ML20246J014
| ML20246J014 | |
| Person / Time | |
|---|---|
| Issue date: | 08/05/1988 |
| From: | Arlotto G NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| To: | Mcdonald W, Murley T, Thompson H NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-28, NUDOCS 8905160260 | |
| Download: ML20246J014 (219) | |
Text
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- fe asag'o ~g UMITED STATES
, ! n NUCLEAR REGULATORY COMMISSION l WASHINGTON, D. C. 20555 g :E
% y,,, / AUG$ 1988 MEMORANDUM FOR: Hugh L. Thompson,. Director Office of Nuclear Material Safety and Safeguards William G. Mcdonald, Director Office of Administration and Resources Management Thomas E. Murley, Director Office of Nuclear Reactor Regulation Harold R. Denton, Director Office of Governmental and Public Affairs William C. Parler, General Counsel Office of General Counsel FROM: Guy A. Arlotto, Director Division of Engineering Office of Nuclear Regulatory Research
SUBJECT:
REQUEST FOR OFFICE CONCURRENCE FOR THE FINAL RULE FOR 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" l
Enclosed for your approval is the rulenaking package for the final new Part 62 to Title 10 of the Code of Federal Regulations. The rule will establish criteria and procedures to enable the NRC to determine whether emergency access should be granted to operating, non-Federal, or regional low-level radioactive waste (LLW) disposal facilities under Section 6 of the Low-level Radioactive Waste Policy Amendments Act of 1985 (the Act). It would be appreciated if you could provide concurrence by August 19, 1988.
Drafts of the Analysis of Public Comments and the revisions for the final rule were reviewed by:
NMSS - Regis Boyle NRR - Faith Brennaman 0GC - Chip Cameron ARM - Zonia Shepard GPA - Kathy Schneider Their comments were incorporated in the final rule package.
If you have any questions concerning this Tinal rule, please contact Janet Lambert of my staf f at extension 23857. /
/) ,
-i) A. Arlotto, Director 8905160260 890505 Division of Engineering PR Office of Nuclear Regulatory Research 6 S2 47570 PDR
Enclosure:
As stated Ih~ /4
3 o
2- -j MEMORANDUM FOR: Hugh L. Thompson, Director Office of Nuclear Material Safety anc Safeguards j 1
William G. Mcdonald, Director 'd Office of Administration and Resources Management Harold R. Denton, Director Office of Governmental'and Public Affairs-l Thomas E. Murley, Director - i Office of Nuclear Reactor Regulation 1 William C. Parler, General Counsel Office of.. General Counsel FROM:' Guy A.LArlotto, Director-1 Division of. Engineering- 1
.0ffice of Nuclear Regulatory Research
SUBJECT:
REQUEST: FOR OFFICE CONCURRENCE FOR THE FINAL- RULE FOR.
10 CFR PART 62, " CRITERIA AND: PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL- .
WASTE DISPOSAL FACILITIES" i
'f Enclosed for your approval is the rulemaking package for the final new Part 62 to Title 10 of the Code of Federal Regulations. The rule will establish criteria and procedures to enable the NRC to determine whether emergency access should be granted to operating, non-Federal, or regional. low-level radioactive waste (LLW) disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act). It would be appreciated if you could provide concurrence by August 19, 1988.
Drafts of the Analysis of Public Comments and the revisions for the final rule were reviewed by:
NMSS - Regis Boyle NRR - Faith Brennaman 0GC - Chip Cameron. ARM - Zonia. Shepard GPA - Kathy Schneider Their comments were-incorporated in the final rule package.
If you have any questions concerning this final rule, please contact Janet Lambert of my staff at extension 23857. ;
I 1
Guy A. Arlotto, Director Division of Engineering Office of Nuclear Regulatory Research
Enclosure:
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s-MEMORANDUM FOR: Hugh L.' Thompson, Director Office of Nuclear Material Safety and Safeguards William G. Mcdonald, Director.
Office of Administration and Resources Management l '
Harold R. Denton, Director
- q Office -of Governmental and Public Affairs Thomas E. Murley, Director j
.0ffice 'of Nuclear Reactor' Regulation ]
William C. Parler, General Counsel Office of General Counsel 1
.l FROM: Guy A. Arlotto, Director i Division of Engineering l Office of Nuclear Regulatory R earch j 1
SUBJECT:
REQUEST-FOR OFFICE CONCURRE E FOR THE' FINAL, RULE FOR l 10 CFR PART 62, " CRITERIA' D PROCEDURES FOR GRANTING- l EMERGENCY ACCESS TO NON-F ERAL AND REGIONAL LOW-LEVEL J WASTE DISPOSAL FACILITI !
I Enclosed for your approval is the rul making package for. the final new'Part 62 to Title 10 of the Code of Feder Regulations. The rule wi11 establish criteria and procedures 'to enable e NRC to determine whether emergency access should be granted to opera ng, non-Federal, or regional low-level .
radioactive waste (LLW) disposal facilities under Section 6 of'the Low-Level i Radioactive Waste Policy Amend nts Act of 1985 (the Act). It would be i appreciated if you could prov e concurrence by August 17, 1988..
Drafts of the Analysis of P blic Comments and the revisions for the final rule were reviewed by:
NMSS - Regis oyle NRR - Faith Brennaman-OGC - Chip ameron ARM - Zonia Shepard GPA - Katt Schneider ;
Their comments wer incorporated in the final rule package. l If you have any uestions concerning this final rule, please contact Janet Lambert of my aff at extension 23857,
- i. ;
Guy A. Arlotto, Director Division of Engineering Office of Nuclear Regulatory Research Enclos e: As stated DISTRIBUTION: GArlotto RGrill WMB/DE/Subj Ci rc/Chron RBosnak JLambert WMB/DE/Rdg MSilberberg WMB/Rdg/ Circ Arlotto to Multiple
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Author's Name- J J. Lambert Document Comments:
Memo . Request for Office Concurrence...10 CFR Part 62 1
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[ o.g UNITED STATES
[-
g p, NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 j_
.....l MEMORANDUM FOR: Victor Stello, Jr. .
Executive Director for Operations
' i FROM: Eric.S. Beckjord, Director 'l Office'of Nuclear Regulatory Research -
SUBJECT:
FINAL NEW RULE, 10 CFR PART 62, " CRITERIA AND PROCEDURES.
FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL'AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" !
Enclosed for your approval is the rulemaking package for the final _ new Part 62 j to Title 10 of the Code of Federal Regulations. The rule.will establish crite-ria and procedures to enable NRC-to determine whether' emergency access should be granted to operating, non-Federal, or-regional low-level radioactive waste (LLW) disposal facilities under Section 6 of the Low-Level Radioactive Waste 1 Policy Amendments Act of 1985 (the Act). )
In developing this-rule, staff tried to be consistent with'both the actual text of Section 6 of the Act and the Congressional intent expressed by Congress in the legislative history. The rule sets strict requirements for granting emer--
gency access, places the burden of demonstrating the need for emergency access on the party requesting emergency access, and s.hould encourage potential I requestors to seek other means for resolving the problems created by lack.of i access to LLW disposal facilities.
Although the Act did not require NRC to develop a rule to carry out its Sec-tien 6 responsibilities, staff recommended'using rulemaking in order 'to mini-mize potential delays in initiating the corrective actions that'may be neces-sary to protect the public health and safety. Your office approved the initiation of this rulemaking on August 25, 1986. The proposed rule was-issue ~d in December 15, 1987 and the formal public comment period ended on February 12, .
t 1988. Twenty-one commenters responded. Responses were received from=the- !
l governments of six states, from two_ low-level waste Compact Commissions,' ten from concerned citizens and members of environmental groups, two from industry, 1 and one from a nuclear information service.
For the most part, staff has responded to the comments by adding clarifying-language and some new text to the final rule. Even with these changes, the final rule, the critical components--the procedures and the' criteria to be :
used in making emergency access decisions, remain essentially unchanged from j the proposed rule to the final. The most significant comments are discussed below:
Over half of the commenters expressed concern that NRC would use its emergency access power to force operating non-Federal or regional LLW disposal facilities l
______________.___m. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - - - _ - - - _
Victor Stello, Jr. 2 to accept above-Class-C-wastes, federally generated wastes, particularly those from D0D and DOE, or other LLW for which the states.do'not have disposal responsibilities under the Act. A statement indicating that emergency access wastes would be subject to any-general limitations for LLW disposal established by the Act, was ac 4J to the " Purpose'and Scope" in the final rule and should accommodate these concerns.
A major area of concern.for most of the responding States and Compact-Commissions relates to reciprocal access. .Under Section 6(f), the Regional Compact or State receiving the emergency access waste is entitled to-reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency access-waste'was generated. It further.provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level.
radioactive waste having similar characteristics to:that provided emergency access "
l Several of the commenters indicated that the final rule should include provi-sions by which the NRC would ensure that States / Compacts who are granted emer-gency access would provide the reciprocal access promised under Section 6(f).
The staff does not agree that the legislation indicates NRC should include such requirements in the rule. As staff reads Section 6(f), arranging for reciprocal access is an obligation between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Further, staff believes that any role for NRC regarding reciprocal access is inappropriate because it could compromise our ability to take action necessary to protect the public health and safety. Staff decided not to include reciprocal access in the proposed rule and no change has been made to the final rule.
Another major area of concern for the responding States and Compacts-is whether the Compact Commission which is designated to receive emergency access waste can veto or " disapprove" NRC's decision. Several of the States and Compact Commissions believe that language in Section 6(g) of the Act indicates they can l l disapprove NRC's decision and they wanted the final rule to incorporate a provision acknowledging this veto authority. From the legislative history, NRC staff has concluded that disapproval of emergency access decisions was not an option. This was explained in the proposed rule and further clarification has been added to the final.
A number of other commenters were concerned that emergency access wastes would not be subject to the same fees, regulations, conditions, or requirements as routinely disposed of LLW. Staff have added clarifying statements to the final rule stressing that, except as otherwise indicated by the Act, the same fees and requirements apply to emergency access wastes as to routine LLW.
Staff believe NRC should have this rule in place by the time a request for emergency access might be received which could be any time after January 1, 1989, 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.
I
Victor Stello, Jr. 3 Based on the January 1, 1989 milestone we have scheduled to issue the final rule in the fall of 1988. Immediate Commission attention to this issue is necessary to meet this schedule.
The final rule has been concurred in by NMSS, ARM, NRR, and SLITP. OGC has reviewed the rule and has stated that it has no legal objections.
l Eric S. Beckjord, Director Office of Nuclear Regulatory. Research
Enclosure:
As stated l
l
For: The Commissioners From: Victor Stello, Jr.
Executive Director for Operations
Subject:
FINAL RULE-10 CFR PART.62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE
. DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title _10 of the Code of Federal Regulations that,would establish criteria and procedures to be used by the Nuclear Regulatory. Commission-(NRC) in determining whether. emergency access should be granted to operating, non-Federal, low-level radioactive. disposal' facilities under Section 6 of.the Low-Level' Radioactive Waste. Policy Amend-ments Act of 1985.
Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments.
Act of 1985 (PL 99-240, January 15, 1986),.(the Act) provides that NRC can grant emergency access to non-Federal or regional LLW disposal facilities if there is a serious and'immediate threat to the public health-and safety or the' common defense and security that cannot be mitigated by available alternatives.
The enclosed final rule was developed to implement NRC's respon-sibilities pursuant to Section 6. The rule-sets out strict requirements for granting emergency access, places' the burden-of demonstrating the need for emergency access on the party requesting emergency access and should serve to encourage genera-tors to seek other means for resolving the-problems created by potential lack of access to LLW disposa1' facilities. The first request for emergency access could'be made as soon as January 1, 1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive a request for emert,ency access. If NRC does get a request, it will have 45 days to respond. Staff estimates 180 staff days )
will be required to process such requests.
I CONTACT: l Janet Lambert, RES I 492-3857 )
i The' Commissioners 2 i
l
Background:
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. If unsited_ States or Compact regions fail to meet key milestones in the Act, the States and Compact Commissions with the operating 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 NRC can grant a generator
" emergency access" to non-Federal or regional commercial LLW disposa'l 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 defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated j by any alternative consistent with the public health and safety, I including ceasing the activities that generate the waste. NRC must make both determinations prior to granting emergency access.
The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request, and allows that only one, 180-day extension of emergency access can be granted per request.
The Act provides NRC with 45 days from the time a request is received to determine whether emergency access will be granted, and if so, to designate the receiving facility.
The Act provides that requests for emergency access shall contain i all information and certifications that NRC requires to makes its I determinations. The Act also provides that only NRC can grant ;
emergency access. The Agreements States are specifically pre- I cluded from making emergency access decisions.
The legislative history for the Act emphasizes that emergency access be used only in very limited and rare circumstances and that it was not intended to be used to circumvent other provi-sions of the Act. Congress expected that responsible action from i the generators and the States / Compacts should resolve most pro- I blems arising from denial of access decisions, thus precluding !
the necessity for involving the Federal sector in granting emer-gency access. Section 6 was included to provide a mechanism for l Federal involvement as a vehicle of last resort. l In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act and with its understanding of the intent expressed by Congress regarding decisions made pursuant to Section 6. Staff's objec-tive throughout has been to establish requirements for granting 1
i
)
l The Commissioners 3 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 and safety'or the common defense and security.
The Act did not require NRC to develop a rule:to carry out its -
Section 6' responsibilities. However, NRC staff recommended a rule to establish the procedures and criteria that' will' be 'used in making the required emergency access determinations to add 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.
On January 15, 1987, NRC issued a-Notice of Intent to develop-this rule (Vot 52,-Federal Register, No. 10, p. 1634), and on December 15, 1987, NRC issued the proposed rule. The formal' comment period expired February.12, 1988. Twenty-one'commenters responded. Copies of the comment letters =are included'as an appendix to the staff analysis of comments in Enclosure C.-
Responses were received from the governments of six states (Maine, Arkansas, Illinois,-New York, Kentucky, and-Pennsylvania), two from Low-Level Waste Compact Commissions-(Midwest and Central Midwest), ten from concerned citizens and members of environmental gro g,, two from industry, and one from a nuclear information service.
Discussion: A number of commenters raised issues that had been considered by staff while developing the proposed rule. For the most part, staff has responded to the comments by adding clarifying language and some new text to the final- rule. The critical components of the proposed rule - the procedures and the criteria to be used in making emergency access decisions, are essentially unchanged in the final. The most significant comments are discussed below:
In general, commenters appeared to support NRC's issuance of a '
rule for its emergency access decisions and indicated changes that would improve the final rule from their perspective. One commenter expressed opposition to the issuance of the~ rule itself because he believed that granting emergency access would l infringe on the States' right to manage their LLW.' Since NRC j was mandated by Section 6 of the Act to make emergency' access j determinations only when the States are not otherwise able to s manage their LLW, NRC does not consider that a rule to implement that mandate should interfere with states'-rights.
By far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsec-tion 3(a)(1) of the Act, the states are mandated to provide l
The Commissioners 4 disposal only for commercially generated LLW classified as A, B, ;
and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result- {
of decommissioning of vessels, or as a result of any research, development, testing, or production of atomic weapons." Commenters stated that Federal wastes, particularly those generated by DOE and D00, or. wastes that are' classified as greater-than-Class-C., l should not be allowed to receive emergency access disposal. J In developing the proposed rule, NRC staff assumed that it would. ,
be clear that limitations established by the Act on the LLW eligible l for routine LLW disposal would also apply to LLW under consideration 4 by NRC for emergency access disposal. However, no statement was {
made to this effect in the proposed. rule. Clarifying language j explaining what LLW will be considered eligible for emergency a access disposal has been added to the final rule, j Most of the states and Regional Compact Commissions who submitted comments indicated that the final rule should include provisions by which NRC would act to ensure that States /LLW Compacts designated to receive emergency access wastes will receive reciprocal access {
disposal from the person granted emergency access - which they J are entitled to under the Act. Commenters indicated that NRC- !
should require a formal acknowledgement of reciprocal access {
before making an emergency access determination.- The staff does j not agree with this position. j i
Under Section 6(f), the Regional Compact or State receiving the i emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the !
emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
NRC staff considered including reciprocal access during the I development of the proposed rule. However, as staff reads Section 6(f), arranging for reciprocal access is an obligation between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Further, given the agency's mandate to protect the public health and safety on the common defense and security, staff believed it would be inappro-priate for NRC to assume the role of enforcing reciprocal access arrangements. 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 circumstances, actions necessary to protect the public health and safety could be delayed or compromised.
The Commissioners 5 The NRC staff reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule.
Three of the commenters' representing States or Compact Commissions raised the issue of Compact Commission approval of NRC's emergency access decisions. They indicated 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 Commission of the region in which the designated site is located.
1 Under Section 6(g) of the Act, "any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its compact."
The interpretation preferred by some of the States or Compacts is that Congress intended for the Compact Commission of the designated site to have the final say regarding the acceptance ,
of emergency access wastes. They believe Congress intended the 4' receiving Compact Commission to have the power to veto NRC's decision. The commenters wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
The interpretation of Section G(g) that is most' consistent with Congressional intent behind emergency access is that 6(g) does not provide for State or Compact Commission veto of NRC's deci-sion. Staff believe that the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section 6 emergency access provision is to ensure that sites which 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 ,
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).] This was explained in the Supplementary Infor-mation for the proposed rule and has been reiterated and clarified in the final.
A number of the commenters 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 commenters stated that LLWs granted emergency access disposal should not have to
The C-commissioners G !
1 pay any special fees, beyond those specifically mandated by the Act. The commenters expressed a desire to have NRC consider those items in making its site designation decisions for emer-gency access.
To the NRC Staff it is quite clear from 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. Further, the staff ;
believes that Congress intended for generators granted emergency i access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the Act as specifically applicable to emergency access situations.
However, NRC staff does not agree that such information can or should be used by NRC in making its site designation decision.
For clarification, a new section has been added to the final rule which reaffirms NRC's understanding of Congressional intent that conditions or terms which would normally apply to LLW disposal should also apply to emergency access disposal.
Several of the commenters suggested that the final rule should contain conditions under which emergency access could be termi-nated. Staff agree and have added a new Subpart D for this pur-pose. The new subpart establishes that the NRC may terminate emergency access if the requestor or his waste do not meet the conditions established by NRC in Part 62, and that the NRC can terminate emergency access if a determination is made that it is no longer needed.
Several commenters stated that the 10 day public comment period provided in the rule on requests for emergency access was inade-quate. Since NRC is not required to seek public comments on requests, and since NRC has only 45 days to respond when a request is received, no change was made to the final rule. !
After consideration of the comments, staff recommends the final rule proposed for Commission approval in Enclosure B. There are no major differences between the proposed and final rules but several clarifying changes are included. The most significant i are:
(1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the emer- ,
gency access rule applies only to the LLW's for which the l States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying language to 62.22 stating that the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
1 l
i The Commissioners 7 (3) Addition o' a clarifying Section VIII to the Supplementary k Information titled " Terms and conditions for Emergency Access Disposal."
(4) The addition of clarifying Subpart D, titled " Compliance i with Conditions of Emergency Access; Termination of Emer-gency Access." i Resource Requirements I 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. Staff esti-l mate it will take approximately 180 staff days (six staff working I 30 days out of the 45 days allowed in the Act) to complete the necessary review. j 1
Recommendation: That the Commission- )
l (1) Approve for publication in the Federal Register the final /
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 Flexibil-ity 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 (Enclo-sure B) under the Regulatory Flexibility Certification heading.
l (3) Note:
- a. That the Chief Counsel for Advocacy of the Small l Business Administration will be informed of the certification and the reasons for it, as required by the Regulatory Flexibility Act.
- b. That this final rule contains modifications to informa-tion collection requirements subject to the require-ments of the Paperwork Reduction Act of 1980 (44 U.S.C.
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 are clarifying only so that the OMB approval remains valid.
- c. That the proposed rule included a preliminary finding that no significant environmental impacts would result from the rulemaking. The environmental assessment
The Commissioners 8 forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis."
- d. That compliance with CRGR charter requirements is not applicable for this rulemaking action as the rulemaking l applies only to radioactive waste management, and not a generic requirement to be imposed by the NRC on one or more classes of power reactors.
- e. That the Subcommittee on Nuclear Regulation of the I 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 Power of the House Energy and l
Commerce Committee, and the Subcommittee on Environ-ment, Energy, and Natural Resources of the House i
Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure D.
- f. That a public announcement, Enclosure E, will be issued by the Office of Public Affairs when the final rule-making is filed with the Office of Federal Register.
- g. That a regulatory analysis, Enclosure C, has been pre-pared for this rulemaking.
- h. 0GC has reviewed the proposed rulemaking package and has no legal objections.
I Scheduling: Few, if any emergency access requests are anticipated. However, I 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 the next major trigger date for denial of access in the Act, which is January 1,1989, the final rule should be issued in the fall of 1988.
I Victor Stello, Jr.
Executive Director for Operations
Enclosures:
A. Draft Federal Register Notice B. Public Comment Analysis with Comment Letters !
C. Regulatory Analysis D. Draft Congressional Letter E. Public Announcement
[7590-01]
NUCLEAR REGULATORY COMMISSION 10 CFR PART 62 Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities AGENCY: Nuclear Regulatory Commission.
ACTION: Final Rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is issuing 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, ncn-Federal or regional, low-level radioactive waste disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. Grants of emergency l access may be necessary if a generator of low-level radioactive waste is.
denied access to operating low-level radioactive waste disposal l 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. ,
i EFFECTIVE DATE: (30 days after publication)
ADDRESS: Copies of comments received on the proposed rule and the !
regulatory analysis may be examined at the NRC Public Document Room, !
1717 H Street NW., Washington, DC 20555.
1 ENCLOSURE A
\ - - - - - -
[7590-01]
FOR FURTHER INFORMATION CONTACT: Janet Lambert, Division of Engineering, l Office of Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-3857. .j l
SUPPLEMENTARY INFORMATION: i I. Introduction and Background II. Legislative Requirements III. Legislative History IV. NRC Approach V. Assumptions .
I VI. The Final Rule VII. Rationale for Criteria VIII. Terms and Conditions for Emergency Access Disposal I IX. Requests For Emergency Access Made Prior to the Effective Date of the Rule X. Analysis of Public Comments XI. Finding of No Significant Environmental Impact: Availability i XII. Paperwork Reduction Act Statement XIII. Regulatory Analysis XIV. Regulatory Flexibility Certification XV. List of Subjects in 10 CFR Part 62 I .. Introduction and Background On December 15, 1987, NRC published a proposed new Part to 10 CFR in order to implement its emergency access responsibilities under Sec-
! tion 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 1
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(PL 99-240, January 15,;1986),["the'Act."<-TheproposedPart62setforth the~ procedures and. criteria ~that the. Commission' intended to u' , .o deter-mine if emergency acce'ss to non-Federal.and regional low-level' waste
-(LLW) disposal. facility should be granted. The public comment' period;for.
the proposed rule expired ~on~ February 12,11988. The NRC received twenty-one (21) comment' letters. Ten (10) of the comment letters cam 6 from concerned citizens and environmental groups, six (6) from State govern-'
-ments, two.(2)-from LLW compact Commissions, two (2) from industry and one from e nuclear information servic'e.
