ML20246M981
| ML20246M981 | |
| Person / Time | |
|---|---|
| Issue date: | 05/13/1988 |
| From: | Kornasiewicz R NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| To: | Mate J NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| Shared Package | |
| ML19316F918 | List: |
| References | |
| FRN-52FR47578, RULE-PR-62 AC24-2-34, NUDOCS 8905190320 | |
| Download: ML20246M981 (336) | |
Text
/* _ /9 (M-2. / [)/O-Date 05/13/98 3'f I
. ROUTING AND TRANSMITTAL SUP 70: (Name, office symbol room number, initials Date -l Dullding, Agency / Post) )
Joseph J. Mate DRA/ PES 1
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EL Action File Note and Return Approval For Clearance X Per Conversation y As Requested For Correction Prepare Reply Circulate For Your information See Me Comment investigate Signature Coordination Justify !
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WMB/RES INPUT F0", INFORMATION COLLECTI0" BUDGET (ICB) F0P. FY 1989 P.EPORT Enclosed is the required form concerning the subject information for 10 CFR PART 62 $
prepared by Ms J. Lambert of WMB/DE/RFS.
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. >/ Mr. M. Haisfield has previously provided
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N SEND i 4fl l If you have 'urther f questions or need 'I additional information please contact me ;
at extension 23878. ,l 00 NOT use this form as a RECORD of approvals, concurrences, disposals, ' ji I cientences, and similar actions & s :hl
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NUCLEAR REGULATORY COMMISSION 10 CFR PART 62 j Criteria and' Procedures for Emergency Access.to Non-Federal and Regional Low-Level Waste Disposal Facilities i
AGENCY: . Nuclear Regulatory Commission. -I d (
ACTION: Final ,
-tw
SUMMARY
- The Nuclear Regulatory Commission-(NRC) is issuing 4 rule to establish %durekd criteria for fulfilling its responsibilities -
associated with acting on' requests by' low-level radioactive waste $
generators, or State officials on behalf of those generators, for l
emergency access to operating, non-Federal or regional, low-level radioactive waste disposal facilities under Section 6 of the Low-Level 1
Radioactive Waste Policy Amendments Act of-1985. Grants of emergency i 1
access may be necessary if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal facilities [and the lack of access results in a serious and immediate threat to the public health and safety or the common defense and security.
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EFFECTIVE DATE: (30 days after publication) l ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555.
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FOR FURTHER INFORMATION 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. Legislative History IV. NRC Approach V. Assumptions VI. The Final Rule-VII. Rationale for Criteria VIII. Terms and Conditions for Emergency Access Disposal IX. Requests For Emergency Access Made Prior to the Effective >
Date of the Rule X. Analysis of Public Comments XI. Finding of No Significant Environmental Impact: . Availability XII. Paperwork Reduction Act Statement XIII. Regulatory Analysis XIV. Regulatory Flexibility Certification XV. List of Subjects k 11-CIC ". s CZ N
I. Introduction and Bac round g915 O
k 1 h sival b f
- On December 15, 1987, NRC published a proposed new Part to 10 CFR
- l. 3 42.
in order to implement its emergency access responsibilities under Sec-tion 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 2
U590-01]'
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(PL 99-240, January 15, 1986), "the Act." The proposed Part 62. set forth thehceduresknd criteria.that the Commission intended to use to deter- l mine if emergency access to non-Federal and regional low-level waste le9 (LLW)disposalfacilit/shouldbegranted. The public comment period for the proposed rule expired on February 12, 1988. The NRC received twenty- f one (21) comment letters en G^) J v... . . . .. . . n u le ucci o an '-
concerned citizens and environmental groups, six fM+-+mm State govern-itC ments, two (2FFFiE LLW compact Commissions, two [Mm industry and y one PPfEF3 nuclear information service.
Y p,pf i The Act directs the States to develop their ownf{LW)dispcsal facil- ;
ities or to form Compacts and cooperate in the development of regional .)
LLW disposal facilities so that the new facilities will be available by January 1, 1993.
The Act establishes procedures and milestones for the selection and j development of the LLW disposal facilities. The Act also establishes a 3 system of incentives for meeting the milestones, and penalties for fail-en i ing to meet them, which is intended to assure steady progress toward new facility development.
The major incentive offered by the Act is that the States and W
regional Compacts wMett meet the milestones will be allowed to continue to use the existing disposal facilities until their own facilities are M 04ebu I available,gno later than January 1, 1993. If unsited States or Compact l regions fail to meet key milestones in the Act, the States or Compact Commissions with operating non-Federal or regional LLW disposal facil-ities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities.
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Section 6 o( the Act provides that the Nuclear Regulatory Commission oW%
(NRC) can grant a generator ' emergency access" to non-Federal or regional b.
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 th common defense and security. The Act also requires that q determiil (_. d
" =da ac +n whether the threat can be mitigated by any alternative con-s.istent with the public health and safety,' including ceasing the activ-ities that generate the waste. NRC'must be abier with the information provided by the requestor, to make both determinations prior to granting emergency access. The purpose of this-regulation is:to set forth the procedures and criteria that will be used by the Commission to determine if emergency access to a LLW facility should be granted.
II. Legislative Requirements In addition to directing the NRC to grant emergency access as I discussed in the Background section, the Act further directs NRC-to designate the operating LLW disposal facility or facilities where the waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the Governor '(or chief executive officer) of the State in which the waste was '
generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to i
their LLW disposal facility is required. The Act limits NRC to 45 days i from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.
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The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request. To ensure that emergency access is not abused, the Act allows that only one extension of emergency access, not to exceed 180 days, is to be granted per request. An extension can be approved only if the LLW generator who was originally granted emer-gency access and the State in which the LLW was generated have diligently) g thoughunsuccessfully)actedduringtheperiodoftheinitialgrantto M-eliminate the need for emepjency access.
The Act also provides that requests for emergency access shall contain all information %d certifications that NRC requires to make its determination.
" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the Commission's discretion because of a serious and immediate threat to the public health and safety or the common defense and security pending a Commission determination as to whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
"Ng.The Act does not r,gquire NRC to develop a rule to carry out its Sectio MM t responsibilities. NRC is issuing this rule to establish the procedures and criteria hat will be used in making the required deter ionsforemergencyaccessf Although Congress provided NRC the statutory responsibility for implementing Section 6 of the Act and gave the Commiscion y authorit
>nal '
to decide whetherr ut access will be provided
, emergency access deci- re cir-sions are likely to be controversial.
Bysettingoutthe$ocedur ow criteria for making emergency access decisions in a rule M reflects nd other
.he it comment, NRC intends to add predictability to the decisionmaking process and to help ensure that the NRC will be able to make its deci-sions on emergency access requests within the time allowed by the Act .
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successful implementation of the Act that emergency access not be viewed by the unsited States as an alternative to the pursuit of the development of new LLW disposal capacity. The legislative history indicates that Congress believed that with the various management options available to LLW generators including, for example, storage or ceasing to generate 4
the waste, 4ds. instances where there was no alternative to emergency access would be unlikely. Congress expected that responsible action from the generators and the States / Compacts should resolve most access problems thus precluding the necessity for involving the Federal sector in grant-ing emergency access. Section 6 was included to provide a mechanism for Federal involvement as a vehicle of last resort.
In developing the emergency access rule, NRC tried to be consistent both with the actual text of Section G of the Act and with the intent expressed by Congress regarding decisions made pursuant to Section 6.
The rule sets strict requirements for granting emergency access and should serve to encourage potential requesters to seek other means for resolving the problems created by denial of access to LLW disposal facil-ities. The rule places the burden on the party requesting emergency access to demonstrate that the criteria in the rule have been met and emergency access is needed. Applicants for emergency access will have i
to provide clear and convincing evidence that they have exhausted all other options for maraging their waste. By establishing strict require-ments for approving requests for emergency access, NRC intends to rein-force the idea that problems with LLW disposal are to be worked out to I
the extent practical among the States, and that emergency access to !
l existing LLW facilities will not automatically be available as an alter- I native to developing that capacity. NRC believes this interpretation is I
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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 tne Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision is to--
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant, e allow the Compact Commission to implement any administrative procedures necessary to carry out the grant of access, and
- ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded.
However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission with a veto over the NRC's grant of emergency access. The basic purpose of the Section 6 emergency access provision is to ensure that LLW dis-posal sites that have denied access to certain States under provisions of !
I the Act will be made available to receive waste in situations posing a i serious and immediate threat to the public health and safety. A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior 1
and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, 7
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q emergency access under Section 6, Congressional ratification of that j I
Compact'would be null.and void. H.R. REP. No.:314, 99th Cong., 1st
-l Sess., pt. 1, at 2997 (1985).
IV. NRC Approach In developing this rule, the'NRC's approach was to:
- 1. MsurethatalloftheprincipalprovisionsofSection6ofthe 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 l
make the necessary determinations.
en ;
- 3. assure that the procedures and criteria that are established in 10 CFR Part.62 can.be implemente'd within 45 days after NRC receives a' request as specified in the Act.
- 4. establish procedureskd criterp for designating a s'ite to j w
receive the waste g are fair and equitable and sterrh are consistent L with the other provisions of the Act, including the limits on the amount -i of waste that can be disposed of at each operating facility.
- 5. establish requirements for granting emergency access that are stringent enough to discourage the unsited States and regions from view-ing emergency access as an alternative to diligent pursuit of their own
! disposal capability, and yet flexible enou0h to allow NRC to respond i
appropriately in situations where emergency access is genuinely needed !
to protect the public health and 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' of routine LLW management.is such that it.is difficult to conceive of situations where denial of access to disposal would create a serious and immediate threat to the public health and safety or.the national secu-rity. In most casesj 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 4 were denied access to LLW disposal facilities, NRC would not expect to receive a blanket request for emergency access for all of the LLW generated in that State, or for all of the LLW generated by a particular kind of generator since the need for emergency access would be different in each case.
NRC has also assumed that requests for emergency access will not be made for wastes would otherwise qualify for disposal by the Department of Energy (DOE) under the unusual volumes provision of the Act i
[Section 5(c)(5)]. This means that NRC does not intend to consider j requests for emergency access for wastes generated by commercial nuclear power stations as a result of unusual or unexpected operating, main-tenance, repairj or safety activities. Section 5(c)(5) of the Act &
l specifically sets aside 800,000 cu ft of disposal capacity above the regular reactor allocations through 1992 to be used for those wastes.
With this space reserved for wastes qualifying for the " unusual volumes ,
allocation, NRC believes emergency access should be reserved for other LLW, until the 800,000 cu ft allocation is exceeded, i
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NRC considered basing its decisions for granting' emergency access ,
solely on quantitative criteria, but decided against that approach.
While NRC has identified some of the wastes and the scenarios which would create a need for emergency access, it is unlikely that all possibilities can be predicted or anticipated.- Largely;beca'use of the uncertainty &
associated with identifying all of the circumstances under which emer-gency access may be required, NRC has avoided establishing criteria with absolute thresholds. Instead, the rule contains a combination of, qualitative and quantitative criteria with generic applicability. NRc believes this combination provides M 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 requesting emergency access and in determining whether or not requests should be granted. Each Subpart is summarized and discussed here.
I Subpart A - General Provisions ]
Subpart A contains the purpose and scope of the rule, definitions, I instructions for communications with the Commission, and provisions J 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 j access to existing commercial LLW disposal facilities and who submit a request to the Commission for an emergency access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 10
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l 1985. Subpart A also emphasizes that the emergency access rule applies only to those subclasses of LLW for which the States have disposal i
responsibility under Section'3(1)(a) of the Act. l g j Subpart B - Request for a Commission Determination i i
Subpart B specifies the information that must be submitted and the
]
procedures that must be followed by a person seeking s Commission deter-miration on emergency access. l l
Specifically, Subpart B requires the submission of'information on the need for access to LLW disposal sites, the quantity and type of ')
1 material requiring disposal, impaca on health and safety or common 1 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. ;
I (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 l (c) which non-Federal disposal facility or facilities should !
provide the disposa required.
e In addition 4e 4he obove, Subpart B also sets forth procedures for the filing and distribution of a request for a Commission determination.
l It provides for publ in the Federal Reaister a notice of M v receipt of a request for emergency access to inform the public that l 0,L l Commission action on the request is pending. Ever though comment is not required by the Act or the Administrative Procedure Act, Subpart B provides for a 10-day public comment period on the request for emergency access.
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In the event that the case for requesting' emergency. access is-to be.
a based totally or in part on the threat posed to'the common defense and j i
security, Subpart B requires that a statement of support from the )
~ Department of' Energy (DOE) or the Department of Defense (D00) (as appro- j priate) be submitted as part of the initial request for emergency access. )
I If the request is based entirely on common defense and security concerns, NRC will not proceed with the emergency access evaluation until the i
statement of support is submitted. l Subpart C - Issuance of a Commission Determination For the NRC to grant emergency access, the Commission must first )
.i conclude that there is a serious and immediate threat to the public i health and safety or the common defense and security, and second that i
there are no available mitigating alternatives. Subpart C sets out the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and ;
for granting temporary emergency access; establishes the criteria and ;
standards to be used by the Commission in making those determinations; and specifies the procedures to be followed in issuing t, hem. m w_,
Subpart C provides that NRC, in WS + H determin;_ c tM t there
! is a serious and immediate threat to the public health and safety, will consider: (1) the nature and extent of the radiation hazard that would result 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
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that are applicable to the facility that generated the low-level waste,.
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1 and any other Commission _ requirements specifically appl _icable to the j 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 i
denial of emergency access.
In -chi.; th; determirat.= that there is a serious and immediate- 1 threat to the common defense and security, Subpart C'provides that the Commission will consider whether the activity generating the LLW is'neces-l sary to the' protect W the common defense _and security and whether the lack of access to a disposal site would result in a significant disrup-tion in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will con-l sider D0D and DOE viewpoints in a statement of support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above deter- l 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 1
identified and evaluated the alternatives available which could potent-ially mitigate the need for emergency access. The Commission will consider whether the person requesting emergency access has considered all factors in the evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and.
safety. For each alternative, the Commission will also consider whether the requestor has demonstrated that the implementation of the alternative is unreasonable because of adverse effects on the public health and 13
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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 alternative could not be implemented in a timely manner.
Of particular concern to Congress was the possibility that ceasing-the activity responsible for generating the waste'could lead to the- l 1
cessation or curtailment of essential medical services. Section 62.25 'l i
of the rule provides that'the Commission will consider the impact on- l d
medical services- from ceasing the activity in making 'its determination that there is a serious and immediate threat to the public health and safety. The Commission is also~ concerned as to whether the implementa--
tion of other alternatives may have a' disruptive effect on essential medical services. Section 62.12 specifically requests information on:
these impacts as part of a request for' emergency access so they can be considered by the Commission in its overall determination about reason-able alternatives.
According to the procedures set out in Subpart C',-the Commission-will only make an affirmative determination on granting emergency access 1
if the available alternatives are found to be unreasonable. If an 'l 1
alternative is determined by NRC to be reasonable, then the request for emergency access will be denied.
If the Commission determines that there is a serious and immediate threat to the public health and safety or the common defense and security which cannot be mitigated by any alternative, then the Commission will i decide which operating npn-Federal LLW disposal facility should receive the LLW approved for emergency access disposal.
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Subpart.C sets out that in designating a disposal facility or facilities to provide emergency access disposal, the Commission-will first consider whether a facility should be' excluded from consideration because:. (1) the LLW does not meet the license criteria for'the site; (2) the disposa1' facility meets-or exceeds'its capacity limitations'as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring dis-posal exceeds 20 percent of the total-volume of the' LLW accepted for dis-- -
posal at the site in the previous calendar year. If the designation can-not be made on these factors'alone, then the Commission wi'11 consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, vchJme 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 l
\
emergency access, Subpart C provides that the Commission will consider j whether the circumstances still. warrant emergency access and whether !
the person making che request has diligently acted during the period of the initial grant to eliminate the need for emergency access.
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access 1
I situation falls within the criteria and examples in the Commission's policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives.
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Subpart D.- Compliance With Conditions of Emergency Access; i Termination of Emergency Access l
j
.. . . 1 Subpart D contains the terms and conditions of emergency access.
Subpart D establishes'that the NRC.m y termin' ate-a grant"of emergency. )
M kP'
' access'if the requestor or W waste do-not meetLthe conditions'estab-H '
lished by'NRC pursuant ~to this Part. It also establishes that the 1
Commission may terminate emergency access-'when it determines'that emergency access is no longer necessary.to protect the public, health-and safety or the common' defense and security from a' serious'and j immediate threat.
t!
I VII. Rationale for Criteria -l This rule establishes the criteria for making the emergency access j 1
determinations required by the Act. The rationale for:these decisions j is discussed below:
(a) DeterminationthataSeriousandImmediateThreatExisth-
- j Establishing the criteria to be used in determining that a serious and immediate threat exists to the public health and safety or the common 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."
(1) To the Public health and safety--
The criteria in this rule for determining whether a serious and l immediate threat to the public health and safety exists, address three l 16
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situations. Section 62.25(b)(i) addresses the situation where the lack of access would result-in a radiation hazard at the facility that is generating the LLW. .Section 62.25(b)(ii) addresses'the situation where the threat to public health and safety would result from disruption of.
the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary-emergency access.
l The criteria used in this rule for determining whether a serious and immediate threat to the public health and safety exists is qualita-tive in nature in order to provide the Commission with the flexibility 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 LJ W the L i m ... i , and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emer-gency access request. This latter category would include license provi-sions, orders, and similar requirements.
The Congressional concern in enacting Section 6 of the Act was to ensure that a serious and immediate threat to the public health and safety did not result from a denial of access. In addressing this con-cern, the Commission will evaluate the request for emergency access in its entirety, i.e. the threat to public health and safety and the alter-natives to emergency access that may be available to mitigate that 17
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threat. In other words, in determining what constitutes a serious and immediate threat to public health and safety, the Commission must con-l sider what threat would be unacceptable assuming that no alternatives are available. In the Commission's judgment, any situation that would result in exceeding the occupational dose limits or basic limits of public exposure upon which certain requirements in 10 CFR Part 20 are founded would be an unacceptable threat to the public health and safety, and should be considered for emergency access.
The legislative history of Section 6 of the Act does not provide any illustrations of a situation where a serious and immediate threat to the public health and safety would be created at the facility at which the waste is stored, although it is clear that Congress was concerned over the potential radiation hazard that might result at a particular facility that was denied access to LLW disposal. The Commission does not antici-pate any situation where the lack of access would create a serious and immediate threat to the public health and safety. However, in order to be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety might result, this rule establishes criteria to address this possibility. Under its nor. sal regulatory responsibilities and authority, the Commission would act immediately to prevent or mitigate any threat to the public health and safety, including shutting down the facility. However, there may be circumstances where a potential safety problem would still exist, after the facility was shut down or the activity 5, copped, if the low level waste could not be disposed of because :f denial of access. In this 18
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situation, emergency access may be neede'd. 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 1ack of access to'a disposal facility, and second, if such a situation does exist, the Commission will move imme-diately to eliminate the threat.
If the Commission does receive a request for emergency access based on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. If there is no violation of the Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This is separate from a finding that a serious and immediate threat to the public health and safety would exist i.f the activity were forced to shut down.
Section 6(d) of the Act allows the Commission to grant temporary emergency access for a period not to exceed 45 days solely upon a finding of a serious and immediate threat to the public health and safety. In order to grant temporary emergency access, the Commission is not required to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Commission believes that grants of tempo-rary emergency access should be reserved for the most serious threat to l public health and safety, and has accordingly' established criteria for 1
- l. 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 (45 RL 8045D s f&#N1 examples contained in the Commission's Policy Statement for determining 19N/
f 19
[7590-01].
whether an event at a facility or activity licensed or otherwise regu-lated by the Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. '" "" 1005 0 r
" ~ ~y 2', 1077.} This provision requires the Commission to keep Congress and the public informed of unscheduled incidents or events which the Cs,a,iss ka 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;
- 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 wi' thin the criteria in the Commission's policy statement on abnormal occurrences.
(2) To the common defense and security--
Although NRC is required by the Act_to determine that there is either a serious and immediate threat "to the public health and safety,"
or to "the common defense and security," realistically NRC cannot make the latter judgement without some information from D0D and DOE which will assist NRC in identifying those situations involving the denial of access to LLW disposal which constitute a serious and immediate threat to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those objectives. While'NRC 20
l [7590-01]
1 l
4 l .N !
l has the Congressional mandate for this determination, J4RC' staff believe !
l l it necessary to consider D0D and DOE information as part of the decision-l 1 l making process. i 1 i NRC considered several approaches for involving D0D and DOE in the '
l i' process of determining whether requests for emergency access should be granted on the basis of a serious and immediate threat to the common !
defense and security. NRC has 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 !
l a serious and immediate threat to the common defense and security, should include appropriate certification from DOE or D0D substantiating the requestor's claim that such a threat will result if emergency access is l
not granted. The necessary certification in the form of a statement of I l
l support should be acquired by the requestor prior to applying to NRC .
for emergency access so the certification can be a part of the actual petition.
Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the deter-mination with 00D or D0E. So while the Commission intends to give the D0D and DOE certifications and recommendations full consideration in evaluating requests for emergency access, the Commission will not treat them as conclusive.
(b) DeterminationonMitigatingAlternatives@
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 i
i 21
[7590-01] !
i consistent with the public health and safety. Requestors for emergency access are required to demonstrate that they have explored the alterna-tives available and that the only course of action remaining is emergency access. Only after this has been demonstrated to NRC will the Agency I proceed with a grant of emergency access.
Alternatives which, at a minimum, a requestor will have to evaluate are set out in Section 6(c)(1)(B) of the Act. They include (1) storage l of LLW at the site of generation or in a storage facility, (2) obtaining 1
access to a disposal facility by voluntary agreement, (3) purchasing' I disposal capacity available for assignment pursuant to Section 5(c) of 1
the Act, and (4) ceasing the activities that generate the LLW. !
While 6(c)(1)(B) of the Act sets these out as possible alternatives l
which a generator must consider before requesting emergency access, NRC 1 1 has identified other possible alternatives to emergency access which I i should be considered, as appropriate, in any requests for emergency ,
access. These additional alternatives are discussed below.
i Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and operators of commercial nuclear reactors with special act.ess to disposal in the event that unusual or unexpected operating, maintenance, repair or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access provision was to apply to the Section 5(c)(5) wastes unless the capacity required for disposals under the unusual volume provision would exceed the 800,000 cubic feet allocated for those purposes. Thus, NRC has taken the posi-tion in this rule that as long as unusual volumes disposal capacity is available for LLW which qualifies for such disposal, emergency access 22
'[7590-01).
should not be-requested. Applications.for. emergency access for wastes' which NRC determines would otherwise be eligible for disposal under the unusual volumes provision,'will be denied.
Another alternative applies only to Federal or_ defense related generators of LLW. NRC will expect _that generators of LLW falling into-either of these categories will attempt to arrange for' disposal at a Federal LLW disposal facility. prior to requesting access to' non-Federal I facilities under the emergency access provision, i
The Commission fully intends that the States and Compacts whose i l
generators have been denied access to LLW disposal will share in the responsibility for identifying and providing alternatives to emetgency access. NRC's expectation is that the States'and appropriate Compacts, as well as the generator, will each exhaust their options before emer-'
gency access will be requested. A request for emergency access is to ;
i include a discussion of the consideration given to any alternatives available to the requestor. To NRC, this includes State / Compact options i as well as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of these, and the actions taken.
For all the alternatives that are considered, NRC is requiring detailed information from the requestor regarding the decision process leading to a request for emergency access. The requestor will be expected to: (1) demonstrate that all pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the alterna-tives considered; (3) demonstrate that consideration has been given to 23
[7590-01] l 1
combining alternatives in some way or in some sequence either to avoid l the need for emergency access, or.to resolw the threat, even on a tempo-rary basis, until other arrangements can be made; (4) evaluate the costs, i l
economic feasibility, and benefits to the public health and safety of the potential alternatives, and (5) incorporate the results into the request. ,
1 (c) Designation of Site, &k I i
In deciding which of the operating, non-Federal or regional LLW I i
disposal facilities will receive the LLW requiring emergency access, NRC l will determine which of the disposal facilities would qualify under the limitations set cat 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 i 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- ;
i posal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act alone, the Commission will consider other factors including the type of waste, previous disposal practices, transportation requirements, radio-logical effects of the waste, the capability for handling the waste at each site, the volume of emergency access waste previously accepted by each site, and any other information that would be necessary in order to come to a site designation decision.
Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute the waste as equitably as possible 24
p
[7590-01]
among the available operating, non-Federal or regional LLW disposal.facil--
l .
ities. To the extent practicable, NRC. intends to 'otate r the designation of the receiving site, and, for the three currently operating facilities, l to allocate emergency access disposal in proportion to the volume limita-1 I
tions established in the Act. In most cases, NRC would' expect that the designation of a single site will minimize handling of and' exposure to the waste and best serve the interest of protecting the public health and safety. However, if the volume of waste requiring emergency access disposal is large, or if there are other unusual or extenuating circum-stances, NRC will evaluate the advantages and' disadvantages of designat-ing more than one site to receive waste from the same requestor.
In addition to the above, NRC will also consider how much waste has been designated for emergency access disposal to each site to date (both for the year and overall), and whether the serious and immediate threat posed could best be mitigated by designating one site or more to receive the waste.
In order for NRC to make the most equitable site designation deci-sions, the Agency will have to be well informed regarding the status of disposal capacity for each of the commercially operating waste disposal facilities. NRC is currently in the process of developing a system to l
provide this information.
It should be noted that in setting out the site designation provi-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 25
1
[7590-01]
intended NRC to consider if. all sites are deemed inappropriate.t'o receive: 1 the LLW. This may have to be addressed by Congress at some time.in the- )
-)
future.
1 (d) Volume Reduction Determination , I l
Sectio'n 6(i)'of the Act" requires.that any LLW' delivered for disposal < j l
as a result of NRC's decision to grant emergency access "should be .
reduced'in volume to.the' maximum extent practicable." NRC will eval'uate; the extent to which volume reduction methods or'techniq'ues:will be or-have been applied to the wastes granted emergency access in order to' arrive at a finding in regards to this provision.
NRC may receive a request for. emergency access where the applica-i tion of volume reduction techniques may be sufficient to mitigate.the-threat posed to the public health and safety. As a result,-NRC plans to-
]
l- evaluate the extent to which waste has.been reduced in volume as a part of its mandated evaluation of the alternatives considered by the genera--
to r'. From that evaluation,.the NRC could reach a-finding on whether the waste has been reduced in a manner consistent with Section 6(i). )
As is so for the other determinations NRC will have to make pursuant to Section 6, volume reduction determinations will be made on a case-by-case basis. The optimal level of volume reduction will vary with the 1
I waste, the conditions under which it is being processed or stored, the i
administrative options available, and whether volunie 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- q teristics of the wastes (including: physical properties, chemical pro- 1 perties, radioactivity, pathogenicity, infectiousness, and toxicity, 26
i I
[7590-01] l 1
pyrophoricity, and explosive potential); condition of current cnntainer; potential for contaminating the disposal site; the technologies or i i
combination of technologies available for treatment of the waste (includ- d ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin- l i
film evaporators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (specific activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker exposure, and equipment availability); and the administrative controls which could be applied. l I
VIII. Terms and Conditions for Emergency Access Disposal l i
LLW granted emergency access disposal pursuant to this rule is )
subject to the general requirements for LLW disposal as established in the Act, as well as those requirements which specifically address emer-gency access. This means that LLW granted emergency access shall be processed, treated and disposed of in a manner consistent with any other LLW which is eligible for disposal at operating non-federal or regional i
LLW disposal facilities under the Act. The disposal of waste by grant of emergency access should not preclude the implementation of any specific conditions, regulations, requirements, fees, surcharges or taxes prescribed by the disposal facility that may be in effect at the time of the Commission's determination to grant emergency access. How-ever, while generators whose LLW is granted emergency access are subject to the special fees and surcharges specified in the Act for emergency access disposal, they should not otherwise be subject to fees or require-ments that are not customarily charged or imposed for routine LLW disposal.
27
[7590-01]-
I X .~ Requests for Emergency Access Made Prior-to the Effective Date of the Rule The Commission has tried to anticipate when the first request'for.
emergency access might be made so the final rule would be in place before that time. However, it may be necessary_for a generator or State to,sub-mit a request for a Commission emergency access determination prior to the effective date of this rule. Commission determinations made on requests received before the final rule is in_ place will be_ guided by the .
criteria and procedures pro'vided in the proposed rule.
X. Analysis of Public Comments The Commission received twenty-one (21) comment letters for the proposed rule. Ten (10) of the comment letters came from concerned citizens, six (6) from the governments of potentially affected States, q l
two (2) from low-level waste compacts, two (2) from the industry and one (1) from a nuclear information service. A detailed analysis of each of the comments was prepared and used to~ revise the proposed rule. The major comments are discussed here. Copies of the comment letters and the detailed analysis of comments are available for public inspection and copying for a fee at the NRC Public Document Room, 1717 H Street NW.,
Washington, DC 20555.
In general, commentors expressed support for NRC's issuance of a f
rule for its emergency access decisions and indicated changes that would improve it from their perspective. Only one commentor, representing a <
lobbying group, expressed opposition to the issuance of the rule,4d:seE !
That commentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage 28
[7590-01]
their LLW. The Act established the statutory framework for-the manage-ment 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 3 4e :fA4.M MM#
0 4 Q g en-tka j s N K* 5 O 5..
Clarification of LLW Eligible for Emergency Access By far the most common concern expressed by commentors was that emergency access would be used to force operating non-Federal or regional LLW disposal facilities to accept LLW-they are either clearly not respon-sible for under the Act, or have specifically chosen to exclude from ;
I their facility. Fourteen of the commentors in almost half of the com-ments expressed concern that emergency access would be granted to wastes )
1 l that were not typically to be considered eligible for disposal at non- )
Federal or regional LLW disposal facilities. Specifically, the com-I mentors stated that Federal wastes, particularly those generated by' l I
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 at cess were concerned that LLWs determined to be ineligible for routine disposal ;
under the Act, could gain access to disposal at State or regional facil-i ities under the emergency access provision.
Throughout the development of Part 62, the NRC assumed that its '
l l- mandate was to grant emergency access only to LLW that would otherwise be 1
29 i
[7590-01]. i 1
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'on?y 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.
Under Subsection 3(a)(1)(A), the States are mandated to r;3.ide
~ 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 l
Federal government except that which is owned or generated by DOE, by the-1 Navy.as a result of decommissioning of vessels, or as a result of any_
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 l established in the Act for routine LLW disposal would also apply for-disposal resulting from a grant of emergency access. Apparently, that was not the case. To clarify the NRC's understanding and intent regarding 30
_ _ _ _ _ - ____________L
l-
[7_590-01]
I l
j the scope of wastes which the NRC. considers to be'potentially' eligible l-for emergency. access, the NRC added a new provision, (c) to Section 62.1,_
" Purpose and Scope"'of the final rule. The new pro'ision v states that-
"The regulations inIthis' Part apply only to the LLW's which the' States have disposal responsibility for pursuant..to Section-3(a)(1) of the Act."
The NRC believes the addition of this clarification to the final rule should resolve any questions regarding a particular LLW's eligibility for emergency access consideration as well as the Commission's intended application of the final rule.
Reciprocal Access Several of the commentors pointed out that the proposed rule omitted -
any reference to, or discussion of, Section 6(F) of the Act, which addresses reciprocal access. Section 6(f) provides that the Regional Compact or State receiving the emergency access waste is entitled to l reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency' access waste was generated. It i
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 j l
that provided emergency access." i 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 I reciprocal access concerns believed the NRC should broker reciprocal l 1
1 31 l
)
-[7590-01]
i
. access arrangements to ensure that, reciprocal access will be available to ;
i a State or Compact whose LLW disposal facility is designated to receive emergency access waste. Several of them emphasized that the reciprocal- 1 i
'd access provision of the Act is a significant one that cannot be. ignored in the NRC process of granting emergency access and' designating a dispo al. facility. .They stated that reciprocal access is of particular concern because a receiving Regional Compact or State has virtually no i leverage or role to play in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. They indicated reciprocity is an integral part of Section 6 and'should be part- I of the rule.
One commentor indicated that even if'the NRC did not wish to be involved in brokering the arrangements, it "must ensure that the right. to reciprocal access is recognized and its implications are considered."
The commentor indicated that a formal reciprocal access acknowledgement should be extracted from the Compact Region or State'in which the emer-i gency access waste was generated before any determination for granting emergency access is made. They indicated that such an acknowledgement should be required by the NRC Es 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."
The NRC recognizes that the commitment to reciprocal access is an t integral part of the emergency access process, particularly for the States with the operating LLW disposal facilities which will be designated by NRC to receive emergency access waste. Staff considered addressing i
32 j
- -_--- - N
.[7590-01]'
i 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 on emergency access. As'NRC staff read Section 6(f), arranging for reciprocal acess is an obligation between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Thus,.
Staff believed it would be inappropriate for the NRC to assume the role-of enforcing. reciprocal access arrangements.
The NRC reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule. The NRC's mandate under Section 6 is to grant requests for emergency access in order to protect the public health and safety and the common defense and security from a serious and immediate threat. If the NRC were to require a formal promise of reciprocal access as a necessary-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, cauld be in conflict with the Commis-sion's basic mandate to make emergency access decisions. The NRC maintains .
that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and' Compacts involved. The NRC believes that the promise of reciprocal access desired by the commentors i
could be initiated during the 15 day period required by the Act under I Section 6(g)-for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation.
33
_____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ __ _ _l
i
[7590-01] l Compact Approval of Grants of Emergency Access Three of the commentors representing' States or Compact Commissions j 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 i l
decision to grant emergency access from the Compact Commission of the- l region in which the designated site'is located. The commentors also l wanted the rule to state that "no grant of emergency access under this j Part.shall be effective prior to 15 days from receipt of a request for.
approval from the Commission," in order to establish that Compact l i
Commission ~cpproval would be necessary before the NRC's decision would be. )
considered final. The resolution of.the issue raised by these comments l I
is fundamental.to the successful implementation.of Congressional intent i I
for the emergency access provision of the Act. J W
The basis for these comments is language in Section 6(g) of the Act.
i f
It states that "any grant of access unde.r this Section.shall be submitted to the Compact Commission for the region in which the designated disposal j l facility is located for such approval as may be required under the terms j ofits(ompact." The commentors interpretation of this provision is that )
Congress intended for the Compact Commission of the designated site to )
have the final say regarding the acceptance of emergency access wastes.
They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency access determination - essentially that !
Congress intended the compacts to have the power to veto the NRC's decision. The commentors wanted the NRC to acknowledge this interpreta-I tion of Section 6(g) by incorporating a veto / approval provision in the final rule, j 1
1 34 l
[7590-01]
While the commentors were correct in noting that the proposed rule did not include a specific mechanism for implementing the Section 6(g) provision of the Amendments Act, the NRC's position on this issue was addressed in Section III, Legislative History of lementary Information portion of the proposed rule and is in the same sec-i tion of the final.
Section 6(g) of the Act requires the NRC to notify the Compact Commission for the_ region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of the Compact.I However, Section 6(g) also requires that the Compact Commission "shall act to approve emergency access not later than 15 days after receiving notification from the NRC." NRC believes the purpose of this provision is to (1) ensure that the Compact Commission 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 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 the Act have not been exceeded.
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 f rom 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 pyr ,ose of the t
LW VM Section 6 emergency access provision is to ensure that sites WM9E9mmenald fu
&~
t 35 addens So0.Afh%
v n n M e -%" 1 % sud *
- W ;
[7590-01] l I
ee"elly b icu unuer cue Act wiii ve avasiauie in emerpenvy miLua l9 t p A Compact Commission veto of'the NRC's decision would. frustrate the purpose of the emergen'cy access' provision and would be generally _j contrary to the legislative framework established in the Act. As'empha-1 sized in the House Committee on Interior and Insulac Affairs Report on the Act, ratification of a Compact should be' conditioned on the Compact's acting in accord with the provisior.s of the Act. If the Compact refuses l to provide, ender its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void.
[H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).]-
While disapproval may not be an option under the Act, clearly the j Act intended the receiving Compact Commission to be fully informed-regarding the emergency access decision ma the NRC. The Commission believes the Notification procedures under 62.22 of the proposed rule b
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 Commission of the State in which the designated disposal facility is located that emergency access is required. It furthpr 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 oc the common-defense and security.
In order to further establish its position on this issue, the NRC has made a change to the final rule. New language has been added to 36
[7590-01]
J 62.22 which states that the Commission will'make notification of the rs final determination in writing to the appropriate Compact Commission "for such approval as is specified as neces,ary in Section 6(g) of the Act."
Applicable Terms and Conditions for Emergency Access A number of the commentors expressed concern that LLW granted emn.-
gency access to disposal by the NRC shoula 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 and safety interests and the financial interests of either the disposal facility designated to receive the LLW, or the person requesting emer-gency access. In addition, they wanted assurances included in the rule that the NRC would consider the fees, taxes, etc. in designating a site to receive any waste granted emergency access.
The NRC's response to these concerns is simple, and is much like the earlier discussion about the response to comments concerning which wastes are eligible for emergency access. As previously stated, the Commission believes that Congress intended emergency access only to be granted for waste which would routinely qualify for LLW disposal under the terms of r
the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act). &
To the Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet all of 37
[7590-01]
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 radioactive waste not meeting criteria established by the license or license agreement of such facility, ...."
cn To assure .that the' NRC will designate a site which is suitably matched to the LLW granted emergency access, the NRC included a provision in the proposed rule which stated that a LLW disposal site will be excluded from consideration to receive emergency access waste-if the waste does not meet the criteria established by the license or licensee agreement for the facility [62.26(b)(1)]. The license or licensee agreements incorporate the regulations and requirements that affect each particular facility. Taken with the other information in Section 62.26, which the NRC will consider before designating a site, the Commission !
j believes Section 62.26 as it appeared in the proposed rule adequately addresses the NRC's responsibility to designate a site which does not !
preclude "the implementation of any specific regulations, and require- ,
i ments at the designated disposal facilities." )
Regarding fees, taxes and other conditions that several commentors believed the NRC should consider in designating a site, the NRC believes lao h !
that Congress intended for generatorspgranted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges specifically applicable to emergency access waste.and established under Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designa-tion decision.
38
~[7590-01]
-1 The Commission recognizes.the importance of conditions to ensure the implementation of emergency-access decisions once they are made by the. )
Commission. In response to the comments, the NRC added a new Section-1 "VIII" to the Supplementary Information portion of the final rule titled, ;
i
" 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 that whatever conditions or terms normally apply to LLW disposal apply for emergency access, except where specifically stated otherwise in the Act.
~
Conditions of Termination Fourofthecomment8rssuggestedtheadditionofanewsectionor
^
b subsection pf the rule to address the conditions under which emergencyMSS could be terminated. The Commission agrees that terms and conditions should be established in the final rule for termination of grants of emergency access. The NRC has added a new Subpart D to the final rule which incorporates some of the suggested conditions for termination as 4 . tw d recommended by the commentats. The Subpart is ,titleg " Compliance with Conditions of Emergency Access; Termination of Emergency Access." This k GADn new Subpart D is discussed under tjstr VI.(D) of the Supplementary Informa-tion for this rule. It establishes that the operator of the designated site may refuse emergency access waste if it does not meet the conditions established by the NRC pursuant to this Part. It also establishes that I l 39
[7590-01].
the Commission may terminate a grant of emergency access if.it determines that emergency access is no' longer.needed.
Response to Specific' Request for Comments.
In the proposed rule, the NRC specifically requested comments on certain parts or assumptions made by the NRC. Under Section.VIII of the proposed rule, the NRC expressed an interest in receiving ccmments on/ -
(1) What scenarios are envisioned where emergency access would be required?
(2) What are the potential problems with the NRC's approach to determining an immediate and serious threat to the public health and-safety?
(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 i
for designating the receiving site? and -j (5) What should the NRC do if no site is found to be suitable for i
waste requiring emergency access?
Two of the comments specifically addressed this request for comments, 1
offering partial responses to some of the questions. The cornments did not reveal eay new perspectives for the NRC to consider so the final rule 'l was not affected by'the comments received.
In the proposed rule, the NRC specifically requested comments on the l initial regulatory flexibility analysis from small businesses, small organizations, and small jurisdictions in order to determine if the final i
40 f
w__---_______- ._ _ ______ _ __-_ _ -_ __ _ .. __- . . _ _ _ _ _ _ _ _ _
I I
[7590-01]
regulations should be modified such that less stringent requirements could be imposed on small entities while still adequately protecting the public health and safety. None of the comments received on the proposed l 1
rule addressed the impact of the regulation on small entities or the adequacy of the NRC's regulatory flexibility analysis. As a result, it I
was not necessary to change the final rule to accommodate the special '
needs of small business.
XI. Finding of No Significant Environmental Impact: Availability ,
This rule establishes criteria for a Commission l determination under Section 6 of the Act that emergency access to an l
l orarating non-Federal LLW disposal facility is necessary to avert a l serious and immediate threat to the public health and safety or the common defense and security. For the most part, the final rule is an administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing Q~ edures @
f criteri by promulgation of a final rule does not have an environmental \
effect.
Therefore, the Commission has determined under the Natinnal Environ-mental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal l
action significantly affecting the quality of the human envi onment and, therefore, an environmental impact statement is not required.
The environmental assessment forming the basis for this determina-tion is contained in tha regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted M .
MN 1 ' "
W )
DL 4.
l 41 L____.-_-------_---.--__----.-_.------_ - - - - . - - -
[7590-01]
XII. Paperwork Reduction Act Statement The final rule adds informatiottcollection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget Approval Number 3150-0143.
i 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, inc1'uding the time for i 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 ,
1 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 J
l 20555; and to the Office of Information and Regulatory Affairs, Office l of Management and Budget, Washington, DC 20503. i XIII. Regulatory Analysis The Commission has prepared a regulatory analysis on this final 1
regulation. The analysis examines the costs and benefits of the alter- l 1
natives considered by the Commission. The analysis is available for .
inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. Single copies of the analysis may be ;
obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, l Washington, DC 20555, telephone (301) 492-3857 ,
42 4
7
[7590-01].
XIV. Regulatory Flexibility Certification NRC is using this final rule to implement the. statutory; requirements
~for granting emergency access to non-Federal or regional LLW' disposal facilities under Section 6 of the Act. Based upon the information avail-able and in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b),'the Commission certifies that this rule will'not have a signifi-cant economic impact'upon a substantial number of small entities.
The rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small' entity. The generators of LLW are nuclear power plants, medica' and academic facilities, industrial licen-sees, research and development facilities, radiopharmaceutical manufac- 4 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 W
entities," the Commission does not believe there will be a significant economic impact to these generators because the Commission does not anticipate that many generators will be affected by the p epr::d rule.
In order for the requirements of the rule to be imposed on a generator, the generator 4tspf must initiate the action by requesting a grant of emergency access from NRC. This would occur only because the generator has been denied access to LLW disposal. The impact of the recordkeeping requirements on any affected licensees should be minimal since the infor-mation that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to 43
_ jl
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l decide a course.of action if necessary access to LLW disposal.was.not going to be available. I The Commission is required by statute to make. emergency access- , ;
determinations. Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of. lack of access to !
LLW disposal, the provision of emergency. access will benefit any genera -
.i tor of LLWy including small entities, t .l Establishing dproceduresfor:requestingandgranting l emergency a,ccess through a rule will also benefit small and large genera-
%sPR tors. 10 CIR Fo.; 02 provides guidance to the generator on what informa-l tion will be required for making requests for emergency access and provides-i an orderly framework for making those requests. Also, the rule will enable !
I generators to better plan to avoid LLW disposal access prot'lems, thus l l
providing the certainty required for economic growth and development.
XV. List of Subjects W10 CTR 'rt E Administrativebeticeandbcedure,Denialof ess, Eme ency kesstokw- vel ste posal, Low- el ioactive aste -
1-nu no Cu radioactive paste / Policy Amendment w Low- ttn_dl%TM t.sa &
ct of 1985, LLM-ff"6'atm,ent and $tiip,osal, ppd Nuclear krials 7 M N $ O For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive Waste policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62.
44 t________ . _ _ _ _ . _ _
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Part 62 - Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities
- 1. A new Part 62 is added to 10 CFR to read as follows:
Subpart A - General Provisions Section:
6
2.1 Purpose and Scope
62.2 Definitions.
62.3 Communications.
62.4 Interpretations.
62.5 Specific Exemptions.
62.8 Information Collection Requirements: 0MB Approval l
Subpart B - Request for a Commission Determination 62.11 Filing and distribution of a determination request.
62.12 Contents of a request for emergency access: General information.
62.13 Contents of a request for emergency access: Alternatives.
62.14 Contents of a request for an extension of emergency access.
62.15 Additional information.
62.16 Withdrawal of a determination request.
62.17 Elimination of repetition.
62.18 Denial of access.
45
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f 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 granti.ng temporary emergency access.,
62.24 Extension'of. emergency access.
62.25 Criteria for a Commission determination.
62.26 Criteria,for designating a disposal facility.
..Subpart D - Compliance with Conditions'of Emergency Access; Termination of Emergency Access 62.31 Termination of Emergency Access.
AUTHORITY: Secs. 81, 161, as amended, 68 Stat. 935, 948,.949, 950, 1
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, I 1853, 1854, 1855, 1856, 1857. (42 U.S.C. 2021c, 2021d, 2021e, 2021f).
Subpart A--General Provisions S 62.1 Purpose and scope.
(a) The regulations in this part establish for specific low-level j radioactive waste (1) procedures and criteria for granting emergency l
access under Section 6 of the Low-Level Radioactive Waste Policy Amend-Inents 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 j 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- 1 emergency access.
l 46
'[7590-01] 3 1
l (b) The regulations'in this par,t' apply to all persons as' defined by_
this regulation, who have been denied access.to existing regional or .,
non-Federal low-level radioactive waste disposal facilities and who submit a request to the Commission for a determination pursuant to this part.
(c) 'The regulations in this part apply only to.the LLW/ that the
~ States have the responsibil.ity to dispose of pursuant to_Section 3(1)(a) of the Act.
6 62.2 Definitions.
As used this part: 1 "Act" means the Low-Level Radioactive Waste Policy' Amendments Act ;
of 1985 (P.L.99-240).
I "AgreementState"meansaStatethat-([)hasenteredintoan agreement with the Nuclear Regulatory Commission gder section 274 of the ;
Atomic. Energy Act of 1954(42U.S.C.2021);and([)hasauthoritytoregu-late the disposal of low-level radioactive waste under. such agreement.
" Commission" means the Nuclear Regulatory Commission or its duly l authorized representatives. j
" Compact" means a Compact entered into by two or more States pursuant to the Low-Level Radioactive Waste Policy Amendments Act of 1985.
" Compact Commission" means.the regional' commission, committee, or-board established in a Compact to administer such Compact. ;
" Disposal" means the permanent isolation of low-level radioactive l waste pursuant to the requirements established by the Nuclear Regulatory Commission under applicable laws, or by an Agreement State if such isolation occurs in Agreement State.
4 47
-[7590-01]
" Emergency ss" means access to an operating.non-Federal or regional-low-level radioactive waste disposal. facility or facilities for a perio'd 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.
"Extensionofh/fe'rgency ccess" 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.
g
" Low- vel ioactive ste" (LLW) means' radioactive material that-(f)isnothigh-levelradioactivewaste,spentnuclearfuel,orbyproduct material (as defined in Section IIe(2) of the Atomic Energy Act of 1954
[U.S.C. 2014(e)(2)]; and the NRC, consistent with existing law and in i
accordance with paragraph (a), classifies as low-level radioactive waste. i "Non-Federal posal cility" means a low-level radioactive waste disposal facility is commercially operated or is operated by a State.
g egional posal cility" 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 pact.
" 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 t'; any Governor (or for any " State" without a Governor, the chief executive officer of the " State") on behalf of any NRC or NRC Agreement State 48
[7590-01]-
licensed generator or generators of low-level radioactive waste within ]
the scope of Section 62.1(c) of this t located in his or her " State"; y or their duly authorized representative, legal successorjor agent.
" State" means any State of the United States,.the District of 1 og l Columbia, and the Commonwealth of Puerto Rico.
"Temporarykergency ss" means.'acc hat is granted at'NRC's discretion under.Section 62.23 of this art upon determining that access '
is necessary to eliminate an immediate and serious. threat to the public ,
. i health and safety or the common defense'and security. .Such access expires.
