ML20246J423
| ML20246J423 | |
| Person / Time | |
|---|---|
| Issue date: | 08/19/1988 |
| From: | Harold Denton NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA) |
| To: | Arlotto G NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-31, NUDOCS 8905170077 | |
| Download: ML20246J423 (338) | |
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. b6 e uco e o UNITED STATES g
[ ,' g NUCLEAR REGULATORY COMMISSION g c; j WASHINGTON, D. C. 20555
% l y.0th EP AUB101989 i MEMORANDUM FOR: Guy A. Arlotto, Director P l
Division of Engineering
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% of Nuclea7 f Regula ory Research FROM: 1$44e1{tcIh',31/ tor fof ide of Governmental pnd blic Affairs /
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SUBJECT:
REQ EST FOR OFFICE CONCURRENCE FOR THE FINAL RULE FOR 10 CFR'PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL
. WASTE DISPOSAL FACILITIES" The Office of Governmental and Public Affairs concurs in the subject final rule. We ask that the following comments be accommodated:
) 1. Page 3 of the memorandum to Mr. Stello should indicate GPA rather than SLITP.
j 2. The la'st statement on page 35 of the Commission Paper is not a complete sentence.
- 3. The word " granted" is misspelled in Comment 5.5, line 3, page 12 of the "Part 62 Comment Analysis" section of the document.
/ 4. The word " lived" is misspelled in Comment 10.2, line 4, page 37 of the "Part 62 Comment Analysis" section of the document.
- 5. The word " Congress" is misspelled in Comment 11.4, line 1, page 42 of the "Part 62 Comment Analysis" section of the document.
/6. The word " reclassifies" is misspelled in Comment 14.4, line 5, page 51 of the "Part 62 Comment Analysis" section of the document.
- 7. In Section 62.26(b)(1) the term " license agreement or the license agreement of the facility" is not clear. It
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appears that this section is referring to the license conditions established for the disposal facility.
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8 Author's Name: ~ '~~ ~ -
LAMBERT J (
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l Document Comments:
SPE 07/12/88 - ETPB REVISIONS M/O/Al ar a saoa <
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NUCLEAR REGULATORY COMMISSION-4 10 CFR PART 62 {
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Criteria and Procedures for Emergency Access to Non-Federal i and Regional Low-Level Waste Disposal Facilities !
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AGENCY: Nuclear Regulatory Commission. I J
ACTION: Final Rule. .]
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SUMMARY
- The Nuclear Regulatory Commission (NRC) is issuing a' rule to i
establish procedures and criteria for fulfilling its responsibilities i
associated with acting on requests by low-level radioactive waste (LLW) -
generators, or State officials on behalf of those generators, for j emergency access to operating, non-Federal or regional, low-level )
radioactive waste disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. Grants of emergency access may be necessary if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal facilities, and the lack of access results in a serious and immeaiate threat to the public health and safety or the common defense and security. li EFFECTIVE DATE: (30 days after publication)
ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be examined at the NRC Public Document Room, ;
1717 H Street NW., Washington, DC 20555. 1 i
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FOR FURTHER INFORMATION CONTACT: Janet Lambert, Division of Engineering, Office of Research, U.S. Nuclear Regulatory Commission, Washington, DC l
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l 20555, telephone (301)492-385k\ j l
1 SUPPLEMENTARY INFORMATION:
l I. Introduction and Background j II. Legislative Requirements III. Legislative History i
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. -Comments-on-the Prupusedattle k h 8 3IS XI. Finding of No Significant Environmental Impact: Availability XII. Paperwork Reduction Act Statement .
t XIII. Regulatory Analysis !
l XIV. Regulatory Flexibility Certification 1 XV. List of Subjects in 10 CFR Part 62 .
I. Introduction and Background On December 15, 1987, NRCpublishedaproposednewfartto10CFR in order to implement its emergency access responsibilities under Sec-tion 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985
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(FL 99-240, January 15, 1986), "the Act." The proposed Part 62 set forth
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the procedures and criteria that the Commission intended to use to deter-mine if emergency access to non-Federal and regional-low-level waste (LLW) disposal facility should be granted. The public comment period the propos e expired on February 12, 1988. The NR received twenty-one (21) letterspuninesing on the pfb e. Te of the comment letters came from concerned citizens, J4ve from State governments,'three from LLW compact Commissions, two rom industry and one from a nuclear information service.
The Act directs the States to develop their own LLW disposal facil-ities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new facilities will be available by January 1, 1993.
The Act establishes procedures and milestones for the selection and ;
development of the LLW disposal facilities. The Act also establishes a system of incentives' for meeting the milestones, and penalties for fail-ing to pet them, which is intended to assure steady progress toward new facility development.
The major incentive offered by the Act is that the States and regional Compacts which meet the milestones will be allowed to continue to use the existing disposal facilities until their own facilities are available, no later than January 1, 1993. If unsited States or Compact regions fail to meet key milestones in the Act, the States or Compact Commissions with operating non-Federal or regional LLW disposal 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.
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Section 6 of the Act provides that the Nuclear Regulatory Commission-(NRC) can grant a generator " emergency access" to non-Federal or regional low-level radioactive waste (LLW) disposal facilities if access to those facilities has been denied and access is necessary in order to eliminate I an immediate and serious threat to the public health and safety or the common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative' con- 'I sistent.with the public health and safety, including ceasing the activ-1 ities that generate the waste. NRC must be able, with the information i
provided by the requestor, to make both determinations prior to granting l m
m y'N v~n - ~ u 4 II. Legislative Requirements i
In addition to directing the NRC to grant emergency access as i discussed in the Background section, the Act further directs NRC to designate the operating LLW disposal facility or facilities where the waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.
The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request. To ensure that emergency access is not abuud, the Act allows that only one extension of emergency access, 4
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not to exceed 180' days, is-to be granted per request. An extension can be approved'only if the LLW' generator who was originally granted emer-
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gency access and'the. State in'which.the'LLW was generated have diligently-though unsuccessfully acted during the period of.the' initial grant to )
,. a eliminate the need for emergency access.
The Act'also provides that; requests'for emergency access shall contain'all information and certifications that NRC-requires'.to make.its
. determination.-
'" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the Commission's discretion because of a serious'and'immediate threat to the public' health and safety or the
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common defense and security pending a-Commission' determination as to whether the. threat.could be mitigated by suitable alternatives. 'The' grant of temporary emergency access expires 45 ' days- after Lit is granted.
Although.the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is issuing this' rule to establish '
the procedures and criteria that will' be used in making the required determinations for emergency access. Since the requisite condition that 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 l !
the LLW disposal sites by the States or Compacts with operating disposal l
1 facilities, implicit in any decision to grant emergency access is the fact that such a decision will override the sited States' and/or Compacts' expressed desire not to accept waste from that particular State or generator. Although Congress provided NRC the statutory responsibility for implementing Section 6 of the Act and gave the Commission authority l
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to decide whether or'not access will be provided, emergency access deci-sions'are likely to be controversial. By setting out the procedures and criteria for making emergency access decisions in'a rule which reflects 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-sions on emergency access requests within the time allowed by the Act.
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III. Legislative History (
)
The legislative history of the Act emphasizes the Congressional l l
intent that emergency access be used only in very limited and rare cir- t cumstances and that it was not intended to be used to circumvent other.
1 provisions of the Act. Congress believed it was important for the i l l 1-l successful implementation of the Act that emergency access not be viewed .ii by the unsited States as an alternative to the' pursuit of the development l of new LLW disposal capacity. The legislative history indicates that 1
Congress believed that with the various management options available to LLW generators, including, for example, storage or ceasing to generate l the waste, the instances where there was no alternative to emergency ,
1 access would be unlikely. Congress expected that responsible action from !
the generators and the States / Compacts should resolve most access problems ;
I thus precluding the necessity for involving the Federal sector in grant-ing emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort.
In developing the emergency access rule, NRC tried to be consistent both with the actual text of Section 6 of the Act and with the intent expressed by Congress regarding decisions made pursuant to Section 6.
The rule sets strict requirements for granting emergency access and 6
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[7590-01) should serve to encourage potential requesters to seek other means for resolving the problems created by denial of access to LLW disposd fail-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-l ments for approving requests for emergency access, NRC intends to rein-l 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 1
history.
l Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the {
terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to--
ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant,
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allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and j
- ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded. I i
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a However, it'is clear from'theilegislat'ive history of thi Act th'at-Section 6(g) should not be construed as providing~the Compact Commission- ;
with a veto over the NRC's grant ofLemergency. access. The basic purpose. .l 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 p ,
situations. A Compact Commission. veto would frustrate the~ purpose of the' emergency access provision and would be generally contrary to'the leg'is-1 lative framework established in the Act. As emphasized in the HouseL ';
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-Committee on Interior and Insular Affairs Report on the Act, ratification J of a Compact should be conditioned on.the Compact's acting in accord with 1
the provisions of.the Act. If the Compact refuses to provide,.under its I
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own authorities,' emergency access under Section' 6, Congressional ratifica- j tion of that Compact would.be null and void. H.R. REP..No. 314, 99th-Cong., 1st Sess., pt. 1, at 2997 (1985).
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IV. NRC Approach In developing.this rule, the NRC's approach was to:
- 1. assure that all of the principal provisions of Section 6 of the Act are ~ addressed in the regulation.
- 2. identify the information and certifications that will have to be submitted with any request for emergency access in order for NRC to make the necessary determinations.
- 3. assure that the procedures and criteria that are established in i 10 CFR Part 62 can be implemented within 45 days after NRC receives a request as specified in the Act.
- 4. establish procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consistent ,
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-of-waste that'can b'e disposed of at each operating; facility.
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5.' . establish requirements for granting emergency. access that'are~~
stringent-enough to discourage thefunsited' States'and regions from view-
'ing-emergency access as an' alternative to. diligent pursuit.of their.own disposal capability, and yet flexible enoughlto' allow NRC'toirespond appropriately in situations;wh'ere emergency ~ access.is genuinely!needed-to' protect lthe public' h' ealth and safety or' the common defense and security.. >
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' y V. Assumptions j
-NRC-made.several assumptions in' developing this rule.
NRC ass'umed'that the wastes-requiring disposal under the emergency:
access provision will be the result of unusual circumstances. The nature
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.of routine LLW management.is-such that it is difficult-to conceive of :
situations where denial of access to disposal would crt: ate a serious and .
immediate threat to the public health and safety or the national secu-rity. In most cases generators should'be able to safely store routinely generated LLW or employ other options for managing the waste without l- requiring emergency access. Thus, if all.the LLW generators in a State 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 LLW generated by a particular kind of. generator since the need for emergency access would be different in each case.
NRC has also assumed that requests for emergency access will not be made for wastes which would otherwise qualify for disposal by the 9
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Department of Energy (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-tenance, repair or safety activities. Section 5(c)(5) of the Act specifically sets aside 800,000 cu ft of disposal capacity above the regular reactor allocations through 1992 to be used for those wastes.
With this space reserved for wastes qualifying for the " unusual' volumes allocation," NRC believes emergency access should be reserved for other LLW, until the 800,000 cu ft allocation is exceeded.
NRC considered basing its decisions for granting emergency access solely on quantitative criteria, but decided against that approach.
i While NRC has identified some of the wastes and the scenarios which would create a need for emergency access, it is unlikely that all possibilities ,
can be predicted or anticipated. Largely because of the uncertainty associated with identifying all of the circumstances under which emer-gency access may be required, NRC has avoided establishing criteria I with absolute thresholds. Instead, the rule contains a combination of qualitative and quantitative criteria with generic applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by-case basis.
1 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.
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I Subpart A.- General-. Provisions Subpart.A contains the purpose and. scope of the rule, Definitions,
.instructionstfor communications with:the' Commission, and provisions
. relating to interpretations of~the rule. Subpart A states that.the rule.
applies'to all persons as; defined by this regulat' ion who have been denied- j access to existing commercial LLW' disposal facilities and who'~ submit'a
-request-to the Commiss. ion forTan emergency access-determination under .
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Section 6 of.the Low-Level Radioactive Waste Policy Amendments'Act of 'l
-1985. -Subpart A also. emphasizes.that the e:ncrgency access rule' applies 1
only to'those subclasses of LLW for.which the: States have disposal i responsibility under Section 3(1)(a) of the Act.
1 Subpart B - Request for a Commission Determination Subpart B specifies the information that must be submitted and the.
procedures that must be followed by a person ~ seeking a Commission deter-I mination on emergency access. !
l Specifically, Subpart B requires the submission of information on the need for access to LLW disposal sites, the_ quantity and' type of material requiring disposal, impacts on health and safety or common defense.and security if emergency access were not granted, and consideration of available alternatives to emergency access. This information will enable the Commission to determine:
(a) whether a serious and immediate threat to the public health and -i I
safety or the common defense and security might exist, ~
(b) whether alternatives exist that could mitigate the threat, and i (c) which non-Federal disposal facility or facilities should i provide the disposal required.
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.In addition to the above, Subpart B.also sets forth procedures.for
'the filing and. distribution offa request for a-Commission. determination.
It'provides for publication'in the Federal Register of a notice of
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i., . receipt of'a' request for emergency access to inform' the public that' Commission action on the request.is pending. Even though comment is not-l i
required by'the Act orLthe Administrative Procedure Act,.Subpart B.
lprovides for a 10-day public comment' period on the request'for emergency access.
In the' event that the' case for. requesting emergency access is to be
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' based totally or. in part on the threat posed to 'the common defense and security, Subpart B requires that'a. statement of support from the Department of Energy (D0E) or the Department of Defense (D0D)-(as appro-priate) be. submitted as part of'the initial ' request for emergency access.
If the request is bas'ed entirely on, common defense and security concerns, l NRC will not proceed with the emergency. access l evaluation until the statement of support is submitted. {
1 Subpart C - Issuance of a Commission Determination For the NRC to grant emergency access, the Commission must first l
conclude that there is a serious and immediate threat' to the public health and safety or the common defense and security, and second that l there are no available mitigating alternatives. Subpart C sets out the procedures to be followed by the Commission in-considering requests for emergency access, for granting extensions of emergency access, and l for granting temporary emergency access; establishes the criteria and standards to be used by the Commission in making those determinations; and specifies the procedures to be followed in issuing them.
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Subpart C provides that NRC,-in making the ' determination .that there' is a serious and immediate threat'to the public health andJsafety, will, l
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consider: -(1) the nature and extent of,the radiation hazard that would.
result .from the denial 'of access includin'g consideration.of the standards l for radiation protection contained'in 10 CFR Part 20, any' standards- 3
'l governing the release of radioactive materials to the general environment J that are applicable to the facility that generated the low-level waste, and any other Commission requirements.specifically applicable to the-facil.ity or activity which is the subject of the emergency. access request and, (2) the extent to which essential services such as medical, thera-peutic, diagnostic, or research. activities will be disrupted.by the denial'of emergency access.
In making the determination that there'is a serious and immediate:
l- threat to the common defense and security, Subpart C provides that the Commission will consider whether the activity generating the LLW is neces-4 sary to the protection of the common defense and security and whether the-lack of access to a disposal site would result in a significant disrup-tion in that activity that would seriously threaten the common defense ;
and security. Subpart C also specifies that the Commission will con-sider D0D and DOE viewpoints in a statement of support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above deter-1 minations in the. affirmative, then the Lommission will consider whether alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potent-ially mitigate the need for emergency access. The Commission will 13
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consider whether the person requesting emergency access has considered I all factors in the evaluation of alternatives including state-of-the-art I technology and the impacts of the alternatives on tha public health and .j safety; For each alternative the Commission will also consider whether s
the requestor has demonstrated that the implementation of the alternative' )
is unreasonable because of adverse effects on the public health and j safety or the common defense and security, because it is technically or-economically beyond the capability of the requestor, or because the l 1
alternative could not be implemented in a timeiy manner.
Of particular concern to Congress was the possibility that ceasing i
the activity responsible for generating the waste could lead to the cessation or curtailment of essential medical services. Section 62.25 )
.i of the rule provides that the Commission will consider the impact on d medical services from ceasing tiie 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-i 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- -l able alternatives.
According to the procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for l emergency access will be denied.
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If the Commission. determines that there is a serious and immediate threat to the public health and safety or the common defense and security which.cannot be mitigated by any alternative, then the Commission will decide which operating non-Federal LLW disposal facility should receive the LLW approved for' emergency access disposal.
Subpart C sets out that in designating a disposal facility or facilities to provide emergency access disposal, the Commission will l 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, previo'us 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 whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access.
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access l
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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 ! arms and conditions of emergency access, Subpart D establishes that the operator of a LLW disposal facility which l has been designated to receive emergency access waste may refuse to accept the waste if it does not meet the conditions established by NRC pursuant to this Part. It also establishes that the Commission may l
l 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 l
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 Establishing the criteria to be used in determining that a serious and immediate threat exists to the public health and safety or the common
- defense and security is key to NRC's decisions to grant emergency access.
I l-Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate 'I threat."
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(1) ~To.the=Public health and safety--
8 The criteria in this rule for. determining whether. a serious and ,
immediatethrNat.tothepublichealthandsafety;exhsts,addressthree situations. Section'62.25(b)(1) addresses the~. situation where the lack of access would result in a radiation hazard at the" facility.that is.
l , generating the LLW. Section 62.25(b)(ii) addresses the situation where the threat to public health a'nd 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 I Commission to consider several existing quantitative standards. :These consist of the Commission's standards for radiation protection in 10 CFR {
Part 20, any standards on the release of radioactive materials'to the general environment that are applicable to the' facility that generated the low level waste, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emer-gency access request. This latter category'would include license provi-sions, orders, and similar requirements.
The Congressional concern in enacting Section 6 of the Act was to ensure that a serious and immediate threat to the public health and safety did not result from a denial of access. In addressing this con-cern, the Commission will evaluate the request for emergency access in 17 1
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its entirety, i.e. the threat;to public health and safety and the alter-nativestoemergenkaccessthatmaybeavailabletomitigatethat
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threat. In other words, in determining what constitutes a serious"and, lg 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-public exposure upon which certain requirements in'10'CFR Part 20 are' founded would be an unacceptable threat to the public health and safety, and should be' considered for. emergency access. '
l The legislative history of Section 6'of the Act~does not provide any l
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 i 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-safety, including shutting down the. facility. However, there may be circumstances where a potential safety' problem would still exist, after the facility was shut down or the activity stopped, if the low level waste could not be disposed of because of denial of access. In this 18
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f I situation,emergencyaccess'may,bA:needed'.'LTheCommissionwouldempha--
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- size first,' that it is extremely unlikely that a- serious and. immediate -
. threat to.the public. health and tafety will ever result at the geneca-
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tor's facility from the lack of access 4 to a disposal facility, and
.i second, if. such a situation does exist, the Commission will' move. imine -
diately to eliminate the threat.
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If'the Commission'does receive a request for emergency _ access based on the above circumstances,'the Commission will evaluate the nature.and !
extent of the radiation hazard.- If-there is no violation'of the Commission's generic orl facility-specific radiation protection' standards,
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no serious and immediate threat would exist from the waste itself. This is separate from a finding that a serious and imniediate threat to the public health and safety would exist if the activity were forced'to: shut
.down.
Section 6(d) of.the Act allows the Commission to grant temporary _
emergency access for a period not to exceed 45 days solely upon a finding of a serious and immediate threat to the public health and-safety. .In.
order to grant temporary emergency access, the Commission is not required i to evaluate the availability of alternatives to emergency access that 3 would mitigate the threat. The Commission believes that grants of tempo- !
rary emergency access should be reserved for the most serious threat to f public health and safety, and has accordingly established criteria for '
grar ting temporary emergency access that require the consideration of '!
! I more serious events. For purposes of granting temporary emergency access ;
under Section 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining i
19
R
[7590-01]. ;
whether.an' event at,a' facility or activity licensed or otherwise regu- j
- {
lated by the Commission is an abnormal occurrence within the purview'of- _
Section 208'of the Energy Reorganization Act of'1974. (45 FR 10950, i
February 24,.1977.) LThis provision requires the Commission to keep Congress and the public informed.of unscheduled incidents or events.
1 which the Commission considers significant from the standpoint oflpublic:
]
l health:and safety. 'Under.the criteria established in the Commission's policy statement',: an event will' be considered 'an abnormal. occurrence if it involves a' major reduction.in the degree of protection provided~to public health ~and safety. Such an' event could. include--
1
- a. Moderate exposure to, or. release of, radioactive material;
- b. Major degradation of safety related'e'uipment; q or.
- c. Major deficiencies in design, construction, use of,.or. .i i
management controls for licensed facilities or. activities. l i
i In risciding whether to grant temporary emergency access, the j s
Commission will evaluate whether the emergency access situation falls ;
1 within the criteria in the Commission's policy statement on abnormal i i
L occurrences. '
l (2) To the common defense and security-- :
h Although NRC is required by the Act to determine that there is either a serious and immediate threat "to the public_ health and safety,"
or to "the common defense and security," realistically NRC cannot make l 1
l the latter judgement without some information from D0D and DOE which will assist NRC in identifying those situations involving the denial of access to LLW disposal which constitute a serious and immediate threat i
l to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those. objectives. While NRC l
20 l i
[7590-01]
has the Congressional mandate for this determination, NRC staff believe it necessary to consider D0D and DOE information as part of the decision-making process.
NRC considered several approaches for involving D0D and DOE in the process of determ',ning whether requests for emergency access should be granted on the basis of a serious and immediate threat to the common defense and security. NRC has concluded that the best way to provide such interaction is to require that requests filed with NRC for emergency -
access which are made entirely, or in significant part, on the basis of a serious and immediate threat to the common defense and security, should include appropriate certification from DOE or D0D substantiating the requestor's claim that such a threat will result if emergency access is not granted. The necessary certification in the form of a statement of support should be acquired by the requestor prior to applying to NRC for emergency access so the certification'can be a part of the actual petition.
Congress deliberately gave the NRC the responsibility for making the l
1 common defense and security determination rather than leaving the deter-mination with 00D or D0E. So while the Commission intends to give the D0D and DOE certifications and recommendations full consideration in evaluating requests for emergency access, the Commission will not treat them as conclusive.
(b) Determination on Mitigating Alternatives As directed by Section 6 of the Act, even if a situation exists which poses a serious and immediate threat to the public health and .!
safety or the common defense and securhy, emergency access is not to be l granted if alternatives are available to mitigate the threat in a manner i 21 L_____________ - - - - - - - -_ - - - - - - - - - - - - - - -
[7590-01]
consistent with the public health and safety. - Requestors for emergency access are required to demonstrate that they have explored the alterna-tives available and that the only course of action remaining is emergency access. Only after this has been demonstrated to NRC will the Agency
. proceed with a grant of emergency access.
Alternatives which, at a minimum, a requestor will have to evaluate are set out in Section 6(c)(1)(B) of the Act. They include (1) storage of LLW at the site of generation or in a storage facility, (2) obtaining access to a disposal facility by voluntary agreement, (3) purchasing disposal capacity available for assignment pursuant to Section 5(c) of the Act, and (4) ceasing the activities that generate the LLW.
While 6(c)(1)(B) of the Act sets these out as possible alternatives which a generator must consider before requesting emergency access, NRC has identified other possible alternatives to emergency access which l should be considered, as appropriate, in any requests for emergency access. These additional alternatives are discussed below.
Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and operators of commercial nuclear reactors with special access to disposal in the event that unusual or unexpected operating, maintenance, repair or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access provision was to apply to the Section 5(c)(5) wastes unless the capacity required for disposals under the unusual volume provision would exceed the 800,000 cubic feet allocated for those purposes. Thus, NRC has taken the posi-tion in this rule that as long as unusual volumes disposal capacity is available for LLW which qualifies for such disposal, emergency access 22
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[7590-01] l should not be requested. Applications for emergency access for wastes which NRC determines would otherwise be eligible for disposal under the j i
unusual volumes provision, will be denied. ;
1 Another alternative applies only to Federal or defense related j 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.
3I For all the alternatives that are considered, NRC is requiring h % 1 detailed information from the r;q""r" regarding the decision process leadirg 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 combining alternatives in some way or in some sequence either to avoid the need for emergency accass, or to resolve the threat, even on a tempo-rary basis, until other arrangements can be made; (4) evaluate the costs, econorric feasibility, and benefits to the public health and safety of the potential alternatives, and (5) incorporate the results into the request.
(c) Designation of Site In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the LLW requiring emergency access, NRC will determine which of the disposal facilities would qualify under the limitations set out in Section 6(h) of the Act. According to those limitations, a site would be excluded from receiving emergency access waste if (1) the LLW does not meet the license criteria for the site; l (2) the disposal facility meets or exceeds its capacity limitations as 23 1
J
.[7590-01]
. 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 th'e total volume of the LLW accepted for disposal at the site in the previous calendar' year.- 3 If NRC cannot designate al 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 I
at.each site, the volume of emergency tccess waste previously accepted by each site, and any other information that would be necessary in order to come to a site designation decision.
Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute the waste as equitably as possible l among the available operating, non-Federal or regional LLW disposal facil-ities. To the extent practicable, NRC intends-to rotate the designation of the receiving site, and, for the three currently operating facilities, to allocace 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 k
the waste and best serve the interest of protecting the public health-and safety. However, if the volume of waste requiring emergency access 1
i 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 24
[7590-01]
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-l tinuous basis.
It should be noted that in setting out the site designation provision for Section 5, Congress assumed there would always be a site deemed appro-priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations provision set forth in the Act. It is not clear what options Congress intended NRC to consider if all sites are deemed inappropriate to receive the LLW. This may have to be addressed by Congress at some time in the future.
(d) Volume Reduction Determination Section 6(1) of the Act requires that any LLW delivered for disposal as a result of NRC's decision to grant emergency access "should be reduced in volume to the maxi 9um extent practicable " NRC will evaluate the extent to which volume reduction methods or techniques will be or have been applied to the wastes granted emergency access in order to arrive at a finding in regards to this provision.
NRC may receive a request for emergency access where the applica-tion of volume reduction techniques may be sufficient to mitigate the threat posed to the public health and safety. As a result, NRC plans to evaluate the extent to which waste has been reduced in volume as a part 25
[7590-01]
of its mandated evaluation of the alternatives considered by the genera- i l
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 j
to Section 6, volume reduction determinations will be made on a case-by-case basis. The optimal level of volume reduction will vary with the
]
waste, the conditions under which it is being processed or stored, the administrative options available, and whether volume reduction process- )
I ing creates new wastes requiring treatment or disposal. In evaluating j i
whether the wastes proposed for emergency access have been reduced'in. l 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, pyrophoricity, and explosive potential); condition of current container; potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste (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.
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 26
i
[7590-01] i the Act, as well as those requirements which specifically. address emer-gency access. This means that LLW granted emergency access shall be processed, treated and disposed of in a manner consistent with any other LLW which .is eligible. for disposal. at operating non-federal or regional-LLW disposal facilities under the Act. The disposal of waste by grant-of emergency access should not preclude the implementation of any 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 to the special fees and surcharges specified in the Act for emergency l access disposal, they shall not otherwise be subject to fees or require-ments that are not customarily charged or imposed for routine LLW disposal. l I;
IX. Requests for Emergency Access Made Prior to the Effective Date of the Rule The Commission has tried to anticipate when the first request for emergency access might be made so the final rule would be in place before that time. However, it may be necessary for a generator or State to sub-mit a request for a Commission emergency access determination prior to the effective date of this rule. Commission determinations made on requests received before the final rule is in place will be guided by the criteria and procedures provided in the proposed rule.
27
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Y
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yj.92 {0 Y (X. ANALYSIS OF PUBLIC I~ O V k
$% U a3x *gl _M,c# (id j The Commission received 1)1etterscommentingon e pro osed rule. Ten of
, f.] g [
G ]3 '.)I a ;
the comment letters came from concerned citizens, f' of potentially affected States, t 7- \
c from low-l rom the governm s rom 4
g ) the industry and one from a $chta.r_ ervice.fThemajorcomments k;nformation $qvel waste comp N
[are discussed here. Copies of the comment letters and (Netailed analysis S y
e'ach=of e comments are available for public inspection and copying for a Jt fee at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C.
j,q A
20555.
7,
}Q yy/hiits emergency In general, commentors expressed support for NRC's issuance of a rule for access decisions and indicated changes that would improve it
' from their perspective. Only one commentor, representing a lobbying group, expressed opposition to the issuance of the rule itself. That commentor indicated that the rule should be withdrawn because granting emergency access vould infringe on the States' right to manage their LLW. NRC was legisla-tivelymandatedtomakeemergencyaccessdeterminationswhenthedtatesare not otherwise able to manage their LLW. Thus, cicce tho p h _ g erporatss-puch-ef~t4e 1T@'Oltjeda;Section A " t'e a ct, NRC does not consider that the emergency access rule interferes with states' rights,/Gjn i R C Md i n u tpa ds ancl, 0(J41a quy n St <tua & of A < < 1:
Clarification of LLW Eligible for Emergency Access By far the most common concern expressed by commentors was that emergency access would be used to force operating non-federal or regional LLW disposal facilities to accept LLW they are either clearly not responsible for under the Act, or have specifically chosen to exclude from their facility. Four-teen of the commentors b almost half of the comments expressed concern that emergency access would be granted to wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, a-mecrity Of the commentors stated that Federal wastes, particularly those generated D0D, or w tes that are classified as greater e than.flass-C _ _ n Me hardr ./.4 should not &
be granted emergency access. Many of the commentors indicated that States andCompactsarenotdesigningtheirfacilitiestoprovidesafedisposalfor
h 2 these types of LLWs. Most of the commentors who expressed concern about whichwasteswouldbegrantedemergencyaccesswereconcernedthatLLWs/
detern ined e gible for routine disposal disposal under the Act, q could R ::: rHym hr disposal atState or regional facilities under the emgrgencyaccesj provisfon. j I -
-- t C - "/ 'T- N '#
wq 5 _. s 7
m % Throughout the development of Part 62, the NRC assumed that its mandate was to 2 grant emergency access only to LLW that would otherwise be eligible for
,f routine disposal at State or regional LLW disposal facilities according to 3 the terms and conditions set out in the Act. More specifically, the NRC
{ k believes that only those LLWs designeted by Section 3(a)(1) of the Act to be g, thedisposal[responsibilityoftheStatescouldbeeligibleforagrantof D emergency access disposal.
i X 1
Q l m UnderSubsection3(a)(1)(A),theStatde are mandated to provide disposal for i q commerciallygeneratedLLWclassifiegA,BandC. They are not required to provide disposal for greater-than-Class-Chastes. 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 Federally generated LLW which is excluded from State disposal responsibility under Section 3 (a)(1)(B). Under that subsection, the States are assigned the responsibility for disposing of "LLW generated by the Federal government except that which is owned or generated by 00E, by the Navy as a result of decommissioning of vessels, or as a result of any research, development, testing, or production of any atomic weapons."
nceLLWgeneratedbytheFederalgovernment[whichdoesnotfallintothese exclusinary categories / would be eligible for routine LLW disposal, those same Federally generated LLWs would also be eligible for emergency access disposal as well.
The NRC has no intentions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act. However, the 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 disposal resulting from a grant of emergency access. Apparently, that was not the case. To clarify the NRC's understanding and intent regarding the scope of wastes which the NRC
R '
t ,
3 considers to be potentially eligible for emergency access, the NRC added a new provision, (c) to Section 62.1, " Purpose and. Scope" of the final rule.
The new provision states that "The regulations in this Part apply only to q the LLW's which.the States have disposal responsibility for pursuant to Section 3(a)(1) of the Act."-' The NRC believes the addition of this clarifi- I cation to the final rule should resolve any questions regarding a particular 3 LLW's eligibility for emergency access consideration as well as the Commis-
! sion's intended application f the final rule. I A- 1 i
Reciprocal Access
.q Several of the commentors pointed out that the proposed rule omidi any reference to, or discussion of, Section 6(F) of the Act, which addresses reciprocal access. Section 6(F) provides that the Segional Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or $ tate'in which the l emergency access waste was generated. It further provides that the 9egional Eompactor$tatethatreceivestheemergencyaccesswasteshalldesignate, i for reciprocal access, "an equal volume of Low-level radioactive waste having l similar characteristics to that provided emergency access."
Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reci rocal,daccess
/ws should acaxr be addressed e .I i
in the final rule. Most of the commentors , ieved t e RC s ould broker reciprocal access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal facility is designated to ]
receive emergency access waste. Several of them emphasized that the recip-rocal 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 jtatehasvirtuallynoleverageorroletoplay in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. They indicated reciprocity is an integral part of Section 6 and should be part of the rule.
\
(
4
,/
One commentor indicated that even if the NRC did not wish to be invaled in brokering the arrangements, it "must ensure that the right to reciprocal access is recognized and its implications-are considered." The commentor indicated that a formal rec 1 rocal access acknowledgement should be extracted fromtheEompactAgionor)stateinwhichtheemergencyaccesswastewas generat3d g g e any determination for granting _ emergency. access is made.
They B Eli that such an acknowledgement should be _ required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access wo'ld u be provided.
The acknowledgement could then be included as part of the Section 62.22 noti-fication provided to the receiving state and, if appropriate, the 6empact Gemmission."
The NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, particulaglgor the$tates with the operating LLW disposal facilities designated o receive emergency access waste. Staff considered addressing reciprocal access during the development-of t oposed rule. At that time, the made a decision not to M '"da an- --- reciprocal accessf
- p' W&- a Me d believed it would be inappropriate for the NRC to assume the role of enforcing reciprocal access arrangements. The NRC's mandate under Section 6 is to grant requests l for emergency access in order to protect the public health and safety and the .
common defense and security from a serious and immediate threat.
The NRC reconsidered its position on reciprocal access in light of the comments j received on the proposed rule, but made no changes to the final rule. If the j NRC were to require a formal promise of reciprocal access as a necessary j condition for considering a request for emergency access, under certain cir- l cumstances, actions necessary to protect the public health and safety Gould be delayed or compromised. Thus, the NRC continues to believe that an enforcement role regarding reciprocal access is inappropriate for the Agency.
The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Commission's basic man-date to make emergency access decisions. The NRC maintains that arranging for reciprocal access in response to grants of emergency access is the responsibility of theStates and Compacts involved. The NRC believes that
5 the promise of reciprocal access desire'd by the'commentors could be secured-during the 15 day period required by the Act under Section 6(g) for Compact Commission approval of the NRC's LLW disposal facility designation.
fu Compact Approval of Grants of Emergency Access-Three of the commentors representing States or 6mpact d'mmissions o indicated that the NRC had been remiss in not including a provision in the proposed rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Commission of the region in which the designated site is located. The commentors.also wanted the rule to state that "no grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Commission," in order to establish that Compact Comission approval would be necessary before the NRC's decision would be considered final. The resolution v 'he issue raised by these comments is fundamental to the successful implementation of Congressional intent for the emergency access provision of the Act.
The basis for these comments is language in Section 6(g) of the Act. It states that "any grant of access under this Section shall be submitted to the Compact Comission for the region in which the designated disposal facility is located for such approval as may be required under the _ terms of its compact." This provision has proven to be somewhat cogrgvgrsial because it is open to several interpretations. The interpretation net frequently used by the States is that Congress intended for the Compact Commission of the designated site to have the final say regarding the acceptance of emer-gency access wastes. They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency access determination - essentially that Congress intended the compacts to have the~ power to veto the NRC's decision. The commentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
While the commentors were correct in noting that the proposed rule did not include a specific mechanism for implementing the Section 6(g) provision of the Amendments Act, the NRC's position on this issue was addressed in the N"? $ .
Y p 9wa~ nvk a.
+
6 Section 6(g) of the Act aims requirefthe NRC to notify the. Compact Commission for the region in which the disposal . facility is located of any NRC grant of access"forsuchapprovalasmayberequired'underthetermsofthe60mpact.3 However, Section 6(g) also requires that the Compact Commission "shall act to approve emergency access not later than 15 days after receiving notification from the NRC." Contrary to what several of the commentors believe, the NRC believes that disapproval is not really an option for the Regional Compact Commission in ich the designated emergency access disposal facility would be located. his position is derived from the legislative history for both '
Section 6 of the Act and the Omnibus Low-Level Radioactive Waste Interstate l Compact Act which was passed by Congress as.part of the Act. It clear from the legislative history that the basic pur os of the Section 6 emergency access provision is to ensure that sites est would normally be closed under the Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework estab-lished in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be condi-tioned on the Compact's acting in accord with the provisions of the Act. *If j the Compact refuses to provide, under its own authorities, emergency access j under Section 6, Congressional ratification of that Compact would be null and void. [H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).]
While disapprovafay not be an option under the Act, clearly the Act intended the receiving Compact Commission to be fully informed regarding the emergency access decision made by the NRC. The Commission believes the Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section 62.22 of the proposed rule provided that the NRC will notify the Compact Comission of the State in which the desig-l nated disposal facility is located that emergency access is required. It further provides that "the notifications must set forth the reasons that' emergency access was granted and specifically describe the low-level radio-active waste as to source, physical and radiological characteristics, and the minumum volume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to the public health and safety or the common defense and security, f
. 1 7- ,
I In order to further establish its' position on this issue, the NRC has made a change to the final rule. New language has been added to 62.22 which states:
that the Commission will make notification of the final determination in. i writing to the appropriate Compact Commission "for such approval as is- I specified as necessary "a Section 6(g) of the Act." 1 I
Applicable Terms and Conditions for Emergency Access A number of the commentors expressed concern that LLW granted emergency. j access to disposal by the NRC should be required to meet any conditions of' the site designated, as well as any fees, or taxes prescribed by that
- facility. Other commentors stated that LLWs granted emergency' access I
disposal should not have to pay any special fees, beyond those specifically mandated by the Act. In both cases the commentors wanted assurances 1 incorporatedintotherulethatinmakigemergencyaccesssitedesignation dete ations, the NRC would protect the health and safety interests a+-
.::' ,ethe financial interests of eithe -the disposal facility designated !
to receive the LLW, or the person % emergency access. In addition, l they wanted assurances included in the rule that the NRC would consider the fees, taxes, etc. in designating a site,to receive any waste granted emergency access.
The NRC's response to these concerns is simple', and is much like the earlier discussion about the response to comments concerning which wastes are eligible for emergency access. As previnusly stated, the Conmission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act). To the Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive the wastes by the NRC. Section 6(h) states that "No State shall be required to provide emergency access or reciprocal access to any regional disposal facility within its borders for low-level radioactive waste not meeting l criteria established by the license or license agreement of such l facility....."
L-__-___._
8 To assure that the .NRC will designate a site which is suitably matched to the LLW granted emergency access, the NRC included a provision in the proposed rule which stated that a.LLW disposal site will be excluded from consideration to receive emergency access waste if the waste does-not meet the' criteria established by the license or licensee agreement for the facility [62.26(b)(1)]. .
The license or licensee agreements incorporate / the regulations'and ~ requirements that affect each particular facility. Taken with the other information in
! .Section 62.26, which the NRC will consider before designating a site',the Commission believes Section 62.26 as it appeared in.the proposed rule adequately addresses the NRC's responsibility to designate a site' which does not preclude:
"the implementation of any specific regulations, and requirements at the designateddisposalfacilities."fRegardingfees,taxesandotherconditions that several commentors believed the NRC should consider in designating a site, the NRC believes that Congress intended for generators granted emergency I access to pay all the normal LLW disposal fees as well as the additional fees or surcharges 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 i decision.
The Commission recognizes the importance of conditions to ensure the implementation of emergency access decisions once they are made by the Com-mission. In response to the comments, the NRC add .d a new Section "VIII"~
to the Supplementary Information portion of the rule titled, " Terms and Con-ditions for Emergency Access Disposal." It sets out the responsibilities regarding the dispostion of emergency access for both the generator of the LLW granted emergency access and the operating disposal site e fsites 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.
Conditions of Termination ,
l Four of the commentors suggested the addition of a new section or subsection of the rule to address the conditions under which emergency could be tenninated.
The Commission agrees that terms and conditions should be established in the L_________-- _.
r; 9: j final rule for termination of grants of emergency access. The NRC has'added ')
a new Subpart D to the' final rule which ' incorporates some of- the' suggested conditions.for termination as recommended by the commentors. The.Subpart.is title, " Compliance with Conditions of Emergency Access; Termination _of Emergency Access." ThisnewSubpartDis.discussedundertheVI.(D)ofthe <
Supplementary Information for this rule.- It establishes that the operator of- the designated site may refuse emergency access waste if _ it does not meet j the cor,ditions established by the NRC pursuant.to this Part. It also -
' I lishes that the Commission may terminate a grant of emergency access' it -
determines that emergency access-is no longer needed.
1 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 1
(1) What scenarious are envisioned where emergency access would be required?
(2) What are the potential problems with the NRC's approach to determining an immediate and serious threat to the public health and safety?.
(3) What are the notential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense end 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? l l
Two of the comments specifically addressed this request for comment [ offering partial responses to some of the :. The comments did not reveal any new perspectives for the NRC to consider so the final rule was not affected by the comments received, l
In the proposed rule, the NRC specifically requested comments on the initial regulatory flexibility analysis from small businesses, small organizations, and small jurisdictions in order to determine if the final regulations should
\
r 10 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 was not necessary to change the final rule to accommodate the special needs of small business.
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X. Comments on the Proposed Rule i i
PW l p
O' ,
}e XI. Finding of No Significant Environmental 1
I 1
f' Impact: Availability
{
This rule establishes criteria and procedures for a Commission j i
determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a-serious and immediate threat to the public health and safety or the common defense and security. For the most part, the final rule is an administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect.
Therefore, the Commission has determined under the National Environ-mental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and, ,
therefore, an environmental impact statement is not required.
The environmental assessment forming the basis for this determination is contained in the regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted below.
l 28
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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.).
These requirements were approved by the Office of Management and Budget Approval Number 3150-0143.
i i
XIII. Regulatory Analysis !
The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the alter-natives considered by the Commission. The analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H )
Street NW., Washington, DC 20555. Single copies of the analysis may be ,
1 obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, ')
l Washington, DC 20555, t h area code (301) 492-3857.
l XIV. Regulatory Flexibility Certification NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facilities under Section 6 of the Act. Based upon the information avail-able and in accordance with the Regulatory Flexibility Act, 5 U.S.C.
l 605(b), the Commission certifies that this rule will not have a signifi-cant economic impact upon a substantial number of small entities.
The rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities 1
i would be considered to be a small entity. The generators of LLW are l
29
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nuclear power plants, medical and academic facilities, industrial licen-sees, research and development facilities, radiopharmaceutical manufac-turers,. fuel fabrication facilities and government licensees. Of-these categories, all but the power plants, fuel fabrication facilities, and government licensees could potentially include small entities.
Although these categories may contain a " substantial number of small '
entities," 'the Commission does not believe there will be a significant i
economic impact to these generators because the Commission does not !
l anticipate that many generators will be affected by the proposed rule. 1 f
In order for the requirements of the rule to be imposed on a generator, I
the generator himself must initiate the action by requesting a grant of emergency access from NRC. This would occur only because the generator has been denied access to LLW disposal.
The Commission is required by statute to make emergency access determinations. Since a grant of emergency ;; cess is intended to correct the problems LLW generators may encounter because of lack of access to LLW disposal, the provision of emergency access will benefit any genera-tor of LLW including small entities.
Establishing criteria and procedures for requesting and granting emergency access through a rule will also benefit small and large genera-tors. 10 CFR Part 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.
1 30 1
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The impact of the recordkeeping requirements on any affected licen-sees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and I assembled as part of any process to decide a course of action if neces-sary access to LLW disposal was not going to be available.
XV. List of Subjects in 10 CFR Part 62 i Administrative Practice and Procedure, Denial of Access, Emergency Access to Low-Level Waste Disposal, Low-Level Radioactive Waste, Low-Level ,
i Radioactive Waste Policy Amendments Act of 1985, LLW Treatment and Dis-posal, and Nuclear Materials.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive 4
Waste Policy Amendments Act of 1985, th'e NRC is adopting a new 10 CFR Part 62.
Part 62 - Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities
- 1. A new Part 62 is added to 10 CFR to read as follows:
Subpart A - General Provisions Section:
6
2.1 Purpose and Scope
62.2 Definitions.
62.3 Communications.
31 i .
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62.4 Interpretations.
62.5 Specific Exemptions.
62.8 Information Collection Requirements: OMB Approval Subpart 8 - Request for a Commission Determination 62.11 Filing and distribution of a determination request.
62.12 Contents of a request for emergency access: General information.
62.13 Contents of a request for emergency access: Alternatives. .)
j 62.14 Contents of a request for an extension of emergency access.
62.15 Additional information.
62.16 Withdrawal of a determination request.
62.17 Elimination of repetition.
62.18 Denial.of access.
, Subpart C - Issuance of a Commission Determination 1
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 0 - Compliance with Conditions of Emergency Access; Termination of Emergency Access 62.31 Termination of Emergency Access.
1 32 l
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l S 62.2 Definitions.
As used this part:
"Act" means the Low-Level Radioactive Waste Policy Amendments Act l
of 1985 (P.L.99-240). l 1
" Agreement State" means a State that - (A) has entered into an (
I agreement with the Nuclear Regulatory Commission under section 274 of the j Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to regu-late the disposal of-low-level radioactive waste under such agreement.
" Commission" means the Nuclear Regulatory Commission or its duly 1
authorized representatives.
" Compact" means a Compact entered into by two or more States l
pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985. I
" Compact Commission" means the regional commission, committee, or i l
board established in a Compact to administer such Compact.
" Disposal" means the permanent isolation of low-level radioactive waste pursuant to the requirements established by the Nuclear Regulatory l Commission under applicable laws, or by an reement State if such l
isolation occurs in such reement State.
" Emergency Access" means access to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days, which is granted by NRC to a generator of low-level radioactive waste who has been denied the use of those facilities.
" Extension of Emergency Access" means an extension of the access that had been previously granted by NRC to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
34 e _ _ _ - - - _ - - - - _ - - -
)
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i l
Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950, J l'
951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, j 99 Stat. 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, f 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f).
t Subpart A--General Provisions I
s 62.1 Purpose and scope. (
(a) The regulations in this part establish for specific low-level radioactive waste (1) procedures and criteria for granting emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a State that is not a member of a Compact, and l (2) the terms and conditions upon which the Commission will grant this emergency access.
(b) The regulations in this part apply to all persons as defined by this regulation, who have been denied access to existing regional or non-Federal low-level radioactive waste disposal facilities and who ;
submit a request to the Commission for a determination pursuant to this !
part. !
i (c) The regulations in this part apply only to the LLWs that the I \
StateshavetheresponsibilitytodisposeofpursuanttoSection3(f)(a) of the Act.
33
[7590-01]
" Low-Level Radioactive Waste" (LLW) means radioactive material that (a) is not high-level radioactive waste, spent nuclear fuel, or byproduct material (as defined in Section IIe(2) of the Atomic' Energy Act of 1954
[U.S.C. 2014(e)(2)]; and (b) the NRC, consistent with existing law and in accordance with paragraph (a), classifies as low-level radioactive waste.
"Non-Federal Disposal Facility" means a low-level radioactive waste disposal facility which is commercially operated or is operated by a State.
" Regional Disposal Facility" means a non-Federal low-level radioac-tive waste disposal facility in operation on January 1, 1985, or sub-sequently established and operated under a Compact.
