ML23156A051

PRM-061-003 - 61FR00633 - Heartland Operation to Protect the Environment

ML23156A051
Person / Time
Issue date:	01/09/1996
From:	Hoyle J NRC/SECY
To:
References
PRM-061-003, 61FR00633
Download: ML23156A051 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 01/09/1996 TITLE: PRM-061-003 - 61FR00633 - HEARTLAND OPERATION TO PROTECT THE ENVIRONMENT CASE

REFERENCE:

PRM-061-003 61FR00633 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PRM-061-003 OPEN ITEM (Y/N) N RULE NAME: HEARTLAND OPERATION TO PROTECT THE ENVIRONMENT PROPOSED RULE FED REG CITE: 61FR00633 PROPOSED RULE PUBLICATION DATE: 01/09 / 96 NUMBER OF COMMENTS: 6 ORIGINAL DATE FOR COMMENTS: 03 / 11/ 96 EXTENSION DATE: I I FINAL RULE FED . REG. CITE: FINAL RULE PUBLICATION DATE: I I NOTES ON: REQ AMENDMENT TO PART 61 TO ADOPT RULE RE GOVT OWNERSHIP OF A LOW -

STATUS : LEVEL RAD WASTE DISPOSAL SITE THAT IS CONSISTENT W/FEDERAL STATUTE

__ OF RULE: DENIAL OF PRM PUB. 12/23 / 96 AT 61FR67501 . FILE IN 16Hl7 .

HISTORY OF THE RULE PART AFFECTED: PRM-061-003 RULE TITLE: HEARTLAND OPERATION TO PROTECT THE ENVIRONMENT PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 01 / 02 / 96 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: I I

- STAFF CONTACTS ON THE RULE CONTACTl: MICHAEL T . LESAR, ADM MAIL STOP : T6 - D59 PHONE : 415- 71 63 CONTACT2 : CAROL GALLAGHER , RES MAIL STOP : T9 - F29 PHONE : 415 - 5905

DOCKET NO. PRM-061-003 (61FR00633)

In the Matter of HEARTLAND OPERATION TO PROTECT THE ENVIRONMENT DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

01/03/96 01/02/96 FEDERAL REGISTER NOTICE - RECEIPT OF PETITION FOR RULEMAKING 01/25/96 10/03/95 LTR FM CHAIRMAN JACKSON TO HEARTLAND OPERATIONS ADVISING THAT HEARTLAND'S LTR WILL BE TREATED AS PETITION FOR RULEMAKING (W/CY OF HEARTLAND LTR) 02/26/96 02/21/96 COMMENT OF CLEAN WATER FUND OF NORTH CAROLINA (CARL RUPERT) ( 1) 03/08/96 03/08/96 COMMENT OF NEBRASKA, STATE OF (STEVEN J. MOELLER) ( 2) 03/11/96 03/11/96 COMMENT OF DEPARTMENT OF ENERGY (RAYMOND F. PELLETIER) ( 3) 03/14/96 03/11/96 COMMENT OF ILLINOIS DEPARTMENT OF NUCLEAR SAFETY (THOMAS W. ORTCIGER, DIRECTOR) ( 4)

- 03/14/96 03/13/96 COMMENT OF NUCLEAR ENERGY INSTITUTE (MIKE ALISSI) ( 5) 03/25/96 03/25/96 COMMENT OF MASSACHUSETTS LOW-LEVEL RADIO WASTE MGT BOARD (CAROL C. AMICK, EXECUTIVE DIRECTOR) ( 6) 12/26/96 12/09/96 FEDERAL REGISTER NOTICE - DENIAL OF PETITION FOR RULEMAKING (PUBLISHED ON 12/23/96 AT 61FR67501)

, :me;, cf tl,s r"t:der~ Registf.'f' DOCKET NUMBER

• . . . . . . WI, DO C, tr~cration S, RC PETITION RULE PRU (7590-01-P]

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-0 ~ *95 oEr 26 A1 0 :02 NUCLEAR REGULATORY COMMISSION OF F!CE 1 S[C-~_TARY 1

OOCK r TIW1 / .., - I/ICE 10 CFR Part 61 BRAt ;_::H

[Docket No. PRM-61-3]

Heartland Operation to Protect the Environment: Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

SUMMARY

The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-61-3) submitted by the Heartland Operation to Protect the Environment. The petitioner requested that the NRC amend its regulations to adopt a rule regarding government ownership of a low-level radioactive waste (LLRW) or (LLW) disposal site that is consistent with petitioner's view of the applicable Federal statutes. The petition is being denied because the NRC believes there is no conflict between Section 15l(b) of the Nuclear Waste Policy Act (NWPA) and its regulations requiring that LLW disposal facilities be sited on land owned by Federal or State government. The NRC has the authority to require Federal or State land ownership as a condition for licensing a LLW disposal facility and continues to believe the existing regulatory procedures are appropriate.

ADDRESSES: Copies of the petition for rulemaking, the public comments received, and the NRC's letter to the petitioner are available for public

(),uh,, 1m ; aI~-=I jq k at h/fR"17!:ibl

inspection or copying in the NRC Public Document Room, 2120 L Street NW.

(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6196, E-mail MFH@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

On August 3, 1994 (59 FR 39485), prior to receipt of the petition (PRM-61-3), the NRC published an advance notice of proposed rulemaking (ANPRM) in the Federal Register regarding land ownership. The ANPRM announced that the NRC was considering amending its regulations in 10 CFR 61.59(a) to allow private ownership of the land used for a LLRW disposal facility site as an alternative to the current requirements for Federal or State ownership. On July 18, 1995 (60 FR 36744), the NRC published in the Federal Register a notice withdrawing the ANPRM because the rule change was not warranted or needed. The basis for this decision was the general indication from States and compacts that they do not need, nor would they allow, private ownership, and that the rule change under consideration could be potentially disruptive to the current LLW program.

2

The Petition On January 9, 1996 (61 FR 633), the NRC published a notice of receipt of a petition for rulemaking filed by the Heartland Operation to Protect the Environment (HOPE). The petitioner states that the NRC's present regulation (10 CFR 61.59(a)}, which permits disposal of LLW "only on land owned in fee by the Federal or a State government," is in conflict with a provision in Section 15l(b) of the Nuclear Waste Policy Act of 1982, as amended. The NWPA authorizes the U.S. Department of Energy (DOE) "to assume title and custody of low-level radioactive waste and the land on which such waste is disposed of, upon request of the owner of such waste and land and following termination of the license issued by the Commission for such disposal .... " Therefore, the petitioner proposes that the NRC regulations should conform to the NWPA provision and require private land ownership during operations and closure of the facility, then converting title to the site to the DOE.

The petitioner, who also commented on the ANPRM, further states that the notice withdrawing the ANPRM contains no documentation or statement of any issue of public health and safety as the basis for the regulation. Therefore, the petitioner believes that public health and safety cannot be an issue upon which the NRC regulation is based.

The notice of withdrawal contains the statement: "The Commission believes that the potential negative impact of disrupting the current process far outweighs any potential benefits that might be derived from making a generic rule change at this time." In response, the petitioner asserts that the Commission's role is to regulate nuclear material in a manner that 3

protects public health and safety and the environment, that its role is not to facilitate specific processes, i.e., the current LLRW disposal process.

The petitioner references the following quotation the NRC used in the withdrawal notice. This quotation came from one of the comments received on the ANPRM.

For over three decades the public has been led to believe that all LLW disposal sites would necessarily be owned and controlled by either a Federal or State government. This, we believe, has been an important factor in convincing many proponent groups and State and local LLW advisory groups that LLW can and will be disposed of in a safe manner.

To now try and convince these groups that Federal or State ownership of LLW disposal sites is not required, may be difficult and generate a significant credibility problem.

In response, the petitioner states that" ... credibility problems occur when misrepresentations -- i.e. government ownership is necessary in order to assure proper LLRW management -- are initially made, and that such credibility problems are exacerbated the longer such misrepresentations are allowed to continue." The petitioner asserts that there would appear to be a larger credibility problem for the Commission to maintain 10 CFR 61.59(a) that is, in the petitioners's view, in direct conflict with a statute (i.e., Section 15l(b) of the NWPA). The petitioner offers that, "The Commission might reflect on the Department of Energy's recent efforts to gain credibility by coming clean on past misrepresentations -- i.e. secret radiation studies."

4

Public Comments on the Petition The notice of receipt of the petition for rulemaking invited interested persons to submit written comments concerning the petition. The NRC received six comment letters. Three comment letters were received from States, one from the DOE, one from the Nuclear Energy Institute (NEI), and one from an environmental organization. The comments generally focused on the main element of the petition, that the Commission amend its regulations to adopt a rule regarding government ownership of a LLW disposal facility that mirrors the NWPA or the resultant impact of this rule change. One commenter supported the petitioner and the other five believe the petition should be denied. The comments and responses were reviewed and considered in the development of NRC's decision on this petition. These comments are available in the NRC Public Document Room. A summary of the significant comments follows:

The commenter that supported this petition for rulemaking was the State of Nebraska. Nebraska had also commented on the ANPRM discussed above, and its position continues to support the petitioner's view that the current NRC rule conflicts with the NWPA. Its comment also states that, " ... there is very little connection between promulgating regulations deemed necessary or desirable to protect public health or to minimize danger to life and property and the current regulation which requires low-level waste disposal on land owned by the federal or state government before a facility can be licensed.