45 days'after the granting and cannot be extended.
I 1
l 6 62.3 Communications.
1 Except where otherwise specified, each communication and report l
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 1717 H Street NW., Washington, DC, )
i or 11555 Rockville Pike, Rockville, Maryland. l S 62.4 Interpretations.
Except as specifically authorized by the Commission in writing, no. )
interpretation of the meaning of the-regulations in this-part by any officer or employee of the Commission other than a written interpreta-tion by the General Counsel will be considered binding on the Commission.
l l
l .
49 i
[7590-01]
S 62.5 _ Specific exemptions.
The Commission may, upon application'of.any interested person or upon its own initiative', grant an exemption from the requirements of the regulations in'this part that it determines is authorized.by law and will not endanger life or property or the ' common defense and security and'is otherwise in the public interest.
S 62.8 Information collection requirements: OMB Approval.
(a) The Nuclear Regulatory Commission has submitted the informa- ,
tion collection requirements contained in this part to tho Office of Management and Budget (0MB) for approval as. required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 o' 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-sham tion M file a signed original and nine copies of the request with the CommissionattheaddressspecifiedinS62.3ofthisfart,withacopy also provided to the appropriate Regional Administrator at the address specified in Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination or the person's author-ized representative under oath or affirmation.
50
[7':90-01]
(b) Upon receipt of a request for a determination, the Secretary of the Commission will cause to be published in the Federal , Register _a
~
uAatuk)) w' notice acknowledging receipt of the request and u ng ttat public com- -
W ment on the request // submitted within'10 days of the date of the
<n notice.' A copy of the request will be made available for jnsp3ction,if ,.,_y e E- .y 5_ L ,_ ,_,- M y the Commission's Public Document Room, Washington, DC <
ig m n M or earui_ e-fatirit airing ei-i n,<cy -
access. 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 I
of the Compact region where the waste is generated, to the Governors of the States with operating non-Federal low-level radioactive waste dis-posal facilities, to the Compact Commissions with operating regional l
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 l forth for special projects under category 12 of 6 170.31 of this chapter.
(d) In the event that the allocations or limitations established in Section 5(b) or 6(h) of the Act are met at all operating non-Federal or regional LLW disposal facilities, the Commission may suspend the process-ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General Information.
A request for a Commission determination under this part must include the following information for each generator to which the request applies:
! 51 l
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(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.cought;-
(c) ' Certification:thatLthe radioactive waste for which emergency-
. access is requested is low-level radioactive waste within:Section.62.1(c) of this .
(d) The low-level waste generation facility (ies) producing the' l
. 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; i (g) A description of the low-level radioactive waste for which. ;
emergency access is requested, including / ~~
t (1) The characteristics and composition of the waste, including, but not limited to--
(i) pe of waste (e.g. solidified oil, scintillation fluid, failed equipment); )
(ii)-frincipalchemicalcomposition; (iii) hhysicalkte(solid, liquid, gas);
(iv) e of solidification media; and !
(v) O ncentrations and percentages of any hazardous or toxic ;
e chemicals, chelating agents, infectious or biological agents associated P
with the waste; (2) The radiological characteristics of the waste such as--
(i) he classification of the waste in accordance with-6 61.55; i
52
.[7590-01) !
.J (ii) klist.oftheradionuclidespresentorpotentiallypresent'in the waste, their concentration or contamination levels, and total I quantity; (iii)histributionof.theradionuclideswithinthewaste(surfaceor volume distribution);
(iv) hountof. transuranic.(nanocuries/ gram);
(3) The minimum volume of the waste requiring emergency access to l
eliminate the threat to the public he'alth and safety.or the common j i
defense and security; I l
(4) The time duration for which emergency access .is requested (not to exceed 180 days);
(5) Type of disposal container or packaging (55 gallon drum, box, 1
liner, etc.); and i (6) Description of the volume reduction and waste minimization j
techniques applied to the waste which assure that it is reduced to the l l
maximum extent practicable, and the actual-reduction in volume'that j l
occurred; j (h) Basis for requesting the determination set out in this part, including [~~
-Yo$
(1) The circumstances which led to the denial of access to existing low-level radioactive waste disposal facilities; W
(2) A description of the situation Mnth is responsible for creat-l 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; 53
I
[7590-01].
(3) .A chronology and description of'the. actions taken by the person requesting emergency access to prevent the need.for making such 'a request,
' including consideration of.all alternatives set.forth in S 62.13 of this Lw Mhart,)andanysupportingdocumentationasappropriate; (4) An explanation of the. impacts of the waste on the public health.
and safety or the common defense.and security if emergency access is not j i
granted, and the~ basis for concluding'that these impacts constitute a.
serious and immediate threat to the public health and safety or the common defense and security. The impacts to the public health and safety or the common. defense and security 'f the generator's' services, including I
{
research activities, were to be curtailed, either for a limited period of !
m timeorindefinitely; uld also be addresse l
(5) Other consequences if emergency access is not granted; (i) Steps taken by the person requesting emergency access to l l
correct the situation requiring emergency access and the person's plans ~l to eliminate the need for additional or future emergency access requests; .
(j) Documentation certifying that. access has been denied; (k) Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simul- l taneously under consideration by the Department of Energy (D0E) for accessthroughthehusualYolumesallocation; (1) Where the request is made wholly or in significant part on the l
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
'[7590-01]
(m) Date by which access.is required; (n) Any other information which the Commission should consider in making its determination. ;
i S 62.13 Contents of a request for emergency access: ) tit'ernatives.
(a) A request for emerge'cy n access.under this part must' include information on alternatives to emergency' access. The request-shall' include a discussion of the consideration given'to any alternatives,- .
including, but not limited .to, the following: r(1) storage,of: low-leve1A. n!
radioactive waste at the site of-generation; (2) storage of low-level ;
radioactive waste in a licensed storage facility; (3) obtaining access to a disposal facility by voluntary agreement;. (4) purchasing disposal capacity available for assignment pursuant to the Act; (5) requesting disposal at a Federal low-level radioactive waste disposal facility in the case of a Federal or defense related generator of LLW; (6) reducing the volume of the waste; (7) ceasing activities that generate low-level ;
I\. !
radioactive waste; and (8) other alternatives identified under t. .
(b) of this tion.
(b) The request must identify all of the alternatives to emergency access considered, including any that would require. State' or Compact action, or any others that are not specified in paragraph (a) of this sec-tion. The request should also include a description of the process used to identify.the alternatives, a description of the factors that were con-sidered in identifying and evaluating them, a chronology of actions taken to identify and implement alternatives during the process, and a discus-sion of any actions that were considered, but not implemented.
55
) .;
[7590-01]- j U' i I
(c)- The evaluation of. each alternative must consider: [(1)its potential for mitigating the serious and immediate threat.to public health and safety 'or the common defense and security posed by lack of j 1
access to disposal; (2) the adverse effects on public health and' safety l and the common defense and security, if.any, of implementing'each alter-
)
native, including the curtailment or cessation of any essential services i
affecting the public health and safety or the common defense.and secu-l rity; (3) the technical and economic feasibility 'of each alternative p including the person's financial capability to. implement the alterna-tives;(4)anyotherpertinentsocietalcostsandbenefitsj(5) impacts e i to the environment; (6) any legal impediments to implementation of each alternativeyincluding whether the alternatives will comply with appli- 4_
cable NRC and NRC Agreement States regulatory requirements; and (7) the !
i l time required to develop and implement each alternative. 'l l
(d) The request must include the basis for (1) rejecting each alternative; and (2) concluding that no alternative is available.
S 62.14 Contents of a request for an extension of emergency access. ;
l A request for an extension of emergency access must include. 4 (a) Updates of the information required in S 62.12 and S 62.13; and (b) Documentation that the generator of the low-level radioactive waste granted emergency access and the State in which the low-level radioactive waste was generated have diligently, though' unsuccessfully, acted during the period of the initial grant to eliminate the need for l-emergency access. Documentation must include (1) an identification of additional alternatives that have been evaluated during the period of the ,
56 .
]
[7590-01]
l
)
initial grant, and (2) a discussion of any reevaluation of previously 1 considered alternatives, including verification of continued attempts to 'l 1
t ,,
gain access to a disposal. facility by voluntary agreement. )
i S 62.15 Additional nformation.
k (a) The Commission may require additional inforniation from a person I i
making a request for a Commission determination under this part concern- .)
ing any portion of the request.
i (b) The Commission shall deny a request for a Commission determina- j tion under this part if. the person making the request fails to respond to a request for additional information under paragraph (a) of this section within ten (10) days from the date of the request for additional informa-M tion, or any other time as.the Commission may specify. This denial will i not prejudice the right of the person making the request to file another request for a Commission determination under this part.
I i
6 62.16 Withdrawal of a determination request.
(a) A person may withdraw a request for a Commission determination i under this part without prejudice at any time prior to the issuance of an 4 initial determination under S 62.21 of this .
(b) The Secretary of the Commission will cause to be pub.lished.in the Federal Register a notice of the~ withdrawal of a request for a !
sL-- A Commission determination under this part.
S 62.17 Elimination of repetition.
In any request under this part, the person making the request may incorporate by reference information contained in a previous application, 57
[7590-01]'
Statement, or report f'iled with the Commission provided that these refer-encesareupdated, clear)andspecific.
S 62.18 Denial of request.
If a request for a determination is based on circumstances that are too remote and speculative to allow an informed determination, the Commission may deny the' request.
Subpart C--Issuance of a Commission Determination S 62.21 Determination for granting emergency access.
(a) Not later than (45) days after the receipt of a request'for a Commission determination under this part'from any generator of low-level l 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-i Federal disposal facility within a State that is not a member of a Compact for specific low-level radioactive waste is necessary because of an immediate and serious threat (i) to the public health and safety or 1
(ii) the common defense and security; and i l
(2) The threat cannot be mitigated by any alternative consistent i i
with the public health and safety, including those identified in S 62.13. 1 (b) I In making a determination under this section, shallbeguidedbythecriteriasetforthinS62.25ofthisgart.
w@the Commissio '
(c) A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is i
58 i
[7590-01]
based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration !
(not to exceed 180 days) necessary to eliminate the immediate threat to public health and safety or the common defense and security. It may also ,
contain conditions upon which the determination is dependent.
S 62.22 Notice of issuance of a determination.
(a) Upon the issuance of a Commission.determi ation the Secretary g 5 us uTog A fusM of the Commission will make notif..:ticn of the final deter inationiin natiDgp::Wi'the person making the request, he the Governor of the State in which the low-level radioactive waste requiring emergency access was generated,dytheGovernoroftheStateinwhichthedesignateddisposal )
facilityislocated,andifpertinent,19,theappropriateCompactCommis-i sion for such approval as is specified as necessary in Section 6(g) of l I
the Act. For the Governor of the State in which the designated disposal l facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to public health and safety or the common defense and security. For the Governor of the State in which the low-level waste was generated, the notification must indicate that no extension of 59
F
[7590-01]
q emergency access-will..be granted under S'62.24 of this art absent'aili-gent State and generator action during the period of the. initial grant.
(b): The Secretary of the Commission will cause to be published.in' ]
the Federal Register ~~'
a: notice of the issuance of the" determination.
P &
(c) TheLSecretary.of the Commission will make a copy of the final determination available for inspection.in.the Commission's Public Document Room, 1717 H Street NW., Washington,-DC. l j 6 62.23 Determination for gran".4.ag temporary emergency access. ;
(a) The Commission may grant temporary emergency access to an appropriate non-Federal or regional disposal-fa'cility or facilities provided that the determination required under S 62.21(a)(1) of this part'is made; (b)' the notification procedures under S 62.22 of this 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) After the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or j her State, for an extension of emergency access that was initially granted under S 62.21, the Commission shall make an initial determination of -
whethe r--
l (1) emergency access continues to be necessary because of an immed- !
iate and serious threat to the public health and safety or the common defense and security; i
60
[7590-01]
(2) the threat cannot be mitigated by any alternative that is consistent with public health and safety; and (3) the generator of'10w-level waste and the State have-diligently though unsuccessfully acted during the period of.the initial grant to eliminate the need for emergency' access.
(b) After making a determination pursuant to paragraph (a)of this i section,ther'equirementsspecifiedinSS62.21(c)hnd62.22ofthis art, must be followed, l l
G 62.25 Criteria for a Ccamission determination, g
(a) In making the determination required by-Gett'ttm 62.21(a) of' this part, the Commission will determine whether the circumstances l described in the request for emergency access create a serious and imme-l' diate threat to the public health and safety or the common defense and security.
l-(b) In making the determination that a serious and immediate threat-exists to the public health and safety, the Commis'sion will consider, i
notwithstanding the availability of any alternative identified in4ar j 62.13 of this part:
(l) he nature and extent of the radiation hazard that would result !
from the denial of emergency access, including consideration of -
/hestandardsforradiationprotectioncontainedinPart20of this Ch, apter;-
h) ny standards governing the release of radioactive materials to the general environment that are applicable to the facility that gener-ated the low-level waste; and 61 i
1 w _ _ _ _--_______-_______-_-__.-
[7590-01]
1
) y other Commission. requirements specifically applicable to:
M i the facility or activity wineh is the subject' of the emergency access !
request; M '
'k (JC the extent to which essential services affecting the public health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of' emergency access.
'(c) For purposes of granting temporary emergency access under
.X 1 f::t M 62.23 of this part, the Commission will consider the criteria l contained in the Commission's Policy Statement determining whethe l
'\
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. 45 FR 10950, February 24, 1977 )
(d) In making the determination that a serious-and immediate threat to the common defense and security exists, the Commission will consider, I
l notwithstanding the availability of any alternative identified in w - l 4[on62.13ofthispart 1) whether the activity generating the wastes is necessary to the protection of the common defense and security,- M f l
(2) whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten ;
i the common defense and security. The Commission will ::onsider the views j of the Department of Defense (00D) and the Department of Energy (DOE) in ,
theStatementof8upportassubmittedbythepersonrequestingemergency access, in evaluating requests based all, or in part, on a serious and i
immediate threat to the common defense and security. '
(e) In making the determination required by S 62.21(a)(2) of this t, the Commission will consider whether the person submitting the '
request (1) has identified and evaluated any alternative that could 62 1
[7590-01]
mitigate the need for emergency access; (2) has considered all pertinent factors in its evaluation of alternatives including state-of-the-art technology and impacts on public health and safety.
In making the determination required by. S 62.21(a)(2) of this d) (f) part, the Commission will consider implementation of an alternative to be unreasonable if (1) it adversely affect's 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 j i
with applicable State or local Tisys or Federal laws and regulations; or ]
l (5) it cannot be implemented in a timely manner. !
(g) The Commi sion shall make an affirmative determination under ;
S 62.21(a) of this art only if all o'f the alternatives that were consid- l ered are found to be. unreasonable.
i (h) In making a determination regarding temporary emergency access under S 62.23 of this a t, the criteria in a and (b) of that section shall apply. ,
(i) In making a determinate n regarding an extension of emergency access under S 62.24 of this art, the Commission shall consider whether the person making the request has diligently acted during the period of the initial' grant to eliminate the need for emergency access.
(j) 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 63
o
[7590-01]. l i
, r properties, radioactivity, pathogenicity, infectiousness, and toxicity, ;
pyrophoricity, and explosive potential); condition of current container; potential for contaminating _the disposal site;, f technologies or )
combination of. technologies available for treatment of the waste.(includ-ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin -
film evaporators; extruders evaporators; and Compactors); the suitabil-ity of volume reduction equipment to the circumstances (specific activity considerations, actual volume reduction factors, generation of secondary wastes, equipment contamination, effluent releases, worker. exposure, and j equipment availability); and the administrative controls 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- -R l
practicable using available technology.
S 62.26 Criteria for designating a disposal facility.
(a) The Comndssion shall designate an appropriate non-Federal or regional disposal facility if an affirmative determination is made pursuant to-SS 62.21, 62.?N or 62.24 of this part.
(b) The Commission ull er.ii,*e a disposal facility from considera-tion If:
(1) e 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) he disposal facility is in excess of its approved capac#.y; or (3) p anting emergency access would delay'the closing of the disposal facility pursuant to plans established before the receipt of the request for emergency access; or 64
- )
[7590-01]
l (4) he-volume of waste requiring emergency access exceeds 20 )
j percent cf the total volume of low-level radioactive waste accepted for
.l disposal'at the . facility during the previous calendar year.
~
~(c) If, after applying.the exclusionary criteria in paragraph'(b) of this section, more than one diyosal facility is identified as appro -
priate for designation, the Commission will then consider.additicnal factors in designating a facility or . facilities including [- -
(1)(ype~ofwasteand'itscharacteristics,.
(2) kreviousdisposalpractices, 3 (3) ansportation, (4) hdiolog'icaleffects, (5) Site capability for handling waste, ,
(6)fhevolumeofemergencyaccesswastepreviouslyacceptedby i
each site both for the particular year ard overall, and j (7) hnyotherconsiderationsdeemedappropriatebytheCommission.
1 (d) The Commission, in making its designation, will also consider-l any inforrration submitted by the operating non-Federal or regional LLW 1
disposal sites, or any information submitted by the public in response to a Federal Register not,i questing comment, as provided in para-graph (b) of S 62.11.16 b
Subpart D--Compliance With Conditions of Emergency Access; l Terminati n'of Emergency Access '
, S 62.31 Termination of gency ss, (a) The Commission may terminate a grant of emergency access when emergency access is no longer necessary to eliminate an immediate threat to public health and safety or the common defense and security.
1 65 4-
1
[7590-01]. l l
i
. (b) The Commission may terminate a' grant of emergency access if an 1 applicant has provided inaccurate information in its application for emergency access or if the applicant has ' failed to ' comply with this art ]
.or any conditions. set by the Commission pursuant to this '
j i
. Dated at Rockville, MD, this. day of , 1989.
L For.the Nuclear Regulatory Commission.
l l
Samuel J. Chilk, Secretary of the Commission.
.t l
a 1
. 1 l'
\ i i
i I
66 i L
/9C)W2 [hd M[ I0 "ff5 F ag&zsaLvE,f[7590-01] a22d o O sv M "fW' has the Congressional mandate for this determination, the staff believe i
it necessary to consider D0D and DOE information as part of the decision-i making process.
NRC considered several approaches for involving D00 and DOE in the process of determining whether requests far emergency access should be
- ranted on the basis of a serious and immediate threat to the common l l
defense and security. NRC has concluded that the best way to provide such interaction is to require that requests filed with NRC for emergency l l
access which are made entirely, or in significant part, on the basis of a serious and immediate threat to the common defense and security, should j include appropriate certification from DOE or D0D substantiating the requestor's claim that such a threat will result if emergency access is not granted. The necessary certification in the form of a tatement of support should be acquired by the requestor prior to applying to NRC for emergency access so the certification can be a part of the actual petition.
Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the deter- !
l mination with D00 or DOE. So while the Commission interids to give the D00 and DOE certifications and recomme'n'dations full consideration in evaluating requests for emergency access, the Commission wil'1 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 i granted if alternatives are available to mitigate the threat in a manne-1 i
21 N M
_ - - - - - - ---- - - 1
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[7590-01] ,
4 consistent with' the public Nalth and safety. Requestors for emergency access are required to demonstrate 1that they have explored the alterna-i tives available' and that the only course of action remaining is emergency '
access. Only after this has been demonstrated to NRC will the Agency pruceed with a grant _of emergency access. j
. Alternatives which, at a.mit.imum, a requestor will have to evaluate are se out in Section 6(c)(1)(B) of the Act. They include (1) storage of LLW at the site of generation or in a storage facility, (2) obtaining access to a disposal facility by voluntary agreement, (3) purchasing i
disposal capacity available for assignment pursuant to Section 5(c) of the Act, and (4) ceasing the activities that generate the LLW. !
J t
While 6(c)(1)(B) of the Act sets these out as possible alternatives l
'1 which a generator must consider before requesting emergency access, NRC has identified other possible alternatives to emergency access which should be considered, as appropriate, in any. requests for emergency access. These additional alternatives are discussed below.
.i 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 l
or safety activities produce quantities of waste which cannot be other- 1 l
wise managed or disposed of under the Act. NRC does not consider that Congress intended that dispasal under the emergency access provision was I l
to apply to the Section 5(c)(5) wastes unless the capacity required for 1 disposals under the unusual volume provision would exceed the 800,000 l
.* 1 cubic feet allocated for those purposes. Thus, NRC has taken the posi-l tion in this rule that as long as unusual volumes disposal capacity is available for LLW which qualifies for such disposal, emergency access 22
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\ On Wind!'IH?F 1"PC i ptQC i ty W A L pFtAVided. [/l(4 g/f},cpgj_
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should not be requested. Applications for emergency access for wastes which. NRC det.crmines would otherwise be eligible for disposai under the unusual volumes provision, will be denied.
i Another alternative applies only to Federal or defense related j generators of LLW. NRC will expect that generators of LLW falling into either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting access to non-Federal facilities under the emergency access provision.
The Commission fully intends that the States and Compacts whose i
l generators have been denied access to LLW disposal will share in the responsibility for identifying and providing alternatives to emergency p
access. NRC's expectation is that the States and appropriate Compacts, as well as the generator, will each exhaust their options before emer-l
} gency access will be requested. A request for emergency access is to include a discussion of the consideration given to any alternatives l available to the requestor. To NRC, this includes State / Compact options I t as well as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of thes3, and the actions taktn.
y or all the alternatives that are considered, NRC is requiring detailed information from the requestor regarding the decision process leading to a request for emergency access. The requestor will be _
expected to: (1) demonstrate that all pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the alterna-tives considered; (3) demonstrate that consideration has been given to l
l l
23
[7590-01) 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 potentia'l alternatives, and (5) incorporate the-results into the request, (c) Designation of Site.
In deciding which of the operating, non-Federal or regional LLW disposal' facilities will receive the LLW requiring emergency access, NRC will determine which of the disposal facilities would qualify under the limitations set out in Section 6(h) of the Act. According to those limitations, a site would be excluded.from receiving emergency access waste if (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access wnuld delay the planned closing of the facility; or (4) the volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act alone, the Commission will consider other factors including the type of waste, previous disposal practices, tralisportation 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 extentpractical,attempttodistributethewasteasequitabiyaspossible 24
~
[7590-01]
TY %%&ac .
(m) Date by which access is required; (n) Any other information which the Commission should consider in making its determination.
S 62.13 Contents of a request for emergency access: Alternatives.
l (a) A request for emergency access under this part must. include information on alternatives to emergency access. The request shall l include a discussion of the consideration given to any alternatives, including, but not limited to, the following: l l
(1) Storage of low-level radioactive waste at the site of I
{
generation; j l
(2) Storage of low-level radioactive waste in a licensed storage l
facility; (3) Obtaining access to ad disposal facility by voluntary agreement) '
4 (4) Purchasingdisposalcapacityavailabk;eforahsignmentpursuanttudtJ (mtde) J.
to the Act; (5) Requesting disposal at a Federal low-level radioactive waste disposal facility in the case of a Federal or defense related generator of LLW;
~
(6) Reducing the volume of the waste; (7) Ceasing activities that generate low-level radioactive waste; and _
(8) Other alternatives ideritified under paragraph (b) of this section.
(b) The request must identify all of the alternatives to emergency l
l access considered, including a,ny that would require State or Compact l pad as w ypJ aJs u yv,Q e , ,
l action, or any others that are no(/specified in paragraph (a) of this sec-A tion. The request should also include a description of the process.used 55
[7590-01]- ;
I to identify the alternatives, a description of the factors that were con-sidered in identifying and evaluating them,.a chronology of actions taken to identify and implement alternatives during the process, and a discus- I sion of any actions that were considered, but not implemented.
(c) The evaluation of each alternative must consider: ;
j (1) Its potential for mitigating the serious and immediate threat 1 1
to public health and safety or the common defense and security posed by j lack of access to disposal; (2) The adverse effects on public health and safety and the common 1
defense and security, if any, of implementing each alternative, including l 1
the curtailment or cessation of any essential services affecting the public health and safety'or the common defense and security; l
.(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; j i
(5) Impacts to the environment; j l
(6) Any legal impediments to implementation of each alternative, "
l including whether the alternatives will comply with applicable NRC and
~
NRC Agreement States regulatory requirements; and (7) The time required to develop and implement each alternative.
(d) The request must include the basis for (1) rejecting..each_
alternative; and (2) concluding that no alternative is available.
S 62.14 Contents of a request for an extension of emergency access.
A request for an extension of emergency access must include.
(a) Updates of the information required in S 62.12 and S 62.13; and 56
- i W
6
&f t r ts (2
B.4 Comment Letter f 4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive Waste Commission Comment 4.1 Page 47580 of the Federal Register Notice states that the Nuclear Regulatory Com: ssion'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 l the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact or state that receives the emergency access waste shall designate, for i reciprocal access, "an equal volume of low-level radioactive waste having ;
similar characteristics to that provided emergency access."
l While the NRC may not wish to be involved in these arrangements, it must i
ensure that the right to reciprocal access is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be extra'cted 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 s'hould be. required as part of the contents of a request for emergency access (Section 62.12) and should include some f indication of when the reciprocal access would be provided. The acknowledge-l ment could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the compact commission.
RESPONSE: NRC recognizes that the commitment to reciprocal access is an l 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 4
1 a
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.fyThe I final rule has not been changed to require any role for NRC in assuring i j
reciprocal access. However, language has been added to the final rule in i Subsection VII (b) " Determination on Mitigating Alternatives", and to '
Section 62.13 " Contents of a Request for Emergency Access: Alternatives", ,
which bears on the reciprocal access issue. The Commission has decided to j make a distinction in the final rule between " reciprocal access" - j established in Section 6 of the Act as access to LLW disposal that a sited 1 State or Compact is entitled to because they have provided emergency access, )
and " reciprocity" - a guarantee of future access that could be part of a i voluntary agreement between unsited and sited States and Compacts. .The ,
Commission believes that unsited States and Compacts should attempt to arrange I for reciprocity prior to requesting emergency access. In order to emphasize j this,Section VII (b) specifies that the Commission will consider whether i reciprocity has been explored by the requestor in the process of determining whether a voluntary agreement is a viable alternative to requesting emergency access, j
.. -)
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for reviewing a request for emergency access, could ' interfere with !
action necessary for NRC to carryout that mandate.
7-NRC believes that arranging ~for reciprocal access in response to grants-j of emergency access is the responsibility.of the States and compacts involved and is unrelated to the Commission's responsibility to protect .
the.-public health and safety. NRC also believes that appropriate ,
(ng arrangements should be agreed to as partgpeggvgrocgsg. g Il
"]<g specified under Section 6(g) of the' Ack. The @C' continues to believe (4%:
that an enforcement role regarding reciprocal access' is inappropriate [p, ' '
for the Agency' (See also comments to 4.2, 4.3, 4.4 4.5, 5.4, and ,
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17.14) bu:kW % },
' Comment 4.2 Before granting emergency access, the MRC should determine whether or not 1 there would be any limitations (e.g. , timing, license restrictions, etc.) on l 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). l This specific determination should be added to the Section 62.25 criteria. i RESPONSE: As stated in the response to Comment 4.1, NRC will not be
=
invoh_d in brokering reciprocal access arrangements, as would be required if NRC were to carry out the determination requested by this cominent. (SeeComment4.1) 1 '
Comment 4.3 Beforedesignatingadisposalfacility,theNRCalsoshoulddeterr$tineifthe 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)
5 [7,59b-01]
b/SW Yn.
c,, s s n The NRC believes the addition of this clarification to the final rule OyMM' f 3 should resolve any questions regarding a particular LLW's eligibility for M&d // _c- i StNZ P .l '
emergency access consideration as well as the Commission's intended application of the final rule.
l 1
l Reciprocal Access i Several of the commentors pointed out that the proposed rule omitted any reference to, or discussion of, Section 6(f) of the Act, which 1
addresses reciprocal access. Section 6(f) provides that the Regional
- l l
f Compact or State receiving the emergency access waste is entitled to l
! reciprocal access at any subsequent facility that serves the Compact )
region or State in which the emergency access waste was generated. It I i
further provi' des that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal )
volume of Low-level radioactive waste having similar characteristics to that provided emergency access."
Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reciprocal access should 1
be addressed in the final rule. Most of the commentors who raised l l ..
reciprocal access concerns believed the NRC should broker reciprocal access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal facility is designated to receive, emergency access waste. Several of them emphasized that the 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 l
l 31 5
.[7590-01]-
disposalifacility. They stated.that reciprocal access is of particular-concern'because a receiving Regional' Compact or' State.has-virtually no leverage or role to play in the. emergency access process and a' guarantee
- of reciprocal access would make the situation more: acceptable. .They
- indicated reciprocity is'an integral part of Section';6.and should be-part of the rule.
~
- One commentor indicated .that even if the NRC did not wish to be -
. involved in brokering the arrangements, it. "must ensure that the right to reciprocal access is recognized and i.ts implications are considered." ,
The commentor indicated that.a formal reciprocal access acknowledgement l
should be extracted. from the Compact Region or State in' which the emer-1 gency access waste was generated before'any determination for granting
! emergency access is made. They indicated that such an acknowledgement should be required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include'some indication of -
when the reciprocal access would be provided. The acknowledgement'could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the Compact Commission."
The NRC recognizes that the commitment to reciprocal access is an 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 l 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 a
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[7590-01]:
reciprocal.acess is an obligation between States / Compacts unrelated to the Commissico's responsibility'to protect 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 inappr'opriate for the NRC to assume the role of enforcing reciprocal access arrangements.
The NRC reconsidered its position.on reciprocal access in light of ,
fc5 mA ODU 6fik'.j m the comments received on the proposed rule, # but mede tw J..gesacepMd to the "jauh ucu final rule. The NRC's mandate under Section.6 is to grant requests for -
emergency access in order to protect the public health and safety and the common defense and security from a serious and immediate threat. If'the NRC were to require a formal promise of reciprocal access as a necessary f condition for considering a request for emergency access, under certain circumstances, actions necessary te 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-sion's basic mandate to make emergency access decisions. The NRC maintains that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts involved. The NRC {
believes that the promise of reciprocal access desired by the commentors ,
l could be initiated during the 15 day period required by the Act under j e
Section 6(g) for the receiving Compact Commission's approval of the NRC's d
(
LLW disposal facility designation. ,
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QY Wbzy,c MV has the Congressional' mandate'for.this1 determination,.the staff believeu it'necessary.to consider D00 and DOE information as part of the decision-making process.
.NRC considered several approaches'for involving D0D and. DOE in the process of determining whether-requests for emergency. access should be
- ranted on the basis'of a serious,and immediate threat to the common defense and security. ' NRC has' ~ concluded that the' best way to provide such interaction is to require that requests filed with NRC for emergency-access.which'are made entirely, or in significant part, on the basis.of.
a serieus 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 not granted. The necessary certification in the form of a statement of support'should be acquired by the requestor-prior to applying to NRC for emergency access so the certification can be a part-of the actual petition.
Congress delibe ately gave the NRC the ' responsibility for making the common defense and security determination rather than leaving the deter-mination with 000 or DOE. So while the Commission interids to give the D0D and DOE certifications and recomme~n'dations full consideration in evaluating requests for emergency access, the Commission wil'1 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 N $b%
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J7590-01]-
- 2. ;
consistent with the public= health.and safety. Requestors for emergency:
1 access are required to demonstrate thatith'ey have explored the~alterna- l 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 will have to' evaluate are set out in Section' 6(c)(1)(B) of the Act. Theyinclude(1). storage of LLW at the site of generation or in a storage' facility, (2) obtaining access to a disposal facility by voluntary agreement,-(3) purchasing disposal capacity available for assignment' pursuant to Section 5(c) of' the Act, and (4) ceasing the activities that generate.the LLW.
~
While 6(c)(1)(B) of the Act. sets these.out as possible alternatives which a generator must consider before requesting emergency access, NRC has identified other possible alternatives to emergency access-which j should be considered, as appropriate, in any requests for . emergency access. These additional alternatives are discussed below. -
Section 5(c)(5) of the Act, " Unusual Volumes, provides owners and operators of commercial nuclear reactors with special' access ~to disposal in the event-that unusual or unexpected operating, maintenance, = repair or safety activities produce quantities of waste which cannot be other-wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access' provision was to apply to the Section 5(c)(5) wastes unless the capacity required for disposals under the unusual volume provision would exceed the 800,000 cubic feet allocated for those' purposes. Thus, NRC has taken the post-tion in this rule that as long as unusual volumes disposal capacity is available for LLW which qualifies for such disposal, emergency access 22 a
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- l should not be requested. Applications.for emergency access for wastes 1 which NRC determines would otherwise be; eligible for disposal under the unusual volumes. provision,.will be denied.
'Anothe.r alternative applies only t'o Federal or defense related-generators of-LL'. W -NRC will expect that generators of.LLW falling into either of these categories will attempt to arrange for disposal at.a:
' Federal LLW disposal. facility prior to requesting access to non-Federal .
facilities under the emergency access provision.
The Commission fully intends that.the States and Compacts whose
~
I generators have been denied access to LLW disposal will share in'the I responsibility for identifying and providing alternatives to emergency access. NRC's expectation is that the States and appropriate Compacts, I
L as well as the generator, will each exhaust their options before emer- l
- 1. ;
gency access will be requested. A request for emergency access is'to-I include a discussion of the consideration given to any alternatives 1 1
available to the requestor. To NRC, this includes State / Compact options as well as those available to the individual generator. .NRC expects j that any request would address the alternatives explored by each of these, and the actions taken.
j5 .
_For all the . alternatives that are considered, NRC is requiring y
I detailed information from the requestor regarding the decision process l'
l 1eading to a request for emergency access. The requestor will be 4 expected to: (1) demonstrate that all pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the-alterna-tives considered; (3) demonstrate that consideration has been given to l
23
[7590-01]
combining alternatives in some 'w.ay 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):in' corporate the results into the request.
(c) Designation.of-Site.
~
In deciding which of ' he.. operating, non-Federal or regional LLW
. disposal facilities will receive'the LLW requiring-emergency. access, NRC will determine which~of the disposal-facilities-would qualify under the-A limitations set out in Section 6(h) of the Act. According to those i
L 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-posal exceeds 20 percent of the total volume of the LLW accepted for.
disposal at the site in the previous calendar year.
If NRC cannot designate a. site using the limitations in the Act-alone, the Commission will consider other factors including the type of waste, previous disposal practices, transportation requirements, radio- I logical effects of the waste, the capability for handling.the waste at each site, the vo'lume 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 l
'I 24
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _____ -- - - - - - - - 1
I 6
I i
B.4 Comment Letter #4 -- Gregg Larson, Executive' Director Midwest Interstate Low Level Radioactive Waste Commission 1
Comment 4.1 Page 47580 of the Federal Register Notice states that the Nuclear Regulatory ' l Com: ssion's (NRC) approach in developing the rule was intended to - l "1. Assure that all of the principal provisions of Section 6 of the Act are i 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 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 j ensure that the right to reciprocal access. is recognized and its implications are considered. A formal reciprocal access acknowledgement and should be r
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 requestforemergencyaccess(Section62.[2)andshouldincludesome 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 commitment to reciprocal access is an integral part of the emergency access process. However, NRC made a decision not to include any reference to reciprocal access in the
-proposed rule. Staff believe that assuring reciprocal access is beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. Under certain circumstances, requiring a promise of reciprocal access as a condition
+ ,' .
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B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate l Low Level Radioactive Waste Commission !
l l
Comment 4.1 Page 47580 of the Federal Register Notice states that the Nuclear Regulatory ]
Com: ssion's (NRC) approach in developing the rule was intended to, 'l "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 q access waste was generated. It further provides that the regional compact or state that receives the emergency access waste shall designate, for I 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 cmergency 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
~
requestforemergencyaccess(Section62.12)andshouldincludesome 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 commitment to reciprocal access is an integral part of the emergency access process. However, NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believe that assuring reciprocal access is beyond ;
the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. Under certain circumstances, requiring a promise of reciprocal access as a condition
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action necessary for NRC to carryout that mandate.
NRC believes that arranging for reciprocal access in response to grants 7 of emergency access is the responsibility of the States and Compacts l i
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 partgpegpgQryg g$ c q specified under Section 6(g) of the Ack. Ige ti!!C continues to believe %
that an enforcement role regarding reciprocal access is inappropriate j1 for the Agency (See also comments to 4.2, 4.3, 4.4, 4.5, 5.4, and h 17.14) nJef 2- 1 Comment 4.2 q Before granting emergency access, the NRC should determine whether or not there would be any limitations (e.g., timing, license restrictions, etc.) on 1 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 i
RESPONSE: As stated in the 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)
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)
8 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: Section6(h)oftheActplacescertainlimitationsonthe designation of' a facility to receive emergency access waste. In addition, the Commission has specified other designation criteria in proposed 10 CFR 60.26,_ including "any other considerations deemed appropriate by the Commission." The Commission believes that these cover the primary considerations of concern, and therefore, has not specified " potential liability obstacles" in the rule as a factor in making emergency access decisions. However, any potential liability obstacle that might affect the Commission's emergency access decision-making on a particular request could be brought to the Commission's attention through the public comment process on a specific l_
request.
i l
1 Comment 4.5 l 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.
T_
RESPONSE: (SeeresponsestoComments4.1and4.2)
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 9
'r h____________________-_________ _ _ _ _ _ _ _ _
M CALK) k C,Cf Ad)f g - -[Q 9 2,, . MM e Y 00 h. ' /f) & p b As noted above, Section 6(t)1 entitles any dompact
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_;, ma or State that'provides emergency access to a disposal facility within its borders to reciprocal access to any subsequent 1y operating disposal facility th g g rves the State or Compact-
,, a .a-in which the P"' '~ '
m m L i v-- "'w+c granted emergency access was; generated. The-Commission anticipates that any C)mpact . , .
.i or State that provides emergency .
access would take action to enforce this statutory right af' I ha rg,1%d@c i,,p_.r .the - S tate or bmpact panecem in which the emergency acce;s waste.was generated does not' accept; an equal volume of. low-level radioactive. waste having similiar characteristics at some' future date.
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has the Congressional mandate for this determination, the staf f believe ._
it necess.ary to consider D0D and _00E information _ as part of the decision-making' process.'
- NRC considered several approaches for involving.000.and DOE in the process of determining.whether requests.for. emergency access should be l
- l. ; ranted on the basis of a serious and immediate threat to the common
! defense and security. NRC'has concluded that the best way to provide such interaction'is to require that requests filed with NRC for . emergency _
access which are made entirely, or in significant part, on the ba' sis of-a serious and immediate threat to the, common defense and security, should include appropriate certification from DOE or D00 substantiating the i requestor's claim that such a threat will result if emergency accessiis.
not granted. The necessary certification in the form of.'a tatement of support should be acquired by the requestor prior to applying to NRC for emergency access so the certification can be a part of the actual:
petition.
Congress deliberately gave the NRC the responsibility for making the common defense and security determination rather than leaving the deter-mination with 000 or DOE. So while the Commission intends to give the D0D and DOE certifications and recommendations full consideration in evaluating requests for emergency access, the Commission wil'1 not treat them as conclusive.
(b) Determination on Mitigating Alternatives. l 1
As directed by Section 6 of the Act, even if a situation exists 1
which poses a serious and immediate threat to the public health and l
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 !
o 21 I a ws 1
___--__ - _ - . - - - - L
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[7590-01]
consistent with the public health and safety. Requestors for emergency-access are required to demonstrate that they have explored the alterna-tives available and that the only course of action remaining is emergency access. Only after this has been demonstrated to NRC will the Agency proceed with' a g7snt of emergency access.
- Alternatives which, at a minimum, a requestor will have to evaluate are set out in Section 6(c)(1)(B). of the Act. They include (~1) storage l
of LLW at the site of generation or in a storage facility, (2) obtaining i access to a disposal facility by voluntary agreement, (3) purchasing
.1 disposal capacity available for assignment pursuant.to.Section 5(c) of l I
the Act, and (4) ceasing the activities that generate the'LLW. ]
While 6(c)(1)(B) of the Act sets these out as possible alternatives which a generator must consider before requesting emergency access, NRC has identified other possible alternatives to emergency access which I
should be considered, as appropriate, in any requests for emergency {
l access. These additional alternatives are discussed below. )
I Section 5(c)(5) of the Act, " Unusual Volumes," provides owners and operators of commercial nuclear reactors with special access to disposal I in the event that unusual or unexpected operating, maintenance, repair 1
or safety activities produce quaatities of waste which cannot be other- i wise managed or disposed of under the Act. NRC does not consider that !
Congress intended that disposal under the emergency access provision was 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 available for LLW which qualifies for such disposal, emergency access 22 l
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of feasibility of the alternative In evaluating the the NRC will obtaining access by voluntary agreement, failure of the requestor the disposal also evaluate the extent t:0 which a waste of agreement not future to provade reciprocity was atofactor the in a voluntary issue int l l
facilty's clients the NHC in evaluating being i eached . However, even if reciprocit.y agreement, was an alternative, to reach an the failurevolur:1.ar y agr eemen t is a feasible
,I for the requestor in ,
whe t tw. r a it was ressonable would examinwu to provido is whether ut h reciprocity. to ' '
to The requirein the f ortna t ion requestc,r regttiremen was requested, ,and
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be pruvided. 7/9,,
\ submit inf or mationretiprocity cou]d not bif so, why #M & m Mw dg'cth ,te k & a.afmed 'I &f"25y i
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should not be requested. Applications for emergency access for wastes which NRC determines would otherwise be eligible for disposal under the unusual volumes provision, will be denied.
Another alternative applies only to Federal or defense related i i
t generators of LlW. NRC will expect that generators of LLW falling into j either of these categories will attempt to arrange for disposal at a Federal LLW disposal facility prior to requesting access to non-Federal l l
facilities under the emergency access provision. j f The Commission fully intends that the States and Compacts whose i
I generators have been denied access to LLW disposal will share in the responsibility for identifying and providing alternatives to emergency access. NRC's expectation is that the States and appropriate Compacts, as well as the generator, will each exhaust their options before emer- .
l gency access will be requested. A request for emergency access is to include a discussion of the consideration given to any alternatives ,
available to the requestor. To NRC, this includes 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.
5M WRfor all the alternatives that are considered, NRC is requiring detailed information from the requestor regarding the decision process l
leading to a request for emergency access. The requestor will be _
expected to: (1) demonstrate that all pertinent alternatives have been l
. considered; (2) provide a detailed analysis comparing all of the alterna-l tives considered; (3) demonstrate that consideration has been given to 23
1
.. . - . 1
[7590-01] j i
combining alternatives in some way or.in seme 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 i
potential alternatives, and (5) incorporate the results into the request. ..
(c) Designation of Site. l J
'I In deciding which of th'e operating, non-Federal or regional LLW l
disposal facilities will receive the LLW requiring emergency access, NRC i will determine which of the disposal facilities would qualify under the j l
limitations set out in Section 6(h) of the Act. According to those i 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 ,l set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act alone, the Commission will consider other factors including the type of waste, previous disposal practices, transportation requirements, radio-logical effects of the waste, the capability for handling the waste at each site, the volume of emergency access waste previously accepted by each site, and any other information that would be necessary in order to come to a site designation decision.
Within the requirements of the above criteria, the NRC will, to the extent practical, attempt to distribute the waste as equitably as possible 24
[7590-01]
bI i 44 p bo h.
(m) Date by which access is required; (n) Any other information which the Commission should consider in making its determination.
S 62.13 Contents of a request for emergency access: Alternatives.
(a) A request for emergency access under this part must include information on alte'rnatives 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; i (2) Storage of low-level radioactive' waste in a licensed storage facility; (3)
Obtaining Gav%g 4access 4, > to a disposal ariutt.r facility by voluntary agreementy& 4-papwic6 (4) Purchasing disposal capacity availabkg taragwiTabG e for assignment a. dip, pursuant 4"5c Cg .
pmid. ,
J to the Act; l
l (5) Requesting disposal at a Federal low-level radioactive waste disposal facility in the case of a Federal or defense related generator of LLW; (6) Reducing the volume of the waste; l (7) Ceasing activities that generate low-level radioactive l
waste; and _
l (8) Other alternatives identified under paragraph (b) of this section.
l (b) The request must identify all of the alternatives to emergency access considered, including any that would require State or Compact p<al af u gp ap:y' oQf . ]
action, or any others th'at are noCspecified in paragraph (a) of this sec- l 4
tion. The request should also include a description of the process used i
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[7590-01] '{
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to identify the alternatives, a description of the factors that were' con-t 1
sidered in identifying and evaluating them, a chronology of actions taken q to identify and implement alternatives during'the process, and a discus-sion of any actions that were considered, but not implemented.
(c) The evaluation of each alternative must consider: j i
'(1) Its potential for mitigating.the serious and immediate threat I to public health and safety or the common defense and security posed by lack of access to disposal; (2) The adverse effects on public health and safety and the common- j 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 common defense and security; j 1
(3) The technical and economic feasibility of each. alternative 1
including the person's financial capability to implement the alterna- i tives; (4) Any other pertinent societal costs and benefits; (5) Impacts to the environment; (6) Any legal impediments to irelementation of each alternative, including whether the alternatives will comply with applicable NRC and '
1 NRC Agreement States regulatory requirements; and (7) The time required to develop and implement each alternative.
(d) The request must include the basis for (1) rejecting each_
alternative; and (2) concluding that no alternative is available.
S 62.14 Contents of a request for an extension of emergency access.
A request for an extension of emergency accus must include.
(a) Updates of the information required in S 62.12 and S 62.13; and 56 L
. . j
% CGWMW 6 0+ b i
B.4 Comment Letter #4 -- Gregg Larson, Executive Director Midwest Interstate Low Level Radioactive' Waste Commission
~ Comment 4.1 . . .
i l Page 47580 of the Federal Register Notice states that the Nuclear Regulatory l Com: ssion's (NRC) approach in developing the rule was intended to, j "1. Assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation." However, the proposed rule omits any reference j to, or discussion of, Section 6(f) of the Act, which addresses reciprocal I
access. This Section provides that the regional compact or' state receiving
.the emergency access waste'is entitled to reciprocal access at any subsequent facility that serves the compact region or state in which the emergency access waste was generated. It further provides that the regional compact or 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 l are considered. A fonnal reciprocal access acknowledgement and should be extra"cted 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 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 commitment to reciprocal access is an integral part of the emergency access process. However, NRC made a decision not to include any reference to reciprocal access in the proposed rule. Staff believe that assuring reciprocal access is beyond the scope of NRC's mandate to grant requests for emergency access in order to protect the public health and safety. Under certain ~
circumstances, requiring a promise of reciprocal access as a condition -
~
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4'y#The l final rule has not been changed to require any role for NRC in assuring
. l i
reciprocal access. However, language has been added to the final rule in ;
Subsection VII (b) " Determination on Mitigating Alternatives", and to Section 62.13 " Contents of a Request for Emergency Access: Alternatives",
which bears on the reciprocal access issue. The Commission has decided to make a distinction in the final rule between " reciprocal access" -
established in Section 6 of the Act as access to LLW disposal that a sited i
State or Compact is entitled to because they. have provided emergency access, .l and " reciprocity" - a guarantee of future access _ that could be part of a 1 voluntary agreement between unsited and sited States and Compacts. The i Commission believes that unsited States and Compacts should attempt to arrange l for reciprocity prior to requesting emergency access. In order to emphasize this,Section VII (b) specifies that the Commission will consider whether I reciprocity has been explored by the requestor in the process of determining i j whether a voluntary agreement is a viable alternative to requesting emergency j l access. )
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.for reviewing a request for emergency access, could interfere with
' action necessary for NRC to carryout that mandate.
NRC believes that' arranging for reciprocal access..in response to grants .
7 j of emergency access'is the responsibility of the States and Compacts involved and is unrelated to'the Commission's responsibility to protect ,
j the-public health and safety. NRC also believes that appropriate ,,y }
arrangements should be agreed'to as'part o peggaggcjsg g specifiedunderSection6(g).oftheAck.p W BC continues to believe ch that an enforcement role regarding reciprocal access is' inappropriate for the Agency .(See also' comments to 4.2, 4.3,'4.4, 4.5, 5.4, and- h l
17.14)-
La# 2- l I
Comment 4.2. !
l Before granting emergency access, the NP.C 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., cource, physical, and . radiological).
This specific determination should be added to the Section 62.25 criteria.
i RESPONSE: As steted in the response to Comment 4.1, NRC will not be involved in brokering reciprocal access arrangements, as would be l required if NRC were to carry out the determination requested by this comment. (SeeComment4.1)
Coment 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 eoual volume of reciprocal access waste with similar characteristics.