The Act directs the States to develop their own LLW disposal facil-ities or to form Compects and cooperate in the development of regional-LLW disposal facilities so that the new facilities will be available by January 1, 1993.
The Act establishes procedures and milestones for.the selection and ;
development of the LLW disposal facilities. The Act'also establishes a -
system of incentives for meeting the milestones, and penalties for. fail- l ing to meet them, which is intended to msure steady progress toward new . ,
facility development. j The major incentive offered by the Act i + . at the States and regional Compacts which meet the milestones will be allowed to continue l
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 facil- i l ities 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, i
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Section 6 of the Act provides that the Nuclear Regulatory Commission q l
(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 necesstry in order to eliminate an immediate and setious 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. con-sistent with the public health and safety, including ceasing the activ-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 regulation is to set forth the procedures and criteria that will be used by the Commission to determine if emergency access to a LLW 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 {
l 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.
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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 emer-gency access and the State in which the.LLW was generated have diligently though unsuccessfully 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 j 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 issuing this rule to establish the procedures and criteria that will be used in making the required i determinations for emergency access. Since the requisite condition that must be met in order for a requestor to be eligible for emergency access l
l consideration is that the requestor has already been denied access to the LLW disposal sites by the States or Compacts with operating disposal facilities, implicit in any decision to grant emergency access is the fact that such a decision will override the sited States' and/or Compacts' I expressed desire not to accept waste from that particular State or 5
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generator. Although Congress provided NRCLthe s'tatutory responsibility for implementing Section 6 of. the Act 'and'gave the Commission authority to decide whether or not' access will be provided, emergency access deci-sions are likely to be controversial. By setting out the procedures and criteria for making emergency access decis'ons i in'a rule which reflects public comment, NRC intends to' add predictability to the-decisionmaking_
processiand to help ensure that the NRC will be able to make.its deci-sions 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 cir-cumstances and that it was not intended to be used to circumvent other provisions of the Act. Congress believed it was important for the j successful implementation of the Act that emergency access not-be viewed' by the unsited States as an alternative to the pursuit of the development j
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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 em'ergency access would be unlikely. Congress expected that responsible action from l
the generators and the States / Compacts should resolve most access problems 'I 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 tried to be consistent-both with the actual text of Section 6 of the'Act and with the intent ;
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I expressed by. Congress'regarding decisions made pursuant.to Section 6. ;
The rule sets strict requirements for granting emergency access and should serve to encourage potential' requesters to seek other means;for- s resolving the problems created by denial of access to.LLW disposa1Lfacil-ities. The rule places the burden on.the partv requesting emergency j access' to demonstrate that the criteria in the . ule have been met.and 1
emergency access is needed. Applicants for emergency access will have to provide clear.and convincing evidence that they have exhausted all' other options for managing.their waste. By establishing strict require-ments for approving requests for emergency access, NRC intends to rein-force the idea that problems with' LLW disposal are to be worked out to the extent practical among the States, and that emergency. access to existing LLW facilities will not automatically;be'available as an alter- j native to developing that. capacity. NRC believes.this interpretation 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 Comp'act j 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 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' l 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.
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However, it is clear from the legislative history of the Act.that'-
Section 6(g) should not be construed as providing the Compact Commission -
with a veto over the NRC's grant of emergency. access. .The basic purpose.
of'the Section 6-emergency access provision.is'to ensure that sites that l would normally be closed under the Act will_be available in emergency l ..
l situations. A Compact Fommission veto would frustrate the purpose of the l ..
( emergency access provision and would be generally contrary'to the legis -
I lative 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' ratifica -
tion 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 i In developing this 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.
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- 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 45 days after NRC receives a request as 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 8
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.with the other provisions of.the Act,' including the' limits on the amount of waste that can be disposed of at each operating facility.
. 5. . (.stablish requirements'for granting emergency access that are stringent enough to: discourage the unsited States and regions from view - )
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ing emergency acces's as an' alternative to diligent pursuit of'theirfown j i
. disposal capability,'and yet flexible enough to allow NRC to respond.
appropriately;insituationswhereemergency-access'isgenuinelyneedEd
.to protect the public health and safety or the common' defense and.
security.
V. . Assumptions-NRC made several assumptions'in developing this rule.
NRC assumed that the' wastes requiring-disposal under the emergency access provision will be the result of' unusual circumstances The nature-of routine LLW management is such that it_is difficult 'to conceive of
- l. situations where denial of access to disposal would create a serious'and immediate threat'to the public health and safety or the national secu-rity. In most cases generators should be able to safely store routinely generated LLW or employ other options for managing the waste without requiring emergency access. Thus, if all the LLW generators in a State <
were denied access to LLW disposal facilities, NRC would not expect to .
l receive a blanket request for emergency access for all of the LLW L l generated in that State, or for all of the LLW generated by a particular I l
kind of generator since the need for emergency access would be' different l in each case.
NRC has also assumed that requests for emergency access will not be made for wastes which would otherwise qualify for disposal by the 9
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Department of Energy (D0E) 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, main-tenance, repair or safety activities. Section 5(c)(5) of the Act specifically sets aside 800,000 cu ft of disposal capacity above the regular reactor allocations through 1992 to be used for those wastes.
With this space reserved for wastes qualifying for the " unusual volumes 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 l sclely on quantitative criteria, but decided against that approach.
1 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 emer-gency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule contains a combination of qualitative and quantitative criteria with generic applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by-case basis.
VI. The Final Rule l
The final rule contains four Subparts, A, B, C, and D. These Subparts set out the requirements and procedures to be followed in requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here.
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Subpart'A - General' Provisions.
Subpart A contains the purpose and scope of the rule, definitions',
instructions for communications-with the Commission,'and provisions relating to interpretations of the rule. Subpart A states that-the rule applies to all persons as defined'by this ' regulation who have been denied access to existing commercial LLW disposal facilities and who submit a L request to' the Commission for an emergency access determination under Section 6 of the Low-Level' Radioactive. Waste Policy Amendments Act ofc 1985. .Subpart A also emphasizes that the emergency access rule appl.ies:
only to:those subclasses of LLW.for:which the States have disposal responsibility under Section 3(1)(a) of the Act.
I 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 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.
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In addition to the above, Subpart B also sets forth procedures for the filing and distribution of a request for a Commission determination.
It provides for publication in the Federal Register of a notice of receipt of a request for emergency access to inform the public that Commission action on the request is pending. Even though comment is not required by the Act.or the Administrative Procedure Act, Subpart B provides for a 10-day public comment period on the request for emergency l
l BCCess.
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 f security, Subpart B requires that a statement of support from the Department of Energy (DOE) or the Department of Defense (00D) (as appre-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 l q
l l statement of support is submitted. j
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Subpart C - Issuance of a Commission Determination l
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.
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Subpart C provides that NRC, in' making the determination that' there is a serious and 1%ediate' threat to the publicl health and safety, will consider: (1) the nature and extent of the radiation' hazard.that would' l result from the denial of access including consideration of the standards l
for radiation protection contained in.10'CFR Part 20,'any' standards-governing the release of radioactive materials to the general . environment:
1 that are applicable to the facility that generated the low-level waste, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request and, (2) the extent to which essential services such as medical, thera-peutic, diagnostic, or research activities will be disrupted by-the denial of emergency access.
In making the determination that there is a' serious and immediate threat to the common defense and security, Subpart C provides that the.
j Commission will consider whether the activity generating the LLW is neces-sary to the protection of the common defense and security'and whether the lack of access to a disposal site would result in a significant disrup-tion in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will con-sider 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 deter-minations 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 potent-ially mitigate the need for emergency access. The Commission will 13
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l 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-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 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. Section 62.25 of the rule provides that the Commission will consider the impact on medical services from ceasing the activity in making its determination that there is a serious and immediate threat to the public health and safety. The Commission is also concerned as to whether the implementa-tion of other alternatives may have a disruptive effect on essential !
medical services. Section 62.12 specifically requests information on these impacts as part of a request for emergency access so they can be considered by the Commission in its overall determination about reason-able alternatives, t
According to the procedures set out in Subpart C, the Commission
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will only make an affirmative determination on granting emergency access
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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.
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If the Commission determines that there is a serious and immediate
.1 threat to the public health and safety or the common defense and security i 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.
Subpart C sets out that in designating a disposal facility or 1
facilities to provide emergency access disposal, the Commission will first consider whether a facility should be excluded from consideration j because: (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for dis-ptsal at the site in the previous calendar year. If the designation can-not be made on these factors alone, then the Commission will consider the type of waste, previous disposal practices, transportation requirements, i l
- radiological effects, site capability for handling the waste, volume of emergency access wast previously accepted at each site, and any other information the Commission deems necessary.
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In making a determination regarding a request for an extension of emergency access, Subpart C provides that the Commission will conside- l whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access.
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's 15 I
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policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives.
Subpart 0 - Compliance With Conditions of Emergency Access; Termination of Emergency Access Subpart D ccntains tire terms and conditions of emergency access.
1 Subpart D establishes that the NRC may terminate a grant of emergency 4
access if the requestor or his waste do not meet the conditions estab-lished by NRC pursuant to this Part. It also establishes that the Commission may terminate emergency access when it determines that emergency access is no longer necessary to protect the public health and safety or the common defense and security from a serious and immediate threat.
1 VII. Rationale for Criteria This rule establishes the criteria for making the emergency access l
determinations required by the Act. The rationale for these decisions is discussed below:
(a) Determination tnat a Serious and Immediate Threat Exists Establishing the criteria to be used in determining that a serious and immediate threat exists to the public health and safety or the common l
defense and security is key to NRC's decisions to grant emergency access. j Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate threat." i 1
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(1) To the Public health and safety-- j
)
The criteria in this rule for determining whether a serious and ]
l immediate threat to the public health and safety exists, address three ;
i situations. Section 62.25(b)(i) addresses the situation where the lack j q
l of access would result in a radiation hazard at the facility that is i l
generating the LLW. Section 62.25(b)(ii) addresses the situation where j i
the threat to public health and safety would result from disruption of j i
the activity that generates the waste, for example, an essential medical i
service. Section 62.25(c) addresses the criteria for granting temporary j i
emergency access. '
l 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 3 1
necessary to consider a wide range of potential factual situations. How- l ever, in making this qualitative determination, the criteria require the Commission to consider several existing quantitative standards. These 1 1
consist of the Commission's standards for radiation protection in 10 CFR I 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 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
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'its entirety, i.e. the threat to public: health and safety and the alter '
nativestoemergencyaccessthatmaybeavailabletomitigatethatl
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1 threat.. In other words, in determining what constitutes a serious and' immediate threat to public health and safety, the Commission must con-sider what threat would be. unacceptable assuming that no' alternatives y are available. In the. Commission's judgment, any situation'that would result in exceeding the. occupational dose limits or basic limits of.
public exposure upon which certain requirements. in 10 CFR Part'20 are founded would be an unacceptable threat to the public health and safety, .
and should be considered for emergency access.
The legislative history of Section 6 of the Act does not provide.any illustrations of a situation where a serious and immediate threat to the public health and safety would be created at the facility at which the waste is stored, although it is clear that Congress was' concerned over the potential radiation hazard that might result at a particular facility that was denied access to LLW disposal. The Commission does not antici-pate any situation where the lack of access would create a serious and.
immediate threat to the public health and safety. However,~in order to be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety might result, this rule establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Commission would act l immediately to prevent or mitigate any threat to the public health and safety, including shutting down the facility. However, there may be circumstances where'a potential safety problem would still exist, after the facility was shut down or the activity stopped, if the low level waste could not be disposed of because of denial of access. In this 18
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o situation, emergency access-may be needed. 'T'he Commission would empha-
- size first, that it is extremely unlikely that a' serious and immediate threat' to the public health and safety will ever' result at the genera-tor.'s' facility-from the lack of. access to a disposal facility, and-second,.if such a situation does exist, the Commission will move imme-
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diately,to eliminate the threat..
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If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the nature and:
extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This is separate.from a finding that a serious and immediate threat to the.
public health and safety would exist if the activity were forced to shut down.
Section 6(d) of the Act allows the Commission to grant temporary emergency access for'a period not to exceed 45 days solely upon a finding of a serious and immediate threat to the public health and safety. In 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 19 e______-__-__________________-______ ._
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whether an event at a facility or activity licensed or otherwise regu-lated 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 i which the Commission considers significant from the standpoint of public health and safety. Under the criteria established in the Commission's policy statement, an event will be considered an abnormal occurrence if l 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; i
- b. Major degradation of safety related equipment; or
- c. 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 deterinine that there is i
either a serious and immediate threat "to the public health and safety,"
or to "the common defense and security," realistically NRC cannot make i
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 20 L
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4 has the Congressional mandate for this' determination, NRC staff believe-
- it necessary to consider 00D and 00E information as part of the decision '
- making process.
NRC considered several approaches for involving 00D and DOE in the.
process of' determining whether requests for emergency access should be g i
granted on the basis of a serious and immediate' threat to the common'
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' defense and security. NRC has concluded that"the best way to provide. f
.1 such interaction is to require that requests filed with'NRC for emergency.-
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 deter-mination with D00 or D0E. So while the Commission intends to give the 00D 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
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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
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I consistent with the public health and safety. Requestors for emergency access are required to demonstrate that they have explored the alterna-tives available and that the only course of action remaining is emergency 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 l 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 j has identified other possible alternatives to emergency access which ,
should be considered, as appropriate, in any requests for emergency j access. These additional alternatives are discussed below. \
Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and q operators of commercial nuclear reactors with special access to disposal ,
j in the event that unusual or unexpected operating, maintenance, repair 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 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 l
l 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
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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 I
Federal LLW disposal facility prior to requesting access to non-Federal )
1 facilities under the emergency access provision. )
I The Commission fully intends that the States and Compacts whose j I
generators have been denied access to LLW disposal will share in the responsibility for identifying and providing alternatives to emergency I access. NRC's expectation is that the States and appropriate Compacts, as well as the generator, will each exhaust their options before emer-gency access will be requested. A request for emergency access is to include a discussion of the consideration given to any alternatives available to the requestor. To NRC, this includes State / Compact options as well as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of these, and the actions taken.
For all the alternatives that are considered, NRC is requiring detailed information from the requestor regarding the decision process leading to a request for emergency access. The requestor will be expected to: (1) demonstrate that all pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the alterna- ;
1 tives considered; (3) demonstrate that consideration has been given to l l
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combining alternatives 'in some way or .in _some sequence either- to avoid .
the need for emergency access, or to resolve the threat,.even on'a tempo-rary basis, until other arrangements can be made; (4) evaluate the costs, economic feasibility, and benefits to the public health and safety of'the potential alternatives, and (5) incorporate ~the results into the' request.
(c) Designation of Site In deciding which of the operating,-non-Federalior regional LLW disposal facilities will receive the LLW requiring emergency' access,'NRC' will determine which of the disposal facilities would qualify under.the limitations set out in Section 6(h)'of the Act. According to those limitations, a site would be excluded from receiving emergency; access waste if (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity'1 imitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste _ requiring.. dis .
posal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act alone, the Commission will consider other factors including the type of waste, previous disposal practices, transportation requirements, radio-logical effects of the waste, the capability for handling the waste at each site, the volume of emergency access waste previously accepted by each site, and any other information that would be necessary in order to come to a site designation decision.
Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute the waste as equitably as possible 24
J
[7590-01] f i
among the available operating, non-Federal or regional LLW disposal facil-ities. To the extent practicable, NRC intends to rotate the designation of the receiving site, and, for the three currently operating facilities, to allocate emergency access disposal in proportion to the volume limita-tions established in the Act. In most cases, NRC would expect that the designation of a single site will minimize handling of and exposure to f 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 circum-stances, NRC will evaluate the advantages and disadvantages of designat-ing 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 deci-sions, the Agency will have to be well informed regarding the status of disposal capacity for each of the commercially operating waste disposal l facilities. NRC intends to arrange to obtain this information on a con-tinuous basis. ;
l It should be noted that in setting out the site designation provision i for Section 5, Congress assumed there would always be a site deemed appro-priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations provision set forth in the Act. It is not clear what options Congress 25
.[7590-01].
- i
. intended NRC to' consider if all sites are deemed inappropriate' to receive d the LLW. This may have to be addressed by Congress at some time inIthe.
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' reduced in volume to the maximum extent practicable." NRC will evaluate the extent to which. volume reduction methods or techniques will be or have been applied to the wastes granted emergency access-in order to arrive at a finding in regards to this provision.
NRC may receive a request for emergency access where'the applica-tion of volume reduction techniques may be sufficient _to mitigate the threat posed to the public health and safety. 'As a result, NRC plans to evaluate the extent to which waste-has been reduced in volume'as a part of its mandated evaluation of the alternatives considered by: the genera-tor. From that evaluation, the NRC.could reach 'a finding 'on.whether the--
waste has.been reduced in a manner consistent with Section 6(i).
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 j waste, the conditions under which it is being processed or stored, the !
administrative options available, and whether volume ~ reduction process- i 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 pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, 26 j l
7
[7590-01] 1 1
l
{
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 (includ-ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin-film evaporators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (specific activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker exposure, and equipment availability); and the administrative controls which could be applied.
VIII. Terms and Conditions for Emergency Access Disposal-LLW granted emergency access disposal pursuant to this rule is subject to the general requirements for LLW disposal as established in the Act, as well as those requirements which specifically address emer-gency access. This means that LLW granted emergency access shall be !
processed, treated and disposed of in a manner consistent with any other LLW which is eligible for disposal at operating non-federal or regional l LLW disposal facilities under the Act. The disposal of waste by grant of emergency access should not preclude the implementation of any l specific conditions, regulations, requirements, fees, surcharges or j taxes prescribed by the disposal facility that may be in effect at the time of the Commission's determination to grant emergency access. How-l ever, while generators whose LLW is granted emergency access are subject to the special fees and surcharges specified in the Act for emergency access disposal, they shall not otherwise be subject to fees or require-ments that are not customarily charged or imposed for routine LLW disposal.
27 w-__.. .- -
. [7590-01) -1 IX. Requests for Emergency Access Made Prior to.the Effective Date.of.the Rule The Commission has tried to anticipate when the first request for emergencyLaccess might be made so the final rule would be in place before g 1
that time. However, it may. be necessary for a generator or State to sub-mit a request for a Commission emergency access determination prior to a 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 the proposed rule.
i X. Analysis of Public Comments ;}
The Commission received twenty one (21) comment letters =for the
-proposed rule. Ten (10) of the comment letters came:from concerned citizens, six (6) from the governments of potentially.affected States, two (2) from low-level waste compacts, two.(2) from the industry and one (1) from a auclear information service. A detailed analysis of'each of the comments was prepared and used to revise the proposed rule. The major comments are discussed here. Copies of the comment letters and the l detailed analysis of comments are available for public inspection and copying for a fee at the NRC Public Document Room, 1717 H Street NW., -l Washington, DC 20555.
In general, commentors expressed support for NRC's issuance of a rule for its emergency access decisions and indicated changes that would !
1 improve it from their perspective. Only one commentor, representing a i 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 !
28 H i-
[7590-01]
their LLW. NRC was legislatively mandated to make emergency access determinations when the States are not otherwise able to manage their LLW. Thus, NRC does not consider that the emergency access rule interferes with states' rights, especially since the rule incorporated much of the language in Section 6 of the Act.
l l
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. Fourteen of the commentors in 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, the commentors stated that Federal wastes, particularly those generated by DOE and D00, or wastes that are classified as greater-than-Class-C, 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 these types of LLWs. Most of the commentors who expressed concern about which wastes would be granted emergency access I were concerned that LLWs determined to be ineligible for routine disposal under the Act, could gain access to disposal at State or regional facil- j ities under the emergency access provision.
i Throughout the development of Part 62, the NRC assumed that its 1
mandate was to grant emergency access only to LLW that would otherwise be l
29
[7590-01]l I
i a
.j eligible for routine disposa1lat State or: regional LLW disposal"facil-~ ].
ities according to the terms and conditions set out in the.Act. More ]
specifically,'the NRC believes-that o'nly those LLWs' designated by Section lp 3(a)(1) of the Act to_be the disposal. responsibility of the States'could .,
be eligible for a grant of' emergency ' access ' disposal.
Under Subsection 3(a)(1)(A),;the States are mandated to provide disposal for commercially generated LLW classified as A, B and C. .They are not required to provide disposal for greater-than-Class-C wastes.
~
Thus, the NRC would expect to deny any request for emergency access
] 3 veceived for greater-than-Class-C waste. The same is.true'for the Federally generated LLW which is excluded from State disposal' respon-sibility under Section 3(a)(1)(B). Under that subsection, the States'are.
.)
l assigned the responsibility for disposing of "LLW generated by the i
Federal government except that'which is owned or generated by DOE, by the- j Navy as a result of decommissioning of vessels,'or as a result of any !
I research, development, testing, or production of any atomic weapons." l NRC does not expect to grant emergency access to any wastes that are-exempted by Section 3(a)(1)(B). Howev'er, since LLW generated by'the Federal government which does not fall into these exclusionary categories would be eligible for routine LLW disposal,'those same Federally generated LLWs would also be eligible for emergency access disposal as well. -l 1
The NRC has no intentions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act.
However, the Commission did not state its intentions in the proposed 1
rule. The Commission assumed that it would be clear that the limitations.
established in the Act for routine LLW disposal would also apply for-i i
30 l
i
[7590-01]-
i disposal resulting from a grant of emergency access, Apparently, th'at-was.not the case. To clarify the NRC's understanding and intent regarding-the scope of wastes which the-NRC considers to be potentially eligible -
for emergency' access, the NRC added a new provision, (c) to SectionL 62.1, .
" Purpose and. Scope" of the final rule.. Th? new provision states,that-
"The regulations in this Part apply'only to the LLW's which the. States have disposal' responsibility for pursuant to Section. 3(a)(1) of- the Act~.~" <
The NRC believes the addition of 'this clarification to'the' final rule should resolve any questions'regarding a particular LLW's eligibility for emergency access. consideration'as well.as the Commission's intended application of the final rule.
Reciprocal Access i j-Several of the commentors pointed out that the proposed rule omitted any reference to, or discussion of, Section 6(F) of the Act, which addresses reciprocal access. Section 6(F) provides that the Regional' i Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact j region or State in which the emergency access 'aste was generatod. 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."
Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62' indicated that reciprocal' access should j
be addressed in the final rule. Most of the commentors who raised reciprocal access concerns believed the NRC should broker reciprocal 1
I 31 j i
- . - _ _ _ _ - _ _ _ _ ._ _____ _ a
[7590-01]
access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal ~ facility is designated to receive emergency access waste. Several of them emphasized that the reciprocal I
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. They stated that reciprocal access is of particular concern because a receiving Regional Compact or State has virtually no leverage or role to play in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. They indicated reciprocity is an integral part of Section 6 and should be part of the rule.
One commentor indi.ated that even if the NRC did not wish to be involved in brokering the arrangements, it "must ensure that the right to reciprocal access is recognized and its implications are considered."
The commentor indicated that a formal reciprocal access acknowledgement should be extracted from the Compact Region or State in which the emer- ;
gency access waste was generated before any determination for granting emergency access is made. They indicated that such an acknowledgement
, should be required by the NRC as part of the contents of a request for 1 1
I l
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 notification provided to the receiving state and, if appropriate, the Compact Commission."
The NRC recognizes that the commitment to reciprocal access is an 1
integral part of the emergency access process, particularly for the l l
States with the operating LLW disposal facilities which will be designated '
by NRC to receive emergency access waste. Staff considered addressing l
32 l l
1
[7590-01]'
reciprocal access.during the development of the proposed rule. At'that J
time, the-NRC made a decision not to address reciprocal' access as part of.
the rule-on emergency access. As NRC staff; read Section 6(f),' arranging for reciprocal acess is an obligation between States / Compacts and thus.is' outside the scope of NRC's responsibility to implement Section 6. Thus, Staff believed it would be'. inappropriate for the NRC to assume theLrole. I
'j of enforcing reciprocal. access arrangements. j
'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. The NRC's mandate under Section 6 is to grant requests for emergency access in. order to protect the public liealth and safety.and the common defense and security from a serious and immediate threat. 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 circumstances, actions necessary to protect the public health and safety could be delayed or compromised. Thus, the NRC continues to believe that. !
an enforcement role regarding reciprocal access is inappropriate for the l 1
Agency. The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Commis- !
sion's basic mandate to make emergency access decisions.. The NRC maintains that arranging for reciprocal access in response to grants'of emergency:
access is the responsibility of the States and Compacts involved. _The NRC believes that the promise of reciprocal access ' desired by the commentors l could be secured during the 15 day period required by the Act under l Section 6(g) for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation.
33
[7590-01] l l
i Compact Approval of Grants of Emergency Access ll Three of the commentors representing States or Compact Commissions indicated that the NRC had been remiss in not including a provision in i the proposed rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Commission of the .
region in which the designated site is located. The commentors also 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 order to establish that Compact i
Commission approval would be necessary before the NRC's decision would be l
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.
l The basis for these comments is language in Section 6(g) of the Act.
It states that "any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its compact." This provision has proven to be somewhat controversial
)
because it is open to several interpretations. The interpretation most frequently used by the responding States is that Congress intended for the Compact Commission of the designated site to have the final say I regarding the acceptance of emergency 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 com- j mentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule. ,
l 34 l
[7590-01]
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 discussion of the Legislative History in the Supple-mentary Information portion of the proposed rule.
Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of the Compact.3 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. This 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 is clear from the legislative history that the basic purpose of the Section 6 emergency access provision is to ensure that sites which 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 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 35
i
[7590-01] I l
While disapproval may not be an option under the Act, clearly the ;
Act intended the receiving Compact Commission to be fully informed l 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 -q l
of the proposed rule provided that the NRC will notify the Compact l I
Commission of the State in which the designated disposal facility is i located that emergency access is required. It further provides that "the J
notifications must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to {
l l source, physical and radiological characteristics, and the minimum volume )
I and duration (not to exceed 180 days) necessary to alleviate the immediate i l
and serious threat to the public health and safety or the common defense and security.
In order to further establish its position en 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 l
i final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
Applicable Terms and Conditions for 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 36
j
[7590-01]
emergency access disposal should not have to pay any special fees, beyond )
J those specifically mandated by the Act. In both cases the commentors i
wanted assurances incorporated'into the rule that in making emergency j access site designation determinations, the NRC_would protect both the I
health and safety interests and the financial interests of either the disposal facility designated to receive the LLW, or the person requesting I l
emergency access. In addition, they wanted assurances included in the I l
rule that the NRC would consider the fees, taxes, etc. in designating a '
l !
I site to receive any waste granted emergency access.
The NRC's response to these concerns is simple, and is much like the earlier discussion about the response to comments concerning which wastes are eligible for emergency access. As previously stated, the Commission j i
believes that Congress intended emergency access only to be granted.for waste which would routinely qualify for L'W disposal under the terms of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act).
To the Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility ,
J designated to receive the wastes by the NRC. Section 6(h) states that J l "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 agreement of such facility, ...."
To assure that the NRC will designate a site which is suitably j matched to the LLW granted emergency access, the NRC included a provision in the proposed rule which stated that a LLW disposai site will be excluded from consideration to receive emergency access waste if the 37 l
[7590-01]
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 require-ments at the designated disposal facilities."
Regarding fees, taxes and 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 doas 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 t implementation of emergency access decisions once O ey are made by the Commission. In response to the comments, the NRC added a new Section "VIII" to the Supplementary Information portion of the final rule titled,
" Terms and Conditions for Emergency Access Disposal." It sets out the responsibilities regarding the disposition of emergency access for both 1 the generator of the LLW granted emergency access and the operating j disposal site or sites which have been designated to receive the waste.
The new sectior reaffirms the NRC's understanding of Congressional intent that whatever conditions or terms norra11y apply to LLW disposal apply for emergency access, except where specifically stated otherwise in the Act. ,
38
[7590-01] ;
Conditions of Termination Four of the commentors suggested the addition of a'new section!or i subsection of the rule to address the conditions;under which emergency-
~
-could be terminated. The Commission agrees that terms and conditions' .- ;
i should be established in the final rule for termination of grants. of emergency access. The NRC has added a new Subpart D to. the. final. rule -
which incorporates some of the suggested conditions for termination as-recommended by the commentors. The Subpart is title, " Compliance with Conditions of Emergency' Access Termination of Emergency Access." This:
new Subpart 0 is discussed under the VI.(D) of the Supplementary,Informa-tion for this rule. It establishes that the operator of the designated site may refuse emergency access waste if it does not meet the conditions established by the NRC pursuant to'this Part. It also establishes that the Commission may terminate a grant of emergency access if it determines.
that emergency access is no longer needed.
Response to Specific Request for Comments In the proposed rule, the NRC specifically requested comments on
.)
certain parts or assumptions made by the NRC. Under Section VIII of the proposed rule, the NRC expressed an interest in receiving comments on:
(1) What scenarios are envisioned where emergency access would be required?
(2) What are the potential problems with the NRC's approach to determining an immediate and serious threat to the public health and 1
safety? !
1 l
l 39 I i
[7590-01]: )
1 (3) What are the potential problemsfwith the arrangement' proposed:
for making the determination of serious and immediate threat'to the-common defense and security?
(4) 'What are the potential difficulties with' the proposed approach for designating the receiving. site? and.'
(5)' What should the.NRC do'if no site is found to be suitable for waste requiring emergency access?
.Two of the comments specifically. addressed this' request forl comments, offering partial responses to some'of the questions. The comments did not reveal any new perspectives for the NRC to consider so the final rule was not affected by the comments received.
In the proposed rule, the NRC specifically requested _ comments on the initial regulatory flexibility analysis from small businesses, small.
organizations, and small jurisdictions in order t'o determine if the final-regulations should be modified such that less stringent requirements could be imposed on small entities while still adequately' protecting'the public health and safety. None of the comments received on the proposed-rule addressed the impact of the regulation on small entities or the adequacy of the NRC's regulatory flexibility analysis. As' a result, .it-1 was not necessary to change the final rule to accommodate the special needs'of small business.
' XI. Finding of No Significant Environmental Impact: Availability This rule establishes. 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 necesscry to avert a 40 1
[7590-01]i 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'codi.fy the criteria and proce-dures in the Act.z :The adoption of such implementing procedtires and; criteria by promulgation of. a . final rule does not have an environmental-
'effect.
' Therefore,- the Commission has determined under the National Environ-mental. Policy Act'of'1969, as' amended, and the Commission's regulations in Subpart A'of 10 CFR Part 51, that-this rule.is not 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. regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted below.
XII. Paperwork Reduction Act Statement l The final rule adds information collection requirements that are.
subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget Approval Number 3150-0143.
XIII. Regulatory Analysis The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the alter-natives considered by the Commission. The analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. Single copies of the analysis may be 41 w________________-________-___-__
[7590-01]
obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, Washington, DC 20555, telephone (301) 492-3857.
l l
XIV. Regulatory Flexibility Certification
{
NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facilities under Section 6 of the Act. Based upon the information avail-able and in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a signifi-cant economic impact upon a substantial number of small entities.
The rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small entity. The generators of LLW are ,
nuclear power plants, medical and academic facilities, industrial licen-sees, research and development facilities, radiopharmaceutical manufac-turers, fuel fabrication facilities and government licensees. Of these categories, all but the power plants, fuel fabrication facilities, and government licensees could potentially include small entities.
Although these categories may contain a " substantial number of small entities," the Commission does not believe 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, J
the generator himself must initiate the action by requesting a grant of
]
emergency access from NRC. This would occur only because the generator has been denied access to LLW disposal.
42
[7590-01]
i l
The Commission is required by statute to make emergency access
]
l determinations. Since a grant of emergency access is intended to correct I the problems LLW generators may encounter because of lack of access to 1 L 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 genera- j
(
tors. 10 CFR Part 62 provides guidance to the generator on what informa- d tion will be required for making requests for emergency access and provides [
an orderly framework for making those requests. Also, the rule will enable generators to better plan to avoid LLW disposal access problems, thus-i providing the certainty required for economic growth and development. '
The impact of the recordkeeping requirements on any affected licensees l
{
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
part of any process to decide a course of action if necessary access to LLW disposal was not going to be available.
]
XV. List of Subjects in 10 CFR Part 62 Administrative Practice and Procedure ~ Denial of Access, Emergency
)
Access to Low-Level Waste Disposal, Low-Level Radioactive Waste, Low-Level l Radioactive Waste Policy Amendments Act of 1985, LLW Treatment and Disposal, and Nuclear Materials.
l l For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act '
of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive Waste Policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62.
I 43
. l
[7590-01] 4 l
Part 62 - Criteria and Procedures for Emergency: !
Access to Non-Federal and Regional Low-Level ' i Waste Disposal Facilities I
- 1. A new Part 62 is added to 10 CFR to read as follows:
I Subpart A - General Provisions 1
Section: '
l 6
2.1 Purpose and Scope
62.2 Definitions.
62.3 Communications.
62.4 Interpretations.
l 1
62.5 Specific Exemptions. '
l 62.8 Information Collection Requirements: OMB Approval l
l Subpart B - Request for a Commission Determination .s 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. I 62.14 Contents of a request for an extension of emergency access.
62.15 Additional information.
i 62.16 Withdrawal of a determination request.
62.17 Elimination of repetition. '
62.18 Denial of access. ..
i 44 i
[7590-01]
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.
Subpart D - Compliance with Conditions of Emergency Access; Termination of Emergency Access 62.31 Termination of Emergency Access.
Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as a:cended, 88 l 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).
1 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-li 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.
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(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 an'd who submit a request to the Commission for a determination pursuant to this part.
(c) The regulations in this part apply only to the LLWs that the States have the responsibility to dispose of pursuant to Section 3(1)(a) of the Act.
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 unw r section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to regu-late the disposal of low-level radioactive waste under such agreement.
" Commission" means the Nuclear Regulatory Commission or its duly authorized representatives.
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 commission, committee, or board established in a Compact to administer such Compact. l
" Disposal" means the permanent isolation of low-level radioactive waste pursuant to the requirements established by the Nuclear Regulatory Commission under applicable laws, or by an Agreement State if such isolation occurs in such Agreement State.
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" Emergency Access" means access to an operating non-Federal or j 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 i 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 radioac-tive waste disposal facility in operation on January 1,1985, or sub-sequently established and operated under a Compact. I
" Person" means any individual, corporation, partnership, firm, association, trust, State, public or private institution, group or agency who is an NRC or NRC Agreement State licensed generator of low-level radioactive waste within the scope of Section 62.1(c) of this Part; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any NRC or NRC Agreement State 47 ;
E- -- - _ - - - - - - - . _ - - - - - I
'[7590-01]
licensed generator or generators of low-level radioactive waste within the scope of Section 62.1(c) of this Part located in his or her " State";
or their duly authorized representative, legal successor or agent.
" State" means any State of. the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access 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 the granting and cannot be extended.
S 62.3 Communications.
Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-
~
tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear l Regulatory Commission, Washington, DC 20555, or may be delive' red in l
person to the Commission's offices at 1717 H Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland.
S 62.4 Interpretations.
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considered binding on the Commission.
S 62.5 Specific exemptions.
The Commission may, upon application of any interes,ted person or upon its own initiative, grant an exemption from the requirements of the 48
[7590-01]
I regulations in this pari that it determines is authorized by law and will j not endanger life or property or the common defense and security and is otherwise in the public interest.
S 62.8 Information collection requirements: OMB Approval.
The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Manage-
]
ment and Budget (0MB) for approval as required by the Paperwork Reduction l i
Act of 1980 (44 U.S.C. 3501 et seq.). OMB has approved the information l I
collection requirements contained in this part under control number l I
3150-0143. !
i Subpart B--Request for a Commission Determination j 6 62.11 Filing and distribution of a determination request.
(a) The person submitting a request for a Commission determina-i tion must file a signed original and nine copies of the request with the I 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 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 notice. A copy of the request will be made available for inspection in 49
![7590-01]-
the Commission's.Public Document Room, 1717 H Street NW.,' Washington, DC, and in the Local Public Document. Room nearest 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 Governors of.
~
the' States of the Compact ~ region where the waste.is generated,-to'the ,
Governors of.the States with operating non-Federal' low-level _ radioactive waste disposal facilities, to th'e Compact Commissions with operating regional low-level radioactive waste disposal facilities, and toLthe Governors of.the States in the Compact Commissions with. operating.
disposal facilities.
(c) Fees applicable to a request for a Commission-determination under this part will be determined in accordance with the procedures set forth for special projects under category 12 of S 170.31 of this chapter.
(d) In the event that the allocations or-limitations established in Section 5(b) or 6(h) of the Act are met at all operating non-Federal or regional LLW disposal facilities, the Commission'may! suspend the process-ing or acceptance of requests for emergency access ~ determinations until.
additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General Information.
A request for a Commission determination under this part must include.
the following information for each generator to'which the request applies:
(a) Name and address of the person making the request; (b) Name and address of the person (s) or company (ies) generating '
the low-level radioactive waste for which the determination is sought; 50
[7590-01]
(c) Certification that the radioactive waste for which emergency access is requested is low-level radioactive waste within Section 62.1(c) of this Part.
(d) The low-level waste generation facility (ies) producing the waste for which the request is being made; (e) A description of the activity that generated the waste; (f) Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied access; l (g) A description of the low-level radioactive waste for which l
emergency access is requested, including:
(1) The characteristics and composition of the waste, including, but not limited to--
(i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment);
l (ii) principal chemical composition; (iii) physical State (solid, liquid, gas);
(iv) type of solidification media; and
)
1 (v) concentrations and percentages of any hazardous or toxic
]
chemicals, chelating agents, infectious or biological agents associated with the waste; (2) The radiological characteristics of the waste such as--
(i) the classification of the waste in accordance with S 61.55; (ii) a list of the radionuclides present or potentially present in the waste, their concentration or contamination levels, and total quantity; 51
[7590-01]
(iii) distribution of the radionuclides within the waste (surface or volume distribution);
(iv) amount of transuranic (nanocuries/ gram);
(3) The minimum volume of-the waste requiring emergency access to i
eliminate the 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 l 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; (h) 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-1 ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the need for !
emergency access was identified; (3) A chronology and description of the actions taken by the person requesting emergency access to prevent the need for making such a request, including consideration of all alternatives set forth in S 62.13, and any supporting documentation as appropriate; i,
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I (4) An explanation of the impacts of the waste on the public health ;
I and Wety or the common defense and security if emergency access is--not ]
i granted, and the casis for concluding that these impacts constitute a i i
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 I 1
research activities, were to be curtailed, either for a limited period of 1
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; (j) Documentation certifying that access has been denied; (k) Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simul- ,
taneously under consideration by the Department of Energy (D0E) for access through the unusual volumes allocation; (1) Where the request is made wholly or in significant part on the basis of a serious and immediate threat to the common defense and secu-rity, 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; (m) Date by which access is required; (n) Any other information which the Commission should consider in making its determination.
1 I
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S 62.13 Contents of a request for emergency access: alternatives. {
(a) A request for emergency access under this part must include l
information on alternatives to emergency access. The request shall 4 include a discussion.of the consideration given to any alternatives, '
including, but not limited to, the following: (1) storage of low-level -
radioactive waste at the site of generation; (2) storage of low-level radioactive waste in a licensed storage facility; (3) obtaining access to a disposal facility by voluntary agreement; (4) purchasing disposal capacity available for assignment pursuant to the Act; (5) requesting disposal at a Federal low-level radioactive waste disposal facility in the case of a Federal or defense related generator of LLW; (6) reducing the volume of the waste; (7) ceasing activities that generate low-level radioactive waste; and (8) other alternatives identified under Subpart' (b) of this Section.
(b) The request must identify all of the alternatives to emergency access considered including any that would require State or Compact action or any others that are not specified in paragraph (a) of this sec-tion. The request should also include a description of the process used to identify the alternatives, a description of the factors that were con-i sidered in identifying and evaluating them, a chronology of actions taken j l
to identify and implement alternatives during the process, and a discus- i sion of any actions that were considered, but not implemented.
l (c) The evaluation of each alternative must consider: (1) its )
l l
l potential for mitigating the serious and immediate threat to public l
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 l
54 l
1
[7590-01] .
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-rity; (3) the technical and economic feasibility of each alternative including the person's financial capability to implement the alterna- I tives; (4) any other pertinent societal costs and benefits (5) impacts-to the environment; (6) any legal impediments to implementation of each alternative including whether the alternatives will comply with appli- f cable NRC and NRC Agreement States regulatory requirements; and (7) the time required to develop and implement each alternative.
(d) The request must include the basis for: (1) rejecting each alternative; and (2) concluding that no alternative is available.
S 62.14 Contents of a request for an extension of emergency access.
A request for an extension of ..= rgency 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, ;
I acted during the period of the initial grant to eliminate the need for I emergency access. Documentation must include: (1) an identification of l 1
additional alternatives that have been evaluated during the period of the initial grant, and (2) a discussion of any reevaluation of previously considered alternatives, including verification of continued attempts to l gain access to a disposal facility by voluntary agreement.
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S 62.15 Additional Information.
(a) The Commission may require additional information from a person making a request for a Commission determination under this part concern-ing any portion of the request.
(b) The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to a request for additional information under paragraph (a) of this section within ten (10) days from the date of the request for additional informa-tion, or any other time as the Commission may specify. This denial will not prejudice the right of the person making the request to file another request for a Commission determination under this part.
S 62.16 Withdrawal of a determination request.
(a) A person may withdraw a request for a Commission determination under this part without prejudice at any time prior to the issuance of an initial determination under S 62.21.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a Commission determination under this part.
S 62.17 Elimination of repetition.
In any request under this part, the person making the request may incorporate by reference information contained in a previous application, Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific.
56
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J 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. j.
Subpart C--Issuance of a Commission Determination j 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 determine whether--
l (1) Emergency access to a regional disposal facility or a non-l l Federal disposal facility within a State that is not a member of a Compact for specific low-level radioactive waste is necessary because of l an immediate and serious threat (i) to the public nealth 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.
(c) A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical 57
[7590-01]
and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to eliminate the immediate threat to public health and safety or the common. defense and security. It may also contain conditions upon which the determination is dependent.
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 writing, to the person making the request, to the Governor of the State -
in which the low-level radioactive waste requiring emergency access was generated, to the Governor of the State in which the designated dis-posal facility is located, and if pertinent, to the appropriate Compact Commission for such approval as is specified as necessary in Section 6(g) of the Act. For the Governor of the State in which the designated-disposal facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency access was I granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme-diate and serious threat to public health and safety or the common defense and security. For the Governor of the State in which the low-1 level waste was generated, the notification must indicate that no exten-sion of emergency access will be granted under S 62.24 absent diligent State and generator action during the period of the initial grant.
(b) The Secretary of the Commission will cause to be published in.
the Federal Register a notice of the issuance of the determination.
l 58
- [7590-01].
(c) 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.
i 6 62.23 Determination for granting temporary emergency . access.
(a) The Commission may grant temporary emergency access to an appropriate non-Federal or regional disposal facility or facilities provided that the determination required under S 62.21(a)(1) is made; (b) the notification procedures under S 62.22 are complied with; and (c) the temporary emergency access duration will not exceed torty-five (45) days.
S 62.24 Extension of emergency access.
(a) After the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially granted ;
under S 62.21, the Commission shall make an initial determination of whether--
(1) emergency access continues to be necessary because of an immed -
iate and serious threat to the public health and safety or the common defer.se and security; (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and .
i
-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.
59
_ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ _ _ . . _ _ _ _ _ k
[7590-01] l (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.
i i
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 deterr'r whether the circumstances described in the request for emergency access create a serious and imme-diate 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 toe. 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 gener-ated 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; l (ii) the extent to which essential services affecting the public j health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency access. !
60 l
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(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 oth'erwise 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
- aking 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 generwing 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 i significant disreption in that activity that would seriously threaten '
the common defense and security. The Commission will consider the views of the Department of Defense (000) and the Department of Energy (DOE) in the Statement of support as submitted by the person requesting emergency 4
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: l 1
(1) has identified and evaluated any alternative that could mitigate I the need for emergency access; (2) has considered all pertinent factors in its evaluation of alternatives including state-of-the-art technology and impacts on public health and safety.
(f) In making the determination required by S 62.21(a)(2), the Commission will consider implementation of an alternative to be unreason-able if (1) it adversely affects public health and safety, the environment, 61 '
[7590-01]
or the common defense and security; or (2) it results in a significant curtailment or cessation of'essenti9 services, affecting public health and safety or the common defense and security; or (3) it is.beyond the.
technical and economic capabilities of the person requesting emergency access; or (4) implementation of the alternative would conflict with.
applicable State or local laws or Federal laws and regulations; or (5) it cannot be implemented in a timely manner.
