BEFORE THE NEBRASKA DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES REGULATION AND LICENSURE


IN THE MATTER OF THE APPLICATION
BY US ECOLOGY, INC. FOR A LICENSE
TO CONSTRUCT, OPERATE, AND CLOSE
A COMMERCIAL LOW-LEVEL
RADIOACTIVE WASTE DISPOSAL FACILITY		)
)
)
)
)		DENIAL OF APPLICATION
FOR A LICENSE


US Ecology, Inc. filed applications with the Nebraska Department of Environmental Quality and the Nebraska Department of Health and Human Services Regulation and Licensure to construct, operate, and close a commercial low-level radioactive waste disposal facility on a site in Boyd County, Nebraska, on the East 1/2, Section 13, Township 34 North, Range 14 West of the 6th P.M., Boyd County, Nebraska. It has requested a license to dispose of approximately five million cubic feet of Class A, B, and C low-level radioactive waste at the proposed facility.

Each of the Departments reviewed the application to determine if US Ecology demonstrated that it met all of the statutory and regulatory requirements set out in the Low-Level Radioactive Waste Disposal Act, the Radiation Control Act, Title 194 "Rules and Regulations for the Disposal of Low-Level Radioactive Waste" and Title 180 Chapter 1 "Regulations for Control of Radiation-Ionizing".

Pursuant to the above statutes and regulations, the Departments conducted public hearings. A hearing was held in February 1998 on the Draft Safety Evaluation Report and Draft Environmental Impact Analysis. In addition, a hearing was held in November 1998 on a proposed license decision.

The Departments having been present at the hearings, having reviewed the administrative record, and being otherwise fully advised, issue the following findings of fact, conclusions, and order of denial of the license application filed by US Ecology, Inc. ("US Ecology").
SITE LACKS SUFFICIENT DEPTH TO WATER TABLE

I. Legal Requirements

Nebraska Administrative Code Title 194, Chapter 5, Section 001.01G requires:
II. Findings of Fact III. Conclusions The application does not provide for a sufficient depth to the water table to ensure that ground water intrusion will not occur. Based on the applicant’s data relating to ground water levels, the disposal facility will be constructed below the water table in some places, thereby providing no depth, let alone a sufficient depth, to ground water. Further, construction of the engineered cap may increase the elevation of the water table thereby worsening the problem. Accordingly, the application does not provide an adequate zone between the waste and the water table to ensure that disposal will not occur in the zone of fluctuation of the water table.

US Ecology's license application to construct and operate a low-level radioactive waste disposal facility in Boyd County, Nebraska is denied, in part, because the application fails to meet the requirements of Nebraska Administrative Code Title 194, Chapter 5, Section 001.01G, in that it fails to provide sufficient depth to the water table that ground water intrusion, perennial or otherwise, into the waste will not occur. Furthermore, the application fails to provide an adequate zone between the waste and the water table to ensure that disposal will not occur in the zone of fluctuation of the water table.
SITE LACKS ADEQUATE BUFFER ZONE

I. Legal Requirements

II. Findings of Fact
III. Conclusion
The license application does not provide for an adequate buffer zone beneath the disposal units. The applicant's 1995-1997 hydrographs demonstrate that the water table under the disposal units intersects the facility.

The purpose of a buffer zone beneath the disposal units is to provide separation between the radioactive waste and the environment, and to provide an area of adequate dimension to perform monitoring activities to detect releases from the waste disposal units or other activities at the facility and to take mitigative measures before these releases contaminate the environment. Because ground water is capable of infiltrating the facility’s liner and leachate collection system, releases into the leachate collection system or the liner may not be captured, but instead may enter the infiltrated ground water. Accordingly, no buffer zone is present between the disposal facility and the local aquifer to provide adequate dimensions to carry out environmental monitoring activities and take mitigative measures.

US Ecology's license application to construct and operate a low-level radioactive waste disposal facility in Boyd County, Nebraska is denied, in part, because the application fails to provide for an adequate buffer zone as required by Nebraska Administrative Code Title, 194, Chapter 5, Section 003.01H and Nebraska Administrative Code Title 180, Chapter 1, Section 012.28A7.
ENGINEERED STRUCTURES AND BARRIERS ARE PLANNED SUBSTITUTES FOR A SUITABLE SITE

I. Legal Requirements

Nebraska Administrative Code Title 194, Chapter 5, Section 001.02 requires:
II. Findings of Fact III. Conclusion

The regulation provides that engineered structures and barriers are not to be used as substitutes for a suitable site. The site suitability requirements must be met by the site at the time of application and prior to construction.

