ML20246J362
| ML20246J362 | |
| Person / Time | |
|---|---|
| Issue date: | 08/22/1988 |
| From: | Mcdonald W NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| To: | Arlotto G NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-30, NUDOCS 8905170058 | |
| Download: ML20246J362 (81) | |
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Ta f ag/PC WASHINGTON, D, C. 205G5 . k~,...p#w[py/g' iM MeV toc, C Me" August 22, 1988 M (P- w r Oc s/) wen A d .labte0y MEMORANDUM FOR:. e%- Guy A. Arlotto, Director 9- vc:CL.
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fo n ep# k' Division of Engineering Office of Nuclear Regulatory Research eQ, FROM: William G. Mcdonald, Director Office of Administration and Resources Management
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SUBJECT:
OFFICE CONCURRENCE: FINAL RULE FOR Ag 10@CFR PART 62, " CRITERIA-AND PROCEDURES FOR GRANTING -
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EMERGENCY ACCESS T0 h0N-FEDERAL AND REGIONAL / l LOW-LEVEL WASTE DISPOSAL FACILITIES" *[ 9/p The Office of Administration and Resources Management has reviewed'the final
'rulemaking package that sets.out the new 10 CFR Part 62, " Criteria and i Procedures for Granting Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities." We concur in the rule, the Consnission paper, and your transmittal memorandum to Victor Stello, sub, ject to the modifications contained in the marked copy, which present several editorial and format corrections (Enclosure). These changes should be made before the rule is
. submitted to the Consnission for approval.
Section 62.11 (b) on page 50 of the rule provides that the request for a determination to provide emergency access be placed in a local public document room (LPDR). This provision should be eliminated because the NRC does not maintain LPDRs for material licenses. The low-level waste sites will probably be licensed by Agreement States. NRC does not maintain LPDRs for sites licensed by Agreement States. As we indicated in our last review, this rule does not include a backfit statement. A backfit statement has routinely been included in proposed and final rules since the Commission adopted its backfit requirements in September 1985. You should check with OGC to determine whether a backfit statement is l necessary and, if required, the appropriate language for such a statement. For your information, a copy of this rule has been sent to the Records and Reports Management Branch ARM, for their review of the information collection requirements and the paperwork statement. 1 [ (1 J A0(.sr. M 22~k) g51g050090505 62 52FR47578 PDR
August :22, --1988l. .
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Should you have any questions regarding our comments, please. have a' member' of your staff contact Juanita Beeson, Chief, Rules Review and Editorial Section
-(28926). or Alzonia Shepard (27651).
.)
1111am G. Mcdonald,' Director .. Office'of Administration and Resources-Management
Enclosure:
- Final Rule Package l .for 10 CFR Part 62-l l
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1
#p* H%q#o UNITED STATES l
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8" n NUCLEAR REGULATORY COMMISSION d f W ASHINGTON, D, C. 20555 l
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MEMORANDUM FOR: Victor Stello, Jr. Executive Director for Operations FROM: Eric S. Beckjord, Director 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 ! 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 Policy Amendments Act of 1985 (the Act).
.J[e .
In developing this rule,(staff tried_to_be,,coqsistent with both the actual text of Section 6 of the Act and the(Congr.es sioMT/ intent expressed by Congress in the legislative history. The rule sets gency access, places the burden of demo nstrating%.rict the requirements for granting need for emergency access emer-on the party requesting eme gency access, and should encourage potential requestors to seek other means fe' resolving the problems created by lack of access to LLW disposal facilities. p,o e cf Jt Although t the Act did notjrequire NRC to develop a rule to carry out its -Sec - y tion-6 responsibilities,; staff recommended using rulemaking in order to mini-C mize po',ential 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 issued _iFDecember 15,19874and the formal public comment period ended on Febru,ary 12, 1988. Twenty-one commenter es onded. Responses were received-f-rom--.tfie , joy 4rnments of six states, from wo low-level waste Compact Commissions, ten Aflo3) concerned citizens and members of environmental groups, two (froN industry, A and one(fEFm7a; nuclear information service. y-- g for the most language and part,jstaff some new has text responded to the comments by adding clarifyingg;g i to the final rule. Evenwiththesechangesfthe final rule, the critical components--the procedures and the criteria to be used in making emergency access decisions, remain essentially unchanged from - i the proposed rule to the final. uThe_most significant comments are-discussed- vfl R
' bel ovt - 37 y n ,ju ,
t 6 l 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 l
4 Victor Stello, Jr. 2 [ kl ]hfe,% { c{ N& a h k UI U h edh & O!hiq, to accep,t, abov.e-Class-C asted federally generated wastes, particularly those 4 from(DO Fandf00fg 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 added 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 l shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency { access." 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 l 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 coricern for the responding States and Compacts is whether theCompactCommissionwWchisdesignatedtoreceiveemergencyaccesswaste 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 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 .clarifi,cationchas
'been-added-toge finag 6d % "> d 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 70f LLW. Staff have added clarifying statements to the final l rule stressing that, except as otherwise indicated by the Act, the same fees and requirements apply to emergency access wastes as to routine LLW.
s 'r Staff believe NRC should have this rule in place by the time a request for g~.e 1 cincrgency access might be received which could be any time af ter January _1,_ F 1989, the next date that access may be denied under the Act. This(U5uld result from a State's failure to develop a siting plan for its LLW disposal facility. _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ _ _ . _-. .____________-_____-_____A
Victor Stello, Jr. 3 E t) Based on the January 1, 198 milestone we have scheduled -to issu[the final ~ rule $Wthefallof1988. mmediate Commission attention to this issue is.. r - "esw "efissary,tg_meeLthis_ schedule. 4 .,jl.v g 37~] -'-} {~{e;,~{,,,,,~sjy~ -j
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qflhe final ruleg a d een concurred % b NMSS,' ARM,/NRR,) and SLIT {g,j 0GC h ~ reviewed the rule and has stated that it has E6~'le~g'al 'olijE6ffori,5-A 4 og Eric S. Beckjord, Director Office of Nuclear Regulatory Research
Enclosure:
As stated 1 i l 9
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Lo.nu us) O d X s th O j
;p 3v NUCLEAR REGULATORY COMMISSION j y
yga{J 10 CFR PART 62 q Ndkf$
$ $- k a Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal. Facilities .
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. AGENCY: Nuclear Regulatory Commission.
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4 ACTION: Final fRule. q Odj$ ' 4v !
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SUMMARY
- The Nuclear Regulatory Commission (NRC) is issuing (J) rule.to
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[f establish [ procedures ndlcriteria[forfulfilling.itsresponsibilities 4 associated with acting tn requests by low-level radioactive waste TtLW) c -
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generators, or State officials on behalf of those generators, for emergency access to operating, non-Federal or regional, low-level radioactive waste disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. Grants of emergency access may be necessary if a generator of low-level radioactive. waste is deniedaccesstooperatinglow-}evelradioactivewastedisposal 44u 1 facilitiesfand the lack of access 4 results in a serious and immediate -{ l threat to the public health and safety or the common defehse and f 1 l security.
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l l EFFECTIVE DATE: (30 days after publication) i ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be examined at the NRC Public Document Room, l 1717 H Street NW., Washington, DC 20555. 1 . ENCLOSURE A
- t. _. ._ _ _ _ _ _ _ _
[7590-01] FOR FURTHER INFORMATI0N' CONTACT: Janet Lambert, Division of Engineering, Office of Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555,. telephone (301) 492-3857. 1 SUPPLEMENTARY INFORMATION:
- I. Introduction and Background 1 II. Legislative Requirements III. Legislative History IV. NRC Approach V. Assumptions-VI. The Final Rule .
)
VII. Rationale for Criteria VIII. Terms and Conditions for Emergency Access Disposal 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 XII. Paperwork. Reduction Act Statement XIII. Regulatory Analysis XIV. Elexibilit ' RegulatoryMaIp1L)
% 7i;TTM y Certification /
7LisEbflu6jdts in-10-GFR Pert GA / pb i I. Introduction and. Background 9 On December 15, 1987, NRCpublishedAaproposednewPartlt/10 j i in order to implement its emergency access responsibilities under Sec-tion 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 2 _-__.____._.______._______m._m ...____.m.___ _ _ _ _ _
.[7590-01],
s (PL 99-240, January 15, 1986), "the-Act." -The proposed Part 62 se ,forth j the{pr6e~edEFes and g i[that the Commission intended to use to deter-i mine if emergency accp to non-Federal and regional low-level waste ,
- (LLW) disposal facili ' .Jshould be granted. The public comment period for
~ o]
The .NRC received twenty-the proposed rule expired on' ebruary ,12,1988. )
- one (21) comment letter , In,Qh the-comment-letters-came-fro u r: .
concerned citizens d. environmental- groups, sixjfr77{ State go rn - 9_ .. ' ments, t 2 k romfLLW compa'ct Commissions, two J2)indust h- and i one(from' ' ~~' anuclear'informationservice. l The Act directs-the States to develop their'own LLW disposal facil- l ities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new facilities will be available by ! I January 1,1993. i The Act establishes procedures and milestones for the selection and nf development ofithelLLW disposal facilities. The Act also establishes a q system of incentives for meeting the mi[ stones, and penalties for fail-ed ing to meet them, which'is' intended to essure steady progress toward new ] facility development. The major ince offered by the Act is that the' States and ! y , regional Compacts th meet the milestones will be allowed to continue 1 to use the existin disposal facilities until their own facilities are ! d3 H, ku available,g no la r 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-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. l l 3 I C____________ _ _ _ _ _ - - _ - - - - - - - -
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' Sectio (6 of' the Act provides that the Nuclear Regulatory Commission ,
ddii m .1/ b r / . !