(g) The Commission shall make an affirmative determination under 1
S 62.21(a) only if all of the alternatives that were considered are found'
.]
to be unreasonable. l (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 l l 1 making the request has diligently acted during the period of the' initial )
1 grant to eliminate the need for emergency access.
l (j) The Commission shall consider whether any waste delivered for ,
' -l disposal under this part has been reduced in volume to the maximum extent I 1
practicable using available technology. i 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:
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(1) the low-level radioactive wastes of the generator do not meet the criteria established by the license agreement or the license agree-ment of the facility; or (2) the disposal facility is in excess of its approved capacity; or (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 percent of the total volume of low-level radioactive waste accepted for 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 and its characteristics.,
l (2) previous disposal practices, j (3) transportation, (4) radiological effects, l (5) site capability for handling waste, (6) the volume of emergency access waste previously accepted by each site both for the particular year and overall, and (7) any other considerations deemed appropriate by the Commission.
(d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW disposal sites, or any information submitted by the public in response to a Federal Register notice requesting comment, as provided in para-graph (b) of S 62.11.
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Subpart D--Compliance With Conditions of Emergency Access; Termination of Emergency Access' S 62.31 Termination of Emergency Access (a) The Commission may 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.
(b) The Commission may terminate a grant of' emergency access if an l applicant has provided inaccurate information in its application for l
l emergency access or if the applicant has failed to comply with this Part or any conditions set by the Commission pursuant to this Part.
Dated at Rockville, MD, this day of , 1988.
i Fcr the Nuclear Regulatory Commission.
1 l
l Samuel J. Chilk, Secretary of the Commission.
l l
64
Part 62 Comment Analysis i
. Responses to Individual Comments:
- 1. Comment Letter #1 -- W. Clough Toppas, Dept. of Human Services, Maine 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 not in opposition to the proposal. -1 RESPONSE: No response necessary.
3 Comment l'.2
- 2. The proposed rules (e.g., 662.26) should include a small subsection stating "...the designation of a disposal facility pursuant to $62.21 ,
shall n>t preclude the implementation of any specific conditions, 'I 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..." ,
I RESPONSE: The Comission believes that Congress intended emergency I access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy J Act Amendments of 1985 (the Act) and which would meet all the general requirements and regulations of the disposal' facility designated by NRC to receive the wastes. To assure that NRC will designate a site suitably matched to the LLW granted emergency access, NRC included a provision in the proposed rule which states that a LLW disposal site will be excluded from consideration to receive emergency access waste if-the waste does not meet the criteria established by the license for the j facility [62.26(b)(1)]. The license incorporates the regulations and- l requirements that affect each particular facility. Taken with the other information in 62.26
-ENCLOSURE B I
L-_----._____-_-----_-___._____.__-__-_-____-____.-_______-___-_-___ _ _ _ _ . _ _
2 which the NRC will consider before designating a. site, the Commission believes Section 62.26 as proposed adequately addresses the NRC'S responsibility to designate a site which does not preclude."the implementation of any specific regulations, and requirements at'the designated disposal facilities."
1 The comment also lists " fees, taxes and conditions" as items which NRC ;
should consider'in designating'a site. The Commission does not agree )
that such information can or should be used by NRC in making its site designation decision. The Commission recognizes the importance of-i conditions to ensure implementation of emergency access decisions'once they are made by the Commission and has responded to.that part of his comment by adding a new Section VIII to the Supplementary Information ~1 portion of the final rule " Terms and Conditions for Emergency Access Disposal." The new Section sets out the responsibilities of the {
generator and the disposal facility operator once emergency access has been approved, including the fees, taxes, etc. (See also responses to ]
Comments 5.5, 8.4 and 9.1.) j i
I
. 1 l
l L___ _ - _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _
3 B.2 Comment Letter #2 -- Sally Dicmas, " Concerned About Radiation in the l Environment," (Citizens Group) j 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- j LLW's designated'by Section 3(a)(1) of the Act to be the disposal l responsibility of the States, would be eligible for disposal pursuant to the emergency access provision. Under Section 3(a)(1)(A), the States are assigned the responsibility for disposing of commercially generated .
LLW, and under Section 3(a)(1)(B) they are assigned the responsibility j for disposing of "LLW generated by the Federal government except that l 1
which is owned or generated by DOE, by the Navy as a result' of decommis- j i
sioning of vessels, or as a result of any research, development, testing j
l I
or production of any atomic weapons." Since LLW generated by the j Federal government that does not fall icto the above categories is 1 l eligible for disposal at the State / Compact LLk disposal facilities, ,
1 )
those same Federally generated LLWs are also eligible for emergency access. To clarify the NRC's intent regarding the scope of wastes which will quelify for emergency access, NRC has added Section 62.1 (c) to the i " Purpose and Scope," The new provision states that "The regulations in this part apply only to the LLW's that the States have the responsibility to dispose of pursuant to Section 3(1)(a) of the Act."
For further elaboration on this subject, see the responses to Comments j 2.2, 5.6, and 14.2.
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
i 4
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. Thus, greater-than-Class-C wastes are not considered by NRC to be eligible for emergency access disposal.
To help c1srify this point, NRC has added an explanation of the scope of the LLW eligible for emergency access to Section 62.1 of the rule. (See also discussion in the responses to Comments 2.1 and 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 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). The Act defines
" disposal" as "the permanent isolation of low-level radioactive waste..." Thus, by law, emergency access can only be granted to facilities designated to provide " permanent isolation' of low-level !
l radioactive waste. Facilities developed by Stetes to store LLV would i i
not, by definition, qualify and would' automatically be precluded from consideration by NRC as sites to receive emergency access wastes. For purposes of clarification, NRC has added the Act's definition of j disposal to the Definitions Section in the final rule. (See also the responses to Comments 3.3, 8.5, and 10.6.)
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B.3 Comment Letter #3 -- Shirley & Lloyd Gilbert, Citizens; Fresno, California l
I Comment 3.1 d l
- 1. Since state and compact dumps are being developed for commercial' waste, i this is the only type of waste that should be eligible for Emergency I
Access. The rule should clearly prohibit federal waste, example - waste from the Departments of Energy or Defense.
RESPONSE: See responses to Comments 2.1 and 5.6.
Comment 3.2
- 2. Since state and compact ' low-level
- dumps are not required to accept i i
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' l other restr'ctions such as prohibitions on wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect thoso )
criteria. !
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RESPONSE: See responses to Comments 2.2 and 5~6.
Comment 3.3
- 3. If states choose to store, rather than pretend to ' dispose' of waste, NRC should never force waste to go to those sites.
RESPONSE: (See responses to Comments 2.3, 8.5, and 10.6) 1
6 B. 4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Commission Comment 4.1 Page 47580 of the Federal Register Notice states that the Nuclear Regulatory Commission's (NRC) approach in developing the rule was intended to, "1. Assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation." However,.the proposed rule omits any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. This Section provides that the regional compact or state receiving the emergency access waste is entitled to. reciprocal access at any subsequent' facility that serves the compact region or state in which the emergency l access waste was generated. It further provides that the~ regional compact or l state that receives the emergency access waste shall designate, for reriprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
l 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 compect region or state in which the emergency access waste was generated before any determination for granting emergency access is j made. This acknowledgement thould be t equired as part of the contents of a l request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledge- !
l ment could then be included as part of the Section 62.22 notification '
l provided to the receiving state and, if appropriate, the compact commission. 1 l RESPONSE: NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process. However, NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believe that assuring reciprocal access is beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. Under certain j circumstances, requiring a promise of reciprocal access as a condition
7 for reviewing a request for emergency access,.could interfere with action necessary for NRC to carryout that mandate.
NRC believes that arranging for. reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts ;
J involved and should be agreed to as part of the approval process a l
specified under Sectin 6(g) of the Act. The NRC continues-to believe ,
that an enforcement role regarding reciprocal access is inappropriate for the Agency. (See also comments to 4.2, 4.3, 4.4,-4.5, 5.4, and. ,
17.14) i Comment 4.2 !
Before granting emergency access tiie NRC should determine whether or not there would be any limitations (e.g. , timing, license restrictions, etc. ) on.
the ability of the facility that serves.the compact region or state in which the emergency access waste was generated to accept reciprocal access waste with similar characteristics (i.e., source, physical, and radiological).
This specific determination shculd be added to the Section 62.25 criteria. [
RESPONSE: As stated in the response to Comment 4.1, NRC will not be involved in brokering reciprocal acces's arrangements,.as would be 4 required if NRC were to carry out the determination requested by this i 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. 1 This specific determination should be added to the Section 62.26(c) criteria.
RESPONSE: (See responses to Comments 4.1 and 4.2)
Comment 4.4 Finally, the NRC should be aware of any potential liability obstacles before i making final decisions. It is possible that differing liability requirements
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among compacts or states could affect receipt of emergency access or reciprocal access waste. I I
i RESPONSE: Section 6(h) of the Act places certain limitations on the designation of a facility to receive emergency access waste. In addition, the Commission has specified other designation. criteria in proposed 10 CFR 60.26, including "any other considerations deemed appropriate by the Commission." The Commission believes that these cover the primary considerations of concern, and therefore, has not ;
I specified " potential liability obstacles" in the rule as a factor in making emergency access decisions. However, any potential liability obstacle that might affect the Commission's emergency access decision-making on a particular request could be brought to the Commission's attention through the public comment process on a specific request. (
1 1
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 1
and designating a disposal facility. This is of particular concern because I the receiving compact region or state his virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of Sectica 6, and should be recognized as such in the proposed rule. !
\
RESPONSE: (See responses to Comments 4.1 and 4.2) l 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 criterior, 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."
9 RESPONSE: In the proposed rule, NRC intended that the volume and-characteristics of emergency access waste previously accepted by each disposal facility would be conside-71 in the process of designating a site. This is evidenced by langu'- in the " Designation of Site" discussion in the supplementary information for the proposed. rule 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 l
l 62.26(c)(7) in the final rule.
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I B.5 Comment Letter #5 -- Terry Lash, State of Illinois. j Department of Nuclear Safety.
l Comment 5.1 l
- 1. IDNS agrees with the NRC's determination that establishing criteria and j procedures by rule, in advance, is an appropriate approach. )
Establishing procedures in advance of a request allows the NRC to respond quickly in the event of an imminent threat. Establishing i i criteria in advance allows potential applicants to plan accordingly,.and l
serves notice that the emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act.
RESPONSE: No response is necessary. The comment essentially reiterates the rationale for developing a rule for emergency access presented by NRC in the supplementary information.
Commqt 5.2 iDNS agrees with the sthtement preceding th? proposed rule that NRC should
"... reinforce the idea that problems with LLW disposal ne to be worked out )
to the extent oractical among the states. . ." The proposed rule does not, however, e::pressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arisas. Such ,
i agreements would be consistent with the intent of Congress and should help to avoid 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.
1 RESPONSE: The NRC encourages cooperative agreements between states and I compacts, in part because to the extent that cooperative agreements are reached, 10 CFR Part 62 may not have to be used. However, the Commission does not believe it would be appropriate for NRC to expressly l encourage States and Compacts to enter into cooperative agreements for emergency access in the regulatory text of Part 62. While Congress clearly desires that the States / Compacts should be able to resolve
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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 Compccts any more than the other alternatives 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 energency I access. The Commission believes the proposed rule which includes a discussion in the supplementary information on States responsibility )
under " Legislative History," and provision 62.13(b)(3) " obtaining I access to a disposal facility by voluntary agreement" has addressed this concern appropriately and adequately. As a result, no changes have been I made to the final rule in response to this comment.
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l 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 auess not be viewed by the usited 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 oisposal 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 stat'e to take steps to provide for the disposal of low-levelradioactive waste generated within its borders. It is IDNS's experience that Illinois' citizens want assurances that the Illinois disposal facility will accept only 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: Part 62 contains only the criteria and procedures to be used by the Commission in considering requests for emergency access. The Commission believes that the procedures and criteria in the proposed rule establish sufficiently stringent requirements for granting I
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_ _ _ _ _ _ _ _ _ _ _ _. I
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i 12 l l j emergency access to-clearly convey that emergency access should be viewed by the States solely as a last resort and not as an alternative l to the mandated development-of new LLW disposal capacity. I l i Comment 5J I IONS observes that the proposed rule does not address the provisions of I 1
Section 6(f) of the Amendments Act, which pertain to reciprocal access. IONS ]
recommends that the proposed rule address reciprocal access is providing" l
. .. reciprocal access for an equal volume 'of low-level radioactive waste having similar characteristics to that provided equal access."'
RESPONSE: (See responses to Comments 4.1 and 4.2)
Comment 5.5 The proposed rule does not address the issue of disposal fees for wastes j disposed of under an emergency access determination. The obligation of a-State or Compact to accept wastes grnated emergency access should be con- \
dltioned upon the applicant's payment of disposal fees and surcharges as applicable. J i RE3PONSE: NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as any additional fees or surcharges specifically applicable to emergency access waste under the provisions of the Act. A new Section VIII - I
" Terms and Conditions for Emergency Access Disposal" has been added to the Supplementary Information portion of the final rule that addresses such obligations. (Also see the responses for Comments 1.2., 8.4, and 9.1).
1 Comment 5.6 l
S62.2 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
13 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 of Title 10, Code of Federal Regulations, as .in effect on-January 26, 1983, and B) radioactive waste described in A) that is generated by the federal government, unless such waste is 1) owned or generated by the Department uf 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 Formerly Utilized Sites Remedial Action Program.
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 reguiation, 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 wdste.'" IONS oujects to any attempt, whether deliberate or inadvertent, to place additional burdens on tne states in contravention of express statutory limits. The proposed definition is particularly troubling in light of the Amendments Act's express prohibition on requiring any regional facility to accept waste that is above Class C, or FUSRAP wastes. IDNS also notes that providing disposal capacity for naturally-occurring and accelerator produced materials is not the states' responsibility under the Amendments Act, and that the NRC has no authority under the Atomic Energy Act to include these materials in any definition of low-level radioactive waste.
RESPONSE: The definition that appears in the proposed rule is the same definition for LLW which appears in the Act itself. Although the NRC does not agree that the definition of " low-level waste" appearing in the rule should be changed, NRC does agree that the qualification, on the i
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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 i l
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 j given disposal responsibility. It is important to the States that they-be assured that they have the responsibility for disposir.g 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 i accept wastes for disposal, such as above Class C, and 00D or DOE LLW, j which are not their responsibility pursuant to Section 3 of the Act.
NRC has provided this assurance in the final rule by citing Section 3(a)(1) in Section' "62.1 - Purpose and Scope." (See 'also Comments 2.1, 2.2, and 14.10.) ;
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1 Comment 5.7 I
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 N.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 federEl 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 l 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 that decision and the express language of the Amendments Act in promulgating this rule. >
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RESPONSE: NRC plans to use the criteria in Sections 3(a)(1)(A) and (B) of the Act to cetermine what wastes could be eligible for emergency access disposal. (Also see responses to Comments 2.1, 2.2, 5.6, and 14.2.)
i Comment 5'8 l
S62.2 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 '.he NRC to grant ettergency access to ' alleviate" such a threat. "Alh viate" is not synonymous with ;
" eliminate." Only where the applictnt ccn show, a M the NRC cao find, that the tnreat would be eliminated by emergency access, can the NRC grant emergency access.
RESPONSE: The definition for " temporary emergency access" which is provided by this comment 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 that 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. In addition, NRC has added "and cannot be extended" to the last sentence in the definition to convey that a grant of temporary emergency access can only be issued once per request.
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Comment 5.9 l S62.12 Add a new subsection (c) as follows: l
"(c) That the material for which emergency access is requested is i I
' 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.
RESPONSE: A new subsection (c) has been added to 62.12 which reads
" certification that the radioactive waste for which emergency access is 'l requested is ' low-level radioactive waste' within Section 62.1(c) of this Part. The subsections following the new subsection (c) have been redesignated as appropriate.
Comment 5.10 S62.12(f)(3) should be modified as follows:
"(3) The minimum volor.ie 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," wMch is used in tt;e Act. The recommended change has been made to the final rule. (See also Comment 5.8)
Comment 5.11
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662.12 Add a new S62.12(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 (1) routine LLW disposal has been denied to the generator of an LLW; (2) he ]
is able to demonstrate to NRC that disposal at an LLW disposal site is '
necessary because of a serious and immediate threat to the public health I and safety or the common defense and security; and (3) that the threat
17 cannot be mitigated by any available alternative, then emergency' access is the only option available.
Comment 5.12 S62.12 Amend the proposed $62.12(k) as follows and re-designate as 962.12(1):
"(1) Where the request is made wholly or in part on the basis of a serious and immediate threat to the common defense and security, certification by the Secretary of Energy and the Secretary of Defense that the waste for which emergency access is granted is not owned or generated by the Department of Energy, owned or generated by the United States Navy as a result of any-decommissioning of vessels of the United States Navy, or owned or generated by the federal government as a result of any research, development, testing, or production of any atomic weapon, and that access to disposal is necessary j 1
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 covernment, not the states, to dispose of radioactive' waste generated by certain federal activities safely. IDNS holds that no state can i
he forced to accept responsibility for disposing Lf these wastes under the emergency access provisions of the Amendments Act or throegh any action of a federal regulatory agency. In addition to the generator's certification that' the waste for which emergency access is requested meets the operational ,
definition suggested in Comment #1 above, these additional safeguards are '
necessary to assure protection of states' rights in the event that the request for access is based on a claim of immediate and serious threat to the common defense and security. 1 j
RESPONSE: In Section 62.12(k) of the proposed rule, NRC requires that a l request 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 1 j
security." This comment recommends that DOE and D0D also certify that j 1
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10 the wastes for which emergency access is requested are not LLWs for which the Federal Government has disposal responsibility under Section i 3(a)(1)(A) and (B) of the Act. NRC' has modified "Section 62.1 - Purpose and Scope" of the final rule preamble to clarify that only LLW which is the disposal responsibility.of the States is eligible for emergency
. access consideration. With this 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 l requirements, and the requirements of the Compact Commission and the 1
l- State where access was considered."
It should be made clear from the application for emergency accoss whether danial of acces;- was based on fF .are to comply with applicable standards.
! NRC should not gract emergency access when the emergency was' brought about by j the applicant's own failure to comply with regulatory staLdards. i R_ESPONSE: Through all of its r q ulatory decisions, NRC's principle mandate is to protect the public health and safety. Under the Act, NRC
is to grant emergency access to LLW disposal facilities if a requestor demonstrates that the loss of disposal has created a serious and j immediate threat to the public health and safety or the common defense !
and security, which cannot be mitigated by any available alternative. ]
If NRC concludes that such circumstances indeed exist, the Commission l must first take the actions provided under the Act which are necessary to eliminate the threat - that is - issue a grant of emergency access.
If it turns out that the generator has not complied with appropriate standards, NRC, or the appropriate authority, can issue whatever sanctions are indicated once the threat has been eliminated.
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19 Comment 5.14 Modify S62.13(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 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 wastes " This language is appropriate and should be incorporated into the i rule.
RESPONSE: NRC agrees and has been made the appropriate change in the final rule.
tomment 5.15 562.14 Add a new S62.14(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 l 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 I on circumstances that are too remote and speculative to allow an informed decision. IDNS recommends that "may" be changed to "shall." If the
20 Commission 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 5.17 562.21(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 or generators located in his or her state, the Commission shall make a determination whether--
(1) The request for emergency access to a regional disposal facility or a facility within a state that is not a member of a compact, for specific low-level radioactive waste is based on an immediate and serious threat to:
(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 S62.13, (3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access is requested iF 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 l Amendments Act of 1985. l
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i 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 l 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 j out in the Act.
l (1) Section 62.21(a) of the proposed rule specifies, "the Commission shall make a determination that. . ."
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- The comment recommends ", the Commission shall make a j determination whether..." l
- Neither of these precisely duplicates the language of the directive in Section 6(c)(1) of the Act, so NRC adopted the j i
precise wording in the Act. Section 62.21(a) of the final now j 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 request j
for emergency access to a regional disposal facility or a facility within a State that is not a member of a Compact, for specific 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.
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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.
.j Comment 5.19
$62. 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." f I
O If the request is indeed based on an immediate threat, and the decision is j challenged, then prompt judicial review is necessary to resolve the issue.
1 Clarifying that a grant or refusal ir a final agency action may remove ;
potential obstacles to obtaining prompt judicial review. j RESPONSE: A Commission determination under 10'CFR 62.21 would be a final agency action within the meening of Section 10 of the j Administrative Procedure Act 5 U.S.C. 704, and no special statement to l that effect is necessary.
Comment 5.20 662.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under the circumstances," 'n 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." IONS submits that subjective good faith should not be sufficient. The effort must be objectively reasonable and diligent.
RESPONSE: NRC agrees that the phrase " good faith effort" does not convey the same meaning as " diligent effort". NRC has changed 62.25(e)(1) in the final to rea-d "(1) has identified and evaluated any l
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s alternatives that could mitigate the need.forjemergency access;" .NRC believes this is an improvement over the' original language'and is' consistent with the precise ~languagenin the Act'regarding tha t requestor's responsibilities -towards. identifying alternatives, n-Comment 5.21 A new S62.26(b) should be added as follows:
(b) If the Commission. designates'a regional disposal f'acility to-receive the waste for which emergency access has been granted, the Commission shall request the approval of the. Compact Commission fo~r the designated regional facility. The request for' approval shall include' the entire administrative record of th'e 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 An.endments 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.
RESPONSE: This comment correctly states that NRC did'not reflect the .i Section 6(g) provision in tha proposed rule. Section 6(g) of the Act ~!
does require the NRC to notify the Compact Commission for the region in- 1 I
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which the disposal' facil'ity is located of:any NRC grant-of access "for.
such approval as may-be required under the terms of its compact."
Section 6(g) also-requires.that the Compact Commission."shall-'act to -1 approve. emergency access not later thanifif t.een days after receiving .
notification" from NRC.
Based ~on the legislative history for both Section 6 of the 'Act and the Omnibus Low-level Radioactive Waste Interstate Compact Act which was l
passed with the Act, NRC believes:that' disapproval is not really an. l option for the Regional Compact Commission in which the designated emergency access disposal facility'would be located. It is clear from the legislative history of the Act that Section 6(g)-should not be construed as providing the Compact Commission with'a-veto over the'NRC's grant of 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). This position was explained under the discussion of. Legislative History.in'the
( supplementary information to the proposed rule and is retained in the i
final.
While disapproval may Sot 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 j the Notification procedures under 62.22 of.the proposed rule provided 'l j the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section
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25 62.22 of the proposed rule provides that NRC will notify the Compact Commission of the State in which the designated disposal facility is located that emergency access is required. It further provides that "the notifications must set forth the reasons that emergency access was granted and specifically describe the low-level' radioactive waste as to source,-physical and radiological characteristics, and the minimum-volume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to the public health and safety or the common defense and security."
