February 24, 2000
Dr. William J. Boyle
U.S. Department of Energy
Yucca Mountain Site Characterization Office
P.O. Box 98608
Las Vegas, Nevada 89193-8608
RE: Supplemental Notice of Proposed Rulemaking: Office of Civilian Radioactive Waste Management; General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories; Yucca Mountain Site Suitability Guidelines; 10 CFR Parts 960 and 963. 64 FR. No. 229, November 30, 1999, pp. 67054-67089.
Dear Dr. Boyle:
The Nevada Agency for Nuclear Projects Nuclear Waste Project Office is the agency directed by the Nevada Legislature to oversee the federal high-level nuclear waste program. We are providing these comments on the Supplemental Notice of Proposed Rulemaking on behalf of the State of Nevada.
There is no statutory basis or regulatory need for the proposed new guidelines.
The rationale for proposing new, site specific suitability guidelines for use by the Secretary of Energy in determining whether to recommend the Yucca Mountain site to the President for development as a repository is flawed. The DOE maintains that it must revise its site recommendation guidelines to closely conform to the new Environmental Protection Agency standard for the Yucca Mountain site and new Nuclear Regulatory Commission regulations for licensing a Yucca Mountain repository. The basis for the new EPA standard is the direction from Congress in the Energy Policy Act of 1992 to promulgate a site specific standard for the proposed Yucca Mountain repository site. EPA has proposed such a new rule (40 CFR Part 197), but it has yet to become final. The NRC claims the Energy Policy Act as its direction to promulgate a new licensing rule specific to a Yucca Mountain repository, however the direction in that Act is only to "modify its technical requirements and criteria...as necessary, to be consistent with" the EPA's new standard. (Sec. 801(b)). NRC proposed a new licensing rule (10 CFR Part 63) prior to EPA's issuance of its proposed new standard, and that rule has not been finally promulgated.
Absent final EPA and NRC rules, it is premature for the DOE to claim it must modify its site recommendation guidelines to closely conform to these new rules. It is also incorrect to assert that the guidelines must closely conform to these new rules when they become final. While the guidelines must not be inconsistent with the EPA standard and the NRC rule, there is no requirement that they closely conform to these rules. The current site recommendation guidelines, 10 CFR Part 960, while broader in scope, are not substantively inconsistent with the proposed EPA and NRC rules.
It is reasonable that the technical considerations of the site recommendation guidelines should be consistent with the EPA standard and NRC licensing rules. However, the purpose of the guidelines is different from that of the licensing rule and the environmental and safety standard. The guidelines are intended to provide a measure for one component of the Secretary of Energy's decision on whether to make a site recommendation to the President. This is a policy decision that is intended to include a number of factors, such as the requirement of an Environmental Impact Statement, the views and comments of Nevada's Governor, and the Nevada impact report to accompany any site recommendation. The primary use of the guidelines is to judge first the merit of the proposed site itself, without engineered enhancements, for safe isolation of radioactive waste. This requires a means by which to judge the favorable and adverse characteristics of the site, something the 10 CFR 960 guidelines provide, but the proposed 10 CFR Part 963 guidelines do not. The guidelines can then be used to evaluate how a repository system might perform with multiple barriers, both natural and engineered, providing defense-in-depth, should the natural barriers not perform as well as expected. The existing 10 CFR Part 960 also provides for this type of performance assessment. But the proposed 10 CFR Part 963 guidelines provide only for performance assessment, potentially masking serious waste isolation deficiencies in the natural features of the site. In the case of Yucca Mountain, the performance assessment does mask serious deficiencies in the waste isolation capability of the site and relies heavily on the projected long-term durability of engineered barriers, a condition not desired or anticipated by the drafters of the Nuclear Waste Policy Act.
The basis for this understanding of the original intended nature of the technical guidelines comes from the DOE's Final Environmental Impact Statement, "Management of Commercially Generated Radioactive Waste," October, 1980. The Nuclear Waste Policy Act requires incorporation of the multibarrier concept for waste isolation, which according to the EIS is "a 'defense-in-depth' or 'multiple barrier' approach to offsetting the present lack of certainty or predictability in some factors of the waste disposal system. The basic purpose of the concept is to provide a series of independent barriers to radionuclide migration that taken together represent a compound or multiple barrier." (p. B.15). On the same page, the EIS points out that the natural barrier is intended to be the primary long-term protection against loss of waste isolation: "The host rock with its properties provides the justification for geologic disposal and is the main element in containing the waste within the repository and isolating the waste from man's environment over the long term."
The purpose of the environmental and safety standard and licensing regulations is to support a regulatory decision, once the policy decision has been made to proceed. The Nuclear Waste Policy Act, and its origins in technical considerations, make clear the intent that sites with deficient natural barriers would have been "weeded out" or disqualified before being recommended to the President.
