ML20127G891

Requests That Commission Action,Approving Proposed Rule, Procedures & Criteria for On-site Storage of Low-Level Radwaste Be Implemented by Publishing Proposed Rule in Fr. Mark-up of Frn,Ea & Fonsi & Draft Regulatory Analysis Encl

ML20127G891
Person / Time
Issue date:	01/07/1993
From:	Lohaus P NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To:	Meyer D NRC OFFICE OF ADMINISTRATION (ADM)
References
FRN-58FR6730, REF-WM-3 AE22-1-064, AE22-1-64, NUDOCS 9301220108
Download: ML20127G891 (113)

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O C UNITED STATES -

j j NUCLEAR REGULATORY COMMISSION o WASHINoTON. D.C. 20066 .

• • • • • g.7 R MEMORANDUM FOR: David L, Meyer, Chief i

-Rules Review and Directives Branch '

Division of Freedom of Information and' Publication Services 1 Office of Administration FROM: Paul H. Lohaus, Chief low-Level Waste Management Branch Division of Low-Level Waste Management and Decommissioning Office of Nuclear Material Safety and Safeguards

SUBJECT:

IMPLEMENTATION OF COMMISSION ACTION: PUBLICATION OF PROPOSED-RULE ENTITLED, " PROCEDURES AND CRITERIA FOR ON-SITE STORAGE OF LOW-LEVEL RADI0 ACTIVE WASTE" By a Staff Requirements Memorandum (SRM) dated December 17, 1992, the Secretar.y of tha Commission (SECY) indicated that the Commission (with all Commissioners agreeing)'has approved the proposed rule, as set out in

~SECY-92-380, for publication. The revised Federal Regist.e.t notice (FRN) is to be forwarded to SECY by January 20, 1993. The:SRM is enclosed for reference.

Please implement the Commission's action by arranging for publication of the enclosed proposed rule in the Federal Reaister,. allowing 60 days for public comment.

The Office of Management and Budget (OMB) clearance package has been revised

.and is'being forwarded separately.

Enclosed is a marked-up copy of the FRN. showing Commission-requested changes for transmittal-to SECY. Changes required by the passing of the January 1, 1993, milestone of the Low-level Radioactive Waste Policy Amendments Act and -

.by revisions to the OMB clearance package are also identified in this enclosure. Also enclosed are a Congressional letter package for transmittal .

to the 0ffice of Congressional Affairs and a copy of the public announcement

' for transmittal' to the Office of Public- Affairs. In addition, enclosed are copies of the environmental assessment and finding of- no significant impact and the draft regulatory analysis for transmittal to the Public Document Room.~

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9301220108 930107 *Q< l PDR . WASTE MM-3 PDR .

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David L. Meyer If you have any questions concerning this matter, please call Robert Nelson, Project Manager for this rulemaking, at 504-2004 or me at 504-2553.

Paul H. Lohaus, Chief low-level Waste Management Branch Division of Low-level Waste Management and Deconmissioning Office of Nuclear Material Safety and Safeguards

Enclosures:

As stated Ticket (N-92-718)

DISTRIBUTION: Central File NMSS r/f RBangart WBrach JAustin JSurmeier JThoma SGagner, OSP R0'Connell, IM0B CPoland t/f LLWM r/f LLWM t/f LLWB r/f

.' H.arklSma11 BoxesL in-Concurrence Block to Define DistriEution Copy- Preference in small Box'on"0FC:" line pla'ce a: C = Cover' E = Cover & Enclosure

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N = No copy 0FC :

LLWBf[f((LLff 7 [ LLWB NAME: RNelson JKkneth PLohaus DATE: h/p h ((q[g 3 N OFFICIAL RECORD COPY Filename: G:\ NELSON \ RULE \FWDMEMO In small Box on "DATE:" line place a: M = E-Ma11 Distribution Copy H = Hard Copy PDR : YES X NO Category: Proprietary or CF Only ACNW: YES X NO Delete file after distribution Yes __ No X IG: YES N0 X

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David L. Meyer l If you have any questions concerning this matter, please call me at 504-2553 l or Robert Nelson, Project Manager for this rulemaking, at 504-2004' .- ,

I (8KINED) f93.R.lA!M!$

Paul H. Lohaus, Chief -i Low-level Waste Management Branch Division of Low-level Waste. Management and Decommissioning Office of Nuclear Material Safety and Safeguards

Enclosures:

As stated Ticket (N-92-718) .g, W.

DISTRIBUTION: ,

Central Fi.le f HMSS r/f RBangart WBrach JAustin 'JSu~rmeier JThoma SGagner, OSP R0'Connell, IM0B CPoland t/f LLWM r/f M MM. LLWM t/f LLWB r/f 4CWSmalllBoxes In' Concurrence Block tof Define' Distribution-Cooy Preference in small Box 'on'"0FCi" line place al C = Cover E = Cover & Enclos'r

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'0FFICIAL RECORD COPY Filename: G:\ NELSON \ RULE \FWDMEM0 In'small Box on "DATE:" line place a: M = E-Mail Distribution Copy -H = Hard Copy; PDR : YES X NO Category: ' Proprietary or CF Only ACNW: YES .X NO Delete file after distribution -Yes No _L IG: YES NO X 4

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[7590-01)

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 30, 40, 50, 70, and 72 RIN 3150-AE22 Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission proposes to-amend its regulations for reactor, material, fuel cycle, and independent '

spent fuel storage licensees. The proposed rule would establish a regulatory framework containing the procedures and criteria that would apply to on-site storage of low-level radioactive waste (LLW), beyond January 1, 1996. The Commission has determined, under the authority of the Atomic Energy Act of 1954, as amended, that these changes are appropriate because of potential health and safety concerns associated with the increased reliance upon on-site storage of LLW. The proposed rule is intended to support the goals that have been established by the Low-Level Radioactive Waste Policy Amendments Act-of 1985 (Act) and is consistent with the June 19, 1992, United-States

. Supreme Court (Supreme Court) decision, in Few York v. United States. Comr a;'s are requested on this proposed rule and on strategies and options that the Commission might pursue, in addition to this proposed rulemaking, that would encourage the States and compacts to move forward with development of LLW

, e disposal facilities.

DATE: Comment period expires (60 days after publication).

Comments received after that date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.

ADDRESSES: Submit written comments to: The Secretary of the _

Commission, U.S. Nuclear Regulatory Commis sion, Washington, DC 20555, Attention: Docketing and Service Branch, iland-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm Federal workdays.

Copies of the regulatory analysis, environmental assessment and finding of no significant impact, and the comments received on the rule may be examined and copied, for a fee, at the NRC Public Document Room, 2120 L Street, NW. (Lower Level),

Washington, DC, telephone (202) 634-3273. ~

FOR FURTHER INFORMATION, CONTACT: Robert Nelson, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 504-2004.

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SUPPLEMENTARY-INFORMATION:

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l The Low-Level Radioactive Waste Policy Amendments Act of 1985 (Act) (Pub. L.99-240) establishes a series of milestones, penalties, and incentives to ensure that regional compacts and States make adequate progress toward being able to manage their.

LLW, by 1993. Section 5(a) of the Act requires the sited-States-of Nevada, South Carolina, and Washington to make disposal capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting the other milestones of the Act, the sites remaining operational, and received waste being within site-specific volume limitations.

To help ensure that the States make adequate-progress toward developing new LLW disposal facilities, the Act established six milestones by which the States should make decisions-and commit-to certain actions. The majority of the States met the requirements of the three milestone dates that had passed, by January _1990. Only the Central, Central-Midwest, and Southwestern Compact States met the January 1, 1992, milestone requirement, because their host States, Nebraska, Illinois,-and California, respectively, submitted a facility license'-

application to their State regulatory authorities _before that date. The State of Texas conformed to this' milestone on March 2, 3

h o e, - - n, .- ,

1992. The remaining milestones of the Act, as it was enacted,-

are:

January 1, 1993 - If a State or compact cannot provide for disposal of its LLW after !Inuary 1, 1993, generators can request the State to take title to, and possession of, the generated waste. The State also becomes liable for damages as a consequence of failure take possession of the waste.

In 1993, States may avoid taking title and possession of the waste and assuming liability, but will forfeit the surcharge-rebates established by the Act.

January 1, 1996 - If a State or compact cannot provide for disposal of its LLW after January 1, 1996, the States, upon proper notice by the generator or owner, shall take title to, and be obligated to take possession of, LLW. The State will also be liable for all damages directly or indirectly incurred by the generator or owner-if it fails to take I

possession as soon after January 1, 1996, as the' generator-or owner notifies the State that.the waste is available for shipment.

L The section of.the Act requiring the States to take title to, and possession of, the generated waste by January 1, 1996-(of ten referred to as the "take-title" provision), was held to be

-unconstitutional, by the Supreme Court on June 19, 1992, in a 4

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-lawsuit brought by the State of New York (a non-compact State) and two of its-counties. The constitutionality of the take-title provision, as applied to compact States, was not before the Supreme Court. Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996.

I Because no new LLW disposal facilities were operational on  !

January 1, 1993, and the compact commissions that control the existing LLW disposal sites either closed their site or set restrictions or conditions on receiving LLW from outside their regional compacts effective January 1, 1993, some licensees who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all-the Governors' Certifications submitted to meet the 1990 milestone of the Act indicated that the State planned on interim storage by waste generators from 1993 through 1996. However, many States do expect to have access to the Barnwell LLW disposal facility from-January 1, 1993 through June 30, 1994.

Early in 1990, the Commission directed the NRC staff to provide the Commission with information on the issues concerning the waste title-transfer and possession provisions set forth in the Act, so that the Commission might determine what role, if-5

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any, the NRC should play with regard to these_ provisions. The Commission was also interested in the adequacy of its existing regulatory framework for implementing the title-transfer provision. On September 12, 1990, the NRC staff sent the Commission an analysis of the issues associated with the waste title-transfer and possession provisions of the Act (SECY 318). Major issues related to these provisions included States taking possession of commercial LLW after 1993 or 1996, and licensing of this possession by the NRC and Agreement States.

The Commission discussed the issues associated with the waste title-transfer and possession provisions of the Act and the recommendations presented in SECY-90-318, in a public meeting, on October 29, 1990. In response to a request from the Low-Level Radioactive Waste Forum, the Commission decided to solicit public and State comments on the NRC staff's-recommendations provided in SECY-90-318 and'on eight questions addressing-the title-transfer provision of the Act. The Commission requested that the NRC staff provide the Commission with an analysis of the comments received in response to the letter dated November- 28,-1990, from Samuel J. Chilk,. Secretary.of the Commission, to Mr.' Jerry Griepentrog, ronvenor, Low-Level Radioactive Waste Forum,'and from the Federal Register notice soliciting public comments.

The Commission solicited public comment on the NRC staff's recommendations provided in SECY-90-318 and the eight questions i 6 e

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in the Federal Register notice published December 4, 1990 (55 FR 50064). The comment period expired en March-2, 1991. Seventy-four individuals or organizations responded.

The commenters raised many specific issues. Most can be grouped under the single, broad issue of NRC's role in implementing the Act. The eight questions, a comment summary, an analysis of those comments, and conclusions _are provided as Appendix A to this proposed rule. In response, the Commission directed the NRC staff to develop a proposed rulemaking that would establish a regulatory framework containing the procedures and criteria applicable to on-site storage of LLW after January 1, 1996.

Although LLW can be safely stored, NRC believes that the protection of the public health and safety and the_ environment is enhanced by disposal, rather than by long term, indefinite storage of waste. Disposal of waste in a limited number of facilities, licensed under the requirements of 10 CFR Part 61 or compatible Agreement St Ae regulations, will provide better protection of the public health and safety and-the~ environment than long-term storage at~ hundreds or thousands of-sites around the country. Stored waste packages need to maintain sufficient integrity to prevent dispersal of the waste during storage, transport, and handling, up to and including emplacement-for disposal. Because of the_ variability of certain storage 7

environments,~ waste packages may suffer degradation'over the extended storage period. Among the. ways in which a storage environment can cause waste package degradation are temperature fluctuations (in heated facilities in areas with. cold winters) and corrosive atmospheres (e.g., industrial and marine atmospheres as well as acid deposition). Other waste package-concerns during storage include external and internal corrosion, radiolytic generation of gases (predominantly hydrogen) and corrosive substances, radiation induced embrittlement of polyethylene containers, and blodegradation of institutional wastes. These processes may accelerate internal corrosion and failure of common storage-containers, even if the waste is stabilized prior to storage. Waste form degradation could result in spills or releases during handling for disposal, if the degradation goes undetected. In addition, waste package deterioration prior to disposal will require repackaging of the LLW and cleanup of any spills. As a result, workers will be-potentially exposed to additional doses of radiation. The NRC-contractor document, " Extended Storage of-Low-Level Radioactive Waste: Potential Problem Areas," NUREG/CR-4062, provides.a detailed discussion of these concerns.'

' Copies of NUREG documents may be purchased from the Superintendent of Documents, U.S.

Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. Copies are also available from the National Technical Information Service,5285 Port Royal Road, Springfield, VA 22161. A copy is also available for inspection and/or copying at the NRC Public Document Room,

, 2120 L Street NW. (Lower Level), Washington, DC.

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4 Storage also involves a number of activities that could-increase radiation doses to the public. First, storage of LLW will result in potential increased worker exposures, from-unloading the waste from storage, for disposal. Second, waste forms may need to be repackaged or otherwise processed, again, as a result of waste form failure or to meet waste acceptance criteria for a new disposal facility, once one becomes available.

This additional handling by workers will also cause increased exposures. The site-specific conditions at a new disposal facility may necessitate these new waste form criteria and these criteria may not be known when LLW is placed into storage.

Third, radiation surveys and inspections of LLW in storage will result in potential additional doses to those involved in-performing these activities. For these reasons and to support the goals of the Act, the NRC is proposing this rulemaking, which makes storage of LLW an option of last resort. The Commission specifically invites comment on the above public health and-safety rationale, as well as on the comparative-risk of potential-releases as a result of an event or accident at numerous LLW storage sites around the country, as opposed to the potential-release from a limited number of disposal sites-designed to meet the siting and design requirements in 10 CFR Part 61 or compatible Agreement State regulations.

The proposed rule, as it was originally drafted and sent to the Agreement States for comment, included a requirement for_the-9

. i licensee to request that the State take title to, and possession {

of, the waste, pursuant to section 5(d) (2)(C) (the "take-title" l i

provision) of the Act, before LLW could be stored on-site after January 1, 1996. The text of the rule has been revised to delete j the requirement for the generator to request the State to take title to, and possession of, the generator's LLW. In view of the recent Supreme Court decision in New York v. United States,-the Commission will not require this action as a prerequisite for ,

I storing LLW on-site after January 1,_1996. {

Coordination with NRC Agreement States  !

The NRC Agreement States were informed-of the NRC's intent to issue a proposed rule and were provided the draft regulatory.

text, by letter dated February 7, 1992. The letter explained

_that the Commission is taking this action in view of the-potential health and safety concerns associated with an increased reliance upon on-site storage and in light of the framework that has been established by-the Act. This-initial notification reiterated the Commission's position that it will not look favorably on generator on-site storage of LLW, after January 1, 1996. Supplementary information, which included a summary of the related provisions of the Act and a-discussion of the proposed-revisions, was forwarded to the Agreement States on February 14, 1992. The Agreement States were asked to provide comments by March 14, 1992.

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4 The Agreement States of Arizona, Arkansas, California,-

Colorado, Illinois, Kansas, Kentucky, Nevada, New York, North Carolina, Oregon, South Carolina, Texas, and Washington, and the Midwest Interstate Low-Level Radioactive Waste Commission responded to the NRC staff's request for comments. One State supported the preposed rulemaking, and three States opposed it.

Twr States, although not opposing any provisions of the rule, stated that thu rulemaking should not proceed until the Supreme Court decides on the constitutionality of the Act and the title-transfer provision. Three States and the one commission provided comments and questions without taking a position on the proposed rulemaking.

One State reserved comment and four States bad no comments. Fifteen Agreement States did not respond.

Response to NRC Agreement State Comments Comment. The revisions do not appear to be based on protection of public health and safety or any technical j arguments.

Response. As previously discussed, the potential risk to i

the public hea3.th and safety, from on-site storage of LLW, is greater than for disposal, because storage' involves a number of conditions and activities that could increase radiation doses ~to the public. Although LLW can be safely stored, ths NRC believes

- that the-protection of the public health'and safety and the environment will-be enhanced by disposal.