In response to this comment NRC has made the following change in the final rule: New language has been added to 62.22(b) which states that l the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary" in Section 6(g) of the Act.
Comment 5.22 s62.27 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 faciliij designated by the Commission to provide emergency acces's 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 emergency access if an applicant has made a material false statement in the application for
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emergency'eccess 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. Furthe r-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 thel
. applicant or the wastes did not meet the conditions of disposal set by the' Commission.
1 RESPONSE: The Commission agrees that' terms and conditions should be established. in the final rule for termination of grants of emergency access. NRC has added a new Subpart D " Compliance with Conditions of Emergency Access; Termination of Emergency Access" to the: final, rule which incorporates some of the suggested conditions for termination as recommended in this comment.
Comment 5.23 Miscellaneous Comments and Questions S62.6 Specific Exemptions The provisions of this section would allow the Commission to bypass all of the procedures of the emergency access rule by granting special exemptions.
Why is this section necessary? Under what circumstances would NRC grant special exemptions. What assurances do states and compacts have that this exception will not, in practice, become the rule? This provisions should be deleted.
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. However, in the event that something unanticipated requires action, the Commission 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 1
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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.
Comment 5.24-662.11 Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Commission's Public Document Room and in the " Local Public Document Room of the facility sub-mitting the request." A request for emergency access could be submitted by any Governor or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public document rooms?
RESPONSE: There is no requirement that a given generator or Governor maintain a local public document room for documents relating to emergency access requests. Usually there is a " local public document room," however distant it may be, that is established by the NRC to maintain documents of public interest for every NRC or Agreemert 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, through the NRC's LPDR's as conveniently as possible, to concerned members of the public.
Comment 5.25 S62.23 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 ovisions 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?
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RESPONSE: The exclusion of " regional disposal facilities" was an j oversight on the part of NRC. The final rule has been revised to include regional disposal facilities as recipients of temporary ]
emergency access waste, l
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29 B.6 Comment Letter #6 -- Faith Young, Tennessee Resident Comment 6.1 Only commercial wastes should be eligible for emergency access since the dumps are developed for that purpose. l RESPONSE: See responses to Comments 2.1, 2.2 and 5.6.
Comment'6.2 NRC must respect state or compact dump restrictions (including no. greater-than-class-C waste).
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 6.3 Please register these as firm requests in your comment considerations and inform me of the outcome.
RESPONSE: Noted. No comment necessary.
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'l 30 B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident Comment 7.1 The rule has a basic flaw: The Federal Government and the NRC is regulating l
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 1
Radioactive Waste Policy Act of 1982, it made each state responsible for '
providing its own disposal for low-level radioactive waste (LLW) generated within its borders. State responsibility for LLW disposal was )
i reconfirmed in 1985 when Congress passed the Low-Level Radioactive Waste !
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Act Amendments (The Act). In the Act, Congress also conferred certain regulatory or administrative responsibilities to both the Nuclear 'j Regulatory Commission (NRC) and the Department of Energy (D0E). One of the responsibilities conferred to NRC was to grant requests for )
i emergency access under the provisions of Section 6 of the Act. As
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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 provide emergency
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access 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 the responses to Comments 7.5 and 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 i states with operating LLW disposal facilities and should not create financial problems either.
l RESPONSE: The ~ Act sets upper limits on the number of cu.ft. of LLW that I are to be accepted by each facility through 1992. The amount of LLW granted emergency access is to fall within those limits. In addition, as discussed in more detail in Comment 1.2, waste granted emergency access will have to meet all the requirements and conditions for routine LLW disposal established by the facility designated, including the payment of appropriate fees, taxes, surcharges, etc.
i Comment 7.3 States are also very worried about having to take D00 and DOE wastes.
, RESPONSE: See responses to Comments 2.1 and 5.6.
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Also many compacts are not planning on large amounts of Class C wastes.
RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 7.5 All the above and more make this rule very premature and ill-conceived.
Please retract this rule for good and abundant cause. Let the non-Federal and the Regional authorities regulate their own access. This is an area which the Federal authority and the NRC should not get into.
RESPONSE: NRC did not propose the emergency access rule without due cause. As is explained in the supplementary information for the proposed rule, NRC is required by law (Section 6 of the Act) to make emergency access determinations.
32 i In that same law Congress specified the coaditions that must be met by persons requesting emergency access, the factors NRC is to consider in making its determinations and establish the terms of grants of emergency l access. The proposed 10 CFR Part 62 serves to implement the I requirements in the law and NRC has tried to assure-that the rule assumes no responsibilities for the NRC which wore not mandated. (See also responses to Comments 7.1 and 9.3.)
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33 B.8 Comment Letter #8 -- William Gold, Lorraine Gold (citizens, New Jersey) i 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 j l
siting that this emergency authority be used only as a last resort, when clear danger to the public is evident.
1 RESPONSE: The Commission agrees and so stated in the discussion under a
Legislative History in the supplementary information for the proposed .
rule.
i 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.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
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Comment 8.3 Regulations abuld explicitly prohibit the NRC from mandating greater that Class C wa N to be sent to any state or compact dump.
RESPONSE: See responses to Comments 2.1, 2.2, 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.
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l RESPONSE: Criteria and restrictions at disposal facilities are to be l considered and accommodated in NRC's decision to designate a site and in )
any disposal of emergency access waste. (See response to Comments 1.2, 5.5) l l
Comment 8.5 Some states may choose to store nuclear waste rather than " 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 j those sites.
j RESPONSE: NRC cannot force a state to dispose of emergency access LLW at a facility designed for storage. (See the response to Comments 2.3, 3.3, and 10.6) l l
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B.9 Comment Letter #9 -- Jon R. Montan (St. Lawrence County Environmental ManagementCouncil)
Comment 9.1 l 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 l 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: Several staff at DOE and D0D identified some examples of activities which generate LLW that could be considered necessary for the i protection of the common defense and security. One example is found at the Navy shipyards. There is a small quantity of unclassified LLW generated i during maintenance as a part of the Nuclear Propulsion program, which l 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 j shipyards can only store small quantities so they rely on commerical LLW I disposal facilities. Armed forces medical facilities also produce LLW as test sources and from calibration activities.
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Comment 9.3 The Council members also wanted to express their concern that the states in j which recipient faiclities are located which could ultimately receive i l
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I 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 l
Commission.
i RESPONSE: NRC does have the authority under the Act to provide i emergency access but only when lack of access to disposal has created, -
or will create, a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigated by any available alternatives. As indicated in the discussions in the supplementary information for the proposed rule, Congress expected that responsible action by the generators and the States / Compacts should result in the resolution of most access problems without having to resort to the emergency access process. (See also responses to Comments 7.1 and 7.5) l l
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B.10 Comment Letter #10 -- Anne Rabe, Executive Direct'or 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. -l RESPONSEt SeetheresponsestoComments;7.1'and9.3.'.
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-l mental Conservation disapproved this request and.the subsequent law upheld the state's policy to exempt any federal wastes. Therefore, we totally q
oppose the proposed rule to accept federal wastes.
RESPONSE: None necessary.
Comment 10.3 '
l 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.
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38 I RESPONSE: As indicated in the Supplementary Information for the proposed rule, the Act directs NRC to designate LLW disposal facilities to receive emergency access waste. (See responses to 7.1, 7.5, and 9.3)-
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Comment 10.4
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For states to accept federal wastes will in many cases cause the state's )
1 management of facilities (in terms of storage / disposal capacity, etc.) to be d i
radically changed. How will states / compacts be able to adequately plan and manage their facilities with the threat of NRC emergency. declarations forcing j substantial amounts of waste on them at anytime? i 1
At the very least, the NRC should change the rules to: 1) Require strict adherence to state / compact requirements, including allowing only commercial j 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.
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Comment 10.5 Other state restrictions on 100 year hazardous life, or only Class A, B or C wastes, must be strictly adhered to by NRC.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 10.6 Lastly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes.
I RESPONSE: See responses to Comments 2.3, 3.3, and 8.5.
l 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
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fact that their own inaction to adequately store wastes and stop their, pro-duction has caused the " emergency" in the'first place. States should not
'have to bail out the Federal government.
RESPONSE: NRC does not believe-Congress intended the emergency access provision would serve to require States.to " bail out the Federal l government." As is explained in responses:to Comments 2.1' 5.'6, and
- 14.2, through Section 3(a)(1) of the Act, Congress gave States the j responsibility for disposal of specific classes and. types of LLW. Some I 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 the9 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 availabl~e 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 Act, 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 for federal-wastes is concerned, such programs and related decisions are not among NRC's responsibilities.
40 B.11 Comment Letter #11 -- David Woodbury, President, American College i of Nuclear Physicians Comment 11.1 We are writing on behalf of the American College of Nuclear Physicians and the Society of Nuclear Medicine regarding the NRC's proposed rule to estab-lish procedures and criteria for granting emergency access to non-Federal and regional low-level waste disposal facilities. The Society represents over 11,000 physicians, physicists, radiochemist, radiopharmacists and technol-ogists dedicated to the overall advancement of Nuclear Medicine and has major interests in the scientific, educational and research 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 follcwing the passage of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (LLRWPAA).
1 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 l eccess 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.
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1 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 tF: use of radioactive
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,xif not'more, than disposal capacity for direct generators of medical LLW'(i.e., hospitals,: laboratories). We would ' urge'th'e 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 a'ccounted 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 I
activities present in the waste stored on-site, then obviously there would be j less radioactive materials available for important research or pharmaceutical j 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 p'roposed 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,. including the~ production _'of radiopharmeceuticals, would have to cease as an alternative to granting
. emergency access.
l 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.
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! RESPONSE: Noted.
Comment 11.4 a
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.
1 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
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radiopharmaceutical manufacturers and the necessity of access to disposal _for the provision of vital medical care services in this country. Please feel ]
free to consult with us if you require further information or assistance. l RESPONSE: Noted. l l
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i B.12 Comment Letter #12 -- Kathy Lyons, Concerned Citizen, New Hampshire I
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Comment 12.1 I wish to comment on the Low-level Radioactive Waste Policy Act in which NRC has the right to force unwanted waste on state dumps. I
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1 RESPONSE: None necessary. !
Comment 12.2 l 1
Please, in doing so consider this: Do not give us federal waste (D0D or )
DOE), j l
J RESPONSE See response to Comment 2.1. l I
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 that is incompatible with its license agreement. (See responses to comments 7.1, 7.2, 7.5, 9.3)
45 B.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology Alert Comment 13.1 Although the Low-Level Radioactive Waste Policy Amendments Act of 1985 doesn't require NRC to develop a rule, we agree your doing so is an excellent idea.
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But we feel the proposed rule could stand a bit of tightening. 1 RESPONSE: None needed.
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l 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 I leeway by NRC - and possible abuse.
1 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. l Probably not one in 20,000 members of the general public ever sees the 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 short.
The Act provides NRC only 45 days to review a request and determine if emergency access should be granted. In addition, the Act does not require NRC to provide a comment period on requests for emergency access. Nevertheless, the Commiss'.on believes that the public should be
46 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. The rule also requires that copies of'the request be sent to the Governors of all the affected or potentially affected States, and.
to the affected or potentially affected Compact Commissions. NRC believes that the majority of-interested or concerned parties will be reached through these arrangements.
Comment 13.4 Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be-included in the category of low-level waste?
i RESPONSE: Section 62.12 sets out the information required by NRC 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?
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. !
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RESPONSE: The sequence of events for granting temporary emergency ,
l 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 j l
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could be mitigated by any alternative consistent with.the public health 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 i protect the public health and safety or the common defense-and security,- 4 NRC can. grant a' request for temporary emergency access for no'more than-
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.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 ma'de 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.'
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.Section 62.24(b) - Re: extension of. emergency access, this says the require-ments of Section 62.21(c) and (d) must be followed. There is no Section.
62.21(d).
RESPONSE: The typographical error noted in this comment has been corrected. .
Comment 13.7 Finally, under Specific request for comments, you ask'what should NRC do.if. )
no site is found to be' suitable.for emergency access?
We suggest you then require the. operator to cover the pile of low-level waste with lead shielding, topped with enough soild to stop radiation from escaping.
Response: Noted.
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B.14 Comment Letter #14 -- Diane D'Arrigo, Nuclear Information and Resource-Service Comment 14.1 Although the intent is that NRC:use'its Emergency: Access authority.o'nly 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 l' are not currently responsible) is not eligible for emergency access.
i 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-I 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 l
u- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - _ - - - _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ . _ _ - _ _ _ _ --
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i "any generator or~ generators of low-level radioactive waste located in his or her " State..." Such generators could include generators that are not NRC or NRC Agreement State licensed. .We would like to see provision made to clearly prohibit DOE and D0D and other federal agencies and .
contractors from gaining access to state'and compact dumps via. emergency j access. '
I l
Second, Section 62.13(a)(5) (which appears misprinted as 82.13 in 52. I 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 lto 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 j 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 decom- ]
missioning 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 1
parties or for ineligible wastes as a means of acquiring access to ;
l LLW disposal. In the proposed rule, NRC was silent on this l 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
3 50 I
.. l access will provide a mechanism for undesired and unplanned for j wastes to access their sites.
To address this concern and similar ones, NRC expanded the scope of )
the final rule and also modified the definition of " person". The I scope of the final now includes the following language: "62.1(c). ,
The regulations in this Part apply only to .the LLW's that the. l states have the responsibility to dispose of pursuant to Section )
3(1)(a) of the Act".
l 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 within the scope of Section 62.1(c) of -
this Part; 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 within the scope of Section 62.1(c) of this Part ;
located in his or her " State" or their duly authorized representa- !
i tive, legal successor or agent." (Changes have been underlined to facilitate review.)
Comment 14.3 Arguments against leaving the regulations open to Federal waste: (1) It is l commonly known that many Department of Energy sites are well below the national environmental standards and attempts to remedy those. sites' problems l could result in the generation of large volumes, concentrations, and numbers of curies in radioactive waste. We would encourage remedial action and clean up of many of those sites but can foresee the usual dilemma of where to put the waste that is " cleaned up." Unless non-federal facilities are planning for such responsibilities, they should not be saddled with Federal waste, as l
the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow.
i L__ _ _ _ _ _ . _ _ _
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51:- < j RESPONSE: See responses.to Comments 2.1, 5.6,'and 14.2.
Comment 14.4 (2) Furthermore, 00D, DOE and other Federal waste is not currently'- i
' classified as Class A; E, C o'r 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
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categorizing low-level" waste. Even if DOE'relcassifies~its wastes as A, B,
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L 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.
j 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't 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..
i RESPONSE: Noted. No comment necessary. '
Comment 14.6 Although there arc 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.
t l-RESPONSE: None necessary.
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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 th'e-impacts on the " common defense and security" L of (a)' accepting .the waste' for
)
emergency access, and,(b) allowing the continued generation of the waste requiring emergency access.
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RESPONSE: The supplementary information indicates.that-while NRC will. :l 9
require such certification from 00E or D00.in order to even consider a- 1 I
generator's requestL 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- l fications they are designed and licensed to accept-should be strengthened.
RESPONSE: NRC is not in a position to strengthen the rights of States
! and compacts to refuse emergency access waste.that doesn't meet the l specific >.tions of their sites. Both NRC and the States must work within the bounds established in the Act. However, as discussed previously in responses to Comments 7.5, 9.3, and 10.1, NRC believes the mandate from Congress in this area was quite clear. NRC does not believe Congress intended NRC to' grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to receive them. So States should not have to be too concerned about the ,
right to refuse wastes granted emergency access by the NRC pursuant to 10 CFR Part 62. !
Comment 14.9
-53 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 ~ j 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 1 if state or compact dumps have other restrictions such as prohibitions on wastes that are hazardous longer th'an 100 years or on Class B and'C waste, ]
NRC will respect those er'teria 'and not grant access to. waste that does not
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meet those criteria.
1 i
' RESPONSE: 'According'to the! Limitations set out in Section 6(h)'of the: .)
Act, regulatory restrictions on disposal at a site must be' considered by NRC in making its site. designation and as NRC has indicated in responses '
to Comments'2.1, 2.2, 5.6 and.14.1, NRC is committed to observing those limitations.
i Comment 14.10 j
- 2. A. Since state and compact " low-level" dumps are not required to accept I 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 Radio ctive Waste" in Section 62.2 should be I changed to exclude the waste (C+ and its equivalent) which is excluded from state responsibility in the 1985 Low-Level Radioactive Waste" definition is left as is for the sake of consistency with the other NRC regulatiers,'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 i 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 2.1, 2.2, 5.6, and 14.2.
l i Comment 14.11 i
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- 3. Incineration should not be required as a part of maximum. volume reduction ~ f 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 incineration.
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l _ RESPONSE: The proposed rule does not require that LLW be incinerated '
prior to NRC granting his waste emergency access. Provision (i) of the Emergency Access Section of the Act, " Volume Reduction and Surcharges" - i requires that "any low-level radioactive waste' delivered for disposal under this Section (emergency accessi shall be reduced in volume to the l maximum extent practicable." For the proposed rule, the Commission decided it would be worthwhile for NRC,to evaluate the extent to'which: i 1
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-l that NRC believes the optional level of volume reduction will likely vary with the waste, tho 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 i
particular approach will be maximally effective in all cases, so the rule does not prescribe any particular method as a must to achieve i
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 generator as an alternative but may pose serious difficulties for
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55 another. Whatever the decision,. incineration should be addressed and the rationale for the decision should be explained in the analysis of j alternatives that .is to be part of a request for emergency access.
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Comment 14.12
- 4. States and Compacts that are required to accept emergency access waste I should be permitted to'c,'arge fees and surcharges on emergency access waste and to enforce regulations and criteria thet 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 RESPONSE: See the responses to Comments 14.7, 5.6, 8.4, and 9.1.
Comment 14.13
- 5. We encourage NRC not to weaken any of the requirements for Emergency Acpess apglicants.
RESPONSE: Noted.
1 56 l l
B.15 Comment Letter #15 -- Hannah Katz, Concerned Citizen, N.Y.
1 Comment 15.1 l 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 l doubts that such emergencies will happen frequently as long as you produce weapon grade plutonium.
1 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 q low-level radioactive waste and would not qualify for emergency access to LLW dispusal facilities under the Act. Also, under Sec. 3(a)(B)(iii) l LLW owned or generated as a result of any research development, testing i
or production of any atomic weapon is deemed not to be eligible for '
disposal at State LLW disposal facilities.
Comment 15.2 I urge you to reconsider such interference in the rights of states and of citizenry.
1 RESPONSE: The NRC is not trying to interfere with the rights of states by proposing this rule. The NRC was mandated by Congress to make determinations on requests for emergency access to LLW disposal facilities in order to protect the public health and safety. The NRC's emergency access rule will only be implemented when a generator or a State requests LLW emergency access disposal assistance from the NRC.
Comment 15.3 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. Yaur 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 ce 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.
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58 B.17 Comment Letter #17 -- William Dornsife, Bureau of Radiation Protection, Pennsylvania
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Comment 17.1 This proposed rulemaking has several-major flaws that if not corrected could potentially act.to undermine the substantial progress that has been made to date on implementing.the Low-Level Waste Policy Amendments Act of 1988.
RESPONSE: None Necessary.
Com 17.2 First an oremost, this proposed rule appears to violate the entire premise l
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 lecated 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. ,
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1 RESPONSE: The Commission drafted the proposed rule fully intending that i l
the States and Compacts whose generators have been denied access to LLW l disposal would share in the responsibility for identifying or providing alternatives to emergency access. As indicated in 62.13(a) of the proposed rule, a request for emergency access is to include a discussion of the consideration given to any alternatives available to the l
requestor. To NRC, this includes State / Compact options as well as those available to the individual generator. In fact, the NRC believed 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 options that et least required State or Compact involvement or even initiation. In reviewing the comments on the proposed rule, it has become evident that the NRC's expectations for the e____________._-__________ ._ _-
59 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 added clarifying language to 62.13(b). It i
now reads "The request must identify all of the alternatives to emergency access considered, including any that would require State and Compact action, or any others that are not specified in 62.13(a)." In addition, a discussion of the States'/ Compacts' responsibility in this area has been added to the supplementary information.
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!i Comment 17.3
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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.
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RESPONSE: The discrete State and Federal responsibilities for LLW
)
disposal have been addressed in the final rule. See responses to l Comments 2.1, 2.2, 5.6, and 14.2.
l Comment 17.4 The most likely scenario that may require emergency access appears to be that of a bankrupt generator where the State or Compact cannot or will not provide for disposal. Under these circumstances, it is not clear who would have the responsibility for the application, liability, volume reduction, and cost requi rements.
RESPONSE: In the case where emergency access is needed for a bankrupt generator, the Governor of the State where the generator is located or the trustee in bankruptcy, would have the legal authority to pursue an emergency access request.
- 60 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 used as a last resort and the language should be such that this intent is clear.
RESPONSE: It is NRC's intent that emergency access be granted only as a !
last resort, 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. NRC intends to consider the laws and requirements of the Compacts or host states in making its site designation decisions. However, I Congress intended for NRC's mandate to grant emergency access to !
supersede the States' or Compacts' right to exclude waste, according to the legislative history of the Act so those implementing laws and requirements cannot dictate when, and under what circumstances emergency access should occur. See the response to Comment 5.21.
1 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? I As written, the rule could require acceptance fcr disposal of federal waste under " temporary emergency access" provisions. ,
If a State or Compact disposal facility were unexpectedly closed and no reciprocal acreements had been made prior to the closing.
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~ A generator is denied access to a State or Compactfdisposal facility for whatever reason.
' An unusual occurrence-such as' bankruptcy of. a: generator.causes
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abandonment of extremely large' volumes of waste which exceed State orL q Compact capacity for safe' disposal. ]
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. RESPONSE: The ~ scenarios described in this ' comment: have' been considered and do not necessitate any changes- to the final . 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?
The difference between~" emergency access" and " temporary emergency.
access" provisions for this determination are not consistent with-Section.6(d) of the Act. . The Act clearly ~ states.that an emergency access determination must be made before temporary emergency accessican 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.
1 1
See the response to Comment 13.5 for clarification on the RESP 0NSE:
distinction made in the proposed rule between temporary emergency access and emergency access.
Comment 17.8
- 3) What are the potential problems with the determination of serious and immediate threat to the common defense and security?
In making this determination, can all or part of the information provided by the generator be kept confidential, or not be released to the receiving facility, under the claim of national security?-
, 62 RESPONSE: None of the sites that could be' designated for the' receipt of emergency access waste under the Act have a security clearance to receive wastes that would involve national security information.
