l
32 ,
In that same law Cor.3ress specified the conditions that must be met by persons requesting emergency access, the factors NRC 4 to consider in :
making its determinations and establish the terms of grants of emergency f access. The proposed 10 CFR Part 62 serves to codify the requirements i in the law and NRC has tried to assure that the rule assumes no responsibilities for the NRC which were not mandated. (See also response to Comment 7.1).
i l
I l
1 l
l i
I l
33
-)
B.8 Comment Letter #8 -- William Gold, Lorraine Gold (citizens, New Jersey) J Comment 8.1 It has come to our attention that the NRC is authorized by the NRC to super- j sede state'and compact rights in situations where the NRC. deems the' 1
" disposal".of waste from outside'the region or' state to be an emergency.
It is of primary importance to the whole concept of compact and state. dump-siting that this emergency. authority be used only as.a last resort, when clear danger to the public is evident. '
RESPONSE: The' Commission agrees and so stated'in the discussion under Legislative History in' the preamble of the proposed rule.
l Comment 8.2 Further, only commerciai waste and not waste from the Departments of Energy or Defense should be eligible for. Emergency Access, since these sites are j being developed for commercial waste only.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 8.3 Regulations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or compact dump.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 8.4 All criteria and restrictions on types of nuclear waste acceptable at that state or compact's dump should supersede any NRC order.
RESPONSE: Criteria and restrictions at disposal facilities are to be considered and accommodated in NRC's decision to designate a site and in
34 l
any disposal of emergency access waste. (See response to Comments 1.2, 5.5)
Comment 8.5 Some states may choose to store nuclear waste rather than " dispose" of it, since the technology to dispose of nuclear wastes is still experimental. The rules should state that the NRC cannot force out-of-region waste to go to those sites.
RESPONSE: NRC cannot force a state to dispose of emergency access LLW at a facility designed for storage. (See the response to Comments 2.3, 3.3, and 10.5) l l
l
35 l I
i l
'B.9 Comment Letter #9 -- Jon R. Montan (St. Lawrence County' Envinnmental Management Council)
Comment 9.1 The recipient facility should be allowed to collect fees at levels sufficient to pay full expenses associated with the long-term operation and maintenance costs of the facility for any wastes that are received under direction by the-Nuclear Regulatory Commission. i
)
RESPONSE: NRC believes this statement expresses the intent of Congress l
regarding' disposal fees and has applied this ' interpretation in develop- )
ing 10 CFR Part 62. To clarify the financial responsibilities of the I person granted emergency access,. NRC has added a new "62.27: Terms and-
)'
Conditions of Emergency Access" to the final rule. (See'also Responses to Comments 1.2, 5.5, and 8.4)
Comment 9.2 The references in Section 62.25(d)(1) and (1) to activities generating wastes being "necessary for the protection of the common defense and security" are cryptic. What are examples of such activities by the Department of Energy and Department of Defense and what are the types of waste which could be 1 involved?
1 RESPONSE: (use in combo with exclusion in Act & scenarios developed i previously)
{
Comment 9.3 The Council members also wanted to express their concern that the states in which recipient faiclities 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.
36-i RESPONSE: NRC does have the authority to override the sited States /
Compacts to grant emergency access because Congress decided that establishing a mechanism for such an override would be in the public interest. As indicated in the discussions in the preamble for the proposed rule,. Congress expected that responsible action from the generators and the States / Compacts should result in the resolution of most access problems outside the emergency access process, so that hopefully NRC would not have to get involved in something that is really l the States' responsibility. (See also responses to Comments 7-.1 and 7.5) l
'I
37 B.10 Comment Letter #10 -- Anne Rabe, Executive Director NewYork Environmental Institute (Lobby Group)
Comment 10.1 We are writing in regard to 10 CFR 62, 52FR240:47578 on the proposed rule by NRC to force compact and state " low-level" radioactive waste dumps to accept out-of-state and federal nuclear waste in " emergency" situations.
RESPONSE: See the responses to Comments 7.1 and 9.3.
i Comment 10.2 !
New York State law (the Low-Level Radioactive Waste Management Act of 1986)
- specifically prohibits federal wastes, such as Department of Energy wastes, at any New York State " low-level" radioactive waste facility. There are a number of DOE FUSRAP sites, with long-lieved high-level waste, in New York which currently are being cleaned up or temporarily stored. We are aware that DOE has approached New York requesting access to its " low-level" radio-active waste facility for certain DOE wastes (such as U-238 and U-235 at the former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ-mental Conservation disapproved this request and the subsequent law upheld the state's policy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wastes. I RESPONSE
- None necessary.
Comment 10.3 To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste Policy Act which supports compacting and state's rights. The NRC is directly threatening the state's authority to exclude wastes.
RESPONSE: As indicated in the preamble to the proposed rule, the amendment to the Low-Level Radioactive Waste Policy Act direct NRC to
38 designate LLW disposal facilities to receive emergency access waste.
(See responses to 7.1, 7.5, and 9.3)
Comment 10.4 for states to accept federal wastes will in many cases cause the state's management of facilities (in terms of storage / disposal capacity, etc.) to be radically changed. How will states / compacts be able to adequately plan and manage their facilities with the threat of.NRC emergency declarations forcing substantial amounts of waste on them at anytime?
At the very least, the NRC should change the rules to: 1) Require strict adherence to state / compact requirements, including allowing only commercial wastes (not federal) up to Greater than Class C waste.
)
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 10.5 Other state restrictions on 100 year hazardous life, or only Class A, B or C wastes, must be strictly adhered to by NRC. j RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
l l
Comment 10.6 Lastly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes.
RESPONSE: See responses to Comments 2.3, 3.3, and 8.5.
Comment 10.7 Also, the term " emergency" is no assurance at all - the federal government 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
39 production has caused the " emergency" in the first place. States should not have to bail out the Federal government.
RESPONSE: NRC does not believe Congress intended the emergency access provision would serve to require States to " bail out the Federal government." As is explained in responses to Comments 2.1, 5.6, and 14.2, through Section 3(a)(1) of the Act, Congress gave States the responsibility for disposal of specific classes and types of LLW. Some of that waste is generated by the Federal government, but because that-
' fact is all laid out in the Act, the States should be well aware of what
" Federal government" LLW's they will or won't have to take. There are I
federally operated LLW disposal facilities and in an emergency involving LLW's that are the Federal government's disposal responsibility, NRC anticipates that the Federal facilities would be available to provide necessary disposal for wastes that are not the State's responsibility.
Comment 10.8 In closing, we call on the NRC to withdraw the proposed rule in its entirety l and to establish a comprehensive storage and reduction of production program which will ensure that no emergency will exist for federal government wastes.
1 RESPONSE: Most of the provisions included in the proposed emergency I access rule came directly from Congressional mandates in,Section 6 of the et, so the requirements for NRC to make emergency access determinations would remain even if NRC were to withdraw the rule. As far as establishing a comprehensive storage and reduction of production program is concerned, such programs and related decisions are not among NRC's responsibilities.
l 40 B.11 Comment Letter #11 - David Woodbury, President, American College of Nuclear Physicians Comment 11.1 We are writing on behalf of the American College of Nuclear Physicians and the Society of Nuclear Medicine regardine the NRC's proposed rule to estab-lish procedures and criteria for granting' emergency access to non-Federal and regional low-level waste disposal facilities. The Society represents over 1 11,000 physicians, physicists, radiochemist, radiopharmacists and technol-ogists 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 representirig over l 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 Amendments of 1985 (LLRWPAA).
During congressional deliberations on the LLRWPAA, the College and Society testified on several occasions in support of the emergency access provisions for generators of biomedical waste to LLW disposal facilities. Because access to disposal facilities is critical for 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 radiopharmaceutical production.
The medical applications of radioactive materials are not just a matter of importance to the specialty of Nuclear Medicine, but to the entire medical field as a whole. While an 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 research is dependent on radioactive tracers, and approximately 95% of all the prescription drugs in America are developed with the use of radioactive i
u _ _ _ _ _ _ _ _ _ - _ _ ____________m__-_--__ _ _ - _ - - _ .
41 tracers. It is clear, then, that radioactive materials permeate every aspect ;
of medical practice. ;
RESPONSE: No response necessary.
Comment 11.2 Disposal capacity for LLW generated by the manufacturers of radiopharmaceuti-cals is just as important, if not more, than disposal capacity for direct generators of medical LLW (i.e., hospitals, laboratories). We would urge the Commission to consider that on-site storage, while a feasible alternative in j some situations, may create problems for others. For example, today, most I hospital and laboratory waste is subject to volume reduction and on-site l storage and decay, as is evidenced by the fact that in 1986, medical waste
)
accounted for only 1.3% of the total volume of LLRW received at disposal )
sites (and only .0001% of the total activity). Unfortunately, however, in the case of lost access, the manufacturers of radiopharmaceuticals on which the Nuclear Medicine community depends would not be able to accommodate i on site storage because their higher-activity materials would conceivably J
) exceed available on-site storage capacity within one to six months. l l
In addition, we would like to draw your attention to the fact that on-site storage may not be feasible or desirable for larger volume and activity generators in academic research institutions and pharmaceutical houses because of the possession limits specified in the generators' licenses. For example, if most of the generator's possession limit is consumed by the activities present in the vaste stored on-site, then obviously there would be less radioactive materials available for important research or pharmaceutical development. 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, all of the medical activities using these materials would cease or be significantly curtailed.
RESPONSE: In the legislative history of the Act, Congress acknowledged the special LLW storage / disposal problems of the manufacturers of L
42 radiopharmaceuticals. The proposed.and expressed concern that essential medical services might be curtailed if access to LLW disposal were not available. NRC is aware of these Congressional concerns. As' indicated in the proposed rule, in order to determine if emergeng access should be granted, NRC intends to consider both the threat to '..e public health and safety if access is denied and also the impact on public health and-safety if essential medical services would have_to cease'as an' alter-native to granting emergency access.
