ML20246H863
| ML20246H863 | |
| Person / Time | |
|---|---|
| Issue date: | 05/12/1988 |
| From: | Meyer D NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| To: | Lambert J NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-27, NUDOCS 8905160212 | |
| Download: ML20246H863 (746) | |
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<C NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
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/ fi MAY 121989 h MEMORANDUM FOR: Janet Lambert Division of Low-Level Waste Management and Decommissioning Office of Nuclear Regulatory Research FROM: David L. Meyer, Chief Rules and Procedures Branch Division of Rules and Records !
Office of Administration and Resources Management l
SUBJECT:
REVIEW 0F PART 62 - FINAL RULE The Rules and Procedures Branch has reviewed the draft final rule that sets out the requirements for the new 10 CFR Part 62. We have enclosed a marked copy of the rule that contains comments in the margins. We have also updated the text in the preamble and codified sections to reflect that the Commission is adopting this rule. Although you have prepared a separate coment analysis report, we recommend that you summarize this analysis report in the comment response section of the Supplementary Information portion of the preamble. In the summary discussion of the comments, you should indicate that a detailed analysis has been prepared and is available for public inspection in the NRC Public Document Room. To assist you, the NRC Regulations Handbook (NUREG/BR-0053) offers at pp. 131-133 an example that discusses comments on a proposed rule. The " Communications" paragraph at $62.3 should be changed, as marked, to reflect the NRC's recent move to its White Flint location in Rockville, Maryland. If you have any questions regarding our comments, please contact Alzonia W. Shepard on extension 2-7651. h I. k* David L. Meyer, Chief Rules and Procedures Branch Division of Rules and Records Office of Administration and i Resources Management j l
Enclosures:
As stated 8905160212 890505 PDR PR 63 52FR47578 PDR Pfndiv&~
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I (&cadw! Acmmds} &Lp cw. hf 40 ' feouw NUCLEAR REGULATORY COMMISSION ^ 4//9 10 CFR PART 62 p cA a fra ( Criteria and Procedures for Emergency Access to Non-Federal y/o-and Regional Low-Level Waste Disposal Facilities
. AGENCY:. Nuclepr/ Regulatory Commission.
.')
shA i ACTION: Proposed-Rule.
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SUMMARY
- The Nuclear Regulatory Commission (NRC) is a rule to l
- 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 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 . 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 l comments received before this date. I 1
ADDRESS: Submit written comments to the Secretary.of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Copies of comments received and the regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. 4 FOR FURTHER INFORMATION CONTACT: Janet i Lambert, Division of Low-Level Waste Management and Decommissioning, U.S. Nuclear Regulatory Commission, 992 3855 Washington, DC 20555, telephone (301) 4 C 77C^.
- 1 SUPPLEMENTARY INFORMATION: '
l I. Background l 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 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 l 2
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- 1. Background
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/Ph NRcc4~ fod tn w & ro /Wd S i The Low-Level Radioactive Waste Policy Ascentments Act of-1985 - 7%Mc4 No,m,. !
J (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~ the development of regional LLW disposal facilities so that the new facilities will be available b9 January 1, 1993. The Act establishes procedures and milestones.for the selection and
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i development of the LtW disposal facilities. The Act also establishes a
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4 system of incentives for meeting the milestones and penalties for j j [ failing to meet them, which is intended to assure steady. progress- toward J new facility-development. l 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 I 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 j a Commissions with operating non-Federal or regional LLW disposal l b facilities are authorized to demand additional fees for wastes accepted j 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
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l l consistent-with the public' health and safety,. including ceasing _the activ-
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ities that generat'e the waste. NRC must be able, with the-information provided by the' requestor, to make both determinations prior 'o granting-emergency access. The purpose of this lation 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. - H. II. . Legislative Requirements- - i In addition to directing the NRC to grant emergency access as _ 1 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 l their LLW disposal facility is required. The Act limits NRC.to 45 days l from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.- Q The Act provides that NRC can grant emergency access _for a period not k 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 l State in which the LLW was generated have diligently though unsuccessfully 4
1 J 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 I defense and security pending a Commission determination as to whether l ~
the threat could be mitigated by. suitable alternatives. The grant of temporary emergency access expires 45 days after it is. granted. AlthoughtheActdoesnotrequireNRCto]eveloparuletocarryout its Section 6 responsibilities, NRC is k N k this rule to es blish i the procedures and criteria that will be used in makina th@ ired I emergencyaccess.kerminati site condition that must be met in order for a requestor to be eligible for emergen::y access con-sideration is that the requestor has already been denied access to the 1 LLW disposal sites by the States or Compacts with operating disposal 1~ l 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 l l 5 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 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 l LLW generators, including, for example, storage or ceasing to generate the waste, the instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from the generators and the States / Compacts should resolve most access problems thus precluding the necessity for involving the Federal sector in grant-ing emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort. In developing the emergency access rule, NRC has tried to be consistent both with he actual text of Section 6 of the Act and with the intent expressed y Congress regarding decisions made pursuant to g Section 6. The-propose 8 rule sets strict requirements for granting emer v f gency access and serves to encourage potential requestors to seek other [f
e means for resolving the prob ems created by denial of access to LLW dis-posal facilities. The-p :e e places the burden on'the party requesting emergency access to demonstrate' that the criteria.in the rule have been met and emergency access is needed. Applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their waste. By establishing strict requirements for approving reque'sts for emergency access, NRC intends to reinforce the idea that problems with LLW disposal are'to be worked out to the extent practical among the States, and that emergency
, . access to existing LLW 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 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 J emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to--
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant.
- allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded. -
l However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission l l 1 i 7 i i _ _ - - - _ - - - - - - - - - - - - - - - - - - - - - - - - l
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i with a veto over the NRC's grant of emergency access. .The basic purpose of the Section 6 emergency access provision is to ensure that sites that would normally be closed under the Act will be available in emergency situations. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the-legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular' Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting-in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void. H.R. REP. No._314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985). IV. NRC Approach Indeveloping/...k,'s
; pepeted rule, the NRC's approach was to:
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- 1. assure that all of the principal provisions of Section 6 of the I 1
l 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 ttl make the necessary determinations.
- 3. assure that the procedures and criteria that are established in u f
10 CFR Part 62 can be implemented within the 45-day period specified in k the Act, ! j
- 4. establish procedures and criteria for designating a site to i
receive the waste which are fair and equitable and which are consistent l with the other provisions of the Act, including the limits on the amount I of waste that can be disposed of at each operating facility. 1 l 8
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- 5. establish requirements for granting emergency access'that are stringent enough to discourage the unsited States and regions from i viewing emergency access as an alternative'to diligent pursuit of their own disposal capability, and yet flexible enough to allow HRC to respond i
appropriately in situations where emergency access is genuinely needed~ to protect the public health arid safety or the common defense a security. ' 1 V. Assumptions ! i [ In developing the rule NRC made several assumptions. These assumptions are discussed below. NRC staff are assuming that the wastes requiring disposal under the ; emergency access provision will be the result of unusual circumstances, i The nature of routine LLW management is such that it is difficult to con-ceive of situations where denial of access to disposal would create a . l serious and immediate threat to the public health and safety or the 4 national security. In most cases j generators.should be able to safely v i 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 l 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 L ad 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 1 9
1 M yaf M 444/Jj MdC /42.r 45 N acc.oss m & p nats %s M ,,4Lud44 m!-w a.o s,~jewg n,p446 A cug of msw , f*d'$ 3 [f) k d(.f. M 4 % SlL M F D
"(A) low-level rsIdioadve waste generated within the State (other than by the Federal Government) that consists of or - ~
. contains class A, B, or C radioactive waste as defm' ed by section
- 61.55 of title 10, Code of Federal Regulations, as in effect on Jer.uary 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 decommissioning of vessels of the United .
States Navy; or - ,
"(iii) owned or generated as a result of any research, .
development, testing, or production of any atomic weapon; and
"(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 5 or 6., , , Y NtY w g dec. m I l 5
- - - - , _ -~ . _ _ _ _ . . _ . __
)' I l 1 for disposal by the Department of Energy (DOE) under the unusual volumes H i 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 l 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 j l \ I
- LLW, until the 800,000 cu.ft. allocation is exceeded.
I 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 , l create a need for emergency access, it is unlikely that all possibilities l can be predicted or anticipated. Largely because of the uncertainty associated with identifying all of the circumstances under which emergency access may be required, NRC has avoided establishing criteria
~y with absolute thresholds. Instead, the rule s proposed icontains a V combination of qualitative and quantitative er teria with generic applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by- /I case basis.
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VI. The posed-Act1 M ff r , , ,f 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 l should be granted. Each Subpart is summarized and discussed here. 10
Subpart A - General Provisions; Subpart A contains the purpose and scope of the rule, definitions,. i' instructions for communications with the Commission, and provisions relating.to interpretations of the rule. Subpart A states that the rule j applies to all persons as defined by this regulation who have been' denied access to existing commercial:LLW disposal. facilities and who' submit a i request to the Commission for an emergency access determination under: Section 6 of.the Low-Level Radioactive Waste Policy Amendments Act of 1985. Subpart B - Request for a commission Determination Subpart B. specifies the information that must be submitted'and the
'l procedures that must be'followed by a-person seeking a Commission deter-mination on emergency access.
f Specifically Subpart B requires the submission of information I on the need for access to LLW disposal sites, the quantity and type of 'i material requiring disposal, impacts on health and safety or common 4 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. - l In addition to the above, Subpart B also sets forth procedures for the filing and distribution of a request for a Commission determination. 11 l I
It provides for publication in the Federal Reaister of a notice of receipt of a request-for emergency access to; inform the public that Comission
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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 10-day public comment period on the request for emergency access. In the event that the casi for requesting' emergency access is to be L 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..
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-l 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 health and safety, will consider: (1) the nature and extent of the radiation hazard that 12
m i l: would result from the denial of access including consideration of the l 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 i Iow-level waste, and any other Commission requirements specifically I applicable to the facility or a'ctivity which is the subject of the
)
emergency access request and, (2) the extent to which e:sential 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 imediate 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 j 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 specifie' s that the Commission will consider D0D and DOE viewpoints in a statement of ! support to be filed with the request for emergency access. \. Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potentially mitigate the need for emergency access. The Commission will consider whether the person requesting emergency access has considered all factors in the evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and 1 13
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) 1 l u I l safety. For each alternative, the Commission will also consider whether
. the requestor has demonstrated that the. implementation of the alternative' i is unreasonable because'of adverse effats on the public health and safety or the common defense and security, because it-is technically or L1 economically.beyond the capability of the r:.yuestor,.or because the J alternative could not be implemented'in'a timely manner.
Of partic'J1ar concern to Congress was the possibility that ceasing. the activity responsible for generating the. waste ceuld lead to the cessation or curtailment of essential medical services. h' In th ;n;md- , l rule, the Commission considers the impact on medical services from ceas-ing the activity in making its determination that there is a serious and l- immediate tiireat to the public health and safety under Section 62.25. However, the Commission is also concerned as to whether the implementa - tion of other alternatives may have a disruptive effect on essential medical services. The Commission specifically requests information on these impacts in 6 62.12 so they can be considered in its oyera11 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 available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for q emergency access will be denied. If the Commission determines tnat there is a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigato 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
Subpart C sets out that in designating a disposal facility or i 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; I (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the ! planned closing of the facility; or (4) the volume of the waste requiring fl 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, radiological effects, site capability for handling the l waste, and any othe" 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 circumstant.es still warrant emergency access and whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access. In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's l policy statement on abnormal occurrences, but will not have to reach a , i 1 determination regarding mitigating alternatives. 1 i
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i i VII. Rationale for Criteria f Th reposed-rule establishes the criteria for making the emergency I access determinations required by the Act. The rationale for these 1 decisions is discussed below: 15
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I J
l Li (a) Determination that a Serious and Immediate Threat Exists Establishing the criteria to be used in determining that a serious I and immediate threat exist to the public health and safety or the common { defense and security is key to NRC's decisions to grant emergency access; Neither the Act nor its legislative history provide elaboration regarding
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Congressional intent for what would constitute "a serious and immediate I threat." (1) To'the Public health nd safety-- The criteria in thew Ep d 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 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 62.2b(c) addresses the criteria for granting temporary emergency access. s - AlarCl The critertag i tyt'&eper:d 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 materials to the general environment that are applicable to the facility that generated the low level waste, and any other Commission requirements ; 16
a 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 imediate threat to the public health and-safety did not result'from'a denial of access. In addressing this-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 consider what threat would be unacceptable assuming that no alternatives are available. In the Commission's judgment, any situation that j would result in exceeding the occupational dose limits or basic limits of. public exposure upon which certain requirements in 10 CFR Part 20 are- I founded would be an unacceptable threat to the public health and safety, 1 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 l 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 i to be able to respond to the unlikely, but still possible, situation , I where a serious threat to the public health and safety might result.C l 17
ij
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i epe ed rule establishes criteria to address this possibility. .Under j 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 l
.i may be circumstances where a potential safety problem would t.till exist, after the facility was shut down o'r 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 i emphasize first, that it is extremely unlikely that a. serious and immediate threat to the public health and safety will ever result.at the 1 generator's facility from the. lack of access to a disposal. facility, and j 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 -j on the above circumstances, the Commission will evaluate the nature and ' extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste 'itself. This is separate from a finding that a serious and immediate threat to the l public health and safety would exist if the activity were forced to shut , down. Section r;(d) of the Act allows the Conmission to grant temporary emergency ac;ess for a period not to. exceed 45 days solely upon a finding q of a serious and immediate threat to the public health and safety. In j j order to grant temporary emergency access, the Commission is not required I to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Commission believes that grants of 18 l
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'h 1
temporary emergency access should.be reserved for the most serious threat.~ to public health and safety,_and has accordingly established criteria for-granting temporary. emergency access that require .the consideration of more serious events. For purposes;of granting temporary emergency access
- under Section 62.23, the Comission will consider the criteria and i
examples contained in the Commission's Policy Statement for determining whether an event at a facility or activity licensed or otherwise. regulated by the Comission is' an 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 Comission 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. event will be considered an abnormal occurrence if it involves a major. reduction in the degree of protection provided to public health and safety. Such an event could include--
. Moderate exposure to, or release of, radioactive material;
[ Major degradation of safety related equipment; or Major deficiencies in design, construction, use of, or management controls for licensed facilities or-activities... In deciding whether to grant temporary emergency access, the Comission will evaluate whether the emergency access situation falls within the criteria in the Comission's policy statement on abnormal occurrences. (2) To the comon defense and security-- , Altbugh NRC is required by the Act to determine that there is either a serious and immediate threat "to the public health and l 19
- - _ - - - - - - _ - _ - _ _ _ _ _ - - - - - - - - - - - - - - - - - l
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 wh*ch constitute a serious and immediate threat to the national defense and security, or the importance of a-i 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 decisio(makingprocess. F I 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 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 det.ermination with D0D or DOE. So while the Commission in'tends to give l the D00 and DOE' certifications and recommendations full consideration 20 i
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 i i safety or the common defense arid security,, emergency access is not to be ; I granted if alternatives are available to nitigate the threa. in a manner j consistent /with the public health and s ety As propose frThe rui Q
,1) & (L (1 fikiYl b W gequestors for emergency accessAw4M-tfenre 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. While6(c)(1)(B)oftheActsetsks[Taspossiblealternatives 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-- ) l Congress: intended that disposal under the emergency access provision was 'l to apply to the Section'5(c)(5) wastes unless the~ capacity required for f disposals,under the unusual volume provision would exceed the 800,0004 . >
'V.
y- t gJ ru cubicfetallocatedforpse oses. Thus, NRC has taken the. h F", . \
~ ' ,
l that as long as unusual volumes disposal- g-
.. ) position i;:-the p e;:::d ru. L ..
capacity is available for LLW which qualifies for such disposal , { emergency access should not be requested. Applications for emergency' I access for wastes which NRC detemines would otherwise be eligible' for disposal under the unusual volumes provision, will.be denied. i '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 i l
,(I) !
f aa deM expecte to, demonstrate that t: he er.eidered all pertinent alternatives gen.sdPadf
; gnd-te@provideadetailedanalysiscomparing_allofthealternative considered The r;wenvr wi111v expected-t demonstrate that M i j $ k n /. w a. 9Mn &
k3)c onside combining alternatives in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even
]
The reyunior j Y on a temporary basis, until other arrangements can be made.
\
dil-be-e C } ted-t(onevaluatethecosts,economicfeasibility,andbenefits 1 22 1 ____1______1____ _ ___ _ _ _ _
)f . . 5) to the public health. and ' safety of the potential. alternatives l.and 4e-- 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 dis'posal. 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 licenst criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set. out in the' Act; (3) granting' emergency. access would delay-the planned closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year. If NRC cannot designate a site using the limitations in'the Adt 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 1 L______-______________________.
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 Section 6(1) of the Act requires that any LLW delivered for disposal as a result of NRC's decision to grant emergency access "should be 24
f i< 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 shfety. 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(1). 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 1 i properties, radioactivity, pathogenicity, infectiousness, and toxicity, I 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
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
/ AA Wh fitspead uts~fe 7 NRC idnt_rected--ihreceiving c,omments on those parts of- the7-l l Lyteg n4s Q
,--proposed rule where NRC applied its discretion in ord r to implement the Section 6 provisions. NRC specifically reques comments on the following: (1) What scenarios are envisioned where emergency access would be required? -(2) What are the' potential problems with NRC's-approach to determining an immediate and serious threat to the public health and safety? (3) What are the potential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense and 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 j
suitable for waste requiring emergency access? { NR interested in facts and recommendations on specific ways to
'N beresponsivetotheseisDesxWhileNRCwillconsiderallcommentson 1 x 1 theproposedrule,itwillbebetteraNPto-respondtothosecomments that recommend specific solutions to any problem ised b'y ' e commenters. l l
l IX. Requests for Emergency Access Made Prior to the i 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 i I
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. td X. Finding of No Significant Environmental
/ Impact: Availability b If adopted, the hMw ul s.J rule would establish criteria and procedures 4 p's s
/ for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to !
nd safety or avert a serious and immediate threat to the public fa healthy %a / the common defense and security. For the most part, the-prepen d 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. Therefore, the Commission has determined under the National Environ-mental Policy Act of 1969, as amended, and the Commission's regulations inSubpartAof10CFRPart51,thatthis.h[80.cdrule,ifadopted, would not be a major Federal action significantly affecting the quality l of the human environment and, therefore, an environmental impact statement l is not required. l 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. I 27
I,.
. XI. Paperwork Reduction Act' Statement.
.JAyuk 1ll Ihish,.r%/ . adds
- :p;;d rule 'information collection requirements that'are subject to the-Paperwork' Reduction Act of.1980.(44 U.S.C. 3501 et: seq.).-
eQhgg- Vf prroneMs softf . stPPratcl9,6 . fge ; Cff;'g of ' Thi. . ele he. .,- ,= submitted dor review-:pd epprove, ef the pepe..e-t ,
/?)df)Reyf 42//d'l/ !$ ff !!V'A Yben
- XII. Regulatory Analysis ;
.; The Commission'has prepared a h aregulatory anal'ysis-of- .
-g d Tegula onfTheanalysis'examinesthecostsandbenefits i 1
of the alternatives considered by the Commission. 'The lysis is! 1 available for inspection', copying for a fee, at the NRC Public Document ~ Room, 1717 H Street NW., Washington, Dr 90555. / /n [ c ofo M Ib' ] Ye &sr W ti3 (-the kg $b% n 4d kM ' " N " ' k 4/d',,n,bgIII.&s/yatoryFlexibilityCertificationsn ^**' A l
< w A er
- A ~"
egu f NRC is using this proposed rule to implement the. statutory requirements for granting emergency access'to non-Federal or regional. u i LLW disposal facilities under Section 6 of the Act. Based upon the t yy }p information available and in accordance with the Regulatory Flexibility J) V 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 . 4 number of small entities. : The proposed rule has'the potential-to affect any generator of LLW 7' as well as any existing LLW disposal facility. None of the LLW disposal i i facilities would be consider /ed to be a small entity. The generators of
/
LLW are nuclear power... plants, medical and academic facilities, ; industrial licensees, research and development facilities, radiopharmaceutical manufacturers', fuel fabrication facilities and government licensees. Of l 28
p,- these categories, all but the power plants, fuel fabrication facilities, and government licensees could potentially include small entities. Although these categories may contain a " substantial number of small entities," the Commission does not believe 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, 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 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-l tor of LLW including small entities. ! l [ I Establishing criteria and procedures for requesting and granting ! emergency access through a rule will also benefit small and large l 1 generators. The propcsed 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 29
nb 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 n the initial regulatory flexibility. analysis. The NRC is particularly s king comment-from small entities (i.e. , small businesses, small orga izations, and small jurisdictions, under the Regulatory Flexibility .:t) as to how the regulations will affect them and how the regulati ns may:be tiered or otherwise modified to impose less stringent requir ments on small entities while st.ill adequately protecting the pub ic health and safety. Those small entities which offer comments on how he 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 sign ficant economic burden upon them as compared to larger organizations the same business community. (b) How the proposed regulations could be modified to take into account their diffe ing 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 I commenter. / (d) How t le proposed regulations, as modified, would more closely equalize the impact of NRC regulations or create more equal access to
/
the benefits o'f Federal programs as opposed to'providing special advan-1 tages to any individuals or groups. (e) How the proposed regulations, as modified, would still I adequately protect the public health and safety. d 30
e Thecommentsshop1dbe-senttotheSecretaryoftheCommission,U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. V,, a-Bu /c k/- /YMA jA'S f$ ,c / XIV.' List of Subjects in 10 CFR Part 62 s administrative Practice and Procedure, Low-level Radioactive Waste, Nuclear-f Materials, LLW Treatment and Disposal.. Emergency Access.to Low-Level' Waste-l . Disposal, Low-Level Radioactive Waste Policy Amendments Act of 1985, Denial of Access. gg For the reasons set out in the-preamble and under the authority of N . ; the Atomic Energy Act of-1954, as amended, the Energy Reorganization Act p d K a.s.C C SW . l of 1974, as amendedg and the Low-Level Radioactive Waste Policy Amend- ' mentsActof1985,n$..:::4 h r.; /VR C viveaAS f. .)..donfinga t :_, of-a new 10 CFR -I reb,y
' - - - - ^ " "
Part 62 '+s- eG c V'M..T.'chtR..w+vup ecoccoven s o,'0-wes ros. GMc W **c4 w iss TD 1' mwL+&
, p e,, t 6 2
~
1. twaa. re ssu s A n ue . . wAsre >.3 rosa s. p a a. n o ric.s i A new Part 62 is added to 10 CFR to read as follows: ' Subpart A - General Provisions-Section: 6
2.1 Purpose and Scope
62.2 Definitions, ' 1 62.3 Communications, l 62.4 Interpretations, l p
- 62. [8 Information Collection Requirements *, OM B A p er.<4 l 62.6 Specific Exemptions, '
--) ,
1 31 j
Subpart 8 - Request for a Commission Determination l 62.11 Filing and distribution of a determination request, 1 l 62.12 Contents of a request for emergency access: General information, 62.13 Contents of a request for emergency access: Alternatives, 62.14 Contents of a request for an extension of emergency access ,. 62.15 Additional information, 62.16 Withdrawal of a determination. request , 62.17 Elimination of repetition, 62.18 Denial of access, Subpart C - Issuance of a Commission Determination 62.21 Determination for granting emergency access, 62.22 Notice of issuance of a determination, 62.23 Determination for granting temporary emergency access , 62.24 Extension of emergency access, 62.25 Criteria for a Commission determination , 62.26 Criteria for designating a disposal facility. 62,2 7 Ttrms W (.rndIH ms & 6vn y D N* Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, 99 Stat. 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f). 32
l add:G): %<peac>,s a % pas app % 1 l Y% Mc),RSQS L.L h)$ N NkA &5 M v"=d- -
}
h 0% %M M MCM $ b) _% b 1 M,N %5M N (.4% k gt422.) % U w'S LakNL are :
(A) low-level rs'dioactive waste generated within the ~ State (other than the Federal Government) that consists of or~
contains class , 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'- 3
)
"(B) low-level radioactive waste described in su ph (A) - }
that is generated by the Federal Government except suc waste i that is-
".'((i) owned
' ii) owned or or generated b the Department of Energy; generated the United States Navy as a ,
i result of the decommissionmg of vessels of the United I l States Navy;or i
"(iii) owned or development, testm, generated as a result of any research, and g, or production of any atomic weapon;
"(C) low level radioactive waste described in sub agraphs (A) a,nd (B) that is generated outside of the State anYaccepted 4r disposal m accordance with sections 5 or 6.. ,
__.____----__________________j_
l 1 Subpart A--General Provisions S 62.1 Purpose and scope. (a) The regulations in this part establish for specific low-level l l radioactive waste (1) procedures and criteria for granting emergency access-under Section 6 of.the Low-Level Radioactive Waste Policy Amend-( ments Act of 1985 (42 U.S.C. 2021) to'ahy non-Federal or regional I low-level radioactive waste (LLW) disposal facility or to any non-Federal-J disposal facility within a State that.is not a member of a Compact, and f (2) the terms and conditions upon which the Commission wil.1 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, b - A S 62.2 Definitions. l 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. l 33 i i
" Commission" means. the' Nuclear Regulatory Commission or. its duly authorized representatives.
l " Compact" means a Compact entered into by two.or more States pursuant to the Low-Level Radioactive Waste Policy Amendments ~Act.of 1985.
, " Compact Commission" means the regional commiss' ion,-committee, or, board established in a Compact'to administer such Compact.
" Emergency Access" means access toian operating non-Federal.or-regional low-level radioactive waste disposal facility or facilities for j_ a period not to exceed 180 days, which is' granted by NRC.to a generator l-of low-level radioactive waste who has been denied the use of- those facilities.
" Extension of Emergency Access" means an extension of the access that had been previously granted by NRC to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
" Low-Level Radioactive Waste" (LLW) means' radioactive material that (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 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 l c-_________________. .___.
1 l
" Person" means any individual, corporation, partnership, firm, !
association, trust, State, public or private institution, group or / h ; fh l agency who is anwwi NRC or NRCthAgreement e desiynabt Ma4s'rwF58 State licensed low-level radioactive waste; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any l generator or generators of low-level radioactive waste located in his or sta was dnsignshd tLo 5%ks 'tuspmseWlQ 4 dipsn.L. (pe< 14.2) her " State"; or their duly authorized representative, legal successor or A agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's
, fo e,l:Nw;w afe., e.h (.S!B) l discretion upon determining that access is necessary i:::___ J an immediate and serious threat to the public health and safety or the common defense and security. Such access expires 45-days after the granting. 6 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 l Regulatory Commission, Washington, DC 20555, or may be delivered in person to the Commission's offices at 1717 H Street NW., Washington, DC, its rs Re e kalle P;ke Re d .ith l or -79B-Easterrr-Av:=c,, 544ver-$pe%y ing, "- J.,arylandr-S 62.4 Interpretations. Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any 35
l I officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considered binding on the Commission. { Information collection requirements! C M B S62.[8
/-~~.- .
q p.< A ,
. - - - . - S ]
/ This proposed rule contains information collection requirements \ ,
I that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 4 _ _ _ . . - - - - - .. ... / s e~t seq.)~__ p ,
/ The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Manage-ment and Budget (0MB) for(teview an pprovali h ae hF l Sct jlequ$._!Pff W 4 5.c. mi et cep+). OM e har teA nvea +we 4,~% u us,6 j iremenfsh reqm-,at c,. . ,4.a . , m p..+ -A< ,, n 4, a mace 3 c o . ,,___., , ,
b S 62.6 Specific exemptions. l 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 not endanger life or property or the common defense and security and is l otherwise in the public interest. l
- \
_ r Subpart B--Request for a Commission Determination 1 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 1 36 l l w _ ___-- _.
Appendix 0 to Part'20 of this chapter. The request must be signed'by the person requesting the determination er the person's authorized represen'.ative under oath or affirmation. (b) Upon receipt'of.a request for a determination, the Secret'ery of the Commission will cause to be published in the Federal Reaister a notice acknowledging receipt of the request and asking that.public l 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-Federal low-level radioactive waste disposal facilities, and to the Compact Commissions with operating regional'10w-level radioactive waste disposal facilities. (c) Fees applicable to a request for a Commission determination under this part will be determined in accordance with the procedures set ' forth for special projects under category 12 of 6 170.31 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 I 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. i; 37 l
-___:____-___-____-______. i
g662.12 Contents of a request for emergency access: General 6 Information. f A request for a Commission determination under this part must include L w #4 the following information for each generator to which the request applies: s , ff y (a) Name and address of the person making the request; o (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 p ,,g waste for which the request is being made; g (Aff A description of the activity that generated the waste; I
tlf l , .f % Name of the disposal facility or facilities which had been l D. \ g receiving the waste stream of concern before the generator was denied access; l h % A description of the low-level radioactive waste for which E.) [i emergency access is requested, including: (1) The characteristics and composition of the waste,. including, h3 but not limited to-- I (i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment); ; kIl t (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; i 38 I l
- _ _ _ - _ - _ - _ _ _ _ _ _ _ _ _ . _ _ _ l
(2) The radiological characteristics of the waste such as-- (i) the classification of the waste in accordance with S'61.55; (ii) a list of the radionuclides present or potentially present in the waste, their concentration or contamination _ levels, and total quantity; (iii). distribution of the radionuclides within the waste (surface or volume distribution); (iv) amount of transuranic (nanocuries/ gram); (3 The minimum volume of the waste requiring emergency access to glip'ing) (the threat to the public health and safety or th S.io) l defense and security; (4) The time' duration for which emergency access is requested (not to exceed 180 days); (5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and (6) Description of the volume reduction and waste minimization techniques applied to the waste which assure that it is reduced to the maximum extent practicable, and the actual reduction in volume that occurred;
) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat-ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the need for emergency access was identified; 39 e _ _ - _ _ - _ _ _ _ _ _ _ _
1 (3) A chronology and description of the actions taken by the person ; i requesting emergency acces; to prevent the need for making such a i 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 waste on the public health and safety or the common defense and security if emergency access is not granted, and the basis for concluding that these impacts constitute a serious and immediate threat to the public health and safety or the common defense and security. The impacts to the public health and safety or the common defense and security if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5) Other consequences if emergency access is not granted; (f) 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;
.)
% 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 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 D00 certifying that access to disposal is necessary to mitigate the threat to the common defense and security; 40 t - - - - - - _ - - - - - - _ - - _ - - _ - - _ - - - _ _ _
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Oh Date by which access is required; g g . Any other information which the Commis' '1 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 information on alternatives to emergency access. The reques+,sho gg include a discussion of the consideration givenAt a ves, including, but not limited to, the following: m (1) storage of low-level +(17 2;s) 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 capacityavailablefuassignmentpursuanttotheAct;preque ing g, disposal at a Federal low-level radioactive waste disposal factH tv irt sfa$r m y 840st wesks Ce the case of a Federal or defense related generator of LLWf, reducin} 11 7 the volume of the wasty I
) ceasing activities that generate low-level 54 M Wocd/P ido -%ts n ac4 .
g h4I radioactive waste; ted, ,other alternativ8s identified un er Q (<g . ) Subpart (b) of this Secti m. $k, S{,) ! (b) The request must ider+.lfj all of the alternatives to ergency j access considered h &. 3and sad intlude 4AA @ Sfs0tr o a descript$on.4nW Wh7.2 ! of the pr6 cess use to I A identify them, including any not specified in paragraph (a) of this section. The request should also include a description of the factors 4 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
1 i C (c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public I i ,
- health and safety or the common defense and security posed by lack of access to disposal; (2) the adverre effects on public health and safety A
q- atid 9.he common 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-
% rity; (3) the technical and economic feasibility of each alternative including the person's financial capability to implement the alterna-4 3 tives; (4) any other pertinent societal costs and benefits (5) impacts g
to the environment; (6) any legal impediments to implementation of each
*Ib li-alternative including whetherMthekalternatives W of will thcomplyW with app &,&'
f cable NRC regulatory requirements, and (7) the time required tb develop .g n and implement each alternative. sfacta V Aa k. gg pg m gg (d) e request must include the basis for: (1) rejecting each
.)
Q alternative; anct (2) concluding that no alternative is available. , 2' k
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S 62.14 Contents of a request for an extension of emergency access. A request for an extension of emergency access must incluce. (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 nave diligently, though unsuccessfully, acted during the period of the initial grant to eliminate the need for emerger.cy access. Documentation must include: (1) an identification of additional alternatives that have been evaluated during the period of the 42
b 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, j i i 6 62.15 Additional Information. i (a) The Commission may require additional information from a person making a request for a Commission determination under this.part concern- 1 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 3
.J 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. S 62.16 Withdrawal of a determination request. (a) A person may withdraw a request for a Commission determination under this part without prejudice at any time prior to the issuance of an i 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 l Commission determination under this part.
$ 62.17 Elimination of repetition.
In any request under this part, the person making the request may l incorporate by reference information contained in a previous application, 43 1 1 _ _ _ _ _ _ _ _ _ _ _ . _ . _ . _ _ _ _ m
Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific. S 62.18 Denial of request. 1 If a request for a determination is based on circumstances that I are too remote and speculative to allow an informed determination, the j Commission may deny the request. Subpart C--Issuance of a Commission Determination i i S 62.21 Determination for granting emergency access. 1 (a) Not later than (45) days after the receipt of a request for a 1 l Commission determination under this part from any generator of low-level j 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-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 ar (ii) the common defense and security; and (2) The threat cannot be mitigated by any alternative consistent with the public health and saft:ty, including those identified in S 62.13. (b) In making a determination under this section, the Commission shall be guided by the criteria set forth in S 62.25. l (c) A determination under this section must be in writing and i contain a full explanation of the facts upon which the determination it 44
j i I based and the reasons for gratiting 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 vol'Jme and duration. ' I (not to exceed 180 days) necessai,' to afin/Aulf4 (f.14'mmediate
' i !.^.: tTic i threat to l
.public health and safety or the commen defense and security. It may 1
also contain conditions upon which the determination is dependent. 6 62.22 Notice of issuance of a determination. (a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of 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-l , l 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 1-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 he-1th and safety or ecommondefenseandsecurityMFortheGovernoroftheStateinwhich the low-level waste was generated, the notification must indicate that no 1 extension of emergency access will be granted under S 62.24 absent dili-l gent State and generator action during the period of the initial grant. 3 5M
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gMLw t C_> (/) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination) 4 3 (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 j [ p +c hse 8 f N. W i: deTwwwdlaw S 62.23 Determination for granting temporary emergency access. m W, , (a) The Commission may gra,nt temporary, emergency access to { srt M@tMAI. C.f.15)' an appropriate non-Federal g disphsal facility or facilities provided that the determination required under S 62.21(a)(1) is made; 1 (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. I (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
(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. I (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. @ O' 6 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 l 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 I exists to the public health and safety, the Commission will consider, 1 l notwithstanding the availability of any alternative identified in Sec-tion 62.13 of this part: I l (i) the nature and extent of the radiation hazard that would result j 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 request; 47
(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 Commission is an abnormal occurrence within the purview of Section 208 of j the Energy Reorganization Act of 1974. (45 FR 10950, February 24,1977.) (d) In making the determination that a serious and immediate threat to the common defense and security exists, the Commission will consider, ; I notwithstanding the availability of any alternative identified in sec-tion 62.13 of this part: (1) whether the activity generating the wastes l
\
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 I 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 j l the Statement of support as submitted by the person requesting emergency access, in evaluating requests based all, or in part, on a serious and l 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: and LwCEv #^A 0sM M ( W Ch5f + C (1) has efemnne+
- od + h =+ a nnna f ait h r.6f fnr+ wac maao +n 4 aom+ 4 g ;,d l a'i " r nt!. s that could mitigate the need for emergency access; 48
l (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 6 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 : I cant curtailment or cessation of essential services, affecting public health and safety or the common defense and security; or (3) it is beyond
.i' the technical and econcmic 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 reguir. ions; or-(5) it 1
cannot be implemented'in a timely manner. 1 (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. i 1 (h) In making a determination regarding temporary emergency access i 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 l access under S 62.24, the Commission shall consider whether the person 1 making the request has diligently acted during the period of the initial j 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
S 62.26 Criteria for designating a disposal facility.
'.) 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 Lagreement of the facility; or (2)- the disposal facility is in excess of its approved' capacity; or (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 i 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 M N 57thS U.N (2) previous disposal practices, . (3) transportation, (4) radiological effects, (5) site capability for handling waste, em> g ( I any other considerations deemed appropriate by the Commission. a 4 y ua uk.%u % pa;" O p d WsM (%Y) u_ --
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l (d) The Commission; in making its designation, will also consider. any information submitted by the' operating non-Federal'or regional LLW- l
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disposal sites, or any information _ submitted by the. public in response to i
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a Federal Register notice requesting comment, as provided in paragraph (b) of S 62.11. hoc /v0/s b Dated at Weg,1,,pv , , this ; day of:
- 19 -
(o'L'WI gf p7)l For the Nuclear Regulatory Commission. Samuel J. Chilk, Secretary of the Commission.
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(ecubs / Ib P W i Document Name: 10 CFR 62 ENCL B FRN papccg gJ _, Requestor's ID: KIMINAS h1 C./ jW -; Author's Name: IRfBERT J M MTv ! Document Comments: SPE 3/24/88 - ETPB REVISIONS g
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' Compliitnce witih conditions of emergency access; termination of ertie'rgency access. -
* (/) The operator of a regional disposal facility or a non-federal disposal facility designated by the Comr.:ission 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.
i h ll of e (jR) The Commission shall terminate a grant of emergency access when ( MAy* y emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
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(g) The Comission may terminate a grant of emergency access if an 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 l or conditions set by the Commission pursuant to this Part.
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i '- Example: [ i I COMMENTS ON-THE-PROPOSED RULE The Comission recei,ved twenty-six (26) letters comenting on the proposed rule. . Copies of those letters and an analysis of the comments are available'for public inspection and copying j i' for a fee at the NRC Public Document Room at 1717 H Street NW, Washington, DC. A number of comenters stated that the proposed rule , would extend the NRC activities beyond the regulatory area'of l radiological working conditions that is applicable to all j licensees. The comenters interpreted the rulemaking preamble-l as a Comission attempt to become involved in antitrust, -j safety and security matters of all licensees. This was not the Comission's intent. Matters pertaining to radiological working conditions and radiological safety of all licensecs are of concern to the Comission. However, antitrust and security matters are relevant only to certain types of licensees. For example, antitrust information is considered ] by the Comission only with respect to certain production and- ) utilization facilities (primarily nuclear reactors). .This j rule is not intended to extend the Comission's involvement j with antitrust or security matters to licensees with whom these matters are not presently considered. As noted earlier, ) the final rule involves the Comission in radiological safety aspects of all licensees (and their contractors and subcon-tractors) that are beyond the area of radiological working I conditions. This involvement is appropriate since an individual l fabricating a component that is destined for use in connection with a regulated facility or activity may be fabricating this component in a nonradiological work area, but that individual may possess information that indicates that the component, when installed at the regulated facility or activity, may contribute to a degradation of public health or safety. At ; times, this information has not been readily available from l those responsible for component fabrication, for example, I 131 November 1987
o .. i licensees and their subcontractors. The Comission, to fulfill its mandate effectively, requires complete, factual, and current information'concerning the regulated activities of its licensees. Employees are an important source of informa-tion and should be encouraged to come forth with any potential safety-related items without fear of retribution from their employers. The purpose of the final rule is to ensure that employees are aware that employment discrimination for engaging l in a protected activity, for example, contacting the Comission, is illegal and that a remedy exists through the Department of Labor (DOL). The organizations subject to the rule should i understand that the Comission will not permit any interference with communications between the Comission's representatives j and employees. In addition to redress being available to the individual employee, the Comission may, upon learning of an ) I adverse finding against an employer by the Department of Labor, take enforcement action against the employer because j ( the employer is engaged in illegal discrimination. Based on the comments received, the following substantive I changes have been incorporated into the final rule. j (1) The definition of discrimination has been revised to l more closely track the statutory language (see $30.7(a)). (2) The statute expressly provides that an employee is l r,ot protected from actions taken by the employer when the employer's action is in response to the employee's deliberate l action to violate the Atomic Energy Act of 1954, as amended, l or the Energy R0 organization Act of 1974, as amended. This concept was not included in the proposed rule but has been incorporated in the final rule for completeness (see 930.7(a)). (3) The statement of available NRC enforcement actions that are derived from the Atomic Energy Act, as amended. (see
$30.7(c)) has been revised to more clearly state the policy of i enforcement in the event of unlawful discrimination.
l 132 November 1987 l 1
y w c',, 'o (4) A new $30.7(d) has been added to clarify the fact that all actions taken by an. employer which adversely affect an employee are not prohibited by the new regulation.- Based on NRC staff:coments, the-Parts of Title 10 that
]i are included in the rulemaking have been revised to delete :
Part 71. " Packaging of Radioactive Material for Transport and i i Transportation'of Radioactive Material' Under Certain Condi- ) tions," to add Part 60, " Disposal of High Level Radioactive Wastes in Geologic Repositories," and to add Part 72, " Licensing j Requirements for the Storage of Spent Fuel in an Independent I l Spent Fuel Storage Installation (ISFSI). Part 71 was deleted: i since all general licensees under Part 71 are also specific-licensees under another part, e.g., Part 50, and are, therefore, j < included in this rulemaking.. Parts 60 and 70 have been included i l j in the rulemaking as conforming amendments.so that all specific. I i licensees will have similar responsibilities under the lmployee Protection amendments. Conforming amendments will be made to I Part 61, " Licensing Requirements for Land Disposal of. Radioactive -] Waste" when and if that proposed rule (46 FR 38081, July 24, ) 1981) becomes final. j A number of comments from licensees and their consultants ! stated that the proposed rule would allow the individuals'to j harass the employer with accusations that are false, frivolous, or unwarranted. To prevent this, it was recomended that either civil penalties be imposed on the individual that knowingly supplies false information or that compensation be l provided to an employer to defray the cost of defending against the allegations. The Comission has rejected these coments since the statutory authority of the Comissior under Sec-tion 210 neither provides for penalties against individuals or for any reimbursement to an employer. Based on a roiew of the accusations to DOL it appears that, at an early stage, D0L j accomplishes termination of the proceedings when it appears to be an unwarranted accusation. 133 November 1987 L__-_____________________._ ___ _____ _____ _
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- Q% ' NUCLEAR REGULATORY' COMMISSION ~ pgjg h1 V '
10'CFR PART.62
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' y CriteriaandandRegional.
Procedures -for. Emergency Access 'to'Non-Federal Low-Level Waste Disposal Facilities
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Nuclear' Regulatory Commission. 4 ACTION: j
=Ag4fM 6 Ifi SUMARY: The Nuclear Regulatory Commission,(NRC) is _
rulefto-establish procedures and criteria for fulfilling.its responsib'ilities-associated with acting on requests by low-level. radioactive waste (LLW): generators, or State officials on behalf of.those' generators; for. emergency access to operating, non-Federal or regional,-low-level radioactive waste disposal facilities under Section-'6 of the Low-Level Radioactive Waste Policy Amendments Act of-1985. Grants'of. emergency access may be necessary if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal
. facilities, and the lack of access results in a serious and immediate threat to the public health and safety or the common defense and security.
l DATES: Comme s hould be submit on or before . O Comments rec ived fter this da wil be conside d if 1 is practical coa 1 ~. t do so, ut assura ce of con iderati canno be given exc pt as to l-
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ADDRESS: Submit written comments to the Secretary of the Commission, U.S. Nuclear bgulatory Co ission, Washi [ ton, DC 20555, At ion: Docketing a Service B anch . Copies comments receiv an th regulatory a nalysis be examine at the NRC ubli ocument Room, i 1717 H Stree NW. Washington, DC 20555. a FOR FURTHER INFORMATION CONTACT: Janet-Lambert, Division of Low-Level Waste Management and Decommissioning, U.S. Nuclear Regulatory Commission, H91 38SS Washington, DC 20555, telephone (301) 4 C 770^. SUPPLEMENTARY INFORMATION: I. 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 i XI. Paperwork Reduction Act Statement XII. Regulatory Analysis XIII. Regulatory Flexibility Certification XIV. List of Subjects in 10 CFR Part 62 2
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*fee pf g Comg c,) com' agg M #AfD ff4 M The Low-Level Radioactive Waste Policy Amendments Act of 1985 1
(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
- the development of regional LLW disposal facilities so that the new ]
facilities will be available bp January 1,1993. [(li The Act establishes procedures and milestones for the selection and [go development of the LLW disposal. facilities. The Act also establishes a system of incentives for meeting the milestones, and penalties for [ failing to meet them, which is intended to assure steady progress toward new facility development. f The major incentive offered by the Act is that the States and j' regional Compacts which meet the milestones will be allowed to continue h to use the existing disposal facilities until their own facilities are available, no later than January 1,1993. If unsited States or Compact
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l0V ,h regions fail to meet key milestones in the Act, the States or Compact Commissions with operating non-Federal or regional. LLW disposal p0 Y facilities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent j State or Compact region further access to their facilities. Section 6 of the Act provides that the Nuclear Regulatory Commission 3 (NRC) can grant a generator " emergency access" to non-Federal or regional lhfth l
/' low-level radioactive waste (LLW) disposal facilities if access to those ;
'M g facilities has been denied and access is necessary in order to eliminate , Ce an immediate and serious threat to the public health and safety or the
/M' ? common defense and security. The Act also requires that a determination
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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 access as discussed in the Background section, the Act-further directs NRC to designate the operating LLW disposal facility or facilities where the l' waste will be sent for disposal if NRC determines that the circumstances ( warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the State in which the waste was (i /5
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0e,hV generated that emergency access has been granted, and to notify the State
,f 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 l ' }h 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 / (b y 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 v4 \ ()a q f??08dql bh mygn'e7h 4
I 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 acces's" 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.
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 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. I and criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to provide an opportunity 5
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 within the time allowed by the Act.
~III. L'egislative History The legislative history of the Act emphasizes the Congressional intent that emergency access be used only in very limited and rare l
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 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 problems
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i thus precluding the necessity for involving the Fedaral 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 1 6 x a
r i means for resolving the problems created by denial of access to LLW dis-posal facilities. The proposed rule places the burden on the party l J requesting emergency access to demonstrate that the criteria in the rule J s have been met and emergency access is needed. Applicants for emergency ] access will have to provide clear and convincing evidence that they have 1 exhausted all other options for managing their waste. By establishing l 1 strict requirements for approving requests for emergency access, NRC l I intends to reinforce the idea that problems with LLW disposal are to be l worked out to the extent practical among the States, and that emergency ! l
, access to existing LLW facilities will not automatically be available as l an alternative to developing that capacity. NRC believes this interpreta-tion is consistent with a plain reading of the Act and the supporting legislative history.
Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is located of ; any NRC grant of access "for such approval as may be required under the j l terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to--
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant,
- allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in l Section 6(h) of the Act have not been exceeded.
