[Federal Register Volume 65, Number 202 (Wednesday, October 18, 2000)]
[Notices]
[Pages 62377-62379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26762]
[[Page 62377]]
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NUCLEAR REGULATORY COMMISSION
Office of Nuclear Material Safety and Safeguards; In the Matter
of Department of Energy, (Savannah River High-Level Waste Tanks);
Response to NRDC Petition
I. Introduction
On July 28, 1998, the Natural Resources Defense Council (NRDC)
submitted a petition to the U.S. Nuclear Regulatory Commission (NRC)
requesting that NRC ``. . . assume and exercise immediate licensing
authority over all high-level radioactive waste (HLW) that is stored in
the 51 underground tanks located on the Department of Energy's (DOE)
Savannah River Site (SRS).'' NRC published receipt of the petition in
the Federal Register on September 4, 1998 (63 FR 47333). On September
30, 1998, DOE's General Counsel responded to NRDC's petition. On
October 23, 1998, NRDC responded to DOE's reply.
On March 6, 2000, NRDC sent a letter to Chairman Richard A. Meserve
asking for a public meeting to discuss the Savannah River tank closure
program and to consider the points NRDC raised in its petition. The
NRDC letter also stated that the NRC should initiate formal rulemaking
if the Commission agreed with the NRC staff's position in SECY 99-284
(December 15, 1999).\1\
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\1\ SECY 99-284, ``Classification of Savannah River Residual
Tank Waste,'' December 15, 1999, addressed NRC staff views on DOE's
methodology for classifying incidental waste at SRS.
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NRDC, in submitting this petition, expressly stated that it did not
seek to have the petition addressed under the procedures of 10 CFR
2.206, ``Requests for Action under This Subpart.'' \2\ However, it
requested the Commission to exercise its authority to take regulatory
action. This petition was considered under the Commission's general
authority to address issues associated with its jurisdiction.\3\
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\2\ NRDC stated: ``This petition does not call for NRC to
exercise an enforcement or other judicially un-reviewable
discretionary action within the meaning of 10 CFR 2.206 or the
holding in Hechler v. Chaney, 470 US 821 (1985).''
\3\ In light of the specific request of the petitioner in the
July 28, 1998 petition, this petition was not treated as a petition
submitted under 10 CFR 2.206, notwithstanding the petitioner's March
6, 2000 letter referring to the petition as ``its 2.206 petition.''
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By letter dated August 27, 1998, the Director of the Office of
Nuclear Material Safety and Safeguards (NMSS) informed the petitioner
that immediate action was not warranted for a number of reasons,
including: (1) NRC does not perceive any immediate threat to the public
health and safety from DOE's management of the SRS tank farm; (2) DOE
is actively monitoring the condition and safety of the tanks; and (3)
DOE has agreed not to close any more tanks, pending the NRC staff's
completion of its review of DOE's waste classification methodology. The
Director, NMSS, informed NRDC that the NRC staff would not respond to
the petition until it completed its review of DOE's classification
methodology.\4\
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\4\ The staff has completed its review, and has transmitted the
results to DOE. See letter from W.F. Kane/NRC to R. Schepens/DOE-
SRS, dated June 30, 2000.
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II. Discussion
A. NRC's Jurisdiction
NRC has limited licensing authority over DOE activities. With the
dissolution of the Atomic Energy Commission in 1975, NRC was given
licensing and related regulatory responsibilities for only four types
of facilities within the Energy Research and Development Administration
(ERDA) (now DOE). Two types of facilities are relevant to HLW issues.
Specifically, Section 202(3) of the Energy Reorganization Act (ERA)
addresses facilities used primarily for the receipt and storage of HLW
resulting from activities licensed under the Atomic Energy Act. Section
202(4) addresses ``. . . facilities authorized for the express purpose
of subsequent long term storage of high-level radioactive waste
generated by the Administration [now DOE], which are not used for, or
part of, research and development activities.'' (Emphasis added.)
