ML20196G989
| ML20196G989 | |
| Person / Time | |
|---|---|
| Issue date: | 01/22/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC |
| Shared Package | |
| ML20196G966 | List: |
| References | |
| NUDOCS 9907010314 | |
| Download: ML20196G989 (1) | |
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l OFFICE OF THE Jat;' Jai y 22 '1993 SECRETARY l MEMORANDUM FOR THE RECORD I FROM: Samuel J. Chilk, Secreta W.
SUBJECT:
COMIS-92-022, COMIS 320 4 & COMGD-92-001:
AGREEMENT STATE COMPATI BI1J.TY AND PROPOSAL FROM PENNSYLVANIA FOR A LIMITED AGREEMENT TO REGULATE LOW-LEVEL WASTE DISPOSAL (SECY 047 & SECY-92-243) i
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The attached SRM provides staff direction on these issues and I completes Commission action on COMIS-92-022,.COMIS-92-023, and COMGD-92-001, e.ttachment:
As stated cc: The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque i EDO !
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UNITED STATES NUCLEAR REGULATORY COMMISSION
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January 22, 1993 SECRETARY MEMORANDUM FOR: James M. Taylor j' Executive Director for O k ations FROM: Samuel J. Chilk, Secret g
SUBJECT:
SECY-91-047 - DRAFT PROP 3SLL FROM PENNSYLVANIA FOR A LIMITFD AGREEMENT UNDER SECTION 274b TO REGULATE LbW-LEVEL WASTE
. DISPOSAL,
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SECY-92-243 - ANALYSIS OF COMMENTS ON THE l
COMPATIBILITY OF AGREEMENT STATES PROGRAMS l .
AND A PROPOSED POLICY STATEMENT ON THE e
COMPATIBILITY OF AGREEMENT STATE REGULATIONS
- FOR IDW-LEVEL WASTE DISPOSAL The Commission (with the chairman and Commissioners Rogers, Remick, and de Planque agreeing) has concluded, in view of the circumstances presented in the limited area of low-level radioactive waste disposal whereby States may undertake responsibilities both as a provider of new low-level radioactive waste disposal facilities and as regulator pursuant to an agreement with the NRC in accordance with Section 274 of the Atomic Energy Act of 1954, that the Commission should treat review of Agreement State programs in such situations on a case-by-case basis as the need arises. Therefore, the commission has disapproved the staff's proposal in SECY-92-243 to issue a separate compatibility policy with regard to Agreement States' l low-level radioactive waste disposal regulations. However, the commission has approved the staff's recommended process for development of generic guidance in SECY-92-243, except that the focus of that effort should include all program areas addressed in that SECY paper other than low-level radioactive waste disposal. Commissioner Curtiss concurs in the result, but dissents from the approach taken by the majority; his views are attached.
l SECY NOTE: THIS SRM, SECY-92-243, SECY-91-047 AND THE VOTE SHEET OF THE CHAIRMAN ON SECY-92-243 WILL BE MADE PUBLICLY AVAILABLE 10 WORKING DAYS FROM THE DATE OF THIS SRM 4
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.a In making a determination on the low-level radioactive waste regulations (LLW) for Pennsylvania, the Commission agrees to the following:
- 1) Agresement States should be allowed sufficient flecibility to establish pre-closure operational re3 ease limit objectives, ALARA goals, or design obtectives at such levels as the State may deem necessary or appropriate, so long as the level of protection of the public health and safety is not less than is afforded by 10 CFR Part 61. These pre-closure operational release limit objectives, ALARA goals, or design objectives are not to be construed as radiation protection standards. In keeping with the principles of ALARA, such pre-closure operational release limit objectives at LLW disposal facilities may be used to keep the annual doses received by any member of the public at a small fraction of the radiation protection standards specified in 10 CFR 61.41. At the same time, ,
State regulations may permit flexibility in operation i of these disposal facilities compatible with considerations of health and safety to provide continued availability of LLW disposal facilities even
.under unusual operating conditions which may temporarily result in releases higher than such smal'1 fractions, but still within the limits specified in 10 CFR 61.41. In addition, Agreement States may adopt whatever requirements they deem necessary to enforce such pre-closure operational limit objectives, ALARA goals or design objectives. i
- 2) The Commission has also determined that Agreement States should be allowed sufficient flexibility to prohibit-particular, but not all disposal technologies ,
if they so desire (atst, shallow land burial), as well i as to require the use of specific disposal technologies (gtgt, above-land grade disposal. facility).