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u Comment. There_ appears to be no substantive rationale for prohibition of on-site storage after January 1, 1996.

Response.

The proposed rule would prohibit on-site storage after January 1, 1996, only if the generator had not exhausted other waste management options. As discussed in response to the previous comment, disposal is preferred over storage, to enhance the protection of the public health and safety and-the environment. Therefore, generators should exhaust all disposal options before storing their LLW on-site.

C.omment. The proposed revisions-would improperly establish NRC as the enforcer of the " take-title" provisions, contrary to the Act.

Comment. It is inappropriate for NRC to require, as a condition for on-site storage, that licensees request the State in which they are located to take title to, and possession of, the waste, pursuant to Section 5(d) (2)(C) of the Act, because the Act gives licensees the option not to request the State-to take possession.

Comment. One State has a different law regarding title:

" Title to any-LLW shall at all times remain in the generator of

- such waste...." The proposed rule conflicts with State law.

Essponse. The text of the rule, which had been provided to the Agreement States for comment, has been revised to delete the requirement for.the generator to request the State to take title to, and possession of, the generator's LLW.- In view of the 12 e r -- , , . -n w w, -- -

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i recent Supreme Court decision in New York v. United States, the-Commission will not require this action as a prerequisite for storing LLW on-site after January 1, 1996.

C9mment. What legal authority does the Commission have to impose the prohibition of possession of LLW, by the State, at a generator's facility?

qqmment. How can "the prohibition" of State possession of LLW, at the generator's facility, be reconciled with the language of the compact Act, which authorizes "... management of waste on the site where it is generated if such .i" otherwise lawful?"

Rescense. It is not envisioned that a State would take possession of LLW at a generator's facility.

Comment. It is inappropriate for NRC to require, as a condition for on-site storage, that lic lnsees exhaust the contract option of. Section 5(e) (1) (F) of the Act at a condition for on-site storage. This section of the Act applies to States, not licensees.

Response. The NRC agrees that Section 5(e) (1) (F) of the Act-applies to States but not licensees._ The text of the rule, which was provided to the Agreement States for comment, has been revised to eliminate-the reference to this section of the Act.-

Comment. The rule is silent with regard to financial surety aspects of extended storage,_and " totally ignores" the 13

requirements that would be placed on States that take title to, and/or possession of, LLW, after January 1, 1996.

Resoonse. Financial assurance requirements for the affected licenses are-_ contained in 10 CFR 30.35, 40.36, 50.75, 70.25, and 72.30. Financial assurance guidance for fuel cycle and materials licensees is provided in Information Notice 90-09, " Extended-Interim Storage of Low-Level Radioactive Waste by Fuel Cycle and Materials Licensees."

Comment. If NRC continues to pursue the "no on-site storage" option past January 1, 1996, as the NRC staff proposes, it will be NRC's responsibility i provide for emergency access to operating LLW disposal facilities for the LLW it prohibits from on-site storage.

Resoonqa. The NRC is not pursuing a "no on-site storage" option. The NRC recognizes that some generctors will~have to store LLW on-site. The NRC seeks to minimize the amount of LLW placed in storage, by requiring generators to exhaust all other reasonable waste management options. The guidance coverning implementation of the emergency-access provision, of the Act, contained in Information Notice 91-65, " Emergency Access to Low-Level Radioactive Waste Disposal Facilities," will remain in The NRC does not anticipate any situation where the

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effect.

provisions of this rule, in addition to a lack of access, would create a serious and immediate threat to the public health and safety or common defense and security, thereby requiring 14

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emergency access.

Comment. A more immediate concern, directly related to the storage of waste, is the authority of a generator to accept its processed waste after this waste has been sent off-site for treatment.

Resoonge. The NRC has amended its regulations governing the condition of licenses for production and utilization facilities to allow a reactor licensee to receive back byproduct and special nuclear material that is produced by operating the reactor after the material has been sent off-site for processing, such as compaction or incineration. The final rule was published on October 21, 1992 (57 FR 47978). The rule became effective on November 20, 1992.

Conment. Any rulemaking on this issue must incorporate maximum flexibility, consistent with the protection of the public health and safety and the environment.

Response. Maximum flaxibility has been considered. The proposed rulemaking does not preclude on-site LLW storage,.as long as other waste management options are. exhausted.

Comment. NRC's guidance would be expected to be consistent' and compatible with NRC actions taken with respect to indefinite storage of high-level radioactive waste (HLW).

-Resnonse. The LLW situation is significantly different from 15

that of HLW. Under the Nuclear Waste Policy Act of 1982, as amended, the Federal government is developing a facility for disposal of HLC. In the LLW program, it is the Commission's judgment that the NRC's regulations will encourage disposal by requiring generators to seek available disposal options.

Furthermore, unlike HLW, commercial LLW disposal sites are currently operational, and developmsnt of new LLW disposal facilities continues, with two new facilities scheduled to be _

operational by January 1, 1996. i..a risk to public health and safety from hundreds or thocsands of temporary storage facilities is greater than that from a limited number of well-controlled 1

disposal sites in the country.

Comment. There should be a definition that describes when radioactive material becomes waste.

Response.

The term " waste" is defined in 10 CFR-61.2.

.'ste is considered to be any material or component for which the g licensee foresees no further use. The NRC continues to believe- '

that the licensee is in the best position to determine the continued utility, of radioactively contami,ated material and components, to its operations. The NRC will continue to rely on the-: licensee to determine when material and components become waste and will periodically review the licensee's conclusions, to determine if they are reasonable and appropriate.

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Comment. Does any provision of the Act prohibit a State-

.s from exercising its powers of eminent domain, and-thereby moving to-condemn-existing-licensee facilities, to establish a LLW~ ,

management program for generators at the site.

Rano onse. Although the NRC knows of no such provision, any exareise of a State's power of eminent domain would have to comply with applicable law.

1 Ccmment. There should be a maximum time 1.init, for "short-term," that would apply equally to all forms, including decay-in-rtorage. This commenter recommends a maximum storage time of one year.

This commenter also states that this will allow sufficient iae for isotopes with short half-lives to decay sufficiently for disposal in a sanitary landfill.

Response. Generally, for non-medical LLW, radioactive material with a half-life of less than 65 days can be held in.

ctorage before disposal as non-radioactive material. If allowed by the-license,-LLW disposed of in this manner must be held for decay a minimum of 10 half-lives. Decay in storage-for medical waste is governed by 10 CFR 35.92. The proposed rule would'not.

affect this practice.

Comment. To whom does the revision apply? As the' State is

. required by the Amended Actato take possession, is the proposed language intended to cover that time interval between-the

-licensee requesting the State to take possession and the State 17 e -

actually taking possession?

Response. The proposed rule would apply to all LLW generators licensed under 10 CFR Parts 30, 40, 50, 70, and 72.

g As discussed in response to an earlier comment, the text of the rule, which had been provided to the Agreement States for comment, has been revised to delete the requirement for the generator to request the State to take title to, and possession of, the generator's LLW. -

Comment. Will NRC licensees be required or encouraged to ship all wastes before January 1, 1993, that will reach five years in storage, between January 1, 1993, and January 1, 19967 Resoonse. Guidance on storage, which.is optional, in Generic Letters 81-38 and 85-14, and Information Notices 89-13 and 90-09, includes consideration of keeping storage to limited periods of time (i.e.,.five years or lens) and emphasizes shipment of LLW for final-disposal. It is.the NRC's policy _that licensees should continue to ship LLW, for disposal,-to the maximum extent practicable. Although the NRC has not set specific dates or deadlines for LLW shipments,-Generic Letter 81-

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38 states that a Part 30 license should be obtained if'the time In storage exceeds five years, i

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Issue of Compatibility with Agreement States 1

Opinion varied among the 14 Agreement States that~ responded, e on the issue of compatibility. Two States commented-that this-rulemaking should not be a matter of compatibilityf one State recommended Division 1 (regulation must be adopted verbatim); two States recommended Division 2 (language identical to that in NRC.

rules is not necessary, provided that the underlying principles are the same); one State recommended Division 3 (States are

[ encouraged to adopt the regulatory approach taken by the NRC, but are not required to do so); and eight States did not comment on compatibility.

1 i

The NRC considers the proposed implementation of these amendments to its licensing conditions to be directly related to the basic regulatory function of protecting the public health ~and safety and the environment. Unless the proposed rule is made a matter of compatibility, the waste managementTpractices-in both1 Agreement States and non-Agreement States could be inconsistent, and the Commission's goal to encourage disposal would_be frustrated. Therefore, the amendments contained in this proposed i

rule would be a matter'of compatibility for NRC' Agreement States.

The additional license conditions for LLW on-site storage, after.

January 1, 1996, in 10 CFR 30.34,'40.41,.and 70.32, are-considered to be Division 2 categories-of compatibility.

Although Agreement States must adopt Division 2 rules in their 19

regulations,_the use or= language identical _to that in NRC rules -

is not necessary, provided that the underlying principles are~the same. The Agreement States may adopt more restrictive requirements.

The Commission is currently considering a-re-evaluation of its compatibility policy and may decide to revise its general--

requirements regarding compatibility for the Agreement States.

The Commission's compatibility determination, on this proposed-rule, may be re-examined in light of any change _to the general.

policy.

Discussion of Proposed-Revisions The proposed rule would establish procedures and criteria, for on-site storage of-LLW, that would apply-to all categories of LLW generators. On-site storage-of LLW would not be permitted-after January 1, 1996 (other than reasonable short-term storage necessary for decay, or for collection-or consolidation for shipment off-site, in the case where the-licensee has-access to-an operating.LLW disposal facility), unless the licensee can document that it has exhausted other' reasonable waste-management c ' options. The NRC's proposed regulations would require that the

. licensee _ attempt to contract, either directly orEthrough the State, for the disposal of its waste. In-addition,-reactor licensees would have to document that on-site storage activities 20

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would be consistent with, and not compromise, the safe operation of the licensee's activities, and would not decrease the level of safety provided by applicable regulatory requirements. In view of the recent Supreme Court decision in New York v. United States, the Commission will not require the generator to request that the State take title to, and possession of, the waste, as a prerequisite for storing LLW on-site after January 1, 1996. Even though the tal.e-title provision was held unconstitutional, clearly a gral of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996. To support the goals of the LLRWPAA and its legislated preference for disposal over storage of LLW, the NRC has concluded that action is necessary to require licensees to exhaust other reasonable management options before on-site storage of LLW will be permitted after January 1, 1996.

The exemption for collection or consolidation for shipment off-site is limited to those licensees that have access to an operating LLW disposal facility. Without this limitation, licensees not having access to a disposal facility could avoid or delay the actions required by the proposed rule, by " collecting or consolidating for shipment off-site," when disposal facility access becomes available.

The proposed rule would make these requirements standard license conditions for every license issued for reactor, 21 t . _ - _ _ _ _ _ _ _ - - -

materials, fuel cycle, and independent _ spent fuel storage '

licensees.

The rulemaking would amend 10 CFR 30.34, 40.41, 50.54, 70.32, and 72.44. These sections of the regulations identify standard conditions for reactor, materials, fuel cycle, and independent spent fuel storage licenses. The licensee-would not be required to make a formal submittal to the NRC, to show compliance with these conditions. The proposed rule would require that all relevant documentation of the steps taken to y satisfy the requirements of this rulemaking be maintained by the licensee, and be made available to the NRC, for inspection.

To show compliance with this proposed rule, the NRC would expect the licensee to make an ennual request'for access to each operating commercial LLW disposal facility, for disposal of the licensee's LLW. Adequate documentation of the licensee's efforts, to exhaust other reasonable waste management options would-consist of copies of all correspondence to LLW disposal facility operators and responses to these requests. This documentation-shall be retained for at least three years. The NRC-will verify compliance, by reviewing this documentation, during periodic inspections, and at other times, as may be necessary, to determine whether additional inspections or other regulatory attention'is required. Absent a willful act, any non-repetitive violation of these requirements would normally be considered a Severity Level IV violation under the Commission's Enforcement Policy, contained in Appendix C to 10 CFR Part 2.

22

.. . ~ . , - . .- . _

t On-site' storage of LLW resulting from reactor operations can be undertaken pursuant to the existing authorities and procedures, such as 10 CFR 50.59, and all relevant licensing and regulatory requirements applicable to on-site storage.- Material, fuel cycle, and independent spent fuel storage licensees may store LLW on-site if storage: (1) is authorized under the existing license conditions; and (2) is consistent with-existing authorities and procedures, and all relevant licensing and regulatory requirements applicable to on-site storage.

The Commission continues to hold the position that it will not look tavorably on generator on-site storage of LLW, after January 1, 1996. It considers the on-site storage of LLW to bw a last- resort measure. The Commission's preference is that-LLW be permanently disposed of as soon after it is generated as possible.

This proposed rule would supplement, but not supersede, the existing regulations and guidance applicable to storage of LLW.

The conditions in themselves would not authorize on-site-storage.

The existing regulatory and licensing framework.will continue to be applicable. The following seven documents,-in conjunction with the regulations in 10 CFR parts 20, 30, 40, 50, 70, and 72, provide this framework for LLW storage. However, note-that.the generic letters and information notices are informational and not binding. These documents are available, for inspection and 23

a copying, for a fee, at the.NRC Public Document Room, 2120 L-Street, NW. (Lower Level), Washington, DC.

Applicable Licensing-Framework Documents for On-Site LLW Storage EY.Va HL. Tilla Generic Letter 81-38 " Interim Storage of Utility Licensee-Generated Low-Level Radioactive Waste at Reactor-Sites" Generic Letter 85-14 " Commercial Storage at Power Reactor Sites of Low-Level Radioactive Waste Not Generated by the Utility" Information Notice 89-13 " Alternative Waste Management Procedures in Case of Denial of-Access to Low-Level Waste Disposal Sites" Information Notice 90-09 " Extended Interim' Storage of Low-Level Radioactive Waste by Fuel Cycle and Materials Licensees" Regulatory Guide 1.143 " Design Guidance for Radioactive Waste Management Systems, Structures, and Components Inctalled in Light-Water-Cooled Nuclear Power Plants" Standard Review Sec. 11.4 " Solid Waste Management Plan (NUREG-0800) Systems" Inspection and 80-18 "10 CFR 50.59 Evaluations for Enforcement Changes to Radioactive Waste Circular Management Systems" 24

- 4 Finding of No Significant Environmental Impact: Availability The Commission has determined, under the National Environmental Policy Act of 1969, as amended, and-the Commission regulations in Subpart A of 10 CFR Part 51, that this rule, if-adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This proposed rulemaking would supplement, but not supersede, the existing regulatory framework applicable to the storage of LLW. The additional conditions of this rulemaking, in themselves, would not authorize on-site storage. These amendments would add administrative and verification requirements to existing regulations governing the licensing of byproduct material, source material, production and utilization facilities, special nuclear material, and indepern- + spent fuel storage. The proposed rule would encourage disposal as opposed.to storage, and this should have beneficial environmental effects. The-proposed rule would not result in any increase in radiation exposure from transportation-of LLW, compared to that expected from the ultimate disposal of LLW envisioned by the Act. Any environmental impact-of operating an on-site LLW storage facility will be addressed, as required, as part of the licensing action for that facility, under previously-established regulatory requirements. The environmental assessment and finding of no 1

significant impact, on which this determination is based, may be 4

25 4

examined and copied, for a fee, at the NRC Public Document Room,  ;

2120 L Street, NW. (Lower Level), Washington, DC, telephone (202)

^

634-3273.

Paperwork Reduction Act Statement t

This proposed rule amends information collection requirements that are subject to the Paperwork Reduction-Act of 1900 (44 U.S.C. 3501 et seq.). This rulemaking has boon submitted to the office of Management and Budget for review and approval of the paperwork requirements.

The public reporting burden for this collection of information is estimated to average 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> per response, including the time for reviewing instructions, searching. existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send 3

comments regarding this burden estimate er any other aspect of this collection of information, including. suggestions for-reducing this burden, to the Information and Records Management Branch (MNBB-7714), U.S. Nuclear Regulatory Commission, Washington, DC 20555; and to the Desk officer, office of Information and Regulatory Affairs, NEOB-3109'(3150-0017, 3150- '

0020, 3150-0011, 3150-0009, and 3150-0132), Office of Management and Budget, Washington, DC 20503.

