Subject: Final Decision Related to the U.S. Department of Energy
[Federal Register: October 26, 2001 (Volume 66, Number 208)]
[Notices]
[Page 54303-54305]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc01-108]
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NUCLEAR REGULATORY COMMISSION
Final Decision Related to the U.S. Department of Energy's General
Guidelines for the Recommendation of Sites for Nuclear Waste
Repositories and its Yucca Mountain Site Suitability Guidelines
AGENCY: Nuclear Regulatory Commission.
ACTION: Concurrence on the U.S. Department of Energy's revision of its
general guidelines for the recommendation of sites for nuclear waste
repositories, and on its guidelines for determining the suitability of
the site at Yucca Mountain, Nevada.
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SUMMARY: This final decision sets forth the reasons of the U.S. Nuclear
Regulatory Commission (``NRC'' or the ``Commission'') for concurring on
the revised ``General Guidelines for the Recommendation of Sites for
Nuclear Waste Repositories'' and on the ``Yucca Mountain Site
Suitability Guidelines,'' designated 10 CFR part 963, proposed by the
U.S. Department of Energy (``DOE'' or the ``Department''). These draft
final guidelines were submitted by DOE to the Commission for review and
concurrence on May 4, 2000.
EFFECTIVE DATE: October 26, 2001.
FOR FURTHER INFORMATION, CONTACT: Michael P. Lee, Division of Waste
Management, Environmental and Performance Assessment Branch, telephone
301/415-6677, e-mail: mpl@NRC.gov; or C. William Reamer, Division of
Waste Management, High-Level Waste Branch, telephone 301/415-6537, e-
mail: cbr@NRC.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
Section 112(a) of the Nuclear Waste Policy Act of 1982 (NWPA)
directed DOE to develop general siting guidelines for the
recommendation of sites for characterization as potential repositories
for the disposal of spent nuclear fuel and other high-level radioactive
wastes (HLW). Section 112(a) also called for NRC to concur on those
guidelines. DOE issued its final guidelines, in the form of 10 CFR part
960, on December 6, 1984 (49 FR 47715). The DOE guidelines defined the
technical requirements that candidate sites must meet, and specified
how DOE would implement its HLW repository site-selection process. The
guidelines also recognized NRC jurisdiction for the resolution of
differences between the guidelines and NRC's regulations governing the
disposal of HLW in geologic repositories at 10 CFR part 60 and provided
that DOE would obtain NRC concurrence on future revisions to the siting
guidelines. NRC concurred on DOE's general siting guidelines in July
1984 (49 FR 28130).
In 1987, Congress amended the NWPA and directed DOE to characterize
only the Yucca Mountain site, in Nye County, Nevada. In 1992, in the
Energy Policy Act (EnPA--Public Law 102-486), Congress directed 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, from releases of radioactive materials
stored or disposed of in a repository at the Yucca Mountain site. The
EnPA also required the U.S. Environmental Protection Agency (EPA) to
issue public health and safety standards consistent with the findings
and recommendations of the NAS, and the NRC to modify its technical
requirements and criteria to be consistent with EPA's standards. The
NAS published its recommendations in August 1995.
On December 16, 1996, DOE published proposed modifications to its
original 1984 guidelines (61 FR 66158). DOE's proposed amendments would
have created a new subpart to part 960, addressing only the Yucca
Mountain site, and were designed to concentrate the regulatory review
on the analyses of overall repository performance. EPA published its
final site-specific radiation standards for Yucca Mountain (40 CFR part
197) on June 13, 2001 (66 FR 32073). After publication of proposed
site-specific disposal regulations for public comment on February 22,
1999 (64 FR 8640), NRC considered and affirmed NRC's final regulations
on September 7, 2001.
II. DOE's Revised Siting Guidelines
In 1999, DOE decided to issue a revised proposal amending its
general guidelines, in lieu of finalizing the 1996 proposed revised
guidelines. Its revised proposal limited the general guidelines to the
preliminary screening of potential sites for a nuclear waste
repository, and added a new part 963 for determining the suitability of
the Yucca Mountain site for a potential geologic repository (64 FR
67054).
