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Part 382: Regulation Of Low-Level Radioactive Waste Disposal Facilities - Page 1

(Statutory authority : Environmental Conservation Law, Parts. 3, 17, 19, 27, 29)

[Effective September 6, 2006]


[page 1 of 2] Pages in this Part:Section 1 to Section 29

Contents:

Sec.

§382.1 Applicability

(a) The regulations in this Part establish requirements for land disposal facilities used for permanent disposal of low-level radioactive waste. Land disposal facilities that meet the requirements of this Part may also be used for disposal of NARM waste pursuant to Part 383 of this Title. Except for Section 382.6(a) and Sections 382.6(c) through (g) of this Part, "Certification of Proposed Site(s) and Method(s)," and as provided in Section 382.4 of this Part, "Variances and Exemptions," this Part applies to any person who operates or proposes to operate a land disposal facility in New York State.

(b) Section 382.6(a) and Sections 382.6(c) through (g) of this Part, "Certification of Proposed Site(s) and Disposal Method(s)," apply only to the Commission for Siting Low-Level Radioactive Waste Disposal Facilities as authorized by Section 29-0301 of the Environmental Conservation Law.

(c) The regulations in this Part do not apply to:

(1) disposal of high-level radioactive waste, as defined by 42 U.S.C. Section 10101(12) (see subsection 382.99 of this Part);

(2) disposal of transuranic wastes;

(3) disposal of the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content in quantities greater than 10,000 kilograms (approximately 11 tons) containing more than five (5) millicuries of Radium-226;

(4) disposal of licensed radioactive material pursuant to 6 NYCRR Part 380; or

(5) disposal of naturally-occurring radioactive material unless it has been processed and concentrated.

(d) Compliance with these regulations does not relieve the Commission or the owners or operators of the disposal facility from other applicable state and federal laws and regulations.

§382.2 Definitions

(a) As used in this Part, the following terms shall have the meanings indicated:

(1) "Aboveground disposal" means the disposal of low-level radioactive waste in engineered structures built such that all waste is placed above final grade with no natural material cover until facility closure. Aboveground disposal includes, but is not limited to, the use of aboveground vaults.

(2) "Active agricultural use" means lands used for agricultural purposes no less than two of the five years prior to the date on which the site characterization required by Section 382.6(b) of this Part begins.

(3) "Active maintenance" means any significant activity needed during the period of institutional control to maintain a reasonable assurance that the performance objectives of Sections 382.10 - 382.15 of this Part are met. Such active maintenance includes ongoing activities such as the pumping and treatment of water from a disposal unit or one-time measures such as repair or replacement of all or part of a disposal unit. Active maintenance does not include custodial activities such as fence repair, replacement or repair of monitoring equipment, revegetation, minor additions to soil cover, minor repair of disposal unit covers, and general disposal site upkeep such as mowing grass.

(4) "Advisory committee" means the advisory committee on siting and disposal method selection for permanent disposal facilities established pursuant to Section 29-0501 of the Environmental Conservation Law.

(5) "As low as reasonably achievable" means as low as reasonably achievable taking into account the state of technology, and the economics of improvements in relation to:

(i) benefits to the environment and public health and safety,

(ii) other societal and socioeconomic considerations, and

(iii) the utilization of radioactive materials in the public interest.

(6) "Belowground disposal" means the disposal of low-level radioactive waste such that all waste is placed totally below final grade in engineered structures which are located within the upper 30 meters of the earth's surface, and are covered with natural material. Belowground disposal methods include, but are not limited to, buried vaults, lined augured holes, and earth mounded bunkers.

(7) "Buffer zone" means a portion of the disposal site that is controlled by the licensee and that lies under the disposal units and between the disposal units and the boundary of the site.

(8) "Certification" means a decision issued by the department pursuant to article 29 of the Environmental Conservation Law and Section 382.6 of this Part to the effect that one or two proposed disposal sites and the disposal method or methods proposed for use at such site or sites are in conformance with the applicable provisions of this Part.

(9) "Class A waste" means low-level radioactive waste classified as Class A pursuant to Section 382.80 of this Part.

(10) "Class B waste" means low-level radioactive waste classified as Class B pursuant to Section 382.80 of this Part.

(11) "Class C waste" means low-level radioactive waste classified as Class C pursuant to Section 382.80 of this Part.

(12) "Closure" means "Site closure and stabilization."

(13) "Commission" means the Commission for Siting Low-Level Radioactive Waste Disposal Facilities established pursuant to Section 29-0301 of the Environmental Conservation Law.

(14) "Curie" or "Ci" means that amount of radioactive material which disintegrates at the rate of 37 billion atoms per second.

(15) "Department" means the New York State Department of Environmental Conservation.

(16) "Disposal" means the isolation of radioactive wastes from the biosphere inhabited by humans and containing their food chains by emplacement in land disposal facilities.

(17) "Disposal site" or "site" means that portion of a land disposal facility which is used for disposal of waste. It consists of disposal units and a buffer zone.

(18) "Disposal unit" means a discrete structure of the disposal site into which waste is placed for disposal.

(19) "Dissolution" means a space or cavity in or between rocks, formed by the solution of part of the rock material.

(20) "Dose" means that quantity of ionizing radiation in rems absorbed, per unit mass, by any body tissue. Reference to a dose during a specific period of time means the total quantity of radiation so absorbed during such period.

(21) "Engineered barrier" means a man-made structure or device that is intended to improve the land disposal facility's ability to meet the performance objectives in Sections 382.10 - 382.15 of this Part.

(22) "Environmental Conservation Law" or "ECL" means Chapter 43-B of the Consolidated Laws of New York.

(23) "Explosive material" means any chemical compound, mixture, or device, which produces a substantial instantaneous release of gas and heat spontaneously or by contact with sparks or flame.