26

_i 1

-)

n - . - . - - - - - - - , , ,-, - , -

. _ . - . .- . - . _ . _ _ . -- --- . .-- -. -. - --._=. _ .- __ - .-. .

Regulatory Analysis The Commissicn has prepared a draft regulatory analysis on these proposed amendments. The analysis examines the costs and benefits of the alternatives considered by the Commission. The draft analysis may be examined and copied, for a fee, at the NRC public Document Room, 2120 L Street, NW. (Lower Level),

Washington, DC, telephone (202) 634-3273.

The Commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC, as indicated under the " ADDRESSES" heading.

Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The proposed rule affects approximately 6200 NRC licenses under 10 CFR parts 30, 40, 50, 70, and 72. Of this total, approximately 2000 are small entities. The proposed rule will require licensees planning to store LLW beyond January 1, 1996 (except for other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site in the case where the licensee has access to an operating LLW disposal 27 k

, . - , _ _ y--r,__, .-- -~--.v__,- _m,,. ,r__,,__.._

, r ,,--._,.-_,,..._-w.----- - , , _ . .

facility) to document that other reasonable wacte management options have been exhausted. The required documentation and maintonanco of theso records will require minimal administrative resourcos. Licensees will need to prepara and mail letters to appropriate LLW management authorities, retain all relevant documentation, and make those records available for NRC inspection. The annual recordkooping burden imposed by the proposed rulo is estimated to be 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> for the averago e

l licenseo. The NRC does not believe that this burden will have a significant economic impact on small entities. I Backfit Analysis The proposed rulo does not constitute "...the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, ,

construct or operate a facility...." Therefore, the preposed action is not a backfit, as defined in 10 CFR 50.109. The proposed rule primarily addresses the off-site dispedal of low-level radioactive waste, generated as a result of reactor-  :

operation. -The existing regulatory framework, applicable to '

assuring the safety of on-site storage of low-level radioactive waste, generated by reactor operations, remains unchanged.- The NRC is seeking public comment on the backfit analysis. Comments should be sent to-the Secretary of the Commission, U.S. Nuclear ,

28

-~ - . -

Regulatory Commission, Washington, DC 20555, Attnt Docketing and Service Branch.

List of Subject Terms 10 CFR Part 30 Byproduct material, Criminal penalty, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements.

10 CFR Part 40 Criminal penalty, Government contracts, llazardous materials

- transportation, Nuclear materials, Reporting and recordkeeping requirements, source material, Uranium.

10 CFR Part 50 Antitrust, Classified information, Criminal penalty, Fire prevention, Incorporation by reference, . Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements.

s?

T 29 i

.= -

_ _ _ _ . . _ _ _ _ . _ _ _ _ - _ - - - - - - - - - - - - - - " - - - - - ' ' - - " - ' ^ -

. _ . _ . . _ _ _ . . _ _ _ _ _ _ _ _ . _ . . _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ . _ . _ _ _ _ _____ __ _.m. . .

s, q i

10 CPR Part 70 Criminal penalty, llazardous materials - transportation, Material control and accounting, Nuclear motorials, Packaging and containers, Radiation protection, Roporting and recordkooping requirements, Scientific equipment, Security measuras, Special nuclear material.

10 CFR Part 72 Manpower training programs, Nuclear materials, occupational safoty and health, Reporting and recordkooping requirements, Security measures, Spent fuel.

For the reasonu :20t out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CPR  :

Parta 30, 40, 50, 70, and 72.

30 1

-- l 1

~J

I l

PART 30 - RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF BYPRODUCT MATERIAL s i

1. The authority citation for Part 30 is revised to read as follows:

Authority: Sees. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 953, 954, 955, as amonded, sec. 234, 83 Stat. 444, as-amended (42 U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282);

seca. 201, as amended, 202, 206, 88-Stat. 1242, as amended, 1244i 1246 (42 U.S.C. 5841, 5842, 5846).

Section 30.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 30.34(b) also issued undag ,

sec. 184, 68 Stat. 954, as amendad (42 U.S.C. 2234). Section 30.34(j) also issued under Pub. L.99-240, sec. 102, 99 Stat..

1842 (42 U.S.C. 2021).- Section 30.61 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); $530.3, 30.10, 3 0. 3 4 (b) , (c), (f) , . (g) , '(i) , and' (j), 30.41(a) and (c), and 30.53 are issued under sec. 161b, 68 .

Stat. 948, as amended (42 U.S.C. 2201(b)); S30.10 is issued under sec. 1611, 68 Stat. 94 9,' as amended - (4 2 U. S.C. 2201(1)); and SS30.6, 30.9,-30.34(g) and (j),-30.36,-30.50, 30.51,.30.52, 30.55, and 30.56(b) and.(c) are: issued under sec. 161o, 68 Stat..

950, as amended (42 U.S.C. 2201(o)).

4 31

4 1

1

2. In 530.34, paragraph (j) in added to road au follows:

S Md4_.lcaruit nLcnnsiltionu _o L11 c_ ens e n .

(j) The following conditions are contained in overy licenso lanued under the regulationu in thin part.

(1) Low-levol radioactive wanto (LLW) may be stored on-alto, provided it in authorized under exinting conditionn of the license, and storago in consistent with oxisting authorition and proceduros, and all rolovant licensing and regulatory requiremento applicable to on-sito storage. LLW may not bo stored on-sito by the generator beyond January 1, 1996, excwpt an speciflod in paragraph (j)(2) of this noction.

(2) For on-sito storage of LLW beyond January 1, 1996 (other than roanonable short-term atorage necessary for decay or for collection or consolidation for shipment off-sita, in the case where the licensoo han access to an operating LLW disposal facility), the licenson ohall document that it han exhaunted other ransonablo wanto management options which would inciado taking all roanonablo stops to contract, either directly ter >

e

-through the Stato, for disponal of LLW.

(3) The liconnon shall retain all relevant documentation regarding the actions taken pursuant to paragraph (j)(2) of this noction, for at least throo years, and shall make the 32 e

' to

• W .

4 documentation available for NRC inspection.

PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL

3. The authority citation for Part 40 is revised to read as follows:

Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs.

11e(2), 83, 84, Pub. L.95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2 014 (c) ( 2 ) , 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688 (42 U.S.C. 2021);

secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).

Section 40.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.41(h) also issued under Pub. L.99-240, sec. 102, 99 Stat. 1842 (42 U.S.C.

2021). Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); S$40.3, 4 0. 2 5 (d) (1) -(3 ) , 4 0. 3 5 (a ) - (d) and (f),

33

4 40.41(b), (c), and (h), 40.46, 40.51(a) and (c), and 40.63 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C.

2201(b)); S40.10 is issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)) ; and 5540. 5, 40.9, 40.25(c), (d)(3) and (4), 40.26(c)(2), 40.35(o), 40.41(h), 40.42, 40.61, 40.62, 40.64, and 40.65 are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

4. In S40.8, paragraphs (a) and (b) are revised as follows:

540.8 Information collection requirements: OMB anoroval.

(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act of 1980_(44 U.S.C. 3501 et seq.).

OMB has approved the information collection requirements contained in this part under control number 3150-0020.

(b) The approved information collection requirements contained in this part appear in S$40.25, 40.26, 40.31, 401.35, 40.36, 40.41, 40.42, 40.43, 40.44, 40.60, 40.61, _40.64, 40.65, and Appendix A.

34

5.

In S40.41, paragraph (h) is added to read as follows:

540.41 Terys and conditions of liconagg.

(h) The following conditions are contained in every license issued under the regulations in this part.

(1) Low-level radioactive waste (LLW) may be stored on-site, provided it is authorized under existing conditions of the license, and storage is consistent with existing authorities and procedures, and all relevant licensing _and regulatory requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (h)(2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or-for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensee shall document that it has exhausted other reasonable waste management options which would include taking all reasonable steps to contract,'either directly or through the State, for_ disposal of LLW.

(3) The licensee shall retain all relevant documentation 35

regarding the actione taken pursuant to paragraph (h)(2) of this section, for at least three years, and shall make the documentation available for NRC inspection.

PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES

6. The authority citation for Part 50 is revised to-read as follows:

Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, t.s amended, 1244, 1246, (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also issted under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also issued under.

secs. 101, 185, 68 Stat. 936, 955 as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).

Sections 50.13 and 50.54(dd) also_ issued under sec. 108, 68 Stat.

939, as amended (42-U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued-under sec. 185, 68 Stat. 955 (42 U.S.C.

2235). Sections 50.33a,-50.55a, and Appendix Q also issued under ,

sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).

Sections 50.34 and 50.54 also issued under sec. 204,.88 Stat.

36

-=

- =

or+. .m-.w.S-e9----m 4 r - - - - , y g - -gwr w-- p e y

1245 (42 U.S.C. 5844). Section 50.54 (ff) also issued under Pub.

L.99-240, sec. 102, 99 Stat. 1842 (42 U.S.C. 2021). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sectionn 50.80 81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C.

2234). Section 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), SS50.5, 50.46(a) and (b), and 50.54(c) and (ff) -are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C.

2201 (b) ) ; S$50.5, 50.7(a), 50.10 ( a ) - ( c) , 50.34(a) and (e),

50. 4 4 (a)-(c) , 50.46(a) and (b), 50.47(b), 50.48(a), (c), (d), and '

(e), 50.49(a), 50. 54 (a) (1) , (i) (1) , (1)-(n) , (p), (q), (t), (V),

and (y), 50.55(f), 50.55a(a), (c)-(e), (g), and (h), 50.59(c),

50.60(a), 50. 62 (b) , 50. 64 (b) , 50.65, and 50.80(a) and (b) are issued under sec. 1611, 68 Stat. 949, as amunded (4 2 U. S. C.

2201(1)); and SS 50.49(d), (h), and (j), 50.54(w), (z), (bb),

(cc), (dd), and'(ff), 50.55(e), 50. 59 (b) , 50. 61(b) , 50. 62 (b) ,

50.70(a), 50.71(a)-(c) and (e), 50. 72 (a) , 50.73(a) and (b),

50.74, 50.78, and 50.90 are issued under sec. 161o, 68 Stat._950, as amended (42 U.S.C. 2201(o)).

l j 37 1

'4

+

i

7. _ In 550.54, paragraph (ff) is added to read as follows:  !

?

r

$50.54 Conditions of licenggg.

(ff) (1) On-site storage of low-level radioactive waste '

(LLW) may be undertaken pursuant to existing authorities and '

procedures (such as 10 CFR 50.39) and all relevant licensing and regulatory 1 requirements applicable to on-site storage. LLW may j not be stored on-site by the generator'beyond-January 1, 1996,.

- except as specified in paragraph (ff)(2) of.this section.

(2) For on-site storage of LLW htyond January 1, 1996 (other_than reasonable short-term storage.necussary for decay or '

for collection or-consolidation for shipment ~off-site, in_the o

case whero the' licensee has accrss to an operating LLW disposal. _

I f acility), the licensee shall document- that --

(i) The licenseo has exhausted other reasonable waste management options which would include taking all reasonable steps to contract, either'directly or through the State, for.the disposal of LLW; and (ii)~On-site _ storage activities will be consistent with, and' not compromise,: safe operation of the licensee's activities, nori -

s decrease the level of safety provided by applicable-regulatory requirements.

(3) The licenses shall retain all relevant documentation-38 F &4" mPauw  ?+ww- -terd'#4W'r -4749* 7-*#M V ?r* t w7 se *' mv @'T t"' T r F 997' * "W *'T&*4r'P P = 97 F"""Y 'T T P-- *^+*- " PFT P

regarding the actions taken pursuant to paragraphs (f f) (2) (1) and (ii) of this section, for at least three years, and shall'make the documentation available for NRC inspection.

PART 70 - DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

8. The authority citation for Part 70 is revised-to read as followc Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2201, 2232, 2233, 2282); secs. 201, as amended, 202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846).

Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U'.S.C. 10155, 10161). Section 70.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 710.21(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). . Section 70.31 also issued under sec. 57d,-Pub. L.93-377, 88 Stat. 475 (42 U.S.C. 2077). Section 70.32(1) also-issued under Pub. L.99-240, sec. 102, 99 Stat. 1842 (42 U.S.C. 2021). Sections 70.36 and 70.44 also issued under sec.-184, 68 Stat.-954, as-amended '(42-U.S.C.2234). Section 70.61 also issued under secs. 186,_ 187, 68 Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

39 e

--q--ry'n=y- 3r -~q"7T'+TWTP ^

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); $$70.3, 70.10, 70.19(c), 70.21(c), 70.22(a), (b),

(d)-(k), 70.24(a) and (b) , 70. 32 (a) (3) , (5) and (6), (d), (i),

and (1), 70.36, 70.39(b) and (c), 70.41(a), 70.42(a) and (c),

70.56, 7 0. 57 (b) , (c), and (d), 70.58 (a)-(g) (3) , and (h)-(j) are issued under sec. 161b, 68 Stat. 948 as amended (42 U.S.C.

2201 (b) ) ; S570.7, 70.10, 70.20a(a) and (d), 70.20b(c) and (e),

70.21(c), 70.24(b), 70. 3 2 (a) (b) , (c), (d), (e), and (g), 70.36, 70.51(c)-(g), 70.56, 7 0. 57 ( b) and (d), and 70.58(a)c(g)(3) and (h)-(j) are issued under sec. 1611, 58 Stat. 949, as amended (42 U.S.C. 2201(1)); and SS70.5, 70.9, 70.20b(d) and (e) , 70.32(1),

70.30, 70.50, 70.51(b) and (1), 70.52, 70.53, 70.54, 70.55, 70.58(g)(4), (k) and (1), 70.59, and 70.60(b) and (c) are issued under sec. 1610, 68 Stat 950, as amended (42 U.S.C. 2201(o)).

9. In $70.32, par & graph (1) is F.dded to read as follows:

S70.32 conditions of Licengfa.

(1) The following conditions are contained in every license issued under the regulations in this parts (1) Low-level radioactive waste (LLW) may be stored on-site provided it is authorized under existing conditions of the license, and storage is consistent with existing authorities and 40

+

e e

procedures, and all relevant licensing and regulatory '

requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (1)(2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensee shall document that it has exhausted other reasonable waste management options which would include taking all reasonable steps to contract, either directly or through the State, for disposal of LLW.

(3) The licensee shall retain all relevant documentation e

regarding the actions taken pursuant to paragraph (1) (2) of this section, for at least three years, and shall make the documentation available for NRC inspection.

PART LICENSING REQUIREMENTS FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

10. The authority citation for Part 72 is revised to read as follows:

Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 887, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as 41

- - - - - av &^- w - --T-- --

vv t 7- r--'-v' -W-

l -

amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688, as amended (42 U.S.C.

2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L.95-601, sec. 10, 92 Stat.

2951 (42 U.S.C. 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); Secs. 131, 132, 133, 135, 137, 141, Pub. L.97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168).

Section 72,44 (g) also issued under secs. 142(b) and 148(c),

(d), Pub. L.

100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C.

10162(b), 10168(c), (d)). Section 72.44(h) also issued under Pub. L.99-240, sec. 102, 99 Stat, 1842 (42 U.S.C. 2021).

Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C.

2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).

Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2g2), 2(15), 2(19), 117(a), 141(h), Pub. L.97-425, 96 Stat. 2202, 2203, 2204, 2222, 2244 (42 U.S.C. 10101, 10137(a),

10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198).

For the purposes of sec. 223,-68 Stat. 958, as amended (42 U.S.C. 2273); SS72.6, 72.12, 72.22, 72.24, 72.26, 72.28(d),

72.30, 72.32, 72.44(a), (b) (1) , (4), (5) , (c) , (d) (1) , (2), (e),

42

_ __ =

. _ _ _ - __ _ . _ _ ~-_.-_.-__. - _ .