DOE gave three principal reasons for its new proposal: (a) The need
to provide more specificity for the criteria and methodology to be used
in evaluating the suitability of the Yucca Mountain site and to better
explain the legal bases for the proposal; (b) DOE's issuance, in
December 1998, of the report entitled, ``Viability Assessment of a
Repository at Yucca Mountain,'' which 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; and (c) the need for better alignment with EPA's
and NRC's site-specific regulations, under development at the time. See
64 FR 67054, 67055. The public comment period for the proposed rule
ended on February 14, 2000. In addition, DOE conducted two public
hearings in Nevada as part of the public comment process. Overall, DOE
received about 125 comments, questions, and concerns on its proposal
from 45 entities and members of the public, including comments from the
NRC staff, dated March 3, 2000.
In the new part 963, DOE proposes two separate determinations for
evaluating the suitability of the Yucca Mountain site. Using
information and data developed through its site characterization
programs to date, DOE would conduct both a preclosure and a postclosure
safety evaluation. The two separate, risk-based assessments are
consistent with NRC's final site-specific regulation for the proposed
Yucca Mountain site, 10 CFR part 63, which calls for an Preclosure
Safety Assessment and Total System Performance Assessment for the two
respective phases of repository activities. DOE would compare the
results from each of the two analyses with the applicable EPA standards
and the NRC regulations. 10 CFR part 963 also specifies the evaluation
methods and criteria to be used, as well as the specific determinations
to be reached by DOE. Although the revised draft final siting
guidelines at part 963 are closely linked to certain licensing criteria
and requirements in NRC's part 63 regulation, DOE has noted that
meeting part 963 would not be the equivalent of a determination that
the candidate site and the proposed design will meet all the NRC
licensing requirements necessary to receive authorization to construct
the proposed repository at Yucca Mountain.
In a letter dated May 4, 2000, DOE sent to the Commission, for its
review and concurrence, the revised draft final siting guidelines, in
the form of a proposed Federal Register notice
[[Page 54304]]
amending part 960 and containing the new part 963. Also included as
part of the proposed Federal Register notice were a DOE analysis and
response to the comments.
III. Concurrence Criteria
The Commission considered what criteria were appropriate for its
concurrence in its 1984 decision-making on DOE's siting guidelines and
believes that these criteria should continue to be used, to the extent
that they are still appropriate. The 1984 concurrence criteria were:
1. The siting guidelines must not be in conflict with NRC's
geologic disposal regulations.
2. The siting guidelines must not contain provisions that might
lead DOE to select sites that would not be reasonable alternatives for
an Environmental Impact Statement (EIS).
3. The siting guidelines should not contain provisions that are in
conflict with NRC responsibilities embodied in NWPA, as amended.
The Commission finds that the first and the third criteria remain
relevant. The second criterion is no longer relevant because the 1987
amendments to the NWPA eliminated the need for consideration of
alternative repository sites in an EIS. Moreover, in providing its 1984
concurrence, DOE agreed to meet seven conditions, of which the
principal two \1\ were:
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\1\ The remaining conditions pertained to specific languate in
the siting criteria, themselves, as well as clarifications and
additional specificity regarding their application.
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1. DOE was to amend its siting guidelines to recognize NRC
jurisdiction over resolution of differences between the Department's
siting guidelines and NRC's geologic disposal regulations.
2. DOE was to commit to obtain NRC concurrence on future siting
guideline revisions.
These two conditions remain valid for the present concurrence
decision.
IV. Commission Decision
The NRC staff raised three issues in its March 3, 2000, comments on
DOE's 1999 proposed revised guidelines. First, the staff pointed out
that there appeared to be no discussion addressing the potential matter
of a conflict between the proposed revisions and the applicable NRC
regulations and recommended that this issue be addressed in the
statement of considerations (SOC) for the guidelines. Second, the staff
noted that the SOC inappropriately included a reference to NRC's
quality assurance (QA) criteria of Appendix B in 10 CFR part 50 as
``considerations'' rather than as ``pass/fail standards'' in DOE's
discussion of how it has defined ``criteria.'' Staff underscored that
NRC's QA criteria are factors that must be present if DOE's QA program
is to be judged adequate and that any implication that NRC's QA
criteria are not required should be avoided, lest confusion result as
to their standing as regulatory requirements. Third, the staff noted
that DOE's proposed definition of ``cladding'' conveyed the inaccurate
notion that all cladding is corrosion-resistant, whereas, in reality,
some spent nuclear fuels are clad in aluminum, which is not generally
considered corrosion-resistant.
