[Federal Register Volume 59, Number 78 (Friday, April 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9741]
[[Page Unknown]]
[Federal Register: April 22, 1994]
VOL. 59, NO. 78
Friday, April 22, 1994
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; withdrawal.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is withdrawing a
notice of proposed rulemaking that would have amended its regulations
for reactor, material, fuel cycle, and independent spent fuel storage
licensees. The proposed rule would have established a regulatory
framework containing the procedures and criteria that would have
applied to on-site storage of low-level radioactive waste (LLW), after
January 1, 1996. After considering the comments submitted on the
proposed rule, the NRC does not believe that there is sufficient
connection between the requirements in the rule for documenting that a
licensee has exhausted reasonable waste disposal options and the
objectives of reducing on-site storage of LLW, or encouraging the
development of new LLW disposal capacity. In addition, the NRC cannot
state that this rule would provide a licensee substantially greater
incentives over existing requirements to dispose of their LLW at
available locations in a timely manner. Therefore, the proposed rule
would neither be a necessary nor significant addition to the protection
of the public health and safety. As a result, the Commission concludes
that it should withdraw the proposed rule. The Commission continues to
favor disposal of LLW over storage and emphasizes that withdrawal of
this proposed rulemaking in no way alters this position. The Commission
expects LLW disposal facilities to be sited and developed in a timely
manner. The Commission also expects that the major interested parties,
including waste generators and States, to continue to take all
reasonable steps to ensure that LLW disposal capacity is available
soon.
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.
SUPPLEMENTARY INFORMATION:
Background
On February 2, 1993 (58 FR 6730), the NRC published in the Federal
Register, proposed amendments to 10 CFR parts 30, 40, 50, 70, and 72 of
its regulations. Under the provisions of the proposed rule, on-site
storage of LLW would not have been permitted after January 1, 1996
(other than reasonable, short-term storage necessary for decay or for
collection or consolidation for shipment off-site, when a licensee has
access to an operating LLW disposal facility), unless a licensee
documented that it had exhausted other reasonable waste management
options. These options included the management of the waste by the
State in which a waste generator is located. In addition, a reactor
licensee would have had to document that on-site storage activities
were consistent with, and did not compromise the safe operation of the
licensee's activities, and did not decrease the level of safety
provided by applicable regulatory requirements. The proposed rule would
have required applicable licensees to retain all relevant documentation
for at least three years and to make the documentation available for
NRC inspection. The 60-day comment period for the proposed rule expired
on April 5, 1993.
Discussion
Fifty-five comment letters were received addressing the proposed
rule. The commenters' principal concerns, impacting the NRC's decision
to withdraw the proposed rule, are: (1) The need to define ``reasonable
waste management options;'' (2) the burden imposed on licensees; (3)
the effect on the protection of the public health and safety and the
environment; and (4) the impact on the States. These concerns are
discussed in the following sections.
Definition of ``Reasonable Waste Management Options''
The proposed rule would have required licensees to take all other
reasonable waste management options before storing LLW on-site after
January 1, 1996. Because of the changing disposal situation, it is not
possible to define in advance what will or will not be viewed as a
reasonable option. This is particularly true when considering disposal
costs. Although disposal costs are expected to increase, no firm cost
estimates are currently available. However, the NRC would expect costs
to be a consideration in determining if an option is reasonable. As
several commenters suggested, other considerations may be appropriate
to determine if an option is reasonable. These considerations could
include, but would not be limited to, the potential liability of the
generator for a particular disposal option, the imminent availability
of a new waste treatment technology, or the imminent availability of
centralized storage by the State. The lack of a clear, unambiguous
definition for ``reasonable'' would afford licensees a large degree of
latitude in developing a rationale for storing LLW on-site, if they
chose to do so. Therefore, it is unlikely that a licensee would pursue
an option that is not ``reasonable.'' For these reasons, rule
implementation would be extremely difficult. It is unlikely that the
proposed rule would reduce on-site storage of LLW except for a few
isolated cases.
Burden on Licensees
In the Supplementary Information that accompanied the proposed
rule, the NRC identified those actions it would expect a licensee to
take to comply with the proposed rule. These actions would have
included an annual request for access to each operating commercial LLW
disposal facility for disposal of the licensee's LLW. Based on public
comments, the NRC has reexamined the need for this action. If the
disposal facility operator and/or the compact commission in which the
disposal facility is located has already provided access/import policy
information to the generator or the generator's State regulatory
agency, individual letters to disposal facility operators would not be
required. The NRC expects that LLW disposal facility access/import
policies will be well-publicized and, therefore, generally well-known.