However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission 7 \
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 framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ' ratification of a Compact should be conditioned on the Compact's acting , in accord with the provisions'of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, J l Congressional ratification of that Compact would be null and void. H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985). I j/ IV. NRC pproach In developing proposed r e, the NRC's approach was to:
- 1. assure t t all of e 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 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.
l l 8
I 1 1
- 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 4
own disposal capability, and yet flexible enough to allow NRC to respond ! j appropriately in situations where emergency access is genuinely needed to protect the public health arid safety or the common ' defense and security. j V. Assumptions 1 [ In developing the rule NRC made several assumptions. These assumptions are discussed below. NRC staff are assuming that the wastes requiring disposal under the emergency access provision will be the result of unusual circumstances.
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The nature of routine LLW management is such that it is difficult to con- I ceive of situations where denial of access to disposal would create a serious and immediate threat to the public health and safety or the national security. In most cases generators should be able to safely
}
1 store routinely generated LLW or employ other options for managing the i 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 l 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- i gency access will not be made for wastes which would otherwise qualify ; 9
& YI C0 m, meg) [ghp' 4 ASN'k M:/ Kaf M M 4/8C M 45M(OMM j
M[ acass m u p sks.a g,4 w tq W lA %E^=q%s Ms{xhiJs A cWspoQ of r& ded ses a M Jey14as.tu w rmar 9
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"(A) low-level radioactive 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; dioactive waste described in subparagraph (A)
"(B) low-level ra 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 decommissioning of vessels of the United States Navy; or
"(iii) owned or generated as a result of any research, development, testing, or production of any atemic weapon; and
"(C) low level radioactive waste described in subparagraphs ]
(A) and (11) that is generated outside of the State and accepted for, disposal in accordance wi,th sections 5 or 6., , , l
% h phys _/
m y nec.
'l for disposal by the Department of Energy (DOE) under the unusual. volumes j i
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 j J the regular reactor allocations through 1992 to be used for those wastes. 1 l With this space reserved for wastes qualifying for the " unusual volumes allocation," NRC believes emergency access should be reserved for.other
\
LLW,'until the 800,000 cu.ft. allocation is exceeded. I
, NRC considered basing its decisions for granting emergency access
~a solely on quantitative criteria, but decided against that approach. j
-(
While NRC has identified some of the wastes and the scenarios which would [ create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated. Largely because of the uncertainty , associated with identifying all of the circumstances under which J emergency access may be required, NRC has avoided establishing criteria I with absolute thresholds. Instead, the rule as proposed contains a j combination of qualitative and quantitative criteria with generic J applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by-case basis. I VI. The Proposed Action ! i The proposed rule contains three Subparts, A, B, and C. These l Subparts set out the requirements and procedures to be followed in requesting emergency access and in determining whether or not requests j should be granted. Each Subpart is summarized and discussed here. 10
1 1
'l i
l 1 Subpart A - General Provisions i 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 becn denied access to existing commercial LLW di.sposal 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 i 1985. l Subpart B - Request for a Commission Determination Subpart B specifies the information that must be submitted and the l procedures that must be followed by a person seeking a Commission deter-1 mination on emergency access. J 1 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 alterni.tives to emergency access. This ; information will enable the Commission to determine. l l (a) whether a serious and immediate threat to the public health and 1 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
It provides for publication.in the' Federal Register of a. notice of receipt 3
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of a request for emergency access to inform the.'ublic p that Commission action on the request is pending. Even though comment is not' required by
.J the Act or the Administrative Procedure Act, Subpart B provides for a'
- 10-day public comment period on the request for, emergency access. J 1
-In the event that the case' for rcquesting; emergency access.is, to be li based totally or. in'part on the threat posed to the comon 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.
. If the request is based entirely on comon defense and security concerns,.
NRC will et 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 l- 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; d and specifies the procedures to be followed in issuing them. i 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 l 12 L1-_ _______ _ _ _ _ _ - -
l would result from the denial of access including consideration of 'the. l l standards for: radiation protection contained in 10 CFR Part.20, any. j 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. In. making the determination that there is a serious and immediate l threat to the common defense and security, Subpart C provides that the Commission will consider whether the' activity generating the LLW is necessary to the protection of the common defense and security and whether the lack of at. cess 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 l 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 i whether alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request l 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 i technology and the impacts of the alternatives on the public health and i N i j
l u , 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-.andj safety or the common ' defenseand. security,- because .it is technically- or economically beyond the capability of the' requestor, or,because the alternative could not be implemented in a, timely manner'
- Of particular concern to Congress yas theop'ssibility that ceasing the activity responsible for. generating the ' waste could leSd to the 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. However, the Commission is also concerned as to whether the implementa- . tion of other alternatives may have a disruptive effect on essential-medical services. The Commission specifically requests information on these impacts'in 6 62.12 so they can be considered in its overall determination about reasonable alternatives. According to the procedures set out'in Subpart C, the Comission . will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for-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
Subpart C sets out that in designating a disposal facility or facilities to provide emergency access disposal, the Commission will first consider whether a facility should be excluded from consideration because: .(1) the LLW does not' meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4)'the volume of'the waste. requiring 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, radiological effects, site capability for handling the waste, and any other information the Commission deems necessary. In' making a determination regarding a request for an extension of emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access. In making a determination that temporary emergency access is neces-l sary, the Commission will have to consider whether the emergency access 1 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
- s. _ _ - _ _ _ _ - _ _ _ _ _ _ _ _ _ - -
(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 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 Congressional intent for what would constitute "a serious and immediate threat." (1) To the Public health and safety--
]
The criteria in the proposed rule for determining whether a serious l
- and immediate threat to the public health and safety exists, address 1
l n ree situations. Section 62.25(b)(i) addresses the situation where the , 1
\
l 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
'l l the threat to public health and safety would result from disruption of 1 the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresse5 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 l flexibility necessary to consider a wide range of potential factual j situations. However, in making this qualitative determination, the 4 criteria require the Commission to consider several existing quantitative standards. These consist of the Commission's standards for radiation 4 protection in 10 CFR Part 20, any standards on the telease of. radioactive ! materials to the general environment that are applicable to the facility that generated the low level waste, and any other Commission requirements 16 u___------ - - - -
specifically applicable to the facility or activity which is the subject of the emergency access request. This latter category would include licence 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 safety did not result from a denial.of access. In addressing this concern, the Commission will evaluate the request for emergency access in its entirety, i.e. the threat to public health and safety and the alternatives to emergency access that may be available to mitigate that i , threat. In other words, in determining what constitutes a serious and immediate threat to public health and safety, the Commission must consider what threat would be unacceptable 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 i 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 i l waste is stored, although it is clear that Congress was concerned over ! 1 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 I and immediate threat to the public health and safety. However, in order to be able to respond to the unlikely, but still possible, situation j where a serious threat to the public health and safety might result, the l
)i i
17 , I l
-l proposed rule establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Commission 4 would act immediately to prevent.or mitigate any threat to the public $
health and safety, including shutting down the facility. However, there-i may be circumstances where a potential safety problem would still exist, after the facility was shut dodn or the activity stopped,_if the low level waste could not be disposed of because of' denial of access. f In this situation, emergency access may be needed. Jihe Commission would emphasize first, that it is extremely unlikely that a serious'and '
~
immediate threat to the public health and safety will ever result at the a generator's facility from the lack of access to a disposal facility, and- j second, if such a situation does exist, the Commission will move ' l immediately to eliminate the threat. - If the Commission does receive a request for emergency access based
- 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's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This l l 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 i
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 order to grant temporary emergency access, the Commission is not required to evaluate the availability of alternatives to emergency access that 4 nuld mitigate the threat. The Commission believes that grants of 18 l L_ -___ .
.I temporary emergency access should be. reserved for the most serious threat?
to public health and safety, and'has accordingly established criteria for. j granting temporary emergency access that require the~ consideration of more serious events. For purposes of granting temporary emergency access under Section 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining
~~ '
. whether an event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section:
208 of the Energy Reorganization Act of 1974. (45 FR 10950, February 24, , 1977.) This provision requires the. Commission to keep Congress and the ( public informed of unscheduled incidents or events which the Commission I considers significant from the standpoint of public health and safety.
)
Under the criteria established in the Commission's policy statement, an event will be considered an abnormal occurrence if it involves'a major reduction in the degree of protection provided to public health and safety. Such an event could include--
- l. 1. Moderate exposure to, or release of, radioactive material;
- 2. Major degradation of safety related equipment; or
- 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 s serious and immediate threat "to the public health and 19 l C________._.___ - - _ - . _
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'seriousrand 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 i decision making process. 1 l NRC considered several approaches for involving D0D and DOE in the process of determining whether requests for er rgency 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-l gency access which are made entirely, or in significant part, on the j l basis of a serious and immediate threat to the common defense and I i security, should include appropriate certification from DOE or D0D I substantiating the requestor's claim that such a threat will result if emergency access is not granted. The necessary certification in the form , 1 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 l the common defense and security determination rather than leaving the determination with 000 or DOE. So while the Commission intends to give l the D00 and DOE certifications and recommendations full consideration 20
--__q l
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 ifJalternatives 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. I 9 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 i 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 i operators of commercial nuclear reactors with special access to disposal in the event that unusual or unexpected operating, maintenance, repair ! I 21 ! L !
.]
or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that l 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 1 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 l and to provide a detailed analysis comparing all of the alternatives i i i considered. The requestor will be expected to demonstrate that he has I considered combining alternatives in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even l on a temporary basis, until other arrangements can be made. The requestor l j will be expected to evaluate the costs, economic feasibility, and benefits i 22 C__ _ __ _ ___ i
3 I 1 s
-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.for1the site; (2) the disposal facility meets or. exceeds its capacity limitations as set out in' the Act; (3) granting emergency access' would' delay the planned closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the totai 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 or&r 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 [ _.--___--- _ _ _ _
)
would expect that the designation of a single site will minimize handling of and exposure to the waste and best serve the interest of protecting i the public ncalth and safety. However, if the volume of waste requiring l 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 I l i been designated for emergency access disposal to each site to date (both j for the year and overall), and whether the serious and immediate threat l J 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 I decisions, the Agency will have to be well informed regarding the status I 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 l as a result of NRC's decision to grant emergency access "should be 24
i I reduced in volume to the raaximum 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. t 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 i properties, radioactivity, pathogenicity, infectiousness, and toxicity, i i pyrophoricity, and explosive potential); condition of current container; i potential for contaminating the disposal site; the technologies or ; combination of technologies available for treatment of the waste l (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
['y 1 1 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, i VIII. Specific Request.for Comments NRCisinterestedinreceivingcommentsontposeparts.ofthe
/
proposed rule where NRC applied its discretion 11 order to implement , l the Section 6 provisions. NRC specifically re uests comments on the - following: (1) What. scenarios are' envision where emergency access would be required? (2) hat are the poten 1 problems with NRC's approach to determining an mmediate and' erious threat'to the public. health and safety? (3) What a the po ntial problems with the arrangement proposed for making determination of serious and immediate threat to the common de e and security? (4) What are the potential difficulties with the ropose approach for designating the receiving site? and (5) What s ould NRC do if no site is found to be suitable for waste requiring emergency access .
/
NRC is interested in facts and recommendat ons on specific ways to be responsive to thesej issues. While NRC will cohsider all comments on the proposed rule, it will be better able to respon to those comments l that recommend specific solutions to any problem raise Q the commenters. IX. Requests for Emergency Access Made Prior to the ! Effective Date of the Rule i In setting the schedule for this rule, the Commission has tried to l l anticipate when the first request might be made so the final rule would 1 1 26 I i Q__-__ _ _ _ - _ - - _ _ _ _ _ _ - - _
i i
-]
be in place before that time.- However,'it may be necessary for a generator or State to. submita reque'tsfor a Commission emergency access determination prior to the ef.fective;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 l proposed rule. ' X. Finding Af Jio Significant Environmental Impac : Availability If adopted he' propose /d ule would establish criteria'and procedures- j for a Commissp/ o determina ion under.Section 6 of the Act that emergency access to an aperatin non-Federal LLW disposal facility is necessary to avert a serious and immediate' threat to the public health and safety or a
\_/'
the common 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. J 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, ' 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
l 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. f XII. Regulatory Analysis The Commission has prepared a draft regulatory analysis of the proposed regulations. The analysis examines the costs and benefits of the alternatives considered by the Commission. The draft analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. 1 XIII. Regulatory Flexibility Certification NRC is using this proposed rule to implement the statutory requirements for granting emergency access to non-Federal or regional J J LLW disposal facilities under Section 6 of the Act. Based upon the l ) l information availab~e and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that, if promulgated, l 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 1.LW disposal l l facilities would be considered to be a small entity. The generators of LLW are nuclear power plants, medical and academic facilities, industrial i licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 28 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 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, the generator himself must initiate the action by requesting a grant of l emergency-access from1NRC. This would occur only because the generator has been denied access to LLW disposal. 1 The Commission is required to 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 genera-
.{
tor of LLW including small entities. I Establishing criteria and procedures for requesting and granting.
]
emergency access through a rule will also' benefit small and large l l generators. The proposed rule provides guidance to the generator on what i 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 plar, to avoid LLW disposal access problems, thus providing the certainty requit ds for eccnomic growth
- 1. 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 i 29 l
'l part of any process to decide a course of action if.necessary access to i
LLW disposal was not' going to be available. 4 The NRC is seeking public comment on the initial regulatory flexibility. i analysis. The NRC is particularly seeking comment from small entities. 4
-(i.e. , small businessas, small' organizations, and'small jurisdictions, j under the Regulatory Flexibility Act) as to'how the regulations will affect them and how the regulations may"be~ tiered or otherwise' modified to impose less stringent requirements on small entities while still adequately protecting the public health and safety. Those small entities which offer comments on how the regulation could be modified to take into account the differing needs of small entities should specifically discuss the following items.
(a) .The size of their business and how the proposed regulations l 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 i commenter. (d) How the proposed regulations, as modified, would more closely i equalize the impact of HRC regulations or create more equal access to the benefits of Federal programs as opposed to providing special advan-tages to any individuals or groups. l (e) How the proposed regulations, as modified, would still ! adequately protect the public health and safety. l i 30 1
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-Level Radioactive Waste Policy Amendments Act of 1985, Denial of Access. For the reasons set out in the preamble and under the authority of l the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act l 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:
l t Subpart A - General Provisions Section: 6
2.1 Purpose and Scope
62.2 Definitions I 62.3 Communications 1 62.4 Interpretations { i 62.5 Information Collection Requirements 62.6 Specific Exemptions l 1 31 l l l t
l Subpart B _ Request for a Commission Determination ; 62.11 Filing and distribution of a determination request 62.12- Contents of a request for emergency access: General information i 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 62.18 Denial of access i 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 l 62.26 Criteria for designating a disposal facility Q,17 TLryns h4 CenedRms fe)6* y D" Authority: Secs. 81, 161, as amended, 68 Stat. 935,'948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); 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). j i l l 32 l
d f,,sutz add:G): %<putous a 44, paaap49 k & f3(/(,0 h Y W ! ibfg fyg (g$ fop'si rve1\f A
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- "(A low-level ra'dioactive waste generated thin the State
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(other than by the Federal 4overnment) th . consists of or contains 'class A, B, or C radioactive waste as defm' ed section i 01.55 of title 10, Code of Federal Regulations, as in frect on - Janu 26,\ 983; s '
"(B) w-l I radioactiv/
1 e waste described in subparagraph (A) ) ll that is generated by the Federal Government except such waste that is--- 5 b "(i) own\ed oreneratedg/ b the Depadment of Energy d
"(ii) ownedx ' generated b the United States Navy as a; 1
result of the ecommissionmg of vessels of the United l1 s States Navy or 3 1
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"(iii) owned or ge ated as a result of any research,
. development, testing, L/
production of any atomic weapon; . t ) ,, "(C) low le 1 I I radioactive waste described in subparagraphs ( A) and (B) that is generated outside of the State and accepted
,)C p 'ar disposal in accordance with sections 5 or 6.
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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 emergency
~
access under Section'6 of the Low-Level Radioactive Waste Policy Amend - ~ ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional f 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. NNb ' A l 1 6 62.2 Definitions. As used this part: I "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
1 l I
'i
.1
" Commission" means the Nuclear Regulatory Commission or its duly-authorized representatives..
~
" Compact" means a' Compact entered into by two.or more States E .
pursuant to the Low-Level Radioactive. Waste Policy Amendments Act of 1985. { 1
" Compact Commission" means the' regional commission, committee, or board' established in a Compact to administer such Compact.
H . . L
" Emergency Access" means-access to an' operating non-Federal or.- .
regional low-level radioactive waste disposal facility or. facilities for J
'a period not to exceed 180. days, which is granted by NRC'to a generator.
1 of low-level radioactive waste who has been denied the use of those l 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 rau oactive waste disposal facility or facilities for l a period not to exceed 180 days. g g e / ;_
s - mi . .y . ,wo
" Low-Level Radioactive Waste"-(LLW) means radioactive material that j (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 f* [U.S.C. 2014(e)(2)]; and (b) the NRC, consistent with existing law and in
/
l j accordance with paragraph (a), classifies as low-level radioactiv.e 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. I 1
1 34 I
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o bh U I l y/Sgad Seer,nff .s bScDlb 7. t (c) # rM1WY'
" Person" means any individual, orporation, partnersjtip,-firm, ~
^
h association, trust, State, publi or y, private'i/ nstitution, group or i agency who is an NRC or NRC Agreement State licensed generator.of . low-level radioactive wgstm.a. wy ~ u. mew any Governor (or.for any " State" without
& ,a.g j N-Governor, the chief executive officer of the " State") on be a f o any I p- ~
generator or generators of low-leve,17ad;6
, active,,wasteJoc,at iadi{s, _oP1 _j i g, _r _ - ,
r m . -, ,,5 - . - . p-_ p o.y 7 her " State ('1;-.or-their duly authorized representative', i.egal-succ~essor or A y agent. ) i
" State" means any State of the United States, the District of ,
Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's -
4e e,liva6dh., A:n (A B) discretion upon determining that access is necessary i:- _ _ f an immediate and serious threat to the public health and safety or the l 1 common defense and security. Such access expires 45-days after the j granting. 1 ! S 62. T., Communications. ! 4 Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, or may be delivered in person to the Commission's offices at 1717 H Street NW., Washington, DC, ' or 7915 Eastern Avenue, Silver Spring, Maryland. l 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
officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considered binding on the Commission. S 62.5 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 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. l Subpart B--Request for a Commission Determination l 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 f
Appendix D.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 l notice. A copy of the request will be made available for inspection in 1 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 '(
'l
'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- 1 Federal low-level radioactive waste disposal facilities, and to the Compact Commissions with operating regional. low-level radioactive waste disposal facilities. (c) Fees applicable to a request for a Commission determination 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 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. 37 ! l l ' 5
1 g562.12 Contents of a request for emergency access: General h ,
'6 Information.
4
, A request for a Commission determination under this part must include li f b , the following information for each generator to which the request applies:
(a) Name and address of the person making the request; o yf vf (b) Name and address-of the person (s) or company (ies) generating
.i the low-level radioactive waste for which the determination is sought; , j a( The low-level waste generation facility (ies) producing the Q waste for which the request is being made;
) v f g (#[ A description of the activity that generated the waste; l -f % Name of the disposal facility or facilities which had been g D.8 A receiving the waste stream of concern before the generator was denieu ) t access; f W ,h" ! % A description of the low-level radioactive waste for which f%i emergency access is requested, including: (1) The characteristics and composition of the waste, including, ! h-) but not limited to-- D <] ~ (i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment); (ii) principal chemical composition; (iii) physical State (solid, liquid, gas); (iv) type of solidification media; and (v) concentrations and percentages of any hazardous or toxic l chemicals, chelating agents, infectious or biological agents associated with the waste; 38
l:
}.
i (2) The radiological characteristics of the waste such as-- (i) the classification of the waste in accordance with S 61.55; i (ii) a list of the radionuclides present or potentially present in ! the waste, their concentration or contamination levels, and total quantity; I
.(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
&- ELde-(S.80T iM i the threat to the public health and safety or the common ,
defense and security; (4) The time duration for which emergency access is requested (not to exceed 180 days); (5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and (6) Description of the volume reduction and waste minimization techniques applied to the waste which assure that it is reduced to the i maximum extent practicable, and the actual reduction in volume that occurred; i () Basis for requesting the determination set out in this part, including: . 1 (1) The circumstances which led to the denial of access to existing- I low-level radioactive waste disposal facilities; i (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; i 39 i
t (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;-
L (4) /An' explanation of the' impacts of the waste on the public! health: L and safety or the common defense and ' security if emergency access is not
'pranted,' and'the basis for concluding that these impacts constitute a
~
serious'and immediate threat to the public health and safety or the common-defense and security. The impacts to'the public health and safety _
.or the common defense and security if the garator's services,' including research activities, were to beLcurtailed, either for a limited period of time or indefinitely, should also be addressed; .
(5) Other consequences if'emargency access is not granted;_ () Steps taken by the person requesting emergency access to-correct the situation requiring emergency. access and the person's plans j 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 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; i 40 l
- _ _ _ _ _ _ _ _ - _ l
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MS4rn., mu
- fMm OGce /J.t ) wse(. ' Q s> 'stic's tAst ', ' y n-, y> * * -
a i Datebywhi[accessisrequired;g . I Any other information which the Commission should consider in - 4 making its determination. CW
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- elk alternatives. y 1/ V-
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$ 62.13 Contents of a request for emergency access:
- (a) A request for emergency access under this part must include hb
'f information on alternatives to emer ncy access. ,
TheyM cheuM .
- - - y a 3~ ; ;;;; > ,')
include a discussion of tie l < a nAt4Aad alternatives, (( N including, but not- mited to, the following:
% /
(1) storage g ow-le el lh . radioactive asteatthesiteofgeneration;(2)storageoflow-le/e1 s j radioact ve waste in a licensed storage facility; (3) obtaining ccess
/
g<3 l fj to a isposal facility by voluntary agreement; (4) purc spo g-- cap. city available for assignment pursuant to the Act; p r/que ing g d2 1sposal at a Federal low-level radioactive waste disposal 11ity irt S N #' )
' ost wasks i the case of a Federal or defense related generator of reducing d.2 the volume of the wart )--caasing_atti.v.itias_that_ generate low-level !
sA M ws.l) .ShCts n dih . Q" radioactive waste; 4ed, other altirnitTv dEntffied u er 4 (([ Subpart (b) of this Section. (b) The request;must igtify, a,117ef-the7altyr6HEivss!to energency
,. - - =-s - : = m n w g, -
access considered at=d7nb._ _ud 'JLdescript on of tgpr[ cess 115e - to I identify them, including an not specified in paragraph (a) of this section. The request should also include a description of the factors that were considered in identify g and evaluating alternatives, a chronology of actions take/ n to i ntify and implement alternatives during the process, and a discus i sion/ of any actions that were considered, but i
>'p not implemented / . '4 mb . wm, Y, U$'t Mt&N c)fo 41 l
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s l if L C' (c) The evaluation of each alternative must consider: (1) its i \ potential for mitigating the serious and'immediate threat to public
\ \
5 i health and safety or the common defense and security posed by lack of access to disposal; (2)'the adverse effects on public health and safety
)
and the common defense and security, if any, of implementing each alter-
) native, including the curtailment or cessation of any essential services affecting the public health and safety or the common defense and secu-lj% rity; (3) the technical and economic feasibility of each alternative l k including the person's financial capability to implement the alterna-b tives; (4) any other pertinent societal costs and benefits (5) impacts
% *s 4
g to the environment; (6) any legal impediments to implementation'of each f alternative including whether the alternatives...will-comply ~with~ap~pli- ,
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- g( 4 cableNRCregulatoryrequirements,and(7)p.m. t' e're uired t develo f t 4 l 7,sc
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and implement each alternative, y I w l he requast must include the basis for: (1) reject b e_a b alternative; and (2) concluding that no alternative is available. ggcy'6f l i MkN S 62.14 Contents of a request for an extension of emergency access. # l hg A request for an extension of emergency access must include. l s
'\
g s (a) ' Updates of the information required in S 62.12 and S 62.13; and gt4 3 f h) $r h ,a . Q
\
1 (b) Documentation that the generator of the low-level radioactive cgf (( ( waste granted emergency access and the State in which the low-level l i 1 radioactive waste was generated have diligently, though unsuccessfully, OQg
,e acted during the period of the initial grant to eliminate the need for g !
p emergency access. Documentation must include: (1) an identification of K,dd y/ g\/ ~ additional alternatives that have been evaluated during the period of the k/(l[ ] ( Cg i
\py-9 <s r?5 42 gg;g
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i ifi i i initial; grant,1and (2) a discussion'of' any reevaluation' of previously1 considered alternatives,-including verification of continued; attempts to. l gain access to a disposal facility by voluntary agreement.' c 6 62.15 Additional Information. l .(a) The Commission may require additional information from'a person -l making a: request for a Commission determination un' d er 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. 6 62.16 Withdrawal of a determination request. (a) A person may withdraw a request'for a Commission determination under this part without prejudice at any time prior to the issuance of an
' initial determination under S 62.21.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a Commission determination under this part. S 62.17 Elimination of repetition. In any request under this part, the person making the request may incorporate by reference information contained in a previous application, 43
Statement, or report filed with the Comission provided ihat these refer-ences are updated, clear.and specific. 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 Comission may deny the request. Subpart C--Issuance of a Comission Determination S 62.21 Determination for granting emergency access. (a) Not later than (45) days after the receipt of a request for a Comission determination under this part from any generator of low-level-radioactive waste, or any Governor on behalf of any generator or genera-tors located in his or her State, the Comission 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 l (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. j (b) In making a determination under this section, the Commission f shall be guided by the criteria set forth in S 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, physical and radiological characteristics, and the minimum volame and duration sti M (S.I9l (not to exceed 180 days) necessary to d '... a fhe 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. (7fh[ S 62.22 Notice of issuance of a determination. gf (a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of the final determination in 40 YW' i writing, to the person making the request, the Governor of the State-in op(ChY which the low-level radioactive waste requiring emergency, access was
& generated, and the Governor of the State in which tiw designated dis-M posal facility is located, and if pertinent, the appropriate Compact b' h Commission, of the final determination. For the Governor of the State N in which the designated disposal facility is located and for the appro-priate Compact Commission, the notification must set forth the reasons
[ l#* that emergency access was granted and specifically describe the low-level bhf g radioactive waste as to source, physical and radiological characteristics, (0\lk b , T and the minimum volume and duration (not to exceed 180 days) necessary to W A 5 0lh alleviate the immediate and serious threat to public health and safety or pMk d common defense and security k For the Governor of the State in which 'g [ the low-level waste was generated, the notification must indicate that no M / extension of emergency access will be granted under 6 62.24 absent dili- {[.3 [P ent State and generator action during the period of the initial grant. Y Qf%,am %e~.%&"W w L h nw . . m <gLmp a - anaw. so
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aM (N l ; 4 ! (/) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination) 4] {d),Ad The Secret,ary of the Commission will make a copy of the final determination available for inspection in the Commission's Public 4 Document Room, 1717 H Street NW., Washington, DC. tS
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S 62.23 Determination for granting temporary emergency access, ww (a) The Commission may gra,nt (I M$MI. temporary) emergency access to ( f. 2.5' j an appropriate non-federal g dispbsal facility or facilities provided i 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 vaste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially I 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~ (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*
1 S 62.25 Criteria'for a Commission determination. (a)' In making the determination required by Section 62.2Ha) 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. l
'(b) In making the determination that c serious and immediate threat
.i exists to the public health and safety; the Commission will consider,.
- notwithstanding the availability.of any alternative identified in Sec-tion 62.13 of this part
{ (i) the nature and extent of the radiation hazard that would result from the denial of emergency access, incl M.ng consideration of, ) (A) the standards for radiation protection contained in Part 20 of I' this Chapter; (B) any standards governing the release of radioactive materials to l the general environment that are applicable to the facility that generated the low level waste; and i (C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request; 47 i C___._ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _
i (ii) the extent to which essential services affecting the public .;
)
health and safety (such as medical, therapeutic, diagnostic or research s I activities) will be disrupted by the denial of emergency access.
.(c) For purposes of. granting temporary emergency access under
,i Section 62.23 of'this part, the Commission will consider the critoria f
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 threat to the concon defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in sec- . tion 62.13 of this part: (1) wl. ether the activit.v generating the sastes is necessary to the protection of the common ' defense and f.ecurity, (2) whether the' lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten i tne comoon defense and security. The Commission will consider the views i 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. (e) In making the determination required by S 62.21(a)(2), the Commission will consider whether the person submitting the request: (1) has da &= *Sad4. &
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1 (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 5.62.21(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 ces'sation 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. 1 i (g) The Commission shall make an affirmative determination under S 62.21(a) only if all of the alternatives that were considered are found to be unreasonable. ! (h) In making a determination regarding temporary emergency access under S 62.23, the criteria in parts (a) and (b) of that section shall apply. l l (i) In making a determination regarding an extension of emergency access under S 62.24, the Commission shall consider whether the person l 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. j l (a) The Commission shall designate an appropriate non-Federal or regional disposal facility if an affirmative determination is made pursuant to S 62.21. ~l (b) The Commission will exclude a disposal facility from considera-' j 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 I (2) the disposal facility is in excess of its approved capacity; or J l (3) granting emergency access would delay the closing of the I , disposal facility pursuant to plans established before the receipt of the i 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 i
- j. disposal at the facility during the previous calendar year.
, j q I (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 M df 57thS U N l (2) previous disposal practices, (3) transportation, (4) radiological effects, (5) site capability for handling waste, em> () any other considerations deemed appropriate by the Commission. ((e)fkJMed4Nr$ Q W M IS W N a#g aa sh bah pwcaa ed ! % M)
s-i (d) The Commission, inimaking its designation, will also consider- _ any information submitted by the operating non-Federal or regional LLW . disposal sites, or an ?nformation' submitted by the'public in response to-l a Federal: Register notice requesting comment, as provided in paragraph (b)
-l of 6 62.11. .
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. Dated at' Washington DC, this -day of , 1987. ' (,'L 'J 9 For the Nuclear Regulatory Commission.
f {hi W ['N Samuel J. Chilk, Secretary of the Commission. 1 j ( ,p %S & &$L = - o.) .Bhaa l . g [ g, sa ro ~ as v--* ! u u) casposa.o o % %"' #" i [ 4h 44, vgact.speaA S ="y odduG y 1 1 A0p7' yaw.th.at*n M O'YO
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r --- ___ Compliance with conditions of emergency access; termination of ertiergency access. 4 q (g) The operator of a regional disposal facility or a non-federal disposal facility designated by the Comission to provide emergency access may refuS_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. i 1 (% The Commissio'n shall terminate E grant of emergency access- .;,w /N emergency access is no longer necessary to eliminate an immediate threat 1 to public health ands'safety or-the common tefense
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NOO Of Document Name: (W6 / 4 P 10 CFR 62 ENCL B FRN {T Requestor's ID: of.P q cd k V KIMINAS 3 y' w y W 440 W e Document Comments: [ SPE 3/24/88 - ETPB REVISIONS ' f
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jh 6 ID 'OUS.< WW bjI Part 62 Comment Analysis e % h gm o dMde) pf B. Responses to Individual Comments: j (% ? 4/8/B 2 1 B.1 Comment Letter #1 -- W. Clough Toppas, Dept. of Human Services, Maine. 1 Comment 1.1
- 1. The premise for granting emergency access is sound and takes into account a variety of factors to include some initial oversight actions.
We are nut in opposition to the proposal. l RESPONSE: No response necessary. Comment 1.P
- 2. The proposed rules (e.g., 962.26) should include a small subsection !
stating "...the designation of a disposal facility pursuant to '962.21 shall not preclude the implementat!on of aay 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 routineiy 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 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 l 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 aareement for the facility [62.26(b)(1)]. The licenseQ Q incorporate the regulations and requirements that affect each particular facility. Taken with the other information in 62.26 which the NRC will l $4 1daIkbie
2 l consider before designating a site, the Commission believes Section 62.26 as proposed adequately addresses the NRC'S responsibility to designate i a site which does not preclude "the implementation of any specific regulations,- .] and requirements at the designated disposal facilities." l l Mr. Clough's comment also lists " fees, taxes and conditions" as items j which NRC should consider in designating a site. The Commission does j not agree that such information can or should be used by NRC in making ] its site designation decision. The Commission recognizes'theiv
.adminh+ "five importanc in th: =t=1 implementation of emergency ;
access decisions once th are made by the Commission and has responded ! to that part of his co ent by adding a new "Section 62.27 - Terms and Conditions of Emer cy Access." The new Section sets out the responsibilities 7 f the generator and the disposal facility operator once emergency iccess has been approved. (See also responses to Comments 5.5, 8.4 and 9. .) j _ , . - n
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. B.2 Comment Letter #2 -- Sally Dicmas, " Concerned About Radiation.in the.
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Environment," (Citizens Group) . l Comment'2.1' 'I1
.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'sdesignatedbylSection'3(a)(1)'oftheActtobe;thedisposal responsibility of the States, would'be eligible for disposal pursuant to-It - the emergency access provision'. UnderSection3(a)(1)(A),theStates 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 gm,erated by the Federil l 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. ! access, NRC has added appropriate text to Section 62.1 " Purpose and Scope," and to the " Assumptions" discussion in the preamble. For further elaboration on this subject, see the response to Comment 5.6. Comment 2.2
- 2. No Greater-than-Class-C waste shall be forced upon these commercial .
1 dumps since this is not part of their design criteria. ' RESPONSE: NRC. developed the proposed rule assuming that emergency access can only be granted to those LLW's for which the States have l l routine LLW disposal responsibility under the Act. Section J L 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. ! l l _ _ _ _ _ _ _ _ - _ _ _ _ _ . _ - _ _ _ _ _ _ _ _ _ _ _ _ _ Y
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, the NRC shall not' force waste'to go to those sites.
RESPONSE: Section 6 of the Act sets out NRC's mandate.for emergency. l t 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 g-level radi.oactive waste. . Facilities developed bT States to stofe
/- LLW would n:it, by definition, cualify and would automatically be precluded J from consideration by NRC as sites to receive emergency access wastes, f (See also the responses to Comments 3.3, 8.4 and 10.5.) l
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.5 :J B.3 Comment Letter #3 -- Shirley & Lloyd Gilbert, Citizens; Fresno, California 1
Comment 3.1 < l
.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 rerponses to'CommentsL.2.1 and 5.6.- ( t l 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 l NRC from forcing Greater-than-Class-C waste on any state or compact 1
dump. The rule sbould make clear that if state or compact dumps-hsve 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. ; a l I 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 coninent 2.3, NRC cannot legally designate anything but a facility designed for permanant isolation of LLW to ~ i g\M\ rece'ive 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). 90 O ' ! 9' l 1
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 1 the emergency access waste is entitled to' reciprocal access at any subsequent facility that serves the compact region or state in which the emergency 4 access waste was generated. It further provides that the regional compact or f l state that receives the emergency access waste shall' designate, for i reciprocal access, "an equal volume of low-level radioactive waste having 4 similar characteristic.s to that provided energency access." l While the NRC may not wish to be involved in these arrangements, it ,must ensure thet the right to reciprocal access is _ recognized and its implications ) are considered. A fonnal 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 ]
- o. made. This acknowledgement should be required as part of the contents of a j request for emergency access (Section 62.12) and should include some l M indication of when the reciprocal access would be provided. The acknowledge-
. ment could then be included as part of the Section 62.22 notification g 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 p access was beyond the scope of NRC's mandate to grant requests for p
s emergency access in order to protect the public health and safety. NRC
\
g believed that arranging for reciprocal access in response to grants of
.hk emergency access is the responsibility of the States and Compacts involved.
The NRC still believes an enforcement role regarding reciprocal access r ( c- f
- N(
7 ) j is' inappropriate for the A'gency. 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 i
' rule in response to this coment: '
. I i
A new (n) has been added to 62.12 "A formal acknowle t of-reci ocal acc ( om the State d or the appro ate Comp
#4I h Commis on-p mising eciproc access f a qual; volume of LLW g (( having similar charact r4st es to that requiring emergency access, and indicating an approximate date when it would be available."
J A new sentence (underlined) has been added to 62.22(a)- "...(not - { to exceed 180 days /) nh.ssary to alleviat .he immediate and serfot s threat tom he p blic health a safe or the c 'g I defensh and serIrity. I should al o include form . [f reckN[ access forkn equp[ volume of LLk havinM l b g,af
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charactrNstics to that reMng emergency acchs{ fro [the State and/or appropriate Compact Commission requesting emen cy u .q{ access. . r the Governor of the State...." dA f W (See also responses to 4.2,4.3,4.4,4.5,5.4,17.14) 1 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 j with similar characteristics (i.e., source, physical, and radiological). I This specific determination should be added to the Section 62.25 criteria. I RESPONSE: In response to Coment 4. nd other similar comments, NRC has decided to require a forma pr mi e f reciprocal access as part of each request for emergency acces . er, 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
y 1 3 determination requested by this-comment. Since there' are no ' limitations established either inl the Act, or .the ruleL as .to when reciprocal' access must be provided, and since it would be unlikely that determinations-made by NRC at the time' emergency access 154 granted will..be' applicablei 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). 1 Comment 4.3 BeforeLdesignating a disposal facility, the NRC also should determine if.the l 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 adde.d to .the Section 62.26(c) cr.iteria. I RESPONSE: (See response to Coments 4.1 and 4.2) l L 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 i one that cannot be ignored in the NRC process of granting emergency access 'I 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. i RESPONSE: (See responses to Comments 4.1 and 4.2) l
9 Comment 4.6-Because the NRC has already indicated, on p. 47583, that it wt11' 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 criterion as suggested in the comment as the new provision identified as 62.26(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.
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- - - - .___ ________ _ i
I B5 Comment Letter f 5 -- Terry Lash, State of Illinois Department of Nuclear Safety. I l 1 l 1 l Comment 5.1 l
- 1. IDNS agrees with.the NRC's determination that. establishing criteria land procedures by rule, in advance, is an appropriate approach.- q Establishing procedures in advance.of a request allows the NRC to respondquicklyintheeventofanimminentthreat.' 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.- l l l RESP 0NSE: 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. 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, however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such j 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 l common defense. The rule should expressly encourage states and compacts to )
enter cooperative agreements. RESPONSE: NRC is sympathetic to the motivation behind this comment. However, the Commission does not believe it would be appropriate for NRC H 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 - ._. - _ _ _ _ _ _---__- _ __ - _____ - ___ - -
W 'i i l should be able to resolve problems associated with LLW disposa1' access-through cooperative agreements (or:" voluntary agreements." as' they are-referred to.in the Act) Congress did.not direct' NRC.to promote such j 1 agreements between States or' Compacts any more than the other alterna-- 1 tives to emergency access. Further, including such express f 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 1 proposed rule which includes a discussion'in the preamble on states. respor,sibility under " Legislative History," and provision 62.'I3(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: I believed it was important for the successful. implementation of the Act' that . emergency access not be viewed by the unsited St'ates.as an alternative'to the . pursuit of the development of new LLW disposal capacity." We believe this j statement should be made part of the rule. Development of new LLW' disposal j capacity is a controversial and difficult task. The task is even more difficult when citizens in states such as Illinois, where progress is being , 1 made, hear anu 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 l 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 i 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
f h ;12 requests for emergency access. The Co:ivnission believes that the 1 procedures and criteria in the proposed rule establish sufficiently stringent requirements for granting emergency access to clearly convey ; inat emergency access should be viewed by the Statos solely'asa last_
-resort and not as an alternative'to the mandated development of new LLW disposal. capacity. l 1
l Comment 5.4 IDNS' observes that the proposed rule'does not address the provisions of Section 6(f) of the Amendments Act, whi$h 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) 4 Comment 5.5 l 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 I 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 I 1.2.).
Comment 5.6 , i
13 562.2 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:
" 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 section 61.55 cf 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 vaste 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 United States Navy,-3) owned or generated as a result of any research, development, testing, or production of any atomic waapon, or 4) identified under the Fonnerly 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 respons Sility of the states. The Nuclear Regulatory Commission may not, through regulatior, 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 F'JSRAp 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. RESP 0NSE: The definition that appears in the proposed rule is not incorrect. It is the same definition for LLW which appears in the Act l
;14 J l
l it'self. ' Although the NRC does not agree that the definition of low-level wc.ste should be changed, NRC- does: agree that the qualification on the sedpe'of the LLW eligible for emergency access provided by the commentor's proposed definition is . extremely relevant 'to emergency access decisions ! i 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 :j 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 l i 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.00E LLW, which are not their responsibility pursuant to Section 3 of the Act. NRC has provided this assurance in 'i the final rule by adding the recommended. text to Section "62.1 - Purpose-l and Scope," as well as to the 5ection 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 I federal government (e.g., DOE 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
15 ) I that decision and the express language of the Amendments Act in promulgating this rule. I 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 j access disposal. (Also see responses to Comments 2.1, 2.2, 5.6, and j 14.2.) Comment 5.8 562.2 The' definition of " Temporary Emergency Acce.cs" should be changed.as follows: n "' Temporary Emergency Access' means access that is granted'at NRC's i discretion upon determining.that access is necessary to eliminate an v 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 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 3 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. 1
)
I l i E _ - - _ _ . _ - _ _ _ . - _ - - - - - - - . - _ _ . - _ . - . - - _ _ _ _ - _ _ _ - .J
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."
andredesignatetheproposedsubsection(c),andfollowingsubsections,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. RESPONSE: Anewsubsection(c)hasbeenaddedto62.12whichreads
" certification that the material for which emergency access is requested 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 5.8)
Comment 5.11 662.12 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 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 access is the only way to get that disposal. ;
q 17 Comment 5.12 662.12 Amend the proposed 662.12(k) as.follows and re-designate as
$62.12(1):
1
"(1) Where the request is made wholly.or in part on.the basis of a serious J 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 mt 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, l or production of any atomic weapon, and that access to disposal is necessary l to eliminate the threat to the common defense and security."
l 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 i request for access is based on a claim of immediate and serious threat to the common defense and security. l
- 1 l RESPONSE
- In Section 62.12(k) of the proposed rule, NRC requires that a l reouest for emergency access based wholly, or in significant part, on l 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 J security." This comment recommends' that DOE and D0D also certify that l the wastes for which emergency access is requested are not LLWs for I which the Federal Government has disposal responsibility under Section l 3(a)(1)(A)and(B)oftheAct. NRC has modified "Section 62.1 - Purpose I and Scope" of the final rule and "Section V - Assumptions" of the i
I l w_-___-_--____-__.
j 18 1 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.) p Aid Comment 5.13
]
Modify $62.13(c)(6) as follows: .1
"(6) Any legal impediments to implementation of each alternative 4/
including whether the alternatives will comply with applicable NRC @ ;) requirements, and the requirements of the Compact Commission and the ff4 h) f
+te-where-access was c g dered."
gj It should be made clear from the application for emergency access whether 9 8 k i d,en jialf-eecess-was besed cr. fe4hr44.o tomply with applicable standar . Y ttRC should not grant emergency access when the emergeitcy es %+? about b dM the app 1cani.'5 cr #eilura to comply with regulatory standards. (gkd f
\e RESPONSE: NRG-agfees Wgnis J
as W to._.the-final. g1 g *(%d C bl(A hk. CA.rfd/A ' ' #Y /1 Comment 5.14 0 # W %(d K 4b- ' l Modify 662.13(d) to read: ogg ky)[p,4W (g ) g "The request must include clear and convincing evidence that the #Tc i applicant has exhausted all other options for managing its wastes and
#, W , must include the basis for:
I \ / (1) Rejecting achTlternativIand (2) Concludin ' hat no alternative is available." l f')g6 I 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 h does not include the provision in the statement preceding the rule that. [( $ " applicants for emergency access will have to provide clear _and convincing I evidence that they have exhausted all other options fo Ngtheir 0 a j 'w , ,
~
~< n'cz;nnJ, s ,,
37
19 wastes." This language is appropriate and should be' incorporated into th'e rule. RESPONSE: NRC agrees that this is a worthwhile change. It has been made in the final rule. Comment 5.15. 662.14 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: (See 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 j tequest. 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:
"(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__--__-________-______-_____
i 20 l or generators located in his' or her state, the Commission shall make a determination whether-- l l 4 (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-lavel radioactive waste is based on an immediate and ]
~
serious threat to: f (i) the public. health and safety, or l (ii) the common defense and security; (2) The threat cannot be mitigated by any alternative consistent with I the public. health and safety, including those identified in 562.13, ] (3) Granting emergency access as ret,uested 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 l l 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..."
20 ; or generators located in his or her state, the Commission shall make' a determination whether-- l
- l (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 i 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 (2) The threat cannot be mitigated by any alternative consistent with ! a the public health and safety, including those identified in 962.13, ! I (3) Granting emergency access as requested would eliminate the threat, .i and (4) The material for which emergency access is requested is low-level l radioactive waste as defined in this Part and a State responsibility I 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 j 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 j rejected the others because they departed from the process Congress set j out in the Act. i I (1) Section 62.21(a) of the proposed rule specifies, "the Comission j shall make a determination that..." l l I i i
'1 J
21-
- The comment recommends ", the Commission shall make a determination whether..."
- Neither of these precisely duplicates..the language of the 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 ",
the Commission shall determine whether..." Other changes proposed in the Comment nelude
~
-(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-
'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 Limmediate 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 Addanew$62.22(d)asfollows:
"(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 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.) 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 j faith should not be sufficient. The effort must be objectively reasonable i and diligent. , RESPONSE: NRC agrees t the phrase " goo aith effort" does not jad convey the same meaning as "di igent ort." However, NRC decided not . to use " diligent effort" becaus diligenteffort"wasusedin6(e)of b NM the Act in specific regard o req ests for extensions of emergency , access only. NRC did t want to co omise the legislated use and 4# meaning of the phr e by using it in discre text in the proposed gjp rule. NRC agr s that." good faith effort" could be ved, but the Commissio oes not believe " reasonable under the circumstance " captures , the se se 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 M W'- access." NRC believes this is an improvement over the original language and is co sistent with the precise language in the Act regarding the eq[ 4/[ff j requestor' responsibilities towards identifying alternatives.
\ .
