March 7, 1997

April V. Gil
U.S. Department of Energy
Yucca Mountain Site Characterization Office
P.O. Box 30307
North Las Vegas, NV 89036-0307

RE: Notice of Proposed Rulemaking: 10 CRF Part 960. General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories. 61 FR No. 242, December 16, 1996, 66158-66169.

Dear Ms. Gil:

The Nevada Agency for Nuclear Projects Nuclear Waste Project Office is the agency charged by Nevada Statute to oversee the federal high-level nuclear waste program. We are providing these comments on the subject Notice of Proposed Rulemaking in that capacity, on behalf of the State of Nevada.

Previous Statements for the Record:

On December 24, 1996 Governor Bob Miller wrote to Secretary of Energy Hazel O'Leary (copy attached) regarding this proposed rulemaking. He wrote that "the proposed rule does not comply with the clear direction in Section 112(a) of the Nuclear Waste Policy Act, as amended, which requires specific factors that qualify or disqualify any site from development as a repository." He concluded that the proposed rule should be withdrawn, and that "[t]he proposed approach, if adopted, will result in legal challenge by the State of Nevada...".

In her written statement for the record at the Public Hearing (copy attached) on the proposed rule on January 23, 1997, Nevada Attorney General Frankie Sue Del Papa detailed her conclusion that the proposed rule does not comply with the requirements of the Nuclear Waste Policy Act, as amended. She further challenged the Department of Energy's claim to have received new Congressional direction as its authority to make this proposal. This new authority is said by DOE to be derived from the May 1996 draft revised Civilian Radioactive Waste Management Program Plan having been cited in the Conference Report on the 1997 Energy and Water Appropriations Act. The revised Program Plan speaks to a regulatory change similar to that now proposed in this rulemaking.

Attorney General Del Papa further stated for the record: "It is improper for the DOE to obfuscate the deficiencies of either the guidelines or the site by substituting a new set of guidelines which is based upon the subjective opinion by unspecified persons that the site may perform satisfactorily, a process which has no support in law. My office will have no choice but to challenge this improvident decision, if pursued, in court."

Technical Comment:

The May 1996 draft revised Civilian Radioactive Waste Management Program Plan states, "The siting guidelines will be revised to identify the criteria and clarify the process for evaluating the suitability of the Yucca Mountain site." The criteria, as proposed in the rule, are the yet-to-be promulgated Environmental Protection Agency repository standards specific to Yucca Mountain, and applicable Nuclear Regulatory Commission regulations for repository licensing and operation. The process for evaluating the suitability of the Yucca Mountain site is proposed to be DOE's repository system performance assessment. At the time the Secretary of Energy makes a recommendation to the President that the Yucca Mountain site be developed as a high-level nuclear waste repository, the system performance assessment will still be evolving. The revised Program Plan calls for the recommendation to be made in fiscal year 2001.

As proposed, the suitability evaluation, therefore, will be DOE's determination, prior to the 2001 site recommendation, that the site complies with the applicable EPA and NRC requirements, based on the system performance assessment at that time.

System performance assessment relies on realistic and conservative models of the natural systems of the site and their interaction with models of the planned engineered system. The extent to which the models can be considered realistic and conservative relies on the extent to which the models are supported by, and reflect actual data collected from the site and the man- made components of the planned engineered system. Large data uncertainties and incomplete data lead to large model output uncertainties, and therefore, large uncertainty in system performance projections.

There will always be uncertainties in performance assessment, especially for a geologic repository system. Orders of magnitude of uncertainty for some model outputs are not unexpected in some components of the system performance model. Some of the uncertainty can be reduced by further investigation and data collection, which, by DOE's own plans will continue after the guidelines are applied for the suitability evaluation and site recommendation.

In one critical area of repository performance, DOE acknowledges that there will be large uncertainty, due to lack of data at the time of site recommendation. This is the response to the thermal pulse imposed on the system by the emplacement of heat-generating waste. It is acknowledged that data collection from heat-up and cool-down in an accelerated drift-scale underground thermal test will not be complete, and certainly will not have been evaluated as to its representativeness for the full scale repository at the time the proposed new guidelines are applied. This alone could lead to orders of magnitude of uncertainty in repository system performance evaluation. Given just this one case of large uncertainty, it is scientifically indefensible to use this assessment as a basis for comparison with quantitative regulatory criteria, i.e. the EPA standard and NRC licensing regulations, and then to use this evaluation as a basis for a Secretary of Energy final decision as to whether the site is suitable.

If the proposed guideline amendment is said, by DOE, to rely on the revised Program Plan for its basis of authority, then the amendment must be reflective of all parts of the Program Plan. In the case of the thermal pulse consideration, the revised Program Plan does not provide for key data collection that would support a site suitability evaluation by the time called for in the Plan. This alone, if the Plan is followed, is sufficient justification, under the proposed rule, to challenge the technical credibility of the suitability determination.


Taken together, the attached previous statements of Nevada officials and the technical comment in this letter constitute the State of Nevada comments on the proposed rule. In summary, our conclusion is that the proposed rule does not comply with the requirements of the Nuclear Waste Policy Act, as amended, and should be withdrawn. Further, if the rule, as proposed, is promulgated and applied as a measure for determining the suitability of the Yucca Mountain site in accord with the Revised Program Plan, that determination will be challenged as lacking substantive basis.

If you have questions about these comments please contact me.


Robert R. Loux
Executive Director


2 Attachments:

(1) December 24, 1997 Letter from Governor Miller to Secretary of Energy Hazel O'Leary

(2) Comments by Attorney General Frankie Due Del Pappa at the January 23, 1997 public hearing in Las Vegas

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