[Federal Register Volume 65, Number 94 (Monday, May 15, 2000)]
[Rules and Regulations]
[Pages 30833-30836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12158]


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NORTHEAST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION

10 CFR Chapter XVIII


Northeast Interstate Low-Level Radioactive Waste Compact Final 
Rule for Declaration of Party State Eligibility

AGENCY: Northeast Interstate Low-Level Radioactive Waste Commission.

ACTION: Final rule.

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SUMMARY: The Northeast Interstate Low-level Radioactive Waste 
Commission (the ``Commission'') is adopting these rules to establish 
the conditions under which a state not a party to the Northeast 
Interstate Low-Level Radioactive Waste Management Compact (the 
``Compact'') may be declared eligible to become a party state. The 
Commission must declare a state eligible before it may become a party 
state to the Compact. The procedures and conditions established by the 
Commission through this rule are intended to protect the integrity of 
the Compact and the interests of both the existing party states and any 
state petitioning for a declaration of eligibility.

DATES: This rule becomes effective May 15, 2000.

FOR FURTHER INFORMATION CONTACT: Kevin McCarthy, Chairman, Northeast 
Interstate Low-Level Radioactive Waste Commission, 703 Hebron Avenue, 
Glastonbury, Connecticut 06033, (860) 633-2060.

SUPPLEMENTARY INFORMATION:  

Background

    The Compact was established by ``The Omnibus Low-Level Radioactive 
Waste Compact Consent Act of 1985,'' Public Law 99-240, Title II (the 
``Act''). The Act gave Congress'' consent to agreements between and 
among states that were designed to facilitate the regional disposal of 
low-level radioactive waste (``waste''), thereby promoting the health 
and safety of the region. Connecticut and New Jersey are current 
members of the Compact. The Act also established the Commission and 
gave it authority, inter alia, to promulgate rules, conduct hearings, 
receive and act on applications to become eligible states, develop 
regional plans to ensure safe and effective management of waste within 
the region, designate a host state for siting of a regional disposal 
facility, enter agreements for the importation of waste into the region 
and export of waste from the region, impose sanctions, and establish 
criteria for disposal fees. The Commission consists of one voting 
member from Connecticut and one voting member from New Jersey.
    Since the establishment of the Compact, there has been no regional 
disposal facility to receive waste generated within the Compact states. 
Nevertheless, at various times, regional generators have been able to 
dispose of their waste at other facilities (e.g., at facilities located 
in Clive, Utah, and Barnwell, South Carolina). Those facilities have 
not always been available for disposal of all of the waste generated 
within the region, however, and the Commission has sought to make 
available more reliable access to waste disposal facilities. Current 
regional generators anticipate that they will need assured access to 
waste disposal facilities for the next 50 years until all of the 
currently licensed nuclear power stations are fully decommissioned and 
all spent nuclear fuel has been removed from the sites. With these 
needs in mind, the Commission seeks to ensure the long-term 
availability of approximately 800,000 cubic feet of disposal space to 
accommodate all classes of low-level waste. The Commission also seeks 
to stabilize fees for waste disposal.
    The Commission has determined that it is in the interests of the 
Compact states to declare another state eligible for membership in the 
Compact if (a) that state is willing to become the voluntary host state 
and (b) membership in the Compact would achieve important objectives 
for both the current member states and any petitioning state. Article 
VII.e. of the Compact permits the Commission to ``establish such 
conditions as it deems necessary and appropriate to be met by a state 
requesting eligibility as a party state to this compact.'' The 
Commission has further determined that the identification and 
implementation of reasonable conditions to be applied when evaluating a 
petition for new party state eligibility are essential to the long-term 
health and safety of the region.
    These rules establish the conditions for party state eligibility 
contemplated by Article VII.e. of the Compact and the criteria for fee 
and surcharge systems contemplated by Article IV.i.(15) of the Compact. 
The rules specify the procedures that the Commission will follow for 
receiving petitions for party state eligibility. They then describe the 
essential conditions for declaring a state eligible for membership in 
the Compact. Those conditions include agreements (a) to be the sole 
host state until all currently licensed nuclear power stations in the 
region have been decommissioned, (b) to warrant the availability of 
800,000 cubic feet of disposal capacity for Connecticut and New Jersey 
generators, (c) to assure stable, predictable disposal fees that are no 
greater than generators in Connecticut and New Jersey paid at the end 
of 1999, (d) to give flexibility for generators to dispose of waste 
elsewhere at their discretion, (e) to indemnify the existing party 
states for any potential environmental liability caused by their 
membership in the Compact and by operation of the regional disposal 
facility, and (f) to ensure an equitable schedule for return of a 
portion of any incentive payment made by the existing party states if 
the regional disposal facility ceases to be available for any reason.