This specific detennination should be added to the Section 62.26(c) criteria.
RESPONSE: (See responses to Coments 4.1 and 4.2)
L :
5 h e ,5b .[7 01]
off 4 ,
A The NRC believes the addition of this clarification to the final. rule should resolve any questions'regarding a.particular LLW's! eligibility for i Mt emergency access consideration:as well.as the Commission's' intended- i application of the final rule.
Reciprocal Access Several of.the commentors pointed out that-the proposed. rule omitted :
any reference to, or discussion of,, Section '6(f) of the Act, which.
addresses reciprocal access. Section 6(f) provides th'at the Regional. 3
. Compact or State receiving the emergency'acce'ss 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 provi' des that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to
~
that provided emergency access."
Most of the States and Regional Compact Commissions.who submitted-.
comments on the proposed Part 62 indicated that reciprocal access should
-J be addressed in the final rule. Most of the commentors who raised
~
l reciprocal access concerns believed the NRC should broker reciprocal 1.
I access arrangements to ensure that reciprocal access will be available to a State or Compact whose LLW disposal facility is designated to rec _eive.
emergency access waste. Several of them emphasized that the reciprocal ', ,
access provision of the'Act is a significant one that cannot be ignored n
in the NRC process of granting emergency access and designating a 3
31 4;
I
[7590-01]
disposal facility. They stated that reciprocal access is of particular concern because a receiving Regional Compact or State has virtually no leverage or role to play in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. .They indicated reciprocity is an integral part of Section 6 and should be part of the rule.
Orie commentor indicated that even if the NRC did not wish to be involved in brokering the arrangements, it "must ensure that the right to reciprocal access is recognized and its implications are considered." ,
l The commentor indicated that a formal reciprocal access acknowledgement should be extracted from the Compact Region or State in which the emer-1 l gency access waste was generated before any determination for granting emergency access is made. They indicated that such an acknowledgement should be required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledgement could then be included as part of the Section 62.22 notification provided to the receiving state and, if appropriate, the Compact Commission."
The NRC recognizes that the commitment to reciprocal access is an integral part of the emergency access process, particularly for the States with the operating LLW disposal facilities which will be designated l 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 on emergency access. As NRC staff read Section 6(f), arranging for i
32
'e-
.[7590-01]'
reciprocal.acess is an obligation ~between. States / Comp' acts unrelated to the Commission's responsibility to protect public health'and safety and.
1 r 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.
The NRC reconsidered its position on reciprocal access.in light'of. ,
Jo the comments received on the proposed rule, & = but%s J,6 'to&pdded the, QdiTA5]
Acupwed Mj Man final rule. The NRC's mandate under'SectionL6:is to grant requests for '
emergency access in order to protect'the public. health and safety and the common defense and security from a serious ~and immediate threat. If-the' NRC were to require a formal promise of reciprocal ~ access as.a necessary condition for considering a request for emergency access, under.certain circumstances, actions necessary to protect the public health and safety could be delayed or compromised. Thus, the NRC continues to believe that an enforcement role regarding reciprocal access is' inappropriate for the
^
NRC. The Commission also believes that any role regarding reciprocal.
access, even of a brokering nature, could be in conflict-with the Commi's-sion's basic mandate to make emergency access decisions. .The NRC maintains that arranging for reciprocal access 1[ response to grants of emergency-
. 9 access is the responsibility of the States and-Compacts involved. .The'NRC believes that the promise of reciprocal access' desired by the comme _ntors ;
could be initiated during the 15 day period required by the Act'under j 9
Section 6(g) for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation. 9
~
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w ah W yd W L WW 8 an ng , u s w a c~ so 1 O 9 ch5"41.5 '"'WWWTW12W?0
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' 'i
AC.Tf.1 N2 DRAFT NRC ISSUES RULES FOR GRANTING EMERGENCY ACCESS TO EXISTING LOW-LEVEL RADI0 ACTIVE WASTE DISPOSAL FACILITIES The Nuclear Regulatory Commission is issuing regulations that establish criteria and procedures for evaluating requests for emergency access to operating non-federal low-level radioactive waste disposal facilities.
1
! {
Under the terms of the Low-Level Radioactive Waste Policy Amendments Act l
{
of 1985, individual states and regional compacts must take certain actions 1 leading to the development of their own low-level radioactive waste disposal I capacity within the periods of time specified in the Act. If these actions are not taken within the time frames specified, generators of low-level radioactive i 1 !
wastes within the non-complying state or regional compact may be denied access to existing disposal facilities after January 1,1989.
l l
However, the Act authorizes the Commission to grant low-level waste 1 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 l
Commission must find that such action ". . .is necessary to eliminate an 1 \
l immediate and serious threat to the public health and safety or the common l
l 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 1
generate the low-level waste."
M 24&.#
ff G -
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-level waste duposal 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.
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:
(1) the nature and extent of the radiation hazard that will result from the denial of emergency 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 (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.
In making a determination that the circumstances described create a serious and inanediate threat to the common defense and security, the Conraission will consider:
F,.
DRAFT (1) whether the activity generating the wastes is necessary to the
. protection of the common defense and security (giving ' consideration to the views of the Department of Defense and the Department of Energy) and (2) whether the lack of access to a disposal site will result in a !
significant disruption in that activity that will seriously threaten the j
common defense and security.
I i
l The new rule also sets out criteria for determining whether to grant
]
" temporary" emergency access. The Act allows the Commission to authorize such I temporary access for not more than 45 days, without considering available alternatives, if it concludes that the threat to the public health and safety or common defense and security warrants such action.
If the Commission determines that there is a need for emergency access, or !
" temporary" emergency access, it will then decide which operating non-federal low-level waste disposal facility should receive the waste, using criteria--set ;
out in the rule--such as whether the waste and the disposal facility are compatible or whether a disposal facility has been previously designated to receive emergency access waste.
A proposed rule on this subject was published in the Federal Register on 1
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 ).
- F2 5
3ca y .2
+
- a na '
+
UNITED STATES
[-
g E
NUCLEAR REGULATORY COMMISSION WASHINGTON, D, C. 20555
- s ****
/ August 30, 1988~
.q
'f MEMORANDUM FOR: Janet Lambert, RES-'
- JFROM
- Sue F. Gagner, GPA_ 5
SUBJECT:
DRAFT PUBLIC ANN 0UNCEMENT ON.PART.62 Enclosed for your comments and.' approval-.is a' draft public announcement j on the final rule on' criteria and procedures'for granting emergency . 1 access to low-level waste facilities. This announcement is very similar to the one: for the proposed rule, except for the last two' paragraphs.
Please. coordinate any. suggested. changes with this-office before forwarding.
your paper to the Commission.
Enclosure:
As stated j l'
1 i
o, .27 h -
^
DRAFT NRC ISSUES RULES FOR GRANTING EMERGENCY ACCESS TO EXISTING LOW-LEVEL RADI0 ACTIVE WASTE DISPOSAL FACILITIES The Nuclear Regulatory Commission is issuing regulations that establish criteria and procedures for. evaluating requests for emergency access to O
operating non-federal low-level radioactive waste disposal facilities.
Under the terms of the Lor-Level Radioactive Waste Policy Amendments Act of 1985, individual states and regional compacts must take certain actions leading to the development of their own low-level radioactive waste disposal capacity within the periods of time specified in the. Act. If these actions are 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 @" 'N 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-federale1 .(>
low-level waste disposal facilities. In order to grant such a request, the Commission must find that such action ". . .is necessary to eliminate an immediate and serious threat to the public health and safety or the common 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 assignnent or ceasing the activities that generate the low-level waste."
D_ RAFT I
Under the new NRC regulation, a person' seeking. emergency a'ccess must '
. submit detailed information to.the Commission on the need for access.to low-level waste disposal. sites; the quantity, type and nature of the material requiring disposal; impacts.on public health and safety or common defense and: ;
L security if. emergency access is not granted; the alternatives considered; 'and l ~~ .
-the process used to conclude that none'of.the alternatives are reasonable.
1 \
In making a determination that the circumstances described in a request
.. 1 for emergency access' create a' serious and immediate threat to the public health )
and safety, the Commission will consider:
(1) the nature an'd extent of the radiation hazard that will result from the denial of emergency 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 j l
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 'I (2) the extent to which essential services such as medical, therapeutic, i diagnostic or research activities will be disrupted by the denial of emergency access to waste disposal facilities.
in making a determination that the-circumstances described create a serious and immediate threat-to the common defense and security, the Commission I will consider:
DRAFT
-(1) whether the activity' generating;the' wastes is necessary to-the:
. protection of. the common defense and security..(giving consideration to the -
views of the Department of Defense and the Department of Energy) and (2) 'whether the lack of access to a disposal' site'will' result in a
'significant disruption in that activity that will. seriously threatbn'.the common defense and security.
- 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 alternatives, if it concludes that the threat to the public health and safety or common defense and security warrants such action.
If the Commission determines that there is a need for emergency access, or
" temporary" emergency access, it will then decicgw'hich operating non-federal'o1 8 sR waste low-level waste disposal facility su ashould regve q w, ,us p yrgteria--set a
otintherule--suchaswhether/Adisposalfacilitrhasalreadycccc a a 4tt 4tj gM. . y. .mcapa uNMci ty.
Gc e t-4 2 J W h .
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 energency access decisions are essentially unchanged.
The final rule will be effective on (30) days after publication in the Federal Register on ).
l
i
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1 4
4 c.2 Y-2 ob/c 1
I Document Name:
10 CFR 62 REG ANAL ENCL C hf l e
Requestor's ID: ' f r1 NAN
% j Author's Name:
LAMBERT J l
l Document. Comments :
SPE 7/25/88 - Return this sheet when submitting corrections
{
l l
I 1
i 1
M 98 w
, y REGULATORY ANALYSIS 10 CFR'Part 62 - Criteria and Procedures for Granting Emergency 4 Access to Non-Federal or Regional Low-Level Waste Disposal Facilities:
- 1. s STATEMENT OF THE PROBLEM Section.6 of the Low-Level Radioactive Waste Policy. Amendments Act of 1985 (PL'99-240, January 15, 1986), "the Act", directs the Nuclear Regulatory' Commission (NRC) to grant a generator or State " emergency access" to any non-Federal commercial LLW disposal facility if' access to those facilities has been' denied and that access is necessary in order to eliminate an immediate and-serious threat'to the public health and safety or the common defense and secu-rity. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. 'NRC must be able, with the information provided by the requestor,-to make both deter-minations 4- " ; prior to granting emergency access. 1 1
The Act further directs NRC to designate an operating LLW disposal facil- l ity to receive the waste which is granted emergency access and directs NRC to notify the appropriate State and Compact officials regarding the designation.
The Act provides NRC with 45 days from the time a request is received to determine whether emergency access is required and to' designate a facility.
Although the Act does not require NRC to develop a rule to carry out its i
Section 6 responsibilities, NRC staff recommended a rulemaki'ng to establish the procedures and criteria that will be used in making the required emergency access determinations. Gii_ J.m , cyL i te wnm a "' ' -' '-
-t[ order for a requestor to be eligible for emergency access consideration " '"' they have already been denied acces LW disposal by the States or Compacts with i
operating disposal facilities.,p mplicit in any decision to, grant emergency' '
access is the fact that such a decision will override the sited States' and/or Compacts' expressed desire not to accept waste from that particular State or generator. Although Congress provided NRC the statutory responsibility for implementing Section 6 and gave the Commission authority to decide whether 1 Enclosure C 1
- - - _ - - - _ _ _ _ -_ _a
or not access will be provided, emergency access decisions are likely to be i
controversial and could be challenged. By setting out the procedures and criteria for making emergency access. decisions in a rule which reflects public comment, NRC intends to minimize patential delays in the actions necessary to protect the public health and safety. l I
l 2. OBJECTIVES l
l The objective of this final rule is to es,tablish 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- I tecting the public health and safety.
- 3. ALTERNATIVES 3.1 Using Rulemaking Under this alternative the criteria and procedures to be used by NRC to make emergency access decisions would have the force of law. Using rulemaking also provides binding criteria and procedures and therefore would add predict-ability and stability to the regulatory process. In addition, rulemaking allows for input from potentially affected individuals and organizations, should minimize potential delays in the actions necessary to protect the public health and safety, and will help to ensure that the Commission will be able to mak a decision on emergency access requests in the time required by the Act, NOn.f h-are desirable since energency access decisions are likely to be highly controversial.
- 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
. - j
. l M. f )
addition, a policy statement was not considered appropriate to~ establish the
^
detailed criteria and procedures required to implement NRC's emergency access responsibilities r 'n , J [
i 3.3 Taking No Action J
-l The alternative of taking no' action was also: rejected. Under this alter-
{
. native, both the person requesting an emergency access determination and the i 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 inforniation necessary for a determination and that could cause delays in the l Commission's mandated determination response time of 45 days. Also, guidance. i 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 ind'ividual 4 determinations. ~I I
l 4. CONSEQUENCES !
l 4 .- 1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive waste disposal facilities made pursuant to provisions of the' Act should not result in a serious and immediate threat to the public health and safety or the common defense and secur Igthosecaseswhereemergencyaccessis -
granted under the rule, the re_ipirts will receive the benefit of continuing ,;
the activity responsible for generating the waste at least 'until the grant expires , ad Society will benefit from continuin gccess to the l services produced by that Jactivity r ince ad aemergency
- e. 4tcess decisions will be % good aed 2 g made on an individual generator / licensee basis, and since.NRC staff cannot f
predict the number of requests that might be received, it is not possible to quantify the benefits associated with the rule. -
3 Enclosure C
1 1
i i
4.2 COSTS '
4.2.1 Applicants for Emergency Access a i
{ AppLwanta icyucat mg emergeaQ acce n may4eJ,jenerators of LLW, NRC or l
[ NRC Agreement States licensees, Governors or other State chief executive officers on behalf of the generators or other " persons" as defined in the l E osed M \h4RC staf f estimates that regardless which of these person s
requests emergency access, approximately two (2) weeks of the requestor's l
professional staff time will be required to process the paperwork necessary to f
complete a request for an NRC determination pursuant to the requirements set l out in the Act and which have been codified in the proposed rule. Because the )
stances will be different for each applicant, it is not possible to quantify the time or resources required for each of the applicants to collect ,
the information and perform the analysis on which the request will be based. l1 This is particularly true when it comes to the possible need for long term data collection and the in depth analysis and consideration that will be necessary
( to evaluate alternatives y
~
gM Other possible costs associated with this final action 7trc &'m by A e ,i the very specific mandates in Section 6 of the Act. If NRC does not grant yq a request for emergency access, the applicant may have to alter the activities j generating the waste in question, even to the point of ceasing them for some period of time, or possibly curtailing them altogether. The costs to the requestor could come from expenditures either in time or resources required to alter the activities or processes responsible for generating the wastes,,or from loss of income from reduced or curtailed production.N #
'k & M YCid%Ihh;LOTJ.SwrLt&W Y 4.2.2 NRC OV 0
& m of.:tElo 4 Abe$ 4.
As provided by Section 6 of the Act, NRC will only have about 30 working W:
days to respond to each request for emergency access (45 calendar days = 6 and b 1/2 weeks = approximately 30 working days). NRC anticipates that approximately 180 staff days will be required for each requesp NRC cannot project the number of requests that might be received, so total costs to the NRC cannot be estimated. However, given the Congressional intent that Section 6 of the Act be applied only in " rare emergencies," it is not expected that the regulation will be applied with any frequency.
~
f.)S fnLL CC S& 'o A, , V 8 bC4440 }( /$R 5L cey dec .khu tq000 i fu y d 4 Enclosure C
1 In order to implement this final rule,'it.be4T 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 esent an additional.
commitment of NRC resources.
Since Section 6 precludes'NRC Agreement States from, making emergency-access' decisions, the final action will not have an impact on Agreement State' resources.
'4.2.3 Department of Energy (DOE)/ Department of Defense (D00)1 NRC is' requiring that requests-for emergency access based. totally or:in significant part'on a serious'and immediate threat to the common defense and security, include a statement of ' support from D0 d/or DOE. NRC estimates-m ~ 1S' .s that approximately..five staff weeks would be r uire for each emergency. access request proc sed ~by DOE or D.0D. @ % h Md5 MC j NM COS t U +0 fat i@ & .
- 5. DECISION RATIONALE NRC decided on the appe .n. in the final rule in light of the Congressional directives in Section 6 of the Act and considering the comparison of alternatives as discussed in the preceding section.
- 6. 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.
The first date for potential denial of access was January 1,1987. The States were able to satisfy the requirements for that milestone and none were denied access. January 1, 1989 is the next date when the three operating LLW disposal facilities can refuse to accept waste-from a par,ticular State. NRC plans to issue the final rule by November 1988, so it will be in place before that January 1989 potential dental of access date. Once the final rule is issued, its actual implementation will be triggered by NRC receipt of a request for emergency access.
5 Enclosure C
(
l In the event that a request for emergency access is made before the final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental Impact Statement need not be prepared in connection with this rulemaking action because promulgation of the final rule is not a major Federal action significantly affecting the quality of the human environment within the' meaning of NEpA. The final rule would establish criteria and proce-dures for a Commission determination under Section 6 of the Act that emergency _
access to an operating non-Federal LLW disposal facility is necessary to avert a serious and immediate threat to.the public health and safety or the common -
defense and security. For the most part, the final rule is an administrative action which serves to codify the criteria and procedures in the Act. The i adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental ef fect.
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 i serious impacts to the public health and safety, the common defense and secu-rity, and possibly the environment are anticipated as a result of denial of access to a LLW disposal facility. NRC will become involved only when the need for corrective action has been identified. Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action necessary to assure that the public, the national security and the environment are protected. Whether the Commission decides to grant emergency access, or !
to deny it because alternatives are available, NRC will make the decision only when satisfied that the action to be recommended will minimize the effects of i concern and maximize needed protection.
The Commission designation of the LLW disposal facility to receive the LLW approved for emergency access should not result in adverse impacts to the environment. First. Section 6(h) dictates that the total quantity of emergency access LLW approved for disposal at any non-Federal or regional LLW disposal facility must fall within the volume caps established by the Act, and for any i 6 Enclosure C
a q
)
12-month period, be less than 20 percent of the total volume of LLW accepted by that facility during the previous ' calendar year. Thus, the amount of waste i provided disposal under the emergency access provision will be much less than 1 the total amount of LLW that will be disposed of in regional or non-Federal disposal facilities. In addition, waste granted emergency access will have to be processed, transported and handled in a manner that complies with applicable safety regulations. Second, NRC will be considering the characteristics of the LLW requiring emergency access in designating the receiving facilities in order to assure that they are compatible and that the impacts from each indi-vidual grant of emergency access are minimized.
- 8. REGULATORY FLEXIBILITY ANALYSIS NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facil-ities under Section 6 of the Act. Based upon the information available and in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact upon a substantial number of small entities.
The final rule has the potential to affect any generator of LLW.
However, in order for the requirements of the rule to be imposed on a generator, he must request emergency access to a non-Federal or regional LLW disposal facility, having been denied access because the State or Compact Region in which he is located has failed to comply with the milestones for LLW l disposal development in Section 5 of the Act.
Establishing criteria and procedures for requesting and granting emergency access will have a positive benefit for small and large generators alike. It will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.
The impact of the recordkeeping requirements on any affected licensees should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to decide a course of action if necessary access to LLW disposal was not going to be available. ,
7 Enclosure C 1
l
b C 2 'lT2- YDE A
x ApuF V -
REGULATORY' ANALYSIS 10 CFR Part 62 - Criteria and Procedures-for Granting Emergency.- -l Access to Non-Federal or Regional Low-Level Waste Disposal Facilities' 1
1
- 1. STATEMENT OF THE PROBLEM 1
1 Section 6 of the Low-Level Radioactive Waste Policy Amendments Act'of 1985 j L
(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- j 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 security. geActalsorequiresthat'adeterminati_onbemadeastowhetherthe k threat can be mitigated by any alternative consisten'tT ith 4he public health n andsafety,includingceasingtheactivitiesthatgenerateth3^ waste. NRC must j be able, withphe information provided by the requestor, to mak both)etermina- D tions in the 1"' *#"^
prior to (ranting emergency access. -
l 3heActfurtherdirects,NRCtodesignateanoperatingLLWdisgosal g,p w & m yr-J to receive the waste (which is granted emergency m.J access and' m . p y directs NRC to' j notify the appropriate State and Compact officials regarding the designation. I the Act provides NRC with 45 days from'the time a request is received to determine whether emergency access is required and to designate a facility. l
. Although the Act does not require NRC o develop a rule to carry out its ;I Section 6 responsibilities, NRC is p m% c a .sk4f umA l A rulemaking to establish the !
procedures and criteria that will be used in making the required emergency access determinations. Sincejhe-requisite-<ondit4cn-that-must-be met p order q for a requestor to be eligible for emergency access consideration,is-that they e d l i
have already been denied access,whito s LLW disposal by the States or Compacts with
/)(.
operating disrasal facilities, implicitrin any> decision tozgranta mergency i access-is+the'Ts.t: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 l
i 1 Enclos re C I L
QW 9B b j !
p- ,
,_ q 1
-g implementing Section'6 and gave.the Commission authnrity to decide whether or..-
nut access will'.be provided, emergency access decisions'are likely;to be.
controversial and could'be challenged. By. setting.out.the procedures'and criteria for making emergency' access decisions. in a rule which reflects public .
comment,.NRC intends to. minimize potential delays in the. actions necessary..to.
protect 1the public health and' safety.
- 2. OBJECTIVES
- The otijective' of th rul,e 'is to establish criteria and procedures cAA[.
to-tie-med4y-the Cotun1111gILNWdeterminutton required-tef-the-Act that emergency acc.ess to f operatin non-Feocra regional low-level waste disposal
>.nwavd %
f acilities, phneed sc4fua1s ould 4e-granted cause den of.' access ha( created a serious and immediate, threat to the- ublichealth_andsafety^orthecommon.defenseand I k tw uM4wua
~
security, that c=Wtr~lni gated ent w .n>
qy ~ n;N<
=j a ,e,rnativecconsistent with protecting-A-
the public health and safety.
- 3. ALTERNATIVES _
3.1 Using Rulemaking 4 l
q Under this alternative the criteria and procedures to be used by NRC to i
make emergency access decisions would have the force of law. Using rulemaking=
also provides binding criteria and procedures and therefore would add predictability and stability to the regulatory process. In addition, rulemaking*,
allows for input from potentially affected individuals and organizations; should minimize potential delays in the actions necessary to protect the public health l i
and safety' and will help to ensure that the Commission will be able to make a ;
decision on emergency access requests in the time required by the Act.-all of h o
'Nibh are desirable since emergency access decisions are likely to be highly controversial, j 2 Enclosure C
7 1 l
I 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 alternative,- . -l the criteria and procedures would' not have the force of law or provide the: ,
oppor.t.
unity for_. input' from. .affected parties. In addition, a policy Statement was not considered appropriate to establish the detailed criteria and procedures ,,
7
required' to implement NRC's emergency access responsitiilities. [(64e #1 .
3.3 Taking No Action 7
The alternative of taking no action was also rejected. Under,this alter-native, both the person requesting an emergency access determination and the ;
Commission would have to rely on the language in Section 6'of the Act for guidance as to what information was to be used by the Commission to make the -
determinations. The Commission could not be assured of receiving the relevant information necessary for a determination and that could cause delays in the Commission's' mandated determination response time of 45 days. Also, guidance as to how the Commission will make its determination is necessary to comply with.the spirit of the Congressional directive, to provide predictability in ,
I the regulatory process, and to assist the Commission in making individual determinations, i
- 4. CONSEQUENCES ,
l 4.1 Benefits The principal benefit of the rule flows from the fulfillment of the statutory objective that decisions to deny access to low-level radioactive l waste disposal facilities made pursuant to provis. ions of _ . _ . _ - _ . _ . _ . - . . . . _
the Act should not
- - ~
xesult 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 / i
% under the rule, the' recipients will receive the benefit of continuing the '
x _
activity responsible'for' generating the waste at least until the/ grant expires, and society will benefit frort continuing access to the goods or/ services '
P' g Q ~ .p( fr Ok , sr#^
g u %9 .
la J m e,y J ., l '
3 Enclosur'e C U ?/'
J
- _ _ _ _ _ _ _ _ _ _ _ . _ . = - -
-produced by that. activity. Since emergency access decisio'ns will be made on an I
individual generator / licensee basis, and since HRC' staff cannot predict the number of requests that might be received, ,it is not possible to quantify the benefits associated with the rule. [ d'd/[t /$ , 4g / .
WA N h
.4.2 COSTS A&j' gttd? trM [
4,2.1 Applicants for Emergency Access i A,.plicantsfrhUeidng emergency accisTmay j he g.enerators of LLW, NRC or NRCAgreement,5iateslicensecsrGovefiibrs or other State chief executive M officers on b alf of-th'e' generators o'r other " persons" as defined in the proposedrule.'NRCstaffestimatesthatregardlesswhichofthesepersons N
requests emergency' access, approximately two.12Lyeeks' of the requestor's I
' professional staff _timeNillbe_requiteddogcess the paperwork necessary to complete a request for an NRC determination purtua'ht'tod.he requirements set m
- outintheActandwhichhavebeencodifiedintheproposedrulbBecausethe
, circumstances will be different for each applicant, it is not possible to '
,Y quanti fy the time or resource..s_re_qu_i_re_d_fo..r.....eac.h_ .of the applicants to collect
, the information and perform the analysis on which the request will be based.
l 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, j
Other possible costs associated with th action are driven by
/theveryspecificmandatesinSection6oftheAct. If NRC does not grant a request for emergency access, the applicant may have to alter the activities
! generating the waste in question, even to the point of ceasing them for some period of time, or possibly curtailing them altogether. The costs to the 'f g requestor could come from expenditures either in time or resources required to alter the activities or processes responsible for generating the wastes, or from loss of income from reduced or curtailed production.
>n dj ' ~ ] [Q ' ][f - .
( lq )/ k
<y 4g l Slr las6s.Jd h a e,y - &#
4 Enclosure C
F j
4.2.2 NRC As provided by Section 6 of the Act, NRC'will only have about 30 working days to respond to each request for emergency access (45 calendar days = 6 i ' and 1/2 weeks = approximately 30 worki,ng days). NRC. anticipates that approxi-
- N/)k mately 180 staff days will be required for each request. NRC cannot project ffQg4pg; the number of requests that might'be received, .so total costs to the NRC cannott/g/h/7 be estimated. However, given the C' congressional intent that Section '6 of the v. hf/
Act be applied only in " rare emergencies", it is not expected that the regula- y[ ( k tion will be applied with any fre cy.
p f' Inorder'toimplementthd8,$g:xdrule,itwtv e necessary for NRC ^ + ifW (pd ?
staf.f to develop guidance to assist applicants in prep their requests, and Q h{ l to assist NRC staff in~ conducting their reviews. Thisfrepresentjl an additional commitmentofNRCresources/t97( . jhp! /
Since Section 6 pre es NRC hgreement States from making emergency access decisions, the4 red action will not have an impact on Agreement f40 State resources. M
' 32 D 4.2.3 Department of Eneroy (D0E)/ Department of Defense (00D)
HRC is_^D r.;;-Ww4.r-e that request's for emergency access' based totallyorinsignificantpartonaseriousandimmediatethreattothecommon')
.[O O
, defense and security, include a Statement of support from D00 and or DOE.
Thh-ar+angement-wi44-not heJormal34dwnt44-after-the pubttc40mment-period- 1
-so=it-4*-dH*trE ie determinegt-rasourm wouldle requi red-ttr= prepare I hch-a-Statemes u f - strpport. NRC estimates that approximately five staff weeks M would be required for each emergency access request processed b DOE or D00. ',S, I Q Q q av v M l Af['gL [LQ f\ lV Y.Ll
-p
'b('
- 5. DECISION RATIONALE
\ ) s
%*O -fual NRC decided on the approach in the p gp; nd rule in light of the Y% Congressional directives in Section 6 of the Act and considering the comparison
, of alternatives as discussed in the preceding section.
W i W
yA 5 Enclosure C Mo p o g(
k
a j
l
- 6. IMPLEMENTATION
'l The schedule for implementation of the rule._is'. dictated primarily by the' i schedules and milestones in the Act. The Act sets'out'three milestone dates ,
requiring' the. States 'and Compacts to demonstrate specific progress towards the
-development of.new LLW disposal capacity, or their LLW generators may be' denied further access to existing disposal sites.
The first date for potential denial of access was January 1, '1987. .The l- ' States were able to satisfy the requirements for that milestone and none were l denied-access. January It 1989 is the next-date when the three operating LLW 1
disposal ~ facilities can refuse-to gtwastefromaparticularState. NRC
. plans to issue the final rule by Augwrt 1988, so it will be in place before -
that January 1989 potential denial of access date. Homer.v th:: ".C xits that. shnubt-he-hn states-MG an uns4teG;bi,6Le ur Cumpeu Lv have iniien
.Au 9 D minemence "'th tl,w January 1, E07 :' - *ne, then denini M-acceC rouldercat:Eftime_Once the final rule is-issued, its actual implementa-tion will'be triggered by NRC receipt of a request for emergency access.
In'the event that a request for emergency access is made before the final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT An Environmental Impact Statement 'need not be p d.in connection with this rulemaking action because promulgation of the -pcg. ad rule ' '" ' '
is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. TC-t;t t e would establish criteria and procedures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal l l
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
, ed rule is an administrative action which serves to codify the criteria
! and procedures in the Act. The adoption of su:h implementing procedures and ]
criteria by promulgation of a final rule does not have an environmental effect.
6 Enclosure C
q l
l Making a Commission determination to grant emergency access in accordance j with these criteria and procedures 'should also be' without adverse environmental i impact. The provisions in the rule will be activated only at the. request of'a-LLW generator or-State' go' v ernment official on behalf!cf a generator because .
L serious impacts to the public. health and safety, the common defense and security, and possibly the environment are anticipated as.a result of denial of access to a LLW disposal: facility. NRC will' become involved only when the need L for.
l
' corrective action'has been identified. 'Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action necessary to assure'that the public, the national. security and the environment are protected. Whether:the Commission decides to grant' emergency; access, or to deny it because alternatives are available, NRC will make the decision only when satisfied that the action to be recommended will minimize the effects of concern and maximize needed protection.
The Commission designation ~of the LLW disposal facility to receive the LLW.
approved for emergency access should not result in adverse impacts to the environment. First of all, Section 6(h) dictates that the total quantity .of emergency access LLW approved for disposal at any non-Federal or regional.LLW.
disposal facility must fall with he' volume caps established by the Act, and'for-l any 12 month period, be less than 20 percent of the_ total volume of LLW accepted L by that facility during the previous calendar year. Thus, the amount of waste provided disposal under the emergency access provision will be much less then the total cmount of LLW that will be disposed of in regional or non-Federal
^
disposal facilities. In addition, waste granted emergency access will have to be processed, transported and handled in a manner that complies with applicable safety regulations. Secondly, NRC will be considering the characteristics of the LLW requiring emergency access in designating the receiving facilities in order to assure that they are compatible and that the impacts from each indi-vidual grant of emergency access are minimized.
l l
7 Enclosure C !
J
~. . . . . . . . . ._ - . . . . . . . .
i
)
- 8. REGULATORY FLEXIBILITY ANALYSIS )1 QM NRC.is using this mned rule to implement. the statutory requirements l
]
for granting emergency-access to non-Federal or regional LLW disposal facil- ,
ities under Section 6 of the Act. Based upon the information available E;iMs'
-plat;c.e f " - '"tg pr:r: ding and in accordance with the Regulatory .
Flexibility'Act, 5 U.S.C. 605(b), the Commission certifies that,.f_' ,_
',1 A this rule will not'have a significant economic impact upon'a substantial number of small ies. .
The m. g r d rule 3as the potential to affect.any generator of LLW. 1 However, in, order for the requirements of the rule to be imposed on a generator, he must request emergency access to'a non-Federal or regional LLW disposal j facility, having been denied access because the State or Compact Region in which he is located has failed to comply with the milestones for LLW disposal development in Section 5 of the Act.
Establishing criteria and procedures for requesting'and granting emergency access will have a positive benefit.for small and large generators alike. It' '
will enable them to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.
l
, / The impact of the recordkeeping requirements on any affected licensees l l should be minimal since the information that must be provided if'a generator ,
requests emergency access would most likely be collected and assembled as part of any process to decide a course of action if necessary access to LLW disposal was not going to be available.
1 l
8 Enclosure C
o
[CdN: f l 4 94y pu cmw cry)
~ g dm
/
For: The Commissioners From: Victor Stello,. Jr.
. Executive Director .for Operations
Subject:
~
FINAL RULE-10 CFR PART 62, " CRITERIA'AND' PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE-DISPOSAL FACILITIES"
Purpose:
To obt'ain~ 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 j operating, non-Federal, low-level radioactive disposal. facilities under Section.6 oflthe Low-Level Radioactive Waste Policy Amend-ments Act-of 1985.
Summary: Section 6 of the Low-Level Radioactive Waste Policy: Amendments Act of 1985 (PL 99-240, January 15,.1986), (the Act).provides that NRC can grant emergency access to non-Federal ~or regional' LLW disposal facilities if there is a ser_ious and immediate threat to the public health and safety or the common defense.
and security that cannot be mitigated by available alternatives.
The enclosed final rule was developed to. implement NRC's respon-sibilities pursuant to Section 6. The rule sets out' strict requirements for granting emergency access, places the burden of demonstrating the need for emergency access,on the party requesting. emergency access and should serve to encourage genera-tors to seek other means for resolving the~ problems created by potential lack of access to LLW disposal. facilities.
The first request for emergency access could be made as soon as January 1, 1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive a request for emergency access. If NRC does get a request, it will have 45 days to respond. Staff estimates 180 staff days will be required to process such requests.
CONTACT:
Janet Lambert, RES 492-3857 Mb d 5
3 3 J
L' Ths Commissioners 2
- Backaround: The'Act' directs the' States.to dev41op their own LLW disposal L
' facilities, or to form Compacts and cooperate in the: development of regional LLW disposal facilities, so that the new facilities.
.will be available by January 1,;1993. If unsited. States or Compact regions fail to meetikey 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 1to" deny.the'LLW generators
~
in the delinquent State or' Compact' region further access.to their-facilities. ,
Section 6 of'the Act provides that'the'NRC can grant a generator
" emergency access'.' to non-Federal or regional commercial . LLW disposal facilities.if access.to those facilities has.been
~
denied and that access is necessary.in order to eliminate an immediate and serious. threat to the public health and safety or-the common defense and security. The Act also requires that a.
determination be'made as-to whether theithreat can.be mitigated-by any alternative consistent with the public: health and_ safety, including ceasing the activities that generate the waste. NRC must make both determinations prior to. granting emergency, access.
The Act provides'that.NRC can grant emergency access for a period l
not to exceed 180 days per request, and allows'that only one, 180-day extension of emergency access can be granted per request.
The Act provides NRC with 45 days:from the time'a-request is-received to determine whetherLemergency access will:be granted,-
and if so, to designate the receiving facility.
The Act provides that requests for emergency access shall. contain all information and certifications that NRC requires to makes its determinations. The Act also provides that only.NRC'can grant-emergency access. The Agreements States are specifically pre-cluded from making emergency access decisions.
The legislative history for the~Act emphasizes 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 ,
i-j Federal involvement as a vehicle of last resort. j In developing the emergency access rule, the staff has tried to i
be consistent both with the actual text of Section 6 of the Act ,
and with its understanding'of the intent expressed by Congress regarding' decisions made pursuant to Section 6. Staff's objec-tive throughout has been to: establish requirements for; granting
L l The Commissioners 3 emergency access that are stringent enough to discourage the unsited States and regions from viewing emergency access as an alternative to diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC to respond appropriately in
, situations where emergency access is genuinely needed to protect I
the public health and safety or the common defense and security.
The Act did not require NRC to develop a rule to carry out its !
Section 6 responsibilities. However, NRC staff recommended a <
rule to establish the procedures and criteria that will be used in making the required emergency access determinations to add predictability to the decis. ion-making process, and help to ensure that the NRC will be able to make decisions on emergency access requests in the time required by the Act.
On January 15, 1987, NRC issued a Notice of Intent to develop this rule (Vol. 52, Federal Register, No. 10, p. 1634), and on December 15, 1987, NRC issued the proposed rule. The formal comment period expired February 12, 1988. Twenty-one commenters responded. Copies of the comment letters are included as an appendix to the staff analysis of comments in Enclosure C.
f Responses were received from the governments of six states (Maine, l Arkansas, Illinois, New York, Kentucky, and Pennsylvania), two l
from Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and members of environmental groups, two from industry, and one from a nuclear information l
service.
The major co ments will be discussed after a summary of the :pte-Aillee+ rule The m - -A rule addresses each of the determina-g ns that NRC must make and described how they will be madef G order to make the determination that there is a serious and immediate threat to the public health and safety, tb Commission will consider whether the circumstances described lead it to conclude that there is no longer reasonable assurance that I 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 situation described in the context of the requirements issued by NRC in the facility license, the technical specifications, and any appl,icable regulations and orders of the Commission.
ch44, In me4 fm & datarminat4on-Mat tht> v} d b~ there is a serious and immediate
\
! threat to the common defense and security, the rule provides that ,
l NRC staff will consider whether the activity generating the LLW '
is necessary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously l I I l
1 b -
-The Commi~ssioners '4- l threaten the common ~ defense,and' security. The proposed 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.
.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 sccurity.
If the _NRC makes either of the above determinations in the affirmative, NRC will then consider whether~any alternatives to. 1 emergency access are available to the applicant. These include, but'are not limited to: -(1) storage of.LLW at the site of genera-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 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 l activities that generate the waste. 'The NRC will consider whether the person requesting emergency access has considered all factors in their evaluation'of alternatives i_ncluding 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-l tive is unreasonable because of adverse'_ effects, because it is technically or economically beyond the~ capability of-the reques-tor, because it would result in the' cessation or curtailment of' essential medical services, or cannot be implemented in a timely 9 manner. If any alternative is determined by NRC to'be reason- t able, then the request for emergency access will be denied. l If NRC determines that emergency access is warranted, NRC will then determine which operating nor ec deral LLW disposal facility should receive the LLW. A facili n would be excluded from con-sideration if (1) the LLW does not meet the license criteria for i the site; (2) the disposal facility meets or exceeds its capacity {
limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the- j 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 l consider whether the circumstances still warrant emergency access l
l l
_ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ . _ . _ _ _ _ _ _ . _ _ _ _ . _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ . . . _ _ _ . _ _ _ _ ________________._______________________w
E J l
l . .
i i
I The Commissioners 5 l 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 make the determination that there is a serious and immediate threat to s 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 commenters raised issues that had been considered by j staff while developing the proposed rule. For the most part, l l staff has responded to the comments by adding clarifying language !
l and some new explanatory text to the final rule. The critical :
components of the proposed rule - the procedures and the criteria j to be used in making emergency access decisions as discussed '
above, are essentially unchanged in the final. The most signifi-l cant comments are discussed belowf* .
In general, commenters appeared to support NRC's issuance of a !
l rule for its emergency access decisions and indicated changes !
that would improve the final rule from their perspective. One i commenter expressed opposition to the issuance of the rule itself because he believed that granting emerrienc3 access would infringe on the States' right to manage their LLW. The Act T ,I l 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 merel statuto rameworky 54 & @ y implements part of the existiibt{ qtse cibd IM3 @p ow T4, q By far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsec-tion 3(a)(1) of the Act, the states are mandated to provide disposal only for commercially generated LLW classified as A, B, and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommissioning of vessels, or as a result of any research, development, testing, or production of atomic weapons." Commenters stated that Federal wastes, particularly those generated by DOE and D00, or wastes that are classified as greater-than-Class-C, should not be allowed to receive emergency access disposal.
In developing the proposed rule, NRC staff assumed that it would be clear that limitations established by the Act on the LLW eligible for routine LLW disposal would also apply to LLW under consideration by NRC for emergency access disposal. However, no statement was L
l Ths' Commissioners' 6 i
ma'e J to this effect in the proposed ' rule. Clarifying language i explaining what LLW will be considered eligible for emergency. i access disposal has been added to the final rule. I Three of the commenters representing States or Compact Commissions' raised the issue of Compact Commission approval of NRC's emergency access decisions. They indicated that the NRC had been remiss in not including a provision in the' proposed rule which would require )
the NRC to seek approval for its decision to grant emergency (
access from the Compact Commission of the region in which the j designated site is located. l Under Section 6(g) of the Act, "any grant of access under this Section shall be submitted to the Compact Commission for the region in which the designated disposal facility is located for such approval as may be required under the terms of its compact."
The interpretation preferred by some of the , States or Compacts is that Congress intended for the Compact Commission of the designated site to have the. final say regarding the acceptance of emergency access wastes. They believe Congress intended the receiving Compact Commission to have the power to veto NRC's decision. The commenters wanted.the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
The interpretation of Section 6(g) that is most consistent with.
Congressional intent behind emergency access is that 6(g) does not provide for State or Compact Commission veto of NRC's deci-sion. Staff believe that the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section 6 ;
emergency access provision is to ensure that sites which would '
normally be closed under the Act will be available in emergency "
situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision )
and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee l i
on Interior and Insular Affairs Report on the Act, ratification 1 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.,'Ist Sess., pt. 1, at 2997 (1985).] This was explained in the Supplementary Infor-mation for the proposed rule and has been reiterated and clarified in the final.
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
The Commissioners 7 disposal from the person granted emergency access - which they are entitled to under the Act. Commenters' indicated that NRC should require a formal acknowledgement of reciprocal access before making an emergency access determination. The staff does not agree with this position.
Under Section 6(f), the Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar characteristics to that provided emergency access."
NRC staff considered including reciprocal access during the development of the proposed rule. However, as staff reads Section 6(f), arranging for reciprocal access is an obligation between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Further, given the agency's mandate to protect the public health and safety on the common defense and security, staff believed it would be inappro-priate for NRC to assume the role of enforcing reciprocal access arrangements. If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain circumstances, actions necessary to protect the public health and safety could be delayed or compromised.
The NRC light of staff reconsidered the comments itsthe received on position onrule, proposed reciprocal but a Toac,cgspc :y ,par shm - - A the final rule.
A number of the commenters expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, or taxes prescribed by that facility. Other commenters stated that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. The commenters expressed a desire to have NRC consider those items in making its site designation decisions for emer-gency access.
To the NRC Staff it is quite clear from the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility designated to receive the wastes by the NRC. Further, the staff believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the
-The Commissioners 8 Act as specifi 711y applicable to emergency access situations.
However, NRC a .ff does not agree that such information can or should be usa sy NRC in making its site designation decision.
For clarifit.auon, a new section has been added to the final rule which reaffirms NRC's understanding of Congressional intent that conditions or terms which would normally apply to LLW disposal should also apply to emergency access disposal.
Several of the commenters suggested that the final rule should contain conditions under which emergency access could be termi-nated. Staff agree and have added a new Subpart D for this pur-pose. The new subpart establishes that the NRC may terminate emergency access if the requestor or his waste do not meet the conditions established by NRC in Part 62, and that the NRC can terminate emergency access if a determination is made that it is no' longer needed.
Several commenters stated that the 10 day public comment period provided in the rule on requests for emergency access was inade-quate. Since NRC is not required to seek public comments on requests, and since NRC has only 45 days to respond when a request is received, no change was made to the final rule. ,
After consideration of the comments, staff recommends the final rule proposed for Commission approval in Enclosure B. There are ;
no major differences between the proposed and final rules but '
several clarifying changes are included. The most significant ,
are:
(1) Addition of a clarifying sentence to the " Purpose and Scope" ,
of the final rule The sentence indicates that the emer- 4 gency access ruk applies only to the LLW's for which the States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying language to 62.22 stating that the Commission will make notification of the final determination l 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 i Information titled " Terms and conditions for Emergency Access Disposal."
l (4) The addition of clarifying Subpart D, titled " Compliance i with Conditions of Emergency Access; Termination of Emer-gency Access."
s m___________ __ - -
The Commissioners 9 Resource Requirements Consistent with the legislative history for Section 6, NRC staff expects that emergency access will De requested only under rare and unusual circumstances through 1993 and beyond. . Staff esti-mate it will take approximately 180 staff days.(six staff working 30 days out of the 45 days allowed in the Act) to complete the necessary review.
Recommendation: That the Commission:
(1) Approve for publication in the Federal Register the final new rule 10 CFR Part 62 enclosed here (Enclosure B) which l
would establish procedures and criteria for granting requests for emergency access to low-level waste disposal sites..
(2) In order to satisfy requirements of the Regulatory Flexibil-ity Act (5 U.S.C. 605(b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclo-sure B) under the Regulatory Flexibility ' Certification heading.
(3) Note:
- a. That the Chief Counsel for Advecacy of the Small-Business Administration will be informed of the certification and.the reasons for_it, as required by the Regulatory Flexibility Act,
- b. That this final rule contains modifications to informa-tion collection requirements subject to the require-meats of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), that Office of Management and Budget j (OMB) approval was obtained for the proposed rule, and i that the changes between the proposed and final action {
are clarifying only so that the OMB approval remains l valid. '
- c. That the proposed rule included a preliminary finding 1 that no significant environmental impacts would result j from the rulemaking. The environmental assestment i forming the basis for this determination is contained !
in Enclosure D, " Regulatory Analysis."
l
- d. That compliance with CRGR charter requirements is not applicable for this rulemaking action as the rulemaking j applies only to radioactive waste management, and not a ,
T
--M
4 The Commissioners 10 generic requirement to be imposed by the NRC on one or ecre classes of-power reactors.
- e. That the Subcommittee'on Nuclear Regulation of the
. Senate Committee on Environment and Public Works, the i Subcommittee on Energy and the Environment of the House i 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 Operatiens will be informed of the rulemaking by letter such as Enclosure D. j l
\
- f. That a public announcement, Enclosure E, will be issued by the Office of Public Affairs when the final rule- ,
i making is "": wim we L _ ' Federal Register.
Y f pOY, n _Q%
l g. That a regulatory analysis, Enclosure C, has been pre- l l pared for this rulemaking. j l
- h. 0GC has reviewed the proposed rulemaking package and has no legal objections. l 1
l i. That this rule has been coordinated with NMSS, NRR,
' GPA, and ARM.
1 Scheduling:
Few, if any emergency access requests are anticipated. L'owever, i a request could be made at any time. NRC should have the rule I in place at the time a request for emergency access may be made.
Consistent with the next major trigger date for denial of access !
l in the Act, which is January 1,1989, the final rule should be issued in the fall of 1988.
1 l
Victor Stello, Jr.
Executive Director for Operations
Enclosures:
A. Draft Federal Regirter Notice B. Public Comment Analysis with Comment Letters C. Regulatory Analysis D. Draft Congressional Letter E. Public Announcement l
l l _ _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ -_
o iThe Commissioners. .10' generic requirement ~ to belimposed by the NRC on one or more classes'of power'resctors. '
- e. That the Subcommittee on Nuclear Regulation of the Senate' Committee on Environment'and Public Works, the'
. Subcommittee-on Energy.and the Environment of the' House
- of Insular Affairs Committee,.the Subcommittee on:
Energy Conservation and Power lof the House Energy and.
Commerce Committee, and the: Subcommittee on Enviroa-ment, Energy..and Natural Resources'ofithe' House
, Committee on Government Operations;will be infermed of
-the rulemaking by.' letter such as: Enclosure D.
- f. That a public announcement, Enclosure E, will be issued- l by the Office of Public Affairs when the final. rule - !
making 4s W -% A C,7L of Federal Register.
- p u h 'A fk u L i *
- 4.
- g. That a regulatory ana' lysis,. Enclosure C, has been. pre-pared for this rulemaking.
- h. 0GC 'has; reviewed the proposed rulemaking package and
.has no. legal-objections.
Scheduling: Few,.if any emergency access; requests are anticipated. .. However,- g
.a request could be made at any time. NRC should have the rule in place-at the time' a request for emergency access may be made.' 1 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 i
- C. Regulatory Analysis D. Draft Congressional Letter i
E. Public Announcement 0FC: NMSS : ARM :GPA :NRR :0GC :EDO NAME:HThompson :WMcDonald :HDenton :TMurley :WParler :VStello L DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88 l' 0FC: RES/WMB/DE :RES/WMB/DE :RES/WMB/DE :DE/RES :DE/RES :RES :RES 1 ................__.. .....___......... _____..m_.....___.. ___... m ..........
