State legislation regarding disposal of LLRW.

Rough and incomplete draft - Harmon D. Maher Jr

Title 194 RULES AND REGULATIONS FOR THE DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE - Department of Environmental Quality

As one might expect, this legislation is long and complex. What follows is a selective discussion of aspects of the rules and regulations that seem significant in how this case history played out.

Chapter 1 ­ Definitions:
One definition that was the focus of a court case is cited below. U.S. Ecology was going to fill in part of a depression, and the State sued to stop this. One might wonder what is meant legally by substantial?
008 "Commencement of construction" means any clearing of land, excavation, or other substantial action that may affect the environment of a facility. The term does not include disposal site exploration, necessary roads for disposal site exploration, borings to determine foundation conditions, or other preconstruction monitoring or testing to establish background information related to the suitability of the disposal site or the protection of environmental values.
Some definitions that might have been important were missing, such as a definition for wetlands.

Chapter 3- Licensing:
The section below from the licensing section speaks to a political fear that if our compact was one of the first to develop a site, it would become the default site for other states. So the state had a provision to address this fear, a provision that would then make it politically easier to accept a site. However, it may be that this provision is legally challengeable (as it would interfere with interstate commerce.)
"010.11A Unless an emergency exists, the licensee shall not accept waste from outside the Compact region without prior approval by the Nebraska Legislature. Emergency, as used in this section, means disposal facility access which may be granted by the U.S. Nuclear Regulatory Commission, that upon a determination that such access is necessary to eliminate an immediate and serious threat to the public health and safety or the common defense and security which cannot be mitigated consistent with the public health and safety by any alternative, including storage of low-level radioactive waste at the site of generation or in a storage facility obtaining access to a disposal facility by voluntary agreement, purchasing disposal capacity available for assignment pursuant to section 5(c), Public Law 99-240, January 1986, or ceasing activities that generate low-level radioactive waste."
This section does also state that the licensee be financially capable, but refers to Chapt. 6 for details.

Chapter 5 ­ Technical Requirements for Facilities
This section focused on site suitability, site design, site operation and closure, site monitoring, the nature of the waste that was being disposed, and labeling. The site suitability requirements include aspects of population growth and human use, the hydrology and geohydrology of the site, the tectonics, surface process such as mass wasting and erosion. These considerations are the basic ones often considered in waste disposal siting.
The two sections quoted below are significant in that they provided the basis on which the state denied the license. It seems clear that there was evidence that the Boyd County site violated these portions of the regulation. In his decision Kopf focused on the fact that in earlier evaluations Nebraska did not identify this as a problem, and only identified it as such at the very end.
"001.01E The disposal site shall be well drained and free of areas of flooding or frequent ponding. Waste disposal shall not take place in a 100-year flood plain or wetland as defined in Executive Order 11988, 'Floodplain Management Guidelines."
001.01G The disposal site shall provide sufficient depth to the water table that ground water intrusion, perennial or otherwise, into the waste will not occur. In no case will waste disposal be permitted in the zone of fluctuation of the water table."

. Section 2.01A and B specify that shallow burial is out and an above-ground design must be used.
"002.01A Disposal design which uses traditional shallow land burial as used prior to 1979 is not acceptable.
002.01B Disposal design shall include above-ground disposal or other technology which contains one or more engineered, artificially constructed barriers to isolate the waste from the surrounding environment."
The rational for or the intent of a rule/regulation in legal documents is often missing. From a legal perspective, to preserve clarity, this might make sense. However, sections can also be considered as scientific and engineering documents (e.g.). In this case, the rationale or a statement of intent may help in both implementation and evaluation. The state clearly mandated above ground vaults.
One small aspect of interest about the waste is that provision are made for "waste in gaseous form". Commonly modeling addresses the movement of leachates and fluid wastes, but gases would migrate much more quickly. How much such gaseous waste might there be? What types of containers

Chapt 6 ­ FINANCIAL ASSURANCE AND INSURANCE

Nebraska clearly doesn't want to be left holding the bag if the licensee defaults or folds, as the section quoted below demonstrates. This is a common concern. The State of Montana now is responsible for cleaning up significant contamination left by past mining activity. A standard approach is to require the company to post a bond that will be sude for clean-up if they default or fold. Nebraska requires such a bond for the Uranium mining that occurs near Crawford, Nebraska. However, in practice these bonds have been to small to cover clean-up costs.

"001 Applicant qualifications and assurances for operational period.
Each applicant shall show that it either possesses the necessary funds or has written assurance of obtaining the necessary funds, or by a combination of the two, to cover the estimated costs of conducting all licensed activities over the planned operating life of the facility, including costs of construction and disposal, and estimated costs for corrective action or cleanup on real or personal property on and off-site if a release occurs. Financial or surety arrangements include those specified in 002.08 below and shall be submitted annually to the department for review to assure that sufficient funds will be available for the activities described in this section."

Interestingly, this section appears somewhat vague, with no mention of minimal amounts, or statements about the required financial status of the licensee. The main thrust seems to require written assurance from the licensee that they will cover a potential cost for clean-up as estimated by the DEQ. Kopf focused on how U.S. Ecology had reduced and almost eliminated its debt as a major indication of meeting the financial requirements.

Summary impression: While some parts are unclear, and for some parts the intent or rationale behind a specific rule or regulation not evident, I did not find any evidence that the process was set up to produce an outcome of license denial. It seems overall a 'fair' process, with the state taking an appropriate cautions role.