The new drainageway proposed by the applicant to divert surface water from the disposal units is an engineered structure used as a planned substitute for a suitable site. The applicant relies upon engineered structures and barriers to correct an unsuitable site. Because the proposed location of the disposal units lies directly within the current drainage swale, the applicant has proposed to reroute surface water to alleviate the unsuitability of the current site topography.

Because high ground water levels make the site unsuitable, the applicant has designed engineered structures and barriers to isolate the rising ground water from the waste. The concrete basemat, sand drainage layer, clay liner, and engineered fill material are engineered structures and barriers used as planned substitutes for a suitable site.

The cited regulatory provision above serves to clarify the position first articulated by the Directors in the 1993 Intent to Deny, that is, that the site suitability requirements of the regulations are to be applied to the site at the time of application and prior to construction, rather than after the site has been graded and otherwise engineered. The placement of this regulatory provision within the regulations is significant. The regulation is placed within the first section of the chapter that establishes the technical requirements for the facility. In fact, Section 001.02 immediately follows the descriptive enumeration of the disposal site suitability requirements which specify the minimum characteristics a disposal site must have to be acceptable. The section compels the Director to take a hard look at the site suitability requirements, and to apply such requirements to the site as it exists prior to any site engineering.

US Ecology's license application to construct and operate a low-level radioactive waste disposal facility in Boyd County, Nebraska is denied, in part, because the application provides for engineered structures and barriers as substitutes for a suitable site in violation Nebraska Administrative Code Title, 194, Chapter 5, Section 001.02.
GROUND WATER DISCHARGES TO THE SURFACE WITHIN THE DISPOSAL SITE

I. Legal Requirements

Nebraska Administrative Code Title 194, Chapter 5, Section 001.01H requires:
Nebraska Administrative Code Title 180, Chapter 1, section 012.26A6 requires:
Nebraska Administrative Code Title 194, Chapter 1, Section 024 states:
Nebraska Administrative Code Title 180, Chapter 1, section 012.02 states:
II. Findings of Fact III. Conclusions The hydrogeologic unit used for disposal shall not discharge ground water to the surface within the disposal site. Materials present at the site above bedrock, as defined by the applicant, comprise a single unit characterized by similar hydrogeologic properties. This hydrogeologic unit discharges ground water to the surface of the site.

The Departments conclude it is an appropriate practice to use ground water contour maps for determining the levels of ground water in relationship to the ground surface. The maps presented by the applicant illustrate that the water table is at or above the surface elevation at various points on the site, specifically within the current swale and the proposed engineered ditch. It is at these points that ground water would discharge to the surface.

The applicant states that its predictive computer model (MODFLOW) refutes the potential for ground water discharge to the surface. However, another conclusion based on the same model code as utilized by the applicant, but with different input values, is in direct conflict with the conclusions of the applicant. The Departments’ position continues to be that model outputs are a function of inputs. As a result, the solutions are not unique. The applicant’s MODFLOW conclusions are not a unique solution for a conceptual model of the site ground water system and are not sufficient to demonstrate that ground water discharge does not occur.

Anecdotal comments provided at the public hearing held in November 1998 described direct observations of ground water discharging to the surface of the site. The applicant’s position that ground water does not discharge to the surface is based on its lack of visual observations of such discharge. However, the applicant did not have a dedicated surface observation program to assess whether surface discharge of ground water occurs.

US Ecology's license application to construct and operate a low-level radioactive waste disposal facility in Boyd County, Nebraska is denied, in part, because the applicant has failed to demonstrate that the hydrogeologic unit used for disposal will not discharge ground water to the surface within the disposal site as required by Nebraska Administrative Code Title, 194, Chapter 5, Section 001.01H and Nebraska Administrative Code Title 180, Chapter 1, Section 012.26A6.
THERE IS A NEED FOR CONTINUING ACTIVE MAINTENANCE AFTER SITE CLOSURE

I. Legal Requirements To satisfy these regulatory requirements, the applicant is required to demonstrate that active maintenance will not be necessary during the institutional control period. The definition of active maintenance includes pumping and treatment of water from a disposal unit.

II. Findings of Fact
III. Conclusions After site closure, it is likely that ground water will infiltrate the facility’s leachate collection system. The leachate collection system is a key component in the protection of the environment from releases. In order to properly function, the leachate collection system should be dry so that any leak from the facility can be detected and remediated as soon as possible. In order to maintain an effective environmental monitoring program, any liquids collected in the leachate collection system would have to be extracted and analyzed. This pumping of the leachate collection system after infiltration by ground water would be active maintenance which is prohibited by the regulations.