Consistent with the foregoing, the Commission directs the staff to: 4
- 1) Advise the Commonwealth of Pennsylvania that consistent with this approach to evaluating the compatibility of ,
Agreement. State programs in the low-level waste area, the Commission ~has concluded that Pennsylvania's low-level radioactive waste regulation has been found to be compatible; and (SP) 9100259 4
- 2) Re-evaluate the compatibility divisions assigned to the performance objectives in 10 CFR 61.41 through 61.44 and advise the Commission of the staff's findings and recommendations.
(EDO) (SP) (secy suspense: 2/15/93) 9300008 Attached are the additional views of the Chairman; the additional views of Commissioners Rogers, Remick, and de Planque; and the additional views of Commissioner Curtiss.
Attachments:
As stated cc: The Chairman Commissioner Rogers Commissioner curtiss 4 Commissioner Remick Commissioner de Planque OGC OIG i
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ADDITIONAL COMMENTS OF CHAIRMAN SELIN I have voted with the majority on this matter because I believe the decision the Commission has reached, as far as it goes, to be acceptable and to further the policy objectives of the Low-Level Radioactive Waste Policy Amendments Act. However, I am also in agreement with the position articulated by Commissioner Curtiss that, in the limited area of the regulation of low-level waste disposal, the Agreement States "...should be accorded substantial discretion to establish their respective regulatory programs as they deem necessary or appropriate." This is due to the very significant additional responsibilities the states must bear in this area under the terms of the LLRWPAA. It is my hope that the Commission has the opportunity, at some future time, to revisit this question and further consider what can be deemed
" compatible" within the special context of low-level waste disposal.
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ADDITIONAL VIEWS OF COMMISSIONERS ROGERS. REMICK and de PIANOUE In concluding that the Commonwealth of Pennsylvania's low-level
- waste regulation is-compatible, we do not believe that a wholly
.new, or unworkable, standard has been~ established by the Commission. Nor do we believe that the actions taken in relation to the Pennsylvania request will make future determinations of compatibility, which are being addressed on a case-by-case basis, any easier or, for that matter, any more difficult. What is being addressed here is Saly whether Pennsylvania's low-level waste regulation is compatible. Furthermore, while the majority strongly believes in the need for uniform national radiation standards, its decision on Pennsylvania's low-level waste regulation was not driven by this conviction. Rather, as described below, our views were based on past Commission regulatory' practices. In addition, while it may be true that the
. Commission has within its power the authority to accord states additional flexibility in areas such as low-level waste disposal, we found no need to do so in judging Pennsylvania's regulations.
1 The proposed limited' agreement by Pennsylvania does not request j that the Commission allow Pennsylvania to establish more stringent radiation protection standards.- Pennsylvania's i
. regulations in 5236.13 and 5236.15 set forth radiation protection standards that are compatible with NRC standards as set forth in 10 CFR 61.41. Section 61.41 of 10 CFR is considered to be a
" Division 1 Rule." That is, it is a provision in the NRC regulations that a State must adopt, essentially verbatim, into its regulations. Pennsylvania has done this in their regulations. At one point Pennsylvania had proposed including a zero release provision in its standard, " protection of the Lgeneral population and environment from releases of radioactivity", 25 PA. Code i 236.13, but Pennsylvania dropped the proposal.and adopted the 25-75-25 millirem standard in 10 CFR
$ 61.41 when the NRC staff informed the Commonwealth that
" Division I" compatibility required that Pennsylvania adopt the NRC's radiation protection standards (see Pennsylvania Bulletin, Vol. 19, No. 43, October 28, 1989, p. 4667).
Thus, Pennsylvania made-a conscious effort to ensure that their radiation protection standards were compatible with the NRC standards by adopting our standards in 10 CFR Part 61. Accordingly, we cannot simply ignore the Commonwealth's adoption of our standards.
