[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Proposed Rules]
[Pages 67054-67089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30668]
[[Page 67053]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
10 CFR Parts 960 and 963
Office of Civilian Radioactive Waste Management; Nuclear Waste
Repositories; Yucca Mountain Site Suitability Guidelines; Proposed
Rulemaking
Federal Register / Vol. 64, No. 229 / Tuesday, November 30, 1999 /
Proposed Rules
[[Page 67054]]
DEPARTMENT OF ENERGY
10 CFR Parts 960 and 963
[Docket No. RW-RM-99-963]
RIN No. 1901-AA72
Office of Civilian Radioactive Waste Management; General
Guidelines for the Recommendation of Sites for Nuclear Waste
Repositories; Yucca Mountain Site Suitability Guidelines
AGENCY: Office of Civilian Radioactive Waste Management, Department of
Energy (DOE).
ACTION: Supplemental Notice of Proposed Rulemaking.
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SUMMARY: DOE invites public comment on a revised proposal to amend the
policies under the Nuclear Waste Policy Act of 1982 for evaluating the
suitability of Yucca Mountain, Nevada, as a site for development of a
nuclear waste repository. Today's revised proposal focuses on the
criteria and methodology to be used for evaluating relevant geological
and other related aspects of the Yucca Mountain site. Consistent with
longstanding policy to conform DOE regulations regarding its nuclear
waste repository program to comparable regulations of the Nuclear
Regulatory Commission, DOE's proposed criteria and methodology are
based on the Nuclear Regulatory Commission's recently proposed
regulations for licensing a nuclear waste repository at Yucca Mountain.
DATES: Written comments must be received by February 14, 2000. DOE
requests one copy of the written comments. DOE will hold two public
hearings on this supplemental notice of proposed rulemaking. A
subsequent Federal Register document, that will announce hearing dates,
locations, and times, will be issued during the comment period.
ADDRESSES: Written comments should be addressed to Dr. William J.
Boyle, U.S. Department of Energy, Yucca Mountain Site Characterization
Office, P.O. Box 98608, Las Vegas, Nevada 89193-8608, or provided by
electronic mail to 10CFR963@notes.ymp.gov.
Copies of the transcripts of the hearings, written comments, and
documents referenced in this notice may be inspected and photocopied in
the Yucca Mountain Science Center, 4101B Meadows Lane, Las Vegas,
Nevada, (702) 295-1312, and the DOE Freedom of Information Reading
Room, Room 1E-190, Forrestal Building, 1000 Independence Avenue, SW,
Washington, DC (202) 586-3142, between the hours of 8:30 a.m. and 4
p.m., Monday through Friday, except for Federal holidays. For more
information concerning public participation in this rulemaking, please
refer to the Opportunity for Public Comment section of this notice.
FOR FURTHER INFORMATION CONTACT: Dr. William J. Boyle, U.S. Department
of Energy, Office of Civilian Radioactive Waste Management, Yucca
Mountain Site Characterization Office, P.O. Box 98608, Las Vegas,
Nevada 89193-8608, (800) 967-3477.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
A. Enactment of the Nuclear Waste Policy Act
1. Development of the Nuclear Waste Policy Act
2. Overview of the Nuclear Waste Policy Act
B. DOE Promulgation of the General Guidelines at 10 CFR part 960
1. Overview of the General Guidelines
2. Structure of the General Guidelines
3. Bases for Structure of the General Guidelines
4. Consistency with NRC Technical and Procedural Conditions
C. DOE Application of the Guidelines
D. 1987 Amendments to NWPA
E. Yucca Mountain Site Characterization Plan
1. Statutory Requirements
2. Structure of the Site Characterization Plan
F. Energy Policy Act of 1992
G. Evolution of the Site Characterization Program
H. The 1993-1995 Public Dialogue on the Guidelines
I. The 1996 Notice of Proposed Rulemaking
J. Proposed NRC Regulation, 10 CFR part 63
1. Background
2. Structure of Proposed part 63
K. Proposed EPA Regulation, 40 CFR part 197
1. Background
2. Structure of Proposed part 197
III. Basis for Proposal
A. Legal Authority and Necessity to Amend the Guidelines and
Criteria
1. Overview
2. Section 112
3. Section 113
B. Events Necessitating Amendment of the Guidelines and Criteria
1. Congressional Redirection of the Program
2. Consistency Between DOE and NRC Regulations
3. Improvements in Analytical Methods
IV. Response to Public Comments on the 1996 Proposal
A. Legal Authority
B. C-K
V. Description of Proposal--10 CFR part 960
A. Subpart A--General Provisions
B. Subpart B--Implementation Guidelines
C. Appendix III
VI. Description of Proposal--10 CFR part 963
A. Subpart A--General Provisions
B. Subpart B--Yucca Mountain Site Characterization Suitability
Determination, Methods and Criteria
VII. Opportunity for Public Comment
A. Participation in Rulemaking
B. Written Comment Procedures
C. Hearing Procedures
VIII. Regulatory Review
A. Review for Compliance with the National Environmental Policy
Act (NEPA)
B. Review under the Regulatory Flexibility Act
C. Review under the Paperwork Reduction Act
D. Review under the Unfunded Mandates Reform Act
E. Review under Executive Order 12612
F. Review under Executive Order 12866
G. Review under Executive Order 12875
H. Review under Executive Order 12988
I. Review under Executive Order 13084
J. Review under the Treasury and General Government
Appropriations Act, 1999
I. Introduction
DOE today publishes this supplementary notice of proposed
rulemaking in order to revise its December 16, 1996, proposal (61 FR
66158) to amend the ``General Guidelines for the Recommendation of
Sites for Nuclear Waste Repositories'') (Guidelines) (10 CFR part 960)
that DOE promulgated under the Nuclear Waste Policy Act (NWPA) in 1984
(42 U.S.C. 10101, et seq.). The General Guidelines describe the DOE
policies applicable to three sequential stages of the NWPA siting
process, which are: (1) Preliminary site screening; (2) nomination of
sites for site characterization (geological investigation of selected
sites); and (3) selection of a site for recommendation to the
President. The Guidelines are consistent with the licensing regulations
of the Nuclear Regulatory Commission (NRC) in 10 CFR part 60.
In its December 16, 1996, proposal, DOE published proposed
regulatory amendments to the Guidelines to reflect the prevailing
scientific view on how to evaluate the suitability of the Yucca
Mountain site for the development of a nuclear waste repository.
Because the preliminary site screening stage was complete and Congress
has required DOE to focus on Yucca Mountain, Nevada, DOE's proposed
regulatory amendments dealt with provisions of the Guidelines
applicable to the site recommendation stage. Today DOE is revising the
terms of its proposal for three reasons.
First, during the comment period on the December 16, 1996,
proposal, DOE received comments from members of the public, State and
local officials of Nevada, the U.S. Environmental
[[Page 67055]]
Protection Agency (EPA), and the U.S. Nuclear Waste Technical Review
Board, that in substance criticized the omission from the proposed
regulatory amendments of the essential details of the criteria and
methodology for evaluating the suitability of the Yucca Mountain site
for the location of a nuclear waste repository. Some of the comments
made pointed recommendations for guidelines at a more definitive level
of specificity than the proposed regulatory text provided. Also, there
were comments critical of the legal basis for DOE's proposal and its
consistency with what those commenters viewed as DOE's past position on
the meaning of sections 112(a) and 113(b) of the Act. As explained in
detail later in this notice, DOE concluded that there was enough merit
in these comments to warrant revision of the proposed regulatory
amendments and expansion of the explanation of the factual and legal
bases for them.
Second, in December, 1998, DOE issued, pursuant to Congressional
direction, the Viability Assessment of a Repository at Yucca Mountain
(Viability Assessment) (DOE/RW-0508). This document, which is available
through the Internet on the web site (www.ymp.gov) or in hard copy upon
request (see above, Further Information) sets forth the bases for the
site suitability criteria DOE is proposing to use and the methodology
for applying the criteria to a design for a proposed repository at the
Yucca Mountain site. DOE can now assist commenters in responding to
DOE's proposal with appropriate descriptions of, and references to, key
portions of the Viability Assessment in the Supplementary Information.
Third, after the close of the comment period, the U.S. Nuclear
Regulatory Commission (NRC), consistent with Congressional direction to
the EPA to develop a site-specific radiation protection standard for
the Yucca Mountain site, proposed to issue site-specific licensing
requirements for that site in a new 10 CFR part 63 and to eliminate the
site from coverage under 10 CFR part 60. Thereafter, EPA issued the
Congressionally-mandated proposal for site-specific public health and
safety standards for a repository at Yucca Mountain, to be codified at
40 CFR part 197. Section 113(c) of the NWPA provides that a
determination of site suitability for development as a repository is
largely an estimate that an application to the NRC for a construction
authorization would be successful. 42 U.S.C. 10133(c). Thus, the
details of the NRC proposal, which were not available when DOE
formulated its December 16, 1996, proposal, affect the continuing
usefulness of existing 10 CFR part 960, the text of DOE's proposed
regulatory amendments, and the bases for those amendments in performing
the analysis required by section 113. For reasons explained in detail
below, DOE is of the view that the proposed part 63, if finalized
without significant change, would make it illogical to apply the
existing provisions of 10 CFR part 960, which are explicitly linked to
provisions of the NRC's part 60. Moreover, the details of the NRC's
proposal suggest the need for making conforming changes to the December
16, 1996, proposal to set forth the requirements for carrying out a
total system performance assessment as the method for applying the site
suitability criteria to the data developed during site characterization
of the Yucca Mountain site.
Consistent with EPA's proposal for site-specific public health
standards and NRC's proposal to limit part 60 and to establish a new
part 63 for the Yucca Mountain site, DOE today is proposing regulations
to: (1) Limit 10 CFR part 960 to preliminary site screening for
repositories located elsewhere than Yucca Mountain; and (2) establish a
new part 963 to contain the site suitability criteria and the methods
for considering the potential of the Yucca Mountain site for a nuclear
waste repository under those criteria. The proposed suitability
criteria and methods provide a link between the geologic considerations
identified in section 112(a) of the NWPA as primary criteria for siting
a repository, and the current scientific understanding of site
characteristics and related processes that are important to assessing
the performance and safety of a potential geologic repository at the
Yucca Mountain site. Although closely linked to the NRC's proposed part
63 licensing criteria and requirements, as is necessary and
appropriate, DOE's proposed regulations in part 963 are not the
equivalent of a determination that the site necessarily will meet all
requirements to obtain a license from the NRC, or to be recommended by
the Secretary for development as a geologic repository. Rather, DOE is
proposing this new rule to better define its policies and criteria for
determining the suitability of the Yucca Mountain site only in terms
of, and based on, the information and data developed through the
program of site characterization activities DOE has conducted over the
years at Yucca Mountain under section 113(b) of the NWPA.
In issuing this notice, DOE is seeking to improve its policies for
determining site suitability by enhancing their transparency, validity,
and verifiability. In terms of transparency, DOE is aiming at
regulations that are easier to read and understand. In terms of
validity, DOE is aiming at an explanation of the legal and scientific
basis for the regulations that shows how DOE's policies logically
follow from scientifically supportable and legally sound premises. In
terms of verifiability, DOE is aiming to show that the scientific
conclusions underlying its policies are based on documented empirical
results of experiments, and computer analyses of relevant data
sufficient to warrant the conclusions DOE may eventually draw from
known facts in a supporting statement for site recommendation to the
President.
DOE hereby invites interested members of the public, State and
local officials, and other Executive Branch agencies to review today's
revised proposal and to provide comments on how well this rulemaking
achieves these objectives. In addition, DOE intends to follow the
consultation procedures set forth in section 112(a) of the NWPA for
promulgation of the Guidelines in seeking review and comment on this
revised proposal.
II. Background
This section provides an overview of the developments which have
led DOE to propose to revise certain sections of the existing General
Guidelines for the Recommendation of Sites for Nuclear Waste
Repositories and to adopt a new rule governing the site suitability
criteria for the Yucca Mountain site.
A. Enactment of the Nuclear Waste Policy Act of 1982
1. Development of the Nuclear Waste Policy Act
The Nuclear Waste Policy Act of 1982 (NWPA) was enacted to provide
for the siting, construction, and operation of repositories for which
there is a reasonable assurance that the public and the environment
will be adequately protected from the hazards posed by spent nuclear
fuel and high-level radioactive waste (hereinafter referred to as
``spent fuel'' or ``high-level waste'' or both). The NWPA established
the Federal responsibility and defined Federal policy for the disposal
of spent fuel and high-level waste. Because this waste remains
radioactive for many thousands of years, Congress recognized that
disposal involved many complex and novel technical and societal issues.
To develop an appropriate framework for the resolution of these issues,
several
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years of intense legislative effort were required before a political
consensus emerged to support enactment of the NWPA.
To meet the well-recognized reluctance of communities to host such
facilities, the NWPA included a national site selection process that
was designed to ensure fairness and objectivity in the identification
of potential candidate sites for a repository. To ensure that the DOE
would consider only candidate sites that had good potential for being
licensed by the NRC, the NWPA required the DOE to obtain NRC
concurrence on the DOE's general siting guidelines. And to ensure that
the regulatory requirements for a repository would be set independently
of any responsibility assigned to the DOE to develop that repository,
the EPA was authorized to promulgate generally applicable standards for
the protection of the environment. The NRC was authorized to establish
repository licensing requirements and criteria, although these
requirements and criteria could not be inconsistent with any comparable
standards promulgated by the EPA.
2. Overview of the Nuclear Waste Policy Act
As originally enacted in 1982, the NWPA set forth requirements for
selecting sites for the disposal of spent fuel and high-level wastes in
a geological repository. 42 U.S.C. 10101, et seq. Several stages were
established for the evaluation of potential sites, and these stages
were defined in section 112, Recommendation of Candidate Sites for Site
Characterization; section 113, Site Characterization; and section 114,
Site Approval and Construction Authorization.
Section 112 of the NWPA addresses the initial stage of the site
selection process, and includes four distinct steps: (1) DOE
preliminary site screening (42 U.S.C. 10132(a)); (2) DOE nomination of
at least five sites as suitable for characterization (42 U.S.C.
10132(b)(1)(A)); (3) DOE recommendation to the President of three of
the five nominated sites as candidates for characterization (42 U.S.C.
10132(b)(1)(B)); and (4) Presidential approval of nominated sites for
characterization (42 U.S.C. 10132(c)). Specifically, section 112(a)
directs the DOE to issue general guidelines for the recommendation of
candidate sites for site characterization. Section 112 directed DOE to
consult with several federal agencies and obtain NRC concurrence on
these guidelines.
Under section 112(a), DOE was required to specify in the
guidelines: (1) detailed geologic considerations that were to be the
primary criteria for the selection of sites for characterization in
various geologic media; (2) certain factors (e.g., hydrology,
geophysics, seismic activity) that would either qualify or disqualify a
site from characterization; and (3) population density and distribution
factors that would disqualify any site for characterization. 42 U.S.C.
10132(a). Section 112(a) also required DOE to include certain factors
related to the comparative advantages among candidate sites. The DOE
was directed to use the guidelines to consider candidate sites for
recommendation as candidates for characterization. Section 112(a)
explicitly authorized DOE to modify the guidelines consistent with the
provisions of section 112(a).
Furthermore, section 112(a) directed DOE to develop certain
qualifying or disqualifying factors for the preliminary site screening
stage of the site selection process. Except for population density, the
specific content of the qualifying or disqualifying factors was left to
DOE's informed discretion. Because these factors are part of the
Guidelines, their specific content could be modified in accordance with
the authority in section 112(a).
Section 112(b) of the NWPA addressed DOE's recommendation to the
President of sites for site characterization, that is, for intensive
investigation of geologically related characteristics through surface
and subsurface testing, among other investigative techniques. DOE was
to nominate at least five sites as suitable for characterization. Each
nominated site was to be accompanied by an environmental assessment. Of
the five sites, DOE was to recommend three to the President for
characterization. Section 112(c) of the NWPA addresses the President's
review and approval of candidate sites for characterization.
Section 113 of the NWPA addresses site characterization, which
involves activities that could proceed only after the section 112
actions had been completed. Section 113(a) authorizes DOE to conduct
site characterization activities at the sites that had been approved by
the President for characterization. Section 113(b) establishes the
scope of DOE's site characterization activities, and directs the
publication of a general plan for these activities. 42 U.S.C.
10133(b)(1)(A). DOE is to report semiannually on its ongoing and
planned site characterization activities and the information derived
therefrom. 42 U.S.C. 10133(b)(3). Section 113(b) also directs that the
DOE include in the site characterization plan, criteria to be used to
determine the suitability of a site for the location of a repository,
developed pursuant to section 112(a). 42 U.S.C. 10133(b)(1)(A)(iv).
Section 113(c) establishes limits on DOE's site characterization
activities, and provides direction on how DOE is to proceed if at any
time it determines that a site would be unsuitable for development as a
repository.
Section 114 addresses site approval and construction authorization,
and can only proceed as the section 113 site characterization
activities near completion. Four distinct steps are defined in this
section: (1) DOE recommendation of a site to the President for approval
to develop as a repository [42 U.S.C. 10134(a)]; (2) recommendation of
a site by the President to Congress [42 U.S.C. 10134(a)(2)]; (3)
Congressional designation of the site [42 U.S.C. 10134(b)]; and (4)
conduct of a licensing proceeding by the NRC [42 U.S.C. 10134(c)].
Further, under section 115, after the President recommends a site to
Congress, the Governor and the legislature of the host State may submit
a notice of disapproval. If the State disapproves, Congress must enact
a resolution of siting approval in order to designate the site. 42
U.S.C. 10135(b). If the Congressional designation takes effect, DOE
must submit an application to the NRC for a construction authorization.
42 U.S.C. 10134(b).
Section 114(a) provides for DOE activities necessary to prepare a
recommendation to the President for Presidential approval of a site for
development as a repository. These activities include public hearings
in the vicinity of the site to inform residents of the area and receive
their comments, and the completion of site characterization. Upon
completion of these hearings and site characterization, the Secretary
may decide to recommend the site to the President. A comprehensive
statement of the basis for this recommendation is to accompany the
recommendation, and be made available to the public. 42 U.S.C.
10134(a)(1). Section 114(b) then authorizes DOE to apply to the NRC for
construction authorization, if the President recommends a site to the
Congress and that recommendation is permitted to take effect. Sections
114(c)-(e) direct the NRC and DOE on certain aspects of the
construction authorization process. Section 114(f) requires that a
final Environmental Impact Statement (EIS) accompany the Secretary's
recommendation of a site to the President.
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B. DOE Promulgation of General Guidelines at 10 CFR Part 960
1. Overview of the General Guidelines
Section 112(a) of the NWPA directed DOE to issue general guidelines
for the recommendation of sites for characterization, in consultation
with certain Federal agencies and interested Governors, and with the
concurrence of the NRC. These general guidelines were to be comparative
in nature, as DOE was required to consider various geologic media and
such considerations as proximity to where spent fuel and high-level
waste were stored. The general guidelines were also to consider non-
geologic factors, such as population density and distribution, that
would not be examined in site characterization. No other procedural
requirements were imposed on the issuance of these guidelines.
DOE promulgated the section 112(a) guidelines by notice and comment
rulemaking, in addition to the consultation and concurrence process
specified in the NWPA. The DOE also conducted several public meetings
on the guidelines. These additional activities, although not required
by the NWPA, enabled DOE to receive comments from interested members of
the public. The general guidelines were promulgated on December 6,
1984, and codified in the Code of Federal Regulations at 10 CFR part
960, General Guidelines for the Recommendation of Sites for the Nuclear
Waste Repositories. 49 FR 47714.
2. Structure of the General Guidelines
The Guidelines promulgated by DOE defined the basic technical
requirements that candidate sites must meet, and specified how DOE
would implement its site-selection process. The Guidelines were
structured according to three categories: implementation guidelines,
preclosure guidelines and postclosure guidelines. The implementation
guidelines addressed general application of all the guidelines, and
established the methodology for applying the guidelines during the
various stages of the siting process: site screening and nomination,
recommendation for characterization, and recommendation for repository
development. The preclosure guidelines governed the siting
considerations that dealt with the operation of a geologic repository
before it is closed. The postclosure guidelines governed the siting
considerations that dealt with the long-term behavior of a geologic
repository after waste emplacement and closure.
Both the preclosure and postclosure guidelines were organized under
general categories of interest, for example, geohydrology and
geochemistry. Each category was further divided into system guidelines
and corresponding technical guidelines. The system guidelines addressed
broad requirements for a geologic repository under preclosure and
postclosure conditions; the corresponding technical guidelines
specified conditions that would qualify or disqualify a site, and
conditions that would be considered favorable or potentially adverse.
49 FR 47724. In effect, the technical guidelines and the associated
qualifying and disqualifying conditions imposed specific ``subsystem''
performance requirements; each subsystem requirement would be used to
evaluate the merits of a site, independent of the other requirements.
Section 112 of the NWPA described the minimum steps that DOE was to
take during site screening and prior to site characterization. When
promulgating the Guidelines in 1984, DOE determined that application of
the Guidelines should extend beyond preliminary site screening to
encompass site characterization activities and site recommendation to
the President. Appendix III to the Guidelines explained how certain of
the Guidelines would be applied at the principal decision points of the
siting process: (1) identification of a site as being potentially
acceptable under section 112(b); (2) nomination and recommendation of
sites as suitable for characterization under sections 112(b) and (c);
and (3) recommendation of a site for development as a repository
(sections 113 and 114). 49 FR 47729-47730. With respect to the third
decision point, which would be reached only after completion of site
characterization activities and non-geologic data gathering activities,
DOE did not promulgate separate Guidelines. Instead, DOE indicated that
the preclosure and postclosure Guidelines would be applied to this
decision, and appropriate findings issued, in the manner prescribed in
Appendix III. Appendix III specified the types of findings that were to
be issued from the application of the disqualifying and the qualifying
conditions at each of the three decision points. The types of findings
corresponded with the level of confidence required to make a finding;
that is, a lower level finding required one degree of confidence in the
finding, and a higher level finding required an increased level of
confidence in the finding over the lower level. 49 FR 47728-47729.
Appendix III included a table summarizing the level of the finding
required at each of the three decision points.
Appendix III represents the analytical process DOE would follow to
issue findings relative to the disqualifying and qualifying conditions
of a site, and use in its decision-making on site selection. This
analytical process dictates a higher-level of confidence in the
findings of qualifying or disqualifying conditions at the last stage of
the siting process, site selection for repository development, compared
to the initial stage of the siting process, site nomination for site
characterization. DOE anticipated that the higher-level of confidence
in its technical findings would be obtained through the site
characterization process undertaken at the later stages of the
selection process.
3. Bases for the Structure of the General Guidelines
The structure and development of the Guidelines were based on four
primary sources of information and considerations: (1) The direction in
the NWPA, as originally enacted; (2) the extant understanding of
geologic disposal in the scientific and technical community; (3)
applicable regulations proposed by the NRC and the EPA governing the
disposal of spent nuclear fuel and high-level radioactive waste in
geologic repositories; and (4) public comments.
DOE initiated the rulemaking process by assembling a task force of
program experts. 49 FR 47718. The task force developed draft Guidelines
based on criteria used earlier in the National Waste Terminal Storage
Program, including program objectives, system performance criteria, and
site performance criteria. At the time, the task force reviewed other
criteria defined for geologic repositories by the National Academy of
Sciences and the International Atomic Energy Agency.
The task force also sought consistency with NRC regulations and
proposed EPA regulations related to geologic repositories. 49 FR 47718.
NRC is the statutory agency responsible for licensing the construction
and operation of a geologic repository; EPA is the statutory agency
responsible for setting public health and safety standards for a
geologic repository. Consistency of the DOE Guidelines with these
regulatory standards was essential, since any potential site would be
evaluated based on its ability to meet applicable regulatory
requirements. 49 FR 47721.
In sum, the structure and content of the Guidelines was based on
the state of knowledge in the late-1970s and early-
[[Page 67058]]
1980s in the regulatory community, as well as the national and
international scientific community, regarding the development of
geologic repositories.