US Ecology's license application to construct and operate a low-level radioactive waste disposal facility in Boyd County, Nebraska is denied, in part, because the application fails to provide reasonable assurance that continuing active maintenance will be avoided after closure as required by Nebraska Administrative Code Title, 194, Chapter 5, Section 002.02A and Nebraska Administrative Code Title 180, Chapter 1, Sections 012.12G and 012.25.
THE APPLICANT HAS NOT DEMONSTRATED THAT IT MEETS THE FINANCIAL ASSURANCE FOR THE CONSTRUCTION OF A LOW LEVEL RADIOACTIVE WASTE DISPOSAL FACILITY

I. Legal Requirements
Chapter 6, Section 001, requires an applicant to demonstrate that it possesses the necessary funds or has written assurance of obtaining the necessary funds before a license is issued. It does not allow for applicants to show that they can obtain funds after a license is issued. If an applicant wishes to provide written assurance of obtaining the necessary funds, it must use a financial or surety arrangement such as one of those specified in section 002.08.

II. Findings of Fact
1. The applicant states that costs to construct the LLRW disposal facility would be as follows:
      Phase I:
      $51,600,000 (first ten years - infrastructure and construction of four Class A cells and one Class B/C cell)
      Phase II:
      $23,900,000 (second ten years - construction of four additional Class A cells)
      Phase III:
      $23,900,000 (third ten years - construction of four additional Class A cells)
This costs estimate is based on 1994 dollars.

2. The applicant indicates that it will require a $49,000,000 ten-year loan, to be structured as a normal project-financing loan in order to construct the first disposal cells necessary for disposal activities.

3. The applicant has suggested the following methods of providing assurance of obtaining the necessary funds.

A.A performance guarantee provided by American Ecology Corporation, the parent company of US Ecology, that guarantees the full performance of all terms, agreements, and written conditions in the license application and related agreements.
B.US Ecology has contacted financial institutions that may be interested in financing construction. One written "expression of interest" is provided in SAR Revision 8. The written expression of interest is not a firm financial commitment. The applicant does not intend to provide a formal loan commitment until the project license has been approved because the project itself is part of the loan arrangement. Instead, US Ecology assumes that it will be able to obtain a commitment for construction financing within a period of 120 days after the license is issued. The applicant has indicated that construction financing will be obtained from a third- party financial institution.
C.US Ecology states that the contract between itself and the Central Interstate Compact Commission also provides assurance of construction financing. The Central Interstate Compact Commission contract provides the Commission with the right to provide construction financing but does not create an obligation to do so.

4. The Departments retained Conley Smith Investment, Inc. (Conley Smith) to conduct an evaluation of the financial status of American Ecology Corporation and its subsidiary, US Ecology, to determine whether the corporations have the financial strength to develop and manage the proposed low level radioactive waste disposal site for the Central Interstate Compact.

5. In a report dated September 1997, Conley Smith concluded, based upon its review and investigation, that American Ecology Corporation and its subsidiary, US Ecology, would not be able to obtain the necessary capital to complete and manage the project without obtaining capital and guarantees from major participants in the Central Interstate Compact.

6. In April 1998, Conley Smith was asked to review the financial status of American Ecology Corporation and US Ecology and update its analysis. By letter dated May 22, 1998, Conley Smith concluded that, although some progress had been made in reducing operating losses, the overall financial position of the Company had not improved and its opinion of American Ecology's ability to fund the low level radioactive waste disposal site to be located near Butte, Nebraska had not changed.

7. Following public hearings on the proposed license decision, Conley Smith was asked to update its analysis in light of comments provided by the applicant. In a report dated December 1998, Conley Smith concluded as follows:
III. Conclusions
The existence of a corporate guarantee is not a written assurance as defined by Title 194, Chapter 6, Section 002.08 and, in fact, is specifically prohibited as a form of financial assurance. The ability of the Central Interstate Compact to provide financing is not a written assurance as that term is defined in Title 194, Chapter 6, Section 002.08. The Departments concur with the Conley Smith reports indicating that the applicant and its parent corporation, American Ecology Corporation, lack sufficient capital assets to fund the construction of the facility without loan commitments or obtaining capital or guarantees from the Central Interstate Compact Commission or the major generators. The applicant did not obtain these loan commitments, capital or guarantees.

US Ecology's license application to construct and operate a low-level radioactive waste disposal facility in Boyd County, Nebraska is denied, in part, because the applicant has failed to show that it either possesses the necessary funds or has written assurance of obtaining the necessary funds as required by Nebraska Administrative Code Title, 194, Chapter 6, Section 001.





Signed this 18th day of December, 1998Signed this 18th day of December, 1998
__________________________________
Randolph Wood, P.E.
Director
Department of Environmental Quality		___________________________________
David P. Schor, MD, MPH, FAAP
LLRW Program Director
Department of Health and Human
Services Regulation & Licensure




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Nebraska Department of Environmental Quality
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PO Pox 98922
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