" Person" means any individual,. corporation, partnership, firm,
( association, trust, State, public or private institution, group or agency who is an NRC or NRC Agreement State licensed generator of low-level 1 radioactivewastewithinthescopeofSection62.1(c)ofthisfart;any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any NRC or NRC Agreement State licensed generator or generators of low-level radioactive waste within the scope of Section 62.1(c) of this Part located in his or her " State";
or their duly authorized representative, legal successor or agent. i
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's 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.
i 35 r
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6 62.3 Communications.
Except where otherwise specified, each communication and report ,
I concerning the regulations in this part should be addressed to the Direc- .j tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear j Regulatory Commission, Washington, DC 20555, or may be delivered in I person to the Commission's offices at 1717 H Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland.
S 62.4 Interpretati w
)
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considerea binding on the Commission.
6 62.5 Specific exemptions.
The Commission may, upon application of any interested person or upon its own initiative, grant an exemption from the requirements of the regulations in this part that it determines is av. ':orized cv law and will l
l not endanger life or property or the common defense an,l w ority and is otherwise in the public interest.
1 S 62.8 Information collection requirements: OMB Approval.
The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Manage-ment and Budget (OMB) for approval as required by the Paperwork Reduction I Act of 1980 (44 U.S.C. 3501 et seq.). OMB has approved the information 36 i
4
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collection requirements contained in this part under control number 3150-0143.
Subpart B--Request for a Commission Determination S 62.11 Filing and distribution of a determination request.
(a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of the request with the Ccmmission at the address specified in S 62.3, with a copy also provided to the appropriate Regional Administrator at the address specified in Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination or the person's authorized representative under oath or affirmation.
(b) Upon receipt of a request for a determination, the Secretary of the Commission will cause to be published in the Federal Register a notice acknowledging receipt of the request and asking that public comment on the request is submitted within 10 days of the date of the notice. A copy of the request will be made available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC, and in the Local Public Document Room nearest the facility submitting the request. The Secretary of the Commission will also transmit a copy of the request to the U.S. Department of Energy, to the Governors of the States of the Compact region where the waste is generated, to the Governors of the States with operating non-Federal low-level radioactive waste disposal facilities, to the Compact Commissions with operating I regional low-level radioactive waste disposal facilities, and to the 37
[7590-01]
Governors of the States in the Compact Commissions with operating disposal facilities.
(c) Fees applicable to a request for a Commission determination under this part will be determined in accordance with the procedures set forth for special projects under category 12 of S 170.31 of this chapter.
(d) In the event that the allocations or limitations established in Section 5(b) or 6(h) of the Act are met at all operating non-Federal or regional t.LW disposal facilities, the Commission may suspend the process-ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General Information.
A request for a Commission determination under this part must include the following information for each generator to which the request applies:
(a) Name and address of the person making the request; (b) Name and address of the person (s) or company (ies) generating the low-level radioactive waste for which the determination is sought; (c) Certification that the radioactive waste for which emergency access is requested is low-level radioactive waste within Section 62.1(c) of this Part.
(d) The low-level waste generation facility (ies) producing the waste for which the request is being made; (e) A description of the activity that generated the waste; (f) Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied access; 38 !
[7590-01)
(g) A description of the low-level radioactive waste for which emergency access is requested, including:
(1) The characteristics and composition of the waste, including, but not limited to-- i (1) type of waste (e.g. solidified oil, scintillation fluid, failed equipment);
(ii) principal chemical composition; (iii) physical State (solid, liquid, gas);
(iv) type of solidification media; and j (v) concentrations and percentages of any hazardous or toxic chemicals, chelating agents, infectious or biological agents associated I
l with the waste; (2) The radiological characteristics of the waste such as--
(i) the classification of the waste in accordance with S 61.55; (ii) a list of the radionuclides present or potentially present in the waste, their concentration or contamination levels, and total quantity; (iii) distribution of the radionuclides within the waste (surface or volume distribution);
(iv) amount of transuranic (nanocuries/ gram);
)
(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety or the common defense and security; (4) The time duration for which emergency access is requested (not j to exceed 180 days);
(5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and 39 l
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(6) Description of the volume reduction and waste minimization techniques applied to the waste which assure that it is reduced to the maximum extent practicable, and the actual reduction in volume that occurred; (h) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat-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; s (3) A chronology and description of the actions taken by the person requesting emergency access to prevent the need for making such a request, including consideration of all alternatives set forth in S 62.13, and any supporting documentation as appropriate; (4) An explanation of the impacts of the waste on the public health and safety or the common defense and security if emergency access is not granted, and the basis for concluding that these impacts constitute a serious and immediate threat to the public health and safety or the common defense and security. The impacts to the public health and safety or the common defense and security if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; l
(5) Other consequences if emergency access is not granted; l
40
[7590-01]
(i) Steps taken by the person requesting emergency access to correct the situation requiring emergency access and the person's plans to eliminate the need for additional or future emergency access requests; (j) Documentation certifying that access has been denied; (k) Documentation that the waste for which emergency access is requested could not otherwise qc,11fy for disposal pursuant to the Unusual Volumes provision [Section 5(c)(5) of the Act) or is not. simul-taneously under consideration by the Department of Energy (DOE) for access through the unusual volumes allocation; (1) Where the request is made wholly or in significant part on the basis of a serious and immediate threat to the common defense and secu-rity, a Statement of support from DOE or D0D certifying that access to disposal is necessary to mitigate the threat to the common defense and security; (m) Date by which access is required; (n) Any other information which the Commission should consider in making its determination.
S 62.13 Contents of a request for emergency access: alternatives.
(a) A request for emergency access under this part must include information on alternatives to emergency access. The request shall include a discussion of the consideration given to any alternatives, including, but not limited to, the following: (1) storage of low-level ;
radioactive waste at the site of generation; (2) storage of low-level radioactive waste in a licensed storage facility; (3) obtaining access
! to a disposal facility by voluntary agreement; (4) purchasing disposal 41
o 1
[7590-01] l 1
capacity available for assignment pursuant to the Act;-(5) requesting a disposal at a Federal low-level radioactive waste' disposal facility.in the case of a Fede C. or defense related generator of LLW;-(6) reducing the volume of.the waste; (7) ceasing activities that. generate low-level radioactive waste; and (8) other' alternatives identified under Subpart o
-(b)'of.this Section.
(b) The request must identify all of the. alternatives to emergency
-access considered including any that would require State or Compact 6
action or any other,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 actions taken .)
to identify and implement alternatives during the process, and.a discus- q sion af any actions that were considered, but not implemented.
(c) The evaluation of each alternative must consider: (1) its poter.tial for mitigating the serious and immediate threat to public health and safety or the common defense and security posed by lack of access to disposal; (2) the adverse effects on public health and safety and the common defense and security, if any, of implementing each alter-native, including the curtailment or cessation of any essential services affecting the public health and safety or the common defense and.secu-rity; (3) the technical and economic feasibility of each alternative including the person's financial capability to implement the. alterna-tives; (4) any other pertinent societal costs and benefits (5) impacts to the environment; (6) any legal impediments to implementation of each 42
[7590-01]
alternative including 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) rejecting each alternative; and (2) concluding that no alternative is available.
S 62.14 Contents of a request for an extension of emergency access.
A request for an extension of emergency access must include.
(a) Updates of the information required in S 62.12 and S 62.13; and (b) Documentation that the generator of the low-level radioactive waste granted emergency access and the State in which the low-level radioactive waste was generated have diligently, though unsuccessfully, acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include: (1) an identification of additional alternatives that have been evaluated during the period of the initial grant, and (2) a discussion of any reevaluation of previously considered alternatives, including verification of continued attempts to gain access to a disposal facility by voluntary agreement.
S 62.15 Additional Information.
(a) The Commission may require additional information from a person making a request for a Commission determination under this part concern-ing any portion of the request.
(b) The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to a request for additional information under paragraph (a) of this section 43
___ --- _ - - - - _ - - - - - - - - - - - - - - - - - - . - - - .- - J
1
[7590-01).
i within ten (10) days from the date of the request for additional. informa- {
l tion, or any other time as 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.
l 6 62.16 Withdrawal of a determination request.
(a) A person may withdraw a request for a Commission determination 4 1
under this part without prejudice at any time prior to the issuance of an I initial determination under S 62.21. l (b) The Secretary of the Commission will cause to be published in ,
I the Federal Register a notice of the withdrawal of a request for a j i
Commission determination under this part.
1 S 62.17 Elimination of repetition.
l In any request under this part, the person making the request may incorporate by reference information contained in a previous application, Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific.
I 6 62.18 Denial of request.
If a request for a determination is based on circumstances that are too remote and speculative to allow an informed determination, the Commission may deny the request.
44
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Subpart C--Issuance of'a Commission Determination S 62.21 Determination for granting emergency access.
(a) Not later than (45) days after the receipt of a request for a Commission determination under this part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or genera-tors located in his or her State, the Commission shall 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 i
an immediate and serious threat (i) to the public health and safety or (ii) the common defense and security; and (2) The threat cannot be mitigated by any alternative consistent i with the public health and safety, including those identified in S 62.13. )
' j l
i (b) In making a determination under this section, the Commission l l
\
shall be guided by the criteria set forth in S 62.25.
(c) A determination under this section must be in writing and f l contain a full explanation of the facts upon which the determination is based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to eliminate I @ 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.
45
.l
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-)
S 62.22 ~ Notice of issuance of a determination.
(a) ~Upon the issuance ei a Commission determination the Secretary of the Commission will make notification of-the final determination in'-
l writing, to the person making the request, to the Governor of'the State- -l in which the low-level radioactive waste requiring emergency access was generated, to the Governor of'the State in which the designated: dis-posal facility is located, and if; pertinent,.to the appropriate Compact-Commission for such approval as is specified as necessary in Section 6(g) l
. of the Act. 'For the Governor of the State in which the designated disposal facility is located and for the appropriate Compact Commission, ;)
the notification must set forth the' reasons that emergency. access was granted an'd specifically describe the low-level radioactive waste as to -
source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme-diate and ' serious threat to public health and ' safety or the common ,
defense and security. For the Governor of.the State in which the low-level waste was generated, the notification must indicate that no exten-1 sion of emergency access will be granted under S 62.24 absent diligent l
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.
(c) The Secretary of the Commission will make a copy of the final determination available for inspection in the Commission's Public ;
Document Room, 1717 H Street NW., Washington, DC.
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6 62.23 Determination for granting temporary emergency access.
(a) The Commission may grant temporary emergency access to an appropriate non-Federal or regional ($}$$) disposal facility or facil-ities provided that the determination requirea under S 62.21(a)(1) is-made; (b) the notification procedures under S 62.22 are complied with;
- and l
l (c) the temporary emergency access duration will not exceed forty-five (45) days.
S 62.24 Extension of emergency access.
(a) After the receipt of a request from any generator of low-level-waste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially i
granted under S 62.21, the Commission shall make an initial determination j of whether--
l l (1) emergency access continues to be necessary because of an immed-iate and serious threat to the public health and safety or the common defense and security; (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and I (3) the generator of low-level waste and the State have diligently though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access.
l (b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) dpand62.22, must be followed.
47
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6 62.25 Criteria.for a Commission determination.
(a) In making the determination required by Section 62.21(a) of this part, the Commission will determine whether the circumstances described in the request for emergency access create a serious and imme-diate threat to the public health and safety or the common defense and security.
(b) In making the determination that a serious and immediate threat exists to the public health and safety, the Commission will consider, I
notwithstanding the availability of any alternative identified in Sec- 1 tion 62.13 of this part: i (i) the nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of, (A) the standards for radiation protection contained in Part 20 of this Chapter; 1
(B) any standards governing the release of radioactive materials to L the general environment that are applicable to the facility that gener-
] l ated the low level waste; and 1 i
I (C) any other Commissit , requirements specifically applicable to i the facility or activity which is the subject of the emergency access request; $*.
1 l
(ii) the extent to which essential services affecting the public '
health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency access.
(c) For purposes of granting temporary emergency access under Section 62.23 of this part, the Commission will consider the criteria contained in the Commission's Policy Statement for determining whether en event at a facility or activity licensed or otherwise regulated by the 48
[7590-01]
l l
Commission is an abnormal occurrence within the purview of Section 208 of 1
the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.) I i
(d) In making the determination that a serious and immediate threat ;
to the common defense and security exists, the Commission will consider, l
notwithstanding the availability of.any alternative identified in sec- ]
1 tion 62.13 of this part: (1) whether the activity generating the' wastes l l
is necessary to the protection of the common defense and security, l i
(2) whether the lack of access to a disposal site would result in a '
i significant disruption in that activity that would seriously threaten 1
the common defense and security. The Commission will consider the views ]
i of the Department of Defense (00D) and the Department of Energy (DOE) in i 1
the Statement of support as submitted by the person requesting emergency I access, in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security.
]
(e) In making the determination required by 6 62.21(a)(2), the l Commission will consider whether the person submitting the request:
(1) has identified and evaluated any alternative that could mitigate !
the need for emergency access; (2) has considered all pertinent factors I l
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 6 62.21(a)(2), the Commission will consider implementation of an alternative to be unreason-able if (1) it adversely affects public health and safety, the environ-ment, or the common defense and security; or (2) it results in a signifi- l cant curtailment or cessation'of essential services, affecting public health and safety or the common defense and security; or (3) it is beyond l
l 49 ,
1 U_______.__-_.
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the technical and economic capabilities of the. person requesting 'emer-'-
gency access; or (4). implementation of the alternative would. conflict' with. apolicable State or local lawsor Federal laws' and regulations; or.
(5) it cannot be implemented in'a timely manner.
~
(g)' The Commission shall'make an affirmative determination under S. 62.21(a) only if all of the alternativ'es that'were considered are' found-1 i
to be unreasonable.
(h) In making a' determination regarding temporary emergency access under S 62.23, the criteria:in parts (a) and (b) of that section shall-apply.
(i) In making a determination regarding an extension of emergency' ,
access under S 62.24, the Commission shall consider whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access. 9 (j) The Commission shall consider whether any waste delivered for.
l disposal under this part has been reduced in volume to the maximum extent practicable using available technology.
1 y S 62.26 Criteria for-designating a disposal facility.
(a) The Commission shall designate an appropriate non-Federal or i regional disposal facility if an affirmative determination is made i
pursuant to S 62.21.
(b) The Commission will exclude a disposal facility from considera-tion if: ,
(1) the low-level radioactive wastes of the generator do not meet the criteria established by the license agreement or the license agree-ment of the facility; or 50 -
1
[7590-01]
(2) the' disposal facility is in excess of its approved capacity;-or (3) granting emergency access would delay the closing of the disposal. facility pursuant to plans established before the receipt of the-request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 percent of the total volume of low-level radioactive waste accepted for disposal at the facility during the previous calendar year.
l (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:
f (1) typeofwasteanditscharacteristicsT8Qh .!
(2) previous disposal practices, (3) transportation.
(4) radiological effects, 4
(5) site capability for handling waste, (6) the volume of emergency access waste previously accepted by each site both for the particular year and overall, and (7) any other considerations deemed appropriate by the Commission.
(d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW disposal sites, or any information submitted by the public in response to a Federal Register notice requesting comment, as provided i'i para-graph (b) of b 62.11.
i 1
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L-_-__--______--._-________.__----..--__________ - - - - _ _ _ _ . _ _ _ _ _
[7590-01]
1 Subpart D--Compliance With Conditions of Emergency Access; )
.j Termination of Emergency Access S 62.31 Termination of Emergency Access (a) The operator of a regional disposal facility or. a non-Federal disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(b) The Commission 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. j l (c) The Commission may terminate a grant of emergency access if an applicant has provided inaccurate information in its application for emergency acceFs or if the applicant has failed to comply with this Part or any conditions set by the Commission pursuant to this Part.
I Dated at Rockville, MD, this day of , 1988.
For the Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
l l
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NUCLEAR REGULATORY COMMISSION -
10 CFR PART 62 l Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities AGENCY: Nuclear Regulatory Commission.
ACTION: Final Rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is issuing a rule to establish procedures and criteria for fulfilling its responsibilities i
associated with acting on requests by low-level radioactive waste (LLW)
)
generators, or State officials on behalf of those generators, for emergency access to operating, non-Federal or regional, low-level radioactive waste disposal facilities under Section 6 of the Low-level Radioactive Waste Policy Amendments Act of 1935.- Grants of emergency access may be necessa:'y if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal facilities, and the lack of access results in a serious and immediate threat to the public health and safety or the common defense and security.
EFFECTIVE DATE: (30 days after publication)
ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555, 1
L__- __ _
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FOR FURTHER INFORMATION CONTACT: . ' Janet Lambert ' Division' of Engineering J
10ffice of Research, U.S.. Nuclear Regulatory' Commission, Washington,' DC 20555, telephone (301).492-385k.- j Lj SUPPLEMENTARY INFORMATION: )
d i
1 I '. Introduction and Background i II. Legislative Requirements
-III. Legislative History
(
IV. NRC Approach V. Assumptions VI. The-Final Rule q VII. Rationale for Criteria-VIII. Terms and Conditions for Emergency Access Disposal f
IX. Requests For Emergency Acce'ss Made Prior to the Effective l
Date of the Rule X. 40mments-on-theiroposed-Rule - k h 8 5IS '
XI. Finding of No Significant Environmental Impact: Availability XII. Paperwork Reduction Act Statement
, XIII. Regulatory Analysis XIV. Regulatory Flexibility Certification I i XV. List of Subjects in 10 CFR Part 62 l l l I. Introduction and Background I On December 15, 1987, NRCpublishedaproposednewfartto10CFR in order to implement its emergency access responsibilities under Sec-tion 6 of the low-level Radioactive Waste Policy Amendments Act of 1985 ;
l 2
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..-[7590-01] '
Section 6 of the Act provides that'the Nuclear Regulatory Commission -
(NRC) can grant a generator " emergency : access"' to non-Federal or regional ]
. low-level radioactive warte (LLW)' disposal facilities if access to those j facilities has been denied and access is'.necessary in order to eliminate
.an immediate and serious thre'at to the public health and safety or the.
~' common defense and security. The Act also' req'uires that a determination be made.as to whether the threat can be mitigated by any, alternative con-sistent with the public health and safety, inclu' ding ce'asing the activ-ities that generate the waste. NRC must be able, with.the information 1
provided by the. requestor, to make both determinations prior to granting. J NN Q emergency access. N -flegg N %M lg 94uwaus a mh ij nera A &
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'5
- k .II. 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 operatihg LLW disposal. facility or facilities where the waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to their LLW disposal facility is required. The Act limits NRC to 45 days i
from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility, i The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request. To ensure that emergency access is :
not ab9 sed, the Act allows that only one extension of emergency access, 1
i w _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ . _ _ . _ _ . _ . _ _ _ _ ._ _ . _ _ _ . _ _ . _ _ . _ . _ _ . _ _ _ _
a!
-[7590-01]
not to exceed 180' days,- is to be. granted per request. An extension can be approved only'if the LLW generator who was originally grante'd emer-t gency access and the State in which the.LLW was generated have diligently ;
though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access. >
'The Act also provides that requests for emergency access shall-
~
l contain all.information and certifications that NRC requires to make'its l determination.
" Temporary emergency access" to non-Federal. or regional LLW disposa'l facilities may be granted 'at'the Commission's discretion because--of a serious and immediate threat to the public health and safety or the common defense and security pending a Commission. determination'as-to. .
whether the threat could be mitigated by suitable alternatives. The j grant.of . temporary emergency access expires 45 days after it is granted.
I Although the Act does not require NRC to develop a rule to carry out-its Section 6 responsibilities, NRC is issuing this rule to establish the procedures and criteria that will be used in making the required l determinations for emergency access. Since the requisite condition that 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 j the LLW disposal sites by the States or Compacts with operating disposal facilities, implicit in any decision to grant emergency access is the l
fact that such a decision will override the sited States' and/or Compacts' '
expressed desire not to accept waste from that particular State or generator. Although Congress provided NRC the statutory 're'sponsibility for implementing Section~ 6 of the Act and gave the Commission authority 5
[7590-01]
i 1
to decide whether or not access will be provided, emergency access deci-sions are likely to be controversial. By setting out.the procedures and criteria for making emergency access decisions in a rule which reflects 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-sions'on emergency access requests within the time allowed by the Act.
I III. Legislative' History {
}
The legislative history of the Act emphasizes the. Congressional l intent that emergency access be used only in very limit'ed and rare cir- !
cumstances and that it was not intended to be used to circumvent other i I
provisions of the Act. Congress believed it was important for the .j i
successful. implementation of the Act that emergency access not be viewed
.by the unsited' States as an alternative to the pursuit of the development I l
of new LLW disposal capacity. The legislative history indicates that Congress believed that with the various management options available to LLW generators, including, for example, storage or ceasing to generate the waste, the instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from the generators and the States / Compacts should resolve most access problems thus precluding the necessity for involving the Federal sector in grant-ing emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort.
In developing the emergency access rule, NRC tried to be consistent both with the actual text of Section 6 of the Act and with the intent expressed by Congress regarding decisions made pursuant to Section 6.
The rule sets strict requirements for granting emergency access and 6 )
i L-____________.____ _ - _ _ - _ _
[7590-01]
should serve to encourage potential requesters to seek other means for ]
l resolving the problems created by denial of access to LLW disposal facil-ities. The rule' places the burden on the party requesting emergency 1 i
access to demonstrate that the criteria in the rule have been met and ]
i emergency access is needed. Applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all l 1
other options for managing their waste. By establishing strict require- j i
ments for approving requests for emergency access, NRC intends to rein-force the idea that problems with LLW disposal are to be worked out to )
the extent practical among the States, and that emergency access to existing LLW facilities will not automatically be available as an alter-I native to developing that capacity. NRC believes this interpretation is j consistent with a plain reading of the Act and the supporting legislative history. l l
Section 6(g) of the Act requires the NRC to notify the Compact j 1
Commission for the region in which the disposal facility is located of i any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to--
ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant, e allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded.
7
' E
[7590-01] .i However, it is' clear from the legislative history of the Act that Section 6(g) should not be construed as'providing the Compact. Commission-with a veto over the NRC's grant of emergency _ access. The' basic purpose-
.of the Section 6 emergency access provision is to' ensure that sites that I
would normally be closed under the' Act will be available in emergency -
l situations. A Compact Commission veto wo'uld frustrate tne purpose of the !
emergency access provision and would be generally contrary to the legis- .
lative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification -
of a Compact should be' conditioned on_the Compact's-acting in accord with the provisions of the Act. If the ' Compact refuses to provide, under its' i
own authorities, emergency access under Section'6, Congressional .ratifica-tion of that Compact would be null and void. H.R. REP. No. 314, 99th j Cong., 1st Sess., pt. 1, at 2997 (1985).
IV. NRC Approach In developing this rule, the NRC's approach was to:
- 1. assure that all of the principal provisions of'Section 6 of the Act are addressed in the regulation.
- 2. identify the information and certifications that will have to be submitted with any request for emergency access in order for NRC to make the necessary determinations.
- 3. assure that the procedures and criteria that are established in 10 CFR Part 62 can be implemented within 45 days after NRC receives a i request as specified in the Act.
l
- 4. establish procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consistent l 8
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[7590-01]
with the other provisions of the Act, including the limits on the amount of waste that can be disposed of at each operating facility.
- 5. 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 to protect the public health and safety or the common defense and security.
V. Assumptions NRC made several assumptions in developing this rule.
NRC assumed that the wastes requiring disposal under the emergency access provision will be the result of unusual circumstances. The nature of routine LLW management is such that it is difficult to conceive of situations where denial of access to disposal would create a serious and immediate threat to the public health and safety or the national secu-rity. In most cases generators should be able to safely store routinely I i
generated LLW or employ other options for managing the waste without requiring emergency access. Thus, if all the LLW generators in a State l I
were denied access to LLW disposal facilities, NRC would not expect to i i
receive a blanket request for emergency access for all of the LLW )
generated in that State, or for all of the LLW generated by a particular l 1
kind of generator since the need for emergency acces:, would be different ;
in each case.
NRC has also assumed that requests for emergency access will not be made for wastes which would otherwise qualify for disposal by the 9
1
[7590-01] l 1
Department of Energy (DOE) under the unusual volt.mes 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 ;
j power stations as a result of unusual or unexpected operating, main- 1 tenance, repair or safety activities. Section 5(c)(5) of the Act 1 specifically sets aside 800,000 cu ft of disposal capacity above the regular reactor allocations through 1992 to be used for those wastes.
With this space reserved for wastes qualifying for the " unusual volumes 1 allocation," NRC believes emergency access should be reserved for other j LLW, until the 800,000 cu ft allocation is exceeded.
NRC considered basing its decisions for granting emergency access I l
solely on quantitative criteria, but decided against that approach.
]
While NRC has identified some of the wastes and the scenarios which would l
creata a need for emergency access, it is unlikely that all possibilities j can be predicted or anticipated. Largely because of the uncertainty l
associated with identifying all of the circumstances under which emer-gency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule contains a combination of qualitative and quantitative criteria with generic applicability. NRC believes this combination provides NRC maximum flexibility in considering l requests for emergency access on a case-by case basis.
l 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 l
requesting emergency access and in determining whether or not requests should be granted. Each Subpart is suinmarized and discussed here.
10
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+
Subpart A - General Provisions?
Subpart A contains.the purpose.and-scope'of the rule, definitions,.
instructions for communications with the Commission, and. provisions relating to interpret 6tions'of the. rule.' Subpart A states that'the rule. !
- applies to all persons as.definud by this~ regulation who'have been denied' access to existing commercial 1LLW disposal ~ facilities and who submit a' R request to the Commission for an emergency: access determination under 3 Section 6 of the Low-Leve.1 Radioactive Waste Policy Amendments.Act of.
1985. Subpart' A also emphasizes that the emergency. access: rule applies
'i
.only tb those subclasses of LLW for which the. States have disposal-~
. responsibility under Section 3(1)(a) of the Act. _t Subpart B - Request for a Commission Determination Subpart B specifies the information that must be submitted and the procedures that must be followed by a person seeking a Commission l deter-mination on emergency access.
i Specifically, Subpart B requires the submission of information on the need for access to LLW disposal sites, the quantity and typ; of material requiring disposal, impacts on health and safety or common defense and security if emergency access were not granted, and j consideration of available alternatives to emergency access. This i information will enable the Commission to determine:
(a) whether a serious and immediate threat to the ~public health and -
safety or the common defense and security might exist, (b) whether alternatives exist that could mitigate the threat, and (c) which non-Federal disposal facility or facilities should provide the disposal required.
I 11
I
{
-[7590-01] j In addition'to the above, Subpart B also sets forth procedures for j the filing and distribution of a request for a Commission determination. l It provides for publication in the Federal Register of a notice of receipt of a request for emergency access to inform the public that ]
Commission action on the request is pending. Even though comment is not.
required by the Act or _ the Administrative Procedure Act, Subpart B' provides for a 10-day public comment period on the request for emergency access.
In the event that the case.for requesting emergency access is to be based totally or in part on the threat posed to the common defense and
]
security, Subpart B requires that a statement of support from the Department of Energy (DOE) or thc Department of Defense (D0D) (as appro-priate) be submitted as part of the initial request for emergency access. I If the request is based entirely on common defense and security concerns, NRC will not proceed with the emergency access evaluation until the statement of support is submitted.
Subpart C - Issuance of a Commission Determination j For the NRC to grant emergency access, the Commission must first conclude that there is a serious and immediate threat to the public
- l. health and safety or the common defense and security, and second that there are no available mitigating alternatives. Subpart C sets out l the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and for granting temporary emergency access; establishes the criteria and i
standards to be used by the Commission in making those determinations; l
and specifies the procedures to be followed in issuing them.
12
[7590-01] 1 l
Subpart C provides that NRC, in making the determination that there !
l is a serious and immediate threat to the public health and safety, will ;
l consider: (1) the nature and extent of the radiation hazard that would '
result from the denial of access including. consideration of the standards for radiation protection contained in'10 CFR Part 20, any standards I l
governing the release of radioactive materials to the general environment '
that are applicable to the facility that generated.the low-level waste, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request and, (2) the extent to which essential services such as medical, thera-peutic, diagnostic, or research activities will be disrupted by the denial of emergency access.
In making the determination that there is a serious and immediate threat to the common defense and security, Subpart C provides that the Commission will consider whether the activity generating the LLW is neces- ;
sary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disrup- l l
1 l tion in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will con-l sider D0D and DOE viewpoints in a statement of support to be filed with I the request for emergency access, i Under Subpart C, if the Commission makes either of the above deter-minations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potent-ially mitigate the need for emergency access. The Commission will 13 1
[7590-01]
consider whether the person requesting emergency access has considered all factors in the evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and safety. For each alternative, the Commission will also consider whether the requestor has demonstrated that the implementation of the alternative is unreasonable because of adverse effects on the public health and safety or the common defense and security, because it is technically or economically beyond the capability of the requestor, or because the alternative could not be implemented in a timely manner.
Of particular concern to Congress was the possibility that ceasing the activity responsible for generating the waste could lead to the cessation or curtailment of essential medical services. Section 62.25 of the rule provides that the Commission will consider the impact on medical services from ceasing the activity in making its determination that there is a serious end 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 c/ a request for emergency access so they can be considered by the Commission in its overall determination about reason-able alternatives.
According to the procedures set out in Subpart C, the Commission will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an alternative is determined by NRC to be reasonable, then the request for emergency access will be denied.
14
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If the: Commission' determines that there is.a serious and immediate l1
. threat to the public health and safety or the common defense.and security-
]1 which'cannot be. mitigated by any alternative, then the Commission will:
- l. . decide which operating non-Federal LLW disposal facility should. receive i .. the LLW approved for emergency access disposal.
1'
'Subpart C sets out that in designating a disposal' facility or 3 facilities to provide emergency access disposal, the Commission will' first consider whether a facility should be' excluded from consideration-because: (1) the'LLW does not meet the-license' criteria for the site; ,
I (2).the disposal' facility meets or exceeds its' capacity.' limitations as~
set out in the Act; (3? granting emergency access would delay the planned .l 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- .
1 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 i 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 !
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. 'l In making a determination that temporary emergency ' access is neces- !
sary, the Commission will have to consider whether.the emergency access l situation falls within the criteria and examples in the Commission's I
i 15 l
_ _ _ _ _ _ _ _ . I
'[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;
. '(
l
. Termination'of Emergency. Access' Subpart D contains the terms and conditions of'eme'rgency access.
j Subpart D establishes thatLthe. operator of:a LLW disposa11 facility which
-has>been designated to receive emergency access' waste may-refuse to- j i
accept the waste lif it does not meet the' conditions established byLNRC; l 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 i
is discussed below:
(a) Determination that a-Serious and Immediate Threat Exists i Establishing the criteria to be used in determining that a serious q and immediate threat exists to the public health and safety or the common !
-(
defense and security is key to NRC's decisions to grant emergency access. !
I Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate threat."
i I
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[7590-01]l (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 l generating the LLW. Section 62.25(b)(ii). addresses the situation where~- -
l L 'the. threat to public health and safety would result from disruption of
-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 .s general. environment that are applicable to the facility that generated the low level waste, and any other Commission requirements specifica11y' applicable to the facility or activity which is the subject of the emer-
{
gency access request. . This latter category would include license provi- l l
sions, orders,'and similar requirements.
The Congressional concern in enacting Section 6 of the Act was to i 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- ,
I cern, the Commission will evaluate the request for emergency access in ;
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[7590-01] :]
its entirety, i.e. .the threat to public health' and safety and the . alter-natives to emergency access that may be available to mitig' ate that threat. In other words, in~ determining what constitutes a serious and' immediate-threat to public health and safety, the Co'mmission.must con- 1 sider what. threat would be unacceptable' assuming that no alternatives
, 3 are available. In the Commission's. judgment, any situation'that would' result in exceeding the occupational dose. limits or basic' limits'of' ]
public exposure upon which certain' requirements in 10.CFR Part 20 are founded would be an unacceptable threat to the public health and safety, and should be considered for emergency access. !
l The legislative history of Section 6 of the Act does not. provide any illustrations of a situation where a serious and immediate threat.to the public health and safety would be created at the facility at which the 1
waste is stored, although it is clear that Congress was concerned over the potential radiation hazard that might result at a particJ1ar facility that was denied access to LLW disposal. The Commission does not antici- -
1 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 J
establishes criteria to address this possibility. Under its normal j i
regulatory responsibilities and authority, the Commission would act immediately to prevent or mitigate any threat to the public health and l l
safety.. including shutting down the facility. However, there may be l
circumstances where a potential safety problem would still exist, after the facility was shut dow.,or the activity stopped, if the low level l waste could not be disposed of because of denial of access. In this .,
18
3
- [7590-01] -1 9
situation, emergency access may.be needed.' .The Commission would empha-size first, that it-is extremely unlikely that a serious and immediate:
threat to the public health and safety will ever result at'the. genera--
tor's facility from the. lack of access to a disposal. facility, and-second, if such a situation does exist,-the Commission will move imme-R diate.ly to eliminate the threat. ~
f If the Commission does receive a. request.for emergency access based d on the above' circumstances, the Commission will evaluate the nature and !
extent of the radiation hazard. If there is no violation of the' Commission's generic or facility-specific radiation ~ pre.,tection standards, no serious and immediate threat would' exist from the waste itself. This l l
is separate from a finding'that a serious and immediate threat to the l public health and safety would exist if the activity.were forced to shut down.
Section 6(d) of the Act allows the Commission to grant temporary ~
emergency access for a period not to exceed 45 days solely upon a finding of a serious and immediate threat to the public health and safety. In order to grant temporary emergency access, the Commission is not required.
to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Commission believes that grants of tempo-rary emergency access should be reserved for the most serious threat to public health and safety, and has accordingly established criteria for granting temporary emergency access that require the consideration of more serious events. For purposes of granting temporary emergency access.
under Section 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining 19 i
[7590-01]
whether an event at a facility or activity licensed or otherwise regu-lated by the Commission is an abnormal occurrence within the purview of J Section 208 of the Energy Reorganization Act of 1974. (45 FR 10950, i
February 24, 1977.). This provision requires the Commission to keep !
Congress and the public informed of unscheduled incidents or' events -]
1 which the Commission considers significant from the standpoint of public health and safety. Under the criteria established in the Commission's i
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; J l
- b. Major degradation of safety related equipment; or i
- c. Major deficiencies in design, construction, use of, or j management controls for licensed facilities or activities. I' In deciding whether to grant temporary emergency access, the Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal occurrences.
(2) To the common defense and security--
Although NRC is required by the Act to determine that there is either a serious and immediate threat "to the public health and safety,"
or to "the common defense and security," realistically NRC cannot make
)
the latter judgement without some information from D0D and DOE which will assist NRC in identifying those situations involving the denial of access to LLW disposal which constitute a serious and immediate threat to the national defense and security, or the importance of a particular l LLW generator's activities in maintaining those objectives. While NRC 1
1 20
1
[7590-01] !
has the Congressional mandate for this determination, NRC staff believe it necessary to consider D0D and DOE information as part of the decision-making process. !
J NRC considered several approaches' for involving 00D and DOE in the )
process of determining whether requests'for emergency access should be
! granted on the basis of a serious and immediate threat'to the common ,
I l
defense and security. NRC has concluded that the best way to provide ]
) such interaction is to require that requests filed with NRC for emergency access which are made entirely, or in significant part, on the basis of j
, a serious and immediate threat to the common defense and security, should i
! l l include appropriate certification from DOE or 00D substantiating the
\
]
l 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
)
support should be acquired by the requestor prior to applying to NRC for emergency access so the certification can be a part of the actual petition.
Congress deliberately gave the NRC the responsibility for making the ;
common defense and security determination rather than leaving the deter-mination with 000 or DOE. So while the Commission intends to give the j 000 and DOE certifications and recommendations full consideration in evaluating requests for emergency access, the Commission will not treat them as conclusive.
(b) Determination on Mitigating Alternatives As directed by Section 6 of the Act, even if a situation exists which poses a serious and immediate threat to the public health and safety or the common defense and security, emergency access is not to be granted if alternatives are available to mitigate the threat in a manner 21
[7590-01]
consistent with the public health and safety. Requestors'for emergency access are required to demonstrate that they have explored the'alterna-tives~available and that the only course'of action. remaining is emergency access. Only after this has been demonstrated.to NRC!will.the Agency l
. proceed with a grant of. emergency access. .
Alternatives'which, at a minimum,-a requestor will have to evaluate-1 are set.out in.Section 6(c)(1)(B) of the Act. They include'(1) storage. j of.LLW at the site of generation or in a storage facility,.(2)' obtaining I l access to a disposal facility by voluntary agreement, (3) purchasing. '.l I l
disposal capacity available for assignment pursuant to Section.5(c).of the Act, and (4) ceasing the activities that generate'the LLW.
While 6(c)(1)(B) of the Act sets these out as possible alternatives-which a generator must consider before requesting emergency access, NRC has identified other possible alternatives to emergency access which should be considered, as appropriate, in any requests for emergency access. These additional alternatives are discussed below.
Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and operators of commercial nuclear reactors with special access-to disposal in the event that unusual or unexpected operating,' maintenance, repair or safety activities produce quantities of. waste which cannot be other-wise managed or disposed'of under the Act. NRC does not consider that Congress intended that disposal under the emergency' access provision was to apply to the Section 5(c)(5) wastes unless the capacity required for
~
i disposals under the unusual volume provision would exceed the 800,000 l cubic feet allocated for those purposes. Thus, NRC has taken the posi- i tion in this rule that as long as unusual volumes disposal capacity is available for LLW which qualifies for such disposal, emergency access
.l 4
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[7590-01]
should not be requested. Applications for emergency access f.or wastes.
' which NRC determines would otherwise be eligible for disposal under the unusual volumes' provision, will be denied.
Another alternative applies only to Federal or defense .related ~
generators of LLW. NRC wil1~ 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 underLthe-emergency access provision.
g#I YFor all the' alternatives'that are considered, NRC is requiring
-detailed information from theYr r+ r regarding;the decision process leading to a request for emergency access. The. requestor will.be expected to: (1) demonstrate that all pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the alterna-tives considered; (3) demonstrate that consideration has been given to combining alternatives in some.way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even on a. tempo-rary basis, until other arrangements can'be made; (4) evaluate .the costs, economic feasibility, and benefits to the public health and safety of'the
~
potential alternatives, and (5) incorporate the results into the request.
(c) Designation of Site In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the.LLW requiring emergency access, NRC will determine which of the-disposal facilities would qualify under the-limitations set out in Section 6(h) of the Act. According to those limitations, a site would be excluded from receiving emergency access waste if (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as 23
[7590-01] ;
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 he Act alone, the Commission will consider other factors including the type of-waste, previous disposal practices, transportation requirements, radio- l
.)
logical effects of the waste, the capability for handling the waste I
at each site, the volume of emergency access waste previously accepted ;
by each site, and any other information that would be necessary in order !
to come to a site designation decision. i Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute the waste as equitably as possible among the available operating, non-Federal or regional LLW disposal facil- l l ities. To the extent practicable, NRC intends to rotate the designation of the receiving site, and, for the three currently operating facilities, !
to allocate emergency access disposal in proportion to the volume limita- ,
tions established in the Act. In most cases, NRC would expect that the designation of I single site will minimize handling of and exposure to the waste and best serve the interest of protecting the public health and u rety. However, if the volume of waste requiring emergency access i
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.
l In addition to the above, NRC will also consider how much waste has been designated for emergency access disposal to each site to date (both for the year and overall), and whether the serious and immediate threat l
24
i j
[7590-01) i of its mandated evaluation of the alternatives considered by the genera-tor. From that evaluation, the NRC could reach a finding on whether the waste has been reduced in a manner consistent with Section 6(i).
As is so for the other determinations NRC will have to make pursuant to Section 6, volume reduction determinations will be made on a case-by-case basis. The optimal level of volume reduction will vary with the waste, the conditions under which it is being processed or stored, the
]
administrative options available, and whether volume reduction process- !
ing creates new wastes requiring treatment or disposal. In evaluating !
l l whether the wastes proposed for emergency access have been reduced in I volume to the maximum extent practicable, NRC will consider the charac- :
teristics of the wastes (including: physical properties, chemical pro- I perties, radioactivity, pathogenicity, infectiousness, and toxicity, i pyrophoricity, and explosive potential); condition of current container; !
potential for contaminating the disposal site; the technologies or '
l combination of technologies available for treatment of the waste (includ- j 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 controis which could be 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 disoosal as established in 26
[7590-01]
l the Act, as well as those requirements which specifically address emer- j gency access. This means that LLW granted. emergency access shall be processed, treated and disposed of in a' manner consistent with any other LLW which is eligible for disposal at operating non-federal or regional 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 l
)
taxes prescribed by the disposal facility that may be in effect at the j l
time of:the Commission's determination to grant emergency access. How- 1 i
ever, while generators whose LLW is granted emergency access are subject i l
to the special fees and' surcharges specified in the Act for emergency ~ j access disposal, they shall not otherwise be subject to fees or require-1 ments that are not customarily charged or imposed for routine LLW j l
disposal. '
l IX. Requests for Emergency Access Made Prior to the l
Effective Date of the Rule The Commission has tried to anticipate when the first request for )
emergency access might be made so the final rule would be in place before that time. However, it may be necessary for a generator or State to sub-i mit a request for a Commission emergency access determination prior to the effective date of this rule. Commission determinations made on requests received before the final rule is in place will be guided by the criteria and procedures provided in the proposed rule.
27
4 &4N ' CMpO ]
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3'
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0 (X.ANALYSISOFPUBLICCOMMENTS 4
j' h e ho) kD7 s
The Commission received I letters commenting on he p osed rule. Ten of
' I the comment letters came from concerned citizens, rom the governm s
')
Y" ofpotentiallyaffectedStates,tlwrfhomlow-l I waste compacts, two rom k the industry and one from a $ clear bformation vice.fThemajorcomments
[ - [are discussed here. Copies of the' comment letters andMt$ tailed analysis S y euch=of ffe comments are available for public inspection and copying for a l"di fee at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C. i
,q 20555.
A i 2 .-} In gens al, commentors expressed support for NRC's issuance of a rule for
)
j j b dj its emergency access decisions and indicated changes that would improve it I from their perspective. Only one commentor, representing a lobbying group, expressed opposition to the issuance of the rule itself. That comentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage their LLW. NRC was legisla-tively mandated to make emergency access determinations when the 6tates are not otherwise able to manage their LLW. Thus, W ^ +' g @ nc&r=2+M
.much-ebthe--i angnamr-ht~ + 4 nn A ^# t ': ict, NRC does not consider that the emergencyaccessruleinterfereswithstates' rights,esfr4All IM M^"b e nu tgMUT NM4 T D M+py ' A S*'hh G y A I( U Clarification of LLW Eligible for Emergency Access i
By far the most common cor.cern expressed by commentors was that emergency l access would be used to force operating non-federal or regional LLW disposal l facilities to accept LLW they are either clearly not responsible for under the Act, or have specifically chosen to exclude from their facility. Four-teen of the commentors $ almost half of the comments expressed concern that emergency access would be granted to wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal f acili ties. Specifically, a--aduit, af the commentors stated that Federal wastes, particularly those generated b D0D,orwgtesthatare ;
classified as greater ethan Class-C, & -- _. . ncur_ 4 should not G-be granted emergency access. Many of the commentors indicated that States and Compacts are not designing their facilities to provide safe disposal for
]
h s 2- l these types of LLWs. Most of the commentors who expressed concern about J whichwasteswouldbegrantedemergencyaccesswereconcernedthatLLWs/
deter ined gible for routine disposal disposal under the Act, g could b cc ^"cNa hr disposal atState or regional facilities under the em r ency access provision. F"' ~-- -
- dWf' t' ~M* -l s p' / ' W d_ ,
,% Throughout the development of Part 62, the NRC assumed that its mandat'e was to 4
) grant emergency access only to LLW that would otherwise be eligible for- .
.f-3 routine disposal at $ tate or regional LLW disposal facilities according to the terms and conditions set out in the Act. More specifically, the NRC y believes that only those LLWs designated by Section 3(a)(1) of the Act to be f g the' disposal responsibility of the States could be eligible for a grant of D, emergencyacc[ssdisposal, e
i %
G m UnderSubsection3(a)(1)(A),theStatMe are mandated to provide disposal for )
i q 1 y commerciallygeneratedLLWclassifiegA,BandC. They are not required to 1 providedisposalforgreater-than-Class-Chastes. Thus, the NRC would expect to deny any request for emergency access received for greater-than-Class-C I waste. The same is true for the Federally generated LLW which is excluded from State disposal responsibility under Section 3 (a)(1)(B). Under that )
subsection, the States are assigned the responsibility for disposing of '.'LLW generated by the Federal governmer.t except that which is owned or generated by DOE, by the Navy as a result of decommissioning of vessels, or as a result j of any research, development, testing, or production of any atomic weapons." !
nce LLW generated by the Federal government [ which does not fall into these l exclusinary categories / would be eligible for routine LLW di.sposal, those same Federally generated LLWs would also be eligible for emergency access disposal as well.
The NRC has no intentions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act. However, the 4 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 disposal resulting from a grant of emergency access. Apparently, that was not the case. To clarify the NRC's understanding and intent regarding the scope of wastes which the NRC 1
i 1
3-considers to be potentially eligible for emergency access, the NRC added a new provision, (c) to Section 62.1,." Purpose and Scope" of the final rule.
The new provision states that."The regulations in this Part apply only to the LLW's which the States have disposal responsibility;for pursuant to Section3(a)(1)oftheAct." The NRC. believes the addition of-this clarifi-cation to the final rule should resolve any. questions regarding a particular
' LLW's eligibility for emergency access consideration as well as the Commis- ]
sions intended application'f the final: rule.
A l Reciprocal Access i Several of _ the commentors pointed out that the proposed rule omi y )
reference.to,ordiscussionof,Section6(F)oftheAct,whichaddresses 'l reciprocal access. Section 6(F) provides that the fegional Compact or State receiving the emergency access waste is entitled to reciprocal access at any-subsequentfacilitythatservestheCompactregionor$tateinwhich'the-emergency access waste was generated. Itfurtherprovidesthatthe9egional bmpact or$ tate that receives the emergency access waste shall' designate, for reciprocal access, "an equal volume-of Low-level radioactive waste having similar characteristics to that provided emergency access."
Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reci rocal. access should be addressed-M AwourA.Laccur uw in the final rule. Most of the commentors ieved the NRC should broker reciprocal access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal facility is designated to receive emergency access waste. Several of them emphasized that the recip-rocal 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 [ tate has virtually no leverage or role to play in the emergency access process and a guarantee of reciprocal access would '
make the situation more acceptable. They indicated reciprocity is an integral part of Section 6 and should be part of the rule. !
4 l
- r. l L__ _ - _ _
o i
a l
s One commentor indicated-that even if the NRC did'not wish to be invaled in I
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 reci rocal access acknowledgement should be extracted fromthefcompact@egionor.,tateinwhichtheemergencyaccesswastewas generge any determination for granting emergency access Lis made.
They Mic;ct that.such an acknowledgement should be . required by the NRC as .
part of .the contents of a request for emergency access- (Section 62.12) and should include some indication of when the reciprocal access would be provided.
The acknowledgement could then be included as part of the Section 62.22 noti-fication provided to the receiving state and, if appropriate, the 6empact Mommission."
The NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, particulaglgor the states with the operating LLW disposal facilities designated a receive emergency access l
waste. Staff considered addressirg reciprocal access during the development 1 g groposed rule. At that time, t R rd g decision n "c ' "4 any-- = fr. _..c; O reciprocal accessd .., ,,. y~ J . .Nf believed it -
would be inappropriate for the NRC to assume the role of enforcing' reciprocal access arrangements. The NRC's mandate under Section 6 is to grant requests ;
for emergency access in order to protect the public health and safety and the common defense and security from a serious and immediate threat.
The NRC reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule. If the NRC were to require a formal promise of. reciprocal access as a necessary !
condition for considering a request for emergency access, under certain cir-cumstances, actions necessary to protect the public health and safety Gould be delayed or compromised. Thus, the NRC continues to believe that an enforcement role regarding reciprocal access is inappropriate for the Agency.
The Commission also believes that any role regarding reciprocal access, even 4
of a brokering nature, could be in conflict with the Commission's basic man-date to make emergency access decisions. The NRC maintain: that arranging j for reciprocal access in response to grants of emergency access is the )
responsibility of theStates and Compacts involved. The NRC believes that I
l' i C__ _ _
1
> 5 the promise of reciprocal access' desired by the commentors. could be secured-during the 15 day period req'uired by the Act under Section 6(g)_for Compact Commission approval of the NRC's LLW disposal facility designation.
3 Compact' Approval of Grants of' Ernergency- Access Three of the commentors representing States or 6mpact emmissions indicated-that the NRC had been remiss in not including a provision in~the proposed )
rule which would require the NRC to seek approval for its decision'to grant I emergency access from the Compact Comission of the region in which the designated site is. located. The commentors also wanted the rule.'to state I that'"no grant of emergency access under this Part shall be effective prior i to 15 days from receipt of a request for approval from the Commission," in 1 order to establish that Compact Commission approval would be necessary before the NRC's decision would be considered final. The resolution of the issue i raised by these comments is fundamental to the successful implementation of Congressional intent for the emergency access. provision of the Act.
The basis for these comments is language in Section 6(g) of the Act. It )
states that "any grant of access under this Section shall be submitted to the Compact Comission for the region in which the designated disposal facility is located for such approval as may be required ui der the terms of its compact." Thisprovisionhasproventobesomewhatcogrgersialbecause it is open to several interpretations. The interpretation net frequently used by the Statet is that Congress intended for.the Compact Coninission of the designated site to have the final say regarding the acceptance of emer-gency access wastes. They believe Congress intended tnat a receiving Compact Commission could reject the NRC's emergency access determination - essentially that Congress intended the compacts to have the power to veto the NRC's l 1
decision. The commentors wanted the NRC to acknowledge this interpretation j of Section 6(g) by incorporating a veto / approval provision in the final rule. )
While the commentors were correct in noting that the proposed rule did not I 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 l e ep*hM'N cdis y M 9Eiit
-o . M d.E h % d ,
. 6 I
Section 6(g) of the Act dass requiresthe NRC to notify the Compact Commission for the' region in which the disposal facility is located of any NRC grant- of . l access "for such approval as may be required under'the terms of the 60mpact.a j However, Section 6(g) also requires.that the Compact Comission-."shall act to approve emergency access not later than 15 days after receiving notification L from the NRC." Contrary to what several of the commentors believe, the NRC i
believes that disapproval isLnot'really an option'for~the Regional Compact Comission in phich the designated emergency access disposal facility would.
belocated.(his position is derived from the legislative history for both.
Section 6 of the Act and the Omnibus' Low-Level. Radioactive Waste Interstate Compact Act which was passed by Congress as part of the Act. It clear from the legislat.ive history that the basic pur os of the Section 6 emergency access provision is to ensure that sites +het would normally be closed under
( the Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework estab-lished in the Act. As emphasized in the House Comittee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be condi-tionedontheCompact'sactinginaccordwiththeprovisionsoftheAct.*[fj the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification _of that Compact would be null and void. [H.R. REP. No. 314, 99th Cong. ,1st Sess. , pt.1, at 2997 (1985).]
While disapprovafnay not be an option under the Act, clearly the Act intended !
the receiving Compact Comission to be fully informed regarding the emergency access decision made by the NRC. The Comission believes the Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated d(sposal facility with information consistent with the specifications in the Act. Section 62.22 of the proposed rule provided that the hRC will notify the Compact Comission of the State in which the desig-nated disposal facility is located that emergency access is required. It !
further provides that "the notifications must set forth the reasons that emergency access was granted and specifically describe the low-level radio-active waste as to source, physical and radiological characteristics, and the minumum volume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to the public health and safety or the comon defense and security.
(
l __
- 7 In order to further establish.its position on this issue, the NRC has made a change to the final rule. New language has been added to 62.22 which states that the Commission will make notification of the final determination in writing to the appropriate' Compact Commission "for such approval as is specified as necessary in.Section 6(g) of the Act."
Applicable Terms and Conditions for Emergency Access A number of the commentors expressed concern that.LLW granted emergency access to disposal by the.NRC should be required to meet any conditions of the site designated, as well as any fees,'or taxes prescribed by that facility. Other commentors stated that LLWs granted 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 makig emergency access site designation delegations, the NRC would protect the health and safety interests as-
.. ".,wthe financial interests of eithen-the disposal facilit to receive the LLW, or theAWdL person
% 4:r% emergency access. y design In addition, they wanted assurances included in the rule that the NRC would consider the fees, taxes, etc. in designating a site to receive any waste granted emergency access.
The NRC's response to these concerns is simple, and is much like the earlier discussion about the response to comments concerning which wastes are eligible for emergency access. As previously stated, the Connission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act). To the Commission, it is quite clear from Section 6(h) of the Act that Longress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive the wastes by the NRC. Section 6(h) states that "No State shall be required to provide emergency access or reciprocal access to any regional disposal facility within its borders for low-level radioactive waste not meeting criteria established by the license or license agreement of such facility....."
)
. 8 To assure that the .NRC will designate a site which is suitably matched to
~
.the LLW granted emergency access, the NRC, included a provision..in the proposed.
rule which stated that a LLW disposal ' site will be excluded from consideration-to receive emergency. access waste if the waste does not meet the criteria established by the license or licensee agreement for. the' facility [62.26(b)(1)].
The-lic'ense or licensee agreements incorporate /'the. regulations and requirements, that ' affect each particular facility. Taken with the other information in Section 62.26, which . the' NRC will . consider before designating.a site, the -
Commission believes Section 62.26'as,it appeared in the proposed rule adequately -
addresses the NRC's responsibility to designate a site which does not preclude "the implementation of any specific regulations,.'and requirements at the designated disposal facilities."fRegarding fees, taxes and other conditions that several commentors believed the NRC should consider. in designating a site, the NRC believes'that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges specifically applicable to emergency access waste and established under Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designation l decision.
l The Commission recognizes the importance of. conditions to ensure the implementation of emergency access decisions once they:are made by the Com-mission. In response to the comments, the NRC adii.d a new Section "VIII" to the Supplementary Information portion of the rule titled,." Terms and Con-ditions for Emergency Access Disposal." It sets out the responsibilities regarding the dispostion of emergency access for both the generator of the LLW granted emergency access and the operating disposal site e fsites 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.
Conditions of Termination Four of the connentors suggested the addition of a new section or subsection of the rule to address the conditions under which emergency could be tenninated.
The Connission agrees that terms and conditions should be established in the
9 final rule for termination of grants of emergency access. The NRC has added a new Subpart D to the final rule which incorporates some of the suggested conditions for termination as recommended by the commentors. The Subpart is title, " Compliance with Conditions of Emergency Access; Termination of Emergency Access." This new Subpart D is discussed under the VI.(D) of the Supplementary Information for this rule. It establishes that the operator of the designated site may refuse emergency access waste if it does not meet the conditions established by the NRC pursuant to this Part. It also e -
lishes that the Commission may terminate a grant of emergency access it determines that emergency access is no longer needed.
Response to Specific Request for Comments In the proposed rule, the NRC specifically requested comments on certain parts or assumptions made by the NRC. Under Section VIII of the proposed rule, the NRC expressed an interest in receiving comments on:
(1) What scenarious are envisioned where emergency access would be required?
(2) What are the potential problems with the NRC's approach to determining an immediate and serious threat to the public health and safety?
(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?
l Two of the comments specifically addressed this request for commen offering partial responses to some of the k. 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 l regulatory flexibility analysis from small businesses, small organizations, and small jurisdictions in order to determine if the final regulations should l
l l
I
- 10 i
l 1
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 adequccy of the NRC's tegulatory flexibility analysis. As a result, it was not necessary to change the final rule to accommodate the special needs of small ousiness. !
1 I
l i
l l
l l
l l
i
1 1
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l X. Comments on the Proposed Rule fd 9 f' ;
l XI. Finding of No Significant Environmental
[@}
l L
l Impact: Availability i This rule establishes criteria and procedures for a Commission I determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a .
I serious and immediate threat to the public health and safety or the common defense and security. For the most part, the final rule is an l administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect.
Therefore, the Commission has determined under the National Environ-mental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and, !
therefore, an environmental impact statement is not required.
The environmental assessment forming the basis for this determination is contained in the regulatory analysis prepared for this regulation. !
The availability of the regulatory analysis is noted below.
l l
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)
XII. ' Paperwork Reduction Act Statement The final rule ' adds information collection r' requirements that: are -l i
~
. subject to the Paperwork Reduction Act-of. 1980.(44 U.S.C. 3501 et seq.).
-These) requirements:were approved by the Office of._ Management'and Budget.
Approval Number'3150-0143.
'q
}
XIII. . Regulatory Analysis-
'The Commission has prepared a regulatory analysis on this final regulation. Yhe ana'ysis.. examines the costs and benefits of.the alter-natives considered by the Commission. The' analysis is available:for 1
inspection, copying for a fee,.at the NRC Public Document Room,-1717 H- j Street NW. Washington, DC 20555. Single copies of the analysis may be .
obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, Washington, DC 20555, telephone area code (301) 492-3857.
j 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.
i 605(b), the Commission certifies that this rule will not have a signifi- "
cant economic impact upon a substantial number of small entities.
The rule has- the potential to affect any generator of LLW as well as - )
any existing LLW disposal facility. None of the LLW disposal facilities !
would be considered to be a small entity. Tne generators of LLW are j
29 i
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i The impact of the recordkeeping requirements on any affected licen- .
I sees should be minimal since the information that must be provided if a l l
generator requests emergency access would most likely be collected and l assembled as part of any process to decide a course of action if neces-sary access to LLW disposal was not going to be available. l 1
XV. List of Subjects in 10 CF" ' art 62 Administrative Practice and Procedure, Denial of Access, Emergency Access to Low-Level Waste Disposal, Low-level Radioactive Waste, Low-Level ;
1 Radioactive Waste Policy Amendments Act of 1985, LLW Treatment and Dis- l posal, and Nuclear Materials.
For the . reasons set out in the preamble and under the authority. of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act i
of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive !
Waste Policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62. i Part 62 - Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities j 1. A new Part 62 is added to 10 CFR to read as follows:
I l
l Subpart A - General Provisions Section:
l 6
2.1 Purpose and Scope
62.2 Definitions.
62.3 Communications.
l 31
[7590-01) l 62.4 Interpretations.
62.5 Specific Exemptions.
62.8 Information Collection Requirements: OMB Approval' Subpart B - Request for a Commission Determination 62.11 Filing and distribution of a determination request.
62.12 Contents of r request for emergency access: General information.
62.13 Contents of a request for emergency access: . Alternatives.
62.14 Contents of a request for an extension of emergency access.
62.15 Additional information.
62.16 Withdrawal of a determination request.
62.17 Elimination of repetition.
62.18 Denial of access.
l t
Subpart C - Issuance of a Commission Determination 62.21 Determination for granting emergency access. !
62.22 Notice of issuance of a determination.
62.23 Determination for granting temporary emergency access.
62.24 Extension of emergency access.
62.25 Criteria for a Commission determination.
62.26 Criteria for designating a disposal facility.
Subpart D - Compliance with Conditions of Emergency Access; Termination of Emergency Access 62.31 Termination of Emergency Access.
32 l
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Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950, 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, 99 Stat. 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f).
Subpart A--General Provisions S 62.1 Purpose and scope.
(a) The regulations in this part establish for specific low-level radioactive waste (1) procedures and criteria for granting emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a State that is not a member of a Compact, and
,(2) the terms and conditions upon which the Commission will grant this emergency access.
(b) The regulations in this part apply to all persons as defined by this regulation, who have been denied access to existing regional or non-Federal low-level radioactive waste disposal facilities and who submit a request to the Commission for a determination pursuant to this l
part.
(c) The regulations in this part apply only to the LLWs that the I
StateshavetheresponsibilitytodisposeofpursuanttoSection3(f)(a) of the Act.
33
[7590-01]
I S 62.2 Definitions.
i As used this part:
]
"Act" means the Low-Level Radioactive Waste' Policy Amendments Act )
l of 1985 (P.L.99-240). !
" Agreement State" means a State that _(A) has entered into an agreement with the Nuclear Regulatory Commission under section 274 of the {
Atomic Energy Act of 1954.(42 U.S.C. 2021); and (8) has authority to regu- k late the disposal of low-level radioactive waste under such agreement.
" Commission" means the Nuclear Regulatory Commission or its duly
(
authorized representatives. l
" Compact" means a Compact entered into by two or more States.
pursuant to the low-Level Radioactive Waste Policy Amendments Act of 1985.
l " Compact Commission" means the regional commission, committee, or l board established in a Compact to administer such Compact.
" Disposal" means the permanent isolation of low-level ra:ficactive waste pursuant to the requiremer:ts established by the Nuclear Regulatory Commission under applicable laws, or by an reement State if such isolation occurs in such greement State.
"Eme"gency Access" means access to an operating non-Federal or regional low-level radioactive waste disposal facility or facilities for ]
a period not to exceed 180 days, which is granted by NRC to a generator i
of low-level radioactive waste who has been denied the use of those 1 l
facilities. 2 J
" Extension of Emergency Access" means an extension of the access that had been previously granted by NRC to an operating non-Federal or 1
regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days. !
l 1
1 34 i
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" Low-Level Radioactive Waste"-(LLW) means radioactive material: that-
-(a) is not high-level' radioactive waste,; spent nuclear-fuel,.or byproduct' material (as' defined in.Section IIe(2) of the Atomic' Energy.Act of 1954; j 1
'[U.S.C. 2014(e)(2)];'and (b) the NRC, consistent with existing 1aw and ini
~
accordance with paragrapb.(a), classifies as low-level radioactive waste. l
~
"Non-Federal' Disposal Facility" means a. low-level radioactive waste disposial facility which is commercially operated or:is' operated by:a
- State.
~
" Regional Disposal Facility" means a non-Federal low-level-radioac-tive~ waste disposal facility in operation on January 1, 1985, or'sub'-
sequently established and operated ~under a. Compact.
" Person" means any individual,~ corporation,: partnership, firm, association, trust, State, public or private institution, group or agency I who'is an NRC or NRL Agreement. State licensed generator of low-level.
radioactivewastewithin.thescopeofSection62.1(c)of'thisfart;.any,
~
Governor (or for any '! State" without a Governor, the chief executive officer of the'" State") on behalf of any NRC or NRC Agreement State licensed generator or generatcrs of low-level. radioactive waste within-the scope of Section 62.1(c) of this Part located in his or her " State";
or their duly authorized representative, legal successor or agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an i
immcdiate and serious threat to the public health and safety or the common defense and secu-ity. Such access expires 45 days after the granting and cannot be extended.
35 1
[7590-01]
S 62.3 Communications' .
Except'where otherwise1specified,,each communication and report ~ i concerning the_ regulations in:this part should be: addressed to'the Direc-
~
' tor,OfficeofNuclear'MaterialsSafetyandSafeguardsj.U.S. Nuclear'.
Regulatory Commissi_on, Washington,.DC 20555,;or may be delivered in '
person'to the Commission's offices at 1717 H Street NW.,, Washington, DC, or:11555 Rockville Pike, Rockville, Maryland.
I I J S 62.4.. Interpretations.
Except as specifically authorized by the Commission.in writing,' no.
1 interpretation of the meaning of. the regulations in this part by any ,
officer or employee.of the Commission other than'a written interpreta-
' tion by the General' Counsel'will be considered binding ~on the Commission.
S 62.5 Specific exemptions. '
The Commission may, upon application of any' interested person or upon its own initiative, grant an exemption from the requirements of the ,
i regulations in this part that'it determines is authorized by. law and will {
l not endanger life or property or the common defense and security and is ,
l otherwise in the public interest.
l S 62.8 Information collection requirements: OMB Approval. 1 The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Manage- -i 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 !
36
[7590-01]
i 1
I i
collection requirements contained in this part under control number l l 3150-0143. 1 l
l Subpart B--Request for a Commission Determination l S 62,11 Filing and distribution of a determination request.
l (a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of the request with the 1
Commission at the address specified in S 62.3, with a copy also provided to the appropriate Regional Administrator at the address specified in Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination or the person's authorized representative under oath or affirmation.
(b) Upon receipt of a request for_a determination, the Secretary of the Commission will cause to be published in the Federal Register a notice acknowledging receipt of the request and asking that public comment on the request is submitted within 10 days of the date of the notice. A copy of the request will be made available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC, and in the Local Public Document Room nearest the facility submitting the request. The Secretary of the Commission will also transmit a copy of the request to the U.S. Department of Energy, to the Governors of ;
i the States of the Compact region where the waste is generated, to the l 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 37 I
[7590-01]
j l
Governors of the States in the Compact Commissions with operating disposal facilities.
(c) Fees applicable to a request for a Commission determination under this part will be determined in accordance with the procedures set l
1 forth for special projects under category 12 of S 170.31 of this chapter. '
(d) In the event that the allocations or limitations established in Section 5(b) or 6(h) of the Act are met at all operating non-Federal or- -
regional LLW disposal facilities, the Commission may suspend the process-ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General
)
Information. l l
A request for a Commission determination under this part must include the following information for each generator to which the request applies: q (a) Name and address of the person making the request; j!
1 (b) Name and address of the person (s) or company (ies) generating I J
the low-level radioactive waste for which the determination is sought; (c) Certification that the radioactive waste for which emergency access is requested is low-level radioactive waste within Section 62.1(c) l of this Part. j 1
(d) The low-level waste generation facility (ies) producing the j waste for which the request is being made; (e) A description of the activity that generated the waste; l
! (f) Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied access; 38
[7590-01]
l (g) A description of the low-level radioactive waste for which emergency access is requested, including:
I (1) The characteristics and composition of the waste, including, but not limited to--
l 1
l (i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment);
l (ii) principal chemical composition; '
)
(iii) physical State (solid, liquid, gas);
(iv) type of solidification media; and (v) concentrations and percentages of any hazardous or toxic f chemicals, chelating agents, infectious or biological agents associated !
with the waste; (2) The-radiological characteristics of the waste such as--
(i) the classification of the waste in accordance with S 61.55; {
(ii) a list of the radionuclides present or potentially present in the waste, their concentration or contamination levels, and total j l
quantity; l l
(iii) distribution of the radionuclides within the waste (surface or l volume distribution);
(iv) amount of transuranic (nanocuries/ gram);
(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and cafety or the common defense and security; (4) The time duration for which emergency access is requested (not to exceed 180 days);
(5) Type of disposal container or packaging (55 gallon drum, box, I liner, etc,); and ,
39
I
[7590-01] l 1
I (6) Description of the volume reduction and waste minimization l
techniques applied to the waste which assure that it is reduced to the j
. l maximum extent practicable, and the actual. reduction in volume that !
occurred; l
-(h) Basis for requesting .the determination set out in this part, ;
1 including: 1 (1) The circumstances which led to the denial of access to' existing.
low-level radioactive waste disposal facilities 1
(2) A description of the situation which is responsible for creat-ing the serious and immediate threat to the public health and safety or the common defense and security, including the date'when the need for emergency access was identified; (3)' A chronology and description of the actions taken by the person l reouesting emergency access to prevent the need for making such a request, l including consideration of all alternatives set forth in S 62.13, and any supporting documentation as appropriate; (4) An explanation of the impacts of the waste on the public health and safety or the common defense and security if emergency access is not i
granted, and the basis for concluding that these impacts constiti.tc a serious and immediate threat to the public health and safety or the common defense and security. The impacts to the public health and safety
{
or the common defense and security if the generator's services, including l
research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5) Other consequences if emergency access is not granted; 40
-[7590-01]'
(1) Steps taken by the person; requesting emergency' access toi d
. correct the situation requiring emergency' access and'the person's plans-
'to eliminate the need for additional or future emergency access requests; (j) Documentation certifying that, access has been' denied;.
.(k) Documentation.that the waste -for which' emergency access is requested could not otherwise qualify. for disposal pursuant to; the . l Unusual Volumes provision [Section 5(c)(5):of: the Act] or. is not. simul--
~
i taneously under consideration by'the Department of Energy (DOE) for: l
- i. access'through the unusual volumes' allocation; l
(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 00D certifying that' access.to .
disposal-is necessary to mitigate the threat to the common defense and security; (m) Date by which access is required; (n) .Any other information which the Commission should consider in making its determination.
l l
S 62.13 Contents of a request for emergency access: alternatives, i (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: (1) storage of low-level radioactive waste at the site of generation; (2) storage of low-level "
radioactive waste in a licensed storage facility; (3)-obtaining access to a disposal facility by voluntary agreement; (4) purchasing disposal 41
[7590-01]
capacity.available for assignment pursuant to the Act; (5) requesting l disposal at'a Federal low-level radioactive waste disposal facility in j the case of a Federal or defense related generator of LLW; (6) reducing j the volume of the waste; (7) ceasing activities that generate low-level I radioactive waste; and (8) other alternatives identified under Subpart (b) of this Section, i
(b) The request must identify all of the alternatives.to emergency i I
access considered = including any that would require State or Compact i rp I action or any other,that are not specified in paragraph (a) of this sec- j tion. The request should also include a description of the process used I
1 to identify the alternatives, a description of-the factors that were con-sidered in identifying and evaluating them,-a chronology of actions taken to identify and implement alternatives during the process, and a discus-sion of any actions that'were considered, but not implemented.
(c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public health and safety or the common defense and security posed by lack of a access to disposal; (2) the adverse effects on public health and safety l and the common defense and security, if any, of implementing each alter-native, including the curtailment or cessation of any essential services affecting the public health and safety or the common defense and secu-rity; (3) the technical and economic feasibility of each alternative including the person's financial capability to implement the alterna-tives; (4) any other pertinent societal costs and benefits (5) impacts to the environment; (6) any legal impediments to implementation of each 42
. _ _ _ _ - a
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l alternative including 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. I (d) The request must include the basis for: (1) rejecting each-1 alternative; and (2) concluding that no alternative is available.
1 l
S 62.14 Contents of a request for an extension of emergency access.
A request for an' extension of emergency access must include.
(a) Updates of the information required in S 62.12 and S 62.13; and
-(b) Documentation'that the generator of the low-level radioactive waste granted emergency access and the State in which the low-level l l
radioactive waste was generated have diligently, though unsuccessfully, acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include: (1) an identification of additional alternatives that have been evaluated during the period of the initial grant, and (2) a discussion of 'any reevaluation of previously considered alternatives, including verification of continued attempts to l gain access to a disposal facility by voluntary agreement.
S 62.15 Additional Information.
(a) The Commission may require additional information from a person making a request for a Commission determination under this part concern-ing any portion of the request.
(b) The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to a request for additional information under paragraph (a) of this section 43 I .
[7590-01]
f within' ten (10) days from the date of1the request for additional *informa-tion, or any other time as the Commission may specify. This. denial;will' not' prejudice' the right of-the person makir a the request to file another .
request for a. Commission determination under this part.
! S 62.16 Withdrawal' o'f a determination' request.
(a)A person may withdraw a request.for a Commission determination j' under this part without prejudice at,any time prior to the' issuance of:an:
initial determination'under S 62.21.
(b) The Secretary of the Commission will cause to be published in
-the Federal Register a notice of the withdrawal.of a request for a Commission determination under this'part; S 62.17 Elimination of repetition.
In any request under this part, the person making the request may
' incorporate by reference information contained in a previous application, Statement, or report filed with the Commission provided that these-refer-ences are updated, clear and specific.
S 62.18 Denial of request.
If a request for a determination is based on circumstances that I are too remote and speculative to allow an informed determination, the Commission may deny the request.
44 L___-____ _ - _ _ _ _ - _ _ - _ _ _ _ _ _ .
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Subpart C--Issuance of a Commission Determination S 62.21 Determination for granting emergency access.
(a) Not.later than (45) days after the receipt of a request for a Commission determination under this part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or genera-tors located in his or her State, the Commission shall 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 (1) to the public health and safety or (ii) the common defense and security; and I
l (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in 6 62.13.
(b) In making a determination under this section, the Commission shall be guided by the criteria set forth in 9 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-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume'and duration (not to exceed 180 days) necessary to eliminate [$f) 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.
45
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S 62.22 Notice of. issuance of a determination.
(a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification ~ of the- final determination in writing, to the person making the' request, to the Governor of the State-in which the low-level radioactive waste requiring emergency access was generated, to-the Governor of the State in which the designated dis-posal facility is located, and if pertinent, to the appropriate Compact Commission for such approval as is specified as necessary in Section 6(g) of the Act. For the Governor of the State in which the designated disposal facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency' access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (nct to exceed 180 days) necessary to alleviate the imme-diate and serious threat to public health and safety or the common defense and security. For the Governor of the State in which the low-level waste was generated, the notification must indicate that no exten-sion of emergency access will be granted under S 62.24 absent diligent State and generator action during the period of the initial' grant.
(b) The Secretary of the Commission will cause to be published in l
the Federal Register a notice of the issuance of the determination.
)
(c) The Secretary of the Commission will make a copy of the final determination available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC.
I d
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[7590-01)-
l L. lS 62.23 Determination for granting temporary emergency access.
(a) The Commissio'n may grant temporary emergency' access to anappropriatenon-Fe'deralor.regionalj}$$) disposal-facility!orLfacil-
.ities provided~that~the determination required underLS 62.21(a)(1)ls-made; (b)' the notification precedures.under S 62.22'are complied with;
~
J and (c) the temporary. emergency ' access duration vill. not; exceed :
forty-five:(45) days.
S 62.24 Extension of emergency. access.
(a). After the receipt of a request'from any generator of low-level I
waste, or any Governor on behalf of any generator or generators in his. or her State, for en extension of emergency access that was initial'ly-granted under S 62.21, the Commission shallimake an initial determination
')
of whether--
l (1) emergency access continues to be necessary because of an immed-
)
iate and serious threat to the public health and safety'or the. common defense and security; I
(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~ diligently i though unsuccessfully acted during the period of the initial grant to l eliminate the need for emergency access.
(b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) [ M and 62.22, must be followed.
f 47 i
(
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[7590-01]-
S 62.25 Criteria for a Commission determination.
(a) In making the determination required by Section 62.21(a) of 1
this part, the Commission will determine whether the circumstances described in the request for emergency access create a serious and imme-diate threat to the public health and safety or the common defense and security.
(b). In making the determination that a serious and immediate threat exists to the public health and safety, the Commission will consider, notwithstanding the availability of any alternative identified in Sec-tion 62.13 of this part:
(i) the nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of, (A) the standards for radiation protection contained in Part 20 of this Chapter; (B) any standards governing the release of radioactive materials to the general environment that are applicable to the facility that gener-ated the low level waste; and (C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access rcquest; (ii) the extent to which essential services affecting the public health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency access. ,
(c) For purposes of granting temporary emergency access under Section 62.23 of this part, the Commission will consider the criteria contained in the Commission's Policy Statement for determining whether an event at a facility or activity licensed or otherwise regulated by the l 48 !
I i
.[7590-011 i x
Commission is an abnormal occurrence within the purview of'Section 208 of
.the Energy Reorganization Act of 1974. (45lFR 10950, February 24,'1977.)'
l (d) In making the determination that a serious and immediate threat '
to the common'. defense and security exists, the Commission.will. consider, -l notwithstanding' the availability ofL any alternative identified in sec'-
tion '62.13 of:this part: (1) whether.the activity generating the wastes p is necessary to the protection of the common defense and security, (2) whether the lack of. access to 'a disposal site would result in a i
.significant disruption'in that activity that would seriously threaten the common defense and security. TheLCommission will consider the views
.of the Department of Defense (D0D) and the Department of Energy (00E) in the. Statement of support as submitted by:the person requesting. emergency access, in evaluating requests. based all, or in part, on a serious and q immediate threat to the common defense and security.
'(e) In making the. determination required by S 62.21(a)(2), the I
Commission will consider whether the person submitting the. request:
(1) has identified and evaluated any alternative that could mitigate the need for emergency access; (2) has considered all pertinent factors in its evaluation of alternatives including state-of-the-art technology and impacts on public health and. safety.
(f) In making the determination required by S 62.~21(a)(2), the Commission will consider implementation of an alternative to b'e unreason-able if (1) it adversely affects public health and safety, the e1viron-ment, or the common defense and security; or (2) it-results in a signifi-cant curtailment or cessation of essential services', affecting public health and safety or the common defense and security; or (3) it is beyond 4
1 49
[7590-01]
l l
the technical and economic capabilities of tihe person requesting emer-
.gency access; or-(4) implementation of;the , alternative would conflict 1 with applicable State or local laws or Federal laws- and regulations'; or (5) it cannot beLimplemented in a timely manner.
(g)The Commission shall make'an affirmative determination under S 62.21(a) .only if all of the. alternatives that were considered are found to be unreasonable. '
(h) In maki~ng a determination'regarding temporary emergency access under S 62.23, the criteria'in parts (a) and (b) of,that section shall' apply.
(i) In making a determination regarding an extension of emergency access under S 62.24,'the Commission shall consider whether the person-making the, request has diligently acted during the period of. the ~ initial '
grant to eliminate the need for emergency. access.
(j) The Commission shall consider whether'any waste delivered for disposal under this part has been reduced in volume to the maximum extent practicable using available technology.
S 62.26 Criteria for designating a disposal. facility.
(a) The Commission shall designate an appropriate non-Federal or regional disposal facility if an affirmative determination is made pursuant to S 62.21.
(b) The Commission will exclude a disposal facility from considera-tion if:
(1) the low-level radioactive wastes of the generator do not meet the criteria established by the license agreement or the license agree-ment of the facility; or 50
1
[7590-01]
)
l (2) the disposal facility is in excess of its approved capacity; or ;
(3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the
. request for emergency access; or (4) the volume of waste requiring emergency access' exceeds 20 i
percent of the total volume of low-level radioactive waste accepted forl l disposal at the facility during the previous calendar year.
(c) If, af'er t applying the exclusionary criteria in paragraph (b)
{
of this section, more than one disposal facility is identified as appro- l j
priate for designation, the Commission will then consider additional factors in designating a facility or facilities including:
(1) type of waste and its characteristics $ $ g 1
(2) previout, disposal practices, (3) transportation, (4) radiological effects, (5) site capability for handling waste, (6) the volume of emergency access waste previously accepted by each site both for the particular year and overall, and (7) any other considerations deelted appropriate by the Commission.
(d) The Commission, in making its designation, will also consider i
any information submitted by the operating non-Federal or regional LLW !
, disposal sites, or any information submitted by the public in response to a Federal Register notice requesting comment, as provided in para-graph (b) of 6 62.11.
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l
[7590-01]-
l Subpart D--Compliance With Conditions of Emergency Access; j Termination of Emergency Access S 62.31 Termination of Emergency Access j (a) The operator of a regional. disposal facility or a non-Federal i
disposal facility designated by the Commission to provide emergency 1 i
access may refuse to accept the wastes for disposal if the applicant or the waste does not n.eet conditions set by the Commission pursuant to !
this Part.
(b) 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.
(c) The Commission may terminate a grant of emergency access if an i
applicant has provided inaccurate information in its application for emergency access or if the applicant has failed to comply with this Part i i
or any conditions set by the Commission pursuant to this Part. '
Dated at Rockville, MD, this clay of , 1988.
For the Nuclear Regulatory Commission. )
I l
Samuel J. Chilk, Secretary of the Commission. l 52
s i%a n0n_ J Q V-Q be ana se-+ h
'f 0CI 62 ANAL ENCL C
- Yi Requestor's ID: ~
FINAN Author's Name:
LAffBERT J Document Comments:
SPE 7/25/88 - Return this sheet when submitting corrections k
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l 1
1 l 1 1 :
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IQ hj kla z%Y V
i
-REGULATORY ANALYSIS.'
Il 10 CFR Part 62 - Criteria and Procedures.for Granting Emergency Access to Non-Federal or Regional Low-Level Waste Disposal Facilities 1, STATEMENT OF'THE PROBLEM :
.Section 6 of'the Low-Level Radioactive Waste Policy Amendments Act of 1985-(PL 99-240, January 15, 1986), "the'Act", directs the Nuclear Regulatory Commission (NRC) to grant a generator'or State " emergency access" to any non-Federal commercial LLW disposal facility if access to those facilities has
- been denied and that access is necessary in order 'to eliminate an immediate and serious threat to the public health and safety or the common defense and. secu--
rity, The Act.also requires that a' determination be made as to whether the l
threat can be mitigated by any alternative consistent with the~public-health-and safety, including ceasing the' activities that generate the waste. NRC must be able, with the information provided by the requestor, to make b'oth deter-minations b "' '
-; prior to granting emergency access.
The Act further directs NRC to designate an operating LLW disposal .facil-ity to receive the waste which is granted emergency access and directs NRC to notify the appropriate State'and Compact officials regarding the designation.
The Act provides NRC with 4ti days from the time a' request is received to ,
determine whether emergency access is required and to designate a facility.
Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC staff recommended a rulemaking to establish the procedures and criteria that will be used in making the required emergency .
access determinations. Ci w .:~ > wu mite cun.,_-.. order for a requestor to be eligible for emergency access consideration ' "" theyd have already been denied acces LW disposal by the States or Compacts with operating disposal facilities.,pimplicit in any decision to grant emergency u access is the fact that such a decision will override the sited States' and/or Compacts' expressed desire not to accept waste from that particular State or. j generator, Although Congress provided NRC the statutory responsibility for f
implementing Section 6 and gave the Commission authority to decide whether i i
1 Enclosure C l
i
r or not access will be provided, emergency access decisions are likely to be controversial and could be challenged. By setting out the procedures and criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to minimize potential delays in the actions necessary to protect the public health and safety.
- 2. OBJECTIVES The objective of this final rule is to establish criteria and procedures to be used by the Commission to make the determination required by the Act that l emergency access to operating non-Federal or regional low-level waste disposal L facilities should be granted because denial of access has created a serious and immediate threat to the public health and safety or the common defense and security, that cannot be mitigated by any alternative consistent with pro-tecting the public health and safety.
- 3. ALTERNATIVES 3.1 Using Rulemaking Under this alternative the criteria and procedures to be used by NRC to make emergency access decisions would have the force of law. Using rulemaking i also provides binding criteria and procedures and therefore would add predict-ability and stability to the regulatory process. In addition, rulemaking allows for input from potentially affected individuals and organizations, should minimize potential delays in the actions necessary to protect the public health and safety, and will help to ensure that the Commission will be able to mak. a decision on emergency access requests in the time required by the Act, D" M iis-are desirable since emergency access decisions are likely to be l l
highly controversial.
l
- 3. 2 Using a Policy Statement !
The alternative of issuing a Commission Policy Statement to establish the procedures for emergency access decisions was rejected. Under this alterna- l tive, the criteria and procedures would not have the force of law. In I
2 Enclosure C .
l u----__------- - I
r M J j l' addition, a policy statement was not considered appropriate to establish the detailed criteria and procedures required to implement NRC's emergency access-
-_' ' / l' responsibilities r - n [ l n
3.3 Taking No Action l
l The alternative of taking no action was also rejected. Under this alter-native, both the person requesting an emergency access determination and the Commission would have to rely on the language in Section 6 of the Act for guidance as to what information was to be used by the Commission to make~the i determinations.' The Commission could not be assured of receiving.the relevant information necessary for a determination and that could cause delays in the Commission's mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with the spirit of the Congressional directive, to provide predictability (
in the regulatory process, and to assist the Commission in making individual determinations.
- 4. CONSEQUENCES 4.1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive l waste disposal facilities made pursuant to provisions of the Act should not j result in a serious and immediate threat to the public health and safety or the common defense and secur Igthosecaseswhereemergencyaccessis granted under the rule, the mi;'i=ts will receive the benefit of continuing the activity responsible for generating the waste at least until the grant expires.,.wd. Society will benefit from continuina gccess to the goods or J .trM.:. =hm ad a m cpu.ar 40 services produced by that activity V 5ince emergency htcess decisions will be cito f&s% i made on an individual generator / licensee basis, and since NRC staff cannot d %
predict the number of requests that might be received, it is not possible to
[
j quantify the benefits associated with the rule. i 3 Enclosure C l
_ ___ _ _ _ _ _ _ _ _ - _ - _ _ _ _ - _ _ _ . - _ - ._ _ _ _ = -- - -
4.2 COSTS ]
} 1
{ !
4.2.1 Applicants for Emergency Access Applim.t , mus i,.; :=rge.,9 a c c e = = u o, deneratorsofLLW,NRCor NRC Agreement States licensees, Governors or other State chief executive
-[
d officers on behalf of the generators or other'" persons" as defined in the i
\bRC staff estimates that regardless which of these person requests emergency access,'approximately two (2) weeks of the requestor's.
l professionalstafftimewillberequiredtoprocessthepaperworknecessaryto}
complete a request for an NRC determination pursuant to the requirements set /
out in the Act and which have been codified in the proposed rule)Because the '
stances will be different for each applicant, it is not possible to quantify the time or resources required for each of the applicants to collect the information and perform the analysis on which the request will be based.
This is particularly true when it comes to the possible need for long term data collection and the in depth analysis and consideration that will be necessary
( to evaluate alternatives y gg g m st Mer possible costs associated with this final actionte t';;r by OMA the very specific mandates in Section 6 of the Act. If NRC does not grant a request for emergency access, the applicant may have to alter the activities l generating the waste in question, even to the point of ceasing them for some- J
,1 period of time, or possibly curtailing them altogether. The costs.to the requestor could come from expenditures either in time or ~ resources required to ,
alter the activities or processes responsible for generating the wastes, or !
from loss of income from reduced or curtailed production.N N b y
'h & . 4144L;wCWS &La toti5 wcLukaINYf o
l 4.2.2 NRC 040 dka. w n of0 $ t% At.
As provided by Section 6 of the Act, NRC will only have about 30 working M days to respond to each request for emergency access (45 calendar days = 6 and $'
1/2 weeks = approximately 30 working days). NRC anticipates that approximately l 180 staff days will be required for each reques_tjg NRC cannot project the number of requests that might be received, so total costs to the NRC cannot be !
l estimated. However, given the Congressional intent that Section 6 of the Act
- I' l
be applied only in " rare emergencies," it is not expected that the regulation !
will be applied with any frequency.
~
U CC & Vo At. V 8 kk%J k' /SR 5 ccy Mc .rk &q 000 fu qwd :
4 Enclosure C 1
- - - - - - . - . _ - 1
y
,- l l
In order to implement this final rule,'it.wett be necessary for NRC staff to develop guidance to assist applicants'in preparing their requests,. and to assist NRC staff in conducting their reviews.,'This re esent an additional commitment of NRC resources.
'Since Section 6 precludes NRC-Agreement-States from making emergency access ^ decisions, the final action will .not have an impact on Agreement' State
. resources.
4.2.3 Department of Energy (DOE)/ Department of Defense (000)
NRC is requirhig that requests for emergency access based totally or in 1 i
significant part on a serious and immediate threat.to'the common defense ~and security, include a statement of support from nd/or D0E. NRC estimates a m~1Ss 1 \
that approximately five staff weeks would be r ire for each emergency access l request procejsed by DOE 'or D00. @ % K4w M45 NMC ; dhd
^Cest w h fCCo y i .
- 5. DECISION RATIONALE l I
NRC decided on the approach in the final rule in light cf the Congressional directives in Section 6 of the Act and considering the comparison of alternatives as discussed in the preceding section.
1
- 6. IMPLEMENTATION '
The schedule for implementation of the rule is dictated primarily by the schedules and milestones in the Act. The Act sets out three milestone dates requiring the States and Compacts to demonstrate specific progress towards the development of new LLW disposal capacity, or their LLW generators may be tenied further access to existing disposal sites.
The first date for potential denial of access was January 1, 1987 The States were able to satisfy the requirements for that milestone and none were !
l denied access. January 1, 1989 is the next date when the three operating LLW disposal facilities can refuse to accept waste from a particular State. NRC l plans to issus the final rule by November 1988, so it will be in place before that January 1989 potential denial of access date. Once the final rule is issued, its actual implementation will be triggered by NRC receipt of a request for emergency access.
5 Enclosure C
1 In the event that a request for emergency access is made before the final i
rule is in place, NRC will use the procedures and criteria in the proposed
. rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental Impact Statement need not be prepared.in connection with this rulemaking action because promulgation of the final rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. The final rule would establish criteria and proce- l dures for a Commission determination under Section 6 of the Act that emergency access .. an operating ~non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the common defense and security. For the most part, the final rule is an administrative action which serves to codify the criteria and procedures in the Act. The l adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect.
Making a Commission determination to grant emergency access in accordance l with these criteria and procecures should also be without adverse environmental impact. The provisions in the rule will be activated only at the request of a ,
)
LLW generator or State government official on behalf of a generator because serious impacts to the public health and safety, the common defense and secu-rity, and possibly the environment are anticipated as a result of denial of access to a LLW disposal facility. NRC will become involved only when the need for corrective action has been identified. Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action !
necessary to assure that the public, the national security and the environment are protected. Whether the Commission decides to grant emergency access, or to deny it because alternatives are available, NRC will make the decision only j when satisfied that the action to be recommended will minimize the effects of concern and maximize needed protection. l The Commission designation of the LLW disposal facility to receive the LLW approved for emergency access should not result in adverse impacts to the environment. First, Section 6(h) dictates that the total quantity of emergency access LLW approved for disposal at any non-Federal cr regional LLW disposal facility must fall within the volume caps established by the Act, and for any 6 Enclosure C
12-month period, be less than 20 percent of the total volume of LLW accepted _
by.that facility durir,g tne previous calendar year. Thus, the amount of waste provided disposal under the emergency access provision will be much less than-the total amount of LLW that will be disposed of in regional or non-Federal 1 disposal facilities. In addition, waste granted emergency access will have to be processed, transported and handled in a. manner that complies with applicable safety regulations. Second, NRC will be considering the characteristics of
- the LLW requiring emergency access in designating the receiving facilities in order to assure that they are compatible and that the impacts from each indi-vidual grant of emergenr:y access are minimized.
- 8. REGULATORY FLEXIBILITY ANALYSIS NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facil-ities under Section 6 of the Act. Based upon the information available and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact upon a substantial number of small entities.
The final rule has the potential to affect any generator of LLW.
However, in order for the requirements of the rule to be imposed on a generator, he must request emergency access to a non-Federal or regional LLW disposal facility, having been denied access because the State or Compact Region in which he is located has failed to comply with the milestones for LLW disposal development in Section C of the Act.
Establishing criteria and procedures for requesting and granting emergency access will have a positive benefit for small and large generators alike. It will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.
The impact of the recordkeeping requirements on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to decide a course of action if necessary access to LLW disposal was not going to be available.
l l
7 Enclosure C
Qr eWPs Document Name:
KIMINAS Author's Name:
LAMBERT J Document Comments: !
SPE 7/29/88 - WEW ECS final revisions i
I
For: The Commissioners From: Victor Stello, Jr. I Executive Director for Operations
Subject:
FINAL RULE-10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the I
Code of Federal Regulations that would establish criteria and procedures to be used by the Nuclear Regulatory Commission (NRC) in determining whether emergency access should be granted to 1 operating, non-Federal, low-level radioactive disposal facilities under Section 6 of ments Act of 1985 , p w-Level t
d Radioactive Waste Policy Amend- ;
Summary:
d Section 6 of the m-1 a*1 Radioactive M :tc Polimy Amendments C Act-of-2935 provides that NRC can set aside denial of access decisions and grant emergency access to non-Federal or regional
/[i 0
M ,g LLW disposal facilities if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot be mitigated by available alternatives. The
,' enclosed final rule was developed to implement NRC's responsibil-hv CL[
ities pursuant to Section 6. The rule sets out strict require-ments for granting emergency access, places the burden of demon-m 0, Mh- ( strating the need for emergency access on the party requesting emergency access and should serve to encourage generators 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, 1989. How-ever, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive a request for emergency access. Staff estimates 180 staff days will be required to process such requests, within the 45-day statutory limit for an NRC decision.
CONTACT:
Janet Lambert, NMSS 427-4751 l
i o____--.________
The Commissioners -2 TXI0 f~~
m
Background:
The ' ~ Lid Ldicact'iie wasi.e. Policy 4mbudmeni.3 m. t. u t 1.i65 PL 9MO, January 1;r, =d ithe Actt i. directs the States to
' develop their.own LLW disposal facilities,"or to form. Compacts and cooperate in the development of: regional LLW disposal facilities, so that'the new' facilities will be available.by-January 1,1993. If unsit'ed States or Compact regions, fail:to meet key milestones in the Act, the States and Compact Commissions'with the operating LLW disposal facilities are-authorized;to demand additional fees.for wastes accepted for
. disposal, and ultimately to deny the LLW ieenerators in the l
delinquent State or Compact region further access to their.-
l facilities.
Section 6 of.the Act provides:that the'NRC'can grant a. generator
" emergency access" to non-Federal or regional commercial LLW disposal facilities if access to those facilities has-been-denied and that access is necessary in order.to eliminate an-immediate and serious threat to the public health and safety or-the common defense and security. .The'Act also requires that a determination be made as to whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that. generate the waste. -NRC must make both determinations prior to granting emergency access.
The Act provides that NRC can grant emergency access for a period not to exceed 180 days.per request, and allows that only one, 180-day extension of emergency access can be granted per request.
The Act provides NRC with 45 days from the time a request is received to determine whether emergency access will be granted, and if so, to designate the receiving facility.
j The Act provides that requests for emergency access shall contain !
all information and certifications that NRC requires to makes .its j determinations. The Act also provides that.only NRC can grant emergency access. The Agreements States are specifically pre- i cluded from making emergency access decisions. ;
i The legislative history for the Act emphasizes Congressional intent that emergency access be used only in very. limited and ;
rare circumstances and that it was not intended to be used to circumvent other provisions of the Act. Congress expected that responsible action from the generators and the States / Compacts should resolve most problems arising from denial of access deci-sions, thus precluding the necessity for involving the Federal sector in granting emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort.
In developing the emergency access rule, the staff has tried to-beconsistentbothwiththeactualtextofSection6oftheAct and with its understanding the intent expressed by Congress regarding decisions made pu suant to Section 6. Staff's objec- ,
tive throughout has been to stablish requirements for granting '
The Commissioners 3 i R
emergency access that are stringent enough to discourage the unsited States and regions from viewing emergency access as an alternative to diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC to respond appropriately in situations where emergency access is genuinely needed to protect the public health and safety or the common defense and-security.