DOE sought and received extensive public comments on a draft of the
Guidelines before submitting them to the NRC for concurrence. On
February 7, 1983, the proposed Guidelines were published in the Federal
Register (48 FR 5670) for public review and comment. In addition, DOE
published a separate notice soliciting comment from the Governors of
the six States with potentially acceptable sites, and then met
individually with officials from each of these States. DOE also held a
series of regional public hearings. After considering the comments
received, DOE drafted a set of alternate Guidelines to address the
comments. The alternate Guidelines and public comments were made
available in a second notice on June 7, 1983 (48 FR 26441), followed by
a second public comment period. Further regional meetings and
consultations with Federal agencies were held before DOE submitted the
Guidelines to NRC for concurrence on November 22, 1983. 49 FR 47718-
47719.
4. Consistency With NRC Technical and Procedural Conditions
Of particular importance to DOE's formulation of the Guidelines was
consistency with NRC licensing regulations for the disposal of waste in
a geologic repository. 49 FR 47718. In June 1983, NRC amended its
licensing regulations at 10 CFR part 60 with respect to subpart E,
technical criteria addressing siting, design and performance objectives
of a geologic repository. 48 FR 28194. NRC concurred in the Guidelines
subject to conditions that would satisfy the overall need to maintain
consistency between NRC regulations and the DOE Guidelines. Among the
NRC conditions were: (1) DOE clarifications and deletions of certain
limiting terms such as ``permanent'' and ``significant''; (2) DOE
modifications for consistency with NRC criteria regarding anticipated
processes and events, potentially adverse conditions, and the role of
engineered barriers during the process for screening candidate sites
for characterization; and (3) DOE revisions and additions to
disqualifying conditions to ensure that unacceptable sites would be
eliminated as early as practicable. 49 FR 47719-47722.
NRC concurrence conditions also addressed general, procedural
aspects of how the DOE was to apply the Guidelines. For example, NRC
concurrence was conditioned on a lack of conflict between NRC
regulations at 10 CFR part 60 and the Guidelines, recognition by DOE
that NRC regulations were controlling in the event of any differences,
and a commitment that DOE would obtain NRC concurrence on any future
revisions to the Guidelines. 49 FR 47719-47720. NRC also requested DOE
to specify in greater detail how the Guidelines would be applied at
each siting stage. This specificity was provided by the addition of
Appendix III to the Guidelines. Appendix III indicated how the
Guidelines would be applied at all of the site selection stages,
including the recommendations to the President for site
characterization and for the development of a site as a repository.
The NRC required additional changes after it met publicly with
representatives of several interested states, Indian tribes, and DOE.
After DOE committed to making those changes, the NRC voted to concur in
the Guidelines. 49 FR 47720. Thus, the current Guidelines represent the
substantial input provided by the NRC in 1984 through the statutory
concurrence process.
C. DOE Application of the Guidelines
Consistent with section 112(b) of the NWPA, DOE applied the
Guidelines to: (1) Nominate five sites as suitable for
characterization; and (2) recommend to the President three of those
five nominated sites for characterization as candidate sites for the
first repository. On May 27, 1986, the President approved each of the
sites that had been recommended for characterization. Yucca Mountain
was one of the three sites that DOE recommended. The recommendation to
the President was documented in a DOE report, Recommendation by the
Secretary of Energy for Site Characterization for the First
Radioactive-Waste Repository (May 1986; DOE/S-0048). In addition, a
draft environmental assessment was prepared for each of the five sites
and final environmental assessments were prepared for each of the three
sites that were recommended.
This action concluded the process that had been established by the
NWPA for identifying sites for characterization. The Guidelines' role
of structuring DOE's process for identifying sites for characterization
was completed in accordance with the Congressional directives to DOE.
Under DOE's formulation of the Guidelines at that time, however, the
Guidelines would remain relevant and applicable through the third
principal siting decision point, the selection of a site to be
recommended for the development of a repository.
D. 1987 Amendments to NWPA
In 1987, Congress amended the NWPA to mandate Yucca Mountain as the
sole site to be characterized. 42 U.S.C. 10172 (Supp. V 1987). The
processes for site characterization under section 113 and site approval
under section 114 were made applicable to only Yucca Mountain. Under
sections 113(a) and (b), Yucca Mountain was designated as the site for
which site characterization activities would take place, and a site
characterization plan would be issued, respectively. Under section
113(c), Congress amended the statute to name Yucca Mountain as the site
for which the restrictions on site characterization activities would be
applicable. That is, DOE was directed to conduct only such activities
at Yucca Mountain that are necessary to evaluate the suitability of the
site for an application to the NRC for a construction authorization,
and to comply with requirements under the National Environmental Policy
Act (NEPA). Section 114 was amended to restrict DOE's analysis of
alternative sites in any environmental impact statement (EIS) that may
be prepared for the Yucca Mountain site under NEPA. Any such EIS would
analyze the Yucca Mountain site, and no other sites, for potential
development of a geologic repository. Further, section 160(b) directed
DOE to ``terminate all site specific activities (other than reclamation
activities) at all candidate sites, other than the Yucca Mountain
site.'' 42 U.S.C. 10172(a)(2).
In sum, Congress made clear its intent for DOE to focus its
resources on investigating Yucca Mountain, and only Yucca Mountain, as
a potential site for a high-level radioactive waste repository.
E. Yucca Mountain Site Characterization Plan
1. Statutory Requirements
Under sections 113 and 160 of the NWPA, as amended, DOE was
authorized to conduct site characterization activities at the Yucca
Mountain site. Prior to initiating site characterization under section
113, DOE was required to prepare a general plan for site
characterization activities at the Yucca Mountain site. DOE was
required to submit the plan to the NRC and the State of Nevada for
their review and comment [42 U.S.C. 10133(b)(1)], as well as to members
of the public in the vicinity of Yucca Mountain [42 U.S.C.
10133(b)(2)]. Certain contents of the
[[Page 67059]]
plan were mandated by section 113(b), including, among other things, a
description of planned excavation and other testing activities, a
description of the possible form or packaging of the high-level waste,
and the criteria to be used to determine the suitability of the site
for the location of a repository, developed pursuant to section 112(a).
Section 113(b)(3) also required DOE to report every six months on the
progress of site characterization activities at Yucca Mountain, and to
provide the reports to the NRC, and the Governor and the legislature of
the State of Nevada.
DOE prepared the site characterization plan in draft form in
January 1988. In preparing the plan, DOE followed NRC guidance, as
specified in the document, Standard Format and Content of Site
Characterization Plans for High Level Waste Geologic Repositories,
Regulatory Guide 4.17 (NRC 1987). After review and comment by NRC, the
State of Nevada, and interested members of the public, DOE finalized
the Site Characterization Plan: Yucca Mountain Site, Nevada Research
and Development Area, Nevada (December 1988; DOE/RW-0198) (hereinafter
also the SCP), in December 1988.
2. Structure of the Site Characterization Plan
``Site characterization'' is defined in the NWPA to include
research activities undertaken to establish the geologic condition of a
site, for example, borings and surface excavations, and in situ testing
necessary to evaluate the suitability of a candidate site for the
location of a repository. 42 U.S.C. 10101(21). In the SCP, DOE
described the purpose of its site characterization program at Yucca
Mountain was to obtain the information necessary to determine whether
the site is suitable for a repository, and could satisfy NRC licensing
requirements (which must be consistent with EPA public health and
safety standards). DOE also explained there that the information
obtained from site characterization, such as the geologic,
geoengineering, hydrologic, and climatological conditions at a site,
would be used to develop and optimize repository design and to evaluate
the performance of the site and the engineered barriers as an
integrated system.
The purpose of the SCP was threefold: (1) To describe the site, and
the preliminary designs for the repository and the waste packages in
sufficient detail to form the basis for the site characterization
program; (2) identify issues to be resolved during site
characterization and present the strategy for resolving the issues; and
(3) describe the plans for the work needed to obtain the information
deemed necessary and to resolve outstanding issues. The SCP was
organized along two lines: (1) An issues hierarchy, which embodies the
DOE, NRC and EPA regulations governing the repository system; and (2)
an issue-resolution strategy.
The issues hierarchy was a three-tiered framework laying out what
must be known before the Yucca Mountain site could be selected and
licensed. ``Issues'' were defined as questions related to performance
of the repository that must be resolved to demonstrate compliance with
applicable regulations of DOE, NRC and EPA. DOE identified four key
issues to be addressed, based on regulatory requirements and the four
system guidelines in part 960: (1) Postclosure performance; (2)
preclosure performance; (3) environment, socioeconomic, and
transportation impacts of a repository; and (4) ease and cost of
repository siting, construction, operation and closure. DOE also
explained that only the first, second, and part of the fourth key issue
would be addressed in the site characterization program, since
resolution of these other key issues (that is, key issue 3 and part of
key issue 4) were not dependent on information from site
characterization activities. The issue-resolution strategy consisted of
four parts: Issue identification, performance allocation, data
collection and analysis, and documentation of issue resolution. This
framework was used to develop test programs and explain why the test
programs were adequate and necessary. The object was to collect
information to be used in a concluding set of analyses to resolve the
issues, and to document resolution of the issues.
As required by section 113(b)(1)(A)(iv), the SCP included criteria
to determine the suitability of the site for development of a
repository. Those ``criteria'' were the provisions within the
Guidelines pertinent to site characterization activities, namely, the
postclosure guidelines, and the preclosure guidelines related to
radiological safety and technical feasibility of repository siting,
construction and operation, to be applied in the manner described in
Appendix III. Appendix III set out the level of findings DOE must make
relative to the system and technical requirements found in the
postclosure guidelines (subpart C) and preclosure guidelines (subpart
D) at the final decision point of recommending a site for development
as a repository. DOE believed that the information gained through site
characterization and the issue resolution process would form the basis
for these findings.
DOE also explained in the SCP that not all of the Guidelines would
be addressed as part of site characterization activities. The SCP would
not address the environmental, socioeconomic and transportation
guidelines, or certain guidelines related to ease and cost of
repository siting, construction, operation, and closure, since DOE
would not develop information related to those guidelines through site
characterization activities. Those guidelines would be addressed in
other investigations and plans to be conducted concurrently with the
site characterization program. Also, in light of the 1987 amendments to
the NWPA permitting site characterization to proceed only at Yucca
Mountain, DOE stated in the SCP that the comparative portions of the
Guidelines would not be applied in the site suitability determination
to be made under section 113(b).
In accordance with section 113(b)(3), approximately every six
months DOE issues a report updating information on the conduct of site
characterization activities at the Yucca Mountain site. Those reports
briefly summarize the characterization activities undertaken at the
site, the technical and scientific issues of key interest and their
resolution, and issues that remain for further characterization and
resolution. In addition, the semiannual reports provide references and
a bibliography of other reports and documents containing more detailed
information regarding site characterization activities. DOE provides
the reports to the NRC, the Governor of Nevada, and the legislature of
the State of Nevada.
The progress reports reflect DOE's ongoing interaction with the
NRC. In July 1986, the NRC amended its regulations at 10 CFR part 60
(51 FR 27158) to establish the method of interaction between DOE and
the NRC on the development and implementation of the site
characterization plan. NRC established a system for DOE to report on
the results of site characterization, identify issues, plan for
additional studies, eliminate planned studies no longer necessary, and
identify decision points reached. In this manner, the NRC established a
clear pathway to interact with DOE in the management and direction of
the site characterization program.
Site characterization activities have continued up to and including
the present, and are described in greater detail below in section II.G.
[[Page 67060]]
F. Energy Policy Act of 1992
In 1992, Congress enacted certain provisions in the Energy Policy
Act of 1992 (Pub. L. No. 102-486) impacting the nation's nuclear waste
repository program. In section 801(a) of the Energy Policy Act of 1992
(EPACT), Congress directed EPA to promulgate a new, health-based
standard to ensure protection of the public health from high-level
radioactive waste that may be disposed in a geologic repository located
at Yucca Mountain. The new standards could depart from the generic EPA
standards promulgated at 40 CFR part 191, and would be specific to
Yucca Mountain. In section 801(b), Congress also directed the NRC,
within one year of EPA adopting a new standard, to modify its technical
requirements and criteria under section 121(b) of the NWPA [42 U.S.C.
10141(b)] (i.e., 10 CFR part 60), as necessary, to be consistent with
the new EPA standards.
Before setting the new standard, however, EPA was required to
contract with the National Academy of Sciences (NAS) to conduct a study
to provide findings and recommendations on reasonable standards for
protection of the public health and safety. Under section 801(a) of the
EPACT, EPA was required to promulgate its new standards based on, and
consistent with, the NAS findings and recommendations. Under the EPACT
and accompanying congressional instruction, NAS's charge was to answer
three specific questions embodied in section 801(a)(2), and to advise
EPA on the technical basis for the health-based standards it was
mandated to prepare. The three questions posed in section 801(a)(2)
addressed: (1) Whether a health-based standard based on doses to
individual members of the public would provide a reasonable basis for
protecting public health and safety; (2) whether it is reasonable to
assume that a system for postclosure oversight of the repository, using
active institutional controls, will prevent an unreasonable risk of
breaching the repository's engineered or natural barriers, or of
increasing the exposure of individual members of the public to
radiation beyond allowable limits; and (3) whether it is possible to
make scientifically supportable predictions of the probability that the
repository's engineered or natural barriers will be breached as a
result of human intrusion over a period of 10,000 years.
In August 1995, NAS published the statutorily mandated report,
entitled Technical Bases for Yucca Mountain Standards. In sum, NAS
issued findings that: (1) A health standard for Yucca Mountain based on
risk to individuals of adverse health effects from releases from the
repository (rather than EPA's generic standards which contain both
individual dose and release limits) was an appropriate standard that
would adequately protect the health and safety of the general public;
(2) it is not reasonable to assume that a system for postclosure
oversight can be developed, based on active institutional controls,
which will itself prevent an unreasonable risk of breaching the
repository's engineered barriers or of increasing the exposure of
individual members of the public to radiation beyond allowable limits;
and (3) it is not possible to make scientifically supportable
predictions of the probability that a repository's engineered or
geologic barriers will be breached as a result of human intrusion over
a period of 10,000 years. Notwithstanding the latter two findings, the
NAS recommended EPA include in its regulations a stylized human
intrusion event. The NAS reasoned that such an analysis may provide
useful insight into the degree to which the ability of a repository to
protect the public health and safety would be degraded by an intrusion.
In reaching its findings and recommendations, the NAS consulted
with numerous entities, including local, state and federal government
agencies, private organizations, and scientists and engineers, both
national and international, familiar with the technical issues under
study, and held five open technical meetings to ensure a thorough
review of the scientific literature on the subject. In the Technical
Bases for Yucca Mountain Standards, the NAS provides a detailed
explanation of the assumptions and analyses underlying the study, and
the reasons for NAS's findings and recommendations. Among the more
important of these is the NAS assumption, confirmed by its technical
review, that it is possible to conduct scientifically justifiable
analyses of repository behavior over thousands of years in order to
assess whether a repository can comply with the applicable public
health standard. In addition, based on its analyses, the NAS concluded
that the proper way to evaluate the risks of adverse health effects,
and to compare those risks to the proposed standard, is to assess the
estimated potential future behavior of the entire repository system and
its potential effect on humans. The procedure used to perform this
analysis is called performance assessment (alternately called total
system performance assessment).
In discussing the possible implications of its conclusions, the NAS
noted that, if EPA issues standards based on individual risk (as
recommended by the NAS), then the NRC would be required to revise its
regulations embodied in 10 CFR part 60 to be consistent with EPA. This
is because NRC's 10 CFR part 60 is directed in part to subsystem
technical requirements, whereas the NAS concluded that it is the
performance of the total system, rather than that of its individual
elements in isolation, that is crucial in the context of a risk-based
standard. Under a risk-based standard, imposing subsystem performance
requirements might result in a deficient repository design even if each
subsystem element meets or exceeds a certain performance standard. The
NAS also observed that its recommendations, if adopted, implied the
development by EPA of different regulatory and analytical approaches
than those employed in the past, and that the process of establishing
the new standards would require significant time and opportunity for
public comment and review. Nevertheless, NAS noted that these potential
changes should not impede site characterization work by DOE at Yucca
Mountain.
At present, EPA is in the process of preparing new standards
pursuant to EPACT and in light of the NAS findings and recommendations.
Those new standards have proposed in a rulemaking proceeding for public
review and comment. Also consistent with EPACT, section 801(b), the NRC
has proposed new regulations governing the technical requirements and
criteria for licensing a potential geologic repository at the Yucca
Mountain site based on the NAS findings and recommendations and in
anticipation of new EPA standards. The EPA's and NRC's proposed
regulations are discussed in greater detail below, in section II.J, and
II.K, respectively.
G. Evolution of the Site Characterization Program
Since publication of the SCP in 1988, DOE's site characterization
program at Yucca Mountain has made substantial progress in developing
information and data about the site and resolving outstanding technical
issues. Over time, the site characterization program has evolved and
been driven by advances in science and technology, as well as
legislative and managerial changes. The following summarizes the
evolution and status of the site characterization program.
[[Page 67061]]
Technical Components of the Site Characterization Program. The
three main technical components of the site characterization program
are testing, design, and performance assessment. Testing encompasses
the investigation of natural features and processes at the site through
field testing, conducted above and below ground, and laboratory testing
of rock and water samples. Design refers to work on development of the
description of a repository and waste packages tailored to the site
features, supported by laboratory testing of candidate materials for
waste packages and design-related testing in the underground tunnels
similar to those in which waste would be emplaced. Performance
assessment refers to the quantitative estimates of the performance of
the total repository system, over a range of possible conditions and
for different repository configurations, by means of computer modeling
techniques that are based on site and materials testing data and
accepted principles of physics and chemistry.
Through the testing program, DOE has learned a great deal about the
geologic conditions of the site. The single largest effort undertaken
in this regard has been construction of the Exploratory Studies
Facility (ESF). Construction of this facility began in 1992 and was
completed in 1998. The ESF, a 4.9 mile long underground tunnel, has
enabled DOE to conduct testing and exploration activities at the depth
of the proposed repository. Utilization of this facility has formed the
basis for increased knowledge and understanding of the mechanical and
hydrologic characteristics of the geologic formation in which the
repository would be constructed. Ongoing work at this facility will
focus primarily on thermal and hydrologic testing in the cross drift to
extend and, where necessary, modify this understanding of the
properties of the host rock.
The design component of the site characterization program comprises
those activities aimed at developing concepts for the engineered
components of the geologic repository. Design activities use
information about the site gained through the testing program, and
information about the engineered barrier system gained through other
scientific investigations, to generate and develop design concepts that
can meet the requirements placed on the engineered components of the
repository. Site characterization activities are structured to acquire
data needed to support the design. For example, a number of the site
characterization program tests focus on the hydrological, geomechanical
and thermal properties of Yucca Mountain. These tests are significant
because they provide the fundamental information needed to specify the
approach to be used in developing the geologic repository thermal
loading and underground support schemes. Also, under the design
program, DOE examines various approaches to meeting engineered facility
requirements, and conducts comparative evaluations of the costs and
benefits of different approaches to developing design concepts.
The performance assessment component of site characterization
represents the analytical method (i.e., computer modeling) DOE uses to
forecast the performance of the repository within the Yucca Mountain
setting and assess that performance against regulatory standards. Put
in simplified terms, performance assessment uses the information and
data collected under the testing and design programs to feed computer
models that describe how the site would behave in the presence of a
repository and how the engineered system would behave within the
environmental setting of the mountain. Each model, called a process
model, is designed to describe the behavior of individual and coupled
physical and chemical processes. A total system performance assessment
(TSPA) links the results of individual process models to construct a
computer model of the repository system and surrounding environment
that are important to assessment of overall repository performance.
With the TSPA model, DOE can estimate releases of radionuclides from a
repository under a range of conditions, over thousands of years, and
forecast the consequent probable doses to persons.
Performance assessment (or TSPA), as described above, is an
accepted method to assess the performance of a repository at Yucca
Mountain. DOE's use of performance assessment models began even before
issuance of the SCP in 1988. Since that time, however, significant
advancements have been made in the technical capability, acceptance,
and use of this analytical tool. In 1991, the Nuclear Energy Agency
Radioactive Waste Management Committee and the International Atomic
Energy Agency International Radioactive Waste Management Advisory
Committee confirmed that TSPA provides an adequate means to evaluate
long-term radiological impacts of a waste disposal system. On a
national level, the NRC, the NAS and the Nuclear Waste Technical Review
Board (a Congressionally mandated committee of experts chartered to
evaluate the technical and scientific validity of activities undertaken
by DOE to characterize Yucca Mountain to determine its suitability as a
location for a repository) have acknowledged the value of this method
for evaluating postclosure performance for a repository at Yucca
Mountain.
A significant portion of the DOE site characterization program has
been aimed at developing the scientific bases that serve as the
foundation for the process models used in performance assessment. DOE
developed performance assessment models and conducted benchmark
performance assessments of the total repository system in 1991, 1993
and 1995. Between these benchmark assessments, DOE conducted many
performance assessments to evaluate selected features of the site and
the evolving design. DOE used these total system and subsystem
performance assessments to evaluate design options and to determine
further data needed from site investigations. The most recent TSPA was
conducted in 1998, the results of which are contained in the report,
Viability Assessment of a Repository at Yucca Mountain (December 1998;
DOE/RW-0508).
Redirection of the Site Characterization Program. In 1994, DOE
conducted extensive internal and external reviews of the program. As a
result of those reviews, documented in the Civilian Radioactive Waste
Management Program Plan (December 1994; DOE/RW-0458) (Program Plan),
DOE identified cost-cutting measures to reduce the cost of completing
site characterization. In response to Congressional concern with the
1994 Program Plan, DOE submitted a revised Program Plan to Congress
that was designed to maintain scientific investigations at the site,
and retain target dates for determining site suitability and
recommendation for construction authorization. Civilian Radioactive
Waste Management Program Plan, Revision 1 (May 1996; DOE/RW-0458). As
part of the revised strategy, DOE redirected project efforts to address
the major unresolved technical questions and to complete an assessment
of the viability of licensing and constructing a repository at Yucca
Mountain. Congress indicated its approval of the revised Program Plan
in the Conference Report on the Energy and Water Development
Appropriations Act, 1997, H.R. Rep. No. 782, 104th Cong., 2d Sess. 82
(1996), by directing that the appropriated funds be used in accordance
with the revised Program Plan issued by DOE in May 1996.
[[Page 67062]]
In the Fiscal Year 1997 Energy and Water Development Appropriations
Act (Pub. L. No. 104-206), Congress directed DOE to provide the
viability assessment of the Yucca Mountain site, referenced in DOE's
revised Program Plan, to Congress and the President as a basis for
making future decisions on program funding and direction. DOE issued
the Viability Assessment of a Repository at Yucca Mountain (Viability
Assessment) in December 1998. Drawing on 15 years of scientific
investigation and design work, the Viability Assessment summarizes a
large technical basis of field investigations, laboratory tests,
models, analyses and engineering. The Viability Assessment also
identifies major uncertainties relevant to the technical defensibility
of DOE's analyses and designs, the approach to managing these
uncertainties, and the status of work relative to the target dates of
2001 for a determination on recommendation of Yucca Mountain and 2002
for submittal of a license application to NRC. The Viability Assessment
also includes the most recent iteration of the TSPA, and the results of
that process.
Coordination with NRC. DOE's implementation of its site
characterization program and the issue resolution strategy embodied in
the SCP has been conducted in close coordination with the NRC. In 1995,
the NRC revised its prelicensing repository program as a result of
changes in the DOE civilian radioactive waste management program, the
findings of a NAS committee recommending changes to the public health
standard for a potential Yucca Mountain repository, and budgetary
constraints imposed by Congress. The NRC adjusted the scope of its
program to focus only on those topics most critical to repository
performance, termed ``key technical issues.'' These issues were
intended to be a vehicle to communicate to DOE those technical matters
for which the NRC had remaining unanswered questions regarding the
performance of the Yucca Mountain site, or the data needed to assess
that performance. DOE's management of the site characterization program
includes activities to obtain information to address the NRC key
technical issues. DOE has structured the site characterization program
such that one of its goals is for DOE and NRC to reach consensus that
the remaining key technical issues have been addressed adequately, or
that adequate plans are in place to address the issues.
H. The 1993-1995 Public Dialogue on the Guidelines
In the SCP, issued in December 1988, DOE described how it would
apply the Guidelines as part of the site characterization program to
evaluate the suitability of the site. DOE indicated in the SCP that the
Guidelines related to site characterization activities would be applied
as the suitability criteria. DOE also indicated there that the
comparative provisions of those requirements would not be applied in
light of the 1987 amendments to the NWPA limiting site characterization
activities to Yucca Mountain. Notwithstanding this explanation, a
number of interested parties suggested it remained unclear how DOE
would apply the Guidelines in the future. Because of this continuing
stated uncertainty, the DOE instituted an ongoing dialogue with
external parties on the Guidelines.
