Office of Civilian Radioactive Waste Management; General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories; Yucca Mountain Site Suitability Guidelines
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Federal Register › Vol. 64 › 64 FR 67054
Text
Part IV
Department of Energy
_______________________________________________________________________
10 CFR Parts 960 and 963
Office of Civilian Radioactive Waste Management; Nuclear Waste
Repositories; Yucca Mountain Site Suitability Guidelines; Proposed
Rulemaking
Proposed Rules
DEPARTMENT OF ENERGY
10 CFR Parts 960 and 963
[Docket No. RW-RM-99-963]
RIN No. 1901-AA72
Office of Civilian Radioactive Waste Management; General
Guidelines for the Recommendation of Sites for Nuclear Waste
Repositories; Yucca Mountain Site Suitability Guidelines
AGENCY: Office of Civilian Radioactive Waste Management, Department of
Energy (DOE).
ACTION: Supplemental Notice of Proposed Rulemaking.
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SUMMARY: DOE invites public comment on a revised proposal to amend the
policies under the Nuclear Waste Policy Act of 1982 for evaluating the
suitability of Yucca Mountain, Nevada, as a site for development of a
nuclear waste repository. Today's revised proposal focuses on the
criteria and methodology to be used for evaluating relevant geological
and other related aspects of the Yucca Mountain site. Consistent with
longstanding policy to conform DOE regulations regarding its nuclear
waste repository program to comparable regulations of the Nuclear
Regulatory Commission, DOE's proposed criteria and methodology are
based on the Nuclear Regulatory Commission's recently proposed
regulations for licensing a nuclear waste repository at Yucca Mountain.
DATES: Written comments must be received by February 14, 2000. DOE
requests one copy of the written comments. DOE will hold two public
hearings on this supplemental notice of proposed rulemaking. A
subsequent Federal Register document, that will announce hearing dates,
locations, and times, will be issued during the comment period.
s for licensing a nuclear waste repository at Yucca Mountain.
DATES: Written comments must be received by February 14, 2000. DOE
requests one copy of the written comments. DOE will hold two public
hearings on this supplemental notice of proposed rulemaking. A
subsequent Federal Register document, that will announce hearing dates,
locations, and times, will be issued during the comment period.
ADDRESSES: Written comments should be addressed to Dr. William J.
Boyle, U.S. Department of Energy, Yucca Mountain Site Characterization
Office, P.O. Box 98608, Las Vegas, Nevada 89193-8608, or provided by
electronic mail to 10CFR[email protected].
Copies of the transcripts of the hearings, written comments, and
documents referenced in this notice may be inspected and photocopied in
the Yucca Mountain Science Center, 4101B Meadows Lane, Las Vegas,
Nevada, (702) 295-1312, and the DOE Freedom of Information Reading
Room, Room 1E-190, Forrestal Building, 1000 Independence Avenue, SW,
Washington, DC (202) 586-3142, between the hours of 8:30 a.m. and 4
p.m., Monday through Friday, except for Federal holidays. For more
information concerning public participation in this rulemaking, please
refer to the Opportunity for Public Comment section of this notice.
FOR FURTHER INFORMATION CONTACT: Dr. William J. Boyle, U.S. Department
of Energy, Office of Civilian Radioactive Waste Management, Yucca
Mountain Site Characterization Office, P.O. Box 98608, Las Vegas,
Nevada 89193-8608, (800) 967-3477.
SUPPLEMENTARY INFORMATION:
on concerning public participation in this rulemaking, please
refer to the Opportunity for Public Comment section of this notice.
FOR FURTHER INFORMATION CONTACT: Dr. William J. Boyle, U.S. Department
of Energy, Office of Civilian Radioactive Waste Management, Yucca
Mountain Site Characterization Office, P.O. Box 98608, Las Vegas,
Nevada 89193-8608, (800) 967-3477.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
A. Enactment of the Nuclear Waste Policy Act
1. Development of the Nuclear Waste Policy Act
2. Overview of the Nuclear Waste Policy Act
B. DOE Promulgation of the General Guidelines at 10 CFR part 960
1. Overview of the General Guidelines
2. Structure of the General Guidelines
3. Bases for Structure of the General Guidelines
4. Consistency with NRC Technical and Procedural Conditions
C. DOE Application of the Guidelines
D. 1987 Amendments to NWPA
E. Yucca Mountain Site Characterization Plan
1. Statutory Requirements
2. Structure of the Site Characterization Plan
F. Energy Policy Act of 1992
G. Evolution of the Site Characterization Program
H. The 1993-1995 Public Dialogue on the Guidelines
I. The 1996 Notice of Proposed Rulemaking
J. Proposed NRC Regulation, 10 CFR part 63
1. Background
2. Structure of Proposed part 63
K. Proposed EPA Regulation, 40 CFR part 197
1. Background
2. Structure of Proposed part 197
III. Basis for Proposal
A. Legal Authority and Necessity to Amend the Guidelines and
Criteria
1. Overview
2. Section 112
3. Section 113
B. Events Necessitating Amendment of the Guidelines and Criteria
1. Congressional Redirection of the Program
2. Consistency Between DOE and NRC Regulations
3. Improvements in Analytical Methods
IV. Response to Public Comments on the 1996 Proposal
A. Legal Authority
B. C-K
V. Description of Proposal--10 CFR part 960
A. Subpart A--General Provisions
B. Subpart B--Implementation Guidelines
C. Appendix III
VI. Description of Proposal--10 CFR part 963
A. Subpart A--General Provisions
B
of the Program
2. Consistency Between DOE and NRC Regulations
3. Improvements in Analytical Methods
IV. Response to Public Comments on the 1996 Proposal
A. Legal Authority
B. C-K
V. Description of Proposal--10 CFR part 960
A. Subpart A--General Provisions
B. Subpart B--Implementation Guidelines
C. Appendix III
VI. Description of Proposal--10 CFR part 963
A. Subpart A--General Provisions
B. Subpart B--Yucca Mountain Site Characterization Suitability
Determination, Methods and Criteria
VII. Opportunity for Public Comment
A. Participation in Rulemaking
B. Written Comment Procedures
C. Hearing Procedures
VIII. Regulatory Review
A. Review for Compliance with the National Environmental Policy
Act (NEPA)
B. Review under the Regulatory Flexibility Act
C. Review under the Paperwork Reduction Act
D. Review under the Unfunded Mandates Reform Act
E. Review under Executive Order 12612
F. Review under Executive Order 12866
G. Review under Executive Order 12875
H. Review under Executive Order 12988
I. Review under Executive Order 13084
J. Review under the Treasury and General Government
Appropriations Act, 1999
I. Introduction
DOE today publishes this supplementary notice of proposed
rulemaking in order to revise its December 16, 1996, proposal (61 FR
66158) to amend the ``General Guidelines for the Recommendation of
Sites for Nuclear Waste Repositories'') (Guidelines) (10 CFR part 960)
that DOE promulgated under the Nuclear Waste Policy Act (NWPA) in 1984
(42 U.S.C. 10101, et seq.). The General Guidelines describe the DOE
policies applicable to three sequential stages of the NWPA siting
process, which are: (1) Preliminary site screening; (2) nomination of
sites for site characterization (geological investigation of selected
sites); and (3) selection of a site for recommendation to the
President. The Guidelines are consistent with the licensing regulations
of the Nuclear Regulatory Commission (NRC) in 10 CFR part 60
ies applicable to three sequential stages of the NWPA siting
process, which are: (1) Preliminary site screening; (2) nomination of
sites for site characterization (geological investigation of selected
sites); and (3) selection of a site for recommendation to the
President. The Guidelines are consistent with the licensing regulations
of the Nuclear Regulatory Commission (NRC) in 10 CFR part 60.
In its December 16, 1996, proposal, DOE published proposed
regulatory amendments to the Guidelines to reflect the prevailing
scientific view on how to evaluate the suitability of the Yucca
Mountain site for the development of a nuclear waste repository.
Because the preliminary site screening stage was complete and Congress
has required DOE to focus on Yucca Mountain, Nevada, DOE's proposed
regulatory amendments dealt with provisions of the Guidelines
applicable to the site recommendation stage. Today DOE is revising the
terms of its proposal for three reasons.
First, during the comment period on the December 16, 1996,
proposal, DOE received comments from members of the public, State and
local officials of Nevada, the U.S. Environmental
Protection Agency (EPA), and the U.S. Nuclear Waste Technical Review
Board, that in substance criticized the omission from the proposed
regulatory amendments of the essential details of the criteria and
methodology for evaluating the suitability of the Yucca Mountain site
for the location of a nuclear waste repository. Some of the comments
made pointed recommendations for guidelines at a more definitive level
of specificity than the proposed regulatory text provided. Also, there
were comments critical of the legal basis for DOE's proposal and its
consistency with what those commenters viewed as DOE's past position on
the meaning of sections 112(a) and 113(b) of the Act
ocation of a nuclear waste repository. Some of the comments
made pointed recommendations for guidelines at a more definitive level
of specificity than the proposed regulatory text provided. Also, there
were comments critical of the legal basis for DOE's proposal and its
consistency with what those commenters viewed as DOE's past position on
the meaning of sections 112(a) and 113(b) of the Act. As explained in
detail later in this notice, DOE concluded that there was enough merit
in these comments to warrant revision of the proposed regulatory
amendments and expansion of the explanation of the factual and legal
bases for them.
Second, in December, 1998, DOE issued, pursuant to Congressional
direction, the Viability Assessment of a Repository at Yucca Mountain
(Viability Assessment) (DOE/RW-0508). This document, which is available
through the Internet on the web site (www.ymp.gov) or in hard copy upon
request (see above, Further Information) sets forth the bases for the
site suitability criteria DOE is proposing to use and the methodology
for applying the criteria to a design for a proposed repository at the
Yucca Mountain site. DOE can now assist commenters in responding to
DOE's proposal with appropriate descriptions of, and references to, key
portions of the Viability Assessment in the Supplementary Information.
Third, after the close of the comment period, the U.S. Nuclear
Regulatory Commission (NRC), consistent with Congressional direction to
the EPA to develop a site-specific radiation protection standard for
the Yucca Mountain site, proposed to issue site-specific licensing
requirements for that site in a new 10 CFR part 63 and to eliminate the
site from coverage under 10 CFR part 60. Thereafter, EPA issued the
Congressionally-mandated proposal for site-specific public health and
safety standards for a repository at Yucca Mountain, to be codified at
40 CFR part 197
iation protection standard for
the Yucca Mountain site, proposed to issue site-specific licensing
requirements for that site in a new 10 CFR part 63 and to eliminate the
site from coverage under 10 CFR part 60. Thereafter, EPA issued the
Congressionally-mandated proposal for site-specific public health and
safety standards for a repository at Yucca Mountain, to be codified at
40 CFR part 197. Section 113(c) of the NWPA provides that a
determination of site suitability for development as a repository is
largely an estimate that an application to the NRC for a construction
authorization would be successful. 42 U.S.C. 10133(c). Thus, the
details of the NRC proposal, which were not available when DOE
formulated its December 16, 1996, proposal, affect the continuing
usefulness of existing 10 CFR part 960, the text of DOE's proposed
regulatory amendments, and the bases for those amendments in performing
the analysis required by section 113. For reasons explained in detail
below, DOE is of the view that the proposed part 63, if finalized
without significant change, would make it illogical to apply the
existing provisions of 10 CFR part 960, which are explicitly linked to
provisions of the NRC's part 60. Moreover, the details of the NRC's
proposal suggest the need for making conforming changes to the December
16, 1996, proposal to set forth the requirements for carrying out a
total system performance assessment as the method for applying the site
suitability criteria to the data developed during site characterization
of the Yucca Mountain site
citly linked to
provisions of the NRC's part 60. Moreover, the details of the NRC's
proposal suggest the need for making conforming changes to the December
16, 1996, proposal to set forth the requirements for carrying out a
total system performance assessment as the method for applying the site
suitability criteria to the data developed during site characterization
of the Yucca Mountain site.
Consistent with EPA's proposal for site-specific public health
standards and NRC's proposal to limit part 60 and to establish a new
part 63 for the Yucca Mountain site, DOE today is proposing regulations
to: (1) Limit 10 CFR part 960 to preliminary site screening for
repositories located elsewhere than Yucca Mountain; and (2) establish a
new part 963 to contain the site suitability criteria and the methods
for considering the potential of the Yucca Mountain site for a nuclear
waste repository under those criteria. The proposed suitability
criteria and methods provide a link between the geologic considerations
identified in section 112(a) of the NWPA as primary criteria for siting
a repository, and the current scientific understanding of site
characteristics and related processes that are important to assessing
the performance and safety of a potential geologic repository at the
Yucca Mountain site. Although closely linked to the NRC's proposed part
63 licensing criteria and requirements, as is necessary and
appropriate, DOE's proposed regulations in part 963 are not the
equivalent of a determination that the site necessarily will meet all
requirements to obtain a license from the NRC, or to be recommended by
the Secretary for development as a geologic repository
he
Yucca Mountain site. Although closely linked to the NRC's proposed part
63 licensing criteria and requirements, as is necessary and
appropriate, DOE's proposed regulations in part 963 are not the
equivalent of a determination that the site necessarily will meet all
requirements to obtain a license from the NRC, or to be recommended by
the Secretary for development as a geologic repository. Rather, DOE is
proposing this new rule to better define its policies and criteria for
determining the suitability of the Yucca Mountain site only in terms
of, and based on, the information and data developed through the
program of site characterization activities DOE has conducted over the
years at Yucca Mountain under section 113(b) of the NWPA.
In issuing this notice, DOE is seeking to improve its policies for
determining site suitability by enhancing their transparency, validity,
and verifiability. In terms of transparency, DOE is aiming at
regulations that are easier to read and understand. In terms of
validity, DOE is aiming at an explanation of the legal and scientific
basis for the regulations that shows how DOE's policies logically
follow from scientifically supportable and legally sound premises. In
terms of verifiability, DOE is aiming to show that the scientific
conclusions underlying its policies are based on documented empirical
results of experiments, and computer analyses of relevant data
sufficient to warrant the conclusions DOE may eventually draw from
known facts in a supporting statement for site recommendation to the
President.
DOE hereby invites interested members of the public, State and
local officials, and other Executive Branch agencies to review today's
revised proposal and to provide comments on how well this rulemaking
achieves these objectives. In addition, DOE intends to follow the
consultation procedures set forth in section 112(a) of the NWPA for
promulgation of the Guidelines in seeking review and comment on this
revised proposal.
II. Background
public, State and
local officials, and other Executive Branch agencies to review today's
revised proposal and to provide comments on how well this rulemaking
achieves these objectives. In addition, DOE intends to follow the
consultation procedures set forth in section 112(a) of the NWPA for
promulgation of the Guidelines in seeking review and comment on this
revised proposal.
II. Background
This section provides an overview of the developments which have
led DOE to propose to revise certain sections of the existing General
Guidelines for the Recommendation of Sites for Nuclear Waste
Repositories and to adopt a new rule governing the site suitability
criteria for the Yucca Mountain site.
A. Enactment of the Nuclear Waste Policy Act of 1982
1. Development of the Nuclear Waste Policy Act
The Nuclear Waste Policy Act of 1982 (NWPA) was enacted to provide
for the siting, construction, and operation of repositories for which
there is a reasonable assurance that the public and the environment
will be adequately protected from the hazards posed by spent nuclear
fuel and high-level radioactive waste (hereinafter referred to as
``spent fuel'' or ``high-level waste'' or both). The NWPA established
the Federal responsibility and defined Federal policy for the disposal
of spent fuel and high-level waste. Because this waste remains
radioactive for many thousands of years, Congress recognized that
disposal involved many complex and novel technical and societal issues.
To develop an appropriate framework for the resolution of these issues,
several
vel waste'' or both). The NWPA established
the Federal responsibility and defined Federal policy for the disposal
of spent fuel and high-level waste. Because this waste remains
radioactive for many thousands of years, Congress recognized that
disposal involved many complex and novel technical and societal issues.
