Department of Energy Notice of Intent
to Conduct Policy Analysis
Request for Public Comment

Department of Energy
Notice for conducting an analysis
of its policy regarding
the disposal of LLW and MLLW
at commercial facilities.

[Federal Register: March 19, 1998 (Volume 63, Number 53)] [Notices][Page 13396-13398]
From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr19mr98-46]

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DEPARTMENT OF ENERGY

Notice of Intent to Conduct Policy Analysis; Request for Public Comment

AGENCY: Department of Energy.

ACTION: Notice of intent to conduct policy analysis; request for public comment.

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SUMMARY: Prior to 1979, the United States Department of Energy (``DOE'') routinely used commercial facilities for the disposal of its low-level radioactive waste (``LLW'') and mixed low-level radioactive waste (``MLLW''). In 1979, DOE decided to rely primarily on its own facilities for the disposal of these wastes, with only limited use of commercial facilities. While DOE still relies primarily upon its own facilities for the disposal of its LLW and MLLW, in recent years the Department's use of commercial disposal facilities has increased, and in the future greater use of commercial disposal facilities may occur as DOE proceeds with the cleanup of its sites. These developments have generated increased interest in the private sector in competing for DOE's LLW and MLLW disposal business. The Department is interested in encouraging competition for this business.

DOE has received two proposals from private entities for establishing LLW and MLLW disposal facilities at existing hazardous waste disposal sites. Neither of these proposals involves the establishment of a disposal facility pursuant to the Low-Level Radioactive Waste Policy Act. One proposal would have DOE regulate a commercial waste disposal facility through a disposal contract with the facility owner. The other proposal would have DOE pay for some or all of a commercial facility's maintenance before any LLW or MLLW is accepted, and would have DOE pay for the costs associated with obtaining licenses and appropriate regulatory approvals for the facility from the state in which the facility is located.

These proposals have prompted the Department to conduct an analysis of its policy regarding the disposal of LLW and MLLW at commercial facilities. As part of this analysis, the Department solicits comments from the public and interested organizations regarding its use of commercial disposal options for LLW and MLLW. The goal of this policy analysis is to assist the Department in determining whether to continue its use of existing, licensed commercial disposal facilities, pursue disposal options represented by either or both of these proposals, or in other respects change its policies or practices relating to the use of commercial facilities for the disposal of LLW and MLLW.

DATES: Comments are due by May 18, 1998. DOE will consider comments received by this date in its analysis of the commercial disposal of LLW and MLLW. Comments received after this date will be considered to the extent practicable.

ADDRESSES: The Department of Energy invites interested states, agencies, organizations, and the general public to comment on its use of existing, licensed commercial disposal facilities, the options represented by the proposals from Waste Control Specialists, LLC of Texas (``WCS'') and Laidlaw Environmental Services, Inc., of Colorado (``Laidlaw'') as described herein or on other aspects of the Department's policies or practices regarding the disposal of LLW and MLLW at commercial facilities. Written comments should be sent to: Mr. Jay Rhoderick, United States Department of Energy, EM-35, 19901 Germantown Road, Germantown, MD 20874-1290. Persons wanting to provide oral comments should call 1-800-635-4080.

FOR FURTHER INFORMATION CONTACT: Mr. Jay Rhoderick, United States Department of Energy, EM-35, 19901 Germantown Road, Germantown, MD 20874-1290, (301) 903-7174.

SUPPLEMENTARY INFORMATION:
Prior to 1979, DOE routinely used commercial facilities to dispose of its low-level radioactive waste and mixed low- level radioactive waste (waste that is both low-level radioactive waste and hazardous waste). Between 1975 and 1978, three of the six then- existing commercial facilities ceased operation. In addition, concerns were raised regarding the continued operation of the remaining three commercial disposal facilities. In 1979, DOE adopted a policy of disposing of its LLW and MLLW at its own sites to ensure uninterrupted disposal capabilities for its needs, while utilizing commercial facilities only on a case-by-case basis.

DOE's current policy concerning the disposal of LLW and MLLW is stated in DOE Order 5820.2A, Radioactive Waste Management (September 26, 1988). This Order provides that LLW and MLLW ``shall be disposed of on the site at which it is generated, if practical, or if on-site disposal capability is not available, at another DOE disposal facility.'' Pursuant to this Order, the Department must dispose of these wastes at a DOE facility unless an exemption is granted for disposal at a commercial facility. DOE may approve exemptions from this policy for ``[n]ew or alternate waste management practices that are based on appropriate documented safety, health protection, and economic analyses.'' Where an exemption is sought, the Department's policy requires that the proposed commercial disposal facility comply with all applicable Federal, state and local requirements, and that it have all of the necessary permits, licenses and approvals for disposal of the specific wastes involved, including a license to dispose of LLW and MLLW issued by the Nuclear Regulatory Commission (``NRC'') or by an Agreement State.1 The actual selection of a commercial facility for the disposal of DOE LLW and MLLW occurs in accordance with Federal procurement law. In addition, the state and state compact (as defined in the Low Level Radioactive Waste Policy Act) in which the commercial facility is located must be consulted before approval of the exemption and must be notified prior to the shipment of any waste. Exemptions allowing for the use of licensed, commercial facilities for the disposal of LLW and MLLW have been granted on a case-by-case basis.