In October 1993, DOE briefed the representatives of the affected
units of local government and the State of Nevada on its plans for
activities related to site suitability evaluation. DOE followed this
briefing with a Notice of Inquiry in the Federal Register (59 FR
19680), dated April 25, 1994, eliciting the views of the public on the
appropriate role of the Guidelines. A public meeting was held on May
21, 1994 in Las Vegas, Nevada. The purposes of the meeting were to
follow-up on a previous public meeting held in August 1993; to update
the public on site characterization activities; and to provide an
opportunity to discuss the development of a process to evaluate site
suitability. DOE then published a second Federal Register notice (59 FR
39766) on August 4, 1994, announcing that it intended to use the
Guidelines as currently written, subject to the programmatic
reconfiguration directed in the 1987 NWPA amendments. Through that
notice, DOE also announced the availability of a draft description of
the proposed process and its intention to hold two additional public
meetings to discuss the matter. Although several options were
discussed, DOE discerned no clearly preferred option from this public
comment process. In response to public comments at the meetings, DOE
committed to provide background information and its rationale for
maintaining the use of the Guidelines as originally promulgated, with
modification to eliminate application of the comparative portions of
the Guidelines. In September 1995, DOE published in the Federal
Register the background information and its rationale, as committed to
in previous public meetings. 60 FR 47737.
In the September 1995 public notice, DOE explained that amending
the Guidelines, either to remove those portions that are primarily used
for comparative purposes or to develop guidelines tailored to
evaluation of the suitability of the Yucca Mountain site, was not
required at that time. DOE recognized then that the Guidelines might
have to be amended at some future date to be consistent with any
changes to EPA or NRC requirements. 60 FR 47740. Among the options
considered in the 1993-1995 public dialogue was abandonment of the
Guidelines and adoption of the NRC siting criteria in 10 CFR 60.122.
DOE noted that the Guidelines were expressly derived from, and are tied
to, the part 60 siting criteria. In addition, DOE noted that, should
any differences between 10 CFR part 960 and 10 CFR part 60 be
identified, 10 CFR part 60 would prevail in the licensing process.
While recognizing that much of 10 CFR 960 subpart B, the implementation
guidelines, was no longer applicable, DOE concluded that the Guidelines
could be selectively interpreted to avoid the comparative aspects while
applying the relevant provisions of subparts C and D, the postclosure
and preclosure guidelines.
I. The 1996 Notice of Proposed Rulemaking
For many of the reasons described earlier in this notice, including
changes in congressional direction of the repository program and
advancements in site characterization, on December 16, 1996, DOE
published in the Federal Register a notice of proposed rulemaking for
10 CFR part 960. 61 FR 66158. In that notice, DOE proposed to clarify
and focus the Guidelines and to add a new, site-specific subpart E to
the Guidelines. Subpart E would apply only to the Yucca Mountain site,
and would contain preclosure and postclosure system guidelines, each
with a single qualifying condition. 61 FR 66163. In each of the
periods, the qualifying condition would be that a repository at Yucca
Mountain be capable of limiting radiological releases within applicable
standards to be set by EPA and implemented by the NRC through the
repository licensing process. DOE would demonstrate this capability
through performance assessments. 61 FR 66164. These performance
assessments would forecast the performance of a proposed geologic
repository at Yucca Mountain and compare the results of the assessments
to the applicable regulatory standards to
[[Page 67063]]
determine whether the site would be suitable for development as a
repository.
The 1996 proposal was consistent with the system-level evaluation
originally envisioned for the conclusion of site characterization. DOE
recognized in 1984 in the Guidelines that, only after the entire
process of narrowing the number of potentially acceptable sites to one
and after site characterization, would it be possible to conduct
complete performance assessments. Such assessments require detailed
information that can be obtained only during site characterization. 49
FR 47717. In addition, the 1996 proposal was consistent with DOE's
longstanding position that the Guidelines must complement and not
conflict with EPA and NRC regulations, since the ability to meet
applicable public health and safety standards and develop information
adequate to support a license application has always been central to
the site suitability determination.
The 1996 proposal attracted a wide variety of comments from members
of the public, the NRC, the EPA, and the Nuclear Waste Technical Review
Board. The major issues that emerged from the public comment process
are discussed in detail later in this Supplementary Information. For
reasons also explained below, these comments persuaded DOE to reassess
the clarity of the proposed regulations and the legal and policy basis
for them.
J. Proposed NRC Regulation, 10 CFR Part 63
1. Background
On February 22, 1999, the NRC published in the Federal Register a
proposed new rule, 10 CFR part 63, containing licensing criteria for
disposal of spent nuclear fuel and high-level radioactive waste in the
proposed geologic repository at Yucca Mountain, along with proposed
revisions to 10 CFR part 60 and other related regulations. 64 FR 8640.
The proposed licensing criteria at part 63 would apply exclusively to
Yucca Mountain; part 60 would be revised to make it applicable to any
geologic repository other than one at Yucca Mountain. NRC's proposal
seeks to establish a new system of risk-informed, performance-based
regulation. Under this approach, risk insights, engineering analysis
and judgment, and performance history are used to: (1) Focus attention
on the most important activities; (2) establish objective criteria
based upon risk insights for evaluating performance; (3) develop
measurable or calculable parameters for monitoring system and licensee
performance; (4) provide flexibility to determine how performance
criteria are met; and (5) focus on results as the primary basis for
regulatory decision-making. 64 FR 8643.
The NRC's rationale for proposing part 63 stems from the
requirements of the EPACT. 64 FR 8641-8643. Section 801(b) of EPACT
requires that, within one year after EPA promulgates its new standards
for protection of public health and safety, the NRC must modify its
technical requirements and criteria for repository licensing (i.e.,
part 60) to be consistent with the new EPA standards. In addition, the
EPACT requires NRC to include in its modifications, consistent with the
NAS findings and recommendations, certain assumptions that are
specified in the EPACT with regard to the effectiveness of DOE's
postclosure oversight of the repository.
The NAS issued its findings and recommendations in the report,
Technical Bases for Yucca Mountain Standards, August 1995. The NAS
findings and recommendations reported there, along with consultation
NRC has had with EPA, provide the basis for NRC's proposed
modifications. 64 FR 8641, 8643. The NAS recommended approach to
setting a public health and safety standard has a different objective
from the NRC approach reflected in the existing part 60 requirements
and criteria. 64 FR 8643. Accordingly, the modifications proposed by
the NRC, based on the NAS report, and the subsequently proposed EPA
rule marked a change in methodology and licensing philosophy.
2. Structure of Proposed Part 63
Preclosure Requirements. Proposed part 63 would require DOE to
demonstrate compliance with the applicable preclosure regulatory
standards by the use of an integrated safety analysis. 64 FR 8652. An
integrated safety analysis is a systematic examination of the geologic
repository operations area's hazards and their potential for initiating
events (for example, accidents), the potential consequences of the
events, and the site, structures, systems, components, equipment and
activities of personnel. The analysis would be conducted to ensure that
all relevant hazards that could result in unacceptable consequences
have been adequately evaluated and appropriate protective measures have
been identified. ``Integrated'' means joint consideration of safety
measures that otherwise might conflict, including such measures as fire
protection, radiation safety, criticality safety, and chemical safety.
The results of the analysis would be used to support a finding of
compliance with a performance objective for the preclosure period of
limiting radiation exposures and releases within a dose limit of 25
millirem (mrem) to any member of the public beyond the site boundary.
Postclosure Requirements. While certain parts of proposed part 63
are similar to part 60, in particular with respect to many procedural
and administrative regulations, the substance of the regulations
governing postclosure performance objectives is fundamentally
different. The part 60 technical criteria for postclosure rely on
several quantitative, subsystem performance objectives. In 1983-4, NRC
believed this approach was best suited to meet its statutory
requirement under section 121(b)(1)(B) of the NWPA to prescribe
criteria that would involve use of a system of multiple barriers in the
design of the repository. 64 FR 8648. At the time part 60 was written,
NRC's technical opinion was that compliance with this requirement could
be best demonstrated by specifying subsystem technical requirements,
thereby assuring multiple, independent and redundant systems and
barriers. Given advancements in technical understanding and analytical
capability, and information acquired through site-characterization at
Yucca Mountain, the NRC no longer believes this approach is an optimal
and reliable approach to assure compliance with public health and
safety standards. 64 FR 8648-8649.
Part 63 does not contain subsystem performance requirements, or
analogs for those requirements, as found in part 60. The part 63
requirements are based on only one quantitative standard--demonstrating
compliance with an individual dose limit. The part 63 technical
criteria are compatible with the NRC's philosophy of risk-informed,
performance-based regulation. This approach is consistent with NAS
recommendations that would require compliance with a health-based
standard established in consideration of risk to a hypothetical
critical group as the only quantitative standard for postclosure
repository performance. 64 FR 8643. The NRC concept of critical group
means the hypothetical group of individuals reasonably expected to
receive the greatest exposure to radioactive materials potentially
released from a geologic repository at Yucca Mountain. The EPA proposes
in its rule (described in section II. K) the use of a reasonably
maximally exposed individual (RMEI). The RMEI is a hypothetical
individual having certain characteristics that include where the RMEI
lives, what the RMEI's diet would consist of and the amount of water
consumed by the RMEI on daily basis.
[[Page 67064]]
For the purposes of this proposed rule, the term receptor is used in
lieu of either the EPA or NRC concept. A receptor is intended to
represent a member of the public, either an individual or group, that
could be exposed to releases of radiation from a repository at Yucca
Mountain. When the suitability determination is made, DOE would
implement the regulatory concept applicable at that time.
This approach is also consistent with NRC's obligation to ensure a
multiple barrier system by requiring DOE to demonstrate that the
natural barriers and the engineered barriers will work in combination
to enhance overall performance of the repository.
Part 63 would require DOE to demonstrate compliance with the
applicable postclosure regulatory standard by the use of performance
assessment. 64 FR 8650. Performance assessment is a systematic analysis
that identifies the features, events, and processes that might affect
performance of the geologic repository, examines their effects on
performance, and estimates the resulting expected annual dose.
Demonstrating compliance with the postclosure performance of 10 CFR
part 63 would require a performance assessment to quantitatively
estimate the expected annual dose, over the compliance period, to the
average member of the critical group. The critical group would be a
hypothetical group of individuals reasonably expected to receive the
greatest exposure to radioactive materials released from the geologic
repository. Consistent with the EPACT and the 1995 NAS report, the NRC
proposed that the results of the performance assessment be the sole
quantitative measure used to demonstrate compliance with the individual
dose limit. 64 FR 8650.
Because of the importance of the performance assessment, part 63 is
structured to establish certain minimum requirements governing the
content and validation methods for the performance assessment. 64 FR
8650-8651. For example, DOE would be required to include in the
performance assessment data related to the geology, hydrology and
geochemistry of Yucca Mountain, as well as data related to the design
of the engineered barrier system; to account for uncertainties and
variabilities in the data used to model performance of the repository;
to provide the technical basis for either inclusion or exclusion of
specific features, events, and processes of the geologic setting; and
to provide the technical basis for the models used in the overall
performance assessment by providing, for example, comparisons of the
output of detailed process-level models and empirical observations. In
addition, part 63 would prescribe the characteristics of the reference
biosphere and receptor to be used in the performance assessment. DOE
also would be required to conduct a separate performance assessment
based on a limited human intrusion scenario prescribed by the NRC.
K. Proposed EPA Regulation, 40 CFR Part 197
1. Background
On August 27, 1999, the EPA published in the Federal Register a
proposed new rule, 40 CFR part 197, to establish public health and
safety standards governing the storage and disposal of spent nuclear
fuel and high level waste in a potential repository at Yucca Mountain,
Nevada. 64 FR 46975. EPA is promulgating this rulemaking pursuant to
section 801(a) of the EPACT. As explained earlier in this preamble
(section I.F.), in section 801(a)(1) of the EPACT Congress directed EPA
to promulgate a health-based standard for the protection of the public
from releases from radioactive materials stored or disposed of in a
repository at the Yucca Mountain site. Also under EPACT, Congress
directed that the EPA standard was to be the only standard applicable
to the Yucca Mountain site, and that the EPA standard must be based
upon and consistent with NAS' findings and recommendations.
As directed by Congress in the EPACT, it is EPA's role to establish
the public health and safety standard, and NRC's role to implement that
standard in any licensing process NRC may conduct for a repository at
Yucca Mountain. It is anticipated that NRC would conform its proposed
licensing regulation at 10 CFR part 63 to the final EPA radiation
protection standards, as necessary and appropriate.
2. Structure of Proposed Part 197
The proposed EPA rule is structured in two parts. Part A of the
rule would establish the environmental standards for storage of spent
nuclear fuel and high level waste at Yucca Mountain; part B would
establish the environmental standards for disposal of spent nuclear
fuel and high level waste at Yucca Mountain. The following is an
overview of the main components of EPA's proposed rule; in many areas
of the rule EPA has proposed alternative language and requirements for
public review and consideration. For simplicity, not all of those
alternative considerations will be presented here.
For storage of spent nuclear fuel and high level waste, EPA
proposes a standard limiting the annual committed effective dose
equivalent (CEDE) to no more than 15 millirems to any member of the
public in the general environment. This limit would apply to releases
from the combination of management and storage of spent nuclear fuel
and high level waste that is within the Yucca Mountain repository
(below ground) and outside the Yucca Mountain repository but within the
Yucca Mountain site (aboveground). EPA proposes this standard to be
consistent with the risk level set in its generic standards for
management and storage of spent nuclear fuel, high level waste, and
transuranic waste, codified at subpart A of 40 CFR part 191 and with
its interpretation of section 801 of EPACT requiring it to set site-
specific standards for storage of waste at Yucca Mountain. In EPA's
view, storage of waste, whether inside the Yucca Mountain repository or
outside the Yucca Mountain repository but within the Yucca Mountain
site, presents the same technical situation and is analogous to the
storage of radioactive waste at other facilities covered by 40 CFR part
191. Accordingly, EPA proposes the storage standard for Yucca Mountain
be essentially the same as the standard applicable to other facilities
subject to subpart A of 40 CFR part 191.
For disposal of spent nuclear fuel and high level waste, EPA
proposes essentially three standards--an individual protection
standard, a human intrusion standard, and a groundwater standard--that
DOE would need to demonstrate to the satisfaction of the NRC to ensure
protection of public health and safety. Under the individual protection
standard, DOE would demonstrate that there is a reasonable expectation
that for 10,000 years following disposal the reasonably maximally
exposed individual (RMEI) receives no more than an annual committed
effective dose equivalent (CEDE) of 15 millirems (mrem) from releases
from the undisturbed Yucca Mountain disposal system. All potential
pathways must be included in this analysis. In proposing this
individual protection standard, EPA concluded that radiation release
limits, such as those embodied in 40 CFR part 191, were not necessary
in order to protect members of the general public from releases from a
repository at Yucca Mountain.
For the proposed human intrusion standard, EPA proposes two
alternative rules, one of which would impose a CEDE limit of 15 mrem to
a RMEI based on an assumed human intrusion event,
[[Page 67065]]
while the alternative rule would impose the dose limit if complete
waste package penetration can be shown to occur before 10,000 years
after disposal. EPA also proposes a rule outlining the elements of the
human intrusion scenario to be used in the analysis.
Under the proposed groundwater protection standard, EPA would
require DOE to provide in its license application a reasonable
expectation that for 10,000 years of undisturbed performance after
disposal, releases of radionuclides from radioactive material in the
Yucca Mountain disposal system will not cause the level of
radioactivity in the representative volume of ground water at the point
of compliance to exceed certain limits (e.g., combined beta and photon
emitting radionuclides cannot exceed a limit of 4 millirems per year to
the whole body or any organ). EPA presents for public review and
comment several alternatives for the selection of the representative
volume of water and for the location of the point of compliance.
EPA's proposed approach to setting public health and safety
standards for a repository at Yucca Mountain follows the NAS
recommendations and findings, and the regulatory approach proposed by
the NRC in its proposed licensing regulations. Although EPA has
proposed some requirements in its rulemaking that differ from certain
NAS findings and recommendations and NRC's proposed licensing
regulations, (for example, EPA proposes use of a dose standard instead
of a risk standard, and use of the RMEI concept instead of critical
group), EPA's proposed rule is consistent with the primary NAS findings
and recommendations that a public health standard based on risk or dose
to an individual member of the public can be protective of general
public health and safety, and that the Yucca Mountain-related physical
and geologic processes are sufficiently quantifiable and the related
uncertainties sufficiently boundable that the performance can be
assessed over certain time frames.
EPA assumes, and, in the case of the individual protection
standard, EPA would expressly require DOE to use performance assessment
to calculate the dose limits established in its proposed radiation
protection standards for disposal. Although EPA generally would not
prescribe requirements on how the performance assessments would be
conducted, it would impose certain limitations. For example, proposed
section 197.40 would limit consideration by DOE in its performance
assessments of events that are estimated to have less than one chance
in 10,000 of occurring within 10,000 years of disposal. In addition,
EPA, similar to the NRC, acknowledges certain inherent limitations in
DOE's ability to demonstrate compliance with the public health and
safety standard through use of performance assessment, but nevertheless
mandates the use of that method of assessment. EPA's rule recognizes,
through the concept of reasonable expectation, that, among other
things, there are inherent uncertainties in making long-term
projections of the performance of the Yucca Mountain disposal system,
that performance assessments and analyses should be focused upon the
full range of defensible and reasonable parameter distributions, and
that assessments should not exclude important parameters simply because
they are difficult to precisely quantify to a high degree of
confidence.
III. Basis for Proposal
A. Legal Authority and Necessity To Amend the Guidelines and Criteria
1. Overview
Section 112(a) of the NWPA explicitly establishes DOE authority to
``issue general guidelines for the recommendation of sites for
repositories'' and to ``use [the] guidelines established under this
subsection in considering candidate sites for recommendation under
subsection (b).'' Subsection (b) of section 112 provides for a process,
to be conducted following promulgation of the guidelines that would
result in: (1) the nomination of 5 potential sites for
characterization; and (2) the selection of 3 of those 5 sites for
recommendation to the President as suitable for site characterization
activities. Section 112(a) also includes explicit authority to revise
the guidelines, from time to time, consistent with the provisions of
112(a).
Shortly after the enactment of the NWPA, DOE promulgated the
Guidelines (codified at 10 CFR part 960) to implement section 112. The
approach taken at that time was to structure the Guidelines to provide
a framework not only for the section 112 decisions (for which it was
statutorily required) but also for subsequent steps in the site
selection process. Consistent with this view, the Guidelines as
originally promulgated also addressed actions to be taken under
sections 113 and 114. The rationale permitting that approach was the
provision in section 113(b) that DOE include in its site
characterization plan ``criteria to be used to determine the
suitability of [a] site for the location of a repository, developed
pursuant to section 112(a).'' 49 FR 47730. DOE reasoned that, since the
site characterization plan was to be an element supporting any
Secretarial recommendation of one site for development under section
114, the Guidelines were ``intended to be used in deciding which among
the characterized sites is to be recommended to the President, the
Congress, and finally to the NRC for appropriate approvals.'' 47 FR
47730. That approach was understandable in 1984 when DOE anticipated
the need to evaluate by comparison multiple characterized sites, a
comparison similar to the choosing of sites for characterization for
which the Guidelines were required by section 112(a) of the NWPA. After
the 1987 amendments to the NWPA designated Yucca Mountain as the only
site to be characterized, DOE chose to apply some, but not all, of the
Guideline provisions in the Site Characterization Plan prepared under
section 113(b) of the NWPA as criteria to determine site suitability.
DOE/RW-0199 (1988). In 1995, DOE reconsidered the Guidelines in the
context of evaluating the suitability of the Yucca Mountain site under
the Site Characterization Plan. DOE decided then that ``[b]ecause DOE
need apply only the relevant provisions'' of the Guidelines, amending
or supplanting them with ``Guidelines specifically tailored'' to
evaluating the suitability of the Yucca Mountain site was ``not
required at this time.'' 60 FR 47737, 47740 (1995).
As discussed in greater detail below, DOE now has determined that a
new approach is called for in light of the cumulative effect of the
intervening legislative, regulatory, and technical developments that
have occurred since 1984. DOE now proposes to develop criteria, using
section 112(a) in the development of the criteria, but not adopting the
particular section 112(a) Guidelines as those criteria, to form the
basis for a determination of the suitability of the Yucca Mountain site
for the location of a repository. The rationale for this approach stems
from the basic analysis recommended by the National Academy of
Sciences, which differed from that embedded in the 1984 Guidelines, and
the advent of new regulations proposed by the NRC that, under the
NWPA's structure, must define the areas and methodology of DOE's
inquiries into Yucca Mountain's suitability.
Accordingly, DOE today proposes to revise the existing Guidelines
at 10 CFR part 960 to limit their application to only the initial site
selection process set forth in section 112. DOE may make additional
revisions to the Guidelines if, in the future, circumstances were to
[[Page 67066]]
change and DOE were to reinitiate a preliminary site screening process
under section 112. Further, DOE proposes today to promulgate a new
rule, consistent with section 113(b)(1)(A)(iv), to establish criteria
to be used to determine the suitability of Yucca Mountain for the
location of a geologic repository. The criteria identified in this new
rule are based on the geologic factors and considerations referenced in
section 112(a), as they relate to DOE's current scientific
understanding and methodology for assessing the suitability of the
Yucca Mountain site as a location for a repository.
2. Section 112
DOE's approach in today's proposal is grounded on the text of
section 112(a) and the basic structure of the NWPA, as originally
enacted and as amended. As originally enacted, the NWPA set up a
sequential process for selecting, comparing, and evaluating potential
sites for the development of a geologic repository for high-level
waste. The 1987 amendments eliminated any continued comparison of
sites; only Yucca Mountain is authorized for site characterization
activities leading to possible recommendation as a repository site.
Beyond the first step in the process, recommendation of multiple sites
for site characterization (section 112), there is no explicit direction
in the Act (in its original enactment or amendment) whether or how to
utilize the Section 112(a) Guidelines in the succeeding site selection
processes (sections 113 and 114). Instead, section 112(a) specifies the
intended use of the Guidelines: ``[t]he Secretary shall use guidelines
established under this subsection in considering sites to be
recommended for site characterization under section 112(b).'' Likewise,
the environmental assessment of the various sites nominated for
characterization pursuant to section 112 is to include ``evaluation''
of each nominated site under each Guideline not requiring
characterization for its application and all the Guidelines pertinent
to whether a site is ``suitable for site characterization.'' 42 U.S.C.
10132(b)(1)(D)(i)&(ii). Nowhere in its text does section 112 require
any additional use of the Guidelines.
In sum, the text of section 112 and its relation to other
provisions in the NWPA indicate that the Guidelines are to govern the
process of selecting and comparing among potential sites to determine
which sites are appropriate to proceed to the next, more detailed
evaluation stage, site characterization. In contrast, nothing in the
text of section 112 specifies that the Guidelines are also to govern
the process for determining site suitability and site recommendation
under sections 113 and 114.
3. Section 113
Section 113 of the NWPA requires DOE to prepare a site
characterization plan for a candidate site selected under section 112
for site characterization activities. A required element of a site
characterization plan is ``criteria to be used to determine the
suitability of such candidate site for the location of a repository,
developed pursuant to section 112(a).'' 42 U.S.C. 10133(b)(1)(A)(iv)
(emphasis added). The NWPA does not define the term ``criteria.'' The
NWPA does, however, define the term ``site characterization'' as
activities ``undertaken to establish the geologic condition'' of a
candidate site. 42 U.S.C. 10101(21)(B). This definition indicates that
the required scope of the general site characterization plan and
therefore of the section 113(b) ``criteria'' is limited to geologic
considerations. This reading of section 113(b) is reinforced by the
provisions of section 112(a) in which the only usage of the term
``criteria'' in that section are the ``primary criteria'' that are
explicitly equated to ``geological considerations.''
Section 113(b) requires that the ``criteria'' to be included in the
Site Characterization Plan be ``developed pursuant to section 112(a)''
of the NWPA. Because section 112(a) of the NWPA is devoted to the
``Guidelines'' for selecting candidate sites while section 113(b) is
devoted to the ``criteria'' under which selected candidate sites
subsequently are to be characterized, it is necessary to consider how
the Guidelines are required to relate to the criteria by section 113's
requirement that the criteria be ``developed pursuant to section
112(a).''