NAME:*JLambert :*DGrill : *MSil berberg: *RBosnak: *GArl otto: TSpei s . : ESBeck
___.................__........._____ . ....__ .......................____...jord ._
DATE: 8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88:8/ -/88 !
0FFICIAL RECORD COPY QSee previous concurrence
M'A41hl1 had b %N Document Name:
{ gg g g
.jtquestor'sID:
I 5
Author's Name:
LAMBERT J Document. Comments:
SPE 08/24/88 - ECS final REVISIONS
[7590-01]
' NUCLEAR REGULATORY COMMISSION' 10 CFR PART 62.
Criteria and Procedures for Emergency Access to Non-Federal and Regional Low-Level Waste Disposal Facilities AGENCY: Nuclear Regulatory Commission.
ACTION: Final Rule.
SUMMARY
- The Nuclear. Regulatory' Commission'(NRC) is issuing a rule to establish procedures and criteria for fulfilling its' responsibilities associated with acting on requests by low-level radioactive waste (LLW).
l' generators, or State officials on behalf of those generators, for emergency access to operating, non-Federal or regional, low-level radioactive waste disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985. Grants of emergency access may be necessary if a generator of low-level radioactive waste is denied access to operating low-level radioactive waste disposal facilities, and the lack of access results in a serious and immediate threat to the public health and safety or the common defense and security.
l EFFECTIVE DATE: (30 days after publication)
ADDRESS: Copies of comments received on the proposed rule and the regulatory analysis may be examined at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555.
1
1
[7590-01) !
FOR FURTHER INFORMATION CONTACT: Janet Lambert,-Division of' Engineering, ,
-Office of Research, U.S. Nuclear Regulatory Commission, Washington, DC R
.20555,-telephone (301) 492-3857.
SUPPLEMENTARY INFORMATION:
- 1. Introduction and Background II. Legislative Requirements III. Legislative History !
IV. NRC Approach
. V. Assumptions VI. The Final Rule 1 1
VII. Rationale for Criteria '
VIII. Terms and Conditions'for Emergency Access Disposal l IX. Requests For Emergency Access Made Prior to the Effective l Date of the Rule X. Analysis of Public Comments
! XI. Finding of No Significant Environmental Impact: Availability XII. Paperwork Reduction Act Statement i XIII. Regulatory Analysis XIV. Regulatory Flexibility Certification XV. List of subjects in 10 CFR Part 62 I. Introduction and Background On December 15, 1987, NRC published a proposed new Part to 10 CFR in order to implement its emergency access responsibilities under Sec-tion 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985
( 2 t
l i
[7590-01]
(PL 99-240, January 15, 1986), "the Act." The proposed Part 62 set forth' the procedures and ciriteria'that the Commission. intended to use to deter-mine if' emergency access to non-Federal and regional low-level waste
-(LLW)' disposal facility should be granted.. The public comment period for the proposed rule expired on February 12, 1988.- The NRC' received twenty-one (21) comment letters. Ten (10) of the comment letters came from concerned citizens and environment 1 groups, six (6) from State govern- ;
ments, two (2) from LLW compact Commissions, two (2) from industry and; one from t. nuclear information service.
The Act directs the' States to develop.their own LLW disposal facil -
t l ities or to form Compacts and cooperate in the development of regional LLW disposal facilities so that the new facilities will be available by
}
January 1, 1993. i 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 assure steady progress toward new facility development.
1 The major incentive offered by the Act is that the States and regional Compacts which meet the milestones will be allowed to continue to use the existing disposal facilities until their own facilities are available, no later than January 1, 1993. If unsited States or Compact regions fail to meet key milestones in the Act, the States or Compact Commissions with operating non-Federal or regional LLW disposal facil-ities are authorized to demand additional fees for wastes accepted for disposal, and ultimately to deny the LLW generators in the delinquent State or Compact region further access to their facilities.
3
[7590-01] l 1
Section 6 of the Act provides that the Nuclear Regulatory Commission l
J
-(NRC) can grant a generator " emergency access" to non-Federal or regional low-level radioactive waste (LLW) disposal facilities if access to those j facilities has been denied and access is necessary in order to eliminate an immediate and serious' threat to the'public health and safety or the common defense and security. The Act also requires-that a determination be made'as to whether the. threat can be mitigated by any alternative con-sistent with the public health and safety, including ce'asing the activ-ities that generate the waste. NRC must b'e able, with the information i
provided by the requestor, to make both determinations prior to granting emergency access. The purpose of this regulation is to set forth the I
procedures and criteria that will be used by the Com!nission to determine .
! i l if emergency access to a LLW facility should be granted.
I Legislative Requirements II.
In addition to directing the NRC to grant emergency access as i discussed in the Background section, the Act further directs NRC to designate the operating LLW disposal facility or facilities where the waste will be sent for disposal if NRC determines that the circumstances warrant a grant of emergency access. NRC is required to notify the l
l Governor (or chief executive officer) of the State in which the waste was generated that emergency access has been granted, and to notify the State and Compact which will be receiving the waste that emergency access to their LLW disposal facility is required. The Act limits NRC to 45 days from the time a request is received to determine whether emergency access will be granted and to designate the receiving facility.
4 i
- [7590-01] _;
.e -
3 LThe Act provides that'NRC.can grant emergency. access for a period not to exceed 180 days per request. To ensure that. emergency access is' not abused, the Act allows that'only_one extension of emergency access, y 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 theLLLW was generated have diligently _
though~. unsuccessfully acted 'during the period of the initial grant to .
eliminate the need for emergency, access.
The Act also provides that requests-for' emergency' access shall contain all information and certifications that NRC requires to make its-determination.
" Temporary emergency access" to non-Federal or regional LLW disposal-facilities may be granted at the Commission's discretion because of a serious and im%diate threat to the public' health and safety or the.
common defense and security pending a Commission determination as to whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted. j "MxpThe Act does not r,qquire NRC to develop a rule to carry out j W% !
its Section 6 responsibilities NRC is issuing this rule to establish '
the procedures and criteria that will be used in making the required determ .ionsforemergencyaccessj
, Although Congress provided NRC the statutory responsibility for implementing Section 6 of the Act and gave the Commission authority tal I to decide whether or not access will be provided, emergency access deci- >
i cir-sions are likely to be controversial. By setting out the procedures and
]
sther criteria for making emergency access decisions in a rule which reflects public comment, NRC intends to add predictability to the decisionmaking process and to help ensure that the NRC will be able to make its deci-sions on emergency access requests within the time allowed by the Act.
i L[7590-01]5 l
successful ~ implementation:of'the'Act that' emergency access not be viewed !I by the'unsited.Sta'tes.as an alternative to,the pursuitiof the' development--
of new'LLW' disposal capacity. The' legislative . history . indicates that Congressbelievedthat{withthevariousmanagementoptionsavailableto:
LLWgenerators, including,for' example, storage'orceasing:to. generate the waste, thelinstancesiwhere there was no alternative to emergency access.would be' unlikely. Congressextectedthatlresponsibleactionfrom i
the generators and the States / Compacts should' resolve.m'et o access problems-thus' precluding the necessity for involving the Federal sector in grant-ing emergency ~ access. Section 6 was-included to provide a' mechanism for Federa1' involvement as a vehicle'of last resort.
In developing the emergency access.. rule', NRC tried to be consistent both with the actual text of Section 6 of.the Act and'with the intent expressed by Congress regarding decisions made pursuant {t'o Section 6. 4 l
The rule sets strict requirements.for-granting' emergency access and- 'l should serve to encourage potential requesters to seek'other means for. j resolving the problems created by denial of" access to LLW disposal facil-ities. The rule places the burden on the party requesting emergency-access to demonstrate that the criteria in the rule have been met and I emergency access is needed. Applicants for emergency access will have i to provide clear and convincing evidence that they.have exhausted all othe; options for managing their waste. By establishing strict require- i ments for approving requests for emergency ' access, NRC intends to rein-l' L force the idea that problems with LLW disposal are to be worked out to the extent practical among the States, and that emergency access to existing LLW facilities will not automatically be available as an alter-native to developing that capacity. NRC believes this interpretation is 6
[7590-01]
consistent with a plain reading of the Act and the supporting legisla-tive history. I Section 6(g) of the Act requires the NRC to notify the Compact Commission for the region in which the disposal facility is located of any NRC grant of access "for such approval as may be required under the terms of its compact." The Compact Commission "shall act to approve emergency access not later than fifteen days after receiving notifica-tion" from the NRC. The purpose of this provision ic to--
l
- ensure that the Compact Commission is aware of the NRC's grant of emergency access and the terms of the grant, i
- allow the Compact Commission to implement any administrative '
precedures necessary to carry out the grant of access, and ;
- ensure that the limitations on emergency access set forth in Section 6(h) of the Act have not been exceeded. l l However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact Commission I with a veto over the NRC's grant of emergency access. The basic purpose i of the Section 6 emergency access provision is to ensure that LLW 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 1
Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework I
established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. If the Compact refuses to provide, under its own authorities, 7
\ ______________L
[7590-01]
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:
l
- 1. assure'that all of the principal provisions of Section 6'of the Act are addressed in the regulation.
- 2. identify the information and certifications that will have to be submitted with any request for emergency access in order for NRC to make the necessary determinations.
- 3. assure that the procedures and criteria that are established in 10 CFR Part 62 can be implemented within 45 days after NRC receives a request as specified in the Act.
I 4. establish procedures and criteria for designating a site to i
receive the waste which are fair and equitable and which are consistent l with the other provisions of the Act, including the limits on the amount of waste that can be disposed of at each operating facility. l
- 5. establish requirements for granting emergency access that are l stringent enough to discourage the unsited States and regions from view-ing emergency access as an alternative to diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC to respond appropriately in situations where emergency access is genuinely needed to protect the public health and safety or the common defense and security.
8
- g. ,
[7590-01]'
~ ,
.V. Assumptions NRC made several assumptions in devel'oping:this~ rule.
NRC assumed that the wastes requiring disposal under the emergency access ' provision will' be the result of unusual' circumstances. . The nature of routine'LLW management is such that it is difficult to conceiv.e'.of'
- situations'where' denial'of access to disposal would create _ a' seriousJand-LimmediateLthreat to the public health and safety 1or the national secu - i N 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 uccess. Thus,cif:al,1 the LLW: generators in'a State.
were denied access to LLW disposal facilities', NRC would not' expect to~
receive a blanket. request for emergency access for all of the LLW generated in that State, or for all of the LLW' generated by a particular.
kind of generator since the need for emergency access would'be different- 9 in each case.
NRC has also assumed that requests for emergency. access will not bel made for wastes which would otherwise. qualify for' disposal by the Department of Energy (D0E) under the unusual volumes provision of the Act I
[Section 5(c)(5)). This means that NRC does not' intend to consider i 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)(51 of the Act specific 611y sets aside 800,000 cu ft of disposal capacity above the I regular reactor allocations through 1992 to be .used fer:those wastes.
With this space reserved for wastes' qualifying for the " unusual volumes allocation," NRC believes emergency access should be reserved for other LLW, until:the 800,000 cu ft allocation is exceeded.
I 9 j l
- - - - - - - __O
[7590-01]'
i NRC considered basing its decisions for granting emergency access solely on quantitative criteria, but. decided against that approach.
While NRC has identified some of the wastes and the 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 f associated with identi_fying 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 j l
believes this combination provides NRC maximum flexibility in considering l l
requests for emergency access ~on a case-by-case basis.
)
l VI. The Final Rule The final rule contains four Subparts, A, B, C, and D. These Subparts set out the requirements and procedures to be followed in j requesting emergency access and in determining whether or not requests i should be granted. Each Subpart is summarized and discussed here.
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 app' lies to all persons as defined by this regulation who have been denied access to existing commercial LLW disposal facilities and who submit a request to the Commission for an emergency access determination under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 10
m
[7590-01][
.i o- K1985. Subpart A also emphasizes tha't the emergency, access.' rule applies. I only to-those. subclasses of LLW for.which the States have disposal-
<, responsibility under'.Section 3(1)(a) of.the Act.
~
SubpartLB.- Request,for a C'ommission Determination.
Subpart.B. specifies the information.that'must be submitted and the )
-1 procedures that~must b'e followed 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-
]
mater.ial requ. iring disposal',. impacts'on'. health and safety'or common.
defense and security. if emergency . access were not granted, and consideration of available-alternatives to emergency access. This-information will enable the Commission to determine:
(a) whether a serious and immediate threat to the public health and I
safety or the common defense and security might _ exist, (b) whether alternatives exist that could mitigate the threat, and 1
- )
(c) wMrh non-Federal disposal facility or facilities should provide the disposal required.
o In addition to the above, Subpart B also. sets forth procedures for .I the filing and distribution of a request for a Commission determination.
It provides for publication in-the Federal Register of a notice of ,
receipt of a request for emergency access to inform the public that Commission action on the request is pending. Even though comment is not required by the Act or the Administrative Procedure Act, Subpart B E i
provides for a 10-day public comment period on the request for emergency !
access.
11 ,
l
-[7590-01]'
^
In the' event that the case for requesting emergency access is to be based totally or in part on the threat posed to the common defense and security, Subpart B.' requires that a' statement of support from the Department of Energy (00E) or the Department.of Defense (D00) (as.appro--
priate).be submitted as part.of the initial 1 request for emergency access.
If the request is based entirely on common defense and security concerns,.
NRC will not proceed with the emergency accessievaluati.on until the statement of support is submitted.
1' i
.Subpart C - Issuance of:a Commission Determinat' ion For the NRC to grant emergency access, the Commission must first conclude that there is a serious and immediate threat to the public health and safety or the common defense and security, and-second that there are'no available mitigating alternatives. Subpart C sets out-the procedures to be followed by the Commission in considering requests for emergency access, for granting extensions of emergency access, and-for granting temporary emergency access; establishes the criteria and standards to be used by the Commission in making those determinations; and specifies the procedures to be followed in issuing them.
subpart C provides that NRC, in making the determination that there is a serious and immediate threat to the public health and safety, will consider: (1) the nature and extent of the radiation hazard that would result from the denial of access including consideration of the standards.
for radiation protection contained in 10 CFR Part 20, any standards governing the release of radioactive materials to the general environment that are applicable to the facility that generated the low-level waste, 12 L_-__-_--__-_--------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
[7690-01]
and any other Commission requirements- specifically applicable to the facility or activity which is the subject of the emergency access request and, (2).the extent to which essential services such as medical, thera-peutic, diagnostic, or. resserch activities will be disrupted by the
' denial of emergency access.
In making the determination that there.is a serious and immediate i threat to the common defense and security, Subpart C provides that the Commission will consider whether the activity generating the LLW is neces-sary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disrup-tion in that activity that would seriously threaten the common defense and security. Subpart C also specifies that the Commission will con-sider D00 and DOE viewpoints in a statement of support to be filed with the request for emergency access.
Under Subpart C, if the Commission makes either of the above deter-I minations in the affirmative, then the Commission will consider whether i i
alternatives to emergency access are available to the requestor. The Commission will consider whether the person submitting the request has identified and evaluated the alternatives available which could potent-ially mitigate the need for emergency access. The Commission will consider whether the person requesting emergency access has considered {
all factors in the evaluation of alternatives including state of-the-art technology and the impacts of the alternatives on the public health and safety. For each alternative, the Commission will also consider whether j the requestor has demonstrated that the implementation of the alternative is unreasonable because of adverse effects on the public health and I
13
_ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ ._ _ J
, , j
[7590-01] y .
I safety or the common' defense and. security, because'itfis, technically or.
economically beyond.the capability of the requestor, or'because the-alternative could.not be implemented in a timely manner.
Of particular concern to' Congress'was the possibility that ceasing the activity. responsible'for.' generating the, waste could' lead'to the
.)
cessation or curtailment of essential; medical services. Section.62.25-of.the rule pr'vides.that o the Commission'will consider the impact on ]
medical. services from ceasing the activity in making Lits: determination 'I
-a 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 disrupti.ve effect on' essential medical services. Section 62.12 specifically requests information on.
l these impacts as part of a request for. emergency access so they can be considered by the Commission in its overall determination about reason-- I able alternatives.
i According to the procedures set out in Subpart C, the Commission- !
will only make an affirmative determination on granting emergency access if the available alternatives are found to be unreasonable. If an i alternative is determined by NRC to be reasonable, then the request for
' emergency access will be denied.
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 i the LLW approved for emergency access disposal.
14
[7590-01] ,
Subpart C sets out that in designating a disposal facility or j i
facilities to provide emergency access disposal, the Commission will first consider whether a facility should be excluded from consideration because: (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste. requiring dis-posal exceeds 20' percent of the total volume of the LLW accepted for dis--
posal at the site in the previous calendar year.' If the designation can- i 1
not be made on these factors alone, then the Commission will consider the l type of waste, previous disposal practices, transportation requirements, j i
radiological effects, site capability for handling the waste, volume of j emergency access waste previously accepted at each site, and any other 1
information the Commission deems necessary.
In making a determination regarding a request for an extension of i
emergency access, Subpart C provides that the Commission will consider whether the circumstances still warrant emergency access and whether l
the person making the request has diligently acted during the period of i 1
the initial grant to eliminate the need for emergency access.
]
In making a determination that temporary emergency access is neces-sary, the Commission will have to consider whether the emergency access situation falls within the criteria and examples in the Commission's policy statement on abnormal occurrences, but will not have to reach a determination regarding mitigating alternatives. I 15
i
[7590-01] !
l Subpart D.- Compliance With Conditions of Emergency Access; Termination of Emergency Access Subpart D contains the terms and conditions of emergency access.
Subpart D establishes that the NRC may terminate a grant of emergency _ l
-access if.the requestor or his waste do not meet the conditions estab- i lished by NRC pursuant to this Part. It also. establishes that the i 1
Commission may terminate emergency access when it determines that l emergency access is no longer necessary to protect the public health l l
and safety or the common defense and security from a serious and immediate threat. .
l l i l
VII. Rationale for Criteria l
This rule establishes the criteria for making the emergency access determinations required by the Act. The rationale for these decisions i
is discussed below: l (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."
(1) To the Public health and safety--
The criteria in this rule for determining whether a serious and I immediate threat to the public health and safety exists, address three 16
[7590-01]
situations. Section 62.25(b)(i) addresses the situation where the lack of access would result in a radiation hazard at the facility that is generating the LLW. Section 62.25(b)(ii) addresses the situation where the threat to public health and safety would result from disruption of the activity that generates the waste, for example, an essential medical service. Section 62.25(c) addresses the criteria for granting temporary emergency access.
The criteria used in this rule for determining whether a' serious and.immediate threat to the public health and safety exists is qualita-tive in nature in order to provide the Commission with the flexibility necessary to consider a wide range of potential factual situations. How--
ever, in making this qualitative determination, the criteria require the Commission to consider several existing quantitative standards. These consist of the Commission's standards for radiation protection in 10 CFR Part 20, any standards on the release of radioactive materials to the i general environment'that are applicable to the facility that generated the low level waste, and any other Commission requirements specifically applicable to the facility or activity which is the subject of the emer-gency access request. This latter category would include license provi-sions, orders, and similar requirements.
The Congressional concern in enacting Section 6 of the Act was to ensure that a serious and immediate threat to the public health and safety did not result from a denial of access. In addressing'this con-l cern, the Commission will evaluate the request for emergency access in its entirety, i.e. the threat to public health and safety and ths 'il ter-natives to emergency access that may be available to mitigate that 17
.[7590-01]'
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 1
are available. In the Commission's judgment, any situation that would.
result in exceeding.the occupational dose limits or basic limits of public~ exposure upon which.certain requirements in 10 CFR Part 20 are founded would be an unacceptable threat to the public health and safety, and should be considered for emergency access.
J l
The legislative history of Section 6 of the Act does not provide any ;
illustrations of a situation where a serious and immediate threat-to'the !
public health and safety would be created at the facility at which the waste is stored, although it is clear that Congress was concerned ov'er !
the potential radiation hazard that might result at a particular facility that was denied access to LLW disposal. The Commission does not antici-pate any situation where the lack of access would create a serious and immediate threat to the public health and safety. However, in order to be able to respond to the unlikely, but still possible, situation where a serious threat to the public health and safety might result, this rule )
establishes criteria to address this possibility. Under its normal regulatory responsibilities and authority, the Commission would act immediately to prevent or mitigate any threat to the public health and I safety, including shutting down the facility. However, there may be circumstances where a potential safety problem would still exist, after the facility was shut down or the activity stopped, if the low level waste could not be disposed of because of denial of access. In this 18
1 i
[7590-01]
situation, emergency access may be needed. The Commission would empha-size first, that it is extremely unlikely that a serious.and immediate threat to'the public health'and safety will ever result at the genera- J tor's facility from the lack of access to a disposal facility, and second, if such a situation does exist, the Commission.will move imme- I diately to eliminate the threat.
If the Commission does receive a request for emergency access based I
on the above circumstances, the Commission will evaluate the nature and extent of the radiation hazard. 'If there is no violation of the l Commission's generic or facility-specific radiation protection standards, no serious and immediate threat would exist from the waste itself. This I is separate from a finding that a serious and immediate threat to the l
public health and safety would exist if the activity were forced to shut down.
Section 6(d) of the Act allows the Commission to grant temporary emergency access for a period not to exceed 45 days solely upon a finding of a serious and immediate threat to the public health and safety. In order to grant temporary emergency access, the Commission'is not required to evaluate the availability of alternatives to emergency access that would mitigate the threat. The Commission believes that grants of tempo-rary emergency access should be reserved for the most serious threat to public health and safety, and has accordingly established criteria for granting temporary emergency access that require the consideration of more serious events. For purposes of granting temporary emergency access
.under Section 62.23, the Commission will consider the criteria and examples contained in the Commission's Policy Statement for determining 19 E_____ _ _
l[7590-01]
whether an event at a facility or activity licensed or otherwise regu-lated by the Commission is an abnormal occurrence within the purview of Section 208 of the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.) This provision requires the Commission to keep Congress:and the public (nformed of. unscheduled incidents or events which~the Commission considers significant from the_ standpoint of public health and safety. Under the criteria established in the Commission's policy statement, an event will be considered an abnormal occurrence if 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;
- b. Major degradation of. safety related equipment; or
- c. Major deficiencies in design, construction, use of, or management controls for licensed facilities or activities.
In deciding whether to grant temporary emergency access, the Commission will evaluate whether the emergency access situation falls within the criteria in the Commission's policy statement on abnormal occurrences.
(2) To the common defense and security--
Although NRC is required by the Act to determine that there is either a serious and immediate threat "to the public health and safety,"
or to "the common defense and security," realistically NRC cannot make the latter judgement without some information from D0D and 00E which will assist NRC in identifying those situations involving the denial of access to LLW disposal which constitute a serious and immediate threat l
to the national defense and security, or the importance of a particular LLW generator's activities in maintaining those objectives. While NRC i
20
. [7590-01] :.
l has the Congressional mandate for this determination, NRC staff-.believe itnecessary.toconsiderD0Dand. DOE (informationaspartofthedecision-3 NRC ons ered.several approaches.for involving 00D and DOE in the process of determining whether requests for emergency ~ access should be )
granted.on'the basis of alserious and immediate. threat to,the common defense and security.
~
NRC'has concluded that the best.way to provide' such : interaction'~is to require that . requests filed with NRC for emergency -
access which are made entirely, ~ or in 'significant part, on the basis' of -
a serious'and immediate threat to the' common defense and security, should.
include appropriate' certification from D0E or D0D substantiating the ')
. requestor's claim that such a threat'will result if'. emergency access is not granted. The necessary certification in tha form of a statement.of support should be acquired by'the requestor prior to applying to NRC for emergency access so the certification can be a part of the actual petition.
Congress deliberately gave the NRC the responsibility for making the -
common defense and security determination rather than leaving the deter-mination with D0D or DOE. So while the Commission intends to give the c i
D0D and DOE certifications and recommendations full consideration in j evaluating requests for emergency access, the Commission will not treat them as conclusive. ,
(b) Determination on Mitigating Alternatives 1
As directed by Section 6 of the Act, even if a situation exists l 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 i
granted if alternatives are available to mitigate the threat in a manner 21
((7590-01]L j
. . i consistent with the public health and safety. Requestors.for em rgency-access are required to demonstrate that;they have explored the alterna-~ I tives available~and that the'onlyLcourse of action remaining is emergency.
-access. Only after this has been demonstrated to NRC wil1 7the Agency proceed'with a grant of emergency access.
l i
Alternatives which, at a minimum, a requestor will.have to evaluate ;
are set'out-in Section 6(c)(1)(B) of the Act. They include (1) storage.
of LLW at the site of generation or in a storage facility,7(2) obtaining access-to a disposal facility by voluntary agreement,' (3) purchasing- 3 disposal; capacity available for assignment pursuant ~to Section 5(c) of the Act, and (4) ceasing the activities.that generate the'LLW.
While 6(c)(1)(B) of the Act sets'these out as possible alternatives which a generator must consider.before requesting emergency access, NRC.
has' identified other possible alternatives to emergency access which l should be considered, as appropriate, in any requests for emergency access. These additional alternatives are discussed below.
Section 5(c)(5) of the Act,'" Unusual Volumes," provides owners and operators of commercial nuclear reactors with special access to disposal in the event that unusual or unexpected operating, maintenance, repair or safety activities produce quantities of waste which cannot be other-i wise managed or disposed of under the Act. NRC does not consider that Congress intended that disposal under the emergency access provision was.
)
to apply to the.Section 5(c)(5) wastes unless the capacity required for disposals under the unusual volume provision would exceed the 800,000 t
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 1
available for.LLW which qualifies for such disposal, emergency access j 22 L
L _ _.
[7590-01] ,
should not be requested. Applications for. emergency access for wastes-which NRC determines would otherwise be eligible for disposal under the unusual volumes. provision, will be denied.
Another alternative applies only to Federal or-defense related generators.of.LLW. NRC will expect that generators of LLW falling into either of these categories will attempt to arrange for disposal at a .j Federal LLW disposal facility prior to requesting access to non-Federal facilities under.the emergency access provision. l 1
The Commission fully intends that the States and Compacts whose 1 generators have been denied access to LLW disposal will share in the responsibility for identifying and providing alternatives to emergency access. NRC's expectation is.that the States and appropriate Compacts, as well as the generator, will each exhaust their options before emer- I gency access will be requested. A request for emergency access is to include a discussion of the consideration given to any alternatives J available to the requestor. To NRC, this includes State / Compact options as well as those available to the individual generator. NRC expects that any request would address the alternatives explored by each of these, and the actions taken.
For all the alternatives that are considered, NRC is requiring detailed information from the requestor regarding the decision process '
leading to a request for emergency access. The requestor will be expected to: (1) demonstrate that all. pertinent alternatives have been considered; (2) provide a detailed analysis comparing all of the alterna-tives considered; (3) demonstrate that consideration has been given to 23
[7590-01]
. combining alternatives in some'way or in'some. sequence either to avoid ~
' the need-for emergency access,'ortto resolve theLthreat, even on a tempo-rary. basis, until' other; arrangements can be made; J(4) evaluate the costs',..
economicLfeasibility, and benefits to the public. health and safety 'of the.
potential'. alternatives, and (5) incorporate the results into the request.
.(c)- Designation.of Site-In deciding which_of the operating, non-Federal or. regional LLW
. disposal facilities'will receive the ~LLW requiring emergency access, NRC will determine.which of:the ' disposal. facilities would qualify under..the
~
. limitations'. set out in Section 6(h) of.the Act. According to those limitations, a site would be excluded from receiving emergency access; l1
. waste if.(1) the LLW does' not meet the license criteria for the site; i-l
'(2) the disposal facility meets or exceeds its capacity limitations as 1
. set out in the Act;-(3) granting emergency ~ access would delay the planned closing of the facility; or (4) the: volume of the waste requiring dis-posal exceeds 20 percent of the total volume of the LLW accepted for-disposal. at the site in the previous calendar year.
If NRC cannot designate a site using the limitations in the Act alone, the Commission will consider other. factors. including the type of waste, previous disposal practices, transportation' requirements, radio-logical effects of the waste, the capability for handling the waste at each site, the volume.of emergency access waste previously accepted by each site, and any other information that would be necessary in order.
to come to a site designation decision.
Within the requirements of the above criteria, the NRC will, to the .
l extent practical, attempt to distribute the waste as equitably as possible j i
l l
24 1
i
_ _____.__ ______ _ _ _ _ - _ _ = - _ _ _ _ _ - - - - - - _ - - - - - _ . - - - - - - -
~[7590-01):
~
- among the available operating,, non.-Federal or regional LLW disposal. facil- l ities. To the. extent practicable,.NRC intends.to rotate the designation- l of. the receiving. site, and;..for the three currently o.perating facilities, ;
to allocate emergencyfaccess disposal in proportion to;the. volume limita - l
'.tions. established in the Act. In most cases', NRC would' expect that the.
~
[ .
1 i designation of a single si_te wil.l' minimize handling of'and exposure to the waste and best" serve the interest of protecting the public healtiil I and safety. -However, if the volume of waste requiring emergency. access
> disposal is 1arge, or if there are other-unusual or- extenuating circum -
stances, NRC will evaluate the. advantages and disadvantages of designat- I ing more than one site to receive waste from the same requestor.
1 In addition to the above, NRC will also consider ~how much waste-has been designated for emergency access disposal to each. site to date'(both. l 1
for the year and overall), and whether the serious and immediate threat posed could best be mitigated by designating one site or more to receive the waste.
.In order for NRC to make the most equitable site designation deci--
sions, the Agency will have to be well informed regarding the status of disposal capacity for each of the commercially operating' waste disposal facilities. NRC is currently in the process of developing a system to I provide this information.
It should be noted that.in setting out the site designation'provi-sion for Section 5, Congress assumed there would always be a site deemed l 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 25 i
1
[7590-01]
intended NRC to. consider if all sites are deemed inappropriate to' receive the LLW. This may have to be addressed by Congress at some time in the future. 1 (d) Volume Reduction Determination i
Section 6(i) of the Act requires that any LLW delivered for disposal as a result of NRC's decision to grant emergency access "should be reduced in volume to the maximum extent practicable." NRC will evaluate' i l
the extent to which volume reduction nethods or techniques will be or J have been applied to the wastes granted emergency access in order to i 1
arrive at a. finding in regards to this provision. l l
NRC may receive a request for emergency access where the applica-tion of volume reduction techniques may be sufficient to mitigate the threat posed to the public health and safety. As a result, NRC plans to evaluate the extent to which waste has been reduced in volume as a part of its mandated evaluation of the alternatives considered by the genera-tor. From that evaluation, the NRC could reach a finding on whether the waste has been reduced in a manner consistent with Section 6(i).
As is so for the other determinations NRC will have to make pursuant to Section 6, volume reduction determinations will be made on a case-by-case basis. The optimal level of volume reduction will vary with the waste, the conditions under which it is being processed or stored, the administrative options available, and whether volume reduction process-ing creates new wastes requiring treatment or disposal. In evaluating whether the wastes proposed for emergency access have been reduced in volume to the maximum extent practicable, NRC will consider the charac-teristics of the wastes (including: physical properties, chemical pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, 26
i[75'0-01]
9 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 wast'e (includ-ing incinerators; evaporators-crhtallizers; fluidized bed dryers; thin-film evaporators; extruders evaporators; and Compactors); the suitability. l 1
of volume reduction equipment to the circumstances { specific' activity considerations, actual' volume reduction. factors,-generation of secondary ,
wastes, equipment contamination, effluent'. releases, worker _ exposure, and
. .. y equipment availability); and the administrative controls which could be. -[
applied.
)
VIII. Terms and Conditions for Emergency Access Disposal LLW granted' emergency access disposal. pursuant to this rule is )
subject to the general requirements for LLW~ disposal as established in the Act, as well as those requirements which specifically address emer-gency access. This means that LLW granted emergency access shall be processed, treated and disposed of in a manner consistent with any other ;
LLW which is eligible for disposal at operating non-federal or regional LLW disposal facilities under the Act. The disposal of waste by grant 4
of emergency access should not preclude the implementation of.any specific conditions, regulations, requirements, fees, surcharges'or taxes prescribed by the disposal facility that may be in effect at the L
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 customaril', charged or imposed for routine LLW disposal.
27
~ 17590-01). :r .
- IX. Requests for. Emergency Access Made Prior to t'he
.. 1 Effective Datelof the Rule-The Commission has tried'to anticipate when the'first request for' i
.\
emergency access might be 'made ;so the final rule;would. be' in place' before , J
'that time.
Howeveh it may be necessary for a generator or State to sub-~
.) ,
tmit;a request for a Commission emergency access; determination prior.to th'e effective date of this rule. Commissiun determinations.made on i
. requests received before the final rule.is in place will be; guided'by.the criteria and procedures'provided;in the proposed rule.
X. Analysis of Public: Comments l' The Commission' received twenty-one (21) comment 11etters for the- '
proposed rule. . Ten (10) of the comment letters came-from concerned citizens, si.~ (6) from the' governments of'potentially affected States, two (2) fro'n low-level waste compacts, two (2) from the . industry and one (1) from a nuclear information service. .A detailed analysis.of each of the comments was prepared and used to revise the proposed rule. The major comments are discussed here.- Copies of the comment letters and the detailed analysis of comments are available for public. inspection an'd.
copying for a fee at the NRC Public Document Room, 1717 H Street NW.,
Washington, DC 20555. j i
In general, commentors expressed support for NRC's issuance of a rule.for its emergency access decisions and indicated changes that would 1
improve ~it from their perspective. Only one commentor, representing a lobbying group, expressed opposition to the issuance of the rule itself.
That commentor indicated that the rule should be withdrawn because granting emergency access would infringe on the States' right to manage 28
[7590 0']'
1 l !
'their LLW. The Act' established the statutory framework'forfthe manage- j ment of LLW including the allocation'of-management responsibility between j the. Federal government and the: States. ;The: emergency access rule merely- .j implements part ofTthe existing' statutory framework [4s:fAr M A M h #'
^
l
& .S tdA 5,_
14 & C Wtla f s Clarification of LLW Eligible for' Emergency' Access By far.the most common concern' expressed by commentors was that emergency access wo'uld be useci to force operating non-Federal or. regional LLW. disposal facilities to accept LLW they are either clearly notirespoh-sible for under the Act, or have specifically chosen to exclude from
. _q
~
their facility. Fourteen of the commentors in almost half'of the com-ments expressed concern that emergency. access would.be granted to wastes that were not typically to be considered eligible for disposal at non-l Federal or regional LLW. disposal facilities. Specifically, the com-mentors stated that Federal wastes, particularly those generated by DOE and D00, or wastes that are classified' as greater-than-C' lass-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-ities under the emergency access provision.
Throughout the development of Part 62, the NRC assumed that its mandate was to grant emergency access only to LLW that would otherwise be 29
1
[7590-01]-
I
-)
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 be eligible for a grant of emergency. access disposal.
Under Subsection 3(a)(1)(A), the States are mandated to provide l 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 l l
Navy as a result of decommissioning of vessels, or as a result of any >
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).
1 The NRC has no intentions of granting emergency _ access to LLW which '
are ineligible for LLW disposal under Section 3(a)(1) of the Act.
However, the Commission did not state its intentions in the proposed rule. The Commission assumed that it would be clear that the limitations established in the Act for routine LLW disposal would also apply for disposal resulting from a grant of emergency access. Apparently, that i
was not the case. To clarify the NRC's understanding and intent regarding 30
-[7590-01] I the scope of wastes which the NRC considers to.be potentially eligible J for emergency access, the NRC added a new provision, (c) to Section 62.1,
" Purpose and Scope" of the final rule. The new provision states that "The regulations in this Part apply only to the LLW's which the States )
I have disposal responsibility for pursuant to Section 3(a)(1) of the Act."
The NRC believes the addition of this clarification to the final rule l
should resolve any questions regarding a particular LLW's eligibility for emergency access consideration as well as the Commission's intended i
application of the final rule. !
1 I
a 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 l Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It
]
further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to that provided emergency access."
Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reciprocal access s Muld l
be addressed in the final rule. Most of the commentors who raised reciprocal access concerns believed the NRC should broker reciprocal 31
j
[7590-01] )
i access arrangements to ensure that reciprocal a'ccess will be available to a State or Compact whose LLW disposal facility is designated to receive emergency' access waste. Several of them emphasized that the reciprocal 1 access provision of the Act is.a significant one that cannot be ignored in the NRC process of granting emergency access and designating a disposal facility. They stated that reciprocal access is of particular concern because a: receiving Regional Compact or State has virtually no leverage or role to play in the emergency access process and a guarantee of reciprocal access would make the situation more acceptable. They indicated reciprocity is an integral part of Section 6 and should be part of the rule.
I One commentor indicated that even if the NRC did not wish to be involved in brokering the arrangements, it "must ensure that the right to reciprocal access is recognized and its implications are considered."
The commentor indicated that a formal reciprocal access acknowledgement should be extracted from the Compact Region or State in which the emer-gency access waste was generated before any determination for granting emergency access is made. They indicated that such an acknowledgement 1
should be required by the NRC as part of the contents of a request for emergency access (Section 62.12) and should include some indication of when the reciprocal access would be provided. The acknowledgement could then be included as part of the Section 62.22 notification provided to j the receiving state and, if appropriate, the Compact Commission."
The NRC recognizes that the commitment to reciprocal access is an .ii i
integral part of the emergency access process, particularly for the 1 j
States with the operating LLW disposal facilities which will be designated by NRC to receive emergency access waste. Staff considered addressing 32
[7590-01]'
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 on emergency access. As NRC staff read Section 6(f), arranging.
for. reciprocal acess is an obligation between St'ates/ Compacts!and thus is outside.the scope of NRC's-responsibility to implement Section 6. Thus, ,
l Staff believed it would.be inappropriate for th'e NRC to assume the role of enforcing reciprocal access arrangements.
I
-The NRC reconsidered its position on reciprocal access in light of ,
the comments received oni.the proposed rule,'but made no' changes to-the final ru'le. The NRC's mandate under Section 6 is to grant requests for emergency access in order to protect the-public health and safety and the ,
common defense and security from a serious and'immediate threat. 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 q circumstances, actions necessary.to protect the public health and safety j 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 I
access, even of a brokering nature, could be in conflict with the Commis-sion's basic mandate to make emergency access decisions. The NRC maintains that arranging for reciprocal' access in response to grants of emergency 1 i
access is the responsibility of the. States and Compacts involved. The NRC believes that the promise of reciprocal access desired by the commentors could be initiated during the 15 day period required by the Act under Section 6(g) for the receiving Compact Commission's approval of.the NRC's LLW disposal facility designation.
33
o [7590-01]
Compact Approval of Grants of Emergency Access Three of the commentors representing States..or' Compact Ccomissions
' indicated that:the NRC had been-remiss:in not including a provision'in
,the proposed rule which woul'd require the'NRC to seek' approval.for,.its decision to grant emergency access from the-Compact Commission of the region in.which-the' designate'dsiteisilocated.
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 language in.Section 6(g) of'the Act.
It' states that. "any. grant of access under this Section shall 'be submitted to the Compact Commission for the region in which the designated ~ disposal' facility is. located for such approval as may be. required under the. terms of its Compact." The commentors interpretation of this provision:is that Congress intended for the Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes.
They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency access determination - essentially that Congress intended the compacts.to have the power to veto the NRC's decision. The commentors wanted the NRC to acknowledge this interpreta-tion of Section 6(g) by incorporating a veto / approval provision'in the final rule.
34
i
[7590-01]- )
1 .
1 While the' commentors were. correct in' noting ~ that the proposed rule '
i did not include a specific mechanism for implementing the Section 6(g)-
provision of the Amendments Act, the'NRC's position on this issue was addressed in Sectio'n III, Legislative History of _
lementary.
Information portion of the proposed rule-and is m__ _
in the same sec- l tion of the final.. I i
.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 gran.t of access "for such approval as may be required under the j l
terms of the Compact.I ~However, Section'6(g) also r'equires,that the '
Compact Commission "shall act to approve emergency access not later than 15 days'after receiving notification from the NRC." NRC believes the H l
purpose of this provision is to (1) ensure that the Compact Commission 1 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 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 the Act have not been exceeded.
Contrary to what several of the commentors believe, the NRC believes I J
that disapproval is not really an option for the Regional Compact I Commission in which the designated emergency access disposal facility 1 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 p)prp,ose u of the LLu c ,yesd ,
Section 6 emergency access provision is to ensure that sites WM9E9PumasW pah swavm k 6%%r A 35 & dons 4 W f y T IG E0%
j
- - - - - - - - W * * $ sud *
- P
'[7590-01]
l eM1y lb : Lod unukr . die Act wiii ue .ava sia' vie in emerveuv =ituo l tp A Compact Commission veto. of.the NRC's. decision would frustratez y the, purpose of'the emergency access provisionand-would be generally' ;
contrary to' the legislative framework established in the Act. As empha-sized in.the' House' Committee'on Interior'and Insular Affairs Report on the Act, ratification of a Compact should be' conditioned on.the Compact's!
acting in accord with the provisions;of.the Act. If the Compact refuses j i
to provide, under.its own authorities, emergency. access under Section 6, I Congressional' ratification'of that. Compact'would be null'and void.
[H.R.' REP. No. 314,.99th.Cong., 1st Sess.', pt. 1,'at 2997'(1985).) 3 s
While disapproval may not be an option underlthe Act, clearly the-- -
Act intended the receiving Compact Commission to be fully informed ;
regarding the emergency access decision made by the NRC. The Commission' believes the Notification procedures under 62.22 of the proposed rule provided the Compact Commission of the designated disposal facility with informa+, ion consistent with the specifications in.the Act. Section 62.22 of the proposed rule provided that the NRC will notify the Compact -
~
Commission of the State in which the designated. disposal facility is located that emergency access is required. It furthpr provides that "the notifications must set forth the reasons that emergency access was granted and specifically describe th'e 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-1
.diate and serious threat to the public health and safety or the common i i
defense and security.
In~ order to further establish its position'on this issue, the NRC l has made a change to the final rule. New language has been added to !
36
. . . _ - - - _ . - - - _._.__.--________--___-___.___.-_D
- i f
7
% ' [7590-01) .
' l
- )
62.22fwhich states that the Commission will 'make notification of the final determination in' writing to the> appropriate Compact Commission _"for .
such approval 1as is'specified as necessary in Section'6(g)'of.the Act."' ,
j j i Applicable Terms and Con'ditions.for Emergency Access- .
.1 A: number of the commentors-expressed' concern that'LLW granted emer- U gency. access lto disposal'by the NRC:should be required to meet any condi-l tions ofjthe site designated, as well as.'any fees,'or'_ taxes ~pr' escribed by> l
.I that: facility.
~
Other;commentors stated that LLWs granted-emergency access disposal should not have to pay any special fees,Lbeyond those' specifically mandated by.the Act. In both cases dhe commentors wanted-assurances incorporated. into th'e rule that in making emergency _ access -
site designation determinations, the NRC would protect both.the health !
and safety. interests and the financial interests of either the disposal a
facility designated to receive the LLW, or the person requesting'emer-gency access. -In addition, they wanted assurances included in the rule that the NRC would consider th'e fees, taxes, etc. in designating a site to receive any waste granted emergency access.
The NRC's response to these concerns is simple, and is much like the-earlier discussion about the response to comments concerning which wastes:
are eligible for emergency access. As previously stated, the Commission-believes that Congress intended emergency access only to be granted.for waste which would routinely qualify for LLW disposal under the terms of the Low-Level Radioactive Waste Policy Act Amendments of 1985 (the Act).
To the Commission, it is quite clear from Section 6(h) of the Act that Congress intended that the LLW granted emergency access would meet'all of 37
u
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.i the general ~ requirements and. regulations-of,the' disposal facility.desi.g--
nated to receive the wastes by the'NRC. Section 6(h)1 states;that "No- gj
.)
State shal,1 be require'd,tofprovide: emergency access;or reciproca1Laccessi j
a to any regional disposal: facility within'its borders forLlow-level-
~
= radioactive. waste not meeting criteria established bylthe ;1icense or : )
license;aareement of such facility,-...."
To assure that* the NRC will designate a site which is suitably-
~
~
matched to the LLW granted emergency-access, the NRC included 'a provision
~
in'the' proposed rule which stated that a LLW disposal site will be
, excluded.from consideration to receive emergency access waste if'the, waste.does not meet the criteria established by the license or_ licensee l agreement for.the facility [62.26(b)(1)]. The license or licensee l 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 4 responsibility to designate a site which does not preclude "the implementation of any specific regulations, and require-ments at the designated disposal facilities."
Regarding fees, taxes and other conditions that'several commentors believed the NRC should consider in designating a site, the NRC bclieves that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges specifically applicable to emergency access waste and established under Section 5 of the Act. However, the Commission does not agree that such information can or should be used by the NRC in making its site designa '
tion decision. 4 38
[7590-01]
i The Commission recognizes the importance of conditions to ensure the implementation of emergency access decisions once they are made by the Commission. In response to the comments, the.NRC added a new Section "VIII" to the Supplementary Information portion of.the final rule titled,
" Terms and CondiLions 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 that whatever conditions or terms normally apply to LLW disposal apply
(
for emergency access, except where specifically stated otherwise in the 1 i
Act. l
^l Conditions of Termination Four of the commentors suggested the addition of a new section or subsection of the rule to address the conditions under which emergency could be terminated. The Commission agrees that. terms and conditions should be established in the final rule for termination of grants of emergency access. The NRC has added a new Subpart D to the final rule which incorporates some of the suggested conditions for termination as recommended by the commentors. The Subpart is title. " Compliance with Conditions of Emergency Access; Termination of Emergency Access." This new Subpart D is discussed under the VI.(D) of the Supplementary Informa-tion for this rule. It establishes that the operator of the designated site may refuse emergency access waste if it does not meet the conditions established by the NRC pursuant to this Part. It also establishes that 39
[7590-01]- U
~
the Commission'may' terminate'a grant of emergency access-if.it'determin'es--
- t that emergency access is.no 1onger needed- j Response'to Specific Requ'est for Comments- -)
i
- In the proposed rule, the NRC-specifically requested comments on' "
~
certain parts or' assumptions made by the NRC. Under Sectio'n.VIII.of the proposed rule, the NRC expressed an< interest in receiving comments;on:
(1): What scenarios are envisioned where emergency access would be re' quired?
(2) What are the potential' problems with the NRC's. approach.to '
-1 determining an immediate and serious threat to the public health and "
safety?' l (3) What are the-potential problems with the arrangement proposed for making the determination of serious and immediate threat to the I I
common defense and security? -
(4) What are the potential difficulties with the proposed approach for designating !* e receiving site? and (5) What should the NRC do if no site is found to be suitable for i
, waste requiring emergency access?
l Two of the comments specifically addressed this request for comments, I L
offering partial responses to some of the questions. The comments did not reveal any new perspectives for the NRC to consider so the final rule 1
was not affected by the comments received.
In the proposed rule, the NRC specifically requested comments on the l- initial regulatory flexibility analysis from small businesses, small
]
organizations, and small jurisdictions in order to determine if the final i
40
-_-_-__-_-__________________-_-_-__-_a__ _-
[7590-01]
regulations should be modified such-that less stringent requirements could be imposed on small entities while still-adequately protecting the public health and safety. None of the comments received on.the proposed rule addressed the impact of the regulation on small entities or the adequacy of the NRC's regulatory flexibility analysis. As a result, it' was not necessary to change the final rule to accommodate the special needs of small business.
l XI. Finding of No Significant Environmental Impact: Availability This rule establishes criteria and procedures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary-to avert a serious and immediate threat to the public health and safety or the common defense and security. For the most part, the final rule is an administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect. j i
l Therefore, the Commission has determined under the National Environ-l mental Policy Act of 1969, as amended, and the Commission's regulations l
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, therefore, an environmental impact statement is not required.
The environmental assessment forming the basis for this determina- f i
tion is contained in the regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted below. 1 i
41 i l
i
[7590-01] l 1
XII. Paperwork Reduction Act Statement-The final rule adds information collection requirements-that are I subject to the Paperwork Reduction Act of 1980 (44.U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget Approval Number 3150-0143.
Public reporting burden for this collection of information 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 reviewing instructions, searching existing data sources, gathering and l maintaining the data needed, and completing and reviewing the collection j of information. Send' comments regarding this burden estimate or any ;
other aspect of this collection of information, including suggestions I 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.
