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 ) DENIAL OF APPLICATION
BY US ECOLOGY, INC. FOR A LICENSE ) FOR A LICENSE
TO CONSTRUCTION, OPERATE, AND CLOSE )
A COMMERCIAL LOW-LEVEL )
RADIOACTIVE WASTE DISPOSAL FACILITY )
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").
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SITE LACKS SUFFICIENT DEPTH TO WATER TABLE
I. Legal Requirements
Nebraska Administrative Code Title 194, Chapter 5, Section 001.01G requires:
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 disposal be
permitted in the zone of fluctuation of the water table.
Section 001.01G imposes a requirement that the disposal site chosen by the applicant provide a
sufficient depth between the facility and the top of the water table to ensure that ground water will
not intrude into the waste. Additionally, Section 001.01G prohibits disposal in the "zone of
fluctuation" of the water table. The "zone of fluctuation" means that area bounded by the low and
high elevations of the water table.
II. Findings of Fact
1. Hydrographs provided by the applicatn for 1995, 1996, and 1997 document ground water
at or near the surface of the site.
2. The applicant's data and public comment confirm and heighten the concern regarding high
water tables at the disposal site.
3. The definition of disposal requires emplacement in a facility. The facility is composed of the
cap, concrete vaults, concrete basemat, sand drainage layer, leachate collection system, clay
liner, and engineered fill material.
4. The process of disposal or isolation of low-level radioactive waste occurs within the facility.
5. A portion of the facility will be constructed below documented water table elevations.
6. The applicant's model study (Appendix G.7) predicts an increase in water table elevation of
one to four feet after the cap is constructed.
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
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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. Futhermore, 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
Nebraska Administrative Code Title 194 (Title 194), Chapter 5, Section 003.01H requires
that:
[a] buffer zone of land shall be maintained between any buried waste and the disposal site
boundary and beneath disposed waste. The buffer zone shall be of adequate dimensions to
carry out environmental monitoring activities specified in 004.04 of this Chapter and take
mitigative measures if needed.
Nebraska Administrative Code Title 180 (Title 180), Chapter 1, Section 012.28A7
requires:
A buffer zone of land shall be maintained between any buried waste and the disposal site
boundary and beneath disposed waste. The buffer zone shall be of adequate dimensions to
carry out environmental monitoring activities specified in 012.29D of this Chapter and
take mitigative measures if needed.
Title 194, Chapter 1, Section 004 defines a "buffer zone" as:
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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 boundardy of the site. (emphasis added).
Title 194, Chapter 5, Section 004.04 monitoring regulations require that:
[t]he monitoring system must be capable of providing early warning of releases of waste
from the disposal site.
To satisfy these regulatory requirements, the applicant is required to demonstrate that it has
provided for a lateral buffer zone of adequate dimension from the disposal units to the site
boundary, and a vertical buffer zone of adequate dimension from beneath the disposed waste to the
environment. The adequacy of the dimensions of the buffer zone is determined by the amount of
space necessary to implement a monitoring program that is capable of providing early warning of
releases of waste from the disposal site and to take mitigative measures.
II Findings of Fact
1. The license application provides for a 500 to 600 foot buffer zone between the disposal
units and the perimeter fence boundary.
2. Hydrographs provided by the applicant for 1995, 1996, and 1997 document ground water
at or near the surface of the site. This confirms a trend of rising water table.
3. Documents provided by the applicant illustrate that a portion of the facility is
below the water table.
4. The applicant's design allows the process of disposal to occur, in part, below the water
table. This precludes the presence of a buffer zone above the local aquifer.
III. Conclusion
The license application does not provide 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
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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:
Engineered structures and barriers shall not be viewed as a planned substitute for a
suitable site.
Nebraska Administrative Code Title 194, Chapter 5, Section 001.01A requires:
This section specifies the minimum characteristics a disposal site must have to be
acceptable for use as a near-surface facility. The primary emphasis is given to isolation of
wastes and to disposal site features that ensure that the long-term performance objectives
of Chapter 4 are met.
Section 001.02 prohibits an applicant from providing engineering solutions to correct an unsuitable
site. This regulatory provision requires application of the site suitability requirements at the time of
application, and prior to site engineering, not after engineering solutions are put in place.
II. Findings of Fact
1. The drainage swale that runs through the center of the proposed site carries runoff from the
upstream drainage area and much of the site. This drainageway is situated where the
facility's disposal units are to be located.
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2. The application specifies that the existing drainage swale is to be replaced by an engineered
structure, a new ditch rerouting the existing drainageway to the west of the disposal units.
3. The applicant has designed the facility to contain a cap, concrete vaults, concrete basemat,
sand drainage layer, leachate collection system, clay liner, and engineered fill material.
III. Conclusions
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 currect 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 that 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
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suitablity 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:
The hydrogeologic unit used for disposal shall not discharge ground water to the surface
within the disposal site.
Nebraska Administrative Code Title 180, Chapter 1, section 012.26A6 requires:
The hydrogeologic unit used for disposal shall not discharge ground water to the surface
within the management site.
