ML20246J050
| ML20246J050 | |
| Person / Time | |
|---|---|
| Issue date: | 08/31/1988 |
| From: | Thompson H NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Arlotto G NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-29, NUDOCS 8905160279 | |
| Download: ML20246J050 (29) | |
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,i UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
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i ftEMORANDUM FOR: Guy A. Arlotto, Director /UN6f d&MM Division of Engineering Office of Nuclear Regulatory Research ] 1 FROM: Hugh L. Thompson, Jr., Director
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(,0ffice 3 andof'110cleaF14ateriaT Safeguards 5a- e l
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SUBJECT:
0FFICE CONCURRENCE IN THE FINAL RULE FOR 10 CFR PART 62, l' "CRITEP,IA AND PROCEDURES FOR GRAUTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" NMSS staff have reviewed the rulemaking package that you transmitted to me in your memorandum dated August 5, 1988 and concurs subject to incorporating the changes identified in this memorandum. Since the development of this rulemaking package had been coordinated with the NMSS staff, most of our comments are minor. The only exception to this is the wording on page 39 of the Federal Register Notice in the section entitled " Condition of Termination." The document states that "the operator of the designated site way refuse emergency access waste, etc." This should be changed to say thct only the NRC has the authority to terminate emergency access to a LLW disposal site. Enclosed are minor detailed comments on the rulemaking package. Making these changes in one portion of the rulemaking package may require that additional l changes be made to other sections of the package that NMSS have not identified. It is recommended that when these changes are made, the entire document should be considered to determine if other sections require the same modifications. If you should have any questions on these comments or need additional information, contact Regis Boyle (X-20559) of my staff. y . Hugh L. Thompson, Jr., Director Office of Nuclear Material Safety and Safeguards
Enclosures:
As stated i i ,y l\ /) ZndMh14 ~%- - l 8905160279 090505 MA g PDR PR 62 D2FR47570 PDR i
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r . , m The Commissioners '2
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 furthe'r 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 disposal facilities if access.to those. facilities has been denied and that access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must 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 all information and certifications that NRC requires to mai- its determinations. The Act also provides that only NRC can grant emergency access. TheAgreement/Statesarespecificallypre-cluded from making emergency acdess decisions. X 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 the generators and the States / Compacts should resolve most pro-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 1 Federal involvement as a vehicle of-last resort. In developing the emergency access rule, the staff has tried to be consistent both with tha 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 1 The Commissioners 4 l disposal only for commercially generated LLW classi.fied as A, B, and C, and for'"LLW generated by the Federal government except
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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 00D, or wastes that are classified as greater-than-Class-C,
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should not be allowed.to. receive emergency access' disposal. In developing the proposed rule, NRC staff assumed that it would.. * , be clear that limitations established by the'Act on the LLW eligible 1 for routine LLW disposal would also apply to LLW under consideration l by NRC for emergency access disposal. However, no statement was l made to this effect in the proposed rule. Clarifying language- 1 explaining what LLW will be considered eligible _for emergency j access disposal has been added to the final rule. 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 r o receive emergency access wastes will receive reciprocal access ( _irpesa! "cr the pesca graa+ad amarcancy :ccm which ther ar u nt' Lied to unaer Cne act. Commenters indicated that NRC 4g should require a formal acknowledgement of reciprocal access beforc making an emergency access determination. The staff does e not agree with this position. Under Section 6(f), the Regional Compact or State receiving the g# emergency access waste is entitled to reciprocal access at any Nga subsequent facility that serves the Compact region or State in l
. which the emergency access waste was generated. It further l 7 provides that the Regional Compact or State that receives the i .
4 emergency access waste shall designate, for reciprocal access, 6 # "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access." l NRC staff considered including reciprocal access during the
# 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 grQthe X !
common defense and security, staff believed it would be inappro- l 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.