Summary of Public Comments on the Proposed Rule

    The Commission received written comments on the proposed rule (65 
FR 13700, March 14, 2000) from the New Jersey Low-Level Radioactive 
Waste Disposal Facility Siting Board, Northeast Nuclear Energy Company, 
GPU Nuclear, the State of Connecticut Office of Policy Management, 
Public Service Electric & Gas Company, and Connecticut Yankee Atomic 
Power Company. These organizations (except Connecticut Yankee), as well 
as the New Jersey Chamber of Commerce and the New Jersey Business and 
Industry Association, offered oral comments at public hearings held in 
Trenton, NJ on April 17, 2000, and in Bridgeport, CT on April 18, 2000. 
All of the commenters supported the proposed rule and urged its 
adoption. Copies of the public comments are available for review at the 
Commission's office, 703 Hebron Avenue, Glastonbury, Connecticut 06033.

Public Comments on the Rule To Establish Criteria for Declaration 
of Eligible State

    None of the public commenters objected to the Commission's proposed 
procedures and criteria for declaring a state eligible to become a 
party to the Compact. Some of the comments raise issues that should be 
addressed during the evaluation of a specific petition for declaration 
as a party state. Other comments raise issues that are

[[Page 30834]]

appropriately addressed separately from this rulemaking. The Commission 
is grateful for all of the thoughtful comments that have been offered. 
The following discussion describes the Commission's evaluation of the 
comments received.
    General Comments: Several commenters commended the rulemaking 
process and the criteria that the Commission established for declaring 
an eligible state. Various commenters stated that the rule 
appropriately: (1) Ensures that any new eligible state will be the 
voluntary host state until all current nuclear power plants within the 
region are fully decommissioned, (2) guarantees 800,000 cubic feet of 
disposal capacity for New Jersey and Connecticut generators, (3) 
permits imports and exports of waste into and out of the region, (4) 
caps disposal fees at predictable, reasonable levels, (5) requires the 
return of incentive payments if the regional disposal facility becomes 
unavailable for any reason, and (6) indemnifies Connecticut and New 
Jersey for any damages liability. The Commission appreciates the 
commenters' affirmation of these essential components of the rule.
    Specific Comment No. 1: Several commenters raised questions about 
the methodology that would be employed under Sec. 1800.13(d) to 
determine the average fees that generators within the existing party 
states paid for disposal at the Barnwell, South Carolina, facility at 
the end of calendar year 1999. One commenter suggested that the 
Commission should establish explicit criteria under Compact Article 
V.f. to be used in determining these baseline fees. The commenter 
proposed the following criteria: (a) Fees should be fair and equitable 
among various classes of generators and should bear some reasonable 
relationship to the cost of disposal; (b) fees should be simple and 
easy to calculate; (c) fees should be competitive and should reflect 
market-based conditions; and (d) fees should generate adequate revenues 
to assure an economically viable disposal facility.
    The Commission agrees with the commenters on the importance of 
determining the maximum disposal fee and generally agrees with the 
principles suggested as guidelines for determining those fees under the 
rule. The Commission does not believe it is necessary at this time, 
however, to establish any further explicit criteria for setting the 
maximum disposal fee to which a petitioning state must agree. The rule 
establishes the fees paid in the later part of calendar year 1999 as 
the basis for the prospective uniform maximum fee schedule. That rate 
presumptively represents a market-based rate because it is the rate 
that generators were willing to pay in 1999 for disposal of waste at 
the Barnwell facility. Any more specific criteria for determining the 
fees may unnecessarily limit a new party state's ability to devise an 
acceptable maximum waste disposal fee schedule.
    The Commission will apply this rule to evaluate any petition by a 
state seeking to be declared eligible for Compact membership. It will 
be up to the petitioning state to demonstrate that the maximum disposal 
rate schedule will be determined fairly and equitably based on the 
rates that Connecticut and New Jersey generators paid in 1999. The 
Commission will consider the petitioning state's actual determination 
of disposal rates before acting on the petition to ensure that the 
process used was acceptable, and, before accepting the petition, the 
Commission may impose conditions specifying disposal rates. In light of 
these procedures, the Commission sees no need to modify the rule.
    Specific Comment No. 2: Several commenters asked the Commission to 
identify which index will be used to determine the inflation factor or 