(24) "Final grade" means the grade surrounding the disposal unit after disposal unit closure.

(25) "Geologic unit" means the geologic media in which an under ground mined repository is constructed.

(26) "Hydrogeologic unit" means any soil or rock unit or zone which, by virtue of its porosity and permeability, or lack thereof, has a distinct influence on the storage or movement of groundwater.

(27) "Inadvertent intruder" means a person who might occupy the disposal site after closure and engage in normal activities, such as agriculture, dwelling construction, or other pursuits in which the person might unknowingly be exposed to radiation from the low-level radioactive waste.

(28) "Inadvertent intrusion" means the act of occupying the disposal site after closure and engaging in normal activities, such as agriculture, dwelling construction, or other pursuits in which a person might unknowingly be exposed to radiation from the low-level radioactive waste.

(29) "Institutional control period" means a period of time after closure of the land disposal facility during which the state maintains control of access to the site and carries out a program including environmental monitoring, periodic surveillance, and minor custodial care.

(30) "Intruder barrier" means an engineered structure or a sufficient depth of cover over the low-level radioactive waste or disposal units that inhibits contact with the waste and helps to ensure that radiation exposures to an inadvertent intruder will meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(31) "Land disposal facility" means the land, buildings, and equipment which are intended to be used for the disposal of low-level radioactive waste into the subsurface of the land.

(32) "License" means a license to operate a low-level radioactive waste land disposal facility issued pursuant to Title 12, Part 38, of the Codes, Rules, and Regulations of the State of New York.

(33) "Licensee" means the holder of a license to operate a low-level radioactive waste land disposal facility issued pursuant to Title 12, Part 38, of the Codes, Rules, and Regulations of the State of New York.

(34) "Low-level radioactive waste" or "waste" means those low-level radioactive wastes that are acceptable for disposal in a land disposal facility pursuant to the provisions of this Part. For the purpose of this Part, low-level radioactive waste has the same meaning as in the federal Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. Section 2021b, et seq. (see Section 382.99 of this Part) that is, radioactive material that:

(i) is not classified as high-level radioactive waste, spent nuclear fuel, or byproduct material as defined in Section 11e(2) of the Atomic Energy Act (see Section 382.99 of this Part); and

(ii) is classified as low-level radioactive waste consistent with federal law and in accordance with paragraph (1) above by the U.S. Nuclear Regulatory Commission.

(35) "Major natural phenomena" means rarely occurring natural events such as tornados, hurricanes, floods, wildfires, vulcanism, and earthquakes.

(36) "Mass wasting" means the movement of rock or soil material under the influence of gravity either as the movement of the products of weathering down a slope or as a mass movement of rock or soil along joint planes or bedding planes. Mass wasting includes but is not limited to creep, mud flows, earth flow, soil flow, rock avalanche, landslide, land slip and slumping.

(37) "Microcurie" means one one-millionth (0.000001) of a curie.

(38) "Millicurie" means one one-thousandth (0.001) of a curie.

(39) "Millirem" (abbreviated mrem) means one one-thousandth (0.001) of a rem.

(40) "Minimize" means to reduce to the least quantity or degree which can reasonably be attained, taking into account,

(i) the state of technology,

(ii) the benefits to be gained from any possible further reduction, and

(iii) the impacts of the measures or efforts required to achieve any possible further reduction.

(41) "Mixed low-level radioactive and hazardous waste" means waste that satisfies the definition of low-level radioactive waste in this Part and contains hazardous waste designated pursuant to ECL Article 27, Title 9 that either:

(i) is listed as a hazardous waste in Part 371.4 of this title; or

(ii) causes the low-level radioactive waste to exhibit any of the hazardous waste characteristics identified in Part 371.3 of this title.

(42) "Model" means a conceptual description and the associated mathematical, graphical, and/or analogous representation of a system, subsystem, component, or condition that is used to predict changes from a baseline state as a function of internal and/or external stimuli and as a function of time and space.

(43) "Monitoring" means observing and making measurements to provide data to evaluate the performance and characteristics of the disposal site.

(44) "Nanocurie" means one one-billionth (0.000000001) of a curie.

(45) "Natural characteristics" means the elements which comprise the physical and biological environment, including the ecology, geochemistry, geology, hydrology, meteorology and climate, and seismology. These elements also include natural resources with agricultural, cultural, economic, recreational, and scenic values.

(46) "Naturally-occurring and accelerator produced radioactive material" or "NARM" means any radioactive material that can be considered naturally- occurring and is not source, special nuclear, or by product material or that is produced in a charged particle accelerator.

(47) "NARM waste" means all putrescible and non-putrescible material or substances containing NARM that are discarded or rejected as spent, useless, worthless, or in excess to the owner at the time of such discard or rejection.

(48) "Person" means any individual; public, private, or government corporation; joint stock company; industry; partnership; co-partnership; firm; association; trust; estate; public or private institution; group; government agency, department or bureau of the state, or political subdivision thereof; and any legal subsidiary, successor, representative, agent, or agency of the foregoing, or any other legal entity whatsoever.

(49) "Primary public water supply aquifer" means a highly productive water bearing formation identified by the Department consisting of unconsolidated (non-bedrock) geologic deposits, which:

(i) receives substantial recharge from the overlying land surface; and

(ii) is presently utilized as a major source of water for public water supply, including, but not limited to, the following aquifers: Endicott-Johnson City; Ramapo-Mahwah River Valleys; Irondogenesee-Buried Valley; Jamestown; Elmira-Horseheads-Big Flats; Clifton Park-Halfmoon; Olean-Salamanca; Croton-on-Hudson; Owego-Waverly; Cohocton River; Tonawanda Creek; Seneca River; Corning; Fishkill-Sprout Creek; Fulton; South Fallsburg-Woodbourne; Schenectady; and Cortland-Homer-Preble;

(50) "Principal aquifer" means unconsolidated (non-bedrock) geologic deposits identified by the Department which:

(i) receive substantial recharge from the overlying land surface;

(ii) are known to be highly productive or whose geology suggests a potentially abundant source of water; and

(iii) are not presently used as a major source of water for public water supply.