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i The Commissioners 5 1 lhe NRC staff reconsidered its position on reciprocal access in j light of the comments received on the proposed rule, but made no ' changes to the final rule. l 1
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Three of the'commenters. representing States or Compact Commissions 4 l raised the issue of Compact Commission approval of NRC's emergency i access decisions. They indicated that'the NRC.had been remiss'in , not including a provision'in the proposed rule which would require i the-NRC to seek'approv'al .for its decision to grant emergency ' I access from the Compact Commission of the region in.which the ! designated site is located. Under Section 6(g) of the Act, "any grant cf access under this
.Section shall be submitted to-the Compact Commission for the i region in which the designated disposal facility is located for !
such approval as may be required under the terms of its compact." 1 The interpretation c eferred by some of the' States or Compacts I is that Congress intended for the Compact Commission of the I designated site to have the final say regarding the acceptance of emergency access' wastes. They be',ieve Congress intended the receiving. Compact Commission to b rs 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. l The interpretation of Section 6(g) that is most consistent with l Congressional intent behind emergency access is that 6(g)_does 1 i not provide for State or Compact Commission veto of NRC's'dec1- l l sion. Staff believe that the legislative history for 6(g) is i quite clear on this point. The basic purpose of the Section 6 i l M t LW Temergencyraa!!y access provision be O nr a "
- ris* 'to ensure that Mt2will=be sites which available wou14 in emergency i i 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 i 1 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 i l 1
APPENDIX I Major Provisions of The Proposed and Final Regulations The proposed and final rules address each of the determinations that NRC must . i make and describes how they will be made. l 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-1 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 con-sider the significance of the situation described in the context of the require- I I ments issued by NRC in the facility license, the technical specifications, and any applicable regulations and orders of the Commission. I In making the determination that there is a serious and immediate threat to the common defense and security, the rule provides that NR staff will consider whether the activity generating the LLW is necessary the protection of the l 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 l threaten the common defense and security. The proposed rule also specifies ' l that the NRC will consider the common defense and security recommendations to l l be made by the Department of Energy (DOE) and/or the Department of Defense (00D) 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 dafense and security. 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 l I j l
to the applicant. These include, but are not~ limited to: (1) storage of LLW at the site of generation; (2) storage in a licensed storage facility; (3) obtaining access to a disposal facility by voluntary agreement; (4) purchas-
.ing disposal capecity;'(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-
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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 l 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 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. If NRC deterniines that emergency access is warranted, NRC will then determine which operating non-Federal LLW disposal facility should receive the LLW. A ' facility would be excluded from consideration if (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste 1 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 nade 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 Cominission deems necessary. It is not clear from the legislation what action NRC should take if no site is deemed suitable, and we have specifically requested comments on this potential problem. - > In making the determination regarding a request for an extension of emergency access (Section 6(e) of the Act), the NRC staff will consider whether the circumstances still warrant emergency access and whether the person making the 2 4
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1 l policy statement'on abnormal occurrences, but will.not have to reach a : i determination regarding mitigating alternatives. 1 I Subpart D - Cempliance "ith Cnndit_ inns nf rmorgency Acce;;p l l Termination of Emergency Access i
-Subp3rt n centains the tar,T.s and conditicas ;f ;;ci9 usy access.
Subpart D establishes that the NRC may terminate'a grant of emergency ; l l access if the requestor or his waste do not meet the conditions estab- I lished by NRC pursuant to this Part. It also establishes that the l 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. i l l VII. Rationale for Criteria l l This rule establishes the criteria for making the emergency access I determinations required by the Act. The rationale for these decisions is discussed below: (a) Determination that a Serious and Immediate Threat Exists Establishing the criteria to be used in determining that a serious and immediate threat exists to the public health and safety or the common defense and security is key to NRC's decisions to grant emergency access. Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate l threat." 16
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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 g'nerators of LLW. NRC will expect that generators of LLW falling into either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting access to non-Federal facilities under the emergency access provision.