Comment 11.3 The College and Society raise these fine points on. possession limits and
~
on-site storage so that the NRC recognizes the delicate balance between the' medical community's ability to provide necessary health care services and the availability of adequate LLRW disposal capacity.
RESPONSE: Noted.
Comment 11.4 We agree with the Commission and the Congres that emergency access should not be used as an alternative to diligently pursuing the compacting and siting.
processes mandated by the LLRWPAA. We also agree with the NRC that emergency access provisions are necessary as a contingency in_the event that access is denied or is unavailable, so that important health care services and research can continue uninterrupted.
RESPONSE: No response necessary.
Comment 11.5 In conclusion, the College and Society support the emergency access previsions of the LLRWPAA and the NRC's efforts to establish procedures and criteria for granting such access. We hope the Commission will bear in mind the unique characteristics of LLRW generated by medical institutions and radiopharmaceutical manufacturers and the necessity of access to disposal for
---_--_--_______j
43 the provision of vital medical care services in this country. Please feel free to consult with us if you require further information or assistance.
RESPONSE: Noted.
l i
l
i 44 B.12 Comment Letter #12 -- Kathy Lyons, Concerned Citizen, New Hampshire I
Comment 12.1 I wish to comment on the Low-Level Radioactive Waste Policy Act in which NRC has the right to force unwanted waste on state dumps.
l RESPONSE: None necessary.
i I
Comment 12.2 Please, in doing so consider this: Do not give us federal waste (D0D or I DOE),
RESPONSE See response to Comment 2.1.
Comment 12.3
...and do not give us waste outside of our Class, that's not acting responsibly.
RESPONSE: See response to Comment 2.2.
]
l I
Comment 12.4 Also, please keep in mind that state dumps couldn't handle waste with long l half lives and that some states may not have compatible wastes dump ,
1 :
l practices. l RESPONSE: NRC cannot force a state LLW disposal facility to accept LLW that is incompatible with its license agreement. (See responses to ;
I comments 7.1,7.2,7.5,9.3) l l
L__________-____________-______
t , a l
45 l
B.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology Alert I
l Comment 13.1 Although the Low-Level Radioactive Waste Policy Amendments Act of 1985 !
l doesn't require NRC to develop a rule, we agree your doing so is an excellent 1 idea.
But we feel the proposed rule could stand a bit of tightening.
1 RESPONSE: None needed.
Comment 13.2 Section 62.6 - We question the need and advisability of making any Specific Exemptions. It seems to us this lends itself to the granting of too much leeway by NRC - and possible abuse.
RESPONSE: (See response to Comment 5.23)
Comment 13.3 i Section 62.11(b) - The provision that you'll publish notice of requests received in the Federal Register, then allow 10 days for public comment, is ridiculous. j Probablynotonein20,000membersofthegeneralpublicever/seesthe Federal Register. If you want to notify them, you should publish such notice as a news release (not a legal advertisement) in a newspaper of local circu- I lation, and allow a comment period of at least 20-30 days.
RESPONSE: NRC recognizes that a 10 day public comment period is unusually short. However, the alternatives were a shorter comment period or no comment period at all, and both of those were unacceptable to the Commissioners. The Act does not require NRC to provide a comment period on requests for emergency access, probably because the Act l
i l
q 46 provides NRC only 45 days to review a request and determine if emergency access should be granted. Nevertheless, the Commission believes that the public should be notified when emergency access is requested and should have some opportunity for input into NRC's decisionmaking process. The Commission decided that a 10 day public comment period would, to a limited extent, meet those objectives and still hopefully )
allow NRC to complete its review in the allotted time. The Commission f concluded that a longer public comment period would likely preclude a timely response on the part of NRC.
1 I
i Comment 13.4 j Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be included in the category of low-level waste? l l
l RESPONSE: Section 62.12 sets out the information required by in order i to decide whether or not emergency access should be granted. The l l presence of transuranic in the waste would affect the Commission's i I i decision.
I I
Comment 13.5 Section 62.23 - Before granting temporary emergency access, why not allow a 10 day waiting period, so possible alternatives may be considered?
We feel this provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration.
RESPONSE: The sequence of events for granting temporary emergency access is established in the Act. Section 6(d) of the Act provides that "upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the common defense and security, the NRC may, at its discretion, grant temporary emergency access, pending its determination whether the threat could be mitigated by any alternative consistent with the public health
I 47-and safety." The Co:nmission has interpreted this to mean that when NRC.
concludes there is an urgent need for accass to disposal in order to protect the public health and safety or the common defense and security, NRC can grant a request for temporary emergency access for no more than 45 days, while possible alternatives to disposal are evaluated. NRC .l does not have to grant requests for temporary emergency access,-
particularly if a request is made because a generator failed to plan for i j
obvious or routine disposal needs. NRC will always have.the option of-denying emergency access or encouraging a requestor.to cease generating i such waste.
Comment 13.6 Section 62.24(b) - Re: extension of emergency access, this says the require-ments of Section 62.21(c) and (d) must be followed. There is no Section 62.21(d).
RESPONSE: The typographical error noted in this comment has been corrected.
Comment 13.7 Finally, under Specific request for comments, you ask what should NRC do if no site is found to be suitable for emergency access?
We suggest you'then require the operator to cover the pile of low-level waste with lead shielding, topped with enough soild to stop radiation from .l escaping.
Response: Noted.
i I
l
48 _j I
'i B.14 Comment Letter #14 -- Diane D' Amigo, Nuclear Information and. Resource' Service Comment 14.1 Although the intent.is' that NRC use its Emergency Access auth'ority only as a-last resort, the danger is present that. states could be required to'.take waste they choose to exclude. This loophole in the'1985 Low-Level' Radioactive Waste Policy Amendments Act threatens ' states authority to exclude waste.
We have very serious concerns'with the emergency access provisions but-under-I standing that NRC is not in the position to change the. federal law, we submit the following suggestions to make the regulation as strict as possible and to guarantee, to the greatest possible extent, that the provision'not be' abused.
RESPONSE: None necessary.
Comment 14.2
- 1. Clarify that Federal waste (at least that for which states and compacts are not currently responsible) is not eligible for emergency access. .
1 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 that.should be eligible for Emergency Access. The rule should clearly prohibit Federal waste (ex: waste from Departments of Energy or Defense). There are two places in the regulation which indicate that such wastes could be given emergency access. They are in Section 62.2, the definition of " person" who can apply for emergency access and in Section 62.13(a)(5) which gives a condition for " Federal and defense related generator (s) of LLW to meet in their " request for emergency' access."
First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive officer on behalf of "any ;
generator or generators of low-level radioactive waste located in his or her t i
49
" State..." Such generators could include generators that are not NRC or NRC Agreement-State licensed. We would like to see provision made to clearly prohibit 00E and D0D and other federal agencies and contractors from gaining y access to state and compact dumps via emergency access.
Second, Section 62.13(a)(5) (which appears misprinted as 82.13 in 52 FR240:
47587 December 15, 1987) requires that Federal or 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 requirement is essential.
I Both the definition of " person" and Section 62.13(a)(5) should clarify that only those Federally generated wastes for which states are already responsible (as defined in the 1985 Low-Level Radioactive Waste. Policy Amendments Act Section 3(a)(1)(B)) are eligible-for emergency access. This excludes Department of Energy waste and U.S. Navy waste from decommissioning Navy vessels and any nuclear weapons research, development, testing or production waste. That waste should be clearly excluded from eligibility for emergency access.
RESPONSE: As discussed in responses 2.1, 2.2 and 5.6, NRC intends only to grant emergency access to LLW that would otherwise be eligible for -l routine disposal at regional or state disposal' facilities according to the terms and conditions of the Act. NRC does not intend for emergency access to be used by ineligible parties or for ineligible wastes as a means of acquiring access to LLW disposal. In the proposed rule, NRC was silent on this particular point, assuming that it would be clear in the context of the other provisions of the Act. It is now obvious to-the NRC that the intention must be specifically addressed in the final rule to reduce concerns the States or public might have that emergency access will provide a mechanism for undesired and unplanned for wastes to access their sites.
1
- - _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ . __ _ _ l
50 In direct response to this specific comment, the definition for " Person"'
has been revised in the final rule to read " 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 a low-level radioactive waste which was designated the States' responsibility for disposal by the Act; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any NRC or NRC Agreement State licensed generator or Generators of low-level radioactive waste located in his or her " State" which was designated the States' responsibility for disposal; or their duly authorized representative, legal successor or agent." Section 62.13(a)(5) was also revised in response to this comment and in the final it reads "..., (5) requesting disposal at a Federal low-level radioactive watse disposal facility in the case of a Federal or defense related generator of LLW whose wastes would normally be eligible for State or Regional LLW disposal under the Act." (In both cases the changes have been underlined here to facilitate review.)
l (
Comment 14.3 Arguments against leaving the regulations open to Federal waste: (1) It is l 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 generation of large volumes, concentrations, and numbers of curies in radioactive waste. We would encourage remedial action and clean !
up of many of those sites but can foresee the usual dilemma of where to put I the waste that is " cleaned up." Unless non-federal facilities are planning for such responsibilities, they should not be saddled with Federal waste, as the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow.
I RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
1 l
- 51. -
Comment 14.4 (2) Furthermore, 00D, DOE and other Federal waste is not currently classified as Class- A, B, C or Greater-than-Class-C;(C+), as'is commercial <
waste. It will be difficult to determine whether Federal waste meets the license criteria for any non-federal sites that use.the A, B, C, C+ method of categorizing " low-level" waste. Even if DOE relcassifies its wastes as A, B, C and C+, the source of such waste is much different than commercial waste-and could po:,e technical problems which states and compacts are not considering in their dump planning.
RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
Comment 14.5 A potential concern here however, is that state and compact 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 only non-Federal LLW disposal facilities eligible to accept such waste thus would be required to accept such waste every time NRC l 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 taking on longer-lived and more concentrate'd wastes.
RESPONSE: Noted. No comment necessary.
Comment 14.6 Although there are serious unresolved problems with this method (10 CFR 61.55) of classifying " low-level" radioactive waste, we understand that many states and compacts will likely follow those regulations.