The Act did not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC staff recommended a rule to establish the procedures and criteria that will be used in making the required emergency access determinations to add predictability to the decision-making process, and help to ensure 1 that the NRC will be able to make decisions on emergency access I requests in the time required by the Act.
l On January 15, 1987, NRC issued a Notice of Intent to develop this rule (Vol. 52, Federal Register, No.10, p.1634), and on December 15, 1987, NRC issued the proposed rule. The formal comment period expired February 12, 1988. Twenty-one commenters i responded. Copies of the comment letters are included as an i appendix to the staff analysis of comments in Enclosure C.
Responses were received from the governments of six states !
(Maine, Arkansas, Illinois, New York, Kentucky, and I l
' Pennsylvania), two from Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and i members of environmental groups, two from industry, and one from l a nuclear information service. I Discussion: Most of the commenters raised issues that had been considered by !
staff while developing the proposed rule. For the most part, the comments could be addressed by the addition of clarifications to the final rule. The critical components of the proposed rule -
the procedures and the criteria to be used in making emergency access decisions, are essentially unchanged in the final. The most significant comments are discussed below:
In general, commenters appeared to support NRC's issuance of a rule for its emergency access decisions and indicated changes that would improve the final rule from their perspective. One commenter expressed opposition to the issuance of the rule itself because he believed that granting emergency access would infringe on the States' right to manage their LLW. Since NRC was mandated by Section 6 of the Act to make emergency access determinations only when the States are not otherwise able to manage their LLW, NRC does not consider that a rule to impienent that mandate should interfere with states' rights.
By far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsec-tion 3(a)(1) of the Act, the states are mandated to provide dis-posal only for commercially generated LLW classified as A, B,
The-Commissioners 4 1
and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommissioning of vessels, or as a result of any research, development, testing,'or production of atomic weapons."' Com-menters stated that Federal wastes, particularly those generated by DOE and 00D, or wastes that are classified as greater-than-Class-C, should not be allowed to receive emergency access disposal. 3 In developing the proposed rule, NRC staff assumed that it would '
be clear that limitations established by the Act on the LLW eligible for routine LLW disposal would also apply to LLW under consideration by NRC for emergency' access disposal. However, no statement was made to this effect in the proposed rule. Clarify-ing language explaining what LLW will be considered eligible for 1 emergency access disposal has been added to the final rule.
Most of the states and Regional Compact Commissions who submitted comments indicated that the final rule should-include provisions by which NRC would act to ensure that States /LLW Compacts designated to receive emergency access wastes will receive reciprocal access disposal from the person granted emergency access - which they are entitled to under the Act. i Under Section 6(f),.the Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility th6c 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 i emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
The issue of reciprocal access is of particular concern to those States / Regional Compacts who have, or plan to have, operating LLW disposal facilities. They are concerned because NRC has the power to override their denial of access decisions and direct them to accept waste under the emergency access provision. The guarantee of reciprocal access would make the States / Compacts more amenable to this prospect. Commenters indicated that NRC should require 'a formal acknowledgement of reciprocal access before making an l() _ amarge_nJcy access determination / NRC staff considered addressing j\ reciprocal access during the development of the proposed rule.
l However, given the agency's mandate to protect the public health and safety on the common defense and security, staff believed it would be inappropriate for NRg to assume the role of enforcing reciprocal access _arrangemen . If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain circumstances, actions necessary to protect the public health and safety could be delayed or compromised.
The Commissioners 5 The NRC staff reconsidered its position on reciprocal access in ;
light of the comments received on the proposed rule, but made no changes to the final rule.
Three of the commenters representing States or Compact Commissions raised the issue of Compact Commission approval of NRC's emergency access decisions. They indicated that the NRC had been remiss in not including a provision in.the proposed' rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Commission of the region in which the designated site is located.
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 i such approval as may be required under the terms of its compact." ;
This provision has proven to be controversial because it is open to several interpretations. The interpretation preferred by some of the States or Compacts is that Congress intended for the !
Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended the receiving Compact Commission to have the power to veto NRC's decision. The commenters wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
NRC staff believes that disapproval of NRC's emergency access determination is not really an option. Staff believe that the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section 6 emergency access provision is to :
ensure that sites which would normally be closed under the Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior ar.d 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, emer-gency 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 Information for the proposed rule and has been reiterated and clarified in the final.
A number of the commenters expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, or taxes prescribed by that facility. Other commenters stated that LLWs granted mergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. The commenters expressed a desire to have NRC consider those items in making its site designation decisions for emer-gency access.
The Commissioners 6 To the NRC Staff it'is.quite clear from the Act that Congress. ..
intended that the LLW granted emergency access would meet.all of the general requirements and regulations. of the disposal . facility ~
designated to receive the wastes by..the.NRC.- Further, the staff believes;that Congress intended for generators granted emergency access .to pay all the normal LLW disposal fees. as well aslthe .
additional fees or surcharges. established under Section 5 of the
.Act as:specifically applicable to emergency ~ access situations.
However,.NRC staff.does not. agree that such information can or should be used by NRC in making.its site designation decision, i For clarification, a'new section' has been added.to, the final rule which reaffirms NRC's understanding of Congressional' intent that conditions or terms which would normally apply to LLW disposal
-should also apply to emergency access disposal.
~
Several of.the commenters suggested that the final rule should contain conditions under which emergency access could be termi -
nated. Staff agree and have added a new Subpart D for this pur-pose. The new subpart establishes'that the operator of the receiving _ site may refuse' emergency access waste if it does not meet the conditions established by NRC in Part 62, and that the NRC can terminate emergency access if a determination is made that it.is no longer needed.
Several commenters stated that the 10 day public comment period provided in the rule on requests for emergency access.was inade-quate. Since NRC is not required to' seek public comments on requests, and since NRC has only 45 days to. respond when a request is received, no change was made to the final rule.
After consideration of the comments, staff recommends the' final rule proposed for Commission approval in Enclosure B. There are no major differences between the proposed and final' rules but several clarifying changes are included. The most.significant are:
(1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the emer-gency access rule applies only to the LLW's for which the States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying language to 62.22 stating that the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
(3) Addition of a clarifying Section VIII to the Supplementary Information titled " Terms and conditions for Emergency Access Disposal."
a The Commissioners 7 l
(4) The addition of clarifying Subpart D, titled " Compliance l with Conditions of Emergency Access; Termination of Emer- l gency Access." '
Resource Requirements Consistent with the legislative history for Section 6, NRC staff i expects that emergency access will be requested only.under rare i and unusual circumstances through 1993 and beyond. Staff esti-mate it will take approximately 180 staff days (six staff working ,
30 days out of the 45 days allowed in the Act) to complete the necessary review.
Recommendation: That the Commission: I l
(1) pprove for publication in the Federal Register the final (
new rule 10 CFR Part 62 enclosed here (Enclosure B) which would establish procedures and criteria for granting requests for emergency access to low-level waste disposal sites. l (2) In order to satisfy requirements of the Regulatory Flexibil-ity Act (5 U.S.C. 605(b)) certify that the final rule will l not have a significant economic impact on a substantial
- number of small entities. The basis for this certification I is summarized in the draft Federal Register notice (Enclo-sure B) under the Regulatory Flexibility Certification heading.
l (3) Note:
- a. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it, as required by the Regulatory Flexibility Act'.
- b. N t this iPnal rule contains modifications to informa-tion collection requirements subject to the require-ments of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), that Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid.
- c. That the proposed rule included a preliminary findirig that no significant environmental impacts would result from the rulemaking. The environmental assessment forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis." The staff has not prepared additional environmental analyses and continues to believe that additional environmental review would not be productive or beneficial.
r
+
The Commissioners 8
- d. -That compliance with-CRGR charter requirements'.is not applicable; for this' rulemakingl action. as the; rulemaking applies only to' radioactive waste management, and not a generic' requirement to be-imposed by the NRC on one'or.
- more classes of power reactors.
ec 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--
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.
Scheduling: ~
Few, if any emergency access _ requests are anticipated. However..
L a request'could be made at any time. NRC should have.the rule l
' in place at the time a request for emergency access may be made.
Consistent with the next major trigger date for' denial of access in the Act, which is January 1, 1989, the final rule should be issued in the fall of 1988.
Victor Stello, Jr.
Executive Director for Operations
Enclosures:
A. Draft Federal Register Notice
. B. 'Public Comment Analysis with Comment Letters
.C. Regulatory Analysis D. Draft Congressional Letter E. Public Announcement
_ _ _ __ _ _ - _ _ ~
/YC.2 -2 2) qg3 I
i For: The Commissioners From: Victor Stello, Jr.
Executive Director-for Operations ;
Subject:
FINAL' RULE-10 CFR PART 62, " CRITERIA AN
D. PROCEDURE
S FOR GRANTING q
~
EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE.
DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the Code of Federal Regulations that would establish criteria and -
procedures to be used by the Nuclear Regulatory Commission (NRC) i; in determining whether emergency access should be granted to operating, non-Federal, low-level radioactive. disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amend- 1 ments Act of 1985.
'fJ Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, January 15, 1986), (the Act) provides that NRC can. set aside denial of access decisions and grant emergency access to non-Federal or regional LLW disposal facil-sties if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot l
be mitigated by available alternatives. The enclosed final rule was developed to implement NRC's responsibilities pursuant to Section 6. The rule sets out strict requirements for granting emergency access, places the burden of demonstrating the need for emergency access on the party requesting emergency access and should serve to encourage generators.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 1,1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive a request for emergency access.
Staff estimates 180 staff days will be required to process such requests, within the 45-day statutory limit for an NRC decision.
CONTACT:
Janet Lambert, RES 492-3857
% Zh%> 20
i The Commissioners 2 i
Background:
The Act directs the States to develop their own LLW disposal facilities, or to form Compacts and cooperate in the development of regional LLW disposal facilities, so that the new facilities will be available by January 1, 1993. If unsited States or Compact regions fail to meet key milestones in the Act, the I States and Compact Commissions with the operating LLW disposal I
facilities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities.
Section 6 of the Act provides that the NRC can grant a generator )
" emergency access" to non-Federal or regional commercial LLW disposal facilities if access to those facilities has been ,
denied and that access is necessary in order to eliminate an i immediate and serious threat to the public health and safety or the common defense and security. The Act also requires that a ,
determination be made as to whether the threat can be mitigated J by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC '
i must make both determinations prior to granting emergency access. !
1 The Act provides that NRC can grant emergency access for a period i not to exceed 180 days per request, and allows that only one, j 180-day extension of emergency access can be granted per request. {
The Act provides NRC with 45 days from the time a request is l received to determine whether emergency access will be granted, ]
and if so, to designate the receiving facility.
f 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 l emergency access. The Agreements States are specifically pre- l cluded from making emergency access decisions. I l
l The legislative history for the Act emphasizes Congressional ;
intent that emergency access be used only in very limited and !
rare circumstances and that it was not intended to be used to l circumvent other provisions of the Act. Congress expected that ;
responsible action from the generators and the States / Compacts j l should resolve most problems arising from denial of access deci-sions, thus precluding the necessity for involving the Federal sector in granting emergency access. Section 6 was included to i provide a mechanism for Federal involvement as a vehicle of last '
resort. 4 In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act and with its understanding of the intent expressed by Congress regarding decisions made pursuant to Section 6. Staff's objec-tive throughout has been to establish requirements for granting
i The Commissioners 3 4 j
emergency access'that are stringent enough to discourage.the unsited States and regions'from_ viewing eme'rgency access as an alternative to diligent pursuit of.their own disposal capability, 9 and yet flexible-enough'to allow NRC to respond appropriately'in situations where emergency access is genuinely needed to protect:
the public health and safety or,the common defense and security.
,The Act did not require.NRC to develop a-rule ~to carry out its Section 6 responsibilities. However,_NRC' staff recommended a rule to establish the procedures and criteria that will be used-in making the required emergency access-_ determinations to add:
predictability to the decision making process, and help to ensure l that the NRC will be able to make decisions on emergency-access requests in the time required by the Act._
On January 15, 1987,- NRC-issued a' Notice of Intent to develop-this rule (Vol. 52, Federal Register, No. 10, p. 1634), and on }
' December 15, 1987, NRC issued the proposed rule. The formal comment period expired February'12, 1988. Twenty-one commenters .j
' 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 j (Maine, Arkansas, Illinois, New York, Kentucky, and ;
Pennsylvania), two from Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and members of environmental groups, two from industry, and one from a nuclear information service, Discussion: Most of the commenters raised issues that had been considered by staff while developing the proposed rule. For the most_part, the comments could be addressed by the addition of clarifications to )
the final rule. The critical components of the proposed rule -
the procedures and the criteria to be used in making emergency access decisions, are essentially unchanged in the final. The
- l most significant comments are discussed below: I In general, commenters appeared to support NRC's issuance of a rule for its emergency access decisions and indicated changes that would improve the final rule from their perspective. One ;
commenter expressed opposition to the issuance of the rule itself because he believed that granting emergency access would infringe on the States' right.to manage their LLW. Since NRC was mandated by Section 6 of the Act to.make emergency-access determinations only when the States are not otherwise able to manage their LLW, NRC does not consider that a rule to implement that mandate should interfere with states' rights.
By. far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsec-tion 3(a)(1) of the Act, the states are mandated to provide dis-posal only for commercially generated LLW classified as A, B, l
The Commissioners 4 and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommissioning of vessels, or as a result of any resear 5, development, testing, or production of atomic weapons." Commenters stated that Federal wastes, particularly those generated by DOE and 000, or wastes that are classified as greater %han-Class-C, should not be allowed to receive emergency access disposal.
In developing the proposed rule, NRC staff. assumed that it would be clear that limitations established by the Act on the LLW eligible-for routine LLW disposal would also apply to LLW under consideration by NRC for emergency access disposal. However, no statement was made to this effect in the proposed rule. Clarifying language j
explaining what LLW will be considered eligible for emergency access disposal has been added to the final rule.
Most of the states and Regional Compact Commissions who submitted !
comments indicated that the final rule should include provisions by which NRC would act to ensure that States /LLW Compacts designated- i i to receive emergency access wastes will receive reciprocal access j l disposal from the person granted emergency access - which they l are entitled to under the Act.
Under Section 6(f), the Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any I subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further l provides that the Regional Compact or State that receives the j
emergency access waste shall designate, for reciprocal access, 4 "an equal volume of low-level radioactive waste having similar )
characteristics to that provided emergency access."
The issue of reciprocal access is of particular concern to those !
States / Regional Compacts who have, or plan to have, operating LLW d disposal facilities. They are concerned because NRC has the power to override their denial of access decisions and direct them to accept waste under the emergency access provision. The guarantee of reciprocal access would make the States / Compacts more amenable to this prospect. Commenters indicated that NRC should require a formal acknowledgement of reciprocal access before making an emergency access determination.
NRC staff considered addressing reciprocal access during the development of the proposed rule. However, given the agency's mandate to protect the public health and safety on the common defense and security, staff believed it would be inappropriate for NRC to assume the role of enforcing reciprocal access arrange-ments. If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain circumstances, actions necessary to protect the public health and safety could be delayed or compromised.
The Commissioners 5 The NRC staff reconsidered'its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final. rule.
Three of the commenters representing States or Compact Commissions raised the issue of Compact Commission approval of NRC's emergency access decisions. They indicated that the NRC had been remiss in not including a provision in the proposed rule which would. require ,
the NRC to seek approval for its decision to grant emergency J 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 l
Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for- )
such approval as may be required under the terms of its compact." ;
This provision has proven to be controversial because it is open j to several interpretations. The interpretation preferred by some '
of the States or Compacts is that Congress intended for the Compact Commission of the designated site to have the final say l
regarding the acceptance of emergency access wastes. They l believe Congress intended the receiving Compact Commission to i
have the power to veto NRC's decision. The commenters wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
i NRC staff believes that disapproval of NRC's emergency access I determination is not really an option. Staff believe that the 1 legislative history for 6(g) is quite clear on this point. The I basic purpose of the Section 6 emergency access provision is to ensure that sites which would normally be closed under the Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to 4 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 j Compact's acting in accord with the provisions of the Act. "If '
the Compact refuses to provide, under its own authorities, emer-gency 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 2.997 (1985).] This was explained in the Supplementary Information for the proposed rule and has been reiterated and clarified in the final.
A number of the commenters expressed concer'n"that LLW granted i emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, j or taxes prescribed by that facility. Other commenters stated i that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the.
Act. The commenters expressed a desire to have NRC consider those items in making its site designation decisions for emer- I gency access..
i
~The' Commissioners '6 1 i
.To the NRC Staff it is quite clear lfrom the' Act that: Congress
> intended that the LLW granted. emergency access.'would meet all of the general' requirements and regulations of the disposal, facility ~
. designated.to receive'the wastes by the NRC. Further,.the staff
' believes that-Congress intended.for generators granted emergency.
access to pay all the normal LLW disposal fees as well.'as'the-additional fees or surcharges established'under Section'5'of.the ActEab specifically.' applicable to emergency! access' situations.
However, NRC staff.does .not agree that such information can- or should be' used by-NRC in making its site designation decision.
For' clarification, a~ new section has been 'added to the. final rule ~
which reaffirms'.NRC's understanding of Congressional: intent that' 'l conditions or terms which would normally; apply to.LLW disposal' -)
-should'also applyto emergency access disposal.
'Several of the commenters. suggested that the'. final rule _should:
contain' conditions' under which emergency, access could be termi-1 nated. Staff agree and have'added a'new Subpart D for this pur-pose. 'The new subpart establishes that the. operator of the receiving site may refuse emergency access wast'e if it does not' '
meet the conditions established by NRC in Part 62, and that the NRC can terminate. emergency access if'a determination is made that it is no longer needed. "
Several commenters stated that the 10 day public comment period provided in the rule on requests for emergency access was inade-quate. Since NRC is not required to seek public comments on requests, and since NRC has'only 45 days to respond when.a request is received, no change was made to the final rule.
After consideration of the comments, staff recommends the final rule proposed for Commission approval in Enclosure B. There are no major differences between the proposed and final rules but several clarifying changes are included. The most significant.
are:
(1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the emer-gency access rule' applies only to the LLW's'for which the States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying langua'ge to.62.22 stating that the Commission will make notification of the final determination. '
in writing to the appropriate Compact Commission "for such approval as is specified as necessary .in Section 6(g) of l the Act." '
(3) Addition of a clarifying Section VIII to the Supplementary ;
Information titled " Terms and conditions '.,r Emergency Access Disposal."
1
\
.The Commissioners- 7 (4) The addition 'of. clarifying Subpart D, titled " Compliance
'with Conditions of Emergenrjy Access; Termination of Emer-
-gency Access."'
~
Resource Requirements !
Consistent with;the -legislative hi'story for Section -6, NRC ' staff expectsithat emergency access,will be. requested only under rare
, and' unusual-circumstances' through 1993'and beyond. Staff esti-mate-it will take approximately 180 staff days (six. staff working 30 days out of.the'45; days allowed.in the.Act) to complete the l
necessary review.'
Recommendation: That'the Commission:
i (1)- Approve for publication in.the Federal' Register the final j; new rule 10 CFR Part'.62 enclosed here (Enclosure'8) which would establish procedures and criteria for granting I requests for emerg scy access to low-level waste disposal sites. .
(2) In order to satisfy req'uirements' of the Regulatory Flexibil- )
ity Act (5 U.S.C. 605(b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclo-sure B) under the Regulatory Flexibility Certification heading.
(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 -
by the Regulatory Flexibility Act,
- b. That this final rule contains modifications to informa-tion collection requirements subject to the require-ments.of the Paperwork Reduction Act of 1980 (44 U.S.C. ;
3501 et seq.), that Office of Management and Budget '
.(0MB) approval was obtained for the proposed rule, and that the changes between.che proposed-and final action are clarifying only so that the OMB approval remains valid.
- c. That the proposed rule included a'p'reliminary finding that no significant environmental impacts would result from the rulemaking. The environmental assessment forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis." The staff has not prepared additional environmental analyses and continues to believe that additional environmental review would not be productive or beneficial.
w- _____-__ ___-_ ___ __-__-__ __-_____ _
1 The Commissioners 8- ;
- d. Thatcomp1.1ancewithCRGRcharterrequirementsisnot?
applicable .for 'this rulemaking action as the rulemaking i
- applies only to radioactive waste management, and not a
. generic requirement to be imposed .by the NRC on one or more classes _of power reactors. .j
- e. .That the. Subcommittee on Nuclear Regulation of the. 1 Senate Committee on Environment and Public Works, the !
Subcommittee on Energy and the Environment of..the House'- i of. Insular Affairs Committee,.the Subcommittee on:
, Energy.Co'nservation and Power'of.the House Energy and i Commerce Committee, and the Subcommittee on Environ - 1 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- !
making is filed with the Office of Federal Register. .
- g. That a. regulatory analysis, Enclosure C, has been pre-pared for this rulemaking. i
- h. OGC has reviewed the proposed rulemaking package and 4 has no legal objections.
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 1,1989, 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. Draft Congressional' Letter E. Public Announcement
q
.?
The Commissioners 8~ R
- d. That compliance with CRGR' charter' requirements-is'not O applicable for this rulem'aking actionLas the rulemaking.
' applies'only to radioactive waste management, and-not a generic.' requirement to be imposed by;the NRC on one or :
more classes offpower reactors. <
- e. That the Subcommittee on; Nuclear Regulation of the j Senate Committee on Environment and Public Works, the i Subcommittee on Energy.and the Environment of the House-
-of Insular Affairs Committee, theLSubcommittee on Energy Conservation and Power of the' House Energy.and-
' Commerce l Committee, and the Subcommittee'on Environ- ;i ment, Energy, and~ Natural Resources of the House: 1 Committee on Government Operations 'will be_ informed of :
the. rulemaking by letter'such as Enclosure D. 1
- f. That a public announcement, Enclosure E, will be' issued d by the Office of Public Affairs when the final ~ rule-l- making is filed with'the Office of Federal Register.
I g. That a regulatory analysis, Enclosure C, has been pre . q pared for.this rulemaking. <
- h. 0GC has reviewed.the proposed.rulemaking package and has no legal objections,
'i Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time. NRC should have the rule j in place at the time a request for' emergency access may be made. j l Consistent with the next major trigger date for denial of access j in the Act, which is January 1,1989, the final rule should be l issued in the fall of 1988.
q l
Victor Stello, Jr.
Executive Director for Operations
Enclosures:
)
A. Draft Federal Register Notice B. Public Comment Analysis with' Comment Letters
. C. Regulatory Analysis D. Draft Congressional Letter i
E. Public. Announcement 1 0FC: NMSS : ARM :GPA :NRR :0GC :EDO NAME:HThompson :WMcDonald :HDenton :TMurley :WParler :VStello j DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88 .___
1 0FC: RES:WMB:DE :RES:WMB:DE :RES:WMB:DE : DE: RES :DE:RES :RES :RES ~
NAME:JLambert:j k:DGrill :MSilberberg :RBosnak :GArlotto :TSpeis:ESBeck
_______________....._..______________________. ______________ ....,__._..__jord i
DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88:8/ /88 '
0FFICIAL RECORD COPY e____-_-__--__-_--
n.
p .
e i
1 1
i i
1 l
~ For: The Commissioners- 1 From: Victor Stello, Jr. 1 Executive Director for Operations
Subject:
FINAL RULE-10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING-EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the Code of Federal Regulations that would establish criteria and
. procedures to be used by the Nuclear Regulatory Commission (NRC) in determining whether emergency access-should be granted to operating, non-Federal, low-level radioactive disposal facilities under_Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985.
. Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, January 15, 1986), (the Act) provides that NRC can set aside denial of access decisions and grant .
emergency access to non-Federal or regional LLW disposal facil-ities if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot be mitigated by available alternatives. The enclosed final rule was developed to implement NRC's responsibilities pursuant to Section 6. The rule sets out strict requirements for granting emergency access, places the burden of demonstrating the need for emergency access on the party requesting ~ emergency access and should serve to encourage generators 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, 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.
Staff estimates 180 staff days will be required to process such requests, within the 45-day statutory limit for an NRC decision.
' CONTACT: i Janet Lambert, RES !
492-3857
3
'r The Commissioners' 2
~
Background:
The Act directs'the' States.to develop their own LLW' disposal:
facilities, or to' form Compacts and cooperate in the development of regional.LLW disposal facilities, so-that the new facilities will be'available by January.1, 1993.
_ If unsited.: States ~or:
Compact. regions: fail' to meet key milestones in the Act, the States and Compact Commissions with the operating LLW disposal-facilities'are authorized to demand additional fees for wastes accepted for disposal,.and ultimately to deny the LLW generators in the-delinquent State o.r Compact' region further access to their facilities.
l Section 6 of the Act provides that the NRC can grant a generator "emergencyL access". to non-Federal or regional commercial .LLW disposal facilities'if access to those facilities'has been denied and that access is necessary in order to eliminate an-immediate and serious. threat to the public health and safety or the common dofense and: security. The Act also requires that a determination be made as to.whether.the' threat can'be mitigated-by any alternative consistent with.the public health-and safety, including ceasing the activities that generate the waste. NRC-must make both determinations prior to granting emergency access.
The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request, and allows that only one, 180-' day extension of emergency access can be granted.per request.
The Act provides NRC with 45 days from the time a request is received to determine whether emergency access will be granted, and if so,-to designate the receiving facility.
The Act provides that requests for emergency access shall_contain all information' and certifications that NRC requires to 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 Congressional i intent that emergency access be used only in very limited and l
rare circumstances and that it was not intended to be used to circumvent other provisions of the Act. Congress ~ expected.that responsible action from the generators and the States / Compacts should resolve most problems arising from denial of access deci- ,
sions, thus precluding the necessity for involving the Federal i sector in granting emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort. i q
In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act 4 and with its understanding of the intent expressed by Congress regarding d:.cisions made pursuant to Section 6. Staff's objec-tive throughout has~been to establish requirements for granting
- The Commissioners 3
~
emergency. access that are s'tringent enough to discourage the' unsited States and regions from. viewing' emergency access as.an >
alternative to diligent pursuit;of their own disposal capability,
~
and yet flexible enough .to allow.NRC to respond: appropriately in situations where emergency access is' genuinely needed.to protect-the public healthLand safety-or the~ common' defense and security.
lhe Act did not require.NRC.to-develop a rule to carry out-its:
Section 6 responsibilities.' However, NRC staff.. recommended a .
rule to establish the procedures.and criteria.that will be'used in.makin'g.the-required emergency' access. determinations'to" add predictability-to the decision-making process, Land' help to ensure-that the NRC will be able to make' decisions.on emergency access requests in the time required by the Act. !
On' January 15, 1987, NRC issued a Notice of. Intent;to develop' this rule (Vol. 52, Federal Register, No. 10~ p. 1634), and on December 15, 1987, NRC issued the proposed rule.. The formal comment' period expired February 12, 1988. Twenty-one commenters _
responded. Copies of the' comment letters are included as an.
appendix to the staff analysis of comments in Enclosure C.
Responses were' received from the governments of six states (Maine, Arkansas, Illinois, New York, Kentucky, and Pennsylvania), two from' Low-Level Waste. Compact Commissions-(Midwest and Central Midwest), ten from concerned citizens and members of environmental groups, two from industry, and one from
- i. a nuclear information service. i Discussion: Most of the commenters raised issues that had been considered by staff while developing the proposed rule. For the most part, the comments could be addressed by the_ addition of clarifications to the final rule. The critical components of the proposed rule -
the procedures and the criteria to be used in making emergency access decisions, are. essentially unchanged in the final. The {
most significant comments are discussed below: )
i In general, commenters appeared to support NRC's issuance of a rule for its emergency access decisions and indicated changes L that would improve the final rule from their perspective One commenter expressed opposition to the issuance of the rule itself because he believed that' granting emergency access would infringe on the States' right to manage their LLW. 'Since NRC was mandated by Section 6 of the Act to make emergency access determinations only when.the States are not.otherwise able to manage their LLW, NRC does not consider that;a rule to implement that mandate should interfere with states' ri'ghts.
By far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they !
are clearly not responsible for under the Act. Under Subsec-tion 3(a)(1) of the Act, the states are mandated to provide dis-posal only for commercially generated LLW classified as A, B, i
i The Commissioners 4 l l
1 and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result 3 of decommissioning of vessels, or as a result of any research, {
development, testing, or production of atomic weapons." Commenters j stated that Federal wastes, particularly those generated by DOE t and D00, or wastes that are classified as greater-than-Class-C, should not be allowed to receive emergency access disposal.
In developing the proposed rule, NRC staff assumed that it would be clear that limitations established by the Act on the LLW eligible for routine LLW disposal would also apply to LLW under consideration by NRC for emergency access disposal. However, no statement was ] ,
made to this effect in the proposed rule. Clarifying language -!
l- explaining what LLW will be considered eligible for emergency- 1 l access disposal has been added to the final rule.
Most of the states and Regional Compact Commissions who submitted i comments indicated that the final rule should include provisions l by which NRC would act to ensure that States /LLW Compacts designated to receive emergency access wastes will receive reciprocal access disposal from the person granted emergency access - which they are entitled to under the Act.
I I
l Under Section 6(f), the Regional Compact or State receiving the )
emergency access waste is entitled to reciprocal access at any i subsequent facility that serves the Compact region or State in which the emergency access waste was generated. IL /urther 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."
The issue of reciprocal access is of particular concern to those States / Regional Compacts who have, or plan to have, operating LLW disposal facilities. They are concerned because NRC has the power to override their denial of access decisions and direct them to accept waste under the emergency access provision. The guarantee ;
of reciprocal access would make the States / Compacts more amenable j to this prospect. Commenters indicated that NRC should require a formal acknowledgement of reciprocal access before making an emergency access determination. ;
NRC staff considered addressing reciprocal access during the development of the proposed rule. However, given the agency's mandate to protect the public health and safety on the common defense and security, staff believed it would be inappropriate for NRC to assume the role of enforcing reciprocal access arrange-ments. 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' The Commissioners 5 The NRC staff reconsidered its position on reciprocal access in l light of the comments received on the proposed rule, but made no i changes to the final rule. j 1
Three of the commenters representing States or Compact Commissions i raised the issue of Compact Commission approval _of NRC's emergency i access decisions. They indicated.that the NRC had been remiss in 1 not including a provision in the proposed rule which would require the NRC to seek approval for its decision to grant emergency ' :
access from the Compact Commission of the region in which the i 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."
This provision has proven to be controversial because it is open to several interpretations. The interpretation preferred by some of the States or Compacts is that Congress intended for the Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended the receiving Compact Commission to have the power to veto NRC's decision. The commenters wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
NRC staff believes that disapproval of NRC's emergency access determination is not really an option. Staff believe that the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section 6 emergency access provision is to ensure that sites which would normally be closed under the Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. "If the Compact refuses to provide, under its own authorities, emer-gency 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 Information for the proposed rule and has been reiterated and clarified in the final.
A number of the commenters expressed concer'n'that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, or taxes prescribed by that facility. Other commenters stated that LLWs granted emergency access disposal should not have to 1 pay any special fees, beyond those specifically mandated by the l Act. The commenters expressed a desire to have NRC consider
~
those items in making its site designation decisions for emer-gency access.
)
)
l
._ _ _ _D
f The' Commissioners 6.
To the NRC Staff-it is quite clear-from the Act that Congress intended that.the LLW granted. emergency access would meet J all of the general requirements and regulations'of;the disposal-facility designated toireceive the wastes by the NRCc Further, the staff believes that~ Congress intended for generators granted emergency..
access to pay all the normal LLW disposal' fees as;well as the additional' fees or surcharges established'under.Section 5 of the Act'as specifically applicable to emergency access situations.
However, NRC staff does not agree that?such.information can or.
should be used by NRC.in making.its' site designation decision.
For. clarification, .a new section has been added to the final . rule, which reaffirms NRC's understanding of. Congressional intent'that conditions or. terms which would normally-apply'to'LLW disposal should also. apply: to emergency access disposal.
Several of.the commenters suggested that theLfinal rule should ~
contain' conditions under which emergency access could be termi-nated. Staff: agree and have.added'a.new Subpart D.for this pur--
pose. The new subpart establishes that the operator ~of the
- receiving site may refuse emergency access waste if it does not.
meet the conditions established by NRC in Part 62, and that the NRC can terminate emergency access if a determination is made that it is no longer needed.
Several commenters stated that the 10 day public comment period provided'in the rule.on requests for emergency access was inade- .)
quate. Since NRC is not required to seek public comments on f requests, and since NRC has only 45 days to respond when a request is received, no change was made to the final rule.
l After consideration of the comments,. staff recommends the . final rule proposed for Commission approval in Enclosure B. There are 1 no major differences between the proposed.and final rules but several clarifying changes are included. The most significant are:
(1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the emer-3 gency access rule applies only to the LLW's for which the l States have disposal responsibility pursuant to the Act.
1 (2) Addition of clarifying language to 62.22 stating that.the Commission will make notification of the final determination j in writing to the appropriate Compact Commission "for such j approval as is specified as necessary .in Section 6(g) of I the Act." ' '
(3) Addition of a clarifying Section VIII to the Supplementary Information titled " Terms and conditions for Emergency Access Disposal," .
]
l The Commissioners 7- i
- J
.(4) Th'e addition 'of clarifying Subpart D, titled " Compliance-with Conditions of' Emergency Access;- Termination of Emer -
.gency Access."
Resource Requirements Consistent-with the. legislative history for Section 6, NRC staff-
=
expectsE that . emergency access .will be requested 'only under rare and unusual circumstances through~1993 and beyond. StaffLesti--
mate.it will take;approximately 180 staff days (six staff working
.30-days _out of the 45 days allowed in'the Act) to complete'the-necessary review.
Recommendation: That the Commission:
(1) Approve for publication in the Federal Register-the_ final;
-new rule 10 CFR Part 62 enclosed here (Enclosure B) which.
would establish procedures and criteria for granting-requests for emergency access to low-level waste disposal ,
sites.
(2) In order to satisfy requirements 'of the Regulatory Flexibil-
.ity Act (5 U.S.C. 605(b)) certify that the final rule will not have a significant economic impact o'n a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclo-sure B) under the Regulatory Flexibility Certification heading.
(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 by the Regulatory Flexibility Act,
- b. That this final rule contains- modifications to informa-tion collection requirements subject to.the require-ments of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.),. that Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid. -
That the proposed rule included a' preliminary finding
~
c.
that no significant environmental impacts would result from the rulemaking. The environmental assessment forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis." The staff has not prepared additional environmental analyses and continues to believe that additional 1 environmental review would not be productive or beneficial.
= . - - _ _ __ _ _ _ - _ - _ _ _
Y The Commissioners 8
- d. That' compliance with CRGR charter requirementsiis not applicable- for this rulemaking action as the rulemaking
' applies only to radioactive wasta management, and not,a generic. requirement to'be; imposed by the NRC on one or more classes ~of power, reactors.
e; !That the Subcommittee on: Nuclear. Regulation of 'he t Senate, Committee on Environment and Public Works,Lthe Subcommittee on Energy and the Environment 1of 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-making .is filed with the Office of Feddral: Register. ,
- g. That a regulatory analysis, Enclosure ~ C;- has been pre-pared for this rulemaking.
- h. OGC has reviewed the proposed rulemaking package and- l has no legal objections. ' 1
Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time. .FRC should have the rule in place at the time a request for emergency access may be made. .
Consistent with the next, major trigger date for denial of access !
in the Act, which is January 1,1989, the final rule should be i issued in the fall of 1988.
I Victor Stello, Jr.
Executive Director for Operations ,
Enclosures:
A. Draft Federal Register Notice . .
B. Public Comment Analysis with' Comment Letters '- 1 l C. Regulatory Analysis l- D. Draft Congressional' Letter
- E. Public Announcement-
y K
]
.]
.i
- The' Commissioners- l' 8
That compliance _with CRGR charter requirements is not'
~
d.
applicable cfor.~ thisJ rulemaking: action as the rulemaking <
applies only to radioactive = waste management, and not. a genericirequirement to be imposed by the_NRC on one'or y more classes of-power reactors; -j
- e. iThat;the-Subcommittee on Nuclear Regulation. of. the j Senate' Committee on Environment and.Public Works, the.
Subcommittee on Energy and the Environment of the House of Insular Affairs. Committee,1the Subcommittee oni Energy Conservation and Power of.the House Energy.and
- Commerce Committee; and the Subcommittee on Environ-ment, Energy, and Natural Res'ources of the House 'l
' Committee on Government'0perations will be informed of the rulemaking by letter.such as Enclosure D.
- f. That a public< announcement,' Enclosure E, will'be' issued-by the Office- of Public. Affairs' when the final' rule-making is filed with. the Office of. Federa~l Register. <
g '. That a regulatory analysis, Enclosure C, has been pre-pared for this; rulemaking. l I
- h. 'OGC has reviewed Lthe proposed rulemaking package and. j has no legal objections. I o '
Scheduling: Few, if any emergency. access requests are anticipated. However,
~
l 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 i in the Act, which is January 1,1989, 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. -Draft Congressional Letter E. Public. Announcement 0FC: NMSS : ARM :GPA :NRR :0GC :E00 NAME:HThompson :WMcDonald :HDenton :TMurley :WParler- :VStello
..__........ _________ .._____.__ ..........._______._________.2._-_______..__
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 NAME:JLambert: jk: DGrill :MSilberberg :RBosnak :GArlotto :TSpeis:ESBeckjord 0 ATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88:8/ /88 0FFICIAL RECORD COPY
For: The Commissioners From: Victor Stello, Jr.
Executive Director for Operations
Subject:
FINAL RULE-10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING a$-
EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the Code of Federal Regulations that would establish criteria and I
procedures to be used by the Nuclear Regulatory Commission (NRC) I in determining whether emergency access should be granted to l operating, non-Federal, low-level radioactive disposal ;
I facilities under Section 6 of the Low-Level Radioactive Waste I Policy Amendments Act of 1985.
I 1
Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments !
Act of 1985 provides that NRC can set aside denial of access decisions and grant emergency access to non-Federal or regional LLW disposal facilities if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot be mitigated by available alternatives. The enclosed final rule was developed to implement NRC's responsibil-ities pursuant to Section 6. The rule sets out strict require-ments for granting emergency access, places the burden of demon-strating the need for emergency access on the party requesting CONTACT:
Janet Lambert, NMSS 427-4751 07/25/88 10 CFR 62 CP
i l
l The Commissioners -2 !
i 1
emergency access and should serve to encourage generatorc to seeki other means for resolving the problems created by potential-lack of access to'LLW disposal facilities. The first request for.-
l emergencyaccesscouldbemadeassoonasJanuaryl1,1989.M%e 1 hependingontheprogressmadebytheStatesindevelopingtheir LLW disposal capability, NRC may never receive a request for emergency access. Staff estimates 180 staff days will be.
required.to process such requests, within the 45-day statutory-limit for an NRC decision.
Background:
The Low-Level Radioactive Waste' Policy Amendments Act of'1985
-(PL 99-240, January 15, 1986), (the Act), directs.the States to develop their own LLW disposal facilities, or to form' Compacts .
and cooperate in the development of' regional'LLW disposal facilities, so that the new facilities will be available'by January-1, 1993.- If unsited States or Compact regions fail to l
l meet key milestones in the Act, the States and Compact I "
CommissionfwiththeoperatingLLWdisposalfacilitiesare' authorized to demand additional fees for wastes accepted for i disposal, and ultimately to deny the LLW generators in the .
delinquent State or Compact region further access to their facilities.
Section 6 of the Act provides that the NRC can grant a generator
" emergency access" to non-Federal or regional commercial LLW disposal facilities if access to those facilities has been denied and that access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and security. The Act also requires that a determination be made'as to whether the threat can be mitigated by any alternative consistent with'the public health and safety, including ceasing the activities that generate the waste. NRC must make both determinations prior to granting emergency access.
_ _ _ _ . _ . _ _ _ . .-_ __.____m.-_.
Tha Commissioners 3 d
}The'Actprovides.NRCwith45daysfromthetimea.requestis received to determine whether. emergency access.will be granted, andifso,todesignatethereceivingfacility.]TheActprovidesI that NRC can grant emergency access for a period not to exceed 180 days per request, and allows that only one,180-day extension of emergency access can be granted per request.
The Act provides 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 l specifically precluded from making emergency access decisions.
The legislative history for the~Act emphasizes Congressional
' intent that emergency access be used only in very limited and rere circumstances and that it was not intended to be used to.
circumvent other provisions of the Act. Congress expected.that responsible action from the generators and the States / Compacts should resolve most problems arising from denial of access decisions, thus precluding the necessity for involving the Federal sector in granting emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort. .
N .
The Act d d not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC staff recommended a rule to establish the procedures and criteria that will be used in making the required emergency access determinations to add predictability to the decision-making process, and help to ensure that the NRC will be able to make decisions on emergency access requests in the time required by the Act.
r-
[ In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act
[
s
The Commissfeners 4 I
fandwithitsunderstandingthe'intentexpressedbyCongress Iregarding decisions made pursuant to Section 6. Staff's objective throughout has been to establish requirements for granting emergency access that are stringent enough to discourage the- g
[ unsited States and regions from viewing emergency access as' an j r alternative to diligent pursuit'of their own disposal capability,-
I Q . and yet~ flexible enough to allow NRC'to respond appropriately in
. \ situations where. emergency access is genuinely needed to protect i q the public health and safety or the common defense and. security. {'
s' On January 15, 1987, NRC issued a Notice of Intent to develop .
this rule (Vol. 52, Federal Register,' No. 10, p. 1634),'and on December 15, 1987, NRC issued the proposed rule. The formal
]
comment period expired February 12, 1988. Twenty-one commentors responded. Copies of the comment letters.are included as an appendix to the staff analysis of comments in Enclosure C. 1 Responses were received from the governments of six. states !
i (Maine, Arkansas, Illinois, New York, Kentucky, and Pennsylvania), two from Low-Level Wast Compact Commissions (Midwest and Central Midwest),-ten from. concerned citizens and j members of environmental groups, two from industry, and one from j a nuclear information service.
Discussion: Most e commentors raised issues that had been considered by staff we developing the proposed rule. g tge g g ,
7 ,nrn+^ *acnnnea +n thecomments[r^""ad + " addition I clarifications to the final rule. The critical components of ]
the proposed rule - the procedures and the criteria to be used l in making emergency access decisions, are essentially unchanged in the final. The most significant comments are discussed below:
In general, commentors appeared to support NRC's issuance of a rule for its emergene agc decisions and indicated changes that would improve r m their perspective. One commentor 07/26/88 10 CFR 62 CP >
1
The Commissioners 5 expressed opposition to the issuance of the rule itself.mc25aA ,.
e^ ~ ^t;. . . J a t : d t h :' + '^ ""' ^ ^ ^ "' d '^ 'i'. . -. because k MCC granting emergency,W a waccess would infringe on the S atesright Sech % G, to tk 0ct
'-t' make manage their LLW.? NRC was 6 *:8 ;:t mandateg emergencyaccessdetermination9whentheStatesarenot otherwise able to manage their LLWp Si.~s uus . i. s .m - ;:r:te:
-" C uim ' ~ uri: T ::'4^ c es not consider that J
c..~wg:~e
,M .tM& tW ""hW, :1tL L W, N CG NA*v i%
+h 4*^'-- with ates' rights.
By far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsection 3(a)(1) of the Act, the states are mandated to provide disposal only for commercially generated LLW classified as A, B, and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a.
result of decommissioning of vessels, or as a result of any research, development, testing, or production of atomic weapons." 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 allowed to receive emergency access disposal.
J Indevelopingtheproposedrule,NRCstaffassumedthtgtgl g be clear thet $ limitations established by the Act gfor routine LLW disposal would also apply to LLW under consideration by NRC for emergency access disposal. However, no sta.tement was made to this effect in the proposed r le. ,C1 rif k
^bn hkk '
pN'M h emergency 1 accessdisposalhasbeenaddedtothehinalrule. !
l Most of the states and Regional Compact Commissions who submitted comments indicated that the final rule should include 07/26/88 10 CFR 62 CP 4
The Commissioners 6 provisionsbywhichNRCwouldatttoensure.that$tatesLLW (ompacts designated to rective y g e y access y tes will ,
receive reciprocal access ich they are e itled er the Act.
Under Section 6(f), the Regional Compact or State recc'ving.the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact' region or. State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to that provided emergency access."
The issue of reciprocal access is of particular concern to those States / Regional Compacts who have, or plan to have, operating LLW disposal facilities. They are concerned that NRC has the power to override their denial of access decisions and force them to accept waste ^ . 1 under the eme ysg y@
provision. guar g of reciprocal access the, ree4 +
prospect of p ;,;g emergency access waste mmne pf :t i ;f Commentors indicated that NRC should require a formal acknowledgement of reciprocal access before making an emergency access determination. NRC staff considered addressing l reciprocal access during the development of the proposed rule. l However, given the agency's mandate to protect the pub 1'c health and safety on the common defense and security, staff btlieved it would be inappropriate for NRC to assume the role of enforcing reciprocal access arrangement. 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__--___-_.
i j
l The Commissioners 7 j k
The NRC staff reconsidered.its position on reciprocal accecs in !
light of the comments received on the proposed rule, but made no
' changes to the final rule. l Three.of the.commentors representing States or Compact <
l' Commissions /raisedtheissueofCompactCommissionapprovalof NRC's emergency access decisions. They indicated that the NRC j had been remiss in not including a provision in the proposed.
rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Commission of the region in which the designated site is located. 3
')
Under Section 6(g) of the Act, "any grant'of access under this Section shall be submitted to the Compact Commission for the I region in which the designated disposal facility is located for such approval as may be required under the terms of its-l compact." This provision has proven to be controversial because i it is o n to several i terpretations. The intrepretation eed s e Wa# f
'P: @cr' 'y "" ad by he tates is that Congress intended for the Compact Commission of the designated site to have the final say ,
j regarding the acceptance of emergency access wastes. They believe Congress intended W + ? :::i * ; rar ar+ rn=miccinn i
+% w i- 1 c n._ , ,, a . m,4m_ r + . _
.u m 3 m ,y
_ - _ _ _ _ , am + m 4 m e + 4 - a i ne e an+ 4 ='; '2, _ L . ,3, m . 2 '^- M the Compacts to have the power to veto the NRC's decision. The commentors wanted the NRC l
to acknowedge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule. l NRC staff believes that disapproval of NRC's emergency access determination is not really an option. Staff believe that the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section 6 emergency access provision is to ensure that sites which would normally be closed under the Act will be available in emergency situations. A Compact Commission 07/26/88 10 CFR 62 CP
,f E.
i l
i
.The Commissioners 8 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 This was explained in the ,MW6"4
.___ -... v. TM, wun mat 2997
.__. ns-for(1985). ] rule and has the proposed been reiterated and clarified in the final.
A number of the commentors expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, or taxes prescribed by that facility. Other commentors stated that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the ,
Act. The commentors expressed a desire to have NRC consider those items in making its site designation decisions for emergency access.
To the NRC Staff it is quite clear from the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facilitydesginatedtoreceivethewastesbytheNRC.}
Further, the staff believes that Congress intended for i generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the Act as specifically applicable to emergency access situations. However, NRC staff does not agree that such information can or should be used by l 07/26/88 10 CFR 62 CP
- _ - _ - _ _ _ _ _ - _ i
i J
,.The Commissioners 9 !