Therefore,'this type of waste would. need to go to.a DOE site, and would be outside the emergency access program.
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. 3 i
. RESPONSE: See the response to Comment 17.2..
)
Comment 17.10 The ' issue of economic feasibility and a person's financial-capability should q not be a consideration in dealing with emergency access. I I
RESPONSE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency J
access decisions.
Comment 17.11 If a legitimate emergency access condition is determined, and the Host State j 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 thet option. '.Section 6(a) ,
states that NRC."may grant emergency access to any regional disposal l facility or non-Federal disposal facility --- if necessary to eliminate an immediate and serious threat to the public health and safety or the i common defense and security." While the proposed rule does require that
3 i f
63 ,
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any Federal or defense related . generators attempt- to; arrange -for.-
disposal at.a Federal LLW disposal facility prior to requesting .i 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 Stater responsibility and to encourage States to. work out disposal problems j amongst themselves. Congress believes-that.if Federal LLW disposal facilities would provide backup disposal in. the. event that the States' do I not provide needed capacity, this would serve as a disincentive to the j States. ]
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Comment 17.12 -)
There are no provisions for equitable' distribution of the. waste if-non-Federal facilities are needed for disposal' .
RESPONSE: Under VII(c) of the supplementary information to the proposed rule, NRC explained that in' order to distribute the waste as equitably as possible the designation of a receiving site will be rotated and, for the three currently operating facilities, al~ locations will be made in proportion to the volume limitations established ~by the Act, to the l extent that these are practical.
l Comment 17.13 As written, the 20% volume criteria could eliminate the smaller non-Federal f acilities from consideration almost immediately. Provisions'can be added i 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.
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65 B.18 Comment Letter #18 -- Clark Bullard, Chairman,LCentral Midwest Compact Commission j l
l Comment 18.1 The Central Midwest Compact Conmission fully endorses the comments submitted-by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988. j RESPONSE: Noted, i l
l Comment 18.2 The IDNS connents 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 I to respecting the statutory exclusion of greater-than-Class-C waste. l 1
i RESPONSE: See the respcnse to Comment 2.2. i t
Comment 18.3 l We urge you to adopt the IDNS comments intact so our ability to meet the remaining milestones is not impaired.
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l RESPONSE: Noted.
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. 66 i B.19 Comment Letter #19 -- John S. Kemper, Philadelphia Electric Company !
l 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, q Philadelphia Electric Company believes that the proposed criteria for 1 1987.
allowing emergency access to disposal sites are well developed and will be effective in maintaining control of the amount of radioactive waste sent to such sites.
RESPONSE: Noted.
I i
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 ei..ergency, delaying the disposal of waste may !
result in an increased hazard to public health and safety. Additionally, the current climate of public awareness and tendency towards legal intervention could combine in action aimed at the cessation of the generation of waste (i.e. , the shutdown of the generator). Another method to keep the public informed should be developed: perhaps a periodic publication of all petitions for emergency access, and the results of each. l RESPONSE: The 10-day public comment period provided in the rule should 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.
(See response to Comment 13.3 for elaboration.)
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, 67
- 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.
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RESPONSE: None necessary. J l
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i B.20 Comment Letter #20 -- Jessie DeerInWater, Chairperson, Native Americans q
\
for a Clean Environment Comment 20.1 NACE joins with Mr. Marvin Lewis of Philadelphia, PA in his opposition to ]
Proposed Rule: Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Rad Waste Sites. ,
i RESPONSE: Noted. l Comment 20.2 The rule would allow the Federal Government and the NRC to regulate a State i function...or at least a Compact function. This is an infringement of State's rights which has both financial and health impacts.
l l RESPONSE: See the responses to Comments 7.1, 7.5, 9.3, and 10.1.
l Comment 20.3 -
Since State and Compact dumps are being developed for commercial waste, this
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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 D00. It is our belief that federal waste is often greater-than-Class-C waste.
RESPONSE: See responses to Comments 2.1, 2.2, 5.6 and 14.2.
Comment 20.4 I
We must all act now to protect future generations.
I RESPONSE: None needed.
i
. 70-I 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.
1 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 l
requires a description of "the circumstances which led to .the denial of .
access" and 62.12(1) requires the requestor provide NRClwith.
" documentation certifying that access has been denied."
Comment 21.4
- 1. What scenarios are envisioned where emergency access would be _ required?
Response: The regional or.non-federal facility utilized by generators is. closed by regulating authorities, the facility operator 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 er non-federal facility.
- 2. What cre the potential problems with NPS's approach to determining an I immediate and serious threat to the public health and safety?
l Response: .No comments at this time. l
- 3. Wiat are the potential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense and security?
Response: No comments at this time.
'- 71
- 4. What are the potential difficulties with the proposed apv: cach for designating the receiving site?
Response: No comment at this time.
- 5. . What should NRC do if no site is found to be suitable for waste requiring emergency access?
Response: - Consider disposal at a federally-operated facility. l
- Allow indefinite "in situ" or " intermediate location" storage.
. RESPONSE: All have been noted.
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John R. McKeman, Jr. #ES A p4 n Ives covemor usioner STATE OF MAINE -
l DEPARTMENT OF HUMAN SERVICES ' QFFtd e r d Jnr 'M f AUGUSTA MAINE o4333 U0CKEighgA{lMI
' February 1, 1988-l Secretary of the Commission.
U.S. Nuclear Regulatory Commission ATTN: Docketing and Service'8 ranch Washington, DC'.20555
Subject:
Comments to 10 CFR Part. 62 l
Dear Sir / Madam:
I have reviewed the proposed rule regarding emergency access to non-federal low-level waste disposal facilities, and .wish to submit the 'l following comments:
- 1. The premise for granting emergency access is sound and takes into account a variety of factors to include some critical oversight actions. We are not in opposition to the proposal.
- 2. The proposed rules (e.g. 562.26) should include a small sub-section stating ". . the designation of a disposal facility pursuant to 362.21 shall not preclude the implementation. of any; specific corditions, regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Commission's determination to grant emergency access..."
I can be reached at (207)-289-5676, should there be any questions.
Very truly yours, W. Clough Top a , P. E.
Manager Radiation Control Program
- Division of Health Engineering WCT/mc cc: State of Maine, Low-Level Radioactive Waste Authority O'
_vuv Tr C M ,S .I 4. -r A ,l l W [ p . , {
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(S&
Box 305 kh~Y[ ~
00LKE n R.D.# 1 ,
l Corry, Pa. 16407 llB FEB -8 P4 :08 February:4 1988 i
ffFtch OcMDgcw :i. rEm.r e tar 1.
Secretary of the Commission .j US NRC Washington, D.C. 20555 To the Secretary:
Concerning Section 6- (Emergency Access) of the LLRW Policy Amendments '
Act of 1985, we respectfully expect the adherence to -State and Compact LLR'# requirements in the following areas: -
- 1. Commercial waste only shall be eligible for State and Compact LLRW dumps. Federal waste (DOE) shall be prohibited.
- 2. No greater-than-Class-C waste shall be forced upon these commercial dumps since this is not part of their design criteria.
3., If States choose to " store" rather than to affect to
" dispose" o f waste, the NRC shall not force waste - to go to those sites.
t Sincerely, 5 .. W "
Sally icmas l Concerned About Radiation j In the Environment l
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15 FB -9 P1 :42 February 1,1988 0FF1CE Di 5tiit 1Ar Y l i
DOCKEllNG & SERVICL
' Secretary of the Commission BRANCH-US N.R.C.
Washington, D.C. 20555 i l
Dear Sir:
J Comments on proposed rules: 1. Since state and compact dumps are being developed for commercial vaste, this is the only type of vaste that should be eligible for Emergency Access. The rule should clearly prohibit federal vaste, example- vaste from the p Departments of Energy or Defense.
1 1
l 2. Since state and compact ' low-level' dumps are not required to accept Greater-than- j
. Class-C waste, the regulations should explicity prohibit N.R.C. from forcing Greater-than-l Class-C waste on any state or compact dump. The rule should make c lear that if state or j l compact dumps have other restrictions such as prohibitions on vastes that are hazardous j longer than 100 years or on Class B and C waste N.R.C. vill respect those criteria. 1 1
- 3. If states choose to store, rather than pretend to ' dispose' of vaste, NRC should never force vaste to go to those sites.
. Yours sincerely, g k f !
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Midwost intarstato Low Laval Radioactive Wasto Commission Room 588
- 350 N. Robert Street
- St. Paul, MN 55101 $lj(f2) 293 0126 l J
E O 1 1 P 7 :4 4 February 9, 1988 h($$h.
BR "N Mr. Samuel Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch
Dear Mr. Chilk:
The following comments are offered in response to the proposed rule 10 CFR Part 62, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities." The proposed rule was published in the Federal Register on December 15, 1987, with a comment deadline of February 12, 1988.
Comment:
1 Page 47580 of the Federal Register notice states that the Nuclear Regulatory Commission's (NRC) approach in developing the rule was intended to, "1. Assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation." However, the proposed rule omits any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. This Section provides that the regional compact or state receiving the I emergency access waste is entitled to reciprocal access at any subsequent facility that serves the compact region or state in l which the emergency access waste was generated. It further provides that the regional compact or state that rece1ves the' emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
While the NRC may not wish to be involved in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extracted from the compact region or state in which the emergency access waste was generated before any determination for granting emergency access is made. This acknowledgement should be required as part of the contents of a 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 notification provided to the receiving' state and, if appropriate, the compact commission.
Indiana towa Michigan Minnesota Missouri Ohio Wisconsin
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Secretary .f ."
February 9, ,
8 j Page Two - ( f /,' j Defore granting emergency access, the NRC should determine l whether or not there would be any limitations (e.g., timing, j license restrictions, etc.) on the ability of the facility that- {
serves the compact-region or. state in which the emergency access waste was generated to accept reciprocal access waste with similar characteristics (i.e., source, physical, and' radiological). This specific determination should be added to 1 the Section 62.25 criteria.
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.
Finally, the NRC should be aware of any potential liability
- l obstacles before making final decisions. It is possible that l differing liability requirements among compacts or states could l affect receipt of emergency access or reciprocal access waste. I We believe that the reciprocal access provision of the Act is a l-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 l
region or state has virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of l
i Section 6, and should be recognized as such in the proposed rule.
Comment:
Because the NRC has already indicated, on p. 47583, that it will attempt to distribute emergency access waste as equitably as possible, a criterion related to past acceptance of such waste ;
should be included in Section 62.26(c). The criterion would require the Commission to consider, "The volume and characteristics of emergency access waste previously accepted."
l If you have any question regarding these comments, please do not hesiypte to co ct us.
/
ncerely, Greg Larson i Executive Director cc: Commissioners LLW Forum Compacts and States l
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1035 OUTER PARK DRIVE UD}. '
SPRINGFIELD 62704 (217) 785-9900 TERRY R. LASH U" " February 11, 1988 The Secretary of the Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Attn: Docketing and Service Branch j Re: Proposed Rule, " Criteria and' Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities;" 10 CFR Part 62 52 Federal Register 47578-47589 (December 15,1987)
The Illinois Department of Nuclear Safety ("IDNS") hereby submits its .
I comments on the above-identified proposed rule concerning emergency access to non-federal low-level radioactive waste ("LLW") disposal facilities. IDNS is the radiation control agency of the State of Illinois, and is responsible for j establishing and regulating a low-level radioactive waste disposal facility in Illinois to serve the Central Midwest Interstate Low-Level Radioactive Waste Compact.
The State of Illinois and the Commonwealth of Kentucky created the Central l Midwest Interstate Low-Level Radioactive Waste Compact (" CMC"), which was approved by Congress in.the Low-level Radioactive Waste Policy Amendments Act of 1985 (" Amendments Act"). The CMC Commission has designated Illinois as the host state for a regional LLW disposal facility. IDNS is presently engaged in the process of selecting a site for the facility under the Illinois Low-Level Radioactive Waste Management Act. IDNS and CMC are making every effort to comply with the milestones under the Amendments Act.
General Comments 11 IDNS agrees with the NRC's determination that establishing criteria and procedures by rule, in advance, is an appropriate approach. Establishing procedures in advance of a request allows the NRC to respond quickly in the event of an imminent threat. Establishing criteria in advance allows potential applicants to plan accordingly, and serves notice that the '
emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act.
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- 2) IONS 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 i not, however, expressly encourage states and compacts to enter into 1 cooperative agreements for emergency access before the need for such . ;
access arises. Such agreement's would be consistent with the' intent of '
Congress and should help to avoid 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.
- 3) IONS 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 1 task. The task is even more difficult when citizens in states such as 'l '
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-level radioactive waste generated within its I borders. It is IONS's experience that Illinois' citizens want assurances l that the Illinois disposal facility will accept only low-level radioactive .)
waste generated in the CMC region. It is imperative that emergency access l not be perceived by the states as an alternative to making a diligent l effort to fulfill their responsibilities.
- 4) IDNS observes that the proposed rule does not address the provisions of Section 6(f) of the Amendments Act,'which pertain to reciprocal access. !
IDNS recommends that the proposed rule address reciprocal access and !
recognize that a condition to obtaining emergency access is providing )
... reciprocal access for an equal volume of low-level radioactive waste !
having similar characteristics to that provided equal access."
- 5) The proposed rule does not address the issue of disposal fees for wastes j disposed of under an emergency access determination. The obligation of a state or compact to accept wastes granted emergency access should be conditioned upon the applicant's paynent of disposal fees and surcharges '
as applicable.
Specific Comments and Recommendations
- 1) s62.2 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 sub-class 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 t'he 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 l
J i ..
3 in effect'on January 26, 1983, and B) radioactive waste described in
.A)thatis.generatedbythefederalgovernment,'unlesssuchwasteis 1 1) owned or generated by the Department of Energy, 2) owned.or j generated by the United States-Navy as a result of decommissioning of I vessels of the United States Navy, 3) owned or generated as a result-of any research, development, testing, or production of any atomic weapon,'or 4)' identified'under the Formerly Utilized Sites Remedial )
Action Program. ,1 i Under the' Amendments Act.. disposal of waste that is above class C, as i defined in.10 CFR 61.55 on' January 26,1986.. is not the responsibility of. !
i the states. The Nuclear Regulatory Commission may not, through.
l regulation, alter this statutory. limit, yet the proposed definition of low-level radioactive waste would include " radioactive material that the NRC, consistent with existing law, classifies as low-level radioactive waste." IDNS objects to any. attempt, whether deliberate or inadvertent, to place additional burdens on the states in contravention of express statutory limits. The proposed definition is particularly troubling .in )
light of the Amendments Act's express prohibition on requiring any. j regional facility to accept waste that is above class C, or FUSRAP .l 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 Llj of low-level radioactive waste. ,
i Section 3(b)(1) of the Amendments Act provides that the federal government is responsible for the disposal of.certain types of radioactive waste j (i.e., above class C) and radioactive waste generated'by certain l activities of the federal government (e.g., DOE waste, defense waste). j Although the three commercial disposal facilities will continue to 1 operate, and states and compacts are required to establish new disposal I capacity, there is no provision in the Amendments Act for establishing new disposal facilities for waste that is a federal responsibility. IDNS suggests that one possible scenario under which emergency access might be a requested is closure of existing federal disposal facilities. In IDNS's '
opinion, the proposed rule is substantially deficient in its failure to follow the express mandate of Congress that no non-federal facility ever I be required to accept waste that has been made 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 M. R_eg. 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 Co unittee 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 000 was expressly considered and rejected by Congress. The NRC should abide by that decision and the express language of the Amendments Act in promulgating this rule.
- 2) 62.2 The definition of " Temporary Emergency Access" should be changed as L_--________ . _ - _ _ - -
1 1
4 follows: 1
"' Temporary Emergency Access'c means access that_is granted at.NRC's discretion upon determining that access is necessary to eliminate an l
immediate and serious threat to the public health and safety, or the common defense and security. Such access expires 45 days after 'l 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- j Amendments Act does not, as the proposed rule suggests, allow the NRC to 1
. 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 i the NRC grant emergency access.
- 3) 562.12 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 re-designate the proposed subsection (c), and following subsections, 'l as appropriate. This will help assure that no state will be asked to J dispose of waste that is not a state responsibility under the Amendments- 1 Act.
- 4) {62.12(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."
]
- 5) s62.12 Add a new s62.12(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."
]
- 6) 662.12 Amend the proposed Q62.12(k) as follows and re-designate as Q62.12(1):
"(1) Where the request is made wholly or in part on the basis of a serious and immediate threat to the common defense and security, certification by the Secretary of Energy and the Secretary of Defense that the waste for which emergency access is granted is not owned or generated by the Department of Energy, owned or generated by the United States Navy as a result-of any decommissioning of vessels of the United States Navy, or owned or generated by the federal government as a result of any research, development, testing, or production of any atomic weapon, and ,
that access to disposal is necessary to eliminate the threat to the common defense and security."
4 9
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 federal regulatory agency. In addition to the generator's certification that the waste for which emergency access is requested meets the operational' definition suggested in comment #1 above these additional safeguards are necessary to assure protection of states' rights in the event that the request for access is based on a. claim of immediate and serious threat to the common defense and security.
- 7) Modify s62.13(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 the applicant's own failure to comply with regulatory standards.
- 8) Modify s62.13(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 alternatives considered must be included in a request for emergency access,.
but it does not include the provision in the statement preceding the rule that, "[ajpplicants for emergency access will have to provide clear and convincing evidence that they have exhausted all'other options for managing their wastes." This language is appropriate and should be incorporated into the rule. -
- 9) s62.14 Add a new s62.14(c) as follows:
"(c) A description of how granting emergency access as requested I
would eliminate an immediate and serious threat to the public health and safety or the common defense and security."
l 10) s62.18 Replace "may" with "shall" in this section.
1 This section provides that the Commission may deny a request if it is l 1
1
]
i based on circumstances that are too remote and speculative to allow an ;
informed decision. IDNS recommends that "may" be changed to "shall." If the i Commiision cannot make an informed decision on a request, it should not grant- l the request.- j 1
l
- 11) 62.21(a) should be modified as.follows:
l
"(a) Not later than forty-five (45) days after the receipt of.a )
request for a Commission determination under this Part from any 1 generator.of low-level radioactive waste, or any Governor on behalf of any generator or generators located in his or her state, the !
Commission shall make a determination whether-- ?
(1) The result for emergency access to a regional disposal facility or a facility within a state that is not a member of a
. compact, for specific low-level radioactive waste is based on an immediate and serious threat to:
(1) the public health and safety, or (ii) the common defense and security; (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.
- 12) s62.21(c) Replace " alleviate" with " eliminate" in this subsection.
- 13) s62.22 Add a new 62.22(d) as follows: j
(
"(d) Any grant, denial, or refusal to consider a request for j emergency acce'ss or temporary emergency access under this Part is a final agency action."
4 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. Clarifying that a grant or refusal is a final agency' action may )
remove potential obstacles to obtaining prompt judicial review. q
- 14) Q62.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under the circumstances," in this subsection.
Subsection (e)(1) provices that the Commission, in making an emergency access determination, will consider whether the applicant "[h}as demonstrated l
_ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - _ _ _ _ _ _ _ _ - - _ - - _ - - - _ _ 3
I f
that a good faith effort was made to identify andIDNS evaluate. alternatives submits that that subjective would mitigate the need for emergency access." The effort must be objectively good faith should not be sufficient.
reasonable and diligent. '
f
- 15) A new s62.26(b) should be added as follows:
j (b) If the Connission 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 j 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:
"(a)ny 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 t.he 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 f acilities, and that the Amendments Act makes no similar provision for non-federal, non-regional facilities.
- 16) {62.27 Add a new 62.27, as follows:
"s62.27 Compliance with conditions of emergency access; termination of emergency access.
(a) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set-by the Commission pursuant to this Part.
(D) 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
- acclicant has made a material false statement.in the application for !
emergency access or if the applicant ha3 failed to comply with this part '
or conditions set by the Commission pursuant to this Part."
i #
Tne procoseo rule does not ridrass terminat on C emercency access.
% rthermore, m e tne ru M as rt:ssec *: is not c'e d that a state or
- l i
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8 1
. 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. ,
,J Miscellaneous Comments and Questions ..
- 1) ft62.6 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 .]
t I special exemptions? What assurances do states and compacts have that.this '
exception will not.-in practice, become the rule? This provision should be deleted. '
'j
- 2) {62.11' Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency' 1 access will be made available for inspection in the Commission's.Public Document Room and in the " Local Public Document Room of the facility submitting the request." A request for emergency access could be submitted by any. Governor or any generator of low-level radioactive waste. What-is the. l source of the requirement that all such persons maintain' local public document. '
rooms?
62.23 Determination of Granting Temporary Emeroency Access l 3)
This section provides for the granting of temporary' emergency access to l
"...an appropriate non-federal disposal facility or facilities...." The 1 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?
Thank you for the opportunity to comment on the proposed rule concerning ;
emergency access. Do not hesitate to contact me if you have any questions i about these comments or if you would like additional.information.
Sincerely yogs !
/
/
5erry m,". La h ,
Director TRL:sp I
1 l
. - - - ~_ ______y. _
L 3 Whitm:n priva e Denvills, NJ 07834 * (718) .783-2146 / (201) 625-3111e
- 433 Orlando Avenue' l ,
Sta't'e College. Pa. 16803 February 8 1988' ME. Janet' Lambert RE: 52 FR'47578. Decembe'r 15. 1987 Emergency Access to. Low-Level Low-Level' Radioactive Waste Division UiS. Nuclehr Regulatory Commission .
Radioactive Waste Disposal Sites-
,#ashington} D.'C. 20555 NL'-007 -
Dea r' ~Ms. Lambert'r .
This letter'is a request on behalf of Food and' Water. Inc.. and the Environmental : Coalition on Nuclear' Power (ECNP) for an eFlension of~ time for the filing of comments on the NRC's, proposed rule on ecer gency' access 1to. low-
' level. radioactive waste. disposal; sites beyond'the Februarv 12 1988. deadline ~
announced in the Federal Register Notice at 52 FR.47578. We would appreciate -
the Commission's extending the date'for an additional 60 days. It'is my l understanding that the Nuclear Information and' Resource. Service is filing a
' request for extension in the name of. . inter alla. ECNP, with which-1 am associated as well as with Food and Water. Inc. .. a non pr ofit educational organi:ation. headquartered in New York and New Jersey.
Food and Water. Inc., having only recently determined its interest in commenting on this proposed regulation, wishes to examine the possible impact of the NRC's. draft rule on the management of low-level wastes associated with the possible commercial expansion of'foed-irradiation and related industrial irradiation enterprises new in operation.
