Robert R. Loux,  Executive Director



United States Nuclear Regulatory Commission
Atomic Safety and Licensing Board Panel
Rockville, Maryland

APRIL 2, 1998




The Nevada Agency for Nuclear Projects was established in 1985 by the Nevada Legislature to carry out the State's oversight duties of the federal high-level nuclear waste program pursuant to the Nuclear Waste Policy Act of 1982, as amended (NWPA). As you know, the 1987 amendment of the Act repealed the original high-level nuclear waste repository site screening process and named Yucca Mountain, Nevada, as the only site to be characterized as a candidate repository site. The amendment also deferred congressional consideration of the need for a second repository until late in the first decade of the 21st century, while retaining the capacity limit on the first repository at less than the expected amount of waste to be generated by currently operating nuclear power reactors.


Studies of Yucca Mountain began in 1977 after the U.S. General Accounting Office recommended that potential geologic repository sites at government owned atomic energy defense facilities be included among locations nation-wide being investigated as potential nuclear waste repository sites. Yucca Mountain is actually not on the Nevada Test Site (NTS), but is immediately adjacent to the western boundary of NTS, on lands under the jurisdiction of the Bureau of Land Management and the United States Air Force. The Western Shoshone Indian Nation also claims Yucca Mountain and the NTS area as part of its much larger treaty lands that have never been ceded to the U.S. government. If the Yucca Mountain site is finally selected for the nation's high-level nuclear waste repository, the site will need to be permanently withdrawn by Congress for that purpose, and the treaty dispute will need to be resolved, in order for the government to demonstrate full ownership and control over the repository site, as required by the rules of the Nuclear Regulatory Commission.

After passage of the Nuclear Waste Policy Act of 1982, Yucca Mountain was named one of nine Potentially Acceptable Sites to be studied prior to selection of three candidate repository sites. The Yucca Mountain site is in bedded volcanic tuff. The other sites were at the Department of Energy's Washington State Hanford reservation, in basalt; in Texas and Utah, in deeply buried salt beds; and in Louisiana and Mississippi, in buried salt domes. With DOE's promulgation of its site recommendation guidelines (10 CFR Part 960), pursuant to the NWPA, it was clear that the Yucca Mountain site, the Hanford site, and one salt site would be the three candidates selected for detailed site characterization, unless Yucca Mountain or Hanford were disqualified for technical reasons under DOE's guidelines. This resulted from the guidelines' requirement that the three candidate sites represent a diversity of geohydrologic settings and rock types.

The NWPA required that the Nuclear Regulatory Commission concur in DOE's site recommendation guidelines, which it did in 1984, with the primary provision that "engineered barriers cannot constitute a compensating measure for deficiencies in the geologic media during site screening." This reflects, in part, the NWPA specification that detailed geologic considerations are to be the primary criteria in site selection.

Also, as required by the NWPA, the Commission has promulgated a licensing rule (10 CFR Part 60) for the disposal of high-level radioactive wastes in geologic repositories, and the Environmental Protection Agency, as required, promulgated "generally applicable standards for protection of the general environment from offsite releases from radioactive material in repositories" (40 CFR Part 191).

However, by 1992, it was widely apparent that the Yucca Mountain site could not meet the EPA standard's release limit for carbon-14 in the form of carbon dioxide gas, because the proposed waste emplacement location is in fractured rock above the water table. The ultimate result of this finding, after an unsuccessful attempt to have EPA modify its standard, was that Congress, in the 1992 Energy Policy Act, instructed the EPA to write a new individual dose-based standard, specific to the Yucca Mountain site. Congress further instructed the Commission to conform its repository licensing rule to the new EPA standard. To date, the EPA has not released its new proposed Yucca Mountain standard for review and comment, and the NRC staff is in the process of developing a proposed approach for a Yucca Mountain repository licensing rule for review by the Commission.

With the mandate for changes in the EPA standard and NRC licensing rule for Yucca Mountain, including individual dose rather than release limits and the assumption that institutional controls will prevent increased exposures due to post-closure human intrusion of the repository, the DOE has modified the emphasis of its site characterization program.