It is unlikely that the Congress intended to require the
``criteria'' to be the Guidelines themselves. It would have been simple
enough for Congress to have legislated that policy in section 113(b) by
a straightforward requirement that the Site Characterization Plan
specify that the ``Guidelines developed pursuant to section 112(a)''
would be used ``to determine the suitability of each candidate site.''
Compare 42 U.S.C. 10133(b)(1)(A)(iv). Had Congress intended this policy
result it is unlikely that it would have chosen such an elliptical and
opaque way of expressing it as the actual statutory text that does not
use the term ``Guidelines'' at all. And a construction of section
113(b) requiring the suitability ``criteria'' to be the same as the
section 112 Guidelines would risk tension with section 113(c)'s
restriction that limits DOE to conducting ``only'' characterization
activities ``necessary to provide the data required'' to prepare an NRC
license application. The NRC, of course, is not required to base its
licensing standards on the Guidelines adopted by DOE under section
112(a) of the NWPA (although it was required to concur in them), nor
does section 112 afford the NRC the ability to compel DOE to
reformulate the Guidelines should the NRC determine to amend or
supplant its licensing standards.
Section 112(a) contains specific procedural mandates required to be
employed by DOE in issuing or revising the Guidelines. Before DOE may
promulgate the Guidelines DOE must consult with several specified
federal agencies and with ``interested Governors.'' 42 U.S.C. 10132(a).
In addition, the NRC must ``concur[]'' in the issuance of the
Guidelines. Id. These distinctive procedural requirements obviously are
tailored to the particular circumstances of site decision-making under
the NWPA and therefore specify procedural requirements that would not
otherwise obtain under the rulemaking provisions of the Administrative
Procedure Act or the rulemaking provisions of the Department of Energy
Organization Act that were in force when the NWPA was adopted.
The requirement of section 113(b) that the SCP's ``criteria'' for
characterizing sites be ``developed pursuant to section 112(a)''
therefore is best understood as mandating observance of the special
procedural requirements of section 112(a) in formulating or altering
the section 113(b) ``criteria.'' This understanding of the statutory
text seems the most faithful to its explicit terms and the larger
statutory context in which it occurs. Moreover, it seems the only
understanding of section 113(b) that is consistent with the 1987
changes to the NWPA (which mandated exclusive characterization work for
the Yucca Mountain site without amending section 113(b) despite
amending the statute elsewhere to remove the element of comparing
sites, to which the Guidelines of section 112(a) were devoted). This
understanding of the requirements of section 113(b) also comports with
DOE's prior understanding, as was described in the 1995 notice, that
not all the original Guideline elements need be applied in site
characterization under section 113 of the NWPA.
[[Page 67067]]
B. Events Necessitating Amendment of the Guidelines and Criteria
1. Congressional Redirection of the Program
Since the NWPA was enacted in 1982 and the Guidelines promulgated
in 1984, Congress has made major changes to the framework for
developing a geologic repository. Those changes are described below
and, in part, form the basis for the revisions to 10 CFR part 960 and
the promulgation of a new 10 CFR part 963 proposed in this notice.
1987 Amendments to the NWPA. Congress amended the NWPA in 1987 to
select Yucca Mountain as the only site to be characterized. In support
of that decision, Congress directed DOE to terminate site-specific
activities at the two other sites that had been recommended for site
characterization in 1986. 42 U.S.C. 10172. Further, Congress restricted
DOE's characterization activities at Yucca Mountain to only those the
Secretary considers necessary to provide the data required for
evaluation of the suitability of the site for NRC construction
authorization (i.e., license application), and for compliance with the
National Environmental Policy Act of 1969. A provision was added to the
NWPA to provide for termination of site characterization activities at
Yucca Mountain if at any time the Secretary determines that Yucca
Mountain is unsuitable for development as a repository.
Although the 1987 amendments to the Act were decisive in focusing
the repository program and DOE's efforts on one specific site, for many
years DOE maintained that these changes were not so significant as to
warrant amendment of the Guidelines. Instead, DOE believed the
Guidelines, for the most part, could be applied to Yucca Mountain for
purposes of determining the suitability of the site (because Yucca
Mountain already had been found suitable for characterization under
other provisions of the Guidelines) in support of a possible site
recommendation by the Secretary. The only changes to the Guidelines
necessitated by the 1987 amendments were to eliminate consideration of
those parts of the Guidelines related to comparative analysis.
Similarly, the NRC had not made significant modifications to its
technical requirements and criteria in 10 CFR part 60 as a result of
the 1987 amendments to the Act.
1992 Energy Policy Act. In the 1992 Energy Policy Act, Congress
reinforced its intent that Yucca Mountain was the exclusive focus of
the nation's repository program, not only for DOE, but also for the
other federal agencies, EPA and NRC, with authority and responsibility
over the repository program. Section 801 of the EPACT directed the EPA
to promulgate, by rule, new public health and safety standards for the
protection of the public from releases from radioactive materials
stored or disposed of in a repository at the Yucca Mountain site.
Unlike the previous standard, which was generic to geologic
repositories and included limits on radioactive releases to the
environment, the new standards were required to prescribe maximum
annual radioactive dose limits to individual members of the public
based on releases to the accessible environment from materials stored
or disposed of at Yucca Mountain. To aid EPA in this process, Congress
directed a National Academy of Sciences (NAS) study to provide findings
and recommendations on reasonable standards for protection of the
public health and safety. EPA was required to base its new rule on the
findings and recommendations of the NAS. For Yucca Mountain, these
standards would replace the generally applicable standards for the
protection of the general environment that the EPA had promulgated at
40 CFR part 191 under the authority of section 121 of the NWPA.
The EPACT also directed the NRC to modify its technical
requirements and criteria, as necessary, to be consistent with the
EPA's new standards. In addition, NRC was directed to ensure that,
consistent with the NAS findings and recommendations, its requirements
and criteria for postclosure oversight of a Yucca Mountain repository
would be sufficient to prevent any activities at the site posing an
unreasonable risk of breaching the engineered and natural barriers of
the site, and to prevent any increase in exposure of individual members
of the public beyond allowable limits.
These changes were significant because they set the stage for
future regulatory changes governing the standards a Yucca Mountain
repository must meet to ensure public health and safety, and to obtain
a license for construction. The ability to meet regulatory standards
has always been a dominant factor in the site selection process. This
requirement is reflected in the structure of the Guidelines, is
reinforced by the 1987 amendments to the Act, and is a prime focus of
DOE's site characterization program. Thus, the Congressional mandate in
the EPACT directing new and revised regulations governing geologic
disposal at Yucca Mountain necessarily impacts DOE's formulation of the
criteria that will be used to determine the suitability of Yucca
Mountain as a site for development of a repository. Until recently,
however, the full extent and nature of those impacts have not been
defined. The NRC's recent proposal to amend 10 CFR part 60, its
technical requirements and criteria for licensing a repository, to add
a new part 63 specific to Yucca Mountain, provides DOE with an outline
of anticipated regulatory changes, and signals for DOE how and why it
must conform its Guidelines and criteria for determining the
suitability of the Yucca Mountain site for the location of a
repository.
Fiscal Years 1996 and 1997 Appropriations Acts and the Viability
Assessment. Finally, in response to budgetary concerns, the Conference
Report on the Energy and Water Development Appropriations Act, 1996
(Pub. L. No. 104-46) (H.R. Rep. No. 293, 104th Cong., 1st Sess. 68
(1995)) directed the DOE to focus on only those activities necessary to
assess the performance of a repository at the Yucca Mountain site and
to collect the scientific information needed to determine the site's
suitability. DOE responded by revising its Program Plan for 1996 in
which it indicated that, among other changes, DOE would complete a
viability assessment of the Yucca Mountain site in 1998, and would
develop a proposal to amend the Guidelines and develop new regulations
specific to the Yucca Mountain site. Congress indicated its approval of
the changes by directing that appropriated funds be used in accordance
with the revised program plan. Congress reinforced this direction in
the Fiscal Year 1997 Energy and Water Appropriations Act, where it
mandated that DOE provide to the Congress and the President a viability
assessment of the Yucca Mountain site in 1998.
These changes in budget for DOE's civilian radioactive waste
management program indicate congressional intent for DOE to focus site
characterization activities on assessing the viability and suitability
of Yucca Mountain, and to complete those activities in the near term.
In light of this congressional direction, it is reasonable for DOE to
amend the Guidelines in a manner that acknowledges Yucca Mountain as
the only site at which site characterization has occurred and for which
DOE would need to conduct a suitability evaluation under section
113(b).
2. Consistency Between DOE and NRC Regulations
Procedural Consistency. The DOE's site characterization suitability
criteria must be consistent with the NRC's
[[Page 67068]]
licensing criteria if the DOE is to present a potentially successful
license application to the NRC. Such consistency originally was
attained in the Guidelines through the NRC's concurrence process, as
required by section 112(a) of the NWPA. DOE will preserve this
consistency in these proposed suitability criteria by ensuring that
they reflect the changes to the licensing criteria that recently have
been proposed by the NRC in a new rule to be codified at 10 CFR part
63, and by soliciting NRC concurrence on DOE's proposed amendments to
the Guidelines and the promulgation of a new regulation at 10 CFR part
963.
Substantive Consistency. NRC's proposed new rule establishing the
technical requirements and criteria for repository licensing at Yucca
Mountain, proposed 10 CFR part 63, is different from its existing
general rule on repository licensing, 10 CFR part 60. DOE now has
little choice but to propose site suitability criteria that are
consistent with the NRC's proposed licensing requirements. The
suitability of a site for the location of a repository is a function of
the DOE's ability to demonstrate the site can meet applicable
regulatory requirements. DOE has conducted the site characterization
program at Yucca Mountain with the statutory objective [42 U.S.C.
10133(c)] of demonstrating its ability to obtain construction
authorization from the NRC (i.e., to meet NRC licensing requirements
and EPA health and safety standards, as implemented by NRC through the
license). DOE could not scientifically and technically support a
suitability determination, and, hence, a license application, without
conforming its criteria for suitability to the proposed NRC technical
requirements and criteria for a repository license. Such conforming
criteria are proposed in this notice.
The NRC proposed rule part 63 is a departure from the philosophy
and technical requirements of 10 CFR part 60. The new rule would be
based on the 1995 NAS report recommending a risk-limit standard for a
repository at Yucca Mountain. The NRC timed publication of its proposal
now to ensure NRC has sufficient time, once EPA issues its new
standard, to put the new licensing standards in effect. The proposed
rule embodies a new approach of risk-informed, performance-based
regulation, and is specific to Yucca Mountain. The old rule relied on
subsystem performance objectives and a release limit standard. Under
the proposed rule, the performance of a Yucca Mountain repository would
be evaluated against a health-based standard in consideration of risk
to a hypothetical critical group and this standard would be the only
quantitative standard for the postclosure performance of the
repository. The new rule would require DOE to demonstrate compliance
with postclosure technical criteria through performance assessments,
and preclosure criteria through an integrated safety analysis. The new
approach embodied in the proposed rule would eliminate current part 60
design and siting criteria, as well as quantitative subsystem
requirements, but would add specific requirements for the content of
performance assessments to ensure their sufficiency and adequacy. In
other words, a proposed Yucca Mountain repository would be evaluated as
an entire system, not by assessing its individual parts in isolation,
in order to determine whether it meets applicable standards to protect
public health and safety.
Once the proposal is finalized, the current structure of DOE's
technical guidelines, which is premised on a demonstration of system
and subsystem technical requirements, will no longer be consistent
with, and in some cases may conflict with, the NRC technical
requirements to support a license application. For example, several of
DOE's technical guidelines require compliance with the siting and
design requirements set forth in 10 CFR parts 60.113, 60.122 and
60.133. Those requirements would not exist in proposed part 63 and
would not be applicable to Yucca Mountain under proposed amendments to
part 60. Those requirements are subsystem performance requirements that
are inconsistent with the NRC's new approach of evaluating the
technical merits of a potential site based on the performance of the
repository system as an integrated whole, and not on the performance of
each part independent of the other parts.
A good example of this is the geohydrology guideline at 960.4-2-1.
Under this guideline, DOE set qualifying and disqualifying conditions
for the geohydrology of a site. The qualifying condition for
geohydrology requires a site be capable of compliance with radionuclide
release limits set by EPA in 40 CFR part 191, and by NRC in 10 CFR part
60.112, as well as compliance with DOE subsystem performance
requirements that mirror NRC requirements in 60.113. At present, there
is no applicable release limit set by EPA under 40 CFR part 191, and
the NRC's proposed amendments to 10 CFR part 60 would nullify the
applicability of 60.113 to Yucca Mountain and create a new part 63 for
which there is no analogous release limit or subsystem performance
objective for geohydrology. Accordingly, it would be illogical for DOE
to reach a finding relative to this qualifying condition, as required
by Appendix III, based on regulatory requirements that no longer would
be applicable to the Yucca Mountain site and would not support a
determination of site suitability for the Yucca Mountain site.
The DOE Guideline 960.4-2-1 also contains a disqualifying
condition. Under this condition, DOE would disqualify a site if the
pre-waste emplacement ground water travel time from the disturbed zone
to the accessible environment is expected to be less than 1,000 years
along any pathway of likely and significant radionuclide travel. Under
the analogous NRC provision, 60.113, there is a performance objective
directing that the pre-waste emplacement ground water travel time along
the fastest path of likely radionuclide travel from the disturbed zone
to the accessible environment must be at least 1,000 years or such
other travel time as approved by the NRC. Under NRC's proposed
revisions to its regulations, this subsystem performance requirement
would no longer apply to a repository at Yucca Mountain under part 60,
and it would not exist, nor would there be any requirement similar to
it, under new part 63. Accordingly, it would be illogical for DOE to
reach a finding relative to this disqualifying condition, as required
by Appendix III, based on regulatory requirements that no longer would
be applicable to the Yucca Mountain site and would not support a
determination of site suitability for the Yucca Mountain site.
Below is a table further illustrating the inconsistencies between
the current Guidelines and the proposed part 63. Table 1 provides a
cross walk between the technical guidelines to be applied as the
criteria under section 113(b), their analog in existing part 60, and
their analog, if any, in proposed part 63.
BILLING CODE 6450-01-P
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As demonstrated in the above table, in most cases there is no
analog between the DOE Guidelines and NRC's proposed part 63. In
addition, the Guidelines could not continue to reference and rely on
revised part 60, since NRC's proposed revisions to part 60 would make
them inapplicable to a repository at Yucca Mountain. Under the
circumstances, it would be irrational and difficult, if not impossible,
for DOE to apply the Guidelines in their current form.
Under these changed circumstances, DOE must act to propose
amendments to its outdated Guidelines and conform its site suitability
criteria to the NRC proposed rule for licensing a Yucca Mountain
repository.
3. Improvements in Analytical Methods
DOE's proposed changes will also serve to conform the rules for
assessing the suitability of a site with the current scientific and
technical methods developed and utilized by DOE in its site
characterization program. The proposed changes in the regulatory scheme
reflect the advances in the scientific and technological understanding
of the processes relevant to assessing the long-term performance of a
geologic repository. The regulatory revisions proposed by EPA, NRC and
DOE, mark a change from generic regulations based on limited
information about geologic disposal developed early in the Nation=s
quest for sites for geologic disposal, to regulations promulgated
specifically for the Yucca Mountain site that reflect over 20 years of
data collection and intensive site characterization activities at the
Yucca Mountain site. It would be irrational for DOE to ignore these
changes, and continue to rely on technical requirements that are not
aligned with, and are not supported by, the prevailing scientific
knowledge and understanding.
As recognized by the NRC in its proposed part 63, during the more
than 15 years since the NRC promulgated its initial technical criteria
at 10 CFR part 60 (and DOE promulgated matching technical requirements
in 10 CFR part 960), there has been considerable evolution in the
capability of technical methods for assessing the performance of a
geologic repository at Yucca Mountain. 64 FR 8640-8641. These advances
result from both improved computer capability and better analytical
methods. Indeed, these changes for the first time enable the vast
quantities of data that have been collected through site
characterization to all be used in models that more accurately model
site performance. NRC stated that these new methods were not envisioned
when the part 60 criteria were established, and that their
implementation allows for the use of more effective and efficient
methods of analysis for evaluating conditions at Yucca Mountain than do
the existing NRC generic criteria in part 60. 64 FR 8641. Moreover, NRC
believes that implementation of these new analytical methods for
evaluating Yucca Mountain will avoid the imposition of unnecessary,
ambiguous, or potentially conflicting criteria that could result from
the application of some of the generic requirements of 10 CFR part 60.
64 FR 8641.
The evolution in performance assessment methodology formed the
basis for DOE's 1996 proposal to amend the Guidelines. In that
proposal, DOE explained that only by assessing how specific design
concepts will work within the natural system at Yucca Mountain and
comparing the results of these assessments to the applicable regulatory
standards, can DOE reach a meaningful conclusion regarding the site's
suitability for development as a repository. The proposed amendments to
the Guidelines would have required a comprehensive evaluation focused
on whether a geologic repository at Yucca Mountain would adequately
protect the public and the environment from the hazards posed by high-
level radioactive waste and spent nuclear fuel (61 FR 66160). DOE
explained that recent results in four major areas have advanced the
ability to evaluate the Yucca Mountain site, and geologic disposal, to
the point that a system approach is now appropriate. These four areas
are: (1) Analysis and integration of data collected from surface-based
testing and regional studies; (2) examination of the potential
repository horizon made possible by the excavation of the Exploratory
Studies Facility; (3) the site-specific conceptual design of the
engineered facilities; and (4) performance assessment analyses (61 FR
66161).
As with the NRC, DOE recognizes that this improved understanding
now allows the reconsideration of general Guidelines that may be
unnecessary, ambiguous, or potentially conflicting for Yucca Mountain.
Based on the DOE's accumulated knowledge, and significantly enhanced
understanding, DOE has determined that a system performance approach
provides the most meaningful method for evaluating whether the Yucca
Mountain site is suitable for development as a repository. In this
revised proposal, DOE expands on its earlier proposal to modify the
Guidelines and incorporate performance assessment as the appropriate
approach to assess the forecasted performance of a repository, and to
serve as the basis for site characterization suitability criteria. This
revised proposal provides greater detail, comprehension and
transparency of information describing the performance assessment
methodology, and how it serves as a foundation for site
characterization suitability criteria.
IV. Response to Public Comments on the 1996 Proposal
DOE requested public comments and announced a public hearing on the
proposed amendments to the Guidelines in the Notice of Proposed
Rulemaking published in the Federal Register on December 16, 1996. 61
FR 66157.
DOE received written and oral comments on the proposed amendments
to the Guidelines from numerous organizations including Federal, state,
and local government agencies; citizen and environmental groups; a
nuclear industry group; a Native American group; and from individual
citizens. Oral comments were also received during the January 23, 1997,
public hearing in Las Vegas, Nevada. DOE received many comments
concerned with issues that are not related to the proposed amendments
to the Guidelines, such as issues that pertain to activities at the
Nevada Test Site, the continued use of nuclear power, the broad powers
of the federal government, as well as activities related generally to
the civilian radioactive waste program but not at issue in this
rulemaking, such as consideration of alternatives to geologic disposal,
the Western Shoshone claims to land under the Ruby Valley Treaty, and
opposition to or support of geologic disposal and the study of Yucca
Mountain. Because these issues lie outside the scope of the proposed
amendments to the Guidelines, they are not addressed in this notice.
DOE notes that many of the comments received, especially from
individuals, expressed a strong opposition to the selection of Yucca
Mountain as the only site to be characterized. As explained in section
II above, in the 1987 amendments to the NWPA, Congress limited DOE to
characterizing only the site at Yucca Mountain. The wisdom of that
decision is not the subject of this rulemaking proceeding.
The following discussion summarizes the issues emerging from the
comments that bear on DOE's current proposal, and DOE's response to
those comments. All issues and comments on the 1996 proposal may not be
addressed here in light of DOE's decision in this notice to revise the
1996 proposal and provide a
[[Page 67071]]
full public comment period on the revised proposal.
A. Legal Authority.
Several commenters, including the State of Nevada, stated that
DOE's proposal to amend the Guidelines is contrary to section 112(a) of
the Act and cited the following three decisions by the U.S. Court of
Appeals for the Ninth Circuit as support for this view: Nevada versus
Watkins, 914 F.2d 1545 (9th Cir. 1990) (Watkins I), Nevada versus
Watkins, 939 F.2d 710 (9th Cir. 1991) (Watkins II), and Nevada versus
Watkins, 943 F.2d 1080 (9th Cir. 1991) (Watkins III). Specifically, the
Attorney General of Nevada stated at the public hearing that section
112(a) of the Act and the Watkins I and II decisions stand for the
proposition that the Guidelines were to be used to determine the
suitability of the site, and at the time of a suitability determination
the validity of the current Guidelines would be subject to review by
the Court.
DOE recognizes that it did not set forth in the 1996 Notice of
Proposed Rulemaking a full legal analysis of the statutory basis for
the proposed rule, nor did DOE address the rulings of the 9th Circuit
Court of Appeals in the three ``Watkins'' decisions cited by the State.
In this notice, DOE has included an extensive discussion entitled
``Legal Authority and the Necessity to Amend the Guidelines and
Criteria'' in order to more fully explain to the public DOE's
interpretation of the pertinent sections of the NWPA and why DOE
believes that it not only may but must amend the Guidelines and
promulgate a new part 963. While DOE believes that the ``Watkins''
rulings are instructive in interpreting various provisions of the NWPA,
DOE does not believe that these rulings support the contention that DOE
may not amend the Guidelines, or that the criteria used for the
suitability determination under section 113 must be identical to the
conditions in the Guidelines that are used for site selection under
section 112.
B. Relationship between DOE suitability determination and NRC licensing
requirements.
Nye County expressed the view that due to funding cuts DOE was
attempting to cut corners and accelerate the process toward licensing.
Nye County was concerned that this would mask what it views as the
distinction between site suitability and NRC licensing. Several
individual commenters stated that DOE appeared to be: (1) Dropping the
NRC licensing requirements for Yucca Mountain; (2) lowering the
licensing requirements; or (3) deleting some of the NRC requirements.
The following responds to the Nye County comments. First, although
DOE suffered funding shortages in 1996, funding shortages were not the
reason for the decision to propose amendments to the Guidelines in
1996. DOE stated the reasons for the 1996 proposal in the Federal
Register notice announcing the proposal, and included DOE's intent to
focus and clarify the site suitability evaluation of the Yucca Mountain
site to reflect anticipated regulatory changes and the most current
scientific and technical methods for assessing the expected performance
of a geologic repository at Yucca Mountain.
Second, the 1996 proposed amendments to the Guidelines, as well as
those proposed in this notice, are not an attempt to accelerate the
licensing process, or otherwise mask the distinction between site
suitability and licensing. Rather, they are an attempt to carry out the
site characterization program for its intended purpose, that is, to
determine if the site is suitable and potentially licensable. The site
suitability criteria developed by DOE within the context of the site
characterization program, and proposed here as new rule 963, are
closely linked to the determination of the site's potential
licensability, as they must be. DOE must conduct its site
characterization process in accordance with section 113(c) of the NWPA,
which provides that DOE may conduct only such site characterization
activities as DOE considers necessary to provide the data required for
evaluation of the suitability of such site for an application to be
submitted to the NRC for a construction authorization (often referred
to as a ``license'') at such site, and for compliance with NEPA. 42
U.S.C. 10133(c). Therefore, DOE is required to base its site
characterization activities on NRC licensing requirements and the
environmental impact statement to be conducted under NEPA.
While today's proposal relies, in part, on newly proposed NRC
licensing requirements, it is completely consistent with the letter and
the purpose of the NWPA. Although DOE is utilizing NRC's proposal to
develop DOE's own proposal, DOE is not attempting to accelerate the
licensing process. DOE must first complete all the steps in section 113
and section 114(a)(1) of the NWPA before making a recommendation to the
President, and receive presidential and congressional approval before
submitting an application for a construction authorization to the NRC.
Then, DOE would have to participate in the licensing process outlined
by NRC in its regulations. DOE, as a potential licensee subject to NRC
regulation, has no authority to accelerate the licensing process; only
NRC is authorized to do that.