To develop an appropriate framework for the resolution of these issues,
several
years of intense legislative effort were required before a political
consensus emerged to support enactment of the NWPA.
To meet the well-recognized reluctance of communities to host such
facilities, the NWPA included a national site selection process that
was designed to ensure fairness and objectivity in the identification
of potential candidate sites for a repository. To ensure that the DOE
would consider only candidate sites that had good potential for being
licensed by the NRC, the NWPA required the DOE to obtain NRC
concurrence on the DOE's general siting guidelines. And to ensure that
the regulatory requirements for a repository would be set independently
of any responsibility assigned to the DOE to develop that repository,
the EPA was authorized to promulgate generally applicable standards for
the protection of the environment. The NRC was authorized to establish
repository licensing requirements and criteria, although these
requirements and criteria could not be inconsistent with any comparable
standards promulgated by the EPA.
2. Overview of the Nuclear Waste Policy Act
As originally enacted in 1982, the NWPA set forth requirements for
selecting sites for the disposal of spent fuel and high-level wastes in
a geological repository. 42 U.S.C. 10101, et seq. Several stages were
established for the evaluation of potential sites, and these stages
were defined in section 112, Recommendation of Candidate Sites for Site
Characterization; section 113, Site Characterization; and section 114,
Site Approval and Construction Authorization
lecting sites for the disposal of spent fuel and high-level wastes in
a geological repository. 42 U.S.C. 10101, et seq. Several stages were
established for the evaluation of potential sites, and these stages
were defined in section 112, Recommendation of Candidate Sites for Site
Characterization; section 113, Site Characterization; and section 114,
Site Approval and Construction Authorization.
Section 112 of the NWPA addresses the initial stage of the site
selection process, and includes four distinct steps: (1) DOE
preliminary site screening (42 U.S.C. 10132(a)); (2) DOE nomination of
at least five sites as suitable for characterization (42 U.S.C.
10132(b)(1)(A)); (3) DOE recommendation to the President of three of
the five nominated sites as candidates for characterization (42 U.S.C.
10132(b)(1)(B)); and (4) Presidential approval of nominated sites for
characterization (42 U.S.C. 10132(c)). Specifically, section 112(a)
directs the DOE to issue general guidelines for the recommendation of
candidate sites for site characterization. Section 112 directed DOE to
consult with several federal agencies and obtain NRC concurrence on
these guidelines.
Under section 112(a), DOE was required to specify in the
guidelines: (1) detailed geologic considerations that were to be the
primary criteria for the selection of sites for characterization in
various geologic media; (2) certain factors (e.g., hydrology,
geophysics, seismic activity) that would either qualify or disqualify a
site from characterization; and (3) population density and distribution
factors that would disqualify any site for characterization. 42 U.S.C.
10132(a). Section 112(a) also required DOE to include certain factors
related to the comparative advantages among candidate sites. The DOE
was directed to use the guidelines to consider candidate sites for
recommendation as candidates for characterization. Section 112(a)
explicitly authorized DOE to modify the guidelines consistent with the
provisions of section 112(a)
cterization. 42 U.S.C.
10132(a). Section 112(a) also required DOE to include certain factors
related to the comparative advantages among candidate sites. The DOE
was directed to use the guidelines to consider candidate sites for
recommendation as candidates for characterization. Section 112(a)
explicitly authorized DOE to modify the guidelines consistent with the
provisions of section 112(a).
Furthermore, section 112(a) directed DOE to develop certain
qualifying or disqualifying factors for the preliminary site screening
stage of the site selection process. Except for population density, the
specific content of the qualifying or disqualifying factors was left to
DOE's informed discretion. Because these factors are part of the
Guidelines, their specific content could be modified in accordance with
the authority in section 112(a).
Section 112(b) of the NWPA addressed DOE's recommendation to the
President of sites for site characterization, that is, for intensive
investigation of geologically related characteristics through surface
and subsurface testing, among other investigative techniques. DOE was
to nominate at least five sites as suitable for characterization. Each
nominated site was to be accompanied by an environmental assessment. Of
the five sites, DOE was to recommend three to the President for
characterization. Section 112(c) of the NWPA addresses the President's
review and approval of candidate sites for characterization.
Section 113 of the NWPA addresses site characterization, which
involves activities that could proceed only after the section 112
actions had been completed. Section 113(a) authorizes DOE to conduct
site characterization activities at the sites that had been approved by
the President for characterization. Section 113(b) establishes the
scope of DOE's site characterization activities, and directs the
publication of a general plan for these activities. 42 U.S.C.
10133(b)(1)(A)
hat could proceed only after the section 112
actions had been completed. Section 113(a) authorizes DOE to conduct
site characterization activities at the sites that had been approved by
the President for characterization. Section 113(b) establishes the
scope of DOE's site characterization activities, and directs the
publication of a general plan for these activities. 42 U.S.C.
10133(b)(1)(A). DOE is to report semiannually on its ongoing and
planned site characterization activities and the information derived
therefrom. 42 U.S.C. 10133(b)(3). Section 113(b) also directs that the
DOE include in the site characterization plan, criteria to be used to
determine the suitability of a site for the location of a repository,
developed pursuant to section 112(a). 42 U.S.C. 10133(b)(1)(A)(iv).
Section 113(c) establishes limits on DOE's site characterization
activities, and provides direction on how DOE is to proceed if at any
time it determines that a site would be unsuitable for development as a
repository.
Section 114 addresses site approval and construction authorization,
and can only proceed as the section 113 site characterization
activities near completion. Four distinct steps are defined in this
section: (1) DOE recommendation of a site to the President for approval
to develop as a repository [42 U.S.C. 10134(a)]; (2) recommendation of
a site by the President to Congress [42 U.S.C. 10134(a)(2)]; (3)
Congressional designation of the site [42 U.S.C. 10134(b)]; and (4)
conduct of a licensing proceeding by the NRC [42 U.S.C. 10134(c)].
Further, under section 115, after the President recommends a site to
Congress, the Governor and the legislature of the host State may submit
a notice of disapproval. If the State disapproves, Congress must enact
a resolution of siting approval in order to designate the site. 42
U.S.C. 10135(b). If the Congressional designation takes effect, DOE
must submit an application to the NRC for a construction authorization.
42 U.S.C. 10134(b)
dent recommends a site to
Congress, the Governor and the legislature of the host State may submit
a notice of disapproval. If the State disapproves, Congress must enact
a resolution of siting approval in order to designate the site. 42
U.S.C. 10135(b). If the Congressional designation takes effect, DOE
must submit an application to the NRC for a construction authorization.
42 U.S.C. 10134(b).
Section 114(a) provides for DOE activities necessary to prepare a
recommendation to the President for Presidential approval of a site for
development as a repository. These activities include public hearings
in the vicinity of the site to inform residents of the area and receive
their comments, and the completion of site characterization. Upon
completion of these hearings and site characterization, the Secretary
may decide to recommend the site to the President. A comprehensive
statement of the basis for this recommendation is to accompany the
recommendation, and be made available to the public. 42 U.S.C.
10134(a)(1). Section 114(b) then authorizes DOE to apply to the NRC for
construction authorization, if the President recommends a site to the
Congress and that recommendation is permitted to take effect. Sections
114(c)-(e) direct the NRC and DOE on certain aspects of the
construction authorization process. Section 114(f) requires that a
final Environmental Impact Statement (EIS) accompany the Secretary's
recommendation of a site to the President.
B. DOE Promulgation of General Guidelines at 10 CFR Part 960
ecommends a site to the
Congress and that recommendation is permitted to take effect. Sections
114(c)-(e) direct the NRC and DOE on certain aspects of the
construction authorization process. Section 114(f) requires that a
final Environmental Impact Statement (EIS) accompany the Secretary's
recommendation of a site to the President.
B. DOE Promulgation of General Guidelines at 10 CFR Part 960
1. Overview of the General Guidelines
Section 112(a) of the NWPA directed DOE to issue general guidelines
for the recommendation of sites for characterization, in consultation
with certain Federal agencies and interested Governors, and with the
concurrence of the NRC. These general guidelines were to be comparative
in nature, as DOE was required to consider various geologic media and
such considerations as proximity to where spent fuel and high-level
waste were stored. The general guidelines were also to consider non-
geologic factors, such as population density and distribution, that
would not be examined in site characterization. No other procedural
requirements were imposed on the issuance of these guidelines.
DOE promulgated the section 112(a) guidelines by notice and comment
rulemaking, in addition to the consultation and concurrence process
specified in the NWPA. The DOE also conducted several public meetings
on the guidelines. These additional activities, although not required
by the NWPA, enabled DOE to receive comments from interested members of
the public. The general guidelines were promulgated on December 6,
1984, and codified in the Code of Federal Regulations at 10 CFR part
960, General Guidelines for the Recommendation of Sites for the Nuclear
Waste Repositories. 49 FR 47714.
2. Structure of the General Guidelines
The Guidelines promulgated by DOE defined the basic technical
requirements that candidate sites must meet, and specified how DOE
would implement its site-selection process
cember 6,
1984, and codified in the Code of Federal Regulations at 10 CFR part
960, General Guidelines for the Recommendation of Sites for the Nuclear
Waste Repositories. 49 FR 47714.
2. Structure of the General Guidelines
The Guidelines promulgated by DOE defined the basic technical
requirements that candidate sites must meet, and specified how DOE
would implement its site-selection process. The Guidelines were
structured according to three categories: implementation guidelines,
preclosure guidelines and postclosure guidelines. The implementation
guidelines addressed general application of all the guidelines, and
established the methodology for applying the guidelines during the
various stages of the siting process: site screening and nomination,
recommendation for characterization, and recommendation for repository
development. The preclosure guidelines governed the siting
considerations that dealt with the operation of a geologic repository
before it is closed. The postclosure guidelines governed the siting
considerations that dealt with the long-term behavior of a geologic
repository after waste emplacement and closure.
Both the preclosure and postclosure guidelines were organized under
general categories of interest, for example, geohydrology and
geochemistry. Each category was further divided into system guidelines
and corresponding technical guidelines. The system guidelines addressed
broad requirements for a geologic repository under preclosure and
postclosure conditions; the corresponding technical guidelines
specified conditions that would qualify or disqualify a site, and
conditions that would be considered favorable or potentially adverse.
49 FR 47724. In effect, the technical guidelines and the associated
qualifying and disqualifying conditions imposed specific ``subsystem''
performance requirements; each subsystem requirement would be used to
evaluate the merits of a site, independent of the other requirements
ns that would qualify or disqualify a site, and
conditions that would be considered favorable or potentially adverse.
49 FR 47724. In effect, the technical guidelines and the associated
qualifying and disqualifying conditions imposed specific ``subsystem''
performance requirements; each subsystem requirement would be used to
evaluate the merits of a site, independent of the other requirements.
Section 112 of the NWPA described the minimum steps that DOE was to
take during site screening and prior to site characterization. When
promulgating the Guidelines in 1984, DOE determined that application of
the Guidelines should extend beyond preliminary site screening to
encompass site characterization activities and site recommendation to
the President. Appendix III to the Guidelines explained how certain of
the Guidelines would be applied at the principal decision points of the
siting process: (1) identification of a site as being potentially
acceptable under section 112(b); (2) nomination and recommendation of
sites as suitable for characterization under sections 112(b) and (c);
and (3) recommendation of a site for development as a repository
(sections 113 and 114). 49 FR 47729-47730. With respect to the third
decision point, which would be reached only after completion of site
characterization activities and non-geologic data gathering activities,
DOE did not promulgate separate Guidelines. Instead, DOE indicated that
the preclosure and postclosure Guidelines would be applied to this
decision, and appropriate findings issued, in the manner prescribed in
Appendix III. Appendix III specified the types of findings that were to
be issued from the application of the disqualifying and the qualifying
conditions at each of the three decision points
id not promulgate separate Guidelines. Instead, DOE indicated that
the preclosure and postclosure Guidelines would be applied to this
decision, and appropriate findings issued, in the manner prescribed in
Appendix III. Appendix III specified the types of findings that were to
be issued from the application of the disqualifying and the qualifying
conditions at each of the three decision points. The types of findings
corresponded with the level of confidence required to make a finding;
that is, a lower level finding required one degree of confidence in the
finding, and a higher level finding required an increased level of
confidence in the finding over the lower level. 49 FR 47728-47729.
Appendix III included a table summarizing the level of the finding
required at each of the three decision points.
Appendix III represents the analytical process DOE would follow to
issue findings relative to the disqualifying and qualifying conditions
of a site, and use in its decision-making on site selection. This
analytical process dictates a higher-level of confidence in the
findings of qualifying or disqualifying conditions at the last stage of
the siting process, site selection for repository development, compared
to the initial stage of the siting process, site nomination for site
characterization. DOE anticipated that the higher-level of confidence
in its technical findings would be obtained through the site
characterization process undertaken at the later stages of the
selection process.
3. Bases for the Structure of the General Guidelines
The structure and development of the Guidelines were based on four
primary sources of information and considerations: (1) The direction in
the NWPA, as originally enacted; (2) the extant understanding of
geologic disposal in the scientific and technical community; (3)
applicable regulations proposed by the NRC and the EPA governing the
disposal of spent nuclear fuel and high-level radioactive waste in
geologic repositories; and (4) public comments
d on four
primary sources of information and considerations: (1) The direction in
the NWPA, as originally enacted; (2) the extant understanding of
geologic disposal in the scientific and technical community; (3)
applicable regulations proposed by the NRC and the EPA governing the
disposal of spent nuclear fuel and high-level radioactive waste in
geologic repositories; and (4) public comments.
DOE initiated the rulemaking process by assembling a task force of
program experts. 49 FR 47718. The task force developed draft Guidelines
based on criteria used earlier in the National Waste Terminal Storage
Program, including program objectives, system performance criteria, and
site performance criteria. At the time, the task force reviewed other
criteria defined for geologic repositories by the National Academy of
Sciences and the International Atomic Energy Agency.
The task force also sought consistency with NRC regulations and
proposed EPA regulations related to geologic repositories. 49 FR 47718.
NRC is the statutory agency responsible for licensing the construction
and operation of a geologic repository; EPA is the statutory agency
responsible for setting public health and safety standards for a
geologic repository. Consistency of the DOE Guidelines with these
regulatory standards was essential, since any potential site would be
evaluated based on its ability to meet applicable regulatory
requirements. 49 FR 47721.
In sum, the structure and content of the Guidelines was based on
the state of knowledge in the late-1970s and early-
for setting public health and safety standards for a
geologic repository. Consistency of the DOE Guidelines with these
regulatory standards was essential, since any potential site would be
evaluated based on its ability to meet applicable regulatory
requirements. 49 FR 47721.
In sum, the structure and content of the Guidelines was based on
the state of knowledge in the late-1970s and early-
1980s in the regulatory community, as well as the national and
international scientific community, regarding the development of
geologic repositories.
DOE sought and received extensive public comments on a draft of the
Guidelines before submitting them to the NRC for concurrence. On
February 7, 1983, the proposed Guidelines were published in the Federal
Register (48 FR 5670) for public review and comment. In addition, DOE
published a separate notice soliciting comment from the Governors of
the six States with potentially acceptable sites, and then met
individually with officials from each of these States. DOE also held a
series of regional public hearings. After considering the comments
received, DOE drafted a set of alternate Guidelines to address the
comments. The alternate Guidelines and public comments were made
available in a second notice on June 7, 1983 (48 FR 26441), followed by
a second public comment period. Further regional meetings and
consultations with Federal agencies were held before DOE submitted the
Guidelines to NRC for concurrence on November 22, 1983. 49 FR 47718-
47719.