DOE has addressed these comments in its draft final revisions to
its guidelines. With respect to the first comment, DOE has added
material in its SOC explaining that the necessary consistency between
the DOE and NRC regulations is obtained through the careful crafting of
its regulation to conform to pertinent parts of NRC's part 63, and that
any conflicts between the two are resolved through the concurrence
process. With respect to the second comment, DOE's SOC now acknowledges
that NRC's QA criteria are factors that must be present for anyone's QA
program to be judged adequate, and that NRC's QA criteria are mandatory
despite their lack of quantitative, pass-fail references. Finally, DOE
has revised its definition of ``cladding'' to indicate that it is
generally made of corrosion-resistant zirconium alloy or stainless
steel, thereby eliminating the implication that it is always made of
such material. The Commission finds that DOE acceptably addressed the
NRC staff's comments.
Further, the Commission has not identified anything in DOE's
revised siting guidelines that conflicts with NRC's 10 CFR part 63
regulation, as modified to be consistent with the final EPA standard
for Yucca Mountain, nor has the Commission identified anything in DOE's
revised siting guidelines that would conflict with NRC's
responsibilities under the NWPA, as amended. With respect to the two
conditions, DOE has responded acceptably, as described above, to the
concerns that NRC jurisdiction be recognized for the resolution of any
potential conflicts between DOE and NRC regulations. Regarding the
second condition, DOE continues to commit [see 10 CFR 963.10(b)]
to
seek NRC concurrence on future revisions, if any, to its siting
guidelines.
In summary, the Commission has determined that DOE has acceptably
addressed the issues raised by the NRC staff in its March 3, 2000,
letter. Further, the Commission finds: (a) that the siting guidelines
are not in conflict with NRC's geologic disposal regulations at 10 CFR
part 63; and (b) the siting guidelines do not contain provisions that
are in conflict with NRC responsibilities embodied in the NWPA, as
amended. Therefore, the Commission concurs on DOE's revised general
guidelines for the recommendation of sites for nuclear waste
repositories (part 960) and on its guidelines for determining the
suitability of the Yucca Mountain site (part 963).
The Commission recognizes that DOE could make further changes to
its revised draft final siting guidelines submitted to the Commission,
for concurrence, prior to the publication of the guidelines.
Consequently, the Commission's concurrence is conditional on DOE's
agreement to notify NRC of any changes to the draft final guidelines
(including changes to the Supplemental Information) and its agreement
to retransmit the revised rulemaking package to the Commission, if any
substantive changes are made, for a determination as to whether re-
concurrence is needed.\2\
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\2\ We also note that DOE needs to modify the reference to ``the
quality assurance (QA)criteria of Appendix B in 10 CFR part 50 * * *
``in the Supplenmental Information of its May 4, 2000, proposed
Federal Register notice. This reference is no longer warranted in
light of the incorporation of applicable part 50 QA criteria in the
final part 63 rule.
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V. Commission Concurrence Process
Neither the NWPA nor its amendments specify any particular
procedure for NRC concurrence on DOE's siting guidelines. In an earlier
ruling on a petition by the Yakima Indian Nation, the Commission found
that NRC's concurrence responsibility is not a rulemaking and does not
require notice and opportunity for public comment (48 FR 39536). The
State of Nevada and Nye County (Nevada), in May 2000, requested that
the Commission provide the opportunity for public comment by interested
stakeholders.
DOE's siting guidelines at part 963 are similar to, and consistent
with, NRC's site-specific disposal regulations for Yucca Mountain at
Part 63. Extensive public comment was obtained, on the proposed part
63,\3\ through a Federal Register notice and the conduct of five public
meetings in Nevada. Moreover, the Commission has reviewed the record of
public comments on the proposed part 963 as well. Consequently, the
Commission has determined that sufficient information is available in
the record regarding
[[Page 54305]]
stakeholder concerns such that further stakeholder involvement before
the Commission's concurrence on part 963 is not necessary.
Dated this 19th day of October, 2001, at Rockville, Maryland.
For the Commission.
Annette Vietti-Cook,
Secretary of the Commission.
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\3\ On September 7, 2001, the Commission approved the final rule
at part 63.
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[FR Doc. 01-26946 Filed 10-25-01; 8:45 am]
BILLING CODE 7590-01-P