XIII. Regulatory Analysis The Commission has prepared a regulatory analysis on this final i regulation. The analysis examines the costs and benefits of the alter-natives considered by the Commission. The analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. Single copies of the analysis may be I
obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, Washington, DC 20555, telephone (301) 492-3857.
42
i
-[7590-01]. j l
J XIV. Regulatory Flexibility' Certification NRCisLusingthisl final: rule'toindlbmentthestatutoryrequirements
("
- for. granting emergencyLaccess, to non-Federal or regional-LLW disposal facilities under Section'6 o'f.the Act. Based up'on the' information avail-- ;
able and in.accordance with the' Regulatory FlexibilitysAct, 5 U.S.C.
605(b), the. Commission certifies that this rule will. not'have a signifi- ,
- j cant economic impact upon a substantial number'of small entities. ..
1 The rule has the potential'to affect any generator of LLW as wel1 as.
l any existing LLW disposal facility. None;of the'LLW disposal facilities would be considered to be a small entity. The generators of LLW are nuclear power plants, medical and academic facilities,. industrial licen-sees, research and development facilities, radiopharmaceutical.aanuf;ac- ;
I turers, fuel fabrication facilities an'd government licensees. 'Of these i
categories, all but the power plants,. fuel -fabrication facilities, and '
l government licensees could potentially include; small entities. '
Although these categories may contain a " substantial number of small entities,".the Commission does not believe there will be a'significant economic impact to these generators because the Commission does not anticipate that many generators will be affected'by~the proposed rule.
In order for the requirements of the rule to be imposed on a generator, the generator itself must initiate the action by requesting a grant of emergency access from NRC. This vould occur only because the generator l-has been denied access to LLW disposal. The impact of the recordkeeping require'ments on any affected licensees should be minimal since the infor-mation that must be provided if a generator requests emergency access woult mcst likely be collected and assembled as part'of any process to i
43
__ ____U__._ _mm____ _ __.__m___-__m__.___.___.-__________.____.______m___ _ _ _ _ _ _ _ . _ _
[7590-01] i l
decide a course of action if necessary access to LLW disposal was not i I
going to be available.
The Commission is required by statute to make emergency access determinations. Since a grant of emergency access is intended to correct ,
t the problems LLW generators may encounter because of lack of access to
]
LLW disposal, the provision of emergency access will benefit any genera- )
tor of LLW including small entities.
Establishing criteria and procedures for requesting and granting emergency access through a rule will also benefit small and large genera-i tors. 10 CFR Part 62 provides guidance to the generator on what informa- '
tion will be required for making requests for emergency access and provides an orderly framework for making those requests. Also, the rule will enable generators to better plan to avoid LLW disposal access problems, thus I providing the certainty required for economic growth and development.
l l XV. List of Subjects in 10 CFR Part 62 l
Administrative Practice and Procedure, Denial of Access, Emergency Access to Low-Level Waste Disposal,. Low-Level Radioactive Waste, Low-Level Radioactive Waste Policy Amendments Act of 1985, LLW Treatment and Disposal, and Nuclear Materials.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive Waste Policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62.
i 44
[7590-01]
Part~62 - Criteria and Procedures for Emergency Access to.Non-Federal . and Regional Low-Level I 1
Waste Disposal Facilities
'1. A new Part 62 is added to 10 CFR to read as'follows:
1 1
i Subpart A - General Provisions j J
Section:
6
2.1 Purpose and Scope
. j i
62.2 Definitions.
62.3 Communications. ;
62.4_ Interpretations.
62.5 Specific Exemptions.
62.8 Information Collection Requirements: OMB Approval L Subpart B - Request for a Commission Determination 1
62.11 Filing and distribution of a determination request.
62.12 Contents of a request for emergency access: General information.
62.13 Contents of a request for emergency access: Alternatives.
62.14 Contents of a request for an extension of emergency access.
62.15 Additional information.
62.16 Withdrawal of a determination request.
62.17 Elimination of repetition.
62.18 ' Denial of access.
l 45
.[7590-01][
~
Subpart C - Issuance of a Commission Determination 62.21 Determination'for, granting. emergency access.
62.22 Notice of: issuance of s determination.
62.23 . Determination for' granting temporary emergency access.
62.24 : Extension of emergency. access.
62.25. Criteria for a~ Commission determination.
l 62.26- Criteria for designating a disposal' facility.
Subpart D - Compliance with' Conditions of: Emergency. A'ccess;
~
Termination of Emergency Access 62.31 Termination'of Emergency Access.
AUTHORITY: Secs. 81, 161, as amended, 68 Stat.~935, 948,1949,1950, q 951, as amended. -(42 U.S.C.'2111, 2201); secs. 201, 209, as amended, 88
- Stat. 1242, 1248, as amended (42 U.S.C. 5841, 5849)';. secs, 3, 4, 5, 6, j 99 Stat, 1843, 1844', 1845, 1846, 1847,'1848, 1849, 1850, 1851, 1852, .
1 1853, 1854,:1855, 1856, 1857. (42 U.S.C.'2021c, 2021d, 2021e, 2021f).
1 Subpart A--General Provisions S 62.1 Purpose and scope.
(a) The regulations in this part esteblish for specific low-level
- j. radioactive waste (1) procedures ~and-criteria for granting emergency l
access under Section 6 of the Low-Level Radioactive Waste Policy Amend-
.ments Act of 1985'(42 U.S.C. 2021) to any non-Federal or regional low-level radioactive waste (LLW) disposal facility or.to any non-Federal
~
f l
disposal facility within a State that is not a member of a Compact, and (2) the terms and conditions upon which the. Commission will grant this emergency access. <
46
[7590 01] 1 l
l (b) The regulations in this part apply to all persons as defined by this regulation, who have been denied access to existing regional or non-Federal low-level radioactive waste disposal facilities and who submit a request to the Commission for a determination pursuant to this l
part. l (c) The regulations in this part apply only to the LLWs that the l States have the responsibility to dispose of pursuant to.Section 3(1)(a) of the Act.
1 l
q l S 62.2 Definitions. )
i As used this part:
j "Act" means the Low-Level Radioactive Waste Policy Amendments Act )
of 1985 (P.L.99-240).
" Agreement State" means a State that - (A) has entered into an agreement with the Nuclear Regulatory Commission under section 274 of the l
Atomic Energy Act of 1954 (42 U.S.C. 2021); and (B) has authority to regu- I l
late the disposal of low-level radioactive waste under such agreement. 1
)
" 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
{
board established in a Compact to administer such Compact.
" Disposal" means the permanent isolation of low-level radioactive waste pursuant to the requirements established by the Nuclear Regulatory Commission under applicable laws, or by an Agreement State if such i
isolation occurs in sucii Agreement State.
r 47
[7590-01]-
" Emergency Access"Emeans access'to an'. operating non-Federal or!
, . regional low-level radioactive waste _disposalifacility or facilities for-a period not1to exceed 180. days, which is granted.by-NRC toia' generator- i 4
of low-level radioactive. waste who has been 'denie'd the use of those <
facilities.
" Extension of EmergencyL Access'.' means an extension' of the access . 4 that-.had been~previously granted.by NRC to'an' operating non-Federal or regional low _ level radioa'ctive waste disposal facility or: facilities for a period:not to exceed 180 days.
i
" Low-Level Radioactive. Waste".(LLW) means: radioactive materialsthat-L (a). is not high-level radioactive waste,; spent nuclear fuel, or byproduct , 1 material (as defined in Section IIe(2) of the Atomic Energy Act of.1954
[U.S.C. 2014(e)(2)];'and (b) the NRC, consistent with' existing law and in o I
I accordance with paragraph (a), classifies as low-level radioactive waste. )
"Non-Federal Disposal Facility" means a low-level radioactive waste disposal facility which is commercially operated or is operated by a State.
" Regional Disposal Facility" means a non-Federal. low-level radioac-tive waste disposal facility in operation on January 1, 1985, or sub-sequently established and operated under a Compact.
" Person" means any individual, corporation, partnership, firm, association, trust, State, public or private institution, group or agency -
who is an NRC or NRC Agreement State licensed generator of low-level l
.i 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 48 l
_-__-____-______-___l
^
u ,
e
==
o
[7590-01].
licensed generator,or generators of' low-level radioactive waste within'. .
l the scope of.Section'~62.1(c) of. this Part located in.his' or herL" State"; .
1 or .their ' duly authorized representative, legal . successor' or : agent. :
" State'! means Lany State of the . United States, the District ~of a
Columbia,'and'the: Commonwealth.of Puerto Rico. j
'" Temporary Emergency = Access" mean faccess that is granted at NRC's discretion under Section'62.23 of-this art- pon determining.-that access.
I
'is necessary'to eliminate anLimmediate and serious' threat to~the public. l health _and safety or the.; common defense ~and security. Such' access. expires 45' days after the' granting and cannot be extended. I l
4 1
S 62.3 Communications. 1
-i Except where otherwise specified, each communication and report j l
concerning the regulations in this part should.be addressed to the Direc- !
l tor, Office of Nuclear Materials Safety'and Safeguards, U.S. Nuclear j Regulatory Commission, Washington,~DC 20555,.or!may be delivered in person to the Commission's offices at 1717 H Stree't NW., Washington, DC, l or 11555 Rockville Pike, Rockville, Maryland, S 62.4 Interpretations.
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpreta- ,
tion by the General Counsel will be considered binding on the Commission. i 49
[7590-01]
l S 62.5 Specific exemptions.
The Commission may,.upon application of any interested person or i upon its own initiative, grant an exemption from the requirements of the
]
)
regulations in this part that it determines is authorized by law and will j not endanger life or property or the common defense and security and is otherwise in the public interest.
S 62.8 Information collection requirements: OMB Approval.
(a) The Nuclear Regulatory Commission has submitted the informa- I tion collection requirements contained in this part to the Office of ,
Management and Budget (0MB) for approval as required by the Paperwork l Reduction Act of 1980 (44 U.S.C. 3501 et seq.). OMB has approved the information collection requirements contained in this part under control l
number 3150-0143.
(b) The approved information collection requirements contained in 1 this part appear in SS 62.11, 62.12, 62.13, 62.14, and 62.15.
Subpart B--Request for a Commission Determination l <
S 62.11 Filing and distribution of a determination request.
(a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of fi request with the Commission at the address specified in S 62.3 of thi part, with a copy also provided to the appropriate Regional Administrator at the address specified in Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination or the person's auther-ized representative under oath or affirmation.
50
[7590-01]
(b) Upon receipt of a request'for a determination, the Secretary of l the Commission will cause to be published in the Federal Register a 1: notice acknowledging receipt.'of the request and asking that public com- ,
ment on the request is~ submitted within 10 days of the date of the notice.= ; A copy of the request will-be made available for ins ction,i the Commission's Public Document Room, Washington,.DC g
a Mj l in g ment Rnce r "* he3eg ; n.r :, :..;; = ;;mer 3caess. 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 I of the Compact region where the waste.is generated, to the Governors of i
the States with operating non-Federal low-level radioactive waste dis- I posal facilities, to the Compact' Commissions with operating regional !
l low-level radioactive waste disposal facilities, and to the Governors of j 1
the States in the Compact Commissions with operating disposal facilities. l (c) Fees applicable to a request for a Commission determination. I under this part will be determined in accordance with the procedures set- l 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 i Section 5(b) or 6(h) of the Act are met at all operating non-Federal or regional LLW disposal facilities, the Commission may suspend the process-ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General Information.
A request for a Commission determination under this part must include the following information for each generator to which the request' applies:
51
[7590-01]' j 1
1 d
i (a) Name and address of the person making the request; -i
)
(b) Name and address ef~the person (s) or company (ies) generating l the low-level radioactive waste for which the determination is sought; ;
i (c) Certification that the radioactive waste for which emergency )
1 access is requested is low-level radioactive waste within Section 62.1(c) j 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; l (f) Name of the disposal facility or facilities which had been receiving the waste stream of concern before the generator was denied I i
access; i (g) A description of the low-level radioactive waste for which emergency access is requested, including:
(1) The characteristics and composition of the waste, including, but not limited to--
(i) 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 ;oxic chemicals, chelating agents, infectious or biological agents associated with the waste; (2) The radiological characteristics of the waste such as--
(i) the classification of the easte in accordance with S 61.55; 52
, .-[7590-01)
L .
(ii) alistfof-theradionuclidespresentLorpote'ntiallylpresentiin'
~
h the. waste,their.concentrationorcontasination1 1e'vels, and total' quantity;-
j 1
.(iii). distribution of the radionuclides'within thel waste (surface or:
.]
volume distribution); i l
-(iv) amount of transuranic (nanocuries/ gram); l
~
L (3) 'The minimum volume of the. waste. requiring emergency _ access to:-
eliminate the threat to the public health and safety.on.the common defense and security; ,
<]
(4) The time duration,for which emergency access is requested ((not
]
.to exceed 180.' days);L
]
(5)' Type of disposal container or packaging (55 iga 11on~ drum, box,.
liner,etc.);'and !
(6) Description of the volume reduction and waste-minimization j
techniques applied to the waste which assure that it is' reduced to the maximum extent practicab1' and the actual reduction in volume that occurred; '
(h) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial.of access to existing
~
l low-level radioactive waste disposal facilities; j (2) A description of the situation which~is responsible for creat-ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the'need for emergency access was identified; I
53
[7590-01].-
4
-(3) A'chronologycand: description'ofzthe actions.taken by the person ;
)
r'equesting emergency access to prevent the-need for making such 'a . request - ,
l 1
including' consideration of all alternatives. set forth in S 62.13 of this-1 lart,andanysupporting. documentation ~asappropriate; (4) An explanation of the impacts of the waste on the public health. ,
'j y
andTsafety'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:
. common defense and security. The impacts to the public health .and' safety? 1 1
or the common defense and security'if the generator's services, including l 1
research activities, were.to be curtailea, either for a limited period ofn time or indefinitely, should also be addressed;' 'i ;
(5) Other consequences if emergency access is not granted; )
1 (i) Steps taken by the person requesting emergency! access to correct the situation requiring emergency' access and the person's' plans l to eliminate the need for additional or future emergency access requests; 3 (j) Documentation certifying that access has been denied; (k) Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the "
s Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simui-taneously under consideration by the Department of Energy (D0E) for ;
access through the unusual volumes allocation; (1) Where the request is made wholly or in significant part on the basis of a serious and immediate threat to the common defense and secu-rity, a Statement of-Support from DOE or D00 certifying that access to disposal is necessary to mitigate the threat to the common defense and L. security; 54 i
..[7590-01];
1
' 2 9,j .Date by which_ access is; required; l
I
'( r.) Any.other information which the Commission should consider- in making its-determination... g
~S 62.13 .Contentsfof a request for. emergency access: alternatives. ]1
.(a) A request for emergency access under this part must include
~
i 1
.information on alternatives to'. emergency access. .The requ'est shall_ H
~
include a discussion of the c' consideration given to-any alternatives, including, but not : limited to, the following: .(1)~ storage'of' low-level radioactive. waste at the site o_f generation; (2) storage of low-level-
. radioactive wast'e in a licensed storage. facility;_(3) obtaining'accessf to a disposal-facility.by voluntary agreement; (4) purchasing disposal; q
cap.acity available for assignment pursuant'to the'Act;/(5) requesting- )
disposal at a Federal low-level ' radioactive waste disposal facility _in the case of a Federal or defense related generator of LLW; (6)~ reducing ,
the volume of the waste; (7)-ceasing activitie's'that gen 2 rate _ low-level; radioactive waste; and (8) other alternatives identified under.Subpart.
(b) of this Section.
(b) The request muct identify all of the alternatives.to' emergency access considered, including any that would require.~ State or Compact i
action, or any others that are not specified in paragraph (a) of this sec-tion. The requert should also include a description of the process used to identify the alternatives, a description of the factors that were can- ,
j- sidered in. identifying and evaluating them, a chronology of actions taken to identify and implement alternatives during the process, and a di.scus-sion of any actions that were considered, but not implemented.
i.
55
[7590-01]
I (c) The evaluation of each alternath- qust consider': (1) its potential for mitigating the serious and 'immediate threat to public health _ and safety or the common defense.and security posed by: lack' of Laccess,to disposal;_(2) the! adverse effects on public healthLand safety; and the'. common defense _ and security, if. any,;of implementing each alter-native, including the. curtailment'or cessati6n of any essential' services affecting the public_ health and safety or the. common defense and secu-
.rity;-(3) the technical and economic feasibility of each' alternative'
~
J
. including the person's' financial' capability to implement the alterna-1 tives; (4) any other pertinent societal costs and! benefits (5). impacts
,to the environment; (6);any. legal impediments to implementation'of eachL I alternative including whether the' alternatives will comply with_appli-cable NRC and NRC Agreement States regulatory requir' ements;_ and (7).the time required to develop and implement each alternative. I (d) The request must: include the. basis'for: (1) rejecting eat.h alternative; and (2) concluding that no. alternative is available.
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 S 62.12'and S 62.13; and (b) Documentation that the generator of the low-level radioactive waste granted. emergency access and the State in which the low-level radioactive waste was generated have~ diligently, though unsuccessfully, i
acted during the period of the initial grant to eliminate the need for emergency access. Documentation must include: (1) an identification of additional alternatives that have been evaluated during the period of the {
1 56 1
1 1
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[7590-01]
initial grant, and (2) a discussion of any reevaluation of previously considered alternatives, including verification of continued attempts to gain access to a disposal facility by voluntary agreement.
i S 62.15 Additional Information.
(a) The Commission may require additional.information from a person' making a request for a Commission determination under this part concern-ing any portion of the request. >
(b) The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to a request for additional information under paragraph (a) of this section I within ten (10) days from the date of the request for additional informa- ;
tion, or any other time as the Commission may specify. This denial will not prejudice the right of the person making the request to file another I J
l request for a Commission determination under this part. !
1 I
S 62.16 . Withdrawal of a determination request. 1 (a) A person may withdraw a request for a Commission determination underthispartwithoutprejudiceatanytip or to the issuance of an initial determination under S 62.21 of this lart.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a Commission determination under this part.
S 62.17 Elimination of repetition.
In any request under this part, the person making the request may incorporate by reference information contained in a previous application, 57
[7590-01]
Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific.
l S 62.18 Denial of request.
If a request for a determination is based on circumstances that are too remote and speculative to allow an informed determination, the Commission may deny the request.
Subpart C--Issuance of a Commission Determination 1
6 62.21 Determination for granting emergency access.
(a) Not later than (45) days af ter 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- I Federal disposal facility within a State that is not a member of a Compact for specific low-level radioactive waste is necessary because of an immediate and serious threat (i) to the public health and safety or (ii) the common defense and security; and (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in S 62.13.
(b) In making a determination under this section, the Cpmmission shallbeguidedbythecriteriasetforthinS62.25ofthik5 art.
(c) A determination under this section must be in writing and 1 contain a full explanation of the facts upon which the determination is i i l l l 58 I i
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q
'[7590-01]-
~
. based and the reasons for. granting or denying:the request. An'affirma-tive determination must designate an. appropriate non-Federal or regional LLW-disposal facility or facil.ities 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.durationi (not to exceed-180; days) necessary to eliminate'.the immediate threat to i public health'and safety or the common defense and security. It may'also contain conditions.upon.which the determination is dependent. .
l S 62.22 . Notice of issuance of a determination. 1 k
(a) Upon the issuance of a Commission determination the. Secretary 1 of the Commission will make notification of the final determination in writing, to the person making the request, to the Governor of the State in~which the low-level radioactive waste requiring emergency access was generated, to the Governor of the State in which'the designated disposal facility is located, and if pertinent, to the appropriate-Compact Commis- -i i
sion for such approval as is specified as necessary in Section 6(g) of '
the Act. For the Governor of the State in which the designated disposal
-facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and l' duration (not to exceed 180 days) necessary to alleviate the immediate and serious threat to public health and safety or the common defense and 1
security.
For the Governor of the State in which'the low-level waste was generated, the notification must indicate that no extension of 59 L____------------------- - - _ - - - - - - - - - - - - - - - - - - - - - - - -
[7590-01] .
-;7
$n emergency access will be granted under S 62.24 of this, art' absent dili-gent State and generator action during the period of.the initial grant.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice cf the issuance of the determination.
(c) The Secretary of the Commission will make a copy of the final' determination available for inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC. '
S 62.23 Determination for granting temporary emergency access.
(a) The Commission may grant temporary. emergency access to an l l appropriate non-Federal or regional disposal facility or facilities l provided that the determination required under S 62.21(a)(1) of this part is made;
[
(b) the notification procedures under S 62.22 of this are complied with; and (c) the temporary emergency access duration will not exceed forty-five (45) days.
S 62.24 Extension of emergency access. I (a) After the receipt of a request from any generator of low-level '
waste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially granted under S 62.21, the Commission shall make an initial determination of whether--
(1) emergency access continues to be necessary because of an immed-iate and serious threat to the public health and safety or the common i defense and security; l I
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[7590-01]
l (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 though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access.
(b) After making a determination pursuant to paragraph (a) of this section, the requirements specified in SS 62.21(c), and 62.22 of this i 1
art, must be followed. )
i l 6 62.25 Criteria for a Commission determination. i l
' I (a) In making the determination required by Section 62.21(a) of I this part, the Commission will determine whether the circumstances -
1 described in the request for emergency access create a serious and imme- ;
l l diate 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 Sec-tion 62.13 of this part:
(i) the nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of, l (A) the standards for radiation protection contained in Part 20 of this Chapter; l
(B) any standards governing the release of radioactive materials to the general environment that are applicable to the facility that gener-ated the low level waste; and 61
r
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-[7590-01]
1 (C) any othe'r Commission requirements specifically applicable to the facility or activity which is- tha subject of'the emergency access request; (ii) the extent to which essential services affecting the public ;
health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency. access.
(c) For purposes of granting temporary emergency access under Section 62.23 of this part, the Commission will consider the criteria contained in the Commission's Policy Statement for determining whether an event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of-Section 208 of j
the Energy Reorganization Act of 1974. (45 FR 10950, February 24, 1977.)
(d) In making the determination that a serious and immediate threat to.the common defense and security exists, the Commission will consider, a notwithstanding the availability of any alternative identified in sec-tion 62.13 of this part: (1) whether the activity generating the wastes is necessary to the protection of the common defense and security, j (2) whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. The Commission will consider the views of the Department of Defense (D00) and the Department of Energy (DOE) in the Statement of support as submitted by the person requesting emergency access, in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security.
(e) In making the determination required by S 62.21(a)(2) of this rt, the Commission will consider whether the person submitting the request: (1) has identified and evaluated any alternative that could 62 i
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.[7590-01]
mitigate. the need for, emergency access; (2)' has considered all: pertinent factors in its evaluation of-alternatives including state-of.-the-art technology and impacts on public health an'd safety.
(f) In making.the' determination required by 6 62.21(a)(2) of this j hart,theCommissionwillconsider. implementation'of'analternativeto 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 pub 1'ichealthandsafety.orthecommonde'fenseand-security;.or.(3) itis beyond the technical and economic capabilities of the person requesting emergency access; or (4) implementation of the alternative.would conflict-
-with applicable State or local laws or Federal laws and regulations; or (5) it cannot be implemented in a timely manner. '
(g) The Commission shall-make an affimative determination under S 62.21(a) of this a only if all of the alternatives that were consid-ered are found to be unreasonable.
(h) In making a determination regarding temporary emergency access underS62.23ofthisMa , the criteria in parts (a) and.(b) of that section shall apply.
(i) In making a determina regarding an extension of emergency access under S 62.24 of this rt, the Commission shall consider whether the person making the request has. diligently acted during the period of .
the initial grant to eliminate the need for emergency access.
(j) 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 63 .
[7590-01]
properties, radioactivity, pathogenicity, infectiousness, and toxicity, pyrophoricity, and explosive potential); condition of current container; potential for c' 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- 1 film evaporators; extruders evaporators; and Compactors); the suitabil-1 ity of volume reduction equipment to the circumstances (specific activity
)
considerations, actual volume reduction factors, generation of-secondary l wastes, equipment contamination, effluent releases, worker exposure, and .
I I
equipment availability); and the administrative controls which could be !
I 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 1
practicable using available technology, i 6 62.26 Criteria for designating a disposal facility.
(a) The Commission shall designate an appropriate non-Federal or regional disposal facility if an affirmative determination is made pursuant to S6 62.21, 62.23, or 62.24 of this part.
(b) The Commission will exclude a disposal facility from considera-tion if: I (1) the low-level radioactive wastes of the generator do not meet i the criteria established by the license agreement or the license agree-ment of the facility; or (2) the disposal facility is in excess of its approved capacity; or (3) granting emergency access would delay the closing of the disposal facility pursuant to plans established before the receipt of the request for emergency access; or 64
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.[7590-01]-
(4)5 the ' volume of waste requiring emergency.accesslexceeds 20 !
percsnt of the: total Lvolume' off low'-level radioactiv'e' waste ^accepte'd for' y
disposal at'the facility'during the'previo'us' calendar year. l l(c) If,fafter applying the exclusionary: criteria in paragraph,(b)- j of this section,.more'than'one' disposal'. facility;is identified as"appro .
.)
i- priate ;for designation,: t'hel Commission will then consider additionaI l-factorsLin designating a facility or facili. ties including:
(1) ' type of waste and:its.' characteristics,- q (2)'previousidisposal; practices',; I l
(3)' transportation, I (4) radiological. effects, o
(5) site capability for h'andling' waste, (6) the volume of. emergency access waste previously accepted by-each site.both for the'particular year and overall, and (7) any other. considerations deemed: appropriate by the Commission.
(d) The. Commission, in making its designation,' will: also consider _
any .information. submitted by the operating non-Federal or regional LLW-disposal sites, or any information submitted by the public in' response- -i to a Federal Register not, ice requesting comment, as provided in para-graph (b) of 6 62.1179 affle . 5 b
Subpart D--Compliance With Conditions'of Emergency Access;
- )
. Termination of Emergency Access S 62.31 Termination of Emergency Access a
(a) The Commission may terminate a grant of emergency access when '
emergency access is no longer necessary to eliminate an immediate threat t
to public health and safety or the common defense and security.
65 I
< -)
(b)~ The Commission may terminate a grant of emergency access.if an applicant has provided inaccurate information in its application fo 1
emergency access or if the applicant has failed to comply with this Part or any conditions set by the Commission pursuant to this Part.
I Dated at Rockville, MD, this day of , 1988.- !
For the Nuclear Regulatory Commission.
Samuel-J. Chilk, Secretary of the Commission. l l
I d
l I
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~&%
For: The Commissioners From: Victor'Stello,~Jr.
Executive Director for Operations
Subject:
FINALRULE-h0CFRPART62,"CRITERIAANDPROCEDURESFORGRANTING-L EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" l
Purpose:
To obtair, approval to issue a new Part 62 to Title 10 of the Code of Federal Regulations that would establish Qriter1and- ,
@roceduresjto be used by the Nuclear Regulatory Commission (NRC)-
in determi ing whether emergency access should be granted to operatin non-Federal low level radioactive disposal facilities underSecion6ofthe/owLevelRadioactiveWastePolicyAmend-L ments Act of 1985.
Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments i
Act of 1985 (PL 99-240, January 15, 1986), (the.Act) provides that NRC can grant emergency access to non-Federal or regional l disposal facilities if there is a serious and immediate I
threat to the public health and safety or the common defense
/ and security that cannot be mitigated by available alternatives.
The enclosed final rule was developed
- 6. Thetoruleimplement sets ouNRC's V!Itrictresp Mon-I
, p' sibilities pursuant to Section requirements for granting er7rgency access, places the burden
[ .
of demonstrating the need for emergency access on the party requesting emergency access and should serve to encourage genera-tors to seek other means for resolving the problems created by l
[ potential lack of access to LLW disposal facilities. The first request for emergency access could be made as soon as January 1, 1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive l a request for emergency access. If NRC does get a request, it l will have 45 days to respond. Staff estimates 180 staff days
- will be required to process eash requests.
N 56 CONTACT:
i Janet Lambert, RES 492-3857 I
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The Commissioners 2
' Backgrounds .The Act directs the' States to develop their own LLW disposal facilities, or to form Compacts and cooperate in the development of regional LLW disposal facilities, so that the new facilities will be available by January 1, 1993. If unsited States or.
Compact regions fail to meet key milestones in the Act, the States and Compact Commissions with the operating LLW disposal facilities. are authorized to' demand additional fees for wastes accepted for. disposal, and ultimately to deny the LLW generators
.in the' delinquent State or Compact region further access to their facilities. y4 .
Section~6 of.the Act provides that the NRC can grant a generator l " emergency access" to'non-Federal or regional commercial LLW l
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 I the common defense and security. The Act also requires that a. id d
- l &+rhatbn uw d e n to whether the threat can be mitigated cid ,
l by any alternative. consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must make both determinations prior to granting emergency access.
The Act provides that NRC can grant emergency. access for a period not to exceed 180 days per request 180-day extension of emergency ssacce//and allows can be granted per that only one, request.
The Act provides NRC with 45 days from the time a request is 1 received to determine whether emergency access will be granted,
- and if so, to designate the receiving facility.
The Act provides that requests for emergency access shall contain all information and certifications that NRC requires to makes its determinations. The Act also provides that only NRC can grant emergency access. The Agreements States are specifically pre-cluded from making emergency access decisions.
The legislative history for the Act emphasizes 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- l sions of the Act. Congress expected that responsible action from l the generators and the States / Compacts should resolve most pro- j 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 i Federal involvement.as a vehicle of last resort. !
i In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act andwithitsunderstandingoftheintentexpreseQyCongress i regarding decisions made pursuant to Section 6.l 5taff's objec-tive throughout has been to establish requirements for granting
I' The Commissioners 3 emergency access that are stringent enough to discourage the' I unsited States and regions from viewing emergency access as an i alternative to diligent pursuit of'their own disposal capability, I and yet flexible enough to allow NRC to respond appropriately in. ;
situations where emergency access is1 genuinely needed.to protect the public health and safety or the common defense and security.
(u6p W hl h The Act..did
-->ses&ici, not require NRC:to C responsibi'ities. However,develop NRC affarecommended
% rule to carry a out its. ;
A CeJ/in 6 rule to establish thegroceduresMnd criteria)that will be used in making the required emergency access determinat*ons to add predictability to the decision-making process, an elp $ ensure ,
that the NRC will be able to make decisions-on emergency access I requests in the time required by the Act.
On January 15, 1987- RC issued a Notice of-Intent to develop ,
this rule ( M 52 ml Jei;ister, M 10, p.1634L and on December 15, 1987, NRC issued the proposed rule" The formal , g2 g !
comment period expired February 12, 1988. Twenty-one commentprs 915# 8 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,NewYorK, Kentucky,andPennsylvania),two tsse-Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten 13mm concerned citizens and members of environmental groups, service. two @ industry /pgL , and one $5 bas nuclear information i The major co ments will be discussed after a summary of the petr-Appu+ rule The peepened rule addresses each of the determina-g ions that NRC must make and described how they will be madef
[*serious
'"' handI immediate ies a determinb there is a threat to the public health and safety, the Commission will consider whether the circumstances described lead it to conclude that there is no longer reasonable assurance that the affected generator or generators can continue.to comply with NRC's regulations in 10 CFR Part 20, and as a result, that the public health and safety will be endangered. In making this determination the NRC will consider the significance of the situation described in the context of the requirements issued by NRC in the facility license, the technical specifications, and any applicable regulations and orders of the Commission.
In W7 +" determirn.r NM there is a serious and immediate threat to the common defense and security, the rule provides that NRC staff will consider whether the activity generating the LLW is necessary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously
F The Commissioners 4 threaten the common defense and security. The proposed rule a' Iso specifies that the 1RC will consider the common defense and security recommendations to be made by the. Department of Energy (DOE) and/or the Department of Defense (00D) in a " Statement of support." A Statement of Support from the appropriate agency will be required as part of any request for emergency access made in total or in significant part on the h sis 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 il These include, emergency but are not access are av3 limited tof 1)(able to the storage applicant.
of LLW at the site of genera-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 NRC; (6) requesting disposal at a Federal disposal facility (appropriate for Federal or defense-related generators of LLW 4-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-tor, because it would result in the cessation or curtailment of essential medical services, or cannot be implemented in a timely manner. If any alternative is determined by NRC to be 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 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 j volume of the waste requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year. If the designation cannot be made on this basis alone, the Commission will consider the type of waste, previous disposal practices, transportation requirements, 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
m y I
I The Commissioners- 5 !
I and whether the person making the request has been diligent during ,
the period of the initial grant to eliminate the need for emer- I gency access. ,
i In making a determination that temporary emergency access is- !
necessary (S ctio ) of the Act), the staff will have to-meke-4ha determin '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. i Discussions A number of commenters raised issues _that had been considered by staff while developing the proposed rule. For the most part, staff has. responded to the comments by adding clarifying language and some ~new explanatory text to the final rule. The critical .I components of the proposed rule 3- the procedures and the criteria P l to be used in making emergency access decisions as discussed
-above, are essentially unchanged in the final cant comments are discussed belowf* h The most,stgnifi-In general, commenters appeared to support NRC's issuance of a rule for its emergency access decisions and indicated changes that would improve the final rule from their perspective. One commenter expressed opposition to the issuance of the rule besM because he believed that granting emergency access would infringe on the States' right to manage their LLW. The Act 4 I
established the statutory framework for the management of LLW, including the allocation of management responsibility between j l the federal government and the. States. The emergency access !
I' Y$ YW By far the most common concern expressc
. ks $Y.
y commenters was that blRC'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 et Mis h, vwniitror generated by of decommissioning of vessels,s or a%0F),-
a result by research, of any the Navy as a result development, testing, or. production of atomic weapons.'" Commenters y state that Federal wastes, particularly those generated by DOE g and or wastes that are classified as greater-than-Class-C,
- p. (9 shoul (beallowedtoreceiveemergenyaccessdisposal.
Uppt2#M of be/MA. 00 3
Y In developing the proposed rule, NRC st ff 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
?
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 commenters representing States or Compact Connissions raised the issue of Compact' Commission approval of NRC's emergency access decisions. They indicated that the NRC been remiss in
- not including a provision in the proposed. rule . would require.
the NRC to: seek approval for its decision to grant emergency access from the Compact Commission of the region in.which the:
designated site is located.
Under~Section6(g)oftheActhanygrant:of..accessunderthis Section shail be submitted to the Compact Commission for the' region in which the designated disposal! facility,is located'for-such approval as may be required under the terms of its compact."
~
The interpretation preferred.by some of the States or Compacts is that Congress intended.for the Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended the ,
receiving Compact Commission to have the power.to veto NRC's decision. The commenters wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
The interpretation of Section-6(g) that is most consistent with Congressional intent behind emergency access is that 6(g) does not sion.
o ide f g gte or Compact Commission veto of NRC's deci-aff m mve that the legislative history for 6(g) is quite clear on this point. The basic purpose of the Section 6 emergency access provision is to ensure that sites which would normally be closed under the Act will be available in emergency situations. A Compact Commission veto of the NRC's' decision would frustrate the purpose of the emergency access provision and would be generally contrary to the. legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. "If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void." [H.R. REP. No. 314, 99th Cong., 1st Sess., pt.-1, at 2997 (1985).] This was explained in the Supplementary Infor-mation for the proposed rule and has been reiterated and clarified in the fina ( j Mostofthe.5tatesandRegionalCompactCommissionswhosubmitted 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
l l
The Commissioners' '7 disposal from the person granted emergency access hich they are entitled $ under the Act. Commentersindicadedtis.tNRC should require a formal acknowledgement of reciprocal access before making an emergency access determination. 'The staff.does not agree with this position.
Under Section 6(f), the Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any-subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further.
provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of low-level radioactive waste having similar l characteristics to.that provided emergency access."
NRC. staff considered including reciprocal acce .during the development of-the proposed rule. However,.a s aff reads Section 6(f), arranging for reciprocal access is an obligation between States /Cempacts and thus is outside the scope of NRC's responsibility to implement Section 6. Further, given the agency's mandate to protect the publitn5glth and safety on thpN
/
common defense and securitypitaff bo r . w lt 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 l
request for emergency access, under certain' circumstances, actions I
necessary to protect the public health and safety could be delayed or compromised.
The NRC staff reconsidered its position on reciprocal ac gs p ng p p ,&
light of the comments received on the proposed rule, but = c no
@y 9 the final rule.
A number of the commenters expressed concern that LLW granted emergency access to disposal the NRC should be required to meet any conditions of.the site esignated)aswellasanyfees, or taxes prescribed by that faci ity. Utner commenters stated l that LLWs granted emergency access disposal should not have to pay any special fees, beyond-those specifically mandated by the Act. The commenters expressed a desire to h javRC consider ~
those items in making its\qite designationfrecisions for emer-gency access. -
TotheNRChffitisquiteclearfromtheActthatCongress y
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 gtnerators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the
=
The Commissioners 8 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 itsQite designation _Jdecisionch I' For clarification, a new section has been added to the final rule which reaffirms NRC's understanding of Congressional intent that conditions or termsLwhich would normally apply to LLW disposal-should also apply to emergency access. disposal.
Several of the commenters suggested that the final rule should containcoditionsunderwhjchemergency'accesscouldbetermi-nated, aff agre# and haure added a new Subpart D for this pur-pose. The new subpart establishes that the NRC may terminate L . emergency access if the' requestor or C wEste do not meet the -4 ccnditions established by'NRC in Part 62, and that the NRC can terminate emergency access if ) determinst4an i+-mode that it is
! no' longer needed.- W LC- M Several commenters stated-that the 10 day public comment period providedintheruleonrequestsfor[emergencyaccesswasinade-quate. Since NRC is not required to seek public comments on requests, and since NRC has only 45 days.to respond when a , -
g request is received, no change was made to the final rule. O After consideration of the comments,P A staff recommends he final '
rule proposed for Commission appi al in Enclosure B. There are no major differences between the proposed and final rules but several clarifyin changes are included. The most significant W L (1) Addition of a clarifying sentence to the " Purpose and Scope"SecH4 of the final rule. The sentence indicates that the emer-gency access rule applies only to the LLWN for which the States have disposal responsibility pursuant to the Act.
- + >
(2) Addition of clarifying language toL62.22 pstatu.eto that the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
(3) Addition of a clarifying Section VIII to the Supplementary Information tithd " Terms and conditions for Emergency Access Dispo
! (4) The addition of clarifying Subpart D, titled " Compliance M th Conditions of Emergency Access; Termination of Emer-gency Access."
i E __--______ _ ___ _ _ _ _.
i l
The Commissioners. 9 i
< l
. Resource Requirements.
1 Consistent with the legislative history. for Section 6, NRC staff ]
-under rare i expectsthatemergencyaccess'willbe'requestedong1ffaffesti-unusual circumstances through 1993 and beyond. i mate 3it will take approximately 180 staff, days (six staff working 1 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 Regi.s_ter the final new rule 10 CFR Part 62 e c' :cd
- a (Enc 15Ture'B) which would establish procedures and criteria-for. granting requests .for emergency access to. low-level waste disposal sites. I i
(2) In order to satisfy requirements of the Regulatory Flexibil- )
ity Act-(5 U.S.C. 605(b)) certify that the final rule will 1 not have a significant~ economic impact on a substantial i number of small entities. The basis for this certification I 1
is summarized in phe draft Federal Register notice (Enc l'o-nreR1undertheRegulatoryFlexibilityCertification!
heading)
(
(3) Note:
l
- a. That the Chief Counsel for Advocacy of the Small j Business Administration will be informed of_the certification and the reasons for it, as required by the Regulatory Flexibility Act.
- b. That this final rule contains modifications to informa-tion collection requirements subject to the require-ments of the Paperw r Reduction Act of 1980 (44 U.S.C.
3501 et seq.), that ffice of Management and Budget p (0MB) approval was obtained for the proposed rule, and that the changes between the proposed and' final action are clarifying only so that the OMB approval remains valid.
- c. That the proposed rule. included a preliminary finding that no significant environmental impacts would result from the rulemaking. The environmental assessment forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis."
- d. That compliance with CRGR charter requirements is not applicable this rulemaking action es the rulemaking l applies only to radioactive waste nianagement and not a
. \s
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Tha Commissioners 10 generic requirement to be imposed by the NRC on one or more classes of power reactors.
- e. That the Subcommittee on Nuclear Regulation of the. .
Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, .the Subcommittee on Energy Conservation and Power of the House Energy and Commerce Committee, and the Subcommittee on Environ-ment, Energy, and Natural Resources of the House Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure D.
- f. That a public announcement, Enclosure E, will be issued by the Office of Public Affairs when the final rule-making- is 44es wi ui mc v ' Federal Register.
c WfS Y. .mQ 1Rs That a regulatory analysis, Enclosure C, has been pre-pared for this rulemakir3g.
- h. 0GC has reviewed the p. ;rred rulemaking package and has no legal objections.
1 Scheduling: Few, if any emergency access requests re anticipated. However, a request could be made at any time RC should have ' t e rule l in ce " the L M a request for emergency access made, onsistent with the next major trigger date for denial of access in the Act, which is January 1,1989, the final rule shoule' '7e
@[ 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 I
i i
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.TheLCommissioners 10:
~
generic requirem3nt to be imposed by the NRC on one or more classes of power reactors.
- e. That the' Subcommittee on Nuclear Regulation of the.-
Senate Committee on~ Environment and Public Works, the
Subcommittee on Energy and the Environment.of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and Power.of the House Energy and Commerce' Committee, and the' Subcommittee on Environ-ment, Energy, and Natural. Resources of the House Committee on Government Operations will be. informed of
.the rulemaking by letter such as Enclosure D.
f .' That a public announcement, Enclosure E, will be issued
'by the Office of Public Affairs when the final rule-
. making is fi4ed - ith A ^,";;; of- Federal Register.
g.
-feluL A. %
That a regulatory analysis, Enclosure C, has been pre-
. . 1 pared for.this rulemaking.
- h. 0GC has reviewed.t e proposed rulemaking package and j has no legal objections. s
]
Scheduling: Few, if any emergency access requests are anticipated. However, i a' request could be made at any time. NRC should have the rule i in place at the time a request for emergency access may be made. !
i 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 l- ') . Draft Congressional Letter E. Public Announcement l 0FC: NMSS : ARM :GPA :NRR :0GC :EDO L NAME: HThompson :WMcDonald :HDenton :TMurley :WParler :VStello DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88 l OFC: RES/WMB/DE :RES/WMB/DE :RES/WMB/DE :DE/RES :DE/RES :RES :RES
.............................................................................. i 1
l NAME ^JLambert :*DGrill :*MSilberberg:*RBosnak:*GArlotte TSpeis : ESBeckjord DATE: 8/ /88 :8/ '/ 88 :8/ /88- :8/ /88 :8/ /88 :8/ /88:8/ /88 0FFICIAL RECORD COPY
^See previous concurrence 1
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MEMORANDUM FOR: I Victor Stello, Jr. i Executive Director for Operations l FROM: Eric S. Beckjord, Director Office of Nuclear Regulatory Research
SUBJECT:
FINAL NEW' RULE, 10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" Enclosed for your approval is the rulemaking package for the final new Part 62 to Title 10 of the Code of Federal Regulations. The i"le will establish criteria and procedures to enable NRC to determine whether emergency access shouldgranted to operating, non-Federal, or regional low-level radioactive waste isposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act).
In developing this rule, staff tried to be consistent with both the actual a text of Section 6 of the Act and the Congressional intent expressed by Congress in the legislative history.
rule sets strict requirements for granting emergency access, places the burden of demonstrating the need for emergcncy access on the party requesting emergency access, and should encourage potential requestors to seek other means for resolving the problems created by lack of access to LLW di.sposal facilities.
Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, staff recommended using rulemaking in order to minimize 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 in December.15,1987 and the formal public comment' period ended on l February 12, 1988. Twenty-one commentors responded. Resp'6nses were received fromthegovernmen'.sofsixstates,fromtwolow-levelwaste(ompact 1
07/26/88 ,
10 CFR 62 MEMO
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'V. Stello l
il commissions, ten from' concerned citizens and members'of environmental groups,.
o two from industry and one'from a nuclear information' service, Most of the comments raised issues that had been considered by staff in j developing the proposed rule. For the most part, the comments required: 1 clarifications or additions to the final rule, but the critical components--the procedures and the criteria to be used in making emergency access decisions, remain almost unchanged from the proposed rule to the .
final. The most significant comments are discussed below:
Over half of the commen expressed concern that NRC would use its .
emergency access power to force operating non-Federal or regional LLW disposal
]
facilities to accept above-Class-C-wastes, federally generated wastes, particularlythosefrom06DandD6E,orotherLLWforwhichthestatesdonot have disposal responsibilities under the Act. NRC staff had assumed it was cicar that emergency access wastes would be subject to any general limitations for LLW disposal established by the Act. A simple statement to that effect was added to the " Purpose and Scope" in the final rule and should accommodate l their concerns.
l A najor area of concern for most of thejtates and responding Compact Commissions relates to reciprocal access. They indicated that the final rule shouldincludeprovisionsbywhichtheNRCwouldensurethat$tatesmadeto j accept emergency access wastes should receive the reciprocal access promised I to them under Section 6(h) of the Act. Staff had censidered addressing f reciprocal access i W ; tH 9 "a'T- ^5 the proposed rule but decided that making a formal promise of reciprocal access a condition for emergency access consideration could compromise our mandate to protect the public health and safety. Staff continues to believe such a brokering role for NRC is inappropriate. No change has been made to the final rule regarding reciprocal access.
Another major area of concern for the responding States and Compacts is whether the Compact Commission which is designated to receive emergency access l
07/26/88 10 CFR 62 MEMO
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d V. Stello 3 ,
waste can veto or " disapprove" NRC's decision. Several of the States and C
Compga s g gev g g anguage in Section 6(g) of the Act indicates they g a f a: c' ; and they wanted the final. rule to incorporate a provisionfacknowledgingthisvetoauthority. 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.
A number of other commentors were concerned that emergency access wastes would notbesubjecttothesamefees, regulations, conditions #pequirementsas 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.
Based on the January 1,1989 milestone we have scheduled to issue the final rule in the fall of 1988. Immediate Commission attention to this issue is necessary to meet this schedule.
The final rule has been concurred in by NMSS, ARM, NRR, and.SLITP. 0GC has reviewed the rule and has stated that it has no legal objections.
H gh L. Thompson ., vir fice of N ar Material Safet and guards S
Enclosure:
Eric ' $
.As Stated I. 6 g
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Staff believe NRC should have this rule in place by the time a request for emergency access might be received - W:,4 m e tjmar-mmemedtkely=hefore 'enuc.j 1~F4989., which rig the next date tnat -w uat cvuld tc T.sd access may be denied under the Act. l develop a siting plan for its LLW disposal facility.This would~ "'result from a State's fai
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07/26/88 10 CFR 62 MEM0 C________.________
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For: The Commissioners From: Victor Stello, Jr.
Executive Director for.0perations
Subject:
FINAL RULE =10 CFR PART 62, CRITERIA AND PROCEDURES FOR GRANTING cdF-EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the Code of Federal Regulations that would establish criteria and procedures to be used by the Nuclear Regulatory Commission (NRC) in determining whether emergency access should be granted to operating, non-Federal, low-level radioactive disposal faciliti s eunder Section 6 of the Low-Level Radioactive Waste Policj smendments Act of 1985.
Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments qwv) g. mm Act of 1985 provides that NRC can set-a e denja14f access decisions and_gtant_ emergency,acqqss-to non-Federal or regional LLW disposal facilities if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot be mitigated by available alternatives. The enclosed final rule was developed-to implement NRC's responsibil-ities pursuant to Section 6. The rule sets ott strict require-ments for granting emergency access, places the burden of demon-strating the need for emergency access on the party requesting CONTACT:
Janet Lambert, NMSS 427-4751 07/25/88 10 CFR 62 CP
1
, The' Commissioners- 2 emergency'accessiand should serve to'encourcge generators to seek-other means for resolving the problems-created.by potential. lack?
of access to LLW disposal facilities. The firsi request for;
~
emergency access could be made 'as so'on as. January 1,1989. NMM4 l d [dgd hepending:on-theprogressmadeby'theStates.'in. developing'their "C LLW disposal' capability, NRC may.never receive a. request'for
{3j$' emergency. access. Staff estimates 180 staff days'will.be p
AM- ' required to process such requests, within.the 45-day statutory hN limit for an NRC decision. <
Background:
.The' Low-Level Radioactive Waste Policy Amendmants'Act of 1985, (PL 99-240, January 15, 1986)',-(the Act), directs the States'to develop their Own LLW disposal. facilities, or to. form Compacts.
and cooperate in the development of. regional LLW disposal facilities,.so that the new facilities will be available by ;
January 1, 1993. If unsited States or Compact regions.-fail to. !
meet key milestones in the Act, the States and' Compact CommissionfwiththeoperatingLLWdisposalfacilities'are authorized to demand additional fees for wastes accepted for disposal, and ultimately.to deny the.LLW generators in the
. delinquent State or Compact region further access to their facilities.