While there may be a need for having the state or federal government involved in owning the property AFTER the operation and closure of a facility, this is not what the current rule does. Instead, it requires state or federal ownership prior to the license being issued" {emphasis in the original).

5

The positions and specific comments from the five commenters who believe the petition should be denied are basically covered in the "Reasons for Denial" Section.

Reasons for Denial The NRC is denying the petition for the following reasons: First, the NRC believes the petitioner is incorrect that the current regulations are inconsistent with Section 15l(b) of the NWPA; second, the NRC has the authority to require Federal or State land ownership as a condition for licensing a LLW disposal facility and continues to believe the existing regulatory procedures are appropriate; and third, the NRC continues to believe that there would be a negative impact if the changes proposed by the petitioner were implemented.

1. The NRC agrees with those commenters who believe the petitioner has incorrectly interpreted the language and intent of the NWPA. Section 15l(b) of the NWPA merely authorizes, but does not require, the DOE to take title to LLW disposal facility sites following termination of an NRC license for such disposal. This is demonstrated by the discretionary language of the statute.

For example, under Section 15l(b), as quoted by the petitioner, "The Secretary (DOE) [sic] shall have the [sic] authority to assume title and custody of low-level radioactive waste and the land on which such waste is disposed of, upon request by [sic] the owner of such waste and land and following termination of the license issued by the Commission (NRC) [sic] for such disposal .... " The NRC believes that there is no conflict between Section 15l(b) of the NWPA and 10 CFR 61.59(a). NRC's requirement under § 61.59(a), that facilities be 6

sited on land owned by Federal or State government, does not prevent DOE from exercising its authority under Section 15l(b) of the NWPA to assume title and custody after license termination. The DOE is a Federal entity and thus could satisfy the § 61.59(a) requirement for governmental land ownership. The NRC regulation in § 61.59(a) is broader than the statutory requirement. For example, assuming for purposes of argument, if DOE lacked the authority under Section 15l(b) of the NWPA to own a disposal site prior to license termination, NRC's regulations would allow another Federal or State entity to own the land as required by§ 61.59(a). The focus of§ 61.59(a) is on Federal or State land ownership, whereas the focus of Section 15l(b) is on DOE's authority to assume title and custody of a LLW disposal facility.

Further, under Section 15l(b)(2), "If the Secretary assumes title and custody of any such waste and land under this subsection, the Secretary shall maintain such waste and land in a manner that will protect the public health and safety, and the environment." The NWPA thus allows the DOE, if it so chooses, to assume title and custody of the waste and land after license

- termination. The discretionary nature of the statutory language indicates that the petitioner's conclusion is incorrect.

Finally, § 61.59(a), on its face does not impose any obligation on the States, rather it imposes a condition with respect to land disposal of low-level waste, namely that the Commission will permit disposal of low-level waste only on land owned by a Federal or State entity. Thus, we see no conflict with the holding in New York v. United States, 112 S. Ct. 2408 (1992) that Congress does not have the authority under the Constitution to compel the States to take affirmative action with regard to waste disposal. Similarly, 7

NRC,s regulation, § 61.59(a), does not direct or compel the States to take affirmative action with regard to waste disposal.

2. As stated in the notice of withdrawal of the ANPRM, the "Commission believes there is adequate statutory authority for the NRC to require Federal or State land ownership." This authority comes from the Atomic Energy Act of 1954, as amended, in Section 161b which gives the Commission the authority to promulgate regulations deemed necessary or desirable to protect health or to minimize danger to life or property. The requirement for Federal or State government ownership of land for disposal of waste at a land disposal facility has been a requirement in the Commission's regulations since the inception of commercial disposal operations (NRC promulgated the land ownership requirement in 1961 (26 FR 352, January 18, 1961)). In exceptional cases an exemption from this requirement may be granted in the public interest if life or property is not endangered pursuant to 10 CFR 61.6. The granting of an exemption by the State of Utah from State land ownership regulations led the Commission to issue the ANPRM in order to solicit comments regarding the possible desirability of changing the rule, but the majority of comments received in response to that solicitation convinced the Commission that no change should be made. The NRC continues to believe that the requirement for governmental land ownership in § 61.59(a) will ensure control of the disposal site after closure, and thereby reduce the potential for inadvertent intrusion, better ensure integrity of the site, and facilitate monitoring of site performance. Further, the NRC staff believes that requiring government ownership prior to licensing is beneficial so that a potential licensing issue is settled prior to the facility beginning operation. The experience of the State of California in obtaining Federal land for the proposed Ward Valley 8

disposal facility is a case in point that transfer of land is not automatic and should not be assumed at the time the license is granted. Therefore, requiring governmental land ownership prior to licensing is an appropriate regulatory requirement.

3. In addition, as discussed in the notice of withdrawal of the ANPRM and by several of the commenters, the proposed change in the requirements could have a de-stabilizing effect on the ongoing efforts by the States to license LLW disposal facilities. The NRC believes that because there would be no health and safety benefit from the proposed change in requirements, it is inappropriate to take an action which could have an adverse impact on the timely development of safe LLW disposal facilities.

For reasons cited in this document, the NRC denies t~peti~on.

Dated at Rockville, Maryland, this ~dt day of L-.~~....c....=--------=--' 1996.

For the Nuclear Regulatory Commission.

for Operations.

9

THE COMMONWEALTH OF MASSACHUSETTS LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT BOARD 100 CAMBRIDGE STREET ROOM 903 BOSTON, MASSACHUSETTS 02202 TELEPHONE : (61 7) 727-6018 FAX : (617) 727-6084___,____

WILLIAM F. WELD GOVERNOR DOCKET NUMBER CHARLES B. KILLIAN PETITION RULE ~~~l - S -- ; \

CHAIRMAN

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CAROL C. AMICK H  ;. ,

EXECUTIVE DIRECTOR March 25, 1996 U.S. Nuclear Regulatory Commission Office of the Secretary Washington, DC 20555-0001 ATTN: Docketing and Service Branch RE: Notice of Receipt of petition for Rulemaking (Heartland Operation to Protect the Environment), 61 Fed. Reg. 633

Dear Mr. Secretary:

The Massachusetts Low-Level Radioactive Waste Management Board has reviewed the referenced Notice and offers the following comments:

The provision of 42 U.S. C. section 10171 (b), relied upon by the petitioner, merely authorizes the U.S.

Department of Energy (DOE) "to assume title and custody of low-level radioactive waste and the land on which such waste is disposed of, upon request by the owner of such waste and land following termination of the license issued by the [NRC] for such disposal ....

• The Board does not understand this provision to mean that private parties shall have the right to own the land upon which an LLRW facUity is sited.

Rather, the provision states only that, if a facUity is located on land owned by a party other than DOE, the Department may, if It so chooses, assume title and custody of that land and the waste, once the facUlty license has been terminated. Such a party may be another federal agency or the state. There Is no Inconsistency between section 10171(b) and NRC's requirement that facUities be sited on land owned by the federal or a state government. 10 CFR 61.59(a).

As the Board noted in its prior comments submitted on October 3, 1994 (a copy is attached), if the government ownership requirement were removed, there would likely be a need for additional health, safety, or surety regulations to ensure that adequate control mechanisms are in place. The Board therefore believes that the government ownership requirement Is a proper exercise of the power conferred by section 161b of the Atomic Energy Act of 1954 to issue regulations It deems necessary or desirable to protect health or to minimize danger to life or property.

Thank you for the opportunity to submit these comments.

Sincerely, CLU-Le.k Carol C. Amick Enclosure Executive Director Acknowledged by card MAR' rr 1996_:

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THE COMMONWEAL TH OF MASSACHUSETTS LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT BOARD 100 CAMBRIDGE STREET ROOM 903 BOSTON, MASSACHUSETTS 02202 TELEPHONE : (617) 727-6018 FAX: (617) 727 -6084 WILLIAM F. WELD GOVERNOR CHARLES B. KILLIAN CHAIRMAN CAROL C. AMICK EXECUTIVE DIRECTOR October 3, 1994 The Secretary of the Commission A U.S. Nuclear Regulatory Commission 9Washington, DC 20555 ATTN: Docketing and Service Branch VIA facsimile and mail Comments on August 3, 1994, Federal Register advance notice of proposed rulemaking: Land Ownership Requirements for LLRW sites

Dear Mr. Secretary:

Enclosed please find comments from the Massachusetts Low-Level Radioactive Waste Management Board regarding the 12 questions posed in the above-referenced Federal Register notice.

Thank you for your consideration of the Board's views on this important issue.