1 RESPONSE: None necessary.
l 4
q 52 Comment 14.7 (3) There could be a conflict.of interest if DOE'and D0D waste are eligible for Emergency Access when they are providing NRC with the assessment of the ]
impacts on the " common defense and security" of (a) accepting the waste for-emergency access, and (b) allowing the continued generation of the waste i
requiring emergency access.
RESPONSE: NRC is aware that the proposed rule creates.the potential .for a conflict of interest in those situations where 00D or DOE is required to certify that a particular generator requires emergency access 3in order to mitigate a serious'and immediate threat to'the common defensei l and security. However,.the preamble also indicates that while NRC will require such certification from DOE or D0D in order to even consider. a generator's request for emergency access on the grounds of a threat to .q the common defense and security, NRC plans to consider the certifications but not to treat them as conclusive. Congress-deliberately gave NRC the responsibility for making the common defense and security determinations and the Commission intends to exercise this discretion in making its emergency access decisions.
Comment 14.8
- 2. States' and compacts' right to refuse waste that does not meet the speci-fications they are designed and licensed to accent should be strengthened.
l l
RESPONSE: NRC is not in a position to strengthen the rights of States and compacts to refuse emergency access waste that doesn't meet the specifications of their sites. Both NRC and the States must work within the bounds established in the Act. However, as discussed previously in responses to Comments 7.5, 9.3, and 10.1, NRC believes the mandate from Congress in this area was quite clear. NRC does not believe Congress intended NRC to grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to receive them. So States should not have to be too concerned about the right to refuse wastes granted emergency access by the NRC pursuant to 10 CFR Part 62.
l
53 Comment 14.9 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 disposal facility-from consideration (from taking Emergency Access w'aste) if the waste doesn't meet the license criteria of the facility. The rale should make clear that if state or compact dumps have other. restrictions such as prohibitions on wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those criteria and not grant access-to waste that does not-meet those criteria.
RESPONSE: According to the Limitations set out in Section 6(h) of the i Act, regulatory restrictions on disposal at a site must be' considered by' !
NRC in making its, site designation and as NRC has indicated in responses- j to Comments 2.1, 2.2, 5.6 and.14.1, NRC is committed to observing those-limitations.
l Comment 14.10 2.A. Since state and compact " low-level" dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit NRC !
from accepting applications for Greater-than-Class-C waste.for emergency access. .
1 The definition of " Low-Level Radioactive Waste" in Section 62.2 should be.
I changed to exclude the waste (C+ and its equivalent) which is excluded from state responsibility in the 1985 Low-Level Radioactive Waste" definition is left as is for the sake of 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 make 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).)
RESPONSE: See responses to Comments 2.2, 5.6 and 14.2.
t
54 Comment 14.11
- 3. Incineration should not be required as.a part of maximum volume reduction or waste treatment prior to NRC granting emergency access.
Compaction and supercompaction may be required and possibly other solidifica- l tion treatments but incineration releases radionuclides into the environment, generates radioactive ash that must then be solidified and continues the l process of generating'more " low-level" radioactive waste. This rule should in no way require radioactive wasteAIMci"8'd"*
l RESPONSE: The proposed rule does not require that LLW be incinerated )
prior to NRC granting his waste emergency access. Provision (i) of the !
Emergency Access Section of the Act, " Volume Reduction and Surcharges"
- requires that "any low-level radioactive waste delivered for disposal- !
under this Section (emergency access) shall be reduced in volume to the maximum extent practicable." For the proposed rule, the Commission decided it would be worthwhile for NRC to evaluate the extent to which volume reduction methods or techniques will be or have been applied to to the wastes since the Commission is mandated to evaluate alternatives l available to the generator and volume reduction is one of those alternatives. In the preamble, NRC listed incineration as one of the treatment technologies that the Commission would evaluate to determine if the emergency access waste had been reduced in volume to an extent consistent with the directive in the Act. The preamble further explains that NRC believes the optional level of volume reduction will likely vary with the waste, the conditions under which it is stored, and whether volume reduction processing creates new wastes requiring treatment or disposal (as would be the case for incineration). NRC anticipates that decisions on adequate volume r_ eduction will have to be made on a case-by-case basis. The Commission does not expect that one particular approach will be maximally effective in all cases, so the rule does not prescribe any particular method as a must to achieve maximal volume reduction. Rather, the Commission will be looking to see that available volume reduction techniques, including incineration, have l been thoroughly investigated by the requestor as possible alternatives to requesting emergency access. Incineration may be attractive to one l
55 generator as an alternative but may pose serious difficulties for another. Whatever the decision, incineration should be addressed and the rationale for the' decision should be explained in the analysis of. !
alternatives that is to be part of a request for emergency access. 'j i
Comment 14.12 1
- 4. States and CompactsLthat are required to' accept emergency access waste q should be permitted to charge fees and surcharges on emer'. :y access. waste- ;
and to enforce regulations and criteria that they determine are necessary for !
responsible isolation of the waste from the environment and to hold the generators liable for long-term care costs. j 1
J RESPONSE: See the responses to. Con:ments 14.7, 5.6, 8.4, and 9.1.
Comment 14.13
- 5. We encourage NRC not to weaken'any of the requirements for Emergency I
Access applicants.
RESPONSE: Noted.
l-l 1
i l
1 l
C____.________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ _ _
1 56' )
i B.15 Comment Letter #15 -- Hannah Katz, Concerned Citizen, N.Y.
Comment 15.1 I hear that your Commission may consider to send greater-than-Class-C waste to any state or compact dump. Though it is said, "in emergency only,". nobody doubts that such emergencies will happen frequently as long as-you produce weapon grade plutonium.
RESPONSE: The emergency access rule applies _only to LLW, which for the most part is generated by utilities with nuclear reactors, hospitals, and research facilities. Weapon grade plutonium is not considered to be l low-level radioactive waste.and would not qualify for emergency access j
to LLW disposal facilities under the Act._ Also, under Sec.'3(a)(B)(iii)
LLW owned or generated as a r% dit of any research development, testing l
or production of any atomic weapon is deemed not to be eligible for disposal at State LLW disposal facilities.
1 Comment 15.2 j I urge you to reconsider such interference in the' rights of states and of l citizenry.
RESPONSE: The NRC is not trying to interfere with the rights of states by proposing this rule. The NRC was mandated by Congress to make determinations on requests for emergency access to LLW disposal facilities in order to protect the public health and safety. The NRC's emergency access rule will only be implemented when a generator or a l
state requests LLW emergency access disposal assistance from the NRC.
Comment 15.3 Clean earth, clean water, and clean air are essential for life and more important for healthy citizens than weapons whose production contains-deadly radioactive waste. Your consideration in favor of human beings will be appreciated. Thank you.
RESPONSE: Noted.
l l
l Y_______-._------_________. _ _ _ - - _ _ .
57 B. 16 Comment Letter #16 -- Donald Hughes, Sr. Manager, Kentucky Radiation Control Office and Commissioner of the Midwest Compact Comment 16.1 The Kentucky Radiation Control Program would like to make its wishes known, relative to the above referenced proposed rule, by totally supporting the comments provided by Terry R. Lash, Director, Illinois Department of Nuclear Safety, in a letter (attached) submitted to the U.S. Nuclear Regulatory Commission dated February 11, 1988.
Rather than reiterate the various comments contained in the attached letter, we feel that Dr. Lash's comments are not only reasonable but fully justified.
Not only does he agree with much of the proposed rule but he points out errors that must be corrected. 1 i
RESPONSE: Noted.
1 Comment 16.2 In addition to managing the Kentucky Radiation Control Program, I also serve as Commissioner on the Central Midwest Compact Commission. As Dr. Lash stated, the state of Illinois is presently engaged in the 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 dramatically effect how low-level radioactive waste disposal facilities can function.
RESPONSE: None necessary.
58 B. 17 Comment Letter #17 -- William Dornsife, Bureau of Radiation Protection,. Pennsylvania Comment 17.1 This proposed rulemaking has several major flaws that if not corrected could l
potentially act to undermine the substantial progress that has been made to date on implementing the Low-Level. Waste Policy Amendments Act of. 1988 .
RESPONSE: None Necessary.
Comment 17.2 First and foremost, this proposed rule appears to violate the entire premise of.the Act, that each State is responsible for disposal of its own low-level radioactive waste. The rule should require that the State or Compact where the problem is located must demonstrate that it has exhausted its options for dealing with the problem. This should include the attempt-to enter into reciprocal agreements with other States or Compacts, or the State taking title to and storing the waste until access can be provided under the normal terms of the Act.
RESPONSE: The Commission drafted the proposed rule fully intending that the States and Compacts whose generators have been denied access to'LLW disposal would share in the responsibility for identifying or providing alternatives to emergency access. In fact, the NRC's understanding was that several of the alternatives listed in Section 63.13, specifically.
"(2) storage of low-level radioactive waste in a licensed storage facility," and "(3) obtaining access to a disposal facility by voluntary agreement," were actually State or Compact alternatives. In reviewing the proposed rule, it has become evident that the NRC's expectations for the States and Compacts to also exhaust their options for dealing with the problems caused by denial of access were not adequately conveyed.
As a result, the Commission has made the following changes to 62.13(a),
(a)(5&B) and 62.13(b): (See the response to Comment 17.2 for changes) 1
59 In addition, a discussion of the States'/ Compacts'. responsibility in this area has been added to the preamble.
Comment 17.3
.It appears as if waste which is not a State responsibility under the Act (i.e. , DOE waste) could be included under the emergency. access provisions.
We do not believe that this was the intent of Section 6 of the Act. We find it hard to believe that the Federal Government, with all its infinite resources, should not be first and only party responsible.for disposal of this waste.
RESPONSE: The discrete State and Federal responsibilities for'LLW:
disposalhadeenaddressedinthefinalrule. See responses to Comments 2.1, 2.2, 5.6, and 14.2.