- The Commission fully intends that the States and Compacts whose c- s = A M generators have been denied access to LLW disposal will ;here ir, the 4 M d--
.respcmibility for identifying and providing alternatives to emergency access. NRC's expectation is that the States and appropriate Compacts, as well as the generator, will each exhaust their options before emer-' ;
gency access will be requested. A request for emergency access is to include a discussion of the consideration given to any alternatives available to the requestor. To NRC, this includes State / Compact options as well as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of 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-tives considered; (3) demonstrate that consideration has been given to 23 l r - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ 1
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[7590-01] 1 h 4 g - AJ L <-- IX. Requests for Emergency Access Made Prior to the I r Effective Date of the Rule The Commission has tried to anticipate when the first request for emergency access might be made so the final rule would be in place before , 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
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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- l The Commission received twenty-one (21) comment letters for the proposed rule. Ten (10) of the comment letters came from concerned 1 1 citizens, six (6) from the governments of potentially affected States, two (2) from low-level waste compacts, two (2) from the industry and one (1) from a nuclear information service. A detailed analysis of each l of the comments was prepared and used to revise the proposed rule. The major comments are discussed here. Copies of the comment letters and the detailed analysis of comments are available for public inspection and copying for a fee at the NRC Public Document Room, 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 improve it from their perspective. Only one commentor, representing a lobbying group, expressed opposition to the issuan'ce 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 l
[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 access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a 1 disposal facility. They stated that reciprocal access is of particular I concern because a receiving Regional Cciapact 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 l l of the rule. I i l l One commentor indicated that even if the NRC did not wish to be i involved in brokering the arrangements, it "must ensure that the right to reciprocal access is recognized and its implications are considerea." l l 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 I should be required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledgement could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the Compact Commission." l The NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, particularly for the States with the operating LLW disposal facilities which will be designated by NRC to receive emergency access waste. Staff considered A &R m ing' K 32 l
l [7590-01] p While the commentors were' correct in noting that the proposed rule did not include a' specific mechanism for implementing the Section 6(g) 1 provision of the Amendments Act,'the NRC's position on this issue was. 1 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: an; NRC grant of access "for such approval as msy be required under the terms of the Compact.8 However, Section 6(g) also requires that the l Compact Commission."shall act to approve emergency access not later than-15 days after receiving notification from the NRC." 2c .trary te whct i
.sesericf the ceamenters believe,]he 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 3 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 l 1
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 l 1 of a Compact shculd 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 J p 4~. ,
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[7590-01] ) 1 l l While disapproval may not be an option under the Act, clearly the Act intend:d the receiving Compact Commission to be fully informed i f regarding the emergency access decision made by the NRC. The Commission. l believes the Notification procedures under 62.22 of the proposed rule l provided the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section 62.22 l
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of the proposed rule provided that the NRC will notify the Compact Commission of the State in which the designated disposal facility is located that emergency access is required. It further provides that "the i notifications must set forth the reasons that emergency access was . l l granted and specifically describe the low-level radioactive waste as to ; 1 ' source, physical and radiological characteristics, and the minimum volume i and duration (not to exceed 180 days) necessary to alleviate the immediate j 1 and serious threat to the public health and safety or the common defense and security. M 4 4 c: - .T ' in nrd_. to furtimr estabiihii ;jc pc;it4cn --or thh is s"a , the NRC l ,. has made a change to the final rule. New language has been added to 7 7 62.22 which states that the Commission will make notification of the f
, . 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 l prescribed by that facility. Other commentors stated that LLWs granted l \ 36 1
[7590-01]
,+ 1 emergency access disposal should not have to pay.any special fees, beyond those specifically mandated by the Act. In both cases the commentors wanted assurances incorporated'into the rule that in making emergency access site designation determinations, the NRC would protect both the health and safety interests and the financial interests of either the disposal facility designated to receive the LLW,'or the person requesting emergency access. In addition, they wanted assurances included in the rule-that the NRC would consider.the fees, taxes, etc. in designating a site to receive any waste granted emergency access.
The NRC's response to these concerns is simple, and is much like the earlier discussion about-the response to comments concerning.which wastes are eligible for emergency access. As previously stated, the Commission ~ believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy 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 designated to receive the wastes by the NRC. Section 6(h) states that "No State shall be required to provide emergency access or reciprocal access to any regional disposal facility within its borders for low-level radioactive waste not meeting criteria established by the license or license agreement of such facility, ...." To assure that the 4RG-* R1 designate site *b4eh is suitably yc matched to the LLW granted emergency access, the NRC included a provision in the proposed rule which stated that a LLW disposal site will be excluded from consideration to receive emergency access waste if the l 37 L i
3 I [7590-01] Conditions of-Termination Four of the commentors suggested the addition of a new section or l l subsection of the rule to address the conditions under which emergency ) I could be terminated. The Commission agrees that terms and conditions j l 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 I i f Conditions of Emerg?ncy Access; Termination of Emergency Access." This ; l ) new Subpart D is discussed under the VI.(D) of the Supplementary Informa-I tion for this rule. It establishes that the operator of the designateg t ! site may refuse emergency access waste if it does not meet the conditions l l 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 1 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 safety? 39
[7590-01) j (3) What are the potential problems with the arrangement proposed I l for making the determination of serious and immediate threat to the I common defense and security?