The following responds to concerns raised by other commenters that
DOE's proposal to change to part 960 is an attempt to eliminate or
degrade NRC licensing requirements. That was not DOE's intent in the
1996 proposal, nor in today's proposal. To the contrary, DOE's proposed
amendments to the Guidelines and new part 963 are designed to better
align DOE's suitability criteria with newly proposed NRC licensing
requirements. The NRC's recent proposed amendments to 10 CFR part 60
and proposed new part 63 are based on its own legal responsibilities
and technical judgment. DOE has no authority to amend NRC requirements.
DOE's objective in promulgating a new part 963 is to conform to, rather
than deviate from, NRC requirements so that DOE can determine whether
NRC is likely to approve an application from DOE for a construction
authorization for a repository at Yucca Mountain.
C. The rules should not be changed to fit the site.
Some commenters stated their belief that Yucca Mountain would be
disqualified under the existing Guidelines and therefore DOE is
attempting to change the rules to fit the site.
DOE is not proposing to amend part 960 and adopt a new part 963
because it believes Yucca Mountain cannot satisfy the conditions in the
current Guidelines. Rather, this proposal is intended to implement the
statutory mandate in section 113 in a rational manner, consistent with
the current regulatory framework and technical basis for assessing the
performance of a geologic repository as an integrated system. DOE is
convinced that the transition to a system performance approach will not
result in a lower level of protection of public health and safety.
DOE's reasons for proposing amendments to the Guidelines in 1996 were
provided in the notice announcing that proposal. In this notice, DOE
provides an extensive discussion of the basis and reasons for its
revised proposal to amend part 960 and add new part 963.
Notwithstanding these explanations, DOE recognizes that many
commenters believe that DOE is changing the Guidelines because of the
fear that those requirements cannot be met. In particular, several
commenters stated
[[Page 67072]]
their belief that the site could not meet the ground-water travel time
disqualifying condition in the Guidelines (Sec. 960.4-2-1(d)).
DOE has not reached a conclusion on this issue. The disqualifying
condition at Sec. 960.4-2-1(d) requires disqualification if DOE
determines that the pre-waste emplacement ground-water travel time is
expected to be less than 1,000 years along any pathway of likely and
significant radionuclide travel. Calculations performed in 1998 as part
of the total system performance assessment for the Viability Assessment
indicate that the average ground-water travel time is greater than
1,000 years. Based on investigations and calculations to date, DOE has
not determined whether the ground-water travel time along any pathway
of likely and significant radionuclide travel is less than 1,000 years.
DOE continues to investigate and conduct research on ground-water
travel time at Yucca Mountain to reduce uncertainties, to the extent
possible, and to gain confidence in its calculations. In the meantime,
DOE believes that there is no basis at this time to find that this
disqualifying condition exists at Yucca Mountain.
In addition, under NRC's proposed changes to its licensing criteria
and requirements for high-level waste repositories, the analogous
provision to 960.4-2-1 in existing 10 CFR part 60 would no longer be
applicable to a geologic repository at Yucca Mountain, and new 10 CFR
part 63 would not contain such a condition, or any condition similar to
it. As previously explained in section III.B.2. of this Supplementary
Information, it would be illogical--and questionable in view of the
characterization restrictions contained in section 113(a)(1) of the
NWPA--for DOE to apply the Guidelines as currently written, including
this particular guideline, in light of these proposed regulatory
changes by the NRC.
D. Any amendments to the Guidelines should continue to address all the
pre-and post-closure factors, as well as the qualifiers and
disqualifiers.
Several commenters requested that DOE leave the Guidelines
virtually intact and apply all of the pre-or post-closure guidelines.
Some suggested that DOE only amend those specific guidelines that need
to be amended. Some commenters were concerned that by eliminating
certain individual guidelines and the qualifiers and disqualifiers, DOE
was trying to ensure that Yucca Mountain would be found suitable for a
repository even if it is an inadequate site.
As explained in previous sections of this Supplementary
Information, DOE is proposing revisions to the Guidelines that are
permissible under the NWPA, and that are intended to conform the
Guidelines to anticipated changes in EPA and NRC regulations, and to
the current state of scientific understanding of how to assess the
suitability of a repository at Yucca Mountain. Nevertheless, in
response to the comments about maintaining the pre-and post-closure
factors in the Guidelines, DOE has structured the proposed suitability
criteria to make transparent what characteristics and traits of a
geologic repository at Yucca Mountain are most important to determining
the suitability of the site during the preclosure and postclosure
periods. The suitability criteria address and reflect the geologic
considerations identified in section 112(a) that are relevant to and
informed by site characterization activities. Siting considerations
that are not addressed in the suitability criteria developed under
section 113 (that is, as part of the site characterization program)
would be addressed elsewhere by the Secretary when deciding whether to
recommend the site to the President under section 114 of the NWPA. For
example, environmental, transportation, and socioeconomic impacts would
be considered in the EIS; the technical feasibility of constructing,
operating, and closing a repository at the site would be included in
the design work required for recommending the site. In sum, the
considerations listed in section 112(a) of the NWPA and in the current
Guidelines that are not addressed in either the preclosure or
postclosure site suitability criteria proposed in part 963 would be
addressed during the section 114 site recommendation process.
With respect to qualifying and disqualifying conditions, DOE
believes that it is not reasonable or necessary to maintain these
conditions in a proposed new rule. DOE proposes eliminating individual
disqualifiers, since maintaining them would mask how the system as an
integrated whole would function, and would be inconsistent with the NRC
proposal. The only appropriate disqualifier is the applicable public
health and safety standard.
As explained previously, the prevailing scientific view is that the
most appropriate method for evaluating whether a site is suitable for a
repository is through TSPAs. Under the proposed 10 CFR part 963, DOE
would use the total system performance assessment method to evaluate
whether a repository at the Yucca Mountain site is likely to meet
applicable NRC regulations, and thus is suitable for development of a
repository.
In response to the 1996 proposal, several commenters expressed the
common view that use of TSPA is appropriate and the Guidelines should
be revised to match current technical understandings. For example, the
NWTRB commented that the proposal's linking of suitability directly and
unambiguously to overall system performance is a sounder approach than
the approach in the original Guidelines. Also, the U.S. Department of
the Interior (DOI) commented that the original guidelines are a relic
of the early 1980s and now impose an unnecessary burden on the program.
DOI observed that it makes little sense to comply with existing
Guidelines based on EPA and NRC regulations that no longer apply to
Yucca Mountain.
E. DOE rationale for changing its position on the need to revise the
Guidelines.
In 1994, DOE issued a Federal Register notice stating that it had
decided not to revise the Guidelines (59 FR 39766), despite the 1987
amendments to the NWPA. In a 1995 Federal Register notice, following
continued public dialogue on this issue, DOE provided its rationale for
not revising the Guidelines ``at this time.'' 60 FR 47737. Ignoring the
qualifying phrase ``at this time,'' some commenters argued that by
issuing the 1996 Notice of Proposed Rulemaking, DOE reversed its
position from the 1994 and 1995 notices without a credible and
persuasive explanation.
DOE has reassessed its 1994 and 1995 positions and has determined
that now is the proper time to amend the Guidelines. DOE believes that
events have transpired since the 1994 and 1995 notices were published
and the 1996 amendments proposed, in particular NRC's proposed changes
to its licensing regulations, that present DOE with a situation in
which the most responsible and appropriate action is for DOE to amend
the Guidelines. The nature of those amendments and the reasons for
DOE's proposal to amend are provided in this notice. The public will be
provided a full and fair opportunity to comment on DOE's proposal, and
DOE will respond to those comments.
F. Public participation process.
The NWTRB suggested that DOE formally connect its site suitability
determination to a public process for making the decision on whether to
recommend to the President that Yucca Mountain be developed as a
repository.
[[Page 67073]]
Such a process is provided for in section 114(a) of the NWPA.
Before recommending the site for development as a repository, DOE must
hold public hearings in the vicinity of the Yucca Mountain site to
inform residents of the area and to receive their comments regarding
the possible site recommendation. The preliminary suitability
evaluation conducted under this proposed part 963 would be part of the
information provided for public comment. In addition to these
subsection 114(a) consideration hearings, the public will have
opportunities to comment on the DOE's analyses of the potential impacts
of developing a repository at the Yucca Mountain site during the
repository EIS process.
Further, the site recommendation must be accompanied by a
comprehensive statement of DOE's basis for the recommendation that will
include the final EIS and the views and comments of the Governor and
legislature of any State, or the governing body of any Indian tribe,
together with the Secretary's response to those views. This
comprehensive statement must be made available to the public, as well
as submitted to the President. As further required by section 114 of
the Act, the Secretary will notify the Governor and legislature of the
State of Nevada of a decision to recommend the site at least 30 days
before submitting a recommendation to the President.
G. Clarification of, and suggested modifications to, the performance
assessment methodology.
A number of commenters asked for clarification or further
explanation of the method and process for implementing the proposed
total system performance assessment approach. The EPA and the NWTRB
noted that a comprehensive explanation of TSPA would provide
transparency and verifiability to DOE's evaluation process.
DOE has decided not to finalize the proposed Subpart E of the
Guidelines but, instead, to propose a new part 963 that provides the
level of detail, transparency and verifiability requested by the
commenters. In this preamble, in particular sections II.G and VI, DOE
provides a more comprehensive explanation of the background and
evolution of the TSPA methodology and approach, and a description of
how this methodology will be implemented in the postclosure suitability
evaluation, than was provided for proposed Subpart E. In addition, DOE
has structured the 963 rule itself to contain more specific
requirements than those enunciated in proposed Subpart E as to how and
what must be evaluated in the TSPA analysis of postclosure suitability.
For example, section 963.16 would require that DOE determine
postclosure suitability based on TSPA analyses of repository
performance in cases with and without a stylized human intrusion event.
That section also enumerates certain required elements of those
analyses, such as, inclusion of data related to the suitability
criteria specified in 963.17, an accounting of uncertainties and
variabilities in parameter values, identification of the natural and
engineered barriers important to waste isolation, demonstration of the
technical bases for the models used in the TSPA, and the conduct of
appropriate sensitivity analyses. Moreover, DOE's proposed method and
process for implementing the TSPA approach in part 963 is consistent
with the TSPA concepts and requirements proposed by the NRC in section
63.102 and 63.114, as well as the implementation requirements proposed
by EPA in proposed 40 CFR 197.13. DOE believes that conducting the TSPA
analysis in the manner prescribed by the requirements of proposed 963
are responsive to public comments on the TSPA approach, and will
provide a level of transparency and verifiability comparable to that
proposed by the regulatory requirements of NRC and EPA.
Role of Natural and Engineered Barriers. Some commenters suggested
that the proposed approach should include explicit requirements for
performance of the natural and engineered barriers. The EPA recommended
that the site suitability evaluation approach should distinguish
contributions of site features to performance for extended periods of
time and should make the role of natural barriers in containing waste
clear to the public. The NWTRB also commented that the DOE should
assess the relative roles of natural and engineered barriers and their
interactions, but noted that specific requirements for individual
components of the system could be arbitrary and unworkable.
DOE has responded to this comment by providing the specifications
for how it will conduct a TSPA in support of determining site
suitability. The relative contribution of the natural and engineered
barriers to the waste containment and their interaction will be
demonstrated through the conduct of the TSPA. Through the TSPA, the
requirements of which are contained in proposed part 963, DOE can
examine the contributions of site features important to performance and
the relative roles of the natural and engineered barriers. For example,
by conducting sensitivity analyses, DOE can examine a specific feature,
whether natural or engineered, and thereby determine its relative
impact on the performance of the total repository system.
Robust Compliance. The NWTRB suggested that, in responding to
comments that the proposed amendments ``change the rules in the middle
of the game,'' DOE should modify the amendments to strengthen
confidence in the technical validity of the overall system performance
assessment. The NWTRB submitted that the TSPA should not only show that
the repository system complies with a standard, but does so
``robustly.'' The NWTRB suggested three indicators of robust
compliance: (1) Address uncertainties fully and accurately; (2)
describe the results of sensitivity studies; and (3) specify a margin
of safety, i.e., require performance in excess of applicable radiation
protection standards.
In conducting and documenting the TSPA under the proposed rule, DOE
would identify the processes used to carry out the performance
assessment, state the assumptions used in the assessments, address all
uncertainties fully and accurately, and describe the results of
sensitivity studies. By so doing, DOE would address two of the three
indicators the NWTRB identified for showing robust compliance.
The NWTRB's third indication of robust compliance would be for DOE
to require performance in excess of applicable standards. The EPA is
required to establish radiological protection standards that are
adequately protective of public health and safety. DOE believes that
compliance with the required applicable standards, as described in this
proposed rule, is a sufficient basis for evaluating the Yucca Mountain
site's suitability for development. However, DOE would indicate, in its
underlying technical documentation, by what margin the expected
performance of the repository exceeds the applicable radiation
protection standards.
Specific Level of Confidence. The NWTRB also suggested that DOE
should modify the amendments to strengthen confidence in the technical
validity of the overall system performance assessment. The NWTRB
suggested that DOE specify the level of confidence that must be reached
in its performance calculation before it is prepared to make a positive
site suitability determination.
[[Page 67074]]
In the proposed rule, DOE is defining the criteria that would be
considered in conducting the overall total system performance
assessment. In this way, DOE believes that overall confidence in the
calculation will be increased because the key building blocks
(criteria) of the TSPA would each be identified and considered.
Moreover, while DOE appreciates the importance of the NWTRB comment
that there should be a level of confidence in the performance
calculation, DOE does not believe it is appropriate or most effective
to address that comment by specifying or quantifying a level of
confidence as part of the proposed rule. The reasons not to quantify
the level of confidence in the rule are threefold. First, at this time,
there is no universally accepted or standard technical basis for DOE to
rely upon to quantify that level of confidence for inclusion in the
proposed rule for a first of its kind facility for spent fuel and high-
level waste; to adopt such a quantitative standard could
inappropriately constrain the Secretary's determination of site
suitability. Second, through the TSPA described in the proposed rule,
DOE will generate, and the public will have access to, information
about the probabilistic distribution of values around the expected
value in order to assess the level of confidence in the performance
calculation. Finally, in its proposed regulations at part 63 (which
serve as the model for the TSPA method described in this proposed
rule), the NRC does not specify or require a quantitative level of
confidence to be shown in order to determine whether the Yucca Mountain
site would meet applicable radiation protection standards. Taken
together, these reasons suggest the better course is for DOE to not
quantify the level of confidence for the performance calculation, but
to utilize other mechanisms, such as defining the criteria that would
be considered, to strengthen confidence in the technical completeness
and validity of the performance calculation.
Defense-in-Depth. Another specific NWTRB comment was that DOE
should demonstrate in its performance assessment how the repository
system preserves the principle of defense-in-depth using multiple
barriers.
In response, DOE believes that the issue of defense-in-depth will
be addressed by the NRC's proposed requirements for using multiple
barriers for the repository. Those requirements include descriptions of
site characteristics and design components, process and performance
assessment model analyses, and sensitivity studies. However, DOE does
not believe that it is appropriate for part 963 to articulate an
explicit defense-in-depth strategy nor to require significant
redundancy in repository design. The DOE rejected this approach in 1984
when the general Guidelines were promulgated (49 FR 47721) in choosing
not to set numerical limits on individual site characteristics. The
NRC, in its proposed part 63, also has rejected explicit, subsystem
performance requirements as a means to demonstrate defense-in-depth.
H. Data requirements for performance assessment.
Two commenters expressed concern that, if DOE issues amended
Guidelines prior to the EPA's promulgation of radiological standards
specific to Yucca Mountain, the DOE may not have a full understanding
of the health and safety standards, may need additional data collection
and analysis, and may need to alter the Guidelines again after the EPA
standards are issued. The EPA also commented that the new standards may
warrant gathering different or additional data to provide the basis for
compliance with the standards.
DOE responds to these comments by including in the proposed part
963 criteria that must be considered in a TSPA that are important to
assessing the ability of a repository at the Yucca Mountain site to
meet applicable NRC standards for the preclosure and postclosure
periods, which will implement applicable EPA public health and safety
standards. DOE believes that the criteria in proposed part 963 are
related sufficiently to the data and analytical needs to address the
proposed EPA standard as to warrant proposing it at this time. In
addition, NRC's proposed part 63 is based on a dose standard, and
includes data and analytical requirements necessary to meet that
standard. DOE has structured the proposed part 963 based on NRC's
proposed Part 63 and consistent with EPA's proposed 40 CFR part 197.
Therefore, DOE believes that part 963 could be implemented without
substantial revision.
In a similar vein, a variety of commenters questioned the state of
DOE's understanding of the site and the potential repository system at
Yucca Mountain. Some commenters indicated that the DOE does not yet
know enough about the site to make the proposed changes to the
Guidelines, others questioned whether the DOE would know enough at the
planned time for a site recommendation, and others contended that the
DOE could never know enough to apply a total system performance
assessment approach to a suitability evaluation.
In response, DOE notes that, although it is advantageous to limit
uncertainties and strive to gain as much data and scientific
understanding as practicable, the prevailing scientific view is that
certainty, in the normal sense of that word, is not possible to achieve
with respect to assessing the postclosure performance of a geologic
repository intended to last for tens of thousands of years. The NRC's
existing regulations at part 60 and proposed regulations at part 63
require ``reasonable assurance'' that the public and environment will
be adequately protected from the radiation hazards posed by a
repository. That standard reflects that there are inherent
uncertainties in understanding the evolution of the geologic setting,
the reference biosphere, and an engineered barrier system. Performance
assessments are necessarily probabilistic; they can only analyze future
repository performance in terms of the probabilities of different
events and results.
Equally important, EPA recognizes the inherent uncertainty in this
process in its proposed public health and safety standards. EPA would
have the NRC implement the public health standard based on ``reasonable
expectation.'' According to EPA, reasonable expectation ``means that
the Commission is satisfied that compliance will be achieved based upon
the full record before it. Reasonable expectation (a) requires less
than absolute proof because absolute proof is impossible to attain for
disposal due to the uncertainty of projecting long-term performance;
(b) is less stringent than the reasonable assurance concept that NRC
uses to license nuclear power plants; (c) takes into account the
inherently greater uncertainties in making long-term projections of the
performance of the Yucca Mountain disposal system; (d) does not exclude
important parameters from assessments and analyses simply because they
are difficult to precisely quantify to a high degree of confidence; and
(e) focuses performance assessments and analyses upon the full range of
defensible and reasonable parameter distributions rather than only upon
extreme physical situations and parameter values.''
I. The ability to understand results of total systems performance
assessment.
The NWTRB commented that the performance assessment should be
carried out in a manner that is highly transparent to the technical
community, regulators, and interested members of the general public.
Some commenters
[[Page 67075]]
stated that total system performance assessment would not likely be
easily understood. Other commenters asserted that the approach in the
1996 proposed rule would be misleading or mask uncertainties and,
therefore, not recognize potentially insufficient waste isolation
capabilities of the site.
DOE has developed proposed part 963 taking into account these
considerations. Proposed part 963 includes specific site suitability
criteria and a description of the evaluation method to ensure the
public is informed of how and what DOE will consider in reaching a
suitability evaluation for completion of site characterization. DOE
will conduct performance assessments in a manner that is transparent,
valid and verifiable. In other words, these assessments will be clear,
logical, technically defensible and adequately documented. A
transparent system performance assessment will be clear not only to the
technical analysts, but also to readers who are familiar with the
particular aspects of the assessment, such as the fundamental
scientific and engineering principles, numerical analytical methods, or
regulatory implications.
In addition, DOE is currently using several methods to increase the
traceability of these analyses. Analyses are traceable to the extent
that a complete and unambiguous record exists of decisions and
assumptions, and of models and data, and their use in arriving at the
results of the analyses. These methods include abstraction workshops to
ensure the completeness of models and approaches used in performance
assessment, detailed documentation of each model, formal expert
elicitations, and a participatory external peer review of the
development, documentation, and results of the performance assessment
for the Viability Assessment. The results of this peer review will be
considered, as will be the comments of all oversight groups, to assist
DOE's development of a TSPA for a possible site recommendation and
subsequent license application. These actions should enhance confidence
in the analyses and help communicate the complexities of predicting
system behavior to a wide range of audiences.
A related concern is that system analyses could dilute or somehow
mask the importance of specific, independent technical characteristics.
On the contrary, it is the system analyses that assess the significance
of any independent technical characteristic. The Yucca Mountain total
system performance assessment is not a single computer model or
analysis, but the integrated result of several discrete process models,
each of which in turn is supported by a group of more detailed data
sets, models, and analyses. The total system performance assessment
method permits evaluation of how certain individual characteristics,
either alone or in combination, could cause the site to fail to meet
the applicable standards, and how such failures are related to the
performance of the total system. By not placing reliance on any single
component of the system, the total system performance assessment method
supports a multiple barriers approach, as required by NRC licensing
regulations in order to provide reasonable assurance that the
repository system will perform adequately.
J. The relation of DOE and NRC requirements.
The NRC commented that its regulations have a broader role than
just to implement the EPA standards. They contain the technical
criteria and requirements for licensing a geologic repository, as
provided by subsection 121(b) of the NWPA. The NRC recommended that the
DOE proposed postclosure guideline be changed to reflect that broader
role and proposed that it be revised to read, `` * * * repository shall
perform in accordance with both the EPA standards established
specifically for the Yucca Mountain site and NRC's regulations
applicable to the Yucca Mountain site.''
DOE understands that the applicable NRC regulations containing the
technical requirements and criteria for construction, operation, and
closure of a geologic repository, as provided for by section 121 of the
NWPA, will have a broader role regarding Yucca Mountain than just to
implement the EPA standards for the Yucca Mountain site. The NRC
regulations will govern the licensing process if the Yucca Mountain
site is recommended by the Secretary to the President, approved by the
President, and is designated by Congress under section 115 of the Act.
The use of the phrase ``likely to meet applicable radiation
protection standard'' in the proposed part 963 is meant to clarify the
role of NRC and EPA regulations in evaluating suitability and reaching
a suitability determination. DOE would refer to applicable health and
safety standards, both those promulgated by EPA and NRC, in determining
site suitability in the preclosure and postclosure periods. In
recognition of NRC's broader role in the licensing process, and in
anticipation of submitting an application for a license, DOE has
structured its rule regarding the methods and procedure for evaluating
suitability to be consistent with proposed NRC licensing criteria and
requirements.
Notwithstanding these similarities in DOE's and NRC's proposed
rules, DOE's determination of suitability is not the equivalent of a
licensing decision. DOE's assessment of whether the Yucca Mountain site
is suitable is a more preliminary assessment than the subsequent NRC
licensing decision. Proposed part 963 would include many but not all
NRC licensing requirements in the suitability determination; the intent
is to provide the Secretary with sufficient information to determine
whether the site should be recommended to the President based on, among
other things, the likelihood the site would meet applicable regulatory
standards for licensing.
K. Definition of closure.
Nye County, Nevada, suggested that the language of the general
guidelines should allow for the possibility of having an open,
naturally ventilated repository, to ensure that regulatory flexibility
exists if such a design provides for greater protection of the public's
health and safety and the environment. The County proposed that the
definition of ``closure'' at Sec. 960.2 be amended to eliminate
reference to the ``sealing of shafts'' and add an explicit reference to
``any extended period of natural ventilation.''
DOE agrees that, during the design process, it would be appropriate
to consider the potential benefits and consequences of maintaining a
ventilated repository for an extended period of time. Any decision of
whether and how to continue ventilation of the repository will consider
the costs and benefits of that option, in light of the information
available at that time. In response to this comment, DOE has modified
the prior definition of ``closure'' by proposing in Sec. 963.2 a
definition including the phrase ``except those openings that may be
designed for ventilation or monitoring'' to ensure that the option of a
ventilated repository is not foreclosed.
V. Description of Proposal--10 CFR Part 960
A. Subpart A--General Provisions
This section of the Guidelines contains the statement of
applicability and definitions. The proposed revisions to section 960.1,
Applicability, would limit the application of the Guidelines to
evaluations of the suitability of sites for site characterization under
section 112(b) of the NWPA. The revisions
[[Page 67076]]
would eliminate the applicability of the Guidelines to determinations
of suitability of a site at the site characterization stage under
section 113, or the site recommendation stage under section 114. These
revisions would clarify the applicability of the Guidelines to the
preliminary site screening stage, which entails a comparative analysis
process, and thereby better align the application of the Guidelines
with the structure of the NWPA, as originally enacted and as amended in
1987. The revisions to the third and fourth sentences would update the
reference to other regulatory requirements of the NRC and EPA, in light
of the current status of applicable NRC and EPA regulations relative to
high-level waste geologic repositories. The fifth through seventh
sentences would remain unchanged.