4. Consistency With NRC Technical and Procedural Conditions
Of particular importance to DOE's formulation of the Guidelines was
consistency with NRC licensing regulations for the disposal of waste in
a geologic repository. 49 FR 47718. In June 1983, NRC amended its
licensing regulations at 10 CFR part 60 with respect to subpart E,
technical criteria addressing siting, design and performance objectives
of a geologic repository. 48 FR 28194
Conditions
Of particular importance to DOE's formulation of the Guidelines was
consistency with NRC licensing regulations for the disposal of waste in
a geologic repository. 49 FR 47718. In June 1983, NRC amended its
licensing regulations at 10 CFR part 60 with respect to subpart E,
technical criteria addressing siting, design and performance objectives
of a geologic repository. 48 FR 28194. NRC concurred in the Guidelines
subject to conditions that would satisfy the overall need to maintain
consistency between NRC regulations and the DOE Guidelines. Among the
NRC conditions were: (1) DOE clarifications and deletions of certain
limiting terms such as ``permanent'' and ``significant''; (2) DOE
modifications for consistency with NRC criteria regarding anticipated
processes and events, potentially adverse conditions, and the role of
engineered barriers during the process for screening candidate sites
for characterization; and (3) DOE revisions and additions to
disqualifying conditions to ensure that unacceptable sites would be
eliminated as early as practicable. 49 FR 47719-47722.
NRC concurrence conditions also addressed general, procedural
aspects of how the DOE was to apply the Guidelines. For example, NRC
concurrence was conditioned on a lack of conflict between NRC
regulations at 10 CFR part 60 and the Guidelines, recognition by DOE
that NRC regulations were controlling in the event of any differences,
and a commitment that DOE would obtain NRC concurrence on any future
revisions to the Guidelines. 49 FR 47719-47720. NRC also requested DOE
to specify in greater detail how the Guidelines would be applied at
each siting stage. This specificity was provided by the addition of
Appendix III to the Guidelines. Appendix III indicated how the
Guidelines would be applied at all of the site selection stages,
including the recommendations to the President for site
characterization and for the development of a site as a repository
ted DOE
to specify in greater detail how the Guidelines would be applied at
each siting stage. This specificity was provided by the addition of
Appendix III to the Guidelines. Appendix III indicated how the
Guidelines would be applied at all of the site selection stages,
including the recommendations to the President for site
characterization and for the development of a site as a repository.
The NRC required additional changes after it met publicly with
representatives of several interested states, Indian tribes, and DOE.
After DOE committed to making those changes, the NRC voted to concur in
the Guidelines. 49 FR 47720. Thus, the current Guidelines represent the
substantial input provided by the NRC in 1984 through the statutory
concurrence process.
C. DOE Application of the Guidelines
Consistent with section 112(b) of the NWPA, DOE applied the
Guidelines to: (1) Nominate five sites as suitable for
characterization; and (2) recommend to the President three of those
five nominated sites for characterization as candidate sites for the
first repository. On May 27, 1986, the President approved each of the
sites that had been recommended for characterization. Yucca Mountain
was one of the three sites that DOE recommended. The recommendation to
the President was documented in a DOE report, Recommendation by the
Secretary of Energy for Site Characterization for the First
Radioactive-Waste Repository (May 1986; DOE/S-0048). In addition, a
draft environmental assessment was prepared for each of the five sites
and final environmental assessments were prepared for each of the three
sites that were recommended.
This action concluded the process that had been established by the
NWPA for identifying sites for characterization. The Guidelines' role
of structuring DOE's process for identifying sites for characterization
was completed in accordance with the Congressional directives to DOE
the five sites
and final environmental assessments were prepared for each of the three
sites that were recommended.
This action concluded the process that had been established by the
NWPA for identifying sites for characterization. The Guidelines' role
of structuring DOE's process for identifying sites for characterization
was completed in accordance with the Congressional directives to DOE.
Under DOE's formulation of the Guidelines at that time, however, the
Guidelines would remain relevant and applicable through the third
principal siting decision point, the selection of a site to be
recommended for the development of a repository.
D. 1987 Amendments to NWPA
In 1987, Congress amended the NWPA to mandate Yucca Mountain as the
sole site to be characterized. 42 U.S.C. 10172 (Supp. V 1987). The
processes for site characterization under section 113 and site approval
under section 114 were made applicable to only Yucca Mountain. Under
sections 113(a) and (b), Yucca Mountain was designated as the site for
which site characterization activities would take place, and a site
characterization plan would be issued, respectively. Under section
113(c), Congress amended the statute to name Yucca Mountain as the site
for which the restrictions on site characterization activities would be
applicable. That is, DOE was directed to conduct only such activities
at Yucca Mountain that are necessary to evaluate the suitability of the
site for an application to the NRC for a construction authorization,
and to comply with requirements under the National Environmental Policy
Act (NEPA). Section 114 was amended to restrict DOE's analysis of
alternative sites in any environmental impact statement (EIS) that may
be prepared for the Yucca Mountain site under NEPA. Any such EIS would
analyze the Yucca Mountain site, and no other sites, for potential
development of a geologic repository
orization,
and to comply with requirements under the National Environmental Policy
Act (NEPA). Section 114 was amended to restrict DOE's analysis of
alternative sites in any environmental impact statement (EIS) that may
be prepared for the Yucca Mountain site under NEPA. Any such EIS would
analyze the Yucca Mountain site, and no other sites, for potential
development of a geologic repository. Further, section 160(b) directed
DOE to ``terminate all site specific activities (other than reclamation
activities) at all candidate sites, other than the Yucca Mountain
site.'' 42 U.S.C. 10172(a)(2).
In sum, Congress made clear its intent for DOE to focus its
resources on investigating Yucca Mountain, and only Yucca Mountain, as
a potential site for a high-level radioactive waste repository.
E. Yucca Mountain Site Characterization Plan
1. Statutory Requirements
Under sections 113 and 160 of the NWPA, as amended, DOE was
authorized to conduct site characterization activities at the Yucca
Mountain site. Prior to initiating site characterization under section
113, DOE was required to prepare a general plan for site
characterization activities at the Yucca Mountain site. DOE was
required to submit the plan to the NRC and the State of Nevada for
their review and comment [42 U.S.C. 10133(b)(1)], as well as to members
of the public in the vicinity of Yucca Mountain [42 U.S.C.
10133(b)(2)]. Certain contents of the
g site characterization under section
113, DOE was required to prepare a general plan for site
characterization activities at the Yucca Mountain site. DOE was
required to submit the plan to the NRC and the State of Nevada for
their review and comment [42 U.S.C. 10133(b)(1)], as well as to members
of the public in the vicinity of Yucca Mountain [42 U.S.C.
10133(b)(2)]. Certain contents of the
plan were mandated by section 113(b), including, among other things, a
description of planned excavation and other testing activities, a
description of the possible form or packaging of the high-level waste,
and the criteria to be used to determine the suitability of the site
for the location of a repository, developed pursuant to section 112(a).
Section 113(b)(3) also required DOE to report every six months on the
progress of site characterization activities at Yucca Mountain, and to
provide the reports to the NRC, and the Governor and the legislature of
the State of Nevada.
DOE prepared the site characterization plan in draft form in
January 1988. In preparing the plan, DOE followed NRC guidance, as
specified in the document, Standard Format and Content of Site
Characterization Plans for High Level Waste Geologic Repositories,
Regulatory Guide 4.17 (NRC 1987). After review and comment by NRC, the
State of Nevada, and interested members of the public, DOE finalized
the Site Characterization Plan: Yucca Mountain Site, Nevada Research
and Development Area, Nevada (December 1988; DOE/RW-0198) (hereinafter
also the SCP), in December 1988.
2. Structure of the Site Characterization Plan
``Site characterization'' is defined in the NWPA to include
research activities undertaken to establish the geologic condition of a
site, for example, borings and surface excavations, and in situ testing
necessary to evaluate the suitability of a candidate site for the
location of a repository. 42 U.S.C. 10101(21)
also the SCP), in December 1988.
2. Structure of the Site Characterization Plan
``Site characterization'' is defined in the NWPA to include
research activities undertaken to establish the geologic condition of a
site, for example, borings and surface excavations, and in situ testing
necessary to evaluate the suitability of a candidate site for the
location of a repository. 42 U.S.C. 10101(21). In the SCP, DOE
described the purpose of its site characterization program at Yucca
Mountain was to obtain the information necessary to determine whether
the site is suitable for a repository, and could satisfy NRC licensing
requirements (which must be consistent with EPA public health and
safety standards). DOE also explained there that the information
obtained from site characterization, such as the geologic,
geoengineering, hydrologic, and climatological conditions at a site,
would be used to develop and optimize repository design and to evaluate
the performance of the site and the engineered barriers as an
integrated system.
The purpose of the SCP was threefold: (1) To describe the site, and
the preliminary designs for the repository and the waste packages in
sufficient detail to form the basis for the site characterization
program; (2) identify issues to be resolved during site
characterization and present the strategy for resolving the issues; and
(3) describe the plans for the work needed to obtain the information
deemed necessary and to resolve outstanding issues. The SCP was
organized along two lines: (1) An issues hierarchy, which embodies the
DOE, NRC and EPA regulations governing the repository system; and (2)
an issue-resolution strategy.
The issues hierarchy was a three-tiered framework laying out what
must be known before the Yucca Mountain site could be selected and
licensed. ``Issues'' were defined as questions related to performance
of the repository that must be resolved to demonstrate compliance with
applicable regulations of DOE, NRC and EPA
ations governing the repository system; and (2)
an issue-resolution strategy.
The issues hierarchy was a three-tiered framework laying out what
must be known before the Yucca Mountain site could be selected and
licensed. ``Issues'' were defined as questions related to performance
of the repository that must be resolved to demonstrate compliance with
applicable regulations of DOE, NRC and EPA. DOE identified four key
issues to be addressed, based on regulatory requirements and the four
system guidelines in part 960: (1) Postclosure performance; (2)
preclosure performance; (3) environment, socioeconomic, and
transportation impacts of a repository; and (4) ease and cost of
repository siting, construction, operation and closure. DOE also
explained that only the first, second, and part of the fourth key issue
would be addressed in the site characterization program, since
resolution of these other key issues (that is, key issue 3 and part of
key issue 4) were not dependent on information from site
characterization activities. The issue-resolution strategy consisted of
four parts: Issue identification, performance allocation, data
collection and analysis, and documentation of issue resolution. This
framework was used to develop test programs and explain why the test
programs were adequate and necessary. The object was to collect
information to be used in a concluding set of analyses to resolve the
issues, and to document resolution of the issues.
As required by section 113(b)(1)(A)(iv), the SCP included criteria
to determine the suitability of the site for development of a
repository. Those ``criteria'' were the provisions within the
Guidelines pertinent to site characterization activities, namely, the
postclosure guidelines, and the preclosure guidelines related to
radiological safety and technical feasibility of repository siting,
construction and operation, to be applied in the manner described in
Appendix III
he suitability of the site for development of a
repository. Those ``criteria'' were the provisions within the
Guidelines pertinent to site characterization activities, namely, the
postclosure guidelines, and the preclosure guidelines related to
radiological safety and technical feasibility of repository siting,
construction and operation, to be applied in the manner described in
Appendix III. Appendix III set out the level of findings DOE must make
relative to the system and technical requirements found in the
postclosure guidelines (subpart C) and preclosure guidelines (subpart
D) at the final decision point of recommending a site for development
as a repository. DOE believed that the information gained through site
characterization and the issue resolution process would form the basis
for these findings.
DOE also explained in the SCP that not all of the Guidelines would
be addressed as part of site characterization activities. The SCP would
not address the environmental, socioeconomic and transportation
guidelines, or certain guidelines related to ease and cost of
repository siting, construction, operation, and closure, since DOE
would not develop information related to those guidelines through site
characterization activities. Those guidelines would be addressed in
other investigations and plans to be conducted concurrently with the
site characterization program. Also, in light of the 1987 amendments to
the NWPA permitting site characterization to proceed only at Yucca
Mountain, DOE stated in the SCP that the comparative portions of the
Guidelines would not be applied in the site suitability determination
to be made under section 113(b).
In accordance with section 113(b)(3), approximately every six
months DOE issues a report updating information on the conduct of site
characterization activities at the Yucca Mountain site
erization to proceed only at Yucca
Mountain, DOE stated in the SCP that the comparative portions of the
Guidelines would not be applied in the site suitability determination
to be made under section 113(b).
In accordance with section 113(b)(3), approximately every six
months DOE issues a report updating information on the conduct of site
characterization activities at the Yucca Mountain site. Those reports
briefly summarize the characterization activities undertaken at the
site, the technical and scientific issues of key interest and their
resolution, and issues that remain for further characterization and
resolution. In addition, the semiannual reports provide references and
a bibliography of other reports and documents containing more detailed
information regarding site characterization activities. DOE provides
the reports to the NRC, the Governor of Nevada, and the legislature of
the State of Nevada.
The progress reports reflect DOE's ongoing interaction with the
NRC. In July 1986, the NRC amended its regulations at 10 CFR part 60
(51 FR 27158) to establish the method of interaction between DOE and
the NRC on the development and implementation of the site
characterization plan. NRC established a system for DOE to report on
the results of site characterization, identify issues, plan for
additional studies, eliminate planned studies no longer necessary, and
identify decision points reached. In this manner, the NRC established a
clear pathway to interact with DOE in the management and direction of
the site characterization program.
Site characterization activities have continued up to and including
the present, and are described in greater detail below in section II.G.
F. Energy Policy Act of 1992
iminate planned studies no longer necessary, and
identify decision points reached. In this manner, the NRC established a
clear pathway to interact with DOE in the management and direction of
the site characterization program.
Site characterization activities have continued up to and including
the present, and are described in greater detail below in section II.G.
F. Energy Policy Act of 1992
In 1992, Congress enacted certain provisions in the Energy Policy
Act of 1992 (Pub. L. No. 102-486) impacting the nation's nuclear waste
repository program. In section 801(a) of the Energy Policy Act of 1992
(EPACT), Congress directed EPA to promulgate a new, health-based
standard to ensure protection of the public health from high-level
radioactive waste that may be disposed in a geologic repository located
at Yucca Mountain. The new standards could depart from the generic EPA
standards promulgated at 40 CFR part 191, and would be specific to
Yucca Mountain. In section 801(b), Congress also directed the NRC,
within one year of EPA adopting a new standard, to modify its technical
requirements and criteria under section 121(b) of the NWPA [42 U.S.C.
10141(b)] (i.e., 10 CFR part 60), as necessary, to be consistent with
the new EPA standards.
Before setting the new standard, however, EPA was required to
contract with the National Academy of Sciences (NAS) to conduct a study
to provide findings and recommendations on reasonable standards for
protection of the public health and safety. Under section 801(a) of the
EPACT, EPA was required to promulgate its new standards based on, and
consistent with, the NAS findings and recommendations. Under the EPACT
and accompanying congressional instruction, NAS's charge was to answer
three specific questions embodied in section 801(a)(2), and to advise
EPA on the technical basis for the health-based standards it was
mandated to prepare
Bases for Yucca Mountain Standards. In sum, NAS
issued findings that: (1) A health standard for Yucca Mountain based on
risk to individuals of adverse health effects from releases from the
repository (rather than EPA's generic standards which contain both
individual dose and release limits) was an appropriate standard that
would adequately protect the health and safety of the general public;
(2) it is not reasonable to assume that a system for postclosure
oversight can be developed, based on active institutional controls,
which will itself prevent an unreasonable risk of breaching the
repository's engineered barriers or of increasing the exposure of
individual members of the public to radiation beyond allowable limits;
and (3) it is not possible to make scientifically supportable
predictions of the probability that a repository's engineered or
geologic barriers will be breached as a result of human intrusion over
a period of 10,000 years. Notwithstanding the latter two findings, the
NAS recommended EPA include in its regulations a stylized human
intrusion event. The NAS reasoned that such an analysis may provide
useful insight into the degree to which the ability of a repository to
protect the public health and safety would be degraded by an intrusion.
