[Federal Register Volume 61, Number 6 (Tuesday, January 9, 1996)]
[Proposed Rules]
[Pages 633-634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-282]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 6 / Tuesday, January 9, 1996 /
Proposed Rules
[[Page 633]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 61
[Docket No. PRM-61-3]
Heartland Operation To Protect the Environment
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of receipt of petition for rulemaking.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is docketing, as a
petition for rulemaking, a document, dated August 7, 1995, filed with
the Commission by Heartland Operation to Protect the Environment
(HOPE). The petition was assigned Docket No. PRM-61-3 on October 6,
1995. The petitioner requests that the Commission amend its regulations
to adopt a rule regarding government ownership of a low-level
radioactive waste disposal site that is consistent with Federal
statute. In this document, the NRC is announcing the receipt of the
petition and requesting public comment on the suggested amendment.
DATES: Submit comments by March 11, 1996. Comments received after this
date will be considered if it is practical to do so. However, assurance
of consideration cannot be given except as to comments received on or
before this date.
ADDRESSES: Submit comments to the Nuclear Regulatory Commission,
Attention: Docketing and Service Branch, Office of the Secretary,
Washington, DC 20555-0001. For a copy of the petition, write to the
Rules Review Section, Rules Review and Directives Branch, Division of
Freedom of Information and Publications Services, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555.
FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review
Section, at the same address as above or by telephone: 301-415-7163 or
toll free: 1-800-368-5642.
SUPPLEMENTARY INFORMATION:
Background
The NRC published an advance notice of proposed rulemaking (ANPRM)
in the Federal Register on August 3, 1994 (59 FR 39485). The ANPRM
announced that the NRC was considering amending its regulations to
allow private ownership of the land used for a low-level radioactive
waste (LLRW) facility site as an alternative to the current requirement
for Federal or State ownership. In the ANPRM, NRC considered the option
to allow private-land ownership indefinitely, given that adequate land-
use restrictions were imposed. The ANPRM invited comment on 12
questions to assist the NRC in determining if such a change could be
made without adversely impacting public health and safety. The NRC
received 49 comment letters in response to the ANPRM. The NRC prepared
a detailed summary of the comments received.1
\1\ Copies of the summary are available for inspection or
copying for a fee from the NRC Public Document Room at 2120 L Street
NW, (Lower Level), Washington DC; the PDR's mailing address is US
NRC, Mail Stop LL-6, Washington, DC 20555-0001; telephone (202) 634-
3273; fax (202) 634-3343.
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On July 18, 1995 (60 FR 36744), the NRC published a notice
withdrawing the ANPRM published in the Federal Register on August 3,
1994. In the notice of withdrawal, the NRC stated that a rule change to
allow private-land ownership of a LLRW site is not warranted or needed.
The NRC stated that the bases for its decision are that State and
compacts have generally indicated that they do not need, nor would they
allow, private-land ownership and that this rule change could be
potentially disruptive to the current LLRW program.
Petitioner's Concern
The petitioner states that the NRC's present regulation (10 CFR
61.59(a)), which requires disposal of LLRW ``only on land owned in fee
by the Federal or a State government,'' is in conflict with a provision
in the Nuclear Waste Policy Act of 1982 (NWPA), as amended (42 USC
10171(b)). The act authorizes the U.S. Department of Energy ``to assume
title and custody of low-level radioactive waste and the land on which
such waste is disposed of, upon request by the owner of such waste and
land following termination of the license issued by the Commission
(NRC) for such disposal * * *.'' Therefore, the petitioner proposes
that the NRC regulations should conform to NWPA provision and require
private land ownership during operations and closure of the facility,
then converting title to the site to the U.S. Department of Energy.
The petitioner states that, because of the conflict between the NRC
regulation and the NWPA statute, the NRC regulation is void with regard
to Federal ownership of a LLRW disposal site before commencement of the
receipt of waste. The petitioner asserts that if the regulation is void
with regard to Federal ownership, that it is also silent or
unconstitutional with regard to State ownership. The petitioner
references the following case [New York v. United States, 112 S.Ct.
2408 (1992)].
Several commenters, including the petitioner, made similar comments
on the ANPRM that there is not an adequate basis for requiring Federal
or State land ownership, which therefore would support private
ownership. In the withdrawal of the ANPRM, the Commission stated that
it believes there is adequate statutory authority for NRC to require
Federal or State land ownership. The Commission Paper (SECY-95-152;
dated June 13, 1995) further discussed the NRC staff rationale for
believing that NRC has this authority. The paper stated the staff's
belief that NRC has authority to require Federal or State land
ownership pursuant to the Atomic Energy Act of 1954, as amended, in
Section 161b. This section gives the Commission the authority to
promulgate regulations deemed necessary or desirable to protect health
or to minimize danger to life or property.
The petitioner further states that the notice withdrawing the ANPRM
(60 FR 36744) contains no documentation or statement of any issue of
public health and safety as the basis for the regulation; therefore,
the petitioner believes public health and safety cannot be an issue
upon which the NRC regulation is based.
The petitioner also states that the notice of withdrawal contains
the statement: ``The Commission believes that the potential negative
impact of disrupting the current process far outweighs any potential
benefits that
[[Page 634]]
might be derived from making a generic rule change at that time.'' In
response, the petitioner asserts that the Commission's role is to
regulate nuclear material in a manner that protects public health and
safety and the environment, that its role is not to facilitate specific
processes, i.e., the current LLRW disposal process.
The petitioner references the following quote from the notice of
withdrawal:
For over three decades the public has been led to believe that
all LLW disposal sites would necessarily be owned and controlled by
either a Federal or State government. This, we believe, has been an
important factor in convincing many proponent groups and State and
local LLW advisory groups that LLW can and will be disposed of in a
safe manner. To now try and convince these groups that Federal or
State ownership of LLW disposal sites is not required may be
difficult and generate a significant credibility problem.
In response, the petitioner states that credibility problems occur
when misrepresentations, i.e., government ownership is necessary to
ensure proper LLRW management, are initially made and that the
credibility problems are exacerbated the longer the misrepresentations
are allowed to continue. The petitioner believes that there certainly
would appear to be a larger credibility problem for the Commission to
maintain a regulation that is in direct conflict with a statute. The
petitioner offers that the Commission might reflect on the Department
of Energy's recent efforts to gain credibility by coming clean on past
misrepresentations, i.e., secret radiation studies.
Conclusion
The petitioner believes that for the stated reasons, the NRC should
adopt a rule regarding government ownership of LLRW disposal sites that
is consistent with the Federal statute [42 USC 10171(b)].
Dated at Rockville, Maryland, this 2nd day of January, 1996.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-282 Filed 1-8-96; 8:45 am]
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