ML20246J746
| ML20246J746 | |
| Person / Time | |
|---|---|
| Issue date: | 08/22/1988 |
| From: | Shelton B NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| To: | Philips J NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-36, NUDOCS 8905170162 | |
| Download: ML20246J746 (3) | |
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- j NUCLEAR REGULATORY COMMISSION WASHING TON, D. C. 20555
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MEMORANDUM FOR: John D, Philips, Acting Chief Regulatory' Publications Branch Division of Freedom of Information and Publications Services /ADM Office of Administration and Resources Management FROM: Brenda Jo. Shelton, Chief Records and Reports Management Branch Division of Information Support Services /IRM.
Office of Administration and Resources Management
SUBJECT:
REQUEST FOR COMMENT / CONCURRENCE ON THE FINAL RULE, 10 CFR 62, CRITERIA AND PROCEDURES FOR EMERGENCY' ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL VASTE DISPOSAL FACILITIES In~ response to your subject memorandum, the Records and Reports Management Branch (RRMB) provides the following:
X The Paperwork Reduction Act statement is correct for the' subject rule.
Add the enclosed paragraph.
The Paperwork Reduction Act statenent should be cher.seo to statement number of the." Revised Paperwork Reduction Act Statements for Specifi M tuations."
l Do not release the Federal Register Notice for publication until further notice.
X The Federal Register Notice can be released for, publication.
X Enclosed is a copy of the RRMB memorandum to the program office addressing our concerns with the subject rule.
A copy of the RRMB memorandum to the program office addressing our concerns with the subject rule will be' forwarded at a later date.
An RRMB memorandum to the program office is not required.
Brenda Jo. Shelton, Chief Records and Reports Management Branch l " Division of Information Support Services /IRM Office of Administration and Resources Management
Enclosure:
As stated cc: J. Mate, RES J. Lambert,RES[;
g51g162 890505 62 5DFR47578 ppgj
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l s Public reporting burden for this collection of information is estimated to average 680 hours0.00787 days <br />0.189 hours <br />0.00112 weeks <br />2.5874e-4 months <br />, per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Records and Reports Management Branch, Division of Infortnation Support Services, Office of Administration and Resources Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555; and to the Office of Information and Regulatory Affairs, Office of Managemcnt and Budget, Washington, DC 20503.
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MEMORANDUM FOR: Victor $tello, Jr.
Executive Director for Operations FROM: Eric S. Beckford, Director Office of Nuclear Regulatory Research l
SUBJECT:
FINAL NEW RULE, 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL l LOW-LEVEL WASTE DISPOSAL FACILITIES" l
Enclosed for your approval is the rulemaking package for the final new Part 62 to Title 10 of the Code of Federal Regulations. The rule will establish crite-ria and procedures to enable NRC to determine whether emergency access should be granted to operating, non-Federal, or regional low-level radioactive waste (LLW) disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act).
In developing this rule, the staff tried to be consistent with both the actual text of Section 6 of the Act and the intent expressed by Congress in the legislative history. The rule sets forth strict requirements for granting emer-gency access, places the burden of demonstrating the need for emergency access on the party requesting emergency access, and should encourage potential requestors to seek other means for resniving the problems created by lack of access to LLW disposal facilities.
Although Section 6 of the Act did not require NRC to develop a rule to carry out its responsibilities, the staff recommended using rulemaking in order to mini-I mize potential delays in initiating the corrective actions that may be necessary to protect the public health and safety. Your office approved the initiation of this rulemaking on August 25, 1986. The proposed rule was issued on December 15, 1987, and the formal public comment period ended on February 12, 1988. Twenty-one commenters responded. Responses were received from the governments of six States, two low-level waste Compact Commissions, ten concerned citizens and members of environmental groups, two industry, and one nuclear information service.
For the most part, the staff has responded to the comments by adding clarifying language and some new text to the final rule. Even with these changes made l in the final rule, the critical components--the procedures and the criteria to be used in making emergency access decisions, remain essentially unchanged from the proposed rule to the final. A discussion of the most significant comments follows.
l Over half of the commenters expressed concern that NRC would use its emergency
! access power to force operating non-Federal or regional LLW disposal facilities ELg % b Y$
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Victor Stello, Jr. 2 )
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l to accept above-Class-C wastes; federally generated wastes, particularly those i from the Department of Defense (D00) and the Department of Energy (DOE); or 1 other LLW for which the states do not have disposal responsibilities under the i Act. A statement indicating that emergercy access wastes would be subject to j any general limitation, for LLW disposal established by the Act, was added to i the " Purpose and Scope" in the final rule and should accommodate these concerns.
A major area of concern for most of the responding States and Compact Commissions relates to reciprocal access. Under Section 6(f), the Regional Compact w 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 emer-gency 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 charac-teristics to that provioed emergency access."
Several of the commenters indicated that the final rule should include provisions by which the NRC would ensure that States / Compacts who are granted emergency access would provide the reciprocal access promised under Section 6(f). The staff does not agree that the legislation indicates NRC should include such requirements in the rule. As staff *-ac: Section 6(f), arranging for reciprocal access is an obligation between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Further, staff believes that any role for NRC regarding reciprocal access is inappropriate bectuse it could compromise our ability to take action necessary to protect the public health and safety. Staff decided not to include reciprocal access in the proposed rule and no change has been made to the final rule.
Another major area of concern for the responding States and Compacts is whether the Compact Commission that is designated to receive emergency access waste can veto or " disapprove" NRC's decision. Several of the States and Compact Commissions believe that language in Section 6(g) of the Act indicates they can disapprove NRC's decision and they wanted the final rule to incorporate a provision acknowledging this veto authority. From the legislative history, NRC staff has concluded that disapproval of emergency access decisions was not an option. This was explained in the proposed rule and further clarified in the final rule.
A number of other commenters were concerned that emergency access wastes would not be subject to the same fees, regulations, conditions, or requirements as is routinely disposed-of LLW. Staff have added clarifying statements to the final rule stressing that, except as otherwise indicated by the Act, the same fees and requirements apply to emergency access wastes as to routine LLW.
Staff believe NRC should have this rule in place by the time a request for eme rgency access, might be received which could be any time after January 1,1989, the next date that access may be denied under the Act. This denial would result from a State's failure to develop a siting plan for its LLW disposal facility.
E Victor Stello, Jr.- 3 i
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Based on. the January 1,1989, milestone we have scheduled issuance of the final rule for the fall of 1988. Immediate Commission attention to this issue is necessary to meet this schedule.- i The offices of.NMSS, ARM, NRR and GPA have~ concurred in the final rule. OGC has reviewed the' final rule and has-stated that it has no legal objections to the rule. !
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Eric S. Beckjord, Director Office crf Nuclear Reguistory Research l
Enclosure:
As stated l
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r Victor Stello, Jr. 3 Based onLthe January 1, 1989, milestone we have scheduled issuance of the final rule for-the fall of 1988. Immediate Commission attention to this issue is
-necessary to meet this schedule..
The offices of NMSS, ARM, NRR and GPA have concurred in the final rule. 0GC i has reviewed the final rule and has stated that it has no legal objections to I the rule.
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J Eric S. Beckjord, Director Office of Nuclear Regulatory Research q l
Enclosure:
As stated l l
OFC: NMSS : ARM :GPA :NRR :0GC NAME:HThompson :WMcDonald :HDenton :TMurley :WParler )
DATE: 9/ /88 :9/ / 88 :9/ /88 :9/ /88 :9/ /88 : :
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'l 0FC: RES:WMB:DE :RES:WMB:DE :RES:WMB:Df. :DE:RES :DE:RES :RES :RES i NAME:JLambert:jk:DGrill :M$ilberberg :RBosnak :GArlotto :TSpeis:ESBeckjord l l DATE: 9/ /88 :9/ / 88 :9/ /88' :9/ /88 :9/ /88 :9/ /88:9/ /88 l OFFICIAL RECORD COPY i 4
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For: The Commissioners From: Victor Stello, Jr.
Executive Director for Operations
Subject:
FINAL RULE--10 CFR PART 62, "CRITEaIA 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 enn-Federal low-level radioactive disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amend-ments Act of 1985.
Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, January 15, 1986), (the Act) provides that NRC can grant emergency access to non-Federal or regional low-level radioactive waste (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 I available alternatives. The enclosed final rule was developed to l l implement NRC's responsibilities pursuant to Section 6. The rule l sets forth strict requirements for granting eme.gency access, places the burden of demonstrating the need for mergency 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, 1 NRC may never receive a request for emergency access. If NRC i does get a request, it will have 45 days to respond. Staff l estimates 180 staff days will be required to process these '
requests.
CONTACT:
Janet Lambert, RES 492-3857
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1 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 i of regional LLW disposal facilities, so that the new facilities i 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 l in the delinquent State or Compact region further access to their j facilities. 1 i
Section 6 of the Act provides that the NRC can determine to 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 {
NRC determines whether the threat can be mitigated by any alter-native 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. j l
The Act provides that NRC can grant emergency access for a period l not to exceed 180 days per request and allows that only one, l 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 i emergency access. The Agreement States are specifically pre-l cluded from making emergency access decisions.
The legislative history for the Act emphasizes that emergency access be used only in very limited and rare circumstances and that it was not intended to be used to circumvent other provi-sions of the Act. Congress expected that responsible action from the generators and the States / Compacts should resolve most pro-blems arising from denial of access decisions, thus precluding the necessity for involving the Federal sector in granting emer-gency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort.
In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act and with its understanding of the intent expressed by Congress regarding decisions made pursuant to Section 6. The staff's objec-tive throughout has been to establish requirements for granting L ______-_-___
l The' Commissioners 3 ;
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1 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 1 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 curry out its 1 responsibilities.under Section 6. However, the NRC staff recom- j mended a rule to establish the criteria and procedures that will '
be used in making the required emergency access determinations to add predictability to the decisionmaking process, and to help /
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 (52 FR 1634), and on December 15, 1987, NRC issued the i proposed rule (52 FR 47578). 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. Responses were received ,
from the governments of six States (Maine, Arkansas, Illinois, New York, Kentucky, and Pennsylvania), two Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten concerned citizens and members of environmental ' groups, two industries, and 1 one nuclear information service. j The major comments will be discussed after a summary of the rule. 1 The rule addresses each of the determinations'that NRC must make and described how they will be made. To determine whether there is a serious and immediate threat to the public health and safety, ]
the Commission will consider whether the circumstances described i lead it to conclude that there is no longer reasonable assurance j that the affected generator or generators can continue to comply with NRC's regulations in 10 CFR Part 20, and as a result, that the public health and safety will be endangered. In making this determination the NRC will consider the significance of the situa-tion described in the context of the requirements issued by NRC in the facility license, the technical specifications, and any 4 applicable regulations and orders of the Commission.
In determining whether there is a serious and immediate threat to the common defense and security, the rule provides that NRC staff will consider whether the activity generating the LLW is neces-sary for the protection of the common defense and security and ;
whether the lack of access to a disposal site would result in a i significant disruption in that activity that would seriously l
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The Commissioners 4 threaten the common defense and security. The final rule also specifies that the NRC will consider the common defense and security recommendations to be made by the Department of Energy (DOE) and/or the Department of Defense (D0D) in a " Statement of support." A Statement of Support from the appropriate agency j 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 then consider whether any alternatives to ;
emergency access are available to the applicant. These include, ,
but are not limited to: (1) storage of LLW at the site of genera- l tion; (2) storage in a licensed storage facility; (3) obtaining (
access to a disposal facility by voluntary agreement; (4) purchas- )
ing disposal capacity; (5) requesting a license modification from 1 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 implementation of an alterna-tive is unreasonable because of adverse effects, because it is technically or economically beyond the capability of the reques- 1 tor, because it would result in the cessation or curtailment of I essential medical services, or cannot be implemented in a timely manner. If any alternative is determined by NRC to be reason-able, then the request for emergency access will be denied.
If NRC determines that emergency access is warranted, NRC will then determine which operating non-Federal LLW disposal facility should receive the LLW. A facility would be excluded from con-sideration if (1) the LL ms not meet the license criteria for the site; (2) the disposcl ility 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 i volume of the waste requiring disposal exceeds 20 percent of the i
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, radio-logical effects, site capability for handling the waste, and any other information the Commission deems necessary.
In making the determination regarding a request for an extension of emergency access (Section 6(e) of the Act), the NRC staff will consider whether the circumstances still warrant emergency access 1
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The Commissioners 5 and whether the person making the request has been diligent during the period of the initial grant to eliminate the need for emer-gency access.
In making a determination that temporary emergency access is necessary (Section 6(d) of the Act), the staff will have to determine whether there is a serious and immediate threat to the public health and safety or the common defense and security as otherwise required for emergency access, but would not have to consider whether mitigating alternatives exist.
Discussion: A number of commentors raised issues that had been considered by staff while developing the proposed rule. For the most part, staff has responded to the comments by adding clarifying language and some new explanatory text to the final rule. The critical components of the proposed rule--the procedures and the criteria to be used in making emergency access decisions as discussed above, are essentially unchanged in the final rule. The most significant comments are discussed below.
In general, commentors 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 because he believed that granting emergency access would infringe on the States right to manage their LLW.
i The Act established the statutory framework for the management of LLW, including the allocation of management responsibility between the federal government and the States. The emergency access rule merely implements part of the existing statutory framework, j so the rule itself does not infringe on the rights of the States.
By far the most common concern expressed by commentors was that NRC's grants of emergency access would force operating non-Federal or regional LLW disposal facilities to accept LLW they l are clearly not responsible for under the Act. Under Subsec-tion 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 I that which is owned or generated by the Department of Energy l
(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." Commentors stated that Federal wastes, particularly those generated by DOE and the Department of Defense (D0D), or wastes that are classified as greater-than-Class-C, should not be allowed to receive emergency access disposal.
In developing the prcposed 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 l l
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The Commissioners 6 made to this effect in the proposed rule. Clarifying language explaining what LLW will be considered eligible for emergency access disposal has been added to the final rule.
Three of the commentors 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 that would require the NRC to seek approval for its decision to grant. emergency access from the Compact Commission of the region in which the designated site is located.
Under Section 6(g) of the Act, ..."any grant of access under this Section shall'be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required'under the terms of its compact."
The interpretation preferred by some of the States or Compacts l is that Congress intended for the Compact Commission of the I designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended the receiving Compact Commission to have the power to veto 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.
The interpretation of Section 6(g) that is most consistent with Congressionalintentbehindemergencyaccessisthat6(g)does :
not provide for State or Compact Commission veto of NRC s deci- !
l sion. The staff thinks that the legislative history for 6(g) is !
l quite clear on this point. The basic purpose of the Section 6 j emergency access provision is to ensure that sites which refused i LLW disposal 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 l contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs i Report on the Act, ratification of a Compact should be conditioned.
on the Compact's acting in accord with the provisions of the Act.
"If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void." [H.R. REP. No. 314, 99th )
Cong., 1st Sess., pt. 1, at 2997 (1985).] This was explained in l the Supplementary Information for the proposed rule and has been reiterated and clarified in 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
l The Commissioners' 7 to any subsequently operated non-Federal disposal facility that.
serves the State or Compact region in which the LLW granted' )
emergency access was generated. Commentors indicated that NRC i should require a formal acknowledgement of reciprocal access before~ making an emergency access determination. The staff does. ;
not agree with this position.
Under. Sectio'n 6(f), the Regional Compact'or' State receiving the ,
emergency access waste is entitled to reciprocal access at any- J subsequent facility that serves the Compact region or State in j which the emergency access waste was_ generated. It further 1 i provides that the Regional Compact or State that receives the ;
emergency access waste shall. designate, for reciprocal access,-
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"an equal volume of low-level radioactive waste having similar characteristics to that.provided emergency access."
i NRC staff considered including reciprocal.' access during the j development of the proposed rule. However, as the staff reads ;
Section 6(f), arranging for reciprocal access is an' obligation -
between States / Compacts unrelated to the Commission's respon- (
sibility to protect the public health and safety.and the common '
defense and security, and thus is outside the scope of NRC's responsibility to implement Section 6. Further, given the ;
agency's mandate to protect the public health and safety on the-common defense and security, the staff thinks-it would be inappro-priate for NRC to assume the role of enforcing reciprocal access arrangements. If the NRC were to require a formal promise of reciprocal access as a necessary condition for.considering a request for emergency access, under certain circumstances, actions necessary to protect the public health and safety could be ' delayed or compromised.
The NRC staff reconsidered its position on reciprocal access in l light of the comments received on the proposed rule, but has ]
retained that position in the final rule. '
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 designated site, 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 l Act. The commentors expressed a desire to have NRC consider ;
l those items in making its decisions on site designation for emer- ]
gency access.
l 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
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access to pay all'.the' normal LLW disposal fees as well as the 1 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 decision on site designation. j For clarification, a'new'section has been added to the final rule i 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 commentors suggested that the final rule should contain. conditions under which emergency access could~be termi- j nated. The staff. agrees and has added a new Subpart D for this j purpose. The new subpart establishes that the NRC may terminate emergency access if the requestor or the type-of waste do'not meet the conditions established by NRC in Part'62, and that the NRC can terminate emergency' access if NRC determines that it is no longer needed.
Several commentors stated that the 10-day public comment period provided in the rule on. requests for amergency 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, the staff recommends publication of the final rule proposed for Commission approval in Enclosure B. There are no major differences between the i proposed and final rules but several clarifying changes are included. The most significant changes follow:
(1) Addition of a clarifying sentence to the " Purpose and Scope" section of the final rule. The sentence indicates that the i emergency access rule applies only to the LLW for which the States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying language to S 62.22 to state that the Commission will make notification of the final determina-tion 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 entitled " Terms and conditions for Emergency Access Disposal."
(4) The addition of clarifying Subpart D, entitled " Compliance with Conditions of Emergency Access; Termination of Emer-gency Access."
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The Commissioners 9 Resource Requirements ,
Consistent with the legislative history for Section 6, NRC staff )
expects that emergency access will be requested only under rare and unusual circumstances through 1993 and beyond. The staff estimates that 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 (Enclosure B) which would establish l criteria and procedures for granting requests for emergency i i access to low-level waste disposal sites. I (2) In order to satisfy requirements of the Regulatory Flexibility Act (5 U.S.C. 605(b)) certify that the final rule will not I 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 heading " Regulatory Flexibility Certification."
(3) Note: ,
- a. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the i 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.
l 3501 et seq.), that the Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid,
- c. That the proposed rule included a preliminary finding l that no significant environmental impacts would result !
from the rulemaking. The environmental assessment 1 l forming the basis for this determination is contained i in Enclosure C, " Regulatory Analysis." i
- d. That compliance with CRGR charter requirements is not applicable to this rulemaking action since the rulemaking applies only to radioactive waste management and is not a generic requirement to be imposed by the NRC on one or more classes of power reactors.
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,i The Commissioners -10:
- e. .The provisions of_10 CFR Part 50.109 on Backfitting do 4 not apply to.this rulemaking because this regulation !
.is not applicable to production and utilization facilities licensed under 10 CFR Part 50.
- f. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy.and the.~ Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and 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.
- g. That a public' announcement, Enclosure E, will be issued by the Office of Public Affairs when the final rule-making is. published in the Federal Register.
- h. That a regulatory analysis, Enclosure-C, has been pre- ,
pared for this rulemaking. '
- i. OGC has reviewed the final rulemaking package and has !
no. legal objections. I
- j. That this rule has been coordinated with NMSS, NRR, 1 GPA, and ARM. j Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time, and NRC should have the rule in place in.the event a request for emergency access is 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 1
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WTLc'ohihirs~ stoners ~ lb
- e. The provisions of 10 CFR Part 5D.109 on Backfitting do not apply to this rulemaking because this regulation
- is not applicable to production and utilization facilities licensed under 10 CFR Part 50.
- f. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the ;
Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and Power of the House Energy and ,
Commerce Committee, and the Subcommittee on Environ- I ment, Energy, and Natural Resources of the House Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure D.
- g. That a public announcement, Enclosure E, will be issued by the Office of Public Affairs when the final rule- J making is published in the Federal Register. '
- h. That a regulatory analysis, Enclosure C, has been pre-pared for this rulemaking.
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- i. 0GC has reviewed the' final rulemaking package and has ;
no legal objections. )
l Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time, and NRC should have the rule in place in the event a request for emergency access is 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.
1 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 1
i 0FC: NMSS : ARM :GPA :NRR :0GC :EDO NAME:HThompson :WMcDonald :HDenton :TMurley :WParler :VStello DATE:9/ /88 :9/ / 88 :9/ /88 :9/ /88 :9/ /88 :9/ /88 0FC: RES/WMB/DE :RES/WMB/DE :RES/WMB/DE :DE/RES :DE/RES :RES :RES NAME: *JLambert :*DGrill :*MSilberberg:*RBosnak:*GArlotto:TSpeis :ESBeckjord DATE:9/ /88 :9/ / 88 :9/ /88 :9/ /88 :9/ /88 :9/ /88:9/ /88 0FFICl4L RECORD COPY QSee previous concurrence f
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[7590-01]
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NUCLEAR REGULATORY' COMMISSION
' 10 CFR PART 62 i
Criteria and Procedures 1for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities 1 i
AGENCY: Nuclear Regulatory Commission.
ACTION: final rule. .
I
SUMMARY
- .The Nuclear Regulatory Commission (NRC) is isse,ng this rule to establish criteria and procedures for fulfilling its responsibilities associated with acting on requests by low-level radioactive waste l generators, or State officials on behalf of those generators, for emer-gency 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 1
to operating low-level radioactive waste disposal facilities and the lack of this access results in a serious and immediate threat to the public health and safety or the common defense and security.
I EFFECTIVE DATE: (30 days after publication)
ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be examined at the NRC Public Document Room, 2120 L Street NW., Washington, DC 20555.
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FOR FURTHER 2NFORMATION. CONTACT: . Janet Lambert, Division of Engineering, Office of Research, 'U.S. Nuclear ' Regulatory Commission, Washington, DC 20555,. telephone (301) 492-3857..
SUPPLEMENTARY'INFORMATION:
- 1. Introduction'and Background II. Legislative Requirements III. Leg i slative ' Hi story 1
IV. NRC Approach V. Assumptions VI . - The Final Rule-
'VII. Rationale for Criteria VIII. Terms and Conditions for Emergency Access Disposal IX. Analysis of,Public Comments '
X. Finding of No Significant Environmental Impact: Availability.
XI. Paperwork Reduction Act Statement XII. Regulatory Analysis XIII. Regulatory Flexibility Certification ;
XIV. Backfit Statement XV. List of Subjects ,
I. Introduction and Background On December 15, 1987, NRC published in the Federal Register (52 FR 47587) a proposed new Part 62 to 10 CFR in order to implement its emergency access responsibilities under Section 6 of the Low-Level -
2
~ Radioactive Waste. Policy Amendments Act of 1995 (PL 99-240, January 15,-
1986), "the Act." The proposed Part 62 set.forth the criteria and
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procedures that the Commission intended to use'to determine if emergency' access'to-non-Federal and' regional low-level waste (LLW) disposal 'i l '
facilities should be granted. The public comment period for the proposed rule expired on February 12, 1988. TheNRCreceivedtwenty-one(21) .
t comment letters from ten concerned citizens and environmental groups, l
i six State governments, two LLW compact Commissions, two industries and-one nuclear information service.
The Act directs the States to develop their own low-level radioactive waste (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.
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 meet them, which is intended to ensure steady progress toward new facility development.
The major incentive offered by the Act is that the States and regional Compacts that meet the milestones will be allowed to continue to use the existing disposal facilities until their own facilities are available, which is to be no later than January 1, 1993. If unsited States or Compact regions fail.to meet key milestones in the Act, the .
States or Ccmpact Commissions with operating non-Federal or regional LLW !
disposal facilities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities.
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LSection 6 of the Act provides'that the Nuclear l Regulatory Commission:
-(NRC) can determiae to 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. al so. requires-that NRC determine' whether .the threat can be mitigated-by any: alternative consistent with'the public health and safety, including ceasing'the .j NRC must be able,' with the informa-
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activities that generate the waste,
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i l tion provided by the' requestor, to make both' determinations prior to l granting emergency access. The~ purpose of this' regulation:is to set-l forth the criteria and procedures that will.be used by the Commission to {
i determine if emergency access to a'LLW facility.should be granted, i
1 II. Legislative Requirements .l J In addition to directing the NRC to grant emergency access as j 1
discussed in the Background section, the Act further directs NRC to 1 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 not Hy the Governor (or chief executive officer) of the State in which the waste was 1 generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to ,
their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.
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The Act provides that NRC.can grant emergency access'for a. period
)
not to' exceed 180 days'per request. To ensure-that emergency access is 1 I
not abused,.the Act allows.that'only one. extension of-emergency access, 1 l
not to exceed 180 days, is to be granted'per request. An extension can be approved only if the LLW generator who was originally granted emer-gency access and the State in which'the LLW was generated have diligently,.
i though unsuccessfully, acted during the perio'd of the initial. grant to j i
eliminate the need for'. emergency access.
The Act'also-provides that requests for emergency access shall I contain all .information and certifications that NRC requires to.make its
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determination.
" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the Commission's discretion because of a serious and immediate threat to the public health and safety or the common defense and security, pending a Commission determination as to
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whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
The Act does not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC is issuing this rule to estab-lish the criteria and procedures that will be used in making the required determinations for emergency access. Although Congress provided NRC the statutory responsibility for implementing Section 6 of the Act and gave-the Commission authority to decide whether access will be provided, emergency access decisions are likely to be controversial. By setting out the criteria and procedures for making emergency access decisions in a rule that reflects public comment, NRC intends to add predictability 5 ,
em i
to the decisionmaking process and to. help ensure that the'NRC will be- ]
able to make its decisions on emergency access-requests within:the time allowed by the Act. I i
1 III. . Legislative History 1 The legislative history of the. Act emphasizes the Congressional intent that emergency. access be used only in very limited and rare cir-cumstances and.that it was not intended to be used to circumvent other provisions of the Act, ' Congress believed it was important for the successful implementation of the.Act'that emergency access not be viewed l
by the unsited States as an alternative to the pursuit of the development I of new LLW disposal capacity. The legislative history indicates that
.l Congress believed that with the various management options available to )
. LLW generators, including, for example, storage or ceasing to generate )
the waste, that instances where there was no alternative to emergency access would be unlikely. Congress expected that. responsible action from ]
l j the generators and the States / Compacts should resolve most access problems I thus precluding the necessity for involving the' Federal sector in grant-1 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 j i
both with the actual text of Section 6 of the Act and with the intent i expressed by Congress regarding decisions made pursuant to Section 6.
The rule sets strict requirements for granting emergency access and should serve to encourage potential requesters to seek other means for resolving the problems created by denial of access to LLW disposal facil-l ities. The rule places the burden on the party requesting emergency 6
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access to demonstrate that the criteria in the rule'have been met and q
emergency' access'is needed. Applicants for. emergency access will have j to provide clear and convincing evidence that they have exhausted all other optionsifor managing their waste.- By establishing strict require-mentsfor. approving requests for emergency access, NRC intends to rein-
. force the ideaithat problems with LLW disposal-are to be worked out to .
.the exte'nt practical.among the States, and that emergency access to l 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 legisla-tive history.
Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is. located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fif teen days after receiving notifica- 1 l 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, l l
allow the Compact Commission to implement any administrative i
procedures necessary to carry out the grant of' access, and !
ensure that the limitations on emergency access set forth in l
I Section 6(h) of the Act have not been exceeded. l l
i l However, it is clear from the legislative history of the Act that l
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 l
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-n -m q of. the Section 6 emergency.. access.' provision is to . ensure that~ LLS dis '
posal sites that have denied access to certain States-under provisions of' the Act will be made available to receive waste in situations posing a serious and immediate threat to the'public' health and safety. A Compact Commission veto'would' frustrate the' purpose of the. emergency access rovision 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 Acti 'If the Compact refuses'to provide, under its'own authorities,.
1 emergency access under Section 6, Congressional ratification of that Compact would be null and void. H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).
IV. NRC Approach In developing this rule, the NRC's approach was to:
- 1. ensure 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. ensure that the criteria and procedures that are established in 10 CFR Part 62 can be implemented within 45 days after NRC receives a request as specified in the Act. ;
- 4. establish criteria and procedures for designating a site to receive the waste that are fair and equitable and that are consistent 8
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> l with the'other provisi,ons'of the'Act, including the limitslonLthe amount' 4
1
.of wa'te that'can be disposed of'atieach operating; facility.
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- 5. establish requirements for granting. emergency access that are.
ostringent;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 healthfand safety or the common defense and security. !
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V. Assumptions l
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 i of routine LLW management is such that it is difficult to conceive of l
situations where denial of access to disposal would create'a serious and )
i immediate threat to the public health and safety or the national secu- )
rity. In most cases generators should be able to safely store routinely generated LLW or employ other options.for managing the waste without requiring emergency access. Thus, if all the LLW generators in a State i
were denied access to LLW disposal facilities, NRC would not expect to l 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 kind of generator since the need for emergdney access would be different in each ccse. .
NRC has also assumed that requests for emergency access will not be made for wastes that would otherwise qualify for disposal by the 9
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O*"w2
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. Department'of Energy (DOE) under the unusual volumes provision,of the Act.
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[Section5(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.
.specifica11y sets aside.800,000 cu ft of disposal capacity.above the
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a 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 1
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
. . I 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 maximum flexibility in considering requests for emergency access on a case-by-case' basis.
VI. The Final Rule The final rule contains four Subparts, A, B, C, and D. These Subparts set out the requirements and procedures to be followed in l 1
requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here.