In reaching its findings and recommendations, the NAS consulted
with numerous entities, including local, state and federal government
agencies, private organizations, and scientists and engineers, both
national and international, familiar with the technical issues under
study, and held five open technical meetings to ensure a thorough
review of the scientific literature on the subject. In the Technical
Bases for Yucca Mountain Standards, the NAS provides a detailed
explanation of the assumptions and analyses underlying the study, and
the reasons for NAS's findings and recommendations
both
national and international, familiar with the technical issues under
study, and held five open technical meetings to ensure a thorough
review of the scientific literature on the subject. In the Technical
Bases for Yucca Mountain Standards, the NAS provides a detailed
explanation of the assumptions and analyses underlying the study, and
the reasons for NAS's findings and recommendations. Among the more
important of these is the NAS assumption, confirmed by its technical
review, that it is possible to conduct scientifically justifiable
analyses of repository behavior over thousands of years in order to
assess whether a repository can comply with the applicable public
health standard. In addition, based on its analyses, the NAS concluded
that the proper way to evaluate the risks of adverse health effects,
and to compare those risks to the proposed standard, is to assess the
estimated potential future behavior of the entire repository system and
its potential effect on humans. The procedure used to perform this
analysis is called performance assessment (alternately called total
system performance assessment).
In discussing the possible implications of its conclusions, the NAS
noted that, if EPA issues standards based on individual risk (as
recommended by the NAS), then the NRC would be required to revise its
regulations embodied in 10 CFR part 60 to be consistent with EPA. This
is because NRC's 10 CFR part 60 is directed in part to subsystem
technical requirements, whereas the NAS concluded that it is the
performance of the total system, rather than that of its individual
elements in isolation, that is crucial in the context of a risk-based
standard. Under a risk-based standard, imposing subsystem performance
requirements might result in a deficient repository design even if each
subsystem element meets or exceeds a certain performance standard
rements, whereas the NAS concluded that it is the
performance of the total system, rather than that of its individual
elements in isolation, that is crucial in the context of a risk-based
standard. Under a risk-based standard, imposing subsystem performance
requirements might result in a deficient repository design even if each
subsystem element meets or exceeds a certain performance standard. The
NAS also observed that its recommendations, if adopted, implied the
development by EPA of different regulatory and analytical approaches
than those employed in the past, and that the process of establishing
the new standards would require significant time and opportunity for
public comment and review. Nevertheless, NAS noted that these potential
changes should not impede site characterization work by DOE at Yucca
Mountain.
At present, EPA is in the process of preparing new standards
pursuant to EPACT and in light of the NAS findings and recommendations.
Those new standards have proposed in a rulemaking proceeding for public
review and comment. Also consistent with EPACT, section 801(b), the NRC
has proposed new regulations governing the technical requirements and
criteria for licensing a potential geologic repository at the Yucca
Mountain site based on the NAS findings and recommendations and in
anticipation of new EPA standards. The EPA's and NRC's proposed
regulations are discussed in greater detail below, in section II.J, and
II.K, respectively.
G. Evolution of the Site Characterization Program
Since publication of the SCP in 1988, DOE's site characterization
program at Yucca Mountain has made substantial progress in developing
information and data about the site and resolving outstanding technical
issues. Over time, the site characterization program has evolved and
been driven by advances in science and technology, as well as
legislative and managerial changes. The following summarizes the
evolution and status of the site characterization program.
rogram at Yucca Mountain has made substantial progress in developing
information and data about the site and resolving outstanding technical
issues. Over time, the site characterization program has evolved and
been driven by advances in science and technology, as well as
legislative and managerial changes. The following summarizes the
evolution and status of the site characterization program.
Technical Components of the Site Characterization Program. The
three main technical components of the site characterization program
are testing, design, and performance assessment. Testing encompasses
the investigation of natural features and processes at the site through
field testing, conducted above and below ground, and laboratory testing
of rock and water samples. Design refers to work on development of the
description of a repository and waste packages tailored to the site
features, supported by laboratory testing of candidate materials for
waste packages and design-related testing in the underground tunnels
similar to those in which waste would be emplaced. Performance
assessment refers to the quantitative estimates of the performance of
the total repository system, over a range of possible conditions and
for different repository configurations, by means of computer modeling
techniques that are based on site and materials testing data and
accepted principles of physics and chemistry.
Through the testing program, DOE has learned a great deal about the
geologic conditions of the site. The single largest effort undertaken
in this regard has been construction of the Exploratory Studies
Facility (ESF). Construction of this facility began in 1992 and was
completed in 1998. The ESF, a 4.9 mile long underground tunnel, has
enabled DOE to conduct testing and exploration activities at the depth
of the proposed repository
ned a great deal about the
geologic conditions of the site. The single largest effort undertaken
in this regard has been construction of the Exploratory Studies
Facility (ESF). Construction of this facility began in 1992 and was
completed in 1998. The ESF, a 4.9 mile long underground tunnel, has
enabled DOE to conduct testing and exploration activities at the depth
of the proposed repository. Utilization of this facility has formed the
basis for increased knowledge and understanding of the mechanical and
hydrologic characteristics of the geologic formation in which the
repository would be constructed. Ongoing work at this facility will
focus primarily on thermal and hydrologic testing in the cross drift to
extend and, where necessary, modify this understanding of the
properties of the host rock.
The design component of the site characterization program comprises
those activities aimed at developing concepts for the engineered
components of the geologic repository. Design activities use
information about the site gained through the testing program, and
information about the engineered barrier system gained through other
scientific investigations, to generate and develop design concepts that
can meet the requirements placed on the engineered components of the
repository. Site characterization activities are structured to acquire
data needed to support the design. For example, a number of the site
characterization program tests focus on the hydrological, geomechanical
and thermal properties of Yucca Mountain. These tests are significant
because they provide the fundamental information needed to specify the
approach to be used in developing the geologic repository thermal
loading and underground support schemes. Also, under the design
program, DOE examines various approaches to meeting engineered facility
requirements, and conducts comparative evaluations of the costs and
benefits of different approaches to developing design concepts
they provide the fundamental information needed to specify the
approach to be used in developing the geologic repository thermal
loading and underground support schemes. Also, under the design
program, DOE examines various approaches to meeting engineered facility
requirements, and conducts comparative evaluations of the costs and
benefits of different approaches to developing design concepts.
The performance assessment component of site characterization
represents the analytical method (i.e., computer modeling) DOE uses to
forecast the performance of the repository within the Yucca Mountain
setting and assess that performance against regulatory standards. Put
in simplified terms, performance assessment uses the information and
data collected under the testing and design programs to feed computer
models that describe how the site would behave in the presence of a
repository and how the engineered system would behave within the
environmental setting of the mountain. Each model, called a process
model, is designed to describe the behavior of individual and coupled
physical and chemical processes. A total system performance assessment
(TSPA) links the results of individual process models to construct a
computer model of the repository system and surrounding environment
that are important to assessment of overall repository performance.
With the TSPA model, DOE can estimate releases of radionuclides from a
repository under a range of conditions, over thousands of years, and
forecast the consequent probable doses to persons.
Performance assessment (or TSPA), as described above, is an
accepted method to assess the performance of a repository at Yucca
Mountain. DOE's use of performance assessment models began even before
issuance of the SCP in 1988. Since that time, however, significant
advancements have been made in the technical capability, acceptance,
and use of this analytical tool
t probable doses to persons.
Performance assessment (or TSPA), as described above, is an
accepted method to assess the performance of a repository at Yucca
Mountain. DOE's use of performance assessment models began even before
issuance of the SCP in 1988. Since that time, however, significant
advancements have been made in the technical capability, acceptance,
and use of this analytical tool. In 1991, the Nuclear Energy Agency
Radioactive Waste Management Committee and the International Atomic
Energy Agency International Radioactive Waste Management Advisory
Committee confirmed that TSPA provides an adequate means to evaluate
long-term radiological impacts of a waste disposal system. On a
national level, the NRC, the NAS and the Nuclear Waste Technical Review
Board (a Congressionally mandated committee of experts chartered to
evaluate the technical and scientific validity of activities undertaken
by DOE to characterize Yucca Mountain to determine its suitability as a
location for a repository) have acknowledged the value of this method
for evaluating postclosure performance for a repository at Yucca
Mountain.
A significant portion of the DOE site characterization program has
been aimed at developing the scientific bases that serve as the
foundation for the process models used in performance assessment. DOE
developed performance assessment models and conducted benchmark
performance assessments of the total repository system in 1991, 1993
and 1995. Between these benchmark assessments, DOE conducted many
performance assessments to evaluate selected features of the site and
the evolving design. DOE used these total system and subsystem
performance assessments to evaluate design options and to determine
further data needed from site investigations. The most recent TSPA was
conducted in 1998, the results of which are contained in the report,
Viability Assessment of a Repository at Yucca Mountain (December 1998;
DOE/RW-0508).
Redirection of the Site Characterization Program
ng design. DOE used these total system and subsystem
performance assessments to evaluate design options and to determine
further data needed from site investigations. The most recent TSPA was
conducted in 1998, the results of which are contained in the report,
Viability Assessment of a Repository at Yucca Mountain (December 1998;
DOE/RW-0508).
Redirection of the Site Characterization Program. In 1994, DOE
conducted extensive internal and external reviews of the program. As a
result of those reviews, documented in the Civilian Radioactive Waste
Management Program Plan (December 1994; DOE/RW-0458) (Program Plan),
DOE identified cost-cutting measures to reduce the cost of completing
site characterization. In response to Congressional concern with the
1994 Program Plan, DOE submitted a revised Program Plan to Congress
that was designed to maintain scientific investigations at the site,
and retain target dates for determining site suitability and
recommendation for construction authorization. Civilian Radioactive
Waste Management Program Plan, Revision 1 (May 1996; DOE/RW-0458). As
part of the revised strategy, DOE redirected project efforts to address
the major unresolved technical questions and to complete an assessment
of the viability of licensing and constructing a repository at Yucca
Mountain. Congress indicated its approval of the revised Program Plan
in the Conference Report on the Energy and Water Development
Appropriations Act, 1997, H.R. Rep. No. 782, 104th Cong., 2d Sess. 82
d strategy, DOE redirected project efforts to address
the major unresolved technical questions and to complete an assessment
of the viability of licensing and constructing a repository at Yucca
Mountain. Congress indicated its approval of the revised Program Plan
in the Conference Report on the Energy and Water Development
Appropriations Act, 1997, H.R. Rep. No. 782, 104th Cong., 2d Sess. 82
(1996), by directing that the appropriated funds be used in accordance
with the revised Program Plan issued by DOE in May 1996.
In the Fiscal Year 1997 Energy and Water Development Appropriations
Act (Pub. L. No. 104-206), Congress directed DOE to provide the
viability assessment of the Yucca Mountain site, referenced in DOE's
revised Program Plan, to Congress and the President as a basis for
making future decisions on program funding and direction. DOE issued
the Viability Assessment of a Repository at Yucca Mountain (Viability
Assessment) in December 1998. Drawing on 15 years of scientific
investigation and design work, the Viability Assessment summarizes a
large technical basis of field investigations, laboratory tests,
models, analyses and engineering. The Viability Assessment also
identifies major uncertainties relevant to the technical defensibility
of DOE's analyses and designs, the approach to managing these
uncertainties, and the status of work relative to the target dates of
2001 for a determination on recommendation of Yucca Mountain and 2002
for submittal of a license application to NRC. The Viability Assessment
also includes the most recent iteration of the TSPA, and the results of
that process.
Coordination with NRC. DOE's implementation of its site
characterization program and the issue resolution strategy embodied in
the SCP has been conducted in close coordination with the NRC
on on recommendation of Yucca Mountain and 2002
for submittal of a license application to NRC. The Viability Assessment
also includes the most recent iteration of the TSPA, and the results of
that process.
Coordination with NRC. DOE's implementation of its site
characterization program and the issue resolution strategy embodied in
the SCP has been conducted in close coordination with the NRC. In 1995,
the NRC revised its prelicensing repository program as a result of
changes in the DOE civilian radioactive waste management program, the
findings of a NAS committee recommending changes to the public health
standard for a potential Yucca Mountain repository, and budgetary
constraints imposed by Congress. The NRC adjusted the scope of its
program to focus only on those topics most critical to repository
performance, termed ``key technical issues.'' These issues were
intended to be a vehicle to communicate to DOE those technical matters
for which the NRC had remaining unanswered questions regarding the
performance of the Yucca Mountain site, or the data needed to assess
that performance. DOE's management of the site characterization program
includes activities to obtain information to address the NRC key
technical issues. DOE has structured the site characterization program
such that one of its goals is for DOE and NRC to reach consensus that
the remaining key technical issues have been addressed adequately, or
that adequate plans are in place to address the issues.
H. The 1993-1995 Public Dialogue on the Guidelines
ion program
includes activities to obtain information to address the NRC key
technical issues. DOE has structured the site characterization program
such that one of its goals is for DOE and NRC to reach consensus that
the remaining key technical issues have been addressed adequately, or
that adequate plans are in place to address the issues.
H. The 1993-1995 Public Dialogue on the Guidelines
In the SCP, issued in December 1988, DOE described how it would
apply the Guidelines as part of the site characterization program to
evaluate the suitability of the site. DOE indicated in the SCP that the
Guidelines related to site characterization activities would be applied
as the suitability criteria. DOE also indicated there that the
comparative provisions of those requirements would not be applied in
light of the 1987 amendments to the NWPA limiting site characterization
activities to Yucca Mountain. Notwithstanding this explanation, a
number of interested parties suggested it remained unclear how DOE
would apply the Guidelines in the future. Because of this continuing
stated uncertainty, the DOE instituted an ongoing dialogue with
external parties on the Guidelines.
In October 1993, DOE briefed the representatives of the affected
units of local government and the State of Nevada on its plans for
activities related to site suitability evaluation. DOE followed this
briefing with a Notice of Inquiry in the Federal Register (59 FR
19680), dated April 25, 1994, eliciting the views of the public on the
appropriate role of the Guidelines. A public meeting was held on May
21, 1994 in Las Vegas, Nevada. The purposes of the meeting were to
follow-up on a previous public meeting held in August 1993; to update
the public on site characterization activities; and to provide an
opportunity to discuss the development of a process to evaluate site
suitability
eliciting the views of the public on the
appropriate role of the Guidelines. A public meeting was held on May
21, 1994 in Las Vegas, Nevada. The purposes of the meeting were to
follow-up on a previous public meeting held in August 1993; to update
the public on site characterization activities; and to provide an
opportunity to discuss the development of a process to evaluate site
suitability. DOE then published a second Federal Register notice (59 FR
39766) on August 4, 1994, announcing that it intended to use the
Guidelines as currently written, subject to the programmatic
reconfiguration directed in the 1987 NWPA amendments. Through that
notice, DOE also announced the availability of a draft description of
the proposed process and its intention to hold two additional public
meetings to discuss the matter. Although several options were
discussed, DOE discerned no clearly preferred option from this public
comment process. In response to public comments at the meetings, DOE
committed to provide background information and its rationale for
maintaining the use of the Guidelines as originally promulgated, with
modification to eliminate application of the comparative portions of
the Guidelines. In September 1995, DOE published in the Federal
Register the background information and its rationale, as committed to
in previous public meetings. 60 FR 47737.
In the September 1995 public notice, DOE explained that amending
the Guidelines, either to remove those portions that are primarily used
for comparative purposes or to develop guidelines tailored to
evaluation of the suitability of the Yucca Mountain site, was not
required at that time. DOE recognized then that the Guidelines might
have to be amended at some future date to be consistent with any
changes to EPA or NRC requirements. 60 FR 47740. Among the options
considered in the 1993-1995 public dialogue was abandonment of the
Guidelines and adoption of the NRC siting criteria in 10 CFR 60.122
tion of the suitability of the Yucca Mountain site, was not
required at that time. DOE recognized then that the Guidelines might
have to be amended at some future date to be consistent with any
changes to EPA or NRC requirements. 60 FR 47740. Among the options
considered in the 1993-1995 public dialogue was abandonment of the
Guidelines and adoption of the NRC siting criteria in 10 CFR 60.122.
