Heartland Operation To Protect the Environment: Denial of Petition for Rulemaking

NUCLEAR REGULATORY COMMISSION

10 CFR Part 61

[Docket No. PRM-61-3]

Heartland Operation To Protect the Environment: Denial of

Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition

for rulemaking (PRM-61-3) submitted by the Heartland Operation to

Protect the Environment. The petitioner requested that the NRC amend

its regulations to adopt a rule regarding government ownership of a

low-level radioactive waste (LLRW) or (LLW) disposal site that is

consistent with petitioner's view of the applicable Federal statutes.

The petition is being denied because the NRC believes there is no

conflict between Section 151(b) of the Nuclear Waste Policy Act (NWPA)

and its regulations requiring that LLW disposal facilities be sited on

land owned by Federal or State government. The NRC has the authority to

require Federal or State land ownership as a condition for licensing a

LLW disposal facility and continues to believe the existing regulatory

procedures are appropriate.

ADDRESSES: Copies of the petition for rulemaking, the public comments

received, and the NRC's letter to the petitioner are available for

public inspection or copying in the NRC Public Document Room, 2120 L

Street NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, Office of Nuclear

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

20555-0001, telephone (301) 415-6196, E-mail [email protected]

SUPPLEMENTARY INFORMATION:

Background

On August 3, 1994 (59 FR 39485), prior to receipt of the petition

(PRM-61-3), the NRC published an advance notice of proposed rulemaking

(ANPRM) in the Federal Register regarding land ownership. The ANPRM

announced that the NRC was considering amending its regulations in 10

CFR 61.59(a) to allow private ownership of the land used for a LLRW

disposal facility site as an alternative to the current requirements

for Federal or State ownership. On July 18, 1995 (60 FR 36744), the NRC

published in the Federal Register a notice withdrawing the ANPRM

because the rule change was not warranted or needed. The basis for this

decision was the general indication from States and compacts that they

do not need, nor would they allow, private ownership, and that the rule

change under consideration could be potentially disruptive to the

current LLW program.

The Petition

On January 9, 1996 (61 FR 633), the NRC published a notice of

receipt of a petition for rulemaking filed by the Heartland Operation

to Protect the Environment (HOPE). The petitioner states that the NRC's

present regulation (10 CFR 61.59(a)), which permits disposal of LLW

``only on land owned in fee by the Federal or a State government,'' is

in conflict with a provision in Section 151(b) of the Nuclear Waste

Policy Act of 1982, as amended. The NWPA authorizes the U.S. Department

of Energy (DOE) ``to assume title and custody of low-level radioactive

waste and the land on which such waste is disposed of, upon request of

the owner of such waste and land and following termination of the

license issued by the Commission for such disposal * * *.'' Therefore,

the petitioner proposes that the NRC regulations should conform to the

NWPA provision and require private land ownership during operations and

closure of the facility, then converting title to the site to the DOE.

The petitioner, who also commented on the ANPRM, further states

that the notice withdrawing the ANPRM contains no documentation or

statement of any issue of public health and safety as the basis for the

regulation. Therefore, the petitioner believes that public health and

safety cannot be an issue upon which the NRC regulation is based.

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 might be derived from

making a generic rule change at this 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 quotation the NRC used in

the withdrawal notice. This quotation came from one of the comments

received on the ANPRM.

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 in order to assure proper LLRW management--are initially

made, and that such credibility problems are exacerbated the longer

such misrepresentations are allowed to continue.'' The petitioner

asserts that there would appear to be a larger credibility problem for

the Commission to maintain 10 CFR 61.59(a) that is, in the

petitioners's view, in direct conflict with a statute (i.e., Section

151(b) of the NWPA). 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.''

Public Comments on the Petition

The notice of receipt of the petition for rulemaking invited

interested persons to submit written comments

[[Page 67502]]

concerning the petition. The NRC received six comment letters. Three

comment letters were received from States, one from the DOE, one from

the Nuclear Energy Institute (NEI), and one from an environmental

organization. The comments generally focused on the main element of the

petition, that the Commission amend its regulations to adopt a rule

regarding government ownership of a LLW disposal facility that mirrors

the NWPA or the resultant impact of this rule change. One commenter

supported the petitioner and the other five believe the petition should

be denied. The comments and responses were reviewed and considered in

the development of NRC's decision on this petition. These comments are

available in the NRC Public Document Room. A summary of the significant

comments follows:

The commenter that supported this petition for rulemaking was the

State of Nebraska. Nebraska had also commented on the ANPRM discussed

above, and its position continues to support the petitioner's view that

the current NRC rule conflicts with the NWPA. Its comment also states

that, ``* * * there is very little connection between promulgating

regulations deemed necessary or desirable to protect public health or

to minimize danger to life and property and the current regulation

which requires low-level waste disposal on land owned by the federal or

state government before a facility can be licensed. While there may be

a need for having the state or federal government involved in owning

the property AFTER the operation and closure of a facility, this is not

what the current rule does. Instead, it requires state or federal

ownership prior to the license being issued'' (emphasis in the

original).

The positions and specific comments from the five commenters who

believe the petition should be denied are basically covered in the

``Reasons for Denial'' Section.

