[Federal Register Volume 63, Number 53 (Thursday, March 19, 1998)]
[Notices]
[Pages 13396-13398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7155]
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DEPARTMENT OF ENERGY
Notice of Intent to Conduct Policy Analysis; Request for Public
Comment
AGENCY: Department of Energy.
ACTION: Notice of intent to conduct policy analysis; request for public
comment.
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SUMMARY: Prior to 1979, the United States Department of Energy
(``DOE'') routinely used commercial facilities for the disposal of its
low-level radioactive waste (``LLW'') and mixed low-level radioactive
waste (``MLLW''). In 1979, DOE decided to rely primarily on its own
facilities for the disposal of these wastes, with only limited use of
commercial facilities. While DOE still relies primarily upon its own
facilities for the disposal of its LLW and MLLW, in recent years the
Department's use of commercial disposal facilities has increased, and
in the future greater use of commercial disposal facilities may occur
as DOE proceeds with the cleanup of its sites. These developments have
generated increased interest in the private sector in competing for
DOE's LLW and MLLW disposal business. The Department is interested in
encouraging competition for this business.
DOE has received two proposals from private entities for
establishing LLW and MLLW disposal facilities at existing hazardous
waste disposal sites. Neither of these proposals involves the
establishment of a disposal facility pursuant to the Low-Level
Radioactive Waste Policy Act. One proposal would have DOE regulate a
commercial waste disposal facility through a disposal contract with the
facility owner. The other proposal would have DOE pay for some or all
of a commercial facility's maintenance before any LLW or MLLW is
accepted, and would have DOE pay for the costs associated with
obtaining licenses and appropriate regulatory approvals for the
facility from the state in which the facility is located.
These proposals have prompted the Department to conduct an analysis
of its policy regarding the disposal of LLW and MLLW at commercial
facilities. As part of this analysis, the Department solicits comments
from the public and interested organizations regarding its use of
commercial disposal options for LLW and MLLW. The goal of this policy
analysis is to assist the Department in determining whether to continue
its use of existing, licensed commercial disposal facilities, pursue
disposal options represented by either or both of these proposals, or
in other respects change its policies or practices relating to the use
of commercial facilities for the disposal of LLW and MLLW.
DATES: Comments are due by May 18, 1998. DOE will consider comments
received by this date in its analysis of the commercial disposal of LLW
and MLLW. Comments received after this date will be considered to the
extent practicable.
ADDRESSES: The Department of Energy invites interested states,
agencies, organizations, and the general public to comment on its use
of existing, licensed commercial disposal facilities, the options
represented by the proposals from Waste Control Specialists, LLC of
Texas (``WCS'') and Laidlaw Environmental Services, Inc., of Colorado
(``Laidlaw'') as described herein or on other aspects of the
Department's policies or practices regarding the disposal of LLW and
MLLW at commercial facilities. Written comments should be sent to: Mr.
Jay Rhoderick, United States Department of
[[Page 13397]]
Energy, EM-35, 19901 Germantown Road, Germantown, MD 20874-1290.
Persons wanting to provide oral comments should call 1-800-635-
4080.
FOR FURTHER INFORMATION CONTACT: Mr. Jay Rhoderick, United States
Department of Energy, EM-35, 19901 Germantown Road, Germantown, MD
20874-1290, (301) 903-7174.
SUPPLEMENTARY INFORMATION: Prior to 1979, DOE routinely used commercial
facilities to dispose of its low-level radioactive waste and mixed low-
level radioactive waste (waste that is both low-level radioactive waste
and hazardous waste). Between 1975 and 1978, three of the six then-
existing commercial facilities ceased operation. In addition, concerns
were raised regarding the continued operation of the remaining three
commercial disposal facilities. In 1979, DOE adopted a policy of
disposing of its LLW and MLLW at its own sites to ensure uninterrupted
disposal capabilities for its needs, while utilizing commercial
facilities only on a case-by-case basis.
DOE's current policy concerning the disposal of LLW and MLLW is
stated in DOE Order 5820.2A, Radioactive Waste Management (September
26, 1988). This Order provides that LLW and MLLW ``shall be disposed of
on the site at which it is generated, if practical, or if on-site
disposal capability is not available, at another DOE disposal
facility.'' Pursuant to this Order, the Department must dispose of
these wastes at a DOE facility unless an exemption is granted for
disposal at a commercial facility. DOE may approve exemptions from this
policy for ``[n]ew or alternate waste management practices that are
based on appropriate documented safety, health protection, and economic
analyses.'' Where an exemption is sought, the Department's policy
requires that the proposed commercial disposal facility comply with all
applicable Federal, state and local requirements, and that it have all
of the necessary permits, licenses and approvals for disposal of the
specific wastes involved, including a license to dispose of LLW and
MLLW issued by the Nuclear Regulatory Commission (``NRC'') or by an
Agreement State.1 The actual selection of a commercial
facility for the disposal of DOE LLW and MLLW occurs in accordance with
Federal procurement law. In addition, the state and state compact (as
defined in the Low Level Radioactive Waste Policy Act) in which the
commercial facility is located must be consulted before approval of the
exemption and must be notified prior to the shipment of any waste.
Exemptions allowing for the use of licensed, commercial facilities for
the disposal of LLW and MLLW have been granted on a case-by-case basis.
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\1\ The NRC may relinquish to states, by agreement, its
authority to license and regulate certain activities, including LLW
disposal facilities, as long as the state's standards to protect the
public health and safety and the environment are equivalent to or
more stringent than the NRC's corresponding standards. See 42 U.S.C.
2021(b), (d)(1), and (o)(2).