(51) "Pyrophoric" means, when referring to a liquid, any liquid that ignites spontaneously in dry or moist air at or below 130 F (54.4 C). A pyrophoric solid is any solid material, other than one classified as an explosive, which, under normal conditions, is liable to cause fires through friction, retained heat from manufacturing or processing, or which can be ignited readily and, when ignited, burns so vigorously and persistently as to create a serious transportation, handling, or disposal hazard. Included are spontaneously combustible and water-reactive materials.

(52) "Quality assurance" means those planned and systematic actions to ensure that a product, facility, or operation meets or exceeds desired performance criteria and the documentation to verify that the results have been obtained. Quality assurance includes quality control.

(53) "Recovery" means removing from a disposal unit waste that has been permanently disposed in a land disposal facility.

(54) "Rem" means a unit of dose equivalent for any type of ionizing radiation absorbed by body tissue in terms of its estimated biological effect relative to an exposure of one roentgen of x- or gamma rays. The dose equivalent in rems is numerically equal to the absorbed dose in rads multiplied by the quality factor, distribution factor, and any other necessary modifying factors.

(55) "Retrieval" means recovery of waste in an intact container.

(56) "Site closure and stabilization" or "closure" means those actions that are taken upon completion of operations that prepare the disposal site for custodial care and that assure that the disposal site will remain stable and will not need ongoing active maintenance.

(57) "Shallow land burial" means emplacement of low-level radioactive waste in or within the upper 30 meters of the surface of the earth in trenches, holes, or other excavations:

(i) in which only soil provides:

(a) structural integrity,

(b) a barrier to migration of low-level radioactive waste from or subsurface water into such excavation, or

(c) a barrier to entry of surface water to such excavation; or

(ii) in a manner that fails to allow for monitoring and control of releases of radioactivity during the institutional control period.

(58) "Slumping" means a landsliding characterized by movement of a generally independent mass of rock or earth along a slip surface and about an axis parallel to the slope rim which it descends, and by backward tilting of the mass with respect to that slope so that the slump surface often exhibits a reversed slope facing uphill.

(59) "Soil" means all unconsolidated earthy material overlying bedrock.

(60) "Solutioning" means the chemical process by which rock material passes into solution.

(61) "Stability" means structural stability.

(62) "Subsidence" means a local mass movement that involves principally the gradual downward settling or sinking of the solid earth's surface with little or no horizontal motion and that does not occur along a free surface (not the result of a landslide or fracture of a slope).

(63) "Surface facilities" means the auxiliary buildings and equipment located on the surface of the land above an underground mined repository.

(64) "Surveillance" means observation of the disposal site for purposes of visual detection of need for maintenance, custodial care, evidence of intrusion, and compliance with federal and state statutory, regulatory, license, and permit requirements.

(65) "Transuranic waste" means radioactive waste containing alpha-emitting radionuclides of atomic number 93 or higher with a half-life greater than five years and in concentrations greater than 100 nanocuries per gram.

(66) "Underground mined repository" means a land disposal facility in which low-level radioactive waste is placed within the earth at a depth greater than 30 meters below the surface of the earth.

(67) "Waste" means "low-level radioactive waste."


1In the context of the selection of one or two sites by the Commission pursuant to Article 29 of the ECL, "disposal site" or "site" consists of real property the Commission proposes to be used for a land disposal facility.

2Disposal units include, but are not limited to, vaults, excavations containing concrete modules, and the cavities of underground mined repositories.

3"Land disposal facility" includes, but is not limited to underground mined repositories and the land, buildings, and equipment which are intended to be used for aboveground disposal of low-level radioactive waste.

4"Byproduct material" as defined in Section 11e(2) of the Atomic Energy Act is uranium or thorium tailings and waste.

§382.3 Severability

If any provision of this Part or its application to any person or circumstances is held invalid, the remainder of this Part and the application of those provisions to persons or circumstances, other than those to which it is held invalid, will not be affected thereby.

§382.4 Variances and Exemptions

(a) The Department may grant a variance from any of the provisions of this Part except the performance objectives in Sections 382.10 - 382.15 of this Part. The Department may grant such a variance if an applicant establishes, to the satisfaction of the Department, that:

(1) compliance with the provision from which the variance is sought would impose on the applicant or the public an unreasonable safety or economic hardship;

(2) with the requested variance in effect, the proposed land disposal facility would meet the performance objectives in Sections 382.10 - 382.15 of this Part; and

(3) the requested variance would have no significant adverse impact on the public health, safety, or welfare, the environment, or natural resources, and would be consistent with the provisions of the ECL and the purpose of this Part.

(b) In granting any variance pursuant to Section 382.4 of this Part, the Department may impose specific conditions reasonably necessary to ensure that the granting of such variance will have no adverse impact on the environment; natural resources; or on the public health, safety, or welfare.

(c) Any United States Department of Energy contractor or subcontractor operating in this state is exempt from the requirements of this Part to the extent that such contractor or subcontractor is involved in selecting, characterizing, developing, or operating a site to be used by the Department of Energy for disposal of low-level radioactive waste pursuant to federal law.

§382.5 Safeguarding Information

Any requests for the release of information in the custody of the Department related to this Part shall be handled according to the provisions of New York Public Officers Law Section 87 and Part 616 of this Title, Public Access to Records of the Department.

