ML20133H515

Notice Denying PRM Because NRC Believes There Is No Conflict Between Section 151(b) of Nuclear Waste Policy Act & Its Regulations Requiring That LLW Disposal Facilities Be Sited on Land Owned by Federal or State Govt

ML20133H515
Person / Time
Issue date:	12/09/1996
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
Shared Package
ML20133H495	List: ML20133H492 ML20133H515
References
FRN-61FR633, RULE-PRM-61-3 CCS, NUDOCS 9701170202
Download: ML20133H515 (9)

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[7590-01-P]

j NUCLEAR ' REGULATORY COMMISSION 10 CFR Part 61

[ Docket No. PRM-61-3]

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Heartland Operation to Protect the Environment: Denial of Petition for Rulemaking l

! AGENCY: Nuclear Regulatory Commission.

i 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 l

believes there is no conflict between Section 151(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 j 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 9701170202 961223 PDR PRM 61-3 PDR ,

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

(Lower Level), Washington, DC.

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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 MFH0nrc. gov.

i SUPPLEME G .Y INFORMATION:

Background

4 j 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 l

the Federal Register regarding land ownership. The ANPRM announced that the s

j NRC was considering amending its regulations in 10 CFR 61.59(a) to allow

! private ownership of the land used for r LiG'/ disposal facility site as an I alternative to the current requirements for fsderal or State ownership. On July 18,1995 (60 FR 36744), the t'RC published in the Federal Register a l

! notice withdrawing the ANPRM becaus. 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 l to the current LLW program.

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l The Petition 1

! 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 I (10 CFR 61.59(a)), which permits disposal of LLW "only on land owned in fee by  !

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'l the Federal or a State government," is in conflict with a provision in Section l

151(b) of the Nuclear Waste Policy Act of 1982, as amended. The NWPA

! authorizes the U.S. Department of Energy (00E) "to assume title and custody of I

low-level radioactive waste and the land on which such waste is disposed of, l 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 1 '

l petitioner proposes that the NRC regulations should conform to the NWPA 1

! provision and require private land ownership during operations and closure of j the facility, then converting title to the site to the 00E.

l 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, j the petitioner believes that public health and safety cannot be an issue upon i

i which the NRC regulation is based.

4 The notice of withdrawal contains the statement: "The Commission

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believes that the potential negative impact of disrupting the current process  ;

! far outweighs any potential benefits that might be derived from making a i In response, the petitioner asserts that 1 generic rule change at this time."

1 the Commission's role is to regulate nuclear material in a manner that i

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

4 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 151(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."

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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 coments 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 e

the NWPA or the resultant impact of this rule change. One commenter supported l

th'e 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 l and the current regulation which requires low-level waste disposal on land

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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 ACTER 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). .

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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 151(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 151(b) of the NWPA merely authorizes, but does not require, the 00E 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 151(b), as quoted by the petitioner, "The Secretary (D0E) [ 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 151(b) of the NWPA and 10 CFR 61.59(a). NRC's requirement under 9 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 151(b) of the NWPA to assume title and custody after license termination. The DOE is a Federal entity and thus could satisfy the 161.59(a) requirement for governmental land ownership. The NRC regulation in i 61.59(a) is broader than the statutory requirement. For example, assuminh for purposes of argument, if DOE lacked the authority under Section 151(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 5 61.59(a). The focus of f 61.59(a) is on Federal or State land ownership, whereas the focus of Section 151(b) is on DOE's authority to assume title and custody of a LLW disposal facility.

Further, under Section 151(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, 6 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, 6 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 l

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 b 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

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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

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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 the petition.

Dated at Rockville, Maryland, this # day of , 1996.

For the Nuclear Regulatory Commission.

J nie ~M. Taylorf xe utive Direftor for Operations.

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