DOE noted that the Guidelines were expressly derived from, and are tied
to, the part 60 siting criteria. In addition, DOE noted that, should
any differences between 10 CFR part 960 and 10 CFR part 60 be
identified, 10 CFR part 60 would prevail in the licensing process.
While recognizing that much of 10 CFR 960 subpart B, the implementation
guidelines, was no longer applicable, DOE concluded that the Guidelines
could be selectively interpreted to avoid the comparative aspects while
applying the relevant provisions of subparts C and D, the postclosure
and preclosure guidelines.
I. The 1996 Notice of Proposed Rulemaking
For many of the reasons described earlier in this notice, including
changes in congressional direction of the repository program and
advancements in site characterization, on December 16, 1996, DOE
published in the Federal Register a notice of proposed rulemaking for
10 CFR part 960. 61 FR 66158. In that notice, DOE proposed to clarify
and focus the Guidelines and to add a new, site-specific subpart E to
the Guidelines. Subpart E would apply only to the Yucca Mountain site,
and would contain preclosure and postclosure system guidelines, each
with a single qualifying condition. 61 FR 66163. In each of the
periods, the qualifying condition would be that a repository at Yucca
Mountain be capable of limiting radiological releases within applicable
standards to be set by EPA and implemented by the NRC through the
repository licensing process. DOE would demonstrate this capability
through performance assessments. 61 FR 66164
nes, each
with a single qualifying condition. 61 FR 66163. In each of the
periods, the qualifying condition would be that a repository at Yucca
Mountain be capable of limiting radiological releases within applicable
standards to be set by EPA and implemented by the NRC through the
repository licensing process. DOE would demonstrate this capability
through performance assessments. 61 FR 66164. These performance
assessments would forecast the performance of a proposed geologic
repository at Yucca Mountain and compare the results of the assessments
to the applicable regulatory standards to
determine whether the site would be suitable for development as a
repository.
The 1996 proposal was consistent with the system-level evaluation
originally envisioned for the conclusion of site characterization. DOE
recognized in 1984 in the Guidelines that, only after the entire
process of narrowing the number of potentially acceptable sites to one
and after site characterization, would it be possible to conduct
complete performance assessments. Such assessments require detailed
information that can be obtained only during site characterization. 49
FR 47717. In addition, the 1996 proposal was consistent with DOE's
longstanding position that the Guidelines must complement and not
conflict with EPA and NRC regulations, since the ability to meet
applicable public health and safety standards and develop information
adequate to support a license application has always been central to
the site suitability determination.
The 1996 proposal attracted a wide variety of comments from members
of the public, the NRC, the EPA, and the Nuclear Waste Technical Review
Board. The major issues that emerged from the public comment process
are discussed in detail later in this Supplementary Information. For
reasons also explained below, these comments persuaded DOE to reassess
the clarity of the proposed regulations and the legal and policy basis
for them.
J. Proposed NRC Regulation, 10 CFR Part 63
lic, the NRC, the EPA, and the Nuclear Waste Technical Review
Board. The major issues that emerged from the public comment process
are discussed in detail later in this Supplementary Information. For
reasons also explained below, these comments persuaded DOE to reassess
the clarity of the proposed regulations and the legal and policy basis
for them.
J. Proposed NRC Regulation, 10 CFR Part 63
1. Background
On February 22, 1999, the NRC published in the Federal Register a
proposed new rule, 10 CFR part 63, containing licensing criteria for
disposal of spent nuclear fuel and high-level radioactive waste in the
proposed geologic repository at Yucca Mountain, along with proposed
revisions to 10 CFR part 60 and other related regulations. 64 FR 8640.
The proposed licensing criteria at part 63 would apply exclusively to
Yucca Mountain; part 60 would be revised to make it applicable to any
geologic repository other than one at Yucca Mountain. NRC's proposal
seeks to establish a new system of risk-informed, performance-based
regulation. Under this approach, risk insights, engineering analysis
and judgment, and performance history are used to: (1) Focus attention
on the most important activities; (2) establish objective criteria
based upon risk insights for evaluating performance; (3) develop
measurable or calculable parameters for monitoring system and licensee
performance; (4) provide flexibility to determine how performance
criteria are met; and (5) focus on results as the primary basis for
regulatory decision-making. 64 FR 8643.
The NRC's rationale for proposing part 63 stems from the
requirements of the EPACT. 64 FR 8641-8643. Section 801(b) of EPACT
requires that, within one year after EPA promulgates its new standards
for protection of public health and safety, the NRC must modify its
technical requirements and criteria for repository licensing (i.e.,
part 60) to be consistent with the new EPA standards
FR 8643.
The NRC's rationale for proposing part 63 stems from the
requirements of the EPACT. 64 FR 8641-8643. Section 801(b) of EPACT
requires that, within one year after EPA promulgates its new standards
for protection of public health and safety, the NRC must modify its
technical requirements and criteria for repository licensing (i.e.,
part 60) to be consistent with the new EPA standards. In addition, the
EPACT requires NRC to include in its modifications, consistent with the
NAS findings and recommendations, certain assumptions that are
specified in the EPACT with regard to the effectiveness of DOE's
postclosure oversight of the repository.
The NAS issued its findings and recommendations in the report,
Technical Bases for Yucca Mountain Standards, August 1995. The NAS
findings and recommendations reported there, along with consultation
NRC has had with EPA, provide the basis for NRC's proposed
modifications. 64 FR 8641, 8643. The NAS recommended approach to
setting a public health and safety standard has a different objective
from the NRC approach reflected in the existing part 60 requirements
and criteria. 64 FR 8643. Accordingly, the modifications proposed by
the NRC, based on the NAS report, and the subsequently proposed EPA
rule marked a change in methodology and licensing philosophy.
2. Structure of Proposed Part 63
Preclosure Requirements. Proposed part 63 would require DOE to
demonstrate compliance with the applicable preclosure regulatory
standards by the use of an integrated safety analysis. 64 FR 8652. An
integrated safety analysis is a systematic examination of the geologic
repository operations area's hazards and their potential for initiating
events (for example, accidents), the potential consequences of the
events, and the site, structures, systems, components, equipment and
activities of personnel
preclosure regulatory
standards by the use of an integrated safety analysis. 64 FR 8652. An
integrated safety analysis is a systematic examination of the geologic
repository operations area's hazards and their potential for initiating
events (for example, accidents), the potential consequences of the
events, and the site, structures, systems, components, equipment and
activities of personnel. The analysis would be conducted to ensure that
all relevant hazards that could result in unacceptable consequences
have been adequately evaluated and appropriate protective measures have
been identified. ``Integrated'' means joint consideration of safety
measures that otherwise might conflict, including such measures as fire
protection, radiation safety, criticality safety, and chemical safety.
The results of the analysis would be used to support a finding of
compliance with a performance objective for the preclosure period of
limiting radiation exposures and releases within a dose limit of 25
millirem (mrem) to any member of the public beyond the site boundary.
Postclosure Requirements. While certain parts of proposed part 63
are similar to part 60, in particular with respect to many procedural
and administrative regulations, the substance of the regulations
governing postclosure performance objectives is fundamentally
different. The part 60 technical criteria for postclosure rely on
several quantitative, subsystem performance objectives. In 1983-4, NRC
believed this approach was best suited to meet its statutory
requirement under section 121(b)(1)(B) of the NWPA to prescribe
criteria that would involve use of a system of multiple barriers in the
design of the repository. 64 FR 8648. At the time part 60 was written,
NRC's technical opinion was that compliance with this requirement could
be best demonstrated by specifying subsystem technical requirements,
thereby assuring multiple, independent and redundant systems and
barriers
21(b)(1)(B) of the NWPA to prescribe
criteria that would involve use of a system of multiple barriers in the
design of the repository. 64 FR 8648. At the time part 60 was written,
NRC's technical opinion was that compliance with this requirement could
be best demonstrated by specifying subsystem technical requirements,
thereby assuring multiple, independent and redundant systems and
barriers. Given advancements in technical understanding and analytical
capability, and information acquired through site-characterization at
Yucca Mountain, the NRC no longer believes this approach is an optimal
and reliable approach to assure compliance with public health and
safety standards. 64 FR 8648-8649.
Part 63 does not contain subsystem performance requirements, or
analogs for those requirements, as found in part 60. The part 63
requirements are based on only one quantitative standard--demonstrating
compliance with an individual dose limit. The part 63 technical
criteria are compatible with the NRC's philosophy of risk-informed,
performance-based regulation. This approach is consistent with NAS
recommendations that would require compliance with a health-based
standard established in consideration of risk to a hypothetical
critical group as the only quantitative standard for postclosure
repository performance. 64 FR 8643. The NRC concept of critical group
means the hypothetical group of individuals reasonably expected to
receive the greatest exposure to radioactive materials potentially
released from a geologic repository at Yucca Mountain. The EPA proposes
in its rule (described in section II. K) the use of a reasonably
maximally exposed individual (RMEI). The RMEI is a hypothetical
individual having certain characteristics that include where the RMEI
lives, what the RMEI's diet would consist of and the amount of water
consumed by the RMEI on daily basis.
rials potentially
released from a geologic repository at Yucca Mountain. The EPA proposes
in its rule (described in section II. K) the use of a reasonably
maximally exposed individual (RMEI). The RMEI is a hypothetical
individual having certain characteristics that include where the RMEI
lives, what the RMEI's diet would consist of and the amount of water
consumed by the RMEI on daily basis.
For the purposes of this proposed rule, the term receptor is used in
lieu of either the EPA or NRC concept. A receptor is intended to
represent a member of the public, either an individual or group, that
could be exposed to releases of radiation from a repository at Yucca
Mountain. When the suitability determination is made, DOE would
implement the regulatory concept applicable at that time.
This approach is also consistent with NRC's obligation to ensure a
multiple barrier system by requiring DOE to demonstrate that the
natural barriers and the engineered barriers will work in combination
to enhance overall performance of the repository.
Part 63 would require DOE to demonstrate compliance with the
applicable postclosure regulatory standard by the use of performance
assessment. 64 FR 8650. Performance assessment is a systematic analysis
that identifies the features, events, and processes that might affect
performance of the geologic repository, examines their effects on
performance, and estimates the resulting expected annual dose.
Demonstrating compliance with the postclosure performance of 10 CFR
part 63 would require a performance assessment to quantitatively
estimate the expected annual dose, over the compliance period, to the
average member of the critical group. The critical group would be a
hypothetical group of individuals reasonably expected to receive the
greatest exposure to radioactive materials released from the geologic
repository
ith the postclosure performance of 10 CFR
part 63 would require a performance assessment to quantitatively
estimate the expected annual dose, over the compliance period, to the
average member of the critical group. The critical group would be a
hypothetical group of individuals reasonably expected to receive the
greatest exposure to radioactive materials released from the geologic
repository. Consistent with the EPACT and the 1995 NAS report, the NRC
proposed that the results of the performance assessment be the sole
quantitative measure used to demonstrate compliance with the individual
dose limit. 64 FR 8650.
Because of the importance of the performance assessment, part 63 is
structured to establish certain minimum requirements governing the
content and validation methods for the performance assessment. 64 FR
8650-8651. For example, DOE would be required to include in the
performance assessment data related to the geology, hydrology and
geochemistry of Yucca Mountain, as well as data related to the design
of the engineered barrier system; to account for uncertainties and
variabilities in the data used to model performance of the repository;
to provide the technical basis for either inclusion or exclusion of
specific features, events, and processes of the geologic setting; and
to provide the technical basis for the models used in the overall
performance assessment by providing, for example, comparisons of the
output of detailed process-level models and empirical observations. In
addition, part 63 would prescribe the characteristics of the reference
biosphere and receptor to be used in the performance assessment. DOE
also would be required to conduct a separate performance assessment
based on a limited human intrusion scenario prescribed by the NRC.
K. Proposed EPA Regulation, 40 CFR Part 197
the
output of detailed process-level models and empirical observations. In
addition, part 63 would prescribe the characteristics of the reference
biosphere and receptor to be used in the performance assessment. DOE
also would be required to conduct a separate performance assessment
based on a limited human intrusion scenario prescribed by the NRC.
K. Proposed EPA Regulation, 40 CFR Part 197
1. Background
On August 27, 1999, the EPA published in the Federal Register a
proposed new rule, 40 CFR part 197, to establish public health and
safety standards governing the storage and disposal of spent nuclear
fuel and high level waste in a potential repository at Yucca Mountain,
Nevada. 64 FR 46975. EPA is promulgating this rulemaking pursuant to
section 801(a) of the EPACT. As explained earlier in this preamble
(section I.F.), in section 801(a)(1) of the EPACT Congress directed EPA
to promulgate a health-based standard for the protection of the public
from releases from radioactive materials stored or disposed of in a
repository at the Yucca Mountain site. Also under EPACT, Congress
directed that the EPA standard was to be the only standard applicable
to the Yucca Mountain site, and that the EPA standard must be based
upon and consistent with NAS' findings and recommendations.
As directed by Congress in the EPACT, it is EPA's role to establish
the public health and safety standard, and NRC's role to implement that
standard in any licensing process NRC may conduct for a repository at
Yucca Mountain. It is anticipated that NRC would conform its proposed
licensing regulation at 10 CFR part 63 to the final EPA radiation
protection standards, as necessary and appropriate.
2. Structure of Proposed Part 197
The proposed EPA rule is structured in two parts
and safety standard, and NRC's role to implement that
standard in any licensing process NRC may conduct for a repository at
Yucca Mountain. It is anticipated that NRC would conform its proposed
licensing regulation at 10 CFR part 63 to the final EPA radiation
protection standards, as necessary and appropriate.
2. Structure of Proposed Part 197
The proposed EPA rule is structured in two parts. Part A of the
rule would establish the environmental standards for storage of spent
nuclear fuel and high level waste at Yucca Mountain; part B would
establish the environmental standards for disposal of spent nuclear
fuel and high level waste at Yucca Mountain. The following is an
overview of the main components of EPA's proposed rule; in many areas
of the rule EPA has proposed alternative language and requirements for
public review and consideration. For simplicity, not all of those
alternative considerations will be presented here.
For storage of spent nuclear fuel and high level waste, EPA
proposes a standard limiting the annual committed effective dose
equivalent (CEDE) to no more than 15 millirems to any member of the
public in the general environment. This limit would apply to releases
from the combination of management and storage of spent nuclear fuel
and high level waste that is within the Yucca Mountain repository
(below ground) and outside the Yucca Mountain repository but within the
Yucca Mountain site (aboveground). EPA proposes this standard to be
consistent with the risk level set in its generic standards for
management and storage of spent nuclear fuel, high level waste, and
transuranic waste, codified at subpart A of 40 CFR part 191 and with
its interpretation of section 801 of EPACT requiring it to set site-
specific standards for storage of waste at Yucca Mountain
Yucca Mountain site (aboveground). EPA proposes this standard to be
consistent with the risk level set in its generic standards for
management and storage of spent nuclear fuel, high level waste, and
transuranic waste, codified at subpart A of 40 CFR part 191 and with
its interpretation of section 801 of EPACT requiring it to set site-
specific standards for storage of waste at Yucca Mountain. In EPA's
view, storage of waste, whether inside the Yucca Mountain repository or
outside the Yucca Mountain repository but within the Yucca Mountain
site, presents the same technical situation and is analogous to the
storage of radioactive waste at other facilities covered by 40 CFR part
191. Accordingly, EPA proposes the storage standard for Yucca Mountain
be essentially the same as the standard applicable to other facilities
subject to subpart A of 40 CFR part 191.