In DOE's 1988 Site Characterization Plan, which was reviewed and commented on in detail by the NRC staff and Nevada scientists, the emphasis was on rigorous study of the Yucca Mountain geohydrologic setting and system as it relates to waste containment and isolation and the need to demonstrate compliance with DOE's 10 CFR Part 960 siting guidelines, NRC's 10 CFR Part 60, and EPA's 40 CFR Part 191. The process was one of identifying individual needed studies, developing detailed study plans, and coordinating the results into a comprehensive understanding of the undisturbed site and setting and the processes and events that have and will likely continue to affect them. The thought at the time was that any engineered barriers were a true representation of "defense in depth," since they were redundant to the waste isolation capabilities of the site.

This emphasis on developing a detailed, methodical understanding of the site has since evolved into an exercise that relies less on data collection and more on development of process models and the abstraction of those models into a total system performance assessment, leading eventually to predictions of annual dose to an average individual at different distances from the site and at different times in the future. The waste isolation and containment strategy, now referred to by DOE as the "Repository Safety Strategy" relies on some undefined level of proof (including uncertainty) that four key attributes exist and functioning together as expected from modeling, will result in acceptable future radionuclide doses to an average individual in the nearby accessible environment. The four key attributes are:

  •  Limited water contacting the waste packages;

  •  Long waste package lifetime;

  •  Slow rate of release of radionuclides from the waste form; and

  •  Concentration reduction during transport through engineered and natural barriers (e.g.,. diffusion, sorption, and most importantly, dilution in the groundwater beneath the water table).

The redundancy required for a claim of "defense in depth" no longer exists. It has been replaced by a continuum of claimed add-ons such as initial dry-out of the repository by the decay heat of the waste, backfill tailoring, drip shields over the waste packages, etc.

Supporting the modified approach to site characterization, in December, 1996 DOE published notice that it intends to amend its site recommendation guidelines, replacing the specific criteria for compliance and the qualifying and disqualifying conditions (in which the Commission concurred) with the requirement only that the repository allow for waste containment and isolation in accordance with the (yet to be proposed) EPA Yucca Mountain standard and NRC regulations implementing that standard. Compliance with the guidelines would be determined by the ability of the repository to meet the standards, based on the result of a post-closure system performance assessment. DOE has not sought the Commission's concurrence regarding this intended proposal, and a Proposed Amendment to 10 CFR Part 960 has not been published for review and comment.

At the time the Secretary of Energy recommends to the President that a Yucca Mountain repository license application be submitted to the NRC (now scheduled for 2001), based on a finding that the site meets the requirements of the DOE siting guidelines, the NWPA requires that the Commission provide an accompanying report. The report is to be the Commission's "preliminary comments concerning the extent to which the at-depth site characterization analysis and the waste form proposal seem to be sufficient for inclusion" in the application. The NRC staff has identified a number of what it considers to be licensing issues, and is preparing Issue Resolution Status Reports based on its review of DOE's on-going work. The Nevada Agency for Nuclear Projects has informed the Commission of its concern that NRC staff issue resolution during site characterization is prejudicial, and despite the admonition in 10 CFR Part 60 that such communication only represents informal conference, the reports may have the effect of closing issues appropriate for consideration in the licensing hearing. In response to this concern, NRC staff has stated that issue resolution only means that the NRC staff currently has no further questions regarding the particular issue. The NRC staff further has said that the reports are to assure that the Commission's preliminary comments regarding sufficiency of information will contain no "surprises" for DOE.

The NRC staff's prelicensing activities and interactions, including review of DOE's ongoing work, is also aimed at assisting the Commission in meeting the NWPA mandate that a decision on whether to grant a construction authorization be made by the end of three years after the repository application is submitted (scheduled by DOE for 2002). The NWPA allows for a one year extension of this period if certain conditions are met. In view of this requirement, as early as 1983, NRC Chairman Palladino warned DOE that, in order for the NRC to comply with this requirement, the repository application must be complete and of high quality when it is first submitted. This admonition has been repeated often during the past 15 years.