I fldb g( QUk l 0 b' '
&' h
1 l l 23 i i l I Comment 5.21 l 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 l Comission shall request the approval of the Compact Comission 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 l 15 days from receipt of a request for approval from the Comission. l Section 6(g) of the Amendments Act provides that: ! I "any grant of access under this Section shall be submitted to the i 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 non-federal, non-regional facilities. 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 Comission A/O [ in which the designated emergency access disposal facility would be g located. NRC has-4nterpreted the Approval-specif-ied-Under_6_(g) to be
'somewhat7ro-fcma. Sa_the-Commission did-not-believe-4t-was-necas'sary ,
N N _t_o_ Jake the Compact Comission's apjLrgyal_part_of the-formabemergeDCy j' ho,N/ ucess process, s-position was explained under the discussion of / Legislative History in the preamble to the proposed rule. While (ND
s 24 l disapproval may not be an option under the Act, clearly the Act intended '{ the receiving Compact Commission to be fully informed regarding the I 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 I proposed rule provides that NRC will' notify the Compact Commission of. f the State in which the designated disposal facility is located that'. emergency access is required. It further provides that "the notifications l must set forth the reasons that emergency access was granted and specifical.ly describe the low-level radioactive waste as to source, physical and J radiological characteristics, and the minimum volume and duration (not j to exceed 180 days) necessary to alleviate the immediate and serious l l' . 4 j threat to the public health and safety or the common. defense and security." l ! I4-appears-thatee-comentor does not-tre11Nrthts is sufficienti 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. l The new 62.22(b) reads: "The Secretary of the Commission will submit the ; l notification described under 62.22(a), and the written determination described in 62.21(c) to the Compact Comission for the region in which I 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," l l
25 l l Comment 5.22 S62.27 Add a new S62.27, as follows: l "S62.27 Compliance with conditions of emergency access; termination of j 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 J 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 I to public health and safety or the common defense and security. (c) The Commission may terminate a grant of emergency access if an l 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 l l The proposed rule does not address termination of emergency access. Further- l 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 1 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 ruJewhichincorporatesthesuggestedconditionsforterminationas h recommended in this comment, along with the terms and conditions which a I t e recipient is expected to meet. The new 62.27 reads:
M . 62.27,TermsandConditionsforEmergencyAccess[) General:Any p 'LLW granted emergency access pursuant to this rule is
\ subject to the general requirements for LLW disposal under
(, \ 6 i
\j \Q u
y 26 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 l and disposed of by the generator nd the designated-receiving site in a manner that'is consistent'with'other LLW )iD
-disposed of under the terms of the Act. The disposal.of 1
emergency access waste should not preclude the j s implementation of 'any sp'e cific conditions, regulations, j requirements, fees, surcharges, or taxes prescribed by the . j 1 disposalfacilitywhichma3peineffectatfthetimeof_the j Commission's determination'to grant emergency access. l Additionally, generators with wastes approved for emergency access sho'uld not have to meet unusual requirements or pay. j unusual fees.(when specified in the Act) simply because j a their waste is emergency access waste. 1 (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. J (2) The Commission shall terminate a grant of emergency l l access when emergency access is no longer necessary to e 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 f in the application for emergency access or if the applicant has' failed to comply with this part or conditions set by the L Commission pursuant to this Part."
1 27 l 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 recessary? 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 j deleted. ! l l RESPONSE: Provision 62.6 is not intended to allow NRC to arbitrarily I 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 j 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 l remains unchanged in the final rule. 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?
28 RESPONSE: There is no requirement that a given generator or Goverr.or p specifically maintain a local public document room for documents !
/ pf ating to emergency access requests. Usually there is a " local public y,, f/ document
(
\ room," however distant it may be, that maintains documents of public l j interest for every NRC or Agreement State licensed facility. Provision l
/ 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 put'lic.
Comment 5.25 662.23 Determination of Granting Temporary Emergency Access 1 This section provides for the granting of temporary emergency access to i
...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 i and regional disposal facilities. Does the NRC propose to limit temporary l 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?
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. t u________._____..__
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. 1 RESPONSE: See responses to Commen.ts 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. I f l
L 30 , I' B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident Comment 7.1' I The rule has a basic flaw: The Federal. Government and the NRC is regulating .q 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: J 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 providing its own lbw-Tevel radioactive waste (LLW)' f :;:::' '^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 (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 and safety could be- ! seriously jeopardized. NRC was j en the_ authority _.t /W& rd j g
? r to assure ~that the public health and safety ~would be (40 protected. NRC does not intend to use grants of emergency access to interfere with the States' operation of their LLW facilities except as CCb5 is necessary pursuant to its responsibilities under the Act to protect public health and safety. (See also esponsesto Comment 7.5.
9.3) 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 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 l payment of appropriate fees, taxes, surcharges, etc.
l Comment 7.3
-States.are also very worried about having to take D00 and 00E wastes. 1 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. l 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 y rule without due cause. As is explained in the n + ag to the proposed rule, NRC is required by law (Section 6 of the Act' to make emergency access determinations.
o. 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- rants of emergency access.'Theproposed10CFRPart62servestd4LE ....., requirements / inthelawandNRChastriedto!assurethattheruleassumes}no-
,j.:
, responsibilities'for the'NRC which were not mandated.,-(See also response.to' Comment 7.1NQ,3)-
I
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 right's 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. 1 Comment 8.2 Further, only commercial waste and not waste from the. Departments of Energy l 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 i l j Comment 8.3 j 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
e
.J i 34: ;
u any-disposal of' emergency access; waste. (See response to Comments 1.2,. 5.5) Comment 8.5' Some states ma9 choose to store-nuclear waste rather than-" dispose" of it,
'since the technology to dispo'se of nuclear wastes 'is still' experimental. The i
rules should state that the NRC cannot-force out-of-region waste to go'to'
'i '
those sites.
)
RESPONSE: NRC cannot force a state to dispose of emergency access LLW j
' at -a facility designed ,for ' storage. _ (See the. response .to Comments 2.3,
~3.3, and 10,5) .
1
)
I 1 n
35 i 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 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 Jy NR believes this statement expresses-the~ittt ent ofj ongress 4f'
RESPONSE
m e-s regarding d' .poslil fees-and'has applied this interpretation in develop-ing10CFA'Part62. To-clarify..the-financialrespo ibilities of the (fig.'Id4 person granted _ emergency _ access, NRC has-added-a-new "62.._27 . Terms and p M 6 G64 ' Conditions _oLEmergencyAccess"_to-the-final rule -(See-also- Responses l
.(gAC[ to Qomments_1 2, 5,-5,-and 8.4) ___
l l Comment 9.2 g The references in Section 62.25(d)(1) and (1) to activities generating wastes ()D7 ' being "necessary for the protection of the common defense and security" are ryptic. What are examples of such activities by the Department of Energy pndDepartmentofDefenseandwhatarethetypesofwastewhichcouldbe involved? l RESPONSE: (use in combo with exclusion in Act & scenarios developed previously) Comment 9.3 1 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. 1 L__ ___
, .1 36- (4 7eod,pg h$ ~'
RESPONSE: NRC'does have the authorit to otrerride-the-sitedMtes/ f9= par +c--te-pant emergency access because-Congre50 decided thaE ] es.tablishinga mechanism for such n overrideToilld-be-in-the-publici.s .
%te m t. As indicated in the dis ssions.in the preamble for the i proposedrule,Congressexpected/hatresponsibleactionfromthe t
generators.and the States / Comp cts should result in the resolution of 3 most access problems outside th emergency' access process., cc th:t I. 97
\
J1opefuyRCyould not have to et invqlyed_.inaomething-that-is-reatly_ ' - the RtatesLrespons.ibility_.(See' also responses to Comments 7.1 and
]
7.5)
'utgpd tr 6/f e ou s * / +t H\ . .,
l 7,t , 1 l l i 1 i 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 $vaste dumps.to accept I
out-of-state and federal nuclear waste'in " emergency" situations. l RESPONSE: See the 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 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 Con;ervation 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. l RESPONSE: As indicated in the preamble to the proposed rule, the i amendment to the Low-Level Radioactive Waste Policy Act direct NRC to 1 1
1 I 38-designate LLW disposal facilities to receive. emergency access waste. . (See responses to 7.1, 7.5, and 9.3) . I i 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 b'e f 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? l 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. i l RESPONSE: See responses to Comments 2.1, 2.2, and 5.6. 1 Comment 10.5 Other state restrictions on 100 year hazardous life, or only Class A, B.or C .l 1 wastes, must be strictly adhered to by NRC. RESPONSE: See responses to Comments 2.1, 2.2, and 5.6. Comment 10.6 1 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 m
139 I 1 production has caused the emergency" in the first place. ' States should no't 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, th.ough 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'thave 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 wastes that. are not the State's responsibility. Comment 10.8 j In closing, we call on the~ NRC to withdraw the proposed rule in its entirety ! { and to establish a comprehensive storage and reduction of production program 1 which will ensure that rn 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 j determinations would remain even if NRC were to withdraw the rule. As far as establishing a comprehensive storage.and reduction of production i program is concerned, such programs and related decisions are not among NRC's responsibilities. w--._______.._._ _
40 B.11 Comment Letter #11 -- David Woodbury, President, American College of Nuclear Physicians 1 Comment 11.1 i 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 1 regional low-level waste disposal facilities. The Society represents over 11,000 physicians, physicists, radiochemist, radiopharmacists and techno'i-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 representing over l 1,200 physicians whose primary activity is the practice of Nuclear Medicine. I 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 I 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 rflowing 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 whule. 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 l
41 l tracers. It is clear, then, that radioactive materials permeate every aspect of medical practice. I i RESPONSE: No response necessary. 1 i i 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 i 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 1 storage of this waste, but if radiopharmaceutical manufacture was to cease l 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 l l curtailed. l RESPONSE: In the legislative history of the Act, Congress acknowledged ! the special LLW storage / disposal problems of the manufacturers of 1 l
1 14 2 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 simuld be granted, NRC intends to consider both the threat to the public het lth 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- i native-to granting emergency access. [/F idC n %% Comment 11.3 The College and Society raise these fine points on possession limits and a 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 j access provisions are necessary as a contingency in the event that access is i denied or is unavailable, so that important health care services and research can continue uninterrupted. i RESPONSE: No response necessary. I Comment 11.5 In conclusion, the College and Society support the emergency access provisions of the LLRWPAA and the NRC's efforts to establish procedures and j 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 di.sposal for l l
43 the provision of vital medical care services in this ccuntry. Please feel free to consult with us if you require further information or assistance. RESPONSE: Noted. 1 4 i l l I
44, > l
)
B.12 Comment Letter. #12 - ' Kathy Lyons, Concerned Citizen, New Hampshire l i j 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 n'ecessary. ., 1 Comment 12.2 Please, in doing so consider this: Do'not give'us federal waste (D0D or' DOE),
. .1 RESPONSE See response to Comment 2.1.
Comment 12.3 I
...and do not give us waste outside of our' Class, that's not acting responsibly.
I 1 RESPONSE: See response to Comment 2.2. : o 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 practices. l l RESPONSE: NRC cannot force a t, tate LLW disposal facility to accept LLW that is incompatible with its license agreement. (See responses to l comments 7.1,7.2,7.5,9.3)
l 45 l B.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology Alert ] Comment 13.1 Although the Low-Leve1' Radioactive Waste Policy Amendments Act of 1985 .{ doesn't require NRC to develop a rule, we agree your'doing so is an excellent idea. I But we feel the proposed rule could stand a bit of tightening. RESPONSE: None needed. q Comment'13.2 _j Section 62.6 - We question the need and advisability of. making any Specific 'I 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 l 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 f er**3r short. Howeyen the alternatlyetwera_a--shorter-comment parlod-or-nosomment period at-allrand:bothT5f~those wedEUnacceptable~ to the_Commiss4on
- x he'Ac t does not require NRC to provide a comment 3 p,eriod on requests for emergency accessf<penhably4ecewhe Act
__/ MO
f U$kOW^ tWWh
/ % ,{}$ k h if f
./ sy provides NRC only 45 days to/ review a request'and det' ermine if_ emergency D accessshouldbegranted./Nevertheless,theCommissionbelievesthat 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 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 l presence of transuranic in the waste would affect the Commission's decision. I Comment 13.5 Section 62.23 - Before granting temporary emergency access, why not allow a l 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 untii a crisis situation exists, then come running to you for special emergency consideration. RESPONSE: The sequence of events for gtanting 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 L could be mitigated by any alternative consistent with the public health l 1 l
- c. - -
47-
~i i
and safety." The Commission has 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- i does not have to grant requests for. temporary emergency access, particularly if a request is made because a generator failed to plan for. 3 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 4 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 s 62.21(d). RESPONSE: The typographical error noted in this comment has been corrected. l l 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 escaping. l Response: Noted. l
--_-------____--__a__---
48-8.14 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 th'ey choose to exclude. This loophole in the 1985 Low-Level l 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. I l
h Since state and compact dumps are being developed for commercial waste (and j some Federal waste as defined in the 1985 Low-Level Radioactive Waste Policy i Act), this is the only type of waste that should be eligible for Emergency j Access. The rule should clearly prohibit Federal waste (ex: waste from l Departments of Energy or Defense). There are two places in the regulation I which indicate that such wastes could be given emergency access. They are in l Section 62.2, the definition of " person" who can apply for emergency access l 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." l l 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
" State..." Such generators could include generators that are not NRC or NRC {
Agreement State licensed. We would like to see provision made to clearly. I prohibit DOE and D00 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 i non-fectral 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 routine disposal at regional or state disposal facilities according to i 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 i I 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 i the NRC that the intention must be specifically addressed in the final j 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. l
50 In direct response to this specific comment, the definition for " Person"- -
-O has been revised in the final rule'to 'eadr " Person".means-any -
I individual, corporation, partnership, firm,' association,' trust, State, public or private institution, group or agency who-is an NRC or.NRC jf _ Agreement-State-licensed _ generator-of-a-low-leveluradioactiv_ie waste pji/ which was designated the. States'.. responsibility for disposal by the Act;
- any GoveNor (or for any " State" without a Governor, th'e' e chief-executty -
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 I 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 the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow. l RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
'51 Comment'14.4' (2) Furthermore, 00D, 00E'and.other. Federal; waste'.is not currently-classified as Class _ A, B,LC 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. 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 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 concentrated 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. RESPONSE: None necessary. L=_-_-______--_-
52
.. e 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 th'e " 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: HRC h aware that-the-proposed-rules:rcates-the70tentiaL_for aJanflict--of-interest-in-those-situationswhere 000ar _DDE_is_ required b g1 -to4ectify-that-a partietriar generator-requires-emergency-acces-s-in
\[0letlb /h order in-mitigate-a-serious-and-immediatedhreat-~t~o~ths~idcMorr-defense
- and-security. _Jioweg)1t preamble also indicates that while NRC will require such certification from DOE or D0D in order to even consider a-MuCN 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 1
- 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 1 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 i 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, 1 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 I 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, l i NRC will respect those criteria and not grant access to waste that does not 1 meet those criteria. s 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 I l 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. < l Comment 14.10 I i 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. l The definition of " Low-Level Radioactive Waste' in Section 62.2 should be l 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).) f RESPONSE: See responses to Comments 2.2, 5.6 and 14.2.
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 waste [wcintedM. 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" l - requires that."any low-level radioactive' waste 'd elivered for disposal l 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 p* amble, 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 i treatment or disposal (as would be the case for incineration). NRC anticipates that decisions on adequate volume reduction will have to be , l 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 u-__._.____.______.m__ . _ . _ _ _ _ - . _ _ _ _ _ . _ . _ _
-55
' generator as an alternati.ve 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.
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 was'te and to enforce regulations and criteria ~ that:they determine ~are'necessary for' q responsible ~ isolation of the waste from the environment and.to hold the . i generators liable for long-term care costs. ' 1
] \
RESPONSE: See the responses to Comments 14.7, 5.6, 8.4, and 9.1. 4 1 i Comment 14.13
- 5. We encourage NRC not to weaken any of the requirements for Energency Access applicants.
)
1 RESPONSE: Noted. .] 1 l l ll l I hm ___________ _ _ _ _ _ __
-i
.56- 'l B.15 + A Letter #15 -- Hannah Katz, Concerned Citizen, N.Y.
Comment 15.1 j I hear that your Commission roay consider to send greater-than-Class-C waste 1 i to any state or compact. dump. Though it is said, "in emergency.only " nobcdy- - doubts that such Emergencies will happen frequently as long as you produce . j weapon grade plutonium. I i 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 ; 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 aton:ic weapon is deemed not to be eligible for
]
disposal at State LLW disposal facilities. q Comment 15.2 ) I urge you to reconsider such interference in the rights of states and of j citizenrv. l 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 hoplemented when a generator or a 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.
57 B.16 Comment Letter #16 -- Donald Hughes, Sr. > mager, 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 ! 1 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 proposad 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 i 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 raciioactive 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 l of inaccuracies and ill-defined statements will dramatically effect how low-level radioactive waste disposal facilities can function. 1 RESPONSE: None necessary. j l l 2 l
-. . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . _ _ - -
58' B. 17 Comment Letter #17 -- William Dornsife, Bureau'of Radiation I Protection, Pennsylvania. _ d Comment 17.1 G . This proposed rulemaking has several major flaws that if not corrected could \'O j potentially act to undermine the substantial progress that has been made to I .f ' date'on implementing the Low-Level Waste Policy Amendments Act of 1988.'
, 6 - ^H / { 1 None Necessary.
RESPONSE
)
1 Comment 17.2 j First and foremost, this proposed rule appears to violate the entire premise. f
-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 1 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 i terms of the Act. 1 RESPONSE: The Commission drafted the proposed rule fully intending that l the States and Compacts whose generators have been uenied access to LLW l disposal would share in the responsibility for identifying or providing alternatives to emergency access. In fact, the NRC's understanding wae I that several of the alternatives listed in Section 63.13., specifically
"(2) storage of low-level radioactive waste in a licensed storage
/g h ' facility," and "(3) obtaining access to a disposal facility by voluntary a
0[ l C;8 / i agreement," were actually State or Compact alternatives. In reviewing i . [0 ll 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
\
h/ I the problems caused by denial of access were not adequately conveyed. () .p 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) gy m n p 4 tw%OV' , g e,p a ifo y, y#($b[ NM of"id ' p# f;ggafg (y,ghC 7
i 59 H l In addition, a discussion of the States'/ Compacts responsibility in -I this area has been added to the preamble. 1 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
~
l resources, should not be first and.only party responsible'for disposal of l 1 this waste. I RESPONSE: The discrete State and Federal responsibilities for LLW disposaihadeenaddressedinthefinalrule. See responses to q Comments 2.1, 2.2, 5.6, and 14.2. J l Comment 17.4 l The most likely scenario that may require emergency access appears to be that q 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 l responsibility for the application, liability, volume reduction, and cost j requirements.
RESPONSE
(to Q rs b h M) 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 emergency access should occur. The provisions of this rule should only be
- 60. ;
1 1 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. 1
.i I
. Comment 17.6- .
In addition, we have reviewed the specific issues for which input has been requested and have the following comments: l i
- 1) What scenarios are' envisioned where emergency access would be required? j As written,'the rule could require acceptance for disposal of federal waste under " temporary emergency access" provisions.
i If a State or Compact disposal' facility were unexpectedly closed and no reciprocal agreements-had been made prior to the closing.- l 1 A generator is denied access to a State or Compact disposal facility for I 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?
L _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _
1 61 l l The difference between " emergency access" and " temporary emergency access" provisions for this determination are not consistent with i Section 6(d) of the Act. -The Act clearly states that'an emergency access determination'must be made before temporary emergency access can l be considered. "Upon determining that emergency access is
]
necessary...the commission." This is not consistent with the 1 1 definitions and suggested implementation of the two terms in the ; proposed rule, j I 1 RESPONSF- See the response to Comment 13.5 for clarification on the distinction made in the proposed rule between temporary emergency access j and emergency access. J 1 l Comment 17.8 q ) 3) What are the potential problems with the determination of cerious and immediate threat to the common defense and security? i 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) i Comment 17.9 l The Host State or Compact in which the requesting generator resides should be required to exhaust all options and accept responsibility for dealing with I i the problem before being allowed to make a request. l l RESPONSE: See the response to Comment 17.2. Comment 17.10 1 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'. l j i
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1 , 1 1 l l l l l t_ _ _ _ _ _ _ _ ___
R 63 i 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 l themselves or through reciprocal agreement, then the use of Federal disposal facilities should be the first priority before other non-Federal disposal facilities. 1 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 'l any Federal or defense related generators attempt to arrange for I 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 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 d osal. p/ p RESPONSE: Under yII(c) of the proposed rule, NRC explained that in order to distributrthe} waste as equitably as possible the 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____--------------------- - - - - -
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, i ps_ believed-thatastabbishing7uchT11mitation-would-be-the most eq u i t ab l e_Way_of_distni bu ting-eme rgency-ac ce s s - wa s te . Comment 17.14 lhere are no provisions for existing State or Compact laws with respect-to-reciprocal agreements or time requirements for emergency disposal conditions ' l as covered in Section 6(f) of the Act. ' I I RESPONSE: (See responses to Comments 4.1 and 4.2) Comment 17.15 Is a determination appealable? RESPONSE: (To be provided by Chip Cameron) i Comment 17.16
- 5) What should the NRC do if no site is found to be suitable for waste requiring emergency access.
L- __ _ _.
1 65 i l 4 The NRC should develop contingency plans BEFORE an emergency occurs. Such plans could include the development of an NRC facility especially i for emergency conditions. The NRC could also develop equitable a 1 reciprocal agreements now for the determination of emergency disposal sites in the future. Such agreements should include Federal disposal facilities. J RESPONSE: Noted. I 1 i I i l l i l ) 1
66' i j B.18 Comment Letter #18'-- Clark Bullard, Chairman, Central Midwest Compact Commission ! Comment 18.1 I The Central Midwest Compact Commission fully endorses the comments submitted by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988, d i 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 .5 under the LLRWPAA'of 1985. Moreover, the integrity of the entire Compact l ( 1 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. 1 RESPONSE: See the response to Comment 2.2. i Comment 18.3
. We urge you to adopt the IDNS comments intact so our ability to meet the j remaining milestones is not impaired. ,.
]
l RESPONSE: Noted.
)
L l L __ _ _ . ___ _ _ . ._ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ . _ _ _ _ _ _ _____ _ _____ _ __ _ _a
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 amcunt of radioactive vaste 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 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. 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 provided for NRC to make its decision. As explained in the response to / Comment 13.3, the Commission believes it is important to p mvide the / public some opportunity to comment on requests for emergency access. R _the situdian_is4nuly on emergency and ntr alternativeLaremai.labA Oj , .( Jublic_ comment wiR not-likely alter NRC's response-to anyJarticular '
\9 requestr-{See-response-to-Comment 1L3_for elaboration.) _ _ _
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 l l l l l 1
t
'69 B.20 Comment Letter #20 -- Jessie DeerInWater, Chairperson,-_ Native Americans
~
for a Clean Environment Comment 20.1-R NACE joins with Mr. Marvin Lewis of. Philadelphia, PA in his opposition to ; Proposed Rule: Criteria and Procedures for Emergency Access to Non-Federal i and Regional; Low-Level Rad Waste'. Sites. 1 i
-RESPONSE: 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 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.D0D. It-is our belief that federal waste is often greater-than-Class-C waste. RESP 0'vSE: 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. i RESPONSE: None needed.
)
.. 1
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 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 nticipated that extensions of temporary emergency accesswouldbei , 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 , p6 Congress, NRC plans to grant emergency access for up to 45 days only, g with no extensions. If a serious and immediate threat were to persist ) after 45 days because of a lack of access, to disposal, but the l
, a gh , lternative analysis was not complete, the Commission would have to use {
944k"% @Nu W l} l f \
r 71 its dificretion a M e. (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."
l l Comment 21.4 j
- 1. What scenarios are envisioned where emergency access would be required?
l Response: The regional or non-federal facility utilized by generators is closed by regulating authorities, the facility operator ; j or extraordinary events. Access to a facility has been denied for non-technical reasons. I I Extraordinary waste streams that do not conform to those acceptable at a regional or non-federal facility. I i
')
- 2. What are the potential problems with NRC's approach to determining an 1 immediate and serious threat to the public health and safety?
I 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 l' and security?
I
72 Response: No comments.at this time.:
- 4. What are the' potential difficulties with the. proposed approach for designating the receiving site?
' Response: Nocommentatibis' time.
- 5. .What should NRC'do if n'o site is found to be suitable for waste' requiring emerg?ncy access?'
Response: - Consider disposal'at'a federally-operated facility. l - Allow indefinite "in situ" or " intermediate. location"
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l- storage.- RESPONSE: All have been noted. l l-l l l I m _ --- --
Lawa;6 saps?
~ D a',.3 4 u e g A uu.; W J %
( Key Assumptions 1. To EDO by end of June sb % xis y W \, u
- 2. Published in FR by end of August
- 3. Drafts will be reviewed as developed Jet'SL and '
#}
Program Offices
- 4. Concurrence package c)mpleted and into concurrence by 5/11 1
Proposed Sciedule' for 10 CFR Part 62 - Final: Rule
- 1. Conduct Comment Analysis / Revise rule per Comments:
- Draft Comment Analysis / Revised Rule to Dick: 4/11 )
- SL Comments due by 4/14 Revisions completed by 4/18 )
Distribute to NMSS/NRR/0GC/etc for offices review and ' comment 4/18h Revisions made 5/2-6 for incorporation into concurrence package to l Dick 5/11 1
- 2. Draft Preamble for Final Rule:
Draft 4/11-15
- Due to SL for review 4/15
- SL Comments due 4/20 Revisions completed 4/22 Request Office Comments from WM/NMSS, NRR, OGC, etc 4/22 gmmentsdueback5/3 __ ,
Revisions completed 5/9 for incorporation into concurrence package due to Dick 5/11
- 3. Draft Commission Paper: __
Draft Commission Paper 4/18-22 V l -
- j. i
-1
- To SL for review 4/22
- SL Comments due 4/27 Bevisions. completed /sent out to Program Office for comments 4/29 Program Office. comments due-5/4 iievisionscompleted5/9forincorporation'intoconcurrencepackage due to Dick 5/11'
- 4. Revise Reg Analysis.- 4/22 To SL 4/27-SL comments due 4/29
. Revisions due 5/4 Concurrence schedule
- 1. Package to SL 5/11
- 2. Package to BC 5/20
- 3. Package to Mr. A 5/31
- 4. Package to Mr. Beckjord 6/15
- 5. Package to E00 6/30 l
l 1 i ?? 2 h ~
D 96 o Q . c w g % t g; g wc , y , M' Part 62 Comment Analysis , j B. Responses to Individual Coments: M.thO; ) 3 B.1. . Comment Letter #1 -- W. Clough Toppas, Dept. of Human Services, Maine I (
' Comment-1.1
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- 1. -The premise for granting emergency access.is sound and takes into account a variety of factors to include some initial. oversight actionsi 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 i stating "...the designation of a disposal .acility pursuant to 662.21 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-f mination to grant emergency access..."
]
RESPONSE: The Commission believes that Congress intended emergency- d 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 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 l the proposed rule which states that a LLW disposal site will be excluded from considernion to receive emergency access waste if the waste does not meet the criteria established by the license or licensee agreement j for the facility [62.26(b)(1)]. The license or licensee agreements l incorporate the regulatius and requirements that affect each particular i facility. Taken with the other inforraation in 62.26 which the NRC will i
l
.2 )
i consider before designating a site, the Commiss'on'i 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, . I 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-
~
a not agree .that such .information can or should be used by! NRC. in making ] its site designation decision.. The Commission recognizes their- .i administrative importance in the actual implementation of emergency-access decisions once they are made by the Commission and has responded j to that part of.his- comment by adding a new "Section 62.27..- Terms and. I:
. Conditions of Emergency Access." The new Section sets out the j 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.)
?
0 l 1 J f{ l 1
i 3 . i I B.2- Comment Letter #2 -- Sally'Dicmas, " Concerned About' Radiation in the Environment," (Citizens Group) - ) l Comment 2.1- !
- 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' l 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 j are assigned the responsibility for-disposing of commercially generated LLW, and'undi 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.wn pons." 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 emergenc" l access, NRC has added appropriate text to Section 62.1 " Purpose and I Scope," and to the " Assumptions" aiscussion in the preamble. For further i elaboration on this subject, see the response to Comment 5.6. 1 i
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 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.
1
)
4 Thus, greater-than-Class-C wastes are not considered by NRC to be eligible j 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, ana' under the " Assumptions portion of the Preamble. (See also discussion in the response to Cennent 5.6.) ) l Comment 2.3 j
- 3. If States choose to " store" rather 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. q access decisions, and provides only that "the Nuclear Regulatory Commission I may grant emergency access to any regional dispo' 1 facility or non-Federal disposal facility..." (emphasis added). Thus, by law, emergency access j 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 aut,matica11y be precluded from consideration by NRC as sites to receive eme g:.r/ v s wastes. l (See also the responses to Comments 3.3, 8.4, and :.>.5 T l l
'S B.3 Comment Letter #3_ -- Shirley '& Lloyd Gil'bert . Citizens; Fresno, California Comment 3.1
- 1. Since state and compact dumps are being.' developed for commercial. waste, L
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. 1 g d 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. l l RESPONSE: See responses to Comments 2.2 and 5.6. I 1 j Comment 3.3 j
- 3. If states choose to store, rather than pretend to ' dispose' of waste, l NRC should never force waste to go to those sites. ;
i RESPONSE: As discussed under comment 2.3, NRC cannot legally designate
-l 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 i B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate q Low Level Radioactive Waste Commission I l, i 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 princip'al provisions of Section 6 of. the Act are j addressed in the regulation." However, the proposed rule omits any reference to,'or discussion of, Section 6(f) off the Act, which addresses reciprocal access. This.Section provides that the regional-compact'or state receiving the emergency access waste is entitled to reciproca: access at any subsequent ~ ] facility that serves the compact region or state in which' the emergency l 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 j waste was generated before any determination for granting emergency access is l 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 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
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 1 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 deten,11ne 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 l the emergency access waste was generated to accept reciprocal access waste l 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 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 l
... 8 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 made by NRC at the time emergency access is granted will befapplicable
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Lat 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. l' 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 accessLor i 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: (See responses to Comments 4.1 and 4.2) 1 i
I l 9 i Comment 4.6 Because the NRC has already indicated, on p. 47583, that it will attempt to 4 distribute emergency access waste as equitably as possible, a criterion related to past acceptance of such waste should be included in Section l 62.26(c). The criterion would require the Commission to consider, "The volume and characteristics of emergency access waste previously accepted." i RESPONSE: In the proposed rule, NRC intended that past patterns of distributing emergency access wastes should be considered in the process j of designating a site. This is evidenced by language in the "Designa- f tion of Site" discussion in the preambie which states that "NRC will I 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 I intended site designation process. In the final rule NRC has added the l criterion as suggested in the comment as the new provision identified as 62.26(c)( 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.
10 1 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 j procedures by rule, in advance,'is an appropriate approach. l Establishing procedures in advance of a request allows the NRC to j respond quickly in the event of an imminent threat. Establishing l I
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. j RESPONSE: No response is necessary given that the comment essentially I reiterates the rationale presented by NRC in the preamble for developing a rule for emergency access. ]
)
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, 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 Congrest 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 comment. 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. While Congress clearly hoped that States / Compacts 1
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 a'terna-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 l 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 l IDNS strongly agrees with the statement preceding the rule that " Congress believed it was important for the successful implementation of the Act that i l emergency access not be viewed by the unsited States as an alternative to the j 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 1 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' f citizens want assurances that the Illinois disposal facility will accept only ! low-level radioactive waste generated in the CMC region. It is imperative i that emergency access not be perceived the states as an alternative to making diligent effort to fulfill their responsibility. 1 RESPONSE: While NRC is sympathetic to the motivation behind this j comment, the Commission does not believe that the subject statement ) would be appropriate in the codified text of the rule. Part 62 contains . i only the criteria and proceduret to be used by the Commission in considering i I l
.I 12
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requests for amergency-acce a. '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~- 1 l resort and not as an alternative to the mandated development of.new'LLW
- disposal capacity.
1 I Comment 5.4 ' 1
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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"1 j
... reciprocal access for an equal volume of low-level radioactive waste q
'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 P.ccept wastes grnated emergency' access should.be con- ! ditioned upon the applicant's payment of disposal fees and surcharges as applicable, j 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 I access waste under the provisions'of the Act. A new Section 62.27 -
"Te'rms and Conditions of Emergency Access" has been added to the final rule that addresses such obligations. (Also see the response for Comment
! 1.2.). l Comment 5.6 ________m_________ _ __ _ ___ _
13 4 $62.2 The definition of Low-Level Radioactive Waste is incorrec_t. 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:
" 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 i section 61.55 of Title 10, Code of Federal Regulations, as in effect on j January 26, 1983, and B) radioactive waste described in A) that is j 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 ] United States Navy, 3) owned or generated as a result of any research, I development, testing, or production of any atomic weapon, or 4) identified under the Formerly Utilized Sites Remedial Action Program. i 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 l 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 1 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 i authority under the Atomic Energy Act to include these materials in any j definition of low-level radioactive waste. ; RESPONSE: The definition that appears in the proposed rule is not I incorrect. It is the same definition for LLW which appears in the Act i
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 1 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 i disposal. It is important to the States that they be assured that they I l have the responsibility for disposing of only the subclass of LLW described l 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 I 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 l Freamble. (See also Comment 14.10.) l 1 i 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., l above Class C) and radioactive waste generated by certain activities of the federal government (e.g., DOE 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
15 l l l that decision and the express language of the Amendments Act in promulgating j 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 I access disposal. (Also see responses to Comments 2.1, 2.2, 5.6, and 14.2.)
)
l Comment 5.8 j l 662.2 The definition of " Temporary Emergency Access" should be changed as l l > follows: j
"' Temporary Emergency Access' means access that is granted at NRC'c discretion upon determining that access is necessary to eliminate an j immediate and serious threat to the public health and safety, or the l common defense and security. Such access expires 45 days after l granting." l i
1 The NRC's authority to grant emergency access, whether temporary or not, is l limited to those situations where such access is "necessary to eliminate an immediate threat" (42 USC 7021, 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 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.
'16 i
Comment 5.9 662.12 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. 1 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 subsection (c) and the following subsections were redesignated as appropriate.
Comment 5.10 i
$62.12(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 l
made to the final rule. (See also Comment 5.8) L Comment 5.11 662.12 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 requestor is able to demonstrate to NPC 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 access is the only way to get that disposal. l l
17 Comment 5.12 l62.12 Amend the proposed 962.12(k) as follows and re-designate as
$62.12(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 l 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 vossels 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 j to eliminate the threat to the common defense and security." i 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 j federal regulatory agency. In addition to the generator's certification that l 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
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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 ] reauest 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 cnd D00 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)oftheAct. NRC has modified "Section 62.1 - Purpose and Scope" of the final rule and "Section V - Assumptions" of the
l l 18 1 l i preamble to clarify that only LLW which is the disposal responsibility I of the States is eligible for emergency access consideration. With these two changes in the final rule,.NRC believes the objective of the j change recommended in this comment has been accommodated. (See also- { responses to comments 2.1, 2.2, and 5.6.) l
)
Comment 5.13 Modify 962.13(c)(6) as follows: ) i
"(6) Any legal impediments to implementation of each alternative j including whether the alternatives will comply with applicable NRC i requirements, and the requirements of the Compact 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. ; I RESPONSE: NRC agrees with this change. It has been made to the final. l Comment 5.14 4 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 (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 j does not include the provision in the statement preceding the rule that, l " applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their
19 i wastes." This language is appropriate and should be incorporated into the I rule. RESPONSE: NRC agrees that this is a worthwhile change. It has been i made in the final rule. , 1 Comment 5.15 l 1 662.14 Add a new 662.14(c) as follows: J
"(c) A description of how granting emergency access as requested'would I l
eliminate an immediate and serious threat to the public health and j safety or the common defense and security." j RESPONSE: (See response to Comment 5.11.) l 1 Comment 5.16 662.18 Replace "may" with "shall" in this section. ! l l 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 j decision. IDNS recommends that "may" be changed to "shall." If the Commis- l sion cannot make an informed 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 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
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 inmediate and serious threat to: (1) the public health and safety, or (ii) the common defense and security; l l (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in %62.13, (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 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 Commission shall make a determination that..."
- 21- .;
. . 4
;The comment U recommen:fs ", the Commission shall make a.
determination whether..." I
- Neither of these'orecisely duplicates the' language of the. i
- directive in the zSection.6(c)(1), so NRC' adopted the precise; wording in the Act.. Section 62.21(a) of the final .nowL reads. ",
the Commission <shall determine'whether..."~ Other changes: proposed in the Comment include (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 requesta for emergency access to a' regional disposal facility or 'a facilityL .
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) 1 (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. -l NRC did not make either of the changes discussed under (2);6nd (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 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 action."
1 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.
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{ J d 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.-) l l i Comment 5.20- , 662.25(e)(1) Replace " good faith effort" with " diligent, effort, reasonable L under the circumstances," in' this subsection.
.1 Subsection (e)(1) provides that the Commission, in making an emergency access determination,'willconsiderwhethertheapplicant"[h]as-demonstrated.thata -t good faith effort _was'made to identify and evaluate' alternatives that would mitigate the.necd for emergency access." IDNS submits that s"bjective good l faith should not be' sufficient. The effort must be objectively reasonable I
and diligent. i
.j i
-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 access only. NRC did not 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 imp-oved, but the ! Commission does not believe " reasonable under the circumstances" captures 1 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 1 requestor's responsibilities towards identifying alternatives.
23 Comment 5.21 A new 662.26(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 Commission. Section 6(g) of the Amendments Act provides that:
"any grant of access under this Sectic, 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." l l This requirement of the Amendments Art 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. 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 , in rhich the designated emergency access disposal facility would be l located. NRC has interpreted the approval specified under 6(g) to be I somewhat pro +onna. So the Commission did not believe it was necessary j ta make the Compact Commission's approval part of the formal emergency j access process. This position was explained under the discussion of Legislative History in the preamble to the proposed rule. While I h-___________-_..
l
- I 24 1
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 Commission 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. Commission of.. )
the State in which the designated disposal: facility is' located that 3 emergency access is required. It further provides~thats"the notifications' l must: set forth the' reasons that emergency access was granted and.specifically describe the low-level radioactive waste as to source, physicalz and l radiological characteristics, and the minimum vclume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious l 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 detennination 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 l 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 S62.27 Add a new 662.27, as follows:
"$62.27 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 tc 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 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 j or conditions set by the Commission pursuant to this Part." The proposed rule does not address termination of emergency access. Further-l 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 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
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the'Act,Jaswell'as.those'provisionswh'chlspecifically-i address-emergency ~ access. Once.the NRC has granted-emergency access ths w' aste off coricern should be processed ' r e g t a an r i co st h other LLW< disposed of-under the terms of,the Act.- lThe disposal ofJ emergency: access waste should not preclude:the implementation of any; specific conditions,-' regulations, requirements', fees, surcharges, or taxes prescribed by the disposalfacility.whichmahe'ineffect'atthetimeofthe: Commission's determination'to grant emergency access. Additionally, generators'with' wastes'approvedLforemergency' access should not.have to meet' unusual requirements or pay-unusual fees (when specified.in the Act) simply.becaus'e-their waste is emergency access waste. (b) Compliance with conditions of emergency access; termination of emergency access. 1 (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' J i- conditions set by the Commission pursuant to this Part. l (2) The Commission shall terminate a grani of emergency 1 access when emergency access is no longer necessary to
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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." L _- __-_____-- .-- _
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-2;, 4 Comment 5.23 Miscellaneous Comments and Questions
'S62.6 Specific Exemptions The provisions;of this'section would-allow the Commission to-bypass.allfof 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.
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RESPONSE: -Provision 62.6 is not intended to allow NRC.to. arbitrarily -i bypass the procedures that will be established.by'the emergency access rule. It is impossible for the Commissionto' 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 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 requiretin dealing ' with emergency access decisions to meet that mandate. Provision 62.6 remains unchanged in the final rule. i l d l-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? 1 1
28 RESPONSE: There is no requirement that a given generator or Governor specifically maintain : 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 5.25 662.23 Determination of Granting Temporary Emergency Access This section provides for the granting of temporary eme*gency 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 provisions of Section 6(g) of the Amendments Act, pertaining to approval by a Compact 1 Commission?
i 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. j l 1 l l L______----------
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). k RESPONSE: See responses to Comments 2.1, 2.2, and 5.6. j l 1 Comment 6.3 Please register these as firm requests in your comment considerations and inform me of the outcome. ) i RESPONSE: Noted. No comment necessary. I
30 I l B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident I i 4 Comment 7.1 ! The rule has a basic flaw: The Federal Government and the NRC is regulating { a State function oc at l m t a Compact function. 'This is an obvious ) infringement of State's rights and an infringement which has both financial ) 1 and health impacts. The compacts are state engineered agreements. The LL ' radwaste dump is a State or compact administrated facilit,,. 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. 1 RESPONSE: Wher. Congress passed the original law called the Low Level Radioactive Waste Polie providing its own l ;'hl gradioactive t of 1982, it made waste (LLW)each
# g =state 1 #^r responsible for generated within its b sers. 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 i Regulatory Commisr. ion (NRC) and the Department of Energy (DOE). One of the responsibilities conferred to NRC was to grant requests for emcrgency 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 j decisions to assure that the public health and safety would be l protected. NRC does not intend to use grants of emergency access to l interfere with the States' operation of their LLW facilities except as I s is necessary pursuant to its res90nsibilities under the Act to protect j tr.a public health and safety. (See also r.esponse to Comment 7.5.) i 1
/
1 l 1 1 Comment 7.2 l l Alsu the sites have been carefully designed for what the State compact i expects. Allowing unplanned wastes in will hurt the financial and planning picture for the particular compact. Implementation of the emergency access I 1 I 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, j 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 limit s. In addition, , as discessed in more detail in Comment 1.2, waste granted emergency access will have to meet all the re'quirements and conditions for routine LLW disposal established by the facility designated, including the I i payment of appropriate fees, taxes, surcharges, etc. ! Comment 7.3 States are also very worried about having to take D0D and DOE wastes. l {' l RESPONSE: See responses to Comments 2.1 and 5.6. l { l 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. l RESPONSE: NRC did not propose the emergency access rule without due l cause. As is expleined in the preamble to the proposed rule, NRC is j required by law (Section 6 of the Act) to make emergency access determinations, I j . l ;
i
-32 1
In that same law Congress specified the conditions that mu'st be met by ' persons requesting emergency access, the factcrs NRC is to consider in' . 1 making its determinations. and establish the terms of grants of emergency j access. The proposed 10 CFR.Part 62 serves to codify the requirements l in the law and NRC has tried to assure that the rule assumes no ) responsibilities for the NRC which were not' mandated. (See also I response to Comment 7.1). i i i l l 1 l l l. l L-_________________
33 1 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 here'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. P.ESPONSE: 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. Comment 8.3 1 i Regulations should explicitly prohibit the NRC from mandating greater that 4 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 j at a facility designed for storage. (See the *esponse to Comments 2.3, 3.3, and 10.5) 1 4 i l l
1 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 fees at levels sufficient to pay full expenses associated with the long-term operation and maintenance costs of the facil'ity 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 ti>a 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) i 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 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.
36 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 the States' responsibility.' (See also' responses to Comments 7.1 and 7.5) 1 l i I f
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t
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37f , 4
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- I B.10 Comment: Letter #10 - Anne.'Rabe, Executive' Director NewYorkE .)
Environmental InstitbteL(L'obby Group) 1 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 l out-of-state and federal: nuclear waste'in!" emergency" situations.
i RESPONSE: See the responses to Comme'nts 7.1'and 9.3. 1 Corament 10.2 New York State law (the Low-Level: Radioactive Waste' Management'ct A 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 f former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ - f
~
mental Conservation disapproved this request and the subsequent law upheld I the state's policy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wastes. RESPONSF: None necessary. J 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 suoports ! 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- ____._.___._______m__ .-_____
38 ) designate LLW disposal facilities to receive emergency access waste.
.(See responses to 7.1, 7.5, and 9.3) j 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 i manage their facilities with the threat of NRC emergency declarations forcing substantial amounts of waste on them at anytime?
l l At the very least, the "" should change the rules to: 1) Require' strict l i adherence to state / compact requirements, including allowing only commercial f wastes (not federal) up to Greater than Class C waste.
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i l RESPONSE: See responses to Comments 2.1, 2.2, and 5.6. j i 1 i l Comment 10.5 l Other state restrictions on 100 year hazardous life, or only Class A, B or C wastes, must be strictly adhered to by NRC. I J 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. l 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
i 4
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l production has caused-the'" emergency" in the'first'pla'ce. ' States should not.- I hav'e to bail out the Federal. government. -. 1 RESPONSE: NRC doesinot believe' Congress' intended the. emergency access ,1 provision would. serve to require States tot" bail out the Federal h 1 government." As is, explained in responses:to Comments:2.1, 5.6, and . i 14.2, through Section 3(a)(1):of the Act, Congress'gave States the' responsibility for disposal of specific classes and typesEof LLW.' Some of that waste isl generated by the Federal government, but because that' )
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l fact is all laid ou't in the Act, the States should be well aware of what. ,l
" 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 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 to establish a comprehensive storage and reduction of production program l which will ensure that no emergency will exist for federal government wastes. l RESPONSE: Most of the-provisions. included in the' proposed emergency 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
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NRC's responsibilities. ! i i l l
L40: 8.11 Comment Letter #11 m- 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-
-i lish procedures and criteria for granting emergency access to' non-Federal: and regionel low-level waste disposal facilities. The Society. represents over; 11,000 physicians, physicists, radiochemist, radiopharmacists and.technol-ogists de'dicated to the overall advanc'ement of Nuclear Medicine ~and has' major:
interests in the scientific, educational 'and research activities affecting the-field. The College is a professional organization representing over 1,200 physicians whose primary activity is the practiceLof Nuclear Medicine. Many of our members have had significant involvement in the1 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 1 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 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 u_ _ _ _ _ _ _ _ _ _ _ _ - - _ - _ _ - - _ _ _ - _ _ _ - - _ _
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41 tracers. It is clear, then, that radioactive. materials permeate every aspect of medical practice. RESPONSE: No response necessary. i 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. i 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
.i 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 i on-site storage because their higher-activity materials would conceivably , exceed available on-site storage capacity within one to six months. i i 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 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
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. 1 I k 1 1 I l I l l 1 1 i I J l 1 u _-----_.
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B.12 Comment Letter #12 - Kathy Lyons, Concerned Citizen,'4 New Harryshire j ,. l
-l d
a Comment 12.1 I wish"to comment on-the Low-Level Radioactive' Waste' Policy Act in which NRC. i has the right to. force' unwanted waste onistate-dumps, f l RESPONSE: None necessary. , j
-l Comment 12.2 ' 'I Please,-in doing so consider this: Do'not'give us'federalfwaste (D0D or, DOE),
l RESPONSE _See response to Comment 2.1. Comment 12.3 i
...and'do not give us waste outside of our Class, that's not acting responsibly.
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1 RESPONSE: See response to Comment 2.2.- 3 I 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 westes dump I 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) l I -
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(
..B.13CommentLetter#13--E.NemethN, Secretary,EcologyAlert J
l l l 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 excelle'nt I iaea.
L c But we. feel' the' proposed ' rule could l stand a bit of tightening.
-1 RESPONSE: None needed. I 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) , a 1 I 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 noti _fy 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 l
= _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ - _ _ - _ - _ - - _ - _ - -
-l 46 l provides NRC only 45 days to review a request and determine if emergency- i access should be granted. Nevertheless, the Commission be'ieves that the public should be notified when emergency access is requested and !
should have some opportunity for input into NRC's decisionmaking j 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. Comment 13.4 Section 62.12(f)(2)(iv) - Why should infinitely long-lived transurar.ics he 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 i Section 62.23 - Before granting temporary emergency access, why not allow a 10 day waiting period, so possible alternatives may be considered? I 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. l 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 l common defense and security, the NRC may, at its discretion, grant l temporary emergency access, pending its determination whether the threat could be mitigated by any alternative consistent with the public health l
47 and safety." The Commission has 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 th; pile of low-level waste l 1 with lead shielding, topped with enough soild to stop radiation from l escaping. Response: Noted.