For disposal of spent nuclear fuel and high level waste, EPA
proposes essentially three standards--an individual protection
standard, a human intrusion standard, and a groundwater standard--that
DOE would need to demonstrate to the satisfaction of the NRC to ensure
protection of public health and safety. Under the individual protection
standard, DOE would demonstrate that there is a reasonable expectation
that for 10,000 years following disposal the reasonably maximally
exposed individual (RMEI) receives no more than an annual committed
effective dose equivalent (CEDE) of 15 millirems (mrem) from releases
from the undisturbed Yucca Mountain disposal system. All potential
pathways must be included in this analysis. In proposing this
individual protection standard, EPA concluded that radiation release
limits, such as those embodied in 40 CFR part 191, were not necessary
in order to protect members of the general public from releases from a
repository at Yucca Mountain
irems (mrem) from releases
from the undisturbed Yucca Mountain disposal system. All potential
pathways must be included in this analysis. In proposing this
individual protection standard, EPA concluded that radiation release
limits, such as those embodied in 40 CFR part 191, were not necessary
in order to protect members of the general public from releases from a
repository at Yucca Mountain.
For the proposed human intrusion standard, EPA proposes two
alternative rules, one of which would impose a CEDE limit of 15 mrem to
a RMEI based on an assumed human intrusion event,
while the alternative rule would impose the dose limit if complete
waste package penetration can be shown to occur before 10,000 years
after disposal. EPA also proposes a rule outlining the elements of the
human intrusion scenario to be used in the analysis.
Under the proposed groundwater protection standard, EPA would
require DOE to provide in its license application a reasonable
expectation that for 10,000 years of undisturbed performance after
disposal, releases of radionuclides from radioactive material in the
Yucca Mountain disposal system will not cause the level of
radioactivity in the representative volume of ground water at the point
of compliance to exceed certain limits (e.g., combined beta and photon
emitting radionuclides cannot exceed a limit of 4 millirems per year to
the whole body or any organ). EPA presents for public review and
comment several alternatives for the selection of the representative
volume of water and for the location of the point of compliance.
EPA's proposed approach to setting public health and safety
standards for a repository at Yucca Mountain follows the NAS
recommendations and findings, and the regulatory approach proposed by
the NRC in its proposed licensing regulations
s for public review and
comment several alternatives for the selection of the representative
volume of water and for the location of the point of compliance.
EPA's proposed approach to setting public health and safety
standards for a repository at Yucca Mountain follows the NAS
recommendations and findings, and the regulatory approach proposed by
the NRC in its proposed licensing regulations. Although EPA has
proposed some requirements in its rulemaking that differ from certain
NAS findings and recommendations and NRC's proposed licensing
regulations, (for example, EPA proposes use of a dose standard instead
of a risk standard, and use of the RMEI concept instead of critical
group), EPA's proposed rule is consistent with the primary NAS findings
and recommendations that a public health standard based on risk or dose
to an individual member of the public can be protective of general
public health and safety, and that the Yucca Mountain-related physical
and geologic processes are sufficiently quantifiable and the related
uncertainties sufficiently boundable that the performance can be
assessed over certain time frames.
EPA assumes, and, in the case of the individual protection
standard, EPA would expressly require DOE to use performance assessment
to calculate the dose limits established in its proposed radiation
protection standards for disposal. Although EPA generally would not
prescribe requirements on how the performance assessments would be
conducted, it would impose certain limitations. For example, proposed
section 197.40 would limit consideration by DOE in its performance
assessments of events that are estimated to have less than one chance
in 10,000 of occurring within 10,000 years of disposal. In addition,
EPA, similar to the NRC, acknowledges certain inherent limitations in
DOE's ability to demonstrate compliance with the public health and
safety standard through use of performance assessment, but nevertheless
mandates the use of that method of assessment
assessments of events that are estimated to have less than one chance
in 10,000 of occurring within 10,000 years of disposal. In addition,
EPA, similar to the NRC, acknowledges certain inherent limitations in
DOE's ability to demonstrate compliance with the public health and
safety standard through use of performance assessment, but nevertheless
mandates the use of that method of assessment. EPA's rule recognizes,
through the concept of reasonable expectation, that, among other
things, there are inherent uncertainties in making long-term
projections of the performance of the Yucca Mountain disposal system,
that performance assessments and analyses should be focused upon the
full range of defensible and reasonable parameter distributions, and
that assessments should not exclude important parameters simply because
they are difficult to precisely quantify to a high degree of
confidence.
III. Basis for Proposal
A. Legal Authority and Necessity To Amend the Guidelines and Criteria
1. Overview
Section 112(a) of the NWPA explicitly establishes DOE authority to
``issue general guidelines for the recommendation of sites for
repositories'' and to ``use [the] guidelines established under this
subsection in considering candidate sites for recommendation under
subsection (b).'' Subsection (b) of section 112 provides for a process,
to be conducted following promulgation of the guidelines that would
result in: (1) the nomination of 5 potential sites for
characterization; and (2) the selection of 3 of those 5 sites for
recommendation to the President as suitable for site characterization
activities. Section 112(a) also includes explicit authority to revise
the guidelines, from time to time, consistent with the provisions of
112(a).
Shortly after the enactment of the NWPA, DOE promulgated the
Guidelines (codified at 10 CFR part 960) to implement section 112
n; and (2) the selection of 3 of those 5 sites for
recommendation to the President as suitable for site characterization
activities. Section 112(a) also includes explicit authority to revise
the guidelines, from time to time, consistent with the provisions of
112(a).
Shortly after the enactment of the NWPA, DOE promulgated the
Guidelines (codified at 10 CFR part 960) to implement section 112. The
approach taken at that time was to structure the Guidelines to provide
a framework not only for the section 112 decisions (for which it was
statutorily required) but also for subsequent steps in the site
selection process. Consistent with this view, the Guidelines as
originally promulgated also addressed actions to be taken under
sections 113 and 114. The rationale permitting that approach was the
provision in section 113(b) that DOE include in its site
characterization plan ``criteria to be used to determine the
suitability of [a] site for the location of a repository, developed
pursuant to section 112(a).'' 49 FR 47730. DOE reasoned that, since the
site characterization plan was to be an element supporting any
Secretarial recommendation of one site for development under section
114, the Guidelines were ``intended to be used in deciding which among
the characterized sites is to be recommended to the President, the
Congress, and finally to the NRC for appropriate approvals.'' 47 FR
47730. That approach was understandable in 1984 when DOE anticipated
the need to evaluate by comparison multiple characterized sites, a
comparison similar to the choosing of sites for characterization for
which the Guidelines were required by section 112(a) of the NWPA. After
the 1987 amendments to the NWPA designated Yucca Mountain as the only
site to be characterized, DOE chose to apply some, but not all, of the
Guideline provisions in the Site Characterization Plan prepared under
section 113(b) of the NWPA as criteria to determine site suitability.
DOE/RW-0199 (1988)
r characterization for
which the Guidelines were required by section 112(a) of the NWPA. After
the 1987 amendments to the NWPA designated Yucca Mountain as the only
site to be characterized, DOE chose to apply some, but not all, of the
Guideline provisions in the Site Characterization Plan prepared under
section 113(b) of the NWPA as criteria to determine site suitability.
DOE/RW-0199 (1988). In 1995, DOE reconsidered the Guidelines in the
context of evaluating the suitability of the Yucca Mountain site under
the Site Characterization Plan. DOE decided then that ``[b]ecause DOE
need apply only the relevant provisions'' of the Guidelines, amending
or supplanting them with ``Guidelines specifically tailored'' to
evaluating the suitability of the Yucca Mountain site was ``not
required at this time.'' 60 FR 47737, 47740 (1995).
As discussed in greater detail below, DOE now has determined that a
new approach is called for in light of the cumulative effect of the
intervening legislative, regulatory, and technical developments that
have occurred since 1984. DOE now proposes to develop criteria, using
section 112(a) in the development of the criteria, but not adopting the
particular section 112(a) Guidelines as those criteria, to form the
basis for a determination of the suitability of the Yucca Mountain site
for the location of a repository. The rationale for this approach stems
from the basic analysis recommended by the National Academy of
Sciences, which differed from that embedded in the 1984 Guidelines, and
the advent of new regulations proposed by the NRC that, under the
NWPA's structure, must define the areas and methodology of DOE's
inquiries into Yucca Mountain's suitability.
Accordingly, DOE today proposes to revise the existing Guidelines
at 10 CFR part 960 to limit their application to only the initial site
selection process set forth in section 112. DOE may make additional
revisions to the Guidelines if, in the future, circumstances were to
under the
NWPA's structure, must define the areas and methodology of DOE's
inquiries into Yucca Mountain's suitability.
Accordingly, DOE today proposes to revise the existing Guidelines
at 10 CFR part 960 to limit their application to only the initial site
selection process set forth in section 112. DOE may make additional
revisions to the Guidelines if, in the future, circumstances were to
change and DOE were to reinitiate a preliminary site screening process
under section 112. Further, DOE proposes today to promulgate a new
rule, consistent with section 113(b)(1)(A)(iv), to establish criteria
to be used to determine the suitability of Yucca Mountain for the
location of a geologic repository. The criteria identified in this new
rule are based on the geologic factors and considerations referenced in
section 112(a), as they relate to DOE's current scientific
understanding and methodology for assessing the suitability of the
Yucca Mountain site as a location for a repository.
2. Section 112
DOE's approach in today's proposal is grounded on the text of
section 112(a) and the basic structure of the NWPA, as originally
enacted and as amended. As originally enacted, the NWPA set up a
sequential process for selecting, comparing, and evaluating potential
sites for the development of a geologic repository for high-level
waste. The 1987 amendments eliminated any continued comparison of
sites; only Yucca Mountain is authorized for site characterization
activities leading to possible recommendation as a repository site.
Beyond the first step in the process, recommendation of multiple sites
for site characterization (section 112), there is no explicit direction
in the Act (in its original enactment or amendment) whether or how to
utilize the Section 112(a) Guidelines in the succeeding site selection
processes (sections 113 and 114)
erization
activities leading to possible recommendation as a repository site.
Beyond the first step in the process, recommendation of multiple sites
for site characterization (section 112), there is no explicit direction
in the Act (in its original enactment or amendment) whether or how to
utilize the Section 112(a) Guidelines in the succeeding site selection
processes (sections 113 and 114). Instead, section 112(a) specifies the
intended use of the Guidelines: ``[t]he Secretary shall use guidelines
established under this subsection in considering sites to be
recommended for site characterization under section 112(b).'' Likewise,
the environmental assessment of the various sites nominated for
characterization pursuant to section 112 is to include ``evaluation''
of each nominated site under each Guideline not requiring
characterization for its application and all the Guidelines pertinent
to whether a site is ``suitable for site characterization.'' 42 U.S.C.
10132(b)(1)(D)(i)&(ii). Nowhere in its text does section 112 require
any additional use of the Guidelines.
In sum, the text of section 112 and its relation to other
provisions in the NWPA indicate that the Guidelines are to govern the
process of selecting and comparing among potential sites to determine
which sites are appropriate to proceed to the next, more detailed
evaluation stage, site characterization. In contrast, nothing in the
text of section 112 specifies that the Guidelines are also to govern
the process for determining site suitability and site recommendation
under sections 113 and 114.
3. Section 113
Section 113 of the NWPA requires DOE to prepare a site
characterization plan for a candidate site selected under section 112
for site characterization activities. A required element of a site
characterization plan is ``criteria to be used to determine the
suitability of such candidate site for the location of a repository,
developed pursuant to section 112(a).'' 42 U.S.C. 10133(b)(1)(A)(iv)
(emphasis added)
he NWPA requires DOE to prepare a site
characterization plan for a candidate site selected under section 112
for site characterization activities. A required element of a site
characterization plan is ``criteria to be used to determine the
suitability of such candidate site for the location of a repository,
developed pursuant to section 112(a).'' 42 U.S.C. 10133(b)(1)(A)(iv)
(emphasis added). The NWPA does not define the term ``criteria.'' The
NWPA does, however, define the term ``site characterization'' as
activities ``undertaken to establish the geologic condition'' of a
candidate site. 42 U.S.C. 10101(21)(B). This definition indicates that
the required scope of the general site characterization plan and
therefore of the section 113(b) ``criteria'' is limited to geologic
considerations. This reading of section 113(b) is reinforced by the
provisions of section 112(a) in which the only usage of the term
``criteria'' in that section are the ``primary criteria'' that are
explicitly equated to ``geological considerations.''
Section 113(b) requires that the ``criteria'' to be included in the
Site Characterization Plan be ``developed pursuant to section 112(a)''
of the NWPA. Because section 112(a) of the NWPA is devoted to the
``Guidelines'' for selecting candidate sites while section 113(b) is
devoted to the ``criteria'' under which selected candidate sites
subsequently are to be characterized, it is necessary to consider how
the Guidelines are required to relate to the criteria by section 113's
requirement that the criteria be ``developed pursuant to section
112(a).''
It is unlikely that the Congress intended to require the
``criteria'' to be the Guidelines themselves. It would have been simple
enough for Congress to have legislated that policy in section 113(b) by
a straightforward requirement that the Site Characterization Plan
specify that the ``Guidelines developed pursuant to section 112(a)''
would be used ``to determine the suitability of each candidate site.''
Compare 42 U.S.C
ess intended to require the
``criteria'' to be the Guidelines themselves. It would have been simple
enough for Congress to have legislated that policy in section 113(b) by
a straightforward requirement that the Site Characterization Plan
specify that the ``Guidelines developed pursuant to section 112(a)''
would be used ``to determine the suitability of each candidate site.''
Compare 42 U.S.C. 10133(b)(1)(A)(iv). Had Congress intended this policy
result it is unlikely that it would have chosen such an elliptical and
opaque way of expressing it as the actual statutory text that does not
use the term ``Guidelines'' at all. And a construction of section
113(b) requiring the suitability ``criteria'' to be the same as the
section 112 Guidelines would risk tension with section 113(c)'s
restriction that limits DOE to conducting ``only'' characterization
activities ``necessary to provide the data required'' to prepare an NRC
license application. The NRC, of course, is not required to base its
licensing standards on the Guidelines adopted by DOE under section
112(a) of the NWPA (although it was required to concur in them), nor
does section 112 afford the NRC the ability to compel DOE to
reformulate the Guidelines should the NRC determine to amend or
supplant its licensing standards.
Section 112(a) contains specific procedural mandates required to be
employed by DOE in issuing or revising the Guidelines. Before DOE may
promulgate the Guidelines DOE must consult with several specified
federal agencies and with ``interested Governors.'' 42 U.S.C. 10132(a).
In addition, the NRC must ``concur[]'' in the issuance of the
Guidelines. Id
end or
supplant its licensing standards.
Section 112(a) contains specific procedural mandates required to be
employed by DOE in issuing or revising the Guidelines. Before DOE may
promulgate the Guidelines DOE must consult with several specified
federal agencies and with ``interested Governors.'' 42 U.S.C. 10132(a).
In addition, the NRC must ``concur[]'' in the issuance of the
Guidelines. Id. These distinctive procedural requirements obviously are
tailored to the particular circumstances of site decision-making under
the NWPA and therefore specify procedural requirements that would not
otherwise obtain under the rulemaking provisions of the Administrative
Procedure Act or the rulemaking provisions of the Department of Energy
Organization Act that were in force when the NWPA was adopted.
The requirement of section 113(b) that the SCP's ``criteria'' for
characterizing sites be ``developed pursuant to section 112(a)''
therefore is best understood as mandating observance of the special
procedural requirements of section 112(a) in formulating or altering
the section 113(b) ``criteria.'' This understanding of the statutory
text seems the most faithful to its explicit terms and the larger
statutory context in which it occurs. Moreover, it seems the only
understanding of section 113(b) that is consistent with the 1987
changes to the NWPA (which mandated exclusive characterization work for
the Yucca Mountain site without amending section 113(b) despite
amending the statute elsewhere to remove the element of comparing
sites, to which the Guidelines of section 112(a) were devoted). This
understanding of the requirements of section 113(b) also comports with
DOE's prior understanding, as was described in the 1995 notice, that
not all the original Guideline elements need be applied in site
characterization under section 113 of the NWPA.