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6"=~~a Subpart A - General Provisions
- Subpart A contains the purpose and scope of*the rule,-definitions,.
instructions for communications with the Commission, and provisions relating to interpretations of the rule. Subpart A states that.the rule applies to all. persons as defined by this regulation'who have.been denied.
1 access to existing-commercial LLW disposal. facilities and who submit a I request to the Commission for an emergency access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendments'Act of 1985. Subpart A also.e'mphasizes that the emergency. access rule applies only to those subclasses of LLW for which the States have disposal responsibility under Section 3(1)(a) of'the Act.
Subpart B - Request for a Commission Determination Subpart B specifies the information that must be' submitted and the procedures that must be fol. lowed by a person seeking a Commission deter-mination on emergency access.
Specifically, Subpart B requires the submission of information-1 on the need for access to LLW disposal sites, the quantity and type of i
material requiring disposal, impacts on health and safety or con. mon I defense and security if emergency access were not granted, and consideration of available alternatives to emergency access. This !
information will enable the Commission to determine: j (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 '
4 (c) which non-Federal disposal facility or facilities should provide the required disposal.
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i In addition, Subpart B also sets forth procedures.for'the filing and.
distribution of a request for a Commission determination. It provides for publishing in the Federal' Register a notice of' receipt of a request for emergency access to inform the public that Commission action on the.
request is pending. Although comment is not required by the Act or the
- Administrative Procedure Act, Subpart B provides for a 10-day public I comment period on the request for emergency access.
In the even't that the case for requesting. emergency access is to be based totally or in part on the threat posed to the common. defense'and j security, Subpart B requires that a statement of support from the i Department of Energy (DDE) or the Department of Defense (DDD) (as appro-priate) be submitted as part of the initial request for emergency access.
If the request is based entirely on common defense and security concerns, NRC will not proceed with the emergency access evaluation'until the statement of support is submitted.
Subpart C - Issuance of a Commission Determination For the NRC to grant emergency access, the Commission must first conclude that there is a serious and immediate threat to the public )q health and safety or the common defense and security, and second that there are no available mitigating alternatives. Subpart C sets out the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and for granting temporary emergency access; establishes the criteria and standards to be used by the Commission in making those determinations; ;
I and specifies the procedures to be followed in issuing them.
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1 Subpart C provides that NRC, in determining whether there is a )
serious and immediate threat to the public health and safety, will J
consider: (1) the nature and extent of the radiation hazard that would i I
result from the denial of access including consideration of the standards for radiation protection contained in 10 CFR Part 20, any standards governing the release of radioactive materials to the general environment that are applicable to the facility that generated the low-level waste, i
)
and any other Commission requirements specifically applicable to the 1
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 determining whether there is a serious and immediate threat to the common defense and security, Subpart C provides that the Commission I
will consider whether the activity generating the LLW is necessary to protect the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity j
that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will consider D0D and DOE viewpoints in a statement of support to be filed with the request for emergency access.
l Urider Subpart C, if the Commission makes either of the above deter- l 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-l ially mitigate the need for emergency access. The Commission will 13
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' consider chether the person requesting emergency access has considered.
all factors in the evaluation of alternatives including statt-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
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safety or the common defense and security, because it is technically or economically beyond the capability of the requestor, or because the alternati"e 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 and immediate threat to the public health and safety. The Commission is also concerned as to whether the implementa-tion of other alternatives may have a disruptive effect on essential medical services. Section 62.12 specifically requests information on these impacts as part of a request for emergency access so they can be considered by the Commission in its overall determ' nation 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 renonable, then the request for emergency access will be denied.
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ = _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l
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 prcvide emergency access disposal, the Commission will first consider whether a facility should be excluded from consideration because: (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set ot.t 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 ecceeds 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 rr ide on these factors alonc, then the Commission will consider the type of saste, 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 l the initial grant to eliminate the need for emergency access.
1 In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access l l
situation falls within the criteria and examples in the Commission's l
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policy statementLon1 abnormal occurrences,.but will not have to re'ach a determination regarding mitigating . alternatives.
Subpart D - Termination of Emergency Access
'Subpart D establishes--that-the NRC may terminate a grant'of.' emergency access.if the requestor or the type of waste do not meet the' conditions It also establishes that-the established by NRC pursuant to this Part. .
. Commission may terminate emergency' access'when it determines that i emergency access is.no longer necessary to protect the public health and safety or the' common defense'and~ security from a serious and immediate threat.
VII, Rationale for Criteria This rule establishes the. criteria 'for making the emergency access determinations required by'the Act. The rationale.for these. decisions is discussed below:
(a) Determination that a Serious and Immediate Threat Exists, Establishing the criteria to be used in' determining that a serious and immediate threat exists to the public health and safety or the common defense and security is key to NRC's decisions to grant emergency access.
Neither the Act nor its legislative history provide elaboration regarding Congressional intent for what would constitute "a serious and immediate threat."
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.(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)(1)' addresses the situation where the lack. 1 of access would result in a radiation hazard at the'. facility that is generating the LLW. Section 62.25(b)(11) addresses.the. situation where the threat to public health.and safety would result from disruption of
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the activity that ' generates the wasta, 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 general environment that are applicable to the facility that generated the LLW, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request. This latter category would include license provisions, orders, and similar requirements.
The Congressional concern in enacting Section 6 of the Act was to l 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 1
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', emwwm its entirety, 1.e., the threat to public health and; safety and the alter-'
natives to emergency access that may be available to mitigate that threat. In other words, in determining what constitutes a serious and' immediate threat to public health and safety, the Commission must con-sider what threat would be unacceptable assuming that no alternatives are available. In the Commission's judgment, any situation that would result in exceeding the occupational dose limits or basic limits of public er.pesure upon which certain requirements in 10 CFR Part 20 are founded Luld 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 *ct 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 I 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 )i a serious threat to the public health and safety might result, this rule establishes criteria to address this possibility. Under its normal l regulatory responsibilities and authority, the Commission would act I immediately to prevent or mitigate any threat to the public health and l safety, including shutting down the facility. However, there may be l
circumstances where a potential safety problem would still exist, after l the facility was shut down or the activity stopped, if the low level j l
waste could not be disposed of because of denial of access. In this j i
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situation, emergency access may be. nee'ded. ~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 dispo' sal facility, and-second, if such a situation does exist, the Commission will move imme -
diately to eliminate the threat.
If the Commission does receive a request for emergency access based 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 wasts itself. -This is separate from a finding that a serious.and immediate' threat to the.
public health and safety would exist.if the activity were. forced to shut down, i Section 6(d) of the Act allows the Commission to grant temporary emergency access for a period not-to exce'ed 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-3 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 l examples contained in the Commission's Policy Statement (45 FR 10950, February 24,1977) for determining whether an event at a facility or 19
activity. licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. This provision requires the Commission to keep Congress and the public informed of unscheduled incidents or events which it considers significant from the standpoint of public health and safety, Under the criteria established in the Commission's policy statement, an event will be considered an abnormal occurrence if it involves a major reduction in the degree of protection provided to public health and safety. Such an !
event could include--
- a. Moderate exposure to, or release of, radioactive material;
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- b. Major degradation of safety related equipment; or
- c. Major deficiencies in design, construction, use of, or management controls for licensed facilities or activities.
In deciding whether to grant temporary emergency access, the-Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal j occurrences.
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- (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 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 to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those objectives. While NRC 20 1
t has the Congressional mandate for this determination, the staff believe I
it necessary to consider D0D and DOE information as part of the decision-
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i making process. l NRC considered several approaches for involving D0D and DOE in the process of determining whether requests for emergency access should be
'jranted on the basis of a serious and immediate threat to the common )
defense and security. NRC h'as concluded that the best way to provide l 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 D00 substantiating the <
requestor's claim that such a threat will result if emergency access is I
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 l petition.
Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the deter-mination with D0D or DOE. So while the Commission intends to give the i l
D0D and DOE certifications and recommendations full consideration in l 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
1 J
.i consistent with the 'public. health and safety. Requestors for emergency access are required to demonstrate that-they h'a/e explored the 81terna-- ;
i tives available and that the only course of action remaining.is emergency.. j 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 wil.1 have to evaluate
~
are set out in Section 6(c)(1)(B) of the.Act. They include (1) storage-I of LLW at the site of generation.or in a storage facility, (2) obtaining-j access to a disposal facility'by voluntary agreement, (3) purchasing i disposal capacity.available for assignment. pursuant to Section 5(c).of the Act, and-(4) ceasing the activities that generate the LLW.
While 6(c)(1)(B) of the Act sets thase out as possible alternatives which a generator must consider before requesti.ng 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 q
Congress intended that disposal under the emergency access provision was I i
to apply to the Section 5(c)(5) wastes.unless the capacity required for disposals under the unusual volume provision would exceed the 800,-000 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 I available for LLW which qualifies for such disposal, emergency access 22 l l
4 I
e~ b l
should not'be requested. / Applications fo'r emergency access for wastes l which NRC determines wouldLotherwise be. eligible.for disposal under the d unusual volumes provision, will be denied.
Another alternative applies only to Federal or defense related generators of LLW. ;NRC will expect that-generators of LLW falling into l either of these' categories will attempt to arrange for disposal _at a !
I Federal LLW disposal facili.ty prior to requesting. access to non'-Federal!
. facilities under the emergency access provision.
The Commission' fully intends.:that the States and Compacts whose generators have been denied access to'LLW disposal will share.in the
. responsibility for identifying and providing alternatives to emergency access. NRC's expectation is that the States and appropriate Compacts, '
as well as the generator, will each exhaust their options before emer-gency access will be requested. A requ?st for emergency access is to include a discussion of the consideration given to any alternatives available to the requestor. To NRC, this includes State / Compact options as well'as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of these, and the actions taken. ;
For all the alternatives that are considered, NRC is requiring
)
, detailed information from the requestor regarding the decision process leading to a request for emergency access. The requestor will be expected to: (1) demonstrate that all pertinent alternatives have been j l
considered; (2) provide a detailed analysis comparing all of the-alterna- l tives considered; (3) demonstrate that consideration has been given to 3
1 23 l
a - ___-____________________ -__- ___-_______ _ _ _ _ _ _ _ _ _ _
i 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.
- l In. deciding which.of the operating, non-Federal or. regional LLW l disposal facilities will receive the LLW requiring emergency access,.NRC
. . 1 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-
~
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-4 posal' exceeds 20 percent of the total volume of the'LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations 'in the Act ;
1 alone, the Commistion will consider other factors including the type of waste, previous disposal practices, transportation: requirements, radio-logical effects of the waste, the capability for handling the waste at each site, the volume of emergency access waste previously accepted by each site, and any other information that would be necessary in order to come to a site designation decision. ,
Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute.the waste as equitably as possible l
1 -
24 l
1
- _ _ _ _ _ . - - b
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, toallocateemergencyaccessdisposalinproportiontothevoiumelimita-tions established in the Act. In most cases, NRC would expect that the designation of a single site will minimize handling of and expc,sure to the waste and best serve the interest of protecting the public health and safety. However, if the volume of waste requiring emergency access disposal is large, or if there are other unusual or extenuating circum- !
l stances, NRC will evaluate the advantages and' disadvantages of designat-I ing more than one site to receive waste frcs-the sr.me requestor, j In addition to.the above, NRC will also consider how much waste has i 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 i
the waste. I l
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 is currently in the process of developing a system to provide this information.
It should be noted that in setting out the site designation provi-i sion for Section 5, Congress assumed there would always be a site deemed appropriate 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 I
25 l
l
intended NRC 9,o consider .if all. sites are. deemed inappropriate.to receive-the LLW. This may'have to be addressed by Congress at some time in.the.
i future. 1
~
(d) ' Volume Reduction Determination. .-
Section 6(i) of.the Act' requires that any LLW delivered for disposal' .]
as a result of NRC's decision to grant emergency access "should be l reduced in volume to the maximum extent practicable." NRC will evaluate l
'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 l 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).
1 As is so for the other determinations ~ NRC will have to make. pursuant to Section 6, volume reduction determinations will be made on a case-by- -l case basis. The optimal level of volume reduction will vary with the waste, the conditions under which it is being processed or stored, the ,
1 administrative options available, and whether volume reduction process-ing creates new wastes requiring treatment or disposal. In evaluating
- whether the wastes proposed for emergency access have been reduced in volume to the maximum extent practicable, NRC will consider the charac-teristics of the wastes (including: physical properties,' chemical pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, i 26 i
- q pyrophoricity, and explosive potential); condition of current container; i
potential for contaminating the disposal site; the technologies or f 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 af volume reduction equipment to the circumstances (specific activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker exposure, and i'
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 l
subject to the gereral requirements for LLW disposal as established in i
i the Act, as well as those requirements which specifically address emer- j l
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 i
of emergency access should not preclude the implementation of any l specific conditions, regulations, requirements, fees, surcharges or taxes prescribed by the dispodi 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 access disposal, they should not otherwise be subject to fees or require-ments that are not customarily charged or imposed for routine LLW disposal.
l 27 o----------
[7590-01]
IX. Analysis of'.Public Comments The. Commission received twenty-one (21)-comment letters for the proposed rule. Ten (10).of the comment letters came from concerned citizens, six (6) from the governments of potentially affected States, two (2) from low-level waste compacts, two (2) from the~ industry and j one (1) from a nuclear information service. A detailed analysis of each' of the comments was prepared and used to revise the proposed rule. 'The.
i major comments are discussed here. Copies of the comment letters and the l i
detailed analysis of comments are available for public inspection and I copying for a fee at the NRC Public Document Room, 2120 L Street NW.,- ;
i Washington, DC 20555.
In general, commentors expressed support for NRC's issuance of a )
rule for its emergency access decisions and indicated changes that would improve it from their perspective. Only one commentor, representing a l
)
lobbying group, expressed opposition to the issuance.of the rule. That commentor indicated that the rule should be withdrawn because granting i emergency access would infringe on the States' right to manage their LLW.
The Act established the statutory framework for the management of LLW i including the allocati.on of management responsibility between the Federal government and the States. The emergency access rule merely implements part of the existing statutory framework, so the rule itself does not infringe on the rights of the States.
28
e~ ~~~n -
r j
Clarification of LLW Eligible for Emergency Access? !
~
1 By far the most common. concern expressed byy 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 respon-sible for under the Act, or have specifically chosen to exclude from j
1 their facility. Fourteen of.the'commentors.in'almost' half-'of the com- l 1
ments expressed concern that emergency' access ~would be granted to wastes -
that were not typically to be considered eligible.for' disposal at non-Federal or regional LLW disposal facilities. Specifically,'the com-mentors stated that Federal wastes, particularly-those generated by-DOE and D0D, or wastes that are classified as greater-than-Class-C, should not be granted emergency access. Many of the commentors indicated ;
that States and Compacts are not designing their facilities'to provide safe disposal for these types of LLWs. Most of the commentors who' expressed concern about which wastes would be granted emergency access-were concerned that LLWs determined to be ineligible for routine disposal under the Act, could gain access to disposal at State or regional facil-1 ities under the emergency access provision. J Throughout the development of Part 62, the NRC assumed that its mandate was to grant emergency access only to LLW that would otherwise be eligible for routine disposal at State or regional LLW disposal facil-ities according to the terms and conditions set out in the Act. More specifically, the NRC believes that only those LLWs designated by Section 3(a)(1) of the Act to be the disposal responsibility of the States could I be eligible for a grant of emergency access disposal.
29 l
l l
__ --- s - -
Under Subsection 3(a)(1)(A), the States are mandated to provide disposal for commercially generated LLW classified as'A, B and C. They are not required to provide disposal for greater-than-Class-C wastes.
Thus, the NRC would expect to deny any request for emergency access received for greater-than-Class-C waste. The same is true for the Federally generated LLW which is excluded from State disposal respon-sibility under Section 3(a)(1)(B). Under that subsection, the States are 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 l research, development, testing, or production of any atomic weapons."
NRC does'not expect to grant emergency access to any wastes that are exempted from State responsibility by Section 3(a)(1)(B).
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 i
established in the Act for routine LLW disposal would also apply for i disposal resulting from a grant of emergency access. Apparently, that i
was not the case, To clarify the NRC's understanding and intent regarding j the scope of wastes which the NRC 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 l l !
"The regulations in this Part apply only to the LLW's which the States have disposal responsibility for pursuant to Section 3(a)(1) of the Act."
l 30 !
-_ _ - - - - 1
1 The NRC believes the addition of this clarification to the final rule j should resolve any questions regarding a particular LLW's eligibility for 4
emergency access consideration as well as the Commission's intended application of the final rule.
l l
Reciprocal Access j Several of the commentors pointed out that the proposed rule omitted any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. Section 6(f) provides that the Regional Compact or State receiving the emergency access waste is entitled to q
reciprocal access at any subsequent facility that serves the Compact j region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to that provided emergency access." l
'Most of the States and Regional Compact Commissions who submitted '
comments on the proposed Part 62 indicated that reciprocal access should be addressed in the final rule. Most of the commentors who raised ;
reciprocal access concerns believed the NRC should broker reciprocal access arrangements to ensure that reciprocal access will be available to 1
l l a State or Compact whose LLW disposal facility is designated to receive emergency access waste. Several of them emphasized that the reciprocal -
access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a 31
1 l 1 disposal facility. . They state' d ihas reciprocal ~ access is of ! particuler J I
> concern because a receiving Regional Compact or State has virtually no~ l leverage or role to play in the emergency; access process and a: guarantee
'of reciprocal-access would make'the situation more acce'ptable. They-indicated reciprocity is an. integral.-part of Section-6.and should be part.
of the rule.-
~
One commentor indicated that even if- the NRC did not w'ish to be i
- involved in brokering'the arrangements, it "must ensure th'at the right to l
reciprocal-access.is recognized and.its implications are considered." -]
1 The commentor. indicated that a formal reciprocal access acknowledgements )
should be extracted from the Compact Region or. State in which the emer- a 1
I gency access' waste was generated before any' determination.for granting
'l emergency access is made. They indicated.that such an acknowledgement-should be required by the NRC'as part of the contents of a. request for..
emergency access (Section 62.12) and should include some indication of l when-the reciprocal access would be provided. The acknowledgement could 1 L
{
then be included as.part of the Section 62.22 notification provided to-the receiving state and, if appropriate,.the Compact Commission."
I The NRC recognizes that the commitment;to reciprocal access is an integral part of the emergency access' process, particularly for the States with the operating LLW disposal facilities which will be designated by NRC to receive emergency access waste. Staff considered reciprocal access during the development of the proposed rule. At that time, the NRC made a decision not to address reciprocal access as part of the rule )
l on emergency access. As NRC staff read Section 6(f), arranging for I i
1 32 i
m .. g J
reciprocal acess ~1s an obligation betecen States / Compacts unrela%ed to the. Commission's . responsibility: to prot' e ct-public: health and safety.and )
the common defense and' security and thus is.outside the scope of NRC's-responsibility to implement Section 6. Thus, Staff. believed it would be inappropriate-for the NRC to assume the role of enforcing reciprocal
~
access. arrangements.
1 The NRC reconsidered its position:.on reciprocal access. in light 'of !
the comments received on the. proposed: rule,.but made'no changes to.the final rule. The NRC's mandate under Section'6 is to grant' requests for 4 emergency. access in' order.to protect the public health and safety and the common defense and security from a serious and immediate threat. If the' i NRC were to~ require a formal promise of' reciprocal access as a necessary 1 condition for considering a request'for emergency access, under'certain circumstances, actions necessary to' protect the public health and safety could'be' delayed or compromised. Thus, the NRC continues to.believe that an enforcement role regarding reciprocal access.is inappropriate for the NRC. The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with'the Commis-1 sion's basic mandate to make emergency access decisions. The NRC maintains 1
)
that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts involved. The NRC believes that the promise of reciprocal access desired by the-commentors j l
could be initiated during the 15 day period required by the Act under j Section 6(g) for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation.
i As noted above, Section 6(f) entitles any Compact or State that provides emergency access to a disposal facility within its borders to- "
33
i
[7590-01]
reciprocal access to any subsequently operating disposal facility that a
serves the State or compact region _in which the LLW granted emergency access was generated. The Commission anticipates that any Compact or State that provides emergency access would take action to enforce this statutory right if_ the State or Compact in which the emergency access waste'was generated does not accept an equal volume of low-level radio- !
I active waste having similar characteristics at some future date. I i
Compact Approval of Grants of Emerget.cy Access Three of the com/nentors representing States or Compact Commissions indicated that the NRC had been remiss in not including a provision in .
I the proposed rule which would require the NRC to seek approval for its '!
decision to grant emergency access from the Compact Commission of the region in which the designated site is located. The commentors also wanted the rule to state that "no grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Commission," in order to establish that Compact !
Commission approval would be necessary before the NRC's decision would be considered final. The resolution of the issue raised by these comments is fundamental to the successful implementation of Congressional intent for the emergency access provision of the Act.
The basis for these comments is the language in Section 6(g) of the Act. It states that "any grant of access under this Section shall be f
submitted to the Compact Commission for the region in which the designated l disposal facility is located for such approval as may be required under j 1 -
the terms of its Compact." The commentors interpretation of this provision ;
! I i
34 i
- - - - - - - - - - - - - l
J j
is that. Congress-intended for the Compact. Commission of the designated !
' site to have the final'say'regarding-the acceptance of emergency access- l R
wastes. They believe Congress intended th'at'a receiving Compact. Commission ]
l could. reject the NRC's. emergency. access determination . essentially that, j I
~
Congress intended the' compacts to have the~ power to veto'the-NRC's.
. decision. The commentors wante'd the NRC to acknowledge this'interpreta-l ~
l tion of Section 6(g) by incorporating.a veto / approval provision in the' I
final rule.
While the commentors were correct inLnoting that the proposed.' rule l,
did not include a specific mechanism for implementing thetSection 6(g) provision of the Amendments Act, the NRC's position on this issue was addressed in Section III, Legislative History of the Supplementary.
Information portion of the proposed rule and is reiterated in the.same i
section of the final. -)
)
Section 6(g);of the Act requires the NRC to notify the Compact 1
.)
Commission for the region in which the disposal facility is located of any NRC grant'of access "for such approval as may be required under the terms of the Compact." However, Section 6(g) also requires-that the Compact Commission "shall act to approve emergency access ~not later than l
15 days after receiving notification from the NRC." NRC believes the ;
purpose of this provision is to (1) ensure that the Compact Commission I is aware of the NRC's grant of emergency access and the terms of the grant; (2) allow the Compact Commission to implement any administrative l l
l procedures necessary to carry out the grant of access, and (3) ensure that the limitations on emergency access set forth in Section 6(h) of I 4 the Act-have not been exceeded. .)
1 35 l
l l
~ ~ ?
Contrary to what several of the commentors believe, the NRC believes that disapproval is not really an option for the Regional Compact Commission in which the designated emergency access disposal facility would be located. This position is derived from the legislative history for both Section 6 of the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact Act which'was passed by Congress as part of_the Act. !
It is clear from the legislative history that the basic purpose of the Section 6 emergency access provision is_to ensure that LLW disposal sites '
which have denied disposal access to certain States under provisions'of the Act will be made available to receive LLW in situations posing a j serious and immediate threat to the public health and safety. A Compact i Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legisla-tive 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 l
the provisions of the Act. If the Compact refuses to provide, under its i own authorities, emergency access under Section 6, Congressional ratifi-l cation of that Compact would be null and void. [H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).] l While disapproval may not be an option under the Act, clearly the Act intended the receiving Compact Commission to be fully informed regarding the emergency access decision made by the NRC. The Commission believes the Notification procedures under S 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 36
l Commission of the State in which the designated disposal facility is located that emergency access is required. It further provides that "the ,
notifications must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme-diate and serious threat to the public health and safety or the common j i
defense and security. l In response to this comment, the NRC has made a change to the final rule. New language has been added to S 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 l !
l as necessary in Section 6(g) of the Act." l l
I Applicable Terms and Conditions for Emergency Access A number of the commentors expressed concern that LLW granted emer-1 gency access to disposal by the NRC should be required to meet any condi-tions 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 making emergency access site designation determinations, the NRC would protect both the health i
and safety interests and the 'inancial interests of either the disposal facility designated to receiv- the LLW, or the person requesting emer-gency access. In addition, they wanted assurances included in the rule 37 1
L_--_-----.---_----
that the NRC would. consider the fees, _ taxes,: etc. in designating a site-toLreceive any waste granted emergency access.
L The NRC's response to these concerns' is simple, and is much like the i earlier discussion about the--response to comments'concerning which wastes- 1 Lare eligible for emergency access. 'As previously stated, the Commission' believes that Congress intended emergency accessionly to be granted for:-
waste which would. routinely qualify for'LLW disposal under the terms.of:
the Low-level Radioactiv'e Waste Policy Amendments Act_ 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 desig-nated 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 i radioactive waste not meeting criteria established by the. license or license agreement of such facility, ...."
! To ensure that the designated site is suitably matched to the i
p LLW granted emergency access, the NRC included a, provision in the proposed-f rule which stated that a LLW disposal site will be excluded from considera-l
~
tion to receive emergency access waste if the waste does not meet the criteria established by the license or licensee agreement for the facil-i ity [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 responsibil-ity to designate a site which does not preclude "the implementation of 38 i
e ~ ~-~~e any specific _ regulations, and requirements at the designated disposal 1
facilities." l l
Regarding fees, taxes and other conditions that several commentors believed the NRC should consider in designating a site, the NRC believes that Congress intended for generators who are granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or i surcharges specifically applicable to emergency access waste and established under Section 5 3f the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site I I
designation decision. }
The Commission recognizes the importance of conditions to ensure the implementation of emergency access decisions once they are made by the I
Commission. In response to the comments, the NRC added a new Section j "VIII" to the Supplementary Information portion of the final rule titled,
" Terms and Conditions for Emergency Access Disposal." It sets out the !
responsibilities regarding the disposition of emergency access for both the generator of the LLW granted emergency access and the operating dis-posal site or sites which have been designated to receive the waste. The new section reaffirms the NRC's understanding of Congressional intent j that whatever conditions or terms normally apply to LLW disposal apply for emergency access, except where specifically stated otherwise in the Act.
l l
j Conditions of Termination Four of the commentors suggested the addition of a new section or subsection to the rule to address the conditions under which emergency access could be terminated. The Commission agrees that terms and condi-tions should be established in the final rule for termination of grants 39 w__-_________
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 entitled,." Termination of Emergency Access." This new.Subpart 0 is discussed under Section VI.(D)'
It' establishes.that the of the Supplementary'Information for this rule.
Commission may terminate a grant of emergency access'if an applicant has.
' failed to comply with the' conditions established by the NRC pursuant to this Part. It also establishes 'that the Commission may terminate a grant.
of emergency access'if it det' ermines that emergency' access is no longer-needed.
Response to Specific _ Request for Comments In the proposed rule, the'NRC specifically requested comments on certain parts or assumptions'made by the NRC. Under Section VIII of the proposed rule, the NRC expressed an interest in receiving comments on--
(1) What scenarios are envisioned where emergency access would be required?
(2) What are the potential problems with the NRC's approach to i
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 i (5) What should the NRC do if no site is found to be suitable for waste requiring emergency access? l l i i
40 3
Y-_-_-_-_____--.___-___
-w l'
'Two'of the commentors specifically addressed this request for comments, offering partial responses to some of the questions. One..of the )
e j commentors offered possible scenarios for emergency access and both of.
the commentors suggested that a Federal-facility should be developed to
~
accommodate emergency access wastes. The comments did not reveal any new I
perspectives for the.NRC to consider so the final rule was not affected 1 by the comments received.
l In the proposed rule, the NRC specifically requested comments on the l .
. initial regulatory flexibility analysis from small businesses, small
~
1 organizations, and'small jurisdictions in order to~ determine if the final '
regulations shoul'd 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.
X. Finding of No Significant Environmental l
Impact: Availability This rule establishes criteria and procedures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a 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 criteria and procedures by promulgation of a final rule does not have an environmental effect. )
43 l
Therefore, the Commission has determined under the National Environ- !
I mental Policy Act of 1969, as amended, and the Commission's regulations j i
in Subpart A of 10 CFR Part 51, that this rule is not a major. Federal i action significantly affecting the quality of the human environment and, i therefore, an environmental-impact statement is not required. )
i The environmental assessment forming the basis for this determina- 1 tion is contained in the regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted in Section XIII of )
I this rule. )
l l
1 XI. Paperwork Reduction Act Statement 1 The final rule adds information collection requirements that are subject to the Paperwork Reduction / set of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget q Approval Number 3150-0143.
Public reporting burden for this collection of informatin is i estimated to average 680 hours0.00787 days <br />0.189 hours <br />0.00112 weeks <br />2.5874e-4 months <br /> per response, including the time.for 4
reviewing instructions, searching existing data sources, gathering and !
l l maintaining the data needed, and completing and reviewing the collection l
l of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions ;
for reducing this burden, to the Records and Reports Management Branch, Division of Information Support Services, Office of Administration and Resources Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.
i l 42 i
[7590-01]
XII. Regulatory Analysis-The Commission has- prepared a ' regulatory analysis on this- final regulation. The analysis examines the costs and benefitt: of the-alternatives considered by the Commission.~ The analysis is available~for:
inspection, copying.for a fee, at the NRC Public-Document. Room, 2120 L Street NW., Washington, DC 20555. Single copies of the analysis may be obtained from Janet Lambert, Nuclear. Regulatory Commission, NLS-260, .
j Washington, DC 20555, telephone-(301)'492-3857.
XIII. 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- 3 cant economic impact upon a substantial number of small entities.
The rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small entity.
The generators of LLW are j 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 that there will be a signif-icant economic impact to these generators because the Commission does not 43
anticipate that many generators will be affected by the rule. In order
. for the requirements of the rde to be imposed on a generator, the generator.must initiate the action by requesting a grant of emergency access from NRC. This woulu occur only because the generator has been denied access to LLW disposal. The impact of the recordkeeping require- .
ments on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most i
likely be collected and assembled as part of any process to decide a q course of action if necessary access to LLW disposal was not going to be I l
available.
The Commission is required by statute to make emergency access ,
i determinations. Since a grant of emergency access is intended to correct ]
l the problems LLW generators may encounter because of lack of access to j u.W disposal, the provision of emargency access will benefit any genera-i ter of LLW, including small entities. l Establishing criteria and procedures for requesting and granting emergency access through a rule will also benefit small and large genera- l tors. This Part provides guidance to the generator on what informa-l tion will be required for making requests for emergency access and I provides an orderly framework for making those requests. Also, the rule l l will enable generators to better plan to avoid LLW disposal access l
problems, thus providing the certainty required for economic growth and development.
XIV. Backfit Statement The provisions of 10 CFR Part 50.109 on Backfitting do not apply to this rulemaking because this regulation is not applicable to production and utilization facilities licensed under 10 CFR Part 50.
44 l
i i- XV. List of Subjects-
~
~
Administrative practice.and procedure, denial'of' access, emergency accessito low-level. waste. disposal, low-level _ radioactive waste low-level ,
radioactive waste' policy amendments act'of 1985," Low-level radioactive- ,
waste treatment and disposal,' nuclear' materials, Reporting and record-:
- keeping requirements.
~ For the reasons set out in-the preamble and under the. authority of L .the Atomic Energy ct of.1954, as:amendedi the Energy' Reorganization Act of'1974, as amended,.'and 5 U.'S.C.'.553, and the Low-Level Radioactive l Waste. Policy Amendments.Act of 1985,'the NRC is adopting a new 10 CFR 1
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 P.ovisions Section:
6
2.1 Purpose and Scope
62.2 Definitions.
62.3 Communications.
62.4 Interpretations.
62.5 Specific Exemptions.
62.8 Information Collection Requirements: OMB Approval 45 l
-m q i
Subpert B 'lequest for a Commission Determination 62.11 Filing and distribution of a determination request. f I
62.12 Contents of a request for emergency access: General information. 1 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. i 62.16 Withdrawal of a determination request.
62.17 Elimination of repetition.
62.18 Denial of access. {
Subpart C - Issuance of a Commission Determination 62.21 Determination for granting emergency access.
]
62.22 Notice of issuance of a determination.
62.23 Determination for granting temporary emergency access.
1 j 62.24 Extension of emergency access. J 62.25 Criteria for a Commission determination.
1 62.26 Criteria for designating a disposal facility. I 1
l Subpart 0 - Compliance with Conditions of Emergency Access; -;
i Termination of Emergency Access j l
62.31 Termination of Emergency Access. I 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).
i 46
Subpart A--General Prottisions
.S 62.1 Purpose and scope.
(a) The regulations in this part' establish for specific low-level j i
radioactive waste (1) criteria and procedures for granting emergency j i
access under Section 6 of the Low-Level Radioactive Waste Policy Amend- 4 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 I
(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 1
part. I l
(c) The regulations in this part apply only to the LLW that the l States have the responsibility to dispose of pursuant to Section 3(1)(a) of the Act.
S 62.2 Definitions.
As used this part:
"Act" means the Low-Letel Radioactive Waste Policy Amendments Act of 1985 (P.L.99-240).
" Agreement State" means a State that - (1) 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 (2) has authority to regu-late the disposal of low-level radioactive waste under such agreement.
47
' "Commission",means the Nuclear. Regulatory Commission or its duly authorized representatives.
" Compact" means a Compact entered into by two.or more States
' pursuant to the Low-Level Radioactive Waste. Policy Amendments Act'of 1985.
" Compact Commission" means the regional' commission, committee, or
.Soard established in a Compact to' administer such Compact.
l
" Disposal" means the permanent isolation of low-level radioactive.
- waste pursuant to the requirements established by theENuclear Regulatory Commission under applicable laws, or by an Agreement State if such isolation occurs in this Agreement 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.
" Low-level radioactive waste" (LLW) means radioactive material that (1) 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 (2) the NRC, consistent with existing law and in accordance with paragraph (a), classifies as low-level radioactive waste.
"Non-Federal dispossi facility" means a low-level radioactive waste disposal facility that is commercially operated or is operated by a State.
48
[7590-01)
" Person" means any. individual, corporation, partnership, firm, association, trust, State, public or private institution, group or agency who is an NRC or NRC Agreement State licensed generator of low-level radioactive waste within the scope of Section 62.1(c) of this part; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any NRC or NRC Agreement State 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.
" 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.
" State" means any State of the United States, the District of 1
Columbia, and the Commonwealth of Puerto Rico.
" Temporary emergency access" means access that is granted at NRC's Ciscretion under Section 62.23 of this part upon determining that access is necessary to eliminate an immediate and serious threat to the public 1
l health and safety or the common defense and security. Such access expires 45 days after the granting and cannot be extended.
l l
l S 62.3 Communications.
Except where otherwise specified, each communication and report concerning the regulations in this part should be addressed to the Direc-tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, or may be delivered in person to the Commission's offices at 2120 L Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland.
49 L-_____________-_______
- ~
~h'62.4 2 interpretations.
Except as specifically authorized by the' Commission in writing, no interpretation of the meaning of the regulations in this part by any.
officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considered binding on the Commission.
S 62.5 Specific exemptions.-
The.Commissionimay, upon application of.any interested. person or upon its own initiative, grant,an exemption from'the requirements of th'e regulations in this part that.it determines is' authorized by law and will .q
.not endanger life or property or the common defense and security and is .
.otherwise in the public interest.
S 62.8 Information collection requirements: OMB Approval.
(a) The Nuclear Regulatory Commission has submitted the informa-tion collection requirements contained in this part to the Office of l l
Management and Budget (OMB) for approval as required by the paperwork 1
Reduction Act of 1980 (44 U.S.C. 3501 et. seq.). OMB has approved the ;
information. collection requirements contained in this part under control.
number 3150-0143. ;
(b) The approved information collection requirements contained in ,
this part appear in SS 62.11, 62.12, 62.13, 62.14, and 62.15.
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 shall file a signed original and nine copies of the request with the 50
. Commission at the address specified in S 62.3 of ~this part',.with a copy also-provided to the appropriate Regional Administrator at the address specified in Appendix D to Part.20 of'this chaphr. 'The' request must'be signed by the person requesting the determination or the person's author--
izedLrepresentative 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 which will require that-
.public comment on the' request be' submitted within 10 days of the date of the notice. A copy.of the' request will be made available for inspection or copying,in the Commission's Public Document Room, Washington, DC. 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 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 j 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 L additional LLW disposal capacity is authorized by Congress.
l 1
51 L
1
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; (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--
(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 (v) Concentrations and percentages of any hazardous or toxic chemicals, chelating agents, or infectious or biological agents associated with the waste; 52
(2) The radiological characteristics of the waste such as--
I (1) The classification of the waste in accordance with S 61.55; l
(ii) A list of the radionuclides present or potentially present in- )
i the waste, their concentration or contamination levels, and total j i
quantity;
]
(iii) Distribution of the radionuclides within the waste (surface or volume distribution); )
i (iv) Amount of transuranic (nanocuries/ gram); j l
(3) The minimum volume of the waste requiring emergency access to ]
i eliminate the threat to the public health and safety or the common j defense and security; (4) ihe time duration for which emergency access is requested (not to exceed 180 days);
(5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and (6) Description of the volume reduction and waste minimization )
techniques applied to the waste which assure that it is reduced to the maximum extent practicable, and the actual reduction in volume that occurred; (h) Basis for requesting the determination set out in this part, including--
(1) The circumstances that led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation that 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; 1
53
r- --_e l(3) A chronology and description of the actions,taken'by the' person 1
J requesting emergency ' access to prevent the need for making such a _ request,.
including consideration of all alternativ'es set forth in S 62.13 of this part, and any supporting documentation as appropriate;,
(4) .An: explanation of the impacts of the_ waste on tiie.public health-nnd safety or'the common defense and security'if' emergency-access is not l granted, and the. basis for concluding that these~ impacts constitute a serious and.immediate threat'to the public health and' safety or the l
common defense and security. The impacts to the public health and safety l} or the common defense and security _ should also be addressed if the l
generator's services, including-iesearch activities,'were to be curtailed, 1 1
either for a limited period of time or indefinitely; (5) Other consequences if emergency access is not granted; (i) Steps taken by the person requesting emergency access to correct the situation requiring emergency access and the person's plans to eliminate the need for additional or future emergency access requests; (j) Documentation certifying that access has-been denied; (k) Documentation that the waste for which emergency' access is i requested could not otherwise qualify for disposal pursuant to the l'
Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simul-taneously under consideration by the Department of Energy (DOE) for 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; 54
E ,
-- 1
.g l
L- 4 (m)' Date by which access'is're' quired; .j
^
i (n) Any other1information .which the Commission .should l consider .in l )
.q making.its determination. ,
.j SL62.13 Contents of a request for emergency' access: Alternatives.
l (a)* A request for emergency a gg,ss 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; l
(2) Storage of low-level radioactive waste in a licensed storage facility; (3) Obtaining access to a disposal facility.by voluntary agreement; (4) Purchasing disposal capacity available for assignment pursuant to the Act; (5) Requesting disposal at a Federal low-level radioactive waste-dis'posal facility in the case of a Federal or defense related generator of LLW; (6) Reducing the volume of the wasto; (7) Ceasing activities that generate low-level radioactive waste; and
.(8) Other alternatives identified under paragraph (b) of this section. a (b) The request must identify all of the alternatives to emergency access considered, including any that would require State or Compact-action, or any others that are not specified in paragraph (a) of this sec-tion. The request should also include a description of the process used 55 l
~
q
]
o to' identify'the' alternatives,'c description of.the factors that were con- l 4
sidered in . identifying and evaluating them, a chronology of. actions'taken-to. identify.and implement _ alternatives,during the process, and a discus- 1 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. .
i 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 alternative ~, including the curtailment or. cessation of.any~ essential services affecting the.-
public health and safety or the'c'ommon defense and security;
~
-(3) The technical and economic feasibility of each alternative including the person's financial capability to implement the~alterna-tives; l (4) Any other pertinent societal costs.and benefits; 1
l' (5) Impacts to the environment; (6) Any legal impediments to implementation of each alternative, including whether the alternatives will comply with applicable NRC and ,
i L
NRC Agreement States regulatory requirements; and {
(7) The time required to develop and implement each alternative.
1 i (d) The request must include the basis for (1) rejecting each ;
alternative; and (2) concluding that no alternative is available.
L 6 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 E 62.12 and S 62.13; and 56
(b) Documentation that the ' generator of the low-lesel radioactive -
- waste granted emergency, access and the' State in'which the' low-leveli 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, L
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-I tion under this part if the person ' aking m the request' fails:to respond to.. i a request for additional 'information under paragraph (a) of this section.
within ten (10) days from the date of- the' request for additional informa- j tion, or any other time that 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. I i
(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 of this part.
57 ;
l
}
(b)! The Secretary of'9.he Commission will cause.to'be published in l
1 the' Federal Register a notice of the withdrawal of a request for'a l i
Commission determination under this part.
6'62.17. Elimination of' repetition.
~ ;
In any request'under this part, the person making the request may; ,
' incorporate by reference'information contained in a previous' application,--
d
' Statement, or report filed with the Commission provided that these refer -
ences are updated, clear, and specific. s i
-1 i
S 62.18 Denial of request. I l'
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, a
l Subpart C--Issuance of a Commission Determination L l l 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 l
l 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 i
1 I
58 l )
1 I
)
) '
_ ~
-(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 of this part.
(c)l' A determination under this section must be in writing and contain:4. full. explanation of the facts upon which the' determination'is based 'and the reasons for. granting or denying- the request. ' An affirma-l tive determination must designate an appropriate non-Federal,or regional- -
u_
l-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 j (not to exceed.180 days) necessary to eliminate the'immediate threat to-public health and saftty or the common defense and security. It may also contain conditions upon which the determination is dependent.
S 62.22 Notice of issuance of a determination.
(a) Upon the issuance of a Commission determination the Secretary of the Commission will notify in writing the following persons of the final determination: the person making the request, the Governor of the State in which the low-level radioactive waste requiring emergency access was generated, the Governor of the State-in which the designated disposal -l facility is located, and if pertinent, 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, 59
[7590-01]
]
l
\
physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the immediate
{
and serious threat to public health and safety on the common defense and 1
security. For the Governor of the State in which the low-level waste !
I was generated, the notification must indicate that no extension of
{
emergency access will be granted under S 62.24 of th?s part absent dili-gentStateandgeneratoractionduriSgtheperiodoftheinitialgrant.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination.
l (c) The Secretary of the Commission will make a copy of the final determination available for inspection in the Commission's Public i Document Room, 2120 L Street NW., Washington, DC.
l l
l S 62.23 Determination for granting temporary emergency access.
l (a) The Commission may grant temporary emergency access to an appropriate non-Federal or regional disposal facility or facilities l provided that the determination required under S 62.21(a)(1) of this l
part is made; ;
(b) the notification procedures under S 62.22 of this part are complied with; and (c) the temporary emergency access duration will not exceed forty-five (45) days.
S 62.24 Extension of emergency access.
(a) Af ter the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially granted 60
\
I under S 62.21, the Commission'shall make an initial' determination of:
whether--
(1) emergency access continue's-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 (3) the' generator of low-level waste'and the State have diligently..
l s though ' unsuccessfully acted during.the period of the initial grant. to' eliminate the need-for emergency. access. I (b) After making;a determination pursuant to paragraph (a) of..this" -
section,.the requirements specified in.SS 62.21(c) and 62.22 of this part,-
]
must be followed.
S 62.25 Criteria for a Commission determination.
(a) In making the determination-required by S 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.
J (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 S 62.13 of this part:
(1) The nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of--
(i) The standards for radiation protection contained in Part 20 of this Chapter-61 1
a- ,
'(ii)- Any'stendards governing the; release of radioactive materiel's.to ,
'i the general environment that are applicable to the facility that gener-ated the low level waste; and -
-(iii)' Any other Commission requirements,specifically applicable to the _ facility or activity.that is the subject of.the emergency. access request; and:
'(2)- 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.
l (c) For purposes of granting temporary emergency access under S 62.23 of this part, the Commission will consider the criteria contained in the Commission's Polic3' Statement (45 FR 10950, February 24, 1977) for a
' determining whether an event at a facility.or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974.
(d) In making the determ'ination 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 S 62.13 of this part (1) whether the activity generating the wastes.is necessary l
to the protection of the common defense and security, and (2) whether the lack of access to a disposal site would result in a significant-disruption in that attivity that would seriously threaten the common i 1
defense and security. The Commission will consider the views of the Department of Defense (D0D) and the Department of Energy (DOE) in the Statement of Support as submitted-by the person requesting emergency 2 access, in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security.
62 l
l c .(e) In making the. determination required by.S 62.21(a)(2) of this-part, the Commission will consider whethe'r.the person submi.tting.the request _(1) has identified and evaluated any alternative.that could.
mitigate the need for emergency. access; and^(2) has considered all' pertinent factors,in its evaluation of. alternatives including. state-of-l the-art technology and impacts on public health and: safety.
l.
(i) .In making the determination required by S 62.21(a)(2) of this-part, the Commission will consider implementation of an' alternative to be unreasonable if (1) it" adversely affects public-health and safety,?the environment, or the common defense and security; or (2),it results in a significant curtailment or cessation of essential-services ~, affecting public health and safety or the common defense and security;.or (3) it is beyond the technical and economic capabilities of the person requesting emergency access; or (4) implementation of the alternative would conflict with applicable State or local or Federal laws and regulations; or (5) it l
cannot be implemented in a timely manner.
l (g) The Commission shall make an affirmative determination under S 62.21(a) of this part only if all of the alternatives that were consid-
)
i j ered are found to be unreasonable.
(h) As part of its mandated evaluation of the alternatives that were considered by the generator, the Commission shall consider the char-acteristics of the wastes (including: physical properties, chemical i properties, radioactivity, pathogenicity, infectiousness, and toxicity, l
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-t 63 u_______________ _______ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _
d r
r film evaporators'; extruders evaporators; and Compactors); the suitability of volume reductionLequipment to' the circumstances .(specific activity considerations, actual volumeLreduction factors, generation'of secondary wastes, equipment' contamination, effluent releases, worker exposure, and equipment' availability); and the administrative controis which could be ;
applied, in making,a determination whether waste to be delivered for dis-posal under this:part has been reduced in volume to the maximum extent I l.
practicable using_'available technology..
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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 SS 62.21, 62.23, or'62.24 of this part. .
(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 (2) The disposal facility is in excess of its. approved capacity; or i d
(3) Granting emergency access would delay the closing of the l disposal facility pursuant to plans established before the receipt of the request for emergency access; or (4) The volume of wa'ste requiring emergency access exceeds 20 percent of the total volum'e of low-level radioactive waste accepted for l disposal at the facility during the previous calendar year. !
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_ _ _ _ - - _ . - - - - - - - - - - a_-----___-,,_- - _ _ _ . _ _ - _ _ _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ _
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(c) If after applying the exclusionary criteria in paragraph (b) of this-section,'more.than one dispo' sal facility-is identified as appro-priate for designation, the Commission will then consider additional factors in designating a facility or.facilitiesiincluding--
(1) . Type of waste and-its characteristics, (2) Previous disposal practices, (3) Transportation, I
-(4) Radiological effects, J (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
~
i (7) Any other. considerations deemed appropriate.by the Commission ~. j (d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW i 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 of thi's part.
Subpart D--Termination of Emergency Access S 62.31 Termination of emergency access. -
l (a) The Commission may terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
65
-mm .._---_-______________-____--.-__.-._m-_m_____.___.-
(b) The Commission may terminate a grant of emergency access if an applicant has provided inaccurate information in its application for emergency access or if the applicant has failed to comply with this part or any conditions set by the Commission pursuant to-this part.
Dated at Rockville, MD, this day of , 1988.
1 For the Nuclear Regulatory Commission.
1 Samuel J. Chilk, Secretary of the Commission.
l 66 l _ ____ ____-___ ______- -
Part' 62 Cbmment Analysis i desponses to Individual Comments:
1 . Comment Letter #1' -- W. Clough Toppas, Dept. of Human Services, Maine Comment 1.1
- 1. The premise for granting emergency access is sound and takes into account a variety of factors to include some initial oversight actions.
We.are not in opposition to the proposal.
~
RESPONSE: No response necessary.
Comment 1.2
- 2. The proposed rules (e.g., 662.26) should include a small subsection stating "...the designation of a disposal facility pursuant to 962.21 shall not preclude the implementation of any specific conditions, regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the time of the Comission's deter-mination to grant emergency access..."
1 RESPONSE: The Commission believes that Congress intended emergency ;
access only to be granted for waste which would routinely qualify for I 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 a site will be suitably matched to the LLW granted emergency access, NRC included a provision in the j proposed rule which states that'a LLW disposal site will be excluded from consideration to receive emergency access waste if the waste does not meet the criteria established by the license for the facility
[62.26(b)(1)]. The license incorporates the regulations and i
I i
I
2 requirements that affect each'particular facility. Taken with the other information in 62.26 which the NRC will consider before designating a site, the Comission .
believes Section 62.26 as proposed' adequately addresses the NRC'S
-responsibility to designate a site which does not preclude "the implementation of any. specific regulations, and requirements at the designated disposal facilities."
The comment also lists " fees, taxes and conditions" as items which NRC should consider in designating a site. The Commission does not agree that such information can or should be used by NRC in making its site-designation decision. The Commission recogn'J the importance of-conditions to ensure implementation of emer: .cy access decisions once they are made by the Commission and has responded to that part of his-comn.ent by adding a new Section VIII to the Supplementary Infonnation portion of the final rule. " Terms and Conditions for Emergency Access Disposal." The new Section sets out the responsibilities of the generator and the disposal facility operator once emergency access has l been approved, including the fees, taxes,.etc. (See also responses to Comments 5.5, 8.4 and 9.1.)
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3 j B.2 Comment Letter #2 -- Sally. Dicmas, " Concerned About Ra'd iation in the Environment," (Citizens Group)
Comment 2.1
- 1. Comercial waste only shall be eligible for state and compact LLRW dumps. Federal waste (DOE) shall be prohibited.
In developing the proposed rule,.NRC assumed that only those
RESPONSE
]
LLW's designated by Section 3(a)(1) of.the Act to be the disposal' j
)
responsibility of the States, would be el'igible for disposal pursuant to the emergency access provision.- UnderSection3(a)(1)(A),theStates 3 j
are assigned the responsibility for disposint " commercially generated LLW, and under Section 3(a)(1)(B) they are igned the responsibility for disposing of "LLW generated by the Federal government except that )
which is owned or generated by DOE, by the Navy as a result of decommis-sioning of vessels, or as a result of any research, development, testing or production of any atomic weapons." Since LLW generated by the Federal government that does not fall into the above categories is eligible for disposal at the State / Compact LLW disposal facilities, those same Federally generated LLWs are also eligible for emergency access. To clarify the NRC's intent regarding the scope of wastes which will qualify for emergency access, HRC has added Section 62.1 (c) to the i
" Purpose and Scope." The new provision states that "The regulations in this part apply only to the LLW's that the States have the responsibility to dispose of pursuant to Section 3(1)(a) of the Act."
For further elaboration on this subject, see the responses to Comments 2.2, 5.6, and 14.2. I Comment 2.2
- 2. No Greater-than-Class-C waste shall be forced upon these commercial j dumps since this is not part of their design criteria.
RESPONSE: NRC developed the proposed rule assuming that emergency access can only be granted to those LLW's for which the States have
4 routine LLW disposal responsibility under the Act. Section3(a)(1)(A) of the Act makes the States responsible for providing disposal only for those LLW's in classes A, B, and C. Thus, greater-than-Class-C wastes are not considered by NRC to be eligible for emergency access disposal.
To help clarify this point, NRC has added an explanation of the scope of the LLW eligible for emergency access to Section 62.1 of the rule. (See also discussion in the responses to Comments 2.1 and 5.6.)
Comment 2.3 ,
- 3. If States choose to " store" rather than to affect to " dispose" of waste, (
the NRC shall not force waste to go to those sites. f l- !
l RESPONSE: Section 6 of the Act sets out b .nandute for emergency access decisions, and provides only that "the Nuclear Regulatory i Commission may grant emergency access to any regional disposal facility or non-Federal disposal facility..." (emphasis added). The Act defines
" disposal" as "the permanent isolation of low-level radioactive l
l waste..." Thus, by law, emergency access can only be granted to i facilities designated to provide " permanent isolation" of low-level radioactive waste. Facilities developed by States to store LLW would not, by definition, qualify and would automatically be precluded from consideration by NRC as sites to receive emergency access wastes. For purposes of clarification, NRC has added the Act's definition of ]
disposal to the Definitions Section in the final rule. (See also the I responses to Comments 3.3, 8.5, and 10.6.)
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5 B.3 Comment Letter I3 - . Shirley & Lloyd Gilbert, Citizens; Fresno, . -;
California. j 1
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Comment 3.1 i 1., Since state and compact dumps are being developed'for commercial waste,. -
this is the only type of waste-that should be eligible for Emergency 1 Access. The rule should clearly pronibit federal waste, example ~- waste from the Departments of Energy or Defense.
RESPONSE: See responses to Comen'ts '2.1 and 5.6.
Comment 3.2
- 2. Since state and compact ' low-level' dumps are not required to accept i Greater-than-Class-C waste, the regulations should explicitly prohibit NRC from forcing Greater-than-Citti-C waste on'any state or compact dump. 'The rule should make clear that if state or. compact dumps have other restrictions such as' prohibitions on wastes that are hazardous longer than 100 years or on Class B and C waste, NRC will respect those criteria. ,
RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 3.3
- 3. If states choose to store, rather than pretend to ' dispose' of waste, j I
NRC should never force waste to go to those sites.
1 l
l RESPONSE:- (See responses to Coments 2.3, 8.5, and 10.6) l I
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B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Commission a
s a
. Comment 4.1 Page 47580 of the Federal Ragtster Notice states that the Nuclear Regulatory Commission's (NRC) apwoach 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 L to, or discussion of,'Section 6(f) of the Act, which addresses reciprocal l 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 i< Ach the emergency access waste was generated. It further provides .at the regional compact'or state that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
While the NRC may not wish to be involved .in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extracted from the compact region or state in which the emergency access waste was generated before any determination for granting emergency access is mdde. This acknowledgement should be required as part of the contents of a request-for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledge- .
ment could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the compact commission.
, )
RESPONSE: NRC recognizes that the commitmc e to reciprocal access is an integral part of the emergency access process. However, NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believe that assuring reciprocal access is beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. Under certain circumstances, requiring a promise of reciprocal access as a condition i
I
a s .
l 1 7' j i
1 for re"iewing a request for emergency ~ access, could interfere with
' action necessary for'NRC to carryout that mandate.
1 NRC believes that arranging for reciprocal access in. response to. grants of emergency access'.is.the responsibility. of the States and Compacts l
involved and'is' unrelated to the' Commission'.s responsibility to protect .
the public health and safety. NRC also believes- that appropriate arrangements should be. agreed to as part of the' approval process specified under Section'6(g). of the Act. ' The NRC. continues to believe that an enforcement role regarding reciprocal access' is'. inappropriate.
for ' the Agency. '
As noted above, Section 6(f)' entitles any Compact or State that provides' emergency access to a disposal facility within its borders, to ~)
~
reciprocal access to any subsequently operating disposal facility that
' serves the State or compact region in which.'the LLW granted emergency access was generated. The Comnission anticipates that.any Compact or State that provides emergency access would'take action to enforce this statutory right if-the State or Compact in which the emergency access waste was -generated does not accept an equal volume.
of LLW having.similiar characteristes at some future date. . (See also responses to comments to 4.2,4.3,4.4,4.5,5.4,and17.14) I Comment 4.2 i Before granting emergency access, the NRC should determine whether or not ]
L there would be any limitations (e.g., timing, license restrictions, etc.) on I 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. !
L RESPONSE: As stated in tne response to Comment 4.1, NRC will not be !
involved in brokering reciprocal access arrangements, as would be required if NRC were to carry out the determination requested by this comment. (SeeComment4.1) i 1
Comment 4.3 Before designating a disposal facility, the NRC also should determine if the regional compact or state that would receive the emergency access waste has an equal volume of reciprocal access waste with similar characteristics.
This specific determination should be added to the Section 62.26(c) criteria.
RESPONSE: (See responses to Coments 4.1 and 4.2) j l
Comment 4.4 Finally, the NRC should be aware of any potential liability obstacles before making final decisions. It is possible that differing liability requirements among compacts or states could affect receipt of emergency access or reciprocal access waste.
RESPONSE: Section 6(h) of the Act places certain limitations on the designation of a facility to receive emergency access waste. In j addition, the Comission has specified other designation criteria in j proposed 10 CFR 60.26, including "any other considerations deemed l appropriate by the Commission." The Comission believes that these cover the primary considerations of concern, and therefore, has not specified " potential liability obstacles" in the rule as a factor in l making emergency access decisions. However, any potential liability obstacle that might affect the Commission's emergency access l decision-making on a particular request could be brought to the l Commission's attention through the public comment process on a specific request.
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.
9 .,
RESPONSE: -(See responses'to Comments 4.1 and 4.2)-
Comment'4.6 Because the NRC has already indicated,"on p. 47583, that it will attempt to distribute. emergency access waste as equitably as possible,'a criterion related to past acceptance of such waste should be included in Section -
62.26(c). The criterior would require the Commis, ion to consider, "The volume and characteristics of emergency access waste previously accepted."
l RESPONSE: In the proposed rule, NRC intended that the volume and characteristics of emergency access waste previously accepted by each disposal facility would be considered in the process of designating a site. This is evidenced _by language in the " Designation of Site" discussion in the supplementary information for the proposed rule which states that "NRC will consider how much waste has been designated for emergency access disposal to each site to'date (both for the year and overall)." NRC did not include a criterion addressing'past acceptance of emergency access waste in the actual regulatory text of the proposed rule. However, NRC agrees that the addition' of such a criterion will be useful in clarifiying the intended site designation process. In the final rule NRC has added the criterion as suggested in the comment as thenewprovisionidentifiedas62.26(c)(6). The provision identified as 62.26(c)(6) in the proposed rule has been renumbered and appears as 62.26(c)(7) in the final rule.
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B.5 Comment Letter #5 -- Terry Lash, State of Illinois l Department of Nuclear Safety i
lI Comment 5.1 )
- 1. IDNS agrees with the NRC's determination that establishing criteria and l S
procedures by rule, in advance, is an appropriate approach. ]
Establishing procedures in advance of a request allows the NRC to I
respond quickly in the event of an imminent threat. Establishing j criteria in advance allows potential applicants to plan accordingly, and )
serves notice that the emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act. !
\
l RESPONSE: No response is necessary. The comment essentially reiterates the rationale for developing a rule for emergency access presented by i
NRC in the supplementary information.