-(NRC) can grant a generator " emergency access" to non-Federal or regional A
low-level radioactive waste (LLW) disposal' faci?ities if access tolthose I J facilities has been denied and access is necessary in order to eliminate i an immediate and serious' threat to the public. health and safety or'the f$C common defense and security. .The Act also requires that-e determination V e j te7nadert 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 q
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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.
I I.. Legislative Requirements i 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 circumetc..sces warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access. to- > their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine whether emergency access , will be granted and to designate the receiving facility. I 4
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1 R l The Act provides that.NRC can grant smergency acc2ss for a. period-
- not to exceed' 380 days per request. - To ensure that' emergency access is -
1 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 '.;an -
-be approved only if the.LLW generator'who was' originally granted ener- .
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]
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. gencyiaccess and the. Sta e in which the LLW was: generated have diligent 1p
. though'unsuccessfullgactesduringthe'periodoftheinitialgrantto' eliminate.the nee'd f6r emergency access. ,
j The Act also provides that requests for emergency access shall contain all information and certifications that NRC requires to make its
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j determination.. t
" Temporary emergency access". to nonHFideral~'orl regional LLW disposal-facilities may be granted at the Commission's discretion because of'a l j
serious and immediate threat to the public health and safety or;the-common defense and security nding a Commission determination as to whether the threat could be mitigated by suitable. alternatives, The l l grant of temporary emergency access expires 45 days after it-is granted. j Although the Act does not' require NRC to develop a rule to carry out
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its Section 6 responsibilities, NRC is issuing this rule to establish l iteri h that will be used in making the required thefceduresand determinations for emergency access.. Since the requisite condition that l must be met in order for a requestor to be eligible for emergency access ; consideration is that the requestor has already been. denied access to ! i I 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 sit'ed States' M o Compacts' expressed desire not to accept waste from that particular State or I 1 i 5 , s_--__-__--______--__----- __,..1.-.= _
[7590-01] generator. Although Congress provided NRC the statutory responsibility
.for implementing Sect 6 of the Act and gave'the Commission authority.
to decide whether Access will be provided, emergency acc ci-Q d Dabably v , - - - - - sions are-4fkely-to be controversial. By'settingoutthe\proceduresand NNil for making emergency access decisions in a rule ef cts public comment, NRC intends to add predictability to the decisionmaking process and to help ensure that the NRC will be able to'make its.deci -
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I 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 successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity. The legislative history indicates that Congress believed that with the various management options available to LLW generato including, for example, storage or ceasing to generate the waste, instances where there was no alternative to emergency access.would be unlikely. Congress expected that responsible action from the generators and the States / Compacts should resolve most access problemss 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 6
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[7590-011 expressed by Congress regarding decisions made pursuant to Section 6.
'The rule sets strict requirements'for. granting' emergency access and l should serve to encourage potential- requesters to ' seek other means for.
resolving the problems created by denial of access to LLW disposal facil-ities. The' rule places the burden on the party requesting emergency access to demonstrate that the criteria ~in the rule have been met and' emergency' access is'needed. Applicants for emergency access will have. to provide clear and convincing evidence that they have exhausted all; other options for managing their' waste. By establishing strict require-ments for approving requests for emergency access, NRC intends to rein-I 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-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 Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-ll tion" from the NRC. The purpose of this provision is to--
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terits 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 i
Section 6(h) of the Act have not been exceeded. 7
i 1 i i [7590-011 l However, it is clear from the legislative history of the Act that ' ' Section 6(g) should not be construed as providing the Compact Commission-
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i with a veto over the NRC's grant of emergency access. The basic purpose l 1 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 j situations. A Compact Coamission veto would frustrate the purpose of the 3 emergency access provision and would be generally contrary to the.legis- 1 1 lative framework established in the Act. As emphasized in the House ) J 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 In deve ing this rule, the HRC's approach was to:
- 1. MsurethatalloftheprincipalprovisionsofSection6ofthe Act are addressed in the regulation. i
- 2. identify the information and certifications that will have to >
be submitted with any request for emergency access in order for NRC to j make the necjr1(sary determinations.
- 3. Iassure that the procedures and criteria that are established in 10 CFR Part 62 can be implemented within 45 days after NRC receives a L request as specified in the Act.
4. establish p ocedures and criteria for designating a site to receive the waste w i are fair and equitable and are consistent 8
l [7590-011 i l j with the other provisions of the Act, including the limits on the amount of waste that can be disposed of at each operating f6cility, i
- 5. establish requirements for granting emergency access that are stringent enough to discourage the unsited States and regions from view- ,
ing 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 j to protect the pitblic health and safety or the common defense and l i security. V. Assumptions l NRC made several assumptions in developing this rule. NRC assumed that the wastes requiring disposal under the emergency
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access provision will be the result of unusual circumstances. The nature of routine LLW management is such that it is difficult to conceive of situations where denial of access to disposal would create a serious and immediate threat to t public health and safety or the national secu-rity. In most casej generators should be able to safely store routinely - generated LLW or employ other options for managing the waste without l requiring emergency access. Thus, if all the LLW generators in a State i were denied access to LLW disposal facilities, NRC would not expect to ' receive a blanket request for emergency access for all of the LLW generated in that State, or for all of the LLk' generated by a particular kind of generator since the need for emergency access would be different in each case. 4 NRC has also aspdmed that requests for emergency access will not be made for wastes)k e would otherwise qualify for disposal by the i 9 l
[7590-01) Department of Energy (DOE) under the unusual volumes provision of the Act [Section 5(c)(5)). This means.that NRC does not intend to consider requests for emergency access for wastes generated.by commercial nuclear power stations as a result of unusual or unexpected operating, main-4 tenance, repair [safetyactivities. Section 5(c)(5) of the Act
- O p p.n ." ygg specifically sets aside 800,000 cu ft of disposal capacity above the regular reactor allocations through 1992 to be used for those wastes.
i With this space reserved for wastes qualifying for the " unusual volumes l allocation," NRC believes emergency access should be reserved for other LLW, until the 800,000 cu ft allocation is exceeded. NRC considered basing its decisions for granting emergency access solely on quantitative criteria, but decided against that approach. While NRC has identified some of the wastes and the scenaries which would create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated. Largely because of the uncertainty
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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 le contains a combination of qualitative and quantitative criteria ith generic applicability. NRC believes this combination provides NRC Nximum flexibility in considering requests for emergency access on a case-by-case basis. VI. The Final Rule 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. 10 L____-_- _-_ _ _ _ _ _ _
[7590-01] j l I I Subpart A - General Provisions i Subpart A contains the purpose and scope of the rule, definitions, I instructions for communications with the Commission., and provisions relating to interpretations of the rule. Subpart A states that the rule j applies to all persons as defined by this regulation who heive been denied access to existing commercial LLW disposal facilities and who submit a j request to the Commission for an emergency access determination under
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Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. Subpart A also emphasizes that the emergency access rule applies only to those subclasses of LLW for which the States have disposal responsibility under Section 3(1)(a) of the Act. ! l 1 Subpart B - Request for a Commission Determination Subpart B specifies the information that must be submitted and the l procedures that must be followed by a person seeking a Commission deter-mination on emergency access. 1 Specifically, Subpart B requires the submission of information i on the need for access to LLW disposal sites, the quantity and type of j 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-Fyderal disposal facility or facilities should
/ -{n provide the(d g al/ require .
11 l
L7590-01]- N [,/ ki. In addition theabovjeSubpart B'also' sets forth' procedures for [ the filing and distribution f a requestifor a Commiss g determination. 4 PY It provides for publ $-intheFederal-P.coister otice of receipt of a request for emergency access-to inf s, y the public that gy (w
'c -
Commission' action on the request is pending. tthoughcommentisnot.')f(
- required by the Act or the Administrative Procedure Act,:Subpart B a
provides for-a 10-day public comment period on the request for emergency : ' access. 4
'In the: event that the case for requesting emergency access is to be based totally or in part on the threat posed to the common defense and L!
I security, Subpart B requires that a statement of' support from the. ; Department of. Energy (DOE) or the Department'of Defense (D0D) (as appro-
-priate) be submitted as part'of the initial request for emergency access.
If the request is based entirely on common defense and. security concerns, NRC will not proceed with the emergency access evaluation until the statement of support is submitted. Subpart C - Issuance of a Commission Determination i For the NRC to grant emergency access, the Commission must first 1 e l conclude that there is a serious and immediate threat to the public l I health and safety or the common defense and security, and second that i 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
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.l for granting temporary emergency access; establishes the criteria and f
standards to be used by the Commission in making those determinations; l
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and specifies the procedures to be followed in issuing them. I i 12 I Q-.________._____.-. - _ _ _ - - . - - _ _- _-
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. . i Subpart C prsvides .that NRC, in makir.g 0,e determinat on-that there is a serious and immediate threat to the public health and safety, will consider: (1) the nature and extent of the radiation. hazard that would result fcom the denial of access including consideration of the standa-ds; for radiation protection contained in 10 CFR Part 20, any ' standards governing the release of radioactive materials to the general environment i 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 activiths will be disrupted by the-denial of emergency access. /.