Pennsylvania did go on to establish more stringent design goals and objectives in its low-level waste regulations. But this approach is not inconsistent with the NRC's methods of determining whether a state's program is compatible with the NRC's program. While " Division 1 Rules," which include
" technical definitions..., radiation protection standards,... and legal definitions," are to be adopted essentially verbatim by States, " Division 2 Rules" allow States to adopt, for example,
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't 2 more restrictive ALARA goals. The design goals and objectives l that Pennsylvania established may be more restrictive than the NRC's as long as they are not Division 1 radiation' protection {
standards as envisioned in the " Criteria for Compatibility Determination." Furthermore, we view Pennsylvania's goals and 1
objectives to be similar to the NRC's requirements in 10 CFR Part 50.34a on design objectives for the control of radioactive L releases from nuclear power plants. 10 CFR Part 50.34a makes it clear that in implementing the design objectives that they " are not to be construed as radiation protection standards." In terms of enforcement, this means that exceeding the design objectives is not, in and of itself, a violation of NRC regulations.
Precisely the same is true of Pennsylvania's zero release goal.
Thus, the difference between radiation protection standards and i design objectives or goals of Pennsylvania is analogous to the distinction between Division 1 and Division 2 rules of
! compatibility and the distinction the NRC makes between radiation
. protection standards and design objectives in 10 CFR Part 50.34a.
In~our minds, in finding Pennsylvania's regulation to be compatible, the Commission did not embark on a wholly new standard for judging the compatibility of Agreement State programs.
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ADDITIONAL VIEWS OF COMMISSIONER CURTISS (concurring in part; dissenting in part)
The Commission, by its action in this matter, has determined that the Commonwealth of Pennsylvania's proposed low-level radioactive wasta program has been'found to be compatible with the standards articulated by the Commission. I concur in the result. But I am constrained to dissent from the approach taken by the majority in reaching this determination. I do so for two reasons: First, I fundamentally disagree with the heart of the majority's reasoning
-- that agreement states ought not to be allowed to adopt more stringent radiation protection standards than those established 3 by the NRC for the regulation of low-level radioactive waste i disposal facilities. Second, I believe that the approach that the majority sets.forth in this case for adjudging the compatibility of a state's low-level radioactive waste disposal i program is at best confusing and, in all likelihood, will prove to be unworkable.
Background
By way of background, on March 15, 1990, the Commonwealth of Pennsylvania advised the Commission that it intended to seek limited agreement state authority from the NRC for the purpose of regulating low-level waste disposal (LLW) activities. Shortly thereafter, Pennsylvania submitted a draft Agreement State Program package to the NRC for review and comment. This package included, inter alla, the regulations adopted by the Commonwealth of Pennsylvania on October 28, 19891 for the purpose of regulating the siting, design, licensing, and operation of a low-level waste (LLW) disposal facility to be sited in Pennsylvania.2 As is required by section 274 (d) of the Atomic Energy Act, the Commission is required to evaluate Pennsylvania's proposed program for the purpose of determining whether the program is compatible with the Commission's program for regulation of such materials, and . . . adequate to protect the public health and safety . . . " The central question before the Commission in this case is whether Pennsylvania's proposed P
1 Egg Low-Level Radioactive Waste Management and Disposal
. Regulations (25 PA Code Ch. 236).
2 Pursuant to the Appalachian States Low-Level Radioactive Waste Compact (42 USC 2021d), Pennsylvania has been designated l the initial host state for the low-level radioactive waste ;
disposal facility to serve this compact region.
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program for the regulation of low-level waste disposal activities is compatible with the Commission's program.3 Pennsylvania's Regulations In evaluating whether Pennsylvania's low-level waste program is compatible with that of the NRC, the following provisions in Pennsylvania's regulations are of principal interest:
First, Pennsylvania has provided in its regulations that "[c]oncentrations of radioactive material which may be released to the general environment in groundwater, surface water, air, soil, plants or animals may not result in an annual dose exceeding an equivalent of 25 millirems to the whole body, 75 millirems to the thyroid and 25 millirems to any other organ of any member of the public."'
Second, Pennsylvania's regulations provide that
"[rjeleases of radioactivity in effluents to the general environment shall be as low as reasonably achievable and within the most restrictive Federal and Commonwealth regulations and standards which are applicable."5 Third, Pennsylvania's regulations provide that "[a)n offsite radiation measurement that exceeds the natural background, as established during preoperational environmental monitoring, shall be reported immediately to the Departuent and host municipality and county.