The proposed revisions to the definitions section would make the
terms consistent with the NWPA and with the other proposed revisions to
the Guidelines limiting applicability of subparts B, C, and D of the
Guidelines to determinations of site suitability for site
characterization under section 112 of the NWPA.
B. Subpart B--Implementation Guidelines
The proposed revisions to the Implementation Guidelines would limit
the procedures and basis for application of the postclosure and
preclosure guidelines of subparts C and D, respectively, to evaluations
of the suitability of sites for site characterization.
Section 960.3, Implementation Guidelines, would be revised to
eliminate the sentences in that section setting forth the procedures
and basis for application of subparts C and D in evaluations and
determinations of the suitability of a site under section 113 and
section 114 of the NWPA. These revisions would remove section 960.3-1-
4-4, Site Recommendation for Repository Development, in its entirety.
That section pertains to the procedure and evidence required to make a
site recommendation decision under section 113 and 114. Those decisions
would not be governed by the Guidelines, and therefore reference to
them would be removed. Section 960.3-1-5, Basis for Site Evaluation,
would be revised to eliminate all references to Appendix III and the
application of the requirements of that section in making suitability
determinations at the site characterization or site recommendation
stages. Only the last sentence of section 960.3-2, Siting Process,
would be revised. This revision would limit the applicability of the
siting process to the recommendation of sites for site
characterization. Section 960.3-2-4, Recommendation of Sites For the
Development of Repositories, would be removed in its entirety. That
section pertains to the comparison of characterized sites, leading to a
recommendation by the Secretary to the President of a site for
development as a repository. The proposed revisions would eliminate
that decision process from evaluation under the Guidelines, and the
section in its entirety would be removed.
C. Appendix III
The proposed revisions to Appendix III would remove and eliminate
the applicability of this Appendix to decisions for repository site
selection and siting decisions. The qualifying and disqualifying
conditions of the technical guidelines in subparts C and D would apply
only to the decision point for selecting sites for site
characterization. All references to the site selection and site
recommendation decisions under sections 113 and 114 would be removed,
including the tabular column in Appendix III referencing the repository
site selection siting decision.
With respect to the guidelines listed in Appendix III that apply to
environmental quality, socioeconomics and transportation
considerations, DOE considered whether to propose continuing to require
their applicability to a Yucca Mountain site recommendation under
section 114 of the NWPA. DOE decided not to do so because the issues
addressed by these guidelines will be covered in the environmental
impact statement for the Yucca Mountain site, and section 114(a)(1)(D)
requires that the final environmental impact statement be part of the
comprehensive statement of the basis for a site recommendation to the
President. 42 U.S.C. 10134(a)(1)(D). Members of the public concerned
about the analysis of environmental quality, socioeconomics and
transportation issues will have ample opportunity to comment on these
issues as part of the public review and comment process on the draft
environmental impact statement and in additional public hearings
required by section 114. In sum, DOE is of the view that the
environmental quality, socioeconomics and transportation guideline
requirements are substantially and unnecessarily duplicative of
requirements under the procedures for developing an environmental
impact statement and for formulating and informing a site
recommendation under section 114.
VI. Description of Proposal--10 CFR Part 963
The purpose of this part of the Supplementary Information is to
explain the meaning and basis for those provisions of proposed part 963
that are not self-explanatory. The following is a section by section
analysis of the proposed rule, and the accompanying explanation.
A. Subpart A--General Provisions
Subpart A comprises two parts, the statement of Purpose, section
963.1, and Definitions, section 963.2.
(a) Purpose--section 963.1. The purpose of the proposed rule is as
stated in this section: to establish the methods and criteria for
determining the suitability of the Yucca Mountain site for the location
of a geologic repository in completing DOE's site characterization
program activities to be conducted under section 113(b) of the NWPA.
The suitability evaluation methods to be used by DOE are consistent
with the methods proposed by the NRC for assessing the potential of a
geologic repository at the Yucca Mountain site to meet licensing
criteria and requirements. The suitability criteria relate to the
geologic considerations identified in section 112(a) as they reflect
current scientific understanding and regulatory expectations (both NRC
and EPA) regarding the performance and safety of a geologic repository
during the preclosure and postclosure periods of operation. Because the
suitability criteria are part of the site characterization program,
these criteria relate to site characterization activities. Site
characterization activities relate to scientific and technical
investigations of the site to determine its natural properties and
features, for example, studying the geohydrology and geochemistry of
the site, as distinct from consideration of other features, such as
cost, socioeconomics and transportation of waste to the repository. An
explanation of how the suitability criteria were derived is provided
below.
The proposed rule does not address the site recommendation process
in its entirety. Other information required under section 114 of the
NWPA that must be considered and submitted to the President and made
available to the public if the site is recommended for development as a
geologic repository is not addressed by the proposed rule. Regarding
any repository site recommendation the Secretary of Energy shall make
available to the public, and submit to the President, a comprehensive
statement of the basis of
[[Page 67077]]
such recommendation, including the following: (a) A description of the
proposed repository, including preliminary engineering specifications
for the facility; (b) a description of the waste form or packaging
proposed for use at such repository, and an explanation of the
relationship between the waste form or packaging and the geologic
medium of the site; (c) a discussion of data, obtained in site
characterization activities, relating to the safety of such site; (d) a
final environmental impact statement prepared for the Yucca Mountain
site; (e) the preliminary comments of the NRC concerning the extent to
which the at-depth site characterization analysis and the waste form
proposal for such site seem to be sufficient for inclusion in any
application to be submitted by the Secretary for licensing of such site
as a repository; (f) the views and comments of the Governor and
legislature of any State, or the governing body of any affected Indian
tribe, as determined by the Secretary, together with the response of
the Secretary to such views; (g) such other information as the
Secretary considers appropriate; and (h) any impact report submitted
under section 116(c)(2)(B) of the NWPA [42 U.S.C. 10136(c)(2)(B)] by
the State of Nevada.
(b) Definitions--section 963.2. The proposed rule includes
definitions of certain words and terms. The definitions clarify DOE's
intent and meaning in the context of this rule. The definitions are
also intended to make the terms consistent with proposed NRC regulation
governing the construction and licensing of a repository at the Yucca
Mountain site. Several of the terms are important to understanding the
suitability evaluation process, and are addressed here.
Criteria are those characterizing traits that are relevant to
assessing the performance of a geologic repository at the Yucca
Mountain site. The criteria relate to the geologic considerations
identified in section 112(a) of the NWPA that are relevant to the
assessment of the performance of a geologic repository at the Yucca
Mountain site. The geologic repository includes the natural barriers of
the geologic setting and the engineered barriers of the repository
design. The suitability criteria of the proposed rule are specific
characterizing traits of the Yucca Mountain site that, through the site
characterization process, DOE has identified as important indicators of
the performance of the total repository system (that is, the integrated
natural and engineered barrier systems).
Consistent with varying definitions in standard dictionaries, DOE
considered narrowly defining the term ``criteria'' as benchmark, pass-
fail standards rather than more broadly as ``characterizing traits.''
DOE decided not to adopt the more narrow definition for four reasons.
First, in section 112(a) of the NWPA, the term ``primary criteria'' is
used synonymously with the term ``detailed geologic considerations,'' a
term that does not necessarily imply any benchmark. Second, as used in
context in section 113 of the NWPA, the term ``criteria'' appears to
refer to the considerations for evaluating whether a repository in a
particular geologic medium is likely to meet applicable NRC standards,
thus indicating that the site suitability criteria and the NRC
standards are not one and the same. Third, section 121 of the NWPA
(which addresses NRC's regulatory responsibilities) distinguishes
between ``criteria'' and ``standards,'' a distinction which implies
that ``criteria'' are not necessarily benchmark standards themselves.
Finally, although some are inclined to define the term ``criteria''
narrowly, that inclination is not universal. For example, in 10 CFR
part 50, the NRC sets forth quality assurance ``criteria'' that are in
the nature of considerations, rather than benchmark, pass-fail
standards.
The performance of the total system is evaluated using a computer
modeling tool called total system performance assessment. Total system
performance assessment identifies the features, events and processes
that might affect the performance of a repository, as well as the
probabilities and significance of occurrence. Total system performance
assessment examines the effects of those features, events and processes
on that performance by estimating the expected annual dose to the
receptor as a result of releases from the repository.
For the preclosure period, suitability would be evaluated through a
preclosure safety evaluation method. The preclosure safety evaluation
would consider site characteristics and preliminary engineering
specifications to assess the adequacy of the repository facilities to
perform their intended functions and to mitigate the effects of design
basis events, or credible accidents that could affect the ability of
the geologic repository to operate safely. Design basis events are
categorized in two ways: (1) those events, both natural and human-
induced, that are expected to occur one or more times before permanent
closure; or (2) those events, both natural and human-induced, that have
at least one chance in 10,000 of occurring before permanent closure.
The preclosure safety evaluation would assess the ability of the
geologic repository to meet the applicable radiation protection
standard for the preclosure period under both categories of design
basis events.
DOE's evaluation of the suitability of a geologic repository at the
Yucca Mountain site would be based on consideration of a preliminary
design for the geologic repository. The design is the description of
the potential geologic repository, which includes multiple barriers to
the release and transport of radionuclides. These multiple barriers
consist of both the natural barriers and an engineered barrier system.
The geologic repository includes not only the facilities and areas
where radioactive wastes are handled, but also that portion of the
geologic setting that provides isolation of the radioactive wastes. As
used in the proposed rule, and in NRC's proposed part 63, isolation
means inhibiting the movement of radioactive material from the
repository to the location where the receptor resides, so that
radiation exposures will be less than the radiation dose limits
prescribed in NRC's proposed regulation.
B. Subpart B--Site Suitability Determination, Methods and Criteria
(a) Scope--section 963.10. The scope of subpart B includes, for
both the preclosure and postclosure periods, the basis for DOE's
suitability determination for the Yucca Mountain site. There are
separate sections of the proposed rule for the preclosure and
postclosure time periods. The scope of these sections also includes the
site suitability criteria to be applied in accordance with section
113(b) of the NWPA, the methods for applying the criteria and
evaluating suitability, and the basis for the resulting suitability
determination.
The proposed rule is divided into two sections corresponding to the
preclosure and postclosure periods, and within each period, three
subsections. The subsections present for each period: (1) the
suitability determination; (2) the suitability evaluation method; and
(3) the criteria to be used for the evaluation. The purpose of
separating the preclosure and the postclosure periods is to make clear
the differences in determining the suitability of a geologic repository
during these two periods. This separation is consistent with the
current structure of the Guidelines, and the structure of the current
and proposed new NRC licensing regulations, which have separate
performance objectives for the preclosure and the postclosure periods.
[[Page 67078]]
The preclosure method and criteria govern the suitability
considerations that deal with the operation of the repository before it
is closed, while waste is being received, stored and emplaced, and
allow for the possibility of retrieval. These are the considerations
important in protecting the public and repository workers from
exposures to radiation during repository operations, especially if an
accident should occur. The postclosure method and criteria govern the
suitability considerations that deal with the long-term behavior of the
repository. The behavior of interest here is after waste emplacement
and repository closure.
(b) Suitability determination--section 963.11. This section
describes how DOE will determine the suitability of the site based on
the information and data developed through the program of site
characterization activities at Yucca Mountain. DOE may find the Yucca
Mountain site suitable for the location of a repository based on its
determinations relative to the preclosure and postclosure suitability
evaluations under sections 963.12 and 963.15. Those determinations, in
turn, entail assessment of preclosure and postclosure suitability using
the designated evaluation method and criteria for each time period. The
overall suitability determination, if affirmative, will be one part of
the Secretary's decision, under section 114, whether to recommend the
Yucca Mountain site to the President for development of a repository.
(c) Preclosure suitability determination--section 963.12. The
suitability evaluation of the Yucca Mountain site will consider the
safety of the geologic repository during the operational or preclosure
time period. The preclosure criteria to evaluate the suitability of a
geologic repository operations area at Yucca Mountain will be
considerations that are important to determining safety during
construction and active operation and to demonstrating compliance with
the applicable radiation protection standard.
(d) Preclosure suitability evaluation method--section 963.13. The
preclosure suitability criteria will be applied through a preclosure
safety evaluation method. The preclosure safety evaluation would
support the recommendation to approve the Yucca Mountain site for
submittal of a license application. The NRC provides a framework
indicating how to conduct this type of evaluation in proposed 10 CFR
63.112. DOE designed the preclosure safety evaluation method proposed
in this rule based on this NRC framework and a DOE assessment of what
information would be necessary and sufficient to determine, at the site
suitability stage, whether a proposed geologic repository at Yucca
Mountain is likely to meet the applicable radiation protection
standards for the preclosure period.
The preclosure safety evaluation method, using preliminary
engineering specifications, will assess the adequacy of the repository
facilities to perform their intended functions and prevent or mitigate
the effects of postulated design basis events that are deemed
sufficiently credible to warrant consideration. The preclosure safety
evaluation will consider: a preliminary description of the site
characteristics, the surface facilities, and the underground
facilities; a preliminary description of the expected design bases for
the operating facilities and a preliminary description of any
associated limits on operation; a preliminary description of potential
hazards (for example, seismic activity, flooding and severe winds),
event sequences, and their consequences; and, a preliminary description
of the structures, systems, components, equipment, and operator actions
intended to mitigate or prevent accidents. The purpose of the
preclosure safety evaluation is to ensure that relevant hazards that
could result in unacceptable consequences have been adequately
evaluated and appropriate protective measures have been identified such
that the geologic repository operations area will comply with the
preclosure requirements for protection against radiation exposures and
releases of radioactive material.
The preclosure safety evaluation will emphasize performance
requirements, analytical bases and technical justifications, and
evaluations that show how safety functions will be accomplished. The
adequacy of the facility design will be evaluated by consideration of
postulated design basis events viewed as sufficiently credible that the
facility should be designed to prevent or mitigate their effects.
Design basis events are those natural and human-induced events that are
either expected to occur before closure, or have one chance in 10,000
of occurring before permanent closure. DOE will evaluate the
probability of the event and the associated consequences. For events of
high frequency, the consequences should be low. For less probable
accidents that are potentially more severe, the allowable consequences
are higher. In either case, the suitability determination will be
supported by a design that DOE considers likely to meet the applicable
radiation protection standard.
(e) Preclosure suitability criteria--section 963.14. DOE will
evaluate the suitability of the Yucca Mountain site during the
preclosure period using the following criteria: (a) ability to contain
and limit releases of radioactive materials; (b) ability to implement
control and emergency systems to limit exposures to radiation; (c)
ability to maintain a system and components that perform their intended
safety functions; and (d) ability to preserve the option to retrieve
wastes during the preclosure period. These criteria are considerations
important to determining the performance of a potential repository at
Yucca Mountain. For example, in applying the first criterion, DOE will
ensure repository facilities are designed to keep the radioactive
materials confined in order to limit releases of radioactive material.
The second and third criteria address DOE's ability to ensure that
emergency controls and procedures are developed to limit releases
should an accident occur, and that the system and its components will
perform their safety function as intended. The fourth and final
criterion is also important to the safe functioning of a repository;
that is, ensuring the capability to retrieve or recover the wastes from
the repository should conditions warrant.
These criteria also relate to certain geologic considerations in
section 112(a) of the NWPA. The geologic considerations identified in
section 112(a) that are relevant to the preclosure period are
hydrology, geophysics, seismic activity, atomic energy defense
activities, proximity to water supplies and proximity to populations.
These considerations are relevant to the evaluation of preclosure
suitability because they bear on the evaluation of repository system
safety during the preclosure period. The hydrology and geophysics of
the site are important to preclosure safety because they are indicators
of possible initiating events for accidents. Seismic activity is also
important in this regard, as it is an indication of the potential for
earthquake activity to disrupt normal functioning of a repository
surface facility. The location of atomic energy defense activities in
relation to the Yucca Mountain site is important to preclosure safety
and would be considered to the extent they exist and may impact
operations of the repository facility. Proximity to water supplies and
proximity to populations are important to preclosure safety because
they relate to potential locations where people could eventually be
exposed to
[[Page 67079]]
radionuclides either through airborne transport or through a water
pathway.
(f) Postclosure suitability determination--section 963.15. The
postclosure suitability evaluation of the Yucca Mountain site will
consider the safety of the geologic repository during the time after
operations cease, the postclosure period. DOE will determine the
suitability of the Yucca Mountain site for the postclosure period by
examining the results of a TSPA conducted under section 963.16. If the
results indicate a repository at Yucca Mountain is likely to meet the
applicable radiation protection standard, then DOE may determine, on
the basis of site characterization activities, that the site is
suitable for the postclosure period.
(g) Postclosure suitability evaluation method--section 963.16. DOE
will evaluate the suitability of a potential repository at the Yucca
Mountain site using the TSPA method (described in greater detail
below). Using the TSPA method, DOE will estimate quantitatively the
expected annual dose, over the compliance period, to the receptor. With
this estimate, DOE will evaluate the performance of the repository and
its ability to limit radiological exposures within the applicable
radiation protection standard.
(1) Section 963.16(a). Section 963.16(a) describes how DOE will
conduct separate performance assessments in order to evaluate the
postclosure performance of a geologic repository at Yucca Mountain. One
TSPA will be conducted in accordance with the method described in
963.16(b) and using all of the criteria identified in section 963.17,
except the criterion assuming a human intrusion into the repository. A
second TSPA will be conducted in accordance with the method described
in 963.16(b) (except not all engineered and natural barriers will be
considered), and using all of the criteria in section 963.17, including
the criterion assuming a stylized human intrusion into the repository,
as defined by NRC regulations. The results of each performance
assessment will be examined by DOE to determine the suitability of the
site for the postclosure period.
The conduct of separate assessments is consistent with EPA's
proposed 40 CFR part 197 and NRC's proposed regulations at 10 CFR part
63. The proposed regulations, in turn, are based on NAS recommendations
in the report, Technical Bases for Yucca Mountain Standards, on how
best to assess the performance and resilience of a potential
repository. Because the manner and likelihood of human intrusion
occurring many hundreds or thousands of years into the future cannot be
estimated reliably by examining either the historic or geologic record,
the NAS recommended an approach that will assess how resilient the
geologic repository would be against a postulated intrusion. The
consequences of the assumed human intrusion event will be addressed in
a ``stylized'' manner, that is, by assuming a particular human
intrusion event occurs in a certain way, at a specified time. Proposed
EPA and NRC regulations define different stylized human intrusion
events to be examined by DOE. At the time of the suitability
determination, DOE will conduct the human intrusion analysis within the
framework of the applicable regulatory concept, and use the results of
the performance assessment to evaluate the suitability of the site for
the postclosure period.
(2) Section 963.16(b). Section 963.16(b) provides an outline of the
contents and manner in which DOE will conduct its performance
assessments. As described previously in this notice, and briefly
summarized here, performance assessment in this context is a method of
forecasting how a system or parts of a system designed to contain
radioactive waste will behave over time. Its goal is to aid in
determining whether the system can meet established performance
requirements. A TSPA is a type of performance assessment analysis in
which the components of a system are integrated or linked into a single
analysis.
The TSPA treats both the engineered and natural system components.
The engineered system is to some extent controllable, but the natural
system generally is not. The responses of the total system extend over
periods beyond those for which data have been or can be obtained. The
relationship of the components of a TSPA is often described as a
pyramid. The lowest level of the pyramid represents the complete suite
of process and design data and information (that is, field and
laboratory studies that are the first step in understanding the
system). The next higher level indicates how the data feed into
conceptual models that portray the operation of the individual system
components. The next higher level represents the synthesis of
information from the lower levels of the pyramid into computer models.
The term abstraction often is used to indicate the extraction of
essential information from large quantities of data. The TSPA models
are usually referred to as abstracted models. At this point, the
subsystem behavior may be described by linking models together into
representations; this is the point at which performance assessment
modeling is usually thought to begin. This is also the basis for the
identification of the Yucca Mountain specific suitability criteria
contained in the proposed rule.
The upper level is the final level of distillation of information
into the most significant aspects to represent the total system. At
this point, the models are linked together. These are the models used
to forecast system performance and estimate the likelihood that the
performance will comply with regulations and ensure long-term safety.
As information flows up the pyramid, it generally is distilled into
progressively more simplified or essential forms, or becomes more
abstracted. However, abstraction is not synonymous with simplification.
If a particular component model cannot be simplified without losing
essential aspects of the model, then the model becomes part of the TSPA
calculation tool. Thus, an abstracted model in a TSPA may take the form
of something as simple as a table of values that were calculated using
a complex computer model, or the abstraction may take the form of a
fully three dimensional computer simulation.
The TSPA method described in section 963.16(b) is a systematic
analysis that identifies the features, events, and processes (i.e.,
specific conditions or attributes of the geologic setting, degradation,
deterioration, or alteration processes of engineered barriers, and
interactions between the natural and engineered barriers) that might
affect performance of the geologic repository; examines their effects
on performance; and estimates the expected annual dose. The features,
events, and processes considered in the TSPA will represent a wide
range of effects on geologic repository performance. Those features,
events, and processes expected to affect compliance significantly or be
potentially adverse to performance are included, while events of very
low probability can be excluded from the analysis. The expected annual
dose to the receptor is estimated using the selected features, events,
and processes, and incorporating the probability that the estimated
dose will occur.
The TSPA method described in section 963.16(b) is a systematic
analysis that identifies the features, events, and processes (i.e.,
specific conditions or attributes of the geologic setting, degradation,
deterioration, or alteration processes of engineered
[[Page 67080]]
barriers, and interactions between the natural and engineered barriers)
that might affect performance of the geologic repository; examines
their effects on performance; and estimates the expected annual dose.
The features, events, and processes considered in the TSPA will
represent a wide range of effects on geologic repository performance.
According to proposed EPA and NRC regulations, those features, events,
and processes expected to affect compliance significantly or be
potentially adverse to performance are included, while events of very
low probability (less than one chance in 10,000 of occurring within
10,000 years of disposal) can be excluded from the analysis. The
expected annual dose to the average member of the critical group is
estimated using the selected features, events, and processes, and
incorporating the probability that the estimated dose will occur.
The TSPA that will be used to assess the postclosure performance of
the Yucca Mountain repository will be conducted in the manner described
in section 963.16(b). It will synthesize data and information into a
set of models that simulate the behavior of the individual system
components. DOE will abstract essential information from its initial
models and refine them into linked models, including computer models,
that represent important aspects of system performance. DOE will use
these models to forecast system behavior and the likelihood of system
compliance with the applicable radiation protection standard.
The TSPA calculations will be used to address conditions in the
natural and engineered components of a repository at Yucca Mountain
over the time that the standards apply. The TSPA calculations will also
be used to consider disruptive events that are improbable, but that are
important to understanding the repository behavior in the future. A
requirement for TSPA will be to identify the identification of those
natural features of the geologic setting and the design features of the
engineered barrier system that are considered barriers important to
waste isolation. TSPA will be used to assess the capability of the
barriers, identified as important to waste isolation, to isolate waste,
taking into account uncertainties in characterizing and modeling the
barriers. Sensitivity studies and the regulatory definition of very-low
probability events will provide the technical basis for inclusion or
exclusion of specific features, events, and processes of the geologic
setting in the TSPA.
Specific features, events, and processes of the geologic setting
will be evaluated through sensitivity analyses to determine if the
magnitude and time of the resulting expected annual dose would be
significantly changed by their omission. Sensitivity analysis is a
technique that is used to examine how a system responds if one of its
components is changed. Systems are said to be sensitive to such a
component if the results of the calculation are changed significantly
in response to changes in that component's values. The sensitivity
calculations will also provide the technical basis for either inclusion
or exclusion of degradation or alteration processes of engineered
barriers in the TSPA. Degradation or alteration processes will be
evaluated further if the magnitude and timing of the resulting expected
annual dose would be significantly changed by their omission.
Using the TSPA results, DOE can examine the sensitivity of one or
more components of the calculations in the assessment. DOE can examine
the response of the geologic repository system with regard to
sensitivities of the system to the suitability criteria, in order to
evaluate whether the geologic repository meets the applicable radiation
protection standard.