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Since the 1950's, DOE has disposed of approximately 3 million cubic
meters of LLW from its weapons production activities in disposal
facilities located at DOE sites and has sent approximately 200,000
cubic meters of such waste to commercial disposal facilities. DOE has
disposed of approximately 40,000 cubic meters of MLLW from its weapons
production activities primarily at commercial facilities. DOE's
environmental restoration (cleanup) activities have increased
significantly since the late 1980's. To date, the disposal of LLW and
MLLW from DOE's environmental restoration activities has amounted to
approximately 1.2 million cubic meters. Of this amount, approximately
250,000 cubic meters of high-volume low-activity environmental
restoration waste have been disposed of at commercial facilities. Thus
far, the commercial disposal of nearly all of this LLW and MLLW has
occurred at one facility, Envirocare of Utah, Inc., (``Envirocare'').
The Envirocare facility was licensed to dispose of LLW and MLLW by the
State of Utah under the State's agreement with the NRC. DOE projects
that future waste management and environmental restoration activities
will generate approximately 31 million cubic meters of LLW and MLLW.
The Department expects to dispose of the large majority of these wastes
at DOE facilities. DOE projects, however, that of this 31 million cubic
meters of LLW and MLLW, approximately two million cubic meters may be
susceptible to disposal at commercial facilities under DOE's current
policy.
WCS owns and operates a hazardous waste disposal facility in
Andrews County, Texas. WCS has proposed to expand its business to
include disposal of DOE LLW and MLLW. The State of Texas has authority
to regulate certain activities involving radioactive materials,
including the disposal of LLW, pursuant to an agreement with the NRC.
Pursuant to that agreement, the State of Texas has licensed WCS to
store, process and treat LLW and MLLW. Under Texas law, however, a
radioactive waste disposal license may be issued only to a ``public
entity'' specifically authorized by law for radioactive waste disposal.
Because WCS is not a ``public entity,'' it is precluded from obtaining
a license for radioactive waste disposal services from the State of
Texas.
In an attempt to overcome this impediment, WCS submitted a proposal
to DOE under which it believes it could dispose of DOE LLW and MLLW in
Texas without a state license. Under the WCS proposal, the facility
would operate under contract with DOE, would be regulated by DOE
exercising its authority under the Atomic Energy Act of 1954, and would
accept radioactive wastes only from DOE. The proposal further suggested
that DOE would perform its regulatory role through a contract with an
entity or group of entities with nuclear engineering and environmental
expertise. At the end of the operational phase of the facility, title
maintained by WCS would be transferred without cost to the Federal
government or at the State's option to the State of Texas.2
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\2\ WCS has filed suit against the Department in connection with
its proposal. See Waste Control Specialists, LLC v. United States
Department of Energy, et al, Civil Action No. 3:CV-93-1201-P (N.D.
Texas 1997), appeal pending No. 97-11353 (5th Cir.). In this case,
the district court entered orders granting WCS's motion for a
preliminary injunction and denying the Department's motion to
dismiss. The injunction has effectively prevented DOE from
proceeding with the procurement of commercial disposal services for
LLW and MLLW. The United States Court of Appeals for the Fifth
Circuit granted the Department's request for expedited appeal from
the injunction. Sixteen states have asked the appeals court for
leave to file an amicus brief arguing that DOE's adoption of the WCS
proposal is legally proscribed. Accordingly, the Department's policy
analysis could be affected by, and may have to await the resolution
of, this litigation.
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Laidlaw owns and operates an existing commercial hazardous waste
disposal facility, Deer Trail, 70 miles east of Denver. Laidlaw is also
exploring the potential of expanding its services to include the
disposal of DOE LLW and MLLW, specifically from DOE's Rocky Flats
Environmental Technology Site. Laidlaw's Deer Trail Facility is
currently not licensed to accept LLW and MLLW for disposal. Like Texas,
the State of Colorado regulates certain activities involving
radioactive materials, including disposal, through an agreement with
the NRC. Unlike Texas, however, Colorado does not restrict the
ownership of such disposal facilities to ``public entities.''
Laidlaw's proposal is divided into two phases. Phase I would
obligate the payment of Federal funds to Laidlaw in an amount that
would pay for Laidlaw to maintain the facility in a condition ready to
receive the waste, and reimburse Laidlaw for its expenses related to
obtaining the necessary state licenses and permits to dispose of LLW
and MLLW. (DOE could terminate Phase I by appropriate notice to Laidlaw
at any
[[Page 13398]]
time prior to the commencement of Phase II.) In exchange, Laidlaw would
be obligated to construct an appropriate disposal cell at its facility
to receive LLW and MLLW and commit to proceed with Phase II. Phase II
would include the actual shipment of wastes to the Deer Trail Facility.
Comments are invited on the Department's current policy regarding
the disposal of LLW and MLLW at existing, licensed commercial
facilities under DOE Order 5820.2A, and on the options illustrated by
the WCS proposal and the Laidlaw proposal, to assist the Department in
determining whether to continue or change its existing policies related
to the use of commercial facilities for the disposal of LLW and MLLW.
The Department is particularly interested in receiving comments on
other types of options it should consider in formulating future
policies for the disposal of LLW and MLLW. If the Department's policy
analysis results in a proposal that would require the preparation of an
environmental analysis pursuant to the National Environmental Policy
Act, an appropriate analysis will be prepared.
Dated: March 13, 1998.
James M. Owendoff,
Acting Assistant Secretary for Environmental Management.
[FR Doc. 98-7155 Filed 3-18-98; 8:45 am]
BILLING CODE 6450-01-P