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
49
" State..." Such generators tould include generators that are not NRC or NRC Agreement State licensed. He would like to see provision made to clearly prohibit DOE and D0D and s or 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 Federai waste then of course it makes sense to require those generators to attempt access at Federal dumps firrt, 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 l emergency access. l 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 l 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 t to access their sites. 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 LtW 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 'cemedial 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. l l RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
51 Comment 14.4 (2) Furthermore, 000, DOE and other Federal waste is not currently classified as Class A, B, C or Greater-than-Class-C (C+), as is commercial l 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 i categorizing " low-level" waste. Even if DOE relcassifies its wastes as A, B, C and C4, the source of such waste is much different than commercial waste and could pose technical problems which states and compacts are not considerir g in their dump planning. 1 RESPONSE: See responses to Comments 2.1, 5.6, and 14.2. i
!)
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 q 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 ; granted emergency access to Federal and defense related generators. We only wish to point out that such a provision could penalize states and compacts
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for taking on longer-lived and more concentrated wastes. I 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. RESPONSE: None necessary. l 1
1 52
.s 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. . l RESPONSE: NRC is aware that the proposed rule creates the potential for , 1 a conflict of interest in those situations where D00 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 D0D 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 licens.3d 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 l 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 l intended NRC to grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to I receive them. So States should not have to be too concerned about the right to refuse wastes granted emergency access by the NRC pursuai.t 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 esponses to Comments 2.1, 2.2, 5.6 and 14.1, NRC is committed to observing those limitations. Comment 14.10 I 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. l 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)" i 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.
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 wastef i bci"8'd"* RESPONSE: The proposed rule does' rot require that LLW be incinerated i 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
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decided it would be worthwhile for NRC to evaluate the extent to which volume reduction methods or techniques will be or nave 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 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. 1 1
RESPONSE: See the responses to Comments 14.7, 5.6, 8.4, and 9.1. ] 1 Comment 14.13
- 5. We encourage NRC not to weaken any of the requirements for Emergency l Access applicants.
i l RESPONSE: Noted. l
56 l l 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 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 l disposal at State LLW disposal facilities. Comment 15.2 , I urge you to reconsider such interference in the rights of states and of citizenry. l l RESPONSE: The NRC is not trying to interfere with the rights of states l by proposing this rule. The NRC was mandated by Congress to make ! l determinations on requests for emergency access to LLW disposal l l l facilities in order to protect the public health and safety. The NRC's 1 emergency access rule will only be implemented when a generator or a ! 1 i 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.
57 i l I B.16 Comment Letter #16 -- Donald Hughes, Sr. Manager, Kentucky Radiation ) l Control Office and Commissioner of the Midvest J Compact I Comment 16.1 l 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.
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j Rather than reiterate the various comments contained in the attached letter, l 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 1 errors that must be corrected. I I RESPONSE: Noted. j 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 vf 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. l 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 i Comment 17.1 This proposed rulemaking has several major flaws that if not corrected could , J 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 l 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&8) and 62.13(b): (See the response to Comment 17.2 for changes)
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 wast'e 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, . 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 cannet 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 Q rs b h Mh Comment 17.5 In order that the credibility of the process be maintained, this-rule must. I 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 emergency access should occur. The provisions of this rule should only be
l 60 l used as a last resort and the language should be such that this intent is clear. l
- l 1
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 Comment 17.6 In addition, we have reviewed the specific issues for which input has been requested and have the following comments: 4
- 1) What scenarios are envisioned where emergency access would be required? -
As written, the rule could require acceptance for disposal of federal q 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 j whatever reason. I l 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 I and do not necessitate 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 1
- - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - _ _ _ _ - . _ _ _ _ - _ _ . l
61 l; l The difference between " emergency access" and " temporary emergency l 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 i definitions and suggested implementation of the two terms in the )
)
proposed rule. ' 1 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. 1 i Comment 17.8 !
- 3) What are the potential problems with the' determination of serious and j immediate threat to the common defense and security? i In making this determination, can all or part of the information l provided by the generator be kept confidential, or not be released to the receiving facility, under the claim of national security? )
l i l RESPONSE: (To be provided by Chip Cameron) J l l 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.
62 RESPONSE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency access decisions. l l i 1 l i i i 1
63 J 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 O themselves or through reciprocal 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 eliminat'e 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 generhors 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. l The purpose of'the Act is to make the disposal of LLW-a State .) responsibility and to encourage States to work out disposal problems I amongst themselves. Congress believes that if Federal LLW disposal 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. 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 rotated and, for the three currently l operating facilities, allocations will be made in proportion to the volume limitations established by the Act, to the extent that these are l
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 1 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, i 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, J 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) i 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 requiring 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. 'l sites in the future. Such agreements should include Federal disposal l facilities. RESPONSE: Noted. l I l l I I I l l l
7 4 66 l l B.18 Comment Letter #18 -- Clark Bullard, Chairman, Central Midwest Compact , Commission Comment 18.1 The Central Midwest Compact Commission fully endorses the comments submitted
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J by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988. ) l l 1 RESPONSE: Noted. J l 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 l l system could be undermined by any hints that NRC is less than fully committed i to respecting the statutory exclusion of greater-than-Class-C waste. ) l RESPONSE: See the response to Comment 2.2. I Comment 18.3 We urge you to adopt the IDNS comments intact so our ability to meet the remaining milestores is not impaired. RESPONSE: Noted. l l l
67 I i B.19 Comment Letter #19 -- John S. Kemper, Philadelphia Electric Company l Comment 19.1 l 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 maintainirl control of the amount of radioactive waste sent to such sites. RESPONSE: Noted. I l Comment 19.2
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One aspect of this process, however, may prove to be a detriment to its l smooth administration: the 10-day public comment period. If a situation is truly an emergency, delaying the disposal of waste may i 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. 1 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 request. (See response to Comment 13.3 for elaboration.)
68 Comment 19.3 We are confident that the proposed criteria are strict enough t;o protect the public health and safety without delaying the process to consider public concerns for each occurrence. RESPONSE: None necessary. l l l
i i 69 l 1 l B.20 Comment Letter #20 -- Jessie DeerInWater, Chairperson, Native Americans l for a Clean Environment I t Comment 20.1 i NACE joins with Mr. Marvin Lewis of Philadelphia, PA in his opposition-to Proposed Rule: Criteria and' Procedures for Emergency Access to Non-Federal 1 and Regional Low-tevel Rad Waste Sites. I RESPONSE: Noted. I , 1 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 an infringement of State's rights which has both financial and health impacts. RESPONSE: See the responses to Coma.ents 7.1, 7.5, 9.3, and 10.1. l l 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 i might be contained in waste coming from the DOE and the D0D. It is our belief that federal waste is of ten greater-than-Class-C vaste. 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.
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RESPONSE: None needed, i 1 i l 1 w__-__-_____-_
l [ l 70 B.21 Comment Letter #21 -- Greta J. Dicus, Arkansas Dept. of Health 1 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 compatible with these provisions in that the criteria set forth are stringent I l 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 incorrec.t 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 .egislative history specify whether temporary emergency access can or cannot be extended. However, NRC does not believe Congress anticipated that extensions of temporary emergency l access would be needed. Af ter 45 days, the requestor would lose access I 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 I i emergency access. Thus, in the absence of any specific guidance f rom ' 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 disposcl, but the alternative analysis was not complete, the Commission would have to use ' l
E 1 ) ! 71 l its discretion to decide what action to take. (Note: should this be I addressed in the preamble or rule?) i Comment 21.3 If the need for emergency access is the result of a regional or non-Federal j facility denying access to a generator, the reason (s) access was denied { should be considered by the NRC when making its decision. l RESPONSE: NRC plans to consider the reason access was denied and has ! required that information to that effect be included as part of a l 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 I
" documentation certifying that access has been denied." 1 i
Comment 21.4
- 1. What scenarios are envisioned where emergency access would be required? l l
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. 9
- 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?
l u-_------.-----
1 72 1 ; Response: No comments at this time. ) i
- 4. What are the potential difficulties with the proposed approach for designating the receiving site? -
l .i Response: No comment at this time. l s
- 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 1 l' ! 1 l
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LlysG Document Name: b l PART 62 COMMENT ANALYSIS - 77; & 3 f, a ' ues or s 1D: % ,y g, , ,_, ,r,, ! Author's Name: 4hM~ j janet lambert l Document Comments: i comments and responses I l I m i i M A
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10 CFR PART 62 t
, Criteria and Procedures for Emergency Access to Non-Federal 1 and Regional Low-Level Waste Disposal Facilities i
.YN/ -
. AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed Rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is proposing a rule to i establish procedures and criteria for fulfilling its responsibilities associated with acting on requests by low-level radioactive waste (LLW) ,
i generators, or State officials on behalf of those generators, for
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emergency access to operating, non-Federal or regional, l'ow-level i radioactive waste disposal facilities under Section 6 of the Low-Level j 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 i
security. DATES: Comments should be submitted on or before . Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received before this date. 1
/yf
w ADDRESS: Submit written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docksting and Service Branch. Copies of comments received and the regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. 4 FOR FURTHER INFORMATION CONTACT: Janet Lambert, Division of Low-Level Waste Management and Decommissioning, U.S. Nuclear Regulatory Commission, H91 38SS Washington, DC 20555, telephone (301) 44iHP999. SUPPLEMENTARY INFORMATION: I. 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 i IX. Requests For Emergency Access Made Prior to the Effective Date of the Rule X. Finding of No Significant Environmental Impact: Availability XI. Paperwork Reduction Act Statement ' XII. Regulatory Analysis . XIII. Regulatory Flexibility Certification XIV. List of Subjects in 10 CFR Part 62 2
I. Background The Low-Level Radioactive Waste Policy Amendments Act of 1985 ; 1 (PL 99-240, January 15.-1986), "the Act" directs the States to develop I their own LLW disposal facilities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new facilities will be available bi January 1,1993. The Act establishes procedures and-milestones for the selection and development of the LLW disposal facilities. The Act also establishes a j i' system of incentives for meeting the milestones, and penalties for
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l 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 i 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 _j (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 l common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative i 3
consistent with the public health and safety, including ceasing the activ- , I ities that generate the waste. NRC must be able, with the information i 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 criterir, 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 access.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 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 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
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only if the LLW generator who was originally granted emergency access and the St. ate in which the LLW was generated have diligently though unsuccessfully
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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 l
defense and security pending a Commission determination as to whether
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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 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' l 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 l
i 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. j within the time allowed by the Act. a 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 l 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 the waste, the instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from the generators and the States / Compacts should resolve most access problems thus precluding the necessity for involving the itueral 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 6
i I l means for resolving the problems created by denial of access to LLW dis- f 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 exhausted all other options for managing their waste. By establishing strict requirements for approving reque'tss for emergency access, NRC
. intends to reinforce the idea that problems with LLW disposal are to be worked out to the extent practical among the States, and that emergency , access to existing LLW 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 j legislative history.
Section 6(g) of the Act requires the NRC to notify the Compact , Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica- l 1 tion" from the NRC. The purpose of this provision is to-- ' l
- ensure that the Compact Commission is aware of the NRC's grant 1
of emergency access and the terms of the grant, l
- allow the Compact Commission to implement any administrative i l procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in l
Section 6(h) of the Act have not been exceeded. - However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission .i I 7
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 ba available in emergency situations. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular' Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and 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 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.
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- 5. establish requirements for granting emergency access that are stringent enough to discourage the unsited States and regions f*om ,
viewing emergency access as an alternative to diligent pursuit of their . own disposal capability, and yet flexible enough to allow NRC to respond i appropriately in situations where emergency access is genuinely needed to protect the public health arid safety or the common defense and security. ~ l V. Assumptions
~ , In developing the rule NRC made several assumptions. These assumptions are discussed below.
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-ceive of situations where denial of access to disposal 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 1 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 l l 9
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"(A) low-level ra'dioadve waste generated within the State (other than by the Federal Government) that consists of or i
. contains class A, B, or C radioactive waste as dermed 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;
"(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 or generated as a result of any research, .
development, testing, or production of any atomic weapon; and
"(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 5 or 6.,
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a w y a e c. l 1
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for disposal by the Department of Energy (DOE) under the unusual volumes provision of the Act [Section 5(c)(5)]. This means that NRC does not intend to consider requests for emergency access for wastes generated by commercial nuclear power stations as a result of unusual or unexpected operating, maintenance, repair or safety activities. Section 5(c)(5) of the Act specifically sets aside 800,000 cu.ft. of disposal capacity above the regular reactor allocations through'1992 to be used for those wastes. With this space reserved for wastes qualifying for the " unusual volumes allocation," NRC believes emergency access should be reserved for other
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LW, until the 800,000 cu.ft. allocation is exceeded. I 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 that all possibilities can be predicted or anticipated. Largely because of the uncertainty associated with identifying all of the circumstances under which ; emergency access may be required, NRC has avoided establishing criteria ' with absolute thresholds. Instead, the rule as proposed contains a combination of qualitative and quantitative criteria with generic applicability. NRC believes this combination provides NRC maximum
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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 acquirements 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
Subpart A - General Provisions Subpart A contains the purpose and scope of the rule, definitions, I 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 1 access to existing commercial LLW di,sposal facilities and who submit a request to the Commission for an emergehty access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. Subpart B - Request for a Commission Determination Subpart B specifies the information that must be submitted and the procedures that must be followed by a person seeking a Commission deter-mination on emergency access. Specifically, Subpart B requires the submission of information on the need for access to LLW disposal sites, the quantity and type of material requiring disposal, impacts on health and safety or common defense and security if emergency access were not granted, and
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l consideration of available alternatives to emergency access. This 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 (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
, i of a request for emergency access to inform the public that Commission l l
action on the request is pending. Even though comment is not required by the Act or the Administrative Procedure Act, Subpart.B provides for a 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 3 l Department of Energy (DOE) or the_ Department of Defense (D0D) (as appro-
, priate) be submitted as part of the initial request for emergency access.
If the request is based entirely on common defense and security concerns, j 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 sets out the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and 1 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 ; 1 12
j would result from the denial of access including consideration-of the standards for radiation protection contained in 10 CFR Part 20 any i standards governing the release of radioactive materials to the general ) environment that are applicable to the facility that generated the i 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. In making the determination that there is a serious and immediate threat to the common defense and security, Subpart C provides that the , I Commission will consider whether the activity generating the LLW is I necessary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will consider D0D and DOE viewpoints in a statement of support to be filed with the request for emergency access. Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potentially mitigate the need for emergency access. The Commission will i 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 l 13 l N--
l i safety. For each alternative, the Comn.ission will also consider whether i the requestor has demonstrated that the implementation of the alternative is unreasonable because of adverse effects on the public health and i safety or the common defense and security, because it is technically or ) i economically beyond the capability of the requestor, or because the { 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 l 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 {
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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 ' medical services. The Commission specifically requests information on 3 l 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 available alternatives are found to be unreasonable. If an l 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 op'erating non-Federal LLW disposal facility should receive the LLW approved for emergency access disposal. - 14
~ '1 Subpart C sets out that in designating a disposal facility or '
facilities to provide emergency access disposal, the Commission will first consider whether a facility should be excluded from consideration because: (1) the LLW does~not meet the license _ criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations-a 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 the' designation cannot be made on these factors alone, then the Commission will consider the type of waste, previous disposal practices, transportation , ( requirements, radiological effects, cite capability for handling the: waste, and any other information the Commission deems necessary. In making a determination regarding a request for an extension of- , emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during.the period of the initial grant to eliminate the need for emergency access. In making a determination that temporary emergency access is neces-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. 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 l l
; i (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 public health and safety or;the common- .) l defense and security is key to NRC's decisions to grant emergency' access. ! Neither the Act nor its legislative history provide elaboration regarding ; q J Congressional intent for what would constitute "a serious and immediate - threat." > (1) To the Public health and safety-- , The criteria in the proposed rule for determining whether a serious - and immediate threat to the public health and safety exists, address three situationt Section 62.25(b)(1) addresses the situation where the lack of access would result in a radiation hazard at the facility thattis generating the LLW. Section 62.25(b)(ii) addresses the situation where the threat to public health and safety would result from disruption of I 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 i 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 j materials to the general environment that are applicable to the facility that generated the low level waste, and any other Commission requirements 16
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1 specifically applicable to the facility or activity which is the subject !
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of the emergency access request. This latter category would include license provisions, orders, and similar requirements. 4 The Congressional concern in enacting Section 6 of the Act was to ensure that a serious and immediate threat to the public health and safety did not result from a denial of access. In addressing this concern, the Commission will evaluate the request for emergency access in i 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 4 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 I 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 1 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 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 faci M ty was' shut down or the activity stopped, if the
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low level waste could not be disposed of because of denial of access. In'this situation, emergency access may be needed. The Comission would emphasize first, that it is extremely unlikely. 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 second, if such a situation does exist, the Commission will. nove immediately to eliminate the threat. If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the' nature and-extent of the radiation hazard. If there is no violation of the ] 1 Commission's generic or facility-specific radiation protection standards, j i no serious and immediate threat would exist from the waste itself. This l is separate from a finding that a serious and immediate threat to the 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 order to grant temporary emergency access, the Commission is not required j to evaluate the availability of alternatives to emergency access that. would mitigate the threat. The Commission believes that grants of a 18
temporary emergency access should be reserved for the most serious threat to public health and safety, and has accordingly established criteria for l granting temporary emergency access that require the consideration of more serious events. For purposes of granting temporary emergency access ; l under Section 62.23, the Commission will consider the criteria and ; examples contained in the Commission's Policy Statement for determining
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whether an event at a facility or activity licensed or otherwise regulated by the Commission is an abncrmal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.) This pt ovision requites the Commission to keep Congress and the public informed of unscheduled incidents or events which the Commission j l considers significant from the standpoint of public health and safety.
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Under the criteria established in the Commission's policy statement, an event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and safety. Such an event could include--
- 1. Moderate exposure to, or release of, radioactive material; q
- 2. Major degradation of safety related equipment; or
- 3. Major deficiencies in design, construction, use sf, 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 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' 1 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 appears that the best way to provide such interaction would be to require that requests filed with NRC for emer-l 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 DOE. So while the Commission in'tends to give the D00 and DOE certifications and recommendations full consideration 20 e____--_-___________-__________
i 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 l l remaining is emergency access. Only after this has bean demonstrated to i NRC will the Agency proceed with'a grant of emergency access. Alternatives which, at a minimum, a requestor will hue to evaluate
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are set out in Section 6(c)(1)(B) of the Act. They include (1) storage of I LLW at the site of generation or in a storage facility, (2) obtaining access to a disposal facility by voluntary agreement, (3) purchasing i l disposal capacity available for assignment pursuant to Section 5(c) of I 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 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 Mquired 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 1 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. I For all the alternatives that are considered, NRC is requiring detailed information from the generator regarding the decision process i leading to a request for emergency access. The requestor will be expected to demonstrate that he has considered all pertinent alternatives I 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 on a temporary basis, until other arrangements can be made. The requestor will be expected to evaluate the costs, economic feasibility, and benefits 22
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 dis'posal facilities would qualify under the limitations set cut in Section 6(h) of the Act. Accord g to those WDU' limitations, a site would be excluded from receiving access waste'if A (1) the LLW does not meet the license criteria for the site; (2) the -
, disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If 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 t'eceiving 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
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 l of disposal capacity for each of the commercially operating waste disposal facilities. NRC intends to arrange to obtain this information on a continuous basis. 1 It should be noted that in setting out the site designation provision l 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 l 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 l l l 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 l 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 1 has been reduced in a manner consistent with Section 6(i). As is so for the other determinations NRC will have to make pursuant l 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 l l 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, pyrophoricity, and explosive potential); condition of current container; potential for contaminating the disposal site; the technologies or q combination of technologies available for treatment of the waste (including incinerators; evaporators-crystallizes; fluidized bed dryers; ) gu V') thin-film evaporators; extruders evaporators; and fompactors); the I suitability of volume reduction equipment to the circumstances (specific ' 1 25
f 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. l VIII. Specific Request for Coments NRC is interested in receiving coments on those parts of the proposed rule where NRC applied its discretiun in order to implement the Section 6 provisions. NRC specifically requests comments on the following: (1) What scenarios are envisioned where emergency access would be required? (2) What are the potential problems with NRC's approach to determining an immediate and serious threat to the public health and safety? (3) What are the potential problems with the arrangement proposed for making the determination of serious and I 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 l 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 I Jn 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
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. J X. Finding of No Significant Environmental Impact: Availability If adopted, the propcsed rule would establish criteria and procedures for a Commission determination under Section 6 of the Act that emergency i access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or i the common defense and security. For the most part, the proposed rule is i 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. 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, , I l would not be a major Federal action significantly affecting the quality l l ' of the human environment and, therefore, an environmental impact statement is not required. The environmental assessment forming the basis for this determination l 1s contained in the draft regulatory analysis prepared for this proposed { regulation. The availability of the draft regulatory analysis is noted below. ' 27 I i
i X I .. Paperwork Reduction Act Statement' ] i This proposed rule adds information collection requirements that are .j 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.
)
y XII. Regulatory Analysis i The Commission has prepared a draft regulatory analysis of the proposed regulations. The analysis examines _the costs and benefits f of the alternatives considered by the Commission. The draft analysis is l l available for inspection, copying for a fee, at the NRC Public Document' { Room, 1717 H Street NW., Washington, DC 20555. XIII. Regulatory Flexibility Certification f 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), +.he Commission certifies tfiat, 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 power plants, medical and academic facilities, industrial licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 28
these categories, all but the power plants,; fuel fabrication facilities, and government licensees could potentially include small entities. Although these categories may contain a " substantial number of small entities," the Commission does not believe 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, the generator himself must initiate the action by requesting a grant of I emergency access from NRC. This would occur only because the. generator has been denied access to LLW disposal. I g c4EEtt, b The Commission is required to make emergency access determinations, by :t:tute. Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of lack of access to ! J LLW disposal, the provision of emergency access will benefit any genera- l 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 a 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 29 1
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 I 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 modified to impose less stringent requirements on small entities while still adequately protecting the public health and safety. Those small entities which offer comments on how the regulation could be modified to take into account the differing needs of small entities should specifically discuss the following items. 3 (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 l 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. l 30 l
)
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 l Administrative Practice and Procedure, Low-Level Radioactive Waste, Nuclear Materials, LLW Treatment and Disposal, Emergency Access to Low-Level Waste Disposal, Low-Level 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 i of 1974, as amended, and the Low-Level Radioactive Waste Policy Amend-ments Act of 1985, notice is hereby given that adoption of a new 10 CFR Part 62 is contemplated.
- 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 1
Subpart B - Request for a' Commission Determination 1 62.11 Filing and distribution of a determination request 62.12 Contents of a request for emergency access: General information 52.13 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 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 g,17 TILrtns W CshdIhkr O 6*y D" 1 Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, 99 Stat. 1843, 1844,'.S45, 1846, 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f). I l l 32 l l
l h add:Ce): %<peonem a 46 pas n ayk w u s dasses q u.uf Axt s un.Dr w m .: L E C$$ $As fW & SLY 3 {t NN M.M %5M N@ 6 9 m h/
- u.w Y M k au:
"(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 61.55 of title 10, Code of Federal Regulations, as in effect on
! January 26,1983; i
"(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; l
'*(ii) owned or generated by the United States Navy as a i
result of the decommissionmg 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) low level radioactive waste described in subparagraphs (A) and (B) that is generated outside of the State and aexpted
'nr disposal in accordr.nce with sections 5 or 6.. , ,
y:
i I 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 emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S C. 2021) to any non-Federal or regional 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.
&W? ^ }
~
$ 62.2 Definitions.
j As used this part:
"Act" means the Low-Level Radioactive Waste Policy Amendments Act of l 1
1985 (P.L. 99-240).
)
1
" Agreement State" means a State that - (A) has entered into an l
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 I agreement. l l I 33
]
- -- _ - _ - - - _ - - - - - 1
" Commission" means the Nuclear Regulatory Commission or its duly authorized representatives.
" Compact" means a Compact entered into by two or more States pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985.
" Compact Commission" means the regional commission, committee, or board established in a Compact to administer such Compact.
"EmergencyAccess"meansaccesstoanoperatingnon-Federalor(9' 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 regional 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 l l
(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 existir.g 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
,,Q < ~ :
q43 'y o)' a~ T
" Person" means any individual, corporation, partnership, firm, J" h
association, trust, State, public or private institution, group or agencywhoisanNRCorNRCAgreementStatelicensedgeneratorgI [# g A} 1 pp,ws-dssig_th .MnMs f retpense low-level radioactive waste; any Governor (or for any " State" with ta Governor, the chief executive officer of the " State") on behalf of any I generator or generators of low-level radioactive waste located in his or egwAigwdultf454MJ'/EfpenseElb AndipsuL-(p /Y.2)- her ' state"; or their duly authorized representative, legal successor or A agent. l I
" State" means any State of the United States, the District of j i
Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's in a,le%'w42L o.h (,-C 8) i discretion upon determining that access is necessary in _
,,'Ter immediate and serious threat to the public health and safety or the common defense and security. Such access expires 45-days after the p l gp ~*s granting M (& & !
I G 62.3 Communications. j Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-l tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear i l Regulatory Commission, Washington, DC 20555, or may be delivered in 1 person to the Commission's offices at 1717-H-Street-NW:7 Washington,-DC., Y or-7915-Enterfi AveMeMilverspring-Maryland-- . l
$ 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
officer or employee of the Commission other than a written.interpreta - tion by the General Counsel will be considered binding on the Commission. 6 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 (OMB) 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 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 l 6 62.11 Filing and distribution of a determination request. 4 (a) The person submitting a request for a Commission determina- l l 1 tion must file a signed original and nins 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 1 l l
Appendix D 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 I 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 R Street NW. , Washington, DC, pou[
; and in the Local Public Document Room pf the facility submitting the request. The Secretary of the Commission will also transmit a copy of )1 the request to the U.S. Department of Energy, to the Governor of the State where the waste is generated, to the States with operatir" m - l l
Federal low-level radioactive waste disposal facilities, and to the i Compact Commissions with operating regional low-level radioactive waste 1 disposal facilities. ' (ci 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 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 l until additional LLW disposal capacity is authorized by Congress. l l 37 w_-_____.___-______ _ ._
l 1 i 9 62.12 Contents of a request for emergency access: General
'f,\ h Information.
k[ A request for a Commission determination under this part must include Db the following information for each generator to which the request applies: l 1- ' \ (a) Name and address of the person making the request; i . (b) Name and address of the person (s) or company (ies) generating i .tv , .% ( the low-level radioactive waste for which the determination is sought; The low-level waste generation facility (ies) producing the w waste for which the request is being made; )
~
'f e (#[ A description of the activity that generated the waste;
.f % Name of the disposal facility or facilities which had been v D.B 1 g receiving the waste stream of concern before the generator was denied j V access; l f % A description of the low-level radioactive waste for which o[i emergency access is requested, including: 1 (1) The characteristics and composition of the waste,. including, but not limited to--
(i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment); j kI d (ii) principal chemical composition; (11 0 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; l l 38 l
f' (2) The radiological characteristics of the waste such as-- (i) the classification of the waste in accordane' J t.h 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);
(iv) amount of transuranic (nanocuries/ gram); (3) The minimum volume of the waste requiring emergency access to S. l 0)
&abl 2 1 .. (the m_ threat to the public health and safety or the common defense and security; l (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 I (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:
. (1) The circumstances which led to the denial of access to existing l l 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; i 39 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 exp b ation of the impacts of the waste on the public health and safety or the common defense and security if emergency access is not granted, and the basis for concluding that these impacts constitute a serious and immediate threat to the public. health and safety or the common defense and security. The impacts to the public health and safety or the common defense and security if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5) Other consequences if emergency access is not granted; () 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;
.)
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 Volumes provision [Sectior. 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
u . c . ~~"m V"hy) M ti ZX4 - mmh
- ouess fum n & mk M wu.cJ & u/M4*/7 kk sis s
~ K %', my aw:-) a4 ' *a O Date by which access is required; g #N .
V Q Q p (p) Any other information which the Commission should conside'r in - LLchmkM making its determination. S 62.13 Contents of a request for emergency access: alternatives. 3
- c l (a) A request for emergency access under this part must include dO information on alternatives to emergency access. Therequestshog 4 includeadiscussionoftheconsiderationgivenAtk a a v[ ~
9 3 including, but not limited to, the following: (1) storage of low-level ca'f"(#17 T radioactive waste at the site of generation; (2) storage of low-level y
? radioactive waste in a licensed storage facility; (3) obtaining access
(
$ to a disposal facility by voluntary agreement; (4) purchas i disposal hny (S) Mar '"
capacityavailableforassignmentpursuanttotheAct;prequesting g disposal at a Federal low-level radioactive waste disposal fag lh /# ff % ost w sks j the case of a Federal or defense related generator of LLWf, rkducing 17.2 ' the volume of the wast . ceasing activities that generate low el radioactive waste; tesfj w alternat ps ide wntified un er.g' other # l ((9 Subpart (b) of this Section. ^
//
(b) The request must identify all o the alternative to' ergency\ bj& g-A_%ta ~ riu1 Con.ph:t 17.2 "- access considered and intlude a descript on of the prbcess use to [ identify them, including any not specified in paragraph (a) of this g section. The request should also include a description of the factors .Oa that were considered in identifying and evaluating alternatives, a chronology of actions taken to identify and implement alternatives during l the process, and a discussion of any actions that were considered, but not implemented. l 41 l r - - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ _ _ -
b (c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public health and safety or the common defense and security posed by lack of g%s U access to disposal; (2) the adverse effects on public health and safety
- d. q- and the common defense and security, if any, of implementing each alter m l A native,includingthecurtailmentorcessationofanyessentialservices(x b*
y y affecting the public health and safety or the common defense and secu-y rity; (3) the technical and economic feasibility of each alternative 'g
\ including the person's financial capability to implement the alterna-
! tives; (4) any other pertinent societal costs and benefits (5) impacts ,y
,ss s to the environment; (6) any legal impediments to implementation of each y
g 3
' alternative includipg whetherMW" WtWh' the alternath es_wiof wsds Q omply with appli
%d%gaetW a.,o pr^(
f\ cableNRCregu'latoryrequirementspand(7)y"hetimerequiredtbdevel t w
,sfo:ta O k.'
and implement each alternative. eg wr j (d) e request must include the basis for: (1) rejecting each
- q alternative; and (2) concluding that no alternative is available. '
2'
~
S 62.14 Contents of a request for an extension of emergency access. i A request for an extension of emergency access must include. i (a) Updates of the information required in S 62.12 and 6 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 l 1
i i j 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. I 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 regt ;t for additional information under paragraph (a) of this section within tei: (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. li 62.16 Withdrawal of a determination request. (a) A person may withdraw a request for a Commission determination under this part without prejudice at any time prior to the issuance of an initial determination under S 62.21. (b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a Commission determination under this part. S 62.17 Elimination of repetition. In any request under this part, the person making the request may i incorporate by reference information contained in a previous application, j 43 u--_--_---_.-_------___---.-_-_--_-. - - _ _ _
M [atement,orreportfiledwiththeCommissionprovidedthattheserefer-ences are updated, clear and specific. S 62.18 Denial of request.- If a request for a. determination is. based on circumstances that are too remote and speculative to allow an informed determination, the Commission may deny the request. - Subpart C--Issuance of a Commission Determination 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 his 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 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 1 44 L___-______-________-____=____
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 volJme and duration i l (not to exceed 180 days) necessary to dim C;.'S.n9'ml
./. Gie 1 mediate threat to 1 1
public health and safety or the common defense and security. It may also contain conditions upon which the determination is dependent. q l l 6 62.22 Notice of issuance of a determination. (a) Upon the issuance of a Commission determination the Secretary j of the Commission will make notification of the final determination in writing, to the person making the request, the Governor of the State in j l which the low-level radioactive waste requiring emergency access was generated, and the Governor of the State in which the designated dis- ! posal facili is located, and if rtin e nsSpyw MO$4m )theappropriateCompact 4 i Commission o the final determination. For the Governor of the State in w'ich the designated disposal facility is located and for the apro- 1 priate Compact Commission, the notification must set forth the reasons l that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, l 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 o 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. DsWg x Q Q 6tsformeA yS ty s. M eJaattwsuw h
& Y or ,J -OCs sht2% && W. W
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_ _ _ _ - _ _ _ _ _ . . _ _ _ _ . - - . . 1
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(/) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination) 4 q { M The Secretary of the Commission will make a copy of the final f determination available for inspection in the Commission'sfublic Document Room, 1717 H Street NW , Washington, DC. # S 62.23 Determination for granting temporary emergency acces's. g4
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(a) The Commission may gra,nt temporary emergency access to ( 41M41eulL5'.3.d 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. ; l S 62.24 Extension of emergency access. I (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 deteunina-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
(3) the generator of low-level waste and the State have dil'igently~- though unsuccessfully acted during the period of the initial grant to 1 eliminate the need for emergency. access. (b) After making a determination pursuant to paragraph'(a) of this i section, the requirements specified in-SS 62.21(c) ,-and 62.22, i i must be followed. N O' S 62.25 Criteria for a Commission determination. i (a) In making the determination required by Section 62.21(a) of. 'l 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, 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 i (C) any other Commission requirements specifically applicable to ; the facility or activity which is the subject of the emergency access ! request; 4 47
(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 deter.nining 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 threat 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 (D0D) and the Department of Energy (DOE) in the Statement of support as submitted by the person requesting emergency access, in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security. (e) In making the determination required by S 62.21(a)(2), the Commission will, consider whether the person submitting the request: (1) has Ae Q'm
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(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-able if (1) it adversely affects public health and safety, the environ-l l 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. l (g) The Commission shall make an affirmative determination under S 62.21(a) only if all of the alternatives that were considered are found to be unreasonable. (h) In making a determination regarding temporary emergency access under S 62.23, the criteria in parts (a) and (b) of that section shall apply. (i) In making a determination regarding an extension of emergency access under S 62.24, the Commission shall consider whether the person making 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
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 agreenient or the license agreement of the facility; or l (2) the disposal facility is in excess of its approved capacity; or 1 (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 percent of the total volume of low-level radioactive waste accepted for disposal at the facility during the previous calendar year. (c) If, after applying the exclusionary criteria in paragraph (b) of this section, more than one disposal facility is identified as appro- I priate for designation, the Commission will then consider additional { factors in designating a facility or facilities including: (1) type of waste M ET SlthF U N (2) previous disposal practices, (3) transportation, j (4) radiological effects, (5) site capability for handling waste, enda () any other considerations deemed appropriate by the Commission.
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(d) The Commission, in making its designation, will also consider l any information submitted by the operating non-Federal or regional LLW disposal sites, or any information submitted by the public in response to g a Federal Register notice requesting comment, as 'provided in p'aragraph (b) of 6 62.11.
^
s r - 0ated at' Washington DC, this ' day of , 1987. (,Q, M For the Nuclear Hegulatory Commission. I f {C\ W J b Samuel J. Chilk, Secretary of the Commission. i j g]7 s - v 4L) M2mAAAl. u u) f a c**** ' fE' d h l7 O. O cD
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[ (g) The operator of a regional disposal facility or a non-federal disposal facility designated by the Comission 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 Comission pursuant to this Part.
@ The Commission shall terminate a grant of emergency access iden '4 emergency access is no longer necessary to eliminate an immealate threat to public health and safety or the comon defense and security.
(g) The Commission may D ate a granta f emergency access if an g applicant has made a\ material false statement if the application for emergency access or iMhBWtant has TaiTed to comply with this part or conditions set by the Comission pursuant to this Part." [ ~ ' ~~' y ' ,
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X' . / 10 CFR PART 62 ] Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities
. AGENCY: Nuclear Regulatory Commission.
Ma l ACTION: frap.1 nd Rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is .; 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 access may be necessary if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal a facilities, and the lack of access results in a serious and immediate I threat to the public h?alth and safety or the common defense and security. Ofk. pMMO) l (300 EffEcnVE. DATES: mme should be s tied on or b _. l Comme sr e' ed aft his da will b consi ered if 1 is actical i to o ,b assu nee of co sidera (/ t be gi n exce on cann to o ents re e d before this' da . l 1 I I [ W lC1 L_ . _ _ . . _ . _ _ . . . . . _ __ ___ .c !
1 l / ADDRESS: ' 2.;,it ..itte cr nnt; t: .., % :--+- y at t he en=mi ccion, t l'.5. L uiso. " w i te y Pnmmiccinn U*eh4 ;t- , DC 200;;, f,tt;ntion:
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_ nnroe+4 ; Copiesofcommentsreceivegandthe regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. l FOR FURTHER INFORMATION CONTACT: Janet Lambert, Division of . _ d Luc nonagemenc eno secumm =>.unig, U.S. Nucle r Regulatory Commission, b 992 38 Washington, DC 20555, telephone (301) 4C 700. Q SUPPLEMENTARY INFORMATION: 3MyoAwAh d I. Background II. Legislative Requirements III. Legislative History IV. NRC Approach
' V. Assumptions , i M VI. Tha D - -- " i. :... i
. Rationale for Criteria
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% Finding of No Significant Environmental Impact: Availability I WI. Paperwork Reduction Act Statement
[QI. Regulatory Analysis L% kED. Regulatory Flexibility Certification g g xIv. List of Subjects in 10 CFR Part 62 2
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j i fdM4 bum I. Background !
- The L n - L; . 1 L . .;.; t . . '.l. A ;,li c,, " u r,1..s mL L.t ; f 1^95 (pt gn an w ,n y u 199cs "+ " ^ 2" directs the States to develop their own LLW disposal facilities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new l I
facilities will be available b9 January 1, 1993. The Act establishes procedures and milestones for the selection and l i development of the LLW disposal facilities. The Act also establishes a system of incentives for meeting the milestones, and penalties for
] failing to meet them, which is intended to assure steady progress toward new facility development.
The major incentive offered by the Act is that the States and regional Compacts which meet the milestones will be allowed to continue to use the existing disposal facilities until their own 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 Comissions 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 I i 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 i 3
l 1 consistent with the public health and safetj, 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. H p"crma d tM: ;.reyvmed iwr bt-;un i . i.e m et' . f th t p ocedures,a n iteria tha wil be used-by tSe Commi 1on to
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et ine if em, erd'ency acc g o'a LLW di facility s uld be l - nted. - 7 II. Legislative Requirements In addition to directing the NRC to grant emergency access as discussed in the Background section, the Act further directs NRC to designate the operating LLW disposal facility or facilities where the waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine whether emergency access 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 ac:ess and the State in which the LLW was generated have diligently though unsuccessfully l 4 a t+- n /. I
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 1
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 t require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is p ng this rule to establish l the procedures and criteria that will be used in makirg the required ddL f emergency access ch:Br '=t ' . Since the requisite condition that must 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 I 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 oe controversial. By setting out the procedures and criteria for making emergency access decisions in a rule which reflects public cornent, NRC intends to , - - .y , m 5
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. Mnw.an g *.n e sgpradictability p HRC will be to the decisionmaking nd to help ensure th within the time y the Act. allowed s on bable t emergency access req III.
The legislative history Legislative History of intent that emergency the Act emphasizes th - circumstances access be used only in ver e Congressional provisions of and that it was not the Act. e intend y limited and to be used d rare c successful implementationCongress believed to'ircumvent it waoth by the unsited States of the Act that emergencs importa as an of new LLW Congress believeddisposal . The legislative histor capacity viewed of the development a' that with LLW generators, includi the various management y indicates that ng, for options the waste, the instan example, storage or available to access would be ces unlikely. where there no was ceasing to generate Congress the generators and the S alternative to emergency thus precluding the tates/Compactsexpected that responsib ing emergency access necessity for involving
. ss problems th Federal involvement s Sectiona6 was included te Federal sector i -
a vehi o provide a In developing the , of last resort. mechanism for consistent both with emergency access rule the intent expressed bthe actual c text of Se ti, NRC p tried y Congress on 6 of Section 6. The gency access rule sets regarding decisions madethe Act and 4 serve / to strict requirements for pursuant to encourage potential est requgranting emer-s to seek other 6
. l 4
means for resolving the problems created by denial.of access to LLW dis-posal facilities. The r -_ 1 rule places the burden on the party requesting emergency access to demonstrate that the criteria in the rule have been met and emergency access is needed. Applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their waste. By establishing strict requirements for approving requests for emergency access, NRC intends to reinforce the idea that problems with LLW disposal are to be worked out to the extent practical among the States, and that emergency , access to existing LLW 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 Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to-- I
- ensure that the Compact Commission is avsre of the NRC's grant of emergency access and the terms of the grant,
- allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in Section 6(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
)
with a veto over the NRL'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 i situations. A Compact Commission veto would frustrate.the purpose of the emergency access provision and would be generally contrary-to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void. H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985). IV. NRC Approach 5 % In developing the r -- M 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 establish,ed in 6 g C nicc u a c.
O 10 CFR Part 62 can be implemented within Me 45-da/-p M specified in
. h) 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.
8 _ _ _ - - _ _ - - _ _ - - _ - _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - . - - - . - - - - - - - - - - - - I
l [ l 1
- 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, an.d 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 security.
V. Assumptions. wd tiA d , N E M M D d^40 D #7 th; as y M " I @:'T 2. .^^, Q tie..o. M
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NRC M- " ..c assum '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-ceive of situations where denial of access to disposal 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- 1 tors in a State were denied access to LLW disposal facilities, NRC M 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 I by a particular kind of generator since the need for emergency access would be different in each case. YgpjgdWgh, NRC has also assumed that requests for emer-gency access will not be made for wastes which would otherwise qualify 9
i i for disposal by the Department of Energy (LOE) under the unusual volumes provision of the Act [Section 5(c)(5)]. This means that NRC does not i intend to consider requests for emergency access for wastes generated by l 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. ! l With this space reserved for wastes qualifying for the " unusual volumes i allocation," NRC believes emergency access should be reserved for other 1 l LLW, until the 800,000 cu.ft. allocation is exceeded. ' NRC considered basing its decisions for granting emergency access j solely on quantitative criteria, but decided against that approach. While NRC has identified some of the wastes and the scenarios which would create a need for emergency access, it is unlikely that all possibilities f j can be predicted or anticipated. Largely because of the uncertainty
]
associated with identifying all of the circumstances under which emergency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule -' ;-_,-__ J 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. Qg . ,. 3 P nem] . w
.) - i n 1 2" o-^^^ d Ar+'an VI b l The rule contains Subparts, A, 8, aspi C hese 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
'l I
Subpart A - General Provisions Subpart A contains the purpose and scope of the rule, definitions, ! instructions ~for communications with the Commission, and provisions j 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. 1 request to the Commission for an emergency access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of- , 1985. # _m o_. > l c m
l W. 1b) Gj'.2% W.
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. Specifically, Subpart B requires the submission of information ' i on the need f r access to LLW disposal sites, the quantity and type of material requiring disposal, impacts on health and safety or common I defense and security if emergency access were not granted, and consideration of available alternatives to emergency access. This information will enable the Commission to determi ef C (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 ard distribution of a request for a Commission determination. 11
l 1 It provides for publication in the Federal' Register of a notice of receipt j of a request for emergency access to inform the public that Commission )i action on the request is pending. Even though comment is not required by j the Act or the Administrative Procedure Act, Subpart B provides for a 10-day public comment period on the request for emergency access. 1 In the event that the case' for requesting emergency access is to be based totally or in part on th^e 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 initia1' request for emergency access.
If the request is based entirely on common defense and security concerns, NRC will not proceed with the emergency access evaluation until the - statement of support is submitted. 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 health and safety, will consider: (1) the nature and extent of the radiation hazard that 12 l
R would result from the denial of access. including consideration of. the. standards for radiation. protection containe'd'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'ctivity which is the. subject of the
. i 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'abcve determinations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could I potentially mitigate the need for emergency access. The Commission will y consider whether the person requesting emergency access has considered j i 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 3 l _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - _ - _ _ _ _ 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 i 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 coul g t g h3 cessation or curtailment of essential medical services. paenesas ! M f \ ruleg theCommissionconsider/theimpactonmedicalservicesfromceas-y ing the activity in making its determination that there is a serious and. ; i immediate threat to the public health and safety p. M N e Commission is also concerned as to whether the implemente-tion of other alternatives may have a disru ive effect on essential W a (oD./% & i medical servicgs. The. h irtier = u w r. gerts information on these impacts ii_wv M f e_ C _ ..f n __ ;- : T its overall S I M D P M:_.. a7in --
^.
determination about reasonable alternatives. h According to the procedures set out in Subpart C, the Commission M ' will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request 4 e emergency access will be denied. If the Commission determines that there is a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigated by any alternative, then the Commission will decide which operating non-Federal LLW disposal facility should receive the LLW approved for emergency access disposal. die 14
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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 shouldbe excluded from consideration because: (1) the LLW does not meet the license criteria for the site; I (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the 1 i 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 the designation ' ~ cannot be made on these factors alone, then the Commission will consider J the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the l'
& of &Mth acceeWataad p
waste, and any othe in ormation the Commissio deems necessary. Q r In making a determination regarding a request for an extension of i emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access. In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's 1 policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives. Su.hpad .D - W OEL Os 4' W. N VII. Rationale for Criteria y% g Th messand 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 l S and immediate threat existg to the public health and safety or the common a defense and security is key to NRC's decisions to grant emergency access. i Neither the Act nor its legislative history provide elaboration regarding l Congressional intent for what would constitute "a serious.and immediate threat." (1) To the Public health and safety-- i M i The criteria in the pospuesd rule for determining whether a serious l 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 LLW. Section 52.25(b)(ii) addresses the situation where the threat to public health and safety would result from disruption of the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary emergency access. i tmd -: taw l The criteria in idur W rule for determining whether a serious and immediate threat to the public health and safety exists i: 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 i 1 standards. These consist of the Commission's standards for radiation ] protection in 10 CFR Part 20, any standards on the release of. radioactive J materials to the general environment that are applicable to the facility ] that generated the low level waste, and any other Commission requirements 1 16
1
;l 1
specifically applicable to the facility or activity which is the subject
.i 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
^
safety did not result from a denial of access. In addressing this concern, the Commission will evaluate the request for emergency access in its entirety, i.e. the threat to public health and safety and the alternatives to emergency access that may be available to mitigate that
, threat. In other words, in determining what constitutes a serious and immediate threat to public health and safety, the Commission must consider 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 1
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 i 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, *Ne 17
l yppassd6 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 3 1 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 nnt be disposed of because of denial of access. In this situation, emergency access'may be needed. The Commission would emphasize first, that it is extremely unlikely that a serious and immediate threat to the public health and safety will ever result at the i 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. { 1 If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards, { no serious and immediate threat would exist from the waste itself. This is separate from a finding that a serious and immediate threat to the ! l publicJalth 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 : 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 Commissien believes that grants of 18 1 L________. _ _ _ _ _ _ . . _ _ _ _
l i i l temporary emergency access should be reserved for the most serious threat to public health and safety, and has accordingly established criteria for granting-temporary emergency access that require the consideration of more serious events. For purposes of granting temporary emergency access under Section 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining whether an event at a facility or activity licensed or otherwise regulated i by the Commission is an abnormal occurrence within the purview of Section- i 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 event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and safety. Such an event could include-- 6 Moderate exposure to, or release of, radioactive material; h,, !p. Major degradation of safety related equipment; or C. 4 Major deficiencies in design, construction, use of, or i h management controls for licensed facilities or activities. 1 In deciding whether to grant temporary emergency access, the 1 , 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
l I safety," or to "the common defense and security," realistically NRC 1 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 i believe it necessary to consider D0D and DOE information as part of the decisio king process. 8 NRC considered several approaches for involving 00D 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 tJEC kas cad'4 d-ge defense and security. R 2p; n s that the best way to provide such tc h interaction Hf % 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 i 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 DOE. So while the Commission intends to give the 000 and DOE certifications and recommendations full consideration 20
1
/
[' in evaluating requests for emergency access, the Commission will not j 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 I
#ln0'A consistentwiththepublichealthandsafet. . Ass;igenmand % ~ _' T ,-
j) M to demonstrate that they have
~
requestors for emergency accessp ,' 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 y9b ) 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 i access. These additional alternatives are discussed below. Sectica 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
[Y590-01] (1) To the Public health and safety-- The criteria in this 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 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 used in this rule for determining whether a serious and immediate threat to the public health and safety exists is qualita-tive in nature in order to provide the Commission with the flexibility necessary to consider a wide range of potential factual situations. How-ever, in making this qualitative determination, the criteria require the Corrission to consider several existing quantitative standards. These consist of the Commission's standards for radiation protection in 10 CFP 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 specifically applicable to the facility or activity which is the subject of the emer-gency access request. This latter category would include license provi-sions, orders, and similar requirements. The Congressional concern in enacting Section 6 of the Act was to 3 t ensure that a serious and immediate threat to the public health and ' safety did not result from a denial of access. In addressing this con-cern, the Commission will evaluate the request for emergency access in 17
I
- - .[7590-01]
its entirety, i.e. the threat to public health and safety and the alter-natives to emergency. access that may be available to' mitigate that i threat. In other words, in determining, what constitutes a serious and j immediate threat to public health and safety', the. Commission must con- i sider what threat ~would be unacceptable assuming that'no alternatives are available. In the Commission's judgment, any situation that'would-result in exceeding the occupational dose limits or basic limits of. [ public 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. - 1 The legislative history of Section 6 of the Act does not provide any .i 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 1 l waste is stored, although it is clear that Congress was concerned over the potential radiation hazard that might result at a particular facility j that was denied access to LLW disposal. The Commission does not antici-l l pate any situation where the lack of access would create a serious and immediate threat to the public health and safety. However, in order to be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety'might result, this rule establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Commission would act ) immediately to prevent or mitigste 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 18 l l 1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ . _ _ _ _ _ _ _ . _ . . _ _ _ . _ . _ _ . _ _ . _ . _ . _ . . _ _ . _ _ . _ _ _ . _ _ . _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ ._ __]
[7590-01). ;
. i situation, emergency access may be needed. The Commission would empha-size first, that it is extremely unlikely that a serious.and immediate 1
threat to the public health and safety will ever result at'the genera- ) i tor's facility from the lack of access to a disposal facility, and ; second, if such a' situation' does exist, the Commission will move imme-I diately to eliminate the threat. l
'l.
