[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

[[Page 13397]]

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.<SUP>1</SUP> 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.
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    \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).
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    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.<SUP>2</SUP>
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    \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.
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    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

[[Page 13398]]

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