(f), (h), 72.48(a), 72.50(a), 7 2. 52 (b) , 72.72(b), (c), 72.74(a), ,

(b), 72.76, 72.78, 72.104, 72.106, 72.120, 72.122, 72.124, L 72.126, 72.128, 72.130, 7 2.14 0 ( b) , (c), 72.148, 72 154, 72.156, 72.160, 72.166, 72.168, 72.170, 72.172, 72.176, 72.180, 72.184, 72.186 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); SS72.10(a), (e), 72.12, 72.22, 72.24, 72.26, 72.28, 72.30, 72.32, 72.44(a), (b) (1) , (4), (5), (c) , - (d) (1) ,

e (2), (e), (f), 72.48 (a), 72.50(a), 72. 52 (b) , 72.90(a)-(d) , l(f) ,

72.92, 72.94, 72.98, 72.100, 72.102(c), (d), (f), 72.104, 72.106, 72.120, 72.122, 72.124, 72.126, 72.128, 72.130, 72.14 0 (b) , (c),

72.142, 72.144, 72.146, 72.148, 72.150, 72.152, 72.154, 72.156, 72.158, 72.160, 72.162, 72.164, 72.166, 72.168, 72.170, 72.172, 72.176, 72.180, 72.182, 72.184, 72.186, 72.190, 72.192, 72.194 are issued under sec. 1611, 68 Stat. 949, ds amended (4 2 U. S. C.

2201(i)); and SS72.10(e), 72.11, 72.16, 72.22, 72.24, 72.26, 72.28, 72.30, 72.32, 72. 4 4 (b) (3 ) , (c) (5)_ , (d) (3) , - (e) , (f), (h),

72.48(b), (c), 7 2. 5 0 (b) , 72.54(a), (b) ,- (c) , 72.56, 72.70, 72.72, 72.74(a), (b), 72.76(a), 72.78(a),-72.80, 72.82, 7 2. 92 (b) ,

72. 94 (b) , 72.14 0 (b) , (c), (d), 72.144(a), 72.146, 72.148, 72.150,-

72.152, 72.154(a), (b), 72.156, 72.160, 72.162, 72.168, 72.170, 72.172, 72.174, 72.176, 72.180, 72.184, 72.186, 72.192, 72.212(b), 72.216, 72.218, 72.230, 72.234(e) and (g) are issued under sec. 1610, 68_ Stat.-950, e amended (42 U.S.C. 2201(o)).

43

r

11. In $72.44, paragraph (h) is added to read as follows:

S72.44 License conditions.

(h) The following conditions are contained in every license issued under the regulations in this part:

(1) Low-level radioactive waste (LLW) may be stored on-site, provided it is authorized under existing conditions of the license, and storage is consistent with existing authorities and procedures, and all relevant licensing and regulatory requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (h)(2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensee shall document that it has exhausted other reasonable waste management options which would include taking all reasonable steps to contract, either directly or through the State, for disposal of the LLW.

(3) The licensee shall retain all relevant documentation regarding the actions taken pursuant to paragraph (h) (2) of this section, for at least three years, and shall make the 44 P

lif~

+

documentation available for NRC inspection.

Dated at Rockville, Maryland, this day of , 1992.

t For the Nuclear Regulatory commission.

E uel J. Chilk,- . -

Secretary of the Commission.

T-

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45

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.j . . , , 7, ,. -+-

Y' APPENDIX A

SUMMARY

AND ANALYSIS OF COMMENTS IN RESPONSE TO THE FEDERAL REGISTER NOTICE OF DECEMBER 4, 1990 (55 FR 50054)

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SUMMARY

, ANALYSIS, AND CONCLUSIONS OF RESPONSES TO EIGHT QUESTIONS CONCERNING THE LOW-LEVEL RADI0 ACTIVE WASTE POLICY AMENDMENTS ACT OF 1985 Introductton During a publia meeting of the Commission on October 29, 1990, the Commission decided to solicit the views of the public on the staff recommendations in SECY-90-318. " Low-level Radioactive Waste Policy Amendments Act Title Transfer and Possession Provisions," dated September 12, 1990.

Public comment was sclicited in a Federal Reaister notice (FRN) published on December 4, 1990 (55 FR 50064). This notice also requested responses to eight related questions. A summary and an analysis of the responses to this FRN are provided below. Because of the U.S. Supreme Court's decision in New York v.

United States, the summary and analysis related to the take-title provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) were rendered moot and consequently have been omitted.

Question 1. What factors should the Commission consider in deciding whether to authorize on-site storage of low-level waste (other than storage for a few months to accommodate operational needs such as consolidating shipments or holding for treatment or decay) beyond 1996?

Summary of Comments.

The principal issue raised by the commenters was whether NRC can and should consider ultimate disposal as a factor in its storage authorizations.

Some commenters believe that NRC should consider only protection of the public <

health and safety, without any preference for disposal over storage in its licensing decisions, in this role, NRC would simply carry out its normal licensing and inspection functions for either the storage or disposal option.

Others suggested that NRC consider not just public health and safety, but also evidence of progress in developing a disposal facility as a condition for issuing a storage license. Commenters characterized this role for NRC as the

" enforcer" of the LLRWPAA. Others agreed with the stzff's approach in SECY-90-318 which stated that the Commission "does not look favorably upon long-term on-site storage after 1996," but which acknowledged that at least some short-term storage will likely be required after 1996. In this role, NRC would " encourage" disposal (or not look favorably on storage), but would not make disposal plans an explicit condition for authorizing storage.

Many specific technical or administrative issues, such as waste container degradation and NRC resources to perform storage license reviews, were also mentioned in response to this question. Commenters also suggested that miscellaneous factors, such as the efforts of individual generators in cooperating with the States, the time needed to "do the job right", and time for development of new waste disposal technology, be considered in any Commission storage authorizations.

The only significant trend in the comments was that individuals and public interest groups tar' i to favor on-site storage beyond 1996. Many of these commenters also bel. =t waste generation activities should be stopped until disposal cy. 'vailable. Their favoring of on-site

t

,torage at a generator's facility was an outgrowth of the belief that States should not be responsible for LLW management. States, compacts, utilities, and other generators showed no clear preference for any NRC role.

Analysis With respect to whether NRC has the authority to " enforce" the provisions of the LLRWPAA, NRC could take actions to encourage disposal. NRC has broad authority under the Atomic Energy Act of 1954, as amended (AEA), for rules and <

orders as it "may deem necessary or desirable to... protect health or to minimize danger to life and property." The public health and safety is enhanced by disposal, rather than by long-term, indefinite storage of wastes.

Disposal of wastes in facilities licensed under the requirements of Part 61 or its equivalent will provide better protection of the public health and safety and environment than long-term storage at perhaps hundreds or even thousands of sites throughout the country, further, a nexus was established between disposal and public health and safety and environment and long-term storage with the passage of the LLRWPAA. Thus, NRC has the broad authority to encourage disposal over storage, if it feels that specific measures would be beneficial.

To date, the need for extended storage of low-level waste has been small to almost non-existent because low-level waste has been shipped to the existing waste disposal sites in operation. As a result, industry experience and staff reviews and guidance have not addressed longer-term storage. Many of the commenters on this question pointed out specific hazards and technical considerations that need to be addressed if long-term storage is to be used.

for example, container degradation from storage in humid environments, and gas generation from radiolysis were two concerns that were highlighted and which would need to be addressed. Addre.41ng all of these concerns with indefinite long-term storage could require safety measures analogous to those for permanent disposal. An above ground vault meeting the performance requirements of Part 61 is an example of the type of facility that could be justified if a licensee were to need explicit authorization for long-term storage. Guidance for acceptable low-level waste storage practices for periods significantly beyond 5-years may need to be reviewed and assessed as noted in SECY-90-318, to assure safety.

Given that the NRC has authority to encourage disposal but at the same time believes that LLW could be safely stored, the question becomes "What actions could the NRC take and what would these accomplish?" The options range from taking no new actions, to encouraging disposal as we have in the past, to formally considering disposal plans and progress in the licensing of storage facilities (See responses to Question 7 for a discussion'of these additional  :

assurances for disposal).

Other factors for storage licensing suggested by comenters go beyond the considerations that normally apply to licensing, included in these are forecasting the availability and benefits of new technology for waste disposal and consideration of generators cooperating with States in developing disposal capacity, 2

With respect to the suggestion that the Comission consider suspending any waste producing activities if disposal capacity is not available, storage could be safely accomplished untti disposal capacity becomes available. There is no public health and safety reason for stopping waste producing activities.

In summary, the principal f actor in the Comission's decision to authorize on-site storage is what consideration needs to be given to ultimate disposal plans. Question 7 (assurances NRC should require for disposal) discusses what actions the Com,nission can take if it chose to consider disposal plans.

Question 2. What are the potential health and safety and environmental impacts of lacreased reliance on on-site storage of low-level waste?

Summary of Comments.

Although some comenters believe there would be neither health and safety nor environmental effects from storage of LLW, other commenters believe that risk or exposures to werkers would increase. Various concerns were raised by some commenters regarding the risk associated with multiple storage sites, with fire hazards, and with enhanced corrosion of waste packages. Others pointed out that occupational exposures would be increased by maintenance and surveillance activities, and the possible repackaging of waste for disposal.

Several commenters believe that a risk assessment should be performed to better define the risks associated with storage. The risk assessment should include a comparison of centralized storage vs. on-site storage by generators.

Finally, several commenters pointed out that storage on-site would eliminate any risk from transportation hazards and woM o take advantage of already contaminated sites. These commenters 'r.ored long-term, indefinite, on-site storage over near surface disposal.

Analysis.

NRC agrees with comeenters who believe that the public health and safety and the environment could be adequately protected with on-site storage of LLW.

Although the safety measures for long-term storage facilities will be greater than those employed now for short-term storage, measures can be undertaken to prevent or mitigate the effects of the various internal and external hazards at a storage facility. However, potential exposures to workers will be reduced if disposal is accomplished. Permanent disposal of LLW has always been the preferred option for managing wastes. The LLRWPAA reflects this preference. The design features of a disposal facility, including the natural features of the site, crotect against a wide range of events and phenomena over a long period of time. In contrast, and as a number of commenters noted, storage would involve increased werker exposure from unloading the waste from-storage for disposal, possible waste form processing (such as solidification or repackaging) to meet the waste acceptance criteria of a disposal facility when one became available, and radiation surveys during storage.

in order to adequately protect public health and safety, existing storage facilities may need to be substantially improved to acre wastes safely for 3

L long periods cf time. Actual storage conditions in use now range from sheet steel buildings on a concrete pad to rooms in hospitals and universities to several foot thick concrete modules. These structures may or may not have humidity and temperature control systems and could be subject to changing environmental conditions. The possibility for degradation of the waste containers will axist and will be a function of the materials used and the environment in which they are located. As a bounding condition, a storage facility with an indefinite period of storage for its design could need controls similar to those in Part 61 for a disposal facility, because the design life would be the same.

Increased waste form requirements may be particularly important for Class A waste which normally is not stabilized prior to shipment for disposal, and for any stable waste forms which degrade as a result of the storage environment. This waste may contain quantities of absorbed liquid which, when _

alone or in the presence of radiation and organic materials, may produce organic acids and/or other species. These species may accelerate internal corrosion and failure of common storage containers.

Several commenters pointed out the need for risk assessments of storage options. NRC is unaware of any quantitative comparisons of the risks and exposures associated with storage vs. disposal and on-site storage vs.

centralized storage. NRC will have available information from other programs on storage (such as the NY State storage study and DOE studies) and will use this information in its planning. Additional NRC work may be needed in this area depending on developments between now and 1996.

Question 3. Would low-level waste storage for other than operational needs beyond January 1, 1996, have an adverse impact _on the incentive for timely development of permanent disposal capacity?

Summary of Comments.

Comments in response to this question can be put into the following categories:

Yes, there would be an ad erse impact--somewhat less than half of those who gave a yes or no answer believe that storage would adversely affect timely development of disposal capacity. Generally these responses were-provided by host States, a compact or industry.

No, there would not be an adverse impact. Many individual commenters or public interest groups believe that storage was the preferred option over disposal and stated that there would be no adverse impact. They believe that current disposal technology is not adequate for protecting public health and safety. Several others believe that allowing for storage would halg in achieving disposal capacity by allowing time for contracting among States, inereby reducing the number of sites that are needed in the country. They also believe that storage would provide the time needed to do the job right.

4 The question is moot. A few commenters pointed out that the reality of the national waste disposal situation is that storage beyond 1996 will be necessary and therefore the question is moot. Several recognized that storage will be necessary, but at the same time encouraged the NRC to permit storage only when necessary. Another commenter pointec out that the LLRWPAA contains ample incentives to promote disposal without needing to consider the effect of NRC's storage policy. Commenters cited the cost to generators or States for storage, the resources (space and personnel) which would need to be devoted to on-site storage at a generator site, the possible loss of jobs in a State if companies move to areas which have disposal capacity, and the political impact in a State if LLW must be stored in increasingly larger quantities at numerous sites throughout a State.

The NRC should not consider any adverse impacts of storage. As noted in the response to the first question on factors the NRC should consider in authorizing storage, a number of commenters believe that NRC's role is one of only licensing and overseeing storage or disposal facilities, without having a preference for one or the other. These same commenters therefore believe that it was inappropriate for NRC to ask this question.

Analysis.

Commenters who stated that storage would have an adverse impact provided little or no bases for their position. This is not surprising given that the question calls for prediction of the future which often must be based on judgment rather than hard data and scientific formulae.

Commenters who believe that there would be no adverse impact on disposal pointed to the incentives that will remain for a State to develop disposal capacity, irrespective of the relief provided by storage. In particular, there are costs (to the State and/or generators); the possible loss of jobs if a generator moves to a State with disposal availability; and, if generator storage is common, the political impact of a large number of LLW sites with ever growing amounts of LLW.

At the same time, NRC agrees with some commenters that short-term storage may be ne:essary in some States, especially those which have made a good faith effort ani continue to do so into the future. Nevertheless, on balance, the NRC believes that an NRC policy which placed no disincentives on extended or inadequate storage would likely tend to discourage disposal, i

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Question 4. What specific administrative, technical and legal issues are 1

l raised by the requirements for transfer of title? I Summary of Coments, l The comments in response to this question addressed the take-title provisions of the LLRWPAA. Because of the U.S. Supreme Court decision in ILe York v. United States and the revision to the proposed rule, these coments and the associated analysis are moot and consequently are not included.

Question 5. What are the advantages and disadvantages of transfer of title and possession as separate steps?

Because of the U.S. Supreme Court decision in New York v. United Statei and the revision to the proposed rule, the question is moot and consequently the sumary and analysis associated with this question are not included.

Question 6. Could any state or local laws interfere or preclude transfer of title or possession of LLW7 Because of the U.S. Supreme Court decision in New York v. U_nited States and the revision to the proposed rule, the question is moot and consequently the sumary and analysis associated with this question are not included.

Question 7. What assurances of the availability of safe and sufficient disposal capacity for low-level waste should the Comission require and when should it require them? What additional conditions, if any, should the Comission consider in reviewing such assurances?

Summary of Coments.

No assurances were needed according to seven of the 27 comenters on this question. The NRC lacks the authority and its role is limited to facility licensing of either disposal or storage, in their view. Other comenters indicated that if NRC believes that such assurances are needed, it should seek l an amendment to the LLRWPAA or initiate a rulemaking similar to the one for spent fuel storage in 10 CFR Part 51 in which the Comission made a finding i

that there was confidence that ultimate disposal of spent fuel would be achieved at a future date.

For those comenters who believe that assurances were appropriate, the kinds of assurances varied. One recomended that storage beyond 5-years should reouire a State or compact plan on how the State or compact intends to dispose of the waste so that storage is not de facto disposal. The comenter also believe that, while a State lacks disposal capacity, there should be no licensing between now and January 1,1996 of any facility that may generate significant amounts of waste after that date. Others believe that the generator should project waste volumes accurately and that demonstrated progress towards issuance of a license to operate a regional disposal facility would be sufficient.

6

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One comenter suggested that a governor's certification be required that would be similar to those already submitted as part of the LLRWPAA milestone compliance of January 1,1990. The requirements of the certification should be simple and available to licensees to submit with the license to store or with the application to amend the possession limit. In addition, they believe that the NRC should require that the governor's certification include estimates of the costs for disposal capacity for waste management decision making.

With regard to when the Comission should require the assurances, two comenters addressed the timing issue and focused on the 5-year storage time frame. The other comenters presumably believe that the assuraaces should apply at any time the licensee would apply for a storage license. Another recomended action by NRC "in the next few years."

Analysis.