Section 6 of the Act provides that the NRC can grant a generator
" emergency access" to non-Federal or regional commercial 'LLW disposal. facilities if access to those facilities has been denied and that access is necessary in order to' eliminate an immediate and serious' threat to the public health and safety'or-the common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated.
by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must make both determinations prior to granting emergency access.
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I Ttie Commissioners: 3- 1 i 1 '
The Act provides NRC with 45 days from the. time..a request is - f received to determine whether emergency access will be granted, j
. andifso,.todesignatethe.receivingfacility.]TheActprovides I that NRC can grant emergency access for a period.not to exceed I180 days per request', and allows that only one, 180-day extension-z.
of emergency access can be granted per request.
The Act provides that requests for-emergency acce's's shall contain all information and certifications ~that NRC requires to makes its determinations. The Act also provides that only-NRC
~
c d' grant emergency access. The Agreements States are
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specifically precluded from making ~ emergency access decisions.
The legislative history for th'e Act emphasizes Chj.[rv 1
4p4Teftt that emergency access be used only ia very limited and rare circumstances and that it was not intended to be used to l circumvent other. provisions of the Act. Congress expected that responsible action from the generators and the States / Compacts should resolve most problems arising from denid1 of access decisions, thus precluding the necessity for invoJving1h d (h/p Fedeca Wsector $a. granting emergency access. Section 6 was included to provide a mechanism for Federal involvement as a
'C vehicle of last resort.
The Act d not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC staff recommended a rule to establish the procedures and criteria that'will be used j in making the required emergency. access determinations to add predictability to the decision-making process, and help to
- . ensure that the NRC will be able to make decisions on emergency L access requests in the time required by the Act.
In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act 8 4 07/26/88 f 10 CFR 62 CP t
'The Commissioners 4 anC with its understanding'the intent expressed by Congress reg
- ding decision made pursuant to Section 6. Staff's objective
~
througt.Out has been to' establish requirements for granting emergency access that are stringent enough to discourage the
[ unsited. States and regions from viewing emergency access as an-alternative to diligent pursuit of their own disposal capability, Q . and yet flexible enough to allow NRC to respond appropriately in
. \ situations where emergency access is genuinely needed to protect q the public health and safety or the common defense and security.
c' On January 15, 1987, NRC issued a Notice of Intent to develop
. . i this rule (Vol. 52, Federal Register, No. 10, p. 1634), and on December 15, 1987, NRC issued the proposed rule. The formal comment period expired February 12, 1988. Twenty-one commentors responded. Copies of the comment letters are included as an i appendix to the staff analysis of cos.ments in. Enclosure C.
Responses were received from the governments of six states (Maine, Arkansas, Illinois, New York, Kentucky, and l Pennsylvania), two from Low-Level Wast Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and members of environmental groups, two from industry, and one from a nuclear information service.
-:p i I
Discussion: Most of ,the commentors raised issues that had been considered by staff 3e developing the proposed rule. bF egg, c r^nr4 % e r_ta_the comments ^" " + % addition f clarifications to the final rule. The critical compionents of 1 the proposed rule - the procedures and the criteria to be used
,/ in making emergency access decisions, are essentially unchanged f in the final. The most significant comments are discussed below:
l 1
"' O In general, commentors appeared to support NRC's issuance of a l
)
l rule for its'emergenc acces decisions and indicated changes .
k that would improve r m their perspective.. One commentor 07/26/88 10 CFR 62 CP '
The Commissioners 5 expressed opposition to the issuance of the rule itself-c2LA ,
en r 'n . . . J . i n' ' 5 : t- + " " ' ^ ^ ^ " ' d " 't'~. -. because k b 4Mdtc granting emergency , access would infringe on the S ates' right to SWa Sech C, tk d. c.t' manage thei r LLW. t NRC was kJ :t ' ;:'.y mandated' make emergencyaccessdetermination9whentheStatesarenot otherwise able to manage their LLWp 1 mom .ulc . o- , g:t =
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NRC does not consider that
+1 ;,;;r g ,q : ~ ~ e r"h 4"t M :r= with states' rights.
By far the most common concern expressed by commenters was that NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsection 3(a)(1) of the Act, the states are mandated to provide disposal only for commercially generated LLW classified as A, B, and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a.
result of decommissioning of vessels, or as a result of any research, developm1nt, testing, or production of atomic weapons."
Commentors stated that Federal wastes, particularly those gen'erated by DOE and D0D, or wastes that are classified as greater-than-Class-C, should not be allowed to receive emergency access disposal.
Indevelopingtheproposedrule,NRCstaffassumedthatftg1 g be clear that.&hg.,, limitations established by the Actg for routine LLW disposal would also apply to LLW under consideration by NRC for emergency access disposal. However, no sta,tement was made O
to this effect in M_M ap A-M. . _M_ , th- _.
proposed r le. ,Cl rif W
. .. . _ . mbn ~,
hkb accessdisposalhasbeenaddedtothehinalrule..- emergency Most of the states and Regional Compact Commissions who l submitted comments indicated that the final rule should include 1
L
a l
The Commissioners 6 provisionsbywhichNRCwouldacttoensurethatStatesLLW !
(ompactsdesignated'toreceive m e ya ess y tes will receive reciprocal access Michtheyareeditled er the Act.
Under Section 6(f),- the' Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any l subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the 1
emergency access waste shall designate, for reciprocal access'. , ;
' "an equal' volume of Low-level radioactive waste having similar )
characteristics to that provided emergency access."
I 'The issue of reciprocal access is of particular concern to those States / Regional Compacts who have, or plan to have, operating fLLWdisposalfacilities. They are concerned that NRC has the
'"dkpowertooverridetheirdenialofaccessdecisionsandforce e 4
them to accept waste '- .. l under the eme provision. The guarantee of reciprocal access ysg g the g I
M do aprA T
,pr,ospect ofy m ; :a emergency access waste,mene p?:.til m l s#
/ Commentors indicated that NRC should require a formal '
[ acknowledgement of reciprocal access before making an emergency M
C d' W,
g ey? access determination. NRC staff considered addressing-gyt recriproca baccess during the development of the proposed rule.
However, given the agency's mandate to protect the public health and safety on the common defense and security, staff believed it I would be inappropriate for NRC to assume-the role of enforcing l- reciprocal access arrangement. If the NRC were to require a l
I 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 ar.d safety could be delayed or compromised.
[ _ _ - - - _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ - ~
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i The' Commissioners 7 .l i
The NRC staff reconsidered its position on reciprocal access in 1 light of the. comments received on .the proposed rule, but made no i changes to the final rule. j i
Three of.the commentors represent _ing' States or' Compact Commissions /raisedtheissueofCompactCommissionapproval-of
- NRC's emergency ac' cess decisions. They indicated that the NRC
]
had been remiss in not including a provision in.the proposed l rule which would require-the NRC to seek approval for its l decision to grant emergency access'from.the' Compact Commission of the region in which the designated site is located.
j l Under Section 6(g) of the Act, "any grant o'f access under this j' Section shall be submitted to the Compact Commission for the
/
region in which the designated disposal facility is located for such approvai as may be required under the terms of its compact." -This pnov-isi'on- hasmproven -to-be . controversial- becausir
/ it n.to-several erpretations. The intrepretation eee+
g ' 4r"y "e ad b'y tates i Congress intended for the
- ) Compact Commission of the designated site to have the final say
- y. . ,
ko c, I regarding the acceptance of emergency access wastes. They
! believe Congress intended W + ' re:09 4 3 rnmpsr+ rnmmice4cn 43(V((
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n e c an+ 4 ="; L Cvow. m '+ H ed the compact #-to have the
' power to veto the NRC's decision. The commentors wanted the NRC l to acknowedge this interpretation of Section 6(g) by j incorporating a veto / approval provision in the final rule.
1 V
U Yf i NRC staff b iev'es that dis pd jv ' detMmin ibn fynotky(pproval ah \n. @Staffemergency-acce,ss believe that the
, legislative history"for 6(g) is quite clear on this point. The Y' basic purpose of the Section 6 emergency access provision is to J.- ensure that sites which would normally be closed under the Act
,h g h will be available in emergency situations. A Compact Commission
l L_____________ - _ . - ._
I
' , m,.
i The-Commissioners 8 veto of the NRC's decision would frustrate the purpose o.f'the emergency access provision and would be generally contrary to the legislative framework established in the Act. AsLemphasized in-the House' Committee on Interior and Insular Affairs Report on
the Act,. ratification of a. Compact should be conditioned.on the ,
j I
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, i that Compact would be null and void." [H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1 This was explained in-the ,S up W %
_-...~..v.- wua T M,_ at'2997
_ rs for- the(1985).]
proposed rule and has i j
been reiterated and clarified in'the final.
~
I A number of the commentors expresse'd concern that LLW granted emergency access to disposal by th0 NRC should be required to
]
meet any conditions of the site designated, as well as any fees, j
). or taxes prescribed by that facility.. Other commentors stated I that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. The commentors expressed a desire to have NRC consider l
those items in making its site designation decisions for emergency access.
To the NRC Staff it is quite clear from the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the ' disposal facility desginated to receive the wastes by the NRC.
i L Further, the staff. believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the Act as specifically applicable to emergency access situations. However, NRC staff does not agree th.t such information can or should be used by 07/26/88- 10 CFR 62 CP
$missioners 9 i
NRC in making its' site' designation decision. For clarification,.
a new section has been added to g f g rule which reaffirms NRC's understanding ngressionalpitrt st tr 5:n g !
conditions or terms normally apply to LLW disposal7 apply (sur to emergency accessdispo M .
Several of the commentors suggested that the final' rule should I contain conditions under which emergency access could be rky.
terminated. Staff agree and have added a new hbpart D for this l
f purpose. The new subpart establishes that the operator of the 1 ,
,o I 1
,, d. , receiving site may refuse emergency access waste if it does'not T I f k
- meet the conditions established by NRC in Part ] g that the h NRC can terminate 7 ifkdetermindt"isnolonger /
P s 9 ;
needed. ;
Several comme'ntors stated that the 10 day public comment period l provided in the rule on requests for emergency access was l inadequate. 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. 1 M ter consideration of the comments, staff recommends the final ' l ruleproposedforCommissionapprovalinEnclosureh.Thereare no major differences between the proposed and final rules but m.,C54 several clarifying changes are included. They-o w Y* *1>*n &F M**
(1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the emergency access rule applies only to the LLW's for which the States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying language to 62.22 stating that the Commission will make notification of the final determination in writing to the appropriate Compact l8 10 CFR 62 CP l
The Commissioners 10 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 Informatio'n titled " Terms and. conditions for Emergency Access Disposal."
(4) The addition of clarifying Subpart D, titled " Compliance with Conditions of Emergency Access; Termination of-Emergency Access."
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The' Commissioners 15
- c. That the proposed rule' included, a. preliminary finding that no. significant environmental impacts.would result from the rulemaking. The. !
environmental assessment forming the basis for.this determination is contained in Enclosure D, ." Regulatory Analysis." The_staffthas-not; epayed additiona7 environmental analyses and' continues' to believe that '
add $ioNa e'iirdnme$
n al rev{hwdould notie p oduck.ive opbe'n .ci a~
'd. That compliance with CRGR charter requirements i is not applicable for this 1 1
rulemaking action'.as. the rulemaking applies: only to radioactive waste-management, and not.a generic requirement to be imposed by the'NRC on one.
. or more classes .of power reactors.
- e. That the Subcommittee on Nuclear Regulation of.the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the ,
i Environment of the House of Insular Affairs Committee, the Subcommittee'on i
Energy Conservation and Power of the House Energy and Commerce Committee, and the Subcommittee on Environment, Energy, and Natural Resources of the. l House Committee on Government Operations will be informed of the .
rulemaking by letter such as Enclosure D e
- f. That a public announcement, Enclosure E, will be issued by.the Office of Public Affairs when the final rulemaking is filed with the Office of Federal -!
Register. ;
- g. That a regulatory analysis, Enclosure ( has been prepared for this !
rulemaking.
i
- h. OGC has reviewed the proposed rulemaking package and has_ no legal objections.
I. .
f: 4 i
The Commissioners 16 Scheduling:
1 Few, if any emergency access requests are anticipated. However, a request could be made at any time. NRC should have the rule in place.at the time a request for emergency access may be made. Consistent with the next major trigger date for denial
~of access in the Act the final rule should be issued in the fall of 1988.
(M G I,19 99)
Victor Stello, Jr.
Executive Director for Operations I Enclo: ares:
1 A. Draft Federal Register Notice l B. Public Comment Analysis with Comment Letters C. Regulatory Analysis D. Draft Congressional Letter .
E. Public Announcement 1
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For: The Commissioners From: Victor Stello, . Jr.
Executive Director for.0perations
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Subject:
FINAL RULE-10'CFR PART.62,' " CRITERIA AND PROCEDURES'FOR GRANTING
> EMERGENCY ACCESS T0 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 accessLshould be granted to-operating, non-Federal, low-level radioactive' disposal' facilities.
under Section 6 of the' Low-Level Radioactive ~ Waste Policy Amend--
ments Act of 1985.
- Su_mmary: Section 6- of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, January 15,1986), (the . Act) provides that'NRC can grant emergency access to non-Federal or regional LLW disposal facilities if there is a serious and-immediate threat to~the public health and safety or the common defense and security that cannot be mitigated by available-alternatives.
The enclosed final rule was developed to implement NRC's respon-sibilities pursuant to Section 6. The rule sets out strict requirements for granting emergency access, places the burden of demonstrating the need for emergency-access on the party requesting emergency access and should serve to encourage genera-tors to seek other means for resolving the problems created by potential lack of access to LLW disposal facilities.
The first i request for emergency access could be made as soon as January 1, i 1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive ]-
a request for emergency access. If NRC does get a reqJest, it ;
will have 45 days to responi Staff estimates 180 staft' days '
will be required to process such requests.
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CONTACT:
Janet Lambert, RES 492-3857 V . _ - - -_-_____- ____ - - -
/ Tiie . Commissioners 2:
e
Background:
The Act directs the States-to develop their own LLW disposal facilities, or to form Compacts andlcooperatoin the developruent of regional'LLW-disposal.. facilities, so that the.'new facilities-will be available by. January l1, 1993. If unsited States or Compact regions' fail to meet key milestones'in the Act, the States and Compact Commissions with the operating LLW~ disposal facilities are authorized-to demand additional fees for wastes :
accepted for disposal, and ultimately to deny the LLW generators in the . delinquent State or Compact region furtMe access to their facilities. -
~Section 6 of the Act provides that the NRC can grant a generator
" emergency access" to non-Federal or regiora1 commercial LLW
, disposa'l facilities if access to those facilities has been
' denied and that access is necessary.in order.to' eliminate an immediate and serious threat to the public health and safety or the common defense and security. Tha 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 'raste. NRC
'must make both determinations' prior to granting emergency access.
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, 180-day extension of emergencv access can'be granted per. request, i The Act provides NRC with 45 days from the time a request is l l received to determine whether emergency tecess will be granted, and if so, to designate the receiving. facility.
The Act provid:s that requests for emergen:y access shall contain all information and certifications that NRC requires to makes its determinations. The Act also provides that only NRC can grant emergency access. The Agreements States are specifically pre-cluded from making-emergency access decisions.
The legislative history for the Act emphasizes that emergency access be used only in very limited and rare circumstances and that it was not intended to be used to circumvent other provi-sions of the Act. Congress expected that responsible action from the generators and the States / Compacts should resolve most pro-blems arising from denial of access decisions, thus precluding the necessity for involvin'g the Federal sector in granting emer-gency access. Section. 6 was included to provide a mechanism for Federal involv.ement as a vehicle of last resort.
l In developing the emergency access rule, the staff nas tried to be consistent both with the actual text of Section 6 of the Act and with its understanding of the intent expressed by Congress regarding decisions made pursuant to Section 6. Staff's objec-tive throughout has been to establish requirements for granting
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l ueg sR j emergency access that are stringent enough to discourage the !
unsited States and regions from viewing emergency access as an j alternative to diligent pursuit of their own disposal capability, l and yet flexible enough to allow NRC to respond appropriately in i situations where emergency access is genuinely needed to protect I the public health and safety or the common defense and security.
l' The Act did not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC staff recommended a .
rule to establish the procedures and criteria that will be used in making the required emergency access determinations to add predictability to the decision-making process, and help to ensure ,
that the NRC will be able to make decisions on emergency access !
requests in the time required by the Act. l On January 15, 1987, NRC issued a Notice of Intent to develop ,
this rule (Vol. 52, Federal Register, No. 10, p. 1 V), and on, l
December 15, 19B7mNRC,. issued the proposed rule. he forinal /" . .- i comment periodgexprred tebruary12,1988. Twenty-one commenters responded. Cohies of the commenu letters are included as an --J' ,
appendix to the staff analysis of comments in Enclosure C. ,
Responses were received'from the governments of six states (Maine, Arkansas, Illinois, New Yor.k, Kentucky, and Pennsylvania), two from Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and members of environmental groups, two f rom indust'ry, and one from a uclear information v g g Discussion:M _
number of commenters raised issues ~that had been considered by Pr*
staff while developing the proposed rule. For the most part, g a
bh esponded to the comments by adding clarifying language and some newftext to the final rule. The critical components of 44 k.o.
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/ the proposed rule - the procedures and the criteria to be used in q making emergency access decision , are essentially unchanged in The most significant comments are discussed below"
% ct-l the final. /As .
OS discaned W In general, commenters appeared to support NRC's issuance of a f2p 4 '
rule for its emergency access decisions and indicated changes that would improve the final rule from their perspective. One i commenter expressed opposition to the issuance of the rule l itself because he believed that granting emergency access would
_ infringe on the States' right to manage their LLWgS+nce-NRC was-sandatee ey 3Wun n n' ine-act to-maAe emergehty a det4minatintennly when the'T>tates_ are no _ therw' se 3'geyss h/ to mp[nage +gir--.1,d.Wr-NR es-n tr-conside atJa_r.ul . -4m lement (ha W ndate jhoy ntenter -.wi-tt __atesi--r{ghtsj (J h / By far ti.e most common concern expressed by mme ers was that f i NRC's grants of emergency access would force operating non-
, 7g federal or regional LLW disposal facilities to accept LLW they
,/ are clearly not responsible for under the Act. Under Subsec-v tion 3(a)(1) of the Act, e states are mandated to provide
i
.J Document Name -i 10 CFR 62 APP I l l
Requestor's ID:
FINAN Author's Name:
LAMBERT J J Document Comments:
SPE 7/28/88 - Return this sheet when submitting corrections ;
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Major PNvisionkof JfbropoNd'and' Final Regulainns M
The proposed eM "=-- rule / addresspeach of the determinations that NRC must: -e make and describdhow they wijl be made. %f-g=^ ^='iNd M' y [ km -n ^? y " :- g n ^' j^2 ' ^k e'e; -
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Se order to make the determination that there is .a serious and immediate. threat %
Tothe.publichealthandsafety,theCommissionwillconsiderwhetherthecir- y cumstances described lead it to conclude that there is no longer reasonable *
. assurance that the affected generator or generators can continue to comply.with NRC's regulations'in 10 CFR Part 20, and as a result, that the public health and safety will be endangt'od. In making this determination the NRC will con-
. sider the significance of the situation described in the context of the require-ments issued by NRC in the facility license, the technical specifications, and any applicable regulations and orders of the Commission. -
In' making the determination that there is a serious and immediate threat to the common defense and security, the rule provides that NRC staff will consider whether the activity generating the LLW is necessary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. The proposed 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 (D00) in a " Statement of support." AStatementoffupportfromtheappropriate agency will be required as part of any request for emergency access made in total or in significant part on the basis of a threat posed to the common defense and security.
If the NRC makes either of the above determinations in the affirmative, NRC will.then consider whether any alternatives to emergency access are available 1
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- to the applicant. These include, but are not limited to: (1) storage of LLW at the site of generation; (2) storage in a licensed storage facility; (3) obtaining . access to a disposal facility by voluntary agreement; (4) purchas-
'ing' disposal capacity; (5) reqcesting a license modification from NRC;
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(6) requesting disposal-at a Federal disposal. facility (appropriate for Federal' or defense related generators of LLW only);,(7) reducing the volume of the
. waste; or (8) ceasing the activities that generate the waste. The NRC will
. consider whether the person requesting emergency access has considered all fac-tors in their. evaluation of alternatives- including state-of-the-art technology .
and the impacts of the alternatives on the public health and safety. The NRC .]
will consider whether the requestor has demonstrated that the implementation of l an alternative is unreasonable because of adverse effects, because ~it is tech-I nically or economically beyond the capability of the requestor, because it would result in the cessation or curtailment of essential medical services, or cannot be. implemented in a timely manner. If any alternative is. determined by )
NRC to be reasonable, then the request for emergency access will be' denied. l l If'NRC determines that emergency access is warranted, NRC will then determine I which operating non-Federal LLW disposal facility should receive the LLW. A o
facility would be excluded from consideration if (1) the LLW does not meet'the -l 1
license criteria for the site; (2) the disposal facility meets or exceeds its
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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
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i l requiring disposal exceeds 20 percent of the total volume of the LLW accepted I
for disposal at the site in the. previous calendar year. If the designation cannot be made on this basis alone, the Commission will consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, and any other information the Commission deems necessary. I L- h, nui &ai n em the legMatimT wtrai auticir NRC h ld't- if no e is dee itabl nd w req t co on his entia em.
-In making the determination regarding a request for an e'xtension of emergency access (Section 6(e) of the Act), the NRC staff will consider whether the circumstances still warrant emergency access and whether the person making the 2
request has been diligent during the period of the initial grant to eliminate the need for emergency access. )
i in making a determination that temporary emergency access is necessary (Sec- I 1
tion 6(d) of the Act), the staff will have to make the determination that there j is a serious and immediate threat to the public health and safety or the common-defense and security as otherwise required for emergency access, but would not have to consider whether mitigating alternatives exist. ;
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- The' Commissioners 4'- -
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' disposal only for commercially generated LLW classified as A,' B, 3
- and C, and for "LLW generated by the Federal government except 1 that which is. owned or. generated by 00E, by the Navy,as.a result {
of decommissi.oning.of vessels, or,as a result'of any research, )
development, testing,-or production of atomic weapons." Comenters ;
stated that Federal wastes, particularly:those' generated by 00E - i and D0D; or wastes that are classified as greater-than Class-C, should not be allowed to receive emergency access' disposal. i l
In developing the proposed rule, NRC staff assumed that 'it would =
i bc clear that limitations' established by the;Act on~the.LLW eligible :j for routine LLW disposal would also apply to.LLW under consideration i by fiAC for emergency access disposal. However, no statement was made to this effect in the proposed rule. Clarifying language ,
explaining what LLW will be considered eligible for emergency l access disposal'has been added to the final rule.
l f the states and Regional Compact Commissions who su comments indicated that the finalirule should include provisions by which NRC would act.to ensure that States /LLW Compacts designated ~!
to receive emergency access wastes will rece'.ve reciprocal access i disposal from the person granted emergency accessL, which they are entitled to under the Act. Conmenters indicated that NRC a i should require a formal acknowledgement of reciprocal access L before making an emergency access determination. The staff does not agree with this position.
Under. Section 6(f), the Regional Compact or. State receiving the j emergency access waste'is entitled to reciprocal access at any 1 subsequent facility that serves the Compact region or, State in
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i L which the emergency access waste was generated. It further l
[ provides that the Regional Compact or State that receives'the emergency access waste shall designate, for reciprocal access, l l- y "an equal volume of low-level radioactive waste having similar i
' characteristics to that provided emergency access." ' ;
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NRC staff considered including reciprocal access during the development of the proposed rule. However, as staff reads
/ Section 6(f), arranging for reciprocal access -is an obligation- '
- g. between States / Compacts and thus is'outside the scope of NRC's responsibility to implement Section'6.' Further, given the l p agency's mandate to protect the public health and safety on the L.
7)@y \ common defense and security, staff believed it would be inappro-priate for NRC to assume the role of enforcing reciprocal. access l
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((-vy/// arrangements. If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a
[k j request for emergency access, under certain circumstances, actions necessary to protect the public health and safety could_be delayed
.or compromised.
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m The' Commissioners .5 1
[1 g[f1The NRC staf f reconsidered its position on reciprocal access :in q
light of the comments received on the. proposed rule, but made.no
' h' changes'to,the final rule.
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' N/lbree of the' comnienters representing States or Empact Commissions raised the. issue of Compact Commission approval of NRC's emergency-5 access decisions. They indicated that the.NRC had been _ remiss ~ in not including a provision'in the proposed rule which would require
'the NRC to' seek approval for its-decision to grant emergency
' access from the Compact Commission of,the region in.which the designated site is located.
l L Under Section 6(g) of the Act, "any grant of access under this 7f . 'Section shall be submitted to the Compact Commission for the.
d region in which the designated disposal facility is located for y\ ' @ such approval as may'be required under the terms of its compact."
0 The interpretation preferred by some of the States.or Compacts h \ is that Congress intended.for the Compact Commission of the
, designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended the y
f receiving Compact Commission to have thi power to veto NRC's-
@ oecision. The commenters wanted the NRC to acknowledge this.
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interpretation of Section 6(g) by incorpor-atitig a veto / approval provision in the final rule.
3 ( The interpretation of Section 6(g) that is most consistent with '
Congressional intent behind emergency access is that 6(g) does
, not provide for State or Compact Commission veto of NRC's deci-l . sion. Staff believe that the legislative: history for. 6(g) is .
I quite clear on this point. The basic purpose. of the Section.6 i emergency access provision is to ensure that oites which would normally be closed under the Act will be available in emergency situations. A Compct Commission veto of the NRC's decision '
3 wo,uld frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework l established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification 4 of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act. "If the Compact refuses l to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void." [H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).] This was explained in the Supplementary Infor-mation fnr the proposed rule and has been' reiterated and clarified in the final.
- p l A number of the commenters expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, L or taxes prescribed by that facility. Other commenters stated that LLWs granted emergency access disposal should not have to-l
The' Commissioners 6 pay any special fees, beyond those specifically mandated by the Act. The commenters expressed a desire to have NRC consider those items in making its site designation decisions for emer-gency access.
To the NRC Staff it is quite clear from the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and replations of the 'isposal facility designated to receive the wastes by the NRC. Further,_the staff believes that Congress intended for generators granted emergency .
access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the Act as specifically applicable to emergency access situations. -
However, N"C staff does not agree that such information can or j should be used by NRC in making its site designation decision.
For clarification, a new section has t een added to the final rule which reaffirms NRC's understanding of Congressional intent that conditions or. tern . .ich would normally apply to LLW disposal should also apply . emergency access disposal.
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,Several of the commenters suggested that the final rule should '
contain conditions under which emergency access could be termi-nated. Staff agree and have added a new Subpart D for this pur-
- pose. The new subpart establishes that the NRC may terminate j emergency access if the requestor or his waste do not meet the conditions established by NRC in Part 62, and that the NRC can terminate emergency access if a determination is made that it is
- nolongerneeded.
Several commenters stated that the 10 day public comment period $
provided in the rule on requests for emergency access was inade-quate. Since NRC is not required to seek public comments on requests, and since NRC has only 45 days to respond when a request is received, no change was made to' the final rule.
1 After consideration of the comments, staff recommends the final l rule proposed for Commission approval in Enclosure B. There are !
no major differences between the proposed and final rules but several clarifying changes are included. The most significant j are: i (1) Addition of a clarifying sentence to the " Purpose and Scope" !
of the final rule. The sentence indicates that the emer-l gency access rule applies only to the LLW's for which the !
States have disposal responsibility pursuant to the Act. j (2) Addition of clarifying language to 62.22 stating that tte l Commission will make notification of the final determination j
, in writing to the appropriate Compact Commission *for such approval as is specified as necessary in Section 6(g) of the Act." l
_ _ _ _ - _ - _ _ _ l
The Commissioners 7 (3) Addition of a clarifying Section VIII to the Supplementary Information titled " Terms and conditions for Emergency Access Disposal."
(4) The addition of clarifying Subpart D, titlei " Compliance with Conditions of Emergency Access; Terminatio i of Emer-gency Access."
Resource Requirements Consistent with the legislative history for Section 6, NRC staff expects that emergency access will be requested only under rare and unusual circumstances through 1993 and beyond. Staff esti-mate it will take approximately 180 staff days (six staff working-30 days out of the 45 days allowed in the Act) to complete the necessary review.
Recommendation: That the Commission:
(1) Approve for publication in the Federal Register the final new rule 10 CFR Part 62 enclosed here (Enclosure'B) wt'ch would establish procedures and criteria for granting requests for emergency access to low-level waste disposal sites.
(2) In order to satisfy requirements of the Regulatory Flexibil-ity Act (5 U.S.C. 605(b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclo-sure B) under the Regulatory Flexibility Certification heading.
(3) Note:
- a. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it, as required by the Regulatory Flexibility Act,
- b. That this final rule contains modifications to informa-tion collection requirements subject to the require-ments of the Paperwork Reduction Act of 1980 (44 U.S.C.
3503 et seq.), that Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid.
- c. That the proposed rule included a preliminary finding that no significant environmental impacts would result from the rulemaking. The environmental assessment
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'The Commissioners 8 I forming the basis for this determination is contained in Enclosure D,' " Regulatory Analysis."
- d. That ccmpliance with CRGR charter requirements is not applicable for this rulemaking action as the rulemaking applies only to radioactive waste nuanagement, aad not a generic requirement to be imposed by the NRC on one or more classes of power reactors. ;
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- e. That.the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and Power of the House Energy and.
Commerce Committee, and the Subcommittee on Environ- 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. j
- f. That a aublic announcement, Enclosure.E, will be issued by the Office of Public Affairs when the final rule- )
making is filed with the Office of Federal Register. 1
- g. That a regulatory analysis, Enclosure C, has been pre-pared for this rulemaking.
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- h. OGC has reviewed the proposed rulemaking package and has no legal objections.
Scheduling: Few, if any emergency access reqst ts are anticipated. However, a request could be made at any ti..a. NRC should have.the rule in place at the time a request for emergency access may be made.
Consistent with the next major trigger date for denial of access in the Act, which is January 1,1989, the final rule should be issued in the fall of 1988.
Victor Stello, Jr.
Executive Director for Operations
Enclosures:
A. _ Draft Federal Register Notice B. Public Comment Analysis with Comment Letters C. Regulatory Analysis D. ~ Draft Congressional Letter E. Public Announcement
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k: .h The Commissioners ,
f8 forming the basis for this determination is' contained'
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in Enclosure 0,'" Regulatory Analysis.":
- d. That compliance with CRGR ' charter-requirements. is =not-
, applicable.for-this rulemaking action as.the rulemaking applies only to. radioactive waste management, and not.a=
generic. requirement to'be imposed'by the.NRC on one or more classes of powce reactors.'
- e. That the Subcommittee'on Nuclear-Regulation of the Senate Committee on Environment ~and Public Works, the Subcommittee.on-Energy and the Environment of the Hous~e-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-l Committee.ca Government Operations will be informed of-l the rulemaking by letter such as E.nclosure D.
- f. .That=a public announcement, EnclosurocE, will be issued
- by the Of fice of Public Af fairs when the final rule-making is-filed with the Office'of federal Register.
- g. That a regulatory analysis,
Enclosure:
C, has been pre-pared for this rulemaking.
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- h. OGC has reviewed the proposed rulemaking package and has no legal objections.
Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any tim'. e NRC should have the rule. a in~ place at the time a request for emergency access may.be made. j Consistent with the next major trigger date for denial of access '
L 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:
j A. Draft Federal Register Notice '
B. Public Comment Analysis with Comment Letters ,
C. Regulatory Analysis -)
L D. Draft Congressional Letter '
E. Publi,c Announcement I, OFC: NMSS : ARM :GPA :NRR :0GC :EDO L NAME:HThompson :WMcDonald :HDenton :TMurley :WParler :VStello DATE:8/ /88 : 8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88 0FC: RES:WMB:DE :RES:WMB:DE :RES:WMB:DE : DE: RES :DE:RES :RES :RES .
NAMEkdLambert:jk:obrt11 :wkalderberg :R30snak :GArlotto :TSpeis:ESBeckjord
...__ .........._____.. _____.._____.....___sK._ .__ E ... ____________.._____
- DATE: 8/1/88 :8/ / 88 :8/ /88 :8/ /88-:8/ /88 :8/ /88:8/ /88 0FFICIAL RECORD COPY.
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The Commissioners 8 forming the basis for this determination is contained in Enclosure D, " Regulatory Analy:;is."
- d. That compliance with CRGR charter requirements is not i applicable for this rulemaking action as the rulemaking applies only to radioactive waste management, and not a generic requirement to be imposed by the NRC on one or ;
more classes of power reactors. )
- e. That the Subcommittee on Nuciear Regulation of the 3 enate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and Power of the House Energy and l Commerce Committee, and the Subcommittee on Environ- i ment, Energy, and Natural Resources of the House l Committee on Government Operations will be informed of !
the rulemaking by letter such cs Enclosure D. j
- f. That a public announcement, Encli ure E, will be issued i by the Office of Public Affairs wh.' the final rule- I making is filed with the Office of Federal Register. !
1
- g. That a regulatory analysis, Enclosure C, has been pre- {
pared for this rulemaking. a
- h. 0GC has reviewed the proposed rulemaking package and l l j l has no legal objections. j i
GPA, and ARM.
i Scheduling: Few, if any emergency access requests are anticipated. However, a request could be made at any time. NRC should have the rule in place at the time a request for emergency access may be made.
l 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:
1 A. Draft Federal Register Notice l B. Public Comment Analysis with Comment Letters l C. Regulatory Analysis !
D. Draft Congressional Letter !
l E. Publi.c Announcement l t
l l l OFC: NMSS : ARM :GPA :NRR :0GC :EDD
.......________ .......__________..__ ___...________.. .______________________ {
NAME:HThompson :WMcDonald :HDenton :TM oley :WParler :V9tello i l ______. ....___._______..________...__.....__________ ____...___..____________ )
DATE:8/ /88 :8/ / 88
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- 8/ /88 :8/ /88 :8/ /88 :8/ /88 !
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0FC: RES:WMBiDE :RES:WMB:DE :RES:WMB:DE : DE: RES :DE: RES :RES :RES l l
E . .*$II[bif_[ !!)______i }I$[I$[9ikI*..[bSbbS.1!!E!!!!b!!!!.dS[
DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88:8/ /38 l' OFFICIAL RECORD COPY I
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MEMORANDUM FOR:. Victor Stello, Jr.
Executive Director for Operations FROM: Eric S. Beckjord,, Director Office of Nuclear. Regulatory Research
SUBJECT:
FINAL NEW RULE,10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES" Enclosed for your approval is the rulemaking package for the final new Part 62-
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to~ Title 10 of the Code of Federal Regulations. The rule will establish criteria and procedures to enable NRC to determine whether emergency access-l- should e ranted to operating, non-Federal, or regional low-level radioactive 1 waste isposal facilities under Section 6 of ~ the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act).
I l In developing this rule, staff tried to be consistent with both the actual text of Section 6 of the Act and the Congressional intent expressed by Congress in the legislative his rule sets strict requirements for granting emergency 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 resolving the problems created by lack of access to LLW disposal i
facilities. '
$AA Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, staff recommended using rulemaking in order to minimize 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 in December 15, 1987 and the formal public comment' period ended on February 12, 1988. Twenty-one commentors responded. Resp'6nses were received fromthegovernmentsofsixstates,fromtwolow-levelwaste(pmpact i
07/26/88. 10 CFR 62 MEMO i
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -__ _ - - - - - CI
- - ~
');
V. Stello 2 commissions, ten from concerned citizens and members of environmental groups, two from industry and one from a nuclear information service.
h Most of the comments raised issues that had been considered by staff in developing the proposed rule. For the most part, the comments required clarifications or additions to the final rule, but the critical components--the procedures and the criteria to be used in making emergency access decisions, remain almost unchanged from the proposed rule to the final. The mos., significant comments are discussed below:
Over half of the commen expressed concern that NRC would use its emergency access power to force operating non-Federal or regional LLW disposal facilities to accept above-Class-C-wastes, federally generated wastes, particularly those from D00 and D6E, or other LLW for which the states do not-have disposal responsibilities under the Act. NRC staff had ascumed it was clear that emergency access wastes would be subject to any general limitations for LLW disposal established by the Act. A simple statement to that effect was added to the " Purpose and Scope" in the final rule and should accommodate their concerns.
AmajorareaofconcernformostofthejtatesandrespondingCompact Commissions relates to reciprocal access. They indicated that the final rule shouldincludeprovisionsbywhichtheNRCwouldensurethat$tatesmadeto accept emergency access wastes should receive the reciprocal access promised to them under Section 6(h) of the Act. Staff had considered addressing reciprocal access -~ "^ d^"^'^-^-t.44 the proposed rule but decided that making a formal promise of reciprocal access a condition for emergency access consideration could compromise our mandate to protect the public health and safety. Staff continues to believe such a brokering role for NRC is inappropriate. No change has been made to the final rule regarding reciprocal access.
Another major area of concern for the responding States and Compacts is whether the Compact Commission which is designated to receive emergency access 07/26/88 10 CFR 62 MEMO
__m..__ _ -.________ m
V. Stello 3 waste can veto or " disapprove" NRC's decision. Several of the States and Compa Cypjfsgsggevgganguage in Section 6(g) of the Act indicates theygtd % .J ; and they wanted the final rule to incorporate a provisionfacknowledgingthisvetoauthority. 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.
A number of other commentors were concerned that emergency access wastes would notbesubjecttothesamefees, regulations, conditions #pcquirementsas ,
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.
Based on the January 1,1989 milestone we have scheduled to issue the final rule in the fall of 1988. Immediate Commission attention to this issue is necessary to meet this schedule.
The final rule has been concurred in by NMSS, ARM, NRR, and SLITP. 0GC has reviewed the rule and has stated that it has no legal objections.
H gh L. Thompson ., vir %
fice of N ar Material Safety and guards S f G
Enclosure:
Gric y. ggdj hirac.feF- E As Stated i 7
off;uqt)vowelquiDy pl
- goda[
Stt.ff believe NRC should have this rule in place by the time a request for emergency access might be received - L h 4 g
t.im; none - e ely4ef,o m ucy r g g.,w % ctcoA L;,;3de3;hich ris the next date tnat~
access may be denied under the Act. ,
develop a siting plan for its LLW disposal facility.This would result from a State's failu 07/26/88 10 CFR 62 MEM0
)
[7590-01]
The Act provides that NRC can grant emergency access for a period not to exceed 180-days per request. To ensure that emergency access is not abused, the Act allows that only one extension of~ emergency access, not to exceed 180 days, is to be granted per reauest. An extension can be approved only if the LLW generator who was originally granted emer-gency access and the State in which the LLW was generated have diligently though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access.
The Act also provides that requests for emergency access shall contain all information and certifications that NRC requires to make its determination.
" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the Commission's discretion because of a serious and immediate threat to the public health and safety or.the common defense and security pending a Commission determination as to whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
Although the Act does not require NRC to develop a rule to carry out its Section 6 responsibilities, NRC is issuing this rule to establish the procedures and criteria that will be used in making the required determinationsforemergencyaccess.fSMceth^erequisitec'ditionthat}p/- d j
r mustle/ met in orde 6r a requestor to ftfe eligible for mergency access i d con deration is- at the requestor as already bee denied access t j d*
7 e LLW dispo a sites by the 5 tes or Compact withoperatingfsposal W., M
[ facilities implicit in any ecision to gra emergency access s the -(" ,
fact t such a decisio ill N rid he sited States' d/or Com cts' ex essed desi t acceptwas[fromthatparticularState L -, - .
e,p y
. V. l 5 /A l N Ni
. NW
g -
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[7590-01)
However, it is clear' from the legislative history of the Act that -
Section 6(g) should not be construed'as providing the Compact Commission with a veto-over the NRC's grant of emergency access. The b se 54 4 /
of the Section 6 emergenc access ovision'is to ensure that._.le; ... t
.Jiaf % clLA U A W d4bh S "W '
- 4 r ;11.7.L. S .,J anderg he Act will be kv & cr;;enry ailable situation 3 A' Compact Commission veto would frustrate the purpose of the !
l emergency access provision and would be generally contrary to the legis- !
lative framework established in the Act. As emphasized in the House l4 % Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord witu ,
8g the provisions of the Act. If the Compact refuses to provide, under its own authorities, emergency access under Section 6,. Congressional ratifica-N _
]
l f
tion of that Compact would be null and void. H.R. REP. No. 314, 99th _
Cong., 1st Sess., pt. 1, at 2997 (1985). l 1
1 1
1 IV. NRC Approach
, j In developing this rule, the NRC's approach was to:
- 1. assure that all of the principal provisions of Section 6 of the Act are addressed in the regulation. l
- 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.
- 2. assure that the procedures and criteria that are established in 10 CFR Part 62 can be' implemented within 45 days after NRC receives a -
request as specified in the Act.
- 4. establish procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consistent 8
17590-01).
l l
~
- among.the available operating, rion-Federal' or regional LLW disposal . facil-l
. i ti es.~ To the extent' practicable, NRC intends to rotate the designation of'the receiving site, and, for.the three currently operating facilities,- j to allocate emergency access dipoosal in proportionLto the volume.limita-l
(
tions established in the Act. In most cases, NRC,would expect that the
~
i designation of a single site will_ minimize handling of and exposure'to' -l the waste and best serve the interest of protecting the public health
. and safety. However, if the volume of waste requiring emergency access q l
disposal is-large, or if there are other unusual or extenuating circum-l- stances, NRC will evaluate the advantages and disadvantages of designat-l ing more than one site to receive waste from the same requestor.
]
In addition to the above, NRC will also consider how riuch waste has' i i
been designated for. emergency access disposal to each site to date (both i
for the year and overall), at.d whether the serious and immediate threat 'I posed could best be mitigated by designating one site or more to receive the waste.
In order for NRC to make the most equitable site designation deci-sions, the Agency will have to be well informed regarding the status of disposal capacity for each of the commercially operating waste disposal, facilities. NRCO%
intertMMOT
- t. r enge M I4Syh.ufeimatien to eb_eim-th-is
- en : can- '% )7 "4~m-M=bM. 4pf i h1.5 It should be noted that in setting out the site designation provisio *'N itM d t &.;
I-for Section 5, Congress assumed there would always be a site deemed appro- gj priate to receive the emergency. access waste. However, this may not be l-the case if all sites are eliminated by application of the limitations 9 9s provision set forth in the Act. It is not clear What options Congress A /.
u l
l 1 25 I _'______.______._
_ __m. _ _ . _ . . _ . . _ -
e ..
, 1
- P }%
- 4
[7590-01]'
)1 pyrophor.icity, and explosive potential); condition of current container; ]
1
. 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- ;
i film evaporators; extruders evaporators;'and Compactors); the suitability {
of volume reduction equipment to the circumstances (specific activity. )
considerations, actual volume reduction factors,_ generation of secondary wastes, equipment contamination, effluent releases, worker exposure, and j equipment availability); and the administrative controls which could be applied.
VIII. Terms and Conditions for Emergency Access Disposal LLW granted emergency access disposal pursuant'to this rule is ;
subject to the general requirements for LLW disposal as established in the Act, as well as those requirements which specifica1.ly address emer-gency access. This means that LLW granted emergency access shall be processed, treated and disposed of in a manner consistent with any other LLW which is eligible for disposal at operating non-federal or regional LLW disposal facilities under the Act. The disposal of waste by grant of emergency access should not preclude the implementation of any specific conditions, regulations, requirements, fees, surcharges or taxes prescribed by the disposal facility that may be in effect at the time of the Commission's determination to grant emergency access. How- f l
ever, while generators whose LLW is granted emergency access are subject -
to the special fees and surcharges specified in th'e Act for emergency J4cta. Th access disposal, they_.eMM1 Tot otherwise be subject to fees or require-ments that are not customarily charged or imposed for routine LLW disposal.
27
,h n R f.Y W s g[7590-01)._,. d ; f ) k u,
- }LLWNRCataOgislat-ivejy-man,/h3_a =
.L1 _2,X ,2 n,v R A Q. ,,g.
their . dated-to-ina ke-emergency-aca:es s -
i determinations when=the; States-are T1Ut titlisivise7 tile to manage r 'llieir LlW a tus,__NRC does-not-conside tEete-the-emergency __ accessawls y %
f ititerfereM th-statest-r-ights respecia11y ince ha rule-inentpocated I
much_oLthe_ language-in-Sectionc6;of- the:Act~
Clarification of LLW Eligible for Emergency Access By far the most common concern expressed by commentors was that i
emergency access'would be used to force operating non-Federal or regional f i LLW disposal facil.ities to accept LLW they are either clearly not i 1
responsible for under the Act, or have specifically chosen to exclude l from their facility. Fourteen of the commentors in almost half of the l )
comments expressed concern that emergency' access would be granted to l wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, the I commentors 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 f 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.
Throughout the development of Part 62, the NRC assumed that its ..
mandate was to grant emergency access only to LLW that would otherwise be
-N w_
% MM 1+ emwr P W%W 6sPO Wc ,2 eq; y y 29E os m s -s e ,a nr w w y ru m %
- s,vu_ a y [g ~
6o040' man a de 77&E Sr. gigs ygy - ~ gg ,cgg
- y a
. fgmjn,akow 4 - -
/ q,ceb.rs ResL
. .. m,a anne ==mn,m- s=wM M~/way i4MM.i
F =t..i. .
_. .p I
eligible for routine disposal a?, State or regional LLW' disposal facil- i ities according to the teras and conditions set out~in the Act. More h specifically, the NRC believes that'only those LLWs designated.by.Section- l
-3(a)(1) of the Act to be the disposal'responsibi_lity of the States could be eligible'for a' grant.of emergency access disposal.
Under Subsection 3(a)(1)(A),'th'eStates are mandated to provide
/ disposal for commercially generated LLW classified as A, B and C. They 1
are not required to' provide disposal for greater-than-Class-C wastes. j
-i Thus, the NRC would expect to deny any request for~ emergency _ access ]
l received for. greater-than-Class-C waste. The same is true for the Federally ~ generated-LLW which is excluded from State disposal respon-l sibility under Section 3(a)(1)(B). Under that subsection, the States are I 1
assigned the responsibility'for disposing of "LLW generated by the ]
' Federal, government except that which is owned or generated by DOE, by-the l I 1 Navy as a result of decommissioning of vessels, or as a result of_ any 1 research, development, testing, or production of any atomic weapons."
I NRC does not expect to grant emergency access to any was'tes that are l
- FAo A s(Aff PJTA ' bit.*19 0 exempted by Section 3(a)(1)(B). Howeverr--since-L1W-generated-by the EederALgovernment_which does-not-fal-1-into-these exclus16TiliTcategories k would-be-eligible-for routthe LLW disposal, those same Federally generated ~
LiWs would ulso-be-el-igible-for-emergency-access _ disposal as well. 1 The NRC has no intentions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act.
l However, the Commission did not state its. intentions in the proposed i rule. The Commission assumed that it would be clear that the limitations l established in the Act for routine LLW disposal would also apply for 1
1 1
30 u __ _
Fi <
u [7590-01].
- disposal resulting from a grant of emergency access. ~Apparently, that i was not-the case. To clarify the NRC's understanding and intent regarding the scope of wastes which.the NRC considers to be potentially eligible-for emergency access, the NRC'added a new provision, (c) to Section 62.1,
Purpose and Scope"' of the ' final rule.
The new' provision states that "The regulations in.this Part apply: only to' the LLW's which the States have disposal responsibility for pursuant to Section 3(a)(1) of the Act."
The NRC believes the addition of this clarification to the final rule l
should resolve any questions regarding'a particular LLW's eligibility for- ;
i emergency' access consideration as well as the Commission's'. intended I application of the. final rule.
@6M - !
. Reciprocal Access
_4 Several of the commentors. pointed out that he proposed. rule omitted j i
any reference to, or discussion of, Section' F) of the.Act, which addresses reciprocal access. .provides that the-Regional-Section 6) l Compact or State receiving the emergency access waste is entitled to i i
reciprocal access at any subsequent facility that serves the' Compact !
region or State in which the emergen::y access waste was generated. It
. further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to that provided emergency access."
