Heartland Operation To Protect the Environment

SUMMARY: The Nuclear Regulatory Commission (NRC) is docketing, as a

petition for rulemaking, a document, dated August 7, 1995, filed with

the Commission by Heartland Operation to Protect the Environment

(HOPE). The petition was assigned Docket No. PRM-61-3 on October 6,

1995. The petitioner requests that the Commission amend its regulations

to adopt a rule regarding government ownership of a low-level

radioactive waste disposal site that is consistent with Federal

statute. In this document, the NRC is announcing the receipt of the

petition and requesting public comment on the suggested amendment.

DATES: Submit comments by March 11, 1996. Comments received after this

date will be considered if it is practical to do so. However, assurance

of consideration cannot be given except as to comments received on or

before this date.

ADDRESSES: Submit comments to the Nuclear Regulatory Commission,

Attention: Docketing and Service Branch, Office of the Secretary,

Washington, DC 20555-0001. For a copy of the petition, write to the

Rules Review Section, Rules Review and Directives Branch, Division of

Freedom of Information and Publications Services, Office of

Administration, U.S. Nuclear Regulatory Commission, Washington, DC

20555.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review

Section, at the same address as above or by telephone: 301-415-7163 or

toll free: 1-800-368-5642.

SUPPLEMENTARY INFORMATION:

Background

The NRC published an advance notice of proposed rulemaking (ANPRM)

in the Federal Register on August 3, 1994 (59 FR 39485). The ANPRM

announced that the NRC was considering amending its regulations to

allow private ownership of the land used for a low-level radioactive

waste (LLRW) facility site as an alternative to the current requirement

for Federal or State ownership. In the ANPRM, NRC considered the option

to allow private-land ownership indefinitely, given that adequate land-

use restrictions were imposed. The ANPRM invited comment on 12

questions to assist the NRC in determining if such a change could be

made without adversely impacting public health and safety. The NRC

received 49 comment letters in response to the ANPRM. The NRC prepared

a detailed summary of the comments received.1

\1\ Copies of the summary are available for inspection or

copying for a fee from the NRC Public Document Room at 2120 L Street

NW, (Lower Level), Washington DC; the PDR's mailing address is US

NRC, Mail Stop LL-6, Washington, DC 20555-0001; telephone (202) 634-

3273; fax (202) 634-3343.

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On July 18, 1995 (60 FR 36744), the NRC published a notice

withdrawing the ANPRM published in the Federal Register on August 3,

1994. In the notice of withdrawal, the NRC stated that a rule change to

allow private-land ownership of a LLRW site is not warranted or needed.

The NRC stated that the bases for its decision are that State and

compacts have generally indicated that they do not need, nor would they

allow, private-land ownership and that this rule change could be

potentially disruptive to the current LLRW program.

Petitioner's Concern

The petitioner states that the NRC's present regulation (10 CFR

61.59(a)), which requires disposal of LLRW ``only on land owned in fee

by the Federal or a State government,'' is in conflict with a provision

in the Nuclear Waste Policy Act of 1982 (NWPA), as amended (42 USC

10171(b)). The act authorizes the U.S. Department of Energy ``to assume

title and custody of low-level radioactive waste and the land on which

such waste is disposed of, upon request by the owner of such waste and

land following termination of the license issued by the Commission

(NRC) for such disposal * * *.'' Therefore, the petitioner proposes

that the NRC regulations should conform to NWPA provision and require

private land ownership during operations and closure of the facility,

then converting title to the site to the U.S. Department of Energy.

The petitioner states that, because of the conflict between the NRC

regulation and the NWPA statute, the NRC regulation is void with regard

to Federal ownership of a LLRW disposal site before commencement of the

receipt of waste. The petitioner asserts that if the regulation is void

with regard to Federal ownership, that it is also silent or

unconstitutional with regard to State ownership. The petitioner

references the following case [New York v. United States, 112 S.Ct.

2408 (1992)].

Several commenters, including the petitioner, made similar comments

on the ANPRM that there is not an adequate basis for requiring Federal

or State land ownership, which therefore would support private

ownership. In the withdrawal of the ANPRM, the Commission stated that

it believes there is adequate statutory authority for NRC to require

Federal or State land ownership. The Commission Paper (SECY-95-152;

dated June 13, 1995) further discussed the NRC staff rationale for

believing that NRC has this authority. The paper stated the staff's

belief that NRC has authority to require Federal or State land

ownership pursuant to the Atomic Energy Act of 1954, as amended, in

Section 161b. This section gives the Commission the authority to

promulgate regulations deemed necessary or desirable to protect health

or to minimize danger to life or property.

The petitioner further states that the notice withdrawing the ANPRM

(60 FR 36744) contains no documentation or statement of any issue of

public health and safety as the basis for the regulation; therefore,

the petitioner believes public health and safety cannot be an issue

upon which the NRC regulation is based.

The petitioner also states that the notice of withdrawal contains

the statement: ``The Commission believes that the potential negative

impact of disrupting the current process far outweighs any potential

benefits that

[[Page 634]]

might be derived from making a generic rule change at that time.'' In

response, the petitioner asserts that the Commission's role is to

regulate nuclear material in a manner that protects public health and

safety and the environment, that its role is not to facilitate specific

processes, i.e., the current LLRW disposal process.

The petitioner references the following quote from the notice of

withdrawal:

For over three decades the public has been led to believe that

all LLW disposal sites would necessarily be owned and controlled by

either a Federal or State government. This, we believe, has been an

important factor in convincing many proponent groups and State and

local LLW advisory groups that LLW can and will be disposed of in a

safe manner. To now try and convince these groups that Federal or

State ownership of LLW disposal sites is not required may be

difficult and generate a significant credibility problem.

In response, the petitioner states that credibility problems occur

when misrepresentations, i.e., government ownership is necessary to

ensure proper LLRW management, are initially made and that the

credibility problems are exacerbated the longer the misrepresentations

are allowed to continue. The petitioner believes that there certainly

would appear to be a larger credibility problem for the Commission to

maintain a regulation that is in direct conflict with a statute. The

petitioner offers that the Commission might reflect on the Department

of Energy's recent efforts to gain credibility by coming clean on past

misrepresentations, i.e., secret radiation studies.

Conclusion

The petitioner believes that for the stated reasons, the NRC should

adopt a rule regarding government ownership of LLRW disposal sites that

is consistent with the Federal statute [42 USC 10171(b)].

Dated at Rockville, Maryland, this 2nd day of January, 1996.

For the Nuclear Regulatory Commission.

John C. Hoyle,

Secretary of the Commission.

[FR Doc. 96-282 Filed 1-8-96; 8:45 am]

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