Actions shall be initiated by the licensee to identify and abate the source of the offsite radiation that exceeds the natural background."6 Finally, Pennsylvania's regulations provide that
"[o)perations at the disposal facility shall be conducted in compliance with the standards for radiation protection in Chapter 219 (relating to standards for protection against radiation), except for releases of radioactivity in effluents from the disposal facility, which shall be governed by section .
3 The question of whether Pennsylvania's program is
" adequate to protect the public health and safety" is not an issue before the commission at this time.
' Sag 25 PA Code Ch. 236.13, first sentence.
5 Egg 25 PA Code Ch. 236.13, second sentence.
' Egg 25 PA Code Ch. 236.409(d).
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j 236.13 (relating to protection of the general population and environment from releases of radioactivity). Effort shall be made to maintain radiation e achievable. 9" osures as low as is reasonably staff views on compatibility of Pennsylvania Program Following a detailed review of Pennsylvania's proposed program, and after extensive interaction with Commonwealth representatives as to the purpose and intent of various aspects of the program, the following conclusions were reached by the agency's legal staff:
"For the most part . . . the Disposal Site Performance Objectives in sections 236.11 - 236.16 of i Pennsylvania's regulations replicate the performance 1 objectives in 10 CFR 61.40 - 61.44. In the following respects, however, Pennsylvania's Disnomal Site ,
l Performance Obiectives annear to be more strinaent than '
the Performance Obiectives of the NRC (emphasis added). i Section 236.11, Scope, which has no counterpart in 10 CFR Part 61,. states in part 'The disposal site performance objectives establish the minimum overall level of safety that the disposal facility is required to meet. . . . ' (emphasis in original). Section 236.13, Protection of the general population and environment from releases of radioactivity, imposes a more stringent ALARA standard than that adopted by the Commission; compare the final sentence in 10 CFR 61.41 with the final sentence in section 236.13. In this context, Pennsylvania's comments on the methods it has selected to address the ALARA goal of zero release capacity for a disposal facility are of considerable interest. . . . The requirement in section 236.409(d) to abate sources of offsite radiation that exceed natural background is of particular concern because 10 CFR Part 61 does not have such a provision."s Following the comprehensive review of Pennsylvania's regulations undertaken by the staff, and in view of the foregoing concerns, staff advised the Commission in SECY-91-047 that in order to find Pennsylvania's proposed. program compatible with that of the NRC, it would be necessary for the Agency to adopt a more flexible 7
Egg 25 PA Code Ch. 236.15.
a 31 Memorandum from William C. Parler, General Counsel, to Harold R. Denton, Director, Office of Governmental and Public Affairs (June 18, 1990).
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236.13 (relating to protection of the general population and environment from releases of radioactivity). Effort shall be made to maintain radiation ex achievable."posures as low as is reasonably Staff Views on Compatibility of Pennsylvania Program Following a detailed review of Pennsylvania's proposed program, and after extensive interaction with Commonwealth representatives as to the purpose and intent of various aspects of the program, the following conclusions were reached by the agency's legal staff:
"For the most part . . . the Disposal Site Performance Objectives in sections 236.11 - 236.16 of Pennsylvania's regulations replicate the performance objectives in 10 CFR 61.40 - 61.44. In the following respects, however, Pennsylvania's Discosal Site Performance Obiectives annear to be more strinaent than the Performance Obiectives of the NRc (emphasis added).
Section 236.11, Scope, which has no counterpart in 10 CFR Part 61, states in part 'The disposal site performance objectives establish the minimum overall level of safety that the disposal facility is required to meet. . . . '
(emphasis in original). Section 236.13, Protection of the general population and environment from releases of radioactivity, imposes a more stringent ALARA standard than that adopted by the Commission; comoare the final sentence in 10 CFR 61.41 with the final sentence in section 236.13. In this context, Pennsylvania's comments on the methods it has selected to address the ALARA goal.of zero release capacity for a disposal facility are of considerable interest. . . . The requirement in section 236.409(d) to abate sources of offsite radiation that exceed natural background is of particular concern because 10 CFR Part 61 does not have such a provision."s Following the comprehensive review of Pennsylvania's regulations undertaken by the staff, and in view of the foregoing concerns, staff advised the Commission in SECY-91-047 that in order to find Pennsylvania's proposed program compatible with that of the NRC, it would be necessary for the Agency to adopt a more flexible I
Eat 25 PA Code Ch. 236.15.