Sincerely,

~e,~

Carol C. Amick Executive Director

Comments from the Massachusetts Low-Level Radioactive Waste Management Board Regarding Land Ownership Requirements for ll..RW Sites

1. The Commission considers that an amendment to 10 CFR Part 61 as described in this ANPRM could facilitate the objectives in the Low-Level Radioactive Waste Policy Act of 1985, as amended, by allowing States additional flexibility in developing new low-level radioactive waste disposal facilities. Would this change be useful for other LLW disposal sites or is it likely that the Utah exemption was one of a kind?

The NRC would specHically request Compacts and Agreement States to inform us if private ownership for any potential site In their region is possible or is precluded by State laws or other provisions.

M.G.L c.111 H §23(g) provides that, upon the selection of a *superior site* for an LLRW facility, "'the deputy commissioner of the division of capital planning and operations shall, on behalf of the {LLRW A Management Board], take appropriate action to acquire, by purchase or taking ..., a fee simple interest in W' the superior site .*. or, in the case of real property of the commonwealth, to transfer the control and use of such property to the board.*

Based on this provision, it appears that an LLRW facility In Massachusetts would be required to be located on state-owned land, whether or not the NRC continued its state-ownership requirement.

Nevertheless, the Management Board welcomes the opportunity to consider alternatives to state ownership, and to recommend appropriate changes in state law, if necessary, to allow more flexibility in facility development.

2. Would this change facilitate or hinder future licensing of LLW facilities?

A facility located on privately-owned land might take longer to license than a comparable facility on state land, and require additional safeguards not needed for a state-owned site. However, the Board understands NRC to be proposing an alternative institutional mechanism (private ownership of a facility site),

not a substitute mechanism. The Board believes that the development of new or additional licensing requirements for facilities on privately owned land will not necessitate any change in current licensing practice for facilities on publicly owned land. Therefore, current licensing practices cannot possibly be hindered by the proposed change.

3. Would this change have any adverse impacts on public health and safety and protection of the environment?

The Board believes that the objective of the proposed change is to create an alternative licensing mechanism that will protect public health, safety and the environment to a degree equivalent to current licensing standards. There is nothing inherent in the proposed change that is inconsistent with that objective.

4. Would the responsible regulatory agency lose any control over the disposal site if it is not owned by the Federal or State government?

Under Massachusetts law, any facility site would be under the control of the Management Board, which is not the agency responsible for regulating the facility. Oearty, the Board would have less control over the facility site if it is privately owned than it would under current law. The Management Board would have to review its regulations governing facility operator selection and its comprehensive operating contract with the fae11ity operator in order to ensure t.hat its control over a facility wouid be adequate to fulfill its statutory obligations.

• 1

The Department of Public Health (which would be the responsible regulatory agency if Massachusetts becomes an Agreement State, as anticipated) would not necessarily lose any control over the facility site, however. The Board assumes that DPH would have to review its licensing regulations to ensure that it is satisfied that adequate control mechanisms are in place.

5. Are there valid reasons why land ownership requirements for NRC-regu/ated disposal sites should be more restrictive than EPA-regulated hazardous waste, municipal waste, and Superfund facilities, where government ownership is not usually a requirement?

The Management Board believes that the current regulatory practice requiring an extended period of institutional control after dosure of an LLRW facility is most conveniently accommodated by government ownership of a facility site.

6. How would private ownership affect liability for a disposal site?

Under Massachusetts and federal law, liability for the untoward consequences of a release of radioactive material from a facility can be imposed on a facility owner, its operator, the party responsible for generating the waste or other responsible party. If the Commonwealth is the owner or operator of note of a facility, then its liabHity would apparently be limited to those circumstances in which it is otherwise a responsible party.

Under M.G.L c.111 H, §9(a), the Commonwealth is responsible for the *reasonable costs of cleaning up and stabilization of a facility" in the event that all other sources of funds (such as the insurance or other assets of responsible parties) and federal assistance are exhausted.

7. Would States' concerns about assuming liability for a disposal site be alleviated by this proposal?

The Board's concerns about assuming liability for hanns caused at an LLRW facility cannot be alleviated in the absence of an express statutory provision exempting the Commonwealth from liability for such harms except where liability would be permissible under the applicable tort daims act. M.G.L c.258.

8. Would deletion of the State or Federal ownership requirements eliminate governmental liability under the Comprehensive Environmental Response, Compensa.tion, and liability Act of 1980 (CERCLA) for releases from the site and, ff so, does this change have any adverse impacts on public health and safety and protection of the environment, including after the active institutional control period?

See the response to Question 6.

9. Should the NRC consider allowing a site owner to be only the licensee, or broaden the proposal to allow other private ownership?

Under current Massachusetts law, the facility operator, acting pursuant to a comprehensive operating contract with the Management Board, holds the facility license until the tennination of the post-closure obselvation and maintenance period, at which time it is transferred to the Board. The Board does not believe that the effectiveness of this relationship In protecting public health. safety and the environment necessaf!ly. depends on the facility site's being owned by either the Commonwealth or the faetlity operator.

Other ownership operations are conceivably workable, assuming that appropriate safeguards are in place.

10. Should there be a time period after- which the licensee can request termination of the license, even though the land might remain in private ownership?

Under M.G.L c.111 H, §46(b), the institutional control period for an URW facility *shall not be less 2

than the minimum time required for any [URW) present at the site to decay to the maximum concentrations above natural background levels permitted to be released into air or water in unrestricted areas under federal and state law.* The Board believes that this time period need not be affected by any change In land ownership requirements.

11. If the NRC were to implement this proposal, are the surety requirements contained in 10 CFR Part 61, Subpart E, sufficient?

The Board believes that additional surety requirements, beyond those contained in 10 CFR Part 61, SUbpart E, are likely to be necessary if the NRC were to implement this proposal. The Board urges NRC to undertake a careful risk assessment of its proposal In order to identify the precise parameters of such additlonal requirements.

12. Under §61.BO(e), all records are to be transfe"ed to Federal and/or State agencies at the time of

~icense termination. ff the license remains in effect during the active institutional control period (licensee

_,;s site owner), would there be a need for this records transfer?

• The Board believes that a records transfer requirement would indeed be appropriate in such a circumstance.

3

E 1oocKETEO USHRC NUCLEAR ENERGY INSTITUTE

• 96 MAR 14 A10 :53 MikeAlissi DIRECTOR, LOW-LEVEL WASTE OF FICE OF SEC~l T~R Y DOC KE TIHC; 6. l R\I IC E C

BRANC,1 March 13, 1996 DOCKET NUMBER Nuclear Regulatory Commission PETITION RULE PAM \- 3 Attn: Docketing and Service Branch ( CoD F"f< lo'o~) @)

Office of the Secretary Washington, DC 20555-0001

Subject:

Comments on Rulemaking Petition to Amend Low-Level Radioactive Waste Disposal Site Land Ownership Requirements (61 Fed. Reg. 633 January 9, 1996)

These are the comments of the Nuclear Energy Institute (NEI) 1 on the petition for rulemaking submitted by Heartland Operation to Protect the Environment (HOPE) to the U.S. Nuclear Regulatory Commission (NRC) on August 7, 1995. The petitioners have asked the NRC to reconsider its July 18, 1995 decision (60 Fed.

Reg. 36744) to withdraw an advance notice of proposed rulemaking (ANPR) (59 Fed. Reg. 39485 - August 3, 1994) revisiting the current regulation requiring state or federal government ownership of land used for low-level radioactive waste (LLW) disposal (10 CFR 61.59(a)). The nuclear energy industry urges the NRC to deny the

- petition.

In a letter dated October 3, 1994 (copy enclosed) in response to the ANPR, NEI urged the NRC to maintain its regulation requiring state or federal ownership of the land on which low-level waste disposal sites are located. While we believe public health and safety can be protected in cases where disposal facilities are located on privately owned land, we are concerned that an NRC rule change to amend the current government ownership requirements could interfere with disposal facility siting efforts underway pursuant to the Low-Level Radioactive Waste Policy Act (LLRWPA).

1 NEI is the organization responsible for establishing unified nuclear industry policy on matters p:ffecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEl's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, nuclear materials licensees, and other organizations and individuals involved in the nuclear energy industry. -' ... _ *- .*.*

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Docketing and Service Branch March 13, 1996 Page 2 Specifically, opportunity for further process-related delays at the state level would be created by an NRC rule change. Siting opponents - who effectively take advantage of public process to obstruct progress - could force state agencies, legislatures, and/or courts to reconsider state land ownership requirements that were established consistent with existing NRC regulations, potentially leading to lengthy reviews and delays. Additionally, in cases where state land ownership requirements are removed, they could be replaced with extremely onerous or prohibitive conditions for private land owners. An example would be unreasonably large financial assurance requirements. The result of further siting delays could adversely impact public health and safety by causing the extended on-site storage of waste at thousands of generator facilities, rather than disposal at centralized facilities specifically designed for that purpose.

The potential risk of such process-related delays could perhaps be justified if the rule change held out the realistic promise of facilitating state siting efforts.