Section 202(3) is not relevant here because Savannah River does not
possess wastes from licensed activities. Section 202(4) would be
relevant if: (1) the DOE facility at Savannah River was for storing
high-level waste for the long term; and (2) such facility was
``authorized for the express purpose of subsequent storage of high-
level radioactive waste.'' The HLW at Savannah River is from defense
activities. DOE intends the tanks to be closed in place. It has no
intent to recover the residual waste for future use, processing, or
disposal. The burial of any residual material in the tanks on site is,
in essence, disposal. However, for purposes of the ERA, the Commission
has interpreted the term ``storage'' to include disposal.\5\ Assuming
the residual material is HLW, to resolve the question of NRC
jurisdiction requires a determination as to whether the tanks have been
expressly authorized for long-term storage of HLW.\6\
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\5\ The ERA does not define the term ``storage.'' The ERA does
not explicitly give NRC jurisdiction over the disposal of HLW.
However, the Commission, in 1981, when it promulgated 10 CFR part
60, ``Disposal of High-Level Wastes in Geologic Repositories,''
asserted that, ``[T]he Commission interprets `storage' as used in
the Energy Reorganization Act to include disposal.'' ``Disposal of
High-Level Radioactive Wastes in Geologic Repositories: Licensing
Procedures,'' 46 FR 13971, Footnote 1 (February 25, 1981). See also
10 CFR 60.102(b)(3). This is different from the Nuclear Waste Policy
Act of 1982 (NWPA), Public Law 97-425, 96 Stat. 2201, 42 U.S.C.
10101, et seq., which, in Section 25, defines ``storage'' to mean
retention of HLW with the intent to recover it for future use,
processing, or disposal.
\6\ See Footnote 2, ``Denial of Rulemaking Petition,'' 58 FR
12346, where the Commission said that the contents of the waste in
the Hanford tanks are not dispositive of the question of whether the
storage of the treated wastes is subject to NRC licensing.
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This issue was raised before the Commission in the late 1970s in a
petition filed by NRDC. The NRDC petition requested that NRC license
the tanks at Savannah River. The Commission, after reviewing the
legislative history for Section 202(4) \7\ and past authorization acts,
could not find that these tanks were ``. . . authorized for the express
purpose of subsequent long term storage.'' The Commission concluded
that it had no jurisdiction because the tanks, at the time, were
intended for interim storage and had not been authorized for long-term
storage. [In the Matter of NRDC, ``Request Concerning ERDA High-Level
Waste Storage Facilities,'' CLI 77-9, 5 NRC 550 (1977).] Based on the
legislative history, the Commission also concluded that Congress ``had
in mind'' that Section 202(4) would apply to facilities not in
existence in 1974 when the ERA was enacted.\8\ However, the Commission
opined that Section 202(4) could apply to facilities constructed before
1974, if they were subsequently
[[Page 62378]]
expressly authorized for long-term storage.[Id. at 554.] \9\
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\7\ The Senate Committee on Government Operations explained that
Section 202(4) provides NRC ``. . . with the authority and
responsibility for licensing and related regulation of retrievable
surface storage facilities and other facilities for high-level
radioactive wastes which are or may be authorized by the Congress. .
. for long-term storage. . . . It is not the intent of the Committee
to require licensing of such storage facilities which are already in
existence. . . .'' Committee on Government Operations, Senate Report
93-980, at 59 (June 27,1974) (emphasis added). The Conference Report
explained that it retained the Senate language for Section 202(4)
and also noted that facilities for long-term storage were not in
existence. [Conference Report HR 93-1445 (October 8, 1974).]
\8\ There are 51 underground storage tanks at Savannah River.
Eighteen of these tanks were constructed after the passage of the
ERA. DOE maintains that none of these tanks was expressly authorized
for long-term storage of HLW. Letter from Mary Anne Sullivan,
General Counsel, DOE, to John Greeves, Director, Division of Waste
Management, NRC, ``NRDC Petition to Exercise Licensing Authority
Over Savannah River Site High-Level Waste Tanks,'' September 30,
1998.
\9\ As noted below, there have not been any subsequent
Congressional authorizations.