To further assist in meeting the mandated license decision time limit, the NRC has taken the lead in developing procedures to assure that all licensing information will be available to parties in electronic form, in order to reduce the amount of time required for discovery. The original concept of a Licensing Support System is now undergoing changes, such that the information will be made available on the Internet, in a new system referred to as the Licensing Support Network. The system and procedures for the LSN will be established by NRC rule.


State of Nevada Role in the High-Level Nuclear Waste Program: The NWPA provides for Nevada to oversee the federal high-level nuclear waste program and carry out independent research in matters relevant to the program. With assistance from technical contractors, including University scientists, the Nuclear Waste Project Office carries out technical reviews of DOE's Yucca Mountain Project Reports as well as independent investigations in selected topical areas. Over the years, the Office has published over 80 technical reports of its independent investigations on topics including hydrology, volcanology, tectonics and seismicity, geochemistry, mineral resources, paleoclimatology, performance assessment, and natural analogues, as they relate to the Yucca Mountain Project. Individual investigators also have published numerous papers on their Yucca Mountain related work in peer-reviewed journals. The Office also retains engineers to review DOE's repository designs and to represent the State on-site during drilling and underground construction activities associated with the Exploratory Studies Facility at Yucca Mountain.

The Office's independent investigations were brought to a halt last year, due to a severe limitation of funds. But for the prior ten years, the study program was based on topics viewed to be critical to DOE's site suitability determination relative to its siting guidelines and the requirements of NRC's 10 CFR Part 60. We have made the results of our work available to DOE and the NRC staff, since much of the work provides the foundation for alternative conceptual models and interpretations of the site and area geohydrologic settings and their waste isolation capabilities. Our current emphasis is on reviewing the bases for DOE's evolving Total System Performance Assessment.

The focus of the Office's technical program is derived from two sources: first, the State, under the NWPA, has the right to file a Notice of Disapproval to the Energy Secretary's finding of site suitability and recommendation that the Yucca Mountain site be put forward to the Commission for a repository license (such notice stands as a veto of the recommendation, unless overridden by a vote of both houses of Congress); and second, Nevada has the "unquestionable legal right to participate as a party" in any NRC licensing proceeding regarding Yucca Mountain, according to NRC's 10 CFR Part 60. If a Yucca Mountain repository license application is submitted by DOE, Nevada intends to participate as a party in the NRC proceeding.

Our technical program also oversees and reviews DOE's environmental program associated with the Yucca Mountain Project, as this in an integral part of the Secretary's suitability determination, as well as the required Yucca Mountain repository Environmental Impact Statement that must accompany any repository site recommendation by the Secretary. If the NRC decision on a Yucca Mountain repository application is favorable, the NWPA instructs the Commission to adopt, to the extent practicable, the DOE's EIS to accompany the decision. On July 3, 1989 the Commission published its final rule on review procedures for National Environmental Policy Act review of geologic repositories for high-level waste, acknowledging the NWPA requirement.

In addition, as part of the Office's technical program, we participate in DOE/NRC technical, quality assurance, and management meetings regarding the Yucca Mountain Project, attend and make presentations at meetings of the United States Nuclear Waste Technical Review Board, participate as a member of the advisory panel for the Licensing Support Network, and interact, both formally and informally, with EPA in its development of a radiation protection standard for Yucca Mountain.

The Office oversees and reviews DOE's socioeconomic work regarding the Yucca Mountain Project, and its national and regional transportation program associated with the high-level nuclear waste program. Independent research is carried out in these areas, as well, to support our response to the Secretary's potential site suitability determination and Yucca Mountain repository EIS, and, if necessary, the NRC Yucca Mountain repository license decision EIS.