Comment 17.4 The most likely scenario that may require emergency access appears to be that of a bankrupt generator where the State or Compact cannot or will not provide for disposal. Under these circumstances, it is not clear who would have the responsibility for the application, liability, volume reduction, and cost requirements.
RESPONSE: (to g rs b h Wh Comment 17.5 In order that the credibility of the process be maintained, this rule must ;
not be viewed as a way of circumventing the 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 provisions and restrictions concerning out of Compact access. If at all possible, those provisions should dictate when and under what circumstances l emergency access should occur. The provisions of this rule should only be 1
1 I
l i
60 used as a last resort and the language should be such that this intent is clear.
RESPONSE: This is NRC's intent, as is stated in the preamble to the proposed rule and elaborated on in responses to Comments 2.1, 2.2 and
- 5. 6.
l l
1 Comment 17.6 1 l
In addition, we have reviewed the specific issues for which input has been j l
l requested and have the following comments-l
~
- 1) What scenarios are envisioned where emergency access would be required? f a
As written, the rule could require acceptance for disposal of federal waste under " temporary emergency access" provisions. !
l 1 If a State or Compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing. !
1 A generator is denied access to a State or Compact disposal facility for whatever reason.
An unusual occurrence such as bankruptcy of a generator causes abandonment of extremely large volumes of waste which exceed State or Compact capacity for safe disposal.
RESPONSE: The scenarios described in this comment have been considered and do not necessitate any changes to the proposed rule.
Comment 17.7
- 2) What are the potential problems with NRC's approach to determine an immediate and serious threat to the public health and safety?
2 The difference between " emergency. access" and '! temporary emergency .
access" provisions for this determination are not consistent with Section 6(d) of the Act. The Act clearly states that.an emergency
-access determination.must be made before tempoiary; emergency access can be considered. "Upon determining that emergency access is necessary...the commission." 'This is not consistent with the'
' definitions and suggested implementation of the two terms in the proposed rule.
RESPONSE: See the response.to Comment 13.5 for clarification on the distinction made in the proposed rule between temporary emergency access and erergency access.
Comment 17.8
- 3) What are the potential problems with the determination of serious and immediate threat to the common defense and security?
In making this determination, can all or part of the information provided by the generator be kept confidential, or not be released to the receiving facility, under the claim of national security?
RESPONSE: (To be provided by Chip Cameron)
Comment 17.9 The Host State or Compact in which the requesting generator resides should be required to exhaust all options and accept responsibility for dealing with the problem before being allowed to make a request.
1 RESPONSE: See the response to Comment 17.2.
Comment 17.10 The issue of economic feasibility and a person's financial capability should not be a consideration in dealing with emergency access.
62 RESPONSE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency access decisions.
I
63~ .j l
Comment 17.11 If a legitimate emergency access condition.is determined, and the Host State or Compact cannot provide for a safe' solution to the problem, either by themselves or through reciprocal agreement, then the use of Federal disposal facilities should be the first priority before other non-Federal disposal facilities. :
i L RESPONSE: The statute did not provide for that option. Section 6(a) states that NRC "may grant emergency access to any: regional disposal l
facility or non-Federal disposal facility --- if necessary to eliminate an immediate and serious threat to the public health and safety or the .
common defense and security." While the proposed rule does require that-any Federal or defense related generators attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting ;
emergency access to a non-Federal facility, the Act does not confer to NRC the Authority to designate Federal disposal facilities to receive.
emergency access waste.
i The purpose of the Act is to make the disposal of LLW a State responsibility and to encourage States to work out disposal problems ,
amongst themselves. Congress believes that if Federal LLW disposal )
facilities would provide backup disposal in the event that the States do I not provide needed capacity, this would serve as a disincentive to the States.
i Comment 17.12 The are no provisions for equitable distribution of the waste if non-Federal j facilities are needed for disposal.
RESPONSE: Under VII(c) of the proposed rule, NRC explained that in order to distribute the waste as equitably as possible the designation of a receiving site will be rotated and, for the three currently operating facilities, allocations will be made in proportion to the volume limitations established by the Act, to the extent that these are l
l v _ _ _ _ _ - _ _ _ _ - - - _ _ _ _ _ _ _ _ _ .
64 ;
)
i practical. (Note to reviewers - should a provision stating.these intentions be added to the rule itself? at the end of 62.26?) '
Comment 17.13 As written, the 20% volume criteria could eliminate the smaller non-Federal facilities'from consideration almost immediately. Provisions can be added-which would divide up emergency waste if necessary to. ensure that all operating facilities receive their fair share. Such provisions could also be j consistent with any established reciprocal agreements a receiving facility .j had in place at the time. :
RESPONSE: The 20% volume-criteria that appears in Section 62.26 of the proposed rule came directly from Section 6(h) of the Act. Apparently, {
Congress believed that establishing such a limitation would be the most equitable way of distributing emergency access waste.
Comment 17.14 There are no provisions for existing State or Compact laws with respect to reciprocal agreements or time requirements for emergency disposal conditions as covered in Section 6(f) of the Act.
1 RESPONSE: (See responses to Comments 4.1 and 4.2) !
I Comment 17.15 Is a determination appealable?
l RESPONSE: (To be provided by Chip Cameron) 1 Comment 17.16 j
- 5) What should the NRC do if no site is found to be suitable for waste I requiring emergency access.
l j
l
\
-65 The NRC should develop contingency plans BEFORE an emergency occurs.
Suchplanscouldincludethedevelopmentof'anNRCfacilityespecIally'- i for emergency conditions. The.NRC could also develop equitable reciprocal agreements.now for the determination of emergency disposal. l sites in the future. Such agreements should' include ~ Federal disposal!
-1 facilities. 1
-1 l ^!
RESPONSE: Noted.
i l
L_--____-_---____-_--_-________- _
1 1
66 .
B.18 Comment Letter #18 -- Clark Bullard, Chairman, Central Midwest' Compact-Commission. ;
)
1 i
-l Comment 18.1 The Central Midwest Compact Commission fully endorses the comments submitted j by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988. )
1 RESPONSE: Noted.
1 Comment 18.2 ;
~
The IDNS comments deal with sensitive political issues that must be resolved-promptly if the Central Midwest Compact is. to meet the remaining milestones 9 under the LLRWPAA of 1985. Moreover, the integrity of the. entire Compact system could be undermined by any hints that NRC is less than fully committed to respecting the . statutory exclusion of greater-than-Class-C waste. q l
1 RESPONSE: See the response to Comment 2.2.
Comment 18.3 We urge you to adopt the IDNS. comments intact so our ability to meet the ]
remaining milestones is not impaired. I l
RESPONSE: Noted. !
1 i
i L____________.______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
67 B.19 Comment Letter #19 -- John S. Kemper, Philadelphia Electric Company Comment 19.1 Notice of a proposed rule on emergency access to non-Federal low-level radwaste disposal facilities appeared in the Federal Register on December 15, 1987. Philadelphia Electric Company believes that the proposed criteria for allowing emergency access to disposal sites are well developed and will be l effective in maintaining control of the amount of radioactive waste sent to such sites.
RESPONSE: Noted.
t Comment 19.2 One aspect of this process, however, may prove to be a detriment to its smooth administration: the 10-day public comment period.
If a situation is truly an emergency, delaying the disposal of waste may result in an increased hazard to public health and safety. Additionally, the current climate of public awareness and tendency towards legal intervention could combine in action aimed at the cessation of the generation of waste (i.e., the shutdown of the generator). Another method to keep the public informed should be developed: perhaps a periodic publication of all petitions for emergency access, and the results of each.
l RESPONSE: The 10-day public comment period provided in the rule should l not delay the disposal of waste pursuant to a request for emergency access because that 10 days is intended to occur as part of the 45 days provided for NRC to make its decision. As explained in the response to Comment 13.3, the Commission believes it is important to provide the public some opportunity to comment on requests for emergency access. If the situation is truly an emergency and no alternatives are available, public comment will not likely alter NRC's response to any particular j i request. (See response to Comment 13.3 for elaboration.)
1
w 68 Comment 19.3 We are confident that the proposed criteria are strict enough to protect the public health and safety without delaying the process to consider public concerns for each occurrence.
RESPONSE: None necessary, l
I l
1 i
l 1
i
1 69 B.20 Comment Letter #20 -- Jessie DeerInWater, Chairperson, Native Americans f 1
.for a Clean Environment J Comment 20.1 NACE joins with Mr. Marvin Lewis of-Philadelphia, PA in his opposition to' Proposed Rule: Criteria and Procedures for Emergency Access to Non-Federal -l l
and Regional Low-Level Rad Waste Sites.
RESPONSE: Noted.
Comment 20.2
'he i rule would allow the Federal Government and the NTC to regulate a State function...or at least a Compact function. 'This'is an infringement of' State's rights which has both financial and health impacts.
I RESPONSE: See the responses to Comments 7.1, 7.5, 9.3, and 10.1.- i Comment 20.3 .
Since State and Compact dumps are being developed for commercial waste, this is the only waste that should be placed into the dumpsites. . Federal waste should be disposed of at their own facility, since it would be unknown what l might be contained in waste coming from the DOE and the D0D. It is our belief that federal waste is often greater-than-Class-C waste.
1 RESPONSE: See responses to Comments 2.1, 2.2, 5.6, and 14.2.
1 1
Comment 20.4 We must all act now to protect future generations. il RESPONSE: None needed.
l
70 1
B.21 Comment Letter #21 -- Greta J. Dicus, Arkansas Dept. of Health Comment 21.1 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)Lfacility. The proposed rule appears to be compatible with these provisions in that the criteria set forth are stringent enough to render it improbable.that waste generators would qualify for emergency access. We support the concept of emergency access as presented in the proposed rule and make special reference to the fact that the process must not be used to circumvent the development of regional Compacts.
I RESPONSE: None necessary.
Comment 21.2 Specific Comments The Act and the proposed rule imply that granting temporary emergency access is a one time action that cannot be extended. If this is correct, the rule should clearly indicate same. If this is incorrect, the rule should define j the number of times and/or the length of time extension (s) can be-granted.