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In seeking judicial review of the Commission's decision denying the
NRDC's petition, the NRDC argued that the question of whether the tanks
are expressly authorized for long-term storage turns on the likelihood
that the tanks will be used for long-term storage rather than whether
Congress or the ERDA actually authorized them. The Court rejected that
view stating:
Had Congress desired to base NRC licensing jurisdiction on a factual
determination of the probability that particular ERDA waste storage
facilities would for reasons of necessity or otherwise, be used for
long-term storage, it would have enacted a statute significantly
different from that before us. Instead, Congress chose to give NRC
licensing jurisdiction when such facilities are ``authorized for the
express purpose of subsequent long-term storage.'' 42 U.S.C.
5842(4). Although the parties suggest that some ambiguity exists
concerning who must give the required authorization, Congress or
ERDA, neither authorized the . . . tanks for long-term storage.
[NRDC v. USNRC, 606 F2d 1261,1267 (D.C. Cir.1979).]
In light of its finding that neither the ERDA nor the Congress had
expressly authorized the tanks for long-term storage, the Court did not
resolve this suggested ambiguity. The purpose of Section 202 of the ERA
was to give NRC new authority over ERDA. However, this was limited
authority as the new authority only extended to certain ERDA
activities. Senate Report 93-980 is clear that Congress was to make the
authorization. Given that it was the Senate language that was adopted
in the final bill, its views are instructive. Moreover, there is no
evidence in the legislative history to suggest that Congress intended
the ERDA to have the discretion to decide for itself which facilities
would be authorized for long-term storage and, therefore, licensed by
NRC. It does not seem reasonable that Congress would have intended that
result given the purpose of Section 202 to establish licensing
requirements for certain ERDA facilities. Following the logic of the
Court of Appeals, if Congress intended that the ERDA could have
provided the authorization, significantly different language would have
been used.
Thus, absent express Congressional authorization, NRC does not have
jurisdiction over defense HLW stored at Savannah River. Since the
enactment of the ERA, there has not been an express authorization for
long-term storage of HLW at Savannah River. Congress has repeatedly
authorized funds for interim storage at Savannah River and funds for
removal of HLW from filled waste tanks. With one exception, there has
not been a reference to long-term storage at Savannah River. The
exception--Section 3141 of the National Defense Authorization Act for
Fiscal Year 1997 [Public Law 104-201, 110 Stat. 2422 (1996)]--directed
that the Secretary of Energy accelerate the schedule for isolation of
HLW in glass containers if the Secretary found, among other things,
that it `` . . . could accelerate the removal and isolation of high-
level waste from long-term storage tanks at the [Savannah River]
site.'' Although this is a recognition that there is, and is likely to
be, lengthy storage at Savannah River, this language is not an
authorization for the ``. . . express purpose of subsequent long-term
storage.'' If anything, it is an indication from Congress that it does
not desire long-term storage of HLW at Savannah River. In sum, although
Congress is aware that DOE is in the process of removing HLW from the
storage tanks at Savannah River, it has not expressly authorized the
long-term storage of any residual HLW in those tanks.
Apart from the ERA, NRC has authority to license DOE's repositories
for disposal of HLW arising out of defense activities. Section 8(b)(3)
of the NWPA provides that any repository for the disposal of HLW
resulting from atomic energy defense activities is to be licensed under
Section 202 of the ERA and is to be subject to the Commission's
requirements. Section 2(18) of the NWPA defines a ``repository'' to
mean ``permanent deep geologic disposal. . . .'' Although the HLW at
Savannah River is defense waste, it is not stored nor disposed of, nor
intended to be stored or disposed of in a repository as that term is
used in the NWPA.\10\ Therefore, the NWPA is not a source for NRC
jurisdiction over the Savannah River tanks.
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\10\ Neither the NWPA nor 10 CFR Part 60 requires HLW to be
disposed of in a geologic repository. Should future reprocessing of
commercial fuel occur, 10 CFR Part 50, Appendix F, would require the
resulting HLW to be transferred to a Federal repository. See also,
the 1987 advance notice of proposed rulemaking to define HLW, 52 FR
5992, 5993 (February 27, 1987).