NRC in making its. site designation decision. For' clarification, ]
a new section has been added to f g rule which reaffirms j NRC's understanding ngre lona17 intent *^ " g I conditions or terms normally apply to LLW disposa1 7 apply far to emergency accessdlyo.md. q Several of the commentors suggested that the final rule.should contain conditions under which emergency access could be terminated. Staff agree and have added a newhbpart D for this purpose. The new subpart establishes that the operator of the receiving site may refuse emergency access waste if it does not meet the conditions established by NRC in Party g that the NRC can terminatet ifkdetermindt"isnolonger needed.
Several commentors stated that the 10 day public comment period provided in the rule on requests for emergency access was -
1 l inadequate. Since NRC is not required to seek public comments i on requests, and since NRC has only 45 days to respond when a l request is received, no change was made to the final rule.
/IATterconsiderationofthecomments,staffrecommendsthefinal ruleproposedforCommissionapprovalinEnclosureh.Thereare no major differences between the proposed and final rules but u s4 \
several clarifying changes are included. They-ow T* ilnin r-- An *' I l
(1) Addition of a clarifying sentence to the " Purpose and- 1
)
Scope" of the final rule. The sentence indicates that the i emergency access rule applies only to the LLW's for which the States have disposal responsibility pursuant to the Act.
1 (2) Addition of clarifying language to 62.22 stating that the Commission will make notification of the final :
determination in writing to the appropriate Compact 1
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-The Commissioner'rs , 10 l 1
- Commission'"for such approval-as'is specified'as'necessary Lin Section 6.(g) of the Act."
(3)'- Addition'of a clarifying Section VIII.to.the Supplementary Information titled." Terms: and conditions. for Emergency .j Access' Disposal."
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-(4)" The addition.of' clarifying.Subpart D, titled " Compliance with Conditions of Emergency Access;. Termination of Emergency Access."
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The Commissioners. 14 ,
Resource Requirements I
. Consistent with the legislative history for Section 6, NRC staff expects that emergency access will be requested only under rare and unusual' circumstances through-1993 and'beyond. Staff estimate it will take approximately 180 staff-days (six staff working 30 days out of the 45 days allowed in the Act) to complete .the
'necessary review.
Recommendation: )
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That the Commission: 1 s
-(1) Approve for publication in the Federal Register the final new rule 10 CFR Part 62 enclosed here (Enclosure B) which would establish procedures and criteria i for granting requests for emergency access to low-level waste disposal sites.
(2) In order to satisfy requirements of the Regulatory Flexibility Act (5 U.S.C.
605(b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclosure b under the Regulatory Flexibility Certification' heading.
l (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 by the Regulatory Flexibility Act.
l l- b. That this final rule contains modifications to information collection requirements subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), that Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid.
1 The Commissioners 15
.c. That the proposed rule included a preliminary-finding that no significant environmental impacts would result from the rulemaking. The J environmental assessment forming the basis for this determination is )
contained in Enclosure D, " Regulatory Analysis." The staff has not !
prepared additional environmental analyses and continues to-believe that additional environmental review would not be productive or beneficial.
- d. 'That compliance with CRGR charter requirements is not applicable for this rulemaking action as the rulemaking applies only to radioactive waste managoment, and not a generic requirement to be imposed by the NRC on one or more classes of power reactors.
- e. That the Subcommittee on Nuclear Regulation of the 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 Environment, 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 rulemaking is filed with the Office of Federal Register.
- g. That a regulatory analysis, Enclosure ( has been prepared for this rulemaking.
- h. OGC has reviewed the proposed rulemaking package and has no legal objections, i
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The Commissioners' 16' l
! 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 smergency access'may.be'made. Consistent with the next major trigger date for denial of access in the Act the' final rule should be issued in the fall'of 1988.
MA I[ 19 99 j Victor Stello, Jr. . .
Executive Director for Operations
Enclosures:
A. Draft Federal Register Notice B. Public Comment Analysis with Comment Letters. '
C .' Regulatory Analysis D. Draft Congressional Letter E. Public' Announcement i
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Document Ntmn:
JOAN Author's Name:
LAMBERT Document Comments:
WFN 7/35 7/26 PLEASE KEEP THIS SHEET WITH DOCUMENT l
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APPENDIX I 4L CopM bO
->4r Mw. beka.n s et p 4The Proposed; regulations "-
M i i
Th3 pg d rule addressWf each of the determinations that NRC must make and describe, how they will be made.
In order to make the determination that there is a serious and immediate threat to tha public. health and safety, the Commission will consider whether the circumstances l described lead it to conclude that there is no longer reasonable assurance that t'ne affected generator or generators can continue to comply with NRC's regulations in 10 CFR Part 20, and as a result, that the public health and safety will be endangered.
In making this determination the NRC will consider the significance of the situation '
described in the context of the requirements issued by NRC in the facility license, the technical specifications, and any applicable regulations and orders of the Commission.
i In making the determination that there is a serious and immediate threat to the j 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 r>ecurity and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. The proposed rule also specifies that the NRC will consider the commen defense and security recommendations to be made by the Department of Energy (DOE) and/or the Department of Defense (00D) in a " Statement of support." A Statement of support from the appropriate agency will be required as part of any request for emergency access made in total or in significant part on the basis of a threat posed to the common defense and security.
If the NRC makes either of the above determinations in the affirmative, NRC will l
then consider whether any alternatives to emergency access are available to the i applicant. These include, but are not limited to: (1) storage of LLW at the site of generation; (2) storage in a licensed s,torage facility; (3) obtaining access to a disposal facility by voluntary agreement; (4) purchasing disposal capacity; 07/26/88 10 CFR 62 CP
The Commissioners .g (5) requesting a license modification from'NRC;'(6) requesting disposal at a Federal disposal-facility (appropriate for Federal'or defense related generators of LLW only); (7) reducing the volume of the waste; or (8) ceasing'the. activities that generate the waste. The NRC will consider whether the person requesting emergency access has considered:all factors in their evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and safety. The~NRC will consider whether the requestor'has demonstrated that the i
implementation of an alternative is unreasonable because of adverse effects, because 1 it is technically or economically beyond the capability of the requestor, because it l would result in- the cessation or curtailment of essential medical services, or cannot
.be fmolemented in a timely manner. If any alternative is determined by NRC to be reasonable, then the' request for emergency access will be. denied.
]
If NRC determines that emergency access is warranted, NRC will then determine which operating non-Federal LLW disposal facility should receive the LLW. A facility ]
would be excluded frem consideration if (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its' capacity
. limitations as set out in the Act; (3) granting emergency access would' delay the planned closing of the facility; or d) the volume of the waste requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the. site in the previous calendar year. If the designation cannot be made on this basis alone, the Commission will consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, and any other information the Commission deemc necessary. It is not clear from the le0islation what action NRC should take if no site is deemed suitable, and we have specifically requested comments on this potential problem.
'In making the determination regarding a request for an extension of emergency access (Section 6(e) of the Act), the NRC staff will consider whether the circumstances still warrant emergency access and whether the person making the request has been diligent during the period of the initial grant to eliminate the need for emergency ECCess. i 07/26/88 10 CFR 62 CP j
l s ,
. ::y
>The Commissioners 1
~ l In making a. determination that temporary emergency _ access is neces'sary (Section 6(d).
of.the Act),- the staff will have.to make the" determination that.there is a serious-and isamediate threatito the public health and safety'or-the' common defense'and -
security as.ctherwise required :for emergency access; but' would not have to consider.
?whether mitigating alternatives exist.~
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CLEAR REGULATORY COMMISSION YhM 'i
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10 CFR PART 62-
~ Criteria and Procedures for. Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities
. AGENCY: . Nuclear Regulatory Commission.
w41 ACTION: [-[armdRule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is ..;; a rule to establish procedures and criteria for' fulfilling its responsibilities associated with acting on requests by low-level radioactive waste (LLW)
~
generators, or State officials on behalf of those generators, for emergency access to operating, non-Federal or regional, low-level radioactive waste disposal facilities under Section 6 of the Low-Level 4
Radioactive Waste Folicy Amendments Act of 1985. Grants of emergency access may be necessary if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal facilities, and the lack of access results in a serious and immediate threat to the public health and safety or the common defense and security.
Efft.crwE. DATES:
(300 mme QfA&)tted on or b should be s _. _
l Comme sr e' ed afte - his da will consi ered if 1 is actical !
l to o ,b assu nce of co sidera on cann t be gi n exce t to l d before this o ents re da .
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E__ __ _ _ - -- --
_ _- I - _
h ADDRESS: A bmit .ccitte- c r = nt; t; the-O r t ~y af the rammiccion, L'. C. L u b o. L g':t a ~ rnmniccinn u es<m-ten, Oc 20;;;, ^tt ntion:
en s ,. y n u L A a nnot4m; : ~4 co ~<ro ar=nch Copiesofcommentsreceivegandthe regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW.. Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT: Janet-Lambert, Division of4.:. #
4 L'e ae naiiayement ena Lecumm> >> >vi.;ng, U.S. Nucle r Regulatory Commission, l l
992 38- !
Washington, DC 20555, telephone (301) 44: 7700.
- i SUPPLEMENTARY INFORMATION:
i I.
ma
Background
II. Legislative Requirements III. Legislative History IV. NRC Approach V. Assumptions .
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. VI. Tg? D-; "
"s :mo '.
. Rationale for Criteria -
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ques r Emerg 7%qcejs e Meue ri ivi i; th: ::Toudve N e of t e ,
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i Finding of No Significant Environmental Impact: Availability ,
I WI. Paperwork Reduction Act Statement
[QI. Regulatory Analysis .
L% @. Regulatory Flexibility Certification g [ XIV. List of Subjects in 10 CFR Part 62 2
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fnb55%W I.A Background
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The h t;.e; Miacti., L;te I;lic,, "n diai,1, Act ;' l 5
-(p; p-9an w..yy i c igec) "+" M" directs the States to develop their own LLW disposal facilities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new facilities will be available bp January 1,1993.
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The Act establishes procedures and milestones for the selection and development of the LLW disposal facilities. The Act also establishes a system of incentives for meeting the milestones, and penalties for
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] failing to meet them, which is intended to assure steady progress toward l
new facility development.
t The major incentive offered by the Act is that the States and l
l regional Compacts which meet the milestones will be allowed to continue
{
to use the existing disposal facilities until their own facilities are available, no later than January 1, 1993. If unsited States or Compact regions fail to meet key milestones in the Act, the States or Compact Commissions with operating non-Federal or regional LLW disposal i facilities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities. I l
Section 6 of the Act provides that the Nuclear Regulatory Commission l (NRC) can grant a generator " emergency access" to non-Federal or regional low-level radioactive waste (LLW) disposal facilities if access to those facilities has been denied and access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative 3
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, ' consistent with the public health and. safety, including ceasing the activ-ities that generate _the waste. NRC must be able, with the information-provided by the requestor, to make both determinations prior to granting emergency access. Pe p"epma er tM: repu>ed iw plotivo t 10 evt' -
I th t p ocedures,a n titeria tha wil be used4y Thh hCommi 1on to
/ j et mine if emergency acc y o#a LLW.di l' . . facility s uld be
/ 7
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II. Legislative. Requirements l In eddition to directing the NRC_to grant emergency access as discussed in the Background section, the Act further directs NRC to designate the operating LLW disposal facility or facilities where the waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the i Governor (or chief executive officer) of the State in which the waste was I 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 i will be granted and to designate the receiving facility.
The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request. To ensure that emergency access is not abused, the Act allows that only one extension of emergency access, not to exceed 180 days, is to be granted per request. An extension can be approved ;
only if the LLW generator who was originally granted emergency access and the State in which the LLW was generated have diligently though unsuccessfully 4
u m-____-----_-----------_----.-- --
m;-
l acted during the period of the initial grant to eliminate the need for i
emergency access.
The Act also provides that requests for emergency access shall contain all information and certifications that NRC requires to make its determination.
1
" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the Commission's discretion because of a serious and immediate threat to the public health and safety or the common defense and security pending a Commission determination as to whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
Although the Act ot require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is p ng this rule to establish the procedures and criteria that will be used in making the required f emergency access W C '= 1@. )Since the requisite condition that m be met in order for a requestor to be eligible for emergency access con-sideration is that the requestor has already been denied access to the LLW disposal sites by the States or Compacts with operating disposal facilities, implicit in any decision to grant emergency access is the fact that such a decision will override the sited States' and/or Compacts' expressed desire not to accept waste from that particular State or j generator. Although Congress provided NRC the statutory responsibility for implementing Section 6 of the Act and gave the Commission authority to decide whether or not access will be provided, emergency access decisions are likely to be controversial. By setting out the procedures I and criteria for making emergency access decisions in a rule which I reflects public comment, NRC intends to , .
~77--- _,,
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ffpr:dictability to th Ct;d "J"Ti 9 NRC will be able to make ite decisionmaking '
s decisions on nd to help ensure th within the time yallowed the Act. b emergency access requests i
III. \
\
The legislative history ofLegislative History 1
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intent that emergency the Act emphasizes the C congressional circumstances and that it w_ access be usedI provisions of the Act and rare as not intended oto be used successful implementationCongress believed circumvent it wa othe by the unsited Statesofa the Act that emergencys imp access not be viewed of new LLW disposal y.
capacits an rsuit alternative of to the pk Congress believed thatThe wi legislative hist the develop. ment h
(
LLW generators, includi th the various manageme ory indicates that ng, for the waste, the instanc example, storage or nt options availab access would be unlikelyes where there ceasingwasto generate no alt Congress ernative to the generators and the S emergency thus precluding the ne tates/Compactsexpected that responsibl action from ing emergency access.
cessity for involving thes problems e
F dshou Federal involvement as Section eral6sector wasin grant-included In developing the a vehicle of last resort o provide a mech consistent both with the a temergency access the intent expressed by C c ual text of Sec e Section 6. The ongress regarding decisions e Act and with
\
gency access 4 ando serve / t rule sets n strict requireme t ma s for granting emer-encourage potential requestksto seek other 6
1 means for resolving the problems created by denial of access to LLW dis-M posal facilities. The r^r ::d rule places the burden on the party I
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 j i
exhausted all other options for managing their waste. By establishing i strict requirements for approving requests for emergency access, NRC l
intends to reinforce the idea that problems with LLW disposal are to be j i
l worked out to the extent practical among the States, and that' emergency access to existing LLW facilities will not automatically be available as (
an alternative to developing that capacity. NRC believes this interpreta- !
tion is consistent with a plain reading of the Act and the supporting legislative history. j Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve !
emergency access not later than fifteen days af ter receiving notifica-tion" from the NRC. The purpose of this provision is to-- i
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant, e allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and I
- ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded.
However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission 7
I with a veto over the NRC's grant of. emergency. access. The basic purpose of the Section 6 emergency access provision is to ensure that sites that 1
would normally be closed under the Act will be'available in emergency situations. ' A Compact Commission veto would frustrate the purpose of. )
the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6, 1*
Congressional ratification of that Compact would be null and void. J l
H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985). l IV. NRC. Approach 5 %
In developing the r_-^--- M rule, the NRC's approach was to:
- 1. assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation. ;
- 2. identify the information and certifications that will have to
]'
be submitted with any request for emergency access in order for NRC to make the necessary determinations.
- 3. assure that the procedures and criteria that are establish.ed in I d g.C N G- *l 10 CFR Fort 62 can be implemented within Me 45-dakgM specified in -.
h) :
the Act.
- 4. establish procedures and criteria for designating a site to receive the waste which are fair and e pitable and which are consistent with the other previsions of the Act, including the limits on the amount of waste that can be disposed of at each operating facility.
8
- 5. establish requirements for granting emergency access that are stringent enough to discourage the unsited States and regions from viewing emergency access as an alternative to diligent pursuit of their.
own disposal capability, and yet flexible enough to allow NRC to respond appropriately in situations where emergency access is genuinely needed to protect the public health arid safety or the common defense and
-security.
V. Assumptions.
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NRC m .. assum that the wastes requiring disposal under the emergency access provision will be the result of unusual circumstances.
The nature of routine LLW management is such that it is difficult to con-ceive of situations where denial of access to disposal would create a serious and immediate threat to the public health and safety or the national security. In most cases, generators should be able to safely store routinely generated LLW or employ other options for qanaging the waste without requiring emergency access. Thus, if all the LLW genera-tors in a State were denied access to LLW disposal facilities, NRC-edg;f would not expect to receive a blanket request for emergency access for all of the LLW generated in that State, or for all of the LLW generated by a particular kind of generator since the need for emergency access would be different in each case.
NRC has also assumed that requests for emer-gency access will not be made for wastes which would otherwise qualify 9
' for disposal by the Department of Energy (DOE) under the unusual volumes provision of the Act [Section 5(c)(5)). This means that NRC does not intend to consider requests for emergency access for wastes generated by
- commercial nuclear power stations as a result of unusual or unexpected operating, maintenance,. repair or safety activities. Section 5(c)(5) of the Act specifically sets aside 800,000 cu.ft. of disposal capacity above the regular reactor allocations through 1992 to be used for those wastes.
With this space reserved for wastes qualifying for the " unusual volumes ,
allocation," NRC believes emergency access should be reserved for other LW, untLil the 800,000 cu.ft. allocation is exceeded.
a F NRC considered basing its decisions for granting emergency access j
solely on quantitative criteria, but decided against that approach.
While NRC has identified some of the wastes and the scenarios which would create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated. Largely because of the uncertainty associated with identifying all of the circumstances under which emergency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule * ,___j contains a combination of qualitative and quantitative criteria with generic l applicability. NRC believes this combination provides NRC maximum flexibility in considering requests for emergency access on a case-by-case basis.
Q j M w s:te c'n 1 l Q,.__ ' _'A L'; Q.h_ -
VI. MAc+m[n P c " e p e (d D g b, The rule contains Subparts, A, B, aspd CA These Subparts set out the requirements and procedures to be followed in requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here.
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f l 1 Subpart A , General Provisions Subpart A contains the purpose and scope of the rule, definitions, instructions for. communications with the Commission, and provisions .,
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relating to interpretations of the rule. Subpart A' states that the rule applies to'all persons as defined by this regulation who have been' denied access to existing commercial LLW disposal facilities and who submit a ;
request:to the Commission for an emergency access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendments'Act of. ,
1985. Ab # '
a - - - -mo>
ww aAguagw w as.*ur& s
'S part B . Request for'a Commission Determination Subpart B specifies the..information that must be submitted and the procedures that must be followed by a person seeking a Commission deter-mination on emergency access.
Specifically, Subpart B requires the submission of information.
on the need for access to LLW disposal sites, the quantity and type of material requiring disposal, impacts on health and safety or. common defense and security if emergency access were not granted, and consideration of available alternatives to emergency ccess. This information will enable the Commission to determi e! C*-
(a) whether a serious and immediate threat to the public health and .l safety or the common defense'and security might exist, (b) whether alternatives exist that could mitigate the threat, and (c) which non-Federal . disposal facility or facilities should )
provide the disposal required. -
In addition to the above, Subpart B also sets forth procedures for ;
the filing and distribution of a request for a Commission determination.
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It provides for publication in the Federal Register of a notice of receipt of a request for emergency access to inform the public that Commission action on the request is pending. 'Even though con nent is not required by 1
the Act or the Administrative Procedure Act, Subpart B provides for a !
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10-day public comment period on the request for emergency access. J In the event that the case for requesting emergency access is to be based totally or in part on the threat posed to the common defense'and security, Subpart B requires that a statement of support'from the Department of Energy (DOE) or..the Department of Defense (00D) (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, i l
NRC will not proceed with the emergency access evaluation until the -
statement of support is submitted.
Subpart C - Issuance of a Commission Determination <
For the NRC to grant emergency access, the Commission must first j i
conclude that there is a serious and immediate threat to the public j l
l health and safety or the common defense.and security, and second that there are no available mitigating alternatives. Subpart C sets out the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and l
for granting temporary emergency access; establishes the criteria and 1
standards to be used by the Commission in making those determinations; and specifies the procedures to be followed in issuing them.
Subpart C provides that NRC, in making the determination that there is a serious and immediate threat to the public health and safety, will '
consider: (1) the nature and extent of the radiation hazard that 12
I would result from the denial of access including consideration of the standards for radiation protection contained in 10 CFR Part 20, any standards governing the releate of radioactive materials to the general environment that are applicable to.the facility.that generated the low-level waste, and any other Commission requirements specifically applicable to the facility or a'ctivity which is the. subject of the emergency access request and, (2) the extent to which essential services such as medical, therapeutic, diagnostic, or research activities'will be disrupted by the denial of emergency access.
In making the determination that there is a serious and immediate threat to the' common defense and security, Subpart C provides that the Commission will consider whether the activity generating the LLW is necessary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a 4 significant disruption in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will consider D0D and DOE viewpoints in a statement of i support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above determinations in the affirmative, then the Commission will consider whether alternatives to emergency access are available to the requestor.
The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potentially mitigate the need for emergency access. The Commission will consider whether the person requesting emergency access has considered j all factors in the evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and 13 ,
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 s
safety or the common defense and security, because it is' technically or 1
economically beyond the capability of the requestor, or because the alternative could not be implemented in a timely manner.
Of particular concern to Congress was the possibility that ceasing the' activity responsible for generating the waste coul g t y h3 I
cessation r c rtailment of essential. medical services. passesas J
rw ' e theCommissionconsider/theimpactonmedicalservicesfromceas-'
y ing the activity in making its determination that there is a serious and I
immediate threat to the public health and safety,tM :- Z.". I e Commission is also concerned as to whether the implementa-tion of other alternatives may have a disru tive effect on essential de<27/h M, /2 medicalservicgs. Th. Ce H edm= ; % . . , y#
M these impacts s_s= n .w nI _..;j M hx. P=__rn._,u7initsoverall M. r.c ss.ts information T S on determination about reasonable alternatives. --f ^.
h According to the procedures set out in Subpart C, the Commission Cer.=b will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an ,
I alternative is determined by NRC to be reasonable, then the request for emergency access will be denied.
If the Commission determines that there is a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigated by any alternative, then the Commission will ,
decide which operating non-Federal LLW disposal facility should receive the LLW approved for emergency access disposal.
I 14
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l Subpsrt C sets out that in designating a disposal facility or !
facilities to provide emergency access disposal, the Commission will first consider whether a' facility should be excluded from consideration because: (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations 1 as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the warte requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year. If the designation
~
cannot be made on these factors alone, then the Commission will consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the 9 &wsle fww'uofy accep22/atsmL nand& anyofother 9 information the Commissioh deems necessary. Q r -
waste,4 i In making i u termination regarding a request for an extension of emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whether the person making the request has diligently acted during the period of l l
the initial grant to eliminate the need for emergency access. ]
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives.
Su.hpad D - W OAL COSs7 Y y M.
IN# VII. Rationale for Criteria E g%
Th pingpesesFrule establishes the criteria for making the emergency access determinations required by the Act. The rationale for these decisions is discussed below:
15
(a) Determination that a Serious and Immediate Threat Exists Establishing the criteria to be used in' determining that a serious S
a andimmediatethreatexisgtothepublichealthandsafetyorthecommon defense and security is key to NRC's' decisions to grant emergency access.
Neither the Act nor.its legislative history provide elaboration regarding )
l Congressional intent for what would constitute "a serious and immediate threat." {
(1) To the Public health and safety--
M The criteria in the paupuund rule for determining whether a serious and immediate threat to the public health and safety exists, address o
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 i i
the threat to public health and safety would result from disruption of the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary emergency access. .
I uud. -Mhw '
The criteria in. thrtungsled rule for determining whether a serious and immediate threat to the public health and safety exists is qualitative in nature in order to provide the Commission with the flexibility necessary to consider a wide range of potential factual situations. However, in making this qualitative determination, the criteria require the Commission to consider several existing quantitative standards. These consist of the Commission's standards for radiation ,
protection in 10 CFR Part 20, any standards on the release of radioactive materials to the general environment that are applicable to the facility that generated the low level waste, and any other Commission requirements 16
n-.
.t m.
specifically applicable to the facility or_ activity which'is'the subject!
of~the. emergency. access. request. This latter category would include licens'e provisions, orderr and similar. requirements.
The Congressional conc'ern.in enacting Section 6 of.the Act was to ensure that a serious and immediate threat.to the.public health and safety did not resul_t from a denial-of' access. .In addressing this-concern, the. Commission will evalu. ate the request for emergency access in its entirety, i.e. the threat to public health and safety and the alternatives to emergency access.that may'be available to mitigate-that-4 threat. In other words, in' determining what constitutes a serious and:- .
immediate threat to public health'ar.d safety,.the Commission must consider.what threat would be unacceptable assuming that no alternatives are available. In the Commission't, judgment, any situation'that would. result in exceeding the occupational dose limits, or basic limits of public exposure upon which certain requirements in 10 CFR Part 20 are founded would be an unacceptable threat to the public health and safety, and should be considered for emergency access.
The legislative history of Section 6 of the Act does not provide any illustrations of a situation where a serious and immediate threat to the public health and. safety would be created at the facility at which the waste is stored, although it is clear that Congress was concerned over.
the potential radiation hazard that might result at a particular facility that was denied access to LLW disposal. The Commission does not anticipate any situation where-the lack of access would create a serious and immediate threat to the public health and safety. However, in order to be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety might result, der S
27
R
.:;pgensmidfl rule establishes. criteria to-address this possibility. Under r its normal regulatory responsibilities and authority, the Commission would act immediately-to prevent ~or mitigate any threat to the public health and safety,' including shutting down the facility. However, there may be circumstances where a potential safety problem would still exist, after the facility was shut ldown or the activity stopped, if the low level waste could not be disposed of because of denial of access.
In this situation, emergency access may'be needed. -The Commission 'would empnasize first, that it is extremely, unlikely that 'a 'serim" 'and immediate-threat to the public health and safety will ever result at the generator's facility from the lack of access to a disposal facility, an/
second, if such a situation does exist, the Commission'will move immediately to eliminate the threat.
If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard.- If there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste;itself. This is separate from a finding that a serious and immediate threat to the publicjalth and safety would exist if the activity were forced to shut Section 6(d) of the Act allows the Commission to grant temporary eMert . access for a period not to exceed 45 days solely upon a finding of a .er ot.s 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 I
18 L
l .--_ -- ----- _ _
l temporary emergency access should be reserved for the most serious. threat 1 I
to public health and safety, and has accordingly established criteria for i I
grantirig temporary emergency access that.' require the consideration of j more serious events. < For purposes of. granting temporary emergency access under Section 62.23, the Commission will consider the criteria and i
examples contained in the Commission's Policy Statement for determining' whether an event at a facility or activity licensed'or.otherwise regulated I
by the Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. (45 FR 10950, February 24,
'1977.) This provision requires the Commission to keep Congress and the o
public informed of unscheduled incidents or events which the Commission considers significant from the standpoint of public health and safety. -
d Under the criteria established in the Commission's policy statement, an j event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and-safety. Such an event could include--
& Moderate exposure to, or release of, radioactive material; b., h. Major degradation of safety related equipment; or C. 4 Major deficiencies in design, construction, use of, or h management controls for licensed facilities or activities.
In deciding whether to grant temporary emergency access, the Commission will evaluate whether the emergency access situation falls l
within the criteria in the Commission's policy statement on abnormal '
occurrences.
(2) To the common defense and security-- ,
l Although NRC is required by the Act to determine that there j is either a serious and immediate threat "to the public health and 19 l
i
i l
safety," or to "the common defense and security," realistically NRC cannot make the latter judgement without some'information from D0D and DOE which will assist NRC in identifying those situations involving'the denial of access to'LLW disposal which constitute a serious and immediate 1
~i threat to the national defense and security, or the importance of a J particular LLW generator's activities in maintaining those objectives.
While NRC has the Congressional mandate for this determination, NRC staff believe it necessary to consider D0D and DOE information as part of the f
,'decisio king process. 8 NRC considered several_ approaches for involving D0D and DOE in tne O
process of determining whether requests for emergency access should be granted on the basis of a' serious and immediate threat to the common defense and security.
NEC b5 M M &
E g :r._ th:t the best way to provide such ik b interaction week M e mo require that requests filed with NRC for emer-gency access which are made entirely, or in significant part, on the basis of a serious and immediate threat to the common defense and security, should include appropriate certification from DOE or D0D substantiating the requestor's claim that such a threat will result if emergency access is not granted. .The necessary certification in the form of a statement of support should be acquired by the requestor prior to I l
applying to NRC for emergency access so the certification can be a part l of the actual petition. J Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the determination with D0D or DOE. So while the Commi.ssion intends to give the D00 and DOE certifications and recommendations full consideration 20
l j ' , '- -in evaluating requests;for emergency access, the Commission will not s
treat them as conclusive.
v .
(b) Determination on Mitigating Alternatives As directed by Section 6' of the Act, even if a situation exists.
~
which poses a serious and immediate threat to the public health and safety. or the' common defense arid security, emergency access is not to be 1
granted if alternatives are available to mitigate the threat in a manner-
- consistentwiththepublichealthandsafet. "9, - I j) G^t requestors for emergency accessp ;to demonstrate that they have
[ explored the alternatives available and that the only course of' action :
remaining is emergency access. .Only after this has been demonstrated to NRC will the Agency proceed with a grant of emergency access.
Alternatives which, at a minimum, a requestor will have to evaluate i
are set out in Section 6(c)(1)(B) of the Act. They include (1) storage of' .
LLW at the site of generation or in a storage facility, (2) obtaining access to a disposal facility by voluntary agreement, (3) purchasing disposal capacity available for assignment pursuant to Section 5(c) of the Act, and (4) ceasing the activities that generate the LLW.-
While 6(c)(1)(B) of the Act sets these out as possible alternatives yP'M )
which a generator must consider before requesting emergency access, NRC has identified other possible alternatives to emergency access which should be considered, as appropriate, in any requests for emergency access. These additional alternatives are discussed below.
Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and operators of commercial nuclear reactors with special access to disposal' in the event that unusual or uriexpected operating, maintenance, repair 21
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i or safety activities produce quantities of. waste which cannot be other -
wise managed or disposed of under the Act. NRC does-not consider that Congress intended that disposal under the emergency access provision .was
~
to apply to the Section'5(c)(5) wastes unless the capacity required for !
i disposals under the unusual volume provision would exceed the 800,000 cubic feet allocated for those purposes. Thus, NRC has.taken the position'in th M rule that, as long as' unusual volumes disposal-
~
capacity is available for LLW which qualifies for such disposal, emergency access should not be requested. Applications for emergsney )
access for wastes which NRC determines would otherwise be eligible for disposal under.the unusual volumes provision, will be denied. j Another alternative applies only to-Federal or defense related i
generators of LLW. NRC will expect that generators of LLW falling into either of these categories will attempt to' arrange for disposal at a Federal LLW disposal facility prio .o requesting access to non-Federal facilities under the emergency access provision.
For all the alternatives that are considered, NRC is requiring O
- detailed information from the ;;..;. ter regarding the decision process leading to a request for emergency access. The requestor will be W *b) expected to demonstrate that e-- ix ri '_ ;d all pertinent alternatives' w
g A >
and-te provide a detailed analysis comparing all of the alternatives MU) p considere ' Jh: WS, fic
% lats Wguo- +v
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consideraf combining alternatives in some way or in some sequence either to avoid the need for emergency access, or to resolve the threat, even on a temporary basis, until other arrangements can be made' 3
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- te evaluate the costs, economic feasibility, and benefits 22
to the public' health and safety of the potential alternatives, and 1p W ;
1 incorporate the results into the request. i l
(c) Designation of Site- i l
In deciding which of the operating, non-Federal or regional LLW disposal facilities will receive the LLW requiring emergency access, NRC will determine which of the disposal facilities would qualify under the limitations set out in Section 6(h) of the Act. According to those limitations, a site would be excluded from receiving was e if (1)-the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If 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 ik yM 4 9(9 wxw tvstste. g would punnt ausptLA in order&.2Ld A s
at each site, an any other informati n that be necessIry 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 i possible among the available operating, non-Federal or regional LLW disposal facilities. To the extent practicable, NRC intends to rotate I the designation of the receiving site, and, for the three currently operating facilities, to allocate emergency access disposal in proportion to the volume limitations established in the Act. In most cases ,NRC 23
_ _ _ _ _ _ _ _ _ - _ _ _ - - _ _ _ _ _ - _ _ - _ _ _ l
L would expect that the designation of a single site will minimize handling 1
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 I
emergency' access disposal is large, or if there are other unusual or extenuating circumstances, NRC will-evaluate the advantages and .
)
disadvantages of designating more than one site to receive waste from the same requestor.
In addition to the above, NRC will also consider how much waste has been designated for emergency access disposal to each site to date (both for the year and overall), and whether the serious and immediate threat posed could best be. mitigated by designating one site or more to receive the waste. ,
In order for NRC to make the most equitable site designation i
decisions, the Agency will have to be well informed regarding the status I of disposal capacity for each of the commercially. operating waste disposal ,
facilities. NRC intends to arrange to obtain this information on a continuous basis.
It should be'noted that in setting out the site designation provision for Section 5, Congress assumed there would always be a site deemed appro-priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations {
provision set forth in the Act. It is not clear what options e V 55 .
h CAlab !
N NRCTif all sites are deemed inappropriate to receive the LLW.
This may have to be addressed by Congress at some time in the future.
(d) Volume Reduction Determination Section 6(i) of the Act requires that any LLW delivered for disposal as a result of NRC's decision to grant emergency access "should be 24
= _ _ = _ _ - - - _ - _ _ _ _ - - _ _ _ _ _ _ _ - _ _ _ _ _ _ _ 1
e --
reduced in volume to'the maximum extent practicable." ' NRC will evaluate the extent to which volume; reduction . methods or techniques will be or have been applied to the wastes granted emergency access in order to arrive at a finding in regards to this' provision.
NRC may receive a. request for emergency access where the applica-tion of volume' reduction techniques may be sufficient to mitigate the
. threat posed to the public health and safety. As a result, NRC plans to evaluate the extent to which waste has been reduced in volume as a part of its mandated evaluation of the alternatives considered by the generator.
From that evaluation, the NRC could reach a finding on.whether the waste has been reduced in a manner consistent with Section.6(i).
As is so for the other determinations NRC will have to make pursuant to Section 6, volume reduction determinations will be made on a case-by-case basis. The optimal level of volume reduction will vary with the waste, the conditions under which it is being processed or stored, the administrative options available, and whether volume reduction process-ing creates new wastes requiring treatSent or disposal. In evaluating whether the wastes proposed for emergency access have been reduced in volume to the maximum extent practicabi9, NRC will consider the charac-teristics of the wastes (including: physical properties, chemical properties, radioactivity, pathogenicity, infectiousness, and toxicity, pyrophoricity, and explosive potential); condition of current container;.
potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste (including incinerators; evaporators-crystallizes; fluidized bed dryers; thi.'.-film evaporators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (rpecific 25
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a'ctivity' considerations,' actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker.
exposure, and equipment availability); and the administrative controls which could e app ied.
w s. ws ascw: 4s ryacuu %
III. Spect ic quest for Co. nts N
NRC is terested in rec v1 g' comments on t parts of the propose rule w re NRC plied its gdiscreti in order to implement N th Section 6 prov' ions. 'NRC specif ly requests comme on the Y ollowing: ( What s enarios ar nvis ned where rgency access wou be equired? (2) Wha e the potenti p lems with NRC app ac to determinin ni diate and s iou threat to the ic -
eslth and afety? 3) What are t e ential prob ms w' the arrangement e osed for makin ,e termination o rious and
-immedia threat the co on defense a d se rity? (4) hat are th po ntial difficulties with the propose ap onch for design ~
g the receiving site? d (5) at shoul NRC do if n site i found o be itable fo waste requirin nIergencyaccess?
is interested fact and recomme tions o specifi ays o N
be espo ive to t se issues. Wh1 o will consider a comments on the proposed e, it will be be er ab to respond' o those comment that r nd cificsolutionstoanypr'ob}eJVraised by the c menters.
./
W Requests for Emergency Access Made Prior to the Effective Date of the Rule W w e " had" M tLph,The Commission has tried to anticipate when the first request might be made so the final rule would h%sst g uy 0.c<t w 26
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O ) (X. ANALYSIS O'F PUBLIC COMMENTS
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A.I TheCommissionreceivedhl)letterscommenting'on'the: osed rule. Ten of
.s .V the comment letters came from concerned citizens,(o f from the governme s 3
of potentially affected States, t f om low-1 1 waste. compacts,'two from
!' theindustryandonefroma$clearbformation. vicegThemajorcomments-6 discussed here. Copies of the comment letters and YYetailed analysis 1iR M - e' coments are available'for public . inspection and copying for. a
.j . d E fee'at'the NRC Public Document Room, 1717 H. Street, N.W., Washington,'D.C.
20555.
2 f
~
7j {' i In general, comentors expressed. support for NRC's issuance of a rule for-its emergency access decisions and indicated changes that would improve it, 5g from their perspective. Only one commentor, representing a lobbying group, expressed oppos(tion to the issuance of'the rule itself. That comentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage their LLW. NRC was legisla-tivelymandatedtomakeemergencyaccessdeterminationswhenthe8tatesare not otherwise able to manage their LLW. Thus, c4a" + " pbw -
- puch-e+@edangm r E N tion A ^# th St, NRC does not consider that the emergencyaccessruleinterfereswithstates' rights,n,fX4ddg NMN, tM Ut;PAdITS /hu-<4#[ #v'-[ % $ N l D A 'G y f h W ( I' Clarification of LLW Eligible'for Emergency Access 1 By far the most comon concern expressed by commentors was that emergency access would be used to force operating non-federal or regional LLW disposal
' facilities to accept LLW they are either clearly not responsible for under the Act, or have~specifically chosen to exclude from their facility. Four-teen of the commentors D almost half of the comments expressed concern that ,
emergency access would be granted to wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, a-r@it., of the comentors stated that Federal wastes, particularly those generated by. DOE and D0D, or was,tes that are classified as greater e than Class-C, #E- Muord4 should not 4- !
be granted emergency access. Many of the commentors indicated that States andCompactsarenotdesigningtheirfacilitiestoprovidesafedisposalfor l'
b 2 these types of LLWs. Most of the commentors who expressed' concern about whichwasteswouldbe~grantedemergencyaccesswere'concernedthatLLWs/
detern ined gible for routine disposal disposal under the Act, could ecc c c' hnia h r disposal at State or regional facilities under the ~
% eme,rgency access provision. M Y = d h >M E#:Edy Cf d 1
- wb l- & %
3 4 Throughout the development of Part 62, the NRC assumed that its mandate was to D grant emergency access only to LLW'that would otherwise be .eligib1'e for routine disposal at .(tate or regional LLW disposal facilities according to f the terms and conditions set out in the.Act. More specifically, the NRC g3 fk 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 g ,
D emergency access disposal.
i X
? q
) m Under Subsection 3(a)(1)(A), the Stateo 5 are mandated to provide disposal for
( q commerciallygeneratedLLWclassifiegA,BandC. They are not required to y
providedisposalforgreater-than-Class-Chastes. 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 Federally generated LLW which is excluded from State disposal responsibility under Section 3 (a)(1)(B). Under that subsection, the States are assigned the responsibility.for disposing of "LLW ,
generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommissioning of vessels, or as a result of any research, development, testing, or production of any atomic weapons."
nceLLWgenerated'bytheFederalgovernment/whichdoesnotfallintothese exclusinary categories / would be eligible for routine LLW disposal, those same Federally generated LLWs would also be eligible for emergency access disposal as well.
The NRC has no intentions of granting emergency access to LLW which are j
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 Ccmmission assumed that it would be clear that the limitations established in the Act for routine LLW disposal would also apply for disposal resulting from a grant of emergency access. Apparently, that was not the case. To clarify the NRC's understanding and intent regarding the scope of wastes which the NRC
3' considers to be potentially eligible for emergency access, the NRC added a new provision (c) to Section 62.1, " Purpose and Scope" of the final rule.
The new provision states that "The regulations in this Part apply only to the LLW's which the States have disposal responsibility for pursuant to 3 Section 3(a)(1) of the Act." The NRC believes the addition of this clarifi-cation to the final rule should resolve any questions regarding a particular i LLW's eligibility for emergency access consideration as well as the Commis-sion's intended application f the final rule. )
Reciprocal Access Severalofthecommentorspointedoutthattheproposedruleomittany re'ference to, or discussion of, Section 6(F) of the Act, which addresses reciprocal access. Section 6(F) provides that the fegional Compact or State j receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or 9 tate in which the emergency access waste was generated. It further provides that the @ gional 1
60mpactor$tatethatreceivestheemergencyaccesswasteshalldesignate, for reciprocal access, "an equal volume of Low-level radioactive waste havina similar characteristics to that provided emergency access." I Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reci rocal.a cess should be addressed c:a.tr uvAuJ in the final rule. Most of the commentors be 7 ieved the RC should broker o reciprocal access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal facility is designated to receive emergency access waste. Several of them emphasized that the recip-rocal 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 i facility. They stated that reciprocal access is of particular concern because a receiving jtate has virtually no leverage or role to play in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. They indicated reciprocity is an integral part of Section 6 and should be part of the rule.
c.
f l ' p. ^
G One commentor indicated that even if the NRC did not wish to be invcl led 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 fromthefcompact@egionor(tateinwhichtheemergencyaccesswastewas gener g e any determination for granting. emergency access is made.
They kiir.cd that such an acknowledgement should be required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided.
The acknowledgement could then be included as part of the Section 62.22 noti-fication provided to the receiving state and, if appropriate, the 6cmpact l Gemmission." i The NRC recognizes that the commitment to reciprocal access is an integral partoftheemergencyaccessprocess,particulaglgorthe$tateswiththe operating LLW disposal facilities designated o receive emergency access '
waste. Staff considered addressing reciprocal access during the development g groposed rule. Atthattime,theJPCmgd decision n g N '"de any - + -- *- reciprocal accessMhe-yrepos,7Nf believed it would be inappropriate for the NRC.to assume the role of enforcing reciprocal access arrangements. The NRC's mandate under Section 6 is to grant requests -
for emergency access in order to protect the public health and. safety and the common defense and security from a serious and immediate threat. .
The NRC reconsidered its position on reciprocal. access in light of the comments received on the proposed rule, but made no changes to the final rule. If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain cir-cumstances, actions necessary to protect the public health and safety Gould be delayed or compromised. Thus, the NRC continues to believe that an enforcement role regarding reciprocal access is inappropriate for the Agency.
The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Commission's basic man-date to make emergency access decisions. The NRC maintains that arranging for reciprocal access in response to grants of emergency access is the responsibility of theStates and Eompacts involved. The NRC believes that
5 the promise of reciprocal access desired by the commentors could be secured during the 15 day period required by the Act under Section 6(g) for Compact Commission approval of the NRC's LLW disposal facility designation.
Compact Approval of Grants of Eniergency Access Three of the commentors representing States or (pmpact dbmmissions indicated that the NRC had been remiss in not including a provision in the proposed rule which would require the NRC to seek approval for its decision to grant emergency access from the Compact Comission of the region in which the designated site is located. The commentors also wanted the rule to state that "no grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Commission," in 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 is fundamental to the successful implementation of Congressional intent for the emergency access provision of the Act.
The basis for these comsnts is language in Section 6(g) of the Act. It states that "any grant of access under this Section shall be submitted to the Compact Comission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its compact." This provision has proven to be somewhat controversial mest because it is open to several interpretations. The interpretation met frequently
- used by the States is that Congress intended for the Compact Comission of the designated site to have the final say regarding the acceptance of emer-gency access wastes. They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency access determination - essentially thet Congress intended the compacts to have the power to veto the NRC's decision. The commentors wanted the NRC to acknowledge this interpretation i of Section 6(g) by incorporating a veto / approval provision in the final rule.
While the commentors were correct in noting that the proposed rule did not include a specific mechanism for implementing the Section 6(g) provision of the Amendments Act, the NRC's position on this issue was addressed in the l dlahy $$! 5 ,
N NM &
Q q & 'f)A nah.
I
, v. .
6 1
Sectico 5(g) af the Act dets _requiresthe NRC_to notify the Compact Commission for'the region in which the disposal facility-is located of any NRC grant of access"forsuchapprovalasmayberequiredunderthetermsofthefompact.3 However, Section.6(g) also requires that the Compact Commission "shall act to approve emergency access not later than 15 days after receiving notification from the NRC." Contrary to what several of the commentors believe, the NRC.
believes that disapproval is not really an option for the Regional Compact Commission in which the designated emergency access disposal facility would be located. his position is derived from the legislative history for both-Section 6 of the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact Act which was passed by Congress as part of the Act. It clear from the legislative history that the-basic pur os of the Section 6 emergency l access provision is to ensure that sites thet would normally be closed under the Act will a available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework estab-lished in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification'of a Compact should be condi-tioned on the Compact's acting in accord with_the provisions of the Act.*If the Compact refuses to provide, under its ow* authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void. [H.R. REP. No. 314, 99th Cong. ,1st Sess., pt.1, at. 2997 (1985).]
While disapprovafay not be an option under the Act, clearly the Act intended
- the receiving Compact Comission to be fully informed regarding the emergency access decision made by the NRC. The Commission believes the Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with information consistent with the specifications in the Act. Section 62.22 of the proposed rale provided that the NRC will notify the Compact Comission of the State in which the desig-nated disposal facility is located that emergency access is required. It further provides that "the notifications must set forth the reasons that emergency access was granted and specifically describe the low-level radio-active waste as to source, physical and radiological characteristics, and the minumum volume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to the public health and safety or the common defense and security.
. i y.
.I In. order to further establish its position on this issue, the NRC'has made a change to the final' rule. New language has been added .to 62.22 which states that the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
Applicable Terms and Conditions for Emergency Acces_s_
A number of the commentors expressed concern that LLW. granted emergency j i access to disposal by the NRC should be required to meet any conditions'of the site designated, as well as any fees, or taxes prescribed by that facility. Other.commentors stated that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. In both cases the commentors wanted assurances incorporated into the rule that in maki g emergency access site designation delegations, the NRC would protect the health and safety interests as-we W es the financial interests of44.w eith he disposal facility designated to receis e the LLW, or the person %. % emergency access. In addition, they wanted assurances included in the rule that the NRC would consider the fees, trixes, etc. in designating a site to receive any waste granted emerger.cy access. .
The NRC's responst 4) these concerns is simple, tnd is much like the earlier j discussion about the response to comments concerning which wastes are
~
eligible for emergency access. As previously stated, the Comission believes that Congress intended emergency access only to be granted for f waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy Act Amendments of 1935 (the Act). To the Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive ;
1 the wastes by the NRC. Section 6(h) states that "No State shall be required to provide emerger.cy access or reciprocal access to any regional disposal !
facility within its bo'ders for low-level radioactive waste not meeting i criteria established by the license or license agreement of such facility....."
i l.
8 To assure that the NRC will designate a. site which is suitably matched to the LLW granted emergency access, the NRC included a' provision in the proposed rule which stated that a LLW disposal site will'he excluded from consideration to receive emergency access waste if the waste does not meet the criteria established by the license or licensee agreement for the facility [62.26(b)(1)].