Inmakhgdhe determin t there is a serious and immediate threat to the common defense and security, Subpart C provides that the, Commission will c sider whether the activity generating the LLW is neces-sary to @ h otect6on e common defense and security.and whether the lack of access to a disposal' site would result in a significant disrup- j 1 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 i the request for emergency access. Under Sutoart 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
[7590-01) 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 i economically beyoAd the capability of the requestor, or because the alternative could not be implemented in a timely manner. l Of particular concern to' Congress was the possibility that ceasing the activity responsible:for generating the waste could lead to the
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cessation or curtailment of essential medical services. Section 62.25. t of the rule provides that the Commission will consider the' impact on l l 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. 1 According to the procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an i alternative is determined by NRC to be reasonable, then the request for emergency access will be denied. 14
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If the'Commissisn determines that'there is a serious cnd immediate {
' threat to the public health and safety or the com'on defense and security i which cannot be mitigated by any alternative, then the Commission will ;
I decide which operating'non-Federal LLW disposal facility should receive I 1 the_LLW approved for emergency access disposal. Subpart C sets out that in designat^ng a disposal facility or-facilities to provide emergency. access disposal, the Commission will. first' consider whether a facility should be excluded from consideration because: (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the' volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for dis . posal 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, radiological effects, site capability for handling the waste, volume of emergency access waste previously accepted at each site, and any other information the Commission deems necessary. In making a determination regarding a request for an extension of emergency access, Subpart C provides that the Commission will consider 1 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. i In making a determination that temporary emer,gency 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 I 15 I
f: [7590-01) policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives. Subpart D - Compliance With Conditions of: Emergency Access; Termination of Emergency Access
~
Subpart D contains the terms and conditions of emergency access. SubpartDestablishesthatthsNRCmayjtrminateagrantofemergency
$$Q 0VI accessiftherequestoroh4Mwastedo.notmeettheconditionsestab~ "
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. VII. Rationale for Criteria . This rule establishes the criteria for making the emergency. access determinations required by the Act. The rationale for these decisions is discussed below: ' (a) Determination that a Serious and Immediate Threat Exists; j Establishing the criteria to be used in determining that a serious and immediate threat exists to the public health and safety or the common 4 defense and security is key to NRC's decisions to grant emergency access. Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate threat." 16
[7590-01] i (1) To the Public health and safety-- The criteria in this rule for determining whether a serious and immediate threat to the public health and safety exists, address three situations. Section 62.25(b)(i) addresses the situation where the lack of access would result in a radiation hazard at the facility that is generating the LLW. Section 62.25(b)(ii) addresses the situation where the threat to public health and safety would result from disruption of the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary emergency access. The criteria used in this rule for determining whether a serious and immediate threat to the public health and safety exists is qualita-tive in nature in order to provide the Commission with the flexibility necessary to consider a wide range of potential factual situations. How-ever, in making this qualitative determination, the criteria require the Commission to consider several existing quantitative standards. These consist of the Commission's standards for radiation protection in 10 CFR Part 20, any standards on the release of radioactive materials to the generalenvfronmentthatareapplicabletothefacilitythatgenerated LLWI / the low-levePyaste, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emer-gency access request. TM4 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 _ _ _ _ _ _ . _ . _ _ _ _ _ _ , _ _ . _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -^ ' - ~ - - - -
its antirety, i.e. the. threat.to. public health and safety and'.the alter-natives to emergency, access that may be available to' mitigate that-threat. In other words', in. determining what constitutes' a' serious and immediate threat to public health and safety,-the Commission must con-sider what threat would be unacceptable assuming that'no alternatives are available. In the Commission's judgment,'any situation'that would result' in exceeding the occupational dose limits or' basic limits of . Lpublic exposure upon which certain requirements in 10 CFR Part 20 are: founded would be an unacceptable l 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 immediately to prevent or mitigate any threat to the public health and I safety, including shutting down the facility. However, there may be i i circumstances where a potential safety problem would still exist, after i the facility was shut down or the activity stopped, if the low level l waste could not be disposed of because of denial of access. In this L 18
[7590-01) i situation, emergency access may be needed. The Commission would empha-l 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- I tor's facility from the lack of access to a disposal facility, and - second, if such a situation does exist,-the Commission will move imme-' ; diately to eliminate the threat. If the Commission does receive a request for emergency access based j on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the l Commission's generic or facility-specific radiation protection standards, 1 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 l 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 l 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 l under Section 62.23, the Commission will consider the criteria and i (<,cu scua O!runnjN)P]i examples contained in the Commission's Policy StatementA fur determining ' i 19
. 1 L___ -. . _ _ _ _.
[7590-01] whether an event at a facility or activity lice 1 sed or otherw!se regu -
-lated by the Commission is an abnormal occurrence within the purview of
/
Section 20 f the Energy Reorganization Act of 1974. -(45-FF10950M February-247-1977 S This provision requires the Commission to keep Congress and the public informed of unscheduled incidents or events which t ommimtm-considers significant from the standpoint of public ' health and safety. Under the criteria established in the Commission's l policy statement, an event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and safety. Such an event could include-- i
- a. Moderate exposure to, or release of, radioactive material;
- b. Major degradation of safety related equipment; or
- c. Major deficiencies in design, construction, use of, or ,
management controls for licensed facilities or activities. 'I' In deciding whether to grant temporary emergency access, the l
-)
Commission will evaluate whether the emergency access situation falls I within the criteria in the Commission's policy statement on abnormal occurrences. (2) To the common defense and security-- Although NRC is required by the Act to determine that there is I either a serious and immediate threat "to the public health and safety,'! or to "the common defense and security " realistically NRC cannot make the latter judgement without some information from D0D and DOE which will assist NRC'in identifying those situaticns 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
^1
[7590-01] 1 A has the Congressional mandate for this determination, staff believes it necessary to consider D0D and DOE information as part of the decision-t making process. ' NRC considered several approaches for involving 000 and DOE in the process of' determining whether requests fcr emergency access should be 1 granted on the basis of a serious and.immediate threat to the common defense and security. NRC'has concluded that the best way to provide
~
such interaction is to require that requests filed with NRC$for emergency l l 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 i not granted. The necessary certification in the form of a statement of. ' 1 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 j l petition. Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the deter-mination with D0D or DOE. So while the Commission intends to give the i D0D and DOE certifications and recommendations full consideration in evaluating requests for emergency access, the Commission will not treat them as conclusive. (b) Determination on Mitigating Alternatives, A 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
[7590-01] consistent with the public health'and safety. Reques' tors for emergency access are required to demonstrate that they have explored the alterna-tives available and that the only course of action remeining 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 I disposal capacity available for assignment pursuant to Section 5(c) of the Act, and (4) ceasing the activities that generate the LLW. j While 6(c)(1)(B) of the Act sets these out as possible alternatives l which a generator must consider before requesting emergency access, NRC l l has identified other possible alternatives to emergency access which j should be considered, as appropriate, in any requests for emergency { l access. These additional alternatives are discussed below. Section 5(c)(5) of the Act, " Unusual Volumes,".provides owners and i I operators of commercial nuclear reactors with special access to disposal l 1 i l in the event that unusual or unexpected operating, maintenance, repair or safety activities produce cuantities of waste which cannot be other- I l wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access provision was to apply to the Section 5(c)(5) wastes unless the capacity required for disposals under the unusual volume provision would exceed the 800,000 cubic feet allocated for those purposes. Thus. NRC has taken the 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
[7590-01)! ] I I u 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. I Another alternative applies only to Federal or defense related generators of LLW. NRC will expect that generators of LLW falling into either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting access to non-Federal facilities under the emergency access provision. The Commission fully intends that the States and Compacts-.whose 1 generators have been denied access to LLW disposal will share in the responsibility 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-l 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 ", ate / 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 l detailed information from the requestor regarding the decision process l l 1eading 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 l l 23 ! l 1 L _ _ _-__- _ - - _ _ - _ - - . ._
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[7590-01) i combining alternatives in some way or in some sequence either to avoid the need for emergency access, or.to resolve th'e 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 , I potentia 1L alternatives, and (5) incorporate the results into the request. ,! (c) Designation of Site; - In deciding ~which of the operating, non-Federal'or regional LLW disposal facilities will receive the LLW requiring emergency. access,'NRC. j will determine which of the disposal facilities would qualify under the ' i limitations set out in Section 6(h) of the Act. According to those limitations, s. site would be excluded froci receiving emergency access i waste if'(1) the LLW does not meet the license criteria for the.' site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring ' 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 j 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)- among the available operating, non-Federal or regional LLW disposal' facil-
.ities. . To the extent practicable, NRC intends to rotate the d H gnation i
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.