In the Commonwealth of Pennsylvania, the Legislature.has just this past week approved its Low-Level Radioactive Waste Disposal Act, which will implement the citing design, and regulatory processes required by our Host State obligations under the Appalachian States Compact. An' extension of comment period would assure that we are able to consider the relationship of our implementation legislation and NRC's proposed emergency access provisions.
As a member of Pennsylvania Department of Environmental Resources (DER)
Public Advisory Committee on radioactive waste. I still am awaiting the arrival of the final version of the implementing legislation which was adopted while I was out of state this past week. I do not speal. for the Committee.in making this request. The Committee has been informed. hewever, that we will receive i the latest draft of DER's proposed riting and design criteria and licensing l requirements on or alect February 1Sth. Final Ccmmittee reccamendations-are l expected early in March. ! would want to be able to comment en NRC's emergency i' access draft with those documents -- the legislation and nearly-finali:ed l siting and design criteria -- in hand, i
Thank you in advance for giving consideration to this request for a 60-day extension for filing comments on 52 FR 47578.
Sincerel .
,, g i <. .. e- , . , .o ~
Judith H. Johnsrud. Ph.D.
Receitch Directer I
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rne rule t,as e tusic flaws lho Federal Govcenmcar a n-! the rMC is requieting a St a.to f unct ion or t. t least s Coepact forction, This is an esbvious t ilf r i ngenen t of Strtc's riohts and an )
i nf r i no t w,e nt t,h J c t i Ims both financlaj God heajth inpacts lhc Compac t s a e s t a t e oitet: neered soccemenrn The LL radweste dump is a State or tcmnici adr. A ni s tered faci]2ty. ihe Federal gover n. ment i and the f!RC r,ss Jess than al. A c h t. to reculate when a site vill i te opencd up to .ott 'o f compact wastes.
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f i nmc i o i eod oj coma n ; picture for the narticular concact. States I are ri 7(. t r. i . 4 i:d 7 b o'..it r. .: s i c.g tb t 4 !:;- DOD and DCE m,ites .
Ajio n.E n ,' c w o se t t ei e not p'annin? o. J.<mw 3.Tounts of Class C I wastee.
All the abo /e eisI nore mate this r u l e.e .ery pr c rna t ur e and all conc ei vr d. Picate retract thi s rul e f cir ocod and abur. dant c asis c .
Let the tJon Fedecol a r.d trw Realonel aitthor i ties regule t e their Dun ma.nss. 7h15 Js an area uhath the Fedr..a) authcrats ai d tre l NRC shcold not cet it to Retpec t rtill y s> tbm1 ted . . ,
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. ATTORNEY AT LAW g - l 21 HARDWICK ROAD BLAIR3 TOWN. NEW JERREY 07225 TELEPHONE 4 362 9321 %
February 9, 1988 U U :iCm .,. ,
hKl?iNG r SERVIcq- .
. BR'hCM Secretary of the Commission '
US NRC Washington, DC *20555' I
Re: Emergency Access to " Low-Level" Nuclear Waste Dumps (10CFR62, 52FR 240:47578, Tues. 12/15/87) l
Dear Commission Members:
It has come to our attention that the the NRC is authorized i l
by. the NRC to supersede 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 evfdent.
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 i.'ly.
Rcg. '.ations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or compact dump, and all criteria and restrictions on types of nuclear waste acceptable at that state or compact's dump should supersede any NRC order. l l
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 l NRC cannot force out-of-region waste to go to those sites. I
, We respectfully request that you incorporate these concerns in your emergency access planning.
Very trulygours, o j William J. Gold, Esq.
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Lorraine G Id cc Sen. Bradley Sen. Lautenberg Nuclear Information and Resodrce Service
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Secretary of the Commission US Nuclear Regulatory Commission ;
Washington, D.C. 20555 Attention: Docketing and Service Branch
Dear Sir / Madam:
The St. Lawrence County Environmental Management Council, an advisory board for the St. Lawrence County Legislature, voted unanimously at its February 10, 1988 meeting to submit the following comments pursuant to the proposed rule published in the Federal Register on pps: 47578-47589 on Tuesday, December 15, 1987 regarding emergency access to (future) LLRW facilities:
- 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
- 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 wastes which could be involved?
The Council members also wanted to express their concern that the states in ddch recipient facilities are located which could ultimately receive emergency low-level wastes do not have any control over whether or not to accept such wastes. The decisions rest entirely with the Nuclear Regulatory Commission.
Thank you for the opportunity to comment. ;
l Sincerely.
Jon R. Montan Planner III.
JRM:nic cc: Lloyd Moore Duana Carey Bruce Piasecki David Jordan JEB 17 BBB Ack new% deed M r a'4. . - .m . . . .= ~W coe o e e ^ O #D i u vW%OUA ? tw ( e
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Dear Secretary:
We are writing in regard. to 10CFR62, 52FR 240:47578 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.
In an earlier letter, dated February 4th, we joined with organizations around the country'to request a7 extension of the public comment period.
for 60 additional days to allow people adequate time to comment. We reiterate that request and at this time are presenting brief comments on the proposed rule.
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-lfwJ 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" radioactive waste f acility 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 I Environmental Conservation disapproved this request and the subsequent law upheld the state's pclicy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wastes or out-of-state wastes.
To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste PoUcy Act which supports compacting and state's rights. The NRC is directly threatening the state's authority to exclude wastes.
For states to accept federal wastes will in many cases cause the state's management of facilities (in terms of storage / disposal capacity, etc.) to be radically changed. How will states / compacts be able to adequately plan and manage their facilities with the threat of NRC emergency declarations forcing substantial amounts of waste on them at anytime?
At the very least, the NRC should change the rules to:
- 1) Require strict adherence to state / compact requirements, including allowing only commercial wastes (not federal) up to Greater than Class C waste.
- 2) Other state restrictions on 100 year hazardous life, or only Ciass A,B or C wastes, must be strictly adhered to by NRC.
- 3) Lastly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes.
Th~ Enur..nmental Plannme Lohhs EPL i, a nonprorn taiente ennronmentat aihocacy coahoon uineh iPensent-8 H l Of g;tnl/dlp t{tw dlHl lhotl%dnds e d intb% h! id! Ste*lnhelT bYl,l% 1he onh (Hllome enQronmentdj lohhg m %pH b q k Ndle and hJ%
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'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 production has caused the " emergency" in the first place.
States should not have to bail out the federal government.
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.
We would appreciate receiving a response to these comments, as well as the final regulations. We again urge a 60 day extension'for adequate public comment.
Sincerely,
,.,sw N f C '
Larry Shapiro Anne fase Executive Director Executive Director Environmental Planning NY Environmental Institute Lobby AR/bb i
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202-429-5120 $NU The Society' College of of Nuclear Nudear 88 FEB 16 P3 55 Medicine Physicians
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d..d-00CKElm04 x" FebruaryB104,21988 ;
Secretary J
U.S. Nuclear Regulatory Commission ATTN: Docketing and Service Branch Washington, DC 20555 RE: Proposed Rule on Criteria for Emergency Access to Non- ,
Federal and Regional Low-Level Waste Disposal Faci-lities (52 Federal Register 47578).
Dear Sir:
We are writing on behalf of the American College of Nuclear Physicians and the Society of Nuclear Medicine regarding the NRC's proposed rule to establish procedures and criteria for granting emergency access to non-Federal and regional low-level waste disposal facilities. The Society represents over 11,000 physicians, physicists, radiochemist, radiopharmacists and technologists dedicated to the overall advancement of Nuclear Medicine and has major interests in the scientific, educational and research activities affecting the field. The College is a professional organization representing over 1,200 physicians whose crimary activity is the practice of Nuclear Medicine.
Many or 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). 1 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 I 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 Medi-cine, but to the entire medical field as a whole. While an
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Secretary )
U.S. Nuclear Regulatory Commission (
February 10, 1988 Page Two 1
estimated 120 m1111on 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 tracers. It is clear, then, that radioactive' mate- {'
rials permeate every aspect of medical practice.
Disposal capacity for LLW generated by the manufacturers of radiopharmaceuticals is just.as important, if not mere, than dis-posal capacity for direct generators of medical LLW (f.e., hospi-tals, 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). Unfor- ;
tunately, however, in the case of lost access, the manufacturers l of radiopharmaceuticals on which the Nuclear Medicine community j depends would not be able to accommodate on-site storage because i their higher-activity materials would conceivably exceed available j on-site storage capacity within one to six months.
In addition, we wou3d 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 pos7ession limits specified in the generators' licenses. For example, if most of the genera-ter'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 deve-lopment. Not only is there a public safety question concerning on-site storage of this waste, but if radiopharmaceutical manufacture was to cease due to failure to find a viable solution to the waste problem, all of the medical activities using these materials would cease or be significantly curtailed.
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. We. agree with the Commission and the Congress that emer-gency access should not be used as an alternative to diligently pur-suing the compacting and siting processes mandated by the LLRWPAA.
We also agree with the NRC that emergency access provisions are l
l Secretary. _ . . .
U.S. Nuclear Regulatory Commission
~ February 10, 1988 l Page Three ;
4 necessary as a contingency'in the event th'at access is' denied or is t unavailable, so that important health care services and research can continue uninterrupted.
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 Com- I mission will bear in mind the unique characteristics.of LLRW: gene-rated by medical. institutions and radiopharmaceutical manufacturers j
l and.the necessity of' access to disposal for the provision of vital medical. care services in this country. Plosse feel free to consult ;
with us if you require further information or assistance.
j.
Sincerely, O ,
B. Leonard Holman David H. Wood ry President President .
Society'of Nuclear ~ Medicine American College of Nuclear Physicians l
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[A 4757h -Feb 7 -68 E I;eme thy, Sec 'y Sec'y u RC e Proposed rule - Criteria Wash DC 20555 3 FEB 17 N0:3$~emersency or: mecess to low-ATT: Dg CKETING & SERVIC . level waste-facilities r9'ed Reg -Dec 15-67, p 47578 hCdilHgAstievlCf.
BRANCH Gentlemen -
Altnough the Low-Level radioactive waste.Folicy Amendments Act of 1985 doesn't rquire nRC to develop a rule, we agree your doing so is an excellent idea. ;
3ut we feel'tne proposed rule coula sta..d a bit of tigntening.
Sec 62.6 - he question tne need and advisability of making _any Specific Exemptions._ It seems to us tnis lends itself to tne granting of too much leeway by liRC - and pcssible abuse.
Sec 62.ll(b) - The provision tnat you'll publish notice of re-quests receivea in tne leoeral nesistety tnen allow 10 cays
'cr public co: ament, is ridiculous.
Probably not one in 20,000 me bers of tae general public ever sees tae Feceral Register. If you want to notify them you c hould publisa sucn notice es a n.ws release (not a legal aavertisen.ent) in a newspapcr of local circulation, and allow a comment period of at least 20-30 days.
Sec 62.12(f)(2)(iv) - any sno'uld infinitely long-lived trans-uranics be inclutea in tne category of low-level waste?
Sec 62.23 - Before gran+: ig tem,.orary emergency access, wny j not allow a 10-cay waiting period, so possible alternatives may be consicered?
i.e feel tais provision - as written - is wine open to abuse oy sloppy operetsrs, wno may wait until a crisis situation exists, taen come runn_ng to yoa for special emergency consideration.
Sec 62.24(b) - Fe: extension of emergency access, t.is says .ne requirements of Sec 62.21(c) and (d) must be foli,wed. Inere is no Sec 62.21(d). ,
Finally, under Speci:ic request for ccen.ents, you ask wnat saould
.:C do if no site is foand to be suitable for emergency access?
.<e suggest you then rqquire tae operatsr to cover t..e pile of 1.sw-level waste wita lead snielding, toppec witn enougn soil to stop raciation ; r ;.. escaping.
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1616 P Street, N.W., Suite 160, Washington, D.C. 20036 (202) 328-0002 O KETING & 5[pyjcy' 8 RANCH February 11, 1988 Secretary Chilk US NRC Washington, DC 20555
Dear Secretary Chilk:
Enclosed are Nuclear Information and Resource Service's comments on 10 CFR Par t 62, Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Radioactive Waste Disposal Facilities, which appeared December 15, 1987 in 52 FR 240.
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Diane D'Arrigo Regulatory Oversight Coord ator 4 l
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Nuclear Information and Resource Service j February 12, 1988 Comments to US Nuclear Regulatory Commission on:
10 CFR 62 Criteria and Procedures for Emergency Access to Non-Federal and {
Regional Low-Level Radioactive Waste Disposal Facilities )
52 FR 240, Tuesday, December 15, 1987 l 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 understanding that FRC is not in the position to change the fede'ral 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.
- 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 comnercial 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 l 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 " State..." Such generators could include generators that are not NRC or NRC Agreement Stare licensed. We would like to see provision made to clearly' prohibit DOE and DOD and other federal agencies and contractors from gaining access to state and compact dumps via emergency access. ,
dedicated to a wund non nuclear energy poher.
Nuclear Information and Resource Service comments on 10 CFR 62 page 2 Second, Section 62.13 (a) (5) (which appears misprinted as 82.13 in 52 FF240:47587 December 15, 1987) requires that Federal or defense related generators of LLW must first attempt to gain access to Federal disposal f acilities before they are eligible for emergency access to non-federal dumps. If non-federal j
disposal f acilities are going to be required to take Federal i waste then of course it makes sense to require those generators to attempt access at Federal dumps first, and on that level this I requirement is essential.
3 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 f or emergency access. This excludes Depa,rtment of Energy waste and US Navy waste f rom decommissioning Navy vessels and any nuclear weapons research, development, testing or production waste. That waste should be clearly excluded from eligibility for emergency access.
Arguments against leaving the regulations open to Federal waste:
(1) It is commonly known that many Department of Energy sites are well below the national environmental standards and attempts to remedy those sites' problems could result in the generation of large volumes, concentrations, and numbers of curies in radioactive waste. We would encourage remedial action and clean up of many of those sites but can foresee the usual dilemma of where to put the waste that is " cleaned up." Unless non-federal facilities are pir.nning 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.
(2) Furthermore, DOD, DOE and othar Federal waste is not currently classified as Class A, B, C or Greater-than-Class-C (C+) , as is commercial waste. It will be dif ficult to determine whether Federal waste meets the license criteria for any non-federal sites that use the A,B,C,C+ method of categorizing
" low-level" waste. Even if DOE reclassifies its wastes as A,B,C and C+, the source of such waste is much dif ferent than commercial waste and could pose technical problems which states and compacts are not considering in their dump planning.
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 nonfederal 11w disposal f acilities eligible to accept such waste thus would be required to accept such waste every time NRC granted emergency access to Federal and defense reltted generators. We only wish to point out that such a provision could
i Nuclear Information and Resource Service Comments on' 10 CFR 62 Em Acc to LLW Facilit cage 3 penalize states and compacts for taking on longer-lived and more concentra,ted wastes.
A)though there are serious unresolved problems with this method i (10 CFR 61. 55) of classifying " low-level" radioactive waste, we understand (that many states and compacts will likely follow those {
regulations. .
(3) There could be a conflict of interest if DOE and DOD 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.
- 2. States' and compacts' right to refuse waste that does not meet the specifications they are designed and licensed to accept should be strengthened.
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 f acility f rom consideration (from taking Emergency Access waste) if the waste doesn't meet the license criteria of the f acility. 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.
- 2. A. 91nce 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 i should be changed to exclude the waste (C+ and its equivalent) l which is excluded from state responsibility in the 1985 Low-Level Radioactive Waste Policy Amendments Act. Or, if the " Low-Level Radioactive Waste" definition is lef t 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)" '
l 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).)
- 3. Incineration should agt be required as a part of maximum volume reduction or waste treatment prior to NRC granting emergency access.
Nuclear Information and Resource Service Comments on-10 CFR 62 Em Acc to LLW ' Disposal Fac page 4 Compaction' and supercompaction may be regttired and possibly other solidification 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 incineration.
- 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. ,
- 5. We encourage NRC not to weaken any of the requirements for Emergency Access applicants.
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-U. S. Nuclear Regulatory Commission Washington, DC 20555 "Ml((El.
Attni Docketing and Service Branch. .
Re: Proposed Rule, " Criteria and Procedures for Emergency Access to.
Non-Federal and Regional Low-Level Waste Disposal Facilities"; 10 CFR Part 62: 52 Federal Register 47578-47589 (December 15, 1987)
The Kentucky Radiation Control Program would like to make its wishes knewn, relative to the above , ref erenced proposed rule, by.
totally supporting the comments provided by Terry R. Lash, Director, Illinois Department'of Nuclear Safety, in a letter (attached) submit-ted 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 reason-able but fully justified. Not only does he agree with much of the proposed rule but he points out errors that must be corrected.
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 pressntly 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 dramat-ically effect how low-level radioactive waste disposal facilities can function.
I fully realize the comment deadline has passed as heavy snows coupled with a federal holiday delayed this writing. Nevertheless, thank you for the opportunity to comment on the proposed rule . con-cerning emergency access. .
I erely, M '
Donald R. Hughes, Sr., Manager Radiation Control and Commissioner Central Midwest Compact Attachment (1)
^h0*%d8ed by card, E --
"An Eaual opportunity Employet M F/H" WW
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STATE OF ILLINOIS DEPARTMENT OF NUCLEAR SAFETY 1035 OUTER PARK DRIVE SPAINGF: ELD 62704
'(217) 785 9900' TERRY R, LASH D*oa February 11.,1988 The Secretary of the. Comission
' U.S. Nuclear Regulatory Comission-Washington, D.C. 20555 Attn: Docketing and Service: Branch 3 Re: Proposed Rule, " Criteria _and Procedures for Emergency Access to Non- 1 Federal and Regional Low-level Waste Disposal Facilities;" 10 CFR Part 62;. -l l
52 Federal Register 47578-47589 (December 15,.1987)
The Illinois Department of Nuclear Safety ("IDNS") hereby submits its' comments on the above-identified proposed rule concerning emergency access to non-federal low-level radioactive waste ("LLW") disposal facilities. . IDNS is the radiation control agency.of the State of Illinois, and is responsible for establishing'and regulating a low-level radioac.tive waste disposal facility in-Illinois to serve the' Central Midwest Interstate Low-level Radioactive Waste Compact.
The State of Illinois and.the Commonwealth of Kentucky created the Central Midwest Interstate low-level Radioactive Waste Compact (" CMC"), which was approved by Congress in the Low-level Radioactive Waste Policy Amendments Act of1985("AmendmentsAct"). The CMC Comission has designated Illinois as the host state for a regional LLW disposal facility. IONS is presently engaged in i the process of selecting a site for the facility under the Illinois Low-Level Radioactive-Yaste Management Act. - IDNS and CMC are making every effort to ;
comply with the milestones under the Amendments Act. ;
General Comments !
- 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 j the event of an iminent threat.. Establishing criteria in advance allows -)
potential applicants to plan acco.rdingly,-and serves notice that the emergency access provisions may not be used to circumvent.the' express-
~
4 provisions of the intent of the Amendments Act.
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- 2) IDNS agrees with the statement preceding the proposed rule that NRC should
" ... reinforce the idea that problems with LLW disposal are to be worked j
out to the extent practical among the states...." The proposed rule does not, however, expressly encourage states and compacts to enter inte l cooperative agreements for emergency access before the need for such access arises. Such agreements would be consistent with the intent of Congress and should help to avoid any immediate and serious threat to the puBlic health and safety or the conrnon defense. The rule should expressly encourage states and compacts to enter cooperative agreements.
- 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 -
j 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-level radioactive waste generated within its borders. It is 10NS's experience that Illinois' citizens want assurances that the Illinois disposal facility will accept only low-level radioactive l waste generated in the CMC region. It is imperative that emergency access not be perceived by the states as an alternative to making a diligent i effort to fulfill their responsibilities.
- 4) IDNS observes that the proposed rule does not address the provisions of f Section 6(f) of the Amendments Act, which pertain to reciprocal access. l IDHS recommends that the proposed rule address reciprocal access and l recognize that a condition to obtaining emergency access is providing !
... reciprocal access for an ectal volume of low-level radioactive waste )
naving similar characteristics to that provided equal access." j l
- 5) The proposed rule does not address the issue of disposal fees for wastes disposed of under an emergency access determination. The obligation of a state or compact to accept wastes granted emergency access should be 1 conditioned upon the applicant's payment of disposal fees and surcharges as applicable.
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Specific Comments and Recommendations
- 1) {62.2 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 sub-class 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) n.Jans 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 Title 10, Code of Federal Regulations, as 9
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1 t
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: Formerly Utilized Sites Remedial Action Program.
Under the Amendments Act, disposal of waste that-is above class C, as defined in 10 CFR 61.55 on Jemuary 26,1986, is not the responsibility of the states. The Nuclear Regulatory Comission may not, through .
. regulation, alter this statutory limit 'yet the proposed definition of-low-level radioactive waste would include " radioactive material that the NRC, consistent with existing law, classifies as low-level-radioactive waste." IDNS' objects to any attempt, whether deliberate or inadvertent, to place additional burdens on the states in contravention of express statutory. limits. The proposed definition is particularly troubling'in
.-light of the Amendments Act's express prohibition on requiring any regional facility to accept waste that is above class.C, or FUSRAP wastes. IONS 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.
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 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. IONS suggests that one possible scenario under which emergency access might be requested is closure of existing federal disposal facilities. In IDNS' s opinion, the proposed rule is substantially deficient in its failure to.
follow the express mandate of Congress that no non-federal facility ever be required to accept waste that has been made a federal responsibility.
In the 5@plementary 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 D00 was expressly considered and rejected by Congress. The NRC should abide by that decision and the express language of the Amendments Act in promulgating this rule.
I
- 2) Q62.2 The definition of " Temporary Emergency Access" should be changed as l
- 4- .
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 granti emergency access, whether temporary or not, is limited to those situations where such access is "necessary to eliminate an imediate 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.
- 3) {62.12 Add a new subsection (c)-as follows:
"(c) That the material for which emergency access is requested is
' low-level radioactive waste' as defined in this Part."
and re-designate 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 urider the Amendments Act.
- 4) 562.12 (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."
- 5) s62.12 Add a new {62.12(k) as follows:
"(k) A description of how granting emergency' access would eliminate an imediate and serious threat to the public health and safety or the common defense and security."
- 6) E62.12-d'mendtheproposed$62.12(k)asfollowsandre-designateas 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 the Secretary of Defense that the waste for which emergency access is granted is not owned or generated by the Department of Energy, owned or generated by the United States Navy as a result of any decommissioning of vessels of the United States Navy, or owned or generated by the federal government as a result of any research, development, testing, or proc ction of any atomic weapon, and that access to disposal is necessary to eliminate the threat to the common defense and security."
0 5-At 2xplained 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 dddition to the generator's certification that the waste for which emergency access is requested meets the operational ,
definition suggested in comment #1 above, these additional safeguards are necessary to assure. protection of states' rights in the event that the request.
for access is based on a' claim of immediate and serious threat to the common.
defense and security.