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Comment 5.2 IDNS agrees with the statement pr: ceding the proposed rule that NRC should
... reinforce the idea that problems with LLW disposal are to be worked out j to the extent practical among the states..." The proposed rule does not, however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such agreements would be consistent with the intent of Congress and should help to I avoid any immediate and serious threat to the public health and safety or the l common defense. The rule should expressly encourage states and compacts to J enter cooperative agreements.
l RESPONSE: The NRC encourages cooperative agreements between states and compacts, in part because to the extent that cooperative agreements are reached, 10 CFR Part 62 may not have to be used. However, the i
Commission does not believe it would be appropriate for NRC to expressly encourage States and Compacts to enter into cooperative agreements for emergency access in the regulatory text of Part 62. While Congress clearly desires that the States / Compacts should be able to resolve 1
y 11: ,
problems associated with LLW disposal access through cooperative :)
agreements (or " voluntary agreements." 'as they are referred .to in the Act) Congress.didnotdirectNRCtopromotesuchagreementsbetween States ar Compacts any more than the other alternatives to emergency:
access. Further, including such express ' encouragement would be outside the scope of the rule, that is, to establish the process and criteria .!
that NRC will use to make decisions regarding requests' for emergency access. The Comission believes the proposed rule which includes; a 3 1
discussion in the supplementary information on States responsibility
]
under ." Legislative ~ History," and provision 62.13(b)(3) " obtaining-l access to a disposal. facility by voluntary agreement" has addressed this f
concern appropriately and adequately. As a result, no changes have been-made to the final rule in response to this comment.
i 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 j pursuit of the development of new LLW disposal capacity." We believe this statement should be made part of the rule. Development of new LLW disposal 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 l 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: Part 62 contains only the criteria and procedures to be used l by the Commission in considering requests for emergency access. The Commission believes that the procedures and criteria in the proposed rule establish sufficiently stringent requirements for granting
12 l 1
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emergency access to clearly convey .that emergency access should be' ]
. viewed by .the States solely as a last resort and not as an alternative l i
to the mandated development of.new LLW disposal capacity.- j l
Comment 5.4 l 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 l . having similar characteristics'to that provided equal access."
RESPONSE: (See responses'to Comments 4.1.and-4.2)
Comment 5.5 The proposed rule does not address the issue of dispesal fees for wastes disposed of under an emergency access determination. The obligation of a State'or Compact to accept wastes gran ted emergency access should be con-ditioned upon the applicant's payment of disposal fees and surcharges as applicable.
RESPONSE: NRC believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as any l additional fees or surcharges specifically applicable to emergency I access waste under the provisions of the Act. A new Section VIII -
" Terms and Conditions for Emergency Access Disposal" has been added to I the Supplementary Information portion of the final rule that addresses such obligations. (Also see the responses for Conrnents 1.2., 8.4, and :l 9.1).
l Comment 5.6 562.2 The definition of Low-Level Radioactive Waste is incorrect. For purposes of emergency access to non-federal and regional disposal facilities, the definition should be limited to that subclass of low-level radioactive !
.13 waste for which states have been given responsibility under 42 USC 2021(c).
The' definition should read: l
" Low-Level Radioactive Waste " (LLW) means A) radioactive waste, other than radioactive _ waste generated by the federal government, that-consists of or contains class A, B, or C radioactive waste as defined by section 61.55 of Title 10, Code of Federal Regulations, as in effect on January 26, 1983, and B) radioactive waste described in A) that is generated by the federal government, unless'such waste is 1) owned or generated by the Department of Energy, 2) owned or_ generated by. the United States Navy as a result of decommissioning of vessels of the United States Navy, 3) owned or generated as a result of any research, development, testing, or. production of any atomic weapon, or 4) identified under the Formerly Utilized Sites Remedial Action Program.
i Under the Amendments Act, disposal of waste that is above class C, as ;
defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility of the states. The Nuclear Regulatory Commission may not, through regulation, alter this statutory limit, yet the proposed definition of low-level radioactive waste would include " radioactive material that the NRC, consistent with existing law, classifies as low-level radioactive
]
waste." IDNS objects to any attempt, whether deliberate or inadvertent, to place additional burdens on the states in contravention of express statutory limits. The proposed definition is particularly troubling in light of the Amendments Act's express prohibition on requiring any j regional facility to accept waste that is above Class C, or FUSRAP j wastes. IDNS also notes that providing disposal capacity for i naturally-occurring and accelerator-produced materials is not the states' responsibility under the Amendments Act, and that the NRC has no authority under the Atomic Energy Act to include these materials in any definition of low-level radioactive waste.
RESPONSE: The definition that appears in the proposed rule is the same definition for LLW which appears in the Act itself. Although the NRC does not agree that the definition of " low-level waste" appearing in the rule should be changed NRC does agree that the qualification, on the i
14 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 that specifies the subclass of LLW for which the states were given disposal responsibility. It is important to the States that they be assured that they have the responsibility for disposing of only.the subclass of LLW described in that Section. The States want assurance that NRC will not use the emergency access provision to require them to accept wastes for disposal, such as above Class C, and D0D or DOE LLW, which are not their responsibility pursuant to Section 3 of the Act.
NRC has provided this assurance in the final rule by citing Section 3(a)(1) in Section "62.1 - Purpose and Scope." (See also Comments 2.1, 2.2, and 14.10.)
Comment 5.7
)
Section 3(b)(1) of the Amendments Act provides that the federal government is responsible for the disposal of certain types of radioactive waste (i.e.,
above Class C) and radioactive waste generated by certain activities of the i federal government (e.g., DOE waste, defense waste). Although the three commercial disposal facilities will continue to operate, and states and compacts are required to establish new disposal capacity, there is no provision in the Amendments Act for estriblishing new disposal facilities for waste that is a federal responsibility. In the Supplementary Information section of its Federal Register notice, the NRC states that the emergency access provision was "not intended to be used to circumvent other provisions of the Act." (52 Fed. Reg. 47579.) The implementing rule should clearly state that no request for emergency access for waste that is a federal responsibility shall ever be considered or granted. As the House Energy Committee pointed out, the NRC may grant access only for waste which is a ,
state responsibility. Language propcsed for inclusion in the Amendments Act l by the DOE that would allow emergency access for waste generated by the D0D was expressly considered and rejected by Congress. The NRC should abide by that decision and the express language of the Amendments Act in promulgating this rule.
15 RESPONSE: NRCplanstousethecriteriainSections3(a)(1)(A)and(B) of the Act to determine what wastes could be eligible for emergency access disposal. (Also see responses to Comments 2.1, 2.2, 5.6, and 14.2.)
Comment 5.8 662.2 The definition of " Temporary Emergency Access" should be changed as follows:
"' Temporary Emergency Access' means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an immediate and serious threat to the public health and safety, or the common defense and security. Such access expires 45 days after granting."
The NRC's authority to grant emergency access, whether temporary or not, is limited to those situations where such access is "necessary to eliminate an immediate threat" (42 USC 2021, emphasis added). The Amendments Act does not, as the proposed rule suggests, allow the NRC to grant emergency access to " alleviate" such a threat. " Alleviate" is not synonymous with
" eliminate." Only where the applicant can show, and the NRC can find, that the threat would be eliminated by emergency access, can the NRC grant emergency access.
RESPONSE: The definition for " temporary emergency access" which is provided by this comment is the precise language used to describe temporary emergency access in Section 6(d) of the Act. The definition in the proposed rule is the same except that it reads "necessary because of an immediate and serious threat" instead of "necessary to eliminate an immediate and serious threat." The definition has been changed in the final rule to match the language of the Act and the comment. In addition, NRC has added "and cannot be extended" to the last sentence in i the definition to convey that a grant of temporary emergency access can only be issued once per request. l I
- - - _ __-_ _ _ _ _ _ _ - _ _ _ _ _ _____ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ __ _ __ A
16 Comment 5.9 662.12 - Add a 'new subsection (c) as follows:
"(c) That the material for which emergency access is requested is
' low-level radioactive waste' as defined in this Part."
and redesignated the proposed subsection (c), and following subsections, as appropriate. This will help assure that no state will be asked to dispose of wast 1 that is not a state responsibility under the Amendments Act.
RESPONSE: A new subsection (c) has been added to 62.12 which reads
" certification that the radioactive waste for which emergency access is requested is ' low-level radioactive waste' within Section 62.1(c) of' this Part. The subsections following the new subsection (c) have been redesignated as appropriate.
1 Comment 5.10 662.12(f)(3) should be modified as follows:
"(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety, or the common defense and security."
RESPONSE: In the proposed rule, NRC used " alleviate" rather than
" eliminate," which is used in the Act. The recommended change has been made to the final rule. (See also Comment 5.8) i Comment 5.11 l 662.12 Addanew662.12(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."
RESPONSE: Adding the recommended provision would be redundant. If(1) routine LLW disposal has been denied to the generator of an LLW; (2) he is able to demonstrate to NRC that disposal at an LLW disposal site is necessary because of a serious and immediate threat to the public health and safety or the common defense and security; and (3) that the threat
1 "
17.
,cannot be mitigated by any available alternative, then emergency access is the only option available.
Comment 5.12-562.12 Amend the proposed 562.12(k) as follows and re-designate as
$62.12(1):
"(1) Where the request-is made wholly or.in part on the basis of a serious and immediate threat to'the common defense and security, certification by the Secretary of. Energy and the Secretary of Defense that the waste for which emergency access is granted is not owned or generated by the Department of ,.
Energy, owned or generated by the United States Navy as a result of any decommissioning of vessels of the United States Navy, or owned or generated 4 by the federal government as a result of any research, development, testing, or production of any atomic weapon, and that access to disposal is necessary 4 to eliminate the threat to the common defense and security." j 1
As explained in Comment #1, under the Amendments' Act it is the responsibility of the federal government, not the states, to dispose of radioactive waste generated by certain federal activities safely. IDNS holds that no state can be forced to accept responsibility-for disposing of these wastes under the emergency access provisions of the Amendments Act or through any action of a federal regulatory ag9cy. In addition to the generator's certification that the waste for which emergency access is requested meets the operational definition suggested in Comment #1 above, these additional safeguards are necessary to assure protection of states' rights in the event that the request for access is based on a claim of immediate and serious threat to the l common defense and security.
RESP 0NSE: In Section 62.12(k) of the proposed rule, NRC requires that a request for emergency access based wholly, or in significant part, on the basis of a threat to the common defense and security, should include "a statement of support from DOE or D0D certifying that access to disposal is necessary to mitigate the threat to the common defense and security." This comment reconrnends that DOE and D0D also certify that l
18 ,
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i the wastes for which emergency access is requested are not LLWs for which the Federal- Government has disposal, responsibility under Section i i
3(a)(1)(A) and (B) of the Act. NRC has modified "Section 62.1 - Purpose.
j and Scope" of the final rule preamble to clarify that only LLW which is l the disposal responsibility of the States is eligible for emergency ,
access consideration. With this change in the final rule, NRC believes l the objective of the change recommended in this coment has been accommodated. (See also responses to comments 2.1, 2.2, and 5.6.)
l Coment ' 5.13 Modify $62.13(c)(6)asfc110ws:
"(6) Any legal impediments to implementation of each alternative l including wl: ether the alternatives will comply with applicable NRC requirements, and the requirements of the Compact Commission and the l f
State where access was considered."
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It should be made clear from the application for emergency access whether l denial of access was based on failure to comply with applicable standards.
NRC should not grant emergency access when the emergency was brought about by the applicant's own failure to comply with regulatory standards.
I RESPONSE: Through all of its regulatory decisions, NRC's principal mandate is to protect the public health and safety. Under the Act, NRC is to grant emergency access to LLW disposal facilities if a requestor demonstrates that the loss of disposal has created a ' serious and l immediate threat to the public health and safety or the common defense and security, which cannot be mitigated by any available alternative.
If NRC concludes that such circumstances indeed exist, the Comission
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must first take the actions provided under the Act which are necessary to eliminate the threat - that is - issue a grant of emergency access. ;
If it turns out that the generator has not complied with appropriate ]
standards, NRC, or the appropriate authority, can issue whatever sanctions are indicated once the threat has been eliminated.
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19 -l Comment 5.14 l Modify 962.13(d) to read:
"The request must include clear and convincing evidence.that the ;
applicant has exhausted all other options for managing its wastes and j 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 l does not include the provision in the statement preceding the rule that,
" applicants for emergency access will have to provide clear and convincing evidence that they have exhausted all other options for managing their wastes." This language is appropriate and should be incorporated into the rule.
RESPONSE: NRC agrees and has been made the appropriate change in the final rule.
Coment 5.15 562.14 Add a new 562.14(c) as follows:
l "(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 tc Comment 5.11.)
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Comment 5.16 562.18 Replace " mal" 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. IPNS recommends that "may" be changed to "shall." If the
'20 Comission cannot make an informed 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 Commissicn'to reach its decision. The recommended change was not made to the final rule.
Comment 5.17 162.21(a) should be modified as follows:
l "(a) Not later than forty-five (45) days after the receipt of a request for a Commission determination under this Part from any generator of low-level radioactive waste, or any Governor on behalf of any generator or generators located in his or her state, the Commission shall make a
. determination whether--
(1) The request for emergency access to a regional disposal facility or a facility within'a state that is not a member of a compact, for specific low-level radioactive waste is based on an immediate and j serious threat to:
l (1) the public health and safety, or (ii) the common defense and security; (2) The threat cannot be mitipted by any alternative consistent with the public health and safety, it.cluding those identified in 562.13, (3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access ir, requested is low-level radioactive waste as defined in this Part and a State responsibility under Section (3)(a)(1) of the low-Level Radioactive Waste Policy Amendments Act of 1985.
21 RESPONSE: This comment recommends a few changes to the language and a few additions to the procedures for making a determination for granting emergency access ander Section 62.21. The Act very precisely sets out the process to be followed for making a determination and NRC developed the proposed rule to incorporate that language. NRC decided to incorporate a part of one of the changes recommended in this comment but rejected the others because they departed from the process Congress set out in the Act.
- (1) Section 62.21(a) of the proposed rule specifies, "the Commission shall make a determination that..."
- The comment recommends ", the Commission shall make a determination whether.. ."
- Neither of these precisely duplicates the language of the directiveinSection6(c)(1)oftheAct,soNRCadoptedthe precise wording in the Act. Section 62.21(a) of the final now reads ", the Commission shall determine whether..."
Other changes proposed in the Comment include 4
(2) Replacing " Emergency access to a regional disposal facility or a l non-Federal disposal facility within a State that is nct a member )'
of a Compact for specific low-level radioactive waste is necessary because of an immediate and serious threat..." with ...
"The request for emergency access to a regional disposal facility or a facility l within a State that is not a member of a Compact, for specific low-level radioactive waste is based on an immediate and ser uft I
threat to:," (differences are underlined for emphasis)
(3) The addition of items 3 and 4, neither of which are part of the Act where the determination for granting emergency access is discussed.
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NRC did not make either of the changes discussed under (2) and (3) above ]
because they do not track the language of the Act and serve to alter thel meaning we believe was intended by Congres's.
1 Comment 5.19 662. >2 Add a new 962.22(d) as-follows:
"(d) Any grant, denial, or refusal to. consider a request for emergency access or temporary emergency access under this Part is a final agency action."
If the request is indeed based on an immediate-threat, and the decision is challenged, then prompt judicial review is necessary to resolve the issue.-
Clarifying that a grant or refusal is~ a final agency action may remove potential obstacles to obtaining prompt judicial review.
I RESPONSE: A Commission determination under 10 CFR 62.21 would be a~ j I
final agency action within the meaning of Section 10 of the Administrative Procedure Act, 5 U.S.C. 704, and no special statement to- ,
that effect is necessary. )
Comment 5.20 662.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under the circumstances," in this subsection.
Subsection (e)(1) provides that the Commission, in making an emergency access q determination, will consider whether the applicant "[h]as demonstrated that a good faith effort was made to identify and evaluate alternatives that would mitigate the need for emergency access." IDNS submits that subjective good faith should not be sufficient. The effort must be objectively reasonable i and diligent.
i RESPONSE: NRC agrees that the phrase " good faith effort" does not convey the same meaning as " diligent effort". NRC has changed 62.25(e)(1) in the final to read "(1) has identified and evaluated any I
23 alternatives that could mitigate the need for emergency access." NRC believes this is an improvement over the original language and is consistent with the precise language in the Act regarding the requestor's responsibilities towards identifying alternatives.
Coment 5.21 A new $62.26(b) should be added as follows:
(b) If the Commission designates a regional disposal facility to receive the waste for which emergency. access has been granted, the Commission shall request the approval of the Compact Comission for the designated regional facility. The request for approval shall include the entire administrative record of the request for emergency access i under this Part, including the reasons for the Commission's findings..
No grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Commission.
Section 6(g) of the Amendments Act provides that: i "any grant of access under this Section shall be submitted to the t l
Compact Commission for the region in which the designated disposal ;
facility is located for such approval as may be required under the terms of its compact."
This requirement of the Amendments Act has not been incorporated in the rule.
'While the effect of a refusal by the Compact Commission to allow emergency access is not clear, the NRC may not, by rule, remove this option from the Compacts. IDNS also notes that this option applies only to regional disposal facilities, and that the Amendments Act makes no similar provision for non-federal, non-regional' facilities.
I RESPONSE: This comment correctly states that NRC did not reflect the Section 6(g) provision in the proposed rule. Section6(g)oftheAct.
does require the NRC to notify the Compact Commission for the region in i
1 24 :i l
J 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."
Section 6(g) also requires that the Compact Comission "shall act to . ;
approve emergency. access not later than fifteen days after receiving notification" from NRC. .I Based on the legislative history for both Section 6 of the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact Act which was
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passed with the Act, NRC believes that disapproval is not really an l option for.the Regional Compact Comission in which the designated
' emergency access disposal facility would be located. It is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Comission with a veto over the NRC's grant of emergency access. The basic purpose of the Section 6 emergency 1 access provision is ta ensure that sites that would nonna11y be closed under the Act will be available in emergency situations. .A Compact Comission veto would frustrate the purpose of the emergency access.
provision and would be generally contrary to the legislative framework j established in the Act. As emphasized in the House Comittee 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 J authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void. (H.R. RFP. No.
, 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985). This position was explained under the discussion of Legislative History in the supplementary information to the proposed rule and is retained in the final.
While disapproval may not be an option under the Act, clearly the Act intended the receiving Compact Commission to be fully informed regarding I
the emergency access decision made by NRC and the Comission believed the Notification procedures under 62.22 of the proposed rule provided the Compact Comission of the designated disposal facility with information consistent with the specifications in the Act. Section 1
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'62.22 of the proposed rule provides that NRC will notify-the Compact Commission of the State in which the designated disposal facility.is. {
located that emergency' access is required; It further provides that "the notifications must set forth the reasons that emergency access was ,
1 granted and specifically describe the low-level' radioactive waste as to
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source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to the'public health and safety or the.
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common defense and ' security." l In response to this comment NRC has made'the following change'in the- I final' rule: New language has been added to 62.22(b)"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.
Comment 5.22 .
562.27 Add a new 562.27, as follows:
"662.27 Compliance with conditions of emergency access; termination of emergency access. I i
(a) The operator of a regional disposal facility or a non-federal I disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part. ,
(b) The Commission shall terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
(c) The Commission may terminate a grant of emergency access if an applicant has made a material false statement in the application for l
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26 -l 1
' emergency access or if the applicant has failed to comply.with this part- 1 l
or conditions set by the Commission pursuant to this Part." i The proposed rule does not address termination of emergency access. Further-i 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 l rpplicant or the wastes did not meet the conditions of disposal set by the Commission.
I RESPONSE: The Commission agrees that terms and conditions should be established in the final rule for termination of grants of emergency ,
access. NRC has added a new Subpart D " Termination of Emergency Access" to the final rule which incorporates some of the suggested conditions for termination as recommended in this comment.
Comment 5.23 Miscellaneous Comments and Questions
$62.6 Specific Exemptions The provisions of this section would allow the Commission to bypass all of the procedures of the emergency access rule by granting special exemptions.
Why is this section necessary? Under what circumstances would NRC grant special exemptions. What assurances do states and compacts have that this exception will not, in practice, become the rule? This provisions should be deleted.
I RESPONSE: Provision 62.5 is not intended to allow NRC to arbitrarily bypass the procedures that will be established by the emergency access rule. It is impossible for the Comission to anticipate every situation under which emergency access may be requested or needed. The Commission )
believes the procedures and criteria established in the proposed rule would accommodate most circumstances and scenarios. However, in the event that something unanticipated requires action, the Comission may have to apply its discretion and grant an exemption. Under Section 62.5 the Comission must determine, among other things, that the exemption "will not endanger life or property or the common defense and security" l
27 before an exemption can be granted. The text.of Provision'62.5 remains unchanged in the final rule.
Coment 5.24 662.11 Filing and Distribution of Determination Request It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Commission's Public Document Room and in the " Local Public Document Room of the facility sub-mitting.the request." A request for. emergency access could be submitted by
- any Governor or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public -
document rooms? .
RESPONSE: There is no requirement that a given generator or Governor I
maintain a local public document room for documents relating to 1 emergency access requests. The reference in 62.11 is to the " local public document rooms" (LPDR's) established by the NRC to maintain documents of public interest for some of the facilities licensed by the NRC. Reference to the LPDR's was included in Provision 62.11 of the proposed rule in order to assure that if. documents relating to emergency access decisions could be made available to concerned members of the public through the NRC's network of LPDR's, such action would be taken.
Since the proposed rule was published, it has been brought to the ]
l staff's attention that with the exception of power reactors, NRC does not generally establish public document rooms for the types of facilities which will be of concern under the emergency access provision. The final rule has been changed to indicate that copies of requests for emergency access will be available only from the NRC Public Document Room in Washington, D.C.
Comment 5.25 562.23 Determination of Granting Temporary Emergency Access l
28
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This section provides for the granting of. temporary emergency access to I
...an' appropriate non-federal disposal facility or. facilities..." The provisions in Section 6(d) of the Amendments Act which pertain to temporary emergency access do not distinguish between non-federal . disposal facilities and regional disposal facilities. Does the NRC propose to limit' temporary emergency access to non-federal facilities 'in order to avoid the provisions
'of S ction 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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29 B .'6 Comment Letter #6 -- Faith Young,. Tennessee Resident Comment 6.1 Only commercial wastes should be eligible.for emergency access since the dumps are developed.for that purpose.
RESPONSE: See responses to Coments 2.1, 2.2 'and 5.6.
Comment 6.2 NRC must respect state or compact dump restrictions (including no greater-than-cla'ss-Cwaste).
RESPONSE: See responses to Coments 2.1, 2.2, and 5.6.
Comment 6.3 Please register these as fim requests in your coment considerations and inform me of the outcome.
RESPONSE: Noted. No comment necessary.
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B.7 Comment Letter #7 -- Marvin Lewis - Pennsylvania Resident 4 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 a government and the NRC has less than any right to regulate when a site' will be opened up to out of compact wastes.
l RESPONSE: When Congress passed the original law called the Low Level Radioactive Waste Policy Act of 1982, it made each state responsible for ,
providing its own disposal for low-level radioactive waste (LLW) generated within its borders. State responsibility for LLW disposal was reconfirmed in 1985 when Congress passed the Low-Level Radioactive Waste ActAmendments(TheAct). In the Act, Congress also conferred certain regulatory or administrative responsibilities to both the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE). One of the responsibilities conferred to NRC was to grant 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 I access to their facilities, the public health and safety could be seriously jeopardized. NRC was given the authority to provide emergency access to assure that the public health and safety would be protected. j NRC does not intend to use grants of emergency access to interfere with j the States' operation of their_ LLW facilities except as is necessary i pursuant to its responsibilities under the Act to protect public health and safety. (See also the responses to Comments 7.5 and 9.3.) ,
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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 l picture for the particular compact. Implementation of the emergency access i i
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31 1
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 volume of LLW that is 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 l of appropriate fees, taxes, surcharges, etc.
Comment 7.3 States are also very worried about having to take D0D and DOE wastes.
RESPONSE:- See responses to Comments 2.1 and 5.6.
Comment 7.4 Also many compacts are not planning on large amounts of Class C wastes. j RESPONSE: See responses to Comments 2.2 and 5.6.
Comment 7.5 All the above and more make this rule very premature and ill-conceived.
Please retract this rule for good and abundant cause. Let the non-Federal and the Regional authorities regulate their own access. This is an area which the Federal authority and the NRC should not get into.
RESPONSE: NRC did not propose the emergency access rule without due cause. As is explained in the supplementary information for the j proposed rule NRC is required by law (Section 6 of the Act) to make ]
emergency access determinations.
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In'that sane 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 es'tablish the terms of grants of emergency-access. ~The proposed 10 CFR Part 62 serves to implement the
. requirements in the law and NRC.has tried to assure.that the rule assumes no responsibilities for the NRC which were not' mandated. (See, ]
L ' also responses to. Comments'7.1 and 9.3.)? {
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33 B.8 Comment Letter #8 -- William Gold, Lorraine Gold (citizens, New Jersey) i I
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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't 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.
1 RESPONSE: The Commission agrees and so stated.in the discussion under Legislative History in the supplementary information for the proposed rule.
Comment 8.2
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Further, only commercul 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. j RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
Comment 8.3 J Regulations should explicitly prohibit the NRC from mandating greattr that Class C waste to be sent to any state or compact dump.
I RESPONSE: See responses to Conrnents 2.1, 2.2, and 5.6. ]
1 i
l 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. 4 l
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34'
'l RESPONSE: Criteria and~ restrictions-at disposal facilities'are~to be J considered and accommodated in NRC's decision to designate a site and in. s any disposal of emergency access waste.. (See response to Comments 1.2,-
1 5.5) .
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.1 Comr "ht 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.
J RESPONSE: NRC cannot force a state to dispose of emergency access LLW at a facility designed'for storage. (See the' response to Comments 2.3, ,
3.3,and10.6).
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1 35 B.9 Coment Letter #9 -- Jon R. Montan (St. Lawrence . County . Environmental l Management Council)- 1 l
Coment 9.1 -l The recipi.ent facilityfshould be allowed to collect fees at levels-sufficient. ]
to pay full expenses associated with the long-term operation'and maintenance l
costs of. the facility for any wastes that are received'under direction by the I Nuclear Regulatory Commission.
\
l RESPONSE: The rate structure for LLW disposal charges, surcharges, and fees is provided by the Act. ;
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Comment 9.2 The' references in Section 62.25(d)(1) and .(1) to c.ctivities generating _ wastes being "necessary for the protection of the comon defense and security" are ]
t 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? l l
RESPONSE: Several staff at DOE and D0D identified some examples of activities which generate LLW that could be considered necessary for the protection of the comon defense and security. One example is found at the Navy shipyards. There is a small quantity of unclassified LLW generated during maintenance as a part of the Nuclear Propulsion j program, which would nonna11y be disposed of at comerical 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 l on commerical LLW disposal facilities. Armed forces medical facilities also produce LLW as-test sources and from calibration activities.
I Coment 9.3 The Council members also wt.nted to express their concern that the states in which recipient facilities are located which could ultimately receive E_--_--____------_--_------- i
i 36' emergency low-level' wastes do not have any control over whether or not to accept such vastes. The decisions rest entirely with.the Nuclear Regulatory Commission.
RESPONSE: NRC does have the authority under the Act to provide emergency access but only when lack of access to disposal has created, or will create, a. serious and immediatel threat to the public health and safety. or the common . defense and security'which cannot be mitigated by any available alternatives. As indicated in the discussions in the supplementary information for the proposed rule, Congress expected that-responsible action by the generators and the States / Compacts should result in the resolution of most access problems without having to resort to the emergency access process. . (See also responses to Connents -
7.1and7.5) l 1
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37 B.10 Comment Letter #10 -- Anne Rabe, Executive Director NewYork I Environmental Institute (Lobby Group)
Comment 10.1 We are writing in regard to 10 CFR 62, 52FR240:47578 on the proposed rule by i NRC to force compact and state " low-level" radioactive waste dumps to accept out-of-state and federal nuclear waste in " emergency" situations. ]
1 RESPONSE: See the responses to Comments 7.1 and 9.3.
Comment 10.2 New York State law (the Low-Level Radioactive Waste Management Act of 1985) specifically prdibits federal wastes, such as Department of Energy wastes, et any New York State " low-level" radioactive waste facility. There are a number of DOE FUSRAP sites, with long-lived high-level waste, in New York which currently are being cleaned up or temporarily stored. We are aware that DOE has approached New York requesting access to its " low-level" radio-l active waste facility for certain DOE wastes (such as U-238 and U-235 at the l former NL Industries plant in Colonie, N.Y.). The State Dept. of Environ-mental Conservation disapproved this request and the subsequent law upheld the state's policy to exempt any federal wastes. Therefore, we totally oppose the proposed rule to accept federal wastes.
RESPONSE: None necessary.
l Comment 10.3 To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste Policy Act which supports compacting and state's rights. The NRC is directly threatening the state's authority to exclude wastes.
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38 RESPONSE: As indicated in the Supplementary Information for the proposed rule, the Act directs NRC to designate LLW disposal facilities to receive emergency access waste. (See responses to 7.1, 7.5, and 9.3)
Comment 10.4 For states to accept federal wastes will in many cases cause the state's management of facilities (in terms of storage / disposal capacity, etc.) to be radically changed. How will states / compacts be able to adequately plan and
'l manage their facilities with the threat of NRC emergency declarations forcing substantial amounts of waste on.them at anytime?
At the very least, the NRC should change the rules' to: 1)Requirestrict adherence to state / compact requirements, including allowing only commercial wastes (not federal) up to Greater than Class C waste.