'the waste and best. serve the-interest of protecting the.public health and safety. However..if the volume of waste requiring emergency access I H
l
. 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 i 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 facilities. NRC intends to arrange to obtain this information on a con-tinuous basis. 1 It should be noted that in setting out the site designation provision i 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 i s
[7590-01] i intended NRC to consider if all sites.are deemed inappropriate to receive j the LLW. This may have to be addressed by Congress at some time in the future. ) q (d) Volume Reductim &$ termination, A [ q Section 6(i) of the Act requires that any LLW delivered for disposal i 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- i 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 I evaluate the extent to which waste has been reduced in volume as a part J 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- l case basis. The optimal level of volume reduction will vary with the waste, the conditions under which it is being processed or stored, the I administrative options available, and whether volume reduction process-ing creates new wastes requiring treatment or disposal. In evaluating whether the wastes proposed for emergency access have been reduced in volume to the maximum extent practicable, NRC will consider the charac-teristics of the wastes (including: physical properties, chemical pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, 26 l .__ - _ -_-___ __ _ _a
[7590-01] pyrophoricity, and explosive potential); condition of current container; potential for coritaminating 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 l applied. l 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-f ederal or regional LLW disposal facilities under the Act. The disposal of waste by grant of emergency access should not preclude the implementation of any i specific conditions, regulations, requirements, fees, surcharges or taxes prescribed by the disposal facility that may be in effect at the time of the Commission's determination to grant emergency access. How-ever, while generators whose LLW is granted emergency access are subject I to the special fees and surcharges specified in th'e Act for emergency access disposal, they shall not otherwise be subject to fees or require-l ments that are not customarily charged or imposed for routine LLW disposal. ' 27
[7590-01). IX. Requests'for Emergency Access Made Prior to the Effective Date of the Rule ~ , i The Commission has'tried to anticipate when the first request for-
~
'l emergency access might be made so the final rule-would be-'in place before that time. .l However, it may be necessary for a generator or State to sub--
mit a request for a Commission emergency access determination prior to' ! the effective date of this rule.' Commission determinations made on requests received befnre the final rule is in place will be guided by the criteria and procedures provided in the proposed rule. 1 X. Analysis of Public Comments i 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 ;
-i one (1) from a nuclear 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 detailed analysis of comments are available for public inspection and copying for a fee at the NRC Public Document Room, 1717 H Street NW.,
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 issuance of the rule. That commentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage i i 28 _-____________-___=____. ._ 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 V much of the language in Section 6 of the Act. ./) 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 frr under the Act, or have specifically chosen to exclude ! l from their facility. Fourteen of the commentors in almost half of the l comments expressed concern that emergency access would be granted to j wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, the ; l 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 , I expressed concern about which wastes would be granted emergency access j were concerned that LLWs determined to be ineligible for routine disposal l under the Act, could gain access to disposal at State or regional facil-ities under the emergency access provision. Throughout the development of Part 62, the NRC assumed that its mandate was to grant emergency access only to LLW that would otherwise be 29
, l eligible for r:utine disposal.at State er r gicnal LLW disposal facil-ities according to the terms and conditions set out'in the Act. More specifically, the NRC believes that only those LLWs designated'by Section 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 reouired to provide disposal for greater-than-Class-C wastes. Thus, the NRC would expect to deny any request for emergency access received for greater-than-Class-C waste. The same is true for the , 1 Federally generated LLW which is excluded from State disposal respon-sibility under Section 3(a)(1)(B). Under that subsection, the States are assigned the responsibility for disposing of "LLW generated by the Federal government except that which is owned or generated by DOE, by the l l Navy as a result of decommissioning of vessels, or as a result of any ) l research, development, testing, or production of any atomic weapons." NRC does not expect to grant emergency access to any wastes that are exempted by Section 3(a)(1)(B). However, since LLW generated by the i 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_ The NRC has no intentions of granting emergency access to LLW which l are ineligible for LLW disposal under Section 3(a)(1) of the Act. However, the Commission did not state its intentions in the proposed 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 C__ _--- _-- . _ _ - - . - - - - -- - - _ _
' ~
a a
.- '[7590-01]
y
,n > ,
j disposal resulting from~a grant of emergency access. Apparently, that was not. the case. To clarify the NRC's' understanding and intent regarding i the scope.of; wastes which the NRC considers.to be'potentially eligible. I for emergency access, .the NRC added-a-new provision,'(c) to Section 62.1,
" Purpose and Scope" of the final rule.- The new provision states tha't
~
"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 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-CompactorStatereceivingtheemerg$ncyaccesswasteisentitledto reciprocal access at any subsequent facility that serves the Compact { 1 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." Most of the States and Regional Compact Commissions who submitted , I comments on the proposed Part 62 indicated that reciprocal access should I be addressed in the final rule. Most of the commentors who raised j reciprocal access concerns believed the NRC should broker reciprocal-
[7590-01] i i access arrangements to' ensure that. reciprocal access will be available to i a State or Compact whose LLW disposa1' facility is designated to receive emergency access waste. Several of them emphasized that the reciprocal l 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 I indicated reciprocity is an integral part of Section 6 and should be part of the rule. I } One commentor indicated 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- l
}
gency access waste was generated before any determination for granting i emergency access is made. They indicated that such an acknowledgement j should be required by the NRC as part of the contents of a request for l emergency access (Section 62.12) and should include some indication of l 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 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 addressing 32
[7590-01] , i reciprocal access during the development of the proposed rule. At that ! 1 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 i outside the scope of NRC's responsibility to implement Section 6. Thus, Staff believed it would be inappropriate for the NRC to assume the role of enforcing reciprocal access arrangements. L 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 i emergency access in order to protect the public health 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
)
l condition for considedng 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 i Agency. The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Commir - sion's basic mandate to make emergency access decisions. The NRC maintains l that arranging for reciprocal access in response to grants of emergency l access is the responsibility of the States and Compacts involved. The NRC believes that the promise of reciprocal access desired by the commentors 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. i l l 33 i
[7590-01] l Compact Approval of Grants-of Emergency Access Three of the commentors . representing States or Compact Comissions-L 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- f l decision to grant emergency access from the Compact Commission of the. l region in which the designated site is located. The comentors 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 Comission approval would be necessary before the NRC's decision would be considered final. The resolution of the issue raised by these comments: ] ! I t is fundamental to the successful. implementation of Congressional intent for the emergency access provision of the Act. t- . w The basis for these comments is3 anguage in Section 6(g) of the Act. It states that "any grant of access under this Section shall be submitted to the Compact Comission for the region in which the designated disposal 1-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 l , frequently used by the responding States 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 that a receiving Compact Comission could reject the NRC's emergency access determination - essentially that Congress intended I the compacts to have the power to veto the NRC's decision. The com-mentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule. l 34 9
[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. 1 Section 6(g) of the Act requires the'NRC to notify the Compact Commission for the region in which the disposal facility is located of by any NRC grant of access "for such approval as may be required under the p'4 y . . .
,f M~~YmsoftheCompacthpHowever, 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 l position is derived from the legislative history for both Section 6 of l the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact l 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 I 1 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 i 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 y. I OflNn ss
[7590-01) 1 While disapproval may not be an option under the Act, clearly the Act intended the receiving Compact Commission'to be fully informed 4 regarding the emergency access decision made by the NRC. The Commission j
.Seme i believes the Notification procedures under 62.22.of the proposed rule provided the Compact Commission of the designated disposal facility with'-
information consistent with the specifications in the Act. Section 62.22 of the proposed rule provided that the NRC will notify the Compact l Commission of the State in which the designated disposal facility is-loc.ated thati emergency access'is required. It further provides'that "the notifications 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 immediate
-l and serious threat to the public health and safety or the common defense j and security.
In order to further establish its position on this issue, the NRC has made a change to the final rule. New language has been added to j Snturo . 62.22 which states that the Commission will make notification of the / final determination in writing to the appropriate Compact Commission "for l such approval as is specified as necessary in Section 6(g) of the Act." Applicable Terms and Conditions for Emeroency Access , 1 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
;[7590-01)
, c +
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 corisider the fees,: taxes', etc. in designating a l 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 PolicyQct/ Amendment 3 of' 1985 (the Act). Mn- / 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 licens' agreement of such facility, ...." oEssurethattheNRCwilldesignateasitewhichissuitably 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 37
[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 , i uhr uL thatCongressintendedforgeneratorsxgrantedemergencyaccesstopayalll-1 the normal LLW disposal fees as well as the additional fees or surcharges specifically applicable to emergency access waste and established under > Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designation 1
\
i decision. ! l 1 l The Commission recognizes the importance of conditions to ensure the I l implementation of emergency access decisions once they are made by the Commission. In response to the comments, the NRC added a new Section 1 "VIII" to the Supplementary Information portion of the final rule titled,
" Terms and Conditions for Emergency Access Disposal." It sets out the i responsibilities regarding the disposition of emergency access for both the generator of the LLW granted emergency access and the operating :
disposal site or sites which have been designated to receive the waste. The new section reaffirms the NRC's understanding of Congressional intent that whatever conditions or terms normally apply to LLW disposal apply for , emergency access, except where specifically stated otherwise in the Act. l 38
~ [7590-01)
Conditions of Termination fourofthecomment$rssuggestedtheadditionofanewsectionor s n /'q subsection $f'the rule to address'the conditions under which emergency X could be terminated. The Conmission agrees that terms and conditions 'j 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 recommende~d by the comment The Subpart is ti " Compliance with Conditions of Emergency Access; Terminat
/of Emergency Access." This
' .fee o I new Subpart D is discessed underQ/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
, /1 established by the NRC pursuant to this,Part. It also establishes that -
the Commission may terminate a grant of emergency access if it determines I 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 potentici problems with the NRC's approach to determining an immediate and serious threat to the public health and safety? l 39
c [7590-01] (3) What are the potential problems with'the arrangement proposed for making the determination of serious and immediate threat to the common defense and security? (4) What are the potential difficulties with the proposed approach for designating the receiving site? and (5) What should the NRC do if no site is found to be suitable for waste requiring emergency access? Two of the comments specifically addressed this request for 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 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 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. l l l XI. Finding of No Significant Environmental ! Impact: . Availability
/
/'8 g/]
20 l f
/
f[p y J This rule establishestgeri34%o --.cedure 's}for a ' C',mmission o 'e
, g;M;'5 i
determination under Section 6 of the' Act that emergency access to an y l i operating non-Federal LLW disposal facility is necessary to avert a l , 40 !