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' faa Memorandum from William C. Parler, General Counsel, to Harold R. Denton, Director, Office of Governmental and Public Affairs (June 18, 1990).
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approach to how the agency applies the compatibility concept.'
In particular, the staff noted that if the commission wished to find the Pennsylvania program compatible, it would be necessary to modify the procedures that the agency employs in evaluating agreement state compatibility." The staff went on to recommend in SECY-92-243 that the Commission adopt such a policy and make it generically applicable to all agreement state low-level waste disposal programs, through the promulgation of a generically applicable Policy Statement that.would permit states to establish more' stringent basic requirements for radiation safety in the area of low-level waste disposal."
Analysis In its decision today, the Commission rejects the foregoing staff conclusions and recommendations in their entirety. Rather, the Commission opts to establish a wholly new standard -- one that, driven by the majority's evident conviction that states should not be allowed to establish more stringent " radiation protection standards" for LLW disposal facilities, would instead permit states to establish " pre-closure operational release limit objectives, ALARA goals, or design objectives at such levels as the state may deem necessary or appropriate . . ." , so long as these " pre-closure operational release limit objectives, ALARA goals, or design objectives" are not construed as radiation protection standards.
While I concur in the majority's conclusion that the proposed Pennsylvania agreement should be approved by the Commission, I do not share the majority's view that this result can be reached within the agency's existing framework for evaluating agreement state compatibility; nor can I embrace the reasoning that the majority sets forth in support of its decision. In particular, I
' Egg " Draft Proposal from Pennsylvania for a Limited Agreement Under Section 274b to Regulate Low-Level Waste Disposal" (SECY-91-047, February 21, 1991).
" Specifically, the Commission was advised that criterion 9 of the Agency's compatibility policy, " Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement," would have to be revised in order to allow the more stringent standards proposed by Pennsylvania. Egg SECY-91-047, p. 11.
" EAR " Analysis of Comments on the Compatibility of Agreement States Programs and a Proposed Policy Statement on the Compatibility of Agreement States Regulations for Low-Level Waste Disposal" (SECY-92-243, July 14, 1992).
strongly disagree with the approach taken by the majority for the following reasons:
First, in reaching the conclusion that Pennsylvania's program is compatible with that of the NRC as the agency has historically interpreted that term, the majority, in my judgment, simply misreads the plain language of the Pennsylvania regulations. For instance, the requirement of section 236.409(d), that actions be taken to abate any offsite radiation that exceeds natural background, is clearly more stringent than the Performance Objectives established by the NRC in 10 CFR Part 61. So, too, is the requirement of section 236.13 that releases of radioactivity to the general environment be within the most restrictive Federal and Commonwealth regulations and standards which are applicable.
Indeed, we have been so advised by our own legal staff.
In my view, if the Commission desires to find the Pennsylvania approach compatible'with that of the NRC, the logical way to accomplish this, as our staff has recommended, would be to revise the standards by which we evaluate agreement state compatibility in the low-level waste area to allow states areater flexibility to adopt more stringent requirements regarding radiation safety.
Yet the majority is unwilling to take that step, for fear that permitting states to establish more stringent radiation standards would somehow undermine the integrity of the NRC's own radiation protection standards or throw open the door for states to establish more stringent requirements beyond the low-level waste disposal arena. I respectfully disagree with both of these points. Under tha approach taken by the majority, what suffers in a case such as this, where the plain language of a-state's regulations and the analysis and recommendations of our staff are set aside in favor of what I view to be a strained interpretation of Pennsylvania's regulations, is the integrity and coherence of the agency's approach to evaluating agreement state corpetibility. .Moreover, I submit that the Commission has it fully within its power to accord states additional flexibility in areas such as low-level waste disposal, where there are compelling reasons for doing so, without establishing a precedent for extending such flexibility to other areas where the rationale for doing so is less compelling or nonexistent.