RESPONSE: See responses to Comments 2.1, 2.2, and 5.6.
k Comment 10.5 {
Other state restrictions on 100 year hazardous life, or only Class A, B or C l
wastes, must be strictly adhered to by NRC.
1 RESPONSE: See responses to Coments 2.1, 2.2, and 5.6.
Comment 10.6 l Lastly, states which choose to store rather than dispose of wastes should not be forced to accept any wastes.
RESPONSE: See responses to Comments 2.3, 3.3, and 8.5.
Comment 10.7 Also, the term " emergency" is no assurance at all - the federal government can think up many reasons to declare an emergency which do not deal with the a-_--
39-
. fact that their own inaction- to adequately store wastes and stop their pro-duction has caused the " emergency" in' the first place. States should not have~ to bail out the Federal government.
RESPONSE: NRC does not believe Congress intended the emergency access provision would serve to require States to " bail ~out the Federal government." As is explained in responses to Comments 2.1, 5.6, and 14.2,throughSection3(a)(1)oftheAct,CongressgaveStatesthe responsibility for disposal of specific classes and types of LLW. Some of that waste is' generated by the Federal government, but because that i
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 federdl government wastes.
l RESPONSE: Most of the provisions included in the proposed emergency access rule came directly from Congressional mandates in Section 6 of l the Act, so the requirements for NRC to make emergency access determinations would remain even if NRC were to withdraw the rule. As far as establishing a comprehensive storage and reduction of production program for federal wastes is concerned, such programs and related decisions are not among NRC's responsibilities.
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.40 B.11' Comment Letter #11 -- David Woodbury, President, American College' of Nuclear Physicians R Comment 11.1 We 'are' writing on behalf of the' American College of Nuclear Physicians and the tociety. of Nuclear Medicine regarding the NRC'.s. proposed rule to estab -
lish procedures and criteria for granting emergency access to non-Federal and regional low-level' waste disposal facilities. The Society represents over 11,000 physicians, physicists, radiochemist, radiopharmacists and technol-ogists: dedicated.to the overall, advancement of_ Nuclear Medicine and has major interests in the scientific, educational and research activities affecting the field. The College is a professional organization representing over i 1,200 physicians whose primary activity is the practice of Nuclear Medicine.
Many of our members have had significant involvement in the formation of j compacts and siting of disposal areas following the passage of the Low-Level-Radioactive Waste Policy Act Amendments of 1985 (LLRWPAA).
1 During congressional deliberations on the LLRWPAA, the College and Society testified on several occasions in support of the emergency access provisions for generators of biomedical waste to LLW-disposal facilities. .Because access to disposal facilities is critical for the delivery of health care services, we strongly supported the enacted emergency access provisions ;
allowing generators or State Governors to appeal to the NRC when denial of l 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 l 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 l prescription 6 rugs in America are developed with the use of radioactive I
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41 tracers . It is clear, then, that radioactive materials permeate every aspect of medical practice.
RESPONSE: No response necessary.
Comment 11.2 Disposel capacity for LLW generated by the manufacturers of radiopharmaceuti-cals is just as important,1f not more, than disposal capacity for direct generators of medical LLW (i.e., hospitals, laboratories). We would urge the Commission to consider that on-site storage, while a feasible alternative in some situations, may create problems for others. For example, today, most hospital and laboratory waste is subject to volume reduction and on-site storage and decay, as is evidenced by the fact that in 1986, medical waste accounted for only 1.3% of the total volume of LLRW received at disposal sites (and only .0001% of the total activity). Unfortunately, however, in the case of lost access, the manufacturers of radiopharmaceuticals on which the Nuclear Medicine community depends would not be able to accommodate on-site storage because their higher-activity materials would conceivably exceed available on-site storage capacity within one to six months.
In addition, we would like to draw your attention to the fact that on-site storage may not be feasible or desirable for larger volume and activity generators in academic research institutions and pharmaceutical houses because of the possession limits specified in the generators' licenses. For 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 l less radioactive materials available for important research or pharmaceutical development. Not only is there a public safety question concerning on-site storage of this waste, but if radiophannaceutical manufacture was to cease j due to failure to find a viable solution to the waste problem, all of the l I
medical activities using these materials would cease or be significantly l curtailed.
l i l l RESPONSE: In the legislative history of the Act, Congress acknowledged the special LLW storage / disposal problems of the manufacturers of 1
i 42 i
radiopharmaceuticals. . The proposed and expressed concern that. essential j medical services might be curtailed if access to LLW disposal were not available. NRC is aware of these' Congressional concerns. As indicated in the proposed rule, in order to determine if emergency access should j be granted, NRC intends to consider both' the threat-to the public health ]
and safety if access is denied and also the impact on'public health and safety if essential medical services, including the production of radiopharmeceuticals, would have to cease as an alternative to granting-emergency access.- )
i Comment 11.3 The College and Society raise these fine points on possession limits and on-site storage so that the NRC recognizes the delicate balance between the medical community's ability to provide necessary health care scrvices and the )
availability of adequate' LLRW disposal capacity. l RESPONSE: Noted.
l Comment 11.4 We agree with the Commission and the Congress that emergency access sh'ould not be used as an alternative-to diligently pursuing the compacting and-siting processes mandated by the LLRWPAA. We also agree with the NRC.that l emergency access provisions are necessary as a contingency in the event that l access is denied or is unavailable, so that important health care services- l and research can continue uninterrupted, i RESPONSE: No response necessary.
Comment 11.5 i
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
43 radiopharmaceutical manufacturers and the necessity of access to disposal for the provision of vital medical care services in this country. Please feel free to consult with us if you require further information or assistance.
RESPONSE: Noted.
1 i
1 l,
'l
44-4 0-lB.12' Comment Letter 112 -- Kathy Lyons,: Concerned Citizen, New Hampshire
' Comment 12.1' I wish to comment on the' Low-Level Radioactive Waste. Policy Act in which NRC hasythe r ght to force unwanted ~ waste on state dumps. .
RESPONSE:.~None necessary.-
- Comment 12.2
~
Please, in doing so consider this: lDo'nct give us federal waste (D0D or DOE), <
RESPONSE See response to Comnent 2.1.
I Comment 12.3
...and do not give us waste outside of our Class, that's not acting L
responsibly.
RESPONSE: Sde response to Consnent 2.2. l l
Comment 12.4 l
Also, please keep in mind that state dump:: couldn't handle waste-with long half lives and that some states may not have compatible wastes dump practices.
RESPONSE: NRC cannot force a state LLW disposal facility to accept LLW that is incompatible with its license agreement. (See responses to 4 consnents 7.1,7.2,7.5,9.3)
l 45-i l 8.13 Comment Letter #13 -- E. Nemethy, Secretary, Ecology. Alert.
Coment 13.1.
l .
L Although the low-Level Radioactive Waste Policy Amendments ~Act of 1985 l doesn't require NRC to develep a rule, we agree your doing so is 'an excellent idea. !
1 But we feel the proposed rule could~ stand a bit'of tightening.
RESPONSE: None needed.
Comment 13.2 Section 62.6 - We question the need and advisability'of making any Specific
' Exemptions. It seems to us this lends itself to the granting of too much leeway by NRC - and possible abuse.
RESPONSE: (See response to Comment 5.23)
Coment 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 j l
l ridiculous. )
Probably not one in 20,000 members of the general public ever sees the Federal Register. If you want to notify them, you should publish such notice 'i 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.
i l RESPONSE: NRC recognizes that a 10-day public comment period is short.
The Act provides NRC only 45 days to review a request and detormine if emergency access should be granted. In addition, the Act does not require NRC. to provide a comment period on requests for emergency I
access. Nevertheless, the Comission believes that the public should be l
l t
i
1 46 ]
notified when emergency access is requested and should have some l opportunity for input into NRC's decisionmaking process. The Comission decided that a 10-day public comment period would, to a limited extent, j meet those objectives and still hopefully allow NRC to complete its I review in'the allotted time. The Commission concluded that a longer public comment' period would likely preclude a timely response on the j part of NRC. The rule also requires that copies of the request be sent I to the Governors of all the affected or potentially affected States, and j to the affected or potentially affected Compact Commissions. NRC believes that the majority of interested or concerned parties will be reached through these arrangements.
l Comment 13.4 Section 62.12(f)(2)(iv) - Why should infinitely long-lived transuranic be included in the category of low-level waste? !
l l
RESPONSE: The 1.LRWPAA defines LLW pursuant to 10 CFR Part 61. The l definition of LLWin Part 61 includes transuranic.
I Comment 13.5 Section 62.23 - Before granting temporary emergency access, why not allow a 10 day waiting period, so possible alternatives may be considered?
We feel this provision - as written - is wide open to abuse by sloppy operators, who may wait until a crisis situation exists, then come running to you for special emergency consideration.
RESPONSE: The sequence of events for granting temporary emergency access is established in the Act. Section 6(d) of the Act provides that l "upon determining that emergency access is necessary because of an i
immediate and serious threat to the public health and safety or the l 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
47 l
4 and safety." The Comission has interpreted this to mean that when NRC l
concludes there is an urgent need for access to disposal in order to l 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 ,
1 45 days, while possible alternatives to disposal.are evaluated.
However, the Commission has the discretion to deny a request for temporary emergency access if any alternative for mitigating the threat in a timely manner is available, including the discontinuance of the production of the 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).
l RESPONSE: The typographical error noted in this comment has been corrected.
l Comment 13.7 Finally, under Specific request for comments, you ask what should NRC do if no site is found to be suitable for emergency access?
We suggest you then require the operator to cover the pile of low-level waste with lead shielding, topped with enough soil to stop radiation from escaping.
l Response: Noted. l l
i l _ _ _ _ _ _ _ _ _ _ _ _
i
-48 B.14 Comment Letter #14 - -Diane D'Arrigo, Nuclear Information and Resource-Service Comment 14.1.
Although the~ intent is that NRC use its Emergency' Access auth'ority only as a .,
- l last resort, the danger is present.that states could be required.to.take weste 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- 1 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 i guarantee, to the greatest possible extent, that the provision not be abused.
l
)
PESPONSE: None necessary.
1 i
i l Comment 14.2 j
- 1. Clarify that Federal waste (at least that for which states and compacts are not currently responsible) is not eligible for emergency access, l
Since state and compact dumps are being developed for commercial waste !
(and some Federal waste as defined in the 1985 Low-Level Radioactive l 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 l places in the regulation which indicate that such wastes could be given l 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 I gives a condition for " Federal and defense related generator (s) of LtW" to meet in their " request for emergency access." .
First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive officer on behalf of l
i
49 "any generator or generators of low-level radioactive waste located in his or her " State..."' Such generators could include generators that are not NRC or NRCfAgreement State licensed. We would like to see provision made to clearly prohibit DOE and D0D and other. federal agencies and.
contractors from gaining access to state and compact dumps via emergency BCCess.
Second, Section 62.13(a)(5) (which appears misprinted as 82.13 in 52
.FR240: 47587 December. 15,1987) requires that Federal'or defense related generators of LLW must first attempt.to gain access to Federal disposal
. facilities before. they are eligible for emergency access to non-federal' dumps. If non-federal disposal facilities are going to be required to
.take Federal waste then of course it makes sense to require those generators to attempt access at Federal dumps first, and'on that level this requirement is essential.
Both the definition of " person" and Section 62.13(a)(5) should clarify that only those Federally generated wastes for which states are already responsible (as defined.in the 1985 Low-Level Radioactive Waste Policy Amendments Act Section 3(a)(1)(B)) are eligible for emergency access.
This excludes Departrant of Energy waste and U.S. Navy waste from decom-missioning Navy vessels and any nuclear weapons research, development, testing or production waste. That waste should be clearly excluded from eligibility for emergency access.
RESPONSE: As discussed in responses 2.1, 2.2 and 5.6, NRC intends only to grant emergency access to LLW that would otherwise be eligible for routine disposal at regional or state disposal facilities according to the terms and conditions of the Act. NRC does not intend for emergency access to be used by ineligible 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
50 access will provide a mechanism for undesired and unplanned for wastes to access their sites. ,
1 1
To address this concern and similar ones, NRC expanded the scope of the final rule and also modified the definition of " person". The scope' of the final now includes the following language: "62.I(c). l 1
The regulations in this Part apply only to the LLW's that the l states have the responsibility to dispose of pursuant to Section 1 3(1)(a) of the Act".
1 The definition for " Person" has been revised in the final rule to read " Person" means any individual, corporation, partnership, firm, association, trust, State, public or private institution, group or agency who is an NRC or NRC Agreement State licensed generator of a I l low-level radioactive waste within the scope of Section 62.1(c) of i
this Part; any Governor (or for any " State" without a Governor, the j chief executive officer of the " State") on behalf of any l
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." (Changes have been underlined to facilitate review.)
l Comment 14.3 Arguments against leaving the regulations open to Federal waste: (1) It is l commonly known that many Department of Energy sites are well below the l national environmental standards and attempts to remedy those sites' problems )
l l could result in the generation of large volumes, concentrations, and numbers l
l 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 I
the waste that is " cleaned up." Unless non-federal facilities are planning for such responsibilities, they should not be saddled with Federal waste, as the wording of the definition of " person" in the proposed regulations in Section 62.2 would allow, l
1
- 51. 1 I
RESPONSE: See responses to. Comments'2.1, 5.6, and 14.2.-
l Comment 14.4'
'(2) Furthermore, D0D, DOE and other Federal waste is not currently ,1 classified as Class'A, B C or Greater-than-Class-C (C+), as is commercial waste. It will be difficult to determine whether Federal waste meets the ,
license criteria for any non-federal sites that use the A, B', C, C+ method 'of categorizing " low-level waste. ' Even if DOE reclassifies.its wastes as- A, B, C and C+, the source.of such waste is much different than commercial waste j and could pose technical problems which states and compacts are not j considering in their dump planning. 1 RESPONSE: See responses' to Coments' 2.1, 5.6, and 14.2.
Comment 14.5 )
A potential concern here however, is that state and compact dumps that take j '
on the extra burden of accommodating DOE waste (and this could happen because states are dissatisfied with DOE's performance at its sites.in that state or compact) will be the only non-Federal LLW disposal facilities eligible to accept such waste thus would be required to accept such waste every time NRC granted emergency access to Federal and defense related generators. We only ,
I wish to point out that such a provision could penalize states and compacts l for taking on longer-lived and more concentrated wastes.
RESPONSE: Noted. No comment necessary.
Comment 14.6 Although there are serious unresolved problems with this method' (10 CFR ]
61.55) of classifying " low-level" radioactive waste, we understand that many i states and compacts will likely follow those regulations. I f
l RESPONSE: None necessary, i
E_____-___
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. I l
RESPONSE: The supplementary information indicates that while NRC will require such certification from DOE or D0D in order to even consider a j
generator's request for emergency a:: cess on the grounds of a threat to i the common defense and security, NRC plans to consider the certifications but not to treat them as conclusive. Congress deliberately gave NRC the responsibility for making the common defense l
l and security determinations and the Comission intends to exercise this l discretion in making its emergency access decisions.
{
q I
! Comment 14.8
- 2. States' and compacts' right to refuse waste that does not meet the speci-fications they are designed and licensed to accept should be strengthened. I I
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 Coments 7.5, 9.3, and 10.1, NRC believes the mandate from Congress in this area was quite clear. NRC does not believe Congress intended NRC to grant emergency access for wastes that do not meet the design and license specifications of the LLW facilities designated to receive them. So States should not have to be too concerned about the right to refuse wastes granted emergency access by the NRC pursuant to 10 CFR Part 62.
Comment 14.9
l 53
~j i
We support the provision in Section 62.26 (as corrected in 53 FR'15:1926,.
Monday, January 25,1988) requiring the NRC to' exclude a disposal facility.
from consideration (from taking Emergency Access waste) if the waste doesn't ;
meet the' license criteria of the _ facility. The rule should make clear that i
if state or compact dumps have other, restrictions such as prohibitions on j wastes that are hazardous longer'than 100 years or en Class B and C waste, NRC wil1~ respect those criteria and not grant access to waste that does not meet those criteria.
RESPONSE: According to the Limitations set out in Section 6(h) of the Act, regulatory restrictions.on disposal at a site must be considered by
-NRC in making its site designation and as NRC has indicated in responses l 'to Comments 2.1, 2.2, 5.6 and 14.1, NRC is committed to observing those limitations.
Comment 14.10 2.A. Since state and compact " low-level" dumps are not required to accept Greater-than-Class-C waste, the regulations should explicitly prohibit NRC from accepting applications for Greater-than-Class-C waste for emergency-access.
The definition of " Low-Level Radioactive Waste" in Section 62.2 should be changed to exclude the waste (C+ and its equivalent) which is excluded from 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 f 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).)
i i
RESPONSE: See responses to Coments 2.1, 2.2, 5.6, and 14.2.
l Comment 14.11 l
54 {
'3. Incineration should not be required as a part of maximum volume reduction or waste treatment prior to NRC granting emergency access..
Compaction and supercompaction may be required and possibly other solidifica- ,
tion treatments but incineration releases radionuclides into the environment, generates radioactive ash that must then be solidified and continues the process of generating more " low-level" radioactive waste. This rule should in no way require radioactive waste. incineration.
RESPONSE: The proposed rule does not require that LLW be incinerated prior to NRC granting his waste emergency access. ' Provision (1) of the Emergency Access Section of the Act, " Volume Reduction and Surcharges" - j requires that "any low-level radioactive waste delivered for disposal ')
under this Section (emergency access) shall be reduced in volume to the )
maximum extent practicable." For the proposed rule, the Comission i decided it would be worthwhile for NRC to evaluate the extent to which volume reduction methods or techniques will be or have been applied to to the wastes since the Comission is mandated to evaluate alternatives available to the generator and volume reduction is one of those alternatives. In the preamble, NRC listed incineration as one of the treatment technologies that the Comission would evaluate to determine if the emergency access waste had been reduced in volume to an extent consistent with the directive in the Act. The preamble further explains that NRC believes the optional level of volume reduction will likely vary with the waste, the conditions under which it is stored, and whether volume reduction processing creates new wastes requiring treatment or disposal (as would be the case for incineration). NRC anticipates that decisions on adequate volume reduction will have to be made on a case-by-case basis. The Comission does not expect that one particular approach will be maximally effective in all cases, so the rule does not prescribe any particular method as a must to achieve maximal volume reduction. Rather, the Commission will be looking to see that available volume reduction techniques, including incineration, have been thoroughly investigated by the requestor as possible alternatives to requesting emergency access. Incineration may be attractive to one generator as an alternative but may pose serious difficulties for L-______-__-______
/ j ,
.55 1
another. Whatever the- decision, incineration should be' addressed and-the rationale for the decision should'be explained in the analysis of- 1 alternatives that is to be part of a' request for emergency' access..
1 Comment'14.12I J
4.. "tates and Compacts that are required to accept emergency access . waste'.
should be' permitted. to: charge . fees and ' surcharges on.; emergency access waste .
- f. and to enforce regulations and criteria that they determine are necessary for responsible isolation of the waste from the environment' and to hold' the I generators liable for long-term care'. costs.
RESPONSE: -See the responses to Comments 14.7, 5.6, 8.4, and 9.1.
1 Comment.14.13
- 5. We encourage NRC not.to weaken any of the requirements for Emergency Access applicants.
RESPONSE: Noted.
I 4
56 B.15 Comment Letter #15 -- Hannah Katz, Concerned Citizen, N.Y.
Comment 15.1 I hear that your Connission 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.
I 1
RESPONSE: The emergency access rule applies only to LLW, which'for the most part is generated by utilities with nuclear reactors, hospitals, and research facilities. Weapon grade plutonium is not considered to be l low-level radioactive waste and would not qualify for emergency access to LLW disposal facilities under the Act. Also, under Sec. 3(a)(B)(iii)
LLW owned or generated as a result of any research development, testing .
or production of any atomic weapon is deemed not to be eligible for disposal at State LLW disposal facilities.
Comment 15.2 I urge you to reconsider such interference in the rights of states and of 1
citizenry.
I RESPONSE: The NRC is not trying to interfere with the rights of states by proposing this rule. The NRC was mandated by Congress to make determinations on requests for emergency access to LLW disposal facilities in order to protect the public health and safety. The NRC's emergency access rule will only be implemented when a generator or a State requests LLW emergency access disposal assistance from the NRC.
i l
Comment 15.3 l
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 f appreciated. Thank you. ]
RESPONSE: Noted.
l 1
l
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57
- 8. 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 J Commission dated February 11, 1988.
{
Rather than reiterate the various coments 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, i l
RESPONSE: Noted.
Comment 16.2 In addition to managing the Kentucky Radiation Control Program, I also serve l as Commissioner on the Central Midwest Compact Commission. As Dr. Lash I 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 Comission, comprised of Illinois and Kentucky, is making every effort to comply with the various milestones under the Amendments Act.
i i 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.
I RESPONSE: None necessary.
58' B.'17 Comment Letter #17 -- William Dornsife, Bureau of' Radiation Protection, Pennsylvania s
Comment 17.1' 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.
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 that the States and Compacts whose generators have been denied access to LLW disposal would share in the responsibility for identifying or providing alternatives to emergency access. Asindicatedin62.13(a)of.the )
proposed rule, a request for emergency access is to include a discussion of the consideration given to any alternatives available to the 3 requestor. To NRC, this includes State / Compact options as well as those j available to the individual generator. In fact, the NRC believed that several of the alternatives listed in Section 63.13, specifically "(2) l storage of low-level radioactive waste in a licensed storage facility," !
and "(3) obtaining access to a disposal facility by voluntary !
agreement," were options that at least required State or Compact involvement or even initiation. In reviewing the comments on the ;
proposed rule, it has become evident that the NRC's expectations for the
59 States and Compacts to also exhaust'their options 'for dealing with the
problems caused by denial of access were.not' adequately conveyed. As a result,'the Commission has added clarifying language to 62.13(b). It-now reads "The request must identify all of the alternatives to i
emergency access considered.. including any that would require State and Compact action, or any others that are not specified in 62.13(a)." In addition, a discussion of the States'/ Compacts' responsibility in this area has been added to the' supplementary information.
Coment 17.3 It appears as if waste which'is not a State responsibility under the Act (i.e., DOE waste) could be included under the emergency access provisions.
We do not believe that this was the intent of-Section. 6 of the Act.' We find it hard to believe that the Federal Government, with all its infinite resources, should not be first'and only party responsible for disposal of this. waste.
RESPONSE: The discrete State and Federal responsibilities for LLW disposal have been addressed in the final rule. See responses to Comments 2.1, 2.2, 5.6, and 14.2.
Comment 17.4 The most likely scenario that may require emergency access appears to be that of a bankrupt generator where the State or Compact cannot or will not provide for disposal. Under these circumstances, it is not clear who would have the responsibility for the application, liability, volume reduction, and cost requirements.
RESPONSE: In the case where emergency access is needed for a bankrupt generator, the Governor of the State where the generator is located or the trustee in bankruptcy, would have the legal authority to pursue an emergency access request.
60 Comment 17.5
~I In order that the credibility of the process be maintained, this rule must j not be viewed as a way of circumventing the responsibilities and arrangements' 1 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 ]
passible, those provisions should dictate when and under what circumstances 1 L emergency; access should occur. The provisions of this rule should only be used as a last resort and the language should be such that this intent is clear. j RESPONSE: It is NRC's intent that emergency access be granted only as a last resort, as is stated in the supplementary information-to the ;
proposed rule and elaborated on in' responses to Comments 2.1, 2.2 and j 5.6. NRC intends to consider the laws and requirements of the Compacts ;
j or host states in~ making its site designation decisions. However, Congress intended for NRC's mandate to grant emergency access to )
supersede the States' or Compacts' right to exclude waste, according to I I
the legislative history of the Act so those implementing laws and requirements cannot dictate when, and under what circumstances emergency
]
access should occur. See the response to Comment 5.21.
Comment 17.6 In addition, we have reviewed the specific issues for which input has been requested and have the following comments:
- 1) What scenarios are envisioned where emergency access would be required?
-- As written, the rule could require acceptance for disposal of federal waste under "ternporary emergency access" provisions. l
-- If a State or Compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing.
m>
!612 1
i
-- . A generator is denied access to a State.or CompactL disposal facility for-
~
.whatever reason.'
-- An unusual' occurrence such as bankruptcy ofla ' generator causes abandonment of extremely 1crge volumes of waste which exceed State or n Compact capacity for safe disposal.
1 I
RESPONSE:1 The scenarios described in this coment have been considered j and do not necessitate any changes to the final' rule.
I Coment 17.7
- 2) What are the potential problems with' NRC's approach to determine an immediate and serious threat to the public health and safety? -j i
The difference between " emergency access" and " temporary emergency
. access" provisions' for this determination'are not consistent' with -
Section6(d)oftheAct. The Act- clearly states that an emergency - j access determination must be .made before temporary emergency access can ,
be considered. "Upon determining that emergency access isJ I necessary...the commission." This is not consistent with the I definitions and suggested implementation of the two terms in the l proposed rule.
i RESPONSE: See the response tc Comment 13.5 for clarification on the distinction made in the proposed rule between temporary emergency access and emergency access.
Comment 17.8
- 3) What are the potential problems with the determination of serious and l immediate threat to the common defense and. security?
In making this determination, can all or part of the information provided by the generator be kept confidential, or not be released to the receiving facility, under the claim of national security? ;
i
62 l l
)
RESPONSE: None of the sites that could be designated for the receipt of 1 l
emergency access waste under the Act have a security clearance to j receive wastes that would involve national security information. j j Therefore, this type of waste would need to go to a DOE site, and would i be outside the emergency access program. l l ]
Comment 17.9 I
l The Host State or Compact in which the requesting generator. resides should be .i required to exhaust all options and acct " responsibility for dealing with the problem before being allowed to make a request. I 1-RESPONSE: See the response to Comment 17.2.
i Conr.ent 17.10 ;
The issue of economic feasibility and a person's financial capability should i l
not be a consideration in dealing with emergency access.
1 RESPONSE: The legislative history for the emergency access provision specified that these factors should be considered in making emergency access decisions.
Comment 17.11 1
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 I 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 4 en immediate and serious threat to the public health and safety or the common defense and security." While the proposed rule does require that
_ _ _ _ - _ _ _ - l
63 any Federal' or defense related generators attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting ,
emergency access to a non-Federal facility, the Act does not confer to NRC the authority to designate. Federal disposal facilities to receive j I
emergency access waste.
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The purpose of the Act is to make the disposal of LLW a State I i
responsibility and to encourage States to work out disposal problems amongst themselves. Congress believes that if Federal LLW disposal facilities 6. auld provide backup disposal in the event that the States do not provide needed capacity, this would serve as a disincentive to the l States.
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Comment 17.12 There are no provisions for equitable distribution of the waste if 1 i
non-Federal facilities are needed for disposal, i RESPONSE: Under VII(c) of the supplementary information to the proposed !
rule, NRC explained that in order to distribute the waste as equitably as possible the designation of a receiving site will be rotated and, for the three currently operating facilities, allocations will be made in I propertion to the volume limitations established by the Act, to the extent that these are practical. This explanation is retaired in the i I
final rule. Provisions 62.26(c)(6) and 62.26(c)(7) of both the proposed and final rules serve to implement this " equitable distribution" intent.
l Coment 17.13 As written, the 20% volume criteria could eliminate the smaller non-Federal facilities from consideration almost immediately. Provisions can be added which would divide up emergency waste if necessary to ensure that all operating facilities receive their fair share. Such provisions could also be consistent with any established reciprocal agreements a receiving facility had in place at the time.
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RESPONSE: The 20% volume criteria :that appears in Section 62.26'of the .
proposed rule came directly f rom Section 6(h)Lof the Act. J i
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- Comment'17.14' There ~are no provisions for existing State or Compact laws with respect to 'q reciprocal.agreem nts or time requirements'for emergency' disposal. conditions {
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as covered in Section 6(f) of..the Act.
RESPdNSE: (See responses to Comments 4,1 and 4.2) I 1
Comment 17.1_5 ]
Is a determination appealable?:
RESPONSE: (See response to' Comment 5.19) l I
Comment 17.16 I
- 5) What should the NRC do if no' site is found to be suitable for waste requiring emergency access. >
-- The NRC should develop contingency plans BEFORE an emergency occurs.
Such plans could include the development of an NRC facility especially for emergency conditions. The NRC could also develop equitable reciprocal agreements now for the determination of emergency disposal sites in the future. Such agreements should include Federal disposal j facilities.
RESPONSE: Noted.
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B.18. Comment Letter #18 -- Clark Bullard; Chairman, Central- Midwest Compact -
Commission!
Comment 18.1
.The Central Midwest Compact Comission" fully endorses the, commentsEsubmitted by the Illinois Department of Nuclear Safety (IDNS) on February 11, 1988.
RESPONSE: Noted.. l Comment:18.2 The IDNS. comments deal with sensitive ' political issues'that must' be resolved promptly if the Central Midwest Compact is to meet the remaining milestones .
.under the LLRWPAA of 1985. Moreover, the integrity of the entire Compact:
system could be' undermined by any;hintsithat.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. ;
Coment 18.3 We urge you to adopt the IDNS comments intact so our ability to meet the remaining milestones is not impaired.
R_ESPONSE: Noted.
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66' B.19; comment ~ Letter #19 -- John S. .Kemper,' Philadelphia Electric Company; pmrnent 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.
l: RESPONSE: Noted.
1 Comment 19.2 One aspect of this process, however, may prove to be a detriment to its smooth administration: the 10-day public coment 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.
l RESP 0,N_SE_: The 10-day public comment period provided in the rule should ,
l not delay the disposal of waste pursuant to a request for emergency access because that 10 days is intended to occur as part of the 45 days ;
provided for NRC to make its decision. As explained in the response to Comment 13.3, the Commission believes it is important to provide the l public some opportunity to comment on requests for emergency access.
