April 20, 1993

ATTORNEY GENERAL OPINION NO. 93- 54

The Honorable Delbert L. Gross

State Representative, 111th District

2405 Indian Trail

Hays, Kansas 67601

The Honorable Laura McClure

State Representative, 119th District

202 S. 4th

Osborne, Kansas 67473

Re:	Public Health -- Central Interstate Low-Level Radioactive Waste Compact -- Central Interstate Low Level Radioactive Waste Compact; Storage of Low Level Radioactive Waste

Militia, Defense and Public Safety -- Nuclear Energy Development and Radiation Control Act -- Declaration of Policy; Construction of Act; Storage of Low Level Radioactive Waste

Synopsis:	Low-level radioactive waste is a subject area governed by the United States nuclear regulatory commission. The commission has issued various guidelines for the storage of low-level radioactive waste. However, any generator planning to store such waste on site must meet all applicable licensing requirements of the federal government. Cited herein: K.S.A. 1992 Supp. 48-1601; K.S.A. 1992 Supp. 65-3430; K.S.A. 65-34a01; K.A.R. 28-35-134.

* * *

Dear Representative Gross and Representative McClure:

You have posed several questions concerning the storage of low-level radioactive waste (LLW).

First you ask what state and federal law or regulations govern the length of time that a generator may store LLW on-site.

Kansas does not have statutes which control the length of time that LLW can be stored on site. See K.S.A. 1992 Supp. 48-1601 et seq.; K.S.A. 65-3430 through 65-3449; 65-34a01 et seq. Additionally, Kansas regulations concerning radioactive waste shall not "apply to any person to the extent that the person is subject to a regulation by the United States nuclear regulatory commission." K.A.R. 28-35-134.

As noted by the above-quoted regulation, storage of radioactive waste comes under the jurisdiction of the United States nuclear regulatory commission (NRC). Even though Kansas is a compact agreement state pursuant to K.S.A. 65-34a01, our radioactive waste storage is still regulated by the federal government. 10 CFR sec. 150.15 provides that:

"(a) Persons in agreement states are not exempt from the Commission's [NRC] regulatory requirements with respect to the following activities:

"(1) The construction and operations of any production or utilization facility. As used in this subparagraph, operation of a facility includes, but is not limited to (i) the storage and handling of radioactive waste. . . ." (Emphasis added).

However, the NRC has not set specific limits for the amount of time a generator can store LLW on-site.

"The Low-Level Radioactive Waste Policy Amendments Act of 1985 (P.L. 99-
240) established a series of milestones, penalties and incentives to ensure that States or Regional Compacts make adequate progress toward being able to manage their LLW by 1993." NRC Information Notice No. 90-09.

These are merely guidelines and no specific time periods have been set.

Despite the lack of specific regulations, the NRC still maintains control over the storage of LLW on-site through its licensing requirements. See 10 CFR Parts 30, 40, 50. In reading the licensing regulations, it is apparent that there are no established time limits for length of storage of LLW on-site. The NRC, though, is aware the storage occurs. It believes that storage should only be temporary and that it should be shipped to disposal sites to the "maximum extent practicable." NRC Generic Letter 85-14.

The NRC is aware of the problems that have occurred in the development of the regional disposal sites. In light of these problems, it has allowed waste generators to amend their licenses to accommodate increased storage. NRC Information Notice No. 90-09. The concern you expressed about a five year limit was probably created because LLW licensees are required to request amendments to their licenses for long-term storage. These long-term storage licenses are granted if (1) the facility is not prohibited from increasing storage, (2) no safety questions are unreviewed and (3) the increased storage sought does not exceed the waste generated in a five year period. NRC Generic Letter No. 81-38. If the license is granted it is for a five-year period. Id. However, the license is renewable. Id.

The second question you addressed to us concerns whether one LLW generator could store waste of other LLW generators at one site. This area would again fall under the NRC's jurisdiction. 10 C.F.R. sec. 150.15(a)(1). If a facility were already licensed to store one type of waste, it would need to obtain an amendment from the NRC to store other types of LLW.

It should be noted that the NRC is opposed to turning nuclear reactor sites into areas of commercial storage. NRC Generic Letter No. 85-14. However, in Letter No. 85-14 the agency has provided that it would consider licensee proposals for storage of other types of LLW at a generator site. Id. Any other waste storage would have to meet NRC licensing requirements. Id.

In conclusion, the NRC has set no specific regulations concerning storage of LLW. However, any storage is subject

to NRC control through licensing requirements. Any license amendments for long-term storage must be renewed every 5 years.

Very truly yours,

ROBERT T. STEPHAN

ATTORNEY GENERAL OF KANSAS

Camille Nohe

Assistant Attorney General

RTS:JLM:CN:bas