§382.6 Certification of Disposal Sites and Methods

This section applies to the activities of the Commission in selecting and proposing one or two sites and one or more disposal methods to be used for the permanent disposal of waste pursuant to Article 29 of the Environmental Conservation Law. Unless the provisions of Article 29 of the ECL and this Part otherwise require, Article 70 of the Environmental Conservation Law and Parts 621, with the exception of 621.10(b) and (c), and 624 of this Title apply to the Commission's and the Department's activities pursuant to Article 29 of the Environmental Conservation Law.

(a) Selection Process

(1) The Commission must develop and follow a systematic procedure for selecting one or two proposed sites and one or more disposal methods for permanent land disposal facilities. The Commission must take into account the following factors in the selection of disposal sites and disposal methods:

(i) the ability of land disposal facilities using the proposed site or sites and disposal method or methods to meet the performance objectives in Sections 382.10 - 382.15 of this Part, the siting criteria in Sections 382.20 - 382.23 of this Part, and the disposal method criteria in Sections 328.30 - 382.35 of this Part;

(ii) the nature and probability of the impacts on public health and safety, including predictable adverse effects from accidents during the transportation of waste to such land disposal facilities, contamination of ground or surface water by leaching and runoff from the land disposal facilities, and fires or explosions from improper storage or disposal of volatile, combustible, or potentially explosive materials, if any, which may compose a portion of the waste to be delivered to such land disposal facilities;

(iii) the potential for avoidance or mitigation of harm from the unanticipated release of waste or contaminated materials;

(iv) the nature of the probable impact of a land disposal facility on local governmental units within which such land disposal facilities would be located;

(v) the comparative economic implications, including those resulting from engineering considerations, of the potential site or sites and disposal methods for such land disposal facilities;

(vi) the safety of workers at a potential land disposal facility, including the likelihood of accidental injuries at the land disposal facility and the probable radiation dose to workers during normal operations;

(vii) the nature of the probable environmental impacts including the predictable adverse effects on the natural environment and ecology, scenic, historic, agricultural, cultural, and recreational values, water and air quality, and wildlife;

(viii) the ability for retrieval or recovery of waste; and

(ix) the adequacy of routes and means for transportation of waste to such land disposal facilities.

(2) The Commission must select one or two proposed sites which can meet the requirements of Sections 382.10 through 382.35 of this Part and the capacity requirement in paragraph (a)(3) of this section. For each proposed site, the Commission must select one or more proposed disposal methods which can meet the requirements of Sections 382.10 though 382.35 of this Part and the capacity requirement in paragraph (a)(3) of this section.

(3) The proposed site or sites must be of sufficient total capacity to provide, using the proposed disposal method or methods, for disposal of all waste estimated by the Commission to be generated in New York State and to require disposal in a land disposal facility for a period of at least 30 years beginning on January 1, 1993. Only waste containing or contaminated with radioactive materials may be disposed at the land disposal facility.

(b) Site Characterization Studies

(1) The Commission or other applicant must perform studies, including on-site investigations and monitoring, to characterize the proposed site or sites in order to demonstrate that the proposed site or sites can meet the requirements of Sections 382.10 through 382.35 of this Part.

(2) The Commission or other applicant may consult with the Department in developing plans for site characterization studies. The Department may provide specific guidance to the Commission or other applicant regarding the requirements for such studies. In developing that guidance, the Department may seek and consider recommendations from the public.

(3) The Commission or other applicant must submit its proposed plan for site characterization studies and a description of the proposed quality assurance (QA) program for such studies to the Department for the Department's review prior to undertaking the studies. The QA program must meet the provisions of the United States Nuclear Regulatory Commission's publication, "Quality Assurance Guidance for a Low-Level Radioactive Waste Disposal Facility" (NUREG-1293) Revision 1, April 1991. (See Section 382.99 of this Part). The Commission or other applicant need not submit the entire plan to the Department at one time, but may submit portions of the plan for review, as appropriate.

(4) The site characterization studies must include on-site and,where appropriate, off-site monitoring to provide basic environmental data on the characteristics of the proposed site or sites and the surrounding area and the proposed site's or sites' suitability for the proposed disposal method or methods. The data must describe the proposed site's or sites' ecology, meteorology, climate (including likely long-term changes to climate), hydrology, geology, geochemistry, seismology and radioactivity. The studies must identify the known natural resources at the proposed site or sites, the exploitation of which could result in inadvertent intrusion into the low-level radioactive wastes after the period of institutional control. With reference to the proposed site or sites and the area around them, information about the population distribution and density (including seasonal variations), scenic, cultural, recreational, archaeological, and historical resources, socioeconomics, agriculture, and other current land uses (including seasonal activities) must be collected. The characterization studies must include any other information necessary to make the demonstrations required by Sections 382.6(d)(1)(vii) and (xi) of this Part. For those characteristics that are subject to seasonal variation, data must be collected for at least one continuous twelve month period.

(c) Pre-application Procedures

(1) Prior to preparation of the application for certification, the Commission must consult with the Department regarding the form and content of the application, and the Department must provide specific guidance to the Commission in a timely manner.

(2) The Commission must hold at least one public scoping meeting to receive public comments on the scope of a draft environmental impact statement to be prepared regarding the Commission's application for certification.

(3) Prior to preparation of the draft environmental impact statement, the Commission must submit, for the Department's approval, its proposed scope of the draft environmental impact statement. Within 15 calendar days of receiving the proposed scope, the Department must either notify the Commission that the proposed scope is approved, or inform the Commission of the deficiencies in the proposed scope. If the Department fails to notify the Commission of its decision within that 15 days, the scope will be deemed approved.