[7590-01) serious and immediate threst'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,an'
' N e b n the Act. The adoption of such implementing ~pEceduFEsWd" g__ _., -
' criteria by promulgation of a final rule does not have an environmental f
/ 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. _ .. t The availability of the regulatory analysis is noted telow.bv Sl,o^ Wl c(%LsAv. XII. Paperwork Reduction Act Statement The final rule adds information collection requirements that are subject to the Paperwork Reduction Act'of 1980 (44 U.S.C. 3501 et seq.). I These requirements were approved by the Office of Management and Budget Approval Number 3150-0143. XIII. Regulatory Analysis ) 1 The Commission has prepared a regulatory analysis on this final l regulation. The analysis examines the costs and benefits of the alter-3 l 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 _ - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. i
f: ' [7590-013 1 obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, ) Washington, DC 20555, telephone (301) 492-3857. I 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-l 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 ocwer plants, medical and academic facilities, industrial licen-sees, research and development fccilities, radiopharmaceutical manufac-turers, fuel fabrication facilitiespadovernment licensees. Of these categories, all but the power plants, fuel fabrication facilities, and government licensees could potentially include mall entities. Although these categories may contain ' substantial number of small entities," the Commission does not believ% Y ej there will be a significant economic impact to these generators because the Commission does not p anticipate that many ge erators will be affected by the proposef . In' order for the re trements of the rule to be imposed on a generator, the generator t initiate the action by requesting a grant of emergency access from NRC. This would occur only because the generator has been denied access to LLW disposal. l l l 42
l The Commission-is required by statute to take c ergency access. determinations.. Since a grant of emergency access.is intended to correct
- the problems LLW generators may encounter because of lack of access to LLW disposal, the provision of emergency access will benefit any genera-tor of LLp ciuding small'e ities.
p Establishing,riteriafnlprocedu%or requesting and granting emergency acce throu
\' % scu){ ;gh a rule will also benefit small.and large genera-tors. 10-CfR art-62'provides guidance to the generator on what informa-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-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 part of any process to decide a course of ' action if necessary access to l LLW disposal was not going to be available. R e,J- W ^ On<,o + v Asi>Icus'} 3Vl; List of Subjects 4n-10-CFR Nrt -SN Administrative fPractice and Pfocedure, Denial of Achess, Emergency
~
i ' Aciess to LoWLevel, Waste .Diiposal, Low- J evel,Ra'dioactive Mfste, Low, level p,p etGt~ Radioactive Waste Policy.Aniendments,Act of 1985, LLW Treatment and Disposal, g Yuclear,Ma'terialsj b# D N #i@ ' For the reasons set out in the preamble and under the authority of. l the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act 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 i Part 62. 43 l l
1
. [7590-01) I l
i
~Part 62 - Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities I
- 1. A new Part 62 is added to 10 CFR to' read as fol_ lows:
Subpart A - General' Provisions Section: ! 6
2.1 Purpose and Scope
62.2 Definitions. 62.3 Communications. 62.4 Interpretations. 1 62.5 Specific Exemptions. I 62.8 Information Collection Requirements: OMB Approval .
)
I 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 nformation. I 62.13 Contents of a request for emergency access: Alternatives. 62.14 Contents of a request for an extension of emergency access. 62.15 Additional information. 62.16 Withdrawal of a determination request. 62.17 Elimination of repetition. 62.18 Denial of access. l 1 44 4
[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; , a Termination of Emergency Access 62.31 Termination of Emergency Access. l :1! ~' .-Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950,
$)MS O- 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 a
, Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, { l ) 99 Stat. 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, 1056, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f). I Subpart A--General Provisions ! $ 62.1 Purpose snd scope. 1 (a) The regulations in this part establish for specific low-level 1 radioactive waste (1) procedures and criteria for granting emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a State that is not a member of a Compact, and (2) the terms and conditions upon which the Commission will grant this emergency access.
- 45 l
(b) The r;gulations in this part cpply to all persons as defined by this regulation, who have been denied access to existing regional or LLO non-Federal low-level radioactive waste g disposal facilities and who submit a request to the Commission for a determination pursuant to this part. (c) The regulations in this part apply only to the LLWhthatthe States have the responsibility to dispose of pursuant to Section 3(1)(a) of the Act. 6 62.2 Definitions. As used this part:
"Act" means the low-Level Radioactive Waste P licy Amendments Act i
of 1985 (P.L. 99-240).
" Agreement State" means a State that f(l) has entered into an agreement with the Nuclear Regulatory Commission und [ section 274 of the 1
Atomic Energy Act of 1954(42U.S.C.2021);andq) as 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.
" Compact" means a Compact entered into by two or more States pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985. 1
" Compact Commission" means the regional commission, committee, or .
l l board established in a Compact to administer such Compact. l " Disposal" means the permanent isolation of low-level radioactive waste pursuant to the re,quirements established by the Nuclear Regulatory Commission under ap ble laws, or by an Agreement State if such isolation occurs in %sucfi Agreement State. 46
1 [7590-01] i
/
" Emergency /ccess"meansaccesstoanoperatingnon-Federalor q 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
]
t facilities. l
" Extension of, ergency/cIess"meansanextensionoftheaccess ]
1 that had been previously granted by NRC to an operating non-Federal or j regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
" Low,levelJtadioactive,Wiste"(LLW)meansradioactivematerialthat (A) is not high-level radioactive waste, spent nuclear fuel, or byproduct 1
material (as defined in Section IIe(2) of the Atomic Energy Act of 1954 U.S.C. 2014(e)(2) and ) the NRC, consistent with existing law and in accordance with paragraph (a), classifies as low-level radioactive waste. j 3 ( "Non-Federal Di'sposal Facility" means a low-level radioactive waste {,4{
\ 1kY disposal facility wMeh is commercially operated or is operated by a I 3 State.
s 9 3 y" Regional, Disposal fa'cility" means a non-Federal low-level ra q" tive waste disposal facility in operatic' en January 1,1985, or sub-s g ( sequently established and operated under a,4ongact. s
" Person" means any individual, corporation, partnership, firm, association, trust, State, public or private institution, group or g 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 thisf fart; 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
[. .
[ 7590-01] licensed generator or generators of low-level radioactive waste within
'thescopeof.Section62.1(c)ofthis/at'locatedin,hisforher:" State";-
or'their' duly authorized representative, legal successogor agent.
" State'!Lmeans any. State of the United States, the District of-Columbia,iand the. Commonwealth of Puerto'Rico.c -
"TemporaryMrgency[ cess"~meansaccess'thatisgranted'atNRC'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.
6 62.3' Communications. Except where otherwise specified, each communication'and report concerning the' regulations in this part should be. addressed to the Direc-I tor, Office of Nuclear Materials Safety and Safeguards, U.S.. Nuclear l Regulatory Commission, Washington, DC 20555, ~ or mav be delivered in l L person to the Commission's offices at 1717 H Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland. j i 6 62.4 Interpretations. Except as specifically authorized by the Commission in writing, no' I 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. . I The Commission may, upon application of any interested person or upon its own initiative, grant an exemption from the requirements of the 48 I l
-[7590-01)-
regulations in this part that it determines ,is authorized by law and will not endanger life or property or the common defense and security and is otherwise in the public interest. S 62.8 Information collection requirements: 0MB' Approval. The Nuclear Regulatory Commission has submitted the information l collection l 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. l ' l Subpart B--Request for a Commission Determination S 62.11 Filing.and distribution of a determination request. (a) T erson submitting a request for a Commission determina-tion m'u file a signed original and nine copies of the request with the
~ Commission at the address specified in S 62.3, with a copy also provided to the appropriate Regional Administrator at the address specified in l
Appendix D to Part 20 of this chapter. The request must'be signed by the person requesting the determination or the person's authorized representative under oath or affirmation. (b) Upon receipt of a request for a determination, the Secretary of the Commission will cause to be published in the Federal Registe.r a-notice acknowledging receipt of the request b KT # fc' - comment on the request f t / + i) submitted within 10 days of the date of the y U notice. A copy of the request will be made available for inspectionAin 1 49
'i
[7590-01] the Commission's Public Document Room, 1717 H Street NW., Washington, DC, g and in-the-Local-Public-Document Room nearest-the-facility submitting h _.. x 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 ; i 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 the Compact Commissions with operating regional low-level radioactive waste disposal facilities, and to the 1 l Governors of the States in the Compact Commissions with operating l l l l disposal facilities. (c) Fees applicable to a request for a Commission determination under this part will be determined in accordance with the procedures set l forth for special projects under category 12 of 6 170.31 of this chapter. ] (d) In the event that the allocations or limitations established in Section 5(b) or 6(h) of the Act are met at all operating non-Federal or regional LLW disposal facilities, the Commission may suspend the process-1 ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress. l J 6 62.12 Contents of a request for emergency access: General Information. l A request for a Commission determination under this part must include i
\
the following information for each generator to which the request applies: j (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 Itte determinadon is sought; p . ;- - 50 go D cwt D cP
~
[7590-01) (c) Certification that.the radio?ctive waste.for which emergency access is requested.-is low-level radioactive waste within Section 62.1(c) of this 7Part. y (d) The low-. level waste generation'facilitylief) producing the waste for which the request is being made;
)
(e)' A description of the activity that generated the waste; j (f) Name of.the disposal facility'or facilities which'had been l l receiving the waste stream of concern before the generator was denied access;; (g) A description of the low-level radioactive waste for which emergency access is requested, including A -/ (1) The characteristics and composition of the waste, including, but.not limited to-- l Lihpeofwaste(e.g.solidifiedoil,scintillationfluid, failed o p 8s- equipment); iph (i rincipal chemical composition; j (iii),fhysical ate (solid, iiquid, gas); l (iv)[peofsolidificationmedia;and ( d concentrations and percentages of any hazardous or toxic chemicaliI, chelating agents,A / infectious or biological agents associated with the waste; / (2) The radiological characteristics of the waste such as-- (i) e classification of the waste in accordance with 6 61.55; (ii)-Alistoftheradionuclidespresentorpotentiallypresentin the waste, their concentration or contamination levels, and total quantity; 51
[7590-01]' (i d distribution of the radionuclides within the waste (surface or volume distribution); (j)d mount of transuranic (nanocuries/ gram); (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; (4) The tice duration for which emergency access is requested (not