If the Commission.does receive a request for emergency access based .) on the above circumstances, the Commission will evaluate the nature and-
/
extent of the radiation hazard. If-there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This-is separate from a finding that a serious and immediate threat-to the ; public health and safety would exist if the activity were forced to shut down, j 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 order to grant temporary emergency access, the Commission is not required . to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Commission believes that grants of tempo-rary emergency access should be reserved for the most serious threat to public health and safety, and has accordingly established criteria for granting temporary emergency access that require the consideration of more serious events. For purposes of granting temporary emergency access under Section 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining i 19 i 1
l wh ther an evsnt at a facility or activity licens d or oth:rwise regu- ; lated by the Commission is an abnormal occurrence within the purview of I l Section 208 of the Energy Reorganization Act of 1974. (45 FR 10950, ; i February 24, 1977.) This provision requires the Commission to keep Congress and the public informed of unscheduled incidents or events which the Commission considers significant from the standpoint of public l l health and safety. Under the criteria established in the Commission's j policy statement, an event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to { public health and safety. Such an event could include-- )
- a. Moderate exposure to, or release of, radioactive material;
- b. Major degradation of safety related equipment; or ;
- c. Major deficiencies in design, construction, use of, or 1 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 safety," i 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 I to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those objectives. While NRC ' 20
[7590-D1] 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. NRC has concluded that the best way to provide such interaction is to require that requests filed with NRC for emergency j 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 I 1 for emergency access so the certification can be a part of the actual j petition. 1 Congress deliberately gave the NRC the responsibility for making the i common defense and security determination rather than leaving the deter-mination with D00 or DOE. So while the Commission intends to give the D0D and DOE certifications and recommendations full consideration in evaluating requests for emergency access, the Commission will not treat them as conclusive. (b) Determination on Mitigating Alternatives As directed by Section 6 of the Act, even if a situation exists which poses a serious and immediate threat to the public health and safety or the common defense and security, emergency access is not to be granted if alternatives are available to mitigate the threat in a manner 21 i
[7590-01] ; consistent with the public hesith and safety. Requestors for amergency access are required to demonstrate that they have explored the alterna- ] tives available and that the only course of action remaining is emergency access. Gnly after this has been demonstrated.to NRC will'the Agency ) proceed.with a grant of emergency access. l J 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. 3 of LLW at the site of generation or in a storage facility, (2) obtaining
,q access to a disposal facility by voluntary agreement, (3) purchasing' <
dispotal capacity available for assignment pursuant to Section 5(c)'of. the Act , and (4) ceasing the activities that generate the' LLW. , i Wh:le 6(c)(1)(B) of the Act sets these out as possible alternatives-which a tenerator must consider before requesting emergency access, NRC' has ident ified other possible alternatives to emergency access which .I I should be considered, as appropriate, in any requests for emergency ! access. These additional alternatives are discussed below. ' i 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 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 i 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 1 cubic feet allocated for those purposes. Thus, NRC has taken the posi-tion in this rule that as long as unusual volumes ' disposal capacity is available for LLW which qualifies for such disposal, emergency access 22 ________.____.__m .__... ___
/
/ i
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(* l L.t'- (r/4 A/,w , O fy st f a rap, acad a n ;a a a-a q xamasoral k y *b 7 6 t/ - hh - fc Meg wi issyt) svate /%.ca.e7 opaa, as asac l$ bb ALWLZbffk_h $ &&M l %"WY 0 t p n#r s?d - w:+atshw# aA s. & $ 5s u cae<st t w sa m e,d.w ens cyjhu la> s9 < G i i~ I
4 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 th yespeedd rule that as long as unusual volumes disposal l 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
- Y l
detailed information from the r.. . ~r regarding the decision process leading to a request for emergency access. The requestor will be Y E l expectedto{b) demonstrate that &; in :--M i ;;d all pertinent alterna y anti-to rovide a detailed analysis comparin all of the alternatives p ngne ziC:
)
, _ _ n d .1: demonstrate that W considere;wJh:MLS W Sws +o considera# combining alternatives in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even onatemporarybasis,untilotherarrangementscanbemadej -T1 ;;;aetor_
M s; (4)
=-p- W tc evaluate the costs, economic feasibility, and benefits l
22
to the public health and safety of the potential alternatives, 6-and 1p)- 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 dis'posal facilities would qualify under the-limitations set out in Section 6(h) of the Act. According to th se limitations, a site would be excluded from receiving was e'if (1) the LLW does not meet the license criteria for the site; (2) the _ disposal facility meets or. exceeds its capacity anitations 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 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 k ve%e. of Mcy m m @ nuepd Gad A,. at each site, an any other informati6n that would be necessIry 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 availatie operating, non-Federal or regional LLW disposal facilities. To the extent practicable, NRC intends to rotate the designation of the rece ving site, and, for the three currently i operating facilities, to allocate emergency access disposal in proportion to the volume limitations established in the Act. In most cases,,NRC 23
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 emergency access disposal is large, or if there are other unusual-or i extenuating circumstances, NRC will evaluate the advantages and disadvantages of designating more than one site to receive waste from 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 cbtain this information on a ! continuous basis. l l 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-l priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations provision set forth in the Act. h cASMw It is not clear what options e v55 M N NRCTif 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 I 24 .
reduced in volume to the maximum extent practicable." NRC will evaluate- ; the extent to which volume reduction methods or techniques will i 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 heelth 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 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, pyrophoricity, and explosive potential); condition of current container; potential 10r 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 . l 25
p.
.h k
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s i activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, ef fluent releases, worker - i exposure, and equipment availability); and the administrative controls i which could e app ied. 1 w 5. n aaca;as e yyam we O III. Spect ic quest for Com nts N NRC is terested in rec v g comments on t parts of.the propose rule w re NRC plied its discreti in order to implement th Section 6 prov' ions. NRC specif ly requests comme the ollowing: ( What s enarios ar nvis ned where rgency access-wou- be equired? (2) Wha e the potenti p lems with NRC app at to determinin ni diate and iou threat to the ic ' health and afety? 3) What are t e e.1tial prob ms w
- the arrangement osed for makin, e termination o rious and immedia threat the co on defense a d se rity? (4) hat are th po ntial difficulties with the propose ap oath for design ' g the receiving site? d (5) at shoul NRC do if n site i found o be '
itable fo waste requirin mergency access? is interested fact and recommeruf tions o specifi ays o ,
' \ t be espo ve to t se issues. Wh1 [willconsidera comments on the proposed er ab to respond' o those comment
\e,itwillbebe that re mmend specific solutions to any probleJVraised
_ s by the c menters. >
/
W Requests for Emergency Access Made Prior to the Effective Date of the Rule Wa ._ "h^d"4 LQ Nb,The Commission has tried to l anticipate when the first request,might be made so the final rule would 1 I 1. t >L) Gcit W 26
e Tf ' *f .s "l 3 4& 4Lb O W & ,,
)wlheg4 u )I Y
$lRbQW$"'8'd kn (X. ANALYSIS OF PUBLIC COMMENTS pf
~) /
(j) Q% , The Commission received 1)letterscommentingonthep osed rule. Ten of D3I e rom the governme s
'j I
the comment letters came from concerned citizens,
", of potentially affected States, t fhomlow-l elwastecompacts,twoIrom
' the industry and one from a Nclear bformation rvice.fThemajorcomments I
M iscussed here. Copies of the comment letters and Netailed analysis 'il
) .j t e' comments are available for public inspection and copying for a fee at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C.
,q 20555.
3 In general, commentors expressed support for NRC's issuance of a rule for j Q. Dj its emergency access decisions and indicated changes that would improve it from their perspective. Only one commentor, representing a lobbying group, expressed opposition to the issuance of the rule itself. That commentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage their LLW. NRC was legisla-tively mandated to make emergency access detenninations when the dtates are not otherwise able to manage their LLW. Thus, sinre thophy+" l p.uch-ef 4tre~iangue. E ter+4nn A n# "'r ict, NRC does not consider that the l emergencyaccessruleinterfereswithstates' rights,Mf)C4AIS N Md , enutfhaOSth" 4 0{'4 bd} 9 d S*c t< 5 6 of .2 4 Ecn Clarification of LLW Eligible for Emergency Access By far the most common concern expressed by commentors was that emergency access would be used to force operating non-federal or regional LLW disposal facilities to accept LLW they are either clearly not responsible for under the Act, or have specifically chosen to exclude from their facility. Four-teen of the commentors M almost half of the comments expressed concern that emergency access would be granted to wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, ans krity of the commentors stated that Federal wastes, particularly those generated bg0 00D, or w es that are ; classified as greater,than Class-C, es* Diem % muorC 4 should not & be granted emergency access. Many of the commentors indicated that States and Compacts are not designing their facilities to provide safe disposal for
2 these types of LLWs. Most of the commentors who expressed concern about whichwasteswouldbegrantedemergencyaccesswereconcernedthatLLWs/ detern ined gible for routine disposal disposal under the Act, could beccme- c1 W1e hr disposal atState or regional facilities under the ~ Og eme,rgency access provision. F " " - M M il 3 - @ Y < 1,7 - we g b'/- 9 d ,
% Throughout the development of Part 62, the NRC assumed that its mandate was to k D grant emergency access only to LLW that would otherwise be eligible for
,ph routinedisposalat$tateorregionalLLWdisposalfacilitiesaccordingto 3 the terms and conditions set out in the Act. More specifically, the NRC 1 , ( L believes that only those LLWs designated by Section 3(a)(1) of the Act to be
,\ $g ,
the disposal [ responsibility of the States could be eligible for a grant of k M % emergency access disposal. Under Subsection 3(a)(1)(A), the Statelo are mandated to provide disposal for q 3 commercially generated LLW classifiegA, B and C. They are not required to jI, providedisposalforgreater-than-Class-Chastes. Thus, the NRC would expect to deny any request for emergency access received for greater-than-Class-C N waste. The same is true for the Federally generated LLW which is excluded l E from State disposal responsibility under Section 3 (a)(1)(B). Under that subsection, the States are assigned the responsibility for disposing of "LLW ' generated by the Federal government except that which is owned or generated l by DOE, by the Navy as a result of decommissioning of vessels, or as a result ' of any research, development, testing, or production of any atomic weapons." 1
, NnceLLWgeneratedbytheFederalgovernment[whichdoesnotfallintothese I exclusinary categories / would be eligible for routine LLW disposal, those same Federally generated LLWs would also be eligible for emergency access disposal as well.
The NRC has no intentions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act. However, the j Commission did not state its intentions in the proposed rule. The Commission f assumed that it would be clear that the limitations established in the Act f for routine LLW disposal would also apply for disposal resulting from a grant of emergency access. Apparently, that was not the case. To clarify the j NRC's understanding and intent regarding the scope of wastes which the NRC I t I
i 3 l considers to be potentially eligible for emergency access,'the NRC added a ] new provision, (c) to Section 62.1, " Purpose and Scope" of the final rule. The new provisior states that "The regulations.in this Part apply only to the LLW's which the States have disposal responsibility. for pursuant to
.Section 3(a)(1) of the Act." The NRC believes the addition of this clarifi- i cation to the final rule should resolve any questions regarding a particular LLW's eligibility for emergency access consideration as well as the Commis-sion's intended application f the final rule. l A
Reciprocal Access Several of the commentors pointed out that the proposed rule omitt any reference to, or discussion of, Section 6(F) of the Act, which addresses reciprocal access. Section 6(F) provides that the fagional Compact or'$ tate receiving the emergency access waste is entitled to reciprocal access at any subsequentfacilitythatservestheCompactregionor$tateinwhichthe emergency access waste was generated. It'further provides'that the @ gional 60mpactor$tatethatreceivestheemergencyaccesswasteshalldesignate, for reciprocal access, "an equal volume of Low-level radioactive waste having' similar characteristics to that provided emargency access." Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reci rocal. cess should be addressed l A w ourAt acaxr u w eyed the NRC should broker 4 in the final rule. Most of the commentors, reciprocal access arrangemcats to ensure that reciprocal access will be , I available to a State or Compact whose LLW disposal facility is designated to receive emergency access waste. Several of them emphasized that the recip-rocal access provision of the Act is a significant one that cannot bs ignored in the NRC process of granting emergency access and designating a disposal i facility. They stated that reciprocal access is of particular concern because a receiving .ftate has virtually no leverage or role to play in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. They indicated reciprocity is an integral I part of Section 6 and should be part of the rule. l I r. l
, i 4' One commentor indicated that even if the NRC did not wish to be invaled in brokering the arrangements, it "must ensure that the right.to reciprocal access is recognized and its implications are considered.'.' The commentor indicated that a formal reciprocal access acknowledgement should be extracted fromthefcompacthgion'or(tateinwhichtheemergencyaccesswastewas. generge any determination for granting emergency access is made. They R.'ic;;d that such an acknowledgement should be required by the NRC as part of the contents of a request for emergency access ~ (Section 62.12) and should include some indication of when'the reciprocal access would-be provided. The acknowledgement could then be included as part of the Section 62.22 noti-fication provided to the receiving state and, if appropriate, the 6cmpact Gommission. " The NRC recognizes that the commitment to reciprocal access is an. integral partoftheemergencyaccessprocess,particulaglgorthe$tateswith'the operating LLW disposal facilities designated o receive emergency access waste. Staff considered addressing reciprocal access during the development of t e proposed rule. At that time, theJ RC made a decision not to M '"de hRW giugu&mMWW U any e - " reciprocal access % f u StaTf believed it ; would be inappropriate for the NRC to assume the role of enforcing reciprocal access arrangements. The NRC's mandate under Section 6 is to grant requests . , for emergency access in order to protect the public health and safety and the common defense and security from a serious and .immediate threat.
~~
The NRC reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule. If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain cir-cumstances, actions necessary to protect the public health and safety Gould be delayed or compromised. Thus, the NRC continues to believe that an I enforcement role regarding reciprocal access is inappropriate for the Agency. The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Conrnission's basic man-date to make emer,qency access decisions. The NRC maintains that arranging for reciprocal access in response to grants of emergency access is the responsibility of the $tates and Compacts involved. The NRC believes that
~ ~ -
, R 5
the promise of reciprocal access' desired by the commentors could be secured i during' the 15 day period required by the Act under Section 6(g) for Compact Commission approval: of the NRC's LLW disposal' facility designation. I Compact Approval of Grants of Emergency Access Three of-the commentors representing States or (ompact dbmmissions indicated- t that the NRC had been remiss in not including a provision in.the proposed rule which would require the NRC to seek' approval for its' decision,to grant emergency access from the Compact' Comission of the region in which the designated site is located. The commentors also wanted the rule to state that "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," in l order to establish that Compact Commission approval would be necessary before the NRC's decision would be considered final. The resolution of the issue raised by these comments is fundamental to the successful implementation of-Congressional intent for the emergency access provision of the Act. The basis for these comments is language in Section 6(g) of the Act. It j states that "any grant of access under this Section shall be submitted to the Compact Comission 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 provision has proven to be somewhat cogrgvgrsial because it is open to several interpretations. The interpretation met f.requently j 1
~ used by the States is that Congress intended for the Compact Comission of )
the designated site to have the final say regarding the acceptance of emer-gency access wastes. They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency access determination - essentially that Congress intended the compacts to have the power to veto the NRC's ; decision. The commentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule. While the commentors were correct in noting that the proposed rule did not include a specific mechanism for implementing the Section 6(g) provision of the Amendments Act, the NRC's position on this issue was addressed in the W7 M, Mh pfnAm q& v6 & M.
6 Section 6(g) of the Act deem requiresthe NRC to notify the Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of the Compact.a However, Section 6(g) also requires that the Compact Commission "shall-act'to approve emergency access not later than 15 days after receiving notification from.the NRC." Contrary to what several of the commentors believe, the NRC believes that disapproval is not really an option for the Regional Compact Commission in which the designated emergency access disposal facility would be located. his position is derived from the legislative history for both Section 6 of the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact Act which was passed by Congress as part of the Act. It clear from the legislative history that the basic purgos of the Section 6 emergency access provision is to ensure that sites +het would normally be closed under the Act will be available in emergency situations. A Compact Commission veto : of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework estab-lished in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be condi-tioned 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).] While disapprovafay not be an option under the Act, clearly the Act intended
- the receiving Compact Comission to be fully informed regarding the emergency access decision made by the NRC. The Commission believes 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 provided that the NRC will notify the Compact Comission of the State in which the desig-nated 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 radio-active waste as to source, physical and radiological characteristics, and the minumum 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.
7 In order to further establish its position on this issue, the NRC has made a change to the final rule. New language has been added to 62.22 which states that the Commission will make notification of the final determinat1on in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act." Applicable Terms and Conditions for Emergency Access A number of the commentors expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees,'or taxes prescribed by that facility. Other commentors stated that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. In both cases the commentors wanted assurances incorporatedintotherulethatinmakigemergencyaccesssitedesignation delegations, the NRC would protect the health and safety interests as-wea t ss the financial interests of45%.a eith he disposal facility designated-to receive the LLW, or the person g , ' , emergency access. In addition, they wanted assurances included in the rule that the NRC would consider the fees, taxes, etc. in designating a site to receive any waste granted emergency access. . The NRC's response to these concerns is simple, and is much like the earlier ! l discussion about the response to comments concerning which wastes are
~
eligible for emergency access. As previously stated, the Comission 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). To the I Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive the wastes by the NRC. Section 6(h) states that "No State shall be required to provide emergency access or reciprocal access to any regional disposal facility within its borders for low-level radioactive waste not meeting criteria established by the license or license agreemer.t of such facility....." 1 1
8 l I To assure that the .NRC will designate a site which is suitably matched to the LLW granted emergency access, the NRC included a provision in the proposed q rule which stated 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' Section 62.26, which the NRC will consider before designating a site, the Commission believes Section 62.26 as it appeared in the proposed rule adequately addresses the NRC's responsibility to designate a site which does not preclude "the implementation of any specific regulations, and requirements at the designated disposal facilities."fRegarding fees, taxes ar.d other conditions that several commentors believed the NRC should consider in designating a site, the NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges specifically applicable to emergency access waste and established under Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designation decision. The Commission recognizes the importance of conditions to ensure the implementation of emergency access decisions once they are made by the Com-mission. In response to the comments, the NRC add d a new Section "VIII" i to the Supplementary Information portion of the rule titled, " Terms and Con- !
- ditions for Emergency Access Disposal." It sets out the responsibilities )
regarding the dispostion of emergency access for both the generator of the LLW granted emergency access and the operating disposal site o Tsites which have been designated to receive the waste. The new section reaffirms the NRC's understanding of Congressional intent that whatever conditions or terms normally apply to LLW disposal apply for emergency access, except where specifically stated otherwise in the Act. i Conditions of Termination Four of the commentors suggested the addition of a new section or subsection of the rule to address the conditions under which emergency could be terminated. The Commission agrees that terms and conditions should be established in the l
r . 9 final rule for termination of grants of emergency access. The NRC has added a new Subpart D to the final rule which incorporates soie of the suggested conditions for termination as recommended by the commentors. The Subpart is title, " Compliance with Conditions of Emergency Access; Tennination of l Emergency Access." This new Subpart D is discussed under the VI.(D) of the j Supplementary Information for this rule. It establishes that the operator of the designcted site may refuse emergency access waste if it does not meet the conditions established by the NRC pursuant to this Part. It also e - lishes that the Commission may terminate a grant of emergency access it j determines that emergency access is no longer needed. 4 Response to Specific Request for Comments in the proposed rule, the NRC specifically requested comments on certain parts or assumptions made by the NRC. Under Section VIII of the proposed rule, the NRC expressed an interest in receiving comments on: (1) What scenarious are envisioned where emergency access would be required? (2) What are the potential problems with the NRC's approach to determining an imediate and serious threat to the public health and safety? (3) What are the potential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense , and security? (4) What are the potential difficulties with the proposed approach for designating the receiving site? and
- (5) What should the NRC do if no site is found to be suitable for waste requiring emergency access? 1 Two of the comments specifically addressed this request for comment offering partial responses to some of the es. The comments did not reveal any new perspectives for the NRC to consider so the final rule was not affected 1
by the comments received. In the proposed rule, the NRC specifically requested comments on the initial i regulatory flexibility analysis from small businesses, small organizations, and small jurisdictions in order to determine if the final regulations should f l 1
10 be modified such that less stringent requirements could be imposed on small ] entities while still adequately protecting the public health and safety. i None of the comments received on the proposed rule addressed the impact of 3 the regulation on small entities or the adequacy of the NRC's regulatory f flexibility analysis. As a result, it was not necessary to change the final j rule to accommodate the special needs of small business. l I a0 1 i l l w__-____-__ _
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 e-place will be guided by the criteria and procedures provided in th41s propose rul e.
, w Pa w "
Luf [wFinding a4sg of No Significant Environmental Impact: Availability This h
!f ;d:;t:", "^ p- ,m::d rule wowed establish, criteria and procedures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the common defense and security. For the most part, N%e ; : %:::d rule is an administrative action which serves to codify the criteria and proce-dures in the Ac.t. The adopti n of such implementing procedures and crite-ria by promulgation of a CEE2 rule does not have an environmental effect.
Therefore, the Commission has determined under the National Environ- I mental Policy Act of 1969, as amended, and the Commission's regulations
- in Subpart A of 10 CFR Part 51, that this Respuuud rule, .idundgdesi, t1 tsudal not ty 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 dg321. regulatory analysis prepared for this W regulation. The availability of the aluun regulatory analysis is noted below. 27 __ __ /
l; X$ Paperwork Reduction Act Statement W rule adds information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
-Thh r & " haan e "H it:d ':,, . m ico anu app ;;:' ^* + ha av:r rt r r ,"*r = :r t u T h t S.L ' W Off N Of Y h Cnhd b h % A SI50.Cl43, m.iCM . Regulatory Analysis The Commission has prepared a6 regulatory analysis %
%, h ah The analysis examines the costs and benefits p n ___d regulatio p.
of the alternatives considered by the Commission. The aimede analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. 1.,e m % t S w G >> 3dsttb1%bcd~ N4 Mi
- g %0, M ,^ ,b.c.:aonny , L3oj 99.2 3gys')fy
)@t'T. Reg ry Flexibility Certification NRC is using this F:;:::d rule to implement the statutory requirements for granting emergency access to non-Federal or regional -l 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, %ggenemhga t t,
~
this rule will not have a significant economic impact upon a substantial 4 number of small entities. The gnepusWtl rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small entity. The generators of LLW are nuclear power plants, medical and academic facilities, industrial licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 1' 28
1 these categories, all but the power plants, fuel fabrication facilities, ! and government licensees could potentially include small entities. Although these categories may contain a " substantial number of small entities," the Commission does not believe 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, 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. 9 staa V) The Commission is required to make emergency access determinations, A by if-h. 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 thro h a rule will also benefit small and large IO CCA. A provides guidance to the generator on what generators. r--- information will be required for making requests for emergency access ~
~
and provides an orderly framework for making those requests. Also, the paspused 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 4 29
1 I I part of any process to decide a course of action if necessary access to LLW disposal was not' be available. *~ '
/
= w g he initial recule nr C gy(. 3..-r3_%+A 3 fXe./f w/oi4ud\A//2cp[maikp x t
m'>nts& %y m itplity analy is T *tr^ ' ' " " ^ " - - ' ' ^ - " ' ' - - . . -.m * . (' sses, small g nizat s, and smal] jpt dictions' MJ
\
C. E _ /o^~. to. s iemu aic .- _ _ _ _ .... theg r ulatio s WW , 1 f r vuoc - - --....d m ma E T.lerg
..[ us . s v o . m . v[u oud, t
/L7 ygn;j/less strin nt requir ents go. smal
^
n ities whil Nane st 11 M adequ ly prote i g the publ c heal safety. Tl.a'gf44 -' dult addussed gh j cn whicN Of e of fhL /Lif' M'h.n'(ties fe' F'-^nts! 0" hed th; regUiai, ion cg' id DTe 'M modif Ted to, ta b;
,dW'fif dn4he-difMerp8 N N' >> ^'^ of itC '.s A e nde =J1/ccup d emalPentiter- M4%"udaiTy uld spe
~~' ' ' d , . ^: = ! : ' ^U=' - :LLL ^
d A Ass uf yM Uo inel it^ =. 3
'iscus , Y W % W CAA*F & M/ggd g O / !
Ihej size of tne r ou arress enu nun the .ropo d regulations y) (a) jwouldres t in si 'a conomic bur t[pnthemascomparedto p large rganizationssin t e same business,com t. -
/b) How the prop ed regulationsIoulddified be! to ,taIe int 6
/ \ / q ac.unttheirdifferngnedsorca[abilitiep.j f / -
'm / / /
/
(c) The/ bene its that oul'd accrue, r the detr 'ents that w uld i
/ / / / '
be av ided/'if he proposed,re lations ere modif ed as gges ed by the I
/ / i 1 comment
[ j l ow the propo' sed regulati f s,/as modified, would ore losely
)/
1 qualiz9theimpactofNRCregulat'/ ons r create more ep 1 access t ' ' he ben /efi,ts o federal programs s / / special van- I oppos to providin I aget to' any ,i'ndi iduals or greJps. j/' ,( ) s w the p oposed te ulations, as modified, would s 11
/ f
sde'quately protect the pub'li health and safety. 30
The comments should be sent-t the Secretary of the Commission, U.S. l Nuclear Regulatory Comgitsion, Washi
/ ton,JP 55, Attent* n: Docke -
I / [gand Servige Branyh.
>e W
f h'% N p. List of Subjects in 10 CFR Part 62
@AdministratvePracticeandProcedure, ow-Level Radioactive Waste uclear Materials LW Treatment and Disposal, mergency Access to Low-Level Waste " Disposal, Low-Level Radioactive Waste Policy Amendments Act of 1985 enial n of Access.
i 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 ad Su.s. c. ss.3 . of 1974, as amended and the Low-Level Radioactive Waste Policy Amend-N iku A)2C ca. Q++L r ments Act of 1985, net':: i: h--+y 0 4 uan i:: cf a new 10 CFR Pa rt 62 4 -- ~"+ -" i = *
- 1. ew Par e F TM Subpart A - General Provisions j Section: ,
l' 6
2.1 Purpose and Scope
~
62.2 Definitions , 62.3 Communications. l 62.4 Interpretations,
~
62.h Information Collection Requirements : OM af% 62 [ Specific Exemptions , , l'k 0 l l l 31 l
i
'q l
Subpart B - Request for a Commission Determination i l 62.11 Filing and distribution of a determination request.-
]
62.12 Contents of a request for emergency access: General information , 62.13 Contents of a request for emergency access: Alternatives, 62.14 Contents of a request for an extension of emergency access, 62.15 Additional information, 62.16 Withdrawal of a determination request , 62.17 Elimination of repetition , 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, 7 l # / 62.26 Criteria for designating a disposal facility * . l / _ "' _ ; * - % nr.i2 # w O 5 % 7 Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950,
-- - 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, i 1 l 99 Stat. 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, i 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f).
i 1
. i
" ~
1 w; rw % % '~ - , 3/ 32
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 emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a State that is not a memoer 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. Q) h ' ens cN h y a f Q ^ f ,b $N
? o O @ Mhr) y" SklA). pwk 24' ^'[m" # 3 6A) Fym aa&#'"
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 Act of 1985.
" Compact Commission" means the regional commission, committee, or board established in a Compact to administer such Compact.
" Emergency Access" means access to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days, which is granted by NRC to a generator of low-level radioactive waste who has been denied the use of those facilities.
" Extension of Emergency Access" means an extension of the access that had been previously granted by NRC to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
" 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 I State.
)
" Regional Disposal Facility" means a non-Federal low-level radio-active waste disposal facility in operation on January 1, 1985, or .
U subsequently established and operated under a Compact. v y, paw wmm q nuasMhrM . 1 g gg gw34 +o h 4
.g g g g~,...nu mm W A, N - -- m,
W (o2. /(.c) W p h D'y*'d u 16f'
" Person" means any indiv dual, corporation, partnership, firm, association, trust, State, p blic or private institution, group or S
agency who is an NRC or NRC Agreement State licensed, generator.of,.
. _7. . - . . j low-levelradioactivewast{;anyGoverno,r(orforany" State"withouta Governor, the chief executive officer of the " State") on.be, half of an VRC cri Al#
# 5g g enerator or generatoq_of low-leve,1g ad,ioactive,,wasteh ocated in his or ,u 2j h.
, g % ~;_ 7,- w -
. , . -. . . . . . g m e, ycm - #- ,
) -
her " State"; or their duly authorized representative, legal successor or . l agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's --
l
% eSyniwd., cen' (.4E) discretion upon determining that access is necessary i -_ - ef an immediate and serious threat to the public health and safety or the common defense and security. Such access expires 45-days after the grantingMcw k M -
S 62.3 Communications. - Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-
~ ~
tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, or may be delivered in person to the Commission'J offices at 1717 H Street NW., Washington, DC, 11555 Rodddh. Pg t'odew&,/1 , or ?= D;n. ^x =, "2u-> mb g rf d S 62.4 Interpretations. Except as specifically authorized by the Commissicn in writing, no interpretation of the meaning of the regulations in this part by any 1 35
l l officer or employee of the Commission other than a written interpreta- q tion by the General Counsel will be considered binding'on the Commission.- S 62. 'Information collection requirements! ON 8 dff**A* nta informaponcolectinrequirements- I to th aperwork Reduc' tion Act of 350 980'( 'U.o 1 $ta <
/res/ .
The Nuclear Regulatory Commission has submitted the information. i 1 { 4 collection requirements contain n this part t Of Marggg ment and Budget (OMB) for(review and) approval of tDLpaperworm OH,2 la.s 9 f % b @'
- Q b Ig!fgb3 f [ 4 4 AA A . C. '3SDI W d Af M .). p.d-M tai, W thu.w.LA 3 ISD - ot V 3, S 62. 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 determinas is authorized by law and will not endanger life or property or the common defense and security and is otherwite in the public interest. k
~~
- Subpart B--Request for a Commission Determination 1
i S 62.11 Filing and distribution of a determination request. 'I 1 (a) The person submitting a request for a Commission determina- 1 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 I to the appropriate Regional Administrator at the address specified in f 36
.j
l l Appendix D to FWt 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 i notice acknowledging receipt of the' request and asking that public comment on the request is submitted within 10 days of the date of tre notice. A copy of the request will be made available for: inspection in the Commission's Public Document Room, 1717 Street NW., Washington, DC,-
@ Jf and in the Local Public Document Room 4 the facility submitting the request. The Secretary of the Commission will also transmit a copy of.
s www the request to the U.S.. Department of EnerLy, to ,4thegvernor of the State' where the waste is generateo', to the States with operating non-A ^ Federal low-level radioactive waste disposal facilities, aat to the Compact Commissions with operating regional low-level radioactive waste disposal facilities a~dN 42/N8*/xSh 1 W AA g e Q R Mynu (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 9 170.31 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 { I regional LLW disposal facilities, the Commission may suspend the ! a processing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress. j l 1 i l J 37 ! l I j
U.
} g662.12 Contents of a request for emergency access: General
% Information. i
'N A request for a Commission determination under this part must include
- g' I4 the following information for each generator to which the request applies
'y f,ff Y (a) Name and address of the person making the request;
{ (b) Name and address of the person (s) or company (ies) generating
\
g i[ the low-level radioactive waste for which the determination is sought; d The low-level waste generation facility (ies) producing the 3 waste for which the request is being made; e h' t (#[ A description of the activity that generated the waste;
.fjef Name of the disposal facility or facilities which had been D.b. receiving the waste stream of concern before the generator was denied 1 access; h % A description of the low-level radioactive waste for which I [ i, emergency access is requested, including:
%c . ) 3, (1) The characteristics and composition of the waste, including, 3 but not limited to-- (i) type of waste (e.g. solidified oil, scintillation fiuid, ' 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; I 38
1 (2) The radiological characteristics of the waste such as-- 1 (1). 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) distribut. ion 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 Srte)
& apL.
.k.,ete (the threat to the public health and safety or.the common defense and security; (4) The time duration'for_which emergency access is requested (not to exceed 180 days);
(5) Type of disposal container or packaging (55_ gallon drum, box, liner, etc.); and (6) Description of the volume reduction and waste minimization techniques applied to the waste which assure that it is reduced to the
- maximum extent practicable, and the actual _ reduction in volume that occurred;
~ ~
) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial of access to existing-low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat-ing the serious and immediate threat to the public health and safety or , the common defense and security, including the date when the need for emergency access was identified; q l 39
1 I (3) A chronology and description of the actions taken by the person requesting emergency access to prevent the need for making such a ) J 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 waste on the public health l and safety or the common defense and security if emergency access is not granted, and the basis for concluding that these impacts constitute a. serious and immediate threat to the public health and safety or the l d common defense and security. The impacts to the public health and safety or the common defense and security if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; - (5) Other consequences if emergency access is not granted; I (/) 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;
.)
% Documentation certifying that access has been denied; hDocumentationthatthewasteforwhichemergencyaccessis requested could not otherwise qualify for disposal pursuant to the
-' ~ Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simultaneously under consideration by the Department of Energy (DOE) for access through the unusual volumes allocation; 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
8 - u - 3 . a --
,~ wyj f n m/ u.cJ
~
ah &*s NQ
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Date by which access is required;g \ - Any other information which the Commission should consider ing making its determination. L S 62.13 Contents of a request for emergency access: alternatives.
- (a) A request for emergency access under this part must include information on alternatives to emergency access. , The requep-denM -
includeadiscussionoftheconsiderationgiven(tEUfalternltives, 9 including, but not limited to, the following: (1) storage of low-level - C#
- radioactive waste at the site of generation; (2) storage of low-level radioactive waste in a licensed storage facility; (3) obtaining access w)
, to a disposal facility by voluntary agreement; (4) purchasin dispo E capacity available for assignment pursuant to the Act; reque ing b disposal at a Federal low-level radioactive waste disposal f,apWtv irt p ,,,- m
, )N7&
the case of a Federal or defense related generator of LLWf, reducinT 7. the volume of the wap ^ D) p' ceasing activities that generate ow-level A* r radioactive waste; (9I P-Mwih-J- '-
^ -WA . g #'
other alternatives identified un' der ( s ) ..- t Subpart (b) of this Section. 3 h) L
> X.4 (b) The request must identify all of the alternatives to ergency 4 f s [ access conside^ k_Eh:' 4 DJ=91~4a+,nn "y:-%Irp M +" :'.,L p be: 1 r egg,
. _ __to 6 (
b idgtif3 ty sm;qf,__:, w O'9#%*ified in p,aragraph (a) of thg~g4j ' ' r not spec 3 section. ass m w w The request should also include a description of the factors I f 8 f 3 that were considered in identify 4ng and evaluating F - s : -5, a X LW)- chronology of actions taken to identify and implement alternatives during the process, and a discussion of any actions that were considered, but ! I not implemented. l 6 , N. - 8;' 41
(c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public h k >
'S health and safety or the common defense and security posed by lack of 3
f b access to disposal; (2) the adverse effects on public health and safety h ' and the common defense and security, if any, of implementing each alter-g- D native, including the curtailment or cessation of any essential services l r affecting the public health and safety or the common defense and secu-
's U rity; (3) the technical and economic feasibility of each alternative b including the person's financial capability to implement the alterna-
! s 4 tives; (4) any other pertinent societal costs and benefits (5) impacts to the environment; (6) any legal impediments to implementation of each alternative including cW MS w% h6hether^-the' 'alternatives will comply': with appli-
, . . _. w,
} Q_ __ :; . ,7 , . . ' ,, J
\ cable NRC ^ regulc tory requirements; and (7) the time required to develop _Th
^ gg-4 i and implement each alternative. L-he request must include the basis for: Ad (d) (1) rejecting each 3
gg" a,ternative; and (2) concluding that no alternative is available. 4% . S 62.14 Contents of a request for an extension of emergency access. A request for an extension of emergency access must include. , ~ '
~
(a) Updates of the information required in S 62.12 and S 62.13; and (b) Documentation that the generator of the low-level radioactive waste granted emergency access and the State in which the low-level radioactive waste was generated have diligently, though unsuccessfully, ! acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include: (1) an identification of additional alternatives that have been evaluated during the period of the ; 42 1
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-tien 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. S 62.16 Withdrawal of a determination request. (a) A person may withdraw a request for a Commission determination under this part witnout 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. I S 62.17 Elimination of repetition. l In any request under this part, the person making the request may incorporate by reference information contained in a previous application, 4 43 1
I Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific. i j
$ 62.18 Denial of request.
If a request for a determination is based on circumstances that . are too remote and speculative to allow an informed determination, the Commission may deny the request. Subpart C--Issuance of a Commission Determination S 62.21 Determination for granting emergency access. (a) Not later than (45) days after the receipt of a request for a Commission determination under this part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or genera-N - ! tors located in his or her State, the Commission shall gr _ it e n- V h4IAv. mk ti u. ,, 2 = (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 j 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 guided by the criteria set forth in S 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 i LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical + I and radiological characteristics, and the minimum vol me ano duration ! 491 5 (not to exceed 180 days) necessary to 2'l:..atc mmediate threat to 1 4 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 determination. (a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of the final determination in Jo writing, to the person making the request,3the Governor of the State in which the low-level radioactive waste requiring emergency access was b generated,a(ftheGovernoroftheStateinwhichthedesignateddis- p posal faci ty ted and,ifjertinent, r ria Cgmpact . Commissions.cf the ' m l deterd natier. For the Governor of the State g in which the desigriated disposal facility is located and for the appro- (-Ef g priate Compact Commission, the notification must set forth the reasons i { 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 l 1 alleviate the immediate and serious threat to public health and safety or l e common defense and secur 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-3 gent State and generator action during the period of the initial grant. m " w s .- - - sasu n 1 M
"M n,b M ..;~ &wm.ruwach a dA m & w $ 4' ' &
l
h [TemM i C> l
) e Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination) 4
)
{ The Secretary of the Commission will make a copy of the final 1 determination available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC. . IS k I g-. . j S 62.23 Determination for granting temporary emergency access. /w f (a) The Commission may gra,nt tem ora emergency access to d1 M'fMS- i an appropriate non-Federal , disposal facility or facilities provided that the determination required under S 62.21(a)(1) is made; (b) the notification procedures under 6 62.22 are complied with; j 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 l 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-l 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 1 - - - - - - - - - - - - - - - - - - - - - - - - i
(3) the generator of low-level waste and the State have diligently-though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access. (b) After making a determination pursuant to paragraph (a) of this aM section, the requirements specified.in SS 62.21(c) & _ g, and 62.22, must be followed. - j_ 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, 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 specif-ically applicable to the facility or activity which is the subject of the emergency access request; 47
l I l (ii) the extent to which essential services affecting the public 1 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 - ; I contained in the Commission's Policy Statement for determining whether an j event at a facility or activity licensed or otherwise regulated by the 1 Commission is an abnormal occurrence within the purview of Section 208 of
]
the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.) - (d) In making the determination that a serious and immediate threat to the common defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in 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, l (2) whether the lack of access to a disposal site would result in a l l significant disruption in that activity that would seriously threaten the common defense and security. The Commission will consider the views - l 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. (e) In making the determination required by 6 62.21(a)(2), the Commission will consider whether the person submitting the request:
& Lushn%d
- T.
M M ((w &+*fry gj 1 (1) has Aemnne+ Med +hmt a nonri f ait h 4f fnet vae made tn 4 den a> a+ -
.ms that could mitigate the need for emergency access; 48
__.______.-._._--______----__------------------a
1 1 (2) has considered all pertinent factors in its evaluation of alterna- j 1 tives including state-of-the-art technology and impacts on.public health and safety. J (f) In making the determination required by S 62.21(a)(2), the 1 1 Commission will consider implementation of an alternative to be unreason- l able if (1) it adversely affect: 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 ser_ vices, 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 j applicable State or local laws or Federal laws and regulations; or (5) it cannot be implemented in a timely manner. l (g) The Commission shall make an affirmative determination under S 62.21(a) only if all of the alternatives that were considered are found to be unreasonable. (h) In making a determination regarding temporary emergency access under S 62.23, the criteria in parts (a) and (b) of that section shall apply. (i) In making a determination regarding an extension of emergency access under S 62.24, the Commission shall consider whether the person making 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 -- J disposal under this part has been reduced in volume to the maximum extent d practicable using available technology. 49
1 6 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 capacity; or (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 percent of the total volume of low-level radioactive waste accepted for disposal at the facility during the previous calendar year. (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: i (1) type of waste M di CIO444D4 57th S IM *0 (2) previous disposal practices, (3) transportation, i (4) radiological effects, l (5) site capability for handling waste, W ( ~) any other considerations deemed appropriate by the Commission. 0)hksS f %MUWY a 4 y u.a m % u.a s p a w a p d M (4
- - _ - - - - - - - - l
(d) The Commission, in making its designation, will also consioes&A any information submitted by the operating non-Federal or regional LLW disposal r,ites, 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 \ c# % / r lo L Nb , 1967. 9
/ ated at u tangwnDC, this day of
' For the Nuclear Regulatory Commission.
'l9 ( c '/ & V
/
i ; y l [ [ // [ Samuel J. Chilk, Secretary of the Commission.
\
v s l{, ! i o' 1
\
gtd b b5 2.M15 # Sa6M d Q Ows ; b"A "I M"$ GR <31 G*~Y Q i 'Mtff"l: The operator of a regionak disposal f acil.ity or a non-federal
/
[ disposal facility designated by the Comission 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 Corsaission pursuant to this Part.
@ The Commission terminate e grant of emergency access when emergency access is no longer necessary -e eliminate an immediate threat to public health and safety or the commor. tfense and security.
'~
qa . nc L O: CGWMM ~ as
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&y "QW4 a u 1 + tw.
Part 62 Comment Analysis O B. Responses to Individual Comments: C A M .th O . 1 I WI B.1 Comment Letter #1 -- W. Clough Toppas, Dept. of Human Services, Maine I m yceAd' gh Comment 1.1
- 1. The premise for granting emergency access is sound and takes into j account a variety of factors to include some initial oversight actions.
We are not in opposition to the proposal. I i RESPONSE: No response necessary. I i Comment 1.2
- 2. The proposed rules (e.g., 962.26) should' include a small subsection j stating "...the designation of a disposal facility pursuant to 662.21 i shall not preclude the implementation of any specific conditions, regulations, requirements, fees or taxes prescribed by that disposal i 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 !
)
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 l 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 '----- y , _ ..~ .t for the facility [62.26(b)(1)]. The license o d '~ ::: :;.._: :,ts incorporatejthe regulations and requirements that affect each particular facility. Taken with the other information in 62.26 which the NRC will
dU es Section site, the Comission believponsibility regulations, to designate iga i consider before designat n ly addresses the NRC'S present 62.26 as proposed adequate ities," , which does not preclude "the implemdesignated disposa a site and requirements at the taxes and conditions" as items The Commission does
%(h comment also lists " fees, NRC in making Ns which NRC should geComm intiondesignating a site.can or should be consider ion j of emergency tion d has responded D not agree ethat its ihtAe such informasite W designa adn;inis&aseste importanc are ,
access decisions once theycomment sets by out addinthe ' The new Section facility operator nts ' to that part of hisfNaenjTncr a and gs# the disposal (See yalso responses t [JonMf(@ities of the generator n ved. N'H ,
/
responsibil emergency' access has [A s'T" i, i ofces.5, s'.4 and 9.1.) EufD V kWa :' W Erkzk M t s As p em
?
a h I d+
)
1 I
~ ~ - ~ - - ~ _ _ _ _ _ _ ~ ~ ~ ~ ~ ~ ~ ~ - - - - - - _ _ _ _ _ _ _ . _ _ _ - ~ - ~ - - - - - _ _ _ _ -.