As part of the TSPA, DOE will account for uncertainties and
variabilities in both calculations and data, and provide the technical
bases for parameter ranges, probability distributions, and bounding
values. The reason for this accounting is that it is recognized, by the
NRC and others, that there are inherent uncertainties in the
understanding of the evolution of the geologic setting, biosphere, and
engineered barrier system. Under the circumstances, proof that the
geologic repository will be in conformance with the applicable
radiation protection standard is not to be had in the ordinary sense of
the word. Instead, DOE will demonstrate compliance and the performance
of the potential repository using sophisticated, complex predictive
models that are supported by limited data from field and laboratory
tests, site-specific monitoring, and natural analog studies that may be
supplemented with expert judgment.
Another aspect of DOE's conduct of the TSPA is the analysis of
alternative models of features and processes. Under 963.16(b)(3), DOE
will consider alternative models of features and processes that are
consistent with available data and current scientific understanding,
and evaluate the effects that alternative models would have on the
estimated performance of the geologic repository. In this regard, if
other interested persons suggest and present to DOE alternative models
that are consistent with available data and current scientific
understanding, DOE will evaluate those other models. In implementing
this requirement, however, DOE does not believe it would be
scientifically or technically useful, and may be administratively
burdensome, to require that, in every case, DOE provide the bases for
not using an alternative model suggested by another party. Other
interested persons may suggest any number of alternative models, some
of which may not be consistent with available data and current
scientific thinking and therefore not add significant value to the TSPA
analysis. Nevertheless, DOE may decide, on a case-by-case basis, to
document consideration of alternative models that were suggested by
other interested persons, but not used because, among other things, the
model is not consistent with available data and current scientific
understanding.
(h) Postclosure suitability criteria--section 963.17. The
postclosure criteria to evaluate the suitability of a geologic
repository at Yucca Mountain will be considerations that reflect both
the processes and the models used to simulate those processes that are
important to the total system performance of the geologic repository.
These criteria are characterizing traits that are relevant and
important in the processes to be modeled in the TSPA that evaluates the
suitability of the Yucca Mountain site for the postclosure period.
These criteria also are related to the section 112(a) geologic
considerations identified in the NWPA. Following is a description of
how the section 112(a) geologic considerations relate to the
postclosure suitability criteria, as well as a discussion of the
criteria as they relate to the processes and computer models to be used
in evaluating the performance of a geologic repository in the
postclosure period.
(1) Section 112(a) geologic considerations. The geologic
considerations identified in section 112(a) of the NWPA that are
relevant to the postclosure performance of a repository at Yucca
Mountain are: location of valuable natural resources, hydrology,
geophysics, seismic activity, proximity to water supplies, and
proximity to populations. These considerations are relevant to
postclosure performance because they impact components and processes of
the repository system related to potential transport of radionuclides
via ground water to members of the public.
The location of valuable natural resources is a relevant geologic
[[Page 67081]]
condition for postclosure performance because the presence of these
resources in the geologic setting of Yucca Mountain could lead to
exploratory drilling or excavation and a consequent breach of the
repository's safety barriers. Hydrology- and geophysics-related
conditions are relevant because they describe some of the geologic
features of the site that are related to safety and the physical
characteristics that are related to potential transport of
radionuclides to the biosphere. Seismic activity is relevant to
postclosure performance because it is related to the potential for
changes in geologic structures that could lead to enhanced transport of
radionuclides. Proximity to water supplies and populations are relevant
to postclosure performance because they are related to potential
locations where people could eventually be exposed to radionuclides in
their water.
Table 2 provides a cross-reference between the section 112(a)
factors related to geologic considerations, and the postclosure
suitability criteria. As previously stated, the postclosure suitability
criteria largely represent the process model components of the total
system performance assessment that DOE will use to evaluate the
performance of the repository during the postclosure period. DOE has
identified these processes as pertinent to assessing the performance of
a repository at Yucca Mountain through information and data developed
under its site characterization program. These processes also are
related to, and impacted by, the geologic considerations found in
section 112(a) of the NWPA.
Table 2
------------------------------------------------------------------------
Postclosure suitability
NWPA Sec. 112(a) factors criteria
------------------------------------------------------------------------
(a) Processes pertinent to total system
performance:
Hydrology, geophysics, seismic (1) Site characteristics.
activity.
Hydrology, geophysics, seismic (2) Unsaturated-zone flow
activity. characteristics.
Hydrology, geophysics, seismic (3) Near-field environment
activity. characteristics.
Hydrology, geophysics, seismic (4) Engineered barrier system
activity. degradation characteristics.
Hydrology, geophysics, seismic (5) Waste form degradation
activity. characteristics.
Hydrology, geophysics, seismic (6) Engineered barrier system
activity. degradation, flow, and
transport characteristics.
Hydrology, geophysics, seismic (7) Unsaturated-zone flow and
activity. transport characteristics.
Hydrology, geophysics, seismic (8) Saturated-zone flow and
activity. transport characteristics.
Hydrology, proximity to water (9) Biosphere characteristics.
supplies, proximity to populations.
(b) Disruptive processes and events:
Hydrology, geophysics.............. (1) Volcanism.
Seismic activity, geophysics....... (2) Seismic events.
Hydrology, geophysics, seismic (3) Nuclear criticality.
activity.
Location of valuable natural (4) Inadvertent human
resources, proximity to intrusion.
populations.
------------------------------------------------------------------------
(2) Suitability criteria. DOE has developed its site
characterization program to address those processes of the repository
system that are pertinent to understanding how a repository at Yucca
Mountain would comply with applicable radiation protection standards.
The program also has been developed to better understand these
processes, and resolve or put in place methods to resolve issues
related to those processes. DOE has described these processes, and the
methods to resolve issues related to the processes, in the SCP, semi-
annual progress reports on site characterization program activities, in
several TSPAs conducted over the years, and most recently in the
Viability Assessment. These processes are simulated through performance
assessment models; those models are integrated and refined to a point
resulting in a representation of the performance of the system in
total.
Put in simple terms, the processes that are pertinent to
understanding the performance of a repository at Yucca Mountain, and
that form the basis for the numerical models in the TSPA and the
suitability criteria in section 963.17, are those physical processes of
water falling on Yucca Mountain as rain and snow, moving into the
mountain, down through the unsaturated zone to the potential repository
level, from the repository level to the saturated zone, and from there
to the outside environment. At the repository level, the water would be
affected by the physical processes associated with the repository and
with the waste packages and the waste forms. Eventually, the water
could move out of the repository horizon and further downward through
the unsaturated zone. Subsequently, it could move into the saturated
zone where it could be transported to a point where humans could be
exposed to any radionuclides carried in the water. Disruptive events
could potentially affect these processes and, therefore, need to be
considered. This set of physical processes is simulated in the
numerical modeling method of the TSPA that will be used to assess
quantitatively the radionuclide releases to the public and,
consequently, the safety and suitability of the Yucca mountain site.
The suitability criteria proposed in this rule are derived from
these pertinent physical processes. These criteria represent the
characteristic traits pertinent to assessing the performance of a
geologic repository at the Yucca Mountain site. They also reflect and
represent in a larger sense the geologic considerations identified in
section 112(a) of the NWPA such as hydrology, geophysics, seismic
activity, and proximity to water supplies and populations.
The sequence in which the suitability criteria are presented in the
proposed rule generally corresponds to the process of water flow
presented above. In general, the criteria can be thought of as building
blocks; each criterion in the sequence is evaluated on its own, with
the results of that evaluation incorporated into the evaluation of the
succeeding criteria, and so on until the final analysis. As the site
characterization program evolves, DOE may refine these process models
to better reflect and assess the processes pertinent to performance of
a geologic repository at the Yucca Mountain site. It is possible that
the processes, as well as the design selected, could dictate other ways
to arrange the information included under the individual criteria.
While the individual components of the process models may vary
according to improvements in data and information, DOE's resultant
suitability
[[Page 67082]]
determination would be based on an evaluation of each of the
postclosure suitability criteria.
The criteria are separated into two categories. The first category,
presented in section 963.17(a), represent those criteria important to
the total system performance assessment without accounting for
disruptive processes and events that could impact that performance. The
second category, presented in section 963.17(b), are those criteria
representing disruptive processes and events that could adversely
affect the characteristics of the repository system, and consequently
release radionuclides to the human environment. Each criterion in the
first category is linked to a specific TSPA model component that will
be used to evaluate the performance of that criterion. Each criterion
in the second category is generally treated as an effect imposed on the
system at a time that reflects the probability of occurrence of the
disruptive event.
Under section 963.17(a), the first and a fundamental criterion that
will be modeled to assess performance of a repository at the Yucca
Mountain site is the representation of pertinent site characteristics.
The criterion of site characteristics includes: (a) The geologic
properties of the site--for example, stratigraphy, rock type and
physical properties, and structural characteristics; (b) the hydrologic
properties of the site--for example, porosity, permeability, moisture
content, saturation, and potentiometric characteristics; (c) the
geophysical properties of the site--for example, thermal properties,
densities, velocities and water contents, as measured or deduced from
geophysical logs, and (d) the geochemical properties of the site--for
example, precipitation, dissolution characteristics, and sorption
properties of mineral and rock surfaces. Together, as reflected in the
performance assessment, these characteristics enable a representative
simulation of the behavior of a geologic repository at the Yucca
Mountain site.
The second criterion, unsaturated zone flow characteristics,
relates to the processes affecting the limitations and amount of water
entering the unsaturated zone above the repository and contacting
wastes in the repository. Unsaturated zone flow characteristics
include: (a) Climate--for example, precipitation and postulated future
climatic conditions; (b) infiltration--for example, precipitation
entering the mountain in excess of water returned to the atmosphere by
evaporation and plant transpiration; (c) unsaturated-zone flux--for
example, water movement through the pore spaces, or flowing along
fractures or through perched water zones above the repository; and (d)
seepage--for example, water dripping into the underground repository
openings from the surrounding rock. Together, the first and second
criteria define the temporal and spatial distribution of water flow
through the unsaturated zone above the water table at Yucca Mountain,
and the temporal and spatial distribution of water seepages into the
underground openings of the repository.
The third criterion, near field environment characteristics, also
relates to processes important to limiting the amount of water that
could contact wastes. This criterion includes: (a) Thermal hydrology--
for example, effects of heat from the waste on water flow through the
site, and the temperature and humidity at the engineered barriers; and,
(b) near-field geochemical environment--for example, the chemical
reactions and products resulting from water contacting the waste and
the engineered barriers materials. The thermal regime generated by the
decay of the radioactive wastes can mobilize water over the first
hundreds to thousands of years. For these reasons, the amount of water
flowing in the rock and seeping into drifts is expected to vary with
time.
The fourth criterion, engineered barrier system degradation
characteristics, relates to the processes important to long waste
package lifetimes. This criterion includes: (a) engineered barrier
system component performance--for example, drip shields, backfill,
coatings, or chemical modifications; and (b) waste package
degradation--for example, the corrosion of the waste package materials
within the near-field repository environment. This criterion and the
first criterion, site characteristics, define the spatial and temporal
distribution of the time periods when waste packages are expected to
breach. The thermal, hydrologic, and geochemical processes acting on
the waste package surface are the most important environmental factors
affecting the waste package lifetime. In addition, the degradation
characteristics of the waste package materials significantly impact the
timing of waste package breaches.
The fifth criterion, waste form degradation characteristics,
addresses the initial aspects of low rate of release of radionuclides.
This criterion includes: (a) cladding degradation--for example,
corrosion or break-down of the cladding on the individual spent fuel
pellets; and, (b) waste form dissolution--for example, the ability of
individual radionuclides to dissolve in water penetrating breached
waste packages. This criterion is important to understanding how and in
what manner the waste forms will break down, permitting the release of
radionuclides to the immediately surrounding environment.
The sixth criterion, engineered barrier system degradation, flow,
and transport characteristics, addresses the processes important to the
manner in which radionuclides can begin to move outward once the
engineered barrier system has been degraded. This criterion includes :
(a) colloid formation and stability--for example, the formation of
colloidal particles and the ability of radionuclides to adhere to these
particles as they may be washed through the remaining barriers; and (b)
engineered barrier transport--for example, the movement of
radionuclides dissolved in water or adhering to colloidal particles to
be transported through the remaining engineered barriers and in the
underlying unsaturated zone. This criterion and the first criterion,
site characteristics, lead to a determination of the spatial and
temporal distribution of the mass of radioactive wastes released from
the waste packages. Each characteristic depends on the thermal,
hydrologic, and geochemical conditions inside the waste package, which
change with time.
The next two criteria--unsaturated zone flow and transport
characteristics (criterion seven), and saturated zone flow and
transport characteristics (criterion eight)--relate to processes
important to radionuclide concentration reduction during transport. To
assess the movement of radionuclides away from the degraded engineered
barrier system, the first important process to understand is the
unsaturated zone flow characteristics in combination with the
unsaturated zone transport characteristics. The unsaturated zone flow
and transport characteristics criterion includes: (a) unsaturated-zone
transport--for example, the movement of water with dissolved
radionuclides or colloidal particles through the unsaturated zone
underlying the repository, including retardation mechanisms such as
sorption on rock or mineral surfaces; and (b) thermal hydrology--for
example, effects of heat from the waste on water flow through the site.
The next criterion, saturated zone flow and transport characteristics,
addresses similar radionuclide transport processes, only in the
saturated zone. This criterion includes: (a) saturated zone transport--
for example, the movement of water with dissolved
[[Page 67083]]
radionuclides or colloidal particles through the saturated zone
underlying and beyond the repository, including retardation mechanisms
such as sorption on rock or mineral surfaces; and (b) dilution--for
example, diffusion of radionuclides into pore spaces, dispersion of
radionuclides along flow paths, and mixing with non-contaminated ground
water.
The ninth criterion, biosphere characteristics, addresses the
characteristics that describe the lifestyle and habits of individuals
who potentially could be exposed to radioactive material at a future
time. Because of the difficulty in predicting the lifestyles and habits
of future generations, such assessments are to be based on
representative current conditions. Both the EPA and the NRC have
proposed rules that would require DOE to apply current conditions in
assessments of the reference biosphere. This criterion includes: (a) a
reference biosphere and receptor defined, for example, by considering
pathways, location and behavior representative of current conditions;
and (b) biosphere transport and uptake--for example, the consumption of
ground or surface waters through direct extraction or agriculture,
including mixing with non-contaminated waters and exposure to
contaminated agricultural products.
Together, the criteria of unsaturated zone flow and transport
characteristics, saturated zone flow and transport characteristics, and
biosphere characteristics, address the spatial and temporal variations
of radionuclide concentrations in ground water. The ground water
concentration ultimately yields the mass of radionuclides that may be
ingested or inhaled by individuals exposed to that ground water, which
in turn leads to a level of radiological dose or risk associated with
that potential exposure. The concentration depends on both the mass
release rate of the radionuclides as well as the volumetric flux of
water along the different pathways in the different components.
Section 963.17(b) presents four final criteria (separately
enumerated from section 963.17(a)) under the category of disruptive
processes and events. These criteria relate to disruptive processes and
events that could potentially release radionuclides directly to the
human environment, or otherwise adversely affect the characteristics of
the system. The criteria pertinent to assessing repository performance
relative to this attribute include: (1) Volcanism--for example, the
probability and potential consequences of a volcanic eruption
intersecting the repository; (2) seismic events--for example, the
probability and potential consequences of a earthquake on the
underground facilities or hydrologic system; and (3) nuclear
criticality--for example, the probability and potential consequences of
a self-sustaining nuclear reaction as a result of chemical or physical
processes affecting the waste either in or after release from breached
waste packages.
The last of the four disruptive processes and events criteria,
inadvertent human intrusion, is a special criterion to be applied and
assessed in its own performance assessment. Although characterization
of the Yucca Mountain site and region indicates that it is not a likely
choice for future exploration for natural resources, the NRC has
identified the examination of a human intrusion scenario through
drilling as a requirement for a TSPA in its proposed part 63.
Accordingly, inadvertent human intrusion--for example, consequences to
repository system performance following a stylized human intrusion
scenario, is included in the criteria for disruptive processes and
events, although it will be treated in a separate performance
assessment. In making its suitability determination, DOE would apply
the regulatory concept for human intrusion applicable at that time.
VII. Opportunity for Public Comment
A. Participation in Rulemaking
Interested persons are invited to participate in this proposed
rulemaking by submitting written data, views, or comments with respect
to the subject set forth in this notice. The Department encourages the
maximum level of public participation possible in this rulemaking.
Individuals, coalitions, states or other government entities, and
others are urged to submit written comments on the proposal.
B. Written Comment Procedures
The DOE invites public comments on the proposed rule. Written
comments should be identified on the outside of the envelope, and on
the comments themselves, with the designation: ``Site Characterization
Suitability Criteria NOPR, Docket Number [RW-RM-99-963]'' and must be
received by the date specified at the beginning of this notice in order
to be considered. In the event any person wishing to submit written
comments cannot provide them directly, alternative arrangements can be
made by calling [(800) 967-3477]. All comments received on or before
the date specified at the beginning of this notice and other relevant
information will be considered by the DOE before final action is taken
on the proposed rule. All comments submitted will be available for
examination in the Rule Docket File in the Yucca Mountain Science
Center in Las Vegas, Nevada, and the DOE's Freedom of Information
Reading Room. Pursuant to the provisions of 10 CFR 1004.11, any person
submitting information or data that is believed to be confidential, and
which may be exempt by law from public disclosure, should submit one
complete copy, as well as two copies from which the information
considered confidential has been deleted. The Department of Energy will
make its own determination of any such claim and treat it according to
its determination.
C. Hearing Procedures
At the beginning of this notice, DOE indicated that there would be
a separate Federal Register Notice informing the public of the time and
location of the public hearings on this supplemental notice of proposed
rulemaking. For obvious reasons, DOE will hold these hearings in the
vicinity of Yucca Mountain because nearby residents would be especially
impacted by the location of a nuclear waste repository at Yucca
Mountain. These hearings will not be trial-type evidentiary hearings
that require a lawyer. They will be informal, and DOE intends to use a
facilitator in an effort to ensure they are fair and productive.
DOE is considering a format wherein DOE officials would make a
presentation that summarizes the supplemental notice of proposed
rulemaking, and members of the public would have the opportunity to
make oral comments. Prior to or following the hearing, DOE officials
may be available to answer technical questions about the proposed
regulation articulated in this notice. However, the DOE officials could
not make any commitments about the final rule, and in some instances,
they might be limited to taking the oral comments under advisement. In
fairness to all commenters, decisions about the final rule must await
the close of the comment period and consideration by DOE senior policy
makers.
VIII. Regulatory Review
A. Review for Compliance with the National Environmental Policy Act
(NEPA)
The issuance of these amendments to the guidelines is a preliminary
decision-making activity pursuant to subsection 112(d) and 113(d) of
the Act and therefore does not require the preparation of an
environmental impact statement pursuant to subsection
[[Page 67084]]
102(2)(C) of the NEPA or any other environmental review under
subsection 102(2)(E) or (F) of the NEPA.
B. Review under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., was enacted
by Congress to ensure that a substantial number of small entities do
not unnecessarily face significant negative economic impact as a result
of Government regulations. The DOE certifies that the rule amending the
guidelines will not have a significant impact on a substantial number
of small entities. The final rule will not regulate or otherwise
economically burden anyone outside of the DOE. It merely articulates
considerations for the Secretary of Energy to use in determining
whether the Yucca Mountain site is suitable for development as a
repository. Moreover, in response to the initial notice of proposed
rulemaking , a few entities who commented were small entities, and none
of them identified economic burdens that the proposed regulations would
impose. Accordingly, no regulatory flexibility analysis is required
under the Regulatory Flexibility Act.
C. Review under the Paperwork Reduction Act
The DOE has determined that this rule, as proposed, contains no new
or amended record keeping, reporting, or application requirements, or
any other type of information collection requirements subject to the
Paperwork Reduction Act (Pub. L. No. 96-511).
D. Review under Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-4)
generally requires Federal agencies to closely examine the impacts of
regulatory actions on State, local, and tribal governments. Subsection
101(5) of Title I of that law defines a Federal intergovernmental
mandate to include any regulation that would impose an enforceable duty
upon State, local, or tribal governments, except, among other things, a
condition of Federal assistance or a duty arising from participating in
a voluntary federal program. Title II of that law requires each Federal
agency to assess the effects of Federal regulatory actions on State,
local, and tribal governments, in the aggregate, or to the private
sector, other than to the extent such actions merely incorporate
requirements specifically set forth in a statute. Section 202 of that
title requires a Federal agency to perform a detailed assessment of the
anticipated costs and benefits of any rule that includes a Federal
mandate which may result in costs to State, local, or tribal
governments, or to the private sector, of $100 million or more. Section
204 of that title requires each agency that proposes a rule containing
a significant Federal intergovernmental mandate to develop an effective
process for obtaining meaningful and timely input from elected officers
of State, local, and tribal governments.
This rule, as proposed, is not likely to result in any Federal
mandate that may result in the expenditure by State, local, and tribal
governments in the aggregate, or by the private sector, of $100 million
or more in any one year. Further, the guidelines in 10 CFR part 960,
the proposed amendments to part 960 and the proposed part 963 largely
incorporate requirements specifically provided in Sections 112 and 113
of the Act. Moreover, Sections 112, 113 and 114 of the Act provide for
meaningful and timely input from elected officials of State, local and
tribal governments. Accordingly, no assessment or analysis is required
under the Unfunded Mandates Reform Act of 1995.
E. Review under Executive Order 12612
Executive Order 12612, 52 FR 41685, requires that regulations,
rules, legislation, and any other policy actions be reviewed for any
substantial direct effect on States, on the relationship between the
Federal government and the States, or in the distribution of power and
responsibilities among various levels of government. If there are
substantial effects, then the Executive Order requires a preparation of
a Federalism assessment to be used in all decisions involved in
promulgating and implementing policy action.
The rule, as proposed in this notice, will not have a substantial
direct effect on the institutional interests or traditional functions
of the States. Accordingly, no assessment or analysis is required under
Executive Order 12612.
F. Review under Executive Order 12866
Section 1 of Executive Order 12866 (``Regulatory Planning and
Review''), 58 FR 51735, establishes a philosophy and principles for
Federal agencies to follow in promulgating regulations. Section 1(b)(9)
of that Order provides: ``Wherever feasible, agencies shall seek views
of appropriate State, local, and tribal officials before imposing
regulatory requirements that might significantly or uniquely affect
those governmental entities. Each agency shall assess the effects of
Federal regulations on State, local, and tribal governments, including
specifically the availability of resources to carry out those mandates,
and seek to minimize those burdens that uniquely or significantly
affect such governmental entities, consistent with achieving regulatory
objectives. In addition, agencies shall seek to harmonize Federal
regulatory actions with regulated State, local and tribal regulatory
and other governmental functions.''
Section 6 of Executive Order 12866 provides for a review by the
Office of Information and Regulatory Affairs (OIRA) of a ``significant
regulatory action,'' which is defined to include an action that may
have an effect on the economy of $100 million or more, or adversely
affect, in a material way, the economy, competition, jobs,
productivity, the environment, public health or safety, or State,
local, or tribal governments. The Department has concluded that this
proposed rule is a significant regulatory action that requires a review
by the OIRA. DOE submitted this rule for OIRA clearance, and OIRA has
completed its review.
G. Review under Executive Order 12875
Executive Order 12875 (``Enhancing Intergovernmental
Partnership''), provides for reduction or mitigation, to the extent
allowed by law, of the burden on State, local and tribal governments of
unfunded Federal mandates not required by statute. The analysis under
the Unfunded Mandates Reform Act of 1995, above, satisfies the
requirements of Executive Order 12875. Accordingly, no further analysis
is required under Executive Order 12875.
H. Review under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting
[[Page 67085]]
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in section 3(a) and section 3(b) to
determine whether they are met or it is unreasonable to meet one or
more of them. The DOE has completed the required review and determined
that, to the extent permitted by law, the rule, as proposed, meets the
relevant standards of Executive Order 12988.
I. Review under Executive Order 13084
Under Executive Order 13084, ``Consultation and Coordination with
Indian Tribal Governments,'' DOE may not issue a discretionary rule
that significantly or uniquely affects Indian tribal governments and
imposes substantial direct compliance costs. This proposed rulemaking
would not have such effects. Accordingly, Executive Order 13084 does
not apply to this rulemaking.
J. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Public Law 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule or policy that may
affect family well-being. Today's proposal would not have any impact on
the autonomy or integrity of the family as an institution. Accordingly,
DOE has concluded that it is not necessary to prepare a Family
Policymaking Assessment.
List of Subjects in 10 CFR Parts 960 and 963
Environmental protection, Geologic repositories, Nuclear energy,
Nuclear materials, Radiation protection, Waste disposal.