'to exceed 180 days);
(5) Type of disposa1' container or packaging (55 gallon drum, box,- i liner, etc.); and (6) Description of the volume reduction and waste minimization techniques applied to the waste which assure that.it is reduced to the maximum extent practicable, and the actual reduction in volume that l occurred; (h) Basis for requesting the determination set out in this part, I including b / .j (1) The circumstances ich led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation v i responsible for creat-i ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the need for emergency access was identified; * (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; 1 52
[7590i01] ( (4) An explanation of the impacts of the waste on the public health and safety or the' common defense and security if emergency access is not granted, and the basis for concluding that these impacts constitute a 5 l serious and immediate threat to the public health and safety or the j common defense and security. The impacts to the public health and safety ) orthecommondefenseandsecurity[the' generator'sservices, including ' 3 researchactivities,weretobecurtailedqitherforalimitedperiodof time or indefinitely.(ihould also bfa~ddressedy l J (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 l requested could not otherwise qualify for disposal pursuant to the l Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simul-taneously under consideration by the Department of Energy (DOE) for ! MCs access through the unusual volumes allocation; 9 y (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 D0D certifying that access to c disposal is necersary to mitigate the threat to the common defense and security; (m) Date by which becess is required; (n) Any other information which the Commission should consider in making its determination. 53 l - - - - - - - - - - - _ - - - - . - - - - - _ - _ - _ - - -
[7590-01] S 62.13 Contents of a request for emergency access: ternatives. (a) A request for emergency access under this part must include information on alternatives to emergency access. The request shall include a discussion of the consideration given to any alternatives, including, but not limited to, the following:I(1)' storage of low-1dve1 7 k radioactive waste at the site of generation; (2) storage of low-level u6 , 4 4 radioactive waste in a licensed storage facility; (3) obtaining access j to a disposal facility by voluntary agreement; (4) purchasing disposal j capacity available for assignment pursuant to the Act; (5) requesting disposal at a Federal low-level radioactive waste disposal facility in l 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 ubk (b) of thisfSIcti (b) The request must identify all of the alternatives to emergency
/ \
accessconsideregindudinganythatwouldrequireStateorCompact 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-sidered in identifying and evaluating them, a chronology of actionsktaken l l to identify and implement alternatives during the process, and a discus-sion of any actions that were considered, but not implemented., 4 (c) The evaluation of each alternative must consider 6 hi[s y p g,
,J j
I potential for mitigating the serious and immediate threat to public #<d -
' f; health and safety or the common defense and security posed by lack of u access to disposal; (2) the adverse effects on public health and safety g 54
[ _ _ _ _ _ _ _ _ _ - _ -
[7590-01) and the common defense and security, if any, of implementing each alter-native, including.the curtailme'nt'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 cf each alternativ including'the person's financial. capability to implement the alterna-tives; (4) any other pertinent societal costs and benefit pmIacts to the environment; (6) any legal impediments to implementation of each alternativ incl,udiiig whether.the alternatives will comply with appli-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)Ijectingeach alternative; and (2) concluding that no' alternative is availab1'.e S 62.14 Contents of a request for an extension of emergency access. i A request for an extension of emergency access must include. 1 (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, 3
)
acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include d2:) an identification of additional alternatives that have been evaluated during the period of the L initial grant, and (2) a discussion of any reevaluation of previously considered alternatives, including verification of continued attempts to gain access to a disposal facility by voluntary agreement. 55
~[7590-01]
j . S'62.15' Additional- nfor n. (a)' The Commiss on may require additional _information from a p'erson:. ; making' a . request for-a Commission ' determination' under this part concern .
.. i ing any' portion of the request. , j
)
(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 a'ditional d info tion under paragraph (a) of this section within ten (10) days from th date'of the request for additional informa-tion, 'or.any other. time %V 7 the Commission may specify; This denial will i not prejudice the right of'the person making the request to file another request for a Commission determination'under this part. u 6 62.16 Withdrawal of a determination request. (a) A person may withdraw a request for a Commission determination. under this part without prejudice-'at any time prior to the issuance of an initialdeterminationunderS'62.21d I (b) The Secretary of t Commission will cause to be published in the Federal Register a n ce of the withdrawal of a request for a ' l Commission determination under this part. l 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, clea and specific. 1 ( d l 1 I 56 l
i [7590-01]. l l I 6 62.18 Denial of request. 1 If a request for a determination is based on circumstances that j are too remote and speculative to allow an informed determination, the Commission may deny the, request. Subpart C--Issuance of a Commission Determination l
)
S 62.21 Determination for granting emergency access. 1 l (a) Not later than (45) days after the receipt of a request for a 1 Commission determination under this part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or genera- j tors located in his or her State, the Commission shall determine whether-- (1) Emergency access to a regional disposal facility or a non-Federal disposal facility within a State that is not a member of a Compact for specific low-level radioactive waste is necessary because of an immediate and serious threat (i) to the public health and safety or (ii) the common defense and security; and (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in S 62.13. (b) In making a determination under this section, the Commission shall be guided by the criteria set forth in S 62.25. 1 (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- l 1 tive determination must designate an appropriate non-Federal or regional l LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical 1 57 L L_________.___
i [7590-01] i i 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. I I S 62.22 Notice of issuance of a determination. ) i (a) Upon the issuance of a Co ission determination the Secretary l h w,W9 % -Ie u rw@ P M W J of the Commission will 4nake notifi-atitnr of the final determination $in- -{ wMt4n to-the person making the request, to the Governor,of the State i in which the low-1 el radioactive waste requiring emergency access was J 1 \ generated, % t Governor of the State in which the designated dis- ) posal facility is located, and if pertinent, h the appropriate Compact ' \ Commission for such approval as is specified as necessary in Section 6(g) i
\
of the Act. For the Governor of the State in which the designated j disposal facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme- j i diate and serious threat to public health and safety or the common l defense and security. For the Governor of the State in which the low-level waste was generated, the notification must indicate that no exten-sion of emergency access will be granted under 6 62.24 absent diligent l
- 7. State and generator action during the period of the initial grant.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination.
/ ,A l
58 l L_ -_-_
q m [7590-01] ! .-y i 1 (c)l The Secretary of the Commission will make a copy of the final 1 h*f/#' r determination available for inspection.in the Commission's Public [ff%dbr Y } Document. Room, 1717 H Street NW.,. Washington, DC. .# Jh tf f tet W S 62.23 ' Determination for granting temporary emergency access. I 3flfl hif$Y ( i (a) . The Commission may grant temporary emergency access to an d' .ip 1 appropriate non-Federal or regional disposal faciliti or. facilities- });)+" provided that the determination required under S 62.21(a)(1) is made;. :;
. 1 (b) the notification procedures under S 62.22 are complied with; j 1
and L (c) the temporary emergency access duration will not exceed
.]
forty-five (45) days.
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t 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 l defense and security; (2) the threat cannot be mitigated by any alternative that is consistent with public health and' safety; and (3) the generator of low-level waste and the State have diligent 1g ; though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access. ! 59 l
[7590-01] (b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) and 62.2 ust be V followed. S 62.25 Criteria.for a Commission determination. 3 (a)-InmakingthedeterminationrequiredbySecti%62.21(a)of this'part, the Commission will determine whether the circumstances. described in the request for emergency. access create a serious and imme-I diate threat to the public health and safety or the common defense and i security. (b) In making the determination that a serious and immediate threat exists to the public health and safety, the Commission will consider, notwi,thstanding the availability of any alternative identified in See-gonf62.13ofthispart: (f[/,he nature and extent of the radiation hazard that would result I fromthede}nalofemergencyaccess,includingconsiderationof[2 (/) standards for radiation protection contained in Part 20 of this Chapter, (f)/nystandardsgoverningthereleaseofradioactivematerialsto the general environment that are applicable to the facility that gener-J ' ated the lowglevel waste; and v [M(f)'/nyotherCommi requirements specifically applicable to the facility or activity-whi.ch is the subject of the emergency access request- buk p extent to which essential services affecting the public health and safety (such as medical, therapeutic, diagnostic, or research I activities) will be disrupted by the denial of emergency access. 60 1 L_._____.__
[7590-01]- (c) For purposes of granting temporary emergency access under S d ectied62.23 A of this part,. the Commission will consider the criteria
. L _. _-
contained in the Commission's Policy Statement'[for ermining whether an T t event at a facility or activity licensed or otherwise regulated by the l Commission is an ab' normal occurrence ~ within the purview of Section 208 of /
,.. - ~ . . - _ _ . . _ . . - _ ..
the Energy Reorganization Act of 1974. ((45 FR 10950, February 24,- 197 7 (d) In making the determination that a serious and immediate threat to the common defense and security exists, the Commission will consider, notw ding the avail ility of any alternative identified in W gon{62.13ofthispart[(1)whethertheactivitygeneratingthewaste is necessary to the protection of the common defense and security, h o / (2) whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. The Commission will consider the views of the Department of Defense (000) and the Department of Energy (DOE) in the,S(atementofhpportassubmittedbythepersonrequestingemergency eccess, in evaluating requests based all, or in part, en a serious and immediate threat to the common defense and security. (e) In making the determination required by S 62.21(a)(2), the l Commission will consider whether the person submitting the request (1)hasidentifiedandevaluatej ny alternative that could mitigate M 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 B 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 1 - - - - - - _ _ _ _ _ _ _ - -
[7590-01)' 1 J
.or the common defense and security; or (2).it results in a significant>
4 curtailment or cessation of' essential services', affecting public health-and safety'or'the common defense and sec6tity; or (3) it;is beyond the
/
technical and. economic capabilities.6f the person. requesting emergency. access;.or (4). implementation o the alternative'would conflict with
/
. applicable State or~ local laws'Jor Federal, laws and regulations; or (5) it.
cannot be' implemented in'a timely manner.