Most of the States and Regional Compact Commissions who submitted 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 31
__. ______.m___._.__. __.__l___ _ . _ . _ .
'[ "90-01]
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 on emergency access. As NRC staff read Section 6(f), arranging for reciprocal acess is an obligation between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Thus,
-Staff believed it would be inappropriate for the NRC to assume the role of' enforcing reciprocal access arrangements.
The NRC reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule. The NRC's mandate under Section 6 is to grant requests for emergency access in order to protect the public health and safety and the 9
common defense and security from a serious and immediate threat. If the NRC were to require a formal promise of reciprocal access as a necessary condition for considering a request for emergency access, under certain circumstances, actions necessary to protect the public health and safety could be delayed or compromised. Thus, the NRC continues to believe that ari enforcement role regarding reciprocal access is inappropriate for the g E Agp c [ The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Commis-sion's basic mandate to make emergency access decisions. The NRC maintains that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts involved. The NRC l
believes that the promise of reciprocal access desired by the commentors l could bese /- ( 6A fring the 15 day period required by the Act under -
Section 6(g) for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation. j l
33
l
[7590-01]
i Compact Approval of Grants of Emergency Access Three of the commentors representing States or Compact Commissions indicated that' the NRC had been remiss .in not including a provision in l 1
the proposed rule which would require the NRC to seex approval for its
. i 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 J
approval from the Commission, in order to establish that Compact Commission approval would be necessary before the NRC's decision would be !
l considered final. The resolution of the issue raised by these comments is fundamental to the successful implementation of Congressional inhnt ,
for the emergency access provision of the Act.
The basis for these comments is language in Section 6(g) of the Act.
It < s.es that "any grant of access under this Section shall be submitted I 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 itr, compact." This7tovision has proven to be somewhat conV6 vers 4a3 beqause it is open to several interpretations.
'fh5 Mc v'G'0W,The in eYa N
</G t Rn -
[teqfently;-*(*4 6 odd-by th of
- p:ndng it:'as is that Congress intended far the Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes. They believe i
Congress intended that a receiving Compact Commission could reject the l NRC's emergency access determination - essentially that Congress intended the compacts to have the power to veto the NRC's decision. The com-mentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
34 l
e -
'[7590-01]
While the commentors were correct in noting that the proposed rule
~
i did not include a specific mechanism for implementing the_Section 6(g) !
l provision of the Amendments =Act, the NRC's position on this' issue was i p2==m- se % g 9- .,--
j addresced in +"^ ?::x:br-%fs%e Legi lative' History (the Supple- g .
mentary Information portion of the proposed-rutej b N N -"##d N O y 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 I any NRC grant of access "for such approval as may be. required under the terms of the Compact.3 However, Section 6(g) also requires that the Compact Commission "shall act to approve emergency access not later than 5/
W 15daysafterreceivingnotificationfromtheNRC."Jontrarytowhat ~$]hSbf f several of the commentors believe, the NRC believes that disapproval is Y
-)
e not really an option for the Regional Compact Commission in which the j aim-0 -5 4 designated emergency access disposal facility would.be located. This-
_ pfg f position is derised from the legislative history for both Section 6 of M'# the Act and the Omnibus Low-Level Radioactive Waste Interstate Compact g 'l 3 Act which was passed by Congress as pcrt of the Act. It is clear from
.Qv h k C
,A 9 the legislative history that the basic purpose of the Section 6 emergency jdo access provision is to ensure that sites which would normally be closed gff th under the Act will be available in emergency situations. A Compact ;
g tr/ b Commission veto of the NRC's decision would frustrate'the purpose of the l g emergency access provision and would be generally contrary to the i p gff5 legislative framework established in the Act. As emphasized in the House
^
g/( [ Committee on Interior and Insular Affairs Report on the Act, ratification -
g/ .
of a Compact should be conditioned on the Compact's acting in ae. cord with
[/ ( the provisions of the Act. If the Compact refuses to provide, under its !
/
own authorities, emergency access under Section 6, Congressional
$# 7/
Q& ,o CM.fzutCspa#wotaL & W gf 2.(2GP.t@.3tR q C q .,1st- Q'u., ph 9
( i of2%9b995)3
- 5$ #
f vac w sw. g ,g 1. n u a ~
s) osua. xioJ% %w kaw>imo a w of-2Ae 10Ec!s p cfs q q & a m n 4 A por; y & x cm as- O n uhad ad & A & s mss s m wn peg , a' >> -
ma centatsu a agg auc-> spmL k' W^ 6 { h log M ad- w & Le>~ & .
l
.. - j
[7590-01]-
serious and immediate threat to the public health and safety or the common defense'and security. For the most part,- the final rule is an administrative action which serves to' codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect.
l Therefore, the Commission has determined 'under the National Environ-l mental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part.51, that this rule is not a major Federal action significantly affecting the quality of'the human environment and, 1
therefore, an environmental impact statement is not required.
~
The environmental assessment forming the basis for this determination-is contained in the regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted below.
XII. Paperwork Reduction Act Statement The final rule adds information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management-and Budget i
Approval Number 3150-0143.
pd 0$tQ & VdM - R6 0%A XIII. Regulatory Analysis The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the alter-natives considered by the Commission. The analysis is available for inspection, copying for a fee, at the NRC Public Document F.oom, 1717 H Street NW., Washington, DC 20555. Single copies of the analysis may be 41
l V
,yp y ~,,
[p Public reporting burden for. this collection of informat. ion is estimated to \}
p p( ' . ,r
' / 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, I
i o pr'/ searching existing data sources, gathering and maintaining the data needed, and I
1
\ completing and reviewing the collection of information. Send comments regarding.,
I j this burden estimate or any other aspect of this collection of information,
/
including suggestions for reducing.this 'urden, o to the Records and Reports i
Management Branch, Division of Information Support Services, Office of l ;
! 1 Administration and Resources Management, U.S. Nuclear Regulatory Commission, l l
I l
Washington, DC 20555; and to the Office of Information and Regulatory Affairs, -
Office of Management and Budget, Washington, DC 20503. l
\\
)
i
\% ,- ~ ~ ~ - . . . . l l
'~ l l
1 1
i
[7590-01]
obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, Washington, DC 20555, telephone -(301) 492-3857.
XIV. Regulatory Flexibility Certification NRC is 'using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional.LLW disposal facilities under Section 6 of the-Act. Based upon the information avail-able and in accordance with the Regulatory Flexibility Act, 5 U.S.C.
l 605(b), the Commission certifies that this rule will'not have a signifi-cant economic impact upon a substantia 1' number of small entities.
The rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small entity. The generators of LLW are nuclear power plants, medical and academic facilities, industrial licen-sees, research and development facilities, radiopharmaceutical manufac-turers, fuel fabrication facilities and government licensees. Of these categories, all but the power plants, fuel fabrication facilities, and government licensees could potentially include small entities.
Although these categories may contain a " substantial number of small entities," the Commission does not believe there will be a significant 5* N economic impact to these generators because the Commission does not 3< l i anticipate that many generators will be affected by the proposed rule.
Ip
(,f ;q .
In order for the requirements of the rule to be imposed on a generator, f #' the generator h se must initiate the action by requesting a grant of emergency access from NRC. This would occur only because the generator fqM\h g has been denied access to LLW disposal q 2, I , gyp <
42
1 l.
[7590-01]
I The Commission is required by statute to make emergency access determinations. Since a grant of emergency access is intended to correct the problems LLW generators may encounter because of lack of access to LLW disposal, the provision of emergency access will benefit any genera-tor of LLW including small entities.
i Establishing criteria and procedures for requesting and granting l emergency access through a rule will also benefit small and large genera-1 tors. 10 CFR Part 62 provides guidance to the generator on what informa-tion will be required for making requests for emergency access ar4 provides an orderly framework for making those requests. Also, the rule will enable l l
I generators to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development. )
l The impact of the recordkeeping requirements on any affected licensees Whj b should be minimal since the information that must be provided if a generator requests emergency access would most likely be collected and assembled as part of any process to. decide a course of action if necessary access to l LLW disposal was not going to be available.
{ l l \
l XV. List of Subjects in 10 CFR Part 62 Administrative Practice and Procedure, Denial of Access, Emergency Access to Low-Level Waste Disposal, Low-Level Radioactive Waste, Low-Level Radioactive Waste Policy Amendments Act of 1985, LLW Treatment and Disposal, and Nuclear Materials. '
For the reasons set out in the preamble and under the authority of 1
the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive Waste Policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62.
43
o q
[7590-01] i 4'4 licensed generator or generators of low-level radioactive waste within the scope of Section 62.1(c) of this Part located in his or her " State";
or their duly authorized representative, legal successor or agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. ,
l
" Temporary Emergency Access" means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an s
immediate and, serious threat to the public health and safety or the
(
l common defens and security. Such access expires 454ays4fteF~the-- %
N I
granting and cannol.'be extended.
b b' g g [g 4%'N(ii9N ,
j
! S 62.3 Communications. %fd ./
/
1
~m ~
l Except where otherwise specified, each communication and report l concerning the regulations in this part should be addressed to the Direc-l tor, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, or may be delivered in l l
person to the Commission's offices at 1717 H Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland.
S 62.4 Interpretations.
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpreta-l tion by the General Counsel will be considered binding on the Commission.
)
S 6p.5 Specific exemptions.
The Commission may, upon application of any interested person or upon its own initiative, grant an exemption from the requirements of the 48
y
[7590-01]-
- regulations in this part that it determines is authorized'by law and will-not endanger life or' property or the common defense and security and'is otherwise in-the public interest.
S 62.8 Information collection requirements: OMB Approval.
(.N The Nuclear Regulatory Commission. has submitted the information collection requirements contained in this_part to the Office of Manage-ment and Budget (OMB) for approval as required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). OMB has' approved the information.
collection requirements contained in this part'under control number Y **
op y.)i+f Y C685c.GNa ss sa.n, c.a.np. a, w.w?E 4e Subpart B--Request for a Commission Determination wa s.
S 62.11 Filing and distribution of a determination request.
(a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of uest with the
!5 JA Commission at the address specified in S 62.3 wdh a copy also provided A
to the appropriate Regional Administrator at the address specified in Appendix D to Part 20 of this chapter. The request must be signed by the person requesting the determination c.r the person's authorized representative under oath or affirmation.
(b) Upon receipt of a request for a determination, the Secretary of ;
1 the Commission will cause to be published in the Federal Register a 1 notice acknowledging receipt of the request and asking that public comment on the request is submitted within 10 days of the date of the !
notice. A copy of the request will be made available for inspection in 49 l i
F !
l
, -[7590-01]
y owdEAa)A") Cthe Commissiort's Public Document Room, m' pw lMt. at-- "" , Washington,
.2 d4 and tart $e Local Public Document Room M the ty s i . m nig !
- t. e e sion will also transmit a copy of the request to the U.S. Department of Energy, to the Governors of I the States of the Compact region where the waste is generated, to the-Governors of the States with operating non-Federal low-level radioactive I waste disposal facilities, to the Compact Commissions with .perating I 1
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 i
under this part will be determined in accordance with the procedures set l forth for special projects under category 12 of 9170.31 of this chapter.
(d) In the event that the allocations or limitations established in Section5(b)or6(h)oTtheAMaremetatalloperatingnon-Federalor regional LLW disposal facilities, the Commission may suspend the process-ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress.
S 62.12 Contents of a request for emergency access: General Information.
A request for.a Commission determination under this part must include the following information for each generator to which the request applies:
(a) Name and address of the person making the request; (b) Name and address of the person (s) or company (ies) generating the low-level radioactive waste for which the determination is sought; I
50
)
- m. L i
[7590-01].-
1 a
(iii) distribution.of the radionuclides within the. waste (surface or volume distribution);
(iv) amount of transuranic (nanocuries/ gram);
(3) The minimum volume of the waste requiring emergency access to.
4 eliminate the threat to the public health and safety or the common- I defense and security; 1
l .(4) The time duration for which emergency access is 'equested r (not j to exceed 100 days);
(5) Type of disposal container or packaging (55 gallon drum, box, liner, etc.); and (6) Description of the volume reduction and wast'e minimization techniques applied to the waste which assure that it is teduced to the maximum extent'practicab?e, and the actual reduction in volume that occurred; -
(h) Basis for requesting the determination set out in this part, including:
(1) The circumstances which led to the denial of a: cess to existing low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat-ing the serious and immediate threat to the public health and safety or the common defense and security, including the date when the need for emergency access was identified; '
(3) A chronology and description of the actions taken by the person.
requesting emergency access to prevent the need for making such a ,
including. consideration of all alternatives set forth in S 62.13 9ts'f&
d any A
supporting documentation as appropriate; 52
_.-____m____ _ _ _ _ _
o-
, [7590-01]
(4).' An explanation of the impacts ofLthe waste on the public health and' safety or the common defense and security if emergency. access.is not, granted,'and the' basis for concluding that these impacts constitute a serious and immediate threat to the public health'and safety or the common defense and security., The impacts to the'public health and safety ;
or the common defense and security'if the generator's services, including research act'ivities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5) Other consequences'if' emergency access is not granted;.
(i) Steps taken by the person requesting emergency access to correct the situation requiring emergency access and the person's plans 1
to' eliminate the need for additional or. future emergency _ access requests; 1 (j) Documentation certifying that access has been denied;.
(k) Documentation that the waste.for which emergency access is 4
requested could not otherwise qualify for disposal pursuant to the Unusual Volumes provision [Section 5(c)(5) of the Act] or-is not simul-taneously under consideration by the Department of Energy (DOE) for access through the unusual volumes all.ccation; (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 upport from DOE or D0D certifying that access to disposal is necessary to mitigate the threat to the common defense and security; (m) Date by which access is required; l (n) Any other information which the Commission should consider in making its determination.
l 53
I.
[7590-01]-
1 S 62.13 Contents of a request for emergency access: alternatives.
(a) A request for emer'gency access under.this part must include ,
information on alternatives to emergency access. The request shall include a discussion of the consideration given to any alternatives, l
including, but not limited to,.the following: (1) storage of low-level; '
radioactive waste at the site of generation; (2) storage of low-level l
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 '
4 disposal at a Federal low-level radioactive waste disposal' facility..in the case of a Federd or defense related generator of LLW; (6) reducing the volume of the waste; (7) ceasing activities that generate low-level radioactive waste; and (8) other aii.ernatives identified under Subpart (b) of this Section.
(b) The request must identify all of the alternatives to emergency access considered including any that would' require State or Compact.
actio 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 j to identify the alternatives, a description of the factors that were con-sidered in identifying and evaluating them, a chronology of actions taken to identify and implement alternatives during the process, and a discus-sion of any actions that were considered, but not implemented. l (c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public health and safety or the common defense and security posed by lack of access to disposal; (2) the adverse effects on public health and safety 54
r,
[7590-01]
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 '
l'ng any portion of.the request.
~
l (b). The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to-a request for additional information under paragraph (a)'of this;section within ten (10) days from the date of the request for additional informa-tion, or any other time as the Commission may specify. This denial'wil1~
not pre,iudice the right of-the person making the request to file another request for a Commission determination under this part.
S 62,16 Withdrawal of a determination request.
(a) A person may withdraw a request for a Commission determination under this part without prejudice.at any time prior to the issuance of an initial determination under S 62.21 (b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the withdrawal of a request for a Commission determination under this part.
S 62.17 Elimination of repetition.
In any request under this part, the person making the request may incorporate by reference-information contained in a previous application, Statement, or report filed with the Commission provided that these refer-ences are updated, clear and specific.
I l
56
[7590-01]
1
.S 62.18 Denial of request. o
-]
1 If a request for a determination is based on circumstances that
]
are too remote and speculative to allow an informed' determination, t U Commission may deny the request.
1 Subpart C--Issuance of a Commission Determination j i
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- 1 Federal disposal facility within a State that is not a member of a Compact for specific low-level radioactive waste is necessary because of an immediate and serious threat (i) to the public health and safety or 1
(ii) the common defense and security; and L (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in S 62.13 d M 4/tf (b) In making a determination under this section' the Commission ,
i shall be guided by the criteria set forth in S 62.25v. OM Ma._. -
(c) A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is based and the reasons for granting or denying the request. An affirma- -
tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-l cally describe the low-level radioactive waste as to source, physical 57
i
[7590-01] l l
and radiological characteristics, and the minimum volume and duration j (not to exceed 180 days) necessary to eliminate the immediate threat to I
public health and safety or the common defense nnd security. It may also ]
.l contain conditions upon which the determination is dependent. 1 6 62.22 Notice of issuance of a determination.
(a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of the final determination in writing, to the person making the request, to.the Governor of the State l in which the low-level radioactive waste requiring emergency access was j
]
generated, to the Governor of the State in'which the designated dis- )
i posal facility is located, and if pertinent, to the appropriate Compact 1 l
Commission for such approval as is specified as necessary in Section 6(g) l of the Act. For the Governor of the State in which the designated disposal facility is located and for the appropriate Compact Commission, !
~
the notification must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme-diate and serious threat to public health and safety or the common defense and security. For the Governor of the State in which the low-level waste was generated, the notification must indicate that no exten-P <kL$ V i sion of emergency access will be granted under S 62.24 bsent diligent State and generator action during the period of the initial grant.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination.
58
.[7590-01]
(c) -The-Secretary of the Comm'ission will make a copy =of-the final.-
' determination available for inspection in the Commission's Public- r Document Room, 1717 H Street NW., Washington,- DC.
S 62.23 Determination for granting temporary' emergency access.
(a) The Commission may grant temporary emergency. access to anf appropriate non-Federal or regional' disposal facility or'fa'cilities provided that the determination required under S 62.21(a)(1) is made; (b) thenotificationproceduresunderS62.22are; comp)iedwith';
and -
'idd (c) the temporary emergency access duration will not exceed.
forty-five (45) days.
S 62.24 Extension of emergency access.
(a) After the receipt of a request from-any generator of low-level waste, or any Governor on behalf of any generator.or generators in his or her State, for an extension of emergency access that was initially granted under S 62.21, the Commission shall make an initial determination of-whether--
(1) emergency access continues to be necessary because.of an immed-iate and serious threat to the public health and safety or the common 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 '
though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access.
59
![7590-01]L L(b) -After making,a= determination pursuant to' paragraph (a) of this;'
~
section, the' requirements:specified in SS 62.21(c); and 62.22, must be-followed.
gy16$&Y
-+-
S 62.25 Criteria.f'or a Commission determination. Y.\.
(a) In making the' determination ~ required by.Section 62.21(a) of '
thisLpart, the Commission will determine whether the circumstances
~
described in the request for. emergency access create a serious and imme--
diate threat to'the public health and safety-or the common defense and.
security.
(bl In making the determination that a serious and immediate threat exists to the public health and safety, the Commission will conside"..
notwithstanding the availability of any alternative identified.in Sec-1D@S tion 62.13 of this part:
(i) the nature and extent of the radiation.' hazard that would result from the denial of emergency access, including consideration of, *
(A) the standards for radiation protection contained in Part'20 of' this Chapter; (B) any standards governing the release of radioactive materials to the general environment that are applicable to the facility that gener-ated the low level waste; and (C) any other Commission requirements specifically applicable to the facility or activity which is the subject of the emergency access request; (ii) the extent to which essential services affecting the public
- health and safety (such as medical, therapeutic, diagnostic, or research activities) will be disrupted by the denial of emergency access.
60
[7590-01) .
i
.i
~
'(c) For purposes of granting temporary emergency access under i
Section 62.23 of this part, the Commission will consider'the criteria. i
.i contained-in the Commission's' Policy Statement'for determining whether an
]
event at a facility or activity licensed or otherwise~ regulated by th'e 1 Commission is an abnormal occurrence within the purview'of'Section 208 of the Energy Reorganization Act'of 1974.% (45 FR 10950, February 24,1977.)'
(d) In making the determination that a serious and immediate threat to'the common defense and' security exists, the Commission will consider, ,
notwithstanding the availability of any alternative identified in~sec-tion 62.13 of this part: (1) whether the activity generating the wastes "
is necessary to the protection of the common defense and security, ;
(2) whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten l the common defense and security. The Commission will consider the views 1
i of the Department of Defense (D00) and the Department of Energy (DOE)~in the Statement of support as submitted by the person requesting emergency access, in evaluating requests based all, or in part,- on a serious and immediate threat to the common defense and security. /c;[/ M (e) In making the determination required by 6 62.21(a)(2) the Commission will consider whether the person submitting the request:
(1) has identified and evaluated any alternative that could mitigate the need for emergency access; (2) has considered all pertinent factors !
in its evaluation of alternatives including state of-the-art technology and impacts on public health and safety. S I
/
(f) In making the determinat. ion required by S 62.21(a)(2), the i Commission will consider implementation of an alternative to be unreason-l able if (1) it adversely affects public health and safety, the environment, 61 I
-f: :r J
[ 7590-Ol] . l
{
K' or the common defense and security; or (2) it results in a significant j t
curtailment or cessation of essential services, affecting public health j and safety or the common defensen a' d security; or' (3) it is beyond ths.
technical and economic capabilities of the person requesting emergency:
access; or (4) implementation of the alternative would conflict with -
j applicable State or local laws or Federal laws and regu'lations; or (5) it 9 cannot be implemented in a timely manner.
1
$ (g) The Commissigt, P shall make an affirmative determination under -
$ 62.21(a) only g ef-(ifM all of the alternatives that were considered are found ' 'j g g to be unreasonable.
i
[4 (h) In making a determination regarding temporary emergency acce d A'M 4H pV 1415 P4Af '
H ),
t g under S 62.23g, the criteria in parts (a) and (b) of that section shall ,
g4 apply. N 6(/fcf .
(i) In making a determination
%F @s f4<! regarding an extension of emergency . M444 4 'o ;
access under S 62.24 the Commission shall consider whether the person g y tf making the request has diligently' acted during the period of the initi l [fg .
gk grant to eliminate the need for emergency access. .
An i .t g , 2 9' s I e (j) e Commission shall consider hr a te/fl red for disposal under this part has b reduced in volume to the maximum extent c '
A practicable using a ~ le technology. n $$
g 6.a-.13 6 62.26 Criteria for designating a disposal facility. WJ ;
(,2. V j (a) The Commission shall designate an appropriate non-Federal or regional disposal Jcilpif an affirmative determination is made **
c ,y 4
\ j
^ As, c & G, 2. 2 2 'A pursuant to ( 62.2 .u ( dits / g ('
(b) The Commission will exclude a disposal facility from considera-tion if: , . . - L
) . . . . - - - . . . _ _ _ . . . .. -
~
\
teristics of the wastes (including:
physical properties, chemical pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, pyrophoricity, and explosive potential); condition of current ontainer; f potential for contaminating the disposal site; the technologies or I combination of technologies available for treatment of the waste (includ- 1 ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin-film evaporators; extruders evaporators; and Compactors); the suitab !
of Volume reduction equipment to the ejrcumstances (specific activity considerations, actual volume reduction factors, generation of seconda wastes, equipment contamination, effluent releases, worker exposure , and equipment availability); and the administrative controls which c 4 applied) i
_ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - . _ _ _ _ .-- i
[- '
-[7590-013, i
.- (1). the' low-level radioactive wast'es 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:appro'ved capacity; or P s-(3) granting emergency access would delay the closing of the'
,iAA/ I*f N I 5 d-disposal facility pursuant-to plans established before the receipt of the s
. request for emerge 7cy access; or q\I I (4) the volume of waste requiring emergency access exceeds 20 'b percent of the total volume of low . level radioactive waste accepted for disposal at the facility during the previous calendar year.
(c) If, after applying the exclusionary criteria in' paragraph (b)-
of this section, more than one disposal facility is identified as appro-priate for designation, the-Commission will then consider additional factors in designating a facility or facilities including:
(1) type of waste and its characteristics, (2) previous disposal practices, (3) transportation, (4) radiological effects, (5) site capability for handling waste,'
(6) the volume of emergency access waste previously accepted by each site both for the particular year and overall, and (7) any other considerations deemed appropriate by the Commission.
(d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW disposal sites, or any information submitted by the public in response to a Federal Register notice requesting comment,-as provided in para-graph (b) of S 62.11. #bh 63
I that January 1989 potential denial of access date. Once the final ruie is issued, its actual implementation will be triggered by NRC receipt of a request for emeigEn'cy access.
In the event that a request for emergency access is made before the final rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations.
- 7. ENVIRONMENTAL ASSESSMENT I An Environmental Impact Statement need not be prepared in connection with this rulemaking action because promulgation of the final rule is not a major i Federal action significantly affecting the quality of the human environment 1
within the meaning of NEPA. The final rule would establish criteria and proce-
, dures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to avert..
a serious and immediate threat-to-the publig healtff and safity-or_the_.commod defense and security. .EQhhemost #aF.t[he final rule is an administrative _,
r
/'
e I' action which serves to codi-fy the-criteria and procedures in the Act. The 2 l
l adoption of such implementing procedures and criteria by promulgation of a l 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 i
LLW generator or State government official on behalf of a generator because serious impacts to the public health and safety, the common defense and secu-rity, and possibly the environment are anticipated as a result of denial of access to a LLW disposal facility. NRC will become involved only when the need for corrective action has been identified. Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action l necessary to assure that the public, the national security and the environment are protected. Whether the Commission decides to grant emergency access, or i 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 protection.
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
7 A C 7N .2.. PD/L For: The Commissioners From: Victor Stello, Jr.
Executive Director for Operations
Subject:
FINAL RULE-10 CFR PART 62, " CRITERIA AND PROCEDURES FOR GRANTING $
EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL' WASTE DISPOSAL FACILITIES"-
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the-Code of Federal Regulations that would establish criteria and procedures to be used by the Nuclear Regulatory Commission (NRC) in determining whether emergency access should be granted'to operating, non-Federal, low-level radioactive disposal facilities under Section 6 of the Low-Level Radioactive Waste Policy Amendments Act of 1985.
Summary: Section 6 of the Low-Level Radioactive Waste Polic Amendments Act of 1985 provides that NRC can .RWt = W.c denia access decisio m and_ grant _emergen u ccess-to non-Federal or regional l LLW disposal facilities if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot be mitigated by available alternatives. The enclosed final rule was developed to implement NRC's responsibil- ;
ities pursuant to Section 6. The rule sets out strict require-ments for granting emergency access, places the burden of demon-strating the need for emergency access on the party requesting CONTACT:
Janet Lambert, NMSS 427-4751 gfM /Pd i 07/25/88 10 CFR 62 CP 1
i
The Commissioners 2 emergency access and should serve to encourage generators to seek other merns for resolving the problems created by potential lack of access to LLW disposal facilities. The first request for g emergency access could be made as soon as January 1,1989.N
-) hepending on the progress made by the States in develo "e j' g 3, F LLW disposal capability, NRC may'never receive a request'for p emergency access. Staff estimates 180 staff days'will be
/T4 required to process such requests, within the 45-day statutory Y limit for an NRC decision.
Background:
The Low-Level Radioactive Waste Policy Amendments Act of 1985 (PL 99-240, January 15, 1986), (the Act), directs the States.to develop their own LLW disposal facilities, or to form Compacts and cooperate in the development of-regional LLW disposal facilities, so that the new facilities will be available by January 1, 1993. If unsited States or Compact regions fail to meet key milestones in the Act, the States and Compact CommissionfwiththeoperatingLLWdisposalfacilitiesare authorized to demand additional fee.; for wastes accepted for I disposal, and ultimately to deny the LLW generators in the delinquent State or Compac+ region further access to their facilities.
l Section 6 of the Act provides that the NRC can grant a generator
" emergency access" to non-Federal or regional commercial LLW disposal facilities if access to those facilities has been denied and that access is necessary in order to eliminate an immediate and serious threat to the public health and safety or the common defense and security. The Act also requires that a determination be made as to whether the threat can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC must make both determinations prior to granting emergency access.
The Commissioners 3 O
{TheActprovidesNRCwith45 days.fromthetimearequestis received to determine whether emergency access will be granted, and if so, to designate the receiving facility]The Act provides I that NRC can grant emergency access for a period not to exceed 180 days per request, and allows that only one,'180-day extension of emergency access can be granted per request. ,
The Act provides that requests for emergency access shall contain all information and certifications th'at NRC requires to makes its determinations. The Act also provides that only NRC c n' grant emergency access. The Agreements States are l
specifically precluded from making emergency access decisions.
The legislative history for the Act emphasizes C h [ ---~- V 1 that emergency access be used only in very limited and rare circumstances and that it was not intended to be used to circumvent other provisions of the Act. Congress expected that responsible action from the generators and the States / Compacts.
should resolve most problems arising from denial of access decisions, thus precluding the necessity for htvo34fntrt$e/
FedecaNssetem granting emergency access. Section 6 was y included to provide a mechanism for Federal involvement as a C vehicle of last resort.
N
- The Act d d not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC staff recommended a rule to establish the procedures and criteria that will be used ,
in making the required emergency access determinations to add predictability to the decision-making process, and help to ensure that the NRC will be able to make decisions on emergency i access requests in the time required by the Act.
P
[ In developing the emergency access rule, the staff has tried to be consistent both with the actual text of Section 6 of the Act e;
The Commissioners 4 fandwithitsunderstandingtheintentexpressedbyCongress fregarding decisions made pursuant to Section 6. Staff's objective throughout has been to establish requirements for granting emergency access that are stringent enough to discourage the
[ unsited States and regions from viewing emergency access as an 7 alternative to diligent pursuit of their own disposal capability, l Q . and yet flexible enough to allow NRC to respond appropriately in
. \ situations where errergency access is genuinely needed to protect q the public health and safety or the common defense and security.
f On January 15, 1987, NRC issued a Notice of Intent to develop this rul.e (Vol. 52, Federal Register, No. 10, p. 1634), and on
~
December 15, 1987, NRC issued the proposed rule. The formal comment period expired February 12, 1988. Twenty-one.commentors responded. Copies of the comment-letters are included as an appendix to the staff analysis of comments in Enclosure C.
Responses were received from the governments of six states (Maine, Arkansas, Illinois, New York, Kentucky, and PennFylVannia), two from low-level Wast Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and members of environmental groups, two from industry, and one from a nuclear information service.
9 Discussion: Most e commentors raised issues that had been considered by staff es developing the' proposed rule. egg, i 7-me e enennnea +nthecomments[r ~^d "= addition J M clarifications to the final rule. The critical components of the proposed rule - the procedures and the criteria to be used 5- in making emergency access decisions, are essentially unchanged f in the final. The most significant comments aru discussed below:
y *if In general, commentors appeared to support NRC's issuance of a V rule for its emergenc agc j decisions and indicated changes y, k s that would improve r m their perspective.. One commentor l l
?
. i l
The Commissioners 5 l
expressed opposition to the issuance of the rule itself N ,
- ,y 9 . .u -,,'^ shau2.d.4e-e44MMewn because k in4fe+.c./02 !
es' right to granting emergency,WsA-pecess k would infringe on the S SesHw G, ck Oct '
make l manage their LLW.f NRC was 6 .: @'-t c:'; mandateg emergencyaccessdeterminationgwhentheStatesarenot otherwise able to manage their LLWp -N..m . J. s .. -. r : :in ;
gg g ' f :g' ^ NR g es not consider that
& ; ..m . rg : ~ ^ " m' a M r'; = with states' rights.
4 I
By far the most common concern expressed by commenters was that '
NRC's grants of emergency access would force operating non-federal or regional LLW disposal facilities to accept LLW they are clearly not responsible for under the Act. Under Subsection 3(a)(1) of the Act, the states are mandated to provide disposal only for commercially generated LLW classified as A, B, and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as .a result of decommissioning of vessels, or as a result of any research, development, testing, or production of atomic weapons."
Commentors stated that Federal wastes, particularly those generated by DOE and D00, or wastes that are classified as greater-than-Class-C, should not be allowed to receive emergency access disposal.
Indevelopingtheproposedrule,NRCstaffassumedthtftgl g be clear that Agg limitations established by the Actgfor routine LLW disposal would also apply to LLW under consideration by NRC for emergency access disposal. .However, no statement was made W . W , W $n th ,P, to this effect i proposed r 1 C1 ri '
- Pk 4 -
I ap =- _ -_
~ =.
emergency accessdisposalhasbeenaddedtothehinalrule.
Most of the states and Regional Compact Commissions who submitted comments indicated that the final rule should include 07/26/88 10 CFR 62 CP
i j
The. Commissioners 6 l
provisions by which NRC would act to ensure that $ cates LLW (ompactsdesignatedtoreceive ngegy accessy te,s wi,11 , '
{
receive reciprocal access Nichthey.ae itlefto"unTerthe Act. j l
Under Section 6(f), the Regional Compact or State receiving the f emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal volume of Low-level radioactive waste having similar characteristics to that provided emergency access."
The issue of reciprocal access is of particular concern to those
~
States / Regional Compacts who have, or plan to have, operating LLW disposal facilities. They are concerned that NRC has the
.A power to override their denial of access decisions and force g them to accept waste ': .:.,
provision.
1 under the eme y sg g the, gg r g of reciprocal access e p r m ;.bg emergency access waste,mene pf :t;M ;.'
r / prospect of
/ Commentors indicated that NRC should require a formal acknowledgement of reciprocal access before making an emergency access determination. NRC staff considered addressing
]
Q reeiprocalzaccess during the development of the proposed rule.
However, given the agency's mandate to protect the public health j and safety on the common defense and security, staff believed it {
would be inappropriate for NRC to assume the role of enforcing l reciprocal access arrangement. If the NRC were to require a formal promise of reciprocal access as a necessary I condition for considering a request for emergency access, under I certain circumstances, actions necessary to protect the public I health and safety could be delayed or. compromised.
)
I i
1 1
I I
The Commissioners 7 .j The NRC staff reconsidered its position on reciprocal access in light of the comments received on the proposed rule, but made no changes to the final rule. i Three of the commentors representing States or Compact Commissions /raisedtheissueofCompactCommissionapprovalof
- NRC's emergency access decisions. They indicated that the NRC j had been remiss in not including a provision in the proposed rule which would require the NRC to seek approval for its
' decision to grant emergency access from the Compact Commission 1 of the region in which the designated site is located.
l Under Section 6(g) of the Act, "any grant of access under this j Section shall be submitted to the Compact Commission for the
[ j
/ region in which the designated disposal facility is located for such approval as may be required under the terms of its i i
compact." -ThJ s .pvovi si'on has-proven-to-be . controversial- becausP '
i-t n to seveFa1 erpretations. The intrepretation eest
' 4 :ry " "d by tates 1 Congress intended for the l f /) Compact Commission of the designated site to have the final say If regarding the acceptance of emergency access wastes. They g- ,
believe Congress intended e e+ e r:::i d ; N=n="+ rnmmiccion e n"1 d g {p efe-+ + M "C'; .~ r m, ::::r -4a
" " n + 4 = ' t L C v . 3 , s ., '" -&d the Compacts to have the power to veto the NRC's decision. The commentors wanted the NRC to acknowedge this interpretation of Section 6(g) by b
incorporating a veto / approval provision in the final rule.
u NRC staff bp iev'es that disapproval {NRC's_ emergency-access s
$g det[rminbnignot,ky h.
Staff believe that the f '
legislativehistoryTor6(g)isquiteclearonthispoint. The A r p basic purpose of the Section 6 emergency access provision is to 3 .
ensure that sites which would normally be closed under the Act p will be available in emergency situations. A Compact Commissior y 07/26/88 10 CFR 62 CP
l - .
1
, . t i The Commissioners '8 veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework established in the Act. As emphasized in the House Committee on Interior and Insular Affairs Report on the Act, ratification of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act.
If the Compact refuses to provide, under its own authorities, energency access under Section 6, Congressional ratification'of that Compact would be null and void." [H.R. REP. No. 314, 99th Cong This was explained in the ,M. u,Wm :rM 1st.Sess., pt. rs 1,foratthe 2997 (1985).]
____..v. .un _.. proposed rule and has been reiterated and clarified in the final.
A number of the commentors expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well.as any fees, or taxes prescribed by that facility. Other commentors stated that LLWs granted emergency access disposal should not have to pay any special fees, beyond those specifically mandated by the Act. The commentors expressed a desire to have NRC consider those items in making its site designation decisions for emergency access.
To the NRC Staff it is quite clear from the Act that Congress intended that the LLW granted emergency access would meet all of the general requirements and regulations of the disposal facility desginated to receive the wastes by the NRC.
Further, the staff believes that Congress intended for generators granted emergency access to pay all the normal LLW disposal fees as well as the additional fees or surcharges established under Section 5 of the Act as specifically '
applicable to emergency access situations. However, NRC staff J
does not agree that such information can or should be used by 07/26/88 10 CFR 62 CP
The Commissioners 9 Y NRC in making its site designation decision. For clarification,
~
a new section has been added to the f g rule which reaffirms-NRC's understanding ngre s pitTtent t: 5::: g conditions or terms normally apply to LLW disposa1 7 apply (se to emergencyaccessruho.mld, Several of the commentors suggested that the final rule should contain conditions under which emergency access could be r ' terminated. Staff agree and have added a new hbpart D for this purpose. The new subpart establishes that the operator of the
/ freceivingsitemayrefuseeaergencyaccesswasteifitdoesnot 7 h i meet the conditions established by NRC in Part ] g that the h NRC can terminate 7 ifkdetermin8tisnolonger j
'needed. -
Several commenters stated that the 10 day public comment period provided in the rule on requests for emergency access was inadequate. 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.
/"'9ITter consideration of the comments, staff recommends the final rule proposed for Commission approval in Enclosure h. There are no major differences between the proposed and final rules but 1 several clarifying changes are included. Thc.Y, $ Y #* '
l (1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the l emergency access rule applies only to the LLW's for which the States have disposal responsibility pursuant to the Act.
(2) Addition of clarifying language to 62.22 stating that the j Commission will make notification of the final determination in writing to the appropriate Compact 07/26/88 10 CFR 62 CP
___________________m.m_.___ _ ..
The Commissioners 10 Commission "for such approval as is specified as necessary in Section 6 (g) of the Act."
(3) Addition of a clarifying Section VIII to the Supplementary Information titled " Terms and conditions for Emergency Access Disposal."
(4) The addition of clarifying Subpart 0, titled " Compliance i
with Conditions of Emergency Access; Termination of Emergency Access."
l l
l {
i l
1 The Commissioners 14 Resource Requirements Consistent with the legislative history for Section 6, NRC staff expects that '
emergency access will be requested only under rare and unusua1' circumstances through 1993 and beyond. Staff estimate it will take approximately 180 staff days (six staff working 30 days out of the 45 days allowed in the Act) to complete the necessary review.
Recommendation:
That the Commission:
(1) Approve for publication in the Federal Register the final new rule 10 CFR Part -
62 enclosed here (Enclosure B) which would establish procedures and criteria i for granting requests for emergency access to low-leve1 ~ waste disposal sites.
(2) In order to satisfy requirements of the' Regulatory Flexibility Act (5 U.S.C.
605(b)) certify that the final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the draft Federal Register notice (Enclosure $$ under the Regulatory Flexibility Certification heading.
(3) Note:
- a. That the Chief Counsel for Advocacy of the Small Bm iness Administration will be informed of the certification and the raasons for it, as required by the Regulatory Flexibility Act,
- b. That this final rule contains modifications to information collection requirements subject to the requirements of the Paperwork Reduction Act of j 1980 (44 U.S.C. 3501 et seq.), that Office of Management and Budget (OMB) approval was obtained for the proposed rule, and that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid.
1 i
The Commissioners 15' i a
- c. That the proposed rule included a preliminary finding that no significant environmental impacts would result from the rulemaking. The:
environmental assessment forming the basis for this determination is contained in Enclosure D, . " Regulatory Analysis." Tb Me*the-not
'p d' ditigt 1 enyt nmen Panalyfesand onti to beli - t~t ona M rbnm6b a review h hot be educIive n i'- .
- d. That compliance with CRGR charter requirements is not applicable for this-rulemaking action as the rulemaking applies only to radioactive waste .
management,.and not a generic requirement to be imposed by the NRC on'one or more classes of power reactors.
- e. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House of Insular Affairs Committee, the Subcommittee on Energy Conservation and Power of the House Energy and Commerce Committee, and the Subcommittee on Environment, Energy, and Natural Resources of the.
House Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure D e
- f. That a public announcement, Enclosure E, will be issued by the Office of Public Affairs when. the final rulemaking is filed with the Office of Federal Register.
- g. That a regulatory analysis, Enclosure d has been prepared for this rulemaking.
- h. OGC has reviewed the proposed rulemaking package and has no legal objections.
I.-
[7590-01)
The Act provides that NRC can grant emergency access for a period not to exceed 180 days per request. To ensure that emergency access is not abused, the Act allows that only one extension of. emergency access, not to exceed 180 days, is to be granted per request. An extension can be approved only if the LLW generator who was originally granted emer-l gency access and the State in which the LLW was. generated have diligently. {
though unsuccessfully acted during the period of the initial grant to eliminate the need for emergency access.
The Act also provides that requests for emergency access shall contain all information and certifications that NRC requires to make its determination.
" Temporary emergency access" to non-Federal or regional LLW disposal facilities may be granted at the Commission's discretion because of a serious and immediate threat to the public health and safety or the common defense and security pending a Commission determination as to whether the threat could be mitigated by suitable alternatives. The grant of temporary emergency access expires 45 days after it is granted.
Although the Act does not require NRC to develop a rule to carry out I its Section 6 responsibilities, NRC is issuing this rule to establish the procedures and criteria that will be used in making the required determinations for emergency access. f 5,ihce,th'e requisite coidition that pf,cjelp f mustle' met in orderJ6r a requesto'r to,b'e eligible fo e rgency access l p
cons eration is that the requestor fhas already bee denied access to
/ / /
jthe LLW disposal sites by the States or Compacts ith operating /sposal
[
? gf!
/ / @3 09 );
/ facilities 4limplicitinany/ecisiontogra,ntemergencyacces s the ,(
/ . - - -
facttpa'tsuchadecisiop!will- rid, e sited States' a /or Compacts' 7 (
p :
wr$ 1
, t 7
/exp,ressed _j_ desire riot j to accept waste'from that particular State,or ggm
+ - _
g V
5 'pe[. -
1 er QifYS d
_ _ _ . "f#45fAnd
[7590-01) t However, it is clear from the legislative history of the Act that Section 6(g) should not be construed as providing the Compact h mmission )
with a veto over the NRC's grant of emergency access. The b se gsob of the Section 6 emergency access rovision is to ensure that._. :- ...a ;
itat %dgAird 01<4s -fo dednh p & t*<tsTL d' = r;.C.7 _ A d under the e Act will be vallable in emepgensy situations.
M* *6 A Compact Commission veto would frustrate the purpose of the emergency access provision and would be generally contrary to the legis-lative framework established in the Act. As emphasized in the House l6% 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 8g the provisions of the Act. If the Compact refuses to provide, under its j own authorities, emergency access under Section 6, Congressional ratifica-1N I
- tion of that Compact would be null and void. H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).
l IV. NRC Approach
- In developing this rule, the NRC's approach was to
1
- 1. assure that all of the principal prouisions of Section 6 of the 1
Act are addressed in the regulation. I
- 2. identify the information and certifications that will have to !
be submitted with any request for emergency access in order for NRC to make the necessary determinations.
- 3. assure that the procedures and criteria that are established in 10 CFR Part 62 can be implemented within 45 days after NRC receives a request as specified in the Act.
- 4. establish procedures and criteria for designating a site to receive the waste which are fair and equitable and which are consistent 8
1
[7590-01]
among the available operating, non-Federal or regional LLW disposal facil-ities. To the extent practicable, NRC intends to rotate the designation of the receiving site, and, for the three currently operating facilities, to allocate emergency: access disposal in proportion to the volume limit:
tions established in the Act. In most cases, NRC would expect that the designation of a single site will minimize handling of and exposure to the waste and best serve the interest of protecting the public health and safety. However, if the volume of waste requiring emergency access disposal is large, or if there are other unusual or extenuating circum-stances, NRC will evaluate the advantages and disadvantages of designat-ing more than one site to receive waste from the same requestor.
In addition to the above, NRC will also consider how much waste has been designated for emergency access dispo' sal to each site to date (both for the year and overall), and whether the serious and immediate threat posed could best be mitigated by designating one site or more to receive the waste. '
In order for NRC to make the most equitable site designation deci-sions, the Agency will have to be we'll informed regarding the status of
- disposal capacity for each of the commercially operating waste disposal i NRCaint P
=b t.pG tL utess facilities. cmusd qW this ]inicimetien en :Orrange con- to go)eb7_ %
U*
- y ,a.
ti.4 MM - y
\
(' $ ht$ ;
It should be noted that in setting out the site designation provisio - # N Ad t$.
for Section b, Congress assumed there would always be a site deemed appro- gj priate to receive the emergency access waste. However, this may not be the case if all sites are eliminated by application of the limitations provision set furth in the Act. It is not clear what options Congress 'r 4e
, y'[
i 25
[7590-01]
pyrophoricity, and explosive potential); condition of current container; potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste (includ-ing incinerators; evaporators-crystallizes; fluidized bed dryers; thin-film evaporators; extruders evaporators; and Compactors); the suitability of volume reduction equipment to the circumstances (specific activity-considerations, actual volume reduction factors,-generation of secondary l waates, equipment contamination, effluent releases, worker exposure, and equipment availability); and the administrative'. controls which could be 1
applied.
VIII. Terms and Conditions for Emergency Access Disposal LLW granted emergency access disposal pursuant to this rule is subject to the general requirements for LLW disposal as established in the Act, as well as those requirements which specifically address emer-gency access. This means that LLW granted emergency access shall be processed, treated and disposed of in a manner consistent with any other LLW which is eligible for disposal at operating non-federal or regional LLW disposal facilities under the Act. The disposal of waste by grant l of emergency access should not preclude the implementation of any specific conditions, regulations, requirements, fees, surcharges or taxes prescribed by the disposal facility that may be in effect at the time of the Commission's determination to grant emergency access. How-ever, while generators whose LLW is granted emergency access are subject to the special fees and surcharges specified in th'e Act for emergency
$#uuh access disposal, they s4HAHot otherwise be subject to fees or require-ments that are not customarily charged or imposed for routine LLW disposal.
27
[7590-01]
a- a ..Ff:af.'y A,dl A) .E .E(g gh 4)k q
their LLW. M 1an4 4a11ge'y - A '
,/ n.
, AFC
.n, ak ..,_ , e . .y qcess
/W&. r& '
dewtnuttum . men tM=Stetes e, e /not otnerwise epie to mana'gedneir
~
LW Hiiir WDC dees-net-c0ntider C the emergency acer--re!e 72-_
I / Aterferedthtesi-r49h tc. 4cielly != i'.+ M corcorated mpch=of + ha 1=agem in Sectien-5 ;' th= or+ __
Clarification of LLW Eligible for Emergency Access By far the most common concern expressed by commentors was that emergency access would be used to force operating ncn-Federal or regional LLW disposal facilities to accept LLW they are either clearly not responsible for under the Act, or have specifically chosen to exclude from their facility. Fourteen of the commentors in almost half of the comments expressed concern that emergency access would be granted to wastes that were not typically to be considered eligible for disposal at non-Federal or regional LLW disposal facilities. Specifically, the commentors stated that Federal wastes, particularly those generated by DOE and D0D, or wastes that are classified as greoler-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 whc I 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-ities under the emergency access provision.
Throughout the development of Part 62, the NRC assumed that its mandate was to grant emergency access only to LLW that would otherwise be
% Ne Y - - - - - ,
N A ^^ M % % r o f Esre-se rg svg 6g, p y ze inw g ry gmyd of "W%fd PS sh Nk , big , y79ff g/g fgg i ~ G> o0N afn sie n&E Sr4rL== -.-
. ~.. . - - - - ~~ a -
m --
. ..-w-
]
I eligible'forroutinedisposalatStato$rregionalLLWdisposalfacil- l ities according to the terms and conditions set out in the Act. More specifically, the NRC believes that only those LLWs. designated _by Section 3(a)(1) of the Act_to be the disposal responsibility of the States could.
be eligible for a grant of emergency l access disposal.
Under Subsection 3(a)(1)(A), the States are mandated to provide 5 disposal for commercially generated LLW classified as A, B and C. They are not required to provide disposal for greater-than-Class-C wastes.
1 .