Like Question 1 (concerning the factors the Comission could consider in authorizing storage), this question also addresses the role of the NRC in implementing the LLRWPAA. It presumes that the NRC has both the authority and the willingness to seek additional assurances for ultimate disposal. Because comenters often did not agree with this premise, as noted in the analyses of earlier questions, they also believe that this was not an appropriate question far the NRC to ask. However, the NRC, under the AEA, does have broad authority to promulgate rules and regulations to protect the public health and safety and minimize danger to the public.

A number of commenters gave examples of the types of assurances that could be furnished by the States. Examples would include a " plan" for disposal or a governor's certification, both of which would be meant to demonstrate that a State has an active, viable program for the development of disposal capability.

With respect to the question of whether the NRC has assurance that LLW disposal capacity will be available in the future, such assurance is available, as indicated in the analysis section of Questions 1 and 2, and does not require a formal rulemaking, as was suggested by several comenters and performed for HLW. Unlike the HLW program, where no repository has yet been in operation, disposal sites have been in operation and safely isolating waste for decades at Barnwell, S.C., Hanford, WA, and Beatty, NV. Additional

, disposal capacity is expected soon. Some States may have their facilities in i operation before 1996. There continue to be other options, including storage

} until a disposal site is located, or contracting with another State, or I

continuing to pursue development of a site within-the St ate or compact. Thus, l the question is not whether LLW will be safely disposed of, but exactly where and when it will take place.

! 7 1

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Question 8. Are there any other specific issues that would complicate the transfer of title and possession, as well as on-site storage, of low-level waste? waste and mixed (radioactive and chemical hazardous)

Summary of Comments.

A wide variety of comments was provided in response to this question. A number of them were discussed in connection with previous questions. Coments strictly addressing transfer of title and possession are not included because they are moot. Remaining issues include the following:

1. Some commenters mentioned NRC storage policy and whether or not it will be a matter of compatibility with Agreement States was mentioned by some commenters. If not, Agreement States will license storage in accordance with their own storage policies and procedures.

2. The failure of some Statas to resolve legal, economic, and/or political issues will cause additional delays.

3. Accidents that generate large amounts of waste not previously planned for could cause a significant disposal problem.

4. NRC and Agreement State retources, as well as personnel trained in storage licensing, need to be in place.

5. Orphan waste and naturally-occurring and accelerator-produced radioactive materials (NARM) waste need to be addressed.

Analysis.

NRC has not attempted to resolve each of these issues in connection with this analysis of public comments. Many go beyond the scope of the NRC's responsibilities.and will need to be resolved by States and generators as they proceed. Others require a decision on the role of the NRC in encouraging disposal and others will need to be followed up at a later time.

Two of the above comments deserve attention here, however. The first is that Agreement States, which will perform much of the licensing for storage, should adopt the same or similar storage policy as NRC. License conditions for storage beyond 1996 are not currently compatibility requirements.

The second issue concerns the scope of the waste for which the State is responsible. Wastes falling within State responsibility include some Federal waste and any decommissioning waste or waste from contaminated sites that is removed in order to allow sites to meet the unrestricted use criterion in 1- decommissioning.

8 l

CONCLUSIONS.

The following conclusions can be reached as a result of the foregoing analyses:

1. Although LLW can be safely stored, disposal would enhance the protection of the public health and safety and the environment;

2. The LiRWPAA has established the preference for disposal over storage and established national goals for achieving adequate disposal capacity;

3. 1i4 '3C has broad authority under the Atomic Energy Act to advance tSe goal of disposal pursuant to the LLRWPAA. s

4. On-site storage by many LLW generators will likely be necessary due tu the lack of progress by States and compacts in developing sufficient disposal capacity.

The NRC has concluded that a rulemaking should be initiated to ensure that LLW generators exhaust all other reasonable management options before on-site storage will be permitted beyond January 1, 1996. One such option is to pursue a contract for disposing of waste. This action will reenforce the Commission's position that it will not look favorably on on-site storage by generators, after January 1, 1996, and the action actively supports the goals set forth in the LLRWPAA.

. . . - .-. . =.

[7590-01).

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 30, 40, 50, 70, and 72 RIN 3150-AE22 Procedures and Criteria for On-Site Storage of Low-Level Radioactive Waste AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission proposes to amend its regulations for reactor, material, fuel cycle, and independent--

spent fuel storage licensees. The proposed rule would establish a regulatory framework containing the procedures and criteria that would apply to on-site storage of low-level radioactive waste (LLW), beyond January 1, 1996. The Commission has determined, under the authority of the Atomic Energy Act of 1954,.

as amended, that these changes are appropriate because of potential health and safety concerns-associated with the-increased reliance upon on-site storage _of LLW. The proposed rule is intended to support the goals that have-been established by the Low-Level Radicactive Waste Policy Amendments Act of 1985 (Act) and is consistent with the June 19,'1992, United States '

Supreme court (Supreme court) decision, in New York v. United States. Comments?are! requested}onf.this proposedfrule(andfan strate'giesii'and! options thati theicommissionimightl pursue, sin E

addition': to' this ; proposed : rulemaking,j thatjwould < e_ncouragelthe States ; arid ' compacts to j move': forward withTdevelopmentLof =LLW

?

disposal facilities.

DATE: Comment period expires (60 days after publication).

Comments received after that date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.

ADDRESSES: Submit written comments to: The Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm Federal workdays.

Copies of the regulatory analysis, environmental assessment and finding of no significant impact, and the comments received on the rule may be examined and copied, for a fee, at the NRC Public Document Room, 2120 L Street, NW. (Lower Level),

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Washington, DC, telephone (202) 634-3273.

FOR FURTHER INFORMATION, CONTACT: Robert Nelson, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory commission, Washington, DC 20555, telephone (301) 504-2004.

2

. l lawsuit brought by the State of New York (a non-compact State) and two of its counties. The constitutionality of the take-title provision, as applied to compact States, was not before the Supreme Court. Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993,-

and in no case later than January 1, 1996.

Because no'new LLW " disposal facilities"were 'operationalion January l',D1993, and;the' compact commissions that'controlithe

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existingTLLW disposalisites-either!closedLt) ir'sitefor-set '

restrictions or-conditions'ontreceiving_LLW from outside1t heir regi~onal5 compact s f e f f ective ) January j ll, ,1993 , some licensees who generate LLW may be forced to store their LLW on-site,.until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all the Governors' Certifications submitted te meet the 1990 milestone of the Act indicated that the State planned on interim storage-by-waste generators from 1993 through 1996. However,-many States do expect to have access to the Barnwell LLW disposal facility from January 1, 1993 through June 30, 1994.

Early in 1990, the Commission directed the NRC staff to provide the Commission with information on the issues concerning the wastettitlestransfer and possession provisions set forth in the Act, so that the Commission might determine what role, if 5

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emergency access.

Comment. A more immediate concern, directly related to the storage of waste, is the authority of a generator to accept its processed waste after this waste has been sent off-site for treatment.

Response. The-NRC has amended?its-regulations governing the condition of licenses'for productionTandlutil'izationl facilities _

to allow a reactor licensee-to receive.back byproduct and-special -

nuclear material that is-produced by operating the reactor;after the material-has beenlsent off-site for processing,~suchJas compaction orfincineration. The final rule was;publ-ishedian October 21, 1992'(57:FR'47978). The; rule became effectiveEon November 20,-1992.

Comment. Any rulemaking on th.is issue must incorporate maximum flexibility, consistent with the protection of the public health and safety and the environment.

Response. Maximum flexibility has been considered. The proposed rulemaking does not preclude on-site LLW storage, as long as other waste management options are exhausted.

Comment. NRC's guidance would be expected to be consistent and compatible with NRC actions taken with respect to indefinite storage of high-level radioactive waste (HLW).

Response. The LLW situation is significantly different from 15

regulations, the use of language identical to that in NRC rules is not necessary, provided that the underlying principles are the same. The Agreement States may adopt more restrictive requirements.

The Commission is currently considering a re-evaluation of its compatibility policy and may decide to revise its general requirements regarding compatibility for the Agreement States.

The Commission's compatibility determination, on this proposed rule, may be re-examined in light of any change to the general policy.

Discussion of Proposed Revisions The proposed rule would establish procedures and criteria, for on-site storage of LLW, that would apply to all categories of LLW generators. On-site storage of LLW would not be permitted after January 1, 1996 (other than reasonable short-term storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW dispusal facility), unless the licensee can-document that it has exhausted other reasonable waste management options. The NRC's proposed regulations would require that the licensee attempt to contract, either-directly or through the State, for the disposal of its waste. In addition, reactor licensees would have to document that on-site storage activities 20

regarding the actions taken pursuant.to paragraph (h)(2) of this section, for at least three years,-and-shall make the documentation available-for NRC inspection.

PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES

6. The authority citation for Part 50 is revisad to read as follows:

Authority: Secs. 102, 103, 104, 105, 161,- 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246, (42 U.S.C.15841, 5842, 5846).

Section 50.7 also issued under' Pub. L.95-601, sec. 10,'92 Stat. .2951 (42 U.S.C. 5851). -Section 50.10 also issued under secs. 101, 185, 68 Stat. 936, 955 as amended (42.U.S.C. 2131, 2235); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).

Sections 50.13 and 50.54(dd) also issued under.sec. 108,.68 Stat.

939, as amended (42 U.S.C. 2138). Sections 50.23,-50.35, 50.55, and 50.56 also issued under sec. 185,_68 Stat. 955 (42 U.S.C.

2235).. Sections 50.33a, 50.55a, and Appendix Q.also issuedfunder sec. 102, Pub. L.91-190, 83 Stat. 853-(42 U.S.C. 4332).

Sections 50.34 and 50.54 also issued under sec. 204,~88 Stat.

36

. ~ . . _ . - - . - _ - - - .- . - .- . . ~ . - _ ~ - - . - .. -

l l

procedures, and all relevant licensing;and regulatory I requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragrcph (1) (2) of this section (2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensee shall document that it has exhausted other reasonable waste management options which would include

, taking all reasonable steps to contract,.either directly or-through the State, for disposal of LLW.

(3) The licensee shall retain all relevant documentation.

regarding the actions taken pursuant to paragraph (1) (2) of this-section, for at least three years, and shall make the documentation available for NRC inspection.

PART 72 - LICEASING REQUIREMENTS FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

10. The authority citation for Part 72 is revised to read as follows:

Authority: Secs. 51, 53, 57, 62, 63,'65, 69, 81, 161, 182, 1

183, 184, 186, 187, 189, 61B Stat. 929, 930, 932, 933, 934, 935, 4

948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as 41 l

l

11. In S72.44, paragraph (h) is added to read as follows:

%72.44 License conditions.

(h) The following conditions are contained-in every license issued under the regulations in this part:

(1) Low-level radioactive waste (LLW) may be stored on-site, provided it is authorized under existing conditions of the license, and storage is consistent with existing authorities and procedures, and all relevant licensing and regulatory' requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (h)(2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for shipment off-site, in-the- -.

case where-the licensee has access to an operating LLW disposal facility), the licensee shall document that it-has exhausted other reasonable waste management options which would include taking all reasonable steps to contract, either directly or ,

through the State, for disposal of the LLW.

(3) The licensee shall retain'all relevant documentation.

regarding the actions taken pursuant to paragraph (h) (2) of.this section, for at least three years, and shall make the 44

NRC CONSIDERS CHANGES TO REGULATIONS FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE The Nuclear Regulatory Commission is considering amending its regulations to establish requirements for on-site storage of low-level radioactive waste by licensees, after January 1, 1996.

Under the proposed rule, the current regulations would continue to be used for on-site storage of low-level radioactive waste, until January 1, 1996. Current rules permit on-site storage, if all relevant licensing and regulatory requirements are met.

After January 1, 1996, the proposed regulations would not permit on-site storage of low-level radioactive waste (other than reasonable short-term storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where a licensee has access to an operational low-level radioactive waste disposal facility), unless the licensee could document that it has exhausted other reasonable waste management options. The NRC's proposed regulations would require that the licensee attempt to contract, either directly or through the State in which the licensee's facility is located, for the disposal of the waste.

The proposed regulation would make these requirements standard license conditions for reactor, materials, fuel cycle, and independent spent fuel storage licenses. Licensees would not be required to make a formal submittal, to NRC, to show compliance. However, they would have to document steps that show how they have complied with the requirements and make the documentation available to NRC, for inspection.

Low-level radioactive waste is a general term for a variety of radioactively contaminated waste generated by nuclear power plants and related industries, hospitals, medical and educational research institutions, private and governmental laboratories, and other commercial activities that use radioactive materials as a normal part of their operations.

Low-level radioactive waste is currently disposed of using near-surface land. disposal at privately operated facilities located in the States of South Carolina and Washington.. -However, the commissions ~that control these sites have' established restrictions or-conditions on receiving LLW from'outside their regions, effective: January 1, 1993.

On December 4, 1990, the Commission published a Federal Recister notice seeking public comments on issues regarding low-level radioactive waste disposal, including whether to permit temporary storage of the waste after 1996. The proposed rule takes into consideration the comments received.

4 Interested parties are invited to submit written comments on the proposed changes to Parts 30, 40, 50, 70, and 72 of the Commission's regulations by (60 days after publication of a notice in the Federal Reaistgr on ).

Comments are" requested'both on the proposed rule'and on a

strategies and . options 1that the Commission:might pursue,Lin addition-to this proposed rule,.-that wouldiencourage'Statos;and compacts 1to move forward with development of low-level' radioactive waste disposal facilities.

The comments should be addressed to Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

_ ._ _ . .. . . _ . _ _ _ _ . _ . _ _ _ . _ _ _ - . _ _ _ m . .__ _ _

i

' ENVIRONMENTAL ASSESSMENT AND '

-FINDING OF NO SIGNIFICANT ENVIRONMENTAL IMPACT!

FOR THE RULEMAKING.TO REVISE 10 CFR: PARTS;30,--40, 50, 70,-'AND 72

-FOR ON-SITE STORAGE OF LOW-LEVEL-RADIOACTIVE' WASTE' The Proposed' Action The Nuclear Regulatory Commission is proposing _ specific changes to 10 CFR Parts 30, 40, 50, 70, and 72,fcontaining- 1 licensing requirements for byproduct materials, source materials,. D production and utilization. facilities, special nuclear _ materials, and independent spent fuelistorage, respectively. _The--rulemaking would amend SS30.34, 40.41, 50.54, 70.32, and 72.44, which; identify standard conditions-for reactor and' material licenses.

Identical changes-are_ proposed for SS30.34,_40.41, 70.32, and-

.72.44. The amendments of SS30.34(j),'40.41(h), 70.32(1), and 72.44(h) would not permit'on-site' storage:of' low-level-

- radioactive twaste t (LLW)L'.- af ter .' January 11, 19961(other than for .

reasonable storage necessary foridecay,-orf or f collection.or-

- consolidation for shipment off-sito, in-the. case where the licensee has access to an operating LLW-disposal facility),

unless the-licensee could-document--that it hastexhausted other reasonable management options. The-NRC's proposed regulations F

would require that the-licensee: attempt to contract with operating LLW disposal sites,.either directly crithrough the State,_for the disposal of~its waste. Under-S50.54(ff),: reactor licensees would have to meet identical conditions, as well as' document that on-site storage at:tivities will be consistent with,

, and not compromise, the safe operation of the licensee's l-i t

and be obligated to take possession of-LLW. The State will also be liable for all damages directly or indirectly incurred by the generator or owner if it fails to take possession as soon after January 1, 1996, as the generator or owner notifies the State that the waste is available for shipment.

The section of the LLRWPAA requiring the States to take title to and possession of the generated waste by January-1, 1996 (often referred to as the "take-title" provision), was held to be unconstitutional by the U.S. Supreme Court on June 19, 1992, in a lawsuit brought by the State of New York (a non-compact State) and two of its counties. The constitutionality of the take-title provision, as applied to compact States, was not before the Supreme Court. Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996..