Second, no effort is made in the action taken today to explain the terminology employed by the majority and, in particular, the difference between " pre-closure operational release limit objectives, ALARA goals, or design objectives" and " radiation protection standards." There must obviously be one, because the majority would permit states to be more stringent with regard to the former, but-not the latter. Yet absent some explanation of the basis for the majority's reasoning, the staff is left with virtually no discernible standard to apply in future cases that would permit staff to distinguish between a state's more stringent " radiation protection standards", which would be
prohibited under the majority's approach, and more stringent
" pre-closure operational release limit objectives ALARA goals, or design objectives", which would be' acceptable.g Indeed, the distinction eludes me -- and I fear that it will alude the staff, as it tries to implement this policy in an effort to determine what is and is not permitted under the approach announced today 1by.the Commission.
Third and finally, while.the majority reaches the conclusion in the immediate case that the Pennsylvania program should be approved -- a result in which I concur -- I believe that the standard set forth by the majority in this case, and its emphasis on allowing states to establish " goals" or " objectives" but not enforceable radiation limits, will prove problematic as the agency attempts to apply this standard to other similar agreement state regulatory programs. To take the most obvious and immediate example, the State of Illinois has adopted a provision as part of its existing low-level waste program regulations that states that "[t]he facility shall be operated so that no person outside the facility boundary receives a radiation dose in excess of 1 millirem per year to the whole body as a result of the facility operations."u As Illinois has explained the purpose of this provision:
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l "The regulation containing the 1 millirem criterion would apply only to a facility for the disposal of low- j level radioactive wastes away from the point of l generation. We believe that the regulation is consistent with the statute and can be satisfied by the j facility operator. We do not however. consider the 1 ;
12 The Additional Views of Commissioner Rogers, Remick, and de Planque attempt to analogize the approach taken by Pennsylvania in its regulations to the approach taken by the NRC in 10 CFR section 50.34a and Appendix I for nuclear power plants.
I-would simply note that to the extent that Pennsylvania intends that its radiation standards are to constitute enforceable I
requirements, the exceedance of which mag lead to action by Pennsylvania to enforce compliance with such standards, the Appendix I analogy falls short. Appendix I simply sets forth design objectives, the exceedance of which is not, in and of itself, actianable. In my judgment, and based upon briefings by representatives of the Commonwealth of Pennsylvania, Pennsylvania's radiation standards in 25 PA Code Ch. 236, and specifically, 236.409(d)12, are, indeed intended to constitute enforceable requirements.
, u Eng " Requirements for the Disposal of Low-Level Radioactive Waste Away from the Point of Generation", Section 606.30 (d) (4) .
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nilliram criterion to be iust a desian acal. The facility can and will be designed to meet the criterion.""
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Under the standard set forth by the Commission majority today, cases such as the one presented by the foregoing Illinois provision will prove most difficult to address -- and will I
ultimatelgleadafuturecommissiontohavetorevisitthis question l
Conclusion I have long been of the view that the states -- who have, in turn, been charged by Congress with the primary responsibility for developing new low-level waste disposal capacity" -- should be accorded substantial discretion to establish their respective low-level waste regulatory programs as they deem necessary or appropriate, subject of course to complying with minimum federal standards. In my view, this should include the authority for agreement states to set more stringent radiation protection standards."
Thus, while I embrace the result that the commission reaches in this decision, the majority's rejection. of a state's right to establish more stringent radiation protection standards in the context of its low-level radioactive waste disposal programs and the articulation of a wholly new and, in my view, unworkable standard, compel me to dissent from all but the result in this case.
" Egg Letter from Thomas W. Ortciger, Director, Illinois Department of Nuclear Safety, to Kenneth M. Carr, Chairman, Nuclear. Regulatory Commission, p. 3 (September 7, 1990) (emphasis added).
" It should be noted that in neither the Pennsylvania case l nor the Illinois case has anyone suggested that the Commission ;
should formally declare either State's approach " incompatible" '
and hence deny or rescind the State's agreement state program.
Such a result is acknowledged to be an untenable one, where the l basis for the finding of incompatibility would be a state's attempt to impose radiation limits that are more stringent than NRC's.
4 Egg Low-Level Radioe-tive Waste Policy Amendments Act of 1985 (42 USC 2021d).
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" Egg Below Regulatory Concern Policy Statement (Additional Views of Commissioner Curtiss) (55 FR 27532; July 3, 1990).