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(g) The. Commission shall make an affirmative determination'under
.6 62.21(a) only if all of the alternatives that were considered are found to be unreasonable.
(h) In making a determination regarding temporary emergency access f w wp/w under S 62.23, the criteria in_bar41r a) and (b) of that section shall apply. (i) In making a determination regarding an extension of emergency access under S 62s24, the Commission shall consider whether the person making the request has diligently acted during the period'of the initial. grant to eliminate the need for emergency access. L (j) The Commission shall consider whether any waste delivered for disposal under this part has been reduced in volume.to the maximum extent practicable using available technology. S 62.26 Criteria for designating a disposal facility. (a) The Commission shall designate an appropriate non-Federal or regional disposal facility if an affirmative determination is made j i pursuant to S 62.21. (b) The Commission will exclude a disposal facility from considera- 4 tion if: 62 l
[7590-01] (1) low-level radioactive wastes of the generator do not meet j the criteria established by the license agreement or_the license agree-ment of th facility; or (2) . ) 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 fo emergency access; or (4 e volume of waste requiring emergency access exceeds'20 l 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 d(1) of waste and its characteristics,
) hreviousdisposalpractices, 43)fansportation,
- 44) [ radiological effects,
/(5) Jite capability for handling waste,
/6)Mevolumeofemergencyaccesswastepreviouslyacceptedby each site both for the particular year and overall, and
/(7) ny other considerations deemed appropriate by the Commission.
(d) The Commission, in making its designation, will also consider any information subtritted 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. 63 i
[7590-01) ! l Subpart D--Compliance With Conditions of Emergency Access; Termination of Emergency Access S 62.31- Termination offm'ergency)ccess& i (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. 1 (b) The Commission may terminate a grant of emergency access _if an ! applicant has provided inaccurate information in its application for emergency access or if the applicant has failed to comply with thisfPart
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l or any conditions set by the Commission pursuant to thisf Part.
}
1 i Dated at Rockville, MD, this day of , 1988. ! For the Nuclear Regulatory Commission. 1 l Samuel J. Chilk,- ) Secretary of the Commission.
]
l
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l l l l l 1 l 64 1 1 l _.
l l
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i
. For:: The Commissioners )
i i From: Victor Stello J r. " l Executive Dir ctor for Operations
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Subject:
FINAL' RULE-10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING j b ., EMERGENCY ~ ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEt WASTE 0g ' 1 DISPOSAL FACILITIES" 9y Q,
Purpose:
ToobtaikapprovaltoissueanewPart62toTitle10-of-the~,,[f [ L Code _of)Eederal Regulations that would establish criteria Mgi , procedges2to be used by'the Nuclear Regulatory U5hiiiilision (NRC) [k)[g l in d6'termining whether 9mergency access should be granted to. - )y > operatingr'non-Federal / low-level radioactive disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amend- hg ments Act of 1985. O Summary: ction 6 of the Low-Level Radioactive Waste Policy Amendments-ct of 1985 (PL 99-240, January 15, 1986), (the Act) provides kh
,y\
& j'eard^l4 LW) -hat NRC can grant' emergency access to non-Federal or regional V disposal facilities if there is a serious and immediate aar #ov>p threat to the public health and safety or the common def'nse 1
i and security that cannot be mitigated by available alte atives. The enclosed final rule was developed to implemenJt'Q_' m pop-l sibilities pursuant to Section 6. The rule sets (out strict O. , 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 disposal facilities. The first request for emergency access could be made as-soon as January 1, i 1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive ' a request for emergency access. If NRC does get a request, it will have 45 days to respond. Spffestimates180staffdays will be required to process sue requests. k CONTACT: Janet Lambert, RES 492-3857 l
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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 l will be available'by January 1, 1993. If unsited States or j 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 i facilities. cldII-t q N Section 6 of the Act provides that the NRC'ca% grant a generator
" emergency access" to non-Federal or regional commercial LLW ;
disposal facilities if access to .those facilities has been / j 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-+ NN ddhM> l Netermhet4on-be-made-es-to whether the threat can be mitigated l by any alternative consistent with the public health and safety, I including ceasing the activities that generate the waste. NRC l 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,/aQ V 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 I received to determine whether emergency access will be granted, l 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 makes its determinations. The Act also provides that only NRC can grant emergency access. The Agreements States are specifically pre-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 a: tion 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 Federal involvement as a vehicle of last resort. In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act 1 and with its understanding of the intent expressed by Congress regardingdecisionsmadepursuanttoSection6.Wgtaff'sobjec- > l tive throughout has been to establish requirements for granting
j The Commissioners' 3 emergency access that are stringent enough to discourage the unsited States and regions from vie'iing 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 hea th and safety or the. common defense and security. The Act di ~~ require _NRC-to, develop,a' rule to carry out-its Qection6 espois~ibilitiesf'%DeverfNRCstaffrecommendeda . rule o establish th pro ~cedures ahd y il k ia~4blt will be used in making the requif r.gency-accbss-detEFEiinations to add j predictability to'the decision making process, andfhq1p -t<r ensure i thattheNRCwillbeabletomakedecisionsonemergencyaccess ! requests in the-time required by the Act. On January 15, 1987, NRC is-d a Notice of Intent'to develop this rule Ttot, 52 Fe r December 15, 1987,,_NRC issued the proposed x o ruleRegi+ter -No:- 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- q (Maine, Arkansas, Il ' Pennsylvania), two([. nois, New York,
" Low-Level Waste Kentucky, ompact Commissions' and (Midwest and Central dwest), ten fro 7n)p{pcerned.rftizens c and_ /
member environmentalgroups/two r6' 'industr , and one (fpefn yA
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(ajnuc1 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 g4,oAhe final rule. The itical components of the proposed ruleg the procedures criteria to, be used in making emergency access aredecisions essentially unchanged and @gr. in the final he g significant omments.are discussed below: y 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-commt.nter p(pressed opposition to the issuance of the rule gtselfAetausehebelievedthatgrantingemergencyaccesswould c infYinge on the States' right to manage their LLW. Since NRC was mandated by Section 6 of the Act to make emergency access ' l determinations only when the States are noJ/otherwise able to a manage their LLW, NRC does not consider at a rule to implement ! that mandate should interfere with stat ' rights. - I By far the most common concern expressed by commenters was that ! l NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they i I g/ !are clearly not responsible for unper the Act. Under Subsec-i 1 L tion 3(a)(1)oftheAct,thestaysaremandatedtoprovide 9/ ! i L_-__-___-_-------------.------------------------------------------------
- --- - - - - - - - - _ - _ - - - - - - - - - - - - - - - - -- -J
.,s , .j l
'The Commissioners 4' ,
l " I[ 'pipjy P-d,f ;lh W,?" .
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-I 1 / #. {
l
/.gt-jp #p c j disposal only for commercially' gener ed'LLW' classified as A, B, 1 and C, and for "LLW generated by th Federal government except -l that which is owned or generated bymDOE, by. the Navy asc a result : I
-of decommissioning of vessels', or s a result of any research,.
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development, testing, or production of atomic weapons." Commenters j stated that Federal wastes, particularly-those generated by DOE j a OD, or wastes that are classified as greater-than-Class-C, d
's 1d not be allowed to receive emergency access disposal.
Ng// ef A s In developing the proposed rule,-NRC staff assumed that it would
- J be clear that' limitations established by.the Act on the LLW eligible 3 c'd d'MN for routine LLW disposal would also apply to LLW under consideration i by NRC for emergency access' disposal. However, no statement was' .;
made to this effect in the proposed rule. Clarifying language- i explaining what LLW/ will be. considered eligible for emergency i access disposal hap,been added'to the final rule. cwp
'j
. a Most of the 4tates and Regional Compact Commissions who submitted ^ j comments indicated that the final rule snould include provisions . !
by which NRC would act to ensure that States /LLW Compacts designated to receive emergency access wastes will receive rec ocal access, disposal from thejberson granted emergency acces ch they are entitled 4o11nder the Act. Commenters indic ted.that-NRC 4# ] should require a formal acknowledgement of reciprocal access I before making an emergency access determination. The staff does not agree with this position. 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, 3 "an equal volume of low-level radioactive waste having similar ' characteristics to that provided emergency access." NRC staff considered including reciprocal acce ing the ! development of the proposed rule. However, as taff reads l Section 6(f), arranging for reciprocal access is an obligation j between States / Compacts and thu is outside the scope of NRC's i responsibility to implement Se on 6, Further, given the l publip,hgadh and safety on the j l agency's common mandate defense to protectj and security, s taff b5 mwd 1t would be inappro- ! priate for NRC to assume the role of enforcing reciprocal access l 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. ! l ! l, NiD l u
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 h d been remiss in \/ not including a provision in the proposed rule- 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. 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." 1 The interpretation preferred by some of the States or Compacts is that Cangress intended for the Compact Commission of the designatee site to have the final say regarding the acceptance , of emergen:y access wastes. They believe Congress intended the i receiving Compact Commission to have the power to veto NRC's decision. The commenters wanted the NRC to acknowledge this interprcta>. ion of Section 6(g) by incorporating a veto / approval provision :n the final rule. The interpretation of Section 6(g) that is most consistent with ', Congressional intent behind emergency access is that 6(g) does not provide for S}, ate or Compact Commission veto of NRC's deci-sion.pftaff beTieT(hat the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section.5 emergency access provision is to ensure that sites which would l 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 inthefina{ , A number of the commenters expressed concern that LLW granted emergency access to disposa) by the,1{8C_should be required to meet any conditions of the ite,dssignate@,aswellasanyfees, or taxes prescribed by that Ec'ility. Other commenters stated that LLWs granted emergency access disposal should not have to
1 1The' Commissioners' '6 pay.any special fees, beyond those specifically mandated by the Act. The commenters expressed a desf re' to- haveJRC_corjsider. thcseitemsinmaking"i'sgitedesighatiogdicisionsytoremer-- _.gency . access. V
. squite clear from the Act that Congress
'To the NRC Staf
.intendedthat'tMg(it-LLWjrantedemergencyaccesswould'meeta11:of the general. requirements.and regulations of the disposal facility ,
designated to' receive the' wastes by the NRC.' 'Further, thel staff ;
! believes ,that Congress' intended for generators granted emergency: .