Because no new LLWfdisposa11 facilities were operationallon January"1ljjl993,'.and:the compact commissions that controlLthe

~ ~

existing.LLW(disposalJ sitesooither closed'their site or-set.

restrictionsi or conditions onTreceivingDLLW lfrom outside; their regional compactsLoffective JanuaryL1, 1993, some licensees who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for 2

4 REGULATORY ANALYSIS FOR THE RULEMAKING TO REVISI: 10 CFR PARTS 30, 40, 50, 70, AND 72 FOR ON-SITE STO.4GE OF LOW-LEVEL RADIOACTIVE WASTE Statement of the Proh b The Low-Level Radioactive Waste Policy Amendments Act of 1985 (Pub. L.99-240) (LLRWPAA) establishes a series of milestones, penalties, and incentives to ensure that regional compacts and States make adequate progress toward being able to manage their low-level radioactive waste (LLW) by 1993c Section S(a) of the LLRWPAA requires the sited States of Nevada, South Carolina, and Washington to make disposal capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting the other milestonesfof the,LLRWPAA, the

~

s'ites remaining;bpar,at'ional, and) received .-

waste,

. ~

bei'np within

~

~ ^'

site-specific voliime0 limitations.; * -

,{

To help ensure that the States make adequate progress to develop new LLW disposal facilities, the LLRWPAA established six milestones by which the States should make decisions and commit to certain actions. The majority of the States met the

/-

requirements of the three milestone dates that had passed by January 1990. Only the Central, Central-Midwest, and Southwestern Compact States met the January 1, 1992, milestone requirement because their host States, Nebraska, Illinois, and 2

California, respectively, submitted a facility license application to their State regulatory authorities before that

lawsuit brought by the State of New York (a non-compact State) and two of its counties. The constitutionality of the take-title provision, as applied to compact States, was not before the Supreme Court. Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1993, and in no case later than January 1, 1996.

BecauseTno new LLW' disposal-facilities-were operational (on January'1, 1993, and;tho' compact commissions that(control.the cxisting LLW: disposal sites either; closed'their~~ site ~or set restrictions or' conditions-on receiving 1LLW from outside their regional compacts effective January 1, 1993, some licensees-who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can ce made, some licensees who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all the Governors who do not expect to have access to operating LLW disposal facilities within the next few years have indicated that their respective States plan on interim storage by waste generators from 1993 through 1996. Storage is planned to include individual. licensee facilities. Although some compacts and States are scheduled to open an LLW disposal facility before January 1996, others are not expected to do_so.

l I

disposal as a result of the proposed rule, the costs associated with such disposal would not be new, because costs would have been incurred for ultimate LLW disposal, in the absence of.this -

rule. Contract costs, incurred as a result of compliance with-this rule, may differ from ultimate <lisposal costs. However, insufficient data exists to estimate what cost difference, if any, may occur.

Recordkeeping requirements unique to production and utilization facilities (SSO. 54 (f f) (2) (ii) ) are negligible becadse of the availability of similar information from evaluationsi performed pursuant to 550.59. Therefore, there will be no additional burden on 10 CFR Part 50 licensees from"this j Q pg

; M! . -

The recordkeeping burdeneimposedtregarding;the & 44 75 requirement;

-. . Li . ::i % Q t1? % % st& x % anK remaining requirementsf,2 :.in.$$30.34 (j)' L40(41'(h)M50154(ff)RG@ Mp@f M% ,

w =w;ag7 a 70.32 (1) , and: 72 N4'(h)( are L expected >to[w .

beit ~hePeamelfdr7eiachh j d?U;n3j ' -

- ;gyy~ -

7

' licensee, regardless of the applicable regulation.

This regulatoryfaction wi115 affect approximatelp!13,.300 licenses 7consistingfoff7100" Agreement. State:licensesi:andr6200iNRC licenses ((includingf680 power / reactors)'. The following burden estimate assumes that all licensees are LLW generators and that all generators ship their waste off-site for disposal. These-assumptions build a degree of conservatism into the analysis because, for example, some generators store their waste for-decay, rather than' dispose of LLW, and some do not generate LLW 3

4 on a_ regular basis.- The burden estimate in Table 1 is based on these assumptions.

Table 1 General Burden Estimate Burden per Action Licensee Disposal Site Requests 8 Follow-Up _2 Record Maintenance 2 Total per Licensee per Year 12 Number of Licenses 13.2300 Total Burden Estimate per Year'159,600 Hours

.The total estimated cost to each-licensee for-these recordkeeping requirements is $720 (S60/hr X 12: hrs) per= year.

The burden and cost estimates are-based on.NRC--staff: analyses.

Costs are estimated-based on a $60_ hourly _ rate.

Impact on Federal Government No additional cost to NRC or any'other agency of the_ Federal government is-expected.- No formal reports are' required, and'

'therefore there are no costs associated with report review and >

maintenance. Records will be reviewed during normal inspections.

However, these reviews are not expected to appreciably increase J

4

- _ _ - __--_----_=__-_-____-__- . _ .

\ . kDCtGy

• a

.l* n UNITED STATES 3

1 NUCLEAR REGULATORY COMMISSION o+ k WASHINGTON, D.C. 20 tie 6 s . . . * ./

e The Honorable Philip R. Sharp, Chairman Subcommittee on Energy and Power Committee on Energy and Commerce United States House of Representatives Washington, DC 20515

Dear Mr. Chairman:

The Nuclear Regulatory Commission is proposing to amend its regulations applicable to reactor, material, fuel cycle, and independent spent fuel storage licensees, to establish a regulatory fru . work setting forth the procedures and criteria that will apply to on-site storage of low-level radioactive waste beyond January 1, 1996, based on the legislative intent of the low-Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA). Enclosed is a copy of the proposed rule that will ba published shortly in the Federal Recister.

Under the proposed rule, on-site storage of low-level radioactive waste will not be permitted after January 1, 1996, (other than reasonable short-term storage necessary for decay, or for collection or consolidation, for shipment off-site, in the case where a licensee has access to an operating low-level radioactive waste disposal facility), unless the licensee can document that it has exhausted other reasonable waste management options. NRC's proposed regulations would require that the licensee attempt to contract, either directly or through the State, for the disposal of its waste. In addition, reactor licensees will have to document that on-site storage activities will be consistent with, and not compromise, the safe operation of the licensee's activities, nor decrease the it'el of safety provided by applicable regulatory requirements. The rulemaking will make these requirements standard. license conditions for every license issued for reactor, material, fuel cycle, and independent spent fuel storage licensees. The rulemaking will amend 10 CFR Parts 50.54, 30.34, 40.41, 70.32, and 72.44, which are those sections of the regulations that identify standard conditions for reactor, material, fuel cycle, and independent spent fuel storage licenses.

1

i The Honorable Philip R. Sharp This action is being taken because of potential health and safety concerns associated with the increased reliance upon on-site storage of low-level radioactive waste, and to-support the coals that have been established by the LLRWPAA.

Sincerely, Dennis Rathbun, Director Office of Congressional Affairs

Enclosures:

1. Public Announcement

2. Federal Reaister Notice cc: Representative Carlos J. Moorhead

4'. :n1 UNITED STATES 3* 1-NUCLEAR REGULATORY COMMISSION -

WASHINoTON, D.C. 20666 l

~

\: . . .

The Honorable _ Peter J. -Kostmayer, Chairman' Subcommittee on-Energy and Environment' Committee of Interior and Insular Affairs United States House of Representatives Washington, DC 20515 uear Mr. Chairman:

The Nuclear Regulatory Commission is proposing to amend-its regulations applicable to: reactor, material,_ fuel cycle,- and independent spent fuel storage licensees,-to establish a-regulatory _ framework setting forth the procedures and criteria -

~

that-will apply to on-site storage-of low-level radioactive waste ,

beyond January--1, -1996,- based on the legislative _ intent of the low-level Radioactive Waste Policy Amendments Act of- 1985 -

(LLRWPAA), Enclosed is a copy of-the_ proposed rule.that will be published shortly-in-the -Federal Reaister.

- Under the proposed rule, on-site! storage .of low-level radioactive-waste.will not-be permitt'ed after_ January 1, 1996, (other than reasonable short-term storage necessary for decay, or for collection or consolidation, for. shipment off-site,-in.the case-where;a licensee has access to an operating low-level radioactive waste disposal facility), unless:the licensee:can document that-it-has exhausted other reasonable waste management options. NRC's-proposed regulations would require that the; licensee attempt-to contract, either directly.or through the State, for the disposal:

- of-its waste. In addition,: reactor licensees will'have to-document-that-on-site storage activities will be consistent with, and not-compromise, the: safe operation of the licensee's -

activ_ities, nor decrease the level of safety provided by -

applicable regulatory requirements. - The rulemaking will make

- these requirements: standard license conditions for'every licensel issued for reactor, material, fuel cycle, and independent-spent

- fuel storage' licensees.- -The-rulemaking will. amend-10 CFR-Parts 50.54, 30 34, 40.41, 70.32, and 72.44,.which are those sections of the regulations ~ thati identify standard conditions for. reactor?

L material, fuel cycle, and -independent spent _- fuel storageilicenses.

l 3 e e ,, p. .e- r ==. - y

i The Honorable Peter J. Kost'mayer .

This action is being taken because of-potential health and safety concerns associated with the increased reliance upon on-site storage of low-level radioactive waste, and to support the goals that have been established by the LLRWPAA.

Sincerely, Dennis Rathbun, Director Office of Congressional Affairs _

Enclosures:

1. Public Announcement

2. Federal Reaister Notice cc: Representative John J. Rhodes

. . . .. - - - . . _ . - - , . ~. , - .

l f *% '

-- # UNITED STATES -

-i d:; ..

NUCLEAR REGULATORY COMMISSION 1

A o [ WASHINoTON, D.C. 20666 q..... f The Honorable. Bob Graham, Chairman

. Subcommittee on Nuclear Regulation _

Committee on Environment and Public Works-United States Senate Washington, DC 70510

Dear Mr. Chairman:

The Nuclear Regulatory Commission is proposing to amend its-regulations applicable tol reactor, material, fuel cycle, and -.

independent spent fuel' storage licensees, to establish a1 '

regulatory framework 1 setting forth the procedures 1and criteria that will apply to on-site-storage of low-level radioactive waste--

beyond-January 1,_1996, based on the legislative intent of the Low-level Radioactive Waste Policy Amendments _Act of-1985:

(LLRWPAA). Enclosed is a copy _ of_ the. proposed rule that will' be -

published shortly in'the' Federal Reaister.

Under the proposed rule, on-site' storage of_ low-level radioactive-waste will not be permitted after January 1,-1996,:(other than; reasonable short-term: storage necessary for decay, or for_-

collection or_ consolidation, for shipment-.off-site,- in the-case:

where a licensee has access ~ to an operating low-level: radioactive

• waste disposal: facility), unless the licensee-can-documentLthat it has'exha'usted other reasonable waste management _ options. NRC's- 4

-proposed regulations would- require that the: licensee attempt to' contract, either directly_or through the State, for the.. disposal 1 =

of-its waste. - .In-addition, reactor licensees willihave to:

document that on-site storage activiti_es will;.be consistentLwith,-

and not compromise,- the-safe operation of the licensee's activities, nor decrease _the level of safety provided by-

. applicable regulatory requirements._ ' The rulemaking will make these requirements: standard license conditions for every license-issued for reactor, material,- fuel: cycle,J and independent _ spent fuel storage.. licensees.: The rulemaking will amend'10 CFR-Parts 50.54,_ 30.34,- 40.41, 70.-32, ' and 72.44,_ which are those sections of:-

the regulations that identify standard conditionsL for' reactor, material, fuel cycle, and-independento spent = fuel- storage licenses.>

5

= _ _

j D

[ .'s

-f 3 ,4 m. - - . ,- , y ,! h' . l^._, .a

The Honorable Bob Graham This action is being taken because of potential health'and safety concerns associated with the increased reliance upon on-site storage of low-level radioactive waste, and to support the goals that have been established by the LLRWPAA.

Sincerely, Dennis Rathbun, Director Office of_ Congressional Affairs

Enclosures:

1. Public Announcement

2. Federal Recister Notice cc: Senator Alan K. Simpson

NRC CONSIDERS CHANGES TO REGULATIONS FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE The Nuclear Regulatory Commission is considering amending its regulations to establish requirements for on-site storage of low-level radioactive waste by licensees, after January 1, 1996.

Under the proposed rule, the current regulations would continue to be used for on-site storage of low-level radioactive waste, until January 1, 1996. Current rules permit on-site storage, if all relevant licensing and regulatory requirements are met.

After January 1, 1996, the proposed regulations would not permit on-site storage of low-level radioactive waste (other than  !

reasonable short-term storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where a licensee has access to an operational low-level radioactive waste disposal facility), unless the licensee could document that it has exhausted other reaconable vaste management options. The NRC's proposed regulations would require that the j licensee attempt to contract, either directly or through the i Statn in which the licensee's facility is located, for the disposal of the waste.

The proposed regulation would make these requirements standard license conditions for reactor, materials, fuel cycle, and independent spent fuel storage licenses. Licensees would not be required to make a formal submittal, to NRC, to show compliance. However, they would have to document steps that show how they have complied with the requirements and make the documentation available to NRC, for inspection. 5 Low-level radioactive waste is a general term for a variety of radiosctively contaminated waste generated by nuclear power plants and related industries, hospitals, medical and educational research institutions, private and governmental laboratorier, and other cc2mercial activities that use radioactive materials as a normal part of their operations.

Low-level radioactive waste is currently disposed of using (

near-surface land disposal at privately operated facilities located in the States of South Carolina and Washington. However, the commissions that control these sites have established restrictions or conditions on receiving LLW from outside their regions, effective January 1, 1993.

On December 4, 1990, the Commission published a Federal Recister notice seeking public comments on issues regarding low-level radioactive waste disposal, including whether to permit tr.mporary storage of the waste after 1996. The proposed rule takes into consideration the comments received.

l

i

')

Interested parties are invited to submit. written comments on the proposed changes to-Parts 30, 40, 50, 70, and 72 of the Commission's regulations by _

(60 days after

. publication of a notice in the Epderal Reaister on -).

Comments are requested both on the proposed rule and on #

stuategies and options that the Commission might pursue, in addition to this proposed rule, that would encourage States and compacts to move forward with development of low-level radioactive waste disposal facilities.

The comments should be addressed to Secretary of-the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

. ,. ~. . - .

e d ENVIRONMENTAL ASSESSMENT AND FINDING OF NO SIGNIFICANT ENVIRONMENTAL IMPACT FOR THE RULEMAKING TO REVISE 10 CFR PARTS 30, 40, 50, 70,-AND 72 FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE The Procoped ActioD The Nuclear Regulatory Commission is proposing specific changes to 10 CFR Parts 30, 40, 50, 70, .and 72, containing licensing requireme'.ts for byproduct materials, source materials, production and utilization facilities, special nuclear materials, and independent spent fuel storage, respectively. The rulemaking would amend SS30.34, 40.41, 50.54, 70.32, and 72.44, which identify standard conditions for reactor and material licenses.

Identical changes are proposed for SS30.34, 40.41, 70.32, and 72.44. The amendments of SS30.34 (j) , 40.41(h), 70.32(1), and 72.44(h) would not permit on-site storage of low-level radicactive waste (LLW) after January 1, 1996 (otner than for reasonable storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility),

unless the licensee could document that it has exhausted other reasonable management options. The NRC's proposed regulations would require that the licensee attempt to contract with operating LLW disposal sites, either directly or through the State, for the disposal of its waste. Under S50.54(ff), reactor licensees would have to meet identical conditions, as well as document that on-site storage activities will-be consistent with, and not compromise, the safe operation of the licensee's

activities, nor decrease the level of safety provided by applicable regulatory requirements. Finally, SS30.34(j),

40.41(h), 50.54(ff), 70.32(1), and 72.44(h) would require that all relevant documentation of the steps taken to satisfy the requirements of this rulemaking be maintained by the licensee for three years and be made available for NRC inspection.

These proposed amendments would serve to ensure that all licensees exhaust all options before storing LLW on-site, and that these changes in the regulations encourage the national goal of obtaining LLW disposal capacity.

Need for Proposed Rule The Low-Level Radioactive Waste Policy Amendments Act of 1985 (Pub. L.99-240) (LLRWPAA) establishes a series of milestones, penalties, and incentives to ensure that regional compacts and States make adequate progress toward being able to manage their LLW by 1993. Section S(a) of the LLRWPAA requires the sited States of Nevada, South Carolina, and Washington to make disposal capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting the other milestones of the LLRWPAA, the sites remaining operational, and received waste-being within site-specific volume limitations.