B. Events Necessitating Amendment of the Guidelines and Criteria
omparing
sites, to which the Guidelines of section 112(a) were devoted). This
understanding of the requirements of section 113(b) also comports with
DOE's prior understanding, as was described in the 1995 notice, that
not all the original Guideline elements need be applied in site
characterization under section 113 of the NWPA.
B. Events Necessitating Amendment of the Guidelines and Criteria
1. Congressional Redirection of the Program
Since the NWPA was enacted in 1982 and the Guidelines promulgated
in 1984, Congress has made major changes to the framework for
developing a geologic repository. Those changes are described below
and, in part, form the basis for the revisions to 10 CFR part 960 and
the promulgation of a new 10 CFR part 963 proposed in this notice.
1987 Amendments to the NWPA. Congress amended the NWPA in 1987 to
select Yucca Mountain as the only site to be characterized. In support
of that decision, Congress directed DOE to terminate site-specific
activities at the two other sites that had been recommended for site
characterization in 1986. 42 U.S.C. 10172. Further, Congress restricted
DOE's characterization activities at Yucca Mountain to only those the
Secretary considers necessary to provide the data required for
evaluation of the suitability of the site for NRC construction
authorization (i.e., license application), and for compliance with the
National Environmental Policy Act of 1969. A provision was added to the
NWPA to provide for termination of site characterization activities at
Yucca Mountain if at any time the Secretary determines that Yucca
Mountain is unsuitable for development as a repository.
Although the 1987 amendments to the Act were decisive in focusing
the repository program and DOE's efforts on one specific site, for many
years DOE maintained that these changes were not so significant as to
warrant amendment of the Guidelines
aracterization activities at
Yucca Mountain if at any time the Secretary determines that Yucca
Mountain is unsuitable for development as a repository.
Although the 1987 amendments to the Act were decisive in focusing
the repository program and DOE's efforts on one specific site, for many
years DOE maintained that these changes were not so significant as to
warrant amendment of the Guidelines. Instead, DOE believed the
Guidelines, for the most part, could be applied to Yucca Mountain for
purposes of determining the suitability of the site (because Yucca
Mountain already had been found suitable for characterization under
other provisions of the Guidelines) in support of a possible site
recommendation by the Secretary. The only changes to the Guidelines
necessitated by the 1987 amendments were to eliminate consideration of
those parts of the Guidelines related to comparative analysis.
Similarly, the NRC had not made significant modifications to its
technical requirements and criteria in 10 CFR part 60 as a result of
the 1987 amendments to the Act.
1992 Energy Policy Act. In the 1992 Energy Policy Act, Congress
reinforced its intent that Yucca Mountain was the exclusive focus of
the nation's repository program, not only for DOE, but also for the
other federal agencies, EPA and NRC, with authority and responsibility
over the repository program. Section 801 of the EPACT directed the EPA
to promulgate, by rule, new public health and safety standards for the
protection of the public from releases from radioactive materials
stored or disposed of in a repository at the Yucca Mountain site.
Unlike the previous standard, which was generic to geologic
repositories and included limits on radioactive releases to the
environment, the new standards were required to prescribe maximum
annual radioactive dose limits to individual members of the public
based on releases to the accessible environment from materials stored
or disposed of at Yucca Mountain
sitory at the Yucca Mountain site.
Unlike the previous standard, which was generic to geologic
repositories and included limits on radioactive releases to the
environment, the new standards were required to prescribe maximum
annual radioactive dose limits to individual members of the public
based on releases to the accessible environment from materials stored
or disposed of at Yucca Mountain. To aid EPA in this process, Congress
directed a National Academy of Sciences (NAS) study to provide findings
and recommendations on reasonable standards for protection of the
public health and safety. EPA was required to base its new rule on the
findings and recommendations of the NAS. For Yucca Mountain, these
standards would replace the generally applicable standards for the
protection of the general environment that the EPA had promulgated at
40 CFR part 191 under the authority of section 121 of the NWPA.
The EPACT also directed the NRC to modify its technical
requirements and criteria, as necessary, to be consistent with the
EPA's new standards. In addition, NRC was directed to ensure that,
consistent with the NAS findings and recommendations, its requirements
and criteria for postclosure oversight of a Yucca Mountain repository
would be sufficient to prevent any activities at the site posing an
unreasonable risk of breaching the engineered and natural barriers of
the site, and to prevent any increase in exposure of individual members
of the public beyond allowable limits.
These changes were significant because they set the stage for
future regulatory changes governing the standards a Yucca Mountain
repository must meet to ensure public health and safety, and to obtain
a license for construction. The ability to meet regulatory standards
has always been a dominant factor in the site selection process. This
requirement is reflected in the structure of the Guidelines, is
reinforced by the 1987 amendments to the Act, and is a prime focus of
DOE's site characterization program
Yucca Mountain
repository must meet to ensure public health and safety, and to obtain
a license for construction. The ability to meet regulatory standards
has always been a dominant factor in the site selection process. This
requirement is reflected in the structure of the Guidelines, is
reinforced by the 1987 amendments to the Act, and is a prime focus of
DOE's site characterization program. Thus, the Congressional mandate in
the EPACT directing new and revised regulations governing geologic
disposal at Yucca Mountain necessarily impacts DOE's formulation of the
criteria that will be used to determine the suitability of Yucca
Mountain as a site for development of a repository. Until recently,
however, the full extent and nature of those impacts have not been
defined. The NRC's recent proposal to amend 10 CFR part 60, its
technical requirements and criteria for licensing a repository, to add
a new part 63 specific to Yucca Mountain, provides DOE with an outline
of anticipated regulatory changes, and signals for DOE how and why it
must conform its Guidelines and criteria for determining the
suitability of the Yucca Mountain site for the location of a
repository.
Fiscal Years 1996 and 1997 Appropriations Acts and the Viability
Assessment. Finally, in response to budgetary concerns, the Conference
Report on the Energy and Water Development Appropriations Act, 1996
(Pub. L. No. 104-46) (H.R. Rep. No. 293, 104th Cong., 1st Sess. 68
m its Guidelines and criteria for determining the
suitability of the Yucca Mountain site for the location of a
repository.
Fiscal Years 1996 and 1997 Appropriations Acts and the Viability
Assessment. Finally, in response to budgetary concerns, the Conference
Report on the Energy and Water Development Appropriations Act, 1996
(Pub. L. No. 104-46) (H.R. Rep. No. 293, 104th Cong., 1st Sess. 68
(1995)) directed the DOE to focus on only those activities necessary to
assess the performance of a repository at the Yucca Mountain site and
to collect the scientific information needed to determine the site's
suitability. DOE responded by revising its Program Plan for 1996 in
which it indicated that, among other changes, DOE would complete a
viability assessment of the Yucca Mountain site in 1998, and would
develop a proposal to amend the Guidelines and develop new regulations
specific to the Yucca Mountain site. Congress indicated its approval of
the changes by directing that appropriated funds be used in accordance
with the revised program plan. Congress reinforced this direction in
the Fiscal Year 1997 Energy and Water Appropriations Act, where it
mandated that DOE provide to the Congress and the President a viability
assessment of the Yucca Mountain site in 1998.
These changes in budget for DOE's civilian radioactive waste
management program indicate congressional intent for DOE to focus site
characterization activities on assessing the viability and suitability
of Yucca Mountain, and to complete those activities in the near term.
In light of this congressional direction, it is reasonable for DOE to
amend the Guidelines in a manner that acknowledges Yucca Mountain as
the only site at which site characterization has occurred and for which
DOE would need to conduct a suitability evaluation under section
113(b).
2. Consistency Between DOE and NRC Regulations
Procedural Consistency. The DOE's site characterization suitability
criteria must be consistent with the NRC's
reasonable for DOE to
amend the Guidelines in a manner that acknowledges Yucca Mountain as
the only site at which site characterization has occurred and for which
DOE would need to conduct a suitability evaluation under section
113(b).
2. Consistency Between DOE and NRC Regulations
Procedural Consistency. The DOE's site characterization suitability
criteria must be consistent with the NRC's
licensing criteria if the DOE is to present a potentially successful
license application to the NRC. Such consistency originally was
attained in the Guidelines through the NRC's concurrence process, as
required by section 112(a) of the NWPA. DOE will preserve this
consistency in these proposed suitability criteria by ensuring that
they reflect the changes to the licensing criteria that recently have
been proposed by the NRC in a new rule to be codified at 10 CFR part
63, and by soliciting NRC concurrence on DOE's proposed amendments to
the Guidelines and the promulgation of a new regulation at 10 CFR part
963.
Substantive Consistency. NRC's proposed new rule establishing the
technical requirements and criteria for repository licensing at Yucca
Mountain, proposed 10 CFR part 63, is different from its existing
general rule on repository licensing, 10 CFR part 60. DOE now has
little choice but to propose site suitability criteria that are
consistent with the NRC's proposed licensing requirements. The
suitability of a site for the location of a repository is a function of
the DOE's ability to demonstrate the site can meet applicable
regulatory requirements. DOE has conducted the site characterization
program at Yucca Mountain with the statutory objective [42 U.S.C.
10133(c)] of demonstrating its ability to obtain construction
authorization from the NRC (i.e., to meet NRC licensing requirements
and EPA health and safety standards, as implemented by NRC through the
license)
lity to demonstrate the site can meet applicable
regulatory requirements. DOE has conducted the site characterization
program at Yucca Mountain with the statutory objective [42 U.S.C.
10133(c)] of demonstrating its ability to obtain construction
authorization from the NRC (i.e., to meet NRC licensing requirements
and EPA health and safety standards, as implemented by NRC through the
license). DOE could not scientifically and technically support a
suitability determination, and, hence, a license application, without
conforming its criteria for suitability to the proposed NRC technical
requirements and criteria for a repository license. Such conforming
criteria are proposed in this notice.
The NRC proposed rule part 63 is a departure from the philosophy
and technical requirements of 10 CFR part 60. The new rule would be
based on the 1995 NAS report recommending a risk-limit standard for a
repository at Yucca Mountain. The NRC timed publication of its proposal
now to ensure NRC has sufficient time, once EPA issues its new
standard, to put the new licensing standards in effect. The proposed
rule embodies a new approach of risk-informed, performance-based
regulation, and is specific to Yucca Mountain. The old rule relied on
subsystem performance objectives and a release limit standard. Under
the proposed rule, the performance of a Yucca Mountain repository would
be evaluated against a health-based standard in consideration of risk
to a hypothetical critical group and this standard would be the only
quantitative standard for the postclosure performance of the
repository. The new rule would require DOE to demonstrate compliance
with postclosure technical criteria through performance assessments,
and preclosure criteria through an integrated safety analysis
valuated against a health-based standard in consideration of risk
to a hypothetical critical group and this standard would be the only
quantitative standard for the postclosure performance of the
repository. The new rule would require DOE to demonstrate compliance
with postclosure technical criteria through performance assessments,
and preclosure criteria through an integrated safety analysis. The new
approach embodied in the proposed rule would eliminate current part 60
design and siting criteria, as well as quantitative subsystem
requirements, but would add specific requirements for the content of
performance assessments to ensure their sufficiency and adequacy. In
other words, a proposed Yucca Mountain repository would be evaluated as
an entire system, not by assessing its individual parts in isolation,
in order to determine whether it meets applicable standards to protect
public health and safety.
Once the proposal is finalized, the current structure of DOE's
technical guidelines, which is premised on a demonstration of system
and subsystem technical requirements, will no longer be consistent
with, and in some cases may conflict with, the NRC technical
requirements to support a license application. For example, several of
DOE's technical guidelines require compliance with the siting and
design requirements set forth in 10 CFR parts 60.113, 60.122 and
60.133. Those requirements would not exist in proposed part 63 and
would not be applicable to Yucca Mountain under proposed amendments to
part 60. Those requirements are subsystem performance requirements that
are inconsistent with the NRC's new approach of evaluating the
technical merits of a potential site based on the performance of the
repository system as an integrated whole, and not on the performance of
each part independent of the other parts.
A good example of this is the geohydrology guideline at 960.4-2-1.
Under this guideline, DOE set qualifying and disqualifying conditions
for the geohydrology of a site
th the NRC's new approach of evaluating the
technical merits of a potential site based on the performance of the
repository system as an integrated whole, and not on the performance of
each part independent of the other parts.
A good example of this is the geohydrology guideline at 960.4-2-1.
Under this guideline, DOE set qualifying and disqualifying conditions
for the geohydrology of a site. The qualifying condition for
geohydrology requires a site be capable of compliance with radionuclide
release limits set by EPA in 40 CFR part 191, and by NRC in 10 CFR part
60.112, as well as compliance with DOE subsystem performance
requirements that mirror NRC requirements in 60.113. At present, there
is no applicable release limit set by EPA under 40 CFR part 191, and
the NRC's proposed amendments to 10 CFR part 60 would nullify the
applicability of 60.113 to Yucca Mountain and create a new part 63 for
which there is no analogous release limit or subsystem performance
objective for geohydrology. Accordingly, it would be illogical for DOE
to reach a finding relative to this qualifying condition, as required
by Appendix III, based on regulatory requirements that no longer would
be applicable to the Yucca Mountain site and would not support a
determination of site suitability for the Yucca Mountain site.
The DOE Guideline 960.4-2-1 also contains a disqualifying
condition. Under this condition, DOE would disqualify a site if the
pre-waste emplacement ground water travel time from the disturbed zone
to the accessible environment is expected to be less than 1,000 years
along any pathway of likely and significant radionuclide travel. Under
the analogous NRC provision, 60.113, there is a performance objective
directing that the pre-waste emplacement ground water travel time along
the fastest path of likely radionuclide travel from the disturbed zone
to the accessible environment must be at least 1,000 years or such
other travel time as approved by the NRC
rs
along any pathway of likely and significant radionuclide travel. Under
the analogous NRC provision, 60.113, there is a performance objective
directing that the pre-waste emplacement ground water travel time along
the fastest path of likely radionuclide travel from the disturbed zone
to the accessible environment must be at least 1,000 years or such
other travel time as approved by the NRC. Under NRC's proposed
revisions to its regulations, this subsystem performance requirement
would no longer apply to a repository at Yucca Mountain under part 60,
and it would not exist, nor would there be any requirement similar to
it, under new part 63. Accordingly, it would be illogical for DOE to
reach a finding relative to this disqualifying condition, as required
by Appendix III, based on regulatory requirements that no longer would
be applicable to the Yucca Mountain site and would not support a
determination of site suitability for the Yucca Mountain site.
Below is a table further illustrating the inconsistencies between
the current Guidelines and the proposed part 63. Table 1 provides a
cross walk between the technical guidelines to be applied as the
criteria under section 113(b), their analog in existing part 60, and
their analog, if any, in proposed part 63.
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As demonstrated in the above table, in most cases there is no
analog between the DOE Guidelines and NRC's proposed part 63. In
addition, the Guidelines could not continue to reference and rely on
revised part 60, since NRC's proposed revisions to part 60 would make
them inapplicable to a repository at Yucca Mountain. Under the
circumstances, it would be irrational and difficult, if not impossible,
for DOE to apply the Guidelines in their current form
o
analog between the DOE Guidelines and NRC's proposed part 63. In
addition, the Guidelines could not continue to reference and rely on
revised part 60, since NRC's proposed revisions to part 60 would make
them inapplicable to a repository at Yucca Mountain. Under the
circumstances, it would be irrational and difficult, if not impossible,
for DOE to apply the Guidelines in their current form.
Under these changed circumstances, DOE must act to propose
amendments to its outdated Guidelines and conform its site suitability
criteria to the NRC proposed rule for licensing a Yucca Mountain
repository.