(d) Contents of Complete Application for Certification

(1) A complete application for certification of one or two proposed sites and one or more proposed disposal methods must contain the following information:

(i) a narrative description of the site and disposal method selection process the Commission followed in choosing the proposed site or sites and proposed disposal method or methods, including an explanation of how the siting and disposal method selection criteria in Sections 382.20 - 382.23 and 382.30 - 382.35 of this Part were incorporated into the process and a description of the data relied upon, assumptions made, and calculations performed;

(ii) the estimated capacity required pursuant to Section 382.6(a)(3) of this Part and a description of the method used to determine the estimated volume of each class of waste to be disposed, including the data relied upon, assumptions made, and calculations performed;

(iii) a description of the types and an estimate of the quantities of low-level radioactive waste to be received, possessed, and disposed of;

(iv) a description of any plans for use of the land disposal facility or facilities for purposes other than disposal of low-level radioactive wastes;

(v) a description of the location and size of the proposed site or sites and maps of suitable scale including copies of New York State Department of Transportation planimetric maps, topographic series, to a scale of 1:24,000, corrected to reflect current municipal boundaries, marked to show the location of the proposed site or sites;

(vi) a description of the proposed disposal method or methods and equipment and any ancillary facilities for preparing the waste for disposal, including a conceptual design and proposed plan for closure and stabilization in sufficient detail to reveal the features which will be relied upon to make the demonstrations required by Section 382.6(d)(1)(xi) of this Part;

(vii) a description of the natural characteristics of the proposed site or sites as determined by any studies done by the Commission during the site selection process and the site characterization studies. This must include the information required pursuant to Section 382.6(b) of this Part and any other information the Commission may deem necessary to demonstrate that the proposed site or sites comply with the siting criteria of Sections 382.20 - 382.23 of this Part;

(viii) all the information about the proposed site or sites and proposed disposal method or methods as specified in the United States Nuclear Regulatory Commission's publication, "Standard Format and Content of a License Application for a Low-Level Radioactive Waste Disposal Facility - Safety Analysis Report," (NUREG-1199, Revision 2, January 1991) (see Section 382.99 of this Part), with the exception of those items that the Commission demonstrates, subject to the Department's written approval, prior to submission of the application, are beyond the scope of the Commission's authority and responsibilities, in which case a copy of the Department's written approval of such exceptions must be included in the application;

(ix) a draft environmental impact statement prepared pursuant to Section 29-0303(3) of the ECL and Part 617 of this Title and following the scope developed pursuant to Section 382.6(c) of this Part;

(x) transparent overlays or computer generated maps that illustrate, on a map of New York State, the areas of the state eliminated at each step of the site selection process;

(xi) a demonstration, with specific reference to features of the proposed site or sites and proposed disposal method or methods, that land disposal facilities on the site or sites and using the proposed disposal method or methods can be designed and operated to comply with the requirements of Sections 382.10 - 382.15 and Sections 328.30 - 382.35 of this Part;

(xii) a list identifying and describing each report, study, or document relied upon by the Commission for information supporting its analyses and conclusions;

(xiii) detailed explanations of all calculations performed and details of all models used, including all assumptions and algorithms;

(xiv) a summary of any views, comments, information, or recommendations provided to the Commission by the advisory committee and the Commission's responses to them;

(xv) documentation of compliance with Section 14.09 of Article 14 of the Parks, Recreation, and Historic Preservation Law; and

(xvi) any other information required by the Department pursuant to Section 382.6(c)(1) of this Part.

(2) Analyses required to demonstrate that the performance objectives of Sections 382.10 - 382.15 of this Part can be met must comply with the following:

(i) pathways analyzed in demonstrating protection of the general population from releases of radioactivity must include air, soil, groundwater, surface water, plant uptake, and exhumation by burrowing animals. The analyses must clearly identify and differentiate between the roles performed by the natural disposal site characteristics and design features in isolating and segregating the wastes. The analyses must clearly demonstrate that it can be reasonably ensured that the dose to humans will not exceed the limits set forth in Section 382.11 of this Part. The analyses must indicate, at least, the maximum expected whole body and organ doses to the general population during operation and following closure of the land disposal facility and the year during which the maximum dose is predicted to occur. The dose due to each radionuclide expected to contribute to the maximum dose must be identified.

(ii) analyses of the protection of individuals from radiation exposure as a result of inadvertent intrusion must include a demonstration that it can be reasonably ensured that the waste classification and segregation requirements can be met and that adequate barriers to inadvertent intrusion can be provided.

(iii) analyses demonstrating the protection of individuals during operations must include assessments of expected radiation exposures due to routine operations and likely accidents during handling, storage, and disposal of waste. The analyses must demonstrate that it can be reasonably ensured that radiation exposures can be controlled to meet the requirements of Title 12, Part 38 of the Codes, Rules, and Regulations of the State of New York.

(iv) analyses of the long-term stability of the disposal site and the need for ongoing active maintenance after closure must be based upon analyses of active natural processes such as erosion, mass wasting, slope failure, settlement of wastes and backfill, infiltration into disposal units, and surface drainage of the disposal site. The analyses must demonstrate that it can be reasonably ensured that there will not be a need for ongoing active maintenance of the disposal site following closure.

(v) demonstration of protection of the environment and public health must include a list of state and federal environmental and public health laws and regulations that may be applicable to the land disposal facility.

(3) The Commission may, with the Department's written approval,delay to a future date specified by the Department, but before the Department renders a decision on the application for certification, the submission of any of the information required in paragraphs (1) and (2) of this subdivision provided the Department finds that delay of such submission:

(i) will have no significant adverse impact on the public health, welfare, and safety or the environment or natural resources;

(ii) will not adversely affect the ability of the land disposal facility or facilities to meet the requirements of this Part; and

(iii) will not impair the Department's ability to render a timely decision on the application for certification in accordance with the provisions of this subdivision and Section 29-0105 of the ECL.

(e) Filing and Service of the Application

(1) At the time of submitting its application to the Department,the Commission must submit 50 copies of its application to the Department. The Commission shall provide to the Department additional copies of the application at the Department's request.