Written confirmation of these policies by individual LLW generators
would place an unnecessary burden, albeit small, on the LLW generators.
In addition, it is unlikely that these letters would cause any changes
to restrictive access/import policies. This assessment is based on the
actions of the Northwest and Southeast Compact Commissions. These
compacts have clearly publicized and strictly enforced their respective
policies with regard to access to disposal sites.
The annual requirement to request access would also place a burden
on disposal facility operators. Although the proposed rule contained no
requirements applicable to disposal facility operators, there was an
implicit expectation that disposal facility operators would respond to
the generators' requests for access. Individual responses would have
been an excessive and unwarranted burden on disposal facility
licensees. Therefore, the Commission believes that individual access
requests by the LLW generators are similarly unwarranted.
Also, to require an annual request for access (as opposed to an
inquiry on the conditions of access) presumes a fact that was not
established in the proposed rule itself--that in all cases, for all
years, the conditions and costs associated with the requested access
are reasonable.
The NRC has been unable to identify a meaningful alternative to the
requirement for an annual licensee request that would impose less of a
burden while also permitting a licensee to demonstrate (and document)
that it has exhausted all other options to comply with the rule.
Protection of the Public Health and Safety and the Environment
The NRC continues to believe that disposal of LLW is safer and
involves less risk to the public health and safety than on-site
storage. Disposal of waste 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. However, the protection of the
public health and safety and the environment would not have been
enhanced by the proposed rule because the rule would not significantly
reduce the amount of LLW stored on-site.
Impact on the States
The Commission agrees with those commenters who argued that the
rule would have little positive impact on the development of new
disposal facilities. The policy embodied in the proposed regulations to
discourage the storage of LLW on-site was intended to help encourage
national progress in the development of LLW disposal facilities.
However, it is difficult to predict the extent of the rule's impact on
this process, given the complex, time-consuming, and often litigious
process involved in siting, licensing, and developing an LLW disposal
facility. Although NRC occupies a unique position in the National
Program and its rules, policies, and actions receive widespread
attention, it is not clear that this rule would have a significant
positive impact on the development of new LLW disposal facilities.
For unaffiliated States planning to develop a disposal facility,
the proposed rule would possibly have impacted on this development
process. Unaffiliated States may not have the ability to exclude out-
of-State waste. Therefore, even assuming the rule could have been
effective in deterring generators from storing substantial quantities
of wastes when disposal capacity becomes available, the proposed rule
would have tended to require all LLW generators without access to a
regional disposal facility to ship their waste to an operating disposal
facility in an unaffiliated State. The prospect of receiving unwanted
LLW for disposal could slow or halt LLW disposal facility development
in these States; the proposed rule, if effective, would have increased
this prospect. Currently, two unaffiliated States (Massachusetts and
New York) are planning to develop LLW disposal facilities. The
unaffiliated States of Maine, Texas, and Vermont are planning to form a
compact with Texas as the host State.
In addition, the proposed rule has received little support from the
Agreement States. The NRC staff informed the Agreement States of the
rulemaking in February 1992 and requested their comments. One State
supported the proposed rulemaking and three States opposed it. Two
States, although not opposing any provisions of the rule, stated that
the rulemaking should not proceed until the Supreme Court decides on
the constitutionality of the Low-Level Radioactive Waste Policy
Amendments Act of 1985 (LLRWPAA) and the title-transfer provision.
Three States provided comments and questions without taking a position
on the proposed rulemaking. One State reserved comment and four States
had no comments. Fifteen Agreement States did not respond. Four
Agreement States responded to the notice of proposed rulemaking
published in February 1993. One Agreement State supported the proposed
rule and three opposed it. To be effective, the rule must be applied in
the Agreement States, as well as in States where NRC exercises
regulatory jurisdiction.
Summary of Public Comments and NRC Responses
The NRC received a total of 55 comment letters on the proposed
rule. Comments were received from State and local government
organizations and offices (8); utilities or their counsel (21); non-
utility LLW generators (9); nuclear power and nuclear material user-
groups (5); a disposal facility operator (1); public interest groups
(7); and private citizens (4). Copies of these letters are available
for public inspection and copying, for a fee, at the NRC Public
Document Room at 2120 L Street, NW. (Lower Level), Washington, DC,
telephone (202) 634-3273.
