[Federal Register Volume 61, Number 242 (Monday, December 16, 1996)]
[Proposed Rules]
[Pages 66158-66169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31603]
[[Page 66157]]
_______________________________________________________________________
Part V
Department of Energy
_______________________________________________________________________
Office of Civilian Radioactive Waste Management
_______________________________________________________________________
10 CFR Part 960
General Guidelines for the Recommendation of Sites for Nuclear Waste
Repositories; Proposed Rule and Public Hearing
Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 /
Proposed Rules
[[Page 66158]]
DEPARTMENT OF ENERGY
Office of Civilian Radioactive Waste Management
10 CFR Part 960
General Guidelines for the Recommendation of Sites for Nuclear
Waste Repositories
AGENCY: Office of Civilian Radioactive Waste Management, Department of
Energy.
ACTION: Notice of proposed rulemaking and public hearing.
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SUMMARY: The Department of Energy, Office of Civilian Radioactive Waste
Management, today proposes to amend its General Guidelines for the
Recommendation of Sites for Nuclear Waste Repositories. The DOE is
proposing these amendments to clarify and focus the Guidelines to be
used in evaluating the suitability of the Yucca Mountain site in Nevada
for development as a repository. This proposal would provide that a
total system assessment of the performance of a proposed site-specific
repository design within the geologic setting of Yucca Mountain would
be compared to the applicable regulatory standards to determine whether
this site is suitable for development as a repository.
DATES: Written comments (8 copies and, if possible, a computer disk) on
the proposed rule must be received by the Department on or before
February 14, 1997. Oral views, data and arguments may be presented at a
public hearing which is scheduled for the afternoon (12:30 p.m. to 4:30
p.m.) and evening (6 p.m. until there are no longer persons requesting
an opportunity to speak) of January 23, 1997. Requests to speak at the
hearing should be submitted in writing or by telephone at (800) 967-
3477 to the Department no later than 4:30 P.M. on January 17, 1997. The
length of each oral presentation is limited to five minutes. The DOE
requests public comments only on the amendatory language in this notice
and will not consider comments on the current regulation in this
rulemaking proceeding.
ADDRESSES: Written comments (8 copies) and requests to speak at the
public hearing should be addressed to April V. Gil, U.S. Department of
Energy, Office of Civilian Radioactive Waste Management, Yucca Mountain
Site Characterization Office, PO Box 98608, Las Vegas, NV 89193-8608,
or provided by electronic mail to 10CFR960@notes.ymp.gov. The public
hearing will be held at the following location: University of Nevada,
Las Vegas, 4505 Maryland Parkway, Moyer Student Union, Second Level,
Lounge #201, Las Vegas, Nevada. Copies of transcripts from the hearing,
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) 586-6020, between the
hours of 8:30 a.m. and 4 p.m., Monday through Friday, except Federal
holidays. For more information concerning public participation in this
rulemaking see the ``Opportunity for Public Comment'' section of this
proposed rule.
FOR FURTHER INFORMATION CONTACT: April V. Gil, U.S. Department of
Energy, Office of Civilian Radioactive Waste Management, Yucca Mountain
Site Characterization Office, PO Box 98608, Las Vegas, NV 89193-8608,
(800) 967-3477.
SUPPLEMENTARY INFORMATION:
I. Background.
A. The Law.
B. Development and Application of the Guidelines.
II. Description of Proposed Action.
A. General Discussion.
B. Proposed Revisions.
III. References
IV. Opportunity for Public Comment.
A. Participation in Rulemaking.
B. Written Comment Procedures.
C. Public Hearing Procedures.
V. Compliance with the National Environmental Policy Act (NEPA).
VI. Review Under the Regulatory Flexibility Act.
VII. Review Under the Paperwork Reduction Act.
VIII. Review Under the Unfunded Mandates Reform Act.
IX. Review Under Executive Order 12612.
X. Review Under Executive Order 12866.
XI. Review Under Executive Order 12875.
XII. Review Under Executive Order 12988.
I. Background
A. The Law
The Nuclear Waste Policy Act of 1982 (hereinafter referred to as
the 1982 NWPA), signed into law on January 7, 1983, established a
Federal policy and the Department of Energy (DOE) responsibility for
the disposal of spent nuclear fuel and high-level radioactive waste in
geologic repositories. It established the Office of Civilian
Radioactive Waste Management (OCRWM) to carry out these DOE
responsibilities, subject to repository licensing by the Nuclear
Regulatory Commission (NRC) and environmental protection standards set
by the Environmental Protection Agency (EPA). The 1982 NWPA provided a
process and schedule for siting two mined geologic repositories, and
the statutory framework by which the DOE would screen, characterize,
and select candidate sites. Section 112