Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices 62377

1SECY 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.

2NRDC 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.’’

4The 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.

5The 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.

6See 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.

7The 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).]

8There 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.

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

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

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

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

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 longterm 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

62378 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

9As noted below, there have not been any

subsequent Congressional authorizations.

10Neither 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). 11 Id. at 12345.

expressly authorized for long-term

storage.[Id. at 554.] 9

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 longterm 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.

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

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 lowactivity fraction resulting from pretreatment. 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

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices 62379

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).]

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

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]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

Reactor Oversight Process Initial

Implementation Evaluation Panel

Meeting Notice

Pursuant to the Federal Advisory

Committee Act of October 6, 1972 (Pub.

L., 94–463, Stat. 770–776) the U.S.

Nuclear Regulatory Commission (NRC),

on October 2, 2000, announced the

establishment of the Reactor Oversight

Process Initial Implementation

Evaluation Panel (IIEP). The IIEP will

function as a cross-disciplinary

oversight group to independently

monitor and evaluate the results of the

first year of implementation of the

Reactor Oversight Process (ROP). A

Charter governing the IIEP functions as

a Federal Advisory Committee is being

filed on October 16, 2000, after

consultation with the Committee

Management Secretariat, General

Services Administration. The IIEP will

hold its first meeting on November 1–

2, 2000, in Conference Room T–8A1,

Nuclear Regulatory Commission, 11545

Rockville Pike, Rockville, Maryland.

The IIEP meeting participants are listed

below along with their affiliation:

A. Randolph Blough—U.S. Nuclear

Regulatory Commission

R. William Borchardt—U.S. Nuclear

Regulatory Commission

Kenneth Brockman—U.S. Nuclear Regulatory

Commission

Steve Floyd—Nuclear Energy Institute

David Garchow—PSEG Nuclear LLC

Richard Hill—Southern Nuclear Operating

Company

Rod Krich—Commonwealth Edison

Company

Robert Laurie—California Energy

Commission

David Lochbaum—Union of Concerned

Scientists

James Moorman, III—U.S. Nuclear Regulatory

Commission

Loren Plisco—U.S. Nuclear Regulatory

Commission

Steven Reynolds—U.S. Nuclear Regulatory

Commission

A. Edward Scherer—Southern California

Edison Company

James Setser—Georgia Department of Natural

Resources

James Trapp—U.S. Nuclear Regulatory

Commission

A tentative agenda of the meeting is outlined

as follows:

November 1, 2000

1:00–1:20—Welcome & Opening Remarks

—Introduction of Committee Members

1:20–1:40—Role of Independent Advisory

Committees

1:40–2:00—Legal Requirements of FACA

Committees

2:00–3:00—IIEP Charter

—Discussion of Proposed Bylaws

3:00–3:15—Break

3:15–3:30—Administrative Support for

FACA Committee

3:30–3:45—Lessons Learned and Best

Practices from the Pilot Program

Evaluation Panel

3:45–4:00—Current Status of the Reactor

Oversight Process

4:00–5:00—Overview of Staff Performance

Measures

Thursday, November 2, 2000

8:00–10:15—Detailed Discussion of Staff

Performance Measures

10:15–10:30—Break

10:30–12:00—Detailed Discussion of Staff

Performance Measures

12:00–12:45—Lunch

12:45–3:15—IIEP Discussion on

Acceptability of Staff Performance

Measures

3:15–3:30—Break

3:30–4:30—Agenda Planning

Meetings of the IIEP are open to the

members of the public. Formal procedures

for the conduct of the Panel meetings will be

developed during the November 1–2, 2000

meeting. In the interim, at the November 1–

2, 2000, meeting, oral or written views may

be presented by the members of the public,

including members of the nuclear industry.

Persons desiring to make oral statements

should notify Mr. Loren R. Plisco (Telephone

404/562–4501, e-mail LRP@nrc.gov) or Mr.

John D. Monninger (Telephone 301/415–

3495, e-mail JDM@nrc.gov) five days prior to

the meeting date, if possible, so that

appropriate arrangements can be made to

allow necessary time during the meeting for

such statements. Use of still, motion picture,

and television cameras will be permitted

during this meeting.

Further information regarding topics of

discussion; whether the meeting has been

canceled, rescheduled, or relocated; and the

Panel Chairman’s ruling regarding requests to

present oral statements and time allotted,

may be obtained by contacting Mr. Loren R.

Plisco or Mr. John D. Monninger between

8:00 a.m. and 4:30 p.m. EDT.

IIEP meeting transcripts and meeting

reports will be available from the

Commission’s Public Document Room.

Transcripts will be placed on the agency’s

web page when a web site for the IIEP is

established.

Dated: October 12, 2000.

Andrew Bates,

Advisory Committee Management Officer.

[FR Doc. 00–26760 Filed 10–17–00; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

Advisory Committee on Reactor

Safeguards

Subcommittee Meeting on Planning

and Procedures; Notice of Meeting

The ACRS Subcommittee on Planning

and Procedures will hold a meeting on

October 31, 2000, Room T–2B1, 11545

Rockville Pike, Rockville, Maryland.

The entire meeting will be open to

public attendance, with the exception of

a portion that may be closed pursuant

to 5 U.S.C. 552b(c) (2) and (6) to discuss

organizational and personnel matters

that relate solely to internal personnel

rules and practices of ACRS, and

information the release of which would

constitute a clearly unwarranted

invasion of personal privacy.

The agenda for the subject meeting

shall be as follows: Tuesday, October

31, 2000—1:00 p.m. until the conclusion

of business.

The Subcommittee will discuss

proposed ACRS activities and related

matters. The purpose of this meeting is

to gather information, analyze relevant

issues and facts, and to formulate

proposed positions and actions, as

appropriate, for deliberation by the full

Committee.

Oral statements may be presented by

members of the public with the