However, no such promise exists, as the NRC learned from state and compact comments on the ANPR. According to the NRC, "States and compacts have generally indicated that they do not need, nor would they allow, private land-ownership and that this rule change could be potentially disruptive to the current LLRW program." (61 Fed. Reg. 633.)

Also, the rule change is unnecessary. Under current regulations, in situations where private land ownership is deemed necessary or appropriate, exceptions to the rule may be granted under 10 CFR 61.6, or equivalent agreement state regulations, as occurred in the case of Envirocare of Utah. There is no compelling need or benefit for a generic rule change, and we believe it would do more harm than good in advancing the objectives of the LLRWPA.

Accordingly, we believe the NRC, for good and valid reasons, withdrew the ANPR and we urge the agency similarly to reject the HOPE petition.

The petitioner claims that the NRC's government land ownership requirement conflicts with federal law - namely Subtitle D of the Nuclear Waste Policy Act (NWPA). This statute provides the Secretary of the Energy with the necessary authority to take title and custody of low-level waste and the land on which the waste is disposed "upon request by the owner of such waste and land and following termination of the license issued by the [NRC]." The statute identifies specific criteria that must be satisfied as a condition of the Secretary accepting title to the waste and associated land (42 USC 10171(b)).

Contrary to HOPE's assertion, neither the plain language of this statute nor its associated legislative history can be construed to preclude the NRC from establishing a federal or state government land ownership requirement for

Docketing and Service Branch March 13, 1996 Page 3 operating low-level radioactive waste disposal sites. Congress adopted the NWPA, including the provision in question, following enactment of the LLRWPA in 1980 to authorize DOE ownership of commercial LLW (and the sites on which such LLW is disposed) after license termination as a mechanism by which long-term safety could be assured. Nothing in the law nor the legislative history address in any way the ownership status of operating sites, mandate any change to that status, or in any way constrain the NRC from determining what is required for protecting public health and safety in this matter. We agree with the position of the NRC as documented in SECY-95-152 dated June 13, 1995, that the NRC has the statutory authority to require federal or state land ownership.

Like 10 CFR 61.59(b), an NRC regulation in effect when Congress passed the Nuclear Waste Policy Act, 10 CFR 20.302(b), required federal or state government land ownership of operational LLW disposal sites. The three LLW disposal facilities operating at that time were located on state or federally owned land, and we are aware of no parties who raised objections to this arrangement during deliberation of the statutory provision in question. If Congress intended to change the status quo and nullify the NRC's land ownership regulation, it could have done so, and it did not.

Interestingly, the NRC was among the parties that urged Congress to adopt a provision governing the final ownership of disposal sites in the LLW Policy Act of 1980. On April 3, 1980, NRC Chairman John F. Ahearne wrote to Congressman Harley 0. Staggers, Chairman of the House Committee on Interstate and Foreign Commerce, providing the NRC's comments on R.R. 5809:

- The Commission believes that it would be desirable to include an additional provision with respect to final ownership of the disposal sites. Our regulations (10 CFR 20.302(b)) currently require that licensed materials must be disposed of on land owned by either the Federal or a state government. We believe that, just prior to the termination of the license for the site, the state in which it is located should have the option of taking ownership from the Federal government or of transferring ownership to the Federal government.

Congress did eventually adopt NRC's recommendation, in pertinent part, when it passed the Nuclear Waste Policy Act of 1982. Congress did not, however, speak to the ownership of land for operating sites.

The petitioner also claims that the NRC identified no health and safety basis for the government land ownership requirement in its notice withdrawing the ANPR.

However, this argument fails to recognize that the fundamental purpose of the land ownership requirement is, in fact, protection of public health and safety. In the

Docketing and Service Branch March 13, 1996 Page 4 August 3, 1994 Federal Register notice announcing the ANPR (59 FR 39485), the NRC states that "[the land ownership requirement] was issued to assure control of the disposal site after closure, and thereby reduce the potential for inadvertent intrusion, better ensure integrity of the site, and facilitate monitoring of site performance." Moreover, the NRC's notice withdrawing the ANPR concurred with public comments expressing concern that a rule change could adversely impact public health and safety by disrupting the timely development of disposal facilities, forcing extended on-site storage of low-level waste at generator sites. The NRC has consistently maintained that disposal is preferable to on-site storage of low-level waste, from a health and safety perspective.

We also strongly disagree with HOPE's assertion that NRC should not concern itself with facilitating the current low-level waste disposal siting process. On the contrary, NRC should continue to explore appropriate regulatory actions that promote the timely development of safe low-level waste disposal facilities, and avoid actions that delay the siting process. Such actions fall squarely within the agency's mandate to protect public health and safety.

For these reasons, we urge the NRC to deny the rulemaking petition. Please contact me at 202-739-8119 if you have any questions.

Sincerely,

\\-,h' ~ -

Mike Alissi Enclosure

NUCLEAR ENERGY INSTITUTE John F. Schmitt, CHP DIRECTOR.

RADIOLOGICAL PROTECTION, EMERGENCY PREPAREDNESS, &

WASTE REGULATION October 3, 1994 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Docketing and Service Branch

SUBJECT:

Nuclear Energy Institute Comments on the Nuclear Regulatory Commission's Advance Notice of Proposed Rulemaking on Land Ownership Requirements for Low-Level Waste Sites (59 FR 39,485 -

August 3, 1994).

Dear Mr. Secretary:

The Nuclear Energy Institute (NEI)1 is pleased to comment on behalf of the nuclear industry on the Nuclear Regulatory Commission's (NRC) advance notice of proposed rulemaking (ANPR) on land ownership requirements for low-level waste disposal sites (59 FR 39,485). The ANPR requests public comment on possible amendments to NRC regulations to allow private ownership of low-level radioactive waste (LLW) disposal sites as an alternative to the current requirement for federal or state ownership. As discussed below, the industry believes that such a rule change could be accomplished in a manner fully protective of public health and safety. However, we are concerned that a rule change to allow private ownership may harm LL W disposal site development efforts presently underway in the states and compacts. Any potential benefit of private ownership would be better achieved through case-specific exceptions to the land ownership requirements, as is currently permitted, rather than through a change to the regulation. We recommend that NRC not proceed with a proposed rulemaking to amend its land ownership requirements.

The NRC's purpose for the existing requirement that disposal sites be state or federally owned is "to assure control of the disposal site after closure, and thereby reduce the potential for inadvertent intrusion, better ensure integrity of the site, and facilitate monitoring of site 1

NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include*an utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, nuclear materials licensees, and other organizations and individuals involved in the nuclear energy industry.

1776 I STREET . NW SU ITE 400 WASHINGTON . DC 20006-3708 PHONE 202 . 739.8000 FA X 202 . 78.5 . 40\Q

Secretary October 3, 1994 Page 2 performance." (59 FR 39,485). This recognizes that governmental entities are generally more stable and permanent than private entities. However, the industry believes that appropriate requirements can be established to reasonably assure that a disposal site will be properly controlled for as long as a governmental entity is in existence, even if the site is owned by a private entity. Examples of such requirements include deed restrictions (such as a restrictive covenant); an adequate financial surety arrangement, where sufficient funds to cover closure and long-term care are held in a government account; and, to address a worst case situation, provisions for the government to use its police power to take whatever action might be necessary to protect public health and safety. Governmental entities other than states or the federal government, such as compact commissions, could also own a site without jeopardizing its safety.

Disposal site monitoring and the prevention of inadvertent intrusion are the major post-closure objectives of l OCFR Part 61. Any governmental entity considered capable of meeting these requirements as the land owner should similarly be expected to ensure these requirements are met on privately owned land under its regulatory control. We believe that, provided the appropriate regulatory controls are applied to private site owners, the two options of private ownership and government ownership are no different in terms of the protection of public health and safety.

For instance, the mechanisms established to ensure proper control of the privately-owned Envirocare of Utah, Inc. LLW disposal site (including a restrictive covenant, an adequately-funded trust agreement, zoning restrictions, etc), as well as the State of Utah's police powers, led the NRC staff to accept an exemption from the government land ownership requirement in that case last year. We believe this was an appropriate decision.

However, a change in NRC regulations to allow states the option of private site ownership, while not a health and safety concern, could have an adverse impact on plans to develop new LLW disposal sites by the states and compacts pursuant to the LLW Policy Amendments Act. First, it could potentially lead to delays in siting schedules as a result of host states considering regulatory or legislative amendments to allow or require private site ownership. Second, in cases where a host state might decide to require private site ownership, it is possible that unnecessarily onerous requirements could be established for a private entity who owns a disposal site (such as excessive financial surety requirements), thereby making it difficult or impossible to find a suitable site owner.2 These possible consequences should be a concern for the NRC, since the agency has a legitimate health and safety based policy interest in the timely development of new low-level waste disposal facilities to reduce the need for on-site storage at thousands of licensee sites throughout the country.

2 If the NRC proceeds with a proposed rule to pennit private land ownership, the industry would strongly urge the NRC to require that the federally-established requirements imposed upon the land owner be adopted essentially verbatim by Agreement States, rather than permitting Agreement States to impose their own requirements, which may be excessively stringent.