Geotechnical Issues Important To Waste Isolation At Yucca Mountain: While the NRC's repository licensing rule, 10 CFR Part 60, does not contain disqualifying site selection conditions, choosing instead to employ "favorable" and "potentially adverse conditions", the NWPA directs that the DOE site recommendation guidelines identify conditions that qualify or disqualify a site for development as a high-level waste repository. Nevada has asserted for a number of years that conditions exist, or cannot be proven to not exist, that should result in the disqualification of the Yucca Mountain site by the Secretary.

In a November, 1989 letter to then Secretary of Energy James Watkins, Nevada Governor Bob Miller said the Yucca Mountain site should be disqualified for any or all of three conditions. First, the site has a potential for future human intrusion compromising waste containment and isolation; second, there is a potential for recurring seismic activity and volcanism disrupting waste containment and isolation; and third, groundwater travel time from the emplaced waste location to the accessible environment is very likely less than the 1,000 year criteria established in DOE's guidelines. These are all issues of concern, requiring attention by 10 CFR 60 as well.

Regarding human intrusion, conveniently Congress has legislated around this problem since Governor Miller's 1989 letter, though it remains no less a safety concern because of the proximity of known valuable mineral deposits. In the 1992 Energy Policy Act, which required a new EPA standard for Yucca Mountain, Congress also instructed NRC, in conforming its licensing rule to a new EPA standard, to assume that institutional controls and engineered barriers will protect against any future human activities that could increase exposures to individuals beyond allowable limits.

Seismicity at and in the near vicinity of Yucca Mountain is an ongoing process for the foreseeable future. During the period 1976 to 1996 there were 621 seismic events of magnitude 2.5 or greater within 50 miles of Yucca Mountain. One of those was a magnitude 5.6 earthquake within less than ten miles of Yucca Mountain, on June 29, 1992 which is considered to have been triggered by the magnitude 7.4 Landers earthquake, in nearby southern California. In 1948, records indicate there was a magnitude 3.6 event on the southern boundary of the Yucca Mountain site, in a known heavily faulted area. While ground motion from earthquakes is somewhat attenuated in underground structures, waste packages weighing in excess of 100 tons, placed horizontally in excavated tunnels that may not be backfilled are subject to damage and failure from nearby seismic events. The fractured tunnel walls and surrounding rock are also subject to further disruption that could alter fluid flow paths.

Evidence continues to be investigated that suggests hydrothermal mineralization in fractures at Yucca Mountain is possible, associated with tectonic activity. In this situation, upwelling hydrothermal solutions might impact the waste in the repository, corroding waste packages and transporting radionuclides through Yucca Mountain along the solution paths. While this theory is controversial, it still remains unresolved whether this phenomenon can be ruled out.

Volcanism that directly impacts waste emplaced in the Yucca Mountain repository has a relatively low probability of occurrence during a regulatory period of 10,000 to 100,000 years; however recurrence of nearby young volcanism could produce adverse seismic and hydrologic effects on waste isolation at Yucca Mountain.

New evidence, in addition to that cited by Governor Miller in 1989, that water infiltrates rapidly downward to the water table through fractures in Yucca Mountain, in addition to that which infiltrates slowly through pores in the rock, has caused DOE to revisit its earlier conceptual model of the unsaturated zone and modify its waste isolation strategy. The discovery of chlorine-36 residues in concentrations indicating an atmospheric nuclear weapons test source, at the level of potential waste emplacement confirms that infiltrating water has reached the waste emplacement level, and below, in a period of fifty years or less. The residues are found on the walls of open fractures. Initially, DOE expected that infiltrating water, under the current dry climatic conditions, would take thousands of years to reach the waste from the ground surface. With a return to a glacial climate, DOE believes precipitation could increase by a factor of 3 or 4, resulting in greater infiltration rates, especially when fracture flow dominates the unsaturated zone hydrology.

At the water table, DOE is modeling the waste plume as broad, with a deep mixing depth, thus resulting in significant radionuclide dilution before it reaches potential users of the groundwater. DOE is currently predicting the resultant doses to be within an acceptable range. However, existing data support an alternative model, with the plume being a series of narrow, shallow streams at the water table, with limited dilution. If this alternative model is confirmed, the radionuclides would undergo only limited dilution, and thus provide significantly higher doses than DOE predicts to water users down gradient.