the process that will be used to select the appropriate index. The rule 
in Sec. 1800.13(d) deliberately did not specify a specific inflation 
index, but stated that it must be acceptable to the Commission. With 
input from generators and the existing states, the Commission has 
considered use of a variety of indices, including the Producer Price 
Index, the Employment Cost Index, the Consumer Price Index, and the 
Gross Domestic Product deflator. The Commission believes that an 
appropriate index within the Producer Price indices will probably be 
acceptable, but the Commission will evaluate the proposed index in any 
petition to determine whether it is finally acceptable. No change in 
the rule is necessary.
    Specific Comment No. 3: Two commenters suggested that the rule in 
Sec. 1800.13(h) was not clear because it did not specify what would 
happen if the regional disposal facility ceases to be available on 
December 31 in the years 2001, 2003, 2005, or 2008. The commenters 
suggested that Sec. 1800.13(h) be changed so that the end of each 
period is ``prior to January 1'' in the appropriate year. The 
Commission accepts this change and has incorporated it in the final 
rule.
    Specific Comment No. 4: One commenter asked whether, under the rule 
in Sec. 1800.13(e), the Commission will continue to obtain all 
necessary approvals for regional generators to dispose of waste outside 
the region, whether regional generators will be permitted to ship waste 
outside the region for purposes of treatment, volume reduction, 
repackaging, storage, processing or any other reason, and whether 
repackaged waste or its residue can be shipped directly to the regional 
disposal facility as regional waste. The Commission affirms that, as it 
interprets Sec. 1800.13(e), the Commission will continue to obtain 
appropriate approvals for regional generators to dispose of waste 
outside the region, regional generators will be permitted to ship waste 
outside the region for purposes of treatment, volume reduction, 
repackaging, storage, processing or any other reason, and repackaged 
waste or its residue will be permitted to be shipped directly to the 
regional disposal facility as regional waste. No change to the rule is 
required.
    Specific Comment No. 5: One commenter asked the Commission to 
specify how the 800,000 cubic feet of disposal capacity that will be 
allotted to generators in the existing party states would be divided 
between Connecticut and New Jersey. As the commenter noted, it 
currently appears that 800,000 cubic feet of disposal capacity will be 
sufficient to accommodate both states' projected waste volumes. At this 
time, the Commission expects that the total disposal capacity available 
for Connecticut and New Jersey will be divided evenly, with 400,000 
cubic feet allotted to each state's generators. Nevertheless, 
circumstances may change over the next 50 years. Thus, the Commission 
(or the Commissioners representing Connecticut and New Jersey) may 
modify this presumptive allocation to meet the needs of the generators 
in the two states. Any modification to the even division of available 
disposal capacity between the two states should consider the needs of 
generators and any comments that the generators in those states may 
have on the appropriate allocation.
    Conclusions: After considering all of the comments, the Commission 
concludes that this final rule, as modified, will further promote 
health and safety within the region. It will provide a mechanism for 
the Commission to consider a long-term resolution for disposal of low-
level radioactive waste generated within the region. It will establish 
the essential conditions that must be satisfied before declaring a 
state eligible for membership in the Compact. The rules are consistent 
with and will further the purposes of the Compact and the Low-Level

[[Page 30835]]

Radioactive Waste Policy Act, as amended (Pub. L. 96-573; Pub. L. 99-
240, Title I).

Statutory Authority

    The Commission has authority to issue this rule under The Omnibus 
Low-level Radioactive Waste Compact Consent Act of 1985, Public Law 99-
240, section 227, Art. IV(i)(7), Art. VII(e), 99 Stat. 1842, 1914, 
1921-22.

List of Subjects in 10 CFR Part 1800

    Administrative practice and procedure, Hazardous waste, Radioactive 
materials.

Kevin McCarthy,
Chairman, Northeast Interstate Low-Level Radioactive Waste Commission.

    For the reasons set out in the preamble, the Commission establishes 
chapter XVIII, consisting of part 1800, in title 10 of the Code of 
Federal Regulations to read as follows:

CHAPTER XVIII--NORTHEAST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE 
COMMISSION

PART 1800--DECLARATION OF PARTY STATE ELIGIBILITY FOR NORTHEAST 
INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT

Sec.
1800.10   Purpose and scope.
1800.11   Definitions.
1800.12   Procedures for declaring a state eligible for membership 
in the Compact.
1800.13   Conditions for becoming an eligible party state.
1800.14   Modification to and enforcement of the rules in this part.