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(4) What are'the potential difficulties with the proposed approach for designating the receiving site? and i (5) What should the NRC do if no site is found to be suitable for I
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waste requiring emergency access?- Two of the comments specifically addressed this request for comments, offering partial responses to some of the questions. The comments did i p not reveal any new perspectives for the NRC to consider so the final rule ; as not affected by the comments received. l In the proposed rule, the NRC specifically requested comments on the ! initial regulatory flexibility analysis from small businesses, small 1 organizations, and small jurisdictions in order to determine if the final regulations should be modified such that less stringent requirements could be imposed on small entities while still adequately protecting the public health and safety. None of the cooments 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 i 1 was not necessary to change the final rule to accommodate the special needs of small business. i 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 necessary to avert a 40
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I Part 62 - Criteria ~and Procedures for Emergency Access to Nor.-Federal and Regional Low-Level : Waste' Disposal Facilities 1 1
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- 1. A new Part 62 is added to 10 CFR to read as follows: '
i Subpart A - General Provisions Section: 6
2.1 Purpose and Scope
62.2 Definitions. 62.3 Communications. l 1-62.4 -Interpretations. I 62.5 Specific Exemptions. 62h Information Collection Requirements: OMB Approval 7 Subpart B - Request-for a Commission Determination 62.11 Filing and distribution of a determination request . 62.12 Contents of a request for emergency access: General information. 62.13 contents of a request for emergency access: Alternatives. 62.14 Contents of a request for an extension of emergency access. 62.15 Additional information. 62.16 Withdrawal of a determination request. 62.17 Elimination of repetition. 62.18 Denial of access. I i 44
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" Emergency Access" means access to an operating non-Federal _or' l
regional low-level radioactive waste disposal facility or facilities for l 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 1 1
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l facilities. l l " Extension of Emergency Access" means'an extension of the access that had been previously granted by NRC to an operating non-Federal or ) i regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
" Low-Level Radioactive Waste" (LLW) means radioactive material that ,
(a) is not'high-level radioactive waste, spent nuclear fuel, or byproduct material (as defined in Section IIe(2) of the Atomic Energy Act of 1954 [U.S.C. 2014(e)(2)]; and (b) the NRC, consistent with existing law and in
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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.
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" 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 unoer a Compact. ;
" Person" means any individual, corporation, partnership, firm, j 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 l
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1 e , [7590-01) , l regulations in~ this part that it determi: es is. authorized by law and will not~ enda'nger life or property or.the common defense and security and is otherwise in the public interest.
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$ 62.I Information collection requirements: OMB Approval.
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4@ The Nuclear Regulatory Commission has' submitted the information. [ collection requirements contained in this part to the Office of Manage-ment and Budget (OMB) for approval as required by the Paperwork Reduction-- Act of 1980 (44 U.S.C. 3501 et seq.). OMB has approved the information collection requirements contained in this part under control number 3150-0143. Subpart B--Request for a Commission Determination j l 6 62.11 Filing and distribution of a determination request. (a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of the request with the Commission at the address specified in S 62.3, with a copy also provided i to the appropriate Regional Administrator at the address specified in Appendix 0 to Part 20 of this chapter. The request must be signed by the person requesting the determination or the person's authorized 1 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
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, [7590-01]- j Subpart D--C...+Mer.c. W; ui Cond; L;un. v t m igein. , l,ccc; ;
- Termination of Emergency Access li 62.31 Termination of Emergency Access (a) ~ The Comission may terminate a grant of emergency access when emergency access is'no longer necessary to eliminate an immediate threat
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to public health and~ safety or the common defense and security.
- (b) The Commission may terminate ~a grant of emergency access if an applicant has provided inaccurate information in its application for -'
3 emergency access or if the a.pplicant has-failed to comply with this Part or any conditions set by th Commission pursuant to this Part. Deted at Rockville MD, this day of , 1988. For the Nuclear. Regulatory Commission. Samuel J. Chilk, Secretary of the Commission. Y V". L ,, W _~ ),'% A Y 7
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# # F p**e w, Part 62 Comment Analysis
. Responses to Individual Comments:
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- 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 over' sight act' ions.
We are.not in opposition to the proposal. RESPONSE: No response necessary. Comment 1.2
- 2. The proposed rules (e.g., 562.26) should include a small subsection stating "...the der.ignation of a disposal facility pursuant to 662.21 shall not preclude the implementation of any specific conditions, regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Commission's deter-mination to grant emergency access..."