DOE's Licensing Approach Does Not Conform to 10 CFR Part 60: It appears that DOE intends to submit a less-than-complete repository license application to receive a construction authorization. The most notable deficiency in the license application will be the lack of data to support a thermal loading design. An accelerated drift scale heater test was initiated late in 1997, with a planned heat-up period of at least four years, followed by a four or more year cool-down. Critical data and analysis for fluid movement and thermomechanical, thermochemical, and coupled processes will not be available for the planned 2002 license application, and at this time the expected "dry out" from waste decay heat in a "hot" repository is DOE's base case for a license application and integral to its total system performance assessment for the Yucca Mountain repository. There is also the question of whether the location of this test can be demonstrated to representative of the entire repository block.

Waste package emplacement, rearrangement, and maintaining the capability to retrieve waste packages will require the development of complex robotics and communication systems. Such robotics and communications exist now only in concept, and the specifications for robotics during the retrieval period are probably beyond the capability of current technology. This is likely another area in which the license application will be incomplete and without demonstration, yet it is integral to the safe operation of the repository.

DOE's license application will also raise the question of whether the requirement for "defense in depth" is met by its reliance on a continuum of barriers, with emphasis on engineered barriers to demonstrate waste isolation. If redundancy is required to provide true "defense in depth", the application will be deficient in this respect.

Yucca Mountain Project managers have been speaking of the license application as the "Initial License Application" for a construction authorization. Two additional "Updated License Applications" would follow: one to receive and possess radioactive waste, and finally one for repository closure. This phased approach appears to be in conflict with the regulatory approach of 10 CFR Part 60. In 10 CFR Part 60, it seems clear that the Commission's disposal decision, based on a finding of reasonable assurance of regulatory compliance, is made with the issuance of a Construction Authorization. That decision is then to be confirmed with a license amendment to receive and possess. And finally, after the operational period and at the end of the retrievability period, an amendment is to be submitted for repository closure. Approval of this amendment is intended to be the final confirmation of the Commission's initial "reasonable assurance" finding.

Conversely, the DOE's phased licensing approach would have the Commission taking incremental steps toward a disposal decision, which would occur after its review of the License Amendment for Repository Closure. In this case, the Commission's determination of "reasonable assurance" would be made no sooner than 50 years after first waste emplacement, at the end of the required retrievability period and after all the waste had been emplaced.

"Disposal," according to 10 CFR Part 60, "means the isolation of radioactive wastes from the accessible environment." And, "retrieval means the act of intentionally removing radioactive waste from the underground location at which the waste had been previously placed for disposal." Therefore, it would be inconsistent with 10 CFR Part 60 to consider the repository operation and retrieval period to be a time during which new and necessary information to support a disposal decision is to be collected.

The Commission's requirement for a "performance confirmation" program has been misinterpreted by DOE to be a continuation of site characterization, for example, establishing the scientific and technical basis for an effective thermal design. Instead, the Commission's requirement is intended to assure evaluation of the "accuracy and adequacy" of the information used to support the original disposal decision, which was to be made at the time of issuance of a Construction Authorization.


For the past 55 years there has been a need to discover a technologically sound way to isolate the long-lived hazardous products of induced nuclear fission from the human environment. This so-called closing of the nuclear fuel cycle has been understood from the outset to be a responsibility of the U.S. government, which created the first high-level nuclear wastes and now has declared much of the product of its efforts, the weapons grade plutonium it produced, to be "surplus" - a waste - rather than a national resource. In an effort to "humanize" induced nuclear fission, the government encouraged the inception of the nuclear power industry, which has already produced highly radioactive wastes in amounts far in excess of the now dormant U.S. weapons production program and continues to increase the waste inventory on a daily basis.