    Authority: Sec. 227, Art. IV(i)(7), Art. VII(e), Pub. L. 99-240, 
99 Stat. 1842, 1914, 1921-1922.


Sec. 1800.10  Purpose and scope.

    Pursuant to Articles IV.i.(1), (7), (15), and VII.e. of the 
Northeast Interstate Low-Level Radioactive Waste Compact (enacted by 
the ``Omnibus Low-Level Radioactive Waste Compact Consent Act of 
1985,'' Public Law 99-240, 99 Stat. 1842, Title I) (the ``Compact''), 
the Northeast Interstate Low-Level Radioactive Waste Commission (the 
``Commission'') establishes through this part the conditions that it 
deems necessary and appropriate to be met by a state requesting 
eligibility to become a party state to this Compact. The Commission 
shall apply these conditions to evaluate the petition of any state 
seeking to be eligible to become a party state pursuant to Article VII 
of the Compact.


Sec. 1800.11  Definitions.

    The definitions contained in Article II of the Compact and Article 
I.B. of the Commission's By Laws shall apply throughout this part. For 
the purposes of this part, additional terms are defined as follows:
    (a) By Laws refers to the Commission's By Laws as adopted and 
amended by the Commission pursuant to Article IV.c. and Article 
IV.i.(7) of the Compact, most recently amended on December 10, 1998, 
and dated July 1999;
    (b) Person means an individual, corporation, business enterprise or 
other legal entity, either public or private, and expressly includes 
states;
    (c) Nuclear power station means any facility holding a license from 
the U.S. Nuclear Regulatory Commission under 10 CFR Part 50.
    (d) Existing party states means Connecticut and New Jersey 
collectively.


Sec. 1800.12  Procedures for declaring a state eligible for membership 
in the Compact.

    (a) Any state seeking to become an eligible state under the Compact 
shall submit to the Chairman of the Commission six copies of a petition 
to become an eligible state. The petition shall discuss each of the 
conditions specified in Sec. 1800.13 and shall:
    (1) Affirm that the petitioning state fully satisfies each 
condition; or
    (2) Explain why the petitioning state does not or cannot fully 
satisfy any particular condition.
    (b) Upon receipt of a petition from any state seeking to become an 
eligible state under the Compact, the Commission shall publish a notice 
in accordance with Article I.F.1. of the By Laws and shall initiate an 
adjudicatory proceeding to act on the petition. Any person may submit 
written comments on a petition, and all such comments must be received 
by the Commission within 30 days of notice that a petition has been 
submitted.
    (c) The Commission shall evaluate the petition against the 
conditions for declaration of an eligible state specified in 
Sec. 1800.13. As part of the proceeding to evaluate a petition to 
become an eligible state, the Commission may, in its discretion, 
conduct a hearing pursuant to Article IV.i.(6) of the Compact and 
Article V.F.1. of the Commission's By-Laws. For good cause shown, the 
Commission may issue an order shortening the notice period for hearings 
provided in Article I.F.1. of the By Laws to a period of not less than 
ten days.
    (d) After review of the petition and after any hearing, if held, 
the Commission shall issue an order accepting or rejecting the petition 
or accepting the petition with conditions. If the Commission accepts 
the petition without conditions, the petitioning state shall be 
declared an eligible state and shall become a new party state upon 
passage of the Compact by its state legislature, repeal of all statutes 
or statutory provisions that pose unreasonable impediments to the 
capability of the state to satisfy the conditions for eligibility (as 
determined by the Commission) and payment of (or arrangement to pay) 
the fee specified in Article IV.j.(1). If the Commission accepts the 
petition with conditions, the petitioning state may become an eligible 
state by satisfying all of the conditions in the Commission's order and 
providing an amended petition incorporating its compliance with all of 
the conditions in this subpart and in the Commission's order. The 
Commission will consider the amended petition as part of the original 
adjudicatory proceeding and will issue a new order accepting or 
rejecting the amended petition.
    (e) A state that submits a petition for declaration as an eligible 
state that is rejected by the Commission may submit a new petition at 
any time. The Commission will consider the new petition without 
reference to the prior petition but may use evidence obtained in any 
prior proceeding to evaluate the new petition.
    (f) The Commission's consideration of a petition for declaration of 
an eligible state shall be governed by the Compact, the Commission's By 
Laws, and this part.


Sec. 1800.13  Conditions for becoming an eligible party state.