Of the 55 letters received, 10 endorsed adoption of the proposed
rule, 24 opposed its adoption, and 21 provided comments without taking
a clear position on the rulemaking. Many of the commenters requested
clarification of the phrase ``reasonable waste management options.''
The adequacy and clarity of NRC's argument concerning the protection of
the public health and safety and the environment was a concern of a
large number of commenters. Many of these commenters stated that
storage should be preferred to disposal. Of equal concern was the
financial burden of the rule on licensees and the regulatory impact of
the rule on the States.
The public comments and NRC responses related to the Commission's
decision to withdraw the proposed rule are provided below.
1. Comment. Twenty-three commenters stated that the phrase
``reasonable waste management options'' is ambiguous and needs to be
better defined. Many of these commenters stated that the application of
financial and/or cost-benefit considerations should be allowed to
determine reasonable options. Several of these commenters recommended
changing ``reasonable waste management options'' to ``reasonable waste
disposal options.'' The commenters explained that the proposed rule
could be interpreted to apply to a broad range of waste management
practices, including waste minimization and volume reduction. Three
commenters stated that consideration should be given to the generator's
assessment of the generator's potential liability associated with
disposal at a particular facility.
Response. The proposed rule was intended to require LLW generators
to use waste disposal capacity to the extent that this capacity is
reasonably available. The proposed rule was not intended to require
generators to demonstrate that they have processed or treated waste as
a condition for storage beyond January 1, 1996. Therefore, the NRC
agrees that a change from ``reasonable waste management options'' to
``reasonable waste disposal options'' would have been appropriate.
However, because of the changing disposal situation, it is not possible
to define in advance what will or will not be viewed as a reasonable
disposal option. This is particularly true with disposal costs.
Although disposal costs are expected to increase, no firm cost
estimates are currently available. However, the NRC would expect costs
to be a consideration in determining if an option is reasonable. As
several commenters suggested, other considerations may be appropriate
to determine if an option is reasonable. These considerations could
include, but not be limited to, the potential liability of the
generator for a particular disposal option, the imminent availability
of a new waste treatment technology, or the imminent availability of
centralized storage by the State. The lack of a clear, unambiguous
definition for ``reasonable'' would result in licensee uncertainty in
complying with the rule and NRC uncertainty in enforcing the rule.
2. Comment. One commenter stated that the NRC had not responded
directly to a previously submitted Agreement State comment that the
rule did not appear to be based on protection of the public health and
safety, or any technical requirements.
Response. The 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. This position is based on three
concerns associated with the storage of LLW. These conditions are: (1)
Waste container degradation and the consequences of this degradation;
(2) increased radiation exposure to workers; and (3) potential releases
in the event of an accident. However, after considering the comments
submitted on the proposed rule, the NRC does not believe that there is
sufficient connection between the requirements in the rule for
documenting that a licensee has exhausted reasonable waste disposal
options and the objectives of reducing on-site storage of LLW or
encouraging the development of new LLW disposal capacity. In addition,
the NRC cannot state that this rule would provide licensees
substantially greater incentive over existing requirements to dispose
of their LLW at available locations in a timely manner. Therefore, the
proposed rule would not be a necessary or significant addition to the
protection of the public health and safety.
3. Comment. Five commenters stated that the proposed rule will have
little positive impact on the development of new disposal facilities.
Response. Based on a review of public comments and after further
consideration, the NRC agrees that the proposed rule may have little
positive impact on the development of new disposal facilities. The
policy discouraging the storage of LLW embodied in the proposed
regulations was intended to help encourage national progress in the
development of LLW disposal facilities. However, it is difficult to
predict the extent of the rule's impact on this process, given the
complex, time-consuming, and often litigious process involved in
siting, licensing, and developing an LLW disposal facility. Although
NRC occupies a unique position in the National Program and its rules,
policies, and actions receive widespread attention, it is not clear
that this rule would have a significant positive impact on the
development of new LLW disposal facilities.
4. Comment. One commenter questioned how this amendment would force
or encourage the States to proceed with the siting process.
Response. The incorporation in its regulations of NRC's long-
standing position concerning the on-site storage of LLW was intended to
encourage the States to move forward with the development of LLW
disposal facilities. The proposed rule was intended to ensure that all
disposal options potentially available to generators are investigated.
However, the NRC cannot state that this rule would provide licensees
substantially greater incentive over existing requirements to dispose
of their LLW at available locations in a timely manner.