The license or licensee agreements incorporate / the regulations'and requirements that affect each particular facility. Taken with the other information in Section 62.26, which the NRC will consider before designating a site, the Commission believes Section 62.26 as it appeared in the proposed rule adequately addresses the NRC's responsibility to designate a site'which does not preclude "the implementation of any specific regulations, and requirements at the designateddisposalfacilities."fRegardingfees,taxesandotherconditions that several commentors believed the NRC should consider in designating a site, the NRC believes that Congress intended for generators granted emergency.
access to pay all the normal LLW disposal fees. as well as the additional fees or surcharges specifically applicable to emergency access waste and established under Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designation decision.
The Commission recognizes the importance of conditions to ensure the implementation of emergency access decisions once they are made by the Com-mission. In response to the comments, the NRC add d a new Section "VIII" to the Supplementary Information portion of the rule titled, " Terms and Con-
- ditions for Emergency Access Disposal." It sets out the responsibilities regarding the dispostion of emergency access for both the generator of the LLW granted emergency access and the operatir3 disposal site o fsites which have been designated to receive the waste. The new section reaffirms the 1
NRC's understanding of Congressional intent that whatever conditions or terms normally apply to LLW disposal apply for emergency access, except where specifically stated otherwise in the Act.
i Conditions of Termination Four of the commentors suggested the addition of a new section or subsection of the rule to address the conditions under which emergency could be tenninated.
The Commission agrees that terms and conditions should be established in the L______-
m 9
final rule for termination of grants of emerrency access. The NRC has added a new Subpart D to the final rule which incorporates some of the suggested conditions for termination as recommended by the commentors. The Subpart is '
titic, " Compliance with Conditions of Emergency Access; Termination of Emergency Access." This new Subpart 0 is discussed under the VI.(D) of the Supplementary'Information for this rule. It establishes that the operator of the designated site may refuse emergency access waste if it does' not meet I !
the conditions established by the NRC pursuant to this Part. It also e 11shes that the Commission may terminate a grant of emergency access it determines that emergency access is no longer needed. i i
l- - 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:
l (1) What scenarious are envisioned where emergency access would be required?
l (2) What are the potential problems with the NRC's approach to determining an imediate and serious threat to the public health and safety?
(3) What are the potential problems with the arrangement proposed for r..aking 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?
l Two of the comments specifically addressed this request for comment [ offering partial responses to some of the .
The comments did not reveal any I
new perspectives for the NRC to consider so the final rule was not affected by the comments received.
L l
In the proposed rule, the NRC specifically requested comments on the initial l regulatory flexibility analysis from small businesses s small organizations,
! and small jurisdictions in order to determine if the final regulations should l
l E_-_- _ _ . _ _ _ _ _ _ _
l, 10 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 was not necessary to change the final rule to accommodate the special needs of small business.
1 l
l l
I e
i
be in place before that time. However, it may be necessary for a.
generator or State to submit a request for a Commission emergency access determination prior to the effective date of this rule. Commission determinations made on requests received before the final rule is in es place will be guideo by the criteria and procedures provided in thes proposegrule.
sud L,x,,a F va.S 4 use A w ,
/p Finding of No Significant Environmental Impact: Availability g ;c;te, + ka ::d rule wewM establis criteria and procedures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the common defense and security. For the most part, N& :titu ; :h:::d rule is an administrative action which serves to codify the criteria and proce-dures in the Act. The adopti n of such implementing procedures and crite- i ria by promulgation of a SHE1 rule does not have an environmental effect.
Therefore, the Commission has determined under the National Environ-mental Policy Act of 1969, as amended, and the Commission's mgulations
- in Subpart A of 10 CFR Part 51, that this etsenEMtf rule, simandequhad, is isudst not spr 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 W regulation. The availability c" the animen regulatory analysis is noted bel ow.
l 27 l
l l
I l
X $ Paperwork Reduction Act Statement- l Jusqmunal rule adds information collection requirements that are subject to the Paperwork Reddction Act of 1980-(44 U.S.C. 3501 et seq.).
Th2 ; M: "" haan e"k-' '-
. o m v. eW wre';d ^* tha ni:r 7 4-__ l ra74=:r,t;. D ELL N OffMM %O (
?n p cud .ua. 3 .h h O 3tyo oly3, MSS. Regulatory Analysis The Commission has prepared a6 regulatory analysis yfytfir
%, h al The analysis examines the costs and tenefits E -_ d regulation /. l of the alternatives considered by the Commission. The simme analysis is' available for inspection, copying for a fee, at the NRC Public Document
-Room, 1717 H Street NW., Washington, DC 20555. T 4e WadroG Na h , b. c .:2o.rryw Ja#W(3oj 99.2-59.s'7, y [" ' "'
- g 260, M
)@ff. Regu]atory F exibility Certification NRC is using this N F:;: d rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facilities under Section 6 of the Act. Based upon the -
information available and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that, 4(soccandguhut, this rule will not have a significant economic impact upon a substantial I
number of small entities. l The gesquesM rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small entity. The generators of LLW are nuclear power plants, medical and academic facilities, industrial licensees, research and development facilities, radiopharmaceutical manufacturers, fuel fabrication facilities and government licensees. Of 28 l___ _ _-----
these categories,.all but the power plants, fuel fabrication facilities, and government Ticensees could potentially inc1Lde small entities.
Although these categories may contain a " substantial number of small-entities," the Commission does not believe there will be a significant eccnomic impact to these generators because the Commi.ssion does not anticipate that many generators will be affected by the proposed rule.
In order for the requirements of the rule to be imposed on a generator, the gene'rator himself must initiate the action by requesting a grant of l emergency access from NRC. This would occur only because the generator I
has been denied access to LLW disposal.
y staia V)
The Commission is required to make emergency access' determinations, A
@. Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of lack of access to LLW disposal, the provision of emergency access will benefit any genera-tor of LLW including small entities.
Establishing criteria and procedures for requesting and granting cmergency acces o agle will also benefit small and large generators. Tsa r :- "
' provides guidance to the generator on what l information will be required.for making requests for emergency access
.. i '
and provides an orderly framework for making those requests. Also, the peupuusd rule will enable generators to better plan to avoid LLW disposal 3
access problems, thus providing the certainty required for economic growth ]
and development. l The impact of the recordkeeping requirements on any affected licensees l l
should be minimal since the information that must be provided if a generator (
l requests emergency access would most likely be collected and assembled as ]
l 29 ;
i j
part'uf any process to decide-a course of action if necessary access to o be available. #~
A LLW disposal was no ,
) . _=. -- .
-]' er - TMhe initial reauldthry nhility f-p,,(h 44 i$+0foOtukAH8C ff&iaALM ^^4 m M .
f analy is T: _ " t ;' r " _ 1 ^ """ T 9 F' 'fr x2 . s . . . He i
/ / N
(' Tm.w/all/ bus)n/ /
esses, small g nizat)cns, and smal] jptikdiction d M JP 4
t
- t. ..D
/ / i i .: _ 1: C.. the r ulatio s 3
/
1
,4 ff: -e - w om sguistion a 7 e Tier r u mc.-...
rd OK A 1
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l,gn;llessstrin nt require entsg small n ties whil st 11 "j
/ / Nana ik !
adequa ,ely prote i g the publ,ic heal safety. Lx ' -' .n'. tics f cm N,ul.t. Oddatsed gh M' h. /}Ly&~hn I whicN^f *c ^" C ,bf J
d'"cnts'S*
& hof the re3Uipi itC ion l n
.s cg' ld
- 4. bTe modif
- Ted to, t qWflf 5,r,. Occ0up o'u=~ of smalt entN elr uld spe c'sMy o
g g' fun ifferf.a$M.d- >.3, g aC S hIYk-t"%,- /gn,f g ' G ' '
f'
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liscus %2Mna%% a m (a) Ihe,, size of tne r,ou an'ess enu ovw
,,,o ropo d regulations I
l e- / /
twould rest t in si ifjdan economic bur en upon them as comparedlto
/ /
larger /* rganizationsjntesamebusiness, tom nit . ,.
l I
/ b) Howthe,p[op ed regulations /could b dified to e into l
/ /
ac pabilities. -
unttheirdi,ffe/ringnedsor
~
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(c) The' benefits that oul accrue, or the de '
ents that wduld i i
< be av ided,/ /
if he proposed,re lations /ere modi ied as gges d by the I
/
/ / 4
~ i comment f. ;
) ow the propo' sed regulati s, modified, would re osely 5 /
qualiz the impact /of NRC regulat'on r create more e al access t '
i Lhe b efits o Federal programs s oppos
/ to provi in special van'-
1
/ / /
tage t ' any ind iduals or gro'ps.
ow the p oposed ulations, as mod fied, would s 11
/,[e)
,dequately protect the p, i health and safety.
_p 30
The commefits should be se the Secretary of the Commission, U.S. ;
Docke Naclear Re,g lat'ory Comr3ksion, Washiqpton, DI -20 55, Attent
- n:
y g,and Servi 2.
h b
- p. List of Subjects in 10 CFR Part 62 N
l f. %%
@AdministratvePracticeandProcedure, ow-Level Radioactive Waste uclear
\ mergency Access to Low-Level Waste lus Materials @LWTreatmentandDisposal, Disposal, Lo!
lf/.
of Access.
For the reasons set out in the preamble and under the authority of-o the Atomic Energy Act of 1954, as amended, the isi i:y Reorganization Act ad SR.S. c. S.S3 .
of 1974, as amended and the Low-Level Radioactive Waste Policy Amend-N
- ments Act of 1985, rwm#:: d a.>S JMr@y U 2 CC cs. @N nr pir cf a new 10 CFR h
Part Pact 52'&LkL 62'Wi- %d ftruduas Js1 .
%f Ala Sk
- 1. A new Part 62 N de N o M F ItY
~~TN Subpart A - General Provisions Section:
6
2.1 Purpose and Scope
. i 1
62.2 Definitions ,
{
I 62.3 Communications.
62.4 Interpretations, n 62.g6 Information Collection Requirements : 6M ag 62I Specific Exemptions ,
' d 2, h i
i I
31 l I
i
- - - - - - - - - - - - - - - l
1 Subpart B - Request for a Commission Determination I 62.11 Filing and distribution of a determination request , i 62.12 Contents of a request for emergency access: General information , .
i 62.13 Contents of a request for emergency access: Alternatives, i 62.14 Contents of a request for an extension of emergency access, 62.15 Additional information, 62.16 Withdrawal of a determination reques h 62.17 Elimination of repetitio'n ,
62.18 Denial of access, Subpart C - Issuance of a Commission Determination 62.21 Determination for granting emergency access.
62.22 Notice of issuance of a determination, 62.23 Determination for granting temporary emergency access.
62.24 Extension of emergency access, 62.25 Criteria for a Commission determination ,
62.26 Criteria for designating a disposal facility * ) .
_ M M G rvh'Urd Sny~ O' " S '
Authority: Secs. 81, 161, as amended, 68 Stat. 935, 948, 949, 950,
-- - - 951, as amended. (42 U.S.C. 2111, 2201); secs. 201, 209, as amended, 88 Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849); secs. 3, 4, 5, 6, 99 Stat. 1843, 1844, 1845, 1846, 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f).
l 1
1 1 h- [ b-w ; r O ~ $ % d - ~'-
s$.y % ( '""W4 32 '
Subpart A--General Provisions S 62.1 Purpose and scope.
.(a) The regulations in this part establish for specific low-level radioactive waste (1) procedures and criteria for granting emergency access under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985 (42 U.S.C. 2021) to any non-Federal or regional ,
low-level radioactive waste (LLW) disposal facility or to any non-Federal disposal facility within a. State that is not a member of a Compact, and (2) th'e terms and conditions upon which the Commission will grant this emergency access.
(b) The regulations in this part apply to all persons as defined by this regulation, who have been denied access to existing regional or non-Federal low-level radioactive waste disposal facilities and who submit a request to the Commission for a determination pursuant to this part.
(c)7he 'grzt(N h y t2f Q f ,b b N 0 Act Y (1)E) h Y S 62.2 Definitions.
As used this part:
~ "
"Act" means the Low-Level Radioactive Waste Policy Amendments Act of
- .j 1985 (P.L.99-240). l
" Agreement State" means a State that - (A) has entered into an agreement with the Nuclear Regulatory Commission under section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to regulate the disposal of low-level radioactive waste under such agreement.
33
i
" 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 Amendmcats Act of 1985.
" Compact Commission" means the regional. commission, committee, or board established in a Compact to administer such Compact.
" Emergency Access" means access to an operating non-Federal or regional low-level radios.ctive waste disposal facility or facilities for a period not to exceed 180 days, which is granted by NRC to a generator- ,
of low-level radioactive waste who h;s been denied the use of those l facilities.
" Extension of Emergency Access" means an extension of the access l
that had been previously granted by NRC to _an operating non-Federal ~ or l
l regional low-level radioactive waste disposal facility or facilities for a period not to exceed 180 days.
" Low-Level Radioactive Waste" (LLW) means radioactive material that '
(a) is not high-level radioactive waste, spent nuclear fuel, or byproduct material (as defined in Section IIe(2) of the Atomic Energy Act of 1954
~
[U.S.C. 2014(e)(2)]; and (b) the NRC, consistent with existing law and in accordance with paragraph (a), classifies as low-level radioactive waste.
"Non-Federal Disposal Facility" means a low-level radioactive waste l disposal facility which is commercially operated or is operated by a !
State.
" Regional Disposal Facility" means a non-Federal low-level radio- _
active waste disposal facility in operation on January 1, 1985, or g subsequently established and operated under a Compact.
"Q g"myM $
& .W ~ .
"& D . _a : ? n
. . W (o2,I (.c) d f *fs "W f Y /n
" Person" means any indiv dual, corporation, partnership, firm, association, trust, State, p blic or private i.nstitution, group or agency who is an NRC or NRC Agreement State licersed generator.of,.2 ',
. _y n 3 ;* y > " "' ' . . ,,, n . ~ , v 7 low-levelradioactivewast{;anyGovernor(orforany" State"witho,uta
, Governor, the chief' executive officer of the " State") o h,ajf ruL; g. fgc 5
generator orgenerators of low-levegadioactive. 4 ...". :;' L euy c.n '
,' w ,_? u !
n m &
her " State"; or their duly authorized representative , legal successor or agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto.Rico.
" Temporary Emergency Access" means access that is granted at NRC's 4 discretion upon determining that access is necessary %i:::.:.
e %;fim an & a.h Y 8) immediate and serious threat to the public health and safety or the ,
common defense and security. Such access expires 45-days after the grantingW rAust- fx. .M -
i
~
S 62.3 Communications.
l Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-
~ ~
tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washing +on, DC 20555, or may be delivered in person to the Commission's offices at 1717 H Street NW., Washington, DC, It sss' eo&adh PJa-or 75 N tu ^ n = ?On ,, GMd+HQ"-".'*
.~ -
S 62.4 Interpretations. .
f 4
Except as specificu'.ly an+horized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any l
I 35 1 I
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. Information collection requirements! k
- trs~~pTo'p M ntai informa 'on c uirements
'/ lecti n req /
t at r'e subj t to thf aperwork Re' duction A'ct_of 980(64U..C/350 e seg f_ <
The Nuclear Regulatory Commission has submitted the information i
collection requirements contained in this part t the Office of Magg%b -
f (L. h & Ny ment and Budget (OMB) for(review and) approval of tjit.paperworg 021~,0fl990(444),S.C. 9 SDI d sag.). C HB kus y jx.cr*4, %
(f.wav^-^n+c -
Qgg 4 W M 3150 - OlV 3, S 62. Specific exemptions.
The Commission may, upon application of any interested person or upon its own' initiative, grant an exemption from the requirements of the regulations in this part that it determines is authorized by law and will not endanger life or property or the common defense and security and is otherwise in the public interest.
~
Subpart B--Request for a Commission Determ'aation S 62.11 Filing and distribution of a determination request. l (a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of the request with the Commission at the address specified in S 62.3, with a copy also provided to the appropriate Regional Administrator at the address specified in I
36 l l
Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination or.the person's authorized representative under oath'or affirmation. .
o p- (b). Upon receipt of a request for a determination, the Secretary of the Commission will cause to be published in the Federal Register a notice acknowledging receipt of the request and asking that public comment on the request is submitted within 10 days of the date of the notice. A copy of the request will be made available for inspection in the Commission's'Public Docuinent Room,-1717 Street NW., Washington, DC,
@ V' and in the Local Public Document Room # the. facility su)bmitting the-request. The Secretary of the Commission will also transmit a copy of.
s thegvernorg of ave the request to the U.S.. Department of EnerLy, to ,4 State'where the waste is generated, to the States with operating non-the A. ^
I Federal low-level radioactive waste disposal facilities, aat to the Compact Commissions with operating regional low-level radioactive waste disposal facilities 4 d O M S N 8 */ M b AD#
1 W g oldynu
.(c) Fees applicable to a request for a Commission determination -
under this part will be determined in accordance with the proceduros set forth for special projects under category 12 of S 170.31 of this chapter. l
~ ~
(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 l l
processing or acceptance of requests for-emergency access determinations 1 until' additional LLW disposal capacity. is authorized by Congress.
37 l
c t
l~
S 62.12 Contents of a request for emergency access: General
[ % Information. l
.y C ,
A request for a Commission determination under this part must include dh the following information for each generator to which the request applies:
pI ,
\f (a) Name and address of the person making the request;
~
l% % \ l
.: j{ % (b) Nameandaddressdftheperson(s)'orcompany(ies) generating
]
, { the low-level radioactive waste for which the determination is sought; f
[Thelow-levelwastegenerationfacility(ies)producingthe
, 4 waste for which the request is being made; 9 3
I 4
'g g Q d A description of the activity that generated the waste;
.f % Name of the disposal facility or facilities which had been D.b' '. receiving the waste stream of concern before the generator was denied I
t;lf access; h % A description of the low-level radioactive waste for which
[i, emergency access is requested, including:
% .c ..
jj -
(1) The characteristics and composition of the waste, including, 3 but not limited to--
(i) type of waste (e.g. solidified oil, scintillation fluid, failed equipment); ;
~
(ii) principal chemical composition; 1
(iii) physical State (solid, liquid, gas);
(iv) type of solidification media; and (v) concentrations and percentages of any hazardous or toxic ;
chemicals, chelating agents, infectious or biological agents associated with the waste; 1
l; 38 f
\
i (2) The radiological characteristics of=the waste such as--
(i) the classification of the waste.in accordance with 6 61.55; (ii) a list of'the radionuclides present or potentially present in the waste, their concentration or contamination levels, and total _
quantity; !
(iii) distribution of the radionuclides within the waste (surface or volume distribution);
(iv) amount of transuranic (nanocuries/ gram);
-(3) The minimum volume of the waste requiring emergency access to
&.r.abL. Sdt) 2 iete(the threat to the public health and safety or the common defense and security; (4) The time duration for which emergency access is requested (not to exceed 180 days);
(5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and (6) Description of the volume reduction and waste minimization i
techniques applied to the waste which assure that it is reduced to the
- l maximum extent practicable, and the actual reduction in volume that occurred;
~ ~
() Basis for requesting the determination set out in this part, 1 l including:
(1) The circumstances which led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat-ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the need for emergency access was identified; 39
~
(3) ,A chronology and description of the' actions taken by the person i requesting emergency access to prevent the'need for making such a request, including consideration of all alternatives set,forth in S.62.13, i
and any supporting documentation as appropriate; i (4) An explanation of the impacts of the waste on the public health and safety'or the common defense and security if emergency access is not granted, and the basis for concluding.that these impacts. constitute a serious and immediate threat to the public health and sefety'or the l common defense and security. The impacts to the public health and safety or the common defense and seturity if the generator's services, including .
I research activities, were to be' curtailed, either for a limited perior? of !
time or indefinitely, should also be addressed; -
(5) 'Other consequences.if emergency access is not granted;
() Steps taken by the person requesting emergency access to correct the situation requiring emergency access and the person's plans to eliminate the need for additional or future. emergency access requests; )
) i p Documentation certifying that access has been denied; Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simultaneously under consideration by the Department of Energy (DOE) for access through the unusual volumes allocation; Where the request is made wholly or in significant part on the basis of a serious and immediate threat to the common defense and security, a Statement of support from DOE or D0D certifying that access i to disposal is necessary to mitigate the threat to the common defense and {
l security; i 40 !
-v -
y . c - .. ,,, p wp
- 9) W IJ r n > ao u,,n ds y 'N w '
--.. , cg n%p) Q'
- w k Date by which access is required; g \ - -
Any other information which the Commission should consider ins makino-its determination. L ,
S 62.13 Contents of a request for emergency access: alternatives.
._ (a) A request for emergency access under this part must include SSA/A_.-
information on alternatives to emergency access. T,he request-ettiB
-p include a discussion of the consideration give dtE M N ernitives, D
(1) stora'ge of low-level including, but not limited to, the following: .
radioactive waste at the site of generation; (2) storage of low-level radioactive waste in a licensed storage facility; (3) obtaining access
/9 to a disposal facility by voluntary agreement; (4) purchasin ,dispo g capacity available for assignment pursuant to the Act; reque ing " /-
disposal at a Federal low-level radioactive weste disposal f,apility in-1- ~ h
)N" the case of a Federal or defe se related generator of LLW[ reducing 1 i the volume of the wa ceasing activities that generate ow-level MJL=:-k _ :- '~pR. .g
, J radioactive waste; ;
other alternativ8s identified un' der (g ,
t l Subpart (b) of this Section. 6
'k X.4 3] (b) The request must identify all of the alternatives to energency
& / y_b : n A ;; % n f ,,zM k--t + " p b ',,,y
- r: to access considereA & 4 M' d : fe= ~4"+'nn f{
i -
5 b igriityt"_9 Q :
^
f hV ' '
T specifiedAdr$<d
, r' not in paragrap{h (a) of this 4 f hn)* b /W"V section. The request should also include ^a description of the factors e 1 < & P q)
> 3 that were considered in identify 4ng and evaluating W - m i:: ., a k Y chronology of actions taken to identify and implement alternatives during the process, and a discussion of any actions that were considered, but not implemented.
4 8
41
1 l
(c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public l ! health and safety or the common defense and security posed by lack of f b access to disposal; (2) the adverse effects on public health and safety i
q-and the common defense and security, if any, of implementing each alter-D native, including the curtailment or cessation of any essential services i
affecting the public health and safety or the common defense and secu-N rity; (3) the technical and economic feasibility of each alternative ;
including the person's financial capability to implement the alterna-x 4 tives; (4) any other pertinent societal costs and benefits (5) impacts l
\ to the environment; (6) any legal impediments to implementation of each alternative including whether the alternatives will comply with appli-rW i SW ^'"
&g . ;; .,7 :: :: _, ,,-. i ,, _ J cable NRC regul tory requirement and (7) the time required to develop _-tu
\ "
m e. -- y and implement each alternative. -
(d) fherequestmustincludethebasisfor: (1) rejecting each WA g3
~
y alternative; and (2) concluding that no alternative is available.
b S 62.14 Contents of a request for an extension of emergency access.
A request for an extension of emergency access must include.
~ "
(a) Updates of the information required in S 62.12 and S 62.13; and (b) Documentation that the generator of the low-level radioactive waste granted emergency access and the State in which the low-level radioactive waste was generated have diligently, though unsuccessfully, acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include: (1) an identification of additional alternatives that have been evaluated during the period of the 42
a
- q l
1 1
initial: grant,.and (2) a discussion'of any reevaluation of previously considered alternatives, including verification of continued attempts to gain' access to a. disposal facility by voluntary agreement.
1 i
l 6 62.15 Additional Information.
(a) The Commission may require additional information from a person making a request for a Commission determination ~under'this part concern-
'ing any portion of the request.
(b) The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to a request for additional information under paragraph (a) of this'section-within ten (10) days from the date of the request for additional informa-tion, or any other time as the Commission may specify. This denial will not prejudice the right of the person making the request to file another request for a Commission determination under this part.
S 62.16 Withdrawal of a determination request.
(a)- A person may withdraw a request for a Commission determination under this part without prejudice ~at any time prior to the issuance of an initial determination under S 62.21.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a l
Commission. determination under this part.
1 6 62.17 Elimination of repetition.
1 In any request under this part, the person making the request may incorporate by reference information contained in a previous application, 1
43 !
I Statement, or report filed'with'the Commission provided that these refer- 3 l
ences are updated, clear and specific.
S 62.18 Denial of request.
If a request for a. determination is based on circumstances.that are too remote and speculative to allow an informed determination, the Commission may' deny the request.
Subpart C--Issuance of a Commission Determination S 62.21' Determination for granting emergency access.
(a) Not later than (45) days after the receipt of a request for a Commission determination under this part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or genera-N -
tors located in his or her State, the Commission shall g Tc _ iter- V hile.
mi=t t .ogir; (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.
(c) A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is 44
C based and the reasons for granting or denying the request. An affirma- 1 tive determination must designate'an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum vo me and duration I afivvisd4 (not to exceed 180 days) necessary to 2 1r. kte mmediate threat to public health and safety or the common defense and security. It may also contain conditions upon which the determination is dependent.
1 1
6 62.22 Notice of-issuance of a determination. 1 (a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of the final determination in k
writing, to the person making the request,3the Governor of the State in which the low-level radioactive waste requiring emergency access was 6
generated, aWJf the Governor of the State in which the designated dis- p posal fact ty located and.if pertinent, r ria C p Commission g ef the I nel deter-instier. For the Governor of t e State g<
in which the designated disposal facility is located and fcr the appro- (M priate Compact Commission, the notification must set forth the reasons that emergency access was granted and specifically describe tbs low-level radioactive waste as to source, physical and radiological characteristics, i l
and the minimum volume and duration (not to exceed 180 days) necessary to j alleviate the immediate and serious threat to public health and safety or e common defense and secur k For the Governor of the State in which the low-level waste was generated, the notification must indicate that no extension of emergency access will be granted under S 62.24 absent dili-
, gent State and generator action during the period of the initial grant.
3 So U '
g m?b N / s rw a;#_ _
A& Pm' f
l tT) $
) he Secretary of the Commission will cause to be published in j the Federal Register a notice of the issuance of the determination) 4 q l The Secretary of the Commission wil'. make a copy of the final
{d determination available for inspection in the Commission's Public l Document Room, 1717 H Street NW., Washington, DC.
AA ,
S 62.23 Determination for granting temporary emergency access.
(a) The Commission may grant temporar emergency access to / !
an appropriate non-Federal tu disposal M-fad QS h or facilities provided facility I
that the determination required under S 62.21(a)(1) is made-(b) the notification procedures under S 62.22 are complied with; I and l (c) the temporary emergency access duration will not exceed '
forty five (45) days. 1 l
1 i
S 62.24 Extension of emergency access.
(a) After the receipt of a request from any generator of low-level i
waste, or any Governor on behalf of any generator or generators in his or l her State, for an extension of emergency access that was initially granted under S 62.21, the Commission shall make an initial determina-tion of whether--
(1) emergency access continues to be necessary because of an immed-iate and serious threat to the public health and safety or the common defense and security; (2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and 46
i (3) the generator of low-level waste and the State have diligently though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access.
(b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c) aad CE), and 62.22, must be followed. j S 62.25 Criteria for a Commission determination.
(a) In making the determination required oy.Section 62.21(a) of this part, the Commission will determine whether the circumstances described in the request for emergency access create a serious and immediate threat to the public health and safety or the common defense and security.
1 (b) In making the determination that a serious and immediate threat exists to the public health and safety, the Commission will consider, 1
notwithstanding the availability of any alternative identified in Sec-tion 62.13 of this part (i) the nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of, (A) the standards for radiation protection contained in Part 20 of l this Chapter; (B) any standards governing the release of radioactive materials to l
the general environment that are applicable to the facility that generated the low level waste; and l (C) any other Commission requirements specifically applicable to l the facility or activity which is the subject of the emergency access request; l
l 47
(ii) the extent to which essential services affecting the public !
-health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency access.
(c) For purposes of granting temporary emergency access under j Section 62.23 of this part, the Commission will consider the criteria contained in the Commission'.s Policy Statement for determining whether an event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section 208 of i the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.)
1 (d) In making the determination that a serious and immediate threat to the common defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in sec-tion 62.13 of this part: (1) whether the activity generating the wastes is necessary to the protection of the common defense and security, (2) whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. The Commission will consider the views -
l of the Department of Defense (D0D) and the Department of Energy (DOE) in the Statement of support as submitted by the person requesting emergency access, in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security.
(e) In making the determination required by 6 62.21(a)(2), the l
Commission will consider whether the person submitting the request:
& doB>A M (W +n (1) has iemmne+ ++ad + hat a nond faith .ffnet une made fa m+f <y _,,j
- m. a - > a+--"* . s that could mitigate the need for emergency access; 48
- l
(2) has considered all pertinent factors in its evaluation of alterna-tives incibding state-of-the-art technology and impacts on public health and sas C (f) In making the determination required by S 62.21(a)(2), the Commission will consider implementation of an alternative to be unreason-able if (1) it adversely affects public health and safety, the environ-ment, or the common defense and security; or (2) it results in a signifi-cant curtailment or cessation of essential services, affecting public health and safety or the common defense and security; or (3) it is beyond l the technical and economic capabilities of the person requesting emergency l
access; or (4) implementation of the alternative would conflict with applicable State or local laws or Federal laws and regulations; or (5) it cannot be implemented in a timely manner.
(g) The Commission shall make an affirmative determination under I
$ 62.21(a) only if all of the alternatives that were considered are found to be unreasonable.
l (h) In making a determination regarding temporary emergency access q
under S 62.23, the criteria in parts (a) and (b) of that section shall j apply.
(i) In making a determination regarding an extension of emergency access under S 62.24, the Commission shall consider whether the person making the request has diligently acted during the period of the initial grant to eliminate the need for emergency access.
(j) The Commission shall consider whether any waste delivered for disposal under this part has been reduced in volume to the maximum extent practicable using available technology.
49
9 62,26 Criteria for designating a disposal. facility.
(a) The Commission shall dcsignate an appropriate non-Federal or regional disposal facility if an affirmative determination is made pursuant to S 62.21.
(b) The Commission will exclude a disposal facility from considera-tion if:
(1) the low-level radioactive wastes of the'generatt- to not meet the criteria established by the license agreement or the license agreement of the facility; or (2) the disposal facility is in excess of its approved capacity; or (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the-request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 percent of the total volume of low-level radioactive waste accepted for disposal at the facility during the previous calendar year.
(c) If, after applying the exclusionary criteria in paragraph (b) of this section, more than one disposal facility is identified as appro-priate for designation, the Commission will then consider additional-factors in designating a facility or facilities including:
(1) type of waste M df 57thS U N (2) previous disposal practices, (3) transportation, (4) radiological effects, l (5) site capability for handling waste, em>
() any other considerations deemed appropriate by the Commission.
h ) fks M W NU a4 y $u.a m %uas, pw0 pd IM -
l l
d l
(d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW disposal sites, or any information submitted by the public in response to a Federal Register notice requesting comment, as provided in paragraph (b) of S 62.11
& ps .
)
~[' ,
' r f,Qyd day of g
, 1987/.
I/ ated at bongwn 'DC, this 2,7? /
' / For the Nuclear Regulatory Commission.
k (,~f [n N/
/; , u y-Samuel J. Chilk, Secretary of the Commission.
/ ,
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(
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W Cfkdh 6 &
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awss ; r~A 1 '*"%"9 (e,q 3I G'~Y of 449Wl- i
) The operator of a regionai disposal f acility or a non-federal disposal f acility designated by the Comission to provide emergency access may refu.s_e_ to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
terminate e grant of emergency access when k f $Q The Commission emergency access is no longer necessary +' eliminate an immediate threat to public health and safety or the comor. *fense and security.
~*
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pagg , t ';.3,'s4 D G d N g4C M LyM 0 M b.
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f Part 62 Comment Analysis
()
U B. Responses to Individual Coments:
MthO
'Mr B.1 Comment Letter #1 -- W. Clough Toppas, Dept. of Human Services, Maine
^d'f*M j ho l Comment 1.1 1
- 1. The premise for granting emergency access is sound and takes into account a variety of factors to include some initial oversight actions.
We are not in opposition to the proposal. j I
I RESPONSE: No response necessary.
l l
Comment 1.2 ;
- 2. The proposed rules (e.g., 562.26) should include a small subsection j stating "...the designation of a disposal facility pursuant to 662.21 .
{
shall not preclude the implementation of any specific conditions, I regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Commission's deter- l mination to grant emergency access..." 1 I
RESF0NSE: The Commission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the. terms of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act) and which would meet all the general requirements and regulations of the disposal facility designated by NRC to receive the wastes. To assure that NRC will designate a site suitably 1 matched to the LLW granted emergency access, NRC included a provision in j the proposed rule which states that a LLW disposal site will be excluded !
l from consideration to receive emergency access waste if the waste does.
not meet the criteria established by the license .. .~m -y , y.. . .t for the facility [62.26(b)(1)]. The license W ' r ::: _ , . _ -:;-: ; t t '
incorporate $the regulations and requirements that affect each particular facility. Taken with the other information in 62.26 which the NRC will
l
.2 /
ission believes'Sectiononsibility regulations ,
to designating a site, the Commly addresses th i
. consider before ities."
62.26 as proposed adequate 7 which does not preclude "the implemedesignated items dispos a site and requirements at the taxes and conditions" asThe C
%(h Ws comment also lists ." fees,ider in designating a s which NRC should cons f rmation can or should berpcognize 6 of emergency j
not agree that such inon.2h,The o A.f 40 imple 4A d Coinmission6 me Jntation nd hasE, '
re its site designation e deci a: *nd ada;igsamo6ere importanc are made , by the Commission ad Se j access decisions once theycomment sets out the The new Section by addin t disposal .f acility operatora to that part of his(ncyf% g #
.Gend5ffortjgrf1Tasregof the generator and the [y ved. (See n N' i responsibilitiesaccess has once emergency' [A Y'~
s.5,s'.4and9.1.)
j 7
m MM A +/*W t N awmrun p em
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ca I J
i l
3 i
B.2 Comment Letter #2^-- Sally Dicmas, " Concerned About Radiation in the Environment," (Citizens Group)
'{
l l
j Comment 2.1 Comercial waste only shall be eligible for state and compact LLRW dumps. Federal waste (DOE) shall be prohibited.
l RESPONSE: In developing the proposed rule, NRC assumed'that only those LLW's designated by Section 3(a)(1) of the Act to be the disposal !
I responsibility of the States, would be eligible for disposal pursuant to the emergency access provision. UnderSection3(a)(1)(A),theStates are assigned the responsibility for disposing of commercially generated l l l LLW, and under Section 3(a)(1)(B) they are assigned the responsibility for disposing of "LLW generated by the Federal government except that I which is owned or generated by DOE, by the Navy as a result of decommis-sioning of vessels, or as a result of any research, development, testing ;
or production of any atomic weapons." Since LLW generated by the Federal governmentthatdoesnotfallintotheabovecategoriesisMigiblefor disposalattheStateCjopactLLWdisposal. facilities,thosesameFederally generated LLWs are, eligible for emergency access. To clarify the NRC's intent regarding the scope of wastes which will qualifgfog gegency access, NRC has added =an '2e 1 t t Seeg2.1 " Purpose and Scope / N.b ! NON tM [rb Yf ther elaboration on this subiect, see the response to Comments 5.6 p s 2 ,
~
/ Yo & M 's ); b f .1 $.p M h%t b AAf l
/ yO kZah 3 G)(c) y;tlo Ocf.
- 1 Comment 2.2
- 2. No Greater-than-Class-C waste shall be forced upon these commercial dumps since this is not part of their design criteria.
RESFONSE: NRC developed the proposed rule assuming that emergency access can only be granted to those LLW's for which the States have routine LLW disposal responsibility under the Act. Section 3(a)(1)(A) of the Act makes the States responsible for providing disposal only for those LLW's in classes A, B, and C.
-4 l Thus, greater-than-Class-C wastes are not considered by NRC to be eligible for emergency access disposal. To help clarify this point, NRC has added an explanation of the scope of the LLW eligible for emergency access,
- -*he to Section 62.1 of the rule, amL.ni, thM6umilongy/
(See also discussion in the response to Comeng SJ,)
fJisiiWiMe.
i i
Comment 2.3 !
- 3. If States choose to " store" rather than to affect to " dispose" of waste. l the NRC shall not force waste to go to those sites. l 1
1 RESPONSE: Section 6 of the Act sets out NRC's mandate for emergency access decisions, and provides only that "the Nuclear Regulatory Comission may grar.t emergency access to any regional disposal facility or non-Federal disposal facility..." (emphasis added) g b ency access igw I can only be granted to these facilities g M pr r't pemanent isolation' of low-level radioactive waste. Facilities developed by States to gfto.ne LLW would not, by definition, qualify and would automatically be precluded f fromconsiderationbyNRCassitestofeceiveemergencyaccesswastes.
(See also the responses to Comments 3.3, and10.6.)
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5' B.3' Comment Letter #3 -- Shirley & Lloyd Gilbert, Citizens; Fresno, California Comment 3.1
- 1. Since state and compact dumps are being developed for comercial waste, this is the only type of waste that should be eligible for Emergency Access. The rule should clearly prohibit federal waste, example - waste -
from the Departments of Energy or Defense.
./ ./
RESPONSE: See responses to Coments 2.1 and 5.6.
Comment 3.2
- 2. Since state and compact ' low-level' dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit
~
NRC from forcing Greater-than-Class-C waste on any state or compact dump. The rule should make clear that if state or compact dumps have other restrictions such as prohibitions on wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those j criteria.
> / 1 RESPONSE: See responses to Comments 2.2 and 5.6. J Comment 3.3 I
- 3. If states choose to store, rather than pretend to ' dispose' of waste.
NRC should never force waste to go to those sites.
1 RESP 0NSE: legally desi ate s discus 7s d under commed 2.3, NRC cann anything ut a facip2ity designe or permanant i lation of LLW o access under is rule, and rsuant to recejiewastegrzhtedemerge p
Section 6 offhe Act. (S also the resp ses to 8.4 and 0.5).
./
[ w inyews h Ws 2.3, 9.5, + mf)
6 ,
i B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate
)
Low Level Radioactive Waste Commission b
h Comment 4.1 Fage 47580 of the Federal Register Notice states that the Nuclear Regulatory Commission's (NRC) approach in developing the rule was intended to, j "1. Assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation." However, the proposed rule omits any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal 4 access. This Section provides that the regional compact or state receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact or f o
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 e:aergency access."
l I While the NRC may not wish to be involved in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications !
I are considered. A fomal reciprocal access acknowledgement and should be -
extracted from the compact region or state in C -h the emergency access waste was generated before any determination for granting emergency access is made. This acknowledgement should be required as part of the contents of a h request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledge ' 7 ment could then be included as part of the Section 62.22 notification the cgmpact commission.. "
' . M % Chv4%De Gend W
- if appropriate,h providedQC,,
to the p receiving state
. pad of & and, - Q' & f>L ference to reciprocal RESP 0NSE:ANRC made a deci ion hot to include any accessintgproposedrule. Staff believe/ that assuring reciprocal j access b beyond the scope of NRC's mandate to grant requests for,
/ access in order to protect the public health and safe,tyf NRC >l k emer L
believep that arranging for reciprocal access in response to grants of I
emergency access is tgresponsibility of the States and Compacts involved The NR statl,believef an enforcement role regarding reciprocal access i m > -m V
ee1 :
q l
7 is inappropriate for the Agency. 1roweverr4rumeie ~h-2:r.t and-eeers,
- M, L'1C recvgnizes3EETa mHment4o-reciprocabaccess,4+,.aa
-iTLitgra3gart--ephe-emergency = access preces 5,=and as audi, svuidte-a,,ddren6L,Lef_,s.o Tne following cbangeMavein: ... Je to W N 1 j rule.-idsporhA:o this nt:
A new (n) ha G dded to 62.12 A4 rus1'pckn leds ent of redprocal,acce the State nd'h appr pr eC act Commissjonpr;ising' reccess for a equal vc ume LLW rocal,a requir gemergeCya cess, a
l havirjgsimi) characteris ics to that s and ndic ting an approximat date wh n it woul be a a'i ble a i
I
- A new entence(ugderfned)hasbeenjadde to 62 (a)- .(not I 180 days)'necessary to leviate ei ediate a d j to ekce !
seioustreatto/th public heal and safet r 'he com on 4
l fense an ecurity. It should als include, a fomal p abise f reciproc / access fo , an endal voluhe ofdLW havinh!i$ilar characterist'icb that kequi[ing emergeYy accesh from(the I f State and[or appropMCom[act Commiss'ionMsting e ency access / For the Governor of d...."
C& J f ' /J l ,
(See also ret;?a 9 4.2, 4.3, 4.4, 4.5, 5.4, 17.14)
Comment 4.2 Before granting emergency access, the NRC should determine whether or not there would be any limitations (e.g., timing, license restrictions, etc.) on the ability of the facility that serves the compact region or state in which the emergency access waste was generated to accept reciprocal access waste with similar characteristics (i.e., source, physical, and radiological).
This specific determination should be added to the Section 62.25 criteria.
RESP 0NSE: in-row"C: t; Cou.ne,n 45 cod ethe35'hr E- xtt, CC hes dec L N M h mal Pr'seh.-ceci; r=& =^*ss4Ac' -h -
s e C=r, As stated in the response to reae-tEformyencyJLcseer.
Comment 4.1, NRC will not be involved in brokering reciprocal access arrangements, as would be required if NRC were to carry out the
8 )
j determination requested by this comment. S oc there are,np limita io estabMshe ithfr in,A e Act ortheru) ay to whenfe procalfees ~
enn nati s .
mp'st b,e p,rovided.,and sinpe t would,be un ikely hot q
madebyNRCa)<the me em gency/ccess s gran ed w 1byappica)e / !
hetirae'recipocbacess ay be us,d, chang wa Anade o he at 1 rule in re nse t is commen . See Comm n 1) N Comment 4.3 Before designating a disposal facility,' the NRC also should determine if the regional compact or state that would receive the emergency access waste has an equal volume of reciprocal access waste with similar characteristics.
i This specific determination should be added to the Section 62.26(c) criteria.
d /
l RESPONSE: (See response to Comments 4.1 and 4.2)
Comment 4.4 Finally, the NRC should be aware of any potential liability obstacles before making final decisions. It is possible that differing liability requirements among compacts or states could affect receipt of emergency access or reciprocal access waste.
- RESPONSE:-(h be g uCded E^u;
^
._.2) '
ged Comment 4.5 We believe that the reciprocal access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facility. This is of particular concern because the receiving compact region or state has virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of Section 6, and should be recognized as such in the proposed rule.
.I /
RESPONSE: (See responses to Comments 4.1 and 4.2) ,
\
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p Section 6(h) of the Act places certain limitations on the designation of aComnission In addition, the facility to receive emergency access weste.
has specified l
other designation criteria in proposed 10 CFR 60.26. including "any other considerations deemed appropriate by the Commission." The Commission believes that these cover the primary considerations of contetn, and therefore. has not specified " potential liability obstacles" in the rule as a factor in makina emeroency obstacle access that might dec affectsions. However, any potential liability the Commission's emergency access decision-making on a particular request could be brought to the Commi ssion 's attention through the public comment e,pecific request. process on a 1 . _ _ _ _ _ _ _
9 l
Comment 4.6 Because the NRC has already indicated, on p. 47583, that it will attempt to l distribute emergency access waste as equitably as possible, a criterion related to past acceptance of such waste should be included ia Section 62.26(c). The criterion would require the Commission to consider, "The ,
volume and characteristics of emergency access waste pr o c t "#
%T7 Ya RESPONSE: In the proposed rule, NRC inte, ed that z p d T Mt;rr.; ef d_trd.ri kti g a.J -pocy mr.;;; - .J a -- be considered in the process Y$
of designating a site. This is evidenced by g in the "Designa- { ; I tion of Site" discussion in the W b ch states that "NRC will consider how much waste has been designated for emergency access disposal ]
to each site to date (both for the year and overall)." NRC did not include a criterion addressing past acceptance of emergency access waste I in the actual regulatory text of the proposed rule. However, NRC agrees i that the addition of such a criterion will be useful in clarif tying the i
) intended site designation process. In the final rule NRC has added the l criterion as suggested in the comment as the new proyjsion identified }
i as62.26(c)(6). The provision identified as 62.26(c)(6) in the proposed rule ha's been renumbered and appears as 62.26(c)(7) in the final rule.
/
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10 -
t B.5 Comment letter #5 -- Terry Lash, State of Illinois ,
Department of Nuclear Safety I 1
l l
Comment 5.1 .
- 1. IDNS agrees with the NRC's determination that establishing criteria and I procedures by rule, in advance, is an appropriate approach. ;
Establishing procedures in advance of a request allows the NRC to {
respond quickly in the event of an imminent threat. Establishing criteria in advance allows potential applicants to pi e accordingly, and l serves notice that the emergency access provisions may not be used to circumvent the express provisions of the intent of the Amenobents Act.
RESPONSE: No response is necessary.9Mr.J.etIe comment es nti lv reiterates the rationale tedbyNRCinthe% rdeve{opii@}
a rule for emergency accessy Comment 5.2 j IDNS agrees with the statement preceding the proposed rule that NRC should !
" ... reinforce the idea that problems with LLW disposal are to be worked out to the extent practical among the states..." The proposed rule does not, however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such agreegentswouldbeconsistentwiththeintentofCongressandshouldhelpto h hi any immediate and serious threat to the public health and safety or the common defense. The rule should expressly encourage states and compacts to .
l l
b enter cooperative agreements,
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, RESFONSE: pCwsympathetttc=themotheticr. behind,tMs-come.nt.
p Hokg;he Commission does not believe it would be appropriate for NRC to expressly encourage States and Compacts to enter into cooperative 9 v ogreements for emergency access in the regulatory text of Part 62. .f were t gravi e such e enc uragement 1 e
)"}?lt f all l text f th ule,pR woulkte asgiggtherole ad ocat f 4(d
[Iey'u'lator fo n agree os. ( whileo (onaress clearly *.,m4_gdates/Cobd <
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11 y& kps5 v $* & ak N O O l % a d.s should be able to resolve problems associated with LLW disposal access through cooperative agreements (or " voluntary agreements." as they are referred to in the Act) Congress did not direct NRC to promote such agreements between States or Compsets any more than the other alterna-tives to emergency access. Further, including such express encouragement would be outside the scope of the rule, that is, to establish the process and criteria that NRC will use to make decisions regarding requests for emergency access. The Commis ion belieyes th -
proposed rule which includes a discussion in the M o states (p) responsibility under " Legislative History," and provision 62.13(b)(3) -
" obtaining access to a d*70 sal facility by voluntary agreement" has j - addressed this concern appropriately and adequately. As a result, no changes have been made to the final rule in response to this coment.
Comment 5.3 IDNS strongly agrees with the statement preceding the rule that " Congress believed it was important for the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the ;
pursuit of the development of new LLW disposal capacity." We believe this statement should be made part of the rule. Development of new LLW disposal I
capacity is a controversial and difficult task. The task is even more difficult when citizens in states such as Illinois, where progress is being made, hear and read statements from officials in other states that the framework set out by Congress is flawed and that it may not be necessary for every state to take steps to provide for the disposal of low-leve1 radioactive waste generated within its borders. It is IDNS's experience that Illinois' citizens want assurances that the Illinois disposal facility will accept only low-level radioactive waste generated in the CMC region. It is imperative that emergency access not be perceived the states as an alternative to making ]
diligent effort to fulfill their responsibility.