There is neither a statutory basis nor a regulatory need to revise the 10 CFR Part 960 site recommendation guidelines. It is recognized that the Nuclear Waste Policy Act permits the Secretary to revise the guidelines from time to time, but the Act explicitly states that revisions must be consistent with the provisions of Section 112(a) that require DOE to establish guidelines and criteria for the recommendation of sites for repositories. The matter of the inconsistency of the proposed new guidelines (10 CFR Part 963) with Section 112(a) will be discussed later in these comments.
If there were a congressional intent that the site recommendation guidelines be revised and made specific to the proposed Yucca Mountain repository site, Congress has had at least two opportunities to make this intent explicit, and in neither instance has it done so. First, the enactment of the 1987 amendments to the Nuclear Waste Policy Act, which singled out the Yucca Mountain site as the only site to be characterized, left unchanged Section 112(a) of the Act. And second, the Energy Policy Act of 1992, which requires a new, site specific EPA standard for the Yucca Mountain site, and that the NRC licensing rule be consistent with this standard, is silent on the matter of DOE's site recommendation guidelines.
The site recommendation guidelines must be consistent with the requirements of Section 112(a) of the Nuclear Waste Policy Act as amended.
In its discussion of the Proposed Rulemaking, DOE provides an intricate yet intentionally falsified rationale for why new Yucca Mountain Site Suitability Guidelines (proposed 10 CFR 963) are justified, and why the existing Guidelines for Recommendation of Sites for Nuclear Waste Repositories do not apply to the decision on whether to recommend the Yucca Mountain site for development of a repository. At issue is whether the guidelines developed pursuant to Section 112(a) of the Act are the same requirements as the Section 113(b) "criteria to be used to determine the suitability of such candidate site for location of a repository, developed pursuant to section 112(a)" which are to be included in the Site Characterization Plan, and thus used by the Secretary in considering site recommendation.
Now, after nearly 17 years of believing otherwise, the DOE asserts that the Section 112(a) guidelines are only for the purpose of selecting sites for site characterization, and that a different set of criteria (the proposed 10 CFR Part 963) is to be applied in the recommendation decision. The language of the Act is clear, however it is intentionally misrepresented in DOE's core argument.
DOE states in its Overview of the Nuclear Waste Policy Act (p. 67056) "Specifically, section 112(a) directs the DOE to issue general guidelines for the recommendation of candidate sites for site characterization" (underline added). Section 112(a) of the Act reads, "[T]he Secretary...shall issue general guidelines for the recommendation of sites for repositories" (underline added).
In the next paragraph of the Overview, DOE states, "Under section 112(a), DOE was required to specify in the guidelines...(2) certain factors (eg. hydrology, geophysics, seismic activity) that would either qualify or disqualify a site from site characterization" (underline added). The Act reads, in Section 112(a), "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..." (underline added).
And continuing the same paragraph, DOE states, "(3) population density and distribution factors that would disqualify any site for characterization" (underline added). The Act, in Section 112(a) states, "Such guidelines shall specify population factors that will disqualify any site from development as a repository..." (underline added).
It is clear, despite DOE's intentional misquoting of the Act here and legalistic obfuscation later in its discussion, that the Section 112(a) guidelines were intended to be the measure of site suitability at the time of the site recommendation decision, and that the "criteria" required by Section 112(a) are the same "criteria" required in Section 113(b) "to determine the suitability of such candidate site for location of a repository."
The importance of establishing the site recommendation guidelines developed pursuant to Section 112(a) of the Act as the measure for the Secretary's site suitability decision leading to a site recommendation decision is that these guidelines must "specify factors that qualify and disqualify any site from development as a repository." The Proposed 10 CFR Part 963 "Yucca Mountain Site Suitability Guidelines" do not contain qualifying and disqualifying conditions for the suite of factors named in Section 112(a) of the Act, and therefore, are not in compliance with the requirements of the Nuclear Waste Policy Act.
The guidelines are required also to contain consideration of socioeconomic and transportation factors that qualify or disqualify sites from recommendation for development of a repository. The proposed 10 CFR Part 963 "Yucca Mountain Site Suitability Guidelines" do not contain such factors, resulting in their noncompliance with the requirements of the Nuclear Waste Policy Act. It is not sufficient pursuant to the Act to claim, as DOE has done, that these factors will have adequate consideration in the Yucca Mountain Environmental Impact Statement, since the National Environmental Policy Act does not require that considerations be made relative to factors that qualify or disqualify a site.
Additionally, this proposed revision of the "General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories" (10 CFR Part 960) is not in compliance with the Nuclear Waste Policy Act because its applicability would be limited to selection of sites for site characterization only, rather than for all site screening and selection decisions including recommendation for development as a repository.
The proposed amendment to the general site recommendation guidelines (10 CFR Part 960) and the proposed new guidelines for determining the suitability of the Yucca Mountain site for development as a high-level nuclear waste repository (10 CFR Part 963) should be withdrawn. Both the proposed amendment and the proposed new rule fail to comply with the clear language and intent of the Nuclear Waste Policy Act as amended.
If you have any questions about these comments, please contact me.
Robert R. Loux