(2) The Commission must, concurrent with submittal to the Department, submit a copy of the application to each of the following persons:

(i) the chairperson of the energy research and development authority;

(ii) the legislature; and

(iii) the governor.

(3) The Commission must make a copy of the application available to any person upon request.

(f) Review Procedures

(1) The Department will review the application for certification submitted by the Commission to determine whether it is complete for purposes of commencing review.

(2) On or before 30 calendar days following receipt of the application, the Department must mail notification of its determination of completeness or incompleteness to the Commission. If the Department fails to mail notice of its determination of completeness or incompleteness to the Commission within that 30-calendar-day time period, the application shall be deemed complete.

(3) If the application is found to be incomplete, the notice will identify what additional information, analyses, or documents must be submit ted to complete the application. A new 30-calendar-day period for Department review for completeness shall commence from the date the additional information, analyses, or documents are received by the Department.

(4) Upon determining that the application is complete, the Department will provide notice of the determination of completeness to those persons listed in Section 382.6(e)(2) and to any person who has previously expressed in writing interest in receiving such notification. The Department must publish notice of Determination of Completeness in the Environmental Notice Bulletin no more than 10 calendar days after the date of notice to the Commission. The notice must include, as applicable, the elements of a notice of determination of completeness described in Section 621.7(a) of this Title, Uniform Procedures.

(5) The Department must hold public adjudicatory hearings on the application for certification and draft environmental impact statement. At least one day of the hearings shall be held in the vicinity of each proposed site. Except as otherwise required by this Part, the provisions of Part 624 of this Title apply to such hearings.

(6) The Department must render a decision on the application for certification within 180 days of submission of a complete application. The Department will, based upon the record, either:

(i) certify that the Commission's proposed site or sites and proposed disposal method or methods are in conformance with the applicable provisions of this Part; or

(ii) certify that, with modifications proposed by the Department, the proposed site or sites and proposed disposal method or methods would be in conformance with the applicable provisions of this Part; or

(iii) refuse to certify the proposed site or sites and pro posed disposal method or methods and will specify the manner in which such proposed site or sites and proposed disposal method or methods fail to meet the applicable provisions of this Part.

(7) The Department will publish notice of its decision on the Commission's application for certification in the state register and the Environmental Notice Bulletin. The Department will submit copies of its decision and final environmental impact statement to those persons listed in Section 382.6(e)(2) of this Part and to any person who has previously expressed in writing interest in receiving such decision and final environmental impact statement as provided in Part 617 of this Title.

(g) Standards for Certification of Sites and Disposal Methods

The Department will certify that the Commission's proposed site or sites and method or methods are in conformance with the applicable siting and method selection criteria upon finding that, except where a variance has been granted pursuant to Section 382.4(a) of this Part,

(1) the proposed site or sites are in conformance with the siting criteria contained in Sections 382.20 - 382.23 of this Part;

(2) the proposed disposal method or methods can be utilized in conformance with the disposal method criteria of Sections 328.30 - 382.35 of this Part;

(3) a land disposal facility or land disposal facilities built,operated, and closed on the proposed site or sites and employing the pro posed disposal method or methods can meet the performance objectives in Sections 382.10 - 382.15 of this Part; and (4) the requirements of Part 617 of this Title have been met.

§382.7 through 382.9 are reserved.

§382.10 General Requirement

Land disposal facilities must be sited, designed, operated, closed,and controlled after closure to reasonably assure that exposures to humans are within the limits established in the performance objectives in Sections 382.11 through 382.15 of this Part.

§382.11 Protection of the General Population from Releases of Radioactivity

Concentrations of radioactive material which may be released to the general environment in groundwater, surface water, air, soil, plants, or animals must not result in an annual dose exceeding an equivalent of 25 millirems to the whole body, 75 millirems to the thyroid, and 25 millirems to any other organ of any member of the public. Releases of radioactivity in effluents to the general environment must be maintained as low as reasonably achievable.

§382.12 Protection of Individuals from Inadvertent Intrusion

Design, operation, and closure of the land disposal facility must ensure protection of any individual inadvertently intruding into the disposal site and occupying the site or contacting the waste at any time after active institutional controls over the disposal site ar

§382.13 Protection of Individuals During Operations

Operations at the land disposal facility must be conducted incompliance with the standards for radiation protection set out in Title 12, Part 38 of the Codes, Rules and Regulations of the State of New York, except for radiation doses governed by Section 382.11 of this Part. Radiation exposures must be maintained as low as reasonably achievable.

§382.14 Stability of the Disposal Site After Closure

The land disposal facility must be sited, designed, used, operated,and closed to achieve long-term stability of the disposal site and to eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following closure so that only surveillance, monitoring, or minor custodial care are required.

§382.15 Protection of Public Health and the Environment

Construction, operation, closure, and the post-closure conditions of the land disposal facility must comply with all applicable laws and regulations including but not limited to environmental, labor, and public health laws and regulations.

§382.16 through 382.19 are reserved.

§382.20 Scope, Purpose, and Applicability

Sections 382.20 through 382.23 of this Part specify the minimum characteristics that a site must have to be acceptable for use as a land disposal facility. Any site used for aboveground or belowground disposal must meet the requirements of Sections 382.21 and 382.22 of this Part. Any site used for an underground mined repository must meet the requirements of Sections 382.21 and 382.23 of this Part.

§382.21 Siting Criteria Applicable To All Disposal Methods

Any site used for a land disposal facility must meet the requirements of this section.

(a) General

(1) The site must not be located at the Western New York Nuclear Service Center in West Valley, New York.

(2) The site must be capable of being licensed and permitted under all applicable state and federal laws.