2

. _ _ . . ~ . . _ _ . _ . - _ _ .._._ . _ ___ _ _ _ _ . . _ _ - - __-

4 To help ensure that the States make adequate progress to develop new LLW disposal facilities, the LLRWPAA established six milestones by which the States should make decisions and commit I l

to certain actions. The majority of the States met the i requirements of the three milestone dates that had passed by 1 January 1990. Only the Central, Central-Hidwest, and Southwestern Compact States met the January 1, 1992, milestone requirement, because their host States, Nebraska, Illinois, and California, respectively, submitted a-facility license application to their State regulatory authorities before that date. The State of Texas conformed to this milestone on March 2, .

1992. The remaining milestones of the LLRWPAA, as it was enacted, are:

January 1, 1993 -

If a State 0:7 compact cannot provide for disposal of its LLW af*er -anuary 1, 1993, generators can request the State to take title to and possession of the generated waste. The State also becoaas liable for damages as a consequence of failure to take possession of the waste.

In 1993, States may avoid taking title and possession-of the waste and assuming liability, but wil'. forfeit the surcharge rebates established by the LLRWPAA.

• January 1, 1996 - If a State or compact cannot' provide for l

disposal of its LLW after January 1, 1996, the States, upon proper notice by the generator or owner, shall take title to 3

l y yWM-5 , m. y y- y -% p.

-_ - . - - . - - .. -. - _- _ _-- - _ . _ - - .- - - - - ~ __

r and be obligated to take possession of LLW. The State will also bo liable for all damages directly or indirectly-t incurred by the generator or owner if it fails to take possession as soon after January 1, 1996, as the generator or owner notifion the State that the waste is available for shipment.

The section of the LLRWPAA requiring the States to-take title to and possession of the generated waste by January 1, 1996 (often referred to as the "take-title" provision), was hold to be unconstitutional by the U.S. Supreme Court on-June 19, 1992, in a lawsuit brought by the Stato of Now York (a non-compact Stato) and two of its counties. The constitutionality of the tako-title provision, as applied to compact States, was not beforo the Supremo Ccurt. Even though tho tako-title provision was hold unconstitutional, clearly a goal of tho-LLRWPAA is the development of now LLW disposal'facilitios by January 1, 1993, and in.no caso later than January 1, 1996.

Because no now LLW disposal facilities were operational on January 1, 1993, and the compact commissions that control the existing LLW disposal sites either closed their site or set

- restrictions or conditions on ta:oiving LLW from outside their regional compacts offectivo January 1, 1993,-some licensees who gonorato LLW may be forced to store their LLW on-sito, until.

disposal capacity-is availablo, unless other arrangements for 4

1 2

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,.v- -- - . ,>w -e -,ppr,g'.yw y- r -- y

4 4

l l

i storage or disposal can be made, some licensees who generate LLW may be forced tc store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all the Governors have indicated that their respective States plan on interim storage by waste generators during the 1993 through 1996 period. Storage is planned to include individual licensee facilities. However, many States do expect to have access to the Barnwell LLW disposal facility from January 1, 1993 through June 30, 1994. Although some compacts and States are scheduled to open an LLW disposal facility before January 1996, others are not expected to do so.

Although LLW can be safely stored, NRC believes that the protection of the public health and safety and the environment in enhanced by disposal, rather than by long term, indefinite storage of wastes. Disposal of wastes in a limited number of facilities, licensed under the requirements of 10 CFR Part 61 or compatible Agreement State regulations, will provide better protection of the public health and safety and the environment than long-term storage at hundreds or thousands of sites around the country. Stored waste packages need to maintain sufficient integrity to prevent dispersal of the waste during storage, transport, and handling, up to and including emplacement for disposal. Because of the variability of certain storage environments, waste packages may suffer degradation over the extended storage period. Among the ways in which a storage 5

. .]

environment can cause vaste package degradation are temperature  ;

I fluctuations (in heated facilities in areas with cold winters) l l

and corrosive atmospherou (e.g., industrial and marine  !

i atmospheres as well as acid deposition). Other waste package l

concerns during storage include external and internal corrosion, radiolytic generation of gases (predominantly hydrogen) and corrosive substances, radiation induced embrittlement of i polyethylene containers, and blodegri dation of institutional wastes. These processes may accelerate internal corrosion and -

l failure of common storage containers, even if the waste is l stabilized prior to storage. Waste form degradation could-result in spills or releases during handling for disposal, if the degradation goes undetected. In addition, waste package j deterioration prior to disposal will require repackaging of the  :

LLW and cleanup of any spills. As a result, workers will be potentially exposed to additional doses of radiation. The:NRC contractor report, " Extended Storage of Low-Level Radioactive Waste: Potential Problem Areas," NUREG/CR-4062, provides a detailed discussion of these concerns.2 Storage-also involves a number of activities that could increase radiation doses to the public. First, storage of LLW 2

Copies of HUREGS may be purchased from the Superintendent-of Documents, U.S. Government Printing Office,-P.O. Box 37082, Washington, DC 20013-7082. . Copies are also available from the National Technical-Information Service, 5285 Port Royal Road,-

Springfield, VA 22161. A copy is also available for inspection and/or copying at the NRC-Public Document Room, e*l20 L. Street NW.

(Lower Level), Washington, DC.

6

(

will result in potential increased worker exposures, from unloading the waste from storage, for disposal. Second, waste forms may need to be repackaged or otherwise processed, again, as a result of waste form failure or to meet waste acceptance criteria for a new disposal facility, once one becomes available.

This additional handling by workers will also cause increased exposures. The site-specific conditions at a new disposal facility may necessitate these new waste form criteria and these criteria may not be known when LLW is placed into storage.

Third, radiation surveys and inspections of LLW in storage will result in potential additional doses to those involved in performing those activities. For these reasons and to support the goals of the LLRWPAA, NRC has concluded that regulations {

should be amended to require licensees to exhaust other reasonable management options before on-site storage of LLW will.

be permitted, after January 1, 1996.- The Commission specifically invites comment on the above public health and safety rationale, as well as on the comparative risk of potential releases as a result of an event or accident at numerous LLW storage sites around the country, as opposed to the potential release from a limited number of disposal sites designed to meet the siting and' design requirements in 10 CFR part 61 or compatible Agreement State regulations.

5 P

7

__ =

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9

_ _____._. _ _ _ .~ _ _ _ . _ _ . _ _ _ _ ____ . _ . _ _ _ _ _ _ _ . . _ _ _ . - . . _ . . _ _ _ .

l I

Alternatives Pronosed Action: Proceed with a regular, but expedited,  !

i rulemaking, including the publication of a proposed rule for public comment, then conclude with the publication of a final rule that considers any comments received. 1 1

-1

'1 A l t e rna t i.y.q_1: No action. This alternative is non- 1 responsive to the emerging situation and does not further the l disposal goal of the LLRWPAA. Therefore, this alternative is rejected.

Alternative 2: Issue guidance to licensees and Governors as issues and needs are identified. This alternative would enable I NRC to continue to monitor national progress in the development of new LLW disposal capacity, and to develop and issue additional guidance, as needs are identified. However, this action would not codify NRC's position, and thus the guidance would not be enforceable. Therefore, this alternative is rejected.- ,

Alternstive 3: Publish a policy statement providing information similar to that provided in Alternative 2. Although this approach supports the LLRWPAA, it is not as strong a regulatory action. A policy statement is only informational and has no binding effect. This approach is subject to greater <

challenges and uncertainty than a rulemaking. Therefore,1this 8

wvy-

l alternative is rejected.

Environmental Impact of Proposed Action The Commission has determined that this rule, if adopted, would not be a major Federal action, significantly affecting the quality of the human environment. Regulations in 10 CFR Parts 30, 40, 50, 70, and 72, addressing licensing of byproduct materials, source materials, production and utilization facilities, special nuclear materials, and independent spent fuel storage, respectively, provide requirements for the possession and use of these materials, with LLW simply being a material form within these categories of radioactive material. j This proposed rulemaking will supplement, but not supersede, the existing regulatory framework applicable to~the storage.of.

LLW, and the conditions in themselves will not authorize on-site storage. These amendments add administrative and verification requirements to those regulations governing the licensing of byproduct material, source material, production and utilization facilities, special nuclear material, and independent spent fuel storage. The proposed rule will encourage disposal as opposed to storage and this should have beneficial environmental effects.

The proposed rule would not result in any increase in radiation exposure from transportation of LLW compared to that expected from the ultimate disposal of LLW envisioned by the LLRWPAA. Any 9

l environmental impact of operating an on-site LLW storage' facility

• Will be addressed, as required, as part of the licensing action for that facility, under previously established regulatory requirements.

Environmental Imnact of Alternativea Because the alternatives proposed do not affect regulatory requirements, there would be no environmental impact.

Acencies Consulted No other agencies or persons were contacted in connection with this environmental assessment. The text of the proposed rule was provided to the NRC Agreement States.

Findina of No Sionificant Impact '

Based on the foregoing environmental assessment, the Commission concludes that the proposed rulemaking will not have.a significant incremental effect on the quality of the human environment'and therefore, an environmental impact statement is not required.

10 w ---m- - - - - - y r -m y 9 yy %4 -.y*,,

e Finding of No Significant Environmental Impact The Commission has determined, under the National Environmental Policy Act of 1969, and the Commission regulations in Subpart A of 10 CFR Part 51, that this rule, i f adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact  ;

statement is not required. This proposed rulemaking will supplement, but not supersede, the existing regulatory' framework '

applicable to the storage of LLW, and the additional conditions of this rulemaking, in themselves, would not authorize on-site storage. These amendments would add administrative and verification requirements to existing regulations governing the licensing of byproduct material, source material, production and utilization facilities, special nuclear material, and independent spent fuel storage. The proposed rule would encourage disposal as opposed to storage, and this should have beneficial environmental effects. Tho proposed rule would not result in any increase in radiation exposure from transportation of LLW compared to that expected from the ultimate disposal of LLW envisioned by the LLRWPAA. Any environmental impact of operating an on-site LLW storage facility will be addressed, as' required, as part of the licensing action for that facility, under previously established regulatory requirements.

11 w-e-.-r' r w , . - - - --y-mp., y,yw. -e -w-y - --ygg+, ->y a

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HEGULATORY ANALYSIS FOR THE RULEMAKING TO REVISE 10 CFR PARTS 30, 40, 50, 70, AND 72 FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE 1

Statement of the Problem i

The Low-Level Radioactive Waste Policy Amendments Act of 1985 (Pub. L.99-240) (LLRWPAA) establishes a series of milestones, penalties, and incentives to ensure that regional compacts and States make adequate progress toward being able to manage their low-level radioactive waste (LLW) by 1993. Section 5(a) of the LLRWPAA requires the sited States of Nevada,-South Carolina, and Washington to make disposal capacity available to LLW generators until December 31, 1992, subject to: the States and compacts meeting the other milestones of the LLRWPAA, the- -

sites remaining operational, and received waste being within site-specific volume limitations.

To help ensure that the States make adequate progress to develop new LLW disposal facilities, . the LLRWPAA established six milestones by which the States should make decisions and commit to certain actions. The majority of the States met the requirements of the three milestone dates that-had passed by January 1990. Only.the Central, Central-Midwest, and i Southwestern Compact States met the January 1, 1992, milestone requirement because their host States, Nebraska, Illinois, and California, respectively, submitted e facility license application to their State regulatory authorities before'that

__ = . .. . _.

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- _ - . . . _ . ..______._.______.____-_..._.___.____.___.__m _..____.m s

i date. The State of Texas conformed to this milestone on March 2, 1992. The remaining milestones of the LLRWPAA, as it was l

enacted, are January 1, 1993 - If a State or compact cannot provide for-disposal of its LLW after January 1, 1993, generators can request the State to take title to and possession of the generated wasto. The State also becomes liable for damages '

as a consequence of failure to take possession of the waste.

In 1993, States may avoid taking titic and possession of the waste and assuming liability, but will forfeit the surcharge rebates established by the LLRWPAA.

• January 1, 1996 - If a State or compact cannot provide for '

disposal of its LLW after January 1, 1996, the States, upon proper notice-by the generator or owner,-shall take title to and be obligated to take possession of LLW. The State-will also be liable for all damages directly <n indirectly ,

incurred by the generator or owner if it fails to take possession es soon after January 1, 1996, as the generator or owner notifies the State-that the waste is available for- '

shipment.

The section of the LLRWPAA requiring the States to take title to and possession of the generated waste by January 1, 1996 (often referred to as the "take-title" provision), was held-to be unconstitutional by'the U.S. Supreme Court on June 19, 1992, in-a

.- g -

mgee- u.e-.- w.. * -----ceW+* -

lawsuit brought by the State of New York (a non-compact State) and two of its counties. The constitutionality of the take-title i provision, as applied to compact States, was not before the Supreme court. Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the i

development of new LLW disposal facilities by January 1, 1993, and in no caso later than January 1, 1996.

Because no new LLW disposal facilities were operational on January 1, 1993, and the compact commissions that control the existing LLW disposal sites either closed their site or set restrictions or conditions on receivirag LLW from outside their _

regional compacts effective January 1, 1993, some licensees who generate LLW may be-forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. some licensees who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all the Governors who do not expect to have.

access to operating LLW disposal facilities within the next few years have indicated that their respective States plan on interim storage by waste _ generators'from 1993 through 1996. Storage is.

planned-to include individual licensee facilities. Although some compacts and States are scheduled to open an LLW disposal facility before January 1996, others are not expected to do so.

3

Although LLW can be safely stored, llRC believes that the protection of the public health and safety and the environment is enhanced by disposal, rather than by long term, indefinite storage af wastes. Disposal of wastes in a limited number of facilities, licensed under the requirements of 10 CPR Part 61 or compatible Agreement State regulations, will provide better protection of the public health and safety and the environment than long-term storage at hundreds or thousands of sites around the country. Stored waste packages need to maintain sufficient integrity to prevent dispersal of the waste during storage, transport, and handling, up to and including emplacement for disposal. Because of the variability of certain storage environments, waste packages may suffer degradation over the extended storage period. Among the ways in which a storage environment can cause waste package degradation are temperature i

fluctuations (in heated facilities in areas with cold winters) and corrosive atmospheres (e.g., industrial and marine atmosphercs as well as acid deposition), other waste package concerns during storage include external and internal corrosion, radiolytic generation of gases (predominantly hydrogen) and corrosive substances, radiation induced embrittlement of polyethylene containers, and blodegradation of-institutional wastes. These processes may accelerate internal corrosion and-failure of common storage containers,.even if the waste is stabilized prior to-storage. Waste form degradation could result in spills or releases during handling for disposal, if the 4

---

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_ w .p- y-.- ,a- yp- g. y 9-m...er y -mm- w9 +-.4-si y.Jer-,,

degradation goes undetected. In addition, waste package deterioration prior to disposal will require repackaging of the LLW and cleanup of any spills. As a result, workers will be potentially exposed to additional donos of radiation. The NRC contractor report, " Extended Storage of Low-Level Radioactive Waste Potential Problem Areas," NUREG/CR-4062, provides a detailed discussion of those concerns.2 Storage also involves a number of activities that could increase radiation doses to the public. First, storage of LLW will result in potential increased worker exposures, from.

unloading the waste from storage, for disposal. Second, waste forms may nosd to be repackaged or otherwise processed, again, as a result of waste form failure or to meet waste acceptance critoria for a new disposal facility, once one becomes available.

This additional handling by workers will also cause increased exposures. The site-specific conditions at a new disposal

-facility may necessitate these new waste form criteria and these criteria may not be known when LLW is placed into storage.

Third, radiation surveys and inspections of LLW in storage will result in potential additional doses to those involved in performing these activities. For these reasons and to support 2

Copies of NUREGS may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082. Copies are also available from the National Technical Information-Service, 5285 Port Royal Road, Springfield, VA.22161. A copy is also available for inspection and/or copying at the NRC Public Document Room, 2120 L Street NW.

(Lower Level) , Washington, DC.

5 i

=

l i

i the goals of the LLRWPAA, NRC is proposing this rulemaking, which makes storage of LLW an option of last resort. The Commission-specifically invites comment on the above public health =and f safety rationale, as well as on the comparative risk of potential releases as a result of an event or accident at numerous LLW- i storage sites 'around the country, as opposed to the potential release from a limited number of disposal sites designed to meet

! the siting and design requirements in 10 CFR Part 61 or compatible Agreement. State regulations.

Even though the take-title provision was held unconstitutional, clearly a goal of the LLRWPAA is the development of new LLW disposal facilities by January 1, 1996.  !