RESPONSE: Neither the Act nor its legislative history specify whether temporary emergency access can or cannot be extended. However, NRC does ,
not believe Congress anticipated that extensions of temporary emergency access would be needed. After 45 days, the requestor would lose access to disposal unless he could demonstrate to NRC that the serious and immediate threat persisted and the threat could not be mitigted by any reasonable alternative, at which point he would be granted regular ,
emergency access. Thus, in the absence of any specific guidance from Congress, NRC plans to grant emergency access for up to 45 days only, ,
with no extensions. If a serious and immediate threat were to persist af ter 45 days because of a lack of access, to disposal, but the alternative analysis was not complete, the Commission would have to use
71 its discretion to decide what action to take. (Note: should this be addressed in the preamble or rule?)
Comment 21.3 If the need for emergency access is the result of a regional or non-Federal facility denying access to a generator, the reason (s) access was denied should be considered by the NRC when making its decision.
RESPONSE: NRC plans to consider the reason access was denied and has required that information to that effect be included as part of a request for emergency access. Section 62.12(g)(1) of the proposed rule requires a description of "the circumstances which led to the' denial' of access" and 62.12(i) requires the requestor provide NRC with~
" documentation certifying that access has been denied."
Comment 21.4
- 1. What scenarios are envisioned where emergency artess would be required? --
Response: The regional or non-federal facility utilized by generators is closed by regulating authorities, the facility operator or extraordinary events.
Access to a facility has been denied for non-technical reasons.
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 arrangement proposed for making the determination of serious and immediate threat to the common defense and security?
72 Response: No comments at this time.
- 4. What are the potential difficulties with the proposed approach for designating the receiving site?
Response: No comment at this time.
- 5. What should NRC do if no site is found to be suitable for waste requiring emergency access?
Response: - Consider disposal at a federally-operated facility.
- Allow indefinite "in situ" or " intermediate location" storage.
RESPONSE: All have been noted.
t
- T M
644 Document Name:
PART 62 COMMENT ANALYSIS - 77) k y,df Requestor's ID: % .g gg, f f,.., j RINN Author's Name:
janet lambert l
Document Comments:
comments and responses l
l l
l l
l I
l l
l l
l l
l
vuve m u v ~y-- - gr. o
_ , , , < j a gg4/ p h ,rlJ590-01]
(a,s catu/ s c a m s.)
q%a c<w.& p NUCLEAR REGULATORY COMMISSION fo oQ buw
^ 9//9 10 CFR PART 62 C'iteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities
. 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 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 l 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 .',ealth and safety or the common defense and security.
i DATES: Comments should be submitted on or before .
l l 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 1
ADDRESS: Submit written comments to the' Secretary of the Commission, i U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
I Docketing and Service Branch. Copies of comments received and the j regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555.
s FOR FURTHER INFORMATION CONTACT: Janet! Lambert, Division of Low-Level 1
Waste Management and Decommissioning, N92 3855U.S. Nuclear Regulatory Commissi Washington, DC 20555, telepnone (301) 449-fPe9.
]
i SUPPLEMENTARY INFORMATION: l I. Background )
l II. Legislative Requirements l III. Legislative History IV. NRC Approach V. Assumptions VI. The Proposed Action VII. Rationale for Criteria VIII. Specific Request for Comments IX. Requests For Emergency Access Made Prior to the Effective Date of the Rule l X. Finding of No Significant Environmental Impact: Availability XI. Paperwork Reduction Act Statement XII. Regulatory Analysis .
XIII. Regulatory Flexibility Certification XIV. List of Subjects in 10 CFR Part 62 i
I
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 i the development of regional LLW disposal. facilities so that the new. j facilities will be available by January 1, 1993. .
l' The Act establishes procedures and milestones.for the selection and 1
' development of the LLW disposal facilities. The Act also establishes a stem of incentives for meeting the' milestones, and penalties for
~
failing to meet them, which is intended to assure steady progress toward new facility development.
~
i The major incentive offered by the Act is that the States and l regional Compacts which meet the milestones will be allcy;ed to continue to use the existing disposal facilities until their own facilities 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 j j
facilities are authorized to demand additional fees for wastes. accepted .
"1 for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities. 1 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 j 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 3
i i
1
)
consistent with the public health and safety, including ceasing the activ-ities 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 l forth the procedures and criteria that will be used by the Commission to i
determine if emergency access to a LLW disposal. facility should be granted. ;
II. Legislative Requirements t .
In addition to directing the NRC to grant emergency access as discussed in the Background section, the Act further directs NRC to I 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 I Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.
The Act provides that NRC can grant emergency access for a period ned to exceed 180 days per request. To ensure that emergency access is not abused, the Act alloe 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 diligently though unsuccessfully 4
)
_________________m ---_----.m_- -
l acted during the period of the initial grant to eliminate the need for emergency access.
The Act also provides that requests for emergency 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 defense and security pending a Commission determination as to whether )
[ the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
i Although the Act does not require NRC to develop a rule to carry out !
i its Section 6 responsibilities, NRC is proposing this rule to establish j l
the procedures and criteria that will be used in making the required l emergency access determinations. Since the requisite condition that must 1
be met in order for a requestor to be eligible for emergency access con- ;
sideration 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 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 responsibility 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 the procedures and criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to provide an opportunity 5
for input from potentially affected individuals and organizations, add predictability to the decisionmaking process, and to help ensure that the NRC will be able to make its decisions on emergency access requests within the time allowed by the Act.
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 by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity. The legislative history indicates that Congress believed that with the various management options available to LLW generators, including, for example, storage or ceasing to generate i
the waste, the instances where there was no alternative to emergency 1 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 consistent both with the actual text of Section 6 of the Act and with ;
the intent expressed by Congress regarding decisions made pursuant to Section 6. The proposed rule sets strict requirements for granting emer-gency access and serves to encourage potential requestors to seek other l
6 l
i i
j l
means for resolving the problems created 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 i
have been met and emergency access is needed. Applicants for emergency access will have to provide clear and convincing evidence that they have i exhausted all other options fof managing their waste. By establishing strict requirements for approving reque~sts for emergency access, NRC i
intends to reinforce the idea that problems with LLW disposal are to be j J
worked out to the extent practical among the States, and that emergency
, 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 reading of the Act and the supporting legislative history.
Section 6(g) of the Act requires the NRC to notify the Compact j Commission for the region in which the disposal facility is located of l 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 I
emergency access not later than fifteen days after receiving notifica- ;
I -
l tion" from the NRC. The purpose of this provision is to-- l l \
- ensure that the Compact Commission is aware of the NRC's grant i of emergency access and the terms of the grant, j
- allow the Compact Commission to implement any administrative procedures necessary to' carry out the grant of access, and I
- 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 Section 6(g) should not be construed as providing the Compact Commission 7
L - - - - - - - - - - _ _ . _ _
I l
with a veto over the NRC's grant of. emergency access. The basic purpose of .the Section 6 emergericy 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 j legislative framework established in the Act. As emphasized in the i . 1
, House Committee on Interior and Insular Affairs Report on the_Act, l d
l ratification of a Compact should be conditioned on the Compact's acting 1 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).
IV. NRC Approach- l 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 certification ' h t will have to be submitted with any request for emergency access in order for NRC to i 1 make the necessary determinations. l
- 3. assure that the procedures and criteria that are established in 10 CFR Part 62 can be implemented within the 45-day period specified in I
the Act.
- 4. establish procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consistent with the other provisions of the Act, including the limits on the amount of waste that can be disposed of at each operating facility.
i 8 !
1 1
l
- 5. establish requirements for granting emergency access that are stringent enough to discourage the unsited States and regions from viewing emergency access as an alternative to diligent pursuit of their i I
own disposal capability, and yet flexible enough to allow NRC to respond '
appropriately in situations where emergency access is genuinely needed to protect the public health arid safety or the common defense and l security. ~
V. Assumptions In developing the rule NRC made several assumptions. These assumptions are discussed below, j l
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 con-
)
l ceive of situations where denial of access to disposal would t.reate a serious and immediate threat to the public health and safety or the national security. In most cases generators should be able to safely store routinely generated LLW or employ other options for managing the )
waste without requiring emergency access. Thus, if all the LLW 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 l 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 i would be different in each case. 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
J
.o I
.)
a w e y, a ,vec & as w u m h55 m & pJ4 vc 6. red class qduJ 44tf
)
W E IA % E^* *b e At%5 k dy & r And
- au+ u.~ - ~ g l
"(A) low-level ra'dioadve waste generated within the State (other than by the Federal Government) that consists of or ~ {
contains class A. B, or C radioactive waste as defined by section 61.55 of title 10. Code of Federal Regulations, as in effect on January 26,1983; '
"(B) low-level radioactive waste described in subparagraph (A) that is generated by the Federal Government except such waste that is- - j
"(i) owned or generated by the Department of Energy;
"(ii) owned or generated by the United States Navy as a l result of the decommissioning of vessels of the United . 1 States Navy;or , 1 i
"(iii) owned or generated as a result of any research, .
development, testing, or production of any atomic weapon; and I
"(C) low-level radioactive waste described in subparagraphs '
(A) and (B) that is generated outside of the State and accepted for, disposal in,accordance with sections 6 or 6., ,, ,
Y &lL YY w AJtc.
644u W W $g@ ' ' '
I l
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 1 intend to consider requests for emergency access for wastes generated by.
commercial nuclear power stations as a result of unusual or unexpected j operating, maintenance, repair or safety activities.- Section 5(c)(5) of the Act'specifica11y 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
\
Lp,untilthe 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 scenarios which would a f
create a need for emergency cccess, it is unlikely that all possibilities j can be predicted or anticipated. Largely because of the uncertainty l 3
associated with identifying all of the circumstances under which 1 l l 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 w-__-__-____________ .- _--_- _
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 stetes that the rule applies to all persons as defined by this regulation who have been denied 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.
e Subpart B - Request for a Commission Determination Subpart B specifies the information that must be submitted and the procedures that must be followed by a person seeking a Commission deter-mination on emergency access.
l Specifically, Subpart B' requires the submission of information on the need for access to LLW disposal sites, the quantity and type of material requiring disposal, impacts on health and safety or common defense and security if emergency access were not granted, and consideration of available alternatives to emergency access. This i
information will enable the Commission to determine. l (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 I (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.
