[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]



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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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