To support the goals of-the LLRWPAA and its legislated preference for disposal over storage of LLU, the Nuclear Regulatory Commission has concluded that action is necessary to require licensees to exhaust other reasonable management options before on-site storage of LLW will be permitted after January-1, 1996, t

obiectives The objectives of this regulatory action are to support ~the goals of the LLRWPAA-and enhance the protection of the public health and safety and-the environment by ensuring that:

On-site storage of LLW is an option of last resort;:

6 i

E

On-site storage is authorized under existing conditions of the license and is consistent with existing authorities and procedures as well as all relevant licensing and regulatory requirements; and In the case of production and utilization facility licenceos, on-site storage activities are consistent with and do not inpact safe operations, nor decrease the level of safety provided by regulatory requirements.

Alternativos NRC has considered the following alternatives.

1. Take no action at this time, but rather continue to monitor States' progress in establishing new' disposal capacity and react to specific circumstances demanding NRC action.

2. Issue guidance to licensees and Governors as issues and needs are identified. It would address the LLRWPAA, and place a particular emphasis on storage. It would include copies of the current guidance documents and ret,ulations ,

that NRC would apply in licensing of storage.

3. Publish a policy statement providing information similar to Alternative 2. It would note that NRC recognizes that 7

D ' su i i

licenses authorizing storage for limited periods of time -

(i.e., five years or less) and for very limited periods of time beyond 1996, may be necesonry, while new disposal capacity is developed. This statement would emphasize NRC's concerns regarding the States' commitment to disposal and problems with longer-term storage of LLW.

4. Conduct a regular, but expedited, rulemaking, to amend 10 i

CFR Parts 30, 40, 50, 70, and 72, to codify NRC's position-establishing procedures and criteria applicable to all LLW-generators, for on-sita storage of LLW beyond January 1, {

1996.

Analysis of Alternatives The no-action alternative (Alternative 1) 'is non-responsive' to the emerging situation. It does not make known or emphasize NRC's policy and existing guidance. Furthermore, it does-not actively support the national goals of the LLRWPAA.

Neither issuance of guidance (Alternative 2) ~ nor publication of a policy statement (Alternative 3) would formally codify, in a rule, NRC's position'on on-site storage-of LLW, b6 yond January 1,. ,

1996. These alternatives fall short of establishing the regulatory framework needed to' set forth procedures and criteria

-that will apply to on-site storage of LLW beyond January 1, 1996, i 8

u

,-- - . , . ~ . . . ... - . . . ., - ,- . . . - , . .- , - , , , . . - , , .

. . . ~ . .

Alternative 4 to amend 10 CPR Parts 30, 40, 50, 70, and 72, to codify NRC's position, establishing procedures and criteria applicable to all LLW generators, for on-site storage of LLW, beyond January 1, 1996, is the recommended action. ilRC would initiate a proposed rulemaking allowing for a 60-day comment period, potentially reaching a broader audience than the guidance or policy statement alternatives, and allowing for consideration of public comments in the development of the proposed rule. The effects of the proposed rulemaking on States, licensees, and NRC are addressed below.

Imoact on States * .

NRC is aware that Agreement States will incur costs in developing corresponding compatible regulations in accordance with existing agreements between NRC and Agreement States.

However, NRC does not consider these costs to be a significant impact on the Agreement States.

Ippact Qn Generators The only new costs that will be incurred by the LLW generators or owners as a result of this proposed rulemaking are those associated with the generation of letters to State and/or LLW disposal facilities and the associated recordkeeping requirements. If the generator is successful in contracting for 9

w. _ - e - .- - - , . , _ --

disposal as a result of the proposed rule, the costs associated with such disposal would not be new, because costs would have been incurred for ultimate LLW disposal, in the absence of this rule. Contract costs, incurred as a result of compliance with this rule, may differ from ultimate disposal costs.  !!owever, insufficient data exists to estimate what cost difference, if any, may occur.

Recordkeeping requirements unique-to production and utilization facilities (S50. 54 (f f) (2) (li)) are negligible because ,

of the availability of similar information from evaluations performed pursuant to 550.59. srefore, there will be no additional burden on 10 CFR Pa.' 50 licensees from this '

requirement. The recordkeeping burden imposed regarding the remaining requirements in SS30.34(j), 40.41(h), 50. 54 (f f) ,

70.32(1), and 72.44(h) are expected to be the same for each licensee, regardless of the applicable regulation.

This regulatory action will affect approximately 13,300 licenses consisting of 7100 Agreement State licenses and 6200 NRC licenses (including 68 power reactors). The following burden estimate assumes that all licensees are LLW generators and that-  !

all generators ship their waste off-site for disposal. These assumptions build a degree of conservatism into the analysis because, for example, some generators store their waste-for decay, rather than dispose of LLW, and some do not generate LLW 10

. _ .. ._ _ _ - _ _ _ _ _ _ _ _ . _ . _ _ . . _ . - . _ _ . _ _ . ~ . . _ _ _ _ _ . _ _ . . _ . . ~ . . _ _ _ _ . _ _ _ _ _ . _ _ _ _

1 on a regular basis. The burden estimate in Table 1 is based on these assumptions.

1 Y

Table 1-General Burden Estimate Burden per Action Licensee Disposal Site Requests 8 Follow-Up -2 Record Maintenance 2

~

Total per Licensee per Year 12 Number of Licenses 13.300 }

. a.

Total Burden Estimate per Year 159,600l Hours >

+, a

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m Theitotaliestimated~ cost to each licensee ~for these1 sp.

." ^ * ' ~

~ - ,

7-_

}.

recordkeeping requirements 11s" $720 ' ($60/hr : X L12 hrs)fper ! year. -~ f_;:e~_ ~

The burden and cost estimates are based on NRC_ staff' analyses.

Costs are estimated based on a $60 hourly rate.  ;

Impact on Federal Government

- No additional cost to NRC or any.other agency of-the-Federal-government is. expected. No formal reports-are required, and therefore there are no costs associated with report review and +

. maintenance. Records will be reviewed during normal-inspections.-

However, these reviews are'not expected to appreciably-increase-

- 11

-- V e+P9=--e r u-- .g. 9-% mmi,--gr ,, c, & y,yg- bwg rPue'1 P - ET h-4W"='"GW"""1"" "'1F*- '*'Y:W*N V*'- *a u F- '#** * ' *"' N'**

NRC inspection resource requirements.

DCCision Rationale The proposed rulemaking is recommended because it will codify NRC's position establishing procedures and criteria applicable to all LLW generators for on-site storage of LLW, beyond January 1, 1996. NRC has concluded that, to support the.-

goals of the LLRWPAA and to enhance the protection of the public health and safety and the environment, action is appropriate to require licensees to exhaust other reasonable management options before on-site storage of LL,' will be permitted af ter January 1, 1996.

12

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1. 'o,

, UNITED STATES Unem, M$

[ *'

y, NUCLEAR REGULATORY COMMISSION W AEHIN 37ON, D.C. 20ee8 h@

g

..... Blaha-o,,,c , o, ,u , Decader 17. 1992 Knubel sacarrany RNelson, NMSS %

DMeyer, ADM BShelton, IRM MEMORANDUM FOR: James M. Taylor Executive Director fch Operations -

FROM:

Samuel J. Chilk, Sec

SUBJECT:

i i SECY-92-300 - NOTICEto

• PROPOSED RULEMAKING TO ESTABLISH PROCEDURE 3 AND CRITERIA FOR ON-SITE STORAGE OF LOW-LEVEL RADIOACTIVE WASTE, AFTER JANUARY 1, 1996 The Commission (with all Commissioners agreeing) has approved publication of the proposed rulemaking to amend 10 CFR Parts 30, 40, 50, 70, and 72 to set forth procedures and criteria that would 1, 1996. spply to on-site storage of low-level waste beyond January attachment.The staff should incorporate the changes in the The revised Secretary forFederal Realster publication. notice should be forwarded to the (EDO). (NMSS) (SECY Suspense: 1/22/93) 9200023

Attachment:

As stated cc: The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick

. Commissioner de Planque OGC OIG Office Directors, Regions, ACRS, ACNW (via E-Mail)

OP, SDBU/CR, ASLBP (via FAX) ,

SECY NOTE: THIS'SRM, SECY-92-380, AND THE VOTE SHEETS'OF ALL COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE 10 NORKING_. DAYS FROM THE DATE OF THIS_SRM fJ.W/TTE7DYA[* ._

4 (7590-01)

)

NUCLEAR REGULATORY CO)D4ISSION i 10 CFR Parts 30, 40, 50, 70, and 72 i RIN 3150-AE22 Procedures and Criteria for on-site Storage of Low-Level Radioactive Waste AGENCY: Nuclear Regulatory Commission. '

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission proposes to amend its '

regulations for reactor, material, fuel cycle, and independent spent fuel storage licensees. The proposed rule would establish a regulatory frauevork containing the procedures and criteria i

that would apply to on-site storage of low-level radioactive waste (LLW), beyond January 1, 1996. The Commission has determined, under the authority of the Atomic Energy Act of 1954,-

as amended, that these changes are appropriate because of potential health and safety concerns associated with the increased reliance upon on-site storage of LLW. The proposed ,

rule is intended to support the goals that have~been established' by.;the Low-Level Radioactive Waste Policy Amendments Act of 1985 (Act) and is consistent with the June 13, 1992, United States Supreme Court (Supreme court) decision, in New York v.-United

l. States. b>nmeds Act reguested on Ois prop $cd cale. and en strita

. Md opions OA,t Ot Commssion mig pesat.,in addiMon 4o 11tM t'Amabg,ht %Q cnceuqc, htt and Watts '40 mm/t Orward win DATE

Comment period expires (60 days after publication).

Comments received after that date will be considered if it-is (Vtk8fmmt of Lt.u) fadlitics.

g y y 7 --ir-a

• y+. yen - .- -- -emy--q s u+ '

Because new LLW disposal facilities are not expected to be operational by January 1, 1993, and the compact commissions that control the existing LLW disposal sites are expected to either close or set conditions on receiving LLW from outside their regional compacts on January 1, 1993, some licensees who generate LLW may be forced to store their LLW on-site, until disposal capacity is available, unless other arrangements for storage or disposal can be made. Nearly all the Governors' certifications submitted to meet the 1990 milestone of the Act indicated that the State planned on interim storage by waste generators from 1993 through 1996. However, many States do expect to have access to the Barnwell LLW disposal facility from January 1, 1993 through June 30, 1994.

Early in 1990, the Commission directed the NRC staff to provide the Commission with information on the issues concerning the waste title-transfer and possession provisions set forth in the Act, so that the Commission might determine what rolc, if any, the KRC should play with regard to these provisions. The Commission was also interested in the adequacy of its existing regulatory framework for implementing the title-transfer provision. On September 12, 1990, the NRC staff sent the l

l Commission an analysis of-the issues associated with the vaste title-transfer and possession provisions of the Act (SECY 318). Major issues related to these provisions included States taking possession of commercial LLW after 1993 or 1996, and i

I l

l

1 be NRC's responsibility to provide for emergency access to operating LLW disposal facilities for the LLW it prohibits from on-site storage.

Resoonse.

The NRC is not pursuing a "no on-site storage" option.

The NRC recognizes that some generators will have to store LLW on-site.

The NRC seeks to minimize the amount of LLW placed in storage, by requiring generators to exhaust all other reasonable waste management options. The guidance governing implementation of the emergency-access provision, of the Act, contained in Information Notice 91-65, " Emergency Access to Low-Level Radioactive Waste Disposal Facilities," will remain in effect.

The NRC does not anticipate any situation where the provisions of this rule, in addition to a lack of access, would create a serious and immediate threat to the public health and safety or common defense and security, thereby requiring emergency access.

Comment. A more immediate concern, directly related to the storage of waste, is the authority of a gnnerator to accept its processed waste af ter this vasta has been sent off-site for treatment.

r Resoonse. The NRC has initiated a rulemaking to allow nuclear power reactor licenseem to receive back LLW after off-site treatment.

Comment. Any rulemaking on this issue must incorporate maximum flexibility, consistent with the protection of the public health 14 7hi$ tweds 40 k y d d ed E re h e d 6tgro M k $6a! d.

l frustrated.

Therefore, the amendments contained in this proposed rule wcat1d be a matter of compatibility for NRC Agreement States.

The additional license conditions for LLW on-site storage _ after January 1, 1996, in 10 CFR 30.34, 40.41, and 70.32, are considered to be Division 2 categories of compatibility.

Although Agreement States must adopt Division 2 rules in their regulations, the use of language identical to thab in NRC rules is not necessary, provided that the underlying principles are the same. The Agreement States may adopt more restrictive requirements.

The Commission is currently considering a re-evaluation of its compatibility policy and may decide to revise its general requirements regarding compatibility for the Agreement states.

The Commission's compatibility dataraination, on this proposed

'-"'"y m rule, A be re-examined in light of any change to the general policy.

Discussion of Proposed Revisions The proposed rule would establish procedures and criteria, for on-site storage of LLW, that would apply to all categories of LLW generators. On-site storage of LLW would not be permitted after January 1, 1996 (other than reasonable short-term storage necessary for decay, or for collection or consolidation for shipment off-site, in the case where the licensee has access to 19

1 5.

In 540.41, paragraph (h) is added to read as follows:

$40.41 Tarma and conditions of licensen.

I

)

(h) -i The following conditions are contained in every license-issued under the regulations in this.part.

(1) Low-level radioactive vaste (LLW) may be stored on-site, provided it is authorized under existing conditions- of the -

license, and storage is consistant with existing authorities and- t procedures, and all relevant licensing and regulatory-requirements applicable to on-site storage.- LLW may not be stored on-site by the generator beyond January 1,-1996, except as ~

specified in paragraph (h) (2) of this section.

(2) For on-site storage of LLW beyond January 1,- 1996 (other than reasonable short-term storage necessary for decay or for collection or consolidation for_ shipment off-site, in_the '

case where the licensee has access-to an operating LLW disposal '

facility), the licensee shall document that it has exhausted other reasonable waste management options which wouldrinclude taking all reasonable steps to contract, either directly or through the state, for disposal of-LLW. >

(3) The licensee shall retain all relevant documentation-regarding the actions taken pursua:P to paragraphf (h)(2) of _ thisi section, for at least three years, and shall make the.

34

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procedures, and all relevant licensing and regulatory requirements applicable to on-site storage. LLW may not be stored on-site by the generator beyond January 1, 1996, except as specified in paragraph (1) (2) of this section.

(2) For on-site storage of LLW beyond January 1, 1996 (other than reasonable short-term storage necessary for decay or for collsetion or consolidation for shipment off-site, in the case where the licensee has access to an operating LLW disposal facility), the licensas shall document that it has exhaurted other reasonable vaste management oprions which would include taking all reasonable steps to contract, either directly or through the State, for disposal of LLW.

(3) The licenses shall retain all relevant documentation regarding the actions taken pursuant to paragraphf (1) (2) of this section, for at least three years, and shall make the documentation available for NRC inspection.

PART 72 - LICENSING REQUIREMENTS FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIOH-LEVEL RADIOACTIVE WASTE

10. The authority citation for Part 72 is revised to read as follows:

Authority: Sacs. 51, 53, Si, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as 40

.= ,

4 i

e

11. t

.In 572.44, paragraph (h) is added to read _as--follows:--

a C72.44 Licanma conditions, '

t (h) The.following conditions are contained in every license issued under the regulations in this parts (1) Low-level radioactive waste ~(LLW) may be' stored on-site, provided it is authorized under existing conditions.of the-license, and storage is consistant with existing: authorities and procedures, and all relevant licensing and regulatory-requirements i applicable ~to.on-site storage. LLW.may not be 3_ ,=

t stored on-site by the generator beyond January 1, 1996,:except.as_.

specified in paragraph (h)(2) of this section.

(2) For on-site storage of LLW beyond-January 1,.1956-(other than reasonable-short-term storage-necessary for decay. ors fm-W1ection or consolidation for shipment off-site, _in the cwa o.nwo the licensee has access to.an operating _ LLW disposal-facility);, the, licensee shall-document that it has exhausted other reasonable waste management options which would. include taking all reasonable steps to contract, either directly or through-the State, for-disposal of the LLW.

(3) The licensee shall: retain all. relevant documentation.

regarding the- actions taken pursuant = to paragraphj (h) (2)- of .this -

section, for at least three years, and shall make the I l

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