Since the 1950's, DOE has disposed of approximately 3 million cubic meters of LLW from its weapons production activities in disposal facilities located at DOE sites and has sent approximately 200,000 cubic meters of such waste to commercial disposal facilities. DOE has disposed of approximately 40,000 cubic meters of MLLW from its weapons production activities primarily at commercial facilities. DOE's environmental restoration (cleanup) activities have increased significantly since the late 1980's. To date, the disposal of LLW and MLLW from DOE's environmental restoration activities has amounted to approximately 1.2 million cubic meters. Of this amount, approximately 250,000 cubic meters of high-volume low-activity environmental restoration waste have been disposed of at commercial facilities. Thus far, the commercial disposal of nearly all of this LLW and MLLW has occurred at one facility, Envirocare of Utah, Inc., (``Envirocare''). The Envirocare facility was licensed to dispose of LLW and MLLW by the State of Utah under the State's agreement with the NRC. DOE projects that future waste management and environmental restoration activities will generate approximately 31 million cubic meters of LLW and MLLW. The Department expects to dispose of the large majority of these wastes at DOE facilities. DOE projects, however, that of this 31 million cubic meters of LLW and MLLW, approximately two million cubic meters may be susceptible to disposal at commercial facilities under DOE's current policy.

WCS owns and operates a hazardous waste disposal facility in Andrews County, Texas. WCS has proposed to expand its business to include disposal of DOE LLW and MLLW. The State of Texas has authority to regulate certain activities involving radioactive materials, including the disposal of LLW, pursuant to an agreement with the NRC. Pursuant to that agreement, the State of Texas has licensed WCS to store, process and treat LLW and MLLW. Under Texas law, however, a radioactive waste disposal license may be issued only to a ``public entity'' specifically authorized by law for radioactive waste disposal. Because WCS is not a ``public entity,'' it is precluded from obtaining a license for radioactive waste disposal services from the State of Texas.

In an attempt to overcome this impediment, WCS submitted a proposal to DOE under which it believes it could dispose of DOE LLW and MLLW in Texas without a state license. Under the WCS proposal, the facility would operate under contract with DOE, would be regulated by DOE exercising its authority under the Atomic Energy Act of 1954, and would accept radioactive wastes only from DOE. The proposal further suggested that DOE would perform its regulatory role through a contract with an entity or group of entities with nuclear engineering and environmental expertise. At the end of the operational phase of the facility, title maintained by WCS would be transferred without cost to the Federal government or at the State's option to the State of Texas. 2

Laidlaw owns and operates an existing commercial hazardous waste disposal facility, Deer Trail, 70 miles east of Denver. Laidlaw is also exploring the potential of expanding its services to include the disposal of DOE LLW and MLLW, specifically from DOE's Rocky Flats Environmental Technology Site. Laidlaw's Deer Trail Facility is currently not licensed to accept LLW and MLLW for disposal. Like Texas, the State of Colorado regulates certain activities involving radioactive materials, including disposal, through an agreement with the NRC. Unlike Texas, however, Colorado does not restrict the ownership of such disposal facilities to ``public entities.''

Laidlaw's proposal is divided into two phases. Phase I would obligate the payment of Federal funds to Laidlaw in an amount that would pay for Laidlaw to maintain the facility in a condition ready to receive the waste, and reimburse Laidlaw for its expenses related to obtaining the necessary state licenses and permits to dispose of LLW and MLLW. (DOE could terminate Phase I by appropriate notice to Laidlaw at any time prior to the commencement of Phase II.) In exchange, Laidlaw would be obligated to construct an appropriate disposal cell at its facility to receive LLW and MLLW and commit to proceed with Phase II. Phase II would include the actual shipment of wastes to the Deer Trail Facility.

Comments are invited on the Department's current policy regarding the disposal of LLW and MLLW at existing, licensed commercial facilities under DOE Order 5820.2A, and on the options illustrated by the WCS proposal and the Laidlaw proposal, to assist the Department in determining whether to continue or change its existing policies related to the use of commercial facilities for the disposal of LLW and MLLW. The Department is particularly interested in receiving comments on other types of options it should consider in formulating future policies for the disposal of LLW and MLLW. If the Department's policy analysis results in a proposal that would require the preparation of an environmental analysis pursuant to the National Environmental Policy Act, an appropriate analysis will be prepared.

Dated: March 13, 1998.
James M. Owendoff,
Acting Assistant Secretary for Environmental Management.


 

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ENDNOTE
    \1\ The NRC may relinquish to states, by agreement, its authority to license and regulate certain activities, including LLW disposal facilities, as long as the state's standards to protect the public health and safety and the environment are equivalent to or more stringent than the NRC's corresponding standards. See 42 U.S.C. 2021(b), (d)(1), and (o)(2).

    \2\ WCS has filed suit against the Department in connection with its proposal. See Waste Control Specialists, LLC v. United States Department of Energy, et al, Civil Action No. 3:CV-93-1201-P (N.D. Texas 1997), appeal pending No. 97-11353 (5th Cir.). In this case, the district court entered orders granting WCS's motion for a preliminary injunction and denying the Department's motion to dismiss. The injunction has effectively prevented DOE from proceeding with the procurement of commercial disposal services for LLW and MLLW. The United States Court of Appeals for the Fifth Circuit granted the Department's request for expedited appeal from the injunction. Sixteen states have asked the appeals court for leave to file an amicus brief arguing that DOE's adoption of the WCS proposal is legally proscribed. Accordingly, the Department's policy analysis could be affected by, and may have to await the resolution of, this litigation.

    [FR Doc. 98-7155 Filed 3-18-98; 8:45 am] BILLING CODE 6450-01-P

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