- 7) Modify {62.13(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 the applicant's own failure to comply with regulatory standards.
- 8) Modify {62.13(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 alternatives considerad must be included in a request for emergency access, but it does not include the provision in the statement preceding the rule that, "(alpplicants for emergeucy access will have to provide clear and convincing tildence that they have exhausted ' All other options for managing their wastes." This language is appropriate and should be incorporated into the rule.
- 9) {62.14 Add a new {62.14(c) as follows: .
l "(c) A description of bow granting emergency access as requested would eliminate an immediate and serious threat to the public health' and safety or the common defense and security."
L
[ 10) {62.18 Replace "may" with "shall" in this section.
This section provides that the. Commission may deny a reouest if'it is
-]
~'
L i based on circumstances thtc are too remote and: speculative to allow an-informed decision. IDNS recommends that "may" be changed to "shall."
If the ,
Commission cannot make an informed decision on a request, it should not grant 'j
]
the_resuest. .
- 11) {62.21(a) should be modified as follows: .
1 j
"(a) Not later than forty-five' (45) days af ter the receipt of a request for a Corission determination under this Part from any J
generator of low-level radioactive waste, or any Governor on behalf of any generator or generators located in his or her state, the Commission shall make a determination whether- . {
(1) The result for emergency access to a regional disposal f acility or a f acility within a state that is not a member of a compact, for specific low-level radioactive waste is based on an immediate and serious threat to:
(i) the public health'and safety, or (ii) the common defense and security; .
(2) The threat cannot be mitigated by any alternative q consistent with the public health and safety, including those i identified in f62.13, (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 i responsibility under cection (3){a)(1) of the~ Low-level ;
Radioactive Waste Policy Amendments Act of 1985. l
- 12) Q62.21(c) Replace " alleviate" with " eliminate" in this subsection.
- 13) gt! 22 Add a new {62.22(d) as follows: i
"(d) Any grant, denial, or refusal to consider t. request for emdgency access or temporary emergency access under this Part is a i final agency action."
If the request is indeed based on- an imediate threat, and the decision is challenged, then prompt judicial review is necessary to resolve the i issue. Clarifying that a grant or refusal is a final agency action may )
remove potential obstacles to obtaining prompt judicini review.
- 14) 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 acces', determination, will consider whether the applicant "[hlas demonstrated
f t' hat'agoodfaitheffortwasmadeto.identifyandevaluatealternativeshhat
" IONS submits;that subjective j would mitigate the need-for. emergency access.The effort must be objectively good faith should not be sufficient.
reasonable and diligent. 1
- 15) A ne'w {62.26(b) should be added as follows: 1 (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 Theof the Compact request Commission for approval shallfor-the designated regional facility. include the entire administrative. reco 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 l
'from the Commission.-
q Section 6(g) of the Amendments Act provides that:
"(a)ny 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 Comission to allow emergency from the Compacts.
access is not clear, the NRC may not,: by rule, remove th disposal facilities, and that the Amendments Act makes no similar provision-for non-federal, non-regional facilities. ,
16) 62.27 Add a new {62.27, as follows:
1 Compliance with conditions of emergency access; termination of
"{62.27 emergency access.
(a) The operator of a regional disposal facility or a non-federal disposal f acility designated by the Comission to provide emergency access may refu.s_e, to accept the wasies for disposal if the applicant .or the waste does not meet conditions set by the Commission pursuant to this Part.
j (b) The Co#ession snali 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.
The Commission may terminate a grant of emergency access if an (c) applicant has made a material f alse 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 preocsed rule d.ms not address termination of emergency access.
Furthermore, under toe rule as proosseo it is not clear' that - a state or l
9
8-
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I 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 Comisjion.
I
- Miscellaneous Comments and Questions
- 1) 662.6 Specific Exemptions -
i The provisions of this section would allow the Comission 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 i exception will not, in practice, become the rule? This provision should be deleted.
- 2) 662.11 Filing and Distribution of Determination Reques't It is'provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Comission's Public Document Room and in the " Local'Public Document Room of the facility submitting 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?
- 3) 62.23 Determination of. Granting Temporary Emergency Access This section provides for the granting of temporary emergency access to
...an appropriate non-federal disposal facility or faciliti t s...." The provisions in Section 6(d) of the Amendments Act which pertain to temporary 1 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 !
Comission? 1
~
Thank you for the opportunity to comment on the proposed rule concerning i emergency access. Do not hesitate to contact me if you have any questions 3 about these comments or if you would like additional information. '
Sincerely yours I t
} 1 I
erry R. La h Director TRL:sp .
bcc: Clark Bullart .
PPAC Conald R. 'ughes C V-
.:oines Brown Ed l'elr.inski 7.retchen Bonfert i Karen Mitter Paula '.lolff
- nn ficCabe
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1 PHILAD ELP.HI A ELECTRIC COM PANY 2331 M ARKET STREET f' Pf. B ?X 8699 PHl: ADELPHf A. P A,19101 -
i (2151841 45oo JOHN s. YC0 APER .
eswoon vecc eneseocut . MucLean Mr. Samuel J. Chilk ~
l Secretary of the Ccrm.ission /
U. S. Nu.lesr Regulatory Conmir :,lon Washing nn D.C. 20555 Attentlot* Docketing anc; Service Branch
SUBJECT:
Proposed Rule on Emergency Access to 1.ow-Level Radwaste Disposal Sites
Dear Mr. Chilk:
IJotice of a croposed 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 emergendy access to disposal sites a e well developed and w'11 be effective in maintaining control of the amount of radioactive waste sent to such sites. One aspect of-this process, however, may prove to be a detriment to its snooth '
administration: the 10-dry public corrment period.
If a situation is truly an emergency, de'.aying the disposal of waste may result in an 1.ncreased 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 pubilcation of all petitions for (mergency access, and the results of each.
We are confident that the proposed crite-ia are' strict enough to protect .hc r.ublic health and safety without celaylog the process to con:Ide ,.public concerns for each occurrence, fW ACC/i.em/02128802 l
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usNac j COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES
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P E N N 5 Y.LVAN I A - Post Office Box 2063 "
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Harrisburg, Pennsylvania 17120 ..
February 17, 1988 .
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gfICEufSECRauv EII ' i' VM:l, Bureau of Radiation Protection
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i Secretary of the Commission !
U.S. Nuclear Regulatory Commission !
Washington, D.C. 20555 Attn: Docketing and Service Branch Gentlemen:
The Department of Environmental Resources of the Commonwealth ,
of Pennsylvania has reviewed the proposed rule 10 CFR Part 62 j entitled " Criteria and Procedures for Emergency Access to l Non-Federal and Regional Low-Level Waste Disposal Facilities" l (F.R. Vol. 52, No. 240, p. 47578-47589) and have the following j comments:
This proposed rulemaking has several major flaws that if not corrected could potentially act to undermine the substantial progress that has been made to date on implementing the Low-Level I Waste Policy Amendments Act of 1988.
First and foremost, this proposed rule rppears to violate the entire premise of the Act, that each State is responsible for j disposal of its own low-level radioactive waste. The rule should I require that the State or Compact where the problem is located j 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 l under the normal terms of the Act. j 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 the first and only party responsible for disposal of this waste.
pi 13BB mm v.u/ev#A 1kknbw> edged bi nFd! ... . ~.a --
0 U(dJ!J l Ws,A.,/ e
Secretary of the Commission - - -
%.. 3- @& s.
I The most likely scenario that may require emergency access
- appears to be that of.a bankrupt 1 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.
Incorder 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 L
of,this rule should only be used as a last. resort and the language should be-such that this intent is clear.
In addition, we have reviewed the specific issues for which input has been requested and have the following comments:
- 1) What scenarios are envisioned where emergency access would be required? ,
-- As written, the rule could require acceptance for disposal of federal waste under " temporary emergency access" provisions.
-- If a State or compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing.
-- A generator is denied access to a state or compact disposal i
facility for whatever reason.
-- An unusual occurrence such as bankruptcy of a generator
. causes abandonment of extremely large volumes of waste which exceed State or Compact capacity for safe disposal.
- 2) '
approach to What are the determine an potential immediate problems with thre and serious NRC[t to the public health and safety?
l 1
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Secretary of'the Commission. 3 ., ,. .. .y . ......
%- The difference between'" emergency access" and " temporary' emergency access" provisions for this determination are not consistent with Section 6(d)'of the Act. . The Act clearly states that an emergency access determination must be made:
before temporary emergency access can be considered. "Upon
' determining that emergency; access is necessary... the commission".- This is not consistent with the , definitions and:
suggested implementation of the two terms in the proposed rule.
.+
- 3) What are the potential problems with the determination of serious and immediate. threat to'the common defense and security?
-- In making this determination, can all or part of the information provided by the generator be kept confidential, or not be released to the receiving facility, under the-claim of national security?
- 4) What are'the potential difficulties with the proposed approach for determining the receiving site?
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.
The issue of economic feasibility and a person's financial capability should not be a consideration in dealing with emergency access.
-. 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 i
.be the first priority before'other non-federal disposal !
facilities. -
~
The are no provisions for equitable distribution of the waste if non-federal facilities are needed for disposal.
e Secretar'y of the Commisnion + 1 m + wy.
-- As written,'the 20% volume criteria could eliminate'the smaller non-federal:facilitiesLfrom consideration almost immediately. Provisions can be added'which would divide up amergency 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.
. -- There are no provisions for existing State'or Compact laws with respect to reciprocal' agree ". nts or time' requirements for emergency. disposal conditio: , as covered in Section.6(f).
of the Act.
Is a determination appealable?
a
- 5) What should the NRC do if no site is found to be suitable for l waste requiring emergency access. !
i
-- 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. ;
l I
Sincerely,-
idn P Dwap--
William P. Dornsife, Chief Division Of Nuclear Safety Bureau of Radiation Protection
CENTRAL MIDWEST COMPACT COMMISSION for l'ow-Level Radioactive Waste Management 1035 outer Park Drie e Springfield, IL 62704 e 217/785-9937 000KCIEF DOCKET NUMBER Clork W. Bullord.Choirmon .f /
Terry R. losh, Secretow Ttoosurer BR0 POSED RULE -_
Donoid R. Hughes, Sr., Commiss'oner g --
~ W FEB 25 P2 00 OlitCL > l'.n.nt. \;s Y Februa ry 16, 1988 00CKE hNG 4 'iEftvitf.
BRANCH The Secretary of the :.ommission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch RE: Proposed Rule, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Vaste Disposal Facilities;" 10 CFR Part 62; 52 Federal Register 47578-47589 (December 15, 1987) 1 The Central Midwest Compact Commission f ully endorses the comments submitted by the Illinois Department of. Nuclear Saf ety (IDNS) on February 11, 1988.
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. Moreove r , the inte6rity of the entire Compact ;
system could be undermined by any hints that NRC is less than fully committed to respecting the statutory ex clusion of greater-than-Class C waste.
We urge you to adopt the IDNS comments intact so our ability to meet the remaining milestones is not impaired.
Sincerely, d
Clark W. Bullard Chairman l I
CWB/1h cc. T. R. Lash D. R. Hughes MAR 1 MB
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CNbIN 4 '$b kill JOHN S. MEMPER BRANCH union vies enesioant . nucoman February 24, 1988-Mr. Sanuel J. Ch!Ik 1
, Secretary of the Ccrrmission U. S. Nuclear Regulatory Ccrrmission Washington D.C. 20555 .
Attention: Docketing and Service Branch
SUBJECT:
Proposed Rule on Emergency Access to Low-Level Radwaste Disposal Sites
Dear Mr. Chilk:
Notice of a proposed rule on emergency access to non-federal low-level radwaste disposal facilities appeared in the Federal Register on Decenber 15, 1987. Philadelphia Electric Company believes that the' proposed criterla for allowing emergency access to disposal ~
sites are well developed and wl11 be effective in maintaining control of the arrount of radioactive waste sent to such sites. One aspect of this process, however, may prove to be a detriment to its smooth administration: the 10-day public comnent period.
1 If a situation is truly an emergency, dolaying the disposal of waste may re' ult in an increased hazard to pubile health and safety.
Additionally, the current climate of pubile awareness and tendency l towards legal Intervention could contine in act ton aimed at the cessation of the generation of waste (i.e. the shutdown of the generator). Another method to keep the pubile informed should be developed: perhaps a periodic publication of all petitions for emergency access, and the results of each, l
We are confident that the proposed criteria are str k:, enough to )
protect the pubile health and safety without delaying th> process to .
l consider pubile concerns for each occurrence.
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February 24, 1988 i f I Secretary of the Commission, Samuel Chilk U.S. N.R.C.
Washington, D.C 20555
Dear Mr. Secretary,
NACE joins with Mr. Marvin Lewis of Philadelphia, PA in his opposition to Proposed Rul?: Criteria and Procedures for Emergency Access to Non Federal and Regional Low Level Rad Waste Sites.
The rule would allow the Federal Government and the NTC to I regulate a State function...or at lease a Compact function.
This is an infringement of State's rights which has both finan-cial and health impacts.
Since State and compact dumps are being developed for commer- j cial 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 DOD. It is our belief that federal waste is ofter greater that Class C waste.
We must all act now to protect future generations.
Sincere J ssie DeerInWater Ag airperson cc Marvin Lewis Marie Green pp M87 Drey f Mike Synar Wilma Mankiller
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) TELEPHONE AC 5010612000 M. JOYCELYN ELDERS. M.D. I B:LL Ct.1NTON N CTOR WFICC ;- M i.E'. ' A5 T l GOVERNOR 00CKEilHG A SE3'VICl-BRANCH i
February 18, 1988 l
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1' Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 AH: Docketing and Service Branch. q
Dear Sir:
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Members of the Governor's Low-Level Radioactive Waste Advisory Group have ~
reviewed the proposed rule, " Criteria and Procedures for Emergency Access ,
to Non-Federal and Regional Low-Level Waste Disposal Pacilities'. In response to your request for' comments on the rule, we submit the i following-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 i regional Compacts. l Specifie Comments
- 1. 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.
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- 2. If the need for emergency access is the resu1* of a regional or l
. non-federal facility denying access to a generator, the reason's) I access was denied should be considered by the NRC when making its decision.
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Response to NRC Specific Requests for Comments '
- 1. What scenarios are envisioned where_ emergency access would be requii%d? -
. Response: *The regional or non-federal f acility utilized by generators is closed by regulating authorities, the facility operator or extraordinary. events. ;
- Access to a facility has been denied for non-technical reasons.
- Extraordinary waste streams that do not conform to those acceptable at a regional- or non-federal facility.
2.'.What are the potential problems with NRC's approach to determining an immediate and serious threat to the public health and safety?
Response: No comments at this. time.
- 3. What are the potential problems with the arrangement' proposed for making the determination of serious and immediate threat to the common defense and security?
Response: No comments at this time.
- 4. What are the potential difficulties with the proposed approach for
-designating the receiving site?
Response: No comment at this time.
- 5. What should NRC do if no site is found to be suitable for waste requiring emergency access?
Response:
- Consider disposal at a federally operated facility.
- Allow indefinite 'in situ" or
- intermediate location
- storage.
Sincerely,
. U e*rro I G ta J icus, Director Division of Radiation Control &* Emergency Management
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ENCLOSURE C 1
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f, i REGULATORY ANALYSIS 1
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REGULATORYEANALYSIS 10 CFR Part 62 -' Criteria and Procedures for Granting Emergency
. Access to Non-Federal or Regional Low-Level Waste Disposal Facilities. >
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- 1. STATEMENT 0F THE' PROBLEM
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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 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-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 activities that generate the waste. NRC must .
be able, with the information provided by the requestor, to.make both deter-i minat'ons prior to granting emergency ac'c~ess.
The Act further directs NRC to designate.an operating LLW disposal. facil '
ity 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 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. In order for a requestor to be eligible for emergency access consideration they must have already been denied access to LLW disposal
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by the States or Compacts with operating dispnsal facilities. Thus implicit I 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 l the statutory responsibility for implementing Section 6 and gave the Commission l l
i 1 Enclosure C
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1 authority to decide whether or not access will be provided, emergency access decisions are likely to be controversial and could be challenged. By setting outthe[oI:eduresandcriteriaformakingemergencyaccessdecisionsinarule l which reflects public comment, NRC intends to minimize potential delays in the j l
actions necessary to protect the public health and' safety, q l
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- 2. OBJECTIVES 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 public 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 j make emergency access decisions would have the force of law. Using rulemaking l also provides binding criteria and procedures and therefore would add predict- i ability 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.
1 T.hese effects are desirable since emergency access decisions are likely to be l highly controversial.
3.2 Using a Policy Statement l
The alternative of issuing a Commission Policy Statement to establish the l procedures for emergency access decisions was rejected. Under this alterna-
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tive, the criteria and procedures would not have the force of law. In I 1
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4 addition, since policy statements are typically broad, a policy statement was not considered appropriate to establish the detailed criteria and procedures
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required t'o 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 predictatslity f 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 requestor will receive the benefit of continuing the activity responsible for generating the waste at least until the grant expires. Society will benefit from continuing access to the goods or services produced by that activity and the elimination of a serious threat to the public health and safety. 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. I 3 Enclosure C
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4.2- COSTS
?? . 4.23 Applicants _ for Emergency Access Generators of LLW,;NRC.or. NRC Agreement States.l.icensees, Governors orf -l other State chief executivt;-officers on behalf of the generators or other '
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" persons" as defined in.the proposed rule may request emergency. access. -
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 to evaluate alternatives. NP.C. staff estimates that regardless which of these perrions requests' emergency access, approximately two (2) weeks-of the requestor's professional staff time will,be. required to pr' cess o the paperwork necessary to complete a request.for an NRC determination.: pursuant to
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the requirements set out in the Act and which have been codified in.the proposed rule.
Other possible costs associated with this final' action could actually be I incurred through the requirements and 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 wasteLin question, even to the point of 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 alter the activities or processes responsible.for i
generating the wastes, or from loss'of income from reduced or curtailed ,
production, Since NRC is mandated to make emergency access decisions, these l costs would result regardless of the issuance of this rule.
i 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. Using generic cost estimates of $40/hr x 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> x 180, it would cost NRC under $60,000 per request. NRC
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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 4 Enclosure C
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'Section 6 of the Act be applied only in " rare emergencies," it is not expected that the regulation will b'e applied with any' frequency.
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In order to implement this final' rule,. it may'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 may. represent an additional commitment of NRC. resources. -
.Since Section 6 precludes NRC Agreement States from makingLemergency access decitions, the final action will not have an impact on Agreement State.
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resources.
4.2.3 Department of Energy (DOE)/ Department'of Defense (D0D)
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. DOE. NRC estimates that approximately five staff weeks or approximately 25 staff days-would be required.for each emergency access request processed by DOE or D00. 'At the same rate as NRC, it would cost under $8,000 per ' certification.
- 5. DECISION RATIONALE NRC decided on the approach in.the final rule in light of'the Congressional i i
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 the rule is dictated primarily by the I
l schedules and milestones in the Act. The Act sets out three milestone dates l 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 Novemb'er 1988, so it will be in place before 5 Enclosure C
-1 that' January 1989 potential denial'of access date. Once the final' rule is - .;
issued, hs actual implementation 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 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- l adoption.of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect. 3 Making a Commission determination to grant emergen'cy 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 secu-i rity, and possibly the environment are anticipated as a result of denial of I 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 1 necessary to assure that the public, the national s6curity 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 i concern and maximize needed prote'ction.
The Commission designation of the LLW disposal facility to receive the' !
LLW approved for emergency access should not result in adverse impacts to the 6 Enclosure C
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l ol environment. First. Section 6(h) dictates that the' tcital quantity of emergency .
. access LLW approved for disposal.at'any non-Federal:or_ regional LLW disposal facility 7 ist fall'within'.the-volume caps established'by t'h'e'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 warte 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 the potential.to affect any generator of LLW.
However, in order for the requirements of the rule to be imposed on a j 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 locateci 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 I requests emergency access would most liPely 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. !
7 Enclosure C
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ENCLOSURE D I
o DRAFT CONGRESSIONAL LETTER I
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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.
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 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 the Congressional intent expressed in the 1e.gisla-tive history and to reflect public comments to the extent possible.' The final rule sets strict requirements for granting emergency access, places the burden of demonstrating that there is a need for emergency access on the party request-ing 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.
Sincerely, Victor Stello, Jr.
Executive Director for Operations
Enclosure:
As stated 1 Enclosure D
6 ENCLOSURE E PUBLIC ANNOUNCEMENT l
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i APPENDIX I J
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Major Provisions of The Proposed and Final Regulations The proposed and final rules address each of the determinations that NRC must make and describes how they will be' made.
In order to make the determination that there is a serious and immediate threat to the public health and safety, the Commission will consider whether the cir-cumstances described lead it to conclude that there is no longer reasonable assurance that the affected generator or generators can continue to comply with NRC's regulations 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 can- ,
sider the significance of the situation described in the context of the require-ments issued by NRC in the facility license, the technical specifications, and I '
any applicable regulations and orders of the Commission.
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 I threaten the common defense and security. The proposed rule also specifies i that the NRC will consider the common defense and security recommendations-to be made by the Department of Energy (DOE) 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.
I If the NRC makes either of the above determinations in the affirmative, NRC will then consider whether any alternatives to emergency access are available 1
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to the applicant. These include, but are not limited to: (1) storage of LLW q at the site of' generation; (2) storage in a licensed storage facility; I (3) obtaining access to a disposal facility by voluntary agreement; (4) purchas-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 activities that generate the waste. The NRC will consider whether the person requesting emergency access has considered all fac-tors 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 tech-nically or economically beyond the capability of the requestor, because it would result in the cessation or curtailment of essential medical services, or l cannot be implemented in a timely manner. If any alternative is determined by NRC to be reasonable, then the request for emergency access will be denied.
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If NRC determines that emergency access is warranted, NRC will then determine j l which operating non-Federal LLW disposal facility should receive the LLW. A l
1 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 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 this basis alone, 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. 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 warrent emergency access and whether the person making the
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request has been diligent during the period of the initial grant to eliminate the need for emergency access.
In making a determination that temporary emergency access is necessary (Sec- .!
I tion 6(d) of the Act), the staff will have to make the determination that there ;
is a serious and immediate threat to the public health and safety or the common defense and security as otherwise required for emergency access, but would not )
have to consider whether mitigating alternatives exist. !
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l NU1289 COV/TC DRAFT 4/88 1 Requestor's ID:
FINAN j Author's Name: 4 HILL / WOODS j 1
Document Comments:
FINAL 09/29/88 KEEP THIS SHEET WITH CORRECTIONS I
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