Reasons for Denial

The NRC is denying the petition for the following reasons: First,

the NRC believes the petitioner is incorrect that the current

regulations are inconsistent with Section 151(b) of the NWPA; second,

the NRC has the authority to require Federal or State land ownership as

a condition for licensing a LLW disposal facility and continues to

believe the existing regulatory procedures are appropriate; and third,

the NRC continues to believe that there would be a negative impact if

the changes proposed by the petitioner were implemented.

1. The NRC agrees with those commenters who believe the petitioner

has incorrectly interpreted the language and intent of the NWPA.

Section 151(b) of the NWPA merely authorizes, but does not require, the

DOE to take title to LLW disposal facility sites following termination

of an NRC license for such disposal. This is demonstrated by the

discretionary language of the statute. For example, under Section

151(b), as quoted by the petitioner, ``The Secretary (DOE) [sic] shall

have the [sic] authority to assume title and custody of low-level

radioactive waste and the land on which such waste is disposed of, upon

request by [sic] the owner of such waste and land and following

termination of the license issued by the Commission (NRC) [sic] for

such disposal * * *.'' The NRC believes that there is no conflict

between Section 151(b) of the NWPA and 10 CFR 61.59(a). NRC's

requirement under Sec. 61.59(a), that facilities be sited on land owned

by Federal or State government, does not prevent DOE from exercising

its authority under Section 151(b) of the NWPA to assume title and

custody after license termination. The DOE is a Federal entity and thus

could satisfy the Sec. 61.59(a) requirement for governmental land

ownership. The NRC regulation in Sec. 61.59(a) is broader than the

statutory requirement. For example, assuming for purposes of argument,

if DOE lacked the authority under Section 151(b) of the NWPA to own a

disposal site prior to license termination, NRC's regulations would

allow another Federal or State entity to own the land as required by

Sec. 61.59(a). The focus of Sec. 61.59(a) is on Federal or State land

ownership, whereas the focus of Section 151(b) is on DOE's authority to

assume title and custody of a LLW disposal facility.

Further, under Section 151(b)(2), ``If the Secretary assumes title

and custody of any such waste and land under this subsection, the

Secretary shall maintain such waste and land in a manner that will

protect the public health and safety, and the environment.'' The NWPA

thus allows the DOE, if it so chooses, to assume title and custody of

the waste and land after license termination. The discretionary nature

of the statutory language indicates that the petitioner's conclusion is

incorrect.

Finally, Sec. 61.59(a), on its face does not impose any obligation

on the States, rather it imposes a condition with respect to land

disposal of low-level waste, namely that the Commission will permit

disposal of low-level waste only on land owned by a Federal or State

entity. Thus, we see no conflict with the holding in New York v. United

States, 112 S. Ct. 2408 (1992) that Congress does not have the

authority under the Constitution to compel the States to take

affirmative action with regard to waste disposal. Similarly, NRC's

regulation, Sec. 61.59(a), does not direct or compel the States to take

affirmative action with regard to waste disposal.

2. As stated in the notice of withdrawal of the ANPRM, the

``Commission believes there is adequate statutory authority for the NRC

to require Federal or State land ownership.'' This authority comes from

the Atomic Energy Act of 1954, as amended, in Section 161b which gives

the Commission the authority to promulgate regulations deemed necessary

or desirable to protect health or to minimize danger to life or

property. The requirement for Federal or State government ownership of

land for disposal of waste at a land disposal facility has been a

requirement in the Commission's regulations since the inception of

commercial disposal operations (NRC promulgated the land ownership

requirement in 1961 (26 FR 352, January 18, 1961)). In exceptional

cases an exemption from this requirement may be granted in the public

interest if life or property is not endangered pursuant to 10 CFR 61.6.

The granting of an exemption by the State of Utah from State land

ownership regulations led the Commission to issue the ANPRM in order to

solicit comments regarding the possible desirability of changing the

rule, but the majority of comments received in response to that

solicitation convinced the Commission that no change should be made.

The NRC continues to believe that the requirement for governmental land

ownership in Sec. 61.59(a) will ensure control of the disposal site

after closure, and thereby reduce the potential for inadvertent

intrusion, better ensure integrity of the site, and facilitate

monitoring of site performance. Further, the NRC staff believes that

requiring government ownership prior to licensing is beneficial so that

a potential licensing issue is settled prior to the facility beginning

operation. The experience of the State of California in obtaining

Federal land for the proposed Ward Valley disposal facility is a case

in point that transfer of land is not automatic and should not be

assumed at the time the license is granted. Therefore, requiring

governmental land ownership prior to licensing is an appropriate

regulatory requirement.

3. In addition, as discussed in the notice of withdrawal of the

ANPRM and by several of the commenters, the proposed change in the

requirements could have a de-stabilizing effect on the ongoing efforts

by the States to license

[[Page 67503]]

LLW disposal facilities. The NRC believes that because there would be

no health and safety benefit from the proposed change in requirements,

it is inappropriate to take an action which could have an adverse

impact on the timely development of safe LLW disposal facilities.

For reasons cited in this document, the NRC denies the petition.

Dated at Rockville, Maryland, this 9th day of December, 1996.

For the Nuclear Regulatory Commission.

James M. Taylor,

Executive Director for Operations.

[FR Doc. 96-32486 Filed 12-20-96; 8:45 am]

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