(See response to Comment 13.3 for elaboration.)
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[.omment19.3 We are confident that _ the proposed criteria are strict enough to protect the public health and safety without delaying the process to consider public concerns for each occurrence.
RESPONSE: None necessary.
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B.20 Comment Letter #20 -- Jessie DeerInWater,. Chairperson, NativeL Americans for a Clean Environment Y 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.
RESPONSE: Noted.
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l4 Comment 20.2 {
The rule would allow the Federal Government and the NRC to regulate a State fttnction...or at least a Compact-function. This is an infringement of. j State's rights which has both financial and health impacts.
RESPONSE: See the responses to Comments 7.1, 7.5, 9.3, and 10.1.
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Comment 20.3 Since State'and Compact' dumps are being developed for commercial waste, this is the only waste that should be placed into the dumpsites. Federal waste should be disposed of at their own facility, since it would be unknown what ,
might be contained in waste coming from the DOE and the D0D. It is our belief that federal waste is often greater-than-Class-C waste.
RESPONSE: See responses to Comments 2.1, 2.2, 5.6, and 14.2.
Comment 20.4 We must all act now to protect future generations.
i RESPONSE: None needed. !
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69 ) .
B.21 Comment Letter #21 -- Greta J. Dicus, Arkansas Dept. of Health Comment 21.1 General Comment The provisions for emergency access outlined in Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act) are intended as a I
last resort to provide access to a regional or non-Federal low-level radioactive waste (LLRW) facility. The proposed rule appears to be compatible with these provisions in that the criteria set forth are stringent i enough to render it improbable that waste generators would qualify for emergency access. We support the concept'of emergency access as presented in the proposed rule and make special reference to the fact that the process must not be used to circumvent the development of regional Compacts.
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RESP 0NSE: None necessary.
j 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. i RESPONSE: Neither the Act nor its legislative history specify whether {
temporary emergency access can or cannot be extended. However, NRC does not believe Congress anticipated that extensions of temporary emergency access would be needed. After 45 days, the requestor would lose access I l to disposal unless he could demonstrate to NRC that the serious and immediate threat persisted and the threat could not be mitigted by any I reasonable alternative, at which point he would be granted regular l emergency access. Thus, in the absence of any specific guidance from Congress, NRC plans to grant temporary emergency access for up to 45 l days only, with no extensions. l l
- Comment 21.3 i l
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70 If the' need for. emergency access is the result of a regional or non-Federal
- facility denying access to a generator, the reason (s) access was denied should be' considered by the NRC when making-its decision.
RESPONSE:' NRC plans to consider the reason eccess was denied and has required that infomation 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(1) requires the requestor provide NRC with-
" documentation certifying that access has been denied."
Comment 21.4 (In this coment the numbered questions appeared in NRC's proposed rule and the " Responses" in the comment are from the commenter.)
- 1. What scenarios are envisioned where emergency access would be required?-
Response: The regional or non-federal facility utilized by generators is closed by regulating authorities, the facility operator or extraordinary events.
Access to a facility has been denied for non-technical reasons.
Extraordinary waste streams that do not conform to those acceptable at a regional or non-federal facility.
- 2. What are the potential problems with NRC's approach to determining an immediate and serious threat to the public health and safety?
Response: No comments at this time.
- 3. What are the potential problems with the arrangement proposed for making the determination of serious and immediate threat to the common defense and security?
_ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .- - I
71 Response: No comments at this time.
- 4. What are the potential difficulties with the proposed approach for designating the receiving site?
Response: No connent at this time.
- 5. What should NRC do if no site 15. 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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$ 'MW ihn Ives sahn R. McKeman. Jr. 44:v.1L 4 p4 ommunoner Gmmor STATE OF MAINE .
DEPARTMENT OF HUMAN SERVICES- Omi;t 6- :!. Jnt i" '
.' AUGUSTA.' MAINE 04333 . DOCKEighg'((LW81
' February 1, 1988 Secretary of the commission U.S. Nuclear Regulatory Commission ATTN: . Docketing and Service Branch Washington, DC' 20555
Subject:
Comments to 10 CFR Part 62
Dear Sir / Madam:
I have reviewed the proposed rule regarding emergency access to non-federal low-level waste disposal facilities, and wish to submit the following comments:
- 1. The premise for granting emergency access is sound and takes into account a variety of factors to include . some critical oversight actions. We are not in opposition to the proposal.
- 2. The proposed rules (e.g. $62.26) should include a sme '.1 I sub-section stating "... the designation .o f a disposal facility pursuant to $ 6 2. 21 shall not preclude the implementation of any-
. s pecific . conditions, regulations, requirements, fees or taxes prescribed by that disposal facility which may be in effect at the ,
time of the Commission's determination to grant emergency access...' l 1
I can be reached at (207)-289-5676, should there be any questions. ]
a Very truly yours, GL1__
W. Clough 'Ibp , P. E.
~'
j Manager Radiation Control Program ^
- Division of Health Engineering l
l WCT/mc cc: State of Maine, Low-Level Radioactive Waste Authority l
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MM l' y Box 305j Octgc;tt US*I R.D.# 1 Corry, Pa. 16407' .
- 16 003 -8 l P 4 :08 --
February 4,: 1988 4 QFFtch u nur,a,1 DocKrhMJ 4 SEkv4.r -
Secretary of the Commission SRANCH US NRC Washington,' D.C. .20555 To the Secretary:
Concerning Section 6 (Emergency Access) of the LLRW policy Amendments Act of 1985, we-res'pectfully expect'the adherence to State.and Compact LLRW requirements:in the following areas:-
- 1. Commercial waste only= shall be eligible for State and <
Compact LLRW dumps. Federal waste (DOE) shall be prohibited.
- 2. No greater-than-Class-C waste shall be forced upon j
~
these commercial dumps since this is not part of their design criteria.
3., If States choose to " store" rather than to affect to l
" dispose" of waste, the NRC shall not force waste to go to those sites.
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Sincerely, b DW Sally ' e m a s' Concerned About Radiation _
In the Environment e
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s e.
DOCKET NUMBER g ~~ g P.ROPOSED RULE . - .._ 3 l (J~2 FA4957f.) ]
l 00thEiE0 j USNRC
'88 FS -9 P1 :42 .
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February 1,1988
{flCE Di h LF.c tar Y 8 C Secretary of the Commission 1 US N.R.C.
Washington, D.C. 20555 l
I f
Dear Sir:
Comments on proposed rules: 1. Since state and compact dumps are being developed' for j commercial vaste, this is the only type of vaste that should be eligible for Emergency i
- Access. The rule should clearly prohibit federal vaste, example- vaste from the l Departments of Energy or Defense, j
- 2. Since state and compact ' low-level' dumps are not required to accept Greater-than ,
Class-C vaste, the regulations should explicity prohibit N.R.C. from forcing Greater-than-Class-C waste on any state or compact dump. The rule should make c lear that if state or compact dumps have other restrictions such as prohibitions on vastes that are hazardous -
longer than 100 years or on Class B and C waste, N.R.C. Vill respect those criteria.
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- 3. If states choose to store, rather than pretend to ' dispose' of vaste. NRC should never-force vaste to go to those sites. -
.Yours sincerely,
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Midwast Intarstata Low Level Radioactive Waste Commission Room 588
- 350 N. Robert Street o St. Paul, MN 55101 T,$f2) 293 0126 I0 N3 Il P7 g4 February 9, 1988 hCN~Y IR$ $.["N Mr. Samuel Chilk Secretary U.S. F iclear Regulatory Commission WashitJton, D.C. 20555 ATTN: Docketing and Service Branch
Dear Mr. Chilk:
The following comments are offered in response to the proposed rule 10 CFR Part 62, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities." The proposed rule was published in the Federal Register on December 15, 1987, with a comment deadline of February 12, 1988.
Comment:
Page 47580 of the Federal Register notice states that the Nuclear Regulatory Commission's (NRC) approach in developing the rule was intended to, "1. Assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation." However, the proposed rule omits any reference to, or discussion of, Section 6(f) of the Act, which addresses reciprocal access. This Section provides that the regional compact or state receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact r state that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
While the NRC may not wish to be involved in these arrangements, it must ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extracted from the compact region or state in which the emergency access waste was generated before any determination for granting emergency access is made. This acknowledgement should be required as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided.
The acknowledgement could then be included as part of the Section 62.22 notification provided to the receiving' state and, if appropriate, the compact commission.
Indiana lowa Michigan Minnesota Missouri Ohio Wisconsin 1
Secretary j k' February 9, 8 Page Two
- 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.
Before designating a disposal facility, the NRC also should determine if the regional compact or state that.would receive the emergency access waste has an equal volume of reciprocal access waste with similar characteristics.- This specific determination should be added to the Section 62.26(c) criteria.
Finally, the NRC should be aware of any potential liability
- obstacles before making final decisions. It is possible that d1ffering liability requirements among compacts or states could affect receipt of emergency access or reciprocal access waste.
We believe that the reciprocal access provision of the Act is a significant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facility.
This is of particular. concern because the. receiving compact region or state has virtually no leverage or role to play in the emergency access process. Reciprocity is an integral part of Section 6, and should be recognized as such in the' proposed rule.
l Comment:
Because the NRC has already indicated, on p. 47583, that it will attempt to distribute emergency access waste as equitably as possible, a criterion related to past acceptance'of such waste i should be included in Section 62.26(c). The criterion would require the Commission to consider', "The volume and characteristics of emergency access waste previously accepted."
If you have any question regarding these comments, please do not heritpte to co et us.
/ ~
neerely, ,
, m Greg Larson Executive Director cc: Commissioners LLW Forum Compacts and States
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- 2) IDNS agrees with the statement preceding the proposed rule that NRC should
" ... reinforce the idea that problems with LLW disposal are to be worked l out to the extent practical among the states...." The proposed rule does not, however, expressly encourage states and compacts to enter into i cooperative agreements for emergency access before the need for such .
access arises. Such agreement's would be consistent with the intent of Congress and should help to avoid any immediate and serious threat to the i public health and safety or the common defense. The rule should expressly encourage states and compacts to enter cooperative agreements.
- 3) IDNS strongly agrees with the statement preceding the rule that " Congress believed it was important for the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity." We believe this statement should be made part of the rule.
Development of new LLW disposal capacity is a controversial and difficult 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-cut by Congress is flawed ar.d that it may not be necessary for every state to take steps to provide for the disposal of low-level radioactive waste generated within its borders. It is 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 by the states as an alternative to making a diligent effort to fulfill their responsibilities.
- 4) IDNS observes that the proposed rule does not address the provisions of Section 6(f) of the Amendments Act, which pertain to reciprocal access.
IDNS recommends that the proposted rule adcress reciprocal access and recognize that a condition to obtaining emergency access is providing
... reciprocal access for an equal volume of low-level radioactive waste having similar characteristics to that provided equal access."
- 5) The proposed rule does not address the issue of disposal fees for wastes i disposed of under an emergency access determination. The obligation of a i state or compact to accept wastes granted emergency access should be ;
conditioned upon the applicant's payment of disposal fees and surcharges as applicable. I Soecific Comments and Recommendations l
- 1) s62.2 The definition of Low-Level Radioactive Waste is incorrect.- For ,
purposes of emergency accest to non-federal and regional disposal J facilities, the definition should be limited to that sub-class of low-level radioactive waste for which states have been given responsibility under 42 USC 2021(c). The definition should read: ;
" Low-Level Radioactive Waste," (LLW) means A) radioactive waste, other than radioactive waste generated by t'he federal government, )
that consists of or contains class A, B or C radioactive waste as ;
defined by section 61.55 of Title 10. Code of Federal Regulations, as l
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"J '. D "j,ET:.*C',n 9 , n kri:nJ W.E ^ (h -42. .
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STATE OF lLLINOIS DEPARTMENT OF NUCLEAR SAFETY .tr .
. r 1035 OUTER PARK DRIVE M *
- SPRINGFIELD 62704 (217) 785 9900 TERRY R. LASH D*c" February 11. 1988 q The Secretary of the Commission U.S. Nuclear Regulatory Commission-Washington, D.C.'20555 Attn: Docketing and Service Branch Re: Proposed Rule, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities;" 10 CFR Part 62; i 52' Federal Register 47578-47589 (December 15,1987)
The Illinois Department of Nuclear Safety.("IDNS") hereby submits its .
comments on the above-identified proposed rule concerning emergency access to non-federal low-level radioactive waste ("LLW") ditposal: facilities. IDNS is the radiation control agency of the State of Illinois, and is responsible for establishing and regulating a low-level radioactive waste disposal facility in Illinois to serve the Central Midwest Interstate low-Level Radioactive Waste Compact.
The State of Illinois and the Commonwealth of Kentucky created the Central Midwest' Interstate Low-Level Radioactive Waste Compact (" CMC"), which was approved by Congress in the Low-Level Radioactive Waste Policy Amendments Act of 1985 (" Amendments Act"). The CMC Commission has designated Illinois as the host state for a regional LLW disposal facility. IDNS is presently engaged in the process of selecting a site for the facility under the Illinois Low-Level
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Radioactive Waste Management Act. IDNS and CMC are making every effort to comply with the milestones under the Amendments Act.
General Comments I'DNS agrees with the NRC's determination that establishing criteria and I 1) procedures by rule, in' advance, is an appropriate approach. Establishing procedures in advance of a request allows the NRC to respond quickly in the event of an imminent threat. Establishing criteria in advance allows potential applicants to plan accordingly, and serves notice that the '
emergency access provisions may not be used to circumvent the express provisions of the intent of the Amendments Act.
)
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i in effect on January 26, 1983, and B) radioactive waste described in A) that is generated by the federal government,'unless such waste is ;
- 1) owned or generated by the Department of Energy, 2) owned or generated by the United States Navy as a result of decommissioning of vessels of the United States Navy, 3) owned or generated as a result of any research, development, testing, or production of any atomic weapon, or 4) identified under the Formerly Utilized Sites Remedial Action Program.
Under the Amendments Act, disposal of waste that is above class C, as' defined in 10 CFR 61.55 on January 26, 1986, is not the responsibility of the states. The Nuclear Regulatory Commission may not, through regulation, alter this statutory. limit, yet the proposed definition of low-level radioactive waste would include " radioactive material that the NRC, consistent with existing law, classifies as low-level radioactive waste." IDNS objects to any attempt, whether deliberate or inadvertent, to place additional burdens on the states in contravention of express statutory limits. The proposed definition is particularly troubling in light of the Amendments Act's express prohibition on requiring any regional facility to accept wasta that is above class C, or FUSRAP wastes. IDNS also notes that providing disposal capacity for naturally-occurring and accelerator-produced materials is not the states' responsibility under the Amendments Act, and that the NRC has no authority under the Atomic Energy Act to include these materials in any definition of low-level radioactive waste.
Section 3(b)(1) of the Amendments Act provides that the federal government is responsible for the disposal of certain types of radioactive waste (i.e., above class C) and radioactive waste generated by certain ,
activities of the federal government (e.g., DOE. waste, defense waste). j Although the three commercial disposal facilities will continue to operate, and states and compacts are required to establish new disposal capacity, there is no provision in the Amendments Act for establishing new disposal facilities for waste that is a federal responsibility. IDNS ,
suggests that one possible scenario under which emergency access might be requested is closure of existing federal disposal facilities. In IDNS's l opinion, the proposed rule is substantially deficient in its failure to l follow the express mandate of Congress that no non-federal facility ever !
be required to accept waste that has been made a federal responsibility.
In the Supplementary information section of its Federal Reaister notice, j the NRC states that the emergency access provision was "not intended to be )
used to circumvent other provisions of the Act." (52 Fed. R_eg. 47579.) {
The implementing rule should clearly state that no request for emergency a 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 i access only for waste which is a state responsibility. Language proposed ;
for inclusion in the Amendments Act by the DOE that would allow emergency i access for waste generated by the D0D was expressly considered and !
rejected by Congress. The NRC should abide by that decision and the express language of the Amendments Act in promulgating this rule.
- 2) 62.2 The definition of " Temporary Emergency Access" should be changed as l
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A
' follows:. '
"' Temporary Emergency Access' means access that is granted at'NRC's
~ discretion upon determining that access is;necessary to eliminate an
.immediate and. serious threat'to.the public health and safety. or the common defense and. security. 'Such access expires 45' days after.
. granting."
The NRC's authority to grant emergency. access, whether. temporary or not, is limited to those situations where such access-is'"necessary to'
. eliminate an immediate-threat" (42 USC 2021,' emphasis added.) The Amendments Act does not, as the proposed rule ~ suggests, allow-the NRC to-grant' emergency; access to." alleviate" such'a threat. . " Alleviate" is not synonymous with " eliminate." Only where the applicant.can show,'and the.
NRC can find, that the-threat would be eliminated by emergency access, can the;NRC grant emergency access.
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- 3) s62.12 . Add a new. subsection (c) as'follows:
"(c) That the material for which emergency access is requested is
' low-level radioactive waste' as defined in this-Part."
and re-designate the proposed subsection (c), and following subsections, as appropriate. This will help assure that no state will be asked tc) dispose of waste that is not a state responsibility under the Amendments Act.
- 4) {62.12 (f)(3) should be modified as follows:
"(3) .The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety, or the common defense and security."' ,
- 5) {62.12 Add a new 662.12(k) as follows:
"(k) A description of how granting emergency access would eliminate an immediate and serious threat to the public health and' safety or the common defense and security."
- 6) 662.12 Amend the proposed Q62.12(k) as follows and re-designate as Q62.12(1):
"(1) Wheretherequestismadewhollyorinpartonthebasisofi serious and immediate threat.to the common defense and security, certification by the Secretary of Energy and the Secretary of Defense that
)
the waste for which emergency access is granted is not owned or generated by the Department of Energy, owned or generated by the United States Navy as a result of any decommissioning of vessels of the United States Navy, or owned or generated by the federal government as a result of any research,' development, testing, or production of any atomic weapon,'and that access to disposal is necessary to eliminate the threat to the common <
defense and security."
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As explained in comment #1, under the Amendments Act it is the' responsibility of the federal government, not the states, to dispose of radioactive waste generated by certain federal activities safely. IONS holds that no state can be forced to accept responsibility for disposing of these wastes under the emergency access provisions of the Amendments Act or through any action of a j federal regulatory agency. In addition to the generator's certification that j the waste for which emergency access'is requested meets the' operational def mition suggested in comment #1 above, these additional safeguards are nect:ssary to. assure protection of states' rights in the event that the. request 3 for access is based on a claim of'immediate and serious threat to the common j i
defense and security. !
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- 7) Modify 662.13(c)(6) as follows:
"(6) Any legal impediments to implementation of each alternative including whether the alternatives will comply with applicable NRC requirements, and the requirements of the Compact Commission and the State where access was considered."
It should be made clear from the application for emergency access whether denial of access was based on failure to comply with applicable standards.
NRC should not grant emergency access when the emergency wis brought about by the applicant's own failure to comply with regulatory standards.
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- 8) Modify G62.13(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."
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Section 62.13 of the proposed rule specifies that a description of I alternatives considered must be included 16 a request for emergency access, but it does not include the provision in the statement preceding the rule 1 that, "[alpplicants for emergency access will have to provide clear and )
convincing evidence that they have exhausted all other options for managing
- their wastes." This language is appropriate and should be incorporated into the rule. - -
- 9) s62.14 Add a new 562.14(c) as follows:
"(c) A description of how granting emergency access as requested would eliminale an immediate and serious threat to the public health and safety or the common defense and security." -
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- 10) {62.18 Replace "may" with "shall" in this section.
l l This section provides that the Commission may deny a request if it is G
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based on circumstances that are too remote and speculative to allow an q informed decision. IONS recommends that "may" be changed to "shall." If the i Commission cannot make an informed decision on a request, it should not grant l the request. J
- 11) 662.21(a) should be modified as follows:
"(a) Not later than forty-five (45) days after the receipt of a request for a Commission determination under this Part from any generator of low-level radioactive waste, or any Governor on behalf I of any generator or generators located in his or her state, the (
Commission shall make a determination whether--
(1) The result for emergency access to a regional disposal facility or a facility within a state that.is not a member of a compact, for specific low-level radioactive waste is based on an immediate and serious threat to:
(i) the public health and safety, or (ii) the common defense and security; (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in s62.13 (3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access is requested is low-level radioactive waste as defined in this Part and a State responsibility under section (3)(a)(1) of the Low-Level )
Radioactive Waste Policy Amendments Act of 1985.
l 1
- 12) l62.21(c) Replace " alleviate" with " eliminate" in this subsection. )
- 13) 562.22 Add a new f62.22(d) as follows':
"(d) Any grant, denial, or refusal to consider a request for emergency acce'ss 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 j challenged, then prompt judicial review is necessary to resolve the l issue. Clarifying that a grant or refusal is a final agency action may l remove potential obstacles to obtaining prompt judicial review.
l
- 14) G62.25(e)(1) Replace " good faith effort" with " diligent effort, ,
reasonable under the circumstances," in this subsection.
Subsection (e)(1) provides that the Commission, in making an emergency access determination, will consider whether the applicant "[hlas demonstrated 1
o
=.
that a good faith effort was made to identify "and evaluate IONS submits alternatives that subjective thati would mitigate the need for emergency _ access.-The effort must be' objectively
~
good faith should not be sufficient.
reasonable and diligent.
- 15) A new 562.26(b) should be added as follows:
l
-(b)
If the Commission designates a regional disposal facility to receive the waste for which emergency access has been granted, the-
, Commission shall request the approval of the Compact. Commission for:
the designated regional facility. The request for . approval shall: l include the entire administrative record of the request for emergency access under this Part, including the reasons for the Commission's findings. No grant of emergency access under this-Part shall be effective prior to 15 days from receipt of a request for approval j
from the Commission.
i Section 6(g) of the Amendments Act provides that:
"(a)ny grant of access under this section shall be submitted to the '
compact commission for the region in which the designated disposal-facility is located for such approval as may be required'under the terms of its compact." l l This requirement of the Amendments Act has not been incorporated in the rule. While the effect of a refusal by t.he Compact Commission to allow emergency access is not clear, the NRC may not, by rule, remove this option from the Compacts. IDNS also notes that this option applies only to regional disposal f acilities, and that the Amendmentt Act makes no similar provision for non-federal, non-regional facilities.
l Ifs) Q62.27 Add a new E62.27, as follows: !
"$62.27 Compliance with conditions of emergency access; termination of l
emergency access.
(a) The operator of a regional disposaf facility or a non-federal disposal facility designated by the Commission to provide emergency access may refuse to accept the wastes for disposal if the applicant or the waste does not meet conditions set by the Commission pursuant to this Part.
(D) The Commission shall terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
(c) The Commission may terminate a grant of emergency access if an
- acclicant has made a material f alse statement .in the application for emergency access or if the applicant has failed to comply with this part or conditions set by the Commission pursuant to this Part."
i The pro: seo rule does not Wress ter'nkat on c' emergency access.
% rthern:re, u N e* :ne ru k as :r :ose: 't is not c' ear that 3 state or
~
8 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.
Miscellaneous Comments and Questions
- 1) ft62.6 Specific Exemptions The provisions of this section would allow the Commission to bypass all of
- the procedures of the emergency access rule by granting special exemptions.
Why is this section necessary? Under what. circumstances would NRC grant-special exemptions? What' assurances do' states and compacts have that'this exception will not, in practice, become the rule? This provision should be deleted.
- 2) f62.11 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 submitting the request." A' request for emergency access could be submitted by any Governor or any generator of low-level radioactive waste.. What is the source of the requirement that all such persons maintain local public document rooms?
- 3) 562.23 Determinant 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 1 Section 6(g) of the Amencrents Act, pertaining to approval by a Compact Commission? l Thank you for the opportunity to comment on the proposed rule concerning emergency access. Do not hesitate to contact me if you have any questions j about these comments or if you would like additional information.
Sincerely yysrs j .A
/
erry R. La h .
Director
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3 Whitm:n priva c D:nvilla, El07834 * (718) 783-2116 T(201) 625-3100
- 433 Orlando'Avenua .
Stat'e College. Pa. 16803 Februarv.8. 1988, Ms. Janet Lambert RE: 52 FR 47578.~ December.15 1987J
. Lou-Level Radioactive Waste Division Emergency Access.to Low-Level ,
U.S. Nuclehr Regulatory Commission' -fadioactiveWasteDisposalSites'
. #ashington} D.C. 20555 NL'-007
~
4 Dea r' 'Ms. . Lamb'e r t's .
.'This letter'is a request on behalf of Food and Water..Inc., and the Environmental' Coalition on Nuclear Power (ECNP) for,an eFlension of time for the filing of consents on the NRC's proposed rule on eeer gency access.to low-level radioactive vaste disposal sites beyond'the February'12, 1988. deadline announced in the Federal Register Notice at 52 FR.47578. We would appreciate the Commission's extending the date f or an. additional 60 days., it is my understanding that,the. Nuclear .inf ormation and Resource Service 'is' filing a request.f or extension in the name of inter alla, ECNP, .~ith whichl1 am associated as well as with Food and Water. Inc.. a non-ptofit educational I organi:aticn headquartered in New Ycrk and New Jersey.
Food and Water. Inc., having'only recently determined itF~ interest in commenting on this proposed regulation, wishes to examine _the possible impact of the NRC's draft rule on the management of Isw-level vastes associated with the possible commercial expansion of food irradiation and related industrial irradiation enterprises new in operation.
In the Commonwealth of Pennsylvania, the Legislature .has just this' past week approved.'Its Low-Level Radioactive Vaste Disposal Act, which will implement the siting, design, and regulatory processes required by our Host State obligations under the Appalachian States Compact. .An extension of-comment period would assur e that' we are able to cLnsider the relationship of 4
' our implementation legislation and NRC's proposed emergency access provisions.
As a member of Pennsylvania Deptrtment of Environ 3 ental Resources (DER)
Public Advisory Committee on radioactive waste. I still am awaiting the arrival '!
of the final version of the implementing legislation which was adopted while 1 was out of state this past week. I do not speah f or the Conmittee in making this request. The Committee has been inf or med, hcwever, thki we will receive the latest draft of DER's proposed riting,and design criteria and licensing j requir ements on or alcut Februar y iSth. Final Cemmittee reccomendations are expected early in Mar:h. I would want to be able te comment en NRC's emergency accecs draft with these documents - the legislation and nearly-finali:ed siting and design criteria -- in ha_nd.
Thank you in advance f or giving consideration to this r equest for. a 60-day extension for filing comments on 52 FR 47578. i Sincere 1 j r. .374.
, . .y , .7 l
l Judith H. Johnsrud. Ph.D.
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Dear fir _. Soc ra t s.i 9 5 Tno cole f.os e b+ tic f)en: 1hy F ed e: c + 1 G vcenment en: t h e IF<C 25 rcoulet ing e 5t s.to f unct 2on or 4t leest i. Conpact forctaori, -
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Alto'the tite hrec Docn cerefull / dot 2cned for what the -)
S t a t e, co.w ee t cap: cts. Allr.uing unplanned ..a s t e s in w:31 nurt the l fantoclei e.id Dicon:na picture for the particular conce.ct. Stetct-erc F ' 7 (- s o. t . 4 ild'Abtut r> a ,i n g to tus DCD anct PC'E wwtsa .
3 l Aj to oin,. c weer t t si e n;.t p. enna n? ' o. j .. o e err e.0nt t cd Class C l ]
Wastes.
All t he abo ve Os ed t%Dre mel e that c u l tr .Gr / PvEmeture and 111 l c o r.c e s '. n c . P l c e s c retract thic rule for coca and aburdant cause. j Let t hs' tJo ri Federci a net t n t- Reasonal autheil'.les regulste t.h e i r I ouh *sinAs. 't h i ti J9 on a cb uhach t he F- eas e ) euthor)is ai d tre ,
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(_b4 PK4'/0 '/V) . Ef W8LLIAM J.' GOLD .
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- ArroRNEY AT uW ,
zi wActDWICK ECAD
.um, tow ~.ucW.,c .cvoi.2. ,
m.-- aan 3 2. 22' 3 FB 16 P3 56 February 9, 1988 Gh[yh' X
BRAhCM Secretary of the Commission US NRC /
Washington, DC 20555 ]
Re: Emergency Access to " Low-Level" Nuclear Waste Dumps
.(10CFR62, 52FR 240:47578,-Tues. 12/15/87)
)
Dear Commission Members d it' has come to our attention.that the the NRC.is authorized
{
by the NRC to supersede state and compact rights in situations where the NRC deems _ the' " disposal" of waste from outside the region or state to be an emergency.
It . is of primary importance to the whole concept of compact- l and state. dump siting that this emergency authority be used only j as a last resort, when clear danger to the public-is evident. >
Further, only commercial waste and not waste from the Departments of Energy or Defense should be eligible for Emergency ,
since these sites are being developed for commercial I
Access, waste only.
Regulations should explicitly prohibit the NRC from mandating greater that Class C waste to be sent to any state or compact dump, and all criteria and restrictions on types of 1
nuclear waste acceptable at that state or compact's dump should supersede any NRC order. -
~
Some states may choose to store nuclear waste rather than j
" dispose" of it, since the technology to dispose of nuclear l wastes is still experimental. The rules should state that the NRC cannot force out-of-region waste to go to those sites. I We respectfully request that you incorporate these concerns )
in your emergency access planning. -.