{ Thus, the NRC would expect to deny any request for emergency access received for Creater-than-Class-C waste. The same is true for the L Federally generated LLW which is excluded from State disposal respon-t 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 research, development, testing, or production of any atomic weapons."
NRC does not expect to grant emergency access to any wastes that are faa WAff PST S'Btw1Y exempt'ed by Section 3(a)(1)(B). .Howeverr-+4ftee LLW gener-ated-by the fadaral_covernment which dee not-fem-4ftttr-these exciusionary categories wouM-be-+Hgttrie fur routine LLW disposal, those same Federally generated L4.W5 -eutestse be 2Hg4Me-for emergencyucc==c disposal as well.
The NRC has no inter.tions of granting emergency access to LLW which are ineligible for LLW disposal under Section 3(a)(1) of the Act.
However, the Commission did not state its intentions in the proposed rule. The Commission assumed that it would be clear that the limitations established in the Act for routine LLW disposa.1 would also apply for 30
1
[7590-01] 1
-l
. . j 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 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 i "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."
1 The NRC believes the addition of this clarification to the final rule should resolve any questions regarding.a particular LLW's eligibility for emergency access consideration as well as the Commission's intended application of the final rule.
QOh r ?
Reciprocal Access c Several of the commentors pointed out that e proposed rule omitted any reference to, or discussion of, Section F) of the Act, which addresses reciprocal access. Section 6 provides that the Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or State in which the emergency access waste was generated. It further provides that the Regional Compact or State that receives the emergency access waste shall designate, for reciprocal access, "an equal I
volume of Low-level radioactive waste having similar characteristics to l l
that provided emergency access."
{
Most of the States and Regional Compact Commissions who submitted comments on the proposed Part 62 indicated that reciprocal access should be addressed in the final rule. Most of the commentors who raised
]
reciprocal access concerns believed the NRC should broker reciprocal 31
l 1
[7590-01)
I 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
-1 the rule on emergency access. As NRC staff read Section 6(f), arranging )
q for reciprocal acess is an obligation between States / Compacts and thus is j 1
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.
The NRC reconsidered its position on reciprocal access in light of )
l the comments received on the proposed rule, but made no changes to the i final rule. The NRC's mandate under Section 6 is to grant requests for emergency access in order to protect the public health and safety and the common defense and security from a serious and immediate threat. 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 ,
I 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 gg The Commission also believes that any role regarding reciprocal access, even of a brokering nature, could be in conflict with the Commis-sion's basic mandate to make emergency access decisions. The NRC maintains that arranging for reciprocal access in response to grants of emergency access is the responsibility of the States and Compacts involved. The NRC believes that the promise of reciprocal access desired by the commentors could be ring the 15 day period required by the Act under Section 6(g) for the receiving Compact Commission's approval of the NRC's LLW disposal facility designation.
l 33
i
, [7590~01]
i l
Compact Approval of Grants of Emergency Access i
Three of the commentors representing States or Compact Commissions j i
indicated that the NRC had been remiss in not including a provision in j l
the proposed rule which would require the NRC to seek approval for its j i
decision to grant emergency access from the Compact Commission of the I l
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.
l The basis for these comments is language in Section 6(g) of the Act.
, It states that "any grant of access under this Section shall be submitted I l
1
(
to the Compact Commission for the region in which the designated disposal
]
I facility is located for such approval as may be required under the terms l \
of its compact." TMs pro 7THon has proven to be somewhat cohTr57erM4 I beqause it is open to several in+arpr4 tat 4atts. The W pe bN AW y-med frAquQeRS ficd cf f4 hethe fift3
--'pc,d mg f on/t.Sto bes is thatdCongress intended for l
the Compact Commission of the designated site to have the final say regarding the acceptance of emergency access wastes. They believe Congress intended that a receiving Compact Commission could reject the NRC's emergency access determination essentially that Congress intended the compacts to have the power to veto the NRC's decision. The com-mentors wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval provision in the final rule.
34
q
[7590-01]
i While the commentors were correct in noting that the proposed rule did not include a specific mechanism for implementing the Section 6(g) provision of the Amendments Act, the NRC's position on this is, sue was Sc W" M Sc % ZlTy '
addressed in +'^?::x:Sn-%fm#e g legislative History (%3MiGT the Supple- p j mentaryInformationportionoftheproposedrulejAdb EM '
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.8 However, Section 6(g) also requires that the Compact Commission "shall act to approve emergency access not later than f 15 days after receiving notification from the NRC."p ntrary to what several of the commentors believe, the NRC believes that disapproval is NY t not really an option for the Regional Compact Commission in which the
& s-0 8 4 designated emergency access disposal facility would be located. This pfg position is derived from the legislative history for both Section 6 of M' 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 p M,d j9 the legislative history that the basic purpose of the Section 6 emergency
[ o access provision is to ensure that sites which would normally be closed fe th under the Act will be available in emergency situations. A Compact th Commission veto of the NRC's decision would frustrate the purpose of the g emergency access provision and would be generally contrary to the gpf legislative framework established in the Act. As emphasized in the House .f~
g/( f Committee on Interior and Insular Affairs Report on the Act, ratification g/ of a Compact should be conditioned on the Compact's acting in accord with the provisions of the Act.
1 [a/p If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional /
6
nepar4o kQ f pd CH.'pwwam 2.12GP. & 314, Q Dy 6. > a t w a4 9'"., Ph ')
lfy ior .m, 0vs)3
R
)% 4 va ws w e,-m a n a n,a-
,) .e+uue. xtark ceyw Gni a wof A Ml8ds f of my & M.ttr W of
& g g y alk w k c y s- Cen A %
&sa y M & s muy
+v ta pcb yf w, d 2) x w N ee h as W dpd k' %%^ 6 ( h ) M .An ad u a 6<>~ & .
l
1 1
[7590-01]
i serious and immediate threat to the public health. and safety. or the ;
common defense and security. For the most part, the final rule..is an-administrative action which serves to codify the criteria and proce-dures in the Act. The adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental' effect.
Therefore, the Commission has determined under'the National Environ-mental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that'this rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. l The environmental assessment forming the basis for this' determination is contained in the regulatory analysis prepared for this regulation.
The availability of the regulatory analysis is noted below.
XII. Paperwork Reduction Act Statement The final rule adds information collection requirements that are 3 subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
These requirements were approved by the Office of Management and Budget Approval Number 3150-0143. !
35ud- M M - R6 b XIII. Regulatory Analysis The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the alter-natives, considered by the Commission. The analysis is available for inspection, copying for a fee, at the NRC Public Document Room, 1717 H Street NW., Washington, DC 20555. Single copies of the analysis may be 41
i 1
.j-
~
5 Public' reporting burden for this collection of information is' estimated to 4 q,
- 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, q
[ searching existing data sources, gathering and maintaining the data needed, and
\ completing and reviewing the collection of information. Send comments regarding '{
l this burden estimate or any other aspect of this collection of information - )
I including suggestions for reducing.this burden, to the Records and Reports Management Branch, Division of Information Support Services, Office of 2 Administration and Resources Management, U.S. Nuclear Regulatory Comission, Washington, DC 20555; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.
l
)
i j
l J
l
]
E________________._ . _ . _ _ _ _ _ _ _ _ _ _ .
_j
[7590-01]
obtained from Janet Lambert, Nuclear Regulatory Commission, NLS-260, Washington, DC 20555, telephone (301) 492-3857.
XIV. Regulatory Flexibility Certification NRC is using this final rule to implement the statutory requirements for granting emergency access to non-Federal or regional LLW disposal facilities under Section 6 of the Act. Based upon the information avail-able and in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a signifi- l I
, cant economic impact upon a substantial number of small entities. '
The rule has the potential to affect any generator of LLW as well as any existing LLW disposal facility. None of the LLW disposal facilities would be considered to be a small entity. The generators of LLW are nuclear power plants, medical and academic facilities, industrial licen-sees, research and development facilities, radiopharmaceutical manufac-turers, fuel fabrication facilities and government licensees. Of these categories, all but the power plants, fuel fabrication facilities, and government licensees could potentially include small entities.
Although these categories may contain a " substantial number of small entities," the Commission does not believe there will be a significant I# economic impact to these generators because the Commission does not A hq anticipate that many generators will be affected by the proposed rule.
G p .
I In order for the requirements of tne rule to be imposed on a generator, i the generator h se must initiate the action by requesting a grant of
^M emergency access from NRC. This would occur only because the generator ,
I fd g has been denied access to LLW disposal I j
b !
42 j 1
[7590-01).
The Commission is required by statute to make emergency access determinations. Since a.' grant of emergency access is intended to correct the problems LLW generators may encounter because of. lack of' access to LLW disposal, the provision of emergency access will benefit any genera-tor of LLW including small entities.
Establishing criteria and procedures for requesting and granting emergency access through a rule will also benefit small and large genera-tors. 10 CFR Part 62 provides guidance to the generator on what informa-tion will be required for making requests for emergency access and provides an orderly framework for making those requests. Also, the rule will enable generators to better plan to avoid LLW disposal access problems, thus providing the certainty required for economic growth and development.
The impact of the recordkeeping requirements on any affected licensees Whp b should be minimal since the information that must be provided.if a generator 40 I requests emergency access would most likely be collected and assembled as I
, f() part of any process to decide a course of action if necessary access to LLW disposal was not going to be available.
XV. List of Subjects in 10 CFR Part 62 Administrative Practice and Procedure, Denial of Access, Emergency Access to Low-Level Waste Disposal, Low-Level Radioactive Waste, Low-Level Radioactive Waste Policy Amendments Act of 1985, LLW Treatment and Disposal, l
and Nuclear Materials. i For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, and the Low-Level Radioactive Waste Policy Amendments Act of 1985, the NRC is adopting a new 10 CFR Part 62.
43
[7590-01] '
k -
4 licensed generator or generators of 1cw-level radioactive waste within the scope of Section 62.1(c) of this Part located in his or her " State";
or their duly authorized representative, legal successor or agent.
" State" means any State of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
" Temporary Emergency Access" means access that is granted at NRC's discretion upon determining that access is necessary to eliminate an immediate an serious threat to the public health and safety or the common defense nd security. Such access expires er i.he granting and canno be extended. g f [yg uAl h N/ d tS 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 1717 H Street NW., Washington, DC, or 11555 Rockville Pike, Rockville, Maryland.
6 62.4 Interpretations.
Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpreta-tion by the General. Counsel will be considered binding on the Commission.
/
b S .5 Specific exemptions.
The Commission may, upon application of any interested person or upon its own initiative, grant an exemption from the requirements of the 48
-[7590-01]
- regulations in this- part thrt it determines is authorized by law and will a
not endanger life or property or the common defense and security and is otherwise in the public interest.
6 62.8. Information collection. requirement's: OMB Approval.
(_MThe Nuclear Regulatory Commission has submitted the. information collection requirements contained in this part.to the Office of Manage-i ment and Budget'(OMB) for approval as required by the' Paperwork Reduction 1
l Act of 1980_(44 U.S.C. 3501 et seq.). OMB.has approved the information-collection requirements contair.ed in this part under control number c4&c175. N w'* =N$$ M z g y o p i E S (ca. tis G a.I1,4 2.[a; @ .niud2M, Subpart B--Request for a Commission Determination S 62.11 Filing and distribution of a determination request. (a) The person submitting a request for a Commission determina-tion must file a signed original and nine copies of the request with the M - PMD Commission at the address specified in 6 62.3 [, with a copy also provided 1' to the appropriate Regional Administrator at the address specified in i Appendix D to Part 20 of this chapter. The request must.be signed by the person requesting the determination or the person's authorized representative under oath or affirmation. y j -(b) Upon receipt of a request for a determination, the Secretary of the Commission will cause to be published in the Federal Reoister a ' notice acknowledging receipt of the request and asking that 'public. comment on the request is submitted within 10 days of the date of the notice. A copy of the request will be made available for inspection in
.49 i
[7590-31] I l Wash q d4
'W , &, O; the Commissiort's Public Document Room, 2?" " Et M " p ington, and W Local Publ'ic Document Room = g the faci'i y submetetng
- --- DC, _f T '
W. 6 M Qs p 3l 0 l
- t. T e Se etary of e 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 L
'i regional low-level radioactive waste disposal facilities, and to the.
i Governors of the States in the Compact Commissions with operating disposal facilities. (c) Fees applicable to a request for a Commission determination under this part will be determined in accordance with the procedures set l forth for special projects under category 12 of 6 170.31 of this chapter. k (d) In the event that the allocations or limitations established in { Section5(b)or6(h)oftheAcDaremetatalloperatingnon-Federalor l regional LLW disposal facilities, the Commission may suspend the process-l ing or acceptance of requests for emergency access determinations until additional LLW disposal capacity is authorized by Congress. l 6 62.12 Contents of a request for emergency access: General
- Information.
A request for a Commission determination under this part must include the following information for each generator to which the request applies: (a) Name and address of the person making the request; (b) Name and address of the person (s,) or company (ies) generating the low-level radioactive waste for which the determination is sought; 50 1 j
- t , i [7590-01] I (iii) : distribution of the radionuclides within the waste (surface or volume distribution); j (iv). amount of transuranic (nanocuries/ gram);- (3) The minimum volume of the waste requiring emergency access to eliminate the threat to the public health and sa'fety or the common. defense and security; I (4) The time duration for which emergency access is requested (not to exceed 180 days); (5) Type of disposal container'or packaging (55 gallon drum, box, liner, etc.); and (6) Description of the volume reduction and waste minimization techniques. applied to the waste which assure that it is reduced to the maximum extent practicable, and the actual reduction in volume that occurred; (h) Basis for requesting the determination set out'in this part, including: (1) The circumstances which led to the denial of access to existing low-level radioactive waste disposal facilities; (2) A description of the situation which is responsible for creat-ing the sericus and immediate threat to the public health and safety or the common defense and security, including the date when the need for emergency access was identified; ' (3) A chronology end description of the actions taken by the person requesting emergency access to prevent the need for making such a re , in15 f4y including consideration of all alternatives set forth in 9 62.1 , nd any A supporting documentation as appropriate; 52
[7590-01] (4) An explanation of the impacts of the waste on the public health and safety or the common defense and security if emergency access is not. granted, and the basis for concluding that these impacts constitute a serious and immediate threat to the public health and safety or the i common defense and security. The impacts to the public health and safety or the common defense and security if the generator's services, including research activities, were to be curtailed, either for a limited period of time or indefinitely, should also be addressed; (5) Other consequences if emergency access is not granted; (i) Steps taken by the person requesting. emergency access to correct the situation requiring emergency access and the person's plans to eliminate the need for additional or future emergency access requests; (j) Documentation certifying that access has been denied; (k) Documentation that the waste for which emergency access is requested could not otherwise qualify for disposal pursuant to the. Unusual Volumes provision [Section 5(c)(5) of the Act] or is not simul-taneously under consideration by the Department of Energy (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 upport from DOE or D0D certifying that access to disposal is necessary to mitigate the threat to the common defense and security; (m) Date by which access is required; (n) Any other information which the Commission should consider in making its determination. 53 ___________-_-__a
r [7590-01] S 62.13 Contents of a request for emergency access: alternatives.- (a) A request for emergency access under this part must include information on alternatives to emergency access. The request shall include a discussion of the consideration given to any alternatives, including, but not limited to, the following: (1) storage of low-level radioactive waste at the site of generation; (2) storage of low-level radioactive waste in a licensed storage facility; (3) obtaining access to a disposal facility by voluntary agreement; (4) purchasing disposal capacity available for assignment pursuant to the Act; (5) requesting disposal at a Federal low-level radioactive waste disposal facility in the case of a Federal or defense related generator of LLW; (6) reducing i the volume of the waste; (7) ceasing activities that generate low-level radioactive waste; and (8) other alternatives identified under Subpart (b) of this Section. (b) The request must identify all of the alternatives to emergency access considered including any that would require State or Compact actio or any others that are not specified in paragraph (a) of this sec-tion. The request should also include a description of the process used to identify the alternatives, a description of the factors that were con-sidered in identifying and evaluating them, a chronology of actions taken to identify and implement alternatives during the process, and a discus-sion of any actions that were considered, but not implemented. (c) The evaluation of each alternative must consider: (1) its potential for mitigating the serious and immediate threat to public health and safety or the common defense and security posed by lack of access to disposal; (2) the adverse effects on public health and safety 54
[7590-01] S 62.15. Additional Information. (a) The Commission may require additional information from a person j making a request for a Commission determination under this part concern-ing any portion of'the request. (b) The Commission shall deny a request for a Commission determina-tion under this part if the person making the request fails to respond to-a request for additional information under paragraph (a) of this section within ten (10) days from'the date of the request for additional informa-tion, or any other time.as the Commission may'specify. This denial will j l not prejudice the right of the person making the request to file another request for a Commission determination under this part. l 6 62.16 Withdrawal of a determination request. (a) A person may withdraw a request for a Commission determination under this part without prejudice at any time prior to the issuance of an initial determination under S 62.21 ' (b) The Secretary of the Commission wi 1 cause to be published in l the Feceral Register a notice of the withdrawal of a request fo" a Commission determination under this part. S 62.37 Elimination of repetition. In any request under this part, the person making the request may incorporate by reference information contained in a previcus application, Statement, or report filed with the Commission provided that these refer- j l ences are updated, clear and specific.
)
I i 56 l
.__ ___-___- _ -_ _ _____ _ _ L
[7590-01) ; I S 62.18 Denial of request. ! If a request for a determination is based on circumstances that are too remote and speculative to allow an informed determination, the Commission may deny the request. Subpart C--Issuance of a Commission Determination S 62.21 Determination for granting emergency access. (a) Not later than (45) days after the receipt of a request for a ) Commission determination under this part from any generator of low-level 1 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 Compact for specific low-level radioactive waste is necessary because of j an immediate and serious threat (i) to the public health and safety or (ii) the common defense and security; and (2) The threat cannot be mitigated by any alternative consistent with the public health and safety, including those identified in S 62.13 o M ef (b) In making a determination under this section, the Commission j - uso _j shall be guided by the criteria set forth in 6 62.25 (c) A determination under this section must be in writing and contain a full explanation of the facts upon which the determination is based and the reasons for granting or denying the request. An affirma-tive determination must designate an appropriate non-Federal or regional LLW disposal facility or facilities for the disposal of wastes, specifi-cally describe the low-level radioactive waste as to source, physical 57 1 l - _ _ _ _ _ _ _ _ _ _ _ _ 1
( [7590-01] and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to eliminate the immediate threat to public health and safety or the common' defense and security. It may also contain conditions upon which the determination is dependent. 1 S 62.22 Notice of issuance of a determination. (a) Upon the issuance of a Commission determination the Secretary of the Commission will make notification of the final determination in writing, to the person making the request, to the Governor of the State in which the low-level radioactive waste requiring emergency access was generated, to the Governor of the State in which the designated dis-posal facility is located, and if pertinent, to the appropriate Compact 1 Commission for such approval as is specified as necessary in Section 6(g) of the Act. For the Governor of the State in which the designated disposal facility is located and for the appropriate Compact Commission, the notification must set forth the reasons that emergency access was granted and specifically describe the low-level radioactive waste as to source, physical and radiological characteristics, and the minimum volume and duration (not to exceed 180 days) necessary to alleviate the imme-diate and serious threat to public health and safety or the common defense and security. For the Governor of the State in which the low-level waste was generated, the notification must indicate that no yxten-
"Wts M sion of emergency access will be granted under S 62.24 absent diligent State and generator action during the period of the initial grant.
(b) The Secretary of the Commission will cause to be published in the Federal Register a notice of the issuance of the determination. 58
s, [7590-01]. ; (c) The Secretary of the Commission will make a copy of the final
.I determination available for inspection in the Commission's Public - 1 Document Room, 1717 H Street NW., Washington, DC.
S 62.23- Determination for granting temporary emergency access. (a) The Commission may grant temporary emergency access to an appropriate non-Federal or regional disposal facility or facilities provided that the determination required under S 62.21(a)(1) is made;. (b) the notification procedures under S 62.22 are comp ied with; j and , M (c) the temporary emergency access duration will not exceed forty-five (45) days. S 62.24 Extension of emergency access. (a) After the receipt of a request from any generator of low-level waste, or any Governor on behalf of any generator or generators in his or her State, for an extension of emergency access that was initially granted under S 62.21, the Commission shall make an initial determination of whether-- (1) emergency access continues to be necessary because of an immed-iate and serious threat to the public health and safety or the common 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 inw-level waste and the State have diligently i though unsuccessfully acted during the period of the initial grant to j eliminate the need for emergency access. l - _ _ _ - - - - )
[7590-01). (b) After making a determination persuant to paragraph (a) of this section, the requirements specified in SS 62.21(c), and 62.22 must be followed. k y1t6&W S 62.25~ Criteria for a Commission determination. (a) In making the determination required by Section 62.21(a) of this part, the Commission will determine whether the circumstances described in the request for emergency access create a serious and imme-diate threat to the public health and safety or the common defense and security. (b) In making the determination that a serious anr' immediate threat exists to the public health and safety, the Commission will consider, notwithstanding the availability of any alternative identified in Sec-tion 62.13 of this part: (i) the nature and extent of the radiation hazard that would result from the denial of emergency access, including consideration of, (A) the standards for radiation protection contained.in Part 20 of this Chapter; (B) any standards governing the release of radioactive materials to the general environment that are applicable to the facility that gener- j i ated the low level waste; and (C) any other Commission requirements specifically applicable to the facility or act N ty which is the subject of the emergency access request; (ii) the extent to which essential services affecting the public health and safety (such as medical, therapeutic, diagnostic, or research ! activities) will be disrupted by the denial of emergency access. ; 60
[7590-01] 4 l (c). For purposes of granting temporary emergency access under j Section 62.23 of this part, the Commission will consider the criteria contained in the Commission's' Policy Statement for determining whether an J event at a facility or activity licensed or otherwise regulated by the Commission is an abnormal occurrence within the purview of Section 208 of i the Energy Reorganization Act of . 1974_% (45 FR 10950, February 24,1977.) (d) In making the determination that a serious and immediate threat i to the common defense and security exists, the Commission will consider, notwithstanding the availability of any alternative identified in sec-tion 62.13 of this part: (1) whether the activity generating the wastes is necessary to the protection of the common defense and security, (2) whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously-threaten the common defense and security. The Commission will consider the views of the Department of Defense (D0D) and the Department.of Energy (DOE) in the Statement of support as submitted by the person requesting emergency access, in evaluating requests based all, or in part, on a serious and immediate threat to the common defense and security. d' M (e) In making the determination required by S 62.21(a)(2),, the Commission will consider whether the person submitting the request: (1) has identified and evaluated any alternative that could mitigate the need for emergency access; (2) has considered all pertinent factors in its evaluation of alternatives including state-of-the-art technology and impacts on public health and safety.
/gI (f) In making the determination required by 6 62.21(a)(2), the Commission will consider implementation of an alternative to be unreason-able if (1) it adversely affects public health and safety, the environment, 61 C--_-__----______-___---_-._---_-_------
] l.
[7590-01) !
? h or the common defense and security; or (2) it results in a significant curtailment or cessation of essential services, affecting public health .l 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 j applicable State or local laws or Federal laws and regulations; or (5) it ig cannot be implemented in a timely manner.
1 (g) The Commissi g shall make an affirmative determination under 4 t+ 1'm'i P j I $ 62.21(a) only if all of the alternatives that were considered are found i s
'$ k to be unreasonable.
#'M i i
& 4y (h) In making a determ nation regarding temporary emergency acce d i V 14:5 f4^
)t g under 6 62.23 the criteria in parts (a) and (b) of that'section shall ] g Fo A apply. $d
,5 (1) In making a determinate- e ro ? regarding an extension of emergency MM4'44 ue .j access under 6 62.24, the Commission shall consider whether the person 4g tt making the request has diligently acted during the period of the initia { I, g I gg grant to eliminate the need for emergency acc Ag
.q' y f,3, 2 4/ .
t (j) he Commission shall consider her elW waste h red for disposal under this part has b . reduced in volume to the maximum extent practicable using a n, le technology. /H g G .1:3 6 62.26 Criteria for designating a disposal facility. 4 *'d
- 62. V (a) The Commission shall designate an appropriate non-Federal or c, regional disposal , faci if an affirmative determination is made *
\G#- , c A G L .1 ,y/
pursuantto(62.2 aPjeg /4 y (b) The Commission will exclude a disposal facility from considera-h { tion if: . - - - - _ . _ .
) _ - - . . _ . . _ . _ _ . . - - . -- g
~ .
]
teristics of the wastes (including: physical properties, chemical pro-perties, radioactivity, pathogenicity, infectiousness, and toxicity, pyrophoricity, and explosive potential); condition of current container; i potential for contaminating the disposal site; the technologies or combination of technologies available for treatment of the waste (includ-ing incinerators; evaporators-crystallizes; fluidi2ed bed dryers; thin-film evaporators; extruders evaporators; and Compactors): the suitability of volume reduction equipment to the circumstances (specific activity 1 considerations, actual volume reduction factors, generation of secondary I wastes, equipment contamination, ef fluent releases, worker exposure, and equipment availability); and the administrative controls which could be applied)
)
[7590-01] ; J (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 I (2) the disposal facility is in excess of its approved capacity; or; (3) granting emergency access would delay the closing of the ]
. t 4 i disposal facility pursuant to plans established before the receipt of the [f _ l request for emergency access; or (4) the volume of waste requiring emergency access exceeds 20 '
percent of the total volume of low-level radioactive waste accepted for i disposal at the facility during the previous calendar year. (c) If, after applying the exclusionary criteria in paragraph (b) of this section, more than one disposal facility is identified as appro-priate for designation, the Commission will then consider additional l factors in designating a facility or facilities including: (1) type of waste and its characteristics, (2) previous disposal practices, l (3) transportation, (4) radiological effects, (5) site capability for handling waste, (6) the volume of emergency access waste previously accepted by each site both for the particular year and overall, and (7) any other considerations deemed appropriate by the Commission. (d) The Commission, in making its designation, will also consider any information submitted by the operating non-Federal or regional LLW s disposal sites, or any information submitted by the public in response l to a Federal Register notice requesting comment, as provided in para-graph (b) of S 62.11. k 63 k 1
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 foremer3dcyaccess. )
In the event that a request for emergency access is made before the final l rule is in place, NRC will use the procedures and criteria in the proposed rule to the extent possible to make the necessary determinations. -
)
i 1
- 7. ENVIRONMENTAL ASSESSMENT l
.i An Environmental Impact Statement need not be prepared in connection with this rulemaking action because promulgation of the final rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. The final rule would establish criteria and proce-dures for a Commission determination under Section 6 of the Act that emergency access to an operating non-Federal LLW disposal facility is necessary to aver I a serious and immediate threat-to-the-pub iphea1Myst the comm6I defense and security, f __-vhe final rule is an administrative action which serves to codify-theeiteria and procedures in the Act. The T-- t 7 adoption of such implementing procedures and criteria by promulgation of a final rule does not have an environmental effect.
1 Making a Commission determination to grant emergency access in accordance with these criteria and procedures should also be without adverse' environmental ; i impact. The provisions in the rule will be activated only at the request of a l LLW generator or State government official on behalf of a generator because j serious impacts to the public health and safety, the common defense and secu-rity, and possibly the environment are anticipated as a result of denial of access to a LLW disposal facility. NRC will become involved only when the need for corrective action has been identified. Once NRC receives a request, the Commission's primary responsibility and concern will be to take the action necessary to assure that the public, the national security and the environment are protected. Whether the Commission decides to grant emergency access, or to deny it because alternatives are available, NRC will make the decision only I when satisfied that the action to be recommended will minimize the effects of concern and maximize needed protection. The Commission designation of the LLW disposal facility to receive the l LLW approved for emergency access should not result in adverse impacts to the 6 Enclosure C i
, ?"'n'W }
~
e/n/g For: The Commissioners From: Victor Stello, Jr.
- Executive Director for Operations
Subject:
FINAL RULE-10 CFR PART 62, " CRITERIA AND PROCEDURES'FOR GRANTING EMERGENCY ACCESS TO NON-FEDERAL AND REGIONAL LOW-LEVEL WASTE DISPOSAL FACILITIES"
Purpose:
To obtain approval to issue a new Part 62 to Title 10 of the-Code of Federal Regulations.that would establish criteria and procedures to be used by the Nuclear Regulatory Commission '(NRC) in determining whether emergency access should be granted to, operating, non-Federal, low-level radioactive disposal facilities i under Section-6 of the Low-Level Radioactive Waste Policy Amend-I ments Act of 1985. Summary: Section 6 of the Low-Level Radioactive Waste Policy Amendments 1 Act of 1985 (PL 99-240, January 15, 1986), (the Act) provides that NRC can grant emergency access to non-Federal or regional LLW disposal facilities if there is a serious and immediate threat to the public health and safety or the common defense and security that cannot be mitigated by available alternatives. The enclosed final rule was developed to' implement NRC's_respon-sibilities pursuant to Section 6. The rule sets out strict requirements for granting emergency access, places the burden of demonstrating the need for emergency access on the party requesting emergency access and should serve to encourage genera-tors to seek ottier means for resolving the problems created by potential lack of access to LLW disposal facilities. 1he first request for emergency access could be made as soon as January 1, 1989. However, depending on the progress made by the States in developing their LLW disposal capability, NRC may never receive a request for emergency access. If NRC does get a request, it will have 45 days to respond. Staff estimates 180_ staff days will be required to process such requests. CONTACT: Janet Lambert, RES 492-3857
i
.The Commissioners 2 I
Background:
The Act directs the States to develop their own LLW disposal l facilities, or to form Compacts and cooperate in the development.- of regional LLW disposal facilities, so that the new facilities will be available by January 1,1993. If unsited States or Compact regions fail to meet key milestones in the Act, the States and Compact Commissions with the operating LLW disposal l-facilities are authorized to demand additional fees for wastes l accepted for disposal, and ultimately to deny the LLW generators I in the delinquent State or Compact region further access to their j facilities. -
']
1 Section 6 of the Act provides that the NRC can grant a generator l
" emergency access" to non-Federal or regional commercial LLW 1 disposal facilities if ecce:,s to those facilities has been denied and that access is necessary in order to eliminate an
)
1 immediate and serious threat to the public health and safety or the common defense and security. .The Act also requires that a determination be made as to whether the thre'at can be mitigated by any alternative consistent with the public health and safety, including ceasing the activities that generate the waste. NRC. j must make both determinations prior to granting emergency access. ' The Act provides that NRC can grant emergency access ~ft,. .x reriod not to exceed 180 d?ys per request, and allows that oni,e mie, ! 180-day extension of emergency access can be granted per request. l The Act provides NRC with 45 days from the time a request is l l received to determine whether emergency' access will be granted, and if so, to designate the receiving facility. i 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 Agreements States are specifically pre-cluded from making emergency access decisions. The legislative history for the Act emphasizes that emergency access be used only in very limited and rare circumstances and that it was not intended to be used to circumvent other provi-sions of the Act. Congress expected that responsible action from l the generators and the States / Compacts should resolve most pro-i blems arising from denial of access decisions, thus precluding , l the necessity for involving the Federal sector in granting emer- J 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 i regarding decisions made pursuant to Section 6. Staff's objec-tive throughout has been to establish requirements for granting I l
N 1)ta. id.lW--8 (2<f.eSBikled_ h. 5% eadoacam y GfO N d*Z G U-
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~
The Commissioners M[M aa e.w aab- wCWeMd. WW -'t'2f #'-
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emergency access that are stringent enough to discourage the unsited States and regions from viewing emergency access as an alternative to diligent pursuit of their own disposal capability, and yet flexible enough to allow NRC to respond appropriately in situations where emergency access is genuinely needed to protect the public health and safety or the common defense and security. The Act did not require NRC to develop a rule to carry out its Section 6 responsibilities. However, NRC staff recommended a . rule to establish the procedures and criteria that will be used in making the required emergency access determinations to add predictability to the decisica-making process, and help to ensure that the NRC will be able to make decisions on emergency access - requests in the time required by the Act.
~
On January 15, 1987, NRC issued a Notice of Intent to develop this rule (Vol. 52, Federal Register, No. 10, p. and or, - December 15,19B7..NR_C issued the proposed rule he forinal # comment period exprred teWraary72,1988. Twenty-one commencers
*j responded. Co ies of the comment letters are included as :.n J appendix to the staff analysis of comments in Enclosure C. l' / .'
Responses were received from the governments of six states (Maine, Arkansas, Illinois, New York, Kentucky, and Pennsylvania), two from Low-Level Waste Compact Commissions (Midwest and Central Midwest), ten from concerned citizens and # members of environmental groups, two from industry, and one from a uclear information service. . Discussion: Afd Q w wd) la ck- " "& number of commenters raised issues that had been considered by Pr* staff while developing the proposed rule. For the most part, g
# gt ponded to the comments by adding clarifying language and some new ext to the final rule. The critical components of 4h
)
/j the proposed rule - the procedures and the criteria to be used in k.'
making emergency access decision , are essentially unchanged in %d-the final. The most significant comments are discussed below" /k/ Mdisernnd M l2 In general, commenters appeared to support NRC's issuance of a t rule for its emergency access decisions and indicated changes ! that would improve the final rule from their perspective. One commenter expressed opposition to the issuance of the rule itself because he believed that granting emergency access would _ infringe on the States' right to manage their LLWghee-NRC { was-mandatea-uy 5- M on n n! ine ner te m m amargd cc ss de rminatinnan_aly when the'litates are notatherw se _ to l
, & 6 {3 r t x -
um b By far the most common concern expressed by commenters was that f. i l NRC's grants of emergency access would force operating non-I di federal or regional LLW riisposal facilities to accept LLW they i
/ /4,__ are clearly not responsible for under the Act. Under Subsec- i
& tion 3(a)(1) of the Act - e states are mandated to provide
( ;
a Document Name: ! 10 CFR 62 APP I l 1 Requestor's ID: 1 FINAN j i Author's Name: LAMBERT J i Document Comments: SPE 7/28/88 - Return this sheet when submitting corrections l l
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#rorder to make the determination that there is a serious and immediate threat j Ni Tothepublichealthandsafety,theCommissionwillconsiderwhetherthecir- /
/
cumstances described lead it to conclude that~there is no longer reasonable
- assurance that the affected generator or generators can continue to comply with
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NRC's regulations in 10 CFR Part 20, and as a result, that the public health ! i and safety will be endangered. In making this determination the NRC will con- j sider the significance of the situation described in the context of the require- I ments issued by NRC in the facility license, the technical specifications, and any applicable regulations and orders of the Commission. ! In making the determination that there is a serious and immediate threat to the common defense and security, the rule provides that NRC staff will consider whethcr the activity generating the LLW is necessary to the protection of the common defense and security and whether the lack of access to a disposal site would result in a significant disruption in that activity that would seriously threaten the common defense and security. The proposed 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 (000) in a " Statement of support." AStatementoffupportfromtheappropriate agency will be required as part of any request for emergency access made in j 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 : i 1
to the applicant. These include, but are not limited to: (1) storage of LLW at the site of generation; (2) storage in a licensed storage facility; (3) obtaining access to a disposal facility by voluntary agreement; (4) purchas - ing disposal capacity; (5) requesting a license modification from NRC; (6) requesting disposal at a Federal disposal facility (appropriate for Federal or defense related generators of LLW only); (7) reducing the volume of the waste; or (8) ceasing the activities that generate the waste. The NRC will consider whether the person requesting emergency access has considered all fac-tors in their evaluation of alternatives including state-of-the-art technology and the impacts of the alternatives on the public health and safety. The NRC will consider whether the requestor has demonstrated that the implementation of an alternative is unreasonable because of adverse effects, because it is tech-nically or economically beyond the capability of the requestor, because it would result in the cessation or curtailment of essential medical services, or cannot be implemented in a timely manner. If any alternative is determined by NRC to be reasonable, then the request for emergency access will be denied. If NRC 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 consideration if (1) the LLW does not meet the license criteria for the site; (2) the disposal facility meets or exceeds its capacity limitations as set out in the Act; (3) granting emergency access would delay the planned closing of the facility; or (4) the volume of the waste requiring disposal exceeds 20 percent of the total volume of the LLW accepted for disposal at the site in the previous calendar year. If the designation cannot be made on this basis alone, the Commission will consider the type of waste, previous disposal practices, transportation requirements, radiological effects, site capability for handling the waste, and any other information the Commission deems necessary. I L h, nui d ecn T. cm the legh+ativn whai actierr. NRC h Id t if no i e is dee itabl nd w v s y req Ed co ., o n his entia em. In making the determination regarding a request for an e'xtension of emergency access (Section 6(e) of the Act), the NRC staff will consider whether the circumstances still warrant emergency access and whether the person making the 2
request has been diligent during the period of the initial grant to eliminate the need for emergency access. In making a determination that temporary emergency access is necessary (Sec-tion 6(d) of the Act), the staff will have to make the determination that there is a serious and immediate threat to the public health and safety or the common defense and security as otherwise required for emergency access, but would not , have to consider whether mitigating alternatives exist.
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l 1 i l l 3
4
'The Commissioners 4 disposal _ only for commercially generated _ LLW classified as A, B, and C, and for "LLW generated by the Federal government except that which is owned or generated by DOE, by the Navy as a result of decommissioning of vessels, or as a result of any research, development, testing, or production of atomic weapons.'.' Commenters stated that Federal wastes, particularly those generated by DOE-and 000, or wastes that are classified.as. greater-than-Class-C, should not be allowed to receive emergency access disposal.
In developing the proposed rule, NRC staff. assumed that it would . ' be clear that limitations established by the Act on the LLW eligible for routine LLW disposal would also apply to LLW under consideration by NRC for emergency access ~ disposal. However, no statement was made to this effect_in the proposed rule. Clarifying. language l explaining what LLW will be considered eligible for emergency-i access disposal has been_added to the final rule, r~- Most of the states and Regional Compact Commissions who submitted - I comments indicated that the final rule should include provisions by which NRC would act to ensure that States /LLW. Compacts designated to receive emergency access wastes will receive reciprocal-access disposal from the person granted emergency access - which they are entitled to under the Act. Commenters indicated that NRC should require a formal acknowledgement of reciprocal access before making an emergency access determination. The staff does not agree with this position.
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l Under Section 6(f), the Regional Compact or State receiving the emergency access waste is entitled to reciprocal access at any subsequent facility that serves the Compact region or State in ; which the emergency access waste was generated. It further, provides that the Regional Compact or State that receives the ) emergency access waste shall designate, for reciprocal access, p "an equal volume of low-level radioactive waste having similar I
' characteristics to that provided emergency access."
f , NRC staff considered including reciprocal access during the development of the proposed rule. However, as staff reads
/ Section 6(f), arranging for reciprocal access is an obligation g between States / Compacts and thus is outside the scope of NRC's responsibility to implement Section 6. Further, given the
@y agency's mandate to protect the public health and safety on the
$ common defense and security, staff believed it would be inappro-priate for NRC to assume the role of enforcing reciprocal access arrangements. If the NRC were.to require a formal promise of g[k reciprocal access as a necessary condition for considering a request for emergency access, under certain circumstances, actions
, necessary to protect the public health and safety could be delayed or compromised.
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The Commissioners 5 q h'I > The NRC staff reconsidered its position on reciprocal access in j light of the comments received on the proposed rule, but made no [' '- hanges to the final rule.
'l N M hree of the commenters representing States or Compact Commissions raised the issue of Compact Commission approval of NRC's emergency access decisions. They indicated.that the NRC had been remiss in not including a provision in the proposed rule which would require ,
the NRC to seek approval for its decision to grant emergency
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j access from the Compact Commission of the region in which the ; designated site is located. j Under Section 6(g) of the Act, "any grant of access under this
,M Section shall be submitted to.the Compact Commission for the i d region in which the designated disposal facility is located for !
\( O) such approval as may be required under the terms of its compact."
The interpretation preferred by some of the States or Compacts i h % is that Congress intended for the Compact Commission of the , designated site to have the final say regarding the acceptance j of emergency access wastes. They believe Congress intended the ! y receiving Compact Commission to have the power to' veto NRC's l T @f decision. The commenters wanted the NRC to acknowledge this interpretation of Section 6(g) by incorporating a veto / approval j N)d provision in the final rule. l
'l 3 ( The interpretation of Section 6(g) that is most consistent with Congressional intent behind emergency access is that 6(g) does
, not provide for State or Compact Commission veto of NRC's deci- l sion. Staff believe that the legislative history for 6(g)'is quite clear on this point. The basic purpose of the Section 6 l emergency access provision is to ensure that sites which would normally be closed under the.Act will be available in emergency situations. A Compact Commission veto of the NRC's decision would frustrate the purpose of the emergency access provision and would be generally contrary to the legislative framework l established in the Act. As emphasized in the House Committee l on Interior and Insular Affairs Report on the Act, ratification l of a Compact should be conditioned on the Compact's acting in I accord with the provisions of the Act. "If the Compact refuses to provide, under its own authorities, emergency access under Section 6, Congressional ratification of that Compact would be null and void." [H.R. REP. No. 314, 99th Cong., 1st Sess., pt. 1, at 2997 (1985).] This was explained in the Supplementary Infor-mation for the proposed rule and has been reiterated and clarified in the final.
y A number of the commenters expressed concern that LLW granted emergency access to disposal by the NRC should be required to meet any conditions of the site designated, as well as any fees, l or taxes prescribed by that facility. Other commenters stated that LLWs granted emergency access disposal should not have to
. l The. Commissioners 6 .;
l pay any special fees, beyond those specifically mandated by the-
< Act. .The commenters expressed a desire to have NRC consider those items in making its site ' designation decisions for emer - ]
gency access. To the NRC Staff it is quite clear from the Act that Congress intended that the LLW granted-emergency access would meet'all of the general requirements and regulations of the disposal facility ) designated to receive the wastes by the NRC.' Further, the staff d believes that Congress intended for generators granted emergency. . access to pay all the. normal LLW disposal fees as well as the ] additional fees or surcharges established under Section 5 of the
~
Act as specifically applicable to emergency access situations. However, NRC staff does not agree that such information can or I should be used by NRC in making its site designation decision. For clarification, a new section has been added to the final rule ' which reaffirms NRC's understanding of Congressional' intent.that conditions or terms which would normally apply to LLW disposal should also' apply to emergency access disposal.
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j , Several of the commenters suggested that the final rule should l contain conditions under which emergency access could be termi-nated.- Staff agree and have added a new Subpart D_for this pur-pose. The new subpart establishes that the NRC may terminate emergency access if the requestor or his waste do not meet the conditions established by NRC in Part 62, and that the NRC can
. terminate emergency access if a determination is made that it is jnolongerneeded.
Several commenters stated that the 10 day public comment period provided in the rule on requests for emergency access was isade-quate. Since NRC is not required to seek public comments on requests, and since NRC has only 45 days to respond when a request is received, no change was made to the final rule. After consideration of the comments, staff recommends the final I rule proposed for Commission approval in Enclosure B. There are no major differences between the proposed and final rules but ; several clarifying changes are included. The most significant ' are: (1) Addition of a clarifying sentence to the " Purpose and Scope" of the final rule. The sentence indicates that the emer-gency access rule applies only to the LLW's for which the States have disposal responsibility pursuant to the Act. (2) Addition of clarifying language to 62.22 stating that the Commission will make notification of the final determination in writing to the appropriate Compact Commission "for such approval as is specified as necessary in Section 6(g) of the Act."
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.. l l
i The Commissioners 7 j 1 (3)~. Addition of a' clarifying.Section VIII to the Supplementary l Information titled " Terms and conditions for Emergency Access Disposal " (4) The'additi'on of clarifying Subpart D,-titled " Compliance 1 with Conditions of Emergency Access; Termination of Emer- i gency. Access." . Resource Requirements Consistent with the legislative history for Section 6, NRC staff ~ l- expects that emergency access will be requested only under. rare and unusual circumstances through 1993 and beyond. Staff esti- 1 mate it will take approximately 180 staff days-(six staff. working 30 days out of the 45 days allowed in the Act) to complete the necessary review. Recommendation: That the Commission: (1) Approve for publication in the Federal Register the final new rule 10 CFR Part 62 enclosed here (Enclosure B) which would establish procedures and criteria for granting requests for emergency access to loclevel waste disposal sites. (2) In order to satisfy requirements of the Regulatory Flexibil-ity Act (5 U.S.C. 605(b)) certify that the final rule will not have~a significant economic impact on a substantial number of small entities. The basis for this certification i is summarized in the draft Federal Register notice (Enclo- 1 sure B) under the Regulatory Flexibility Certification l heading. (3) Note:
- a. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it, as required by the Regulatory Flexibility Act. l l b. That this final rule contains modifications to informa- 1 i
tion collection requirements subject to the require- ; l ments of the Paperwork Reduction Act of 1980 (44 U.S.C. ' i 3501 et seq.), that Office of Management and Budget l (OMB) approval was obtained for the proposed rule, and ; that the changes between the proposed and final action are clarifying only so that the OMB approval remains valid,
- c. That the proposed rule included a preliminary finding that no significant environmental impacts would result i
from the rulemaking. The environmental assessment 1
'l l
q
.The Commissioners 8
.4 0
forming the' basis for this determination is contained
.l 1
in Enclosure D, " Regulatory Analysis."-
- d. That compliance with CRGR charter requirements is'not' 4 applicable for this rulemaking action'as the rulemaking. ]
applies only'to radioactive waste management, and not a 1 generic requirement to be imposed by the NRC on one or l more classes of power reactors..
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- e. That the Subcommittee on Nuclear Regulation of the Senate Committee'on Environment and Public Works, the I Subcommittee on Energy and the Environment of the House- I of Insular Affairs Committee, the Subcommittee on. I Energy Conservation and Power of the House Energy and Commerce Committee, and the Subcommittee on Environ-ment, Energy, and Natural Resources of the House I Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure D.
- f. That a public announcement, Enclosure E, will be. issued by the Office of Public Affairs when the final' rule-making is filed with the Office of. Federal Register.
;,. That a regulatory analysis, Enclosure C, has been pre-pared for this rulemaking.
h, 0GC has reviewed the proposed rulemaking package and. has no legal objections. I i. That this rule has been coordinated with NMSS, NRR, GPA, and ARM. l Scheduling: Few, if any emergency access requests are anticipated. ' 3ver, a request could be made at any time. NRC should have t.2 i u le in place at the time a request for emergency access may be made. Consistent with the next major trigger date for denial of access in the Act, which is January 1,1989, the final rule should be issued in the fall of 1988. a Victor Stello, Jr. Executive Director for Operations
Enclosures:
A. Oraft Federal Register Notice B. Public Comment Analysis with Comment Letters C. Regulatory Analysis D. Draf t Congressional Letter E. Public Announcement 1
The Commissioners 8 forming the basis for this determination is contained in Enclosure D, " Regulatory Analysis."
- d. That compliance with CRGR charter requirements is not applicable for this rulemaking action as the rulemaking applies only to radioactive waste management, and not a generic requirement to be imposed by the NRC on one or more classes of power reactors.
- e. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment an'd 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- ,
nent, Energy, and Natural Resources of the House Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure D.
- f. That a public announcement, Enclosure E, will be issued by the Office of Public Affairs when the final rule-making is filed with the Office of Federal Register.
- g. That a regulatory analysis, Enclosure C, has been pre-pared for this rulemaking-
- h. OGC has reviewed the proposed rulemaking package and has no legal objections.
- i. That this rule has been coordinated with NMSS, NRR, GPA, and ARM.
Scheduling: Few, if any emergency access requests are anticipated. However, j a request could be made at any time. NRC should have the rule i in place at the time a request for emergency access may be made. 1 Consistent with the next major trigger date for denial of access ) in the Act, which is January 1,1989, the final rule should be j issued in the fall of 1988. l Victor Stello, Jr. Executive Director for Operations
Enclosures:
A. Draft Federal Register Notice B. Public Comment Analysis with Comment Letters C. Regulatory Analysis D. Draft Congressional Letter E. Public Announcement OFC: NMSS : ARM :CPA :NRR :0GC :E00 NAME:HThompson :WMcDonald :HDenton :TMurley :WParler :VStello DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88 0FC: RES:WMS:0E :RES:WMB:DE :RES:WMB:DE : DE: RES :0E: RES :RES :RES NAME/$ Lambert: j k:Erill :4kilberberg :R30snak gar
......................................_____s4......:K _ lotto :TSpeis:ESBeckjord DATE:8/ /88 :8/ / 88 :8/ /88 :8/ /88 :8/ /88 :8/ /88:8/ /88 0FflCIAL RECORD COPY
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