RESPONSE: l'hile P C i sympM h tic to the met 4vatier b= hind this ewoment, die Cumissim does not oeiieve thet th; ubjcet ststement
,_._wotthi be 6ppropriete ir. Uic wdified ic^t sf the M . Part 62 contains ]
only the criteria and procedures to be used by the Commission in considering l
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4 12 q
requests' for emergency access. The Commission' believes that the procedures.and criteria in the proposed rule establish sufficiently^
stringent requirements for granting emergency. access to clearly convey. j that emergency' access should be viewed by the States solely as a last resort and not as an alternative to the mandated development of new LLW j l
disposal capacity.
1 Comment 5.4 IDNS observes that the proposed rule does not address the provisions of Section 6(f) of the Amendments Act, which pertain to reciprocal. access.. IDNS recommends that the proposed rule address reciprocal access is providing"
... reciprocal access for an equal volume of low-level radioactive waste having similar characteristics to that provided equa ccess." ,
(
j /.
RESPONSE: (See response to Comments 4.1 and 4.2)' / 1 s
Comment 5.5 y, The proposed rule does not address the issue of disposal fees for wastes aj #
disposed of under an emergency access determination. The' obligation of a . ,.
State or Compact to accept wastes grnated emergency access should be con- 6 ditioned upon the applicant's payment of disposal fees and surcharges as {
applicable. ,
RESPONSE: NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as any l additional fees or surcharges specifically applicable to emergency' _
/3 !
access waste under the provisions of the Act. [ new Section g
" Terms and Conditions f Emergency Accessf beenaddedtothelfinal rule that addresses such obligations. (Also see the response.5for Comments y c 1.2 $$db)
Comment 5.6 I
1 l
.13' i
l 662.2 The definition of tow-Level Radioactive Waste is incorrect. For -
purposes of emergency access to non-federal and regional disposal- facilities, the definition should be limited to that subclass of low-level radioactive waste for which states have been given responsibility under 42 USC 2021(c).
l The definition should read:
" Low-Level Radioactive Waste," (LLW) means A) radioactive waste, other than radioactive neste generated by' the federal government, that consists of or contains class A, B, or'C' radioactive waste as defined by section 61.55 of Title 10, Code of Federal Regulations, as in effect on January 26, 1983, and B) radioactive waste described in A) that is q generated by the federal government, unless such waste is 1)' owned or ]
I generated by the Department of Energy, 2) owned or generated by the United States Navy as a result of decommissioning of vessels of the i
United States Navy, 3) owned or generated as a result of any research, development, testing, or production of any atomic weapon,' or 4) identified under the Formerly Utilized Sites Remedial Action Program..
Under the Amendments Act, disposal of waste that is above class C, as defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility i I
of the states. The Nuclear Regulatory Commission may not, through regulation, alter this statutory limit, yet the proposed definition of '
low-level radioactive waste would include " radioactive material that the NRC, consistent with existing law, classifies as low-level radioactive waste." IDNS objects to any attempt, whether deliberate or inadvertent, !
l to place additional burdens on the states in contravention of express statutory limits. The proposed definition is particularly troubling in light of the Amendments Act's express prohibition on requiring any 1
regional facility to accept waste that is above Class C, or FUSRAP l
wastes. IDNS also notes that providing disposal capacity for naturally-occurring and accelerator-produced materials is not the i states' responsibility under the Amendments Act, and that the NRC has no ,
authority under the Atomic Energy Act to include' these materials in any I
definition of low-level radioactive waste.
RESPONSE: The definition that appears in the proposed rule is gs gyt i " % the same definition for LLW which appears in the Act
~
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'itself._A,lthouggtgNRC does not agree that the definition of low-level
- wastesg 60uldbechanged,NRCdoesagreethatthequalificationjonthe ;
scope of the LLW eligible for emergency access provided by the commentor.'s proposed definition is extremely relevant to emergency access decisions and would afford useful clarification if included in the rule. The commentor has quoted Section 3(a)(1) of the Act, the section g that specifies' I the subclass of LLW for which the states were given r 54bNh err t. It is importent to the States that they be assured that they have the responsibility for disposing 'of only the subclass of LLW described in that Section. The States want assurance that NRC will not use the :
emergency access provision to require them to accept wastes for disposal, such as above Class C, and D0D or DOE LLW, which are not their responsibility )
pursuant to Secti of t,he A,ct. NRC ige this assurance in f the final rule by p c g i: MM ' gd" p g+ T ection "62.1 - Furpose and Scope," en n awe,m,udPV';d.Assepti=" P ro-;icA4e j
-Smilmde. (See also Commen 1M50% l a./, M .2.2. M /
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1 Comment 5.7 Section 3(b)(1) of the Amendments Act provides that the federal, government is l
responsible for the disposal of certain types of radioactive waste (i.e., I above Class C) and radioactive waste generated by certain activities of the federalgovernment(e.g.,DOEwaste,defensewaste). Although the three l comercial disposal facilities will continue to operate, and states and compacts are required to establish new disposal capacity, there is no i
provision in the Amendments Act for establishing new disposal facilities for l waste that is a federal responsibility. In the Supplementary Information section of its Federal Register notice, the NRC states that the emergency access provision was not intended to be used to circumvent other provisions oftheAct."(52 Fed. Reg.47579.) The implementing rule should clearly state that no request for emergency access for waste that is a federal responsibility shall ever be considered or granted. As the House Energy Committee pointed out, the NRC may grant access only for waste which is a state responsibility. Language proposed for inclusion in the Amendments Act by the DOE that would allow emergency access for waste generated by the D0D was expressly considered and rejected by Congress. The NRC should abide by l
l l
_m_-________.___ _ _ __ _ _ _ _ _ _ _ _
15 that decision and the express language.of the Amendments Act in promulgating i this rule.
RESPONSE: NRC plans to use the criteria in Sections 3(a)(1)(A) and (B) oftheActtodeterminewhatwastescouldbeeligibleforemergency j access disposal. (Also see responses to Coments 2.1, 2.2, 5.6, and
/ 1 14.2.1 4 l
l Comment 5.8
!62.2 The definition of " Temporary Emergency Access" should be changed as i follows:
"' Temporary Emergency Access' means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an immediate and serious threat to the public health and safety, or the I common defense and security. Such access expires 45 days after i granting."
The NRC's authority to grant emergency access, whether temporary or not, is limited to those situations where such access is "necessary to eliminate an immediate threat" (42 USC 2021, emphasis added). The Amendments Act does not, as the proposed rule suggests, allow the NRC to grant emergency access to " alleviate" such a threat. " Alleviate" is not synonymous with
" eliminate." Only where the applicant can show, and the NRC can find, that the threat would be eliminated by emergency access, can the NRC grant emergency access.
M M if E g for " temporary emergency RESFONSE: g def gr access is the precise language used to describe temporary emergency The definition in the proposed rule accessinSectiong)oftheAct.
is the same except it reads "necessary because of an immediate and serious threat" instead of "necessary to eliminate an immediate and serious threat." The definition has been changed in the. fin.al rule to match the language of the Act and the comment. b d b
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i 16 i Comment 5.9 562.12 Add a new subsection (c) as follows.
"(c) That the material for which emergency access is requested is l
' low-level radioactive waste' as defined in this Part." l and redesignated the proposed subsection (c), and following subsections, as appropriate. This will help assure that no state will be asked to dispose of waste that is not a state responsibility under the Amendments Act.
RESPONSE: A new subsectgsgegadded to 62.12 which reads d
" certification that the r#- 51 gift-c Gin-thi; ergncy c I M. g s g ste
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is ' low-level 1Lsed radioactive waste' n "I s'8t^re fs_ @
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Comment 5.10 662.12(f)(3) should be modified as follows:
"(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety, or the comon defense and security."
i RESPONSE: In the proposed rule NRC used " alleviate" rather than
" eliminate," which is used in the Act. The recommended change has been '
l j l made to the final rule. (See also Co:Incrt 5.8) -
s:
t Comment 5.11 2
$62.12 Addanew$62.12(k)asfollows:
"(k) A description of how granting emergency access would eliminate an immediate and serious threat to the public health and safety or the ,
common defense and security."
Q f Y.
RESFONSE: Adding the recommended provision would be redundant. If@ fW$
k f = is able to demonstrate to NRC that disposal ( h LW disposal p siteisnecessarybecauseofaseriousandimmediatethrgto hg / g/
public health and safety or the comon defense and security #%
eennen- f%rM;v available alternative, admM_tW dhgesal=. tis:EieFenb_; ie t% -gensetersnf.d:hataade., then emergency access is the only 14sy @*- +%t f:p::d.m e[x MM ,
1 17
]
Comment 5.12 662.12 Amend the proposed 962.12(k) as follows and re-designate as 162.12(1):
1 j
"(1) Where the request is made wholly or in part on the basis of a. serious and imediate threat to the common defense and security, certification by the Secretary of Energy and the Secretary of Defense that the waste for which ]
emergency access is granted is not owned or, generated by the Department of j Energy, owned or generated by the United States Navy as a result' of any )
' decommissioning of vessels of the United States Navy, or owned or generated '(
1 1 j by the federal government as a resuit of any research, development, testing,
- or production of any atomic weapon, and that access to disposal is necessary to eliminate the threat to the comon defense and security." -)
.l As explained in Comment #1, under the Amendments Act it is the responsibility of the federal government, not the states, to dispose of radioactive waste l generated by certain federal activities safely. IDNS holds that no state can be forced to accept responsibility for disposing of these wastes'under the emergency access provisions of the Amendments Act or through any action of a f federal regulatory agency. In addition to the generator's certification that the waste for which emergency access is requested meets'the operational ,
definition suggested in Coment #1 above, these additional safeguards are necessary to assure protection of states' rights in the event that the request for access is based on a claim of imediate and serious threat to the common defense and security.
j RESP 0NSE: In Section 62.12(k) of the proposed rule NRC requires that a reouest for emergency access based wholly, or in significant part, on the basis of a threat to the common defense and security, should include "a statement of support from DOE or D00 certifying that access to disposal is necessary to mitigate the threat to the comon defense and 4 security." This coment recommends that DOE and D0D also certify that the wastes for which emergency access is requested are not LLWs for which the Federal Government has disposal responsibility under Section 3(a)(1)(A)and(B)oftheAct. NRC has mcdified "Section 62.1 - Purpose and Scope" of the final rule end:2SeU3fandbcAs5FC l
.28 i
-tcE533RB to clarify that only LLW which is the disposal responsibility of the States is eligible.for emergency access consideration. With
.:S<o j 0.250 change [inthefinalrule,NRCbelievestheobjectiveofthe change recommended in this comment has been accommodated. (Seeclso l responses to comments 2.1, 2.2, and 5.6.)
1 j
Comment 5.13 ,
Modify 662.13(c)(6) as follows:
"(6) Any legal impediments to implementation of each alternative including whether the alternatives will comply with applicable NRC ;
1 requirements, and the requirements of the Compact Commission and the ,
State where access was considered." ,
1 i
It should be made clear from the application for emergency access whether ,
denial of access was based on failure to comply with applicable standards.
l NRC should not grant emergency access when the emergency was brought about by the applicant's own failure to comply with regulatory standards.
Y f"Vd RESPONSE: nxwys - S " staugu =. . ..~ - _ m m m .....i.
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Comment 5.14 Modify $62.13(d) to read:
"The request must include clear and convincing evidence that the applicant has exhausted all other options for managing its wastes and must include the basis for:
(1) Rejecting each alternative; and (2) Concluding that no alternative is available."
Section 62.13 of the proposed rule specifies that a description of alter-natives considered must be included in a request for emergency access, but it does not include the provision in the statement preceding the rule that,
" applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their
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RESPONSE: NRC agrees tbt AM53=ach""% &g.M has4eerr made in the final rule.
harf@ chyu f)
Coment 5.15 .
662.14 Add a new $62.14(c) as follows:
"(c) A description of how granting emergency access as requested would !
eliminate an immediate and serious threat to the public health and safety or the comon defense and security."
RESPONSE: (See response to Coment 5.11.)
Comment 5.16 662.18 Replace "may" with "shall" in this section.
This section provides that the Commission may deny a request if it is based on circumstances that are too remote and speculative to allow an informed decision. IDNS recommends that "may" be changed to "shall.' If the Comis '
sion cannot make an infomed decision on a request, it should not grant the request.
RESPONSE: The Comission does not intend to make uninformed emergency access decisions. The word "may" was used in the proposed rule in preference to "shall" to provide NRC with options in the event that additional information is needed by the Comission to reach its decision. The recomended change was not made to the final rule.
Comment 5.17 562.21(a) should be modified as follows:
"(a) Not later than forty-five (45) days after the receipt of a request l
for a Comission determination under this Part from any generator of l
low-level radioactive waste, or any Governor on behalf of any generator
1 20 j or generators located in his or her state, the Cominion shall make a determination whether--
l (1) The request for emergency access to a regional disposal f acility or a facility within a state that is not a member of a compact, for l specific low-level radioactive waste is based on an imediate and -l l
serious threat to:
(i) the publ'ic health and safety, or (ii) the common defense and security; (2) The threat cannot be mitigated by any alternative consistent with f the public health and safety, including those identified in $62.13, !
l (3) Granting emergency access as requested would eliminate the threat, I and l I
l (4) The material for wh'ch emergency access is requested is low-level radioactive waste as defined in this Part and a State responsibility under Section (3)(a)(1) of the Low-Level Radioactive Waste Folicy j Amendments Act of 1985.
RESFONSE: This comment recomends a few changes to the language and a i few additions to the procedures for making a determination for granting emergency access under Section 62.21. The Act very precisely sets out the process to be followed for making a determination and NRC developed the proposed rule to incorporate that language. NRC decided to incorporate a part of one of the changes recommended in this coment but rejected the others because they departed from the process Congress set out in the Act.
(1) Section 62.21(a) of the proposed rule specifies, *the Comission shall make a determination that..."
1 i
21-
- . The comment recommends ", the Commission shall make a determination whether..." l NeitherofthesepreciselyduplicateQ#he language of the directive in % Section 6(c)(1)d N NRC adopted the precise j wording in the Act. Section 62.21(a) of the final now reads ",
l the Commission shall determine whether..." .)
d Other changes proposed in the Coment include ,
(2) Replacing " Emergency access to a regional disposal facility or a non-Federal disposal facility within a State that is not a member I of a Compact for specific low-level radioactive waste is necessary because of an immediate and serious threat..." with ... "The request for emergency access to a regional disposal facility or a facility within a State that is not a member of a Compact, for specific low-level radioactive waste is based on an imediate and serious threat to:," (differences are underlined for emphasis)
(3) The addition of items 3 and 4, neither of which are part of the Act where the determination for granting emergency access is discussed.
NRCdidnotmakeeitherofthechangesdiscussedunder(2)and(3)above ,
because they do not track the language of the Act and serve to alter the meaning we believe was intended by Congress.
Comment 5.19 662.22 Add a new $62.22(d) as follows:
"(d) Any grant, denial, or refusal to consider a request for emergency access or temporary emergency access under this Part is a final agency action."
If the request is indeed based on an immediate threat, and the decision is challenged, then prompt judicial review is necessary to resolve the issue.
$1W W Q4 A Commission determination under .10 CFR 62.21 would be a final j agency action within the meaning of Section 10 of the Administrative Procedure Act, S U.S.C. 704, and no speciel statement to that effect is necessary.
l 1
I 1
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l
- _ - - - - - - - - - - -_----____---a
i 22 Clarifying that a grant or refusal is a final agency acti on may remove potential obstacles to obtaining prompt judicial review.
9 RESFONSE:
C_omment 5.20 '
662.25(e)(1) under the circumstances," in this subsrction. , reasonable Repla !
I Subsection (e)(1) provides that the Comission determination,willconsiderwhethertheapplicant"[h], in making a good faith effort was made to identify and evaluate alternatias d !
mitigate the need for emergency access." ves that would faith snould not be sufficient. IDNS submits that subjective good 3 and diligent. The effort must be objectively reasonable
RESPONSE
h
,A
! convey theIame mea,ning as
- diligent _
es not effort;'N to usp"'diligenkeffort7 because "dilJgent effort" Howe er, the<Act in spdificJegards to requests forwa' exused in 6(ej_of a[ cess opl[ NRC did not want nsions of emergency compromise he legislat [use an meani,pg of the p,hrase by usip9 itininthediscry r le. NRC agre p posed ionary t Commission doe / es/ that " good faith effort 7Amproved, could s not beHeve " reasonable / t the the sense e AIither. circumstance " ca t res 1
- NRC has changed 62.25(e)(1) in the final to read "(1) h as identified and evaluated access " any alternatives that could mitigate the need fo r emergency
'and is consistent with the precise language anguage iR equestor's responsibilities towards identifying s. M alternative the L
1 23 I
Comment 5.21
~ new 662.26(b) should be added as follows:
4 (b) If the Comission designates a regional disposal facility to receive the waste for which emergency access has been granted, the Comission shall request the approval of the Compact Commission for the l designated regioncl facility. The request for approval shall include l
the entire administrative record of the request for emergency access under this Part, including the reasons for the Comission's findings.
No grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Comission.
Section6(g)oftheAmendmentsActprovidesthat:
"any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms '
of its compact."
This requirement of the Amendments Act has not been incorporated in the rule.
While the effect of a refusal by the Compact Commission to allow emergency ,
I access is not clear, the NRC may not, by rule, remove this option from the -
i Compacts. IDNS also notes that this option applies only to regional disposal facilities, and that the Amendments Act makes no similar provision for non-federal, non-regional facilities.
- ' V RESPONSE: This comment correctly states that RC did not reflect the y Section 6(g) provision in the proposed rt M ased on the legislative l
history for both Section 6 of the Act and the Omnibus Low-Level Radioactive '
Waste Interstate Compact Act which was passed with the Act, NRC believes that disapproval is not really an option for the Regional Compact Comission in which the designated emergency access disposal facility would be locat NRCd:winterpr.ete.d-theapp : :1 :pecif4 d =d;c 5'd t; be-M7 # .-somewhatgr; fwom. 5 the r=M e d na did met believe it wa; r;ces;;ry in m b + he Ccrac'>c--B icr,': everuvai vert of th; femal =;rg=:y au ess prece::. position was ex ussion of GNS n Eednder the di Legislatlyt HJ,istory in t,he e proposed rul y While l
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with a veto over the NRC's grant of emergency access. The basic purpose D of the Section 6 emergency access provision is to ensure that sites that would normally be closed under the Act will be available in emergency
?-
situations. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the 3 legislative framework established in the Act. As emphasized in the l
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 I
provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void, o ___ ___ _ m m_ - c - cm.m ammsat
7 7 24 i t9 disapproval may not be an option under the Act, clearly the Act intended y the receiving Compact Commission to be fully infomed regarding the c emergency access decision made by NRC and the Comission believed the U Notification procedures under 62.22 of the proposed rule provided the
,d Compact Commission of the designated disposal facility with infomation ,
consistent with the specifications in the Act. Section 62.22 of the proposed rule provides that NRC will notify the Compact Comission of ,
the State in which the designated disposal facility is located that emergency access is required. It further provides that "the notifications must set forth the reasons that emergency access was granted and specifically ,
describe the low-level radioactive waste as to source, physical and ' l radiological characteristics, and the minimum volume and duration (not ' f, j to exceed 180 days) necessary to alleviate the immediate and serious ,,
threat to the public health and safety or the common defense and security."
-R we-tht the-wJimente*-doess,e14eiiat thisMN.# n I
,s h g ghgnp g* Q responsetogigh3r*dwhimm rule: 4Mw62.22 g NgC
="r tU gGG--te d thgol W4.t-ttds 9.
writien.2e alionstop appropriate-Cempaet;f6ff6isTWC-part of 0*
thenotTficatYon eNtion I.22(b) in1 @ p ed b 5 b bbeette[edIaphiIte.
The ney'62.22(b) reads;/Tfie]S'ecretary of the Commission will submit the not1 1 cation descritied underA2.22(a), and the written determination desc)ribed in,62'.'21(c) j to th'e Compact' Comission forihp' re t e designated disposal facility H located for'suchjapproval as m be
/ /
/
/
/ /
required under the tems of its , w pact. AnysuchrompactCommi[ ton
/ / l shall act to approve emergency access ,later4han t 15 days /after receiving notification."
l In order to accommodate the,,1 dayapprovalperipd,NRC as added,t l following to the end of762.22(b) of the propjo ed rule "... issuance of a determination, indicating it will be effective 15 days af the date the determination'/was issued,"
/
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25 Comment 5.22 662.27 Add a new S62.27, as follows:
"S62.27 Compliance with conditions of emergency access; termination of emergency access.
(a) The operator of a regional disposal facility or a non-federal disposal facility designated by the Commission to provide emergency access may refuse to accept the. wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(b) The Commission shall terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat f to public health and safety or the common defense and securitj.
(c) The Commission may terminate a grant of emergency access if an applicant has made a material false statement in the application for emergency accesi, or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
1 The proposed rule does not address termination of emergency access. Further-more, under the rule as proposed it is not clear that a state or compact ,
could refuse to dispose of waste granted emergency access even if the .
applicant or the wastes did not meet the conditions of disposal set by the ' -
Commission.
~'
f,
- e/ #
/ ,
1 RESPONSE: The Comm ion a rms and conditions should be -
established in thewrule for, grants of e er cgess. J e elh W r m e--
g4mrdWthemmettL,, NRC has added a new "= 6(j;;FT rulewhichincorporates[sYggestedconditionsforterminationas recommended in this comment, .aMg&itE thedern@and Itmditiongh thr4t'Tpie@A$45xpected te eet. % new 52.27 ree g Generpl ny 62.TV[Teyms7and Conditiorg for Emerygency AcAesg'(,
'LLW' anted irg cy purspan'to. is ru sub gehefdac'ces req nts o_LWaNposalunder.--
"Whs @a &' fW"] )
p~m 4 -_ __
26 the Act, aspell as those %visionswhichspecifically adirres 'rgency acce'ssj Once the NRC has granted emergency acce t'he weste of concern reprocessed and disposed M by e generator and the esignated receivingMtei a man thatA s c istent with other LLW disposj[ofunde the t g the . The disposal of ,
' emergency acc[ss waste diffi5d not clude the l emetat[onofany pecific ondition regulation ,
requiremen fees rcharge , or taxes pre ibe y the I disposal facili hich ma peineffecta 6he e of the Commission's drmi tio7tograntem gency/ccess. q Additi generators ith wast approved for 'irgency in
]
c' cess d not have o m M . usual req ir entsohy ung HTTWhe'd spe 'fie n the Act) simply because j theirwastiisemergencyaccesswaste. j
/ / i
( plianckwithconditionsofemergenches); termination of eme'rgency access. / 2
/ The operatorA f a regional di,sp'osal 1
/ facility or a '
!(non)-federaldisposalfacilitydesignatedbytheCommissi
/ toprovideImergencyaccessIyrefusetoacceptthewastes- j for dis /posal if the app)ic/antorthewastedoes_notfeet fiditions set by the' Commission pursuantIthi 4 art.
W/ I (2) The Commi,s ion sketi erminateagyn of emergency access when4mergency p j access is no longer necessary to I eliminat,e an immediate threat.to lic health and safety or the connon def e and securit .
wttL ;
(3 The, ommission may terminate a gra of emergency cce f an applicant asmadeamabrialfalpe' p statement the application fpr emergeycy access or fi the appHgant has failed to comp)y with this part or con (11io set by the Commission pursua [sPart."
27 Comment 5.23 <
Miscellaneous Comments and Questions 662.6 Specific Exemptions The provisions of this section would allow the Comuiission to bypass all of the procedures of the emergency access rule by granting special exemptions.
Why is this section necessary? Under what circumstances would NRC grant special exemptions. What assurances do states and compacts have that this exception will not, in practice, become the rule? This provisions should be
'eleted.
d RESPONSE: Provision 62.6 is not intended to allow NRC to arbitrarily j bypass the procedures that will be established by the emergency access l rule. It is impossible for the Commission to anticipate every situation under which emergency access may be requested or needed. The Commission I believes the procedures and criteria established in the proposed rule would accommodate most circumstances and scenarios. How r, in the event that something unanticipated requires action mission may have i to apply its discretion and grant an exemption. Provision 62.6 is included in the Part 62 only to acknowledge the Commission's overriding mandate to protect the public health and safety and the common defense and security and to provide the flexibility it may require in dealing with emergency access decisions to meet that mandate. Provision 52.6 remains unchanged in the final rule.
Comment 5.24 S62.11 Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Commission's Public Document Room and in the " Local Public Document Room of the facility sub-mitting the request." A request for emergency access could be submitted by any Governor or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public document rooms?
28 RESPONSE: There is no requirement that a given generator or Governor speciff=My maintain a local public document room for documents relating to emergency access requests. Usually there.is a " local public
' document y gg4. 40 room," however distant it may b9 )ngt maintaind documencs of public interest for every NRC or Agreement State licensed facility. Provision 62.11 was included in the proposed rule in order to assure that documentsrelatingto meg en g cess decisions would be made available, as conveniently as possible, to concerned members of the public.
Comment 5.25 662.23 Determination of Granting Temporary Emergency Access This section provides for the granting of temporary emergency access to
...an appropriate non-federal disposal facility or facilities..." The provisions in Section 6(d) of the Amendments Act which pertain to temporary emergency access do not distinguish between non-federal disposal facilities and regional disposal facilities. Does the NRC propose to limit temporary emergency access to non-federal facilities in order to avoid the provisions of Section 6(g) of the Amendments Act, pertaining to approval by a Compact .
Commission?
RESPONSE: The exclusion of " regional disposal facilities" was an oversight on the part of NRC. The final rule has been revised to include regional disposal facilities as recipients of temporary emergency access waste.
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1 B.6 Comment Letter #6 -- Faith Young,_ Tennessee Resident- ._
's 1
I Comment 6.1 Only commercial wastes should be eligible for emergency access since the dumps lare developed for that purpose.
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RESPONSE: See responses to Comments 2.1, 2.2 and 5.6.
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Comment 6.2 ;
NRC must respect state or compact dump restrictions (including no greater-
_ than-class-C waste).
s RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 6.3 Please register these as firm requests in your comment. considerations and~
inform me of the outcome.
RESPONSE: Noted. No comment necessary. ,
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30 B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident Comment 7.1 The rule has a basic flaw: The Federal Government and the NRC is regulating a State function or at least a Compact function. This is an obvious infringement of State's rights and an infringement which has both financial and health impacts. The compacts are state engineered agreements. The LL radwaste dump is a State or compact administrated facility. The Federal government and the NRC has less than any right to regulate when a site will be opened up to out of compact wastes.
RESPONSE: When Congress passed the original law called the Low Level Radioactive Waste oli providing its ownlevel 1 5radioactive g t of 1982,wasteit (LLW) made'each f :;:::' ' m state responsib generated within its borders. State responsibility for LLW disposal was j reconfirmed in 1985 when Congress passed the Low-Level Radioactive Waste !
Act Amendments (The Act). In the Act, Congress also conferred certain l regulatory or administrative responsibilities to both the Nuclear l Regulatory Commission (NRC) and the Department of Energy (DOE). One of-l the responsibilities conferred to NRC was to grant requests for !
emergency access under the provisions of Section 6 of the Act. As stated in the preamble for the proposed rule, Congress believed if the '
states / compacts with LLW disposal sites denied other states / compacts !
access to their facilities, the public health and safety could be I seriouslyjeopardized. NRC was given the authority to emerPhir -h D to assure that the public health and safety would be protected. NRC doe > not intend to use grants of emergency access to interfere with the States' operation of their LLW facilities except as is necessary pursuant to its responsibilities under the Act to protect public health and safety. (See also esponse to Comment 7.5.dM8. / 3)
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Comment 7.2 Also the sites have been carefully designed for what the State compact expects. Allowing unplanned wastes in will hurt the financial and planning picture for the particular compact. Implementation of the emergency access
31 provision should not force unplanned quantities or kinds of wastes on the states with operating LLW disposal facilities and should not create financial problems either.
RESPONSE: The Act. sets upper limits on the number of cu.ft. of LLW that are to be accepted by each facility through 1992. The amount of LLW granted emergency access is to fall within those limits. In addition, as discussed in more detail in Comment 1.2,. waste granted emergency access will have to meet all the requirements and conditions for routine LLW disposal established by the' facility designated, including the payment of appropriate fees, taxes, surcharges, etc. ,
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Comment 7.3 States are also very worried about having to take D0D and DOE wastes.
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RESPONSE: See responses to Comments 2.1 and 5.6.
1 Comment 7.4 1
Also many compacts are not planning on large amounts of Class'C wastes.
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RESPONSE: See responses to Comments 2.2 and 5.6. ,
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Comment 7.5 l All the accve and more make this rule very premature and ill-conceived. I Please retract this rule for good and abundant cause. Let the non-Federal and the Regional authorities regulate their own access. This is an area which the Federal authority and.the NRC should not get into.
RESPONSE: NRC did not propose the emergency access. rule without due cause. As is explained in the N M sed rule, NRC is required by law (Section 6 of the Act) to make emergency access determinations.(d<_in; *J
?f
32
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In that same law Congress specified the conditions that must be met by persons requesting emergency access', the factors NRC is to consider in making its determinations and ' establish the tertns of gra ts of emergency access. The proposed 10 CFR Part 62 serves to c i ,,, e requirements in the law and NRC has tried to assure that the rule assumes no responsibilities for the NRC which were not mandated. (See also response to Comment-7.1dl+dT.3)
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a
)
33 B.8 Comment Letter #8 -- William Gold, Lorraine Gold (citizens, New Jersey)
Comment 8.1 It has come to our attention that the NRC is authorized by the NRC to super-sede state and compact rights in situations where the NRC deems the
" disposal" of waste from outside the region or state to be an emergency, i
It is of primary importance to the whole concept of compact and state dump siting that this emergency authority be used only as a last resort, when clear danger to the public is evident.
RESPONSE: The Commission a stated he discussion under Legislative History in the ? M '+ of th proposed rule.
l Comment 8.2 Further, only commercial waste and not waste from the Departments of Energy or Defense should be eligible for Emergency Access, since these sites are being developed for commercial waste only.
7 TH 7 RESPONSE: See responses to Comments 2.1 and 5.6.
1 Comment 8.3 l Regulations should explicitly prohibit the NRC from mandating greater that i
Class C waste to be sent to any state or compact dump. I 1
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, RESPONSE: See responses to Comments 2,1 and 5.6.
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Comment 8.4 All criteria and restrictions on types of nuclear waste acceptable at that state or compact's dump should supersede any NRC order.
l RESPONSE: Criteria and restrictions at disposal facilities are to be considered and accommodated in NRC's decision to designate a site and in I
-34 any disposal of emergency access waste. (See response to Comments 1.2, 5.5)
Comment 8.5 Some states may choose to store nuclear waste rather than " dispose"'of it, since the technology to dispose of nuclear wastes.is:still experimental. The rules should state that..the NRC cannot. force out-of-region waste to go to l- those sites. -
RESPONSE: NRC cannot force a state to dispose of emergency. access LLW V
at a facility designed for storage. (See the response to Comments 2.3, 3.3,and10.f)
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B.9 Comment Letter #9 -- Jon R. Montan (St. Lawrence County Environmental Management Council)
Comment 9.1 )
The recipient facility should be allowed to collect fees at levels sufficient to pay full expenses associated with the long-term operation and maintenance q costs of the' facility for any wastes that are received under direction by the Nuclear Regulatory Commission.
1 i
The rate structure for LLW disposal charges, surcharges,'and
RESPONSE
fees is provided-by the Act. .
I Comment 9.2 The references in Section 62.25(d)(1) and (1) to activities generating wastes !
being "necessary for the protection of the common defense and security" are cryptic. What are examples of such activities by the Department of Energy and Department of Defense and what are the types of waste which could be invol ed?
RESPONSE: Several staff at DOE and D0D identified some examples of activities which generate LLU that c be idered necessary for the protection of the g= b ::. . 0 example is found at the Navy shipyards. There is a small quantity of unclassified LLW generated i during maintenance as a part of the Nuclear Propulsion program, which would normally be disposed of at commerical LLW disposal facilities.
The shipyards maintain the Navy's fleet of submarines and the activities would have to cease if access to disposal were not available. The shipyards can only store small quantities so they rely on commerical LLW disposal facilities. Armed forces medical facilities also produce LLW as test sources and from calibration activities.
g mment 9.3 The Council members also wanted to express their concern that the states in which recipient faiclities are located which could ultimately receive
_ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ l
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B.9 Comment Letter #9 -- Jon R. Montan (St. Lawrence. County Environmental Management Council) .
Comment 9.1 The recipient facility should be allowed to collect fees at levels sufficient to pay full expenses associated with the long-term operation and maintenance costs of the facility for any wastes that are received under direction b the Nuclear Regulatory Commission. /_4k [h
RESPONSE
h alt M f hf0'"A&h W WYh?
NRC.tefievesthisItaementexpressestheitentofCongr s W-
/ /
regarding disposa/l fees an/d has ppliedthisjiterpre tion in dev/'l e -
in 10 CFR Pa 62. clarifythefinanci1respons'ilitiesIft rso,ngranedemergencyaccey,NRChas dded a new '62.27- Terms and oriditions of Emergency Acces$" to th final rule. ee lso Respo ses to Commen [5.5,and8.)
Comment 9.2 The references in Section.62.25(d)(1) and (1) to activities generating wastes being "necessary for the protection of the common defense and security" are cryptic. What are examples of such activities by the Department of Energy and Department of Defense and what are the types of waste which could be involved?
RESPONSE: 'c: i pggith missdan-dre.Actf &~eenr
- 1 ;';.;1cped
{ sr M .l415 % 2% '?* L & =: -
p Comment 9.3 The Council members also wanted to express their concern that the states in which recipient faiclities are located which could ultimately receive emergency low-level wastes do not have any control over whether or not to accept such wastes. The decisions rest entirely with the Nuclear Regulatory i
Commission.
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RESPONSE: NRC does have the authority A W i -th; ;it J L ies/
b.e;;.-~ 'wnt emergency accesybem H; ,;;;;i &:it"4'utt stabitihTng W anism_fnr h much canwPridM- '^ #"
th;.publ4C -
istiVist. As indicated in the discussion: in the : r i proposed rule, Congress expected that responsible action from the generators and the States / Compact.s should result in the resolution of most access problemstvaLk
% u & % atik cut: s: he mergency access process, svat*Et' hape E W " -M=n6tchssre-Mnvohedzish4emetMy-tMt i: -i ly t% tat +M(g5ffsibjl;it#f. (SeealsoresponsestoComments7.I.and 7.5) ~
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37 B.10 Comment Letter #10 -- Anne Rabe, Executive Director NewYork Environmental Institute (Lobby Group)
Comment 10.1 We are writing in regard to 10 CFR 62, 52FR240:47578 on the proposed rule by ,
NRC to force compact and state " low-level" radioactive waste dumps to accept out-of-state and federal nuclear waste in " emergency" situations.
1 e f l RESPONSE: See the responses to Comments 7.1 and 9.3.
1 j
Comment 10.2 New York State law (the Low-Level Radioactive Waste Management Act of 1986) I specifically prohibits federal wastes, such as Department of Energy wastes, )
at any New York State " low-level" radioactive waste facility. There are a number of DOE FUSRAP sites, with long-lieved high-level waste, in New York 1 which currently are being cleaned up or temporarily stored. We are aware that DOE has approached New York requesting access to its " low-level" radio-active waste facility for certain DOE wastes (such as U-238 and U-235 at the j former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ-mental Conservation disapproved this request and the subsequent law upheld ,
the state's policy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wast 3.
RESPONSE: None necessary.
I Comment 10.3 To accept out-of-state wastes goes against the basic premise of the however 1 inadequate Federal Low-Level Radioactive Waste Policy Act which supports compacting and state's rights. The NRC is directly threatening the state's authority to exclude wastes.
RESPONSE
MN As indicated in the.p m . 1 to 4 the proposed r,ul g the aondet te um ul#iT.-i Radimd. 'im Pernoy-4cf stdc.t NRC to
@ O< f M.A.A b J A) /2. C '/-o
l 38 .
l designate LLW disposal facilities to receive' emergency access waste.
(See.responsesto7$1,7IS,and9.3) e j Comment 10.4 For states to accept federal wastes will'in many cases cause the state's 'l management of facilities (in terms of storage / disposal. capacity, etc.) to be radically changed. How will states / compacts be able to adequately plan and manage their facilities with the threat of NRC emergency declarations forcing substantial amounts of waste on them at anytime? I At the very least, the NRC should change the rules to: 1) Require strict adherence to state / compact requirements, including allowing only commercial wastes (not federal) up to Greater than Class C waste.
I J' ,
d RESPONSE: Sea responses to Comments 2.1, 2.2, and 5.6.
Comment 10.5 Other state restrictions on 100 year hazardous life or only Class A, B or C wastes, must be strictly adhered to by NRC.
/ /
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 10.6 Lastly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes.
- u- v-RESPONSE: See responses to Comments 2.3, 3.3, and 8.5.
Comment 10.7 Also, the term " emergency" is no assurance at all - the federal government can think up many reasons to declare an emergency which do not deal with the fact that their own inaction to' adequately store wastes and stop their
_______.__._________-..-______.--_m.u_mu
39 production has caused the " emergency"'in the first place. States c.hould not have to bail out the Federal government.
RESPONSE: NRC does not believe Congress intended the emergency access provision would serve to require States to'" bail out the Federal government." As is explained in responses to Comments 2.1, 5.6, and 14.2, through Section 3(a)(1) of the Act, Congress gave States the i
responsibility for disposal of specific classes and types of LLW. Some l of that waste is generated by the Federal government, but because that fact is all laid out in the Act, the States should be well aware of what
" Federal government" LLW's they will or won't have to take. There are federally operated LLW disposal facilities and in an emergency involving
~
LLW's that are the Federal government's disposal responsibility, NRC anticipates that the Federal facilities would be available to provide necessary disposal for wastes that are not the State's responsibility.
Comment 10.8 In closing, we call on the NRC to withdraw the proposed rule in its entirety and to establish a comprehensive storage and reduction of production program which will ensure that no emergency will exist for federal government wastes.
RESPONSE: Most of the provisions included in the proposed emergency access rule came directly from Congressional mandates in Section 6 of the et, so the requirements for NRC to make emergency access determinations would remain even if NRC were to withdrow the rule. As 1 far as establishing a comprehensive storage and reduction of production prop is concerned, such programs and related decisions are not among
'kC's responsibilities.
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40 B.11 Comment Letter #11 -- David Woodbury, President, American College of Nuclear Physicians Comment 11.1 We are writing on behalf of the American College of Nuclear Physicians and E
theSocietyofNuclearMedicineregardingtheNRC'sproposedruletoestab-lish procedures and criteria for granting emergency access to non-Federal and regional low-level waste disposal facilities. The Society represents over 11,000 physicians, physicists, radiochemist, radiopharmacists and technol-ogists dedicated to the overall advancement of Nuclear Medicine and has major l interests in the scientific, educational and research activities affecting the field. The College is a professional organization representing over l 1,200 physicians whose primary activity is the practice of Nuclear Medicine. l Many of our members have had significant involvement in the formation of I compacts and siting of disposal areas following the passage of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (LLRWPAA).
i During congressional deliberations on the LLRWPAA, the College and Society testified on several occasions in support of the emergency access provisions for generators of biomedical waste to LLW disposal facilities. Because 1
access to disposal facilities is critical for the delivery of health care l services, we strongly supported the enacted emergency access provisions l I
l allowing generators or State Governors to appeal to the NRC when denial of access would create a threat to the public health through the interruption of Nuclear Medicine procedures or radiopharmaceutical production.
The medical applications of radioactive materials are not just a matter of importance to the specialty of Nuclear Medicine, but to the entire medical field as a whole. While an estimated 120 million Nuclear Medicine procedures using radiotracers are performed annually in this country, this represents only one of the important contributions that radioactive materials make to health care. In addition, as much as 30 percent of all biomedical research is dependent on radioactive tracers, and approximately 95% of all the prescription drugs in America are developed with the use of radioactive l
41 tracers. It is clear, then, that radioactive materials permeate every aspect of medical practice.
RESPONSE: No response necessary.
Comment 11.2 Disposal capacity for LLW generated by the manufacturers of radiopharmaceuti-l cals is just as important, if not more, than disposal capacity for direct generators of medical LLW (i.e.,' hospitals, laboratories). We would urge the Commission to consider that on-site storage, while a feasible alternative in some situations, may' create problems for others. For example, today, most' hospital and laboratory waste is sub 4ct to volume reduction and on-site storage and decay, as is evidenced by the fact that in 1986, medical waste accounted for only 1.3% of the total volume of LLRW received at disposal sites (and only .0001% of the total activity). Unfortunately, however, in the case of lost access, the manufacturers of radiopharmaceuticals on which the Nuclear Medicine community depends would not be able to accommodate on-site storage because their higher-activity materials would conceivably exceed.available on-site storage capacity within one to six months.
In addition, we would like to draw your attention to the fact that on-site storage may not be feasible or desirable for larger volume and activity l
generators in academic research institutions and pharmaceutical houses
, because of the possession limits specified in the generators' licenses. For example, if most of the generator's possession limit is consumed by the activities present in the waste stored on-site, then obviously there would be lesr, radioactive materials available for important research or pharmaceutical development. Not only is there a public safety question concerning on-site storage of this waste, but if radiopharmaceutical manufacture was to cease due to failure to find a viable solution to the waste problem, all of the i medical activities using these materials would cease or be significantly curtailed.
RESPONSE: In the legislative history of the Act, Congress acknowledged the special LLW storage / disposal problems of the manufacturers of
42 radiopharmaceuticals. The proposed and expressed concern that essential medical services mignt be curtailed if access-to LLW' disposal were not ;
available. NRC is aware of these Congressional concerns. As indicated in the proposed rule, in order to determine if emergency access should be granted, NRC intends to consider both the threat to the public health and safety if access is denied and also the impact on public health and ;
safety if essential medical services would.have to cease as an, alter-nativetograntingemergencyaccess,y m .%
- e. { ,
Ccmment 11.3 The College and Society raise these fine points on possession. limits and j on-site storage so that the NRC recognizes the delicate balance between the I medical community's ability to provide necessary health care services and the availability of adequate LLRW disposal capacity. I 1
I RESPONSE: Noted.
l Comment 11.4 We agree with the Commission and the Congres that emergency access should not )
i be used as an alternative to diligently pursuing the compacting and' siting -
l processes mandated by the LLRWPAA. We also agree with the NRC that emergency access provisions are necessary as a contingency in the event that access is denied or is unavailable, so that important health care. services and research can continue uninterrupted.
RESPONSE: No response necessary.
l Comment 11.5 In conclusion, the College and Society support the emergency access provisions of the LLRWPAA and the NRC's efforts to establish procedures and criteria for granting such access. We hope the Commission will bear in mind the unique characteristics of LLRW generated by medical institutions and radiopharmaceutical manufacturers and the necessity of access to disposal for
_ - _ _ _ _ _ _ _ - _ _ _ _ ~
43 the provision of vital snedical care services in this country. Please feel free to consult with us if you require further information or assistance.
RESPONSE: Noted.
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B.12 Comment Letter #12 -- Kathy Lyons, Concerned Citizen, New Hampshire !
Comment 12.1 I wish to comment on the Low-Level Radioactive Waste Policy Act in which NRC. '
has the right to force unwanted waste on state dumps.
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RESPONSE: None necessary.
l l Comment 12.2
)
Please, in doing so consider this: Do not give us federal waste (D0D or l
DOE), J RESPONSE See response to Comment 2.1. j Comment 12.3
...and do not give us waste outside of our Class, that's not acting responsibly.
RESPONSE: See response to Comment 2.2.
l Comment 12.4 !
Also, please keep in mind that state dumps couldn't handle waste with long half lives and that some stat.es may not have compatible wastes dump practices.
RESPONSE: NRC cannot force a state LLW disposal facility to accept LLW !
that is incompatible with its license agreement. (See responses to comments 7.1,7.2,7.5,9.3) !
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d 45 B.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology Alert Comment-13d Although the Low-Level Radioactive Waste Policy Amendments Act of 1985 doesn't require NRC to develop a rule, we agree your doing so is an excellent idea.
But we feel the proposed rule could stand a bit of tightening.
RESPONSE: None needed.
Comment 13.2 l
Section 62.6 - We question the need and advisability of making any Specific Exemptions. It seems to us this lends itself to the granting of too much leeway by NRC - and possible abuse.
RESPONSE: (See response to Comment 5.23)
Comment 13.3 .
Section 62.11(b) - The provision that you'll publish notice of requests received in the Federal Register, then allow 10 days for public comment, is ridiculous.
Probablynotonein20,000membersofthegeneralpublicever/seesthe Federal Register. If you want to notify them, you should publish such notice as a news release (not a legal advertisement) in a newspaper of local circu-lation, and allow a comment period of at least 20-30 days.
RESPONSE: NRC recognizes that a 10 day public comment period is
&- "y short. M:=a4%*lhratives wsw-Th - : =t
-pe-M .. nu -i.me ur vi. 'ad-et-44, e..d t,eth e' thoneumarcent ahim te': C-_ -
__! yj The Act does not require NRC to provide a comment]
period on requests for emergency access, 7,___., _____eTheAct 45 )
l
'46 -
$m & ) f'P s"~)
provides NRC only 45 days to few a request and determine if emergency access should be granted. nevertheless, the Commission believes that the public should be notified when emergency access is requested and should have some opportunity for input into NRC's decisionmaking process. The Commission decided that a 10 day public comment period would, to a limited extent, meet those objectives and still hopefully allow NRC to complete its review in the allotted time. The Commission concluded that a longer public comment period would likely preclude a timely response on the part of NRC.
. ty- sleut.dals.e lp M 2&t' Hijh?d%&
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Comment 13.4 Y Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be included in the category of low-level waste?
('
RESPONSE: Section 62.12 sets out the information required byp in order i to decide whether or not emergency access should be granted. The presence of transuranic in the waste would affect the Commission's decision.
Comment 13.5 Section 62.23 - Before granting temporary emergency access, why not allow a '
10 day waiting period, so possible alternatives may be considered?
We feel tl.B provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration.
RESPONSE: The sequence of events for granting temporary emergency access is established in the Act. Section 6(d) of the Act provides that "upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the i common defense and security, the NRC may, at.its discretion, grant temporary emergency access, pending its determination whether the threat could be mitigated by any alternative consistent with the public health
---.______..______________d
47 and safety." The Commission has interpreted this to mean that when NRC concludes there is an urgent need for access to disposal in order to protect the public health and safety or the common defense and security, NRC can grant a request for temporary emergency access for no more than 45 days, while possible alternatives to disposal are evaluated. NRC does not have to grant requests for temporary emergency access, particularly if a request is made because a generator failed to plan for )
obvious or routine disposal needs. NRC will always have the option of i denying emergency access or encouraging a requestor to cease generating such waste. !
Comment 13.6 Section 62.24(b) - Re: extension of emergency access, this says the require-ments of Section 62.21(c) and (d) must be followed. There is no Section 62.21(d).
j RESPONSE: The typographical error noted in this comment has been corrected.
Comment 13.7 Finally, under Specific request for comments, you ask what should NRC do if no site is found to be suitable for emergency access?