Very trulygours, I
~
i William J
J. Gold, Esq.
/
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Lorraine G Id cc Sen. Bradley Sen. Lautenberg Nuclear Information and Resource Service
.FEB 171983
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0FFICE 3f $ d 00CKEliNUS W M CI BRANCH February 11, 1988 Secre'iry of the Commission US Huclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch
Dear Sir / Madam:
The St. Lawrence County Environmental Management Council, an advisory board {
for the St. Lawrence County Legislature, voted unanimously at its February 10, 1988 l meeting to submit the following comments pursuant to the proposed rule published l in the Federal Register on pps: 47578-47589 on Tuesday, December 25, 1987 regarding emergency access to (future) LLRW facilities:
- 1. The recipient facility should be allowed to collect fees at levels sufficient to pay full expenses associated with the long-term operation and maintenance costs of the facility for .
any wastes that are received under direction by the Nuclear Regulatory Commission. .
- 2. The references in Section 62.25(d)(1) and (1) to activities generating wastes being "necessary for the protection of the q common defense and security" are cryptic. What are examples l of such activities bv the Department of Energy and. Department !
of Defense and what ara the types of wastes which could be ]
involved? l The Council members also wanted to express their concern-that the states in which recipient facilities are located which could ultimately receive emergency low-level wastes do not have any control over whether or not to accept such wastes. The decisions rest entirely with the Nuclear Regulatory Commission. l Thank you for the opportunity to comment.
Sincerely, Jon R. Montan Planner III.
JRM:nic cc: Lloyd Moore Duana Carey Bruce Piasecki David Jordan JEB 17 BB3 mneosem c. 4 1
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'88 FEB 16 P3 :56 i ENVIRONMENTAL PLANNING LOBBY i 33 Central Avenue Albany.New York 12210 ;
518,462-5526 0Fre ,*,. g, , ,,
DOCK [IING A %#41C8 BRahCa 1 1
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Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 February 9, 1988 i l
I
Dear Sect tary:
We are writing in regard to 10CFR62, 52FR 240:47578 on the proposed rule by NRC to force compact and state " low-level" radioactive waste dumps to accept out-of-state and federal nuclear waste in " emergency" situations.
In an earlier letter, dated February 4th, we joined with organizations around the country to request an extension of the public comment period for 60 additional days to allow people adequate time to comment. We {
reiterate that request and at this time are presenting brief comments on j the proposed rule. {
New York State law (the Low-Level Radioactive Waste Management'Act of I 1986) specifically prohibits federal wastes, such as Department of Energy wastes, at any New York State " low-level" radioactive waste facility. There are a number of DOE FUSRAP sites, with long-lived high-level waste, in New York which currently are being; cleaned up or temporarily stored. We are i aware that DOE has approached New York requesting access to its " low-level" radioactive waste facility for certain DOE wastes (such as U-238 and U-235 at the fctmer NL Industries plant in Colonie, N.Y.). The state Dept. of ,
Environmental Conservation disapproved this request and the subsequent law '
upheld the state's policy to exempt any federal wastes. Therefore., we totally I oppose the proposed rule to accept federal wastes or out-of-state wastes.
To accept out-of-state wastes goes against the basic premise of the however inadequate Federal Low-Level Radioactive Waste Policy Act which supports compacting and stle's ri Ehts. The NRC is directly threatening the state's authority to exclude wastes. - l For states to accept federal wastes will in many cases cause the state's 1 management of facilities (in terms of storage / disposal capacity, etc.) to !
be radically changed. How will states / compacts be'able to adequately plan I and manage their facilities with the threat of NRC emergency declarations f forcing substantial amounts of waste on them at anytime? _ l At the very least, the NRC should change the rules to: i
- 1) Require strict adherence to state / compact requirements, including l allowing only commercial vastes (not federal) up to Greater than Class C ]
waste. j
- 2) Other state restrictions on 100 year hazardous life, or only Class A,B l or C wastes, must be strictly adhered to by NRC. j
- 3) Lastly, states which choose to store rather than dispose of wastes j should not be forced.co accept any wastes. l Tiv Esivirosimerit.it Plasiining L"h4 EPl.
- a tionprofit tairw i.b. s ns ironnH ntal a<hmics ro.iliipesi u hich rcpinscrit.
' ell urg-gfil/.al s.stis alHI tilousalHh elf tfLhs !*I4.ll '1H' Bill 8"f % bEl.1% 1IHfth fillltiflic el1Vir'Ifitnt'lilaIls tlills ill \t'% h eti .%1.ile ,tnal h,t=
pl.ncil a mapar tub m po d.* ting t he t.it e's natural res.iurn% lor mer esenteen car * ..
n e) 0**ec o*, secvvec :som i
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Also, the term " emergency" is no- assurance.at..all - the-federal government can'think up many. reasons to declare.e.a emergency which do not deal with the fact that their own inaction to adequately store wastes and stop their production has caused the " emergency" in the first place.
j States should not have to bail out.the federal government. l 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
~
j program which will ensure that no emergency will exist for federal government '
wastes..
LWe would appreciate' receiving a response to these comments, as well as i the final regulations. We again urge a 60 day extension for adequate public j
-l conune nt .
J Sincerely, 6
,.,,y'Y C Larry Shapiro Anne Rabe Executive Director Executive Director 1 Environmental Planning ~ NY Environmental Institute
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l AmYr$(na 202-429-5120 SF The Society 3 f College of of Nuclear i Nuclear .
88 FEB 16 P3:55 Medicine Physicians
. OFF!CY '* ? Ti . .i ,
00CKEhNG 4 QHN FebruaryS10',21988 Secretary U.S. Nuclear Regulatory Commission ATTN: Docketing and Service Branch Washington, DC ~ 20555 RE: Proposed Rule on Criteria for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Faci-lities (52 Federal Register 47578).
Dear Sir:
We are writing on behalf of the American College of Nuclear Physicians and the Society of Nuclear Medicine regarding the NRC's proposed rule to establish procedures and criteria for granting emergency access to non-Federal and regional low-level wasto disposal facilities. The Society represente over 11,000 physicians, physicists, radiochemist', radiopharmacists and technologists dedicated to the overall advancement of Nuclear Medicine and has major interests in the scientific, educational and research activities affecting the field. The College is a professional organization representing over 1,200 physicians whose primary activity is the practice of Nuclear Medicine.
Many of our members have had significant involvement in the formation of compacts and siting of disposal areas following the passage of the Low-Level Radioactive Waste Policy Act ,
Amendments of 1905 (LLRWPAA). 1 During congressional deliberations on the LLRWPAA, the College and Society testified on several occasions in support of the emergency access provisions for generators of biomedical i waste to LLW disposal facilities. Because access to disposal-facilities is critical for the delivery of health care services, we strongly supported the enacted emergency access provisions
. allowing generators or State Governors to appeal to the NRC when denial of access would create a threat to the public ,
health through the interruption of Nuclear Medicine procedures i or radiopharmaceutical production.
The medical applications of radioactive materials are not i just a matter of importance to the specialty of Nuclear Medi-cine, but to the entire medical field as a whole. While an
' ' 5I q . ,)
Secretary U.S. Nuclear Regulatory Commission February 10, 1988 Page Two 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 i 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 Ame-tea are developed with the use of radioactive tracers. It is clear, then, that radioactive mate-rials permeate every aspect of medical practice.
Disposal capacity for LLW generated by the manufacturers of radiopharmaceuticals is just as important, if not.more,'than dis-posal capacity for direct generators of medical LLW (i.e., hospi-tals, laboratories). We would urge the Commission to consider that on-site storage, while a feasible alternative in some situations, may create problems for others. For example, today, most hospital j and laboratory waste is subject to volume reduction and on-site j storage and decay, as is evidenced by the fact that in 1986, medical l waste accounted for only 1.3% of the total volume of LLRW received )
at disposal sites (and only .0001% of the total activity). Unfor- j tunately, however, in the case of lost access, the manufacturers i of radiopharmaceuticals on which the Nuclear Medicine community !
depends would not be able to accommodate on-site storage because their higher-activity materials would conceivably exceed available on-site storage capacity within one to six months.
In addition, we would like to draw your attention to the fact that on-site storage may not be feasible or desirable for larger volume and activity generators in academic research institutions and pharmaceutical houses because of the possession limits specified in the generators' licenses. For example, if most of the genera-tor's possession limit is consumed by the activities present in the waste stored on-site, then obviously there would be less radioactive ;
materials available for important research or pharmaceutical deve- !
I lopment. Not only is there a public safety question concerning on-site storage of this waste, but if radiopharmaceutical manufacture !
was to cease due to failure to find a viable solution to the waste problem, all of the medical activities using these materials would cease or be significantly curtailed.
The College and Society raise these fine points on possession limits and on-site storage so that the NRC recognizes the delicate 1 balance between the medical community's ability to provide necessary l health care services and the availability of adequate LLRW disposal I capacity. We agree with the Commission and the Congress that emer- )
gency access should not be used as an alternative to diligently pur-suing the compacting and siting processes mandated by the LLRWPAA. .
We also agree with the NRC that emergency access provisions are l
l l
1
I Secretary ]
U.S. Nucloer Regulatory Commission ;
February 10, 1988 l Page Three l
i 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. 3 In conclusion, the College and Society support the emergency
- access provisions of the LLRWPAA and the NRC's efforts to establish .i procedures and criteria for granting such access. We hope the Com-mission will bear in mind the unique characteristics of LLRW gene-rated by medical institutions and radiopharmaceutical manufacturers and the necessity of access to disposal for the provision of vital medical care services in this country. Plocse' feel free to consult )
~
with us if you require further information or assistance.
Sincerely,
.lb ,
B. Leonard Holman David H. Wood ry President President Society of Nuclear Medicine American College of Nuclear Physicians J
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Altnough the Low-Level dadi'oactive *aste Policy Amendments Act ,
of 1985 doesn't rquire tdic to develop a rule, we agree your doing so is an excellent idea.
Dut we f.:e1 tne proposed rule could sta..d a bit of tigntening.
Sec 62.6 - he question tne need and advisability of: making.any Specific Exemptions. It seecs to.us tnis lends itself to tne 7-granting of too much leeway by IwRC - and possible abuse.
{
Sec 62.11(b) - The provision tnat you'11 publish notice of re-quests receivea in'tne leoeral nesistety toen allow 10 cays 1:.r pu bli c c o:i.me n t , is. ridiculous.
Irobably not one in 20,000 me...bers 01't.1e general public ever sees t.ie Feceral Register. If you want to notify them you hould publish suen notice as a n.ws release (not a legal advertisement) in a newspapcr of local circulation, and allow a comment period of at least 20-30 days.
^
Sec 62.12(f)(2)(iv) - any snould infinitely long-lived trar.s- -
uranics be incluneo in tne category of low-level waste?
Sec 62.23 - 3efore granting tem,.orary emergency access, wny not allow a 10-cay waiting period, so possible alternatives may be consicered? ,
i.e feel tnis provision - as written -is wice open to abuse oy sloppy operatsrs, wno may wait until a crisis situation exists, taen come runn_ng to yo; for special emergency consideration.
l Sec 62.24(b) - Re: extension of emergency access, t.is says .ne requirements of Sec 62.21(c) aad (d) must be foll.wed. Inere is no Sec 62.21(d).
Finally, under Speci:ic request for c umn.ents , you ask wnat snould
...0 do if no site is foand to be suitable for emergency access?
..e suggest you then require t.le operatsr to cover t..e pile 01 law-levei waste witu lead snielding, toppec witn enougn soil to stop raciLtion :r:.:. escaping.
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- 88 FTR 17 p 3_2c; j Nuclear Information and Resourcp Service 1616 P Street, N.W., Suite 160, Washington, D.C. 20036 (202) 3284002 $0CkEifNG $Yh/Ilb[' ]
8 RANCH Secretary Chilk US NRC washington, DC 20555 i
Dear Secretary Chilk:
j Enclosed are Nuclear Information and Resource Service's comments on 10 CFR Part 62, Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Radioactive Waste Disposal Facilities, which appeared December 15, 1987 in 52 FR 240.
S cerely, o
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A Diane D' Arrigo l Regulatory Oversight Coord ator l
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i Nuclear Inforn1ation and ResodfN$sMice 1616 P Street, N.W., Suite 160, Washington, D.C. 20036 (202) 328-0002 BRANCH l j
Nuclear Information and Resource Service '
February 12, 1988 Comments to US Nuclear Regulatory Commission on:
10 CFR 62 Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Radioactive Waste Disposal Facilities 52 FR 240, Tuesday, December 15, 1987 l Although the intent is that NRC use its Emergency Access authority only as a last resort, the danger is present that states could be required to take waste they choose to exclude. j i
This loophole in the 1985 Low-Level Radioactive Waste Policy '
Amendments Act threatens states' authority to exclude waste.
We have very serious concerns with the emergency access provisions but understanding that NRC is not in the position to ,
{
change the fede'ral law, we submit the following suggestions to
~
I make the regulation as strict as possible and to guarantee, to the greatest possible extent, that the provision not be abused.
- 1. Clarify that Federal waste (at least that for which states and ,
compacts are not currently responsible) is n'ot eligible for l emergency access. l Since state and compact dumps are being developed for commercial waste (and some Federal waste as defined in the 1985 Low-Level Radioactive Waste Policy Act), this is the only type of waste that shoulti bM elialble for Emergency' Access. The rule should clearly prk.ibit Funeral waste (ex: waste from Departments of l
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 l emergency access and in Section 62.13 (a) (5) which gives a -
condition for " Federal and def ense related generator (s) of LLW" to meet in their " request for emergency access."
First, the definition of " person" who can apply to the NRC for emergency access includes any Governor or chief executive officer on behalf of "any generator or generators of low-level .
radioactive waste located in his or her " State..." Such generators could include generators that are not NRC or NRC Agreement Sr' ate licensed. We would like to see provision made to clearly prohibit DOE and DoD and other federal agencies and contractors f rom gaining access to state and compact dumps via l emergency access. '
dedscared to a sound non nuclear energy poisey.
b 1
l Nuclear Information and Resource Service Comments on 10 CFR 52 page 2 l
l Second, Section 62.13 (a) (5) (which appears misprinted as 82.13 in 52 FR240:47587 Dece,mber 15, 1987) requires that Federal or defense related generators of LLW must first attempt to gain l
access to Federal disposal f acilities before they are eligible I for emergency access to non-federal dumps. If non-federal disposal f acilities are going to be required to take Federal waste then of course it makes sense to require those generators l 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 are Radioactive Waste Policy Amendments Act Section 3(a) (1) (B))
eligible for emergency access. This excludes Depa,rtment of Energy waste and US Navy waste from decommissioning Navy vessels and any nuclear weapons research, development, testing or production waste. That waste should be clearly excluded from eligibility for emergency access.
Arguments against leaving the regulations open to Federal waste: l
)
(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 .
l 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.
(2) Furthermore, DOD, DOE and other Federal waste is not currently classified as Class A, B, C or Greater-than-Class-C (C +) , as is commercial waste. It will be dif ficult to determine whether Federal waste meets the license criteria for any non-federal sites that use the A,B,C,C+ method of categorizing
" low-level" waste. Even if DOE reclassifies its wastes as A,B,C and C+, the source of such waste is much dif ferent than commercial waste and could pose technical problems which states and compacts are not considering in their dump planning.
A potential concern here however,is that state and compact dumps that take on the extra burden of accommodating DOE waste (and this could happen because crates are dissatisfied with DOE's performance at its sites in that state or compact) will be the only nonfederal 11w disposal f acilities eligible to accept such waste thus would be required to accept such waste every time NRC granted emergency access to Federalout and defense related that such a provision could generators. We only w'ish to point
)
Nuclear Information and Resource Service Comments on 10 CFR 62 Em Acc to LLW I
cage 3
)
1 l
penalize states and compacts for taking on longer-lived and more ,
j concentra,ted wastes. l l
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. .
waste(3) areThere could eligible be a conflictAccess for Emergency of interest whenif they DOEare and DOD providing NRC with the assessment of the impacts on the " common defense and security" of a) . accepting the waste for emergency access and b) allowing the continued generation of the waste requiring emergency access.
- 2. States' and compacts' right to refuse waste that does not meet the specifications they are designed and licensed to accept !
should be strengthened.
We support the provision in Section 62.26 (as corrected in 53 FR 15:1926, Monday, January 25, 1988) requiring the NRC to exclude a disposal f acility from consideration (from taking Emergency Access waste) if the waste doesn't meet the license criteria of the facility. The rule should make clear that if state or compact dumps have other restrictions such as prohibitions on wastes that !
I are hazardous longer than 100 years or on Class B and C waste - !
NRC will respect those criteria and not grant access to waste that does not meet those criteria.
- 2. A. Since state and compact " low-level" dupps 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 f or emergency access.
The definition of " Low-Level Radioactive Waste" in Section 62.2 should be changed to exclude the waste (C+ and its equivalent) which is excluded from state responsibility in the 1985 Low-Level Radioactive Waste Policy Amendments Act. Or, if the " Low-Level Radioactive Waste" definition is lef t as is for the sake of consistency with the other NRC regulations, then another phrase should be used to replace " Low-Level Radioactive Waste (LLW)"
throughout 10 CFR 62 so as to make clear that only Classes Ar, B and C waste are eligible for any emergency access. (Further, should NRC eventually reclassify LLW (in categories other than A, B, and C).)
- 3. Incineration should agt be required as a part of maximum volume reduction or waste treatment prior to NRC granting emergency access.
1 4
- Nuclear Information and Resource Service Comments on 10 CFR 62. Em Acc to LLW 'Dispe page 4 l Compaction and supercompaction may be required and possibly other solidification treatments but incineration releases radionuclides into the environment, generates radioactive ash that must then be solidified and continues' the process of generating more
" low-level" radioactive waste. This rule should in no way require radio etive waste incineration.
<4. States and compacts that are required to accept emergency access waste should be permitted to charge fees and surcharges on emergency access waste and.to enforce regulations and criteria-that they determine are necessary for responsible isolation of the waste from the environment and to ho?.d the generators'llable I A
for long-term care costs. ,
1
- 5. We encourage NRC not to weaken any of the requirements for Emergency Access applicants. .
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- February 17, 1988 'h8 ((g jg p3 gg DEPARTMENT FOR HEALTH SERVICES The Secr3tary of the' Commission {[8CE Ci : cnWit.l.'<
U. S. Nuclear Regulatory Commission N (lp~.['
- i Washington, DC 20555 1
Attn: Docketing-and Service Branch Re: Proposed Rule, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities"; 10 CFR Part 62: 52 Federal Register 47578-47589'(December 15, 1987) 1 I
I The Kentucky - Radiation Control Program would like to make its wishes known, relative to the above referenced proposed rule, by i totally supporting the comments provided by Terry R. Lash, Director, j Illinois Department of Nuclear Safety, in a letter (attached) submit- I ted to the U. S. Nuclear Regulatory Commission dated February 11, 1988.
Rather than reiterate the various comments contained in the attached letter, we feel that Dr. Lash's comments are not only reason-able but fully justified. Not only does he agree with much of the proposed rule but he points out errors that must be corrected.
In addition to managing the Kentucky Radiation Control Program, I also serve as Commissioner on the Central Midwest Compact Commission.
As Dr. Lash stated, the state of Illinois is presdntly 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. l a
It is essential the proposed rule be " draf ted correctly because incorporation of inaccuracies and ill-defined statements will dramat-ically effect how low-level radioactive vaste disposal facilities can function.
I fully realize the comment deadline has passed as heavy snown coupled with a federal holiday delayed this writing. Nevertheless, thank you for the opportunity to comment on the proposed rule . con-cerning emergency access. .
1 oerely, grsc /
Donald R. Hughes, Sr., Manager Radiation Control and Commissioner Central Midwest Compact Attachment (1)
Acknowledged by ca rd. . . . . . ., ,,-,;;;4.
"An Equal Opportumty Employer M,F/H" C-----___ ___._.________.__m.,_, . _ _ _ . _ _ _ _ _ _ , _ , _ _ _ _ _ _ _ _ _ ,
w STATE OF lLLINOIS -
DEPARTMENT OF NUCLEAR SAFETY 1035 OUTER PARK DAIVE SPMNGF:EL,0 62704 j (217).785 9900-TERRY R LASH D'a m oa February' 11,,1988 The Secretary of the Comission U' S. Nuclear Regulatory Comission Washington, D.C.:20555-j Attn: Docketing-and Service Branch Re: Proposed Rule, " Criteria and. Procedures for Emergency Access to'Non-Federal.and Regional Low-Level Waste Disposal Facilities;" 10 CFR Part 62; 52 Federal Register 47578-47589 (December 15,1987)
The' Illinois Department of Nuclear Safety'(" IONS").hereby submits its. j comments on the above-identified proposed rule concerning emergency access to l non-federal low-level radioactive waste ("LLW") disposal facilities. IONS is l the radiation control agency of the State of Illinois,'and is responsible for i establishing and regulating a low-level radioactive waste disposal facility in Illinois to serve the Central Midwest Interstate' Low-Level Radioactive-Waste Compact.
The State of Illinois and the Commonwealth of Kentucky created'the Central Midwest Interstate Low-Level Radioactive Waste ~ Compact (" CMC"), which was approved by Congress in the Low-Level Radioactive Waste Policy Amendments Act of1985("AmendmentsAct"). The CMC Commission has designated Illinois.as the host state for a regional LLW disposal facility. IDNS is presently engaged in ';
the process of selecting a site for the facility under the Illinois Low-Level Radioactive 5faste Management Act. IONS and CMC are making every effort to )
comply with the milestones under the Amendments Act. j General Coments
- 1) IDNS agrees with the.NRC's determination that establishing criteria and
. procedures by rule, in advance, is an appropriate approach. Establishing procedures in advance of a request allows the NRC to respond quickly in >
the event of an. imminent threat. Establishing criteria in-advance allows potential applicants.to plan accordingly, and serves notice that.the.
emergency accets provisions may not be used to circumvent the express 1 provisions of the intent of the Amendments Af:t.
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- 2) .10NS agrees with the statement preceding the proposed rule that NRC sh:uld
" ... reinforce'the idea that prob 1 cms with LLW disposal are to be worked out to the extent practical among the states...." The proposed rule does not, however, expressly encourage states and compacts to enter into cooperative agreements for emergency access before the need for such access arises. Such agreements would be consistent with the intent of Congress and should help to avoid any immediate and serious threat to the I puBlic health and safety or the common defense. The_ rule should expressly encourage states and compacts to enter cooperative agreements.
- 3) IONS strongly agrees with the statement preceding the rule that " Congress' believed it was important for_ the successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit ~of the development of new LLW disposal $
capacity." We believe this statement should be made part of the rule.
Development of new.LLW disposal capacity is a controversial and difficult- k task. The task is even tr. ore difficult when citizens in states such as Illinois, where progress is being made, hear and read statements from officials in other states that the framework set out by Congress is flawed and that it may not be necessary for every state to take steps to provide.
for.the disposal of low-level radioactive waste generated within its ,
borders. It'is IONS'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 by the ';tates as an alternative to making a diligent effort to fulfill their responsibilities.
- 4) IDNS observes that the proposed rule does not address the provisions of Section 6(f) of the Amendments Act, which pertain to reciprocal access.
IDNS recommends that the proposed rule address reciprocal access and )
recognize that a condition to obtaining emergency access is providing
" ... reciprocal access for an equal volume of low-level radioactive waste having similar characteristics to that provided equal access."
- 5) The proposed rule does not address the issue of disposal. fees for wastes disposed of under an emergency access determination. The obligation of a j state or compact to accept wastes granted emergency access should be l conditioned upon the applicant's payment of disposal fees and surcharges I as applicable.
Soecific Comments and Recommendations
- 1) f62.2 The definition of Low-level Radioactive Waste is incorrect. For purposes of emergency access to non-federal and regional disposal facilities. the definition should be limited to that sub-class of low-level radioactive waste for which states have been given responsibility under 42 USC 2021(c). The definition should read:
" Low-level Radioactive Waste." (LLW) means A) radioactive waste, other than radioactive waste generated by 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
. , . ;. , , ~.
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1 7 in effect on Janu'ary 26,'1983D and-B): radioactive' waste. described in A) thattis generated by thel federal, government, u'nless such waste is' 1)' owned or generated.by the' Department;.of Energy. 2) owned or
- generated by the United States Navy as a result _of; decommissioning'.of
' vessels.of- the United States Navy. 3) owned or generated .as a; result-
.of. any research - development,q testing, or production of any atomic weapon, or 4) identified under the Formerly: Utilized. Sites Remedial
- Action Program. .
Under the' Amendments Acti disposal of waste that11s ~above class.C - as; -
defined in 10 CFR.61.55 on January 26,l1986. . is..not the responsibility'ofe the, states. ,The Nuclear. Regulatory Comission.may not,. through _
regulation. alter this statutory limit.-yet the.-proposed definitioniof-low-level radioactive' waste would-include " radioactive material.that'the j NRC, consistent with existing 11aw, cla'ssifies as low-level radioactive- -j waste."- IONS objects to any_ attempt ~,- whether deliberate or inadvertent, q to. place: additional- burdens on the states .in. contravention'of express 1 J
statutory limits. The proposed definition is particularly troubling.in
-light of-the Amendments Act's. express prohibition on requiring any_
regional facility to accept waste thatLis above class C,.or FUSRAP 1 wastes. 10NS'also notes that providing disposal capacity for naturally ' .l o ccurring and accelerator-produced materials-is not'the states' responsibility under the ' Amendments Act, and that the NRC has no' authority under the Atomic Energy Act to include these materialsLin any definition of low-level radioactive waste.
Section 3(b)(1) of the Amendments Act provides that the federal government.
is responsible for_the disposal'of certain_ types of radioactive waste (i.e.~, above class C) and radioactive waste' generated by certain; activities of the .federa1' government'(e.g., 00E waste, defense waste).
~
Although the three comercial disposal, facilities will continue to operate, and states and compacts are required'to establish new disposal capacity, there is no provision in.the Amendments Act for. establishing new disposal facilities for waste that'is'a-federal responsibility.. IDNS=
~
suggests that one possible scenario under which emergency access might be requested is closure of existing federal disposal facilities. In IDNS's-opinion,- the proposed rule. is substantially deficient in its failure to ;
follow the express mandate of Congress that no non-federal facility ever !
be required to accept waste.that has been made a federal responsibility.
In the S@plementary Information section of its Federal Register notice, i the NRC states that the emergency, access provision was "not intended to be ;
used to circumvent other provisions of.the Act." (52 Fed. RJe . 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 Comittee 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 b., the D00 was expressly considered and tejected by Congress. . The NRC should abide by that decision and the express language of the Amendments Act in promulgating this rule. I
- 2) 562.2 The definition of " Temporary Emergency Access" should be changed as t
5
l-( , 14 -
l l
E follows: .
.j
'"' Temporary Emergency Access' means access that is granted at NRC's.
discretion upon determining that access is necessary to eliminate' an l imediate and serious threat to the public health and . safety,'or the- )
common defense'and security.- Such access expires 45 days after granting."
The NRC's authority to grant
- emergency access, whether temporary or not.->-
~
is limited to those situations where such access is "necessary to eliminate an imediate threat" _(42 USC 2021, emphasis added.) The .
Amendments Act does not, as the proposed rule suggests, allow the NRC to l grant emergency access to'" alleviate" such a threat. " Alleviate" islnot j
synonymous with ." eliminate." Only where the-applicant can show, and the ' l NRC can find, that the threat would be eliminated by emergency access, can. l the NRC grant emergency access.
- 3) {62.12' Add a'new subsection (c) as follows: l
"(c) That the material for which emergency access'is requested is
' low-level radioactive waste' as defined in this Part." .,
and,re-designate the proposed subsection (c), and following subsections, as appropriate. This will help assure that no state will-be ask.ed to dispose of waste that.is not a state responsibility under the Amendments l Act. .
- 4) {62.12 (f)(3) should be modified as follows:
"(3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and safety, or the common defense and security."
- 5) {62.12 Add a new E62.12(k) as follows: .
4
"(k) A description of how granting emergency access would eliminate an imediate and serious threat to the public health and safety or-the common defense and security." -
- 6) {62.12 ~5 mend the proposed {62.12(k)' as follows and re-designate as
{62.12(1): J
"(1) Where_the request is made wholly.or in part on the basis of a serious and imediate threat to the comon defense and security. . !
certification by the Secretary of Energy and the Secretary of Defense that l the waste for which emergency access is granted is not owned or generated j by the Department of Energy, owned or generated by the United States Navy i as a result of any decommissioning of vessels of the United States Navy, or owned _or generated by the federal government as a result of any ;
research, development, testing, or proc.ction of any atomic weapon, and that access to disposal is necessary to eliminate the threat to the common i defense and security."
e a
' " - - - ~ ~ - - - - - - - - - - - _ , , . . - , _ _ _ _ _ _ , _ , _ _ , , _ _ _ , , _ _ _ , _ _ _ _ _
5-l l
I As explained in comment #1. under the Amendments Act it is the responsibility of the-federal government, not the states, to dispose of radioactive waste {
generated by certain federal activities safely. IDNS holds that no state can !
I be forced to accept responsibility'for disposing of these wastes'under the j emergency access provisions of the Amendments Act or.through any action of a federal regulatory agency. In addition to the generator's certification that l the waste for which emergency access is requested meets the operational l definition suggested in comment #1 above, these additional safeguards are necessary to assure protection of states' rights in'the event that the request for access is based on a claim of imediate and serious threat to the comon -
defense and security.
- 7) Modify $62.13(c)(6) as follows:
"(6) Any legal impediments to implementation of each alternative (
including whether the alternatives will comply with applicable NRC requirements, and the requirements of the Compact Comission and the l
~
State where access was considered."