Issued in Washington, D.C. on November 19, 1999.
Lake H. Barrett,
Acting Director, Office of Civilian Radioactive Waste Management.
For the reasons stated in the preamble, DOE hereby proposes to
amend part 960, and to add a new part 963 to, Chapter II of Title 10 of
the Code of Federal Regulations as follows:
PART 960--GENERAL GUIDELINES FOR THE PRELIMINARY SCREENING OF
POTENTIAL SITES FOR A NUCLEAR WASTE REPOSITORY
1. The authority for 10 CFR part 960 is revised to read as follows:
Authority: 42 U.S.C. 2011, et seq., 42 U.S.C. 7101, et seq., 42
U.S.C. 10101. et seq.
2. The part heading for Part 960 is revised to read as set forth
above:
Sec. 960.1 [Amended]
3. Section 960.1 is amended by removing the phrase ``for the
development of repositories'' from the first sentence and removing the
phrase ``and any preliminary suitability determinations required by
Section 114(f)'' from the second sentence.
4. Section 960.2 is amended by revising the definitions of ``Act,''
``Application'' and ``Determination'' to read as follows:
Sec. 960.2 Definitions.
* * * * *
Act means the Nuclear Waste Policy Act of 1982, as amended.
* * * * *
Application means the act of making a finding of compliance or
noncompliance with the qualifying or disqualifying conditions specified
in the guidelines of subparts C and D of this part.
* * * * *
Determination means a decision by the Secretary that a site is
suitable for site characterization for the selection of a repository,
consistent with applications of the guidelines of subparts C and D of
this part in accordance with the provisions set forth in subpart B of
this part.
* * * * *
Sec. 960.3 [Amended]
5. Section 960.3 is amended by removing the phrase ``for the
development of repositories'' from the first sentence.
Sec. 960.3-1-4-4 [Removed]
6. Section 960.3-1-4-4 is removed.
7. Section 960.3-1-5 is revised to read as follows:
Sec. 960.3-1-5 Basis for site evaluations.
(a) Evaluations of individual sites and comparisons between and
among sites shall be based on the postclosure and preclosure guidelines
specified in subparts C and D of this part, respectively. Except for
screening for potentially acceptable sites as specified in Sec. 960.3-
2-1, such evaluations shall place primary significance on the
postclosure guidelines and secondary significance on the preclosure
guidelines, with each set of guidelines considered collectively for
such purposes. Both the postclosure and the preclosure guidelines
consist of a system guideline or guidelines and corresponding groups of
technical guidelines.
(b) The postclosure guidelines of subpart C of this part contain
eight technical guidelines in one group. The preclosure guidelines of
subpart D of this part contain eleven technical guidelines separated
into three groups that represent, in decreasing order of importance,
preclosure radiological safety; environment, socioeconomics, and
transportation; and ease and cost of siting, construction, operation,
and closure.
(c) The relative significance of any technical guideline to its
corresponding system guideline is site specific. Therefore, for each
technical guideline, an evaluation of compliance with the qualifying
condition shall be made in the context of the collection of system
elements and the evidence related to that guideline, considering on
balance the favorable conditions and the potentially adverse conditions
identified at a site. Similarly, for each system guideline, such
evaluation shall be made in the context of the group of technical
guidelines and the evidence related to that system guideline.
(d) For purposes of recommending sites for development as
repositories, such evidence shall include analyses of expected
repository performance to assess the likelihood of demonstrating
compliance with 40 CFR part 191 and 10 CFR part 60, in accordance with
Sec. 960.4-1. A site shall be disqualified at any time during the
siting process if the evidence supports a finding by the DOE that a
disqualifying condition exists or the qualifying condition of any
system or technical guideline cannot be met.
(e) Comparisons between and among sites shall be based on the
system guidelines, to the extent practicable and in accordance with the
levels of relative significance specified above for the postclosure and
the preclosure guidelines. Such comparisons are intended to allow
comparative evaluations of sites in terms of the capabilities of the
natural barriers for waste isolation and to identify innate
deficiencies that could jeopardize compliance with such requirements.
If the evidence for the sites is not adequate to substantiate such
comparisons, then the comparisons shall be based on the groups of
technical guidelines under the postclosure and the preclosure
guidelines, considering the levels of relative significance appropriate
to the
[[Page 67086]]
postclosure and the preclosure guidelines and the order of importance
appropriate to the subordinate groups within the preclosure guidelines.
Comparative site evaluations shall place primary importance on the
natural barriers of the site. In such evaluations for the postclosure
guidelines of subpart C of this part, engineered barriers shall be
considered only to the extent necessary to obtain realistic source
terms for comparative site evaluations based on the sensitivity of the
natural barriers to such realistic engineered barriers. For a better
understanding of the potential effects of engineered barriers on the
overall performance of the repository system, these comparative
evaluations shall consider a range of levels in the performance of the
engineered barriers. That range of performance levels shall vary by at
least a factor of 10 above and below the engineered-barrier performance
requirements set forth in 10 CFR 60.113, and the range considered shall
be identical for all sites compared. The comparisons shall assume
equivalent engineered barrier performance for all sites compared and
shall be structured so that engineered barriers are not relied upon to
compensate for deficiencies in the geologic media. Furthermore,
engineered barriers shall not be used to compensate for an inadequate
site; mask the innate deficiencies of a site; disguise the strengths
and weaknesses of a site and the overall system; and mask differences
between sites when they are compared. Releases of different
radionuclides shall be combined by the methods specified in appendix A
of 40 CFR part 191.
(f) The comparisons specified above shall consist of two
comparative evaluations that predict radionuclide releases for 100,000
years after repository closure and shall be conducted as follows.
First, the sites shall be compared by means of evaluations that
emphasize the performance of the natural barriers at the site. Second,
the sites shall be compared by means of evaluations that emphasize the
performance of the total repository system. These second evaluations
shall consider the expected performance of the repository system; be
based on the expected performance of waste packages and waste forms, in
compliance with the requirements of 10 CFR 60.113, and on the expected
hydrological and geochemical conditions at each site; and take credit
for the expected performance of all other engineered components of the
repository system. The comparison of isolation capability shall be one
of the significant considerations in the recommendation of sites for
the development of repositories. The first of the two comparative
evaluations specified in the preceding paragraph shall take precedence
unless the second comparative evaluation would lead to substantially
different recommendations. In the latter case, the two comparative
evaluations shall receive comparable consideration. Sites with
predicted isolation capabilities that differ by less than a factor of
10, with similar uncertainties, may be assumed to provide equivalent
isolation.
8. In section 960.3-2, the last sentence is revised to read as
follows:
Sec. 960.3-2 Siting process.
* * * The recommendation of sites as candidate sites for
characterization shall be accomplished in accordance with the
requirements specified in Sec. 960.3-2-3.
Sec. 960.3-2-4 [Removed]
9. Section 960.3-2-4 is removed.
Appendix III to Part 960 [Amended]
10. Appendix III to Part 960 is amended as follows:
In paragraph 1, introductory text, first sentence, revise the
phrase ``the ``principal to read acertain''
In paragraph 1, remove the definition (decision point) for
``Repository Site Selection.''
In paragraph 2, remove the definition for the numeral ``4'' and
paragraphs ``(a)'' and ``(b)'' which follow.
In the table, Findings Resulting From the Application of the
Qualifying and Disqualifying Conditions of the Technical Guidelines at
Major Siting Decisions, remove the column heading and corresponding
entries for ``Repository Site Selection'' under the heading ``Siting
Decision.''
4. New part 963 is added to read as follows:
PART 963--YUCCA MOUNTAIN SITE SUITABILITY GUIDELINES
Subpart A--General Provisions
963.1 Purpose.
963.2 Definitions.
Subpart B--Site Suitability Determination, Methods and Criteria
963.10 Scope.
963.11 Suitability determination.
963.12 Preclosure suitability determination.
963.13 Preclosure suitability evaluation method.
963.14 Preclosure suitability criteria.
963.15 Postclosure suitability determination.
963.16 Postclosure suitability evaluation method.
963.17 Postclosure suitability criteria.
Authority: 42 U.S.C. 2011 et seq.; 42 U.S.C. 7101 et seq.; 42
U.S.C. 10101, et seq.
Subpart A--General Provisions
Sec. 963.1 Purpose.
(a) The purpose of this part is to establish DOE methods and
criteria for determining the suitability of the Yucca Mountain site for
the location of a geologic repository. DOE will use these methods and
criteria in analyzing the data from the site characterization
activities required under section 113 of the Nuclear Waste Policy Act.
(b) This part does not address other information that must be
considered and submitted to the President, and made available to the
public, by the Secretary under section 114 of the Nuclear Waste Policy
Act if the Yucca Mountain site is recommended for development as a
geologic repository.
Sec. 963.2 Definitions.
For purposes of this Part:
Barrier means any material, structure or process that prevents or
substantially delays the movement of water or radionuclides.
Cladding means the corrosion-resistant material, typically a
zirconium alloy, that binds and contains the nuclear fuel material in
individual fuel pellets.
Closure means the final closing of the remaining open operational
areas of the underground facility and boreholes after termination of
waste emplacement, culminating in the sealing of shafts and ramps,
except those openings that may be designed for ventilation or
monitoring.
Colloid means any fine-grained material in suspension, or any such
material that can be easily suspended.
Criteria means the characterizing traits relevant to assessing the
performance of a geologic repository, as defined by this section, at
the Yucca Mountain site.
Design means a description of the engineered structures, systems,
components and equipment of a geologic repository at Yucca Mountain
that includes the engineered barrier system.
Design basis event means:
(1) Those natural and human-induced events that are expected to
occur one or more times before permanent closure; or
(2) Other natural and human-induced events that have at least one
chance in 10,000 of occurring before permanent closure.
DOE means the U.S. Department of Energy, or its duly authorized
representatives.
Engineered barrier system means the waste packages and the
underground facilities.
Expected means assumed to be probable on the basis of existing
[[Page 67087]]
evidence and in the absence of significant evidence to the contrary.
Geologic repository means a system that is intended to be used for,
or may be used for, the disposal of radioactive wastes in excavated
geologic media including the engineered barrier system and the portion
of the geologic setting that provides isolation of the radioactive
waste.
Geologic setting means geologic, hydrologic, and geochemical system
of the region in which a geologic repository operations area at Yucca
Mountain is or may be located.
Infiltration means the flow of a fluid into a solid substance
through pores or small openings; specifically, the movement of water
into soil and fractured or porous rock.
Near-field means the region where the adjacent natural
geohydrologic system has been significantly impacted by the excavation
of the repository and the emplacement of the waste.
NRC means the U.S. Nuclear Regulatory Commission or its duly
authorized representatives.
Perched water means ground water of limited lateral extent
separated from an underlying body of ground water by an unsaturated
zone.
Preclosure or preclosure period means the period of time before and
during closure of the geologic repository.
Preclosure safety evaluation means a preliminary assessment of the
adequacy of repository support facilities to prevent or mitigate the
effects of postulated design basis events (including fire, radiation,
criticality, and chemical hazards), and the site, structures, systems,
components, equipment, and operator actions that would be relied on for
safety.
Postclosure means the period of time after the closure of the
geologic repository.
Radioactive waste means high-level radioactive waste and other
radioactive materials, including spent nuclear fuel, that are received
for emplacement in the geologic repository.
Reference biosphere means the description of the environment,
inhabited by the receptor, comprising the set of specific biotic and
abiotic characteristics of the environment, including, but not limited
to, climate, topography, soils, flora, fauna, and human activities.
Repository support facilities means all permanent facilities
constructed in support of site characterization activities and
repository construction, operation, and closure activities, including
surface structures, utility lines, roads, railroads, and similar
facilities, but excluding the underground facility.
Seepage means the inflow of ground water moving in fractures or
pore spaces of permeable rock to an open space in the rock such as an
excavated drift.
Sensitivity study means an analytic or numerical technique for
examining the effects on outcomes, such as radionuclide releases, of
varying specified parameters, such as the infiltration rate due to
precipitation, when a model run is performed.
Site characterization means activities, whether in the laboratory
or in the field, undertaken to establish the geologic conditions and
the ranges of the parameters of a candidate site relevant to the
location of a repository, including borings, surface excavations,
excavations of exploratory shafts, limited subsurface lateral
excavations and borings, and in situ testing needed to evaluate the
suitability of a candidate site for the location of a repository, but
not including preliminary borings and geophysical testing needed to
assess whether site characterization should be undertaken.
Surface facilities means repository support facilities within the
restricted area located on or above the ground surface.
System performance means the complete behavior of a geologic
repository system at Yucca Mountain in response to the conditions,
processes, and events that may affect it.
Total system performance assessment means a probabilistic analysis
that is used to:
(1) Identify the features, events and processes that might affect
the performance of the geologic repository;
(2) Examine the effects of such features, events, and processes on
the performance of the geologic repository; and
(3) Estimate the expected annual dose to the receptor as a result
of releases from the geologic repository.
Underground facility means the underground structure, backfill
materials, if any, and openings that penetrate the underground
structure (e.g., ramps, shafts and boreholes, including their seals)
Waste is synonymous with ``radioactive waste.''
Waste form means the radioactive waste materials and any
encapsulating or stabilizing matrix.
Waste package means the waste form and any containers, shielding,
packing, and other absorbent materials immediately surrounding an
individual waste container.
Yucca Mountain site means the candidate site in the State of Nevada
recommended by the Secretary to the President under section
112(b)(1)(B) of the Nuclear Waste Policy Act of 1982 (NWPA) [42 U.S.C.
1032(b)(1)(B)] on May 27, 1986.
Subpart B--Site Suitability Determination, Methods, and Criteria
Sec. 963.10 Scope.
(a) The scope of this subpart includes the following for both the
preclosure and postclosure periods:
(1) The bases for the suitability determination for the Yucca
Mountain site as a location for a geologic repository;
(2) The suitability evaluation methods for applying the site
suitability criteria to a geologic repository at the Yucca Mountain
site; and
(3) The site suitability criteria that DOE will apply in accordance
with section 113(b)(1)(A)(iv) of the NWPA.
(b) DOE will seek NRC concurrence on any future revisions to this
subpart.
Sec. 963.11 Suitability determination.
DOE will evaluate whether the Yucca Mountain site is suitable for
the location of a geologic repository on the basis of the preclosure
and postclosure determinations described in Secs. 963.12 and 963.15. If
DOE's evaluation of the Yucca Mountain site for the location of a
geologic repository under Secs. 963.12 and 963.15 shows that the
geologic repository is likely to meet the applicable radiation
protection standards for the preclosure and postclosure periods, then
DOE may determine that the site is a suitable location for the
development of such a repository.
Sec. 963.12 Preclosure suitability determination.
DOE will apply the method and criteria described in Secs. 963.13
and 963.14 to evaluate the suitability of the Yucca Mountain site for
the preclosure period. If DOE finds that the results of the preclosure
safety evaluation conducted under Sec. 963.13 show that the Yucca
Mountain site is likely to meet the applicable radiation protection
standard, DOE may determine the site suitable for the preclosure
period.
Sec. 963.13 Preclosure suitability evaluation method.
(a) DOE will evaluate preclosure suitability using a preclosure
safety evaluation method. DOE will evaluate the performance of the
geologic repository at the Yucca Mountain site using the method
described in paragraph (b) of this section and the criteria in
Sec. 963.14. DOE will consider the performance of the system in terms
[[Page 67088]]
of the criteria to evaluate whether the geologic repository is likely
to comply with the applicable radiation protection standard.
(b) The preclosure safety evaluation method, using preliminary
engineering specifications, will assess the adequacy of the repository
facilities to perform their intended functions and prevent or mitigate
the effects of postulated design basis events that are deemed
sufficiently credible to warrant consideration. The preclosure safety
evaluation will consider:
(1) A preliminary description of the site characteristics, the
surface facilities and the underground operating facilities;
(2) A preliminary description of the design bases for the operating
facilities and a preliminary description of any associated limits on
operation;
(3) A preliminary description of potential hazards, event
sequences, and their consequences; and
(4) A preliminary description of the structures, systems,
components, equipment, and operator actions intended to mitigate or
prevent accidents.
Sec. 963.14 Preclosure suitability criteria.
DOE will evaluate preclosure suitability using the following
criteria:
(a) Ability to contain radioactive material and to limit releases
of radioactive materials;
(b) Ability to implement control and emergency systems to limit
exposure to radiation;
(c) Ability to maintain a system and components that perform their
intended safety functions; and
(d) Ability to preserve the option to retrieve wastes during the
preclosure period.
Sec. 963.15 Postclosure suitability determination.
DOE will apply the method and criteria described in Secs. 963.16
and 963.17 to evaluate the suitability of the Yucca Mountain site for
the postclosure period. If DOE finds that the results of the total
system performance assessments conducted under Sec. 963.16 show that
the Yucca Mountain site is likely to meet the applicable radiation
protection standard, DOE may determine the site suitable for the
postclosure period.
Sec. 963.16 Postclosure suitability evaluation method.
(a) DOE will evaluate postclosure suitability using the total
system performance assessment method. DOE will conduct a total system
performance assessment to evaluate the ability of the geologic
repository to meet the applicable radiation protection standard under
the following circumstances:
(1) DOE will conduct a total system performance assessment to
evaluate the ability of the geologic repository to limit radiological
exposures in the case where there is no human intrusion into the
repository. DOE will model the performance of the geologic repository
at the Yucca Mountain site using the method described in paragraph (b)
of this section and the criteria in Sec. 963.17, excluding the
criterion in paragraph (b)(4) of Sec. 963.17. DOE will consider the
performance of the system in terms of the criteria to evaluate whether
the geologic repository is likely to comply with the applicable
radiation protection standard.
(2) Consistent with applicable NRC regulations regarding a stylized
human intrusion case, DOE will conduct a total system performance
assessment to evaluate the ability of the geologic repository to limit
radiological exposures in a stylized limited human intrusion case. DOE
will model the performance of the geologic repository at the Yucca
Mountain site using the method described in paragraph (b) of this
section and the criteria in Sec. 963.17. DOE will consider the
performance of the system in terms of the criteria to evaluate whether
the geologic repository is likely to comply with the applicable
radiation protection standard. The human intrusion evaluation under
this paragraph will be separate from the evaluation conducted under
paragraph (a)(1) of this section.
(b) In conducting a total system performance assessment under this
section, DOE will:
(1) Include data related to the suitability criteria in
Sec. 963.17;
(2) Account for uncertainties and variabilities in parameter values
and provide the technical basis for parameter ranges, probability
distributions, and bounding values;
(3) Consider alternative models of features and processes that are
consistent with available data and current scientific understanding,
and evaluate the effects that alternative models would have on the
estimated performance of the geologic repository;
(4) Consider only events that have at least one chance in 10,000 of
occurring over 10,000 years;
(5) Provide the technical basis for either inclusion or exclusion
of specific features, events, and processes of the geologic setting,
including appropriate details as to magnitude and timing regarding any
exclusions that would significantly change the expected annual dose;
(6) Provide the technical basis for either inclusion or exclusion
of degradation, deterioration, or alteration processes of engineered
barriers, including those processes that would adversely affect natural
barriers, (such as degradation of concrete liners affecting the pH of
ground water or precipitation of minerals due to heat changing
hydrologic processes), including appropriate details as to magnitude
and timing regarding any exclusions that would significantly change the
expected annual dose;
(7) Provide the technical basis for models used in the total
systems performance assessment such as comparisons made with outputs of
detailed process-level models and/or empirical observations (for
example, laboratory testing, field investigations, and natural
analogs);
(8) Identify natural features of the geologic setting and design
features of the engineered barrier system important to isolating
radioactive waste;
(9) Describe the capability of the natural and engineered barriers
important to isolating radioactive waste, taking into account
uncertainties in characterizing and modeling such barriers;
(10) Provide the technical basis for the description of the
capability of the natural and engineered barriers important to
isolating radioactive waste;
(11) Use the reference biosphere and group receptor assumptions
specified in applicable NRC regulations; and
(12) Conduct appropriate sensitivity studies.
Sec. 963.17 Postclosure suitability criteria.
(a) DOE will evaluate the postclosure suitability of a geologic
repository at the Yucca Mountian site through suitability criteria that
reflect both the processes and the models used to simulate those
processes, that are important to the total system performance of the
geologic repository. The applicable criteria are:
(1) Site characteristics, which include:
(i) Geologic properties of the site--for example, stratigraphy,
rock type and physical properties, and structural characteristics;
(ii) Hydrologic properties of the site--for example, porosity,
permeability, moisture content, saturation, and potentiometric
characteristics;
(iii) Geophysical properties of the site--for example, densities,
velocities and water contents, as measured or deduced from geophysical
logs; and
(iv) Geochemical properties of the site--for example,
precipitation, dissolution characteristics, and sorption properties of
mineral and rock surfaces.
[[Page 67089]]
(2) Unsaturated zone flow characteristics, which include:
(i) Climate--for example, precipitation and postulated future
climatic conditions;
(ii) Infiltration--for example, precipitation entering the mountain
in excess of water returned to the atmosphere by evaporation and plant
transpiration;
(iii) Unsaturated zone flux--for example, water movement through
the pore spaces, or flowing along fractures or through perched water
zones above the repository;
(iv) Seepage--for example, water dripping into the underground
repository openings from the surrounding rock;
(3) Near field environment characteristics, which include:
(i) Thermal hydrology--for example, effects of heat from the waste
on water flow through the site, and the temperature and humidity at the
engineered barriers.
(ii) Near field geochemical environment--for example, the chemical
reactions and products resulting from water contacting the waste and
the engineered barrier materials;
(4) Engineered barrier system degradation characteristics, which
include:
(i) Engineered barrier system component performance--for example,
drip shields, backfill, coatings, or chemical modifications, and
(ii) Waste package degradation--for example, the corrosion of the
waste package materials within the near-field environment;
(5) Waste from degradation characteristics, which include:
(i) Cladding degradation--for example, corrosion or break-down of
the cladding on the individual spent fuel pellets;
(ii) Waste from dissolution--for example, the ability of individual
radionuclides to dissolve in water penetrating breached waste packages;
(6) Engineered barrier system degradation, flow, and transport
characteristics, which include:
(i) Colloid formation and stability--for example, the formation of
colloidal particles and the ability of radionuclides to adhere to these
particles as they may be washed through the remaining barriers; and
(ii) Engineered barrier transport--for example, the movement of
radionuclides dissolved in water or adhering to colloidal particles to
be transported through the remaining engineered barriers and in the
underlying unsaturated zone;
(7) Unsaturated zone flow and transport characteristics, which
include:
(i) Unsaturated zone transport--for example, the movement of water
with dissolved radionuclides or colloidal particles through the
unsaturated zone underlying the repository, including retardation
mechanisms such as sorption on rock or mineral surfaces;
(ii) Thermal hydrology--for example, effects of heat from the waste
on water flow through the site;
(8) Saturated zone flow and transport characteristics, which
include:
(i) Saturated zone transport--for example, the movement of water
with dissolved radionuclides or colloidal particles through the
saturated zone underlying and beyond the repository, including
retardation mechanisms such as sorption on rock or mineral surfaces;
and
(ii) Dilution--for example, diffusion of radionuclides into pore
spaces, dispersion of radionuclides along flow paths, and mixing with
non-contaminated ground water;
(9) Biosphere characteristics, which include:
(i) Reference biosphere and receptor--for example, biosphere water
pathways, location and behavior of receptor; and
(ii) Biosphere transport and uptake--for example, the consumption
of ground or surface waters through direct extraction or agriculture,
including mixing with non-contaminated waters and exposure to
contaminated agricultural products.
(b) DOE will evaluate the postclosure suitability of a geologic
repository at the Yucca Mountain site using criteria that consider
disruptive processes and events important to the total system
performance of the geologic repository. The applicable criteria related
to disruptive processes and events include:
(1) Volcanism--for example, the probability and potential
consequences of a volcanic eruption intersecting the repository;
(2) Seismic events--for example, the probability and potential
consequences of an earthquake on the underground facilities or
hydrologic system;
(3) Nuclear criticality--for example, the probability and potential
consequences of a self-sustaining nuclear reaction as a result of
chemical or physical processes affecting the waste either in or after
release from breached waste packages;
(4) Inadvertent human intrusion--for example, consequences to
repository system performance following a stylized human intrusion
scenario.
[FR Doc. 99-30668 Filed 11-29-99; 8:45 am]
BILLING CODE 6450-01-P