However, the withdrawal of this proposed rule does not alter the
Commission position concerning long-term on-site storage of LLW. The
Commission considers the long-term on-site storage of LLW to be a last-
resort measure. NRC's preference is that LLW be permanently disposed of
as soon as possible after it is generated. The protection of public
health and safety and the environment is enhanced by disposal rather
than long-term storage of wastes. In addition, the Commission continues
to support the goals that have been established in the LLRWPAA. The
Commission expects LLW disposal facilities to be sited and developed in
a timely manner and that waste generators and States will continue to
take all reasonable steps to ensure that LLW disposal capacity is
available soon.
5. Comment. Six commenters stated that the annual access request
requirement would be unproductive and unnecessary if conditions remain
unchanged from year to year.
Response. The NRC agrees. In the Supplementary Information which
accompanied the proposed rule, NRC provided information concerning the
expected actions to show compliance with the proposed rule. This
information stated that NRC would expect the licensee to make an annual
request for access to each operating commercial LLW disposal facility
for disposal of the licensee's LLW. If the disposal facility operator
and/or the compact commission in which the disposal facility is located
has already provided access/import policy information to the generator
or the generator's State regulatory agency, individual letters to
disposal facility operators would not be required. The NRC expects that
LLW disposal facility access/import policies will be well-publicized
and therefore, generally well known. Written confirmation of these
policies by individual LLW generators would have placed an unnecessary
burden, albeit small, on the LLW generators and a significant burden on
disposal facility operators.
6. Comment. Four commenters stated that the rule would place an
excessive burden on disposal facility operators to respond to each
request.
Response. The NRC agrees. The proposed rule contains no
requirements applicable to disposal facility operators. However, there
is an implicit expectation that disposal facility operators respond to
the generators' requests for access, either individually or in a well-
publicized announcement of access/import policy of the host State or
associated compact commission. Individual responses would be an
excessive and unwarranted burden on disposal facility licensees.
7. Comment. Several additional questions were received on the
actions a licensee would be required to take to comply with the rule.
One commenter noted that State and/or compact provisions may not permit
a generator to export LLW and asked the question: ``If a petition for
export has been denied, what additional action should the licensee take
to comply?'' Another commenter asked the number of requests required to
show compliance and wondered whether such requests should be sent by
certified mail. This commenter also asked what the licensee would be
expected to do if the disposal facility operator(s) failed to respond.
Response. The NRC agrees that some compact commissions may not
permit the export of LLW from the compact. It would be unreasonable to
expect a licensee that had been denied an export petition to take any
other action. Because the rule is being withdrawn, the remaining
questions concerning compliance are moot.
8. Comment. Two commenters stated that the language requiring Part
50 licensees to document that their storage activities will not
``compromise safe operation of the licensee's activities, nor decrease
the level of safety,'' should be deleted. These commenters believed
that the proposed rule appears to single out part 50 licensees. In
addition, these commenters stated that if the NRC believes that
additional requirements are necessary to ensure safety of LLW storage
activities, those requirements should be identified specifically and
their health and safety basis provided, so licensees may effectively
comment on them.
Response. The NRC agrees that the requirements of the proposed 10
CFR 50.54(ff)(2)(ii) are not necessary. Power reactor licensees are
required to document the safety of LLW storage facilities under other
conditions of their licenses (e.g., 10 CFR 50.59, for a new storage
facility).
Conclusions
The NRC does not now believe that there is a sufficient connection
between the requirements in the proposed rule for documenting that a
licensee has exhausted reasonable disposal options and the objectives
of reducing on-site storage of LLW, or encouraging the development of
new LLW disposal capacity. The few comments received in support of the
proposed rule were based on the general desirability of encouraging
disposal over storage. However, these commenters did not address the
issue of whether the documentation procedures in the proposed rule
would prove to be an effective method for achieving this goal. After
further analysis of the rationale for the rule prompted by the public
comments, it is not clear that this proposed rule would provide
licensees a substantially greater incentive over existing requirements
to dispose of their LLW at available locations in a timely manner.
Therefore, the proposed rule would neither be a necessary nor
significant addition to the protection of the public health and safety.
In view of these considerations, the proposed rule is withdrawn.
However, the withdrawal of this proposed rule does not preclude the
Commission from issuing similar notices in the future nor commit the
Commission to any course of action with regard to the on-site storage
of LLW.
Dated at Rockville, Maryland, this 18th day of April, 1994.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Assistant Secretary of the Commission.
[FR Doc. 94-9741 Filed 4-21-94; 8:45 am]
BILLING CODE 7590-01-P
