SUBJECT:

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 20555

October 9, 1981

John Ahearne

H.R. 1993 - RADIOACTIVE WASTE RESEARCH, DEVELOPMENT,
AND POLICY ACT

The following are my comments on H.R. 1993 that I would like addressed in the Commission's comments.

a

Sec 7(d)(6), p. 19, lines 4-7: According to OGC ".
prima facie evidentiary showing..." means that the potential
intervenors are required to "prove" that they are right first. I
believe this is too restrictive. The "prima facie evidentiary"
standard should be replaced by requiring a showing that would
require reasonable minds to inquire further. I would also strike
the requirement for an affidavit from persons having personal
knowledge of the facts because this appears to be too high a
threshold.

Sec. 7(a)(2)-(4), pp. 16-18 and 7(d)(10)(A) & (B): This is the
"hybrid" concept proposed in the Senate Bill for spent fuel storage
expansion proceedings. I would urge it be used in several proceedings
so that the NRC can develop satisfactory procedures. It should not
be tried for the first time in the repository proceeding. In
addition, I believe the interim licensing provision is wrong for
the extremely controversial and very significant first repository.

Sec. 8(e)(2), p. 31, lines 3-4: "... the lawful decisionmaking
deadlines for the agencies concerned." We should take exception,
and note that the Commission should not be included.

Sec. 10(e) Engineered Barriers, p. 35: The performance requirements
of engineered barriers for a TE facility would be very much different
from those for a permanent repository. Is this subsection meant to
indicate that the TE facility would be expanded into a full repository?
We should seek clarification of the intent.

Sec. 10(g), p. 36: Note that "concurrence" is not part of the
Commission's role on the TE facility. We should suggest the
Senate language.

Sec. 10(g)(6), p. 38, lines 15-18: We should seek clarification of
the intent of this paragraph. As written, it is ambiguous since
(1) there are no demonstration waste facilities mentioned in
Section 202 and (2) the R&D facilities in 202 are for waste generated
by the Administration (i.e., defense waste).

Sec. 15(b), p. 45: An imposition of such licensing conditions is inappropriate until the DOE receives a license to operate the repository or, at least, construction authorization for it.

Regarding staff comments on Section 6(b) (page 2 of staff comments): "Site Characterization Report" is a term used in our regulations, which really is a site characterization plan. Therefore, to clarify our comments and avoid implying the Site Characterization Report is a report on the activities identified as Site Characterization in Section 6 of the bill, we should add the phrase "required by 10 CFR 60.11" after the term "Site Characterization Report."

Regarding the staff comments on 10(d) (bottom of page 5 of staff comments), I disagree with staff's apparent belief NRC must authorize T&E facilities. The Commission has not agreed with this position.

Finally, I would incorporate one general comment: The sweeping scope of this bill deserves more time for review than we have had (at least at the Commission level). In particular, one day to review the staff positions is inadequate. Consequently we should describe our comments as preliminary and promise to forward additional comments if appropriate.

CC: Chairman Palladino

Commissioner Gilinsky
Commissioner Bradford
Commissioner Roberts

OGC

OPE

EDO

FOR THE RECORD:

SECTION. 2. DEFINITIONS

OTA STAFF COMMENTS

COMMENTS ON THE BOUQUARD/LUJAN DRAFT,

"HIGH LEVEL RADIOACTIVE WASTE MANAGEMENT
AND POLICY ACT" BY THE STAFF OF THE
OFFICE OF TECHNOLOGY ASSESSMENT

(5) "Disposal"

If it is the intention of the committee to make a clear and totally unambiguous commitment to the development of a geologic disposal system in which long-term protection is provided by the action of a system of engineered and naturally occurring barriers (as suggested in Sec. 10(a)(3)), the definition of disposal in the draft may need revision since it could encompass emplacement of waste in a surface storage facility that require permanent care and maintenance. The following definition of disposal could greatly clarify the committee's intent and eliminate the current confusion between "storage" and "disposal":

The term "disposal" means the emplacement of

radioactive waste in such a place and manner that

permanent isolation will be provided by the action of

engineered and naturally occurring barriers, with no

need for continued human control, monitoring, and

maintenance.

This definition is objective, in that it is based on the design characteristics of the system to which it refers, rather than on the intent with which the waste is emplaced, a subjective criterion which cannot be directly observed from inspection of the facility receiving the waste.

This definition is in accord with the normal English use of the word "disposal" which has the sense of "getting rid of" and giving up control over that which is disposed of; placing waste in a facility that requires perpetual

care can not be seen as "getting rid" of it, and can more appropriately be referred to as storage.

The following would be a definition of storage that is consistent with

the suggested definition of disposal:

The term "storage" means the emplacement of waste in

such a way that direct human control and access are
maintained and the waste can be recovered.

Note that this definition, like the definition of disposal, refers only to the observable properties of the system rather than to the intentions of those. using it.

These definitions address what appears to be the basic value judgment to be made: whether or not a system that relies on human control and maintenance to ensure adequate isolation of the wastes is acceptable as an ultimate solution to the waste problem. The bill as it stands is quite ambiguous on this point. If the definition of disposal remains as stated in the draft, it appears possible that the Department of Energy could satisfy most, if not all, the requirements of the bill by constructing a near-surface storage facility that required continued human control and maintenance to ensure adequate permanent isolation of the wastes from the biosphere. If it is not the intention of the committee to retain that much ambiguity, a more precise definition appears to be necessary.

(11) "Repository"

Taken together with the bill's definition of disposal, this definition of a repository would fit a monitored surface storage facility as well as a mined

geologic disposal facility. If the alternate definition of disposal is used, it would exclude the former.

SECTION 4. APPLICATION

The exclusion of defense waste repositories from the provisions of the bill may cause concern in some quarters.

For example, the State Planning

Council in its final report to the President recommended that "the program authorized by Congress should apply to all high-level and transuranic wastes regardless of their source. We will not gain public acceptance for a national repository program if the American people perceive that different programmatic and institutional procedures have been put in place for the disposal of wastes which, from the persective of public health and safety, are essentially the same." At the same time, this exclusion may be needed to break the current stalemate and get on with the job of dealing with the civilian waste problem. OTA's discussions with concerned parties on this subject suggest that such concerns might be alleviated to some (perhaps a considerable) extent if provisions were made to allow those responsible for defense waste management to sign contracts to purchase space in civilian repositories on the same basis as the utilities. This would be analagous to the current situation in which military and civilian space programs are institutionally separate, but in which the military can purchase services (e.g., use of the space shuttle) from NASA. In such a situation, the questions concerning strictly defense repositories would be moot until and unless these responsible for military waste decided to build one of their own.

This approach could be financially advantageous to the defense waste program, which could buy into the civilian program on an annual basis, rather than having to incur the large front end capital costs of developing a separate defense repository system. For the same reason, it could allay some