Nebraska Administrative Code Title 194, Chapter 1 Section 024 states:
Hydrogeolocic unit means any soil or rock unit or zone which by virtue of its porosity or
permeability, or lack thereof, has a distinct influence on the storage or movement of
ground water.
Nebraska Administrative Code Title 180, Chapter 1, section 012.02 states:
Hydrogeolocic unit means any soil or rock unit or zone which by virtue of its porosity or
permeability, or lack thereof, has a distinct influence on the storage or movement of
ground water.
II. Findings of Fact
1. The hydrogeologic unit or hydrogeologic system, as defined by the applicant, consists of all
of the sediments overlying the Pierre Shale, that is, all of the material present at the site
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above the bedrock. Materials present at the site above bedrock comprise a single unit
characterized by similar hydrogeologic properties.
2. Hydrographs provided by the applicant for 1995, 1996, and 1997 document ground water
at or near the surface of the site.
3. As documented by the water table and topographic maps provided by the applicant, water
tables will intersect the ground surface at the point(s) at which the levels of the two surfaces
are at the same elevation.
4. Ground water discharge to the surface will occur at the point(s) of intersection of the water
table and the ground surface.
5. In portions of the existing drainage swale, ground water rises to the elevation of the ground
surface within the swale.
6. The water table surface is at a higher elevation than portions of the ground surface within
the proposed engineered ditch.
7. The applicant describes the swale as a topographically low area that functions as a net
ground water loss area with upward vertical gradients. This process described by the
applicant in the existing swale("ground water loss area, with upward vertical gradients") is
the same as that presented by the applicant to explain ground water discharging to the
surface in Wetland 01, immediately adjacent to the proposed site.
8. Computer modeling relied upon by the applicant for predicting ground water levels yields
different ground water level results depending on input values used; moreover, when
alternative input values are used, the applicant's own MODFLOW computer model predicts
that the water table intersects the surface at various portions of the site.
9. Anecdotal comments provided at the public hearing held in November 19998, regarding direct
observations of ground water at the surface of the site is conflicting. The applicant's
comment was that ground water has not been directly observed at the surface of the site.
However, the applicant did not have a dedicated surface observation program to document
that no surface discharge of ground water occurs. Local residents familiar with the site
stated taht they had observed ponded surface water, seeps, and saturated ground
depressions at the site.
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
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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 taht 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 describe 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 with the disposal
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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
Nebraska Administrative Code Title 194, Chapter 5, Section 002.02A requires:
Site design features shall be directed toward long-term isolation and avoidance of the need
for continuing active amintenance after site closure.
Nebraska Administrative Code Title 194, Chapter 1, Section 002 states:
Active maintenance means any significant activity needed during the period of institutional
control to maintain or to ensure that performance objectives in Chapter 4 are met. Such
active maintenance includes ongoing activities such as pumping and treatment of water
from a disposall unit or one-time measures such as replacement of a disposal unit cover.
Active maintenance does not include cutodial care activities such as repair of fencing,
repair or replacement of monitoring equipement, revegetation, minor repair of disposal unit
covers, and general disposal site upkeep such as mowing grass.
Nebraska Administrative Code Title 180, Chapter 1, section 012.25 requires:
The management facility shall be sited, designed, used, operated, and closed to achieve
long-term stability of the management site, and to eliminate, to the extent practicable, the
need for ongoing active maintenance of the management site following closure so that only
surveillance, monitoring, or minor custodial care are required.
Nebraska Administrative Code Title 180, Chapter 1, section 012.02 states:
Active maintenance means any significant activity needed during the period of institutional
control to maintain a reasonable assurance that performance objectives in 012.21 and
012.22 are met. Such active maintenance includes ongoing activities such as pumping and
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treatment of water from a disposal unit or one-time measures such as replacement of a
disposal unit cover. Active maintenance does not include custodial care activities such as
repair of fencing, repair or replacement of monitoring equipment, revegetaion, minor
additions to soil cover, minor repair of disposal unit covers, and general management site
upkeep such as mowing grass.
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
1. Ground water levels at the site have deen documented at levels higher than the elevation of
the proposed leachate collection system.
2. The applicant's model study (Appendix G.7) predicts an increase in water table elevation of
one to four feet after the cap is constructed.
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 dtected and remediated as soon as possible. In order to maintain an effective
environmental monitoring program, any liquids collected in the leachate collection systems 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 a[[lication 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.
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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
Nebraska Administrative Code, 194, Chapter 6, Section 001 requires that:
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 thos 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.
Title 194, Chapter 6, Section 002.08 provides as follows:
Financial or surety arrangements generally acceptable to the department include surety
bonds, cash deposits, certificates of deposit, deposits of government securities, escrow
accounts, irrevocable letters or lines of credit, trust funds, and combinations of the above
or such other types of arrangements as may be approved by the department. Self-
insurance, or any arrangement which essentially constitutes pledging the assets of the
licensee or any corporate, legal, or financial affiliate of the licensee is not allowed. The
issuing institution must be an entity which has the authority to issue letters of credit and
whose letter-of-credit operations are regulated and examined by a Federal or State
Agency.
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 on Class B/C cell)
Phase II: $23,900,000 (second ten years - construction of four additional Class A
cells)
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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 commitment 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 taht 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 Department 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 stregth 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,
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