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- RESPONSE: The Commission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for l LLW disposal under the terms of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act) and which would meet all the general ;
requirements and regulations of the disposal facility designated by NRC l to receive the wastes. To assure that.CC wiP dae4;aMe a site J M suitably matched to the LLW granted emergency access,' NRC included a provision in the proposed rule which states that a LLW disposal site i will be excluded from consideration to receive emergency access waste if l the waste does not meet the criteria established by the license for the I facility [62.26(b)(1)]. The license incorporates the regulations and requirements that affect each particular facility. Taken with the other information in 62.26 l
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' routine LLW' disposal responsibility under the Act. Section 3(a)(1)(A)
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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'. - NenotconsideredbyNRCtobeeligibleforemergencyaccess' disposal.
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i To help clarify this point, NRC has added an explanation of the scope of' the LLW eligible for emergency access to Section 62.1 of the rule. (See
.also' discussion ~in the responses to Comments 2.1 and 5.6.)
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Comment 2.3
- 3. If States choose to " store" rather than.to affect to " dispose" of waste, P ,
the'NRC shall not force waste to go to those sites. i 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 radioactive waste. Facilities developed by States to store'LLW would l 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 disposal to the Definitions Section in the final rule. (See also the responses to Comments 3.3, 8.5, and 10.6.) k 1
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Comment 5.9. S62.12 Add a new~ subsection (c) as follows: Sc) That the material for which emergency access is requested is
' low-level radioactive wasteas 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. l 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 requested is ' low-1evel radioactive waste' within Section 62.1(c) of-this Part. The subsections following the new subsection (c) have been redesignated as appropriate.
Comment 5.10 662.12(f)(3) should be modified as follows:
"(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and' safety,.or the common defense and security."
l l RESPONSE: In the preposed rule, NRC used " alleviate" rather than ~i l " eliminate," which is used in the Act. The recommended change has been made to the final rule. (See also Comment 5.8)
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Comment 5.'11 ) i S62.12 Add a new S62.12(k) as follows:
"(k) A description of how granting emergency access would eliminate an i 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) l routine LLW disposal has been denied to the generator of an LLW; (2) he is able te tiemonstrate to NRC that disposal at an LLW disposal site is i necessary because of a serious and immediate threat to the public health ; and safety or the common defense and security; and (3)-4&at. the threat ( ,
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, 26 emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part." The proposed rule does not address termination of emergency access. Further-more, under the rule as proposed it is not clear that a state or compact could refuse to dispose of waste granted emergency access even if the applicant or the wastes did not meet the conditions of disposal set by the Commission. RESPONSE: The Commission agrees that terms and conditions should be established in the 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, b 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 67[6is included in the Part 62 only to acknowledge the Commission's overriding mandate to protect the public health and safety and the common defense
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l and security and to provide the flexibility it may require in dealing -) jthemergencyaccessdecisionstomeetthatmandate. Provision 62.)iff remains unchanged in the final rule. I l I
.i Comment 5.24. -
$62.11 Filing and Distribution of Determination Request It is provided in subsection'(b) that a copy of.each request for emergency l
access will'be made' available for inspection in the Commission's Public Document Room and in the " Local Public Document Room of the facility sub-mitting the request." A request for emergency access could be submitted by any Governor 'or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public document rooms? ] l 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 Agreement State licensed facility. Provision 62.11 was included in the proposed rule in order to assure that documents relating to emergency access decisions would be made available, through the NRC's LPDR's as conveniently as . possible, to concerned members of the public. " Comment 5.25
$62.23 Determination of Granting Temporary Emergency Access This section provides for the granting af temporary emergency access to
...an appropriate non-federal disposal facility or facilities..." The provisions in Section 6(d) of the Amendments Act which pertain to temporary emergency access do not distinguish between non-federal disposal facilities-and regional disposal facilities. Does the NRC propose to limit temporary emergency access to non-federal facilities in order to avoid the provisions of Section 6(g) of the Amendments Act, pertaining to approval by a Compact Commission?