11
)
It provides for publication in the Federal Register of.a notice of receipt ;
l 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 8 provides for a i 10-day public comment period on the request for emergency access.
In the event that the case' for requesting emergency access is to be based totally or in part on the threat posed to the common defense and l
security, Subpart B requires that a statement of support from the Department of Energy (DOE) or the Department of Defense.(D0D) (as appro-j
{
, priate) be submitted as part of the initial request for emergency access. l 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.
I Subpart C - Issuance of a Commission Determination For the NRC to grant emergency access, the Commission must first 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 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 procedures 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 h alth and safety, will consider: (1) the nature and extent of the radiation hazard that 12
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 a'ctivi,ty which is the subject of the l 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.
I 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 technology and the impacts of the alternatives on the public health and 13
R l
4 l
safety. For each alternative, the Commission will also consider whether the requestor has demonstrated that the implementation of the alternative ,
l is unreasonable because of adverse effects on the public health and j l
safety or the common defense and security, because it. is technically or l economically beyond the capability of the requestor, or because the !
alternative could not be implemented in a timely manner. I Of particular concern to Congress was the possibility that ceasing the activity responsible for generating the waste. could lead to the i cessation or curtailment of essential medical services. In the proposed rule, the Commission considers the impact on medical services from ceas-ing the activity in making its determination that there is a serious and !
immediate threat to the public health and safety under Section 62.25.
i However, the Commission is also concerned as to whether the implementa- l tion of other alternatives may have a disruptive effect on essential l
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 the procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency access l if the available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for 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 Commis,sion will decide which operating non-Federal LLW disposal facility should receive the LLW approved for emergency access disposal. -
14 L-__--_____--__--_. __ .- _
Subpart C sets out that in designating a disposal facility or facilities to provide emergency access disposal, the Commission will first consider whether a facility should be excluded from consideration because: (1) the LLW does not meet the license criteria for the site; (2) the dis,posal 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 requirements, radiolog'. cal 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 l
the initial grant to eliminate the need for emergency access. '
In making a determination that temporary emerger. y access is neces-sary, the Commission will have to consider whether the emergency access !
situation falls within the criteria and examples in the Commission's policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives.
VII. Rationale for Criteria .
The proposed rule establishes the criteria for making the emergency access determinations required by the Act. The rationale for these decisions is discussed below:
15
i (a) Determination that a Serious and Immediate Threat Exists i
Establishing the criteria to be used in determining that a serious
]
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.
Neither the Act nor its legislative history provide elaboration regarding ]
i Congressional intent for what would constitute "a serious and immediate j threat." '
l (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 j three situations. Section 62.25(b)(1) addresses the situation where the lack of access would result in a radiation hazard at the facility that is I 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.
The criteria in the proposed rule for determining whether a serious and immediate threat to the public health and safety exists is qualitative in nature in order to provide the Commission with the flexibility 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 1
standards. These consist of the Commission's standards for radiation '
protection in 10 CFR Part 20, any standards on the release of. radioactive materials to the general environment that are applicable to the facility that generated the low level waste, and any other Commission requirements l
16
1 specifically applicable to the facility or activity which'is the subject' 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 was to q ensure that a serious and imediate threat to the public health and l safety did not result from a denial of access. In addressing this. l concern, the Comission 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 imediate threat to public health and safety, the Comission must i consider what threat would be unacceptable assuming that no alternatives are available. In the Comission's judgment, any situation that- i would result in exceeding the occupational dose limits or basic limits of i public exposure upon which certain requirements in 10 CFR Part 20 are founded would be an unacceptable threat to the public health and safety, and should be 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 safety 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 that was denied accer,s to LLW disposal. The Commission does not anticipate any situs. tion where the lack of access would create a serious and immediate threat to the public health and safety. However, in order to be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety might result, the 17 L__-_-_________-__________ _
proposed rule 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 waste could not be disposed of because of denial of access.
In this situation,. emergency access may be needed. The Commission would-l emphasize first, that it is extremely lunlikely that a ' serious and immediate threat to the public health and safety will ever result at the generator's facility from the lack of access to a disposal facility, and .
I 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 l
l on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the Commission't 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 j down. Section 6(d) of the Act allows the Commission to grant temporary i emergency access for a period not to exceed 45 days solely upon a finding I of a serious and immediate threat to the public health and safety. In i 1
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 18 i
L-_-_ _ - _ _ - - _ - - - - - - - - - - - _ - - - - . - - - - - - - - - _ - - _ - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
4 1
I q
temporary emergency access should be reserved for the most serious threat l I
to public health and safety, and has accordingly established criteria for i J
granting temporary emergency access that require the consideration of.- I more serious events. For purposes of-granting temporary emergency access q under Section 62.23, the Commission will consider the criteria and examples contained'in the Commission's Policy Statement for determining 4 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 I
considers significant from the standpoint of public health and safety. ;
Under the criteria established in the Commission's policy statement, an i
event will be considered an abnormal occurrence if it involves a' major reduction in the degree of protection provided to public health and l safety. Such an event could include-- l l
- 1. Moderate exposure to, or release of, radioactive material; 1
- 2. Major degradation of safety related equipment; or
- 3. Major deficiencies in design, construction, use of, or j management controls for licensed facilities or activities.
In deciding whether to grant temporary emergency access, the Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal occurrences.
(2) To the common defense and security-- ,
Although NRC is required by the Act to determine that there is either a serious and immediate threat "to the public health and 19
safety," or to "the common defense and security," realistically NRC cannot make the latter judgement without some information from D0D and DOE which will assist NRC in identifying those situations. involving the denial of access to LLW disposal which constitute a serious and immediate 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 DOE information as part of the decision making process.
NRC considered several approaches for involving D0D and DOE in the process of determining whether requests for emergency access should be granted on the basis of a serious and immediate threat to the common defense and security. It eppears 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 determination with D00 or DOE. So while the Commission in'tends to give the D0D and DOE certifications and recommendations full consideration 20
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 arid security, emergency access .is not t'o be 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 have
-] 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 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) W of the Act sets these out as possible alternatives 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 in the event that unusual or unexpected operating, maintenance, repair 21
or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that. I Congress intended that disposal under the emergency access provision was to apply to the Section 5(c)(5) wastes unless the capacity m quired for ,
disposals under the unusual volume provision would exceed the 800,000 cubic feet allocated for those purposes. Thus, NRC ha; taken the position in the proposed rule that as long as unusual volumes disposal 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 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 falling 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 to demonstrate that he has considered all pertinent alternatives and to provide a detailed analysis comparing all of the alternatives considered. The requestor will be expected to demonstrate that he has considered combining alternatives in some way or in some sequence either l to avoid the need for emergency access, or to resolve the threat, even on a temporary basis, until other arrangements can be made. The requestor will be expected to evaluate the costs, economic feasibility, and benefits i
22 L--
.i to the pLblic health and safety.of the potential alternatives, and to l incorporate the results-into the request.
(c) Designation'of Site-
'In deciding which of the operating, non-Federal or regional LLW l disposal ~ facilities ~will receive ,the LLW requiring' emergency access, NRC '
will determine which of .the dis'posal' facilities would qualify under the -
l
- l. 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.
l closing of. the facility; or (4) the volume' of the waste iequiring disposal exceeds 20 percent of the total volume'of the LLW accepted'for disposal at the site in the previous calendar year.
If NRC cannot designate'a site using the limitations in the Act alone, the Commission will consider other factors including the type of
. waste, previous disposal practices, transportation requirements, radio-logical effects of the waste, the capability for handling the waste at each site, 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 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 proportion to the volume limitations established in the Act. In most cases, NRC 1
l 23 l
would expect that the designation of a single site will minimize handling i of and exposure to the waste and best serve the interest of protecting.
the public health and safety. However, if the' volume of waste requiring l emergency ac;ess disposal is large, or if there are other unusual or extenuating circumstances, NRC will evaluate the advantages and 1 1
disadvantages of designating more than one site to receive waste from l the same requestor. .
In addition to the above, NRC will also consider how much waste has been designated for emergency access disposal to each site to date_(both .
for the year and overall), and whether the serious and immediate threat l 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 continuous basis.
It should be noted that in setting out the site designation provision I
for Section 5, Congress assumed there would always be a site deemed appro-priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations provision set forth in the Act. It is not clear what options 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 the future.
(d) Volume 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 24
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 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 l of its mandated evaluation of the alternatives considered by the generator.
1 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 process-ing 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, l pyrophoricity, and explosive potential); condition of current container; 1
potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste (including incinerators; evaporators-crystal 11zers; fluidized bed dryers; thin-film evvorators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (specific l
25 i
l 1
l
activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker i exposure, and equipment availability); and the administrative controls which could be applied.
1 I
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-l 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 t
immediate threat to the common defense and security? (4) What are the !
\
potential difficulties with the proposed approach for designating the l 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 i 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.
l 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
_ ____________________m_ _ _ _ _ _ - - _ -- - -- -
i l
l be in place before that time. However, it may be necessary for a !
generator or State to submit a request for a Commission emergency access )
i determination prior to the effective date of this rule. Commission determinations made on requests received before the final rule is in ;
I' place will be guided by the criteria and procedures provided in this proposed rule.
I i
.I X. Finding of No Significant Environmental J Impact: Availability- l l
If adopted, the proposed rule would establish criteria and procedures.
for a Commission determination under Section 6 of the Act that emergency-access to ar, operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the commoa defense and security. For the most part, the proposed rule is an administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and crite-ria by promulgation of a final rule does not have an environmental effect.
l Therefore, the Commission has determined under the National Environ-mental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this proposed rule, if adopted, l 1
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
1 i
XI. Paperwork Reduction.Act Statement l 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.
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 j available for inspection, copying for a fee, at the NRC Public Document' l Room, 1717 H Street NW., Washington, DC 20555.