(3) The primary emphasis in disposal site suitability must be given to isolation of wastes, a matter having long-term impacts, and to disposal site features that ensure that the performance objectives of Sections 382.10 - 382.15 of this Part are met as opposed to short-term convenience or benefits.

(4) The site and the associated hydrology, geologic formations, and groundwater flow systems affecting land disposal facility performance must be capable of being defensibly characterized, modeled, analyzed, and monitored.

(5) The site must include a buffer zone which must be maintained until the end of the institutional control period and of sufficient extent, considering the proposed method or methods of disposal:

(i) to contain a redundant monitoring system capable of detecting the failure of the disposal units and to allow for any necessary mitigation or remediation;

(ii) to enable the permittee to maintain the security of the site;

(iii) to contribute to a desirable land disposal facility appearance; and

(iv) to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(6) Any site to be used for disposal of mixed low-level radioactive and hazardous wastes must be capable of meeting the applicable pro visions of Article 27 of the ECL and regulations promulgated pursuant thereto.

(7) The site must not be located where currently existing radioactive material, including, but not limited to, naturally-occurring radioactive material, may mask the monitoring program.

(b) Surface Waters and Hydrology

(1) The disposal units must not be located downstream of a dam or other man-made or natural structure where failure of such structure could adversely affect the land disposal facility's ability to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(2) The site must not be located where potential adverse effects on surface water quality could result in contravention of water quality standards or an impairment of the best intended usage as specified in Parts 701 and 702 of this Title.

(c) Mineral and Exploitable Resources

(1) The site must not be located in an area where past, present, or future exploration or exploitation of natural resources could adversely affect the land disposal facility's ability to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(2) The site must not be located where existing mined openings and/or boreholes could adversely affect the land disposal facility's ability to meet the performance objectives of Sections 382.10 - 382.15 of this Part or could prevent reliable modeling or analyses.

(d) Geology, Soils, and Hydrogeology

(1) The present and projected geologic and hydrogeologic setting of the site including the effects of construction must be compatible with the waste disposal method.

(2) The site geology, soils and hydrogeology must have characteristics and properties which will retard the movement of radionuclides.

(3) The site must not be located where potential adverse effects on groundwater could result in contravention of groundwater quality standards or an impairment of the best intended usage as specified in Parts 701, 702, and 703 of this Title.

(4) The regional groundwater flow system must provide a sufficiently long pathway and slow transit time from the land disposal facility to the discharge area to ensure that the performance objectives of Sections 382.10 - 382.15 of this Part are met.

(5) The hydrogeologic unit on or within which waste is disposed must not discharge groundwater to the surface within the disposal site.

(e) Seismic Risk

The site must not be located in an area where tectonic processes such as faulting, folding, seismic activity, or vulcanism may occur with such frequency and extent as to affect the ability of the disposal site to meet the performance objectives of Sections 382.10 - 382.15 of this Part, or as to preclude defensible modeling and prediction of long-term impacts.

(f) Population, Land Use, and Ownership

(1) The site must not be located where present and projected effects from population growth and other developments, including but not necessarily limited to residential, industrial, military, recreational, commercial, and institutional developments, may have the potential to adversely affect the land disposal facility's ability to meet the performance objectives of Sections 382.10 - 382.15 of this Part or mask the environmental monitoring program.

(2) The site must be located on real property to which the State of New York can obtain title in fee or any interest therein, as may be necessary.

(3) The site must be located, based on a consideration of population density in the vicinity of the site, to keep the potential population dose as low as reasonably achievable.

(4) No part of the site shall be located within any village, town, city, or unincorporated area having an average population density of more than 1,000 individuals per square mile as determined from the results of the 1980 decennial count of the U.S. Census or more recent census of the United States, New York State, or any political subdivision thereof.

(5) The site must be of sufficient size to ensure the performance objectives of Sections 382.10 - 382.15 of this Part can be met.

(6) The site must not be located on any lands or reservations of Indian tribes or nations or on lands that are not subject to the laws and regulations of the State of New York, including but not limited to, lands owned by the federal government.

(g) Traffic and Transportation

The condition of existing highways and rail lines likely to be used as routes to transport wastes to the site must be adequate, or capable of being made adequate, to meet applicable state and federal laws and regulations and to minimize risks to the public associated with transportation accidents.

(h) Cultural, Recreational, and Natural Resources

(1) The site must not be located on real property owned in fee by the federal, state, or municipal governments, or in which such governments have a lesser interest, where the alienation or use of such property is restricted by constitutional provision or statute, including, but not limited to, property which is:

(i) protected by Article 14 of the Constitution of the State of New York;

(ii) all or part of any national wildlife refuge established pursuant to the National Wildlife Refuge System, 16 U.S.C. Sections 668dd and 668ee (see Section 382.99 of this Part);

(iii) a state wildlife management area, game refuge, fish hatchery, game farm, or any part of these or property in which the state has an interest under the fishing access or other public access program established pursuant to Article 11 or Article 13 of the ECL;

(iv) acquired with the assistance of federal funding pursuant to the Dingell-Johnson Fish Restoration Act, 16 U.S.C. Sections 777-777i and 777k or the Pittman-Robertson Act, 16 U.S.C. Sections 669-669i (see Section 382.99 of this Part);

(v) all or any part of any migratory bird reservation established pursuant to the Migratory Bird Conservation Act, 16 U.S.C. Section 715 (see Section 382.99 of this Part);

(vi) reforestation area or part thereof established pursuant to Article 9, Title 5 of the ECL;

(vii) dedicated to or acquired for the purpose of being dedicated to the State Nature and Historical Preserve pursuant to ECL Article 45, State Nature and Historical Preserve Act;

(viii) part of the National Wilderness Preservation System pursuant to Title 16, Chapter 23 of the U.S.C. (see Section 382.99 of this Part); and (ix) wetlands acquired or restored in part or in whole with state moneys pursuant to ECL, Article 51, or 52, or other statutory provision.