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B. Incidental Waste
As to the issue of incidental waste raised by NRDC, NRC has in the
past recognized the concept of incidental waste. For example, in a
response to a rulemaking petition involving Hanford, the Commission
concluded that the reprocessed wastes would be ``incidental waste'' and
not HLW, based on DOE's assurances that the wastes:
(1) have been processed (or will be further processed) to remove
key radionuclides to the maximum extent that is technically and
economically practical;
(2) will be incorporated in a solid physical form at a
concentration that does not exceed the applicable concentration
limits for Class C low-level waste as set out in 10 CFR Part 61; and
(3) are to be managed, pursuant to the Atomic Energy Act, so
that safety requirements comparable to the performance objectives
set out in 10 CFR part 61, subpart C, are satisfied.\11\
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\11\ Id. at 12345.
NRC recognizes that the residual waste at Savannah River is
different from the waste at Hanford. The residual waste at Savannah
River generally consists of waste that is left on the bottom of the
tanks and that is embedded in pits in the tank walls; at Hanford, the
waste consists of the low-activity fraction resulting from pre-
treatment. Importantly, the waste at Hanford was not greater than Class
C. At Savannah River some of the residual waste, if subject to 10 CFR
part 61, would be classified, in accordance with 10 CFR 61.55, as
greater than Class C. The Commission's regulations at 10 CFR 61.58
reserve the discretion to allow material to be treated as not greater
than Class C if the requirements of 10 CFR part 61, Subpart C, are met.
However, in light of the lack of NRC jurisdiction over the SRS tanks,
NRC has not adopted a position as to whether the residual waste DOE
seeks to classify as ``incidental waste'' in these tanks is considered
HLW.
NRC has provided technical assistance, from a safety perspective,
on DOE's methodology for classifying waste as ``incidental.'' In the
June 30, 2000, letter, the NRC staff stated:
Based on the information provided, the staff has concluded that the
methodology for tank closure at SRS appears to reasonably analyze
the relevant considerations for Criterion One and Criterion Three of
the three incidental waste criteria. DOE would undertake cleanup to
the maximum extent that is technically and economically practical,
and would demonstrate it can meet performance objectives consistent
with those required for disposal of low-level waste. These
commitments, if satisfied, should serve to provide adequate
protection of public health and safety. . . . The NRC staff, from a
safety perspective, therefore does not disagree with DOE-SR's
proposed methodology, contingent upon DOE reaching current goals for
bulk waste removal, as well as water and chemical washing, such that
the performance objectives stated in subpart C 10 CFR 61 are met. .
. .
The staff's technical advice does not mean that NRC has decided
that the material left in the tanks is incidental
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waste. The results of the NRC staff review were provided as input to
the DOE decision. DOE is responsible for determining whether the
residual tank waste can be classified as incidental.\12\
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\12\ DOE has promulgated an order, DOE 435.1, ``Radioactive
Waste Management,'' (July 9, 1999), that addresses, among other
things, the classification of waste as incidental and not HLW. NRDC
has challenged DOE's use of incidental waste. [NRDC and Snake River
v. DOE, No. 00-70015 (May 22, 2000).]
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III. Conclusion
NRC has provided technical assistance, from a safety perspective,
on DOE's methodology for classifying waste as ``incidental.'' NRC staff
has concluded that DOE's commitments to (1) clean up to the maximum
extent technically and economically practical, and (2) meet performance
objectives consistent with those required for disposal of low-level
waste, if satisfied, should serve to provide adequate protection of
public health and safety.
NRC does not have licensing and related regulatory authority over
the HLW or residual wastes in the tanks at Savannah River. The
authority and responsibility for classifying the waste at Savannah
River reside in DOE, not NRC. Therefore, the issues underlying the
petition should be directed to DOE.
Dated at Rockville, Maryland, this 2nd day of October, 2000.
For the Nuclear Regulatory Commission.
William F. Kane,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 00-26762 Filed 10-17-00; 8:45 am]
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