Secretary October 3, 1994 Page 3 The nuclear industry believes these potential adverse impacts outweigh the possible benefits of a generic rule change, such as providing the states added flexibility. The current new site development processes are very heavily dominated by state governments, unlike the siting of the Envirocare of Utah, Inc. facility. State legislatures have established explicit siting criteria (and, in some cases, make siting decisions), and state agencies conduct or oversee nearly all aspects of site development. Under these circumstances, we do not believe a rule change to allow the option of private site ownership would have a meaningful positive impact. For instance, it would not encourage a private sector solution to the shortage of disposal capacity, since state governments would retain at least their present level of control over facility siting.

We believe that in cases where there is a special need for private site ownership (like a state that is unwilling or unable to own the land), it can be accomplished through the exemption process established in 10 CFR 61.6, or equivalent Agreement State provisions, as was the case with Envirocare. Therefore, we recommend that NRC not proceed with a proposed rulemaking.

We appreciate the opportunity to comment on this matter, and fully support the NRC staffs exploration of possible amendments to the LLW disposal regulations, in this and other cases, to encourage the more timely development of new disposal facilities. Please contact Mike Alissi at 202-739-8119, or me if you have any questions or comments.

JFS/MSA:eas

5-¢..~~~:!,,~~lS DOCKET ED DEPARTME *, AR SAFETY USNRC 10~ ..__,,._,_ E SPRI . '96 MAR 14 A9 :18 704 Jim Edgar Thomas W.,, Qr.tci$et:P.E TA y Governor o~[ 1

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BRA CH March 11, 1996 DOCKET NUMBER PETITION RULE PRM lo 1-o The Secretary of the Commission

("-\rR(o~3) © U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch RE: Notice of Receipt of Petition for Rulemaking Docket No. PRM-61-3

Dear Mr. Lesar:

The Illinois Department of Nuclear Safety (Department) hereby submits its comments on the above-referenced document regarding land ownership requirements for LLRW sites.

The Department does not support petitioner's proposal regarding private land ownership of a LLRW disposal site. To change the requirements to the LLRW program at this time would hinder the states who are currently developing low-level waste disposal sites. The State of Illinois requires that any site used for permanent storage and disposal of radioactive waste material be acquired in fee simple absolute by the State and dedicated in perpetuity to the purpose of disposal. The Illinois General Assembly recognized that any disposal site represents a continuing and perpetual responsibility in the interests of the public health, safety and welfare and that the disposal must be maintained in a sovereign government.

Under these statutory mandates and implementing regulations, the State of Illinois is working toward development of a low-level radioactive waste disposal site.

Any changes to 10 CPR Part 61 at this time would halt the progress of low-level waste disposal in the State of Illinois. It is unwise at this time to change the land ownership requirement as it would likely jeopardize the progress made so far in the disposal

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The Secretary of the Commission Page 2 March 11, 1996 process. Therefore, the Department cannot and does not support the petition for rulemaking on this issue.

If you have any questions regarding these comments, do not hesitate to contact Wayne Kerr or Steve Collins at (217) 785-9947.

Thomas W. Ortciger Director TWO:bc cc: Richard L. Bangart, Office of State Programs, NRC James Lynch, State Agreements Officer

03 / 11 / 96 15:43 u202 586 3915 EH DOE 141002 Department of Energy DOCK ETED Washington, DC 20585 USNR C March 11, 1996 '96 MAR 11 P4 :Q()

Nuclear Regulatory Commission OFFICE OF SECRETARY Attention: Emile L. Julian, DO CKE Tlt:G E-- :E V!Cf:.

Docketing and Service Branch 8Rt~ 'C H Office of the Secretary Washington, DC 20555-0001 .. . ,.~"

DOCKET NUMBER ~". i

Dear Mr. Julian:

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This responds to the Commission's 9 January 1996 Federal Register Notice r~questing comments on a petition from the Heartland operation to Protect the Environment (Docket No. PRM-61-3). The petitioner requests that the Commission amend its regulations to adopt a rule regarding government ownership of a low-level radioactive waste disposal facility site that is consistent with Section 15l(b) of the Nuclear Waste Policy Act of 1982 (NWPA).

42 u.s.c. 1017l(b). For the reasons stated below, the Department does not concur in, this request.

By interpreting the statute to require the Federal Government to take title to low-level waste disposal facility sites, rather than merely authorizing federal acquisition of these sites, the petitioner has misconstrued the language and intent of the NWPA.

Section lSl(b) of the NWPA authorizes, but doe6 not require, the.

Department to take title to low-level waste disposal facility sites following termination of a Nuclear Regulatory Commission (NRC) licensee for such disposal. This is clearly demonstrated by the discretionary language of the statute. For example, under Section 151(b) of the NWPA, "the secretary shall have authority to assume title and custody of low-level radioactive waste and the land *** " (emphasis added). Further, under Section 151(b)(2),

"if the Secretary assumes title and custody .of any such waste and land, the Secretary 5hall maintain such waste and land in a manner that will protect the public health and safety, and the environment" (emphasis added). Thus, the discretionary nature of the statutory language clearly demonstrates that the petitioner's conclusion is based on an incorrect assumption.

In addition, the petitioner erred in her conclusion that there is a direct conflict between section 15l(b) of the NWPA and 10 CFR 61.59(a}, which requires dispo6al of low-level radioactive waste 11 only on land owned in fee by the Federal or State government."

For example, nothing in this regulation could be construed as requiring the Secretary of Energy to acquire a disposal facility site prior to the termination of a site license. In addition, nothing in the NWPA would prohibit a private licensee from disposing of low~level radioactive waste on a site owned by a state, prior to the termination of the license. This would be

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consistent with the Low-Level Radioactive Waste Policy Act, 42

.u.s.c. 2021b, et seq. Also, the regulation would not prohibit the Federal Government from acquiring a l .o w-level waste dispo'sal facili_ty site owned by a state, under its NWPA authority, after the termination of a state's license, In conclusion, the Department recommends that the petition be denied, and that the Commission take no further action to amend the subject regulation, The Department does not believe that the NRC acted arbitrarily and capriciously in promulgating the regulation, because the regulation is not inconsistent with the NWPA.

Sincerely, Attt~

Director Office of Environmental Policy and Assistance

03 / 11/ 96 15:42 '5'202 586 3915 EH DOE Department of Energy Washington, DC 20585

• OFFICE OF ENVIRONMENTAL POLICY AND ASSISTANCE, EH-41 PHONE: (202) 586-7870 FAX: (202) 586-3915 RCRNCERCLA DIVISION, AIR, WATER & RADIATION EH-413 DIVISION, EH-412

• PHONE: (202) 586-6374 PHONE: (202) 586-2409 FAX: . (202) 586~3915 FAX: (202) 586-3915 .

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STATE OF NEBRASKA GOVERNOR'S POLICY RESEARCH OFFICE Jean A. Lovell Director P.O . Box 94601 Lincoln, Nebraska 68509-4601 Phone (402) 471-2414 Fax (402) 471-2528 E. Benjamin Nelson March 8, 1996 Governor Nuclear Regulatory Commission DOCKET NUMBER Att: Docketing and Service Branch PETITION RULE PRM <a\- s Office of the Secretary Washington, D.C. 20555-0001 (Co\FR.b=i~) @

RE: Docket No. PRM-61-3

Dear Commissioners:

This is a response on behalf of the State of Nebraska to your request for a public comment on the above docketed petition for rule making.

It would appear that the current NRC rule concerning land ownership is clearly inconsistent with Nuclear Waste Policy Act of 1982.

This Act is very specific and would act to preempt the more general Atomic Energy Act of 1954 on this issue.

Nebraska agrees with the petitioner that there is very little connection between promulgating regulations deemed necessary or desirable to protect health or to minimize danger to life and property and the current regulation which requires low-level waste disposal on land owned by the federal or state government before a facility can be licensed. While there may be a need for having the state or federal government involved in owning the property AFTER the operation and closure of a facility, this is not what the current rule does. Instead, it requires state or federal ownership prior to the license being issued.

In closing, Nebraska stands by our comments made in the ANPRM (59 FR 39485) and asks that those comments be made a part of this proceeding.

Thank you for allowing the opportunity for commenting on this Proposed Rule Making and if you need any other information feel free to contact our office.