The political climate over the past nearly 20 years, largely driven by the demands of the commercial nuclear power industry to have the government take waste away from its reactors, has been one of impending crisis - the lights will go out - when, in reality, no such crisis existed then, nor does it now. Yet the cry goes on: "We must solve the nuclear waste problem."

In the early 1970's, the Atomic Energy Commission declared it had "solved the nuclear waste problem" by announcing that a salt mine at Lyons, Kansas, would be the permanent resting place for the nation's highly radioactive wastes. This declaration was quickly undone when it was pointed out that the site was technologically flawed, and there was no certainty that the wastes would remain isolated from humans for the long period of time required.

The Department of Energy's 1980 Environmental Impact Statement, Management of Commercially Generated Radioactive Wastes, selected deep geologic disposal as the preferred alternative for permanent isolation of these long-lived wastes. This technologically based conclusion was adopted as national policy with passage of the Nuclear Waste Policy Act of 1982. Once again, the nuclear waste problem was announced to have been "solved." The Act set out a process for screening and selecting sites for permanent disposal, but, while technologically less rigorous than the process described in the EIS, warned that "appropriate precautions must be taken to ensure that such [highly radioactive] wastes and spent fuel do not adversely affect the public health and safety and the environment for this or future generations." To instill public confidence in the process, the Act required that repositories be licensed by the Nuclear Regulatory Commission, according to safety standards adopted by the Commission and the Environmental Protection Agency.

By 1987, with political difficulties from affected states, schedule slippages, and rapidly escalating costs overwhelming the DOE's site investigation process, Congress was reconsidering the effectiveness of the 1982 Act. A Senate bill under consideration would have only one, rather than three candidate sites characterized, and would halt the screening for a second repository site. In a June, 1987 Senate hearing the DOE manager for the Yucca Mountain Project was asked about his level of confidence that the Yucca Mountain site would be found suitable for development as a repository. His response was the following:

"If one takes the information we have now, and tries to project the kinds of things that are liable to be discovered in the next five or six years of site characterization, it is inconceivable to me that we would discover something of a major nature that would cause us to change our mind about it...The process of doing the modeling and the calculations that estimate the radioactive releases from the repository tells us that we may be five orders of magnitude below a very conservative EPA standard."

The confidence expressed in this testimony, in part, was what led Congress, in 1987, to name Yucca Mountain as the only site to be characterized for a repository and to defer selection of a second repository site. Once again, it was declared that the waste problem had been "solved."

But, it was just five years later that, as noted above, it was discovered that the site could not meet the EPA release limit for carbon-14, resulting in a congressional directive to EPA to change the standard for Yucca Mountain. It was also just five years later that a magnitude 5.6 earthquake struck near Yucca Mountain. And it was six years later that DOE began changing its Yucca Mountain waste isolation strategy to one of emphasizing engineered barriers and total system performance, rather than making deterministic evaluations of the factors affecting the waste isolation characteristics of the site.

Now, with the January 31, 1998 date established by the 1982 Act for beginning operation of a repository having passed, Congress is attempting again to "solve" the waste problem, under heavy pressure from the nuclear utility lobby. Different bills have passed the House and Senate, under veto threat from the President, and are now awaiting conference. Among other things, the bills would establish an annual individual dose standard for the Yucca Mountain repository 25 times higher than the national Safe Drinking Water Act Standard, in lieu of the EPA establishing a standard. The bills also would mandate the licensing, construction, and operation, by 2003, of a centralized interim waste storage facility adjacent to Yucca Mountain. Because of the known potential that the identified interim storage site may not meet existing NRC siting requirements, the bills instruct NRC to adopt rules for the licensing of the mandated facility.

In closing, given past history and the known waste isolation deficiencies of the Yucca Mountain site, and the fact that it is the only candidate repository site, we in Nevada, believe that the intent of repository advocates is to make the Yucca Mountain site appear, on paper, to be the "solution" to the waste problem. However, in reality, if the regulators permit Yucca Mountain to be developed as a high-level nuclear waste repository, they will only have created a new and more acute waste problem for future generations.

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