4 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 Act, 5 U.S.C. 605(b), the Commission certifies that, if promulgated, '
1 this rule will not have a significant economic impact upon a substantial i
number of small entities.
l 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 l facilities would be considered to be a small entity. The generators of j LLW are nuclear power plants, medical and academic facilities, industrial licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 28 J l
L______________.
l i 1
L these categories, all but the power plants, fuel fabrication' facilities, and government licensees could potentially include small; entities.
Although these categories may contain a " substantial number of small-i entities," the Commission does not believe there will be a significant economic impact to'these generators because the Commission.does not anticipate that many generators will be affected by the proposed rule.
In order for the requirements of the rule to be imposed on a generator, I 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 correct the problems LLW generators may encounter because of lack of access to ;
LLW disposal, the provision of emergency access will benefit any genera-tor 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 f I
29 l
l l
l part of any process to decide a course of action if necessary access to LLW disposal was not going to be available.
The NRC is seeking public comment on the initial regulatory flexibility 1
analysis. The NRC is particularly seeking comment from small entities (i.e. , small businesses, small organizations, and small jurisdictions, under the Regulatory Flexibility Act) as to how the regulations will l affect them and how the regulations may'be tiered or otherwise modified to impose less stringent requirements on small entities while still l adequately protecting the public health and safety. Those small entities which offer comments on how the regulation could be modified to take l into account the differing needs of small entities should specifically 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 to larger organizations in the same business community.
(b) How the proposed regulations could be modified to take 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 modified as suggested by the commenter.
(d) How the proposed regulations, as modified, would more closely equalize the impact of NRC regulations or create more equal access to 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.
30
The comments should be sent to the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing
)
and Service Branch.
)
XIV. List of Subjects in 10 CFR Part 62 )
Administrative Practice and Procedure, Low-Level Radioactive Waste, Nuclear l
Materials, LLW Treatment and Disposal, Emergency Access to Low-Level Waste
]
Disposal, Low-Level Radioactive Waste Policy Amendments Act of 1985, Denial i
l of Access. ;
For the reasons set out in the preamble and under the authority of I
the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act 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.
- 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
)
62.4 Interpretations 62.5 Information Collection Requirements 62.6 Specific Exemptions 1 31
Subpart B - Request for a Commission Determination 62.11 Filing and distribution of a determination request 62.12 Contents of a request for emerge'ncy 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 l 62.18 Denial of access 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 62.2"1 TLrms M Cendl#w & 6vny DU Authority: Secs. 81, 161, as amended, 68 Stak 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); 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).
l 32
l
[
add:Ce): %< pea 9>,s s' 44, paa a99 % k l
. 1
&LL,95dn39.5yELldS NO I * & " A '
h d)pSA. hM h 54f '3 f k
~
ae.% ws.xw m m + !
lgk $ l, l.ld S YY N ** \
"(A)l'ow-level rsIdioactive waste generated within the State (other than by the Federal Government) that consists of or contains class A, B, or C radioactive waste as defined by section 61.55 of title 10, Code of Federal Regulations, as in effect on January 26,1983;
"(B) low-level radioactive waste described in subparagraph (A) -
that is generated by the Federal Government except such waste that is-
"(i) owned or generated by the Department of Energy i
'!(ii) owned or generated by the United States Navy as a; j result of the decommissioning of vessels of the United i States Navy;or
"(iii) owned or generated as a result of any research, development, and testing, or production of any atomic weapon;
"(C) tow level radioactive waste described in subparagraphs (A) and (B) that is generated outside of the State and accepted
'ar disposal in accordance with sections 5 or 6., ,
Subpart A--General Provisions.
$ 62.1 Purpose and' scope. .i 1
.(a) The regulations in this part establish for' specific low-level' l radioactive waste (1) procedures and criteria for granting emergency l !
1 access under Section 6 of the Low-Level Radioactive Waste Policy Amen'- d j q
ments Act of 1985 (42 U.S.C. 2021) to any non-Federal'or regional l low-level radioactive waste (LLW) disposal facility or'to any non-Federal
~
l .
i . . .
1 disposal facility within a State that.is not a member of a Compact, and
~
I (2) the terms.and conditions upon which the Commission will grant this- _j emergency access.
(b) The regulations in this part apply to all persons as defined by
.1 this regulation, who have been denied access to existing regional or .
l non-Federal low-level radioactive waste disposal facilities'and who submit a request to the Commission'for a determination pursuant to this part. '
l 35Ad 2.- - A 1 : ~
6 62.2 Definitions.
As used this part:
"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 agreement with the Nuclear Regulatory Commission under section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to regulate the disposal of low-level radioactive waste under such agreement.
1 i 33
l
{
l
" Commission" means the Nuclear Regulatory Commission or its duly J j
authorized representatives. '
" Compact" means a Compact entered into by two or more States pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985.
i
" 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 j facilities.
" Extension of Emergency Access" means an extension of the access that had been previously granted by NRC to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for I
a period not to exceed 180 days' .
{
l
" Low-Level Radioactive Waste" (LLW) means radioactive material that 1 1 \
(a) is not high-level radioactive waste, spent nuclear fuel, or byproduct j
)
material (as defined in Section IIe(2) of the Atomic Energy Act of 1954 i i
[U.S.C. 2014(e)(2)]; and (b) 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.
34
l
" Person" means any individual, corporation, partnership, firm, J association, trust, State, public or private institution, group or #[ !
i W l agencywhoisanNRCorNRCAgreementStatelicen d
sahM 445 hs'ynsdul tMM% 'rWF58 l g.
low-levelradioactivewastg;anyGovernor(orforany" State"withouta Governor, the chief executive officer of the " State") on behalf of any generator or generators of low-level radioactive waste located in his or I k.hM W dasipatul(L,.Waks %spms.'be'th En Asposd -(fw Iv.2) )
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.
i
" Temporary Emergency Access" means access that is granted at NRC's l 13 e.livwiwaf.a Ah (4h discretion upon determining that access is necessary11__ f an immediate and serious threat to the public health and safety or the 1
l -common defense and security. Such access expires 45-days after the i granting.
S 62.3 Communications.
l i Except where otherwise specified, each communication and report l
1 concerning the regulations in this part should be addressed to the Direc-tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear l Regulatory Commission, Washington, DC 20555, or may be delivered in 1
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 l
l l
officer or employee of the Commission other than a written interpreta-i tion 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 q ct seq.) -
l The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Manage-ment and Budget (0MB) for review and approval of the' paperwork' requirements.
~
S 62.6 Specific exemptions.
The Commission may, upon application of any interested person or-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 l not endanger life or property or the common defense and security and is l otherwise in the public interest.
l 1
l l 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 36 l
l
Appendix 0 to Part 20 of this chapter. The request must be signed by the 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 of the Commission will cause to be published in the Federal Register a notice acknowledging receipt of the request and asking that public comment on the request is 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 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- l l
l Federal low-level radioactive waste disposal facilities, and to the l Compact Commissions with operating regional low-level radioacthe 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 S 170.31 of this chapter.
(d) In the event that the allocations or limitations established in l' 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.
1 37
i g662.12 Contents of a request for emergency access: General 6 Information.
A request for a Commission determination under this part must include i q ts the following information for each generator to which the request applies:
ff (a) Name and address of the person making the request; ,
Y l
. i (b) Name and address of the person (s) or company (ies) generating '
y the low-level radioactive waste for which the determination is sought; The low-level waste generation facility (ies) producing the g waste for which the request is being made; ;
o (ar[ A description of the activity that generated the waste; I
4
.f % Name of the disposal facility or facilities which had been D. -
receiving the waste stream of concern before the generator was denied t access; h % A description of the low-level radioactive waste for which y [i emergency access is requested, including: !
(1) The characteristics and composition of the waste,. including,
! k3 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);
I (iv) type of solidification media; and (v) concentrations and percentages of any hazardous or toxic chemicals, chelating agents, infectious or biological agents associated with the waste; l
38
l (2) The radiological characteristics of the waste such as-- .
1 (i) the classification of the waste in accordance with 6 61.55; .I (ii) a list of the radionuclides present or potentially present in the waste, their concentration or contamination levels, and total-quantity; l
(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 '
M.gfL
_ i u.te the (f.lo) threat to the public health and safety or the common
.i defense and security; (4) The time duration for which emergency access is requested (not to exceed 180 days); I (5) Type of disposal container or packaging (55 gallon drum, box, i 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; i
) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial of access to existing 1 low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat- I 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; 39 L -_ -__ _ _ . _ - . . - .
1 (3) A chronology and description of the actions taken by the person requesting emergency access to' prevent the need for making such a ;
request, including consideration of all alternatives set forth in S 62.13, and any supporting documentation as appropriate; (4) An explanation of the impacts of the.weste on the public health and safety or the common defense and security if emergency access is not. 1 granted, and the basis for concluding that these impacts constitute a l serious and immediate threat to the public health and safety or the common defense and security. The impacts to the public health and safety j 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; j
() 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; J
gP) Documentation certifying that access has been denied; Documentation that the waste for which emergency access is g requested could not otherwise qualify for disposal pursuant to the 1
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; 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 D0D certifying that access to disposal is necessary to mitigate the threat to the common defense and security; 40 L __ __ . - . _ _ _ _ . . _ . . . _ . _ _ . _ _ . _ _ _ _ _ _ . - . - _ _ _ . _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ -
Owde>z%e CC% RA%. pntY j OCuH fMm M AMUR.$ dm LUJ wsn' chYe sig %
~ NW '
, &% n~"& M M 03 Date by which access is required; g I Any other information which the Commission should consider in ,
making its determination.
l i
6 62.13 Contents of a request for emergency access: alternatives.