Sincerely, t

~Tff(}i?A---J- --?Jt-el~-1 Steven J.VMoeller Policy Advisor Acknowledged by card MAR- Tl 1-99f

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"96 FEB 26 Al O:S 7 Raleigh Research Director DOCKET NUMBER PETITION RULE PRM

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Nuclear Regulatory Commission CD Attention: Docketing and Service Branch Office of the Secretary Washington DC 20555-0001 *

• Re: Heartland Operators' petition Re: 10 CFR 61.59(a)

Re: 61 FR 633ff The Clean Wa~er Fund of North Carolina has considered that the Nuclear Regulatory Commission acted prudently, and with sufficient rationale, in withdrawing on 18 July 1995 the advance notice of proposed rulemaking which contemplated amending existing regulations to allow private ownership ofland at a "low-lev~l" radioactive waste facility site. The Fund has agreed with the Commission' s prior assertions that such action would disrupt current process. The Fund also considers that public ownership of land is more likely than private ownership to assure that such facilities are responsibly managed with appropriate attention to long-term issues: After examination of the relevant laws governing "low~lever* radioactive waste, the Fund has concluded that the Heartland Operators' petition, noticed Tuesday 9 January 1996 at 61 FR 633ff, is based on an incorrect premise. The Fund considers th~t, the petitioner's claim to the contrary notwithstanding, the Commission's existing land ownership requirements do*serve .to protect health and minimize danger to life and property: by coupling the disposal of potentially long-lived wastes to government institutions, which are more likely than mere corporations to survive a longer portion of the full hazardous life of waste constituents, the landownership requirements* potentially provide additional security that the sites will be monitored and if necessary :remediated. The Fund therefore agrees with the Commission that adequate authority exists for the existing regulatory requirements.

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Raleigh Office: P.O.Box 1008, Raleigh, NC 27602 . 919-832-7491 sheville Office: 29 112 P_age Ave., Asheville, l~C 28801 , 704-25 1-1291

U.S. NUCLEAR REGULATORY COMMISSIO~

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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON , D.C. 20555--0001 DOCKETED USNRC October 3, 1995 "96 JAN 25 A7 :43 OFFICE OF SE CRE TARY DOCKETING &. r;EH VICE BR #-\ CH Ms. Diane A. Burton DOCKET NUMBER Managing Director, Heartland Operations PETITION RULE PAM to Protect the Environment ( lo\ FR.. ~~3-::-~---i~ ~

1903 N Street, Suite E Auburn, Nebraska 68305

Dear Ms. Burton:

I am responding to your letter of August 7, 1995, in which you requested that the NRC reconsider its decision to withdraw an advance notice of proposed rulemaking (ANPR) on land ownership requirements for low-level radioactive waste (LLW) sites (60 FR 36744). After carefully considering your comments, however, the Commission believes that your rationale for changing 10 CFR 61.59(a) is sufficiently different from that underlying the ANPR that it would be more appropriate to consider your letter as a request for a new rulemaking.

Your primary contention as stated in your letter is that the NRC's present regulation (10 CFR 61 . 59(a)), requiring disposal of LLW "only on land owned in fee by the Federal or a State government," is in conflict with a provision in the Nuclear Waste Policy Act of 1982, as amended (42 USC 1017l(b)), which authorizes the U.S. Department of Energy "to assume title and custody of low-level radioactive waste and the land on which such waste is disposed of, upon request by the owner of such waste and land and following termination of the license issued by the Commission (NRC) for such disposal .... " Consequently, you propose requiring private land ownership during operations and closure of the facility, and then converting title to the site to the U.S. Department of Energy. The ANPR, on the other hand, considered the option to allow private ownership indefinitely, given that adequate land use restrictions were imposed.

In light of this fundamental difference in approach, we have decided to handle your letter as a petition for rulemaking. The NRC procedure and process for filing and responding to a petition for rulemaking can be found in NRC regulations (10 CFR 2.802), a copy of which is enclosed . Since the NRC staff has determined that your letter contains the necessary information for it to be treated as a petition, we will assign it a docket number, formally docket it, and place it in the NRC's Public Document Room. We will also request public comment on the petition by publishing a notice in the Federal Register.

2 If you have any questions regarding this matter, please contact Mark Haisfield of the NRC Office of Nuclear Regulatory Research (301-415-6196).

Sincerely, Original signed by Shirley Ann Jackson Shirley Ann Jackson

Enclosure:

As Stated Originating Office: EDO SJ - Approved Ref: CR-95-108 KR - Approved w/edit Commission Correspondence OFFICE SE~

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ENCLOSURE Procedure and Process for Filing and Responding to a Petition for Rulemaking

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§2.800 10 CFR Ch. I (1-1-95 Edition)

Commission to be irreleva.nt or unnec- termination to withhold the informa-essary to the performance of its func- tion from public disclosure.

tions, it shall be returned to the appli- (d) The following information shall ca.nt. be deemed to be commercial or finan-(6) Withholding from public inspec- cial information within the meaning of tion shall not affect the right, if a.ny, §9.17(a)(4) of this chJJ.pter and shall be of persons properly a.nd directly con- subject to disclosure only in accord-cerned to inspect the document. The ance with the provisions of §9.19 of this Commission may require informatf'>n chapter.

claimed t.:, uE; ........~.,- .,.,cret or privi- (1) Correspondence a.nd reports to or leged or confidential commercial or fi- from the NRC which contain informa-nancial information to be subject to in- tion or records concerning a licensee's spection: (1) Under a protective agree- or applicant's physical protection or ment, by contractor personnel or gov- material control and accounting pro-ernment officials other tha.n NRC offi- gram for special nuclear material not cials; (11) by the presiding officer in a otherwise designated as Safeguards In-proceeding; and (111) under protective formation or classified as National Se-curity Information or Restricted Data.

order, by parties to a proceeding, pend- (2) Information submitted in con-ing a decision of the Commission on fidence to the Commission by a foreign the matter of whether the information source.

should be made publicly available or (e) The presiding officer, if any, or when a decision has been made that the the Commission may, with reference to information should be withheld from the NRC records* and documents *made public disclosure. In camera sessions of available pursuant to this section, hearings may be held when tht:: infor- issue orders consistent with the provi-mation sought to be withheld is pro- sions of this section a.nd §2.740(c).

duced or offered in evidence. If the Commission subsequently determines (41 FR 11810, Mar. 22, 1976, as amended at 42 that the information should be dis- FR 12877, Mar. 7, 19T7; 52 FR 49355, Dec. 31, 1987; 53 FR 17688, May 18, 1988]

closed, the information and the tran-script of such in camera session will be made publicly available. Subpart H-Rulemaklng (c) If a request for withholding pursu- f 2.800 Scope of rulemaking.

a.nt to paragraph (b) of this section is denied, the Commission w111 notify an This subpart governs the issua.nce, applicant for withholding of the denial amendment and repeal of regulations with a statement of reasons. The no- in which participation by interested tice of denial will specify a time, not persons is prescribed under section 553 less than thirty (30) days after the date of title 5 of the U.S. Code.

of the notice, when the document will (35 FR 11459, July 17, 1970) be placed in the Public D<lcument Room. If, within the time specified in f 2.801 Initiation of rulemaking.

the notice. the applicant requests with- Rulemaking may be initiated by the drawal of the document, the document Commission at its own instance, on the will not be placed in the Public Docu- recommendation of another agency of ment Room a.nd will be returned to the the Unfted States, or on the petition of applicant: Provided, That information any other interested person.

submitted in a rule making proceeding which subsequently forms the basis for f 2.802 Petition for ruJ ..rnaking.

the final rule w111 not be withheld from (a) Any interested person may peti-public disclosure by the Commission tion the Commission to issue, amend or and w111 not be returned to the appli- rescind any regulation. The petition ca.nt after denial of any application for should be addressed to the SecretarY, withholding submitted in connection U.S. Nuclear Regulatory Commission, with that information. If a request for Washington, DC 20555, Attention: Chief, withholding pursuant to paragraph (b) Docketing and Service Branch.

of this section is granted, the Commis- (b) A prospective petitioner may con-sion will notify the applicant of its de- sult with the NRC before filing a peti-86

Nuclear Regulatory Commission §2.802 tion for rulemaking by writing the Di- (d) The petitioner may request the rector, Freedom of Information and CommJssion to suspend all or any part Publications Services, Office of Admin- of any licensing proceeding to which istration, U.S. Nuclear Regulatory the petitioner ie a party pending dis-CommJeeion, Washington, DC 20555, At- position of the petition for rulemaking.

tention: Chief, Rules Review and Direc- (e) If it ie determined that the peti-tives Branch. A prospective petitioner tion includes the information required may also telephone the Rules Review by paragraph (c) of this section and ie a.nd Directives Branch on (301) 415-7158 complete, the Director, Division of or toll free on (800) 368-5642. Freedom of Information and Publica-(1) In any consultation prior to the tions Services, or designee, will assign Qllng of a petition for rulemaking, the a docket number to the petition, will assistance that may be provided by the cause the petition to be formally dock-NRC staff is limited to- eted, and will deposit a copy of the (1) Describing the procedure and proc- docketed petition in the Commieeion's eee for ftling and responding to a peti- Public Document Room. Public com-tion for rulemaking; ment may be requested by publication (11) Clarifying an existing NRC regu- of a notice of the docketing of the peti-lation and the baste for the regulation; tion in the FEDERAL REGISTER, or, in a.nd appropriate cases, may be invited for (111) Aeeieting the prospective peti- the first time upon publication in the tioner to clarify a potential petition eo FEDERAL REGISTER of a proposed rule that the CommJee1on 1e able to under- developed in response to the petition.

