The Nuclear Waste Policy Act of 1982, as amended (PL 97-425) requires the Secretary of Energy to develop guidelines by which to evaluate potential repository sites. Section 112 (a) of the Act spells out in detail the specific factors that must be covered by these guidelines, which were intended to provide the tool by which DOE both was to discriminate among competing sites in narrowing the number of sites and subsequently to assess the suitability of the site ultimately recommended for development as a repository. The statutory requirement for the guidelines is as follows:

Section 112. (a) Guidelines. "... the Secretary [of Energy] ... shall issues general guidelines for the recommendation of sites for repositories. Such guidelines shall specify detailed geologic considerations that shall be primary criteria for the selection of sites in various geologic media. Such guidelines shall specify factors that qualify or disqualify any site from development as a repository, including factors pertaining to the location of valuable natural resources, hydrology, geophysics, seismic activity, and atomic energy defense activities, proximity to water supplies, proximity to populations, the effect upon the rights of users of water, and proximity to components of the National Park System, the National Wildlife Refuge System, the National Wild and Scenic Rivers System, the National Wilderness Preservation System, or National Forest Lands. Such guidelines shall take into consideration the proximity to sites where high-level radioactive waste and spent nuclear fuel is generated or temporarily stored and the transportation and safety factors in moving such waste to a repository. Such guidelines shall specify population factors that will disqualify any site from development as a repository if any surface facility of such repository would be located (1) in a highly populated areas; or (2) adjacent to an areas 1 mile by 1 mile having a population of not less than 1,000 individuals. Such guidelines shall also require the Secretary to consider the cost and impact of transporting to the repository site the solidified high-level radioactive waste and spent fuel to be disposed of in the repository and the advantages of regional distribution in the siting of repositories. Such guidelines shall require the Secretary to consider the various geologic media in which sites for repositories may be located and, the extent practicable, to recommend sites in different geologic media."

In 1984, DOE issued a comprehensive set of guidelines after a lengthy public rulemaking process. Those original guidelines contained qualifying and disqualifying conditions for factors that encompassed each of the areas covered by Section 112 of the Act. While some of those guidelines were applicable only to the comparison of various sites (something that became unnecessary after 1987 when Congress directed DOE to evaluate only the Nevada site), the core group of guidelines clearly were intended to provide the benchmarks by which the suitability of Yucca Mountain could be assessed.

On December 17, 1996, DOE issued a Notice of Proposed Rulemaking initiating a major revision to the siting guidelines which replaced the comprehensive set of specific and objective guidelines with two very general and highly subjective ones. The new guidelines being proposed are as follows:

"960.6-1 Postclosure system guideline

Qualifying Condition. The Geologic repository shall allow for the containment and isolation of radioactive waste after permanent closure in accordance with the EPA standards established specifically for the Yucca Mountain site and NRC regulations implementing those standards.

960.6-2 Preclosure radiological safety system guideline

Qualifying Condition. During construction, operation, and closure, the geologic repository shall perform in accordance with the EPA standards established specifically for the Yucca Mountain site and the applicable safety requirements set forth in 10 CFR Parts 20 and 60 [NRC regulations] or their successor provisions."

The use of such non-specific and overly subjective guidelines appears to be in direct violation of the requirements in the Nuclear Waste Policy Act. In addition, the EPA standards referenced in the proposed revisions have not yet been developed, and factors such as transportation, population, conflicts with atomic energy defense activities, conflicts with the National Parks and related systems, etc. will not be covered by the EPA standards or NRC regulations.

The proposed revisions appear to reflect DOE's unstated determination that Yucca Mountain cannot be found suitable for development as a repository under the existing objective guidelines. As a consequence, DOE appears to be attempting to change the measures by which the site is to be judged and, in the process, modify the Nuclear Waste Policy Act by regulation.

DOE is accepting public comment on its proposed rule changes during the 60 day period which began with publication of the proposed revisions in the Federal Register (on 12/17/96). Individuals wishing to comment on the changes have until May 16, 1997 to do so. Comments can be sent to:

April Gill
Yucca Mountain Site Characterization Office
P.O. Box 98608
Las Vegas, Nevada 89193-8608

DOE has scheduled a public hearing in Las Vegas on January 23, 1997 from 12:30pm to 4:30pm and from 6:00pm until all speakers have been accommodated. The hearing will be held at the University of Nevada Las Vegas, Moyer Student Union, second level - lounge #201.

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