It should be made clear from the application for emergency access whether denial of access was based on failure to comply with applicable standards. ,
NRC should not grant emergency access when the emergency was brought about by. (
the applicant's own failure to comply with regulatory standards, i
- 8) Modify s62.11(d) to read:
"The request must include clear and convincing evidence that the ,
applicant has exhausted all other options for managing its wastes and -l l
must include the basis for:
(1) Rejecting each alternative; and (2) Concluding that no alternative is available."
~
Section 62.13 of the proposed rule specifies that a description of alternatives considered must be included in a request for emergency access, but it does not include the provision in 1he statement preceding the rule that, "(alpplicants for emergency access will have to provide clear and convincing p/idence that they have exhausted all other options for managing their wastes." This language is appropriate and should be incorporated into the rule. 4
- 9) f62.14 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 common defense and security."
- 10) 562.18 Replace "may" with "shall" in this section. ,
This section provides that the Commission may ceny a request if it is
based on circumstances that are too remote and speculative to allow an If the informed decision. IDHS recommends that "may" be changed to "shall."
Commission cannot make an informed decision on a. request, it should not grant the request.
- 11) s62.21(a) should be modified as follows: .
"(a) Not later than forty-five (45) days af ter the receipt of a request for a Commission determination under this Part from any. J generator of low-level radioactive waste, or any. Governor on behalf of any generator or generators located in his or her state, the .
Comission shall make a determination whether-- ,
r i
(1) The result for emergency access to a regional' disposal facility or a facility within a state that is not a member of a compact, for specific low-level' radioactive waste is based on an imediate and serious threat to: l (1) the public health and safety, or l
(ii) the common defense and security; (2) The threat cannot be mitigated by any alternative !
consistent with the public health and safety, including those l identified in 662.13, (3) Granting emergency access as requested would eliminate the threat, and (4) The material for which emergency access is requested is low-level radioactive waste as defined in this Part and a State responsibility under section (3)(a)(1) of the low-Level Radioactive Waste Policy Amendments Act of 1985.
- 12) 62.21(c) Replace " alleviate" with " eliminate" in this subsection.
- 13) (62.22 Add a new {62.22(d) as follows:
"(d) Any grant, denial, or refusal to consider a request for emeFgency access or temporary emergency access under this Part is a final agency action."
If the request is indeed based on an imediate threat, and the decision is challenged, then prompt judicial review is necessary to resolve the issue. Clarifying that a grant or refusal is a final agency action may remove potential obstacles to obtaining prompt judicial review.
- 14) $62.25(e)(1) Replace " good faith effort" with " diligent effort, reasonable under the circumstances," in this subsection.
f Subsection (e)(1) provides that the Commission, in making an emergency access determination, will consider whe'ther the applicant "[hlas demonstrated O
that a. good faith' effort was made to identify " and evaluate alternatives that10NS sub would mitigate the need for emergency access.The effort must be objectively good faith should not be sufficient.
reasonable and diligent.
15)
A ne'w j62.26(b) should be added as follows:
(b)
If the Comission designates a regional disposal facility to receive the waste for which emergency access has been granted, the Commission shall request the approval 1heofrequest the Compact Commission for approval shall for the designated regional facility.
include the entire administrative record of the request for emergency-access under this Part, including the reasons for the Commission's findings. No grant of emergency access under this Part shall be effective prior to 15 days from receipt of a request for approval from the Comission, Section 6(g) of the Amendments Act provides that:
l
"(e)ny grant of access under this section.shall be submitted to the compact commission for the region in which the designated disposal l facility is located for such approval as may be required under the terms of its compact."
l 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 from the Compacts.
access is not clear, the NRC may not, by rule, remove disposal f acilities, and that the Amendments Act makes no similar provision for non-federal, non-regional facilities.
- 16) 562.27 Add a new Q62.27, as follows:
Compliance with conditions of emergency access; termination of "562.27 .
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 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.
The Commission shall terminate a grant of emergency access when (b) emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
The Commission may terminate a grant of emergency access if an (c) applicant has made a material false statement in the application ~for emergency access or if the applicant has f ailed to comply with this part or conditions set by the Commission pursuant to this Part."
The proposed rule does not address termination of emergency access.
Furthermore, under tne rule as crocoseo it is not clear that a state or e
- - - - - ~ ~ - _ _ . _ _ _ _ _ _
. . . .e.
l compact could refuse to dispose of waste granted emergency access even if the I j
applicant or the wastes did not meet the conditions of disposal set by the Commi s.} ion. {
l 1
Miscellaneous Comments and Questions .
J
- 1) 662.6 Specific Exemptions The provisions of this section would allow the Commission to bypass all of the procedures of the emergency access rule by granting special exemptions. !
Why is this section necessary? Under what circumstances would HRC' grant 1 special exemptions? What assurances do states and compacts have that this (
I exception will not, in practice, become the rule? This provision should be deleted.
- 2) 662.11 Filing and Distribution of Determination Reques't j i
It is provided in subsection (b) that a copy of each request for emergency access will be made available for inspection in the Comission's Public Document Room and in the " Local Public Document Room of the facility 3 submitting the request." A request for emergency access could be submitted by l any Governor or any generator of low-level radioactive waste. What is the source of the requirement that all such persons maintain local public document rooms?
- 3) 562.23 Determination of Granting Temporary Emergency Access This section provides for the granting of temporary emergency access to
" ...an appropriate non-federal dispesal_ 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 Comission?
~
Thank you for the opportunity to comment on the proposed rule concerning emergency access. Do not hesitate to contact me if you have any questions about these comments or if you would like additional information.
Sincerely yrmes -
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5erryR.Lahh Director TRL:sp .
bec: Clark Bullart PPAC Conald R. 'ughes CU
.:oines Brown Ed l'elr.inski 7retchen Bonfert Karen Witter Paula '. 01ff
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PHILADELPHIA ELECTRIC COMPANY 23 31 M A RK ET STR EET P.C 5 3X 8699 PHILADELPHIA A. P A.19101 (21516414s0o JOHN 5. MCMPER '
CONeon veCC. PRE $tDENT e NUCbE AM Mr. Samuel J. Chilk Secretary of the Ccrm.ission U. S. Ar: lear Regulatory Conmis:,lon Washington D.C. 20555 Attentiot
- Docketing and Service Branch
SUBJECT:
Proposed Rule on Emergency Access to Low-Level Radwaste Disposal Sites
Dear Mr. Chlik:
fJotice 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 a-e well developed and w;11 be effective in rrcintaining control One aspect of of the amount of radioactive waste sent to such sites.
this process, however, may prove to be a detriment to its snooth administration: the 10-dry public conment period.
If a situation it, truly an emergency, de;aying the disposal of waste may result in an increased hazard to public health and safe:.y.
Additionally, the current climate of pubile awareness and tendency towards legal intervention could combine in action aimed at the cessation of the generation of waste (i.e. the shutdcwn of the generator). Another method to keep the pubile informed should be developed: perhaps a periodic pubilcation of all petitions for emergency access, and the results of each.
We are confident that the proposed crite-ia are strich. enougr. to protect thc public health and safety without celeying the process to conside;.public concerns for each occurrence.
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COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES l P E N N 5 Y.L_QA . . y.
Post Office Box 2063 , gg Hardsburg Pennsylvan!s17120 . . . ,
February 17, 1988 )
FficEOfSECHEfre Bur:su of Radiation Protection . . . . .
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Secretary of the Commission l U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Attn: Docketing and Service Branch l
Gentlemen: l The Department of Environmental Resources of the Commonwealth of Pennsylvania has reviewed the proposed rule 10 CFR Part 62 entitled " Criteria and Procedures for Emergency Access to Non-Federal and. Regional Low-Level Waste Disposal Facilities" (F.R. Vol. 52, No. 240, p. 47578-47589) and have the following comments:
This proposed rulemaking has several major flaws that if not corrected could potentially act to undermine.the substantial progress that has been made to date on implementing the Low-Level Waste Policy Amendments Act of 1988.
First and foremost, this proposed rule appears to violate the i
l 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 i.nclude 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.
It appears as if waste which is not a State responsibility under the Act (i.e., DOE waste) could be included under the emergency access provisions. We do not believe that this was the intent of Section 6 of the Act. We find it hard to believe that the Federal Government with all its infinite resources, should not be the first and only party responsible for disposal of this waste.
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The most'likely scenario that may require emergency access appears to,be that of a. bankrupt' generator where the-State or ,
' Compact cannot or.will not provide for. disposal. Under these circumstances, it is not-clear who would have.the responsibility for the application, liability, volume reduction, and cost requirements.
In orderithat the credibility of the process be maintained,
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this rule must not be viewed as.a way of' circumventing the I
responsibilities-and arrangements that have been carefully implemented as required under the Act. Most of the Host State implementing laws and/or compact laws have very specific provisions and. restrictions concerning out of' Compact access. If at all possible, those' provisions should dictate when and under ,
what circumstances emergency access should occur. The provisions of this rule should only'be used as a last resort and the language should be such that this intent is clear.
1 I in addition, we have reviewed the specific issues for which l input has been requested and have the following comments:
l l 1) What scenarios are envisioned where emergency access would be required? ,
-- As written, the rule could require acceptance for disposal of l federal waste under " temporary emergency access" provisions.
-- If a State or compact disposal facility were unexpectedly closed and no reciprocal agreements had been made prior to the closing. ,
1 -- 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 which exceed State or Compact capacity for safe disposal.
' approach to
- 2) What are the determine an potential immediate problems with thre and serious NRC[t to the public health and safety?
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2' The difference between " emergency access" and " temporary' gemergency access"" provisions for this determination are not.
consistent-with section 6(d)'of the Act. .The Act clearly states that an emergency access determination must be made before. temporary emergencyjaccess can be considered.. "Upon determining that emergency access;is necessary... the commission". This,is not< consistent with the definitions and suggested implementation of the two' terms'in'the proposed '
rule.
- 3) What are the potential problems.with the determination of serious and immediate threat to the common defense and security?.
-- In making this determination, can.all-or'part of.the information provided by the. generator be kept confidential, or not be released to. the receiving facility, under the claim of national security?
- 4) What are the potential difficulties'with the proposed' i approach for determining the receiving site?
-- The Host State or Compact in which the requesting generator ]
resides should be required to exhaust all options and accept responsibility for dealing with'the problem before being allowed to make a request.
-- The issue of economic feasibility and a person's financial capability should not be a consideration in dealing with emergency access. - '
-- If a legitimate emergency access condition is determined, and j 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. -
The are no provisions for equitab.le distribution of the waste-if non-federal facilities are needed for disposal.
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-- -As written,1the 20% volume criteria could~ eliminate the '
smaller non-federal facilities from consideration'almost 'l l
immediately. ' Provisions can be 'added which wouldL divide -typ .
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.
- L -- There.are no' provisions for existing State or Compact laws 1 with respect to reciprocal agreements or time requirements for emergency disposal conditions as covered in Section 6(f). ]
of_the'Act.
-- Is a determination appealable?
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- 5) What should the NRC do if no site.is found to'be suitable for .
waste requiring. emergency access.
-- 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 reciproca1' agreements now for the' determir,ation of emergency disposal sites in the . future. Such agreements should include federal disposal facilities.
Sincerely, idA P Dwde-
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c William P. Dornsife, Chief l Division Of Nuclear Safety Bureau of Radiation Protection l
I CENTRAL MIDWEST COMPACT COMMISSION for low-Level Radioactive Wasie Management !
1035 Outer Park Drive e Springfield. IL 62704 + 217/785-9737 DM HE iE(- l
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- i ClorkW.Bullord Choirrnon Terry R tosn.secretow. treasurer DOCKET NUMBER PROPOSED RULE N- _"
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Duwid R. Hughes. Sr., Comrnissioner {g rp OUICL & 3it.nt.i A8 Y February 16, 1968 DOCKE!N .'. SERVtCL BRANCH The Secretary of the Commission U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Attn: Docketing and Service Branch RE: Proposed Rule, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities;" 10 CFR Part 62; 52 Federal Register 47578-47589 (December 15, 1987)
The Central Midwest Compact Commission f ully endorses the comments submitted by the Illinois Department of. Nuclear Safety (1DNS) on February 11, 1988.
The 1DNS comments deal with sensitive political issues that must be resolved promptly if the Central Midwest Compact is to meet the remaining milestones I 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 te respecting the statutory ex clusion of greater-than-Class C waste. i We urge you to adopt the IDNS comments intact so our ability to meet the remaining milestones is not impeired.
Sincerely,
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Clark W. Bullard Chairman CWB/1h _
cc. T. R. Lash D. R. Hughes MAR 1 EES Acknowtcd;;ed 59 card. -"-
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PHILADELPHIA ELECTRIC COMPANY :hNhC
. 2301 M ARKET STREET '
P.O. BOX 8699 1B FEB 29 N1:40 PHILADELPHIA A. PA.19101 (215)841 45oo ffiQ ;,; y ,g ,
CME 19<!, f. it..w ig JOHN S. KEMPER BRA NC't causen vies eassiosat aucLean .,
February 24, 1988 Mr. Sanuel J. Chilk
., Secretary of the Ccr: mission U. S. Nuclear Regulatory CenTnt ssion Was' ington D.C. 20555 Att.ention: Docketing and Service Branch SUBJZCT: Proposed Rule on Emergency Access to Low-Level Radwaste Disposal Sites
Dear Mr. Chilk:
Notice of a proposed rule on emergency access to non-federal icw-level radwaste disposal faellities appeared in the Federal Register on Decerrber 15, 1987. Philadelphia Electric Ccrmany believes that the proposed criteria for. allowing emergency access to disposal sites are well developed and will be effective in maintaining control of thC mw.rit of radioactive waste sent to such sites. One aspect of this process, however, may prove to be a detriment to its srTooth achit nistration: the 10-day pubile corrment period.
If a situation is truly an emergency, delaying the disposal of waste may result in an increased hazard to pubile health and safety.
Additionally, the current climate of public awareness and tendency tcwards legal inteniention could ccrrbine in action aimed at the cessation of the generation of waste (i.e. the shutdown of the l
genaratorh Another method to keep the public inforTned should be developed: perhaps a periodic publication of all petitions for emergency access, and the results of each.
We are confident that the proposed criteria are strict enough to protect the pubile health and safety without delaying the process to consider public concerns for each occurrence.
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- Route 2, Box 51-B 118 FEB 29 P3:13 Vian, Oklahoma 74962 oroct of : .-r e l > 1-918-773-8184 00MUgggc{M j February 24, 1988 Secretary of the Comn ission, i Samuel Chilk '
U.S. N.R.C.
Washington, D.C 20555
Dear Mr. Secretary,
NACE joins with Mr. Marvin Lewis of Philadelphia, PA in his opposition to Proposed Rule: Criteria and Procedures for Emergency Access to Non Federal and Regional Low Level Rad Waste Sites.
The rule would allow the Federal Government and the NTO to regulate a State function...or at lease a Compact function.
This is an infringement of State's rights which has both finan-cial and health impacts.
Since State and compact dumps are being developed for commer-cial waste, this is the only waste that should be placed into the dumpsites. Federal waste should be disposed of at their )
own facility, since it would be unknown what might be contained in waste coming from the DOE and the DOD. It is our belief that federal waste is ofter greater that Class C waste.
We must all act now to protect future generations.
Sincere '
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j airperson j cc Marvin Lewis Marie Green
['sMff7 MikeDreySynar Wilma Mankiller i MAR 1 1988
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TEL1 PHONE AC $018612000 1 1 W. JCntELYN ELDERS. W.D.
BILL CUNTON M CTOR GOVERNOR U"IflCE 0CKEhNG.;* N E5t ' Ab.f A SE3'VICI-BRANCH l February 18, 1988 I
l Secretary of the Commission )
U.S. Nuclear Regulatory Commission !
Washington, D.C. 20555 AR: Docketing and Service Branch.
Dear Sir:
Members of the Governor's Low-Level Radioactive Waste Advisory Group have ,
reviewed the proposed rule, " Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities'. In response to your request for comments on the rule, we submit the following: 1 I
General Comment l l
l The provisions for emergency access outlined in Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act) :re
)
l intended as a last resort to provide access to a regional or non-federal <
low-level radioactive waste (LLRW) facility. The proposed rule appears j to be compatible with these provisions in that the criteria set forth are stringent enough to render it improbable that waste generators would )
qualify for emergency access. We support the concept of energency access as presented in the proposed rule and make special reference to the f act that the process must not be used to circumvent the development of regional compacts.
Specific Comments
- 1. The Act and the proposed rule imply that granting temporary emergency _
access is a one time action that cannot be er e-ded. 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.
- 2. If the need for emergency access is the result of a regional or
. non-federal facility denying access to a generator, the reason (s) access was denied should be considered by the NRC when making its decision.
s m nm.u ' s e,.e,. ------,7_.,_..,__
Response to NRC Specific Requests for Comments
- 1. What scenarios are envisioned.where emergency access would be requifed? -
Response s *The regional or non-federal facility utilized by generators is closed by regulating authorities, the facility operator or extraordinary events.
- Access to a facility has been denied-for non-technical reasons.
i
- Extraordinary waste streams that do not conform to those acceptable at a regional or non-federal facility._ '
l 2. What are the potential problems with NRC's approach to determining an immediate and serious threat to the public health and safety?
Response: No. comments at this time.
- 3. What are the potential problems with the arrangement' proposed for ]
making the determination of serious and immediate threat to the common defense and security?
Response: No comments at this time. l l
- 4. What are the potential difficulties with the proposed approach for j designating the receiving site? '
Response: No comment at this time, i
S. What should NRC do if no site is found to be suitable for waste l requiring emergency access?
Response:
- Consider disposal at a federally operated facility. ,
1
- Allow indefinite "in situ' or " intermediate location' storage.
1 -
Sincerely, l
Ya. . LLso G eta J. Dieus, Director Division of Radiation Control & Emergency
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Management l '
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ENCLOSURE C f m.
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REGULATORY ANALYSIS l
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e 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 r'equestor, to make both deter-minations prior to granting emergency acc'ess. q The Act further directs NRC to designate an operating LLW disposal facil-ity to receive the waste which is granted emergency access and directs NRC to notify the appropriate State and Compact officials regarding the designation.
The Act provides NRC with 45 days from the time a request is received to determine whether emergency access is rcquired and to designafe a facility.
Although the Act does not require NRC te develop a rule to carry out its Section 6 responsibilities, NRC staff recommended a rulemaking to e.stablish !
the procedures and criteria that will be used in making.the required emergency j access determinations. In order for a requestor to be eligible for emergency ,
access consideration they must have already been denied access to LLW disposal by the States or Compacts with operating disposal facilities. Thus 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 1 Enclosure C
authority to decide whether or not' access will be provided, emergency access -
decisions are likely to be controversial'and could be challenged. By setting outthe[oceduresandcriteriaformakingemergencyaccessdecisionsinarule which reflects public comment, NRC intends to' minimize potential delays in the actions necessary to protect the public health and' safety.
- 2. OBJECTIVES j
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. {
l 1
- 3. ALTERNATIVES 3.1 Using Rulemaking i
l Under this alternative the criteria and procedures to be used by NRC to l make emergency access decisions would have the force of law. Using rulemaking also provides binding criteria and procedures and therefore would add predict-ability and stability to the regulatory process. In addition, rulemaking I allows for input from potentially affected individuals and organizations, should minimize potential delays in the actions necessary to protect the public health and safety, and will help to ensure that the Commission wil1 be able to make a decision on emergency access requests in the time required by the Act.,
These effects are desirable since emergency access decisions are likely to be highly controversial.
i 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 2 Enclosure C
, i I
u addition, since policy statements.are typically broad, a policy statement was i not considered appropriate to establish the detailed criteria and. procedures
~
required t'o' implement NRC's emergency access responsibilities.
3.3 Ta_ king No Action i
The alternative of taking no action was also rejected. Under this alter- 1 l
native, both the person requestinghan emergency access determination and the Commission would have to rely on the language in Section 6 of the Act for guidance as to what information was to be used by the Commission to make the determinations. The Commission could not be assured of receiving the relevant information necessary for.a determination and that could cause delays in_the Commission's mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with the spirit of the Congressional directive, to provide predictability in the regulatory process, and to assist the Commission in making individual.
determinations.
~
- 4. CONSEQUENCES 4.1 Benefits i
. I The principal benefit of the rule flows from the fulfillment of the statutory objcctive that decisions to deny access to low-level radioactive waste disposal facilities made pursuant to provisions of the Act should not l result in a serious and immediate threat to the public health and safety or the common defense and security. In those cases where emergency access is granted under the rule, the requestor will receive the benefit of continuing j the activity responsible for generating the waste at least until.the grant expires. Society will benefit from continuing access to the goods or services produced by that activity and the elimination of a serious threat to the public health and safety. Since emergency access decisions will be made on an individual generator / licensee basis, and since NRC staff cannot predict the i number of requests that might be received, it is not possible to quantify the benefits associated with the rule. ,
i 1
I
. 1 3 Enclosure C
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4.2 COSTS i 4.23 " Applicants _for Emergency Access j Generators of LLW,.NRC or: NRC Agreement States licensees, Governors or 1 other State chief executive officers on behalf of the generators or other
" persons" as defined in the proposed rule may request emergency access. I 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 4 to collect the information and perform the analysis on which the request will I 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. 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.
Other possible costs associated with this final action could actually be 1
incurred through the requirements and the very specific mandates in Section 6 1 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 ]
l 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 of curtailed production. Since NRC is mandated to make emergency access decisions, these costs would result regardless of the issuance of this rule.
4.2.2 NRC As provided by Section 6 of the Act, NRC will only have about 30 working days to respond to each request for emergency access (45 calendar days = 6 and 1/2 weeks = approximately 30 working days). NRC anticipates that approximately 180 staff days will be required for each request. Using generic cost estimates l- of $40/hr x 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> x 180, it would cost NRC under 560,000 per 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 4 Enclosure C
l;
- ),
I Section 6 of' the Act be applied only .in ." rare emergencies," it is not expected I that the regulation will be applied with any frequency.
InYder to implement this final rule, it may be necessary for NRC staff to develop guidance to assist applicants in preparing their requests, and to ;
assist NRC staff in conducting their' reviews. This may represent'an additional "
commitment of NRC resources.
SinceSection6precludesNRCAgreementStatesfrommakingemerhjency 1 access decisions, the final action will not have an impact on Agreement State resources. l l .,
l 4.2.3 Department of Energy (00E)/ Department of Defense (00D)
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 I security, include a statement of support from D0D and/or 00E. NRC estimates that approximately five staff weeks ~or approximately 25 staff days would be.
required for each emergency access request processed by DOE or 00D. At the same rate as NRC, it would cost under $8,000 per certification.
- 5. DECISION RATIONALE I
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 cs 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 denied further access to existing disposal sites.
l 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 plans to issue the final rule by Novemb'er 1988, so it will be in place before 5 Enclosure C L
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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.
In ttie event that a request for emergency access is made before the final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
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- 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 ar.d proce- ,
dures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to the public health and safety or the common ,
defense and security. For the most'part, the final rule is an administrative l 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 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 antic'ipated 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 s curity and the environment are protected. Whether the Commission decides to grant emergency access, or ,
to deny it because alternatives are available, NRC will make the decision only when satisfied that the action to be recommended will minimize the effects of concern and maximize needed prote'ction.
The Commission designation'of the LLW disposal facility to receive the' LLW approved for emergency access should not result in adverse impacts to the 6 Enclosure C
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i environment. .First, Section 6(h) dictates that the total quantity of emergency I access LLW approved for disposal at any non-Federal or regional LLW disposal 'I facility 7 dst . fall within the volume caps established cy. the Act, and for any:
12-month period, be less than 20 percent of the total volume of .Lb1 accepted-by that facility during the previous calendar year. 'Thus, the amount of waste provided disposal under the emergency access provision will be much less than .
the total amount of LLW that will be disposed of'in regional or non-Federal disposal facilities. In addition, waste granted emergency access will Lnve to be processed, transported and handled in a manner that cornplies with applicable safety. regulations. Secona, NRC will be considering the characteristics of !
q the LLW requiring emergency access in designating the receiving faci ~lities in i order to cssure that.they are compatible'and that the impacts from each indi- I vidual grant of emergency access are minimized.
- 8. REGULATORY FLEX 1BILITY 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 atfect any generator of LLW.
However, in order for the requirements of the rule to be icposed 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 milectones for LLW disposal development,in Section 5 of the Act.
j Establishing criteria and procedures for requesting and granting emergency-access will have a positive benefit for small and large generators alike. It H l
will enable them to better plan to avoid LLW disposal access problems, thus d providing the certainty required for economic growth and development. I 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 dispostl was not going to be available.
7 Enclosure C j i
5 ENCLOSURE D e
DRAFT CONGRESSIONAL LETTER l E l
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_, DRAFT CONGRESSIONAL' LETTER
Dear Mr. Chairman:
Enclosed for your information is a copy of a notice of final rulemaking for.
10 CFR Part 62 to be published in the Federal Register.
This 'rulemaking implements Section 6 of the Low-Level Radioactive Waste Policy l
Amendments Act of 1985 (the Act). Section 6 directs the Nuclear Regulatory Commission (NRC) to grant a generator or State "emergen;y 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 ard security. Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is proposing this rulemaking to establish the procedures and criteria that will be used in making the required emergency. access decisions.
In developing this final rule, NRC has tried to be consistent with both the actual text of Section 6 and the Congressional intent expressed in the 1e.gisla-l tive history and to reflect puolic comments to the extent possible.' The final rule sets strict requirements for granting emergency access, places the burden
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of demonstrating that there is a need for emergency access on the party request-ing emergency access, and should serve to encourage potential requestors to l seek other means for resolving the problems created by lack of access to LLW disposal facilities.
' Sincerely, -
l' j Victor Stello, Jr.
Executive Director for Operations l
Enclosure:
As stated i
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1 Enclosure D
6 ENCLOSURE E
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l PUBLIC ANNOUNCEMENT j l
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NRC ISSUES RULES FOR GRANTlHG~ EMERGENCY.ACC. 1 a
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TO EXISTING LOW-LEVEL RADI0 ACTIVE-WASTE DISPOSAL FACILITIES 1
1 The Nuclear. Regulatory Commission is issuing regulations that establis'h. )
criteria and procedures for evaluating . requests for emergency access to-operating non-federal' low-level radioactive. waste disposal facilities.
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l' Under the terms of the. Low-Level Radioactive Waste Pol' icy Amendments Act?
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of 1985, individual states and regional compacts must take certain actions leading to the. development of'their own low-level radioactive waste disposal l capacity within the periods of time specified .in the Act. .lf these actions are l
1 not taken within the time frames specified, generators of' low-level radioactive wastes within the non-complying state or regional compact may be denied access to existing disposal facilities after January 1,1989.
However, the Act authorizes the Commission to grant low-level waste generators or states emergency access to any 'of the operating non-federal low-level waste disposal facilities. In order to grant such a request, the Commission must find that such action ". . .is necessary to eliminate an i
immediate and serious threat to the public health and safety or the common 1
- j. defense and security . . ." and that ". . .the threat cannot be mitigated by any :
alternative consistent with the public health and safety, including storage of low-level radioactive waste at the site of generation or in a storage facility, obtaining access to a disposal facility by voluntary agreement, purchasing disposal capacity available for assignment or ceasing the activities that generate the low-level waste."
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DRAFT Under the new NRC regulation, a person seeking emergency access must submit detailed information to the Commission on the need for access to low ~1evel waste disposal sites; the quantity, type and nature of the material requiring disposal; impacts on public health and safety or common defense and security if emergency access is not granted; the alternatives considered; and the process used to conclude that none of the alternatives are reasonable.
I In making a determination that the circumstances described in a request for emergency access create a serious and immediate threat to the public health and safety, the Commission will consider:
l l (1) the nature and extent of the radiation hazard that will result from the denial of emerger.cy access, including consideration of the NRC's standards for radiation protection contained in Part 20 of its regulations, any standards for the release of radioactive materials to the general environment that apply to the facility that generated the low-level waste, and any other Commission requirements that apply to the facility or activity for which emergency access is being requested; and l
(2) the extent to which essential services such as medical, therapeutic, diagnostic or research activities will be disrupted by the denial of emergency access to waste disposal facilities.
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In making a determination that the circumstances described create a serious and immediate threat to the common defense and security, the Commission will consider:
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3 L(1) whether the activity generating the wastes is necessary to the l protection of the common defense.and securityi(giving consideration to the
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views of the Department of Defense and the Department of Energy) and I
'(2) whether the lack of access to'a disposal site will result in a.
sig'nificant disruption in that activity that will seriously threaten .the - q l .
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common defense and security. 1 l
The new rule also sets out criteria for determining whether to' grant
" temporary" emergency access. The Act allows the Commission to authorize such temporary access for not more than 45. days, without considering available. ]'i alternatives, if it concludes that the threat to the public health and safety- 1 or common defense and security warrants such action.
If the Commission determines that there is a need for emergency access, or l
" temporary" emergency access, it will then decide which operating non-federal l low-level waste disposal facility should receive the waste, using criteria--set l
out in the rule--such as whether the waste and the disposal facility are l
compatible or whether a disposal facility has been previously designated to i
receive emergency access waste. l j
A proposed rule on this subject was published in the Federal Register on December 15, 1987. Changes made as a result of the comments received are mainly clarifying in nature. The procedures and the criteria to be used in making emergency access decisions are essentially unchanged.
The final rule will be effective on (30) days after publication in the Federal Register on ).
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