stand the nature of the issues of con- Publication wlll be limited by the re-cern to the petitioner. quirements of section 181 of the Atomic (2) In any consultation prior to the Energy Act of 1954, as amended, and Qllng of a petition for rulemaking, in may be limited by order of the Com-providing the assistance permitted in mission.

paragraph (bXl) of this section, the (f) If it ie determined by the Execu-NRC staff will not draft or develop text tive Director for Operations that the or alternative approaches to address petition does not include the informa-matters in the prospective petition for tion required by paragraph (c) of this rulemak1ng. section and is incomplete, the peti-(c) Each petition filed under this sec- tioner will be notified of that deter-tion shall: mination and the respects in which the (1) Set forth a general solution to the petition is deficient and will be ac-problem or the substance or text of any corded an opportunity to submit addi-proposed regulation or amendment. or tional data. Ordinarily this determina-specify the regulation which is to be tion will be made within 30 days from revoked or amended; the date of receipt of the petition by (2) State clearly and concisely the the Office of the Secretary of the Com-petitioner's grounds for a.nd interest in mission. If the petitioner does not sub-the action requested; mit additional data to correct the defi-(3) Include a statement in support of ciency within 90 days from the date of the petition which shall set forth the notifi"ation to the petitioner that the specific issues involved, the petition-er"s views or arguments with respect to those issues, relevant technical, sci-entific or other data involved which is reasonably available to the petitioner, petition is incomplete, the petition may be returned to the petitioner with-out prejudice to the right of the peti-tioner to file a new petition.

(g) The Director, Division of Freedom

)

and such other pertinent information of Information and Publications Serv-

&s the petitioner deems necessary to ices, Office of Administration, will pre-support the action sought. In support pare on a semiannual b!Ulis a summary or its petition, petitioner should note of petitions for rulemaklng before the any specific cases of which petitioner Commission, including the status of Is aware where the current rule is un- er.ch petition. A copy of the report will dUly burdensome, deficient, or needs to be available for public inspection and be strengthened. copying for a fee in the Commission's 87 167-029 0-96-4

§2.803 10 CFR Ch. I (1-1-95 Edition)

Public Document Room, 2120 L Street, and (c) of this section will not be re-NW., Washington, DC.' quired to be applied-(1) To interpretative rules, general

[44 FR 61322, Oct. 25, 1979, as amended at 46 FR 35487, July 9, 1981; 52 FR 31609, Aug. 21, statements of policy, or rules of agency 1987; 53 FR 62993, Dec. 30, 1988; 54 FR 53315, organization, procedure, or practice; or Dec. 28, 1989; 56 FR 10360, Mar. 12, 1991; 59 FR (2) When the CommiBSion for good 44895, Aug. 31, 1994; 59 FR 60552, Nov. 25, 1994) cause finds that notice and public com-ment are impracticable, unneceBBarY, t 2.803 Determination of petition. or contrary to the public interest, and No hearing will be held on the peti- are not required by statute. This find-tion unleBS the Comm1BSion deems it ing, and the reasons therefor, will be advisa.ble. If the Comm188ion deter- incorporated into any rule iBBued with-mines that sufficient reason exists, it out notice and comment for good will publish a notice of proposed rule- cause.

making. In any other case, it will deny (e) The CommiSBion shall provide for the petition and will notify the peti- a 30-day post-promulgation comment tioner with a simple statement of the period for-grounds of denial. (1) Any rule adopted without notice and comment under the good cause ex-t 2.804 Notice of propoeecl rufomaklnc ception on paragraph (d)(2) of this sec-tion where the basis is that notice and (a) Except as provided by paragraph comment is "impracticable" or "con-(d) of this section, when the Commis- trary to the public interest."

sion proposes to adopt, a.mend, or re- (2) Any interpretative rule, or gen-peal a regulation, it will cause to be eral statement of policy adopted with-published in the FEDERAL REGISTER a out notice and comment under para-notice of proposed rulemaking, unleBB graph (d)(l) of this section, except for all persons subject to the notice are those cases for which the Commission named and el ther are personally served finds that such procedures would serve or otherwise have actual notice in ac- no public interest, or would be so bur*

cordance with law. densome as to outweigh any foresee-(b) The notice will include: able gain.

(1) Either the terms or substance of (f) For any post-promulgation com-the proposed rule, or a specification of ments received under paragraph (e) of the subjects and issues involved; this section, the Commission shall pub-(2) The manner and time within lish a statement in the FEDERAL REG-which interested members of the public ISTER containing an evaluation of the may comment, and a statement that significant comments and any revi-copies of comments may be examined sions of the rule or policy statement in the Public Document Room; made as a. result of the comments and (3) The authority under which the their eva.lua.tion.

regulation is proposed; [27 FR m. Jan. 13, 1962, as amended at 50 FR (4) The time, place, and nature of the 13010, Apr. 2, 1985) public hearing, if any; (5) If a hearing is to be held, designa- , 2.805 Participation by interested per-tion of the presiding officer and any 80118.

special directions for the conduct of (a) In a.ll rulemaking proceedings the hearing; and conducted under the provisions of (6) Such explanatory statement as § 2.804(a.), the Commission will afford the Commission may consider appro- interested persons an opportunity to priate. participate through the submission of (c) The publication or service of no- statements, information, opinions, and tice will be made not less than fifteen arguments in the manner stated in the (15) days prior to the time fixed for notice. The Commission may grant a.d*

hearing, if any, unless the Commission ditional reasonable opportunity for the for good cause stated in the notice 1.co- submission of comment:!.

vides otherwise. (b) The Comnussion may hold infor-(d) The notice and comment provi- mal hearings at which interested per*

sions contained in paragraphs (a), (b), sons may be heard, adopting proce*

88

HEARTLAND OPERATION TO PROTECT THE ENVIRONMENT An Educational and Informational Resource Service 1903 'N' Street Diane A. Burton Suite "E" Managing Director Auburn, Nebraska 68305 FAX or Phone (402) 274-5242 August 7, 1995 VtA CERTIFIED U.S. MAIL Return Receipt Requested Shirley Jackson, Chairman U.S. Nuclear Regulatory Commission Washington, o.c. 20555 Re: FR Doc. 95-17562 RIN 3150-AE88 LLRW Landownership

Dear Ms. Jackson:

I have been trying to determine the proper procedure for appealing the recent decision of the Commission to withdraw its advanced notice of proposed rulemaking (59 FR 39485). Solicitor John Cordes suggested that I write to the Chairman of the Commission and request that said decision be reconsidered.

Therefore, I respectfully request that the Commission reconsider its decision of July 12, 1995, published in the Federal Register Vol. 60, No. 137, at page 36744, dated July 18, 1995, for the following reasons:

1. The regulation which was the subject of the proposed rulemaking, 10 CFR Part 61, S61.59(a), provides: "Disposal of radioactive waste received from other persons may be permitted only on land owned in fee by the Federal or a State government."

Such regulation would require a commercial low-level radioactive waste (LLRW) disposal site to be owned by the Federal or a state government prior to commencing operation and receiving waste.

That regulation appears to be in direct conflict with the only Federal sLatute addressing Federdl ownership of commercial LLRW disposal sites, which allows for Federal government ownership of commercial LLRW disposal sites only following the operational life of a disposal site. That statute is found at 42 USC 10171(b), and provides in pertinent part:

"Title and custody (1) The Secretary [DOE]

shall have the authority to assume title and custody of low-level radioactive waste and the land on which such waste is disposed of, upon request by the owner of such waste and land and following termination or the license issued by the Commission [NRCl for such disposal, if the Commission determines that --

(A) the requirements of the Commission for site closure, decommissioning, and decon-tamination have been met by the licensee involved and that such licensee is in com-pliance with the provisions of subsection (a) of this sections; (BJ such title and custody will be trans-ferred to the Secretary without cost to the Federal Government; and (CJ Federal ownership and management of such site is necessary or desirable in order to protect the public health and safety, and the environment. [Emphasis added]

Because of the conflict between the regulation on the one hand, and the statute on the other, it would appear clear that the regulation is arguably void in regard to Federal Government ownership of a LLRW disposal site prior to commencement of the receipt of waste. If said regulation is viod with regard to Federal government ownership, I submit that it is also silent with regard to State government ownership -- or unconstitutional Csee New York v. United States, 112 s.ct. 2408 (1992)1.

2. The Federal Register notice (60 FR 36744) of the withdrawal contains no documentation or statement of any issue of public health and safety as the basis for the said regulation. And, in fact, there can be no issue of public health and safety upon which such regulation is based.

3. The Federal Register notice (60 FR 36744) contains the statement that "The Commission believes that the potential negative impact of disrupting the current process far outweighs any potential benefits that might be derived from making a generic rule change at this time." The Commission's role is to regulate nuclear materials in a manner that protects public health and safety and the environment, its. rqle is not to facilitate specific processes, i.e. the current LLRW disposal process.

