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October 29, 1998

Dr. Shirley A. Jackson
U.S. Nuclear Regulatory Commission
Washington, D.C. 20555-0001

Dear Dr. Jackson:

I am writing to you in regard to the recent release of the NRC staff recommendation of a new proposed rule for Disposal of High-Level Radioactive Wastes in a Proposed Geologic Repository at Yucca Mountain, Nevada (10 CFR Part 63). The new rule would replace and preclude use of the existing general rule for Disposal of High-Level Radioactive Wastes in Geologic Repositories (10 CFR Part 60) in NRC's consideration of a license application for a Yucca Mountain high-level radioactive waste repository.

First, I want you to know that I appreciate the release of the staff recommendation prior to the Commission's publication of a Proposed Rule for public review and comment. This action provides an opportunity for comment on issues considered by the Commission in its direction to staff to prepare a recommendation for a site-specific licensing rule for a Yucca Mountain repository, but for which interested and affected parties were neither invited nor requested to provide input.

Given the opportunity, we first would have questioned the timeliness of this rulemaking. The Energy Policy Act of 1992 requires that the Commission "not later than 1 year after the [EPA] Administrator promulgates [repository] standards...modify its technical requirements and criteria, necessary, to be consistent with the Administrator's standards..." To date, the Administrator of the Environmental Protection Agency has not promulgated the new repository standards required by the Act. Therefore, it is premature for the Commission to propose any modification of its licensing rule absent such standards. Once the EPA standards are promulgated, it will then be clear what, if any, modifications to the NRC licensing rule will be needed to maintain consistency.

We understand that the potential license applicant, the U.S. Department of Energy, has announced its current schedule for repository site recommendation and subsequent license application, and its stated need for relevant regulations and standards to be in place early in 2000. However, without the final EPA repository rule, there is no rulemaking action incumbent upon the Commission, even in the face of the impatient demands of the Department of Energy. I submit that no potential applicant for any NRC license, and especially the Department of Energy with its long record of delay in meeting its own deadlines, should be allowed to tax the limited resources of the NRC and the affected public by its demands for premature and potentially unnecessary actions that are outside the mandate of law.

Our second comment to the Commission would have been that the Energy Policy Act of 1992 supersedes the Nuclear Waste Policy Act of 1982, as amended, with respect to regulatory criteria and standards. It mandates new EPA standards specific to a Yucca Mountain repository, but it does not mandate a new NRC rule specific to Yucca Mountain to replace its general rule for licensing any geologic repository. It only requires modification of technical requirements and criteria, as necessary, to be consistent with new EPA environmental and human protection standards, once they have been promulgated. Further, the Energy Policy Act of 1992 does not mandate the Commission to expand its licensing role to include setting standards for human safety and environmental protection. This action has been assigned by Congress as an independent responsibility of the Environmental Protection Agency. I am aware that the Commission has said it will change its rule again if the final EPA standards are different from those established by the Commission, but the Commission's role and authority is to implement and enforce the EPA standards, not attempt to dictate their substance according to its own judgement.

The Commission directed the staff not to include a groundwater protection standard in its recommended site-specific Yucca Mountain licensing rule. This has the effect of saying that while EPA's general repository standards that apply to DOE's Waste Isolation Pilot Plant (WIPP) in New Mexico contain a groundwater protection standard (the same as that for all underground sources of drinking water in the country), the standard should not be applied at Yucca Mountain. The implication is that this stringent groundwater protection standard is not reasonable for a Yucca Mountain, Nevada, repository and a lesser safety standard should apply there. This directive was issued to the staff despite the Commission's knowing that a Yucca Mountain repository would produce significant radioactive contamination of the local residents' source of water for drinking and agriculture. The people of Nevada will not accept, and Nevada law does not permit this willful compromise of public safety.

It appears that the primary purposes of the Commission's current rulemaking activity for a Yucca Mountain repository are to accommodate DOE's schedule for submitting a repository license application in 2002 and to attempt to establish, in advance of EPA action, the substance of a repository safety standard that will accommodate DOE's current understanding of Yucca Mountain repository performance. Neither of these purposes serves to advance the regulatory goal of objectively evaluating whether the Yucca Mountain potential repository site can be demonstrated to provide reasonable assurance of safety.

I, therefore, urge you to defer issuance of any proposed modifications to NRC repository regulations until EPA has discharged its duty to set new safety standards that a Yucca Mountain high-level radioactive waste repository must meet in order to be granted a license. To do otherwise raises serious concerns about the objectivity and independence of the regulatory process as it is applied to evaluation of a potential Yucca Mountain repository.




Bob Miller