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 (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 i responsibility of the States, would be. eligible for disposal pursuant to l the emergency access provision. UnderSection3(a)(1)(A),theStates are assigned the responsibility for disposing of commercially generated i LLW, and under Secticn 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 00E, 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 governmentthatdoesnotfallintotheabovecategoriesisMigiblefor disposal at the State jo C pact LLW disposal facilities, those same Federally generated LLWs are 4 eligible for emergency access. To clarify the NRC's intent regarding the scope of wastes which will qualif f g g ep ency access, NRC has added > '" * ^ ^ Sect on .62.1 ' Purpose and Scope s " - w w. . . . , . - . Nib_ _ . . " '.". .. =M_ v D Yofu ther elaboration on this sub.iect, see the response to Commenh5.6[*' , k ~
/ @ Yp h M 'S ):0f 4.p SMtL'. alt b Al f / h Se.<hh 3 ( ) (c) y ;tio Otf.
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 , 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 l
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 ,em L = i, 0. r e mu ila- ; g y
- T e-
- fPa. (See also discussion in the response to Comeng 5J,) /
Coment 2.3
- 3. If States choose to " store" rather 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). h ly ency access [ can only be granted to :thsee facilities g__ p r!!t permanent isolation of low-level radioactive waste. Facilities developed by States to g e LLW would not, by definition, qualify and would automatically be precluded I fromconsiderationbyNRCassitestoyeceiveemergencyaccesswastes. (See also the responses to Comments 3.3, and10.6.) 9 ft f W e a b $5 f y n -JweludbasfA saze:t (~ J - . k fmfa 4. W i^ f ASsM N et, as 9 -s & ya ds aa.e,y?ampw:~ p g eu4- . ps ma , i l 1 - . _ _ _ _ _ _ _ - _ - - _ _ _ _ _ . _ _ . - _ _ _ _ _ _ . _ _ _ _ _ _ - _ _ - --- -___m_____-__ ..__
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 comercial waste, this i> the only type of waste that should be eligible for Emergency Access. The rule should clearly prohibit federal waste, example - waste i i
from the Departments of Energy or Defense,
./ ./
I 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 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 8 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, l NRC should never force waste to go to those sites.
2.3, NRC cann [ legally desi ate RESPONSE: /s discus 7s d under come anything/ut a fac ity designe or permanant i lation of LLW o is rule, and arsuant to recejiewastegrantedemerge p y access under Section 6 of,Ahe Act. (S also the resp ses to 8.4 and 0.5). J , ( k ,1cs pt m .5n.f h W .S 2. 3 , 9. 5 , + / O.,$) 1
6 B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Commission 1 I Comment 4.1 j I Page 47580 of the Federal Register Notice states that the Nuclear Regulatory i? Commission's (NRC) approach in developing the rule was intended to, l "1. Assure that all of the principal provisions of Section 6 of the Act are l 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 i_ l facility that serves the compact region or state in which the emergency j access waste was generated. It further provides that the regional compact or l state that receives the emergency access waste shall designate, for l
= reciprocal access, "an equal volume of low-level radioactive waste having i similar characteristics to that provided emergency access."
While the NRC may not wish to be involved in these arrangements, it must 0 ensure that the right to reciprocal access is recognized and its implications are considered. A fomal 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 requestforemergencyaccess(Section62.12)andshouldincludesome hf y d indication of when the reciprocal access would be provided. Theacknowledge-@ ! ment could then be included as part of the Section 62.22 notification provided to the receiving stat d f , h m ission adg & W & -f> w TSo!!% % 1 RESPONSE:fNRCmadeadeciion ot to include any erence to reciprocal access in t proposed rule. Staff believe/ that assuring reciprocal I access E!s [beyond the scope of NRC's mandate to g
/ emer access in order to protect the public health and safe,tyj NRC I believegthatarrangingforreciprocalaccessinresponsetograntsof emergency access is tg responsibility of the States and Compacts involved h
[* The NR s:ssti.beisevey an enforcement role regarding reciprocal access
-t3 y*/
4 J J L2xd
7
.1 is inappropriate for the Agency. ne-er:r,-' m O k t ..;;r.t7 sd :thers ~
" h: it, =0 . e m ntins rnuP- c::-- ' t:r.t n - ntp. ec sp4+.4e d '
indissid [-ift Of the 4 Iwy =CcES5 FGCe53,9Tfd~as aud Evuldie-L
' // '/
a g "Z d_ p ierL 62. e olloWiAg'/Ch4MgeS46Vij : ....uc w rno N el rule irr respordg4 t'his nt:
- A ne n);ha G dded to 62.12 A al' ekn ment'of re/kprocala'cces,sfro y the State nd '
th a pr pr e Co act j Comission pr ising rec rocal ; cess for a equal va ume LLW l havir3g simi) characteris ic[to t t.reguirigemergecy'acess,.
"' 1 and ndicating an approximat date wh n t woul be a i bit
- /l i
f - A new entence (u der ined) has been adde to 62 (a)-
.(not-
\ l f to ce 180 days necessary to eviate e'i diate a d seioustreatto/th public heal and safet r he c on fense an security. 'It should als include a fo alpabise-f reciprocat/ access fok an eqdal voluh ofdLW hyvinMi[nilar characteristics h that kequi[ing emerge Yy accesh fromithe
} f State and[or approp M Comdact Commis_sion M sting e ency-access / For the Governor of i ....
cw / / / / ) / , (See also ret r H o 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 q there would be any limitations (e.g., timing, license restrictions, etc.) on d< the ability of the facility that serves the compact regien or state in which j 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:--IP rs=pa t: t; Ce....,c.m i.1 and s w a'r' M r c:--- rte, NR6=has~ dec u . s E4;;h'- =t r :Mdr'_vwipm:h:2 e=5;gaLameh-r ;5.' forNJefferiir . C;=,Asstatedintheresponseto Coment 4.1, NRC will not be involved in brokering reciprocal access arrangements, as would be required if NRC were to carry out the , 1 I -_____________.._.___________.__________________.-_____m. _ _ . _ _ O
8 determination requested by this comment. S)oc there are limita io estabbish g ortherujea to whenfree rocal c e's ithyr in t e Acg*t would bekely i de'd .,an sin e' un /that d termin6ti s i mpitbeprf ,/ /
/ / \
made by41RC a /the im em gency j access s granted w 1b app ica e i
/
at hIthrecip cdacess ay be u d, o chang was, ade o e 1 rille in re nse t is commen . See Comm n 4.1) b ; Comment 4.3 l 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. J v' 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 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: pr uvTdid L.fi 7 Sur- .:) Esd s'Tc 'l -
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.
~l / !
RESPONSE: (See responses to Comments 4.1 and 4.2) l l _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . I
hYor te. h WTd 4 4 p Section 6(h) of designation of athe Act places certain limitations on the facility In addition, the Commissionto receive emergency access Waste. criteria in has specified other designation proposed 10 CFR 60.26, including "any other considerations deemed appropriate by Commission believes that these cover the Commission." The the primary considerations of concern, and therefore, has not specified " potential liability obstacles" in the rule as a factor in making emergency obstacle access decisions. However. any potential liability decision-makingthat on might a affect the Commission's emergency access particular request could be brought to the Commission's specific attention request. through the public comment proc ess on a I 1 1 I ]
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
,#h J"
volume and characteristics of emergency access waste previously accepted. 49 N %W4 A YM'# ' RESPONSE: In the proposed rule, NRC inte, ed that z pr t ;:tt;r n ef W P :t 9 ; ...~, g.mf ;;.. ., _ e+s be considered in the process , l of designating a site. This is evidenced b lan in the "Designa- / I LA / tion of Site" discussion in the w 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 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 coment as the new proyJsion identified I as 62.26(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.
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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 iminent 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 o# the Amendments Act. RESPONSE: No response is necessary.3: ..: .:._ tie comment es nti i reiterates the rationale rdevelopi$gJ 5 resented by NRC in the p- 'p _ . _ _ a rule for emergency accessy 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, however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such agree ents would be consistent with the intent of Congress and should help to q T
Lj 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. 40 Y
/ W1 RESFONSE: en%-i?-5.7W,ethetic te tM metivetier. behind4his e ent.
h H e Commission does not believe it would be appropriate for NRC [ l to expressly encourage States and Compacts to enter into cooperative ! agreements for emergency access in the regulatory text of Fart 62. ,fx 0 f i f all were tq provi e such yeenc uragement i , e ' regu ator text f thp fule, u , wouJd4easspmin e role ad ocat igrd
~
h agree e f( While (onoress o clearly hapid t ates/ColapJcti E Qo Dts-}I2C- h A v_e e_ s hb !
) O Cfd f&
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M fhtf 0 GM l _ - G2_- D-_- 4 k2s d* Le A ,
1 l 11 i L) Y k y 4 cltk1 gc~5~boL J W % %AM/Qg 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-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 rrquests for emergency access. The Commis ion belieyes th - proposed rule which includes a discussion in the-pesamtale Nstates (p) 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 j 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: l'M k "'C i: ppthetic ---te t'c motivation hahind this i i cwooeit. the Comuission uves not believe thet--the subject stetement __.wev1d be apprepriete tii the cudified 6,.t ef the rak. Part 62 contains only the criteria and procedures to be used by the Commission in considering
- i .
i. 4 12 l l 1 requests for emergency access. The Commission believes thatNa procedures and criteria in the proposed rule establish suffk yatly 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) c tne Amendments Act, which pertain to reciprocal access. IDNS ; recommends tnat 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 equal ccess." ;
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RESPONSE: (See response to Comments 4.1 and 4.2) /
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Comment 5.5 g The proposed rule does not address the issue of disposal fees for wastes ( disposed of under an emergency access determination. The obligation of a , [ 5 tate or Compact to accept wastes grnated H~rgency access should be con-ditioned upon the applicant's payment of dispos 610 s 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 _
/0 access waste under the provisions of the Act new S_ection-915[9-
" Terms and Conditions f Emergency Access asbeenaddedtothelfinal rule that addresses such obligations. (Alsoseetheresponse>forCommentsy 1.2 (q &9.I)
Comment 5.6
13 For 662.2 The definition of Low-Level Radioactive Waste is incorrect. purposes of emergen:y 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:
" Low-Level Radioactive Waste," (LLW) m;ans 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 section 61.55 of Yitle 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 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 Fomerly 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 radioacthe l waste." IDNS objects to any attempt, whether deliberate or inadvertent. l to place additional burdens on the states in contravention of express j 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 ?bove Class C, or FUSRAF wastes. IDNS also notes that providing disposal capacity for i naturally-occurring and accelerator-produced materials is not the j states' responsibility under the Amendments Act, and that the NRC has no ! authority under the Atomic Energy Act to include' these materials in any l definition of low-level radioactive waste. l RESPONSE: The definition that appears in the proposed rule is e5& j inyp' " " the same definition for LLW which appears in the Act 1 4 l l
14 q W
- itsel ._A,1thouggt,hgNRC does not agree that the definition of low-level wastes g 6ou17bechanged,NRCdoesagreethatthequalificationjonthe 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 j that specifies' the subclass of LLW for which the states were given AbNh Gr-9. 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 Secti of the A,ct. NRC g p this assurance in thefinalrulebyg g _"~- 'M ""+ T ection "62.1 - Furpose and Scope ," c " :; - m wwn 6 "M ;.;pti==" dM :r-; ion-Me
-.3ignaalde. (See also Comme 11t3D4 l}./ M 2,2. N @ O l
Comment 5.7 1 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
]
commercial disposal facilities will continue to operate, and states and I compacts are required to establish new disposal capacity, there is no j j provision in the Amendments Act for establishing new disposal facilities for l waste that is a federal responsibility. In the Supplementary Information l section of its Federal Register notice, the NRC states that the emergency ! access provision was "not intended to be used to circumvent other provisions oftheAct."(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 coicidered or granted. As the House Energy l 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 D00 was expressly considered and rejected by Congress. The NRC should abide by
I s 15 that decision and the express language of the Amendments Act in promulgating q this rule. RESPONSE: NRC plans to use the criteria in Sections 3(a)(1)(A) and (B) l oftheActtodeterminewhatwastescouldbeeligibleforemeyency r access disposal. (AlsoseeresponsestoComments2G,2.2,5.6,and \
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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:v4*The AA de nit, f.til.w. TEM 1--J for " temporary emergency access" is the pr cise language used to describe temporary emergency access in Section 6( ) 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. fin.a1 rule t match the ! language of the Act and the comment. In db N sdM k uzi.AdJ'gy)&y. 93cFsutzwd 14
- M ND M 4 b +a c>a n2 43tw .p apag) l
i 16 l Comment 5.9 I 662.12 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." I and redesignated the proposed subsection (c), and following subsections, as l appropriate. This will help assure that no state will be asked to dispose of l waste that is not a state responsibility under the Amendments Act. l RESPONSE: A new subsectg s ge g added to 62.12 which reads
" certification that the metscia.1 giger ncy g s g ested s
s is ' low-level radioactive waste' Cft:!O . L.^; . .. .. b N' " - - 1ssmr designated as appropriate. Comment 5.10 562.12(f)(3)shouldbemodifiedasfollows:
"(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 '
j made to the final rule. (See also Comment 5.8)
'hj l
l Comment 5.11 662.12 Add a new 562.12(k) as follows: b
"(k) A description of how granting emergency access would eliminate an immediate and serious threat to the public health and safety or the ,
U) ' common defense and security." . RESFONSE: Adding the recommended provision would be redundant. If @ hh @ is able to demonstrate to NRC that disposal (htW disposal p) site is necessary because of a serious and immediate thr g to thg / /i public health and safety or the common defense and security- -r Y% eenneC& > h-v available alternative, andCT_t* dkgesal= tuss %e~en=derfed ie W ;eneratorsf_-that-wsbe, then emergency access is the only gy @'tSt dhp=La .:2 M a h 0 e
1 l 17 ! Comment 5.12 662.12 Amend the proposed 562.12(k) as follows and re-designate as
$62.12(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 ti,, 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 comon defense and security. RESPONSE: In Section 62.12(k) of the proposed rule, NRC requires that a reauest 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 j which the Federal Government has disposal responsibility under Section f 3(a)(1)(A) and (B) of the Act. NRC has modified "Section 62.1 - Purpose I and Scope" of the final rule aiut24etUintiah.sr - -- ~' "- - l
._.. _ -_ _ __ --_ _____ Y
18 wM to clarify that only LLW which is the disposal responsibility With ogeStatesiseligiblefor,emergencyaccessconsideration. 2=~ ta change [ 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 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 I the applicant's own failure to comply with regulatory standards. hb' (M) RESP 0NSE: nxwje : P "%gc-- :; ..~ L ih. ; '; ,,J . 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 (2) Concluding that no alternative is available." 1 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
e h
- 2k all of L M , M !' & M aapau.m, g w u a 4 . m zsas;o n
, $-h p qugt w h 4/-.4) & sal fald%:)) o M.Madhu M zh dots y d4)osed dar W L %dM4Aaaf VoJts & Aszta'.&2;4f o)A w Q w & y i Mud sw g w+ Y a.llbaZw . Tj' ddC c!-e:_ 2 % _ w G ra w M <.xi.& A W w p u ena k W;s p "a-sw . O m-a n I dhtt 4 - YE Y , yw"M l @ P= A % c A L 4:a u>g_pp p r k ~r & wa<e & m }, accp a
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19 wastes." This language is appropriate and should be incorporated into the rule. W RESPONSE: NRC agrees ti:t OpsatM": chr;cesit has-heeft made in the final rule.
@f h LP)
Coment 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 comon defense and security."
RESPONSE: (See response to Coment 5.11.) Coment 5.16
$62.18 Replace "may" with "shall" in this section.
1 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
- j sion cannot make an informed decision on a request, it should not grant the request. l RESPONSE: The Comission does not intend to make uninfomed emergency access decisions. The word "may" was used in tne proposed rule in preference to "shall" to provide NRC with options in the event that additional information is needed by the Comission to reach its I decision. The recommended change was not made to the final rule. l 1
l 1 Comment 5.17 962.21(a) should be modified as follows:
"(a) Not later than forty-five (45) days after the receipt of a request for a Comission determination under this Part from any generator of low-level radioactive waste, or any Governor on behalf of any generator 9
20 I or generators located in his or her state, the Comission shall make a detennination 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 imediate and serious threat to: (i) the public health and safety, or (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) of the Low-Level Radioactive Waste Folicy Amendments Act of 1985. RESPONSE: This comment recomends 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 recomended in this coment but rejected the others because they departed from the process Congress set ] 1 out in the Act. (1) Section 62.21(a) of the proposed rule specifies, "the Comission shall make a determination that..." I I 1 1
I 21 l 1
- The coment recommends ",' the Commission shall make a determina N n whether..."
Neitherofthesepreciselyduplicateg#he language of the directive in % Section 6(c)(1)d$ NRC adopted the precise j wording in the Act.. Section 62.21(a) of the final.now reads'", the Commission shall determine whether..." Other changes proposed in the Coment include (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 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 i 662.22 Add a new 962.22(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." . I 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.
$1W hV A Commission determination under .10 CFR 62.21 would be a final y agency action within the meaning of Section 10 of the Administrative Procedure Act, S U.S.C. 704, and no special-statement to that effect is necessary.
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i l l
22 Clarifying that a grant or refusal is a finalc agency on may remove a ti potential obstacles to obtaining prompt judicial review M S7k W
'N
RESPONSE
_ Comment 5.20 . 662.25(e)(1) under the circumstances," in this subsection. , reasonable Rep
+
I Subsection (e)(1) provides that the Commission determination,willconsiderwhethertheapplicant"[h], in making good faith effort was made to identify and evaluate alteras demon mitigate the need for emergency access." natives that would faith should not be sufficient. IDNS submits that subjective good j and diligent. The effort must be objectively reasonable
RESPONSE
conveytheMmemeaningas"diligNRC ffort" doesagrees not the th, to us,e/diligenke forty!ecause b "ent effort: Howe er, NRC decided not-the 4ct in spe/cific / gards to reques)ts for extensions _of of ed a/ccess oply/NRC ency pdnotwantfo/compromise e legisla 4 use an ) \ meanipg rule. of the p,hrase by usipg it in discry ionary text i n the p posed i NRC agrees that " good faith effort could b mproved, t the Commission the sense c does not beliIve nder
" reasonable {
ther. 'e circumstance " ca t res i NRC has changed 62.25(e)(1) in the final to read "(1) h evaluated any alternatives that could mitigate as identified theand need f access " ! or emergency an RC believes this is an improvement over the original l anguage
/
is consistent with the precise language in the Act rega r ng the equestor's responsibilities towards identifying alterna ( 1
1 23 I Comment 5.21
)
A new 662.26(b) should be added as follows: (b) If the Comission designates a regional disposal facility to l i receive the waste for which emergency access t.as been granted, the i Comission shall request the approval of the Compact Comission for the designated regional facility. The request for approval shall include l the entire administrative record of the request for emergency access under this Part, including the reasons for the Comission'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 non-federal, non-regional facilities. [*,, \ V RESPONSE: This coment correctly states thatpRC did not reflect the g Section 6(g) provision in the proposed r M 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 o that disapproval is not really an option for the Regional Compact Comission in which the designated emergency access disposal facility would be i locate N"Chdntgrztsthe-app =v:1 :pec4f4 d =i. G(;) ts 4>e-g '* _somewha+ ; ;; fe,mo. h the enmmucinn did net belicy it ga; 7,ccc3;;;7y ta mne the Cora t C=inic ' er prvvai pert of the fc; nci =:r;=cy 4 ac<ess ;-ece::;. We \ posigin plain g der the dis ussion of LegislatjyQistory in t,he pesamb4e to the proposed ruly While 4 UNM h Jk m
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-x4 % ut w l with a veto over the NRC's grant of emergency access. The basic purpose {
I I.N! 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 l legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting ! in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, . l Congressional ratification of that Compact would be null and void. n ___ -_ - - - n___ -a - cv. ras omca
/D 24 'b
.5 disapproval may not be an option under the Act, clearly the Act intended v?
f, the receiving Compact Commission to be fully informed regarding the y: emergency access decision made by NRC and the Comission believed the Notification procedures under 62.22 of the proposed rule provided the ,j Compact Comission of the designated disposal facility with.information , consistent with the specifications in the Act. Section 62.22 of the l proposed rule provides that NRC will notify the Compact Comission of . l 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 eccess was granted and specifically !l describe the low-level radioactive waste as to source, physical and h t. ' 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." bru. _ theihe-J ::tr hes 7,a L1' ;; thisis su^h t . In response to i c mm g g C g d thgol g i gnch g gh g n p g rule: Mw62.22 u d whi E -"' t" NRG-tc id%titis 9. - written 2ctc. i.d oglion: 2ppran f atF.4emp8et=C@iffifEn~Tf!IML of 0 8 .- u b e a Thene762.22(b)readsVTQecretaryoftheCommissionwillsubmitthe ' noti ication described undejr $2.22(a), and the written. determination des ribed /in 62b1(c) to the Compact Comission for'tIl'Iegion in which y [e designated disposal'/ facility is located for'Iuchjapproval as may be required under the terms of its c.ompact. nh such4ompact Comission
/ '
/ //
shall act to appro've emergency ac:ess o ~ later than 15 days' after receiving notif'i cation." / i
/ /' \
l / In order,to accommodate the7 1 day approval peripd, ' NRC as added p the/ l following to the end ofp62.22(b) of the propjo e'd rule "... issuance of a determination, indicating it will be effective 15 days af the date the determination'/was issued," l i l I l
25' Comment 5.22 662.27 Add a new S62.27, 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 access 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 caergency 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 . j applicant or the wastes did not meet the conditions of disposal set by the ' 3 Commission. RESPONSE: The Commi,ssion a e /fn rms and conditions should be - established in therrule for, grants of e er e cy cgess. Jer=1Ch l 94 suln-the-comefrt,, NRC has dded a new 6th K ' rule which incorporates s ggested conditions for termination as recommended in this comment, aing%glf_the@mfandWitiogh the-ret 9sient,=49 e pected te eet. Y new 52.27 reedt: 62.yTeyms7arud Conditing for Emer;gency Ac4ess[, Genera 1 ny
'LLW' anted frghcy ac'ces pursuan 'to is rp suke ge req ' nts L # disposal __ der "cz & @ c*dddn'1 & f )
W~rw 6 9 '
.. 1 f 26
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theAct,as#ellasthosepfovisionswhichspecifically f ad'dF 'rgency acce'ss Once the NRC has granted 4 emergency acce i te ,w ste of concern , ' reprocessed and disposed 4f by e generator and the esignated I recIiving, te in,a man thatA'scopistentwithotherLLW dispospd'of under the t g he tt. The disposal of
/emer ency access waste $1urfisi no lude the
'i lementat[onofanys[ecific onditi regulatio[,'
requirem ces,drcharge,,ortaxespre de y the. dispos,a1 facility hich majpe in effect p he se of the f to grant' emergencyjaccess. Com7ssion'sd[ermi Additi generatorstio[ithwast approved for $rgency ss d not have o mee usual req r entsoNpay ugusuoi fees (whe'd spe 'fi in the Act) simply because their waste is/ emergency access waste.
/
(b) Complianc/e with conditions of emergency access); termination ofemefgencyaccess. !
/
/
/(1) 1he operator M a regional dis ~ /
/ non-federal /disposal facility igtated desby/the posal facility or a Commission.
to provide' emergency accessjay refuse to accept the waste:r for didosal if the appJic' ant or the waste doesmotyneet ofbtions set by the' Commission p/ursuantTobbis4 art.
/ ,' W /
of emergency (2) The Commpsion sketl,teIminate a gyn access when g emergency j access is no longer necessary to eliminateanimmediatethreattopo(lichealthandsafetyor the com/ mon def n/se and securit / . (p ) 3
/ 2 The ommissionmayterminateagjantofemergency
/ '/
/acce s if an applicant Aas made aterial false statement I '
1 he application for/ emergen access or i ,the appHcant has failed to comply / with this / part or con ions f set by' the j Commission pursu nt to is Part." I
27 Comment 5.23 Miscellaneous Comments and Questions 662.6 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. 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 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. Ho7wer, in the event that something unanticipated requires action semission 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. I Comment 5.24 562.11 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?
1 28
-l RESPONSE: There is no requirement that a given generator or Governor 'I griff=My maintain a local public document room for documents relating to emergency access requests. Usually there is a " local public document g gg 40 room," however distant it may b %gtmaintain(/documentsofpublic interest for every NRC or Agreement State licensed facility. Provision-62.11 was included in the proposed rule in order to assure that documentsrelatingto meg en g cess decisions would be made available, as conveniently as possible, to concerned members of the public.
Comment 5.25 662.23 Determination of Granting Temporary Emergency Access 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 provisions 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 acct:ss waste. 7 l I l
29 i B.6 Comment Letter #6 -- Faith Young, Tennessee Resident Comment 6.1 Only commercial wastes'should be eligible for emergency access since the j dumps are developed'for that purpose.
/ - /- . )
RESPONSE: See respontes 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).
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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. i i l i I l
30 l 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 gt of 1982, it made each state responsible for providing its own 1bw-Tevel radioactive waste'(LLW) f g :::' ' 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 regttests 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 eerri*wh
-iduw, 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. (See also esponse to Comment 7.5. M 9 3)
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
l 31 i provision should not force unplanned quantities or. kinds of wastes on the i states with operating LLW disposal facilities and should not create financial 1 problems _either. i RESPONSE: The Act sets upper limits on the number of cu.ft. of-LLW that j 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 l 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. ! l Comment 7.3 States are also very worried about having to take D0D and DOE wastes.
/ / i RESPONSE: See responses to Comments 2.1 and 5.6. 1 Comment 7.4 Also many compacts are not planning on large ainounts of Class C wastes.
/ i RESPONSE: See responses to Comments 2.2 and 5.6.
{ l 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 N N sed rule, NRC is required by law (Section 6 of the Act) to make emergency access I determinations. ( /- ^rve pJ"g
- Wd G-3,d
l
^
'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 ter(ns of gra ts of emergency _
access. The proposed 10 CFR Part 62 serves to c i., . e requirements ) 1
- in the law and NRC has tried to assure that'the rule assumes no . ,
responsibilities for the NRC which were not mandated. (See also responsetoComment7.1MT.3) { I l l l i i l i 5 u l 9 m_____m_____-. - __
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 a he discussion under i
~
Legislative History in the T M '= of th proposed rule. Comment 8.2 l 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.
, }M, RESPONSE: See responses to Comments 2.1 and 5.6.
I Comment 8.3 i Regulations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or compact dump. 7.k/ RESPONSE: See responses to Comments 2.1 and 5.6.
/ I -
1 i Comment 8.4 ) Q All criteria and restrictions on types of nuclear waste acceptable at that 1 state or compact's dump should supersede any NRC order. ! l RESPONSE: Criteria and restrictions at disposal facilities are to be considered and accommodated in NRC's decision to designate a site and in ; l
34 any disposal of emergency access waste. (See response to Comments 1.2, 5.5) l . 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 V at a facility designed for storage. (See the response to Comments 2.3, 3.3,and10.f)
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o I' 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 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. RESPONSE: The rate structure for LLW disposal charges, surcharges, and fees is provided by the Act. 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 invol ed? RESPONSE: Several staff at DOE and D0D identified some examples of activities which generate L W that coul be co sidered necessary for the protection of the =- hb--- 0 example is found at the Navy shipyards. There is a small quantity of unclassified LLW generated during maintenance as a part of the Nuclear Propulsion program, which would normally be disposed of at commerical LLW disposal facilities. The shipyards maintain the Navy's fleet of submarines and the activities would have to cease if access to disposal were not available. The shipyards can only store small quantities so they rely on commerical LLW disposal facilities. Armed forces medical facilities also produce LLW as test sources and from calibration activities. J 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
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 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 b the Nuclear Regulatory Commission. /_l,k [ P
~}ht untL M f h/0'UWS g hA^
RESPONSE
NRC f be/ieves this sta ement expressesyTtent of Cong,r s M-regarding disposal fees and has pplied this i terpret tion in (el -
/
in clarify the financi respons'bilities ft 10CFRPaft62.Jo/ rsopgran ed emejr ency accesj , NRC has dded a new '62.27- Terms and oriditions of Eme/gency Acce t" to th final rule. fee so Respo ses to Commen [5.5,and8.) 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 involved? RESPONSE: '= i 2;M.ith nelusiarrdtr Act-& scannia i;;1;pd { m .Ndy -Qv =:# 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. m______.____._.___ .______________.__m
~-vm---_,-.,- _ _ . _ _ , _ _ _ _ __ V l RESPONSE: NRC does have the authority ma r"d:-th; .;;;,J ;.tes/ r ;___. *m m it emergency accesy zbe ___ C;n;r;;: & :id: M =t etetrtTC1Tng Ig;aechanicm_fnr whan cVepe$tfN '^-#- 'hc.-^tl*^ - iwEUfest. As indicated in the discussions in the e r proposed rule, Congress expected that responsible action from the generators and the States / Compacts should result in the resolution of most access problems : brYekaIc process, swat # W
^'2 hnn 4 11 MDF A y g-*$% p"g]gdJ a -
9 'gt ; 7g ',y t%Att9FCsp$ifsstM. (See also responses to Comments 7.I and 7.5) . Y, g f -UAh& M4 #1 #' .m tk. w "f,/"*c d yy '
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p l 37 i-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. s- v'
. RESPONSE: See the responses.to Comments 7.1 and 9.3.
Comment 10.2 New York State law (the Low-Luel Radioactive Waste Management Act of 1986) sper.ifically prohibits federal wastes, such as Department of Energy wastes, at any New York State "lo; 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- 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. 1 RESPONSE: None necessary. ! 1 l Comment 10.3 I To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste Policy Act which supports j compacting and state's rights. The NRC is directly threatening the state's l authority to exclude wastes.
RESPONSE
As indicated in the.p n _ -k ito the proposed rul g the '1 ameht to Lim Lv5CTRaciem!. 5-*c rotwf4cf dirsct NRC to Eh O<f MJ ' A)/2. C -/-o
38 1 designate'LLWdisposalfacilities)oreceiveemergencyaccesswaste. (See.responsesto7$1,7'5,and9.3) , 1 J t 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 j radically changed. How will states / compacts be.able to adequately planLand -I manage their facilities'with the threat of NRC emergency declarations forcing substantial' amounts of waste on them at anytime?' 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.
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RESPONSE: .See responses to Comments 2.1, 2.2, and 5.6. 1 l l Comment 10.5 ' l Other state restrictions on 100 year hazardous life .or only Class A, B or C wastes, must be strictly adhered to by NRC. {
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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 f be forced to accept any wa?.tes. '
/ v v 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 1 i i I
\
39 I I production has caused the " emergency" in the.first place. States should not l have to bail out the Federal government. 1 RESPONSE: NRC does not believe Congress intended the emergency access provision would serve to require States to " bail out the Federal j government." As is explained in responses to Comments 2.1, 5.6,.and i 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 ali 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 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 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 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 pro p is concerned, such programs and related decisions are not among f NRC's responsibilities. I
40 B.11 Comment Letter #11 -- David'Woodbury, President, American College of. Nuclear Physicians 1
-Comment 11.1 We are writing on behalf.of the American College of Nuclear Physicians and U
theSocietyofNuclearMedicineregardingtheNRC'sproposedruletoestab-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 dedicatad to the overall advancement of. Nuclear Medicine and;has major-interests in the scientific, educational and research activities affecting, the field. The College is a professional organization representing over 1,200 physicians whose primary activity is the practice of Nuclear Medicine. Many of our members have had significant involvement in the formation of compacts and siting of disposal areas following the passage of the Low-Level Radioactive Waste Policy Act 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 eedical 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 j 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 l i
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 deccy, 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 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 safety if essential medical services would have to cease as an, alter-nativetograntingemergencyaccess.Q w 'S e{ adh aaadt. 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. I Comment 11.5 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 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. E 1 l
44 B.12 Comment 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. 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 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 I that is incompatible with its license agreement. (See responses to comments 7.1,7.2,7.5,9.3) l i - _ _ _ _ _ _ _ _ _ 1
45 B.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology Alert Comment 13.1 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 j 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 . 1 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 j 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
"-" y short. Howeverv46. cit =.;ti ecs:veme=a=shoh -:- =t
-per!M .. im ...menv yi.jod*en, ed t,etk of those we.cewnaccontahim te": C: __i ---j The Act does not require NRC to provide a comment]
, period on requests for emergency access, y.__,, , m ___e The Act P%
9 & W 4 kshas s n d .] W ) i 1
46
$m&' j
-P1w~)
providesNRConly45daystoj iew 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 l process. The Commission decided that a 10 day public comment period j would, to a limited extent, meet those objectives and still hopefully 1 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. L$Q
."T& M 4LALsbenuMtol M 2'i } ;m4
~Ip dC .,
Comment 13 4 Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be included in the category of low-level waste? U
RESPONSE
Section 62.12 sets out the information required-by/ in order p 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? 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: :he 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 I 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 ;
47 and safety." The Commission has 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-mento 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 ccver the pile of low-level waste with lead shielding, topped with enough soild to stop radiation from escaping. Response: Noted.
48 B.14CommentLetter#14--DianeD'kgo,NuclearInformationandResource-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-u 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. l l 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." i 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 4
-_-_-------- - _ _ a
i l 49 l
" 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. }
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 1 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 i 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 W ~ "ad and unplanned gi wastes f to access their sites. h-jfi
46 g,zd N tp# n provides NRC only 45 days tp ew a request and determine if emergency access should be granted. y'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 concluded that a longer public comment period would likely preclude a timely response on the part of NRC. D G O r f +' ~ C M M ( M
& la s c nd 34 Akzu ms u
&Q h (M c, ttL%ud dLAt c4 2d cef;t al 2522 uLdl - azuf SNLb.s Q 'Wu$n.c, /M,D4/C yc 24U .'yudtlcn f c .@ bcLa s 1M:'
Comment 13.4 g f" y.
- n+%
(f c ha.SGd cn ctwwl ynla's L. 2
'<u b "'4A Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic % ' C L <.
s be ,' 77 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. 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 I ( could be mitigated by any alternative consistent with the public health L --
i, 47' and safety." The Commission has 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_ l 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. tiRC 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 i 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 j escaping. I Response: Noted. l l I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J
48 W. B.14CommentLetter#14--DianeD'A[go,NuclearInformationandResource 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
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 3 i prohibit' DOE and D0D and other federsi agencies and contractors from gaining -l
\ 1
' access to state'and compact dumps via emergency access. J fSecond,Section62.13(a)(5)(whichappearsmisprintedas82.13in52FR240: )
47587 December 15,1987) requires that Federal or defense related generators of LLW must first attempt to gain access to Federal disposal fa'cilities 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 the NRC that the ir.tention 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.
g M[l;WW4=ehM 64Feiiiientpth ifian.a 'whn"- gud Mc efmla d.-i n46 :,2 . u!: _ r: M " Person" means any M individual, corporation, partnership, firm, association, trust, State, public or private institution, group or agency who is an NRC or NRC Agreernent State licens d eneratorofaIg-lev 1radioactiviewaste i _. . . . _ ._ _
. I
@ ' AQm*u t_ M_-m.s wu mW %_ _' T_ , .s_ . _. s~c o .w maa wvywmr .
any Governor (or for any " State" without a Governor, the chief executive l officer of the " State") on behalf of any NRC or NRC Agreement State g licensed generator or Generators of low-level radioactive waste / located
- in his or her " State" '""" "~ dMa-"- ' " - 4t:t= ' m en " " 4 ty . e 9w jff%
*1 f;ddirpgM];r or their duly authorized representative, 5egal successor $? /
or agent." fSe 62.13(. was also evise in res se t this i comp n d ip he fi it ads ". ., (5) r uestingdispo 1 at fe'derg) low-level dioac 've waty disposa facili,ty in t . cas of a heral r defe erel)a d gen rator of L whose wastes ould ormaM y be el gible4or State /or Ron nnal 11W di, nnul Inder. the'Act.k(I 'bo - 7 cads [ changes frk m fi underlinedfere[ facili_ iew] bg g _7 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 whero 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.
/ , ,
RLSPONSE: See responses to Comments 2.1, 5.6, and 14.2.
-~
.., '/ 51-
-Comment 14.4 (2) Furthermore, 000, 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 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. 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' 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 concentrated 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. RESPONSE: None necessary.
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 requiring emergency access.
RESPONSE- w h"= + 5etAl e-revpudeu:nde-eeeate h potentdal-for
-a-soM4ict-of L-Mst in the: +tuat *crie seri!*D0D~r90E-;s- r;;;uired-j -to-ccrtiffthit rparthular-gencreter regttites ...grici c;;ct: # n.
I ctrie r tc r.it4 a3 ie ie d e r i v u n and'~ d a 6 :.three' -thr Or d f:=0
@ = ~ 4ty. - t errer, The 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 the common defense a.1d security, NRC plans to consider the g 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 einergency 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 a: cess 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 l Act, regulatory restrictions on disposal at a site must be considered by 1 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 I 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).) O 's .- RESPONSE: See responses to Commentsg, 2.2, 5.6 and 14.2. m.-_-__ _ _ - _ _ _
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. i i
( Compaction and supercompaction may be required and possibly other solidifica- l tion treatments but incineration releases radionuclides into the environment, I generates radioactive ash that must then be solidified and continues the I process of generating more " low-level" radioactive waste. This rule should in no way require radioactive waste [weintedm.
. RESPONSE: Th'e 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' i 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 j whether volume reduction processing creates new wastes requiring treatment or disposal (as would be the case for incineration). NRC l 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 4
i 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. I Comment 14.12 l 4. States and Compacts that are required to accept emergency access waste "should be permitted-to charge fees and surcharges on emergency access waste l 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. I RESPONSE: See the responses to Comments 14.7, 5.6, 8.4, and 9.1. Comment 14.13 r
- 5. We encourage NRC not to weaken any of the requirements for Emergency Access applicants. -
3 RESPONSE: Noted.
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 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. l 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 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. 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 jtaterequestsLLWemergencyaccessdisposalassistancefromtheNRC. 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.
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 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.
I 58' l B. 17 Comment Letter #17 -- William Dornsife, Bureau of Radiation Protection, Pennsylvania 1 i l Comment 17.1 i i This proposed rulemaking has seversi major flaws that if not corrected could j potentially act to undermine the substantial progress that has been made to _l date on implementing the Low-Level Waste Policy Amendments Act of 1988. _ i 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 thdt the States and Compacts whose generators have been denied access to LLW , disposal would share in the responsibility for identify roviding ! alternatives to emergency access j n fact, the NRC Y -. __..__.. d a ' that several of the alternatives listed in Section 63.13, specifically
"(2) storage of low-level radioactive waste in a licensed storage facility,"a{( al g t oya ac vgg -
agreement, -r: _ . m y-2 om- ....y-- . r /rs. n eviewing w n CM. 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 , i.he problems caused by denial of access were not adequately conveyed. As a result, the Commission issr1gf5e 'i'hJ$annam-*r"'M-a@, j z w sut g g - m 3{ g . --Use va- i.omomment - R ; - x- 6Ca) I 9 (1/u caTwl C 6 2.13(a). %N ffdO j* FAD 1 f:
& d4 M k clu c<.ua.
U%*m W Oa"a%A4tWu6&r==%W] A cmM: 1 l
J i In the case where emergency access is needed for a bankrupt generator, the Governor of the State where the generator is " glocated or the trustee in bankruptcy, would have the legal authority to pursue an emergency access request. i l l I l 1
& ,W #
; I a.)
on,adiscussionoftIIeStates'/ Compacts'responsibilityin In ad this are has been added to theMcu.f h ofdn4 g 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 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. [l42k M I* W 8#57'9 / #FT /7 I RESPONSE: d yf 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 emergency access should occur. The provisions of this rule should only be l
l 60 l 1 Comment 1~7.5 In order that the credibility of the process be maintained, this rule must j 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 1 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 used as a last resort and the language s',',ld be such that this intent is clear. gy 24 a$ xetetti RESPONSE: 9ts is NRC's intentf as is stated in the supplementary information to the proposed rule and elaborated on in responses to Comments 2.1, 2.2 and 5.6. N C U M NM sy N C$f m hDW SY; i
&& k g p ice + W W S'- 3 i Comment 17.6 A g v.o t wgjerg in addition, we have reviewed the specific issues for which input e su A4g requested and have the following comments: i
- 1) What scenarios are envisioned where emergency access would be required? i 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.
L A generator is denied access to a State or Compact disposal facility for whatever reason. l An unusual occurrence such as bankruptcy of a generator causes . abandonment of extremely large volumes of waste which exceed State or Co.npact capacity for safe disposal. l l l l 1 i l l
i 60 . used as a last resort and the language should be such that this intent is- t clear.
& s.'a m b
RESPONSE: This is NRC's intent, as is stated in the pseemb4r to e proposed rule and elaborated on in responses to Comments 2.1, 2.2 and 5.6. Commpnt 17.6 - In addition, we . ave reviewed the specific issues'for which input has been requested and have the following comments: l
- 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 fecility 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. i 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 theM r- pr: d 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?
i l 1 ! I l
r.____ _ . _ _ _ _ _ _ . . _ _ _ _ . 61 l l t I 1 l 4 l i ( None of the sites that could be designated for the receapt of
% emergency access waste under the Act have a security clearance N to receive wastes that would involve natsonal security Q information. Therefore, this type of waste would need to go to da DOE site, and would be outside the emergency access proaram, e
b l i l
)
- _ _ _ _ _ _ - - _ _ _ _ _ E li
</ 4 '
61~ The difference between " emergency access" and " temporary emergency access" provisions for this-determination are not consistent with-Section 6(d) of the ket. 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 l 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 k provided by the generator be kept confidential, or not be released to the receiving fa ility, under the claim of national security? a SW)1. 8 DWW
RESPONSE
pf )f W Comment 17.9 The Host State or Compact in which the requesting generator resides should be L 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.
i 62 RESPONSE: The legislative history for the emergency access provision t ! specified that these factors should be considered in making emergency { access decisions. l ( l f 4 1
=)
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' reciprocal 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 thre4 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 NRCthehhoritytodesignateFederaldisposalfacilitiestoreceive emergency access waste. The purpose of the Act is to make the disposal of LLW a State responsibility and to encoarage States to work out disposal problems anongst themselves. Congress believes tMt if Fsderal LW disposal facilities would provide backup disposal in the event that the States do not provide needed capacity, this would serve as a disincentive te the States, N Comment 17.12 Thfrenoprovisionsforequitabledistributionofthewasteifnon-Federal facilities are needed for disposal. p# RESPONSE: Under VII(c) of the gproposed 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 - - _ - _ _ - - _ - _ - - - _ - _ - _ - - - - - - - - .-- - - - - - -- -A
64 practical. (Notd-reviewers - should -54 * 'on s 'hg se intentid5s
- ;ih Tk>t be'a,dde.d >t,o',the3.L ,/ .
do , Comment 17.13 As written, the 20% volume criteria could eliminate the smaller non-Federal facilities from consideration almost immediately. Provisions can be added 1 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. 3me-nn-iy- ,
~
st e 'a w Comment 17.14 There are no provisions for existing State or Compact laws with respect to s reciprocal agreements or time requirements for emergency disposal conditions % x; as covered in 5tction 6(f) of the Act.
~
RESPONSE: (See responses to Comments 4[1 and 4.2) / Comment 17.15 Is a determination appealable? k
RESPONSE
( fc/f 5/9) y od e grefideT b gChip p re y 1 Comment 17.16
- 5) What should the NRC do if no site is found to be suitable for waste requiring emergency access.
)
w
65
.f f
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. h 1 I
66 B.18 Comment Letter #18'-- Clark Bullard, Chairman, Central Midwest Compact Commission. Comment 184 The Central Midwest Compact Commission fully endorses the comments submitted by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988. RESPONSE: Noted. Comment'18.2 t 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 cur ability to meet the remaining milestones is not impaired. I RESPONSE: Noted. i i
1 67 ) i i B.19 Comment Letter #19 -- John S. Kemper, Philadelphia Electric Company 1 Comment 19.1 Notice of a proposed ~ rule on emergency access to non-Federal low-level radwaste disposal faci.11 ties 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 th'e 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 tiisposal of wastt may I result in an increased hazard to public health end 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. RESPONSE: The 10-day public comment period provided in the rule shocid 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. /PT t , it a ds y mer cy mo alte atives a avail le,
/ '
f om e wi 1 ot 1 1 r re po oa ic r q st. (See response to Comment 13.3 for elaboration.)
68 2 Comment 19.3 ! l 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. t l l l 1
.q B.20 - Comment Litter #20 -- Jessie DeerInWater, Chairperson, Native Americans [
-for a Clean Environment ~ >
1 J Comment 20.1
. 1 NACE joins with Mr.'Marvin: Lewis of. Philadelphia, PA in his' opposition to. 1 4
'l
, Proposed Rule: Criteria and Procedures for Emergency Access to Non-Federal d
and Regional Low-Level Rad Waste Sites. 1 RESPONSE: Noted.-
~
l Comment 20.2
-The rule would allow'the Federal Government and the d to regulate a State function...or at.least a Comp'act' 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. < 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. l should be disposed of at their own facility, since it would be unknown what I might be contained in waste coming from the DOE and the D00. It is cur .j i l belief that federal waste is often greater-than-Class-C waste. j 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. l 1 1 RESPONSE: None needed. I-l 1
- _ _ _ _ - - _ - _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ - - _ _ _ _ _ _ _ _ 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 l Radioactive Waste Policy Amendments Act of 1985 (the Act) are intended as a -l 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 Soecific 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 incornct, the rule thould define the number of times and/or the length of time extension (s) can be granted. l RESPONSE: Neither th9 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 i 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-e-serice onddamediate4nreat se te-persist af 45dafsbecusepalack 1 access o dispo 1 Ion,by th al rnat egah ot omplt te, the Co ud v o s
71 h aty ctt@ M akr. CNehshmtht;ttds=be ad3fm93 -n--thekmm7,m "- 2 QW) ,
"c. rV w Comment 21.3 If the need for emergency access is > e 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 access would be required?
Response: The regional or ntn-federal facility utilized by generators is closed by regulating auth? cities, the facility operator or extraordinary events. Access to a fscility has been deniec 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 j and security?
l l l
m 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 oe 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 I I I l
l l REGULATORY ANALYSIS 10 CFR Part 62 - Criteria and Procedures for Granting Emergency Access to Non-Federal or Regional Low-Level Waste Disposal Facilities- 1
- 1. STATEMENT OF THE PROBLEM Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 l (PL 99-240, January 15,1986), "the Act", directs the Nuclear Regulatory .
Commission (NRC) to grant a generator or State " emergency access".to any non-Federal commercial LLW disposal facility if access to those facilities has l been denied and that access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and secu-l rity. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the acti'tities that gen? rate the waste. NRC must be atcle, with the information provided py the requestor, to make both deter-minations in the affirmative prior to granting energency access. The Act further directs NRC to designate an operating LLW disposal facii- : ity to receive the waste which is gear,ted emergency access and directs NRC to notify the appropriate State and Compact officials regarding the designation. l The Act provides NRC with 45 days from the time a request is received to determine whether emergency access is required and to designate a facility. Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC staff recommended a rulemaking 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 order for a requestor to be eligible for emergency access consideration is that they have already been denied access to LLW disposal 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 j Compacts' expressed desire not to accept waste from that particular State or generator. Although Congress provided NRC the statutory responsibility for implementing Section 6 and gave the Commission authority to decide whether 1 Enclosure C l l l
),
I i or not. access will be'provided, emergency access decisions are likely to be controversial and could be challenged. By setting out the. procedures and criteria for making emergency access decisions'in a rule.which reflects public comment, NRC intends to minimize potential delays'in the actions necessary ) to protect the public health and' safety.