,1 (a) A request for emergency access under this part must include information on alternatives to emergency access. gg Therequestsgo l include a discussion of the consideration givenAt atives, W l
including, but not limited to, the following:
M (1) storage of low-level &(17 h,/\
1 l
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) purc ,ispo capacityavailableforassignmentpursuanttotheAct;preque ing g!
disposal at a Federal low-level radioactive waste disposal facility irt SN #
y 405L wesks Cw =*'s ;
the case of a Federal or defense related generator of LLWP, reducing d1 the volume of the wast ) ceasing activities that generate low-level l M w%d(1* ~ n Sfi;ts n Cespgit acQ .
Jg (4m Q l' l radioactive waste; tad other alternatives identified under Subpart (b) of this Section.
(b) The request must identify all of the alternatives to ergency !
access considered % G. andWP WtA intlude a descript$o&n%
n of the pr6 cessW(11.3 use to A
identify them, including any not specified in paragraph (a) of this 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 not implemented.
41
l i
(c) The evaluation of each alternative must consider: (1) its potential for mitigatinD 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 5 i' and the common defense and security, if any, of implementing each alter-
) native, including the curtailment or cessation of any essential services ir affecting the public health and safety or the common defense and secu- l 7 h' w rity; (3) the technical and economic. feasibility of each alternative including the person's financial capability.to implement the alterna--
4H
% +
! tives; (4) any other pertinent societal costs'and benefits (5) impacts j i to the environment; (6) any legal impediments to implementation of each li-' !
A alternative including whether 0 the 4 Hs alternatives W of %will comply with app &.
lemand a.d. l f cable NRC regulatory requirements; and (7) the time required tb develop g.a !
cad implement each alternative. statta WAsk. !
en was g (d) e request must include the basis for: (1) rejecting each alternative; and (2) concluding that no alternative is available.
2' s
6 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 1
42 !
l 1
1 i
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.
a 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. .
i (b) The Commission shall deny a request for a Commission determina-tion under this part if the person' making the request fails to respond to a request for additional information under paragraph (a) of this'section l within ten (10) days from the date of the request for a'dditional 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 1 request for a Commission determination under this part.
l 6 62.16 Withdrawal of a determination request.
(a) A persrn 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.
In any request under this part, the person making the request may incorporate by reference information contained in a previous application, 43 J
l i
L I
Statement, or report filed with the Commission provided that these refer- !
i ences are updated, clear and specific. 1 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.
1 1
Subpart C--Issuance of a Commission Determination a f
6 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 radioactive waste, or any Governor on behalf of any generator or genera-tors located in his or her State, the Commission shall make a deter- 1 1
mination that-- .
(1) Emergency access to a regional disposal facility or a l non-Federal disposal facility within a State that is not a member of a 1
Compact for specific low-level radioactive waste is necessary because of i 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 i l with the public health and safety, including those identified in S 62.13.
1 (b) In making a determination under this section, the Commission shall be guided by the criteria set forth in S 62.25.
I (c) A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is 44 w______--_-____
based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volsme and duration dim (S. A 1 (not to exceed 180 days) necessary to C. : a t'he i'mmediate threat to public health and safety or the common defense and security. It may also contain conditions upon which the determination is dependent.
S 62.22 Notice of issuance of a de+r mination.
(a) Upon the issuance of a Commission determination the Secretary 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 dis-posal 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 appro-priate 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, )
I and the minimum volume and duration (not to exceed 180 days) necessary to !
alleviate the immediato and serious threat to public health and safety or j ecommondefenseandsecurityMFortheGovernoroftheStateinwhich the low-level waste was generated, the notification must indicate that no ,
extension of emergency access will be granted under S 62.24 absent dili-gent State and generator action during the period of the initial grant.
wwgs WcM N s.Pa Y saawn .k '
" Yar>Jm o- % M Y^ *fP*
p m ~ o r. 0 W !
. ~v9
ss ~ o.e
[b b W y.24 06 4 t/ .nd%d W q bra a ma6s a 6a.a244 s ea.
~
O-MM Mw_A ' 6.7. 2< (c/ ,. A 1 C9 ad Carn unin %& W AM Squako%;oo.ns b eaca, p m
\ ,
W&
- WhM f b d %s apur. Q ,
l - . . . - . . . ~ . , . _ . , e .
S l
e e e . emes e, e e seg p-Ohp W e
l%- (N }
(/) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination) (
{ M The Secretary of the Commission will make a copy of the final determination available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC.
h w ptiaa t*.e m
6 62.23 Determination for granting temporary emergency access. ww (a)
TheCommissionmaygranttemporary$emergencyaccessto e M @ h & A L S. 3.
an appropriate non-Federal g dispbsal 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; and (c) the temporary emergency access duration will not exceed forty-five (45) days.
S 62.24 Extension of emergency access.
(a) After the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially granted under S 62.21, the Commission shall make an initial determina-tion of whether-- -
(1) emergency access continues to be necessary because of an immed-iate and serious threat to the public health and safety or the common defense and security; (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and 46
l l
J (3) the generator of low-level waste and the State have diligently though unsuccessfully acted during the period.of the initial grant to eliminate the need for emergency access.
(b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) , and 62.22, must be followed. b O' S 62.25 Criteria for a Commission determination.
(a) In making the determination required by Section 62.21(a) of j 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, I i
notwithstanding the availability of any alternative identified in Sec- j tion 62.13 of this part:
)
(i) the nature and extent of the radiation hazard that would result I l
frore the denial of emergency access, including consideration of, j (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 i 1
(C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request; 47
i i
l i
(ii) the extent to which essential services affecting the public health and safety (such as medical, therapeutic, diagnostic, or research-activities) will be disrupted by the denial'of emergency access.
(c) For purposes of granting temporary emergency access under Section 62.23 of this part, the Commission will consider the criteria .
contained in the Commission's Policy Statement for determining whether an 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 1 the Energy Reorganization Act of 1974. (45 FR 10950, February 24,1977.) l l (d) In making the determination that a serious and immediate threat l
to the common defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in sec-tion 62.13 of this part: (1) whether the activity generating the wastes i is necessary to the protection of the common defense and security, i
(2) 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. The Commission will consider the views 1 of the Department of 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.
'1 (e) In making the determination required by S 62.21(a)(2), the Commission will, consider whether the person submitting the request:
od &v?DA M a.Uuwdlk ((u^ % A (1) has Aemnnd and + hst n onnd fMth bffntt une mnde tn idon+]fy ;,,j
_a. a.
.ms that could mitigate the need for emergency access; 1
48
\ _ _ _ _ _ - _ - _ - _ _ _ - _ -
(2) has considered all pertinent factorsiin its evaluation of alterna-tives 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
~
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,-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 reg'ulations; .or (5) it cannot be implemented in a timely manner.
(g) The Commission shall make an affirmative determination under 6 62.21(a) only if all of the alternatives that were considered are found i 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 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.
practicable using available technology.
49
I S 62.26 Criteria for designating a disposal facility.
(a) The Commission shall designate an appropriate non-Federal or regional disposal facility if an affirmative determination is made pursuant to S 62.21.
(b) The Commission will exclude a disposal facility from considera-tion if:
(1) the low-level radioactive wastes of the generator do not meet the criteria established by the license agreement or the license agreement of the facility; or (2) the disposal facility is in excess of its approved cc.pacity; or (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the 1
request for emergency access; or j (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-appro-priate for designation, the Commission will then consider additional factors in designating a facility or facilities including:
(1) type of waste svd N 57thS U N (2) previous disposal practices, l (3) transportation, (4) radiological effects, (5) site capability for handling waste, omk
() any other considerations deemed appropriate by the Commissions awpe4 y u.a m %uu .panaa yM M 4
l (d) The Commission, in making its designation, will also consider ;
any information submitted by the operating non-Federal or regional LLW i disposal sites, or any information submitted by.the public in response to-a Federal Register notice requesting comment, as provided in paragraph (b) of S 62.11.
Dated at Washington DC, this " day of , 1987. j
(,2,3 9 For the Nuclear Regulatory Commission.
7*
f ffl W q
l Samuel J. Chilk, Secretary of the Commission.
q,p ~Thrms & C*A' YS QB&
a a u> df Of
- 4' ,
l Q uds. is udf "'
y_.u) ciksposal& O M #' s i p p , w er spa M U =*0
, p .Lk.a W Det k yodhs sW y} "'", i g q cfncm) 3 sk*uld b Pr*cdr d g
P O O dryad of Mt byl M'm
, a.mwas-. tAaf is c.cas sW tuwvsq
- Q & LLk) caIsPOS*d Of Und'" $ Y*'
wu.
swd Th cDeposat d pac.!A & eme"f"Q"" f)"
% gle.wa+:fd%
. spa $Flc. ctwhbs ,pa#ms,p ,feas, * /
, a9-&. off4.
'5 7" 51acarr. M dda Yg y k auan S a w.yas celess sis @ a sac -
W ' er "
L.as% sPPM , W.k w.... w. d Js e g q8cc'8L Aj
, v w .am. :T --
TNgg Q - i
%As / A uf Document Name:
Requestor's ID:
N%f KIMINAS
-(C1 Author's Name: Y LAMBERT J Document Comments: I
' l SPE 3/24/88 - ETPB REVISIONS Q@ l Nfl8. ,
S k& "N ca<d
. l l
1 l
S 4//9 1
1 l
M q
Ovea &2 2, liaspw'h Zw.)
- l!
h) . , - - - . --. . - -
- -~
- ~ ' ~
___.j l
~
Compliance with conditions ~of emergency access; termination of 7tfiergency access. -
' (g) The' operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access !
may refu.s_e, to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(jib The Commission shall terminate a grant of emergency access when
}
emergency access is no longer. necessary to eliminate an immediate threat to public health and safety or the common defense and security. )
(
(g) The Commission'may terminate a grant of emergency access if an applicant has made a material false statement in the application for emergency access or if the applicant has failed to comply with this part l
- or conditions set by the Commission pursuant to this Part."
--9 g ., l- ^^' [ , , - -- 7 7~~; ' {
. . . . . g .z.. ': W.K' T r., %
. . > m;7/C:Cr
, . .y., g
~ , - :- 1 3,, ,
<{
hM s.2 #-r dC22j.-
e
~
W L