    The Commission shall evaluate a petition to become an eligible 
party state on the basis of the following conditions and criteria:
    (a) To be eligible for Compact membership, a state must agree that 
it will be the voluntary host state upon admission to the Compact and 
will continue to be the voluntary host state for a least that period of 
time until all currently licensed nuclear power stations within the 
region have been fully decommissioned and their licenses (including any 
licenses for storage of spent nuclear fuel under 10 CFR Part 72) have 
been terminated.
    (b) To be eligible for Compact membership, a state must agree that, 
so long as the petitioning state remains within the Compact, it will be 
the sole host state.
    (c) To be eligible for Compact membership, a state must warrant the 
availability of a regional disposal

[[Page 30836]]

facility that will accommodate 800,000 cubic feet of waste from 
generators located within the borders of the existing party states.
    (d) To be eligible for Compact membership, a state must agree to 
establish a uniform fee schedule for waste disposal at the regional 
disposal facility that shall apply to all generators within the region. 
That uniform fee schedule, including all surcharges (except new 
surcharges imposed pursuant to Article V.f.3. of the Compact), shall 
not exceed the average fees that generators within the existing party 
states paid for disposal at the Barnwell, South Carolina, facility at 
the end of calendar year 1999, adjusted annually based on an acceptable 
inflation index.
    (e) To be eligible for Compact membership, a state must agree with 
the existing states that regional generators shall be permitted to 
process or dispose of waste at sites outside the Compact boundaries 
based solely on the judgment and discretion of each regional generator.
    (f) To be eligible for Compact membership, a state must agree with 
the existing states that the Commission may authorize importation of 
waste from non-regional generators for the purpose of disposal only if 
the host state approves and such importation does not jeopardize the 
warranted availability of 800,000 cubic feet of disposal capacity for 
waste produced by generators within the existing party states. A new 
party state must agree that regional generators shall not pay higher 
fees than non-regional generators and that all books and records 
related to the establishment or collection of fees shall be available 
for Commission review.
    (g) To be eligible for Compact membership, in addition to the 
express limitations on non-host state and Commission liability provided 
in the Compact, a state must agree to indemnify the Commission or the 
existing party states for any damages incurred solely because of the 
new state's membership in the Compact and for any damages associated 
with any injury to persons or property during the institutional control 
period as a result of the radioactive waste and waste management 
operations of any regional facility. The petitioning state must agree 
that this indemnification obligation will survive the termination of 
the petitioning state's membership in the Compact.
    (h) To be eligible for Compact membership, a state must agree that 
any incentive payments made by the existing party states as an 
inducement for a state to join the Compact will be returned to the 
existing party states, with interest, on a pro rata basis if, for any 
reason, the regional disposal facility ceases to be available to 
generators in the existing party states for a period of more than six 
months (other than periods that have been expressly approved and 
authorized by the Commission) or is unavailable for disposal of 800,000 
cubic feet of waste from generators within the borders of the existing 
states. In the event of such unavailability, the new party state must 
agree to return the incentive payments based on the following schedule:
    (1) 75% of the incentive payment if the regional facility becomes 
unavailable prior to January 1, 2002;
    (2) 50% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2002, and prior to January 1, 2004;
    (3) 30% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2004, and prior to January 1, 2006;
    (4) 20% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2006, and prior to January 1, 2009;
    (5) 10% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2009, and prior to the time when all 
currently licensed nuclear power stations within the region have been 
fully decommissioned and their licenses (including any licenses for 
storage of spent nuclear fuel under 10 CFR Part 72) have been 
terminated.
    (i) To be eligible for Compact membership, a state must agree with 
the existing states that once a new party state has been admitted to 
membership in the Compact pursuant to the rules in this part, 
declaration of any other state as an eligible party state will require 
the unanimous consent of all members of the Commission.


Sec. 1800.14  Modification to and enforcement of the rules in this 
part.

    (a) Because of the importance of the conditions for declaration of 
an eligible state under the Compact, the rules in this part may only be 
modified, amended, or rescinded after a public hearing held pursuant to 
Article IV.i.(6) of the Compact and Article V.F.1. of the Commission's 
By Laws and by a unanimous vote of all members of the Commission.
    (b) Any party state may enforce the rules in this part by bringing 
an action against or on behalf of the Commission in the United States 
District Court for the District of Columbia pursuant to Article IV.n. 
of the Compact.
    (c) If, for any reason, any portion of the rules in this part shall 
be declared invalid or unenforceable, the remainder of the rules in 
this part shall remain in full force and effect.

[FR Doc. 00-12158 Filed 5-12-00; 8:45 am]
BILLING CODE 7595-01-P