[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