- 2. OBJECTIVES
.1 The. objective'of. this final rule is to establish criteria and procedures to be used by the Commission to make the determination required by.the Act that
' emergency access to operating non-Federal or regional. low-level waste disposal facilities should be granted because-denial of access has created a. serious and immediate threat to the pubite health and safety or the common defense and security, that cannot be mitigated by any alternative consistent with pro-- tecting the public health and safety.
- 3. ALTERNATIVES 3.1 Using Rulemaking Under this alternative the criteria and procedures to be used.by NRC to make emergency access decisions would have the force of law. Using rulemaking also provides binding criteria and procedures and therefore would add predict-ability and stability to the regulatory process. In addition,' rulemaking allows for input from potentially affected individuals and organizat' ions, should minimize potential delays in the actions necessary to protect the public health and safety, and will help to ensure that the Commission will be able to make a decision on emergency access requests in the time required by the Act, all of which are desirable since emergency access decisions are likely to be highly controversial.
3.2 Using a Policy Statement J The alternative of issuing a Commission Policy Statement to establish the procedures for emergency access decisions was rejected. Under this alterna-tive, the criteria and proceduras would not have the force of law. In I l 2 Enclosure C
addition, a policy statement was not considered appropriate to establish the detailed criteria and procedures required to implement NRC's emergency access responsibilities. 3.3 Taking No Action The alternative of taking no action was also rejected. Under this alter-native, both the person requesting an emergency access determination and the Commission would have to rely on the language in Section 6 of the Act for guidance as to what information was to be used by the Commission to make the determinations. The Commission could not be assured of receiving the relevant information necessary for a determination and that could cause delays in the Commission's mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with the spirit of the Congressional directive, to provide predictability in the regulatory process, and tu assist the Commission in making individual determinations.
- 4. CONSEQUENCES 4.1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive waste disposal facilities made pursuant to provisions of the Act should not result in a serious and immediate threat to the public health and safety or the common defense and security. In those cases where emergency access is granted under the rule, the recipients will receive the benefit of continuing the activity responsible for generating the waste at least until the grant i expires, and society will benefit from continuing access to the goods or services produced by that activity. Since emergency access decisions will be made on an individual generator / licensee basis, and since NRC staff cannot predict the number of requests that might be received, it is not possible to quantify the benefits associated with the rule.
l l 3 Enclosure C
-- 9
l 4.2 COSTS 4.2.1 Applicants for Emergency Access Applicants requesting emergency access may be generators of LLW, NRC or NRC Agreement States licensees, Governors or other State chief executive officers on behalf of the generators or other " persons" as defined in the l proposed rule. NRC staff estimates that regardless which of these persons requests emergency access, approximately two (2) weeks of the requestor's professional staff time will be required to process the paperwork necessary to complete a request for an NRC' determination pursuant to the requirements set out in the Act and which have been codified in the proposed rule. Because the " circumstances will be different for each applicant, it is not possible to quantify the time or resources required for each of the applicants to collect the information and perform the analysis on which the request will be based. This is particularly true when it comes to the possible need for long term data collection and the in depth analysis and consideration that will be necessary . 4 to evaluate alternatives. ' Other possible costs associated with this final action are driven by the very specific mandates in Section 6 of the Act. If NRC does not grant a request for emergency access, the applicant may have tc alter the activities generating the waste in question, even to the point cf ceasing them for some period of time, or possibly curtailing them altogether. The costs to the ; requestor could come from expenditures either in time or resources required to j alter the activities or processes responsd ble for generating the wastes, or I from loss of income from redaced or curtailed production. 4.2.2 NRC As provided by Section 6 of the Act, NRC will only have about 30 working days to respond to each request for emergency access (45 calendar days = 6 and 1/2 weeks = approximately 30 working days). NRC anticipates that approximately 180 staff days will be required for each request. NRC cannot project the number of requests that might be received, so total costs to the NRC cannot be estimated. However, given the Congressional intent that Section 6 of the Act be applied only in " rare emergencies," it is not expected that the regulation will be applied with any frequency. 4 Enclosure C
In order to implement this final rule, it.w+tT be necessary for NRC staff to develop guidance to assist applicants in preparing their requests, and to assist NRC staff in conducting their reviews. This re esent an additional commitment of NRC resources. Since Section 6 precludes NRC Agreement States from making emergency access decisions, the final action will not have an impact on Agreement State resources. 4.2.3 Department of Energy (DOE)/ Department of Defense (D00) NRC is requiring that requests for emergency access based totally or in significant part on a serious and immediate threat to the common defense and security, include a statement of support from D0D and/or D0E. NRC estimates that approximately five staff weeks would be required for each emergency access request processed by DOE or 00D.
- 5. DECISION RATIONALE NRC decided on the approach in the final rule in light of the ' Congressional directives in Section 6 of the Act and considering the comparison of alternatives as discussed in the preceding section.
- 6. IMPLEMENTATION The schedule for implementation of th? rule is dictated primarily by the schedules and milestones in the Act. The Act sets out three railestone dates requiring the States and Compacts to demonstrate specific progress towards the development of new LLW disposal capacity, or their LLW generators may be denied further access to existing disposal sites.
The first date for potential denial of access was January 1,1987. The States were able to satisfy the requirements for that milestone and none were denied access. January 1, 1989 is the next date when the three operating LLW disposal facilities can refuse to accept waste from a particular State. NRC plans to issue the final rule by November 1988, so it will be in place before that January 1989 potential denial of access date. Once the final rule is issued, its actual implementation will be triggered by NRC receipt of a request for emergency access. 5 Enclosure C . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - - - - - - - - - - - - ---- -J
f In the event that a requ2st- for cmerg2ncy access is made bafore the. final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental' Impact Statement need not be prepared in connection with this rulemaking action because promulgation' of the final rule is not a' major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. The final rule would establish criteria and proce-dures for a' Commission determination under Section 6 of.the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety.or the common defense and security. -For the most part, the final rule is an administrative action which serves to codify the criteria and procedures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect.
Making a Commission determination to grant emergency access in accordance with these criter'a and procedures should also be without adverse environmental impact. The provisions in the rule will be activeted only at the request of a-LLW generator or State government official on behalf of a- generator because serious impacts to the public health and saftty, the common defense and secu-rity, and possibly the environment are anticipated as a result of. denial of access to a LLW disposal facility. NRC will~ become involved only when the need for corrective action has been identified. Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action necessary to assure that the public, the national security and the environment are protected. Whether the Commission decides to grant emergency access, or to deny it because alternatives are available, NRC will make the decision only when satisfied that the action to be recommended will minimize the effects of concern and maximize needed protection. The Commission designation of the LLW disposal facility to receive the LLW approved for emergency access should not result in adverse impacts to the environment. First, Section 6(h) dictates that the total quantity of emergency access LLW approved for disposal at any non-Federal or regional LLW disposal facility must fall within the volume caps established by the Act, and for any-6 Enclosure C
r
]
l , i 12-month period, be less than 20 percent of the total volume of LLW accepted by that facility during the' previous calendar year. Thus, the amount'of waste provided disposal under the emergency access provision will be much less than the total amount of LLW that will be disposed of.in regional or non-Federal disposal facilities. In addition, waste granted emergency access will have to. be processed, transported and handled in'a manner that complies with applicable safety regulations. Second, NRC will be considering the characteristics of the LLW requiring emergency access in designating the ' receiving. facilities in order to assure that they are compatible and that the impacts from each indi-vidual grant of emergency access are minimized.
- 8. REGULATORY FLEXIBILITY ANALYSIS NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facil-ities 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 this rule will not have a significant economic impact upon a substantial ~ number of small entities.
The final rule has tiie potential to affect any generat.or of LLW. However, in order for the requirements of the rule to be imposed on a generator, he must request emergency access tc a non-Federal or regional LLW j disposal facility, having been denied access because the-State or Compact - Region in which he is located has failed to comply with the milestones for LLW disposal development in Section 5 of the Act. 4 Establishing criteria and procedures for requesting and granting emergency access will have a positive benefit for small and large generators alike. It l will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development. The impact of the recordkeeping requirements on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to decide a course of action if necessary access to LLW disposal was not going to be available. 4 , 7 Enclosure C 1
t DRAFT CONGRESSIONAL LETTER
Dear Mr. Chairman:
Enclosed for your information is 'a copy of' a notice of final rulemaking for - 10 CFR Part 62 to be published'in the Federal Register. i This rulemaking implements Section 6 of the Low-Level Radioactive Waste Policy L Amendments'Act of 1985 (the Act). Section 6 directs the Nuclear Regulatory Commission (NRC) to grant a generator or State " emergency access" to any non-Federal commercial LLW disposal. facility if access to those facilities has been denied but is necessary in order to eliminate a serious and immediate threat to the public health and safety or the common' defense and security. Although-the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC.is proposing this rulemaking to establish the procedures. and criteria that will-be used in making the required emergency. access - decisions. In developing this final rule, NRC has tried to be consistent with both the actual text of Section 6 and :,e Congressional intent expressed in the legisla-tive history and to-reflect public comments to the extent possible. The p ' rule sets strict requirements for granting emergency access, places. the , , burden of demonstrating that there is a need for emergency access on the party I requesting emergency access, and should serve to encourage' potential requestors to seek other means for resolving the problems created by lack of access to LLW I disposal facilities. l Sincerely, 1 i i Victor Stello, Jr. l Executive Director for Operations l l
Enclosure:
As stated I 1 Enclosure D
6 10 ~CFR42 - MEM0'
-l "
R ll 987 O MEMORANDUM FOR: Victor Stello, Jr. b Executive Director for Operations $
- / 4
-FROM: Hugh if T,ho,/-mpsop(Jr.j0l reyto'r 3ak d- g 0f fIc3v6f Nuclear ater,iar Safety'
'and.Safeguar# '
N Fwa5'
SUBJECT:
PROPOSED NEW RULE, 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" Q
, CL-Enclosed for your approval is the rulemaking package for the p ed new b s Part 62 to Title 10 of the Code of Federal Regulations. The r r m d rule -
udo wa4d establish criteria and.pg,0cedures to enable NRC to determine whethe t' emergency access shou-ld b g?:nt:J 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 (the Act). l. Although the Act does r,ot require NRC to develop a rule to carry out its
*VMp Section 6 responsibilities, staff recommended using rulemaking in order to minimize potential delays in initiating the corrective actions that may be # ' (
necessary to protect the public health and safety. Your of fice approved /tTiis rulemaking on August 25,1986. 7b pego ud et, %s w/ m 3cc. IQ /992 lgi, 04% $Ad$ boa yde&Mo&Jor hjuam /2, t 982 h/'~ jn developing the rule, staff $tve tried to be consistent with both the actual 'N f text of Section 6 of the Act and the Congressional intent expressed by Congress
, L in the legislative history.fiiowe r, staff ivuod it neces>ory to oppiy d'5cie--- -
i f ti g fn orper to impteme r specji provisions ~~5Ty>ection 6 e prea to , g i le specific Jy'ry ueyts pu ic con) ment the# hose ppris o the le whe I J rdi)ct tip'n was ied,! ndicat'in thayhRC"Nf,on1 okingAor wa s i hich we ],/ @ could ftter p th ipt(nt of tgress and e Y a bette sition to be 'r Cb rvsyundive=Wthese 'unet< ' (! ' The g,genett rule sets strict requirements for granting emergency access, ,
'l
; places the burden of demonstrating the need for emergency access on the party < .
requesting emergency access, and should encourage potential requestors to seek I other means for resolving the problems created by lack of access to LLW disposal facilities. - N, Staff believe NRC should have this rule in place by the time a request for emergency access might be receivedr NGu_weh-ww;t ceuld be ede at any g timer-ntme7rs-Hkely_.he-foremhmueWF2198E., which Og the next date that'- access may be denied under the Act. This would result from a State's failure to develop a siting plan for its LLW disposal facility. . tac.-00CM ., ,, - r s of ae+3h14chinn < niwag- hich :.-Stather e i ' : yi (J-thi s statutory _._ r[rneLtonsymay y-ttG;teTQ;hfia if ah yf L1Mi4 doc.m,te me&;uLed;%'.-%jtoo'@ee(;DWs grafecia Korgf-t S g s y,x1'ted Staterc onpact"will-chopse
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1 1 10-CF R--62-MEM0 y 4e d w accers:+n thnea .. do. Based on the. January 1, 1989 milestone we j have scheduled to issue a-i .u . 1; by tl,m Tol' ;f 2007 M the final
-l rule in the-fall of 1988. Immediate Commission attention to this issue is 4 necessar t t this schedule. l NW/
The ~ &y, ;d ruleohas mee been concurred in by/ ARM, NRR, and SLITP,a n ces 0 % J l M pp@^W" W, OGC has. reviewed the M rule and has stated that it has no legal objections.- 1 (StenedplughLThompton, W.*' Hugh L. Thompson, Jr., Director Office of Nuclear Material Safety and Safeguards
Enclosure:
As Stated i i
- ARM :NMSS :NMSS
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.NAME : mbert :MKearney : r ves W8fT[ ',9 :
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.. .. . : gl:,oy DATE :8 7D7/ 1 e. . . . . . : . . . . . . . . . . . . : M r---:------ --:------------:------------:-----------
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\ 9(y{pg ' ',
1 ,3
, ~ ,
- Ng l Y h U For: i' t' T e Commissioners
.I l From: jk hictor Stello, Jr.
;ip bxecutiveDirectorforOperations irk 0 0.<ls ~
Subject:
I:J w
)' b M D 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING j
EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE y j l/ DISPOSAL FACILITIES" ' ; L WW e bJ O
Purpose:
. Af / To obtain approval to puh'i t f r y.: ' 4=cermmeni ;. p aposed-new
$j Part 62 to Title 10 of the Code of Federal Regulations that would
/ T),,
y / '
/
establish criteria and procedures to be used by the Nuclear Regulatory Commission (NRC) in determining whether emergency access g / should be granted to operating, non-Federal, low-level radioactive
/ disposal facilities under Section 6 of the Low-Level Radioactive 7
Waste Policy Amendments Act of 1985.
// '
Summary:
\ Section 6 of the Low-Level Radioactive Waste Policy Amendments jf Act of 1985 provides that NRC can set aside denial of access decisions and grant emergency access to non-Federal or regional LLW disposal facilities if there is a serious and immediate g, threat to the public health and safety or the common defense and security that cannot be mitigated bgvj)ilable alternatives (ycgv Stef seve7fauteped'fhe enclosed p m a ;j ruleVto implement NRC's responsibilities pursuant to Section 6. The rule sets out strict requirements for granting' emergency access yans-places the burden of demonstrating the need for emergency access on the dpartyre r request"questigg g ergency for emergency agcesE M access,betp taffC_may_never estimates 180receive..a staff days__ g M -
y, will be required to process such requests, within the 45-day
/,/ statutory limit for an NRC decision.
6peaM i 3 'i Backgr"ound:'/ '/ The Low-Level Radioactive Waste Policy Amendments Act of 1985 c 8 , (PL 99-240, January 15, 1986), (the Act), directs the States to fl develop their own LLW disposal facilities, or to form Compacts and cooperate in the development of regional LLW disposal
' facilities, so that the new facilities will be available by January 1, 1993. g ~ -
Contact:
Janet Lambert, NMSS 427-4751 yg bA9 N Mcc$fC jc Mj* 4 g g g g p g ,g utdLUL _, O l ob M"? %Q piGJud O'*"'track)- (w y gi,PpyJ .ht#w. y ' dA U S, D , , oy ,e aaw
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~ w w n. n o % Joty b 8 M. - W Jm h bpdd &.thpha$ uon hf ^lW[?N?$$lin ., ;,
The Commissioners 2 lThe AcK tatilishes progedurey-and milestones for th6 selection i& d devel,o ent of'the LN' disposal faci ' ties.pe Act so' esab'lishes system of in' ntiUes fof mee ingjthe miles njs
- and enalties r fai,13tEg to eet'tfiem whic Ms intehdj os asM ste'ady pr reis toward ew facili dhelopment 4 s h1 % M - ,
The d j ificentive ffered by th Act that,/ e5 tes n J regional ompact.s'whi (p g et thejni (ptones yfil e allowed to
,c6ntinue t use'the exjs 'ng, spospiNfaciJ4 ties d Jng th V g'
/ tranpftion p 'iod un il t '
TacMiMes-ace /evtriiaN4r .s Llat4r than/Jan ary If unsited States or Compact c \ > ttmrfaii to meet key milestones in the Act, the States and f l Compact Commission with the operating LLW disposal facilities r3 are authorized to demand additional fees for wastes accepted for
%y disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities.K ___ ___
Secticn 6 of the Act provides that the NRC can grant a generator
" emergency access" to non-Federal or regional commercial LLW disposal facilities if access to those facilities has been denied and that access is necessary in orde: to eliminate an immediate and serious threat to the public health and safety or the common gfyseandsecur't The Act also requires that a determination
'be made as to whet er the threat can be mitigated by any alter-3 4
native consistent with the public health and safety, including g,k
\
ceasing the activities that generate the waste. NRC must make both determinations prior to granting emergency access. 1 The ct further p vid$s that NR is to de.sig ate the operating l LLW . 'sposal facil) ' or facilitie. where'the ste will be sent termines that he/circumst nces warrant a-1 for'di. osal if,NRC 7 grant o emerge'ncy acc s. NRC is re ' ired to no 'fy the Govefnor (or chief executive offi in which 't(1e waste was generated' t emergency a r)ofthe[.Sta ess ha been ranted, andNto' notify the State an Compact which i l /be receiv g the wasteNthat emergency access to their LLW- sposal facility is rsquired.[ The [' Act provides NIfGilh 49 aays Fro ~m~the time a request is received to determine whether emergency access will be granted, and if so, to designate the receiving facility. f __ - l bheActprovidesthatNRCcangrant rg s for a pe not to exceed 180 days per request o that only one, 180-day extension of emeraency,agcess can be granted per dfLIequestJ:An"eH~ension c - be appr4V4d' nly if the generator'of lo -level rad' active was who was ori 'nally g anted ergency a c- ss and the tate in wh1 h such low-l el radi active waste was enerated ha e diligenti , though uns essful y, act d / duri the period f the init 1 grat.t to e inate 'ttle ne .for emerge cy access. / '
\
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l The Commissioners 3
\ .
l emporary'emerg cy access" ma . be granted at NRC's discretion p ding 4 determin t'jon on mitig ti,ng altern tives,,,i the NRC i det rmines that enie ency acces,s' s necessary epause a , seri us and immediat threat,tf th public hea h and s ety o the c mon defense an security. T gra3t-lif yorary/ c ss. j fs not .enceed 45 day ' l The Act atso provides that requests'for emergency access shall l contain all information and. certifications' that NRC requires to l makeitsdeterminations.p E Actqprovides that only NRC can grant emergency access. The Agreeme6ts States are'specifically ' precluded from making gergencyaccessdecisions. c,/{ l 'Didchs sibr): Att6billGbie' Act does not require Ct devel a rule tu carry ' ' ' ' " " " ~ out its Section 6 responsibilities, staff _ _ ,- e . w ...is C
. rulacto establish the procedures and criteria that will be used in paking the required emergency access determinations A= Hang out-the-procedur-es-and critaria for__mak4ng-emergency-access '
decisions-i n r a = rul e- which; re,f.l ect s e pubMO-comment r-Gta f-f45&4Pnd5 6 g teprovide an-opportunity-for-input <from-potentia 11y~affected individueis-or-organizations,hadd predictability to the decision-making process, and help to ensure that the NRC will be able to make decisions on emergency access requests in the time required. by the Act. The legislative history for the Act emphasizes 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 expected that responsible action from the generators and the' States / Compacts should resolve most problems arising from denial of access deci-sions, thus precluding the necessity for involving the Federal , sector in granting emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of h1 last resort. In developing the emergency access rule, the staff has tried to "p be consistent both with the actual text of Section 6 of the Act alndwithitsunderstandingtheintentexpressed rau 3 I regardingdecisionsmadepursuanttoSectionj ru etp stract-requirementyQr granupg mergerycy , ccess', l pl ces 7th burden o demonptrati g the J1ee for ymergency' access o th9 pprty reques ing emergen acce,ss, and should ser;ve to - e courage generato s to seek other means or resol ing ,the '-p,) problems crested b t
'o LL disposa h(ilit4ss' d/pote'ntial Iaclof % i acc e Gh ci -
On January 15, 1987, NRC issued a Notice of Intent to develop
, this rule (Vol. 52, Federal Reg,ister, No. 10, p. 1634), 4Ms k hmM 6 H93 01C taruudi A pM (>s24b4 u nnpz a wu p-f
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3 The Commissioners 4
] ,
.I otieanbncediC'splSsfor,$ei' ting,sd1Et'requirementFfor ta,n em rgency ac, cess. s t Staff', Approach and Assuinptions ' *:
/
In eveloping the proposed rule,.the sta f's approach has been to: (1 Assure'that all of the. principal pr visions of Section 6)of the Act are. addressed in the regul ion. -/ j
/
(2) Identify the information and cert icationsthatw[llhae to be submitted with any request or emergency access i order for NRC'to make the necessary determinations. H j/ / /'. (3) Assure that the procedures and criteria that,are estab ished 1 in 10 CFR/Part 62 can be implemented within he 45-day
)
i period specified in the Act. '
\ (4) Estabishproceduresfordesfgnatingasi,tetoreceivethe
\ wast. which are fair and equitable and hich are consi tent
\ with' the other provisions oft the Act ' luding the limits C
i l on'the amount of waste that can be d posed of at each
'fh \x4perating non-FederaLor raninnal fe)ility.
[Sh@5MMahc4s#Ah M 40 y1Est"ablish requirements for granting emergency access that ! l
,E,, are stringent enough to discourage the unsited States and j regions from viewing emergency access as an alternative to
, [. 6 diligent pursuit of their own disposal capability, and yet A0 Pt flexible enough to allow NRC to respond appropriately in )
[g g situations where emergency access is genuinely needed to protect the public health and safety or the common defense-
)
%U k and security.
The Proposed Regulation N i fx l The proposed rule addressedLeach of the determinations that NRC 3
/[Tj mustmakeanddescribedhowtheywillbemade.
( h t In order to make the determination that there is a serious and immediate threat to the public health and safety, the W ector C h e l 1
/ oufsther0fficenof-Heelean-MateriskSafety-and-Safeguards (NHSS),
/
5 d .u-designee-of 'the. Executive-Director-f or-Operatione > will consider whether the circumstances described lead conclude
,/. -
that there is no longer reasonable assurance that the affected 4 generator or generators can continue to comply with NRC's regula-tions in 10 CFR Part 20, and as a result, that the public health and safety will be endangered. In making this determination the NRC will consider the significance of the situation described in the context of the requirements issued by NRC in the facility
, license, the technical specifications, and any applicable regula-I tions and orders of the Commission.
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Ints general, commentors w W sgpp'enorta~d _fprnduxGck NRC',s issuancc aus2of a rule &or f - i f
'/
emergen
% cts.a acce E decisions f a%nM.-ated~=thangc3 ins C..J. e -wpron --t Y heT Uct::' FE., #
I $ne commentor e
@i<fff ro m sc" ting , ivLby i numi%
expressed opposition to the issuance of the rule itself. That commentor
- indicated that the rule should be withdrawn because grantirm emergency access hould infringe on the States' right to manage their LLW.W NRC was legisla-ltivelymandatedtomakeemergencyaccess g nagoghgn not otherwise able to manage their LLW4 fftDFt-s.ine the-py._s.a ta f
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,muchef4he=i angumHMMt4 en A c' tc ^ct, NRC does not consider that the 9 .u. a emergency access rule interferes with states' rights,v ^'- ~~
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_~ By far the most common concern expressed by commentfits was cy [ access would tir=d a force operating non-federal or regional LLW disposal i' facilities to accept LLW they are at%Eer clearly not responsible for under ' t he Act , she ' n-4 rgeN; _i:ec '*:r
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b ,che fegional Compact or Dtate receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or $ tate in which the emergency access waste was generated. It further provides that the @ gional 60mpactorhtatethatreceivestheemergencyaccesc waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to that provided emergancy access." M b (m><Ib qM' ME 'O
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v2k~~p 4;~an M, cn pk A %,y4 LLO c4posd g&.la~ ~> QQ 9au ceM w p +- MMesoA pk & 6 et wkLdffm c&asau a pK r ! $)'a *r+ aw a wasp a4my nyyn piQ n w p a a s a a% m + p ,e /: pq<ase:=hy
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I - 'If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain cir-cumstances, actions necessary to protect the public health and safety Gould be delayed or compromised. ,
$N The NRC reconsidered its position on reciprocal access in light of the comments '
received on the proposed rule, but made no changes to the final rule. - ! ped.s h dh NAc$ %M% Three of the commentors representing States or Compact (ommissio cated that the NRC had been remiss in not including a provision in the proposed ruJe which would require the NRC to seek approval for its decision to grant emergency access from the Compact Comission of the region in which the designated site is located. f % .;_y, ,. -+- l any grant of access under this Section shall be ' submitted'to the Compact Comission 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 provision has proven to be satighet controversial because { , e es +- it is open to severa? interpretations. The interpretation net frequently i used by the~ States is that Congress intended for the Compact Comission of the designated site to have the final say regarding the acceptance of emer-gency access wastes. { They believe Congress intended that a receiving Compact ! Commission could reject the NRC's emergency access determination - essentially I that Congress intended the compacts to have the power to veto the NRC's decision. The commentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
- l J
yecI W< TftA~ < AlfdC kb5cp 2M ddappuursfof 6 aans & W , A94h.$ss& . , kgkea~ m AAmaa% y ap) a ya chaJ n ! I pGcM[, . Thebasicp or tne dection 6 emergency access provision is to ensure that sites +het would normally be closed under the Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework estab-lished in the Act. As emphasized in the House Committee on Interior and j i Insular Affairs Report on the Act, ratification of a Compact should be condi- - tioned on the Compact's acting in accord with the provisions of the Act.Nf . the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be en11 and void. [H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).] # 1
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A number of the commentors expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, or taxes prescribed by that facility. Other commentors stated that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. ' A A/Pc- cesd6 thw Ams c4 y & &
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{c-- ..On, it is quite clear from Gee ++s E/M cf the Act that Congress Tothe[ intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive the wastes by the NRC. ~~
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After consideration of the comments, staff recommeids the final rule proposed for Commission approval in Enclosure D. There are no major differences between the proposed and final rules but several clarifying changes are included. They are: Sep %cd 04 % hf ow M aie S9" 2n- A, % mg uGid. abs T gwa &
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___-_-____-__-__m
The Commissioners 5
- ]
In making the determination.that there is a serious and immediate I threat to the common defense and security, the rule provides that ] NRC staf f will consider whether the activity generating the LLW. is necessary to the protection of the common defense.and security. l 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. The proposed rule also specifies that the NRC will consider the common defense and security recommendations to be made by.the Department of Energy l (DOE) and/or the Department of Defense (D0D) in a " Statement of j l support." A Statement of support from the appropriate agency will I be required as part of any request for emergency access made in total or in significant part'on the basis of a threat posed to - the common defense and security. ($t " 6 4 + " "isc e
,hh $' 'Y #NS If the NRC makes either of the above determinations in the l affirmative, NRC will then consider whether any alternatives to i emergency access are available to the applicant. These include, but are not limited to: (1) storage of LLW at the site of genera-tion; (2) storage in a licensed storage facility; (3) obtaining access to a disposal facility by voluntary agreement; (4) purchas-p ,U#
ing disposal capacity; (5) requesting a license modification from NRC; (6) requesting disposal at a Federal disposal facility (appropriate for Federal or defense related generators of LLW only); (7) reducing the volume of the waste; or (8) ceasing the r activities that generate the waste. The NRC will consider whether -l the person requesting emergency access has considered all factors in their evaluation of alternatives including State-of-the-art technology and the impacts of the alternatives on the public health and safety. The NRC will consider whether the requestor has demonstrated that the implementation of an alternative is unreasonable because of adverse effects, because it is techn-ically or economically beyond the capability of the requestor, :' because it would result in the cessation or curtailment of essen-tial medical services, or cannot be implemented in a timely manner. If any alternative is determined by NRC to be reason-able, then the request for emergency access will be denied. If NRC determines that emergency access is warranted, NRC will then determine which operating non-Federal LLW disposal facility should receive the LLW. A facility would be excluded from consideration 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 emer-gency 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 this basis alone, the Commission will consider the type of
The Commissioners 6 1 waste, previous disposal-practices, transportation requirements,. radiological effects,. site capability for handling the waste, and any other information the Commission deems necessary. It is not 1 clear from the legislation what action NRC-should take if no site is. deemed suitable, and we have specifically requested comments , on this potential problem. j i In making the determination regarding;a request for an extension of emergency access (Section 6(e) of the Act); the NRC staff will . consider whether the circumstances still warrant emergency access 1 and whether the person making the request has been diligent during : the period of the initial grant to eliminate the need for emer-gency access. In ' making a determination that temporary emergency access is necessary (Section 6(d) of the Act),.the staff will have:to inake the determination that there is a serious and immediate threat to the public health and safety.or the common defense and secu-rity as otherwise required for emergency access, .but would not j have to consider whether mitigating alternatives. exist. j Jherulepoposes-t6'hav theDirectorof,the%f)iceo(Nucler j g/ te ial 5 yn y'and mak 9mergen ccess M,te(qina e r ThisSafgguards\(NMSS),i>afiid d terminatibq 1.s' on ghnical indings E # and
'is, in addi rmi'n tion must bel'icensing decision.
e~ein45dayspo'to.tbfpct s tha isNp/det e ake it appro-4 pri for tie Di c S/to make\the requ red etern ina-
'6 ti ffs lth ugh the,t'or Pe ofno specific pro 5/isidnhei prop)ose3L_
Y g3e to allow o review the emergenc, f miispnparticipation,t'ke-Commissioncan y access-determinations. at; its di'scre' tion.
/ ' Resource Requirements Consistent with the legislative history for Section 6, NRC staff expects that emergency access will be requested only under rare and unusual circumstances through 1993 and beyond. As ..m.ned.
in-Envi usure A, kc,y milestene5 dich could trigger denici cf j Ecer and reen1t in requett; fer es,m gency aue=5 vuu, un ' i 4anuary 1, 1999 and Janvery 1, 1930. Staff estimate it will take i approximately 180 staff days (six staff working 30 days out of the 45 days allowed in the Act) to complete the necessary review. Recommendation: That the Commission: ' M (1) Approve for publication in the Federal Register theIsceposed l new rule 10 CFR Part 62 enclosed here (Enclosure B) which would establish procedures and criteria for granting requests foremergencyaccesstolowjevelwastedisposalsites.
- 2. In order to satisfy requi x;ents of the Regulatory Flexi- -
bility Act (5 U.S.C. 6C4b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclosure D) under the Regulatory Flexibility Certification heading.
i 7 The Commissioners (2) Note:
.a/ Th ' th'e no 'ce o prohed emaki in Enc 1 b .
i e 'n t e tgallow ng i G, That the Chief Counsel for Advocacy of the Small /- Business Administration will be informed of the certification and the reasons for it, as required by the Regulatory Flexibility Act. hs' $544W b That this final ruid contains modi ications to informa-K- tion co_llection requirements subject to the require-
/ ments of the Paperwork Reduction Act.of 1980 (44 U.S.C.
/ c. .Tha-3501 et seq.), that Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action that are clarifying only so that the OMB approval remains J fron valid.
.s .-
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- - - -... _ . . ,;4 rThe staff has .v.. .
not prepared additional environmental analyses and continues to believe that additional environmental review would not be productive or beneficial.
- e. Thatcompli$cewithCRGR harter requirements is'not applicable for this rulemaking action as the rulemaking -
applies only to radioactive waste management, and is i not a generic requirement to be imposed by the NRC on one or more classes of power reactors. l f. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and N er of the House Energy and Commerce Committee, and the Subcommittee on Environment, Energy, and Natural Resources of the House Committee on Government Operations will be informed of the rulemaking by letter such as 4- + : r- 1 CA% 6 ,
?
- g. issued Thatapublicannouncement,EnclosureE,wi3pMrule-by the Office of Public Affairs when the-a L-making is filed with the Office of Federal Register.
- h. That a regulatory analysis, Enclosure Dj has been prepared for this rulemaking ,
- i. OGC has reviewed the proposed rulemaking package and l has no. legal objections.
The Commissioners 8 Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time. NRC should have the rule in place at the time a request for emergency access may be made.
- Consistent with th major trigger date for denial of access in the Act, the pra: n rule should be issued-b M h: f :f_
ML , . .. . . . ;_ir.; : - t -;n the fall of 1988. Victor Stello, Jr. Executive Director for Operations
Enclosures:
c ses A JjF. Draft Federal Register Notice 8C. Regulatory Analysis D. Draft Congressional Letter E. Public Announcement
/3, [d MwM Sb wdL % kth+s
g ,. ;Yg l Document Name: 10 CFR 62 CONG LTR ENCL D Requestor's ID: CAROLE f Author's Name: LAMBERT J 1 Document Comments: SS-11/37 COMMO FROM KCI - 12/1/87 l t l l l i i
l 4
)
DRAFT CONGRESSIONAL LETTER' 1 l
Dear Mr. Chairman:
Enclosed for your information is a copy of a' notice of. rulemaking for 1 10 CFR Part 62 to be published in the Federal Register. This rulemaking implements Section 6 of the Low-Level Radioactive Waste Policy-Amendments Act of 1985 (the Act). Section 6 directs .the Nuclear Regulatory Commission!(NRC) to grant a generator or State " emergency access" to a.ny q non-Federal commercial LLW' disposal facility if access to those facilities has; been denied but is necessary in order to eliminate a serious and immediate threat to the public health and safety or the common defense'and security. Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is proposing this rulemaking to establish the , procedures and criteria that will be used in making the required emergency 4 access decisions. Indevelopingthhr NRC has tried to be~ consistent with both the actual
) text of Section 6 and the Congressional intent expressed in the legislative J histo p The p ks Y:d rule sets strict requirements for granting emergency y access, places the burden of demonstrating that there is a need for emergency access on the party requesting emergency access, and should serve to encourage potential requestors to seek other means for resolving the problems created by lack of access to LLW disposal facilities Di Sincerely, t
Victor Stello, Jr. Executive Director for Operations
Enclosure:
As stated i 1 Enclosure D
e: .
- l Document Name:
10 CFR 62 REG ANAL ENCL C Requestor's ID: CAROLE-Author's Name: LAMBERT J Document Comments: SS-11/37 COMMO FROM KCI - 12/1/87 l l i I i 1 l j _ _ _ _ _ _ . ________.m_ _ . - _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _
REGULATORY ANALYSIS e 10 CFR Part 62 - Criteria and Procedures for Granting Emergency Access to Non-Federal or Regional Low-Level Waste Disposal Facilities
- 1. STATEMENT OF THE PROBLEM I
Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 , (PL 99-240, January 15,1986), "the Act", directs the Nuclear Regulatory Commission (NRC).to grant a generator or State " emergency access" to any non- j Federal commercial LLW disposal facility if access to those facilities has l been denied and that 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 l threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must i be able, with the information provided by the requestor, to make both determina-tions in the affirmative prior to granting emergency access. l
'TheActfurtherdirectsNRCtodesignateanoperatingLLWdisposalfacility to receive the waste which is granted emergency access and directs NRC to notify the appropriate State and Compact officials regarding the designation.
the Act provides NRC with 45 days from'the time a request is received to determine whether emergency access is required and to designate a facility. Although the Act does not require NRC de p a rule to carry out its Max 9 s nmM Section 6 responsibilities, NRC is p t r . r rul aking 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 order for a requestor to be eligible for emergency access consideration is that they have already been denied access to LLW disposal 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 1 Enclosure C
, 8.
' implementing Section'6 and gave the Commission authority to decide whether or not access will be provided, emergency access decisions are likely to be controversial and could be challenged. By setting out the procedures.and criteria for making emergency access decisions in a. rule which reflects public .
comment, NRC intends to minimize potential delays ~ in the actions necessary to protect the public health and safety.
- 2. OBJECTIVES ,
The objective of th rule is to establish criteria and procedures to be used by the-Commission to make the determination required by the Act that emergency access to operating non-Federal or regional low-level waste disposal facilities should be granted because denial of access has created a serious and immediate threat to the public health and safety or the common defense and security, that cannot be mitigated by any alternative consistent with protecting the public health ana safety.
- 3. ALTERNATIVES 3.1 Using Rulemaking Under this alternative the criteria and procedures to be used by NRC to make emergency access decisions would have the force of law. Using rulemaking also provides binding criteria and procedures and therefore would add predictability and stability to the regulatory process. In' addition, rulemaking i allows for input from potentially affected individuals and organizations, should minimize potential delays in the actions necessary to protect the public health and safety, and will help to ensure that the Commission will be able to make a decision on emergency access requests in the time. required by the Act, all of which are desirable since emergency access decisions are likely to be highly controversial. )
l 2 Enclosure C L--_-_-__________-_____-_.___
- 3. 2 Using a Policy Statement The alternative of issuing a Commission Policy Statement to establish the procedures for emergency access decisions was rejected. Under this alternative, e the criteria and procedures would not have the force of law or provide the opportunity for input from affected parties. In addition, a policy Statement was not considered appropriate to establish the detailed criteria and procedures required to implement NRC's emergency access responsibilities 3.3 Taking No Action The alternative of taking no action was also rejected. Under this alter-native, both the person requesting an emergency access determination and the Commission would have to rely on the language in Section 6 of the Act for guidance as to what information was to be used by the Commission to make the determinations. The Commission could not be assured of receiving the relevant
! information necessary for a determination and that could cause delays in the Commission's mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with the spirit of the Congressional directive, to provide predictability in the regulatory process, and to assist the Commission in making individual determinations.
- 4. CONSEQUENCES 4.1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive waste disposal facilities made pursuant to provisions of the Act should not result in a serious and immediate threat to the public health and safety or the common defense and security. In those cases where emergency access is granted under the rule, the recipients will receive the benefit of continuing the activity responsible for generating the waste at least until the grant expires, and society will benefit from continuing access to the goods or services 1 3 Enclosure C l
4
produced by that activity. Since emergency access decisions will be made on an individual generator / licensee basis, and since NRC staff cannot predict the number of requests that might be received, it is not possible to quantify the benefits associated with the rule. . 4.2 COSTS 4.2.1 Applicants for Emergency Access Applicants requesting emergency access may be generators of LLW, NRC or NRC Agreement States licensees, Governors or other State chief executive officers on behalf of the generators or other " persons" as defined in the proposed rule. NRC staff estimates that regardless which of these persons requests emergency access, approximately two (2) weeks of the requestor's professional staff time will be required to process the paperwork necessary to i complete a request for an NRC determination pursuant to the requirements set j out in the Act and which have been codified in the proposed rule. Because the l circumstances will be different for each applicant, it is not possible to ' 3 quantify the time or resources required for each of the applicants to collect l the information and perform the analysis on which the request will be based. This is particularly true when it comes to the possible need for long term data ] collection and the in depth analysis and consideration that will be necessary to evaluate alternatives. Other possible costs associated with th -
] action are driven by the very specific mandates in Section 6 of the Act. If NRC does not grant a request for emergency access, the applicant may have to alter the activities generating the waste in question, even to the point of ceasing them for sume period of time, or possibly curtailing them altogether. The costs to the requestor could come from expenditures either in time or resources required to I alter the activities or processes responsible for generating the wastes, or from loss of income from reduced or curtailed production.
l 1 4 Enclosure C
4 'I l l l 4.2.2 NRC 3 As provided by Section 6 of the Act, NRC will only have about 30 working days to respond to each request for emergency access (45 calendar days = 6 and 1/2 weeks = approximately 30 working days). NRC anticipates that approxi-'
- mately 180 staff days will be required for'each request. NRC cannot project ]
the number of requests that might be received, so total costs to the NRC cannot be estimated. However, given the Congressional intent that Section 6 of the l Act be applied only.in " rare emergencies", it h'not expected that the regula-tion will'be applied with any sfre cy. j In order to implement thdb;:::d rule, it will be necessary for NRC ] staff to develop guidance to assist applicants in preparing their requests, and to assist NRC staff in conducting'their reviews. .This represents an' additional I commitment of NRC resources, i Since Section 6 prec access decisions, the.M}udes d action willNRC Agreement not have an impact onStates from making em Agreement ] State resources. l
'I 4.2.3 Department of Energy (DOE)/ Department of Defense (D00) I NRC idDEr+t r; quire that request's for emergency access based totally or in significant part on a serious and immediate threat to the common j defense and security, include a Statement of support from D0D and or DOE. .
Thi+-ar-rangement-wi44-not teJormalizedant44-after-the pubiiscomment-period-
-so=11-4+-difhli,- te d=srmine=whabrasaurrac would-bewequired-ttr= prepare j such-a-StatW h s vi support. NRC estimates that approximately five staff weeks would be required for each emergency access request processed by DOE or D00.
- 5. DECISION RATIONALE
-f.uxL NRC decided on the approach in the p e;md rule in light of the Congressional directives in Section 6 of the Act and considering the comparison of alternatives as discussed in the preceding section.
i 5 Enclosure C
- 6. IMPLEMENTATION The schedule for implementation of the rule is dictated primarily by.the schedules and milestones in the Act. The Act sets out three milestone dates ,
requiring the States and Com? acts to demonstrate specific progress'towards the development of new LLW dispor,al capacity, or their LLW generators may be denied further access to existing disposal sites. The first date for potential denial of' access was January 1, 1987. The States were able to satisfy the requirements for that milestone and none were denied access. January 1, 1989 is the next date when the.three operating LLW disposal facilities can refuse to g ceg waste'from a particular State. .NRC plans to issue the final rule by Augwrt 1988,'so it will be in place before ! that January 1989 potential denial of access date. However_,4 h:-F M = tes - l that_phouM_th; husi 5LatesNTF0 an uns4tF4-hi,6i.e ur Compaci iv iiove failen _QA ancc "ith thdanuary 1 7 1%7 : E d ^ne, then deniaLof-acters' _could neemtTd7Mme_0nce the final rule is issued, its actual implementa-tion will be triggered by NRC receipt of a request for emergency access. . In the event that a request for emergency access is made before the final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental Impact Statement 'need not be p d in connection with this rulemaking action because promulgation of the? :p ;d rule h f t! '-
is not a major Federal action significantly affecting the ality of& the human fh environment within the meaning of NEPA. 4, _ , _ _ _ , _ '. _ r : p : e would establish criteria and procedures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the common defense and security. For the most part, the ed rule is an administrative action which serves to codify the criteria and procedures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect. 6 Enclosure C
l I Making a Commission determination to grant emergency access in accordance with these criteria and procedures should also be without adverse environmental impact. The provisions in the rule will be activated only at the request of a j LLW generator or State government official on behalf of a generator because =l 4 serious impacts to the public health and safety, the common defense and security, j and possibly the environment are anticipated as a result of denial of access to I a LLW disposal facility. NRC will become involved only when the need for I corrective action has been identified. Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action l necessary to assure that the public, the national. security and the environment I are protected. Whether the Commission decides to grant emergency access, or to l deny it because alternatives are available, NRC will make the decision only when satisfied that the action to be recommended will minimize the effects of I concern and maximize needed protection. The Commission designation of the LLW disposal facility to receive the LLW approved for emergency access should not result in adverse impacts to the environment. First of all, Section 6(h) dictates that the total quantity of emergency access LLW approved for disposal at any non-Federal or regional LLW disposal facility must fall with he volume caps established by the Act, and for l any 12-month period, be less than 20 percent of the total volume of LLW accepted l by that facility during the previous calendar year. Thus, the amount of waste l provided disposal under the emergency access provision will be much less then j the total amoun'. of LLW that will be disposed of in regional or non-Federal disposal facilities. In addition, waste granted emergency access will have to ' be processed, transported and handled in a manner that complies with applicable safety regulations. Secondly, NRC will be considering the characteristics of l the LLW requiring emergency access in designating the receiving facilities in order to assure that they are compatible and that the impacts from each indi-l vid:Jal grant of emergency access are minimized. 1 7 Enclosure C L___-________-____ . _ _ _ _ _ _ .
e
- 8. REGULATORY FLEXIBILITY ANALYSIS 9
4.oL> NRC is using this peepeeed rule to implement the statutory requirements for granting emergen(.y access to non-Federal or regional LLW disposal facil- , ities under Section 6 of the Act. Based upon the information available Et:::iMs
-ft;;q;jf_ 't- '---S;;+mweeing and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that,: 2 _' , ' ., 1 3 this rule will not have a significant economic impact upon a substantial number of small e es.
The y r; r d rule has the potential to affect any generator of LLW. However, in order for the requirements of' the rule to be imposed on a generator, he must request emergency access to a non-Federal or regional LLW disposal facility, having been denied access because the State or Compact Region in which he is located has failed to comply with the milestones for LLW disposal development in Section 5 of the Act. Establishing criteria and procedures for requesting and granting emergency access will have a positive benefit for small and large generators alike. It ' will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development. The impact of the recordkeep 4q requirements on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to decide a course of action if necessary access to LLW disposal was not going to be available. 8 Enclosure C
1
. s 10 CFR 62 MEMO AK.11 '987 MEMORANDUM FOR: Victor Stello, Jr.
O Executive Director for Operations b g FROM: Hugh,L. Thompson,' Jr. ,- Director 4 3ccIqad - g Of fice of Nuclear _ Material' Safety' and Safeguards' -( hu,o 2
SUBJECT:
P_ROPOSED NEW RULE, 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" y A Enclosed for your approval is the rulemaking package for the proposedskal new 'g Part 62 to Title 10 of the Code of Federal Regulations. The Pepered rule t # wo dd establish criteria and.pr,ocedures to enable NRC to determine whether c N emergency access shodd-t+e-gsaMed 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 (the Act). l Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, staff recommended using rulemaking in order to - j Jh minimize potential delays in initiating the corrective actions that may be # g'[(;,1 necessary to protect the public health and safety. Your office approved.dnis rulemaking on August 25, 1986. 7A3 c~ o s G v.a d' on 3 &. /5/ N hZ jgg %dzLgbET Q vy n y D n.,,.gi . p ur d a n ot.a/ mi fduu In developing the rule, staff t)see tried to be consistent with both the act P ,s text of Section 6 of the Act and the Congressional intent expressed by Congress
\.,
in the legislative history. fiiowe
, tiprJ in orper to imptemeWspe ' ' r,provisipstaff ivund it nece3>ery tu apply disse- -
o ection 6 e prea ther le ppecifip'dijyqque d to ic co Int on hose p -ts o the le wher dijcr ti n was,3p 1ied, J ' icp in tha RC %y'I okin or wa s i hich w could tter pJe j 9 rf spuosi venn T.hlise 'swe i fnt of gress and e a bette sition to be '/' The wppated rule sets strict requirements for granting emergency access, places the burden of demonstrating the need for emergency access on the party requesting emergency access, and should encourage potential requestors to se other means for resolving the problems created by lack of access to L _ disposal facilities.