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31 - provision should not force unplanned quantities or kinds of wastes on the
'stateswith operating LLW disposal facilities and should not create financial problems either.
vD X RESPONSE: The Act sets upper limits on the m=%r Of c;.:.ft. of .LLW.that, is .aee to be accepted by each facility through 1992. The amount of.LLW' ! granted emergency access is to fall within those limits. In addition, as discussed in more detail in Comment 1.2, waste granted emergency access will have to meet all.the requirements and conditions for routine-LLW disposal established by the-facility designated, including the l payment of appropriate fees, taxes, surcharges, etc. Comment 7.3 l States are also very worried about having to take D0D and DOE wastes. l RESPONSE: See responses to Comments 2.1 and 5.6.
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Comment 7.4 Also many compacts are not planning on large amounts of Class C wastes. ! RESPONSE: See responses to Comments 2.2 and 5.6. ; Comment 7.5 All the above and more make this rule very premature and ill-conceived. Please retract this rule for good and abundant cause. Let the non-Federal and the Regional authorities regulate their own access. This is an area which the Federal authority and the NRC should not get into. RESPONSE: NRC did not propose the emergency access rule without due cause. As is explained in the supplementary information for the proposed rule, NRC is required by law (Section 6 of the Act) to make emergency access determinations.
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. B.10 Comment Letter #10 -- Anne Rabe, Executive Director NewYork-
_, Environmental In'stitute (Lobby Group) i Comment 10.1 We are writing in regard to 10 CFR 62, 52FR240i47578 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 i RESPONSE: See the responses to Comments 7.1 and 9.3. l l Comment 10.2
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New York State law (the Low-Level Radioactive Waste Management Act of 1986) j l 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- 4 active waste facility for certain DOE wastes (such as U-238 and U-235 at the former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ-mental Conservation disapproved this request and the subsequent. law upheld the state's policy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wastes. RESPONSE: None necessary. , 1 1 I I Comment 10.3 To accept out-of-state wastes goes against the basic premise of the however 3 inadequate Federal Low-Level Radioactive Waste Policy Act which supports W ' compacting and state's rights. The NRC is directly threatening the state's j authority to exclude wastes. 4 I i
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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 3 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 1 responsibility for disposal of specific classes and types of LLW. Some of that waste is generated by the Federal government, but because.that q fact is all laid out in the Act, the States should be well aware of what 'l
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" Federal government" LLW's they will or won't have to take. There are
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federally operated LLW disposal facilities and in an emergency involving ~ _ LLW's that are the Federal government's disposal responsibility, NRC anticipates that the Federal facilities would be available to provide necessary disposal for wastes that are not the State's responsibility. Comment 10.8 4 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 l access rule came directly from Congressional mandates in Section 6 of the Act, so the requirements for NRC to make emergency access determinationswouldremainevenifNRCweretowithdrawtherule.(As far as establishing a comprehensive storage and reduction of production program for federal waites is concerned, such programs and related I decisionsarenotamongNRC' responsibilities.)
46- - notified when emergency' access is requested and should have some. I _opy,ortunity 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 j to the affected or potentially affected Compact Commissions. NRC
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believes that the majority of interested or concerned parties will be reached through these arrangements. h m p=p w -l* M 8 13. Y, h7 ;& f* l 1 W p Comment 13.4 Section 62.12(f)(2)(iv) - Why s1ould infinitely long-livert transuranic be , ! included in the category of low level waste? l 1 l p RESPONSE: Section 62.12 se t e information required by NRC in p/, order to decide whether or not gency access.should be granted. The
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l presence of transuranic i he waste ould affect the Commission's i decision. (r b go Comment 13.5 l Section 62.23 - Before granting temporary emergency access, why not allcw a 10 day waiting' period, so possible alternatives may be considered? We feel this provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration. RESPONSE: The sequence of events for granting temporary emergency access is established ia the Act. Section 6(d) of the Act provides that "upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the common defense and security, the NRC may, at its discretion, grant
v 47 : temporary emergency. access, pending its determination whether the threat-
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_cQuid 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 protect-the public health and safety or the common defense and security; !
.NRC can grant a request for temporary emergency. access for no more than ' ;
45 days, while possible alternatives to disposal are evaluated. NRC does not have to grant requests for temporary emergency access, , particularly if a request is made because.a generator failed to plan for. j obvious or routine disposal needs. NRC will always have the option of denying emergency access or encouraging a requestor to cease generating-such waste. i 1 Comment 13.6 Section 62.24(b) - ha: 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 stop' radiation from escaping. M 1 Response: Noted, ! l
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