2

4. The Federal Register notice contains a quote from the Idaho National Engineering Laboratory's (a contractor for the U.S. DOE)

National LLRW Management Program:

For over three decades the public has been led to believe that all LLW disposal sites would necessarily be owned and controlled by either a Federal or State government.

This, we believe, has been an important factor in convincing many proponent groups and State and local LLW advisory groups that LLW can and will be disposed of in a safe manner. To now try and convince these groups that Federal or State ownership of LLW disposal sites is not required, may be difficult and generate a siynificant credibility problem.

It is submitted that credibility problems occur when misrepresentations -- i.e. government ownership is necessary in order to assure proper LLRW management -- are initially made, and that such credibility problems are exacerbated the longer such misrepresentations are allowed to continue. There would certainly appear to be a larger credibility problem for the Commission to maintain a regulation that is in direct conflict with a statute. The Commission might reflect on the Department of Energy's recent efforts to gain credibility by coming clean on past misrepresentations -- i.e. secret radiation studies.

For the above and foregoing reasons, the Commission should reconsider its decision to withdraw the advanced notice of proposed rulemaking, and go forward with the rulemaking process to adopt a rule regarding government ownership of LLRW disposal sites that is consistent with the Federal statute [42 USC 10171(b)] addressing the issue.

Thank you for you kind attention and consideration.

Sincerely,~

~di-~~-

Diane A. Burton pc: Governor Ben Nelson 3

HEARTLAND OPERATION TO PROTECT THE ENVIRONMENT An Educational and Informational Resource Service 1903 'N' Street Diane A. Burton Suite "E" Managing Director Auburn, Nebraska 68305 FAX or Phone (402) 274-5242 July 31, 1995 VIA U.S. Certified Mail Return Receipt Requested John c. Hoyle, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: FR Doc. 95-17562 RIN 3150-AE88

Dear Mr. Hoyle:

I am writing to notify the U.S. Nuclear Regulatory Commission of the intent of Heartland Operation to Protect the Environments, Inc.'s (HOPE) to appeal the decision of the Commission dated July 12, 1995, and published in the Federal Register on Vol. 60, No. 137, dated July 18, 1995, to withdraw its advanced notice of proposed rulemaking (59 FR 39485) with regard to the land ownership requirement found in 10 CFR Part 61.

Please advise HOPE of the formal procedure for appealing said decision.

Thank you for your kind attention and consideration.

pc: Mark Halsfleld, NRC Governor Ben Nelson

DOCKETED US NRC

[7590-01-P]

'96 JAN - 3 A10 :59 NUCLEAR REGULATORY COMMISSION OFFI CE OF SECR ETAR Y 10 CFR Part 61 DOCKET ! G &. SER 11 CF.

BRA ~Crl

[Docket No. PRM-61-3]

Heartland Operation to Protect the Environment DOCKET NUMBER AGENCY: Nuclear Regulatory Commission. PETITION RULE -PAM

- -~...bttl..

(lo\ F~lo:8)

ACTION: Notice of receipt of petition for rulemaking.

SUMMARY

The Nuclear Regulatory Commissic,1 (NRC) is docketing, as a petition for rulemaking, a document, dated August 7, 1995, filed with the Commission by Heartland Operation to Protect the Environment {HOPE}. The petition was assigned Docket No. PRM-61-3 on October 6, 1995. The petitioner requests that the Commission amend its regulations to adopt a rule regarding government ownership of a low-level radioactive waste disposal site that is consistent with Federal statute. In this document, the NRC is announcing the receipt of the petition and requesting public comment on the suggested amendment.

DATES: Submit comments by ~ \\ * \C\<\ (g. Comments received after this date will be considered if it is practical to do so. However, assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: Submit comments to the Nuclear Regulatory Commission, Attention:

Docketing and Service Branch, Office of the Secretary, Washington, DC 20555-0001. For a copy of the petition, write to the Rules Review Section, Rules Review and Directives Branch, Division of Freedom of Information and 1

Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review Section, at the same address as above or by telephone: 301-415-7163 or toll free: 1-800-368-5642.

SUPPLEMENTARY INFORMATION:

Background

The NRC published an advance notice of proposed rulemaking (ANPRM) in the Federal Register on August 3, 1994 (59 FR 39485). The ANPRM announced that the NRC was considering amending its regulations to allow private ownership of the land used for a low-level radioactive waste (LLRW) facility site as an alternative to the current requirement for Federal or State ownership. In the ANPRM, NRC considered the option to allow private-land ownership indefinitely, given that adequate land-use restrictions were imposed. The ANPRM invited comment on 12 questions to assist the NRC in determining if such a change could be made without adversely impacting public health and safety. The NRC received 49 comment letters in response to the ANPRM. The NRC prepared a detailed summary of the comments received. 1 On July 18, 1995 (60 FR 36744},~ the NRC published a notice withdrawing the ANPRM published in the Federal Register on August 3, 1994. In the notice of withdrawal, the NRC stated that a rule change to allow private-land ownership of a LLRW site is not warranted or needed. The NRC stated that the bases for its decision are that State and compacts have generally indicated 1

Copies of the summary are available for inspection or copying for a fee from the NRC Public Document Room at 2120 L Street NW, (Lower Level), Washington DC; the PDR's mailing address is US NRC, Mail Stop LL-6, Washington, DC 20555-0001; telephone (202)634-3273; fax (202)634-3343.

2

that they do not need, nor would they allow, private-land ownership and that this rule change could be potentially disruptive to the current LLRW program.

PETITIONER'S CONCERN The petitioner states that the NRC's present regulation (10 CFR 61.S~(a)), which requires disposal of LLRW "only on land owned in fee by the Federal or a State government," is in conflict with a provision in the Nuclear Waste Policy Act of 1982 (NWPA), as amended (42 USC 1017l(b)). The act authorizes the U.S. Department of Energy "to assume title and custody of low-level radioactive waste and the land on which such waste is disposed of, upon request by the owner of such waste and land following termination of the license issued by the Commission (NRC) for such disposal .... " Therefore, the petitioner proposes that the NRC regulations should conform to NWPA provision and require private land ownership during operations and closure of the facility, then converting title to the site to the U.S. Department of Energy.

The petitioner states that, because of the conflict between the NRC regulation and the NWPA statute, the NRC regulation is void with regard to

- Federal ownership of a LLRW disposal site before commencement of the receipt of waste. The petitioner asserts that if the regulation is void with regard to Federal ownership, that it is also silent or unconstitutional with regard to State ownership. The petitioner references the following case [New York v.

United States, 112 S.Ct. 2408 (1992)].

Several commenters, including the petitioner, made similar comments on the ANPRM that there is not an adequate basis for requiring Federal or State land ownership, which therefore would support private ownership. In the withdrawal of the ANPRM, the Commission stated that it believes there is adequate statutory authority for NRC to require Federal or State land ownership. The Commission Paper (SECY-95-152; dated June 13, 1995) further

discussed the NRC staff rationale for believing that NRC has this authority.

The paper stated the staff's belief that NRC has authority to require Federal or State land ownership pursuant to the Atomic Energy Act of 1954, as amended, in Section 161b . This section gives the Commission the authority to promulgate regulations deemed necessary c, - desirable to protect health or to minimize danger to life or property.

The petitioner further states that the notice withdrawing the ANPRM (60 FR 36744) contains no documentation or statement of any issue of public health and safety as the basis for the regulation; therefore, the petitioner believes public health and safety cannot be an issue upon which the NRC regulation is -

based.

The petitioner also states that the notice of withdrawal contains the statement: "The Commission believes that the potential negative impact of disrupting the current process far outweighs any potential benefits that might be derived from making a generic rule change at that time." In response, the petitioner asserts that the Commission's role is to regulate nuclear material in a manner that protects public health and safety and the environment, that its role is not to facilitate specific processes, i.e., the current LLRW -

disposal process.

The petitioner references the follo~ing quote from the notice of withdrawal:

For over three decades the public has been led to believe that all LLW disposal sites would necessarily be owned and controlled by either a Federal or State government. This, we believe, has 4

been an important factor in r0nvincing many proponent groups and State and local LLW advisory groups that LLW can and will be disposed of in a 5afe manner. To now try and convince these groups that Federal or State ownership of LLW disposal sites is not required may be difficult and generate a significant credibility problem.

In response, the petitioner states that credibility problems occur when misrepresentations, i.e., government ownership is necessary to ensure proper LLRW management, are initially made and that the credibility problems are exacerbated the longer the misrepresentations are allowed to continue. The petitioner believes that there certainly would appear to be a larger credibility problem for the Commission to maintain a regulation that is in direct conflict with a statute. The petitioner offers that the Commission might reflect on the Department of Energy's recent efforts to gain credibility by coming clean on past misrepresentations, i.e., secret radiation studies.

- CONCLUSION The petitioner believes that for the stated reasons, the NRC should adopt a rule regarding government ownership of LLRW disposal sites that is consistent with the Federal statute [42 USC 1O17l(b)].

Dated at Rockville, Maryland, thisc!>~day of January, 1996.

For the Nuclear Regulatory Commission.

/_,.-

Joh Sec o e Commission.

5