/ l 1' OE~ M /u.cfn.an- . Eesy.w>,sa.c w s
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10 CFR 62 MEMO _g.
% dewp-acterc tm t hnen4Wo. Based on the January 1, 1989 milestone we have scheduled to issue a',- ,
W, mic by the--idmefE7-d the final rule in the fall of 1988. Immediate Commission attention to this issue is necessary,to meet this schedule.
*j lJH6)
The 2d rule has been concurred in by/ ARM, NRR, and SLIT.P.an&ceerdN-ed epf.cp,1 9 h , OGC has reviewed the yn;----5d rule and has stated that it has no legal objections. (Stoned) Hugh L. Thomptott, k. Hugh L. Thompson, Jr., Director Office of Nuclear Material Safety and Safeguards
Enclosure:
As Stated 1 l l
- ARM :NMSS :NMSS 4 m pnr.vt005 '
- RBernero : pson cmcaMMice - ho-IL 'd :
@ ish%< % CM' :87/07/ :87/07/g S M M/ c4>1 cM :87/07/ )
> , /2 3 / 97.
OFC : LLRB: kj :LLR :LLWM :0GC :NRS : SLITP :FC
. g h _. g .________. f _________:,.__p j g (4 F ______
- b_r___v_e_s____ : (t/ calx 2/)
--- W NAME : mbert :MKearney ,'.,7'5 2f T[ :
-----: oyle----- :------------:M - g-- ---
- 87/07/,2.3 DATE : 7/ :87/07/.j 3 :8 1 :--/07/
- 87 .s. eg: 87/07/ :87/07/
5"T% _.w.
\
'7[347 .
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(s y'b/ rs - f\ ~ f \0 For: 3 ,/ The Commissioners From: ' Victor Stello, Jr. M Executive Director for Operations
Subject:
* ' ( fidJ (hh -
PROPOSED 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING
%p , '\EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE
/ DISPOSAL FACILITIES" '
, b WL& Q
Purpose:
! ) J To obtain approval to put0LBhdityh+4wcommad a peoposed. new
/ m, Part 62 to Title 10 of the Code of Federal Regulations that would
/ / ; establish criteria and procedures to be used by the Nuclear
/
WC Regulatory Commission (NRC) in determining whether emergency access
! h,k should be granted to operating, non-Federal, low-level radioactive
/ J disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985.
S umma ry: ,. , Section 6 of the Low-Level Radioactive Waste Policy Amendments y4 - 1
}Actof1985providesthatNRCcansetasidedenialofaccessdecisions and gran
/LLW disposal facilities if there is a serious and immediate ythreat to the public health and safety or the common defense and security that cannot be mitigated b ava'lable alternatives. W SteH--havejavalnpedThe enclosed .
ruledoimplement NRC's responsibilities pursuant to Section 6. The rule sets out strict requirements for granting' emergency accessy aspplaces the burden of demonstrating the need for emergency access on the requestingprgency accessMC_may_never receive a .. g A / gparty T reques _Pfor emergency access Astptaff estimates 180 staff days f fwill be required to process such requests, within the 45-day 4 prat
// statutory limit for an NRC decision. l J' ;
i
Background:
' The Low-Level Radioactive Waste Policy Amendments Act of 1985 4 (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 the development of regional LLW disposal facilities, so that the new facilities will be available by January 1, 1993.s-nt mbert, NHSS ffgggaat N DMMuAjL fMOU
- 427-4751 N '"
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The Commissioners 2 l lFhe d devAc)hlotablishes ent' of\thepro L edurepnd disposal f- milestonesies. for ethe f-T selection Act p so esabljshes systessof in ntiksf me pthe les ;on s ,j
.and enalties gr fail.ing to eet' em whi s int dj )4.0 assd ste'ady' prb red toward ew . f ac i.] i elopment/
, bmL wik .m,t ' d * '
.(
The ,da'j 'ficentive f fered by th Actf) that/ eSpt'es n J regionalf ompact,s'whi ptet f the i gtones yill e allowed ;o ' pontinue t u p the ex' ing d7 posp faci)4 ties p singsthy x' ,
/ tranp4' tion p riod un 1t ' chimes-eWevaiisbW, i f J If unsited States.or Compact _
~
Ll a t4r thafuCan ~ry u, i c# \ regions fe 9 to meet key milestones intthe Act', the States and Compact CL.nmission with the operating LLW disposal facilities 1 [W are authorized to demand additional ~ fees for wastes accepted for ) t disposal, and ultimately to deny the LLW generators in the ] [ delinquent State or Compact region further access to'their 1 facilities.K Section 6 of the Act provides that the NRC can grant a generator !
" emergency access" to non-Federal or regional commercial LLW 1 disposal facilities if access to-those facilities has been denied !
and that access is necessary in order to eliminate an'immediate and serious threat to the public health and safety or the common l gffnse,and
~ security $ The Act also requires that a determination l e m'adi~aTto whetTFr the threat can be mitigated by any alter- J native consistent with the public health and safety, including .l i ceasing the activities that generate the waste, NRC must make~
d both determinations prior to granting emergency access. I WThe ct-further p vides/ that NR is to desf ate the operating '
'sposal facily ' or facilitie where p the.
LLW ste will be sent i for'di osalif)HtC termines that he'circumst nces warrant a-
,panto emergency acc s. NRC is re ired to_no 'fy the Governor-(or chief ex'ecutive offi r) of the S'ta in which e wast'e was i generate # iat emergency a ess ha been ranted, an ' W notify ;
'l/bereceivigthewaste% hat the 5, tate an Compact which i emergency access to their LLW. 'sposal f acility is fe' quired.[ The '
[Act provides NRC with 4V aays f rom tne time a request is received to determine whether emergency access will be granted, and if so, l to designate the receiving facility. f - Q he Act provides that NRC can grant e rge access for a period D not to exceed 180 days per request 3 4- yallo 8s that only one, 180-day extension of emeraency,, access can be granted per-yf GAredension-e be appWid'pnly if the generator of lo .evel rad' active was who was oric}inally g anted ergency ac ss and the tate in wh1 h such low-l el radi active waste ' was enerated ha e.diligenti , though unsu c,essfully, act d -/ du'ri the period ' f the init 1 grant to e inatekene ,for emerge cy access. /
/
L_-___-- _ _ _ _ -
.The Commissioners 3 h
emporary'emerg cy access" ma' be, granted at NRC's discretion p ding /a determin t, ion on mitig ting altern tives,fi the NRC' det rmines that enie ency acces,s' s necessary eca6se-
- a. "
seri us and immsdiat t'o th public hej 'h and sa ety o the c mon defense an threat securi,ty.
~
T ( gra3t'of t mporary ss-i f s not , exceed 45 day ' The Act atso provides that requests.for emergency access shall contain all information and certifications that NRC requires to make its determinate [heAc provides that only NRC can grant emergency access. The Agreements States are specifically ' precluded from making - emergency access decisions.
%skthakng: i Att+4agbie Act does not require Ct devel' a rule t,o carry
'~"""
out its Section 6 responsibilities. Staff __ _ ,,,,~ , ,.ds A -
. ruls to establish the procedures and criteria that will be used in
,W"Sa'k~ing the required emergency access determinations Apaattning out-the-procedures--and criteria _.fon making-emer.gancy .aceess '
dec4s4ons-inragrubwhichge_f,]ectsepublic-commentr+taff hds" d' t<r-provideran opportuni-ty-for-inputzfrom-potentially-affected individuals-or-organizetsonettadd predictability to the decision-making process, and help to-en3ure that the NRC will be able to make decisions on emergency access requests in the time required by the Act. 1 The legislative history for the Act emphasizes 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 expected that responsible action from the generators and the States / Compacts should resolve most problems arising from denial of access deci-sions, thus precluding the necessity for involving the Federal sector in granting emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort. h In developing the emergency access rule, the staff has tried to ~ g be consistent both with the actual text of Section 6 of the Act a'nd with its understanding the intent expressed bv Cnnnroce
'q regarding decisions made pursuant to Section g fTfre y ,_ c ru e-set est-requirement ur granupg merge (y ccep, h burdp o er ency ac ess pl th9 o ces[p rty rpques ing erpergendemong accegs, drati g the sh uld pee ofor serpe e couf'a gen (rato s to s6ek o er means rre'olv[ngthe s
d todem c'i11 crf s'. d (ted bQ pote'ntial I c_k of acc ss 'o LL G posaI - [ b'
. c- f V' -
c p On January 15, 1987, NRC issued a Notice of Intent to develop ! this rule (Vol. 52, Federal Register, No.10, p.1634), -%d:s { W h x w,d s I5 t'i9 q 7 M t2 C unnub A yow l^& .
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)
The Commissioners 4 < I p n m ,,, -! C s pla p.otice ann 6unced emergency N{ac' acess, ns forjseitingArict re'quirement's'for' brant\1 . 1 Staff 5 -Approach and Assumptions v
\
/
In developing the proposed rule, the staf;f's approach has been to: ( Assure-that all of the-principal pr visions of Section'6)of the Act are addressed in the regul ion. l }
/(2) Identify the information and certifications that will have
! < to be submitted'with any request or emergency a_ccess i ' i order for NRC to make the necessary determinations;
/. ./ /
(3) Assure that'the procedures.and criteria that are estab1:ished-in 10 CFR he 45-day periodsp/Part62canbeimplementedwithin ecified in the Act. / (4) Estab) sh procedures for designating a si wast ( which are fair and equitable and ichwh,te to receive are consi tent the with'the other provisions oft the Act including the lim'its on'the amount of waste that can be d Wposed of at each
-tiperatina non-Federalor raninnal fh'rility. I f5M%MN4hrbugksaYEQS W lo g g'1Est'ablish requirements for granting emergency access that are stringent enough to discourage the unsited States and ;
I 6 regions from viewing emergency access as an alternative to ) diligent pursuit of their own disposal capability, and yet 8 A0 P[t 1 flexible enough to allow NRC to respond appropriately in situations where emergency access is genuinely needed to
@2 t4
)g i protect the public health and safety or the common defense l
%0 k and security. l l
The Proposed Regulation ^' 1
/< [
RJ j The proposed rule addressed Wach of the determinations that NRC mustmakeanddescribedhowtheywillbemade. [, In order to make the determination that there is a serious and immediate threat to the public health and safety, the D&pector C%ue of-the 0f-fdstr2cf-Nuelear" Mate,414afeand-Safeguards (N"45), 9 ' N> -u-de signe e s o f~th ec E xe c+tive=Directe f o rtp e ratioir* Q will T conclude consider whether the circumstances described lead that there is no longer reasonable assurance that the affected i generator or generators can continue to comply with NRC's regula- . tions in 10 CFR Part 20, and as a result, that the public health and safety will be endangered. In making this determination the ) NRC will consider the significance of the situation described in I the context of the requirements issued by NRC in the facility ; I license, the technical specifications, and any applicable regula-I tions and orders of the Commission.
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ypwad k . d 9 l In general, commentors cxpreted sypport fpr NR ' issuan of a rule f . S .;bGxt ecisions %g tVrthinges thn .. .v --mpro&orY I
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- i n;;, i vLLy i nu.~w.0, expressed opposition to the issuance of the rule itself. That commentor indicated that the rule should be withdrawn because grantirm emergency access would infririge on the States' right to manage their LL'W WNRC was legisla-tively mandated to make emergency access grgao not otherwise able te manage 4their LLW hcine the-ph m+er hgn ta g rg g
,mucW-he'i anguaWmSoct.to:LJL.r # the %t, NRC does not consider that the
~s ~
.e. a emergency access rule interferes with states' rights,tv -'
' ~
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By far the'most common concern expressed by commentits was rg ncy ; access would br"xd ta force operating non-federal or regional LLW disposal facilities to accept LLW they are e453er clearly not responsible for under
)
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~ 5 I ,che hgional Compact or'Dtate receiving the emergency access waste is entitled to reciprocal access at any subsequent facility tha't serves the Compact region or State in which the emergency access waste was generated. It further provides that the @ gional ; 6cmpactorhtatethatreceivestheemergencyaccesswasteshalldesignate, l 1 for reciprocal access o "an equal volume of Low-level radioactive waste having similar characteristics to that provided' emergency access." M b QC E b ' c.4.,</t3d
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W 0 * # L p,~~,x n.- sium a & % cy tb posdnah . //owevefd%'{ ke AA $ M &n % AhfL k A5 w T Q t&.b f b If the l 1 NRC were to require a formal promise of reciprocal access as a-necessary condition for considering a request for emergency access, under certain cir-cumstances, actions necessary to protect the public health and safety Gould be delayed or compromised. 5$ The NRC reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule. D NS
& -kiw Our a. C W Ch d a N W Q Three of the commentors representing States or Compact O mmissio /n cated '
that the NRC had been remiss in not including a provision in the proposed rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Coninission of the region in which the ! designated site is located. { M g g+- I d any grant of access onder this Section shall be submitted to j the Compact Coninission for the region in which the designated disposal l facility is located for such approval as may be required under the terms of its compact." This provision has proven to be smiiiiillhat controversial because ws t- I it is open to several interpretations. The interpretation mrt frequently I d i n te s te to h etef a s regarding t c ep n o m - gency access wastes. They believe Congress intended that a receiving Compact {. Commission could reject the NRC's emergency access determination - essentially l that Congress intended the compacts to have the power to veto the NRC's l' decision. The commentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule. i
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Ba6] keuh *aw9% p up) a ph chaJ n t / I ph.[. Thebasicp or tne section b emergency access provision is to ensure that sites d et would normally be closed under the'Act will be available in emergency situations. A Compact Commission veto of the NRC's_ decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework estab-lished in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be condi-tioned on the Compact's acting in accord with the provisions of the Act.fIf 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).] # .
$$ Wds .auf NO ad (Is fio - !@d j 0 J f Th w Y w M a hu a w hitoLv M j%ut.
i 5 number of the commentors expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, or taxes prescribed by that facility. Other commentors stated that LLWs granted emergency access l disposal should not have to pay any special fees, beyond those specifically [ mandated by the Act. ' *' s Ma G%f2MCSJ.d A ofl SAu & A A/% casalw &w dents c4 % do
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C^ri:,; ion, it is quite clear from fection-M cf the Act that Congress Tothe[ l intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive the wastes by the NRC. ~ i
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WW OL 51 (o /%b l N M5, bM M-After consideration of the comments, staff recommends the final rule proposed for Commission approval in Enclosure D. There are no major differences between the proposed and final rules but. several clarifying changes are included. They are. l
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The Commissioners 5 In making the determination that there is a serious and immediate threat to the common defense 'and security, the rule provides' that NRC staff 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. The. proposed rule also specifies.that the NRC will consider the common' defense and security.' recommendations to be made by the Department of Energy (00E) and/or the Department of Defense (D0D) in a " Statement of support." A Statement of support from the' appropriate agency will be required as part of any request for emergency access made in total or in significant part on the basis of a threat posed to the common' defense and security. Ut*"'- " " "isens,s-h"f Y ** Y'W If the NRC makes either of the above determinations in the affirmative, NRC will then consider whether any alternatives to' emergency access are available to'the applicant. These include, but are not limited-to: (1) storage of LLW at the site of genera-tion; (2) storage in a licensed storage facility; (3) obtaining y p- eccess to a disposai faciiity by voluntary egreement; (4) purcnas-ing disposal capacity; (5) requesting.a license modification from NRC; (6) requesting disposal at a Federal disposal facility (appropriate for Federal or' defense related generators of LLW only); (7) reducing the volume of the waste; or (8) ceasing the e activities that generate the waste. The NRC will consider whether the person requesting emergency access has considered all factors in their evaluation of alternatives including State-of-the-art technology and the impacts of the alternatives on the public health and safety. The NRC will consider whether the requestor has demonstrated that the implementation of an alternative is unreasonable because of adverse effects, because it is techn-ically or economically beyond ::,he capability of the requestor, because it would result in the cessation or curtailment of essen-tial medical services, or cannot be implemented in a timely manner. If any alternative is determined by NRC to be reason-able, then the request for emergency access will be denied. If NRC determines that emergency access is warranted, NRC will then determine which operating non-Federal LLW disposal facility should receive the LLW. A facility would be. excluded from consideration 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 emer-gency 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 j on this basis alone, the Commission will consider the type of '
s The Commissioners 6 waste, previous disposal practices, transportation requirements,. radiological effects, site capability for handling.the. waste, and any other information the Commission deems'necessary. It.is not' clear from the legislation what action NRC should.take if no site is deemed suitable, and we have specifically requested comments.. on this potential problem. In making the determination regarding a request for an extension of emergency access (Section 6(e) of the Act), the NRC staff will consider whether the circumstances still warrant emergency access and whether the person making the request has been diligent during the period of the initial grant to eliminate the'need'for emer-- gency access. In ' making a determination that-temporary emergency access is l necessary (Section 6(d) of the Act), the staff will have~to make L the determination-that there is'a. serious and immediate threat; to the public health and safety or the common defense and secu-rity as otherwise required for emergency access, but would not have to consider whether mitigating alternatives exist.
.Q Jherulep the. Director offth6._ Offlice o Nuclejr g/ M,t {ial Sa(oposes-t'o have/y 'and SafgguardsN(NMSS),,ma p 'ygmergen[cy, findings access.
,g etenninaJt/on This dgterminati'on is'baued on echnicali y# ankisN 6t a lhensing/ decision. Jhis, in addipion to the, fpct g that\t e/det rmi' nation must be ma'de in 45 days, akhsitappro-k 'g -
priaeffortieDir)c[torof MSktomake'therequreddeteryna-l tip .hlthughthye' no specific proVisi,on i he prop _o_sEL . ' M u.1 to allow f mi'ssion participation, the-Commissipn can ( / t'eview the emergenc'y acce5s determinations at its' dis,cretion. I Resource Requirements Consistent with the legislative history for Section 6, NRC staff expects that emergency access will be requested only under rare and unusual circumstances through 1993 and beyond. As J _xed . in-Euu i us u re A , icy a.ila tene5 ,dich cculd trigger denici of _acces; eM exnit in req"c t; foc mg.a g ucy acce== uuuur un Manuary 1, 1999 and Januc , 1, 1990. Staff estimate it will take approximately 180 staff days (six staff working 30 days out of the 45 days allowed in the Act) to complete the necessary review. , I Recommendation: That the Commission: ' M (1) Approve for publication in the Federal Register the Maopewed l new rule 10 CFR Part 62 enclosed here (Enclosure B) which would establish procedures and criteria for granting requests for emergency access to low-level waste disposal sites.
- 2. In order to satisfy requirements of the Regulatory Flexi-bility Act (5 U.S.C. 605(b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclosure D) under the Regulatory. Flexibility Certification (
heading. l (
The Commissioners 7 (2) Note: a[ th% no 'ce o pro ed lemaki in Enci e i ') b p bl hed 'n tn ede , ay fo u i Reg' teg llow ng G, m nt ( That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the / certification and the reasons for it, as required by the Regulatory Flexibility Act.
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f That this final rul nt s modi ications to informa-tion collection requirements subject to the require-ments of the Paperwork Reduction Act.of 1980 (44 U.S.C.
- c. Tha-3501 et seq.), that Office of Management and Budget that (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action
'} fron
' are clarifying only so that the OMB approval remains valid.
a: &&do.suap , '&gabcky, Af.us.]
&{J'~_,,Ake staff has at pNpareM5T~ ~
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environmental analyses and continues to believe that additional environmental review would not be productive or beneficial.
~-
- e. .__
That compliance with CRGR charter requirements is'not applies only to radioactive waste management, not a generic requirement to be imposed by the NRC on one or more classes of power reactors, f. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House 5 Conservation and Power of the House Energy Committee, and the Subcommittee on Environment, Energy, and Natural Resources of the House Committee on A letter by % 6such , Government as M m ._D. C Operations will be inform g. That a public announcement, Enclosure E, wi by the Office of Public Affairs when theegi g issued M rule-making is filed with the Office of Federal Register. h. That a regulatory analysis, Enclosure D has been prepared for this rulemaking j
- i. 0GC has reviewed the pro has no. legal objections. posed rulemaking package and
1 8.- .. i The Commissioners- 8 Scheduling: Few, iffany: emergency access requests are anticipated. However,: y a' request could be made'at any. time. NRC should have the rule in 8 place at the. time a request for emergency access may be made. . Consistent with th e major trigger date'for denial of; access in the Act,-the pr_;;;; rule should be' issued-b p : f: d . 40 07 :: 2 .. . ;.f. -.-: ' t ln the fa114of 1988. Victor Stello,.Jr. l. Executive Director for Operations
Enclosures:
g 3 Ag..DraftFederalRegisterNotice '
/7C. Regulatory Analysis .
D. Draft Congressional Letter' E. Public Announcement . d w lak i l l L__ _ _
s REGULATORY ANALYSIS e 10 CFR Part 62 - Criteria and Procedures for Granting Emergency 1 Access to Non-Federal or Regional Low-Level Waste Disposal Facilities i i
- 1. STATEMENT OF THE PROBLEM k
l Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 { (PL 99-240, January 15,1986), "the Act", directs the Nuclear Regulatory ] Commission (NRC) to grant a generator or State " emergency access" to any non- ; Federal commercial LLW disposal facility if access to those facilities has l been denied and that access is necessary in order to eliminate an immediate and j 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 consistent with the public health and safety, including ceasing the activities that generate.the waste. NRC must be able, with the information provided by the requestor, to make both determina-tions in the affirmative prior to granting emergency access. TheActfurtherdirectsNRCtodesignateanoperatingLLWdisposalfacility , to receive the waste which is granted emergency access and directs NRC to notify the appropriate State and Compact officials regarding the designation. the Act provides NRC with 45 days from 'the time a request is received to determine whether emergency access is required and to designate a facility. j 1 Although the Act does not require NRC develop a rule to carry out its w:s 1-fr4 weh>L Section 6 responsibilities, NRC is pry Ef r rulemaking 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 order for a requestor to be eligible for emergency access consideration is that they ) have already been denied access to LLW disposal 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 l Compacts' expressed desire not to accept waste from that particular State or l generator. Although Congress provided NRC the statutory responsibility for 4 l 1 Enclosure C 4 1 1
-implementing Section 6 and gave.the Commission authority to decide whether or not access will be provided, emergency access' decisions are .likely to be controversial and could be challenged. By setting out the procedures'and criteria for. making emergency access decisions in 'a rule which reflects public. .
comment, NRC intends to minimize potential' delays in the-actions'necessary to
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. protect the public health and safety.
- 2. OBJECTIVES ,
The objective of th . rule is' to establish criteria and' procedures to'be used by the Commission to make the determination required'by'the Act that emergency access to operating non-Federal or regional low-level waste disposal-facilities should be granted because denial of access has created a' serious'- and immediate tnreat to the public health and safety or.the common defense and. security, that cannot be mitigated by any alternative consistent with protecting the public health and safety.
- 3. ALTERNATIVES 3.1 Using Rulemaking i )
Under this alternative the criteria and procedures to be used by NRC to make emergency access decisions would have the force of law. Using rulemaking also provides binding criteria and procedures and therefore would add predictability and stability to the regulatory. process. In addition, rulemaking allows for input from potentially affected individuals and organizations, should-minimize potential delays in the actions necessary to protect the public. health and safety, and will help.to ensure that the Commission will be able to make a decision on emergency access requests in the time required by the Act, all of-which are desirable since emergency access decisions are likely to be highly controversial. i 2 Enclosure C
3.2 Using a Policy Statement-
'T'.e alternative of issuing a Commission Policy Statement to: establish the procedures foi emergency access decisions was rejected. Under this alternative,- . , the criteria and procedures 'would not have the force of law or provide the opportunity for . input from' affected parties. = In addition, a policy Statement was not considered appropriate to establish the detailed criteria and procedures required to implement NRC's emergency access responsibilities.
0.3 Taking No Action The alternative of taking no action was also rejected. Under this alter-native, both the person requesting an emergency access determination and the Commission would have to rely on the language in Section 6 of the Act for guidance as to what information was to be used by the Commission to make.the determinations. The Commission could not be assured of receiving the relevant information necessary for a determination and that could cause delays in the Commission's mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with the spirit of the Congressional directive, to provide predictability in the regulatory process, and to assist the Commission in making individual i determinations. l
- 4. CONSEQUENCES 4.1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive waste disposal facilities made pursuant to provisions of the Act should not I result in a serious and immediate threat to the public health and safety or the common defense and security. In those cases where emergency access is granted )
under the rule, the recipients will receive the benefit of continuing the l activity responsible for generating the Waste at least until the grant expires, ) and society will benefit from continuing access to the goods or services 1 3 Enclosure C 1
s l produced by that Octivity. Since emergency access decisions will be made on an individual penerator/ licensee basis, and since NRC staff cannot predict the number of requests that might be received, it is not possible to quantify the benefits associated with the rule. . i
)
4.2 COSTS 1 4.2.1 Applicants for Emergency Access Applicants requesting emergency access may be generators of LLW, NRC or. J NRC Agreement States licensees, Governors or other State chief executive officers on behalf of the generators or other " persons" as defined in.the i proposed rule. NRC staff estimates that regardless -which of these persons f requests emergency access, approximately two (2) weeks of the-requestor's. i professional staff time will be required to process the paperwork necessary to complete a request for an NRC determination pursuant to the requirements set out in the Act and which have been codified in the proposed rule. Because the -l circumstances will be diffe' rent for each applicant, it is not possible to quantify the time or resources required for each of the applicants to collect the information and perform the analysis on which the request will be based. This is particularly true when it comes to the possible need for long term data collection and the in depth analysis and consideration that will be necessary to evaluate alternatives. t _ Other possible costs associated with thk action are driven by the very specific mandates in Section 6 of the Act. If NRC does not grant a request for emergency access, the applicant may have to alter the activities I generating the waste in question, even to the point of ceasing them for some period of time, or possir.ly curtailing them altogether. The costs to the requestor could come from expenditures either in time or resources required to ; alter the activities or processes responsible for generating the wastes, or from loss of income from reduced or curtailed production. 4 Enclosure C L-_-_____-___---__--__-_-______ _- ..
4.2.2 NRC As provided by Section 6 of the Act, NRC will only have about 30 working days to respond to each request for emergency access (45 calendar days = 6 and 1/2 weeks = approximately 30 working days). NRC anticipates that approxi- e mately 180 staff days will be required for each request. NRC cannot project the number of requests that might be received, so total costs to the NRC cannot be estimated. However, given the Congressional intent that Section 6 of the-Act'be applied only in " rare emergencies", it is not expected that the regula-tion will be applied with any sfre cy. In order to impiwant thdk gmd rule, it will be necessary for NRC staff to develop guidance to. assist applicants in preparing their requests, and to assist NRC staff in conducting their reviews. This represents an additional. commitment of NRC resources. Since Section 6 pre es NRC Agreement States from making emergency access decisions, the q y red action will not have an impact on Agreement State resources. 4.2.3 Department of Energy (DOE)/ Department of Defense (D00) HRC is,Db;; t: require that request's for emergency access based totally or in significant part on a serious and immediate threat to the common defense and security, include a Statement of support from 00D and or DOE. i This-apeangement-wH4--not heJormaluedamt44-ef-ter-the pubik,-c-omment-period-4o41 " "' "'- ikv w deterdine y hat resoure " would le required-t r prepare such -a-Statemeiis vi =vpport. NRC estimates that approximately five staff weeks would be required for each emergency access request processed by DOE or D0D.
- 5. DECISION RATIONALE i
fort NRC decided on the approach in the pre;, cad rule in light of the Congressional directives in Section 6 of the Act and considering the comparison of alternatives as discussed in the preceding section. 5 Enclosure C
i
- 6. IMPLEMENTATION ]
1 I The schedule for implementation of the rule is dictated primarily by.the ; schedules and milestones in the Act. TheActsetsoutthreemilestonedates . requiring the States.and Compacts to demonstrate specific progress towards:the' development of new LLW disposal capacity,.or their LLW generators'may be denied further access to existing disposal sites. The first date for potential denial of access was January 1,1987. The States were able to satisfy the requirements for that milestone and none were denied access. January 1, 1989.is the next date when the three operating LLW disposal facilities can refuse to tJu,Ja accept' waste.from a particular State. NRC plans to issue the final rule by Aug w t 1988, so it will be in place before that January 1989 potential denial of access date. However.,-- the SC =tes-thatjhould-the-hus L 5LatesMTFd an unsi-tEd:btai.e ur Cumpach-Lv imve idilen
@Axance "ith tW January -1, -1987 W Mtone', then_ denial _M-sc6 souldsmnaytmne_0nce the final rule is issued, its actual implementa-tion will be triggered by NRC receipt of a request for emergency access. .
In the event that a request for emergency access is made before the final rule is in place, NRC will use the proc'edures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental Impact Statement 'need not be prepared in connection with this rulemaking action because promulgation of the -p{LA:p.ad rule k f M E.
is not a major Federal action significantly affecting the quality of the human environment within the' meaning of NEPA. * - " - " " + I would establish criteria and procedures for a Commission determination under Section j 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the common defense and security. For the most part, the d ed rule is an administrative action which serves to codify the criteria ! l and procedures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect. 6 Enclosure C l l
)
a q Making a Commission determination to grant emergency' access in accordance with these criteria and procedures should also be without adverse environmental' impact. The' provisions in the rule will be activated only at the request of a LLW generator or State government official on. behalf of a generator because . serious ~ impacts to the public health;and safety, the common defense and security, and possibly the environment are anticipated as a result'of denial of access.to . 1 a LLW disposal facility. NRC will become involved only when the'need for ] corrective action has been identif'ed. Once NRC. receives.a request, the ! Commission's primary responsibility and concern _will be to take the action i necessary to assure that the public, the national. security and the environment ' -l are protected. Whether the Commission vecides to grant emergency access, or to deny it because alternatives are available, NRC will make the decision only-when satisfied that the action to be recommended will minimize the effects of concern and maximize needed protection. The Commission designation of the LLW disposal facility to' receive the LLW approved for emergency access should not result in adverse impacts to the environment. First of all, Section 6(h) dictates that the total quantity of emergency access LLW approved for disposal at any non-Federal or regional LLW disposal facility must fall with he volume caps established by the Act, and for any 12-month period, be less than 20 percent of the total volume of LLW accepted by that facility during the previous calendar year. Thus, the amount of waste ' provided disposal under the emergency access provision will be mu;h less then the total amount of LLW that will be disposed of in regional or non-Federal disposal facilities. In addition, waste granted emergency access will have to be processed, transported and handled in a manner that complies with applicab.le safety regulations. Secondly, NRC will be considering the characteristics of the LLW requiring emergency access in designating-the receiving facilities in order to assure that they are compatible and that the impacts from each indi- ; vidual grant of emergency access are minimized. i l 7 Enclosure C
- 8. REGULATORY FLEXIBILITY ANALYSIS 4.ol '
NRC is using this pr^p::cd rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facil- , ities under Section 6 of the Act. Based upon the information available %I;1h4s starg g Llh= 1-- i;;ggrect:d,ug and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifiee that, 'f ' , ( _43 this rule will not have a significant economic impact upon a substantial number of small e tities. see The m.:p :td rule has the potentialEto affect any generator of LLW. However' in order for the requirements of the rule to be imposed on-a generator, he must' request emergency access to a non-Federal or regional LLW disposal facility, having been denied access because the State or Compact Region'in which he is located has failed to comply with the milestones for LLW disposal-development in Section 5 of the Act. Establishing criteria and procedures for requesting and granting emergency access will have a positive benefit for small and large generators alike. It ' will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.- The impact of the recordkeeping requirements on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to decide a course of actinn if necessary access to LLW disposal was not going to be available. 8 Enclosure C
DRAFT CONGRESSIONAL LETTER
Dear Mr. Chairman:
Enclosed for your information is a copy of a notice of. d rulemaking for 10 CFR Part 62 to be published in the Federal Register. This rulemaking implements Section 6 of the Low-Level Radioactive Waste Policy. Amendments Act of 1985 (the Act). Section 6 directs the Nuclear Regulatory Commission-(NRC) to grant a generator or State " emergency access" to any. non-Federal commercial LLW disposal facility if access to those' facilities-has been denied but is necessary in order.to eliminate a serious and immediate threat to the public health and safety or the common defense and security. Although the Act does not require NRC to develop n rule to carry'out its Section 6 responsibilities, NRC 1s proposing this rulemaking to establish the , procedures and criteria that will be used in making the required ~ emergency , access decisions. Indevelopingthhrule,NRChastriedtobeconsistentwithboththeactual }', text of Section 6 and the Congressional intent expressed in the legislative / histo p The p :d rule sets strict requirements for granting emergency ~ f access, places the burden of demonstrating that there is a need.for emergency f access on the party requesting emergency access, and should serve to encourage potential requestors to seek other means for resolving the problems created by
$ lack of access to LLW disposal facilities.,
i i ! Sincerely, ; Victor Stello, Jr. Executive Director for Operations
Enclosure:
As stated 1 Enclosure D
r . i I 1
=l4 l !
Public Announcement l
.i i
5 l l l l (To be provided by Public Affairs) l 1 Enclosure E L_-_ - -_.
,rk 90 01hkp3 W 2a, Y j NUCLEAR REGULATORY CC1911SSION= 8'kk/9 -
10 CFR PART 62 g
' Criteria and Procedures for Emergency Access to Non-Federal and Regional: Low-Level Waste Disposal Facilities-
- pg
. AGENCY: . . Nuclear Regulatory Commission.
Civ ACTION: 5:;ut/L.
;;;d Rule.-
SUP91ARY: The Nuclear Regulatory Commission' (NRC) is~ a rule to:
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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 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.
l (3o Co ents%ssu @ldfsubmitted b
) s I
' ( ffLCCTi d DATE): on or bef e ..
-)
J Comments eceiv after this date wi -be co side ed if it prac cal . 1 to do o, but ssur ce of consid ation nno be given cept a to co entstre eive efore this ate. i
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. _ _ _ - _ - _ _ - - A
nygfJiwE eg k X e- u N A~~~, ADDRESS: 52:4+ wi++-- :;.T. ;r.te te u Ac, etary ;f it.: C r-i:sion, UrS. Nuclear Regulatery- C:=ission, u3 gmg,nn, gg gn5te, i gg_ _,; -; ,, Dorkating =nd se a 0 7 3,,c!.. Copies'of. comments receive M [M < . regulatory ant..ysis may be examined at the NRC Public Document Room, s q s 1717 H Street NW., Washington, DC 20555. s G o D8h FOR FURTHER INFORMATION CONTACT: Janet- Lambert, Division of ' ^'-Led i u 7te u.a 7-.--n+ .na n e rm-< s s ia 4ng, U.S. Nuclear Regulatory Commission, H91 38tCT Washington, DC 20555, telephone (301) " 77C^. l SUPPLEMENTARY INFORMATION: I. Background II. Legislative Requirements III. Legislative History IV. NRC Approach V. Assumptions i VI. The Proposed Action VII. Rationale for Criteria 4:ifi 5L &gzuifor-comments
. m > J.L jpeg Requ3st 3,g n w fqcxc/ {
VIII. L !
,It. R fues,t l or Emer^ency Accesr@PrFNthe-Effective
/ 1 ate of
/ hedule TE Finding of No Significant Environmental Impact: Availa;ility X d. Paperwork Reduction Act Statement y MI. Regulatory Analysis .
7JXIR. Regulatory Flexibility Certification N
)l( ij XIV. List of Subjects in 10 CFR Part 62 l l
2 1 - _ _ _ _ _ _ - _ _ - - _ _ _ _ . . _ _ . l
I. Background The Low-Level Radioactive Waste Policy Amendments Act of 1985 i (PL 99-240, January 15,'1986), "the Act" directs the States to develop their own LLW dispor.nl facilities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new J l facilities will be available bp January 1, 1993. - The Act establishes procedures and milestones for the selection and development of the LLW disposal facilities. The Act also establishes a l system of incentives for meeting the milestones, and penalties for i 1
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failing to meet them, which is intended to assure steady progress toward I new facility development.
]
l The major incentive offered by the Act is that the States and i a regional Compacts which meet the milestones will be allowed to continue ) I to use the existing disposal facilities until their own facilities are I 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 i (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 I 4 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 4 consistent with the'public health and safety,' including ceas'ing the activ-ities that generate the waste. NRC must be able, with the information l provided by the: requestor .to make.both determinations prior to granting *
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.7h ~
emergencyg<iTh: ;ppuulfad6% : ;-
' ' l' ::@mepuseW%.: .. '... ' . t. et forth.the procedures and c teria that W W ' - :' ty the Commission g to kk +o determineifemegencyaccesstoaLLWdisposal-facilityshouldbe
[ granted. b Shs 1[X M Chu M o3M M A{S f r N gmgaw+eaansewug 7g g II. Legislative Requirements h 'h In addition to directing the NRC to grant emergency access as: g discussed in the' Background section', the Act further directs NRC to: MA 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. 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 not i 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 w s generated have diligently though unsuccessfully g ,y % G.pwd us snyugawd^tf%"" "& A dd,
- 1
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 accesis" 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 determinate a as to whether ~
the threat could be mitigated by suitable alternatives. lne grant of temporary emergency access expires 45 days after it is granted. clin Although the Act does not require NRC to, develop a rule to carry out its Section 6 responsibilities, NRC is M 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 order fnr a requestor to be eligible for emergency access con-1 sideration is that the requestor has already been denied access to the I 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 commant, NRC intend c. r M & = :;; r er.ity-su 5
l (mdr. pet f. esiS~1enuEy -ffe ted -indivttfuaWherganinHaas; dd 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 the waste, the instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from the generators and the States / Compacts should resolve most access problems thus precluding the necessity for involving the Federal sector in grant-ing emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort. In developing the emergency access rule, NRC y 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 rule sets strict requirements for granting emer-gencyaccessandserve/toencouragepotentialrequestorstoseekother 6
means for resolving the problems created by denial of access to LLW dis . posal facilities. The p :;:::d rule places the burden'on the party i requesting emergency access to_ demonstrate that' the criteria;in the rule j 1 have been met and emergency access is needed. Applicants for mergescy - ) access will have to provide clear and convincing evidence that they have, 4 1 exhausted all other options.for managing their waste. By establishing j
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j strict requirements for approving requests' for emergency access, NRC: ,
' intends to reinforce the idea that problems with LLW disposal'are to be - (
l worked out to the extent practical among the States, and that emergenc'j l
, 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. l 1
Section 6(g) of the Act requires the NRC'to notify the Compact-Commission for the region in which the' disposal facility is located of i any NRC grant of access "for such approval as may be required under the i terms of its compact." The Compact Commission "shall act to approve i emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to--
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant, e allow the Compact Commission to implement any administrative J
procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set'forth in Section 6(h) of the Act have not been exceeded. -
However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission ' l 7
)
( . i with a veto over the NRC's grant of emergency access. The basic purpose of the Section 6 emergency access _ provision is to ensure that sites that would normally be closed finder the Act will be available in emergency situations. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the ; legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. If the C:,mpact refuses to - i 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). I IV. NRC Approach I I In developing th % weed 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. ]
1
- 2. identify the information and certifications that will have to j 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 ;
i 10 CFR Part 62 can be implemented within the 45-day period specifled in 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.
8
- 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'needed to protect the public' health arid safety or the common defense and '
security. "- V. Assumptions _ M (z c rn ,x 6 st a d o m f h t i ~ O Wi
, in-devehping-the-rule NRr marie sever I-assumptio[M. ThW5e p " - t h ._ - .. J is m ed b;icw.
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NRC s335Estne assum 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-ceive of situations where denial of access to disposal 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-ters in a State were denied access to LLW disposal facilities, NRC. Ousf 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. {a % @ g NRC has also assumed that requests for emer-gency access will not be made for wastes which would otherwise qualify 9
TM / abo R,g-- };ua% Mec Qas&t%f Mss m Le p 4 s ., ge,3 e ga,,, 4 z u g 44;gy w.:! A % s,mq w og ad p 444 A cu g of ms g [* S b 3 Y {t & def, & 4%AtLsgW
"(A) low-level ra'dioacS've 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 thatis-
"(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 . -
j States Navy;or ,
"(iii) owned or generated as a result of any research, development, testing, or production of any atomic weapon; and
"(C) low. level radioactive waste described in subparagraphs (A) and (B) that is generated outside of the State and accepted for, disposal in,accordance wi,th sections 6 or 6., ,, ,
i, y m y nec.
'N '
WO M
for disposal by the Dtoartment of Energy (DOE) under the unusual volumes provision of the Act [ketion 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 i allocation," NRC believes emergency access should be reserved for other
\
LW, until the 800,000 cu.ft. allocation is exceeded. I 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 that all possibilities can be predicted or anticipated. Largely because of the uncertainty associated with identifying all of the circumstances under which emergency access may be required, NRC has avoided establishing criteria with absolute thresholds. instead, the rule as proposed contains a combination of qualitative and quantitative criteria with generic. applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by-case basis. VI. The Proposed Action The Rg4 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 l should be granted. Each Subpart is summarized and dis':ussed here. l 10 ! l
(, Subpart A - Genera'1: Provisions. Subpart A contains the purpose and scope of the rule, definitions, instructions for communications with the Comission, 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.
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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 h Q # , N g g
. osal o$sidh ndtv SADY 3 N ty' h W Subpart B . Request for a Commission Determination Subpart 8 specifies the information that must be submitted and the procedures that must be followed by a person seeking a Comission deter-mination on emergency access.
Specifically, Subpart B requires the submission of information on the need for access to LLW disposal-sites, the quantity and type of niaterial 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 determin ,/ (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
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provide.the disposal required.
- In addition to the above, Subpart B also sets forth procedures for I the filing and distribution of a request for a Commission determination.
11
- _ _ - - - - _ . _ _ _ - _ - _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - l
)
It provides for publication in'the Federal Register of a' notice of_ receipt 7, of a request for emergency' access to inform'the public that Commission T Y action on theirequest is pending. .Even though comment is~not required by [ the Act or the Administrative Procedure Act, Subpart B provides for a 10-day public coment period on the request' for emergency access.= -) 1 In the event that'the cassi 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-I
, priate) be submitted-as part of the initial request for emergency access.
If ~ the request is based entirely on comon 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 Comission Determination For the NRC to grant emergency access, the Comission 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 Comission in considering requests - for emergency access, for granting extensions of emergency access, and i for granting temporary emergency access; establishes the criteria and i standards to be used by the Comission in making those determinations; and specifies the procedures to be followed in issuing them. a p q 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 GLJ Ah % C* A * * #
~' W1 u t C. OLEGD s tis t
~
" c W k a1h 5) l% nr e a
%~e #l. g&)}La m A 3,myamAlantHLe . !
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 releaseLof 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.
, 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 t whether the lack of access to a disposal site would result in'a l 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 DOL viewpoints in a statement of support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider whether. alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potentially mitigate the need for emergency access. The Commission will consider whether the person requesting emergency access has considered all factors in the evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and I 13
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 tne " blic health and
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l safety or the common defense and security, because it is technically or economically beyond the capability of the requestor, or because the alternative could not be implemented in a timely manner. Of particular concern to Congress was the possibility that ceasing the activity responsible for generating the waste could lead to the cessation or curtailment of essential medical services. In the proposed l rule, the Commission considers the impact on medical services from ceas- l
. 4 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- J l
tion of other alternatives may have a disruptive effect on essential medical services. The Commission specifically requests information on these impacts in S 62.12 so they can be considered in its oyera11 1 determination about reasonable alternatives. l According to the procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an I 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 imnediate threat to the public health and safety or the common defense and security l which cannot be mitigated by any alternative, then the Commission will decide which operating non-Federal LLW disposal facility should receive j the LLW approved for emergency access disposal. - l I 14
SubpartCsetsoutthatin' designating,disposa1Lfacilityor facilities to provide ' emergency access disposal, the Comission will' first consider whether a' facility should be-excluded from consideration.- because: (1) the LLW does not meet the license criteria for the' site;. (2) the disposal ^ facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing.of the facility; or (4)'the volume of the wast'e 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 j the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for. handling the F Y[ $ waste, and any other information the Commission deems-necessary. Yg y ; In making a determination regarding a request for a' n extension of emergency access, Subpart C provides that the Commission will consider q p) whether the circumstances still warrant emergency access and whether T the person making the request has diligently acted during the period of the initial grant to eliminate the need..for emergency access. In making a determination that temporary emergency access is neces - sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives. VII. Rationale for Criteria . Th4M rule establishes the criteria for making the emergency access determinations required by the Act. The rationale for these
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decisions is discussed below: 15
4 (a) Determination that a ' Serious and Immediate Threat Exists Establishing the criteria to be used-in determining that a: serious and immediate' threat existfto 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 Mould constitute "a' serious and immediate
. threat." =
(1) To the Public health:and safety-- I The criteria in the pWrule for determining whether a serious- - and immediate threat to the public health and safety exists, address ' ' 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 thep 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
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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 16 i 4 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 ensure that a serious and.immediate threat to the public health and. safety.did not result from a denial of access. In addressing this concern, the Commission will evaluate the request for emergency access in t 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 , I would result in exceeding the occupational dose limits or basic limits of public exposure upon which certain requirements in 10 CFR Part 20 are j founded would be an unacceptable threat to the public health and safety, and should be considered for emergency access. ! l 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 I l waste is stored, although it is clear that Congress was concerned over i the potential radiation hazard that might result at a particular facility that was denied access to LLW disposal. The Commission does not i anticipate any situation where the lack of access would create a serious ' and immediate threat to the public health and safety. However, in order I to be able to respond to the unlikely, but still possible, situation whete a serious threat to the public health and safety might result, the 17
ylggenad. rule establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Comission 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 4 low level waste could not be disposed of because of denial of access. ~ l In this situation, emergency access may be needed. The Commission would emphasize first, that it is extremely unlikely that a serious.'and imediate 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-second, if such a situation does exist, the Comission will move immediately to eliminate the threat. If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and imediate threat would exist from the waste itself. This f t is separate from a finding that a serious and immediate threat to the J public health and safety would exist if the activity were forced to shut r-- down. Section 6(d) of the Act allows the Commission to grant temporary N emergency access for a period not to exceed 45 days solely upon a finding of a serious and imediate threat to the public health and safety. In. order to grant temporary emergency access, the Commission is not required to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Comission believes that grants of i 18
l d I temporary emergency access should be reserved for the most serious threat ! to public health and safety, and has accordingly established criteria for l granting temporary emergency access that require the consideration of more serious events. For purposes of granting temporary emergency access i under Section 62.23, the Commission will consider the criteria and f examples contained in the Commission's Policy Statement for determining whether an event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. (45.FR 10950, February 24, 1977.) This provision requires the Commission to keep Congress and the ! 1 public informed of unscheduled incidents or events which the Commission I 1 considers significant from the standpoint of public health and safety. Under the criteria established in the Commission's policy statement, an~}}