1 access to pay all.the normal:LLW disposal fees-as well as the; . , q 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 informatiomcan-o sh'ould be used by NRC in makiag its CsiteJe11 gnat.ista.[decisior S___ 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.
f Several of the commenters suggested that the f)nal: rule should ; contain conditions. under wi)ich emergency acc9 4 s could be termi-l
./ 'nated.p?Staffagree>and'ha/eaddedanewSubpartDforthispur-pose. The new subpart establishes that thh'NRC may termi_nate -%9 p emergency access if the requestor or ECsiwaste do not meet the ,
conditions established by NRC in Part 62 d that the NRC can ; l , terminate emergency access if a determin 's ma that it is
/ no longer needed.
N
/ Several commenters stated that the 10p y 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
,l. requests, and since NRC has only 45 days to respond whe a
! request is received, no change was madef to the-final' r e,
/ pu MbM 6g ;
e After consideration of the comments,4p/Vkstaff recommends the final l
/ rule proposed for Commission approval in Enclosure B.A There are no major differences between the proposed and final rules but
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/ ,
/ several clarifying changep/are included. The most significant ,
j erek 6 m p QLLaar; / y (1) Addition of a clarifying sentence to the "P rpose and Scope" *
- J of the final rule. The sentence indicate 5~ hat the emer- !
LLW \[ e LLW4 or which the j gency States have access disposalrule' applies' only' to th'pursuarit t/ the A responsibility ; M q/M a (nw Additionofclarifyinglanguagetok2.22{stathgthatthe
-o 1 (2) A M it. aud. 3Wu< hCommissionwillmakenotificationSfthefinaldetermination l
1 - a in writing to the appropriate Compact Commission "for such I
\b w w " approval as is specified as necessary in Section 6(g) of f/fJe. .
lo 4 Jwd) VM g / the Act." ,
, .,+ ;
$Q Sid M u . , .
m s
\/\M N.M/ /d d *, Ut) t, j b .) It M (. dkb '
wf we#b wa& ppN A LLb1DS w LLW F F% 6, % !
The Commissioners- 7
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(3) Addition of_a cl i ng Section VIII to the Supplementary Informatiorut.itle Access Disposal." q' Terms and conditions for Emergency (4) The addition of clarifying Subpart 0,3. titled'" Compliance with Conditional of Emergency Access; Termination of Emer-gency Access." Resource Requirements Consistent with the_~ legislative history for.Section 6, NRC staff expects that emergency access will'be requested only under rare and unusual. circumstances through 1993 and beyondtf frWff esti-h 7 @ it will take approximately: 180' staff days (sir staff working 30 days out of the 45 days allowed in the Act) to complete'the
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necessary review. . b, Recommendation: That'the Commission: . [8 ,, (1) Approve for publication in the Federalkegis.ter the final new rule 10 CFR Part 62 e"& sed'WJEnclosure B) which [I would establish procedures and crieria for granting # "0 ' requests for emergency access to low-level waste disposal p sites. l (2) In order to satisfy requirements of the Regulatory Flexibil-l ity Act (5 U.S.C. 605(b)). certify'that the final rule will I not have a significant economic impact on a substantial number of small entities. The basis for this certification ti the draft Federal Register notice (Enclo-issummarized)jth su undpr Regulatory Flexibility Certification'.' eadingy (3) Note:
- a. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it, as required l by the Regulatory Flexibility Act.
- b. That this final rule contains modifications to informa-tion collection requirements subject to the require-ments of the Paperwor,k Reduction Act of 1980 (44 U.S.C.
3501 et seq.),.that'"bffice of Management and Budget (OMB) approval was %btained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid. 1
- c. That the proposed rule included a preliminary finding that no significant environmental impacts would result from the rulemaking. The environmental assessment
l The Commissioners 8 'I forming the basis f r this determination i contained i in Enclosure D, "R gulatory Analysis." l cd. LThat compliaace ith CRGR charter:re ments'is'not applicable d this rulemaking actio the rulepaking. appliesonlytoradioactivewastemanagement/andpota generic requirement to be imposed by the NRC on'one or. .1 more classes of power reactors,
- e. That the Subcommittee.on Nuclear Regulation of the ,
Senate Committee on Environment and Public Works,ithe Subcommittee on Energy and the Environment of;the House y of. Insular Affairs' Committee,:the' Subcommittee'on Energy Conservation and Power of'the House Energy and Commerce Committee, and the Subcommittee no Environ- ! ment, Energy, and Natural Resources of t;e House ! Committee on. Government Operations will be informed of the'rulemaking by letter such as Enclosure D. l
,l
- 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. ]
l
- g. That a regulatory analygig, Enclosure C, has been pre- I pared for this rulemaking. !
- h. 0GChasreviewedthe/;m/ . . .
mowd rulemaking package and has no' legal objections.
- i. That this rule has been coordinated with NMSS, NRR, GPA, and ARM.
Scheduling: Few, if any emergency access request are anticipated. owever, arequestcouldbemadeatanytimej4NRCshouldhavet rule
. -N in place et-the-time- a request for emergency access may made.
l WM cuew C6iis~ist~ent 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 l l l-l Victor Stello, Jr. . Executive Director for Operations l
Enclosures:
A. . Draft Federal Register Notice B. Public Comment Analysis with Comment Letters , C. Regulatory Analysis D. Draft Congressional Letter E. Public Announcement L __ _ _ ____ _
l The Commissioners 8 l forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis." j
- d. That compliance with CRGR charter requirements is not i applicable for this rulemaking action as the rulemaking j applies only to radioactive waste management, and not a i generic requirement to be imposed by the NRC on one or j more classes of power reactors. 1
- e. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the !
Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and Power of the House Energy and Commerce Committee, and the Subcommittee on Environ- , ment, Energy, and Natural Resources of the House 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-l 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. That this rule has been coordinated with NMSS, NRR, GPA, and ARM.
Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time. NRC should have the rule in place at the time a request for emergency access may be made. Consistent with the next major trigger date for denial of access in the Act, which is January 1, IS89, the final rule should be issued in the fall of 1988. Victor Stello, Jr. Executive Director for Operations
Enclosures:
A. Draft Federal Register Notice B. Public Comment Analysis with Comment Letters C. Regulatory Analysis D. Draf t Congressional Letter E. Public Announcement OFC: NMSS : ARM :GPA :NRR :0GC :EDO NAME: HThompson :WMcDonald :HDenton :TMurley :WParler :VStello DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88 0FC: RES:WMB:DE :RES:WMB:DE :RES:WMB:DE : DE: RES :DE:RES :RES :RES NAMED 3 Lambert: j k:Nrill :4Milberberg : R gsnak :glotto :TSpeis:ESBeckjord DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88:8/ /88 0FFICIAL RECORD COPY
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1 APPENDIX-I G b~*k k$ '1
% N yucK % g' 4A Major Provisions of The Proposed-and Final Regulations amutIabd'-
h1fw $ w $ The proposed and final rules address each of the determinations that NRC must Wu whJ make and describes how they will be made. _) f dM WDhw - in-ordee to make Lhe determination-that there is a serious and immediate threat to the public health and safety, the Commission will consider whether the cir-
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cums'.ances described lead it to conclude that there is no longer reasonable assurance that the affected generator or generators can continue to comply with I 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-ments issued by NRC in the facility license, the technical specifications, and any applicable regulations and orders of the Commission; ~' M uktfw 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 l threaten the common defense and security. The proposed rule also specifies that the NRC will consider the common defense and security recommendations to bemadebytheDepartmentofEnergy(DOE)and[oItheDepartmentofDefense (D0D) in a " Statement of upport." 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 I defense and security. If the NRC makes either of the above determinations in the affirmative, NRC l will then consider whether any alternatives to emergency access are available l l , 1 ' l
% 1 i
to the applicant. These include, but are not limite'd 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 capacity; (5) requesting a license modification from NRC; _
j (6) requesting disposal at a Federal disposal ft.cility (appropriate for Federal or defensezrelated 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 l will consider whether the requestor has demonstrated that the implementation of l 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 alterna'tive is determined by
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NRC to be reasonable, then the request for emergency access will be denied. I l If NRC determines that emergency access is warranted, NRC will then determine q which operating non-Federal LLW disposal facility should receive the LLW. A l 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 c r7 city 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 I 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 i . requested comments on this potential problem. '
' O web ~ 6. f wlc, t i
In making the determination regarding a request for an extension of emergency l access (Section 6(e) of the Act), the NRC staff will consider whether the l circumstances still warrant emergency access and whether the person making the 2
7 i 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 necessar (Sec-tion 6(d) of the Act), the staf f will have to ineke-the-determiEatNNNA( 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. l l i l 3
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