(2) The disposal site must not be located on real property where the alienation or use of such property is restricted by federal or state statute, including, but not limited to, property which is:

(i) listed, nominated or eligible for listing in the National Register of Historic Places pursuant to the National Historic Preservation Act, 16 U.S.C. Sections 470 et seq. (see Section 382.99 of this Part), or the State Register of Historic Places pursuant to Article 14 of the Parks, Recreation and Historic Preservation Law; and

(ii) subject to the State Wild, Scenic and Recreational Rivers System pursuant to ECL Article 15, Title 27; or the National Wild and Scenic Rivers System, pursuant to the Wild and Scenic Rivers Act, 16 U.S.C. Sections 1271 et seq. (see Section 382.99 of this Part).

(3) The site must not be located on real property which is within the Adirondack or Catskill Parks, as defined in ECL 9-0101(1) and (2), respectively.

(4) No part of the site may be located on real property which is within any national or state park.

(5) No part of the site may be located on real property which is within any municipal park established as of December 31, 1987 or within any addition thereto.

(6) The site must be located to minimize adverse impacts on agricultural lands and agricultural operations. The site must be located to minimize adverse impacts on agricultural districts, in accordance with the provisions of Article 25AA of the Agriculture and Markets Law. The site must not contain more than 5 acres of lands in active agricultural use in mineral soil groups 1-4 as classified by the New York State Land Classification System, established by 1 NYCRR Part 370.

(7) The site must not be located in the critical habitat of any endangered or threatened species as determined pursuant to Title 16 of Chapter 35 of the United States Code (see Section 382.99 of this Part) or in an essential habitat, as determined by the Department, of a species which is designated as endangered or threatened pursuant to Article 11 of the ECL or designated as a species of special concern in Part 182 of this Title. An essential habitat does not include incidental areas passed in migration, other areas of casual use, or potential habitat.

§382.22 Additional Siting Criteria For Aboveground and Belowground Disposal

In addition to the requirements of Section 382.21 of this Part, any site used for aboveground or belowground disposal of waste must meet the requirements of this section.

(a) Surface Waters and Hydrology

(1) The disposal site must not be in a 100-year floodplain, coastal hazard area or wetland, as defined in Executive Order 11988, "Floodplain Management Guidelines," 42 Fed. Reg. 26951 (1977) (see Section 382.99 of this Part).

(2) The disposal site must not be located in a freshwater wetland designated pursuant to ECL article 24; a tidal wetland designated pursuant to ECL article 25, a coastal erosion hazard area identified pursuant to ECL article 34, or a flood hazard area as determined by the Federal Emergency Management Agency pursuant to 42 U.S.C. Sections 4001, et seq. (See Section 382.99 of this Part).

(3) The surface contours and drainage systems of the disposal site must ensure that the site is well-drained and free of areas of flooding or frequent ponding at all times.

(4) The site must not be located in areas where the surface runoff could expose, erode or inundate the disposal units.

(b) Groundwater and Hydrogeology

(1) The disposal site must have sufficient depth to the water table that groundwater intrusion, perennial or otherwise, will not contact the disposal units. An exception to this requirement that would allow disposal below the water table may be approved by the Department if it can be conclusively shown that disposal site characteristics will result in molecular diffusion being the predominant means of radionuclide movement and the rate of movement will result in compliance with the performance objectives of Sections 382.10 - 382.15 of this Part. In no case will the waste disposal units be permitted in the zone of fluctuation of the water table.

(2) The site must not be located immediately above the Long Island aquifer; any primary public water supply aquifer; or a principal aquifer designated by the Department.

(c) Geology and Soils

The site must not be located where surface and subsurface geologic conditions or processes such as mass wasting, subsidence, erosion, solutioning, slumping, landsliding, or weathering occur with such frequency and extent to adversely affect the ability of the land disposal facility to meet the performance objectives of Sections 382.10 - 382.15 of this Part or to preclude defensible modeling and prediction of long-term impacts.

§382.23 Additional Siting Criteria For Underground Mined Repositories

In addition to the requirements of Section 382.21 of this Part, any site used for an underground mined repository must meet the requirements of this section.

(a) General

The site must include a buffer zone on all sides of the underground mined repository of sufficient thickness to protect the underground mined repository from accidental disturbance or penetration from outside intrusion and to allow for redundant monitoring.

(b) Surface Water and Hydrology

The underground mined repository's surface facilities must not be placed in a 100-year floodplain, coastal erosion hazard area, or wetland, as defined in Executive Order 11988, "Floodplain Management Guidelines," 42 Fed. Reg. 26951 (1977) (see Section 382.99 of this Part).

(c) Groundwater and Hydrogeology

(1) The present and projected local and regional groundwater flow systems must be capable of being defensibly characterized, modeled, and analyzed.

(2) The disposal site must not be located in an area where subsurface hydrogeologic processes, such as dissolution, occur with such frequency and extent as to adversely affect the ability of the underground mined repository to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(d) Geology

(1) The geologic formations and hydrogeologic features of the site must permit the safe construction, operation, and closure of an underground mined repository.

(2) The geologic unit in which the underground mined repository is to be located must have adequate thickness and lateral extent to contain the disposal units.

(3) The geologic unit in which the underground mined repository is to be located must not contain features, such as faults, fractures, or other discontinuities, which could adversely affect the underground mined repository's ability to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(4) The site must be located in an area where subsidence and related impacts will not adversely affect the underground mined repository's ability to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

(5) The site must not be located where any instability may develop in the geologic unit that may adversely affect the ability of the underground mined repository to meet the performance objectives of Sections 382.10 - 382.15 of this Part.

§382.24 through 382.29 are reserved.