We suggest you then require the operator to cover the pile of low-level waste l with lead shielding, topped with enough soild to stop radiation from escaping.
Response: Noted.
l l
l 48' j l
)
B.14 Comment Letter #14 -- Diane D'kgo, Nuclear Information and Resource Service Comment 14.1 Although the intent is that NRC use its Emergency Access authority only as a last resort, the danger is present that states could be required to take waste they choose to exclude. This loophole in the 1985 Low-Level i Radioactive Waste Policy Amendments Act threatens states' authority to 1 exclude waste.
\
We have very serious concerns with the emergency access provisions but under-standing that NRC is not in the pcsition to change the federal law, we submit I the following suggestions to make the regulation as strict as possible 'and to guarantee, to the greatest possible extent, that the provision not be abused.
RESPONSE: None necessary.
1 Comment 14.2 I
- 1. Clarify that Federal waste (at least that for which states and compacts are not currently responsible) is not eligible for emergency access.
1 Since state and compact dumps are being developed for commercial waste (and some Federal waste as defined in the 1985 Low-Level Radioactive Waste Policy l
Act), this is the only type of waste that should be eligible for Emergency Access. The rule should clearly prohibit Federal waste (ex: waste from Departments of Energy or Defense). There are two places in the regulation which indicate that such wastes could be given emergency access. They are in Section 62.2, the definition of " person" who can apply for emergency access and in Section 62.13(a)(5) which gives a condition for " Federal and defense related generator (s) of LLW" to meet in their " request for emergency access."
First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive officer on behalf of "any generator or generators of low-level radioactive waste located in his or her
49
" State..." Such generators could include generators that are not NRC or NRC Agreement State licensed. We would like to see provision made to clearly prohibit DOE and D0D and other federal agencies and contractors from' gaining access to state and compact dumps via e;aergency access.
Second, Section 62.13(a)(5) (which appears misprinted as 82.13 in 52 FR240:
47587 December 15,1987) requires that Federal or defense related generators of LLW must first attempt to gain access to Federal disposal facilities before they are eligible for emergency access to non-federal dumps. If non-federal disposal facilities are going to be required to take Federal waste then of course it makes sense to require those generators to attempt access at Federal dumps first, and on that level this requirement is i essential.
Both the definition of " person" and Section 62.13(a)(5) should clarify that only those Federally generated wastes for which states are already responsible (as defined in the 1985 Low-Level Radioactive Waste Policy 1
Amendments Act Section 3(a)(1)(B)) are eligible for emergency access. This l
excludes Department of Energy waste and U.S. Navy waste from decommissioning
{
l Navy vessels and any nuclear weapons research, development, testing or - i production waste. That waste should be clearly excluded from eligibility for emergency access.
RESPONSE: As discussed in responses 2.1, 2.2 and 5.6, NRC intends only :
to grant emergency access to LLW that would otherwise be eligible for routine disposal at regional or state disposal facilities according to the terms and conditions of the Act. NRC does not intend for emergency access to be used by ineligible parties or for ineligible wastes as a means of acquiring access to LLW disposal. In the proposed rule, NRC was silent on this particular point, assuming that it would be clear in the context of the other provisions of the Act. It is now obvious to the NRC that the intention must be specifically addressed in the final rule to reduce concerns the States or public might have that emergency access will provide a mechanism for o~"-had and unplanned $ wastes ,
to access their sites.
1 46 Ygfa,n .
pyJ W providesNRConly.45daystp/reviewarequestanddeterm I access should be granted. / Nevertheless, the Commission believes that the public should be notified when emergency access is requestN and should have some opportunity for input into NRC's decisionmaking process. The Commission decided that a 10 day public comment period would, to a limited extent, meet those objectives and still hopefully allow NRC to complete its review in the allotted time. The Commission concluded that a longer public comment period would likely preclude a
{
timely response on the itpart at of NRC.
u sf }>t sYkt d. hip 5.24' Jkims a- O4 u Lc
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CM c, & cegdl - A u;4 56;.fo D a/ Yc 2/1 syfb:Alin Comment 13.4 i f "Q jf" Gn% . ft c- n%? w Yr n u m b,.cs. k A'C bdub s JUJ NS Q e >X.t a s Gd en umul ph ids G muy N U l'f'Y 'la g.
Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be a ,
included in the category of low-level waste?
RESPONSE: Section 62.12 sets out the information required by in order i to decide whether or not emergency access should be granted. The presence of transuranic in the waste would affect the Commission's i
decision.
Comment 13.5 Section 62.23 - Before granting temporary emergency access, why not allow a 10 day waiting period, so possible alternatives may be considered?
We feel this provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration.
RESPONSE: The sequence of events for granting temporary emergency accet,s is established in the Act. Section 6(d) of the Act provides that "upon determining that emergency access is necessary because of an immediate and serious threat to the public health and safety or the common defense and security, the NRC may, at its discretion, grant temporary emergency access, pending its determination whether the threat could be mitigated by any alternative consistent with the public health l
-1
.j 47 1
and safety." The Commission has interpreted this to mean that when NRC concludes there is an urgent rieed for access to disposal in order to I
protect the public health and safety or the common defense.and security, NRC can grant a request for temporary emergency access for no more than 45 days, while possible alternatives to disposal are evaluated. NRC .
does not have to. grant requests for temporary emergency access, particularly if a request is made because a generator failed to plan for obvious or routine disposal needs. NRC will always have the option of ,
denying emergency access or encouraging a requestor to cease generating such waste.
1 Comment 13.6 i Section 62.24(b) - Re: extension of emergency access, this says the require-ments of Section 62.21(c) and (d) must be followed. There is no Section ]
I 62.21(d).
RESPONSE: The typographical error noted in this comment has been corrected.
Comment 13.7 l Finally, under Specific request for comments, you ask what should NRC do if l
no site is found to be suitable for emergency access?
i
)
We suggest you then require the operator to cover the pile of low-level waste with lead shielding, topped with enough soild to stop radiation from escaping.
Response: Noted.
-..________.-a_.m_m ...m-_._u _.-__-_ _ w
l 48 l W
B.14CommentLetter#14--DianeD'[go,NuclearInformationandResource I Service Comment 14.1 Although the intent is that NRC use its Emergency Access authority.only as a ,
. last resort, the danger is present that states could be required to take waste they choose to exclude. This loophole in the 1985 Low-Level ,
Radioactive Waste Policy Amendments Act threatens states' authority to exclude waste.
We have very serious concerns with the emergency access provisions but under-
~
standing that NRC is not in the position to change the federal law, we submit the following suggestions to make the regulation as strict as possible and to guarantee, to the greatest possible extent, that the provision not be abused.
RESPONSE: None necessary.
I Comment 14.2
- 1. Clarify that Federal waste (at least that for which states and compacts are not currently responsible) is not eligible for emergency access. .
Since state and com?act dumps are being developed for commercial waste (and some Federal waste as defined in the 1985 Low-Level Radioactive Waste Policy Act), this is the only type of waste that should be eligible for Emergency Access. The rule should clearly prohibit Federal waste (ex: waste from Departments of Energy or Defense). There are two places in the regulation which indicate that such wastes could be given emergency access. They are in Section.62.2, the definition.of " person" who can apply for emergency access and in Section 62.13(a)(5) which gives a condition for " Federal and defense related generator (s) of LLW" to meet in their " request for emergency access."
l First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive ufficer on behalf of "any ,
generator or generators of low-level radioactive waste located in his or her l
49 l
" State..." Such generators could include generators that are not NRC or NRC 1 Agreement State licensed. We would like to see provision made to clearly l
- prohibit DOE and D00 and other federal agencies and contractors from gaining
\' access to state and compact dumps via emergency access, fSecond,Section62.13(a)(5)(whichappearsmisprintedas82.13in52FR240:
47587 December 15,1987) requires that Federal or defense related generators i
of LLW must first attempt to gain access to Federal disposal facilities j before they are eligible for emergency access to non-federal dumps. If non-federal disposal facilities are going to be required to take Federal l waste then of course it makes sense to require those generators to attempt access at Federal dumps first, and on that level this requirement is essential.
Both the definition of " person" and Section 62.13(a)(5) should clarify that only those Federally generated wastes for which states are already responsible (as defined in the 1985 Low-Level Radioactive Waste Policy Amendments Act Section 3(a)(1)(B)) are eligible for emergency access. This excludes Department of Energy waste and U.S. Navy waste from decommissioning Navy vessels and any nuclear weapons research, development, testing or I productionwaste. That waste should be clearly excluded from eligibility for emergency access. ,
RESPONSE: As discussed in responses 2.1, 2.2 and 5.6, NRC intends only l to grant emergency access to LLW that would otherwise be eligible for )
routine disposal at regional or state disposal facilities according to the terms and conditions of the Act. NRC does not intend for emergency access to be used by ineligible parties or for ineligible wastes as a means of acquiring access to LLW disposal. In the proposed rule, NRC was silent on this particular point, assuming that it would be clear in the context of the other provisions of the Act. It is now obvious to the NRC that the intention must be specifically addressed in the final rule to reduce concerns the States or public might have that emergency l access will provide a mechanism for undesired and unplanned for wastes i to access their sites.
\
_ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ I
g
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" "
- t N Y M T F G3iid ot M h i'ir'iC " '" * * ""
g u d W rgr, m iaasia.the firal ui: _ r: M " Person" means any g individual, corporation, partnership, firm, association, trust, State, j public or private institution', group or agency who is an NRC or NRC !
Agreement State liceng g rator og a i g e g adioactivie waste
-whdhd5iiN4 W4htMNspan inWisposaLMtr^.~t; 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 ,M licensed generator or Generators of low-level radioactive waste / locate"d b
.9cm:w &
in his or her " State" Wds M+td ihelt:ta' re;x- "mty .e jrfm '
)
fpfdi4prMl; or their duly authorized representative, legal successor $J /W or agent."fSyti#h 62.13( was also evise in res e this commpn ip e fi it ads ". ., (5) r 1 at uestingdispo _
e'derg) low-1evel ioac 've wat e disposa facil y in t caspofa 1 FderalIdefenerela dgejn ator of L whose wastes ould formably j
be eligible-for Stat or Raninnal llw di nnul Inder the#Act.hil bo' thy
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Comment 14.3 Arguments against leaving the regulations open to Federal waste: (1) It is commonly known that many Department of Energy sites are well below the ;
national environmental standards and attempts to remedy those sites' problems could result in the generation of large volumes, concentrations, and numbers of curies in radioactive waste. We would encourage remedial action and clean up of many of those sites but can foresee the usual dilemma of where to put the waste that is " cleaned up." Unless non-federal facilities are planning for such responsibilities, they should not be saddled with Federal waste, as the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow.
/ / ,
RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
I l
, (- /
51 Comment 14.4 (2) Furthermore, 00D, DOE and other Federal waste is not currently l I
classified as Class A, B, C or Greater-than-Class-C (C+), as is commercial l waste. It will be difficult to determine whether Federal waste meets the~ l license criteria for any non-federal sites that use the A, B, C, C+ method of categorizing " low-level" waste. Even if DOE relcassifies its wastes as A, B, C and C+, the source of such waste is much different than commercial waste and could pose technical problems which states and compacts are not -I l
considering in their dump planning. 1 I
RESPONSE: See responses to Comments 2.1, 5.6, and 14.2.
Comment 14.5 A potential concern here however, is that state and compact dumps that take on the extra burden of accommodating DOE waste (and this could happen because states are dissatisfied with DOE's performance at its sites in that state or !
I compact) will be the only non-Federal LLW disposal facilities eligible to l accept such waste thus would be required to accept such waste every time NRC' i granted emergency access to Federal and defense related generators. We only wish to point out that such a provision could penalize states and compacts 3 for taking on longer-lived and more concentrated wastes. .
RESPONSE: Noted. No comment necessary.
l Comment 14.6 I Although there are serious unresolved problems with this method (10 CFR 61.55) of classifying " low-level" radioactive waste, we understand that many states and compacts will likely follow those regulations.
i RESPONSE: None necessary.
i.
52 Comment 14.7 (3) There could be a conflict of interest if DOE and D0D waste are eligible for Emergency Access when they are providing NRC with the assessment of the impacts on the " common defense and security" of (a) accepting the waste for emergency access, and (b) allowing the continued generation of the waste requiring emergency access.
RESPONSE: NDC h.ewar44hatdhe-y4 upused;fele-cteates4he potent-is1-for
-a-conflict-of i.-Jesst b thre-eittations neie"D0Dv90E-is r;;;ui-red-
-to-certify 1h~at a partiettlevretor-requires ;.a senc,7 ;;; n '-
nah r te aitb a W L=strious a6 T o 6 .-th c c^ - %a I"""c r 6 f: x 1md__ *" r-i ty. t== , *[he h that while NRC will require such certification from DOE or D0D in order to even consider a generator's request for emergency access on the grounds of a threat to the common defense and security, NRC plans to consider the certifications but not to treat them as conclusive. Congress deliberately gave NRC the responsibility for w ug the common defense and security determinations and the Commission intends to exercise this discretion in making its emergency access decisions.
l l
Comment 14.8 -
l
- 2. States' and compacts' right to refuse waste that does not meet the speci-fications they are designed and licensed to accept should be strengthened.
RESPONSE: NRC is not in a position to strengthen the rights of States and compacts to refuse emergency access waste that doesn't meet the specifications of their sites. Both NRC and the States must work within the bounds established in the Act. However, as discussed previously in responses to Comments 7.5, 9.3, and 10.1, NRC believes the mandate from Congress in this area was quite clear. NRC does not believe Congress intended NRC to grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to receive them. So States should not have to be too concerned about the right to refuse wastes granted emergency access by the NRC pursuant to 10 CFR Part 62.
53
'I Comment 14.9 We support the provision in Section 62.26 (as corrected.in 53 FR 15:1926, .
Monday, January 25,1988) requiring the NRC to exclude a disposal facility _ ]
from consideration (from taking Emergency Access waste) if the waste doesn't i meet the license criteria of the facility. The rule should make clear that I l
if state or compact dumps have other restrictions'such as prohibitions on !
wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those' criteria and not grant access to waste that does not j meet those criteria. I J
l RESPONSE: According to the Limitations set _out in Section 6(h) of the ,
Act, regulatory restrictions on disposal at a site must be considered by -]
NRC in making its site designation and as NRC has indicated in responses j to Comments 2.1, 2.2, 5.6 and 14.1, NRC is committed to observing those limitations.
Comment 14.10 l
l 2. A. Since state and compact " low-level" dumps are not required to accept .
Greater-than-Class-C waste, the regulations should explicitly prohibit NRC.
from accepting applications for Greater-than-Class-C waste for emergency access.
The definition of " Low-Level Radioactive Waste" in Section 62.2 should be l changed to exclude the waste (C+ and its equivalent) which is excluded from state responsibility in the 1985 Low-Level Radioactive Waste" definition is left as is for the sake of consistency with the other NRC regulations, then another phrase should be used to replace " Low-Level Radioactive Waste (LLW)" )
throughout 10 CFR 62 so as to make clear that only Classes A, B, and C waste are eligible for any emergency access. (Further, should NRC eventually reclassify LLW (in categories other than A, B, and C).)
- 9. I, RESPONSE: See responses to Comments g,2.2, 5.6 and 14,.2.
t l
54 Comment 14.11
- 3. Incineration should not be required as a o " t of maximum volume reduction or waste treatment prior to NRC granting emergency access.
Compaction and supercompaction may be required and possibly other solidifica-tion treatments but incineration releases radionuclides into the environment, generates radioactive ash that must then be solidified and continues the process of generating more " low-level" radioactive waste. This rule should in no way require radioactive wasteg ihCI"8td'0"
- RESPONSE: The proposed rule does not require'that LLW be incinerated l prior to NRC granting his waste emergency access. Provision (i) of the I
Emergency Access Section of the Act, " Volume Reduction and Surcharges"
- requires that "any low-level radioactive waste delivered for disposal under this Section (emergency access) shall be reduced in volume to the.
i maximum extent practicable." For the proposed rule, the Commission decided it would be worthwhile for NRC to evaluate the extent to which l
volume reduction methods or techniques will be or have been applied to !
to the wastes since the Commission is mandated to evaluate alternatives available to the generator and volume reduction is one of those l alternatives. In the preamble, NRC listed incineration as one of the treatment technologies that the Commission would evaluate to detere,ine ,
if the emergency access waste had been reduced in volume to an extent
- consistent with the directive in the Act. The preamble further explains l that NRC believes the optional level of volume reduction will likely l vary with the waste, the conditions under which it is stored, and whether volume reduction processing creates new wastes requiring treatment or disposal (as would be the case for incineration). NRC anticipates that decisions on adequate volurre reduction will have to be made on a case-by-case basis. The Commission does not expect that one particular approach will be maximally effective in all cases, so the rule ooes not prescribe any particular method as a must to achieve maximal volume reduction. Rather, the Commission will be looking to see that available volume reduction techniques, including incineration, have been thoroughly investigated by the requestor as possible alternatives to requesting emergency access. Incineration may be attractive to one
55' generator as an alternative but may pose serious difficulties for another. Whatever the' decision,. incineration should be! addressed and l the rationale for the decision should be explained in the analysis of alternatives that is to be part of a request for emergency access.
i q
Comment 14.12
- 4. States and Compacts that are required to accept emergency access waste j
'should be permitted to charge fees and surcharges on emergency _ access waste and to enforce regulations and criteria that they determine are necessary for responsible isolation of.the waste from the environment and to hold the .
generators liable. for long-term care costs.
RESPONSE: See the responses to Comments 14.7, 5.6, 8.4, and 9.1.
Comment 14.13 l S. We encourage NRC not to weaken any of the requirements for Emergency l Access applicants. -
RESPONSE: Noted.
l l
i i
m___ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _
j 56 B.15 Comment Letter #15 -- Hannah Katz, Concerned Citizen, N.Y. l Comment 15.1 2
I hear that your Commission may consider to send greater-than-Class-C waste to any state or compact dump. Though it is said, "in emergency only," nobody doubts that such emergencies will happen frequently as long as you produce weapon grade plutonium.
RESPONSE: The emergency access rule applies only to LLW, which for the most part is generated by utilities with nuclear reactors, hospitals, and research facilities. Weapon grade plutonium is not considered to be low-level radioactive waste and would not qualify for emergency access to LLW disposal facilities under the Act. Also, under Sec. 3(a)(B)(iii)
LLW owned or generated as a result of any research development, testing.
or production of any atomic weapon is deemed not to be eligible for disposal at State LLW disposal facilities.
f Comment 15.2 I urge you to reconsider such interference in the rights of states and of -
citizenry.
RESPONSE: The NRC is not trying to interfere with the rights of states,.
by proposing this rule. The NRC was mandated by Congress to make determinations on requests for emergency access to LLW disposal facilities in order to protect the public health and safety. The NRC's emergency access rule will only be implemented when a generator or a jtaterequestsLLWemergencyaccessdisposalassistancefromtheNRC.
Comment 15.3 Clean earth,- clean water, and clean air are essential for life and more important for healthy citizens than weapons whose production contains deadly radioactive waste. Your consideration in favor of human beings will be appreciated. Thank you.
RESPONSE: Noted.
l l
S7 B. 16 Comment Letter #16 -- Donald Hughes, Sr. Manager, Kentucky Radiation Control Office and Commissioner of the Midwest' Compact Comment 16.1 The Kentucky Radiation Control Program would like to make its wishes known, relative to the above referenced proposed rule, by totally supporting the comments provided by Terry R. Lash, Director, Illinois Department of Nuclear Safety, in a letter (attached) submitted to the U.S. Nuclear Regulatory Commission dated February 11, 1988.
~
t^.her than reiterate the various comments contained in the attached letter, .
we feel that Dr. Lash's comments are not only reasonable but fully justified.
Not only does he agree with much of the proposed rule but he points out errors that must be corrected.
RESPONSE: Noted.
Comment 16.2 In addition to managing the Kentucky Radiation Control Program, I also serve as Commissioner on the Central Midwest Compact Commission. As Dr. Lash stated, the state of Illinois is presently engaged in the process of selecting a site for the proposed low-level radioactive waste disposal facility and the Central Midwest Compact Commission, comprised of Illinois and Kentucky, is making every effort to comply with the various milestones under the Amendments Act.
It is essential the proposed rule be drafted correctly because incorporation of inaccuracies and ill-defined statements will dramatically effect how low-level radioactive waste disposal facilities can function.
RESPONSE: None necessary.
l
58 B. 17 Comment Letter #17 -- William Dornsife, Bureau of Radiation Protection, Pennsylvania !
Comment 17.1 This proposed rulemaking has several major flaws that if not corrected could potentially act to undermine the substantial progress that has been made to date on implementing the Low-Level Waste Policy Amendments Act of 1988.
RESPONSE: None Necessary.
i Comment 17.2 First and foremost, this proposed rule appears to violate the entire premise of the Act, that each State is responsible for disposal of its own low-level radioactive waste. The rule should require that the State or Compact where the problem is located must demonstrate that it has exhausted its options for dealing with the problem. This should include the attempt to enter into reciprocal agreements with other States or Compacts, or the State taking title to and storing the waste until access can be provided under the normal terms of the Act.
RESPONSE: The Commission drafted the proposed rule fully intending tha't the States and Compacts whose generators have been denied access to LLW ,
disposal would share in the responsibility for identify roviding alternativestoemergencyaccess.jllnfact,theNRCC -
m '
that several of the alternatives listed in Section 63.13, specifically '
I
"(2) storage of low-level radioactive waste in a licensed storage
"!'i ag w n M.
M c W E R M n'n & W M 'i the proposed rule, it has become evident that the NRC's expectations for the States and Compacts to also exhaust their options for dealing with ,
the problems caused by denial of access were not adequately conveyed.
As a result, the Commission 41Bs6 ti'di2W3889'-Ih37m**-*"*-d3),
hWJLW34+-"tH -
C$nrT8ponu to't;ommeni !L ' ~= d6ip) t C as & Tu l c~: & .2. ala)01
- fuy=w'%
- 9t'd & h fn MA% *#%a & dk LcAdn & obu ceh A%M:
l In the case where emergency access is needed f or a bant:rupt kgenerator, the Governor of the State where the generator is Qlocatedor the trustee in bankruptcy, would have the legal
'euthority to pursue an emergency access request.
4 a
I i
1
& 6 / a)
In ad on, a discussion of t 5tates'/ Compacts' responsibility in thisareahasbeenaddedtothep...L(af[w k%g Comment 17_.3 It appears as if waste which is not a State responsibility under the Act (i.e. , DOE waste) could be included under the emergency access provisions.
We do not believe that this was the intent of Section 6 of the Act. We find it hard to believe that the Federal Government, with all its infinite resources, should not be first and only party responsible for disposal of this waste. {
RESPONSE: The discrete State and Federal responsibilities for LLW disposalhadeenaddressedinthefinalrule. See responses to Comments 2.1, 2.2, 5.6, and 14.2.
Comment 17.4 The most likely scenario that may require emergency access appears to be that of a bankrupt generator where the State or Compact cannot or will not provide for disposal. Under these circumstances, it is not clear who would have the responsibility for the application, liability, volume reduction, and cost l
requirements, g g g g g A p g, g g,p RESPONSE: I p Comment 17.5 In order that the credibility of the process be maintained, this rule must not be viewed as a way of circumventing the responsibilities and arrangements that have been carefully implemented as required under the Act, Most of the 1
Host State implementing laws and/or Compact laws have very specific provisions and restrictions concerning out of Compact access. If at all possible, those provisions should dictate when and under what circumstances The provisions of this rule should only be emergency access should occur.
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Comment 17.5 j In order that the credibility of the process be maintained, this rule must I not be viewed as a way of circumventing the responsibilities and arrangements that have been carefully implemented as required under the Act. Most of the Host State implementing laws and/or Compact laws have very specific provisions and restrictions concerning out of Compact access. If at all possible, those provisions should dictate when and under what circumstances i emergency access should occur. The provisions of this rule should only be l l used as a last resort and the language should be such that this intent is I
clear. py r4
- a e_ut/;
RESPONSE: T*ts is NRC's intentf as is stated in the supplementary information to the proposed rule and elaborated on in responses to Comments 2.1, 2.2 and 5.6. N C U W O N I4 4 0 sy & df m ADW 5%; W, '
W2h k W4UfS'!?' #
Comment 17.6 A ggMrr In addition, we have reviewed the specific issues for which input e (fu a% '
requested and have the following comments:
i
- 1) What scenarios are envisioned where emergency access would be required? l As written, the rule could require acceptance for disposal of federal waste under " temporary emergency access" provisions. l l
If a State or Compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing.
A generator is denied access to a State er Compact disposal facility for whatever reason.
An unusual occurrence such as bankruptcy of a generator causes abandonment of extremely large volumes of waste which exceed State or Compact capacity for safe disposal.
1
60 used as a last resort and the language should be such that this intent is clear.
s ug&nbs .
RESPONSE: This is NRC's intent, as is stated in thei+::-i'.s to the I proposed rule and elaborated on in responses to Comments 2.1, 2.2 and 5.6.
I Comment 17.6 In addition, we have reviewed the specific issues for which input has been l
requested and have the following comments: )
1
- 1) What scenarios are envisioned where emergency access would be required?
I As written, the rule could require acceptance for disposal of federal waste under " temporary emergency access" provisions.
1 If a State or Compact disposal facility were unexpectedly closed and no I reciprocal agreements had been made prior to the closing.
A generator is denied access to a State or Compact disposal facility for whatever reason.
An unusual occurrence such as bankruptcy of a generator causes abandonment of extremely large volumes of waste C ....: exceed State or Compact capacity for safe disposal.
RESPONSE: The scenarios described in this comment have been considered and do not necessitate any changes to the Wmmd rule. \
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Comment 17.7 ,
- 2) What are the potential problems with NRC's approach to determine an l i
immediate and serious threat to the public health and safety?
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Q*None of the sites that could be designated for the receipt of
% emergency access waste under the Act have a security clearance i N to receive wastes that would involve national security
$ information. Therefore, this type of waste would need to go to d a DOE site. and would be outside the emergency eccess program.
b
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The' difference between " emergency. access" and " temporary emergency access" provisions for this determination are not consistent with ]
The Act clearly states that an emergency. )
Section 6(d) of the Act.
access determination must be made before temporary emergency access can be considered. "Upon determining that emergency access is f necessary. . .the commission." This is not consistent with the definitions and suggested implementation of the two terms in the-
)
proposed rule.
RESPONSE
See the response to Comment 13.'5 for clarification on the distinction made in the proposed rule between temporary emergency access and emergency access.
I Comment 17.8 3)
What are the potential problems with the-determination of serious and immediate threat to the common defense and security?
In making this determination, can all or part of the information provided by the generator be kept confidential, or not be released to the receiving fa ility, under the claim of national security?
Rdl7.8 OW#
RESPONSE: }f a Comment 17.9 The Host State or Compact in which the requesting generator resides should be required to exhaust all options and accept responsibility for dealing with the problem before being allowed to make a request.
RESPONSE: See the response to Comment 17.2.
Comment 17.10 The issue of economic feasibility and a person's financial capability should not be a consideration in dealing with emergency access.
62 RESPONE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency access decisions.
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Comment 17.11 If a legitimate emergency access condition is determined, and the Host State or Compact cannot provide for a safe solution to the problem, either by themselves or through reciprocal agreement, then the use of Federal disposal facilities should be the first priority before other non-Federal disposal facilities.
RESPONSE: The statute did not provide for that option. Section 6(a) states that NRC "may grant emergency access to any regional disposal facility or non-Federal disposal facility '--- if necessary to eliminate l an immediate and serious threat to the public health and safety or the 1 common defense and security." While the proposed rule does require that
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any Federal or defense related generators attempt to arrange for i disposal at a Federal LLW disposal facility prior to requesting ;
emergency access to a non-Federal facility, the.Act does not confer to l NRCthehhoritytodesignateFederaldisposalfacilitiestoreceive emergency access waste.
l 1
The purpose of the Act is to make the disposal of LLW a State ,
responsibility and to encourage States to work out disposal problems amongst themselves. Congress believes that if Federal LLW disposal facilities would provide backup disposal in the event that the States do not provide needed capacity, this would serve as a disincentive to the Statesg4s*4 Comment 17.12 Thhre no provisiens for equitable distribution of the waste if non-Federal facilities are needed for disposal. <g&
RESPONSE: Under VII(c) of the, proposed rule, NRC explained that in order to distribute the waste as equitably as possible the designation of a receiving site will be rotated and, for the three currently operating facilities, allocations will be made in proportion to the volume limitations established by the Act, to the extent that these are
l 64
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practical. (Not(to-reviewers $ should roy3 ion s k se intentijds he$ dded t $5h' f> the, dp , !
Comment 17.13 '
As written, the 20% volume criteria could eliminate the smaller non-Federal i facilities from consideration almost immediately. Provisions can be added which would divide up emergency waste if necessary to ensure that all operating facilities receive their fair share. Such provisions could also be consistent with any established reciprocal agreements a receiving facility had in' place at the time.
I RESPONSE: The 20% volume criteria that appears in Section 62.26 of the proposed rule came directly from Section 6(h) of the Act. .Appei-m.iy7 l ncy a a Comment 17.14 There are no provisions for existing State or Compact laws with respect to reciprocal agreements or time requirements for emergency disposal conditions as covered in Section 6(f) of the Act.
j / -
RESPONSE: (See responses to Comments 4.1 and 4.2) /
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l Comment 17.15 Is a determination appealable? k '
( Sktf 3-l9
RESPONSE
y o p p fddetLb g Ghip p g 1
Comment 17.16 4
- 5) What should the NRC do if no site is found to be suitable for waste requiring emergency access.
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-- - The NRC should develop contingency plans BEFORE.an emergency occurs.
Such plans could include.the development of an NRC facility especially for emergency conditions. The NRC could also develop equitable f reciprocal agreements now for the determination of emergency disposal sites in the future. Such agreements.should include Federal disposal facilities. ,
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'I i RESPONSE: Noted. i a
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B.18 Comment Letter #18 -- Clark' Bullard, Chairman, Central Midwest Compact ]
Commission 1
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i Comment 18.1 The Central Midwest Compact Commission fully endorses the comments submitted by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988.
RESPONSE: Noted.
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Comment 18.2 -l The IDNS comments deal with sensitive political issues that must be resolved. j promptly if the Central Midwest Compact is to meet the remaining milestones-under the LLRWPAA of 1985. Moreover, the integrity of the entire Compact system could be undermined by any hints that NRC is less than fully committed to respecting the statutory exclusion of greater-than-Class-C waste.
RESPONSE: See the response to Comment 2.2.
l 1
Cgmment 18.3 ,
We t!rge you to adopt the IDNS comments intact so our ability to meet the i
remaining milestones is not impaired. :
j RESPONSE: Noted. I t
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67 B.19 Comment ~ Letter #19 -- John S. Kemper, Philadelphia Electric' Company Comment 19.1-Notice of a proposed rule on emergency access to non-Federal low-level radwaste. disposal facilities appeared in the Federal Register on December 15',
1987. Philadelphia Electric Company believes that the proposed criteria for allowing emergency access'to disposal sites are well developed and will.be effective in maintaining control of the amount of radioactive waste sent to-such sites.
RESPONSE: Noted.
Comment 19.2 One aspect of this process, however, may prove to be a detriment to its smooth administrate,e '5e 10-day public comment period.
If a situation is truly an emergency, delaying the disposal of waste may result in an increased hazard to public health and safety. Additionally, the current climate of public awareness and tendency towards legal intervention could combine in action aimed at the cessation of the generation of waste (i.e., the shutdown of the generator). Another. method.to keep the public -
informed should be developed: perhaps a periodic publication of all petitions for emergency access, and the results of each.
RESPONSE: The 10-day public comment period provided in the rule should not delay the disposal of wasts pursuant to a request for emergency access because that 10 days is intended to occur.as part of the 45 days l provided for NRC to make its decision. As explained in the response to Comment 13.3, the Commission believes it is important to provide the
, public some opportunity to comment on requests for emergency access. /M l t , it a ds y mer cy a mo alt atives ar avail le,
[ om e wi 1 ot 1 1 r '
re po oa r ic r q st. (See response to Comment 13.3 for elaboration.)
68 l l
i Comment 19.3 We are confident that the proposed criteria are strict enough to protect the public health and safety without delaying the process to consider public f concerns for each occurrence. {
RESPONSE: None necessary.
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69 B.20 Comment Letter #20 -- Jessie DeerInWater, Chairperson, Native Americans for a Clean Environment Comment 20.1 NACE joins with Mr. Marvin Lewis of Philadelphia, PA'in his opposition to Proposed Rule: Criteria and Procedures for Emergency Access to Non-Federal '
and Regional Low-Level Rad Waste Sites. 4 d
RESPONSE: Noted.
l Comment 20.2 TherulewouldallowtheFederalGovernmentandtheidCtoregulateaState function...or at least a Compact function. This is an infringement of State's rights which has both financial and health impacts. j RESPONSE: See the responses to Comments 7.1, 7.5, 9.3, and 10.1.
Comment 20.3 Since State and Compact dumps are being developed for commercial waste, this is the only waste that should be placed into the dumpsites. Federal waste '
i should be disposed of at their own facility, since it would be unknown what might be contained in waste coming from the DOE and the D0D. It is our 1
belief that federal waste is often greater-than-Class-C waste.
RESPONSE: See responses to Comments 2.1, 2.2., 5.6, and 14.2.
i Comment 20.4 We must all act now to protect future generations. i RESPONSE: None needed.
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'70 B.21 Comment Letter #21 -- Greta J. Dieus, Arkansas Dept. of Health Comment 21.1 General Comment The provisions for emergency access outlined in Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act) are intended as a last resort to provide access to a regional or non-Federal low-level radioactive waste (LLRW) facility. The proposed rule appears to be compatible with these provisions in that the criteria set forth are stringent enough to render it improbable that waste generators would qualify for emergency access. We support tte concept of emergency access as presented in l the proposed rule and make special reference to the fact that the process must not be used to circumvent the development of regional Compacts.
RESPONSE: None necessary.
I Comment 21.2 Specific Comments The Act and the proposed rule imply that granting temporary emergency access is a one time action that cannot be extended. If this is correct, the rule should clearly indicate same. If this is incorrect, the rule should define the number of times and/or the length of time extension (s) can be granted.
RESPONSE: Neither the Act nor its legislative history specify whether temporary emergency access can or cannot he extended. However, NRC does not believe Congress anticipated that extensions of temporary emergency access would be needed. After 45 days, the requestor would lose access l to disposal unless he could demonstrate to NRC that the serious and l immediate threat persisted and the threat could not be mitigted by any reasonabic alternative, at which point he would be graated regular emergency access. Thus, in the absence of any specific guidance from Congress, NRC plans to grant emergency access for up to 45 days only, with no extensions. I' ' - - ' - - - ' 'mmediate %hreat n e te-persist af 45 d s be se a lack 1 acces o dis ,pp 1, b the -
al rna- e ot ompl- , the Co Ms on ud v o s 1 .
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Comment 21.3 If the need for emergency access is the' result of a regicnal or non-Federal facility denying access to a generator,.the reason (s) access was denied should be considered by the NRC when making its decision.
RESPONSE: NRC plans to consider the reason access was denied and has required that information to that effect be included as part of'a request for emergency access. Section 62.12(g)(1) of the proposed rule requires a description of "the circumstances which led to the denial of access" and 62.12(i) requires the requestor provide NRC with
" documentation certifying that access has been denied."
Comment 21.4
- 1. What scenarios are envisioned where emergency access would be required?
Response: The regional or non-federal facility utilized by generators is closed by regulating authorities, the facility operator i or extraordinary events.
Access to a facility has been denied for non-technical reasons.
Extraordinary waste streams that do not conform to those acceptable at a regional or non-federal facility.
- 2. What are the potential problems with NRC's approach to determining an immediate and serious threat to the public health and safety?
Response: No comments at this time.
l l 3. What are the potential problems with the arrangement proposed for making l
the determination of serious and immediate threat to the common defense and security?
L.
72 Response: No comments at this time.
- 4. What are the potential difficulties with the proposed approach for designating the receiving site?
Response: No comment at this time.
- 5. What should NRC do if no site is~found to'be suitable for waste requiring emergency access?
Response: - Consider disposal at a federally-operated facility.
- Allow indefinite "in situ" or " intermediate location" storage.
RESPONSE: All have been noted.
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REGULATORY ANALYSIS 10 CFR Part.62 - Criteria and Procedures for Granting Emergency Access to Non-Federal or Regional Low-Level Waste Disposal Facilities
- 1. STATEMENT OF'THE PROBLEM Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, January 15,1986), "the Act", directs the Nuclear Regulatory Commission (NRC) to grant a generator or State " emergency access" to any non-Federal commercial LLW disposal facility if access to those facilities has been denied and that access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and secu-rity. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must be able, with the information provided by the requestor, to make both deter-minations in the affirmative prior to granting emergency access.
The Act further directs NRC to designate an operating LLW disposal facil-ity to receive the waste which is granted emergency access and directs NRC to j notify the appropriate State and Compact officials regarding the designation.
The Act provides NRC with 45 days from the time a request is received to j determine whether emergency access is required and to designate a facility.
Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilitit , NRC staff recommended a rulemaking to establish the procedures and criteria that will be used in making the required emergency access determinations. Since the requisite condition that must be met in order for a requestor to be eligible for emergency access consideration is that they have already been denied access to LLW disposal by the States or Compacts with i ' operating disposal facilities, implicit in any decision to grant emergency ;
access is the fact that such a decision will override the sited States' and/or Compacts' expressed desire not to accept waste from that particular State.or generator. Although Congress provided NRC the statutory responsibility for implementing Section 6 and gave the Commission authority to decide whether 1 Enclosure C
or not access will be provided, emergency access decisions are likely to be controversial and could be challenged. By setting out the procedures and criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to minimize potential delays in the actions- necessary to protect the public health and safety.
- 2. OBJECTIVES The objective of this final rule is to establish criteria and procedures to be used by the Commission to make the determination required by the Act that emergency access to operating non-Federal or regional low-level waste disposal facilities should be granted because denial of access has created a serious and immediate threat to the public health and safety or the common defense and security, that cannot be mitigated by any alternative consistent with pro-tecting the public health and safety.
- 3. ALTERNATIVES 3.1 Using Rulemaking Under this alternative the criteria and procedures to be used by NRC to make emergency access decisions would have the force of law. Using rulemaking l
also provides binding criteria and procedures and therefore would add predict-ability and stability to the regulatory process. In addition, rulemaking allows for input from potentially affected individuals and organizations, j should minimize potential delays in the actions necessary to protect the public l health and safety, and will help to ensure that the Commission will be able to make a decision on emergency access requests in the time required by the Act, l all of which are desirable since emergency access decisions are likely to be highly controversial. l 3.2 Using a Policy Statement The alternative of issuing a Commission Policy Statement to establish the procedures for emergency access decisions was rejected. Under this alterna-tive, the criteria and procedures would not have the force of law. In 1
2 Enclosure C l
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addition, a plicy statement was not considered appropriate to establish the detailed criteria and procedures required to implement NRC's emergency access responsibilities.
- 3. 3 Taking No Action The alternative of taking no action was also rejected. Under this alter-native, both the person requesting an emergency access determination and the j Commission would have to rely on the language in Section 6 of the Act for guidance as to what information was to be used by the Commission to make the determinations. The Commission could not be assured of receiving the relevant information necessary for a determination and that could cause delays in the Commission's mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with the spirit of the Congressional directive, to provide predictability in the regulatory process, and to assist the Commission in making individual determinations.
- 4. CONSEQUENCES 4.1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive waste disposal facilities made pursuant to provisions of the Act should not result in a serious and immediate threat to the public health and safety or the common defense and security. In those cases where emergency access is granted under the rule, the recipients will receive the benefit of continuing the activity responsible for generating the waste at least until the grant
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expires, and society will benefit from continuing access to the goods or services produced by that activity. Since emergency access decisions will be made on an individual generator / licensee basis, and since NRC staff cannot predict the number of requests that might be received, it is not possible to quantify the benefits associated with the rule.
3 Enclosure C
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- 4. 2 COSTS I 4.2.1 Applicants for Emergency Access Applicants requesting emergency access may be generators of LLW, NRC or NRC Agreement States licensees, Governors or other State chief executive officers on behalf of the generators or other " persons" as defined in the proposed rule. NRC staff estimates that regardless which of these persons requests emergency access, approximately two (2) weeks of.the requestor's professional staff time will be required to process the paperwork necessary to complete a request for an NRC determination pursuant to the requirements set out in the Act and which have been codified in the proposed rule. Because the circumstances will be different for each applicant, it is not possible to-
! quantify the time or resources required for each of the applicants to collect the information and perform the analysis on which the request will be based.
This is particularly true when it comes to the possible need for long term data- ;
collection and the in depth analysis and consideration that will be necessary to evaluate alternatives. ~
Other possible costs associated with this final action are driven by the very specific mandates in Section 6 of the Act. If NRC does not grant a request for emergency access, the applicant may have to alter the activities .
generating the waste in question, even to the point of ceasing them for some period of time, or possibly curtailing them altogether. The costs to the requestor could come from expenditures either in time or resources required to alter the activities or processes responsible for generating the wastes, or from loss of income from reduced or curtailed production, j 4.2.2 NRC As provided by Section 6 of the Act, NRC will only have about 30 working days to respond to each request for emergency access (45 calendar days = 6 and ;
1 1/2 weeks = approximately 30 working days). NRC anticipates that approximately '
180 staff days will be required for each request. NRC cannot project the number of requests that might be received, so total costs to the NRC cannot be estimated. However, given the Congressional intent that Section 6 of the Act be applied only in " rare emergencies," it is not expected that the regulation will be applied with any frequency. I i
4 Enclosure C !
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In order to implement this final rule, it,W FT be necessary for NRC staff to develop guidance to assist applicants in preparing their requests, and to assist NRC staff in conducting their reviews. This re esent an additional commitment of NRC resources.
Since Section 6 precludes NRC Agreement States from making emergency access decisions, the final action will not have an impact on Agreement State resources.
4.2.3 Department of Energy (DOE)/ Department of Defense (D0D)
NRC is requiring that requests for emergency access based totally or in significant part on a serious and immediate threat to the common defense and security, include a statement of support from D0D and/or D0E. NRC estimates that approximately five staff weeks would be required for each emergency access request processed by DOE or D0D.
- 5. DECISION RATIONALE NRC decided on the approach in the final rule in light of the Congressional directives in Section 6 of the Act and considering the comparison of alternatives as discussed in the preceding section.
- 6. IMPLEMENTMION The schedule for implementation of the rule is dictated primarily by the schedules and milestones in the Act. The Act sets out three milestone dates requiring the States and Compacts to demonstrate specific progress towards the development of new LLW disposal capacity, or their LLW generators may be denied further access to existing disposal sites.
The first date for potential denial of access was January 1,1987. The States were able to satisfy the requirements for that milestone and none were denied access. January 1, 1989 is the next date when the three operating LLW disposal facilities can refuse to accept waste from a particular State. NRC plans to issue the final rule by November 1988, so it will be in place before that January 1989 potential denial of access date. Once the final rule is l issued, its actual implementation will be triggered by NRC receipt of a request l for emergency access.
5 Enclosure C
In the event that a request for emerg:ncy access is made bafore the final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental Impact Statement need not be prepared in connection with this rulemaking action because promulgation of the final rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. The final rule would establish criteria and proce-dures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert j a serious and immediate threat to the public health and safety or the common defense and security. For the most part, the final rule is an administrative action which serves to codify the criteria and procedures in the Act. The adoption of such implementing procedures and criteria by promulgation of a-final rule does not have an environmental effect.
Making a Commission determination to grant emergency access in accordance with these criteria and procedures should also be without adverse environmental impact. The provisiens in the rule will be activated only at the request of a LLW generator or State government official on behalf of a generator because i seri us impacts to the public health and safety, the common defense and secu-rity, and possibly the environment are anticipated as a result of denial of- j access to a LLW disposal facility. NRC will become involved only when the need for corrective action has been identified. Once NRC receives a request, i the Commission's primary responsibility and concern will be to take the action 1 necessary to assure that the public, the national security and the environment f
are protected. Whether the Commission decides to grant emergency access, or to deny it because alternatives are available, NRC will make the decision only when satisfied that the action to be recommended will minimize the effects of concern and maximize needed prctection.
The Commission designation of the LLW disposal facility to receive the LLW approved for emergency access should not result in adverse impacts to the environment. First, Section 6(h) dictates that the total quantity of emergency l access LLW approved for disposal at any non-Federal or regional LLW disposal facility must fall within the volume caps established by the Act, and for any 6 Enclosure C L
i 12-month period, be less than 20 percent of the total volume of LLW accepted by that facility during the previous calendar year.. Thus, the amount of waste 1 i
provided disposal under the emergency access provision will be much less than the total amount of LLW that will be disposed of in regional or non-Federal !
disposal facilities. In addition, waste granted emergency access will have to be processed, transported and handled in a manner that complies with applicable )
p safety regulations. Second, NRC will be considering the characteristics of the LLW requiring emergency access in designating the receiving facilities'in order to assure that they are compatible and that the impacts from each indi-vidual grant of emergency access are minimized.
- 8. REGULATORY FLEXIBILITY ANALYSIS !
NRC is using this final rule to implement the statutory requirements I for granting emergency access to non-Federal or regional LLW disposal facil-ities under Section 6 of the Act. Based upon the information available and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact upon a substantial number of small entities.
The final rule has the potential to affect any generator of LLW. J 1
However, in order for the requirements of the rule to be imposed on a {
generator, he must request emergency access to a non-Federal or regional LLW disposal facility, having been denied access because the State or Compact j Region in which he is located has failed to comply with the milestones for LLW disposal development in Section 5 of the Act.
Establishing criteria and procedures for requesting and granting emergency J access will have a positive benefit for small and large generators alike. It will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.
The impact of the recordkeeping requirements on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part i of any process to decide a course of action if necessary access to LLW disposal was not going to be available. .
7 Enclosure C r.$
a DRAFT CONGRESSIONAL LETTER l i
Dear Mr. Chairman:
l Enclosed for your information is 'a copy of a notice of final _ rulemaking for ,
10 CFR Part 62 to be published in the Federal Register.
I 1
This rulemaking implements Section 6 of the Low-Level Radioactive Waste Policy i Amendments Act of 1985 (the Act).- Section 6 directs the Nuclear Regulatory Commission (NRC) to grant a generator or State " emergency access"~to any non-Federal commercial LLW disposal facility if access to those facilities has been denied but is necessary in order to eliminate a serious and immediate threat to the public health and safety or the common defense and security. Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is proposing this rulemaking to establish the procedures j and criteria that will be used in making the required emergency access I decisions. l In developing this final rule, NRC has tried to be consistent with both the l
actual text of Section 6 and'the Congressional intent expressed in the legisla- j tive history and to reflect public comments to the extent possible. The W I rule sets strict requirements for granting emergency access, places the l burden of demonstrating that there is a need for emergency access on the party i requesting emergency access, and should serve to encourage potential requestors to seek other means for resolving the problems created by lack of access to LLW disposal facilities.
Sincerely, j ;
L 1 ,
Victor Stello, Jr.
Executive Director for Operations
Enclosure:
As stated 1 Enclosure D i
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