3. Improvements in Analytical Methods
DOE's proposed changes will also serve to conform the rules for
assessing the suitability of a site with the current scientific and
technical methods developed and utilized by DOE in its site
characterization program. The proposed changes in the regulatory scheme
reflect the advances in the scientific and technological understanding
of the processes relevant to assessing the long-term performance of a
geologic repository. The regulatory revisions proposed by EPA, NRC and
DOE, mark a change from generic regulations based on limited
information about geologic disposal developed early in the Nation=s
quest for sites for geologic disposal, to regulations promulgated
specifically for the Yucca Mountain site that reflect over 20 years of
data collection and intensive site characterization activities at the
Yucca Mountain site. It would be irrational for DOE to ignore these
changes, and continue to rely on technical requirements that are not
aligned with, and are not supported by, the prevailing scientific
knowledge and understanding
egulations promulgated
specifically for the Yucca Mountain site that reflect over 20 years of
data collection and intensive site characterization activities at the
Yucca Mountain site. It would be irrational for DOE to ignore these
changes, and continue to rely on technical requirements that are not
aligned with, and are not supported by, the prevailing scientific
knowledge and understanding.
As recognized by the NRC in its proposed part 63, during the more
than 15 years since the NRC promulgated its initial technical criteria
at 10 CFR part 60 (and DOE promulgated matching technical requirements
in 10 CFR part 960), there has been considerable evolution in the
capability of technical methods for assessing the performance of a
geologic repository at Yucca Mountain. 64 FR 8640-8641. These advances
result from both improved computer capability and better analytical
methods. Indeed, these changes for the first time enable the vast
quantities of data that have been collected through site
characterization to all be used in models that more accurately model
site performance. NRC stated that these new methods were not envisioned
when the part 60 criteria were established, and that their
implementation allows for the use of more effective and efficient
methods of analysis for evaluating conditions at Yucca Mountain than do
the existing NRC generic criteria in part 60. 64 FR 8641. Moreover, NRC
believes that implementation of these new analytical methods for
evaluating Yucca Mountain will avoid the imposition of unnecessary,
ambiguous, or potentially conflicting criteria that could result from
the application of some of the generic requirements of 10 CFR part 60.
64 FR 8641.
The evolution in performance assessment methodology formed the
basis for DOE's 1996 proposal to amend the Guidelines
that implementation of these new analytical methods for
evaluating Yucca Mountain will avoid the imposition of unnecessary,
ambiguous, or potentially conflicting criteria that could result from
the application of some of the generic requirements of 10 CFR part 60.
64 FR 8641.
The evolution in performance assessment methodology formed the
basis for DOE's 1996 proposal to amend the Guidelines. In that
proposal, DOE explained that only by assessing how specific design
concepts will work within the natural system at Yucca Mountain and
comparing the results of these assessments to the applicable regulatory
standards, can DOE reach a meaningful conclusion regarding the site's
suitability for development as a repository. The proposed amendments to
the Guidelines would have required a comprehensive evaluation focused
on whether a geologic repository at Yucca Mountain would adequately
protect the public and the environment from the hazards posed by high-
level radioactive waste and spent nuclear fuel (61 FR 66160). DOE
explained that recent results in four major areas have advanced the
ability to evaluate the Yucca Mountain site, and geologic disposal, to
the point that a system approach is now appropriate. These four areas
are: (1) Analysis and integration of data collected from surface-based
testing and regional studies; (2) examination of the potential
repository horizon made possible by the excavation of the Exploratory
Studies Facility; (3) the site-specific conceptual design of the
engineered facilities; and (4) performance assessment analyses (61 FR
66161).
As with the NRC, DOE recognizes that this improved understanding
now allows the reconsideration of general Guidelines that may be
unnecessary, ambiguous, or potentially conflicting for Yucca Mountain
made possible by the excavation of the Exploratory
Studies Facility; (3) the site-specific conceptual design of the
engineered facilities; and (4) performance assessment analyses (61 FR
66161).
As with the NRC, DOE recognizes that this improved understanding
now allows the reconsideration of general Guidelines that may be
unnecessary, ambiguous, or potentially conflicting for Yucca Mountain.
Based on the DOE's accumulated knowledge, and significantly enhanced
understanding, DOE has determined that a system performance approach
provides the most meaningful method for evaluating whether the Yucca
Mountain site is suitable for development as a repository. In this
revised proposal, DOE expands on its earlier proposal to modify the
Guidelines and incorporate performance assessment as the appropriate
approach to assess the forecasted performance of a repository, and to
serve as the basis for site characterization suitability criteria. This
revised proposal provides greater detail, comprehension and
transparency of information describing the performance assessment
methodology, and how it serves as a foundation for site
characterization suitability criteria.
IV. Response to Public Comments on the 1996 Proposal
DOE requested public comments and announced a public hearing on the
proposed amendments to the Guidelines in the Notice of Proposed
Rulemaking published in the Federal Register on December 16, 1996. 61
FR 66157.
DOE received written and oral comments on the proposed amendments
to the Guidelines from numerous organizations including Federal, state,
and local government agencies; citizen and environmental groups; a
nuclear industry group; a Native American group; and from individual
citizens. Oral comments were also received during the January 23, 1997,
public hearing in Las Vegas, Nevada
1
FR 66157.
DOE received written and oral comments on the proposed amendments
to the Guidelines from numerous organizations including Federal, state,
and local government agencies; citizen and environmental groups; a
nuclear industry group; a Native American group; and from individual
citizens. Oral comments were also received during the January 23, 1997,
public hearing in Las Vegas, Nevada. DOE received many comments
concerned with issues that are not related to the proposed amendments
to the Guidelines, such as issues that pertain to activities at the
Nevada Test Site, the continued use of nuclear power, the broad powers
of the federal government, as well as activities related generally to
the civilian radioactive waste program but not at issue in this
rulemaking, such as consideration of alternatives to geologic disposal,
the Western Shoshone claims to land under the Ruby Valley Treaty, and
opposition to or support of geologic disposal and the study of Yucca
Mountain. Because these issues lie outside the scope of the proposed
amendments to the Guidelines, they are not addressed in this notice.
DOE notes that many of the comments received, especially from
individuals, expressed a strong opposition to the selection of Yucca
Mountain as the only site to be characterized. As explained in section
II above, in the 1987 amendments to the NWPA, Congress limited DOE to
characterizing only the site at Yucca Mountain. The wisdom of that
decision is not the subject of this rulemaking proceeding.
The following discussion summarizes the issues emerging from the
comments that bear on DOE's current proposal, and DOE's response to
those comments. All issues and comments on the 1996 proposal may not be
addressed here in light of DOE's decision in this notice to revise the
1996 proposal and provide a
full public comment period on the revised proposal.
A. Legal Authority.
aking proceeding.
The following discussion summarizes the issues emerging from the
comments that bear on DOE's current proposal, and DOE's response to
those comments. All issues and comments on the 1996 proposal may not be
addressed here in light of DOE's decision in this notice to revise the
1996 proposal and provide a
full public comment period on the revised proposal.
A. Legal Authority.
Several commenters, including the State of Nevada, stated that
DOE's proposal to amend the Guidelines is contrary to section 112(a) of
the Act and cited the following three decisions by the U.S. Court of
Appeals for the Ninth Circuit as support for this view: Nevada versus
Watkins, 914 F.2d 1545 (9th Cir. 1990) (Watkins I), Nevada versus
Watkins, 939 F.2d 710 (9th Cir. 1991) (Watkins II), and Nevada versus
Watkins, 943 F.2d 1080 (9th Cir. 1991) (Watkins III). Specifically, the
Attorney General of Nevada stated at the public hearing that section
112(a) of the Act and the Watkins I and II decisions stand for the
proposition that the Guidelines were to be used to determine the
suitability of the site, and at the time of a suitability determination
the validity of the current Guidelines would be subject to review by
the Court.
DOE recognizes that it did not set forth in the 1996 Notice of
Proposed Rulemaking a full legal analysis of the statutory basis for
the proposed rule, nor did DOE address the rulings of the 9th Circuit
Court of Appeals in the three ``Watkins'' decisions cited by the State.
In this notice, DOE has included an extensive discussion entitled
``Legal Authority and the Necessity to Amend the Guidelines and
Criteria'' in order to more fully explain to the public DOE's
interpretation of the pertinent sections of the NWPA and why DOE
believes that it not only may but must amend the Guidelines and
promulgate a new part 963
three ``Watkins'' decisions cited by the State.
In this notice, DOE has included an extensive discussion entitled
``Legal Authority and the Necessity to Amend the Guidelines and
Criteria'' in order to more fully explain to the public DOE's
interpretation of the pertinent sections of the NWPA and why DOE
believes that it not only may but must amend the Guidelines and
promulgate a new part 963. While DOE believes that the ``Watkins''
rulings are instructive in interpreting various provisions of the NWPA,
DOE does not believe that these rulings support the contention that DOE
may not amend the Guidelines, or that the criteria used for the
suitability determination under section 113 must be identical to the
conditions in the Guidelines that are used for site selection under
section 112.
B. Relationship between DOE suitability determination and NRC licensing
requirements.
Nye County expressed the view that due to funding cuts DOE was
attempting to cut corners and accelerate the process toward licensing.
Nye County was concerned that this would mask what it views as the
distinction between site suitability and NRC licensing. Several
individual commenters stated that DOE appeared to be: (1) Dropping the
NRC licensing requirements for Yucca Mountain; (2) lowering the
licensing requirements; or (3) deleting some of the NRC requirements.
The following responds to the Nye County comments. First, although
DOE suffered funding shortages in 1996, funding shortages were not the
reason for the decision to propose amendments to the Guidelines in
1996. DOE stated the reasons for the 1996 proposal in the Federal
Register notice announcing the proposal, and included DOE's intent to
focus and clarify the site suitability evaluation of the Yucca Mountain
site to reflect anticipated regulatory changes and the most current
scientific and technical methods for assessing the expected performance
of a geologic repository at Yucca Mountain
in
1996. DOE stated the reasons for the 1996 proposal in the Federal
Register notice announcing the proposal, and included DOE's intent to
focus and clarify the site suitability evaluation of the Yucca Mountain
site to reflect anticipated regulatory changes and the most current
scientific and technical methods for assessing the expected performance
of a geologic repository at Yucca Mountain.
Second, the 1996 proposed amendments to the Guidelines, as well as
those proposed in this notice, are not an attempt to accelerate the
licensing process, or otherwise mask the distinction between site
suitability and licensing. Rather, they are an attempt to carry out the
site characterization program for its intended purpose, that is, to
determine if the site is suitable and potentially licensable. The site
suitability criteria developed by DOE within the context of the site
characterization program, and proposed here as new rule 963, are
closely linked to the determination of the site's potential
licensability, as they must be. DOE must conduct its site
characterization process in accordance with section 113(c) of the NWPA,
which provides that DOE may conduct only such site characterization
activities as DOE considers necessary to provide the data required for
evaluation of the suitability of such site for an application to be
submitted to the NRC for a construction authorization (often referred
to as a ``license'') at such site, and for compliance with NEPA. 42
U.S.C. 10133(c). Therefore, DOE is required to base its site
characterization activities on NRC licensing requirements and the
environmental impact statement to be conducted under NEPA.
While today's proposal relies, in part, on newly proposed NRC
licensing requirements, it is completely consistent with the letter and
the purpose of the NWPA. Although DOE is utilizing NRC's proposal to
develop DOE's own proposal, DOE is not attempting to accelerate the
licensing process
tivities on NRC licensing requirements and the
environmental impact statement to be conducted under NEPA.
While today's proposal relies, in part, on newly proposed NRC
licensing requirements, it is completely consistent with the letter and
the purpose of the NWPA. Although DOE is utilizing NRC's proposal to
develop DOE's own proposal, DOE is not attempting to accelerate the
licensing process. DOE must first complete all the steps in section 113
and section 114(a)(1) of the NWPA before making a recommendation to the
President, and receive presidential and congressional approval before
submitting an application for a construction authorization to the NRC.
Then, DOE would have to participate in the licensing process outlined
by NRC in its regulations. DOE, as a potential licensee subject to NRC
regulation, has no authority to accelerate the licensing process; only
NRC is authorized to do that.
The following responds to concerns raised by other commenters that
DOE's proposal to change to part 960 is an attempt to eliminate or
degrade NRC licensing requirements. That was not DOE's intent in the
1996 proposal, nor in today's proposal. To the contrary, DOE's proposed
amendments to the Guidelines and new part 963 are designed to better
align DOE's suitability criteria with newly proposed NRC licensing
requirements. The NRC's recent proposed amendments to 10 CFR part 60
and proposed new part 63 are based on its own legal responsibilities
and technical judgment. DOE has no authority to amend NRC requirements.
DOE's objective in promulgating a new part 963 is to conform to, rather
than deviate from, NRC requirements so that DOE can determine whether
NRC is likely to approve an application from DOE for a construction
authorization for a repository at Yucca Mountain.
C. The rules should not be changed to fit the site.
sibilities
and technical judgment. DOE has no authority to amend NRC requirements.
DOE's objective in promulgating a new part 963 is to conform to, rather
than deviate from, NRC requirements so that DOE can determine whether
NRC is likely to approve an application from DOE for a construction
authorization for a repository at Yucca Mountain.
C. The rules should not be changed to fit the site.
Some commenters stated their belief that Yucca Mountain would be
disqualified under the existing Guidelines and therefore DOE is
attempting to change the rules to fit the site.
DOE is not proposing to amend part 960 and adopt a new part 963
because it believes Yucca Mountain cannot satisfy the conditions in the
current Guidelines. Rather, this proposal is intended to implement the
statutory mandate in section 113 in a rational manner, consistent with
the current regulatory framework and technical basis for assessing the
performance of a geologic repository as an integrated system. DOE is
convinced that the transition to a system performance approach will not
result in a lower level of protection of public health and safety.
DOE's reasons for proposing amendments to the Guidelines in 1996 were
provided in the notice announcing that proposal. In this notice, DOE
provides an extensive discussion of the basis and reasons for its
revised proposal to amend part 960 and add new part 963.
Notwithstanding these explanations, DOE recognizes that many
commenters believe that DOE is changing the Guidelines because of the
fear that those requirements cannot be met. In particular, several
commenters stated
he notice announcing that proposal. In this notice, DOE
provides an extensive discussion of the basis and reasons for its
revised proposal to amend part 960 and add new part 963.
Notwithstanding these explanations, DOE recognizes that many
commenters believe that DOE is changing the Guidelines because of the
fear that those requirements cannot be met. In particular, several
commenters stated
their belief that the site could not meet the ground-water travel time
disqualifying condition in the Guidelines (Sec. 960.4-2-1(d)).
DOE has not reached a conclusion on this issue. The disqualifying
condition at Sec. 960.4-2-1(d) requires disqualification if DOE
determines that the pre-waste emplacement ground-water travel time is
expected to be less than 1,000 years along any pathway of likely and
significant radionuclide travel. Calculations performed in 1998 as part
of the total system performance assessment for the Viability Assessment
indicate that the average ground-water travel time is greater than
1,000 years. Based on investigations and calculations to date, DOE has
not determined whether the ground-water travel time along any pathway
of likely and significant radionuclide travel is less than 1,000 years.
DOE continues to investigate and conduct research on ground-water
travel time at Yucca Mountain to reduce uncertainties, to the extent
possible, and to gain confidence in its calculations. In the meantime,
DOE believes that there is no basis at this time to find that this
disqualifying condition exists at Yucca Mountain.
In addition, under NRC's proposed changes to its licensing criteria
and requirements for high-level waste repositories, the analogous
provision to 960.4-2-1 in existing 10 CFR part 60 would no longer be
applicable to a geologic repository at Yucca Mountain, and new 10 CFR
part 63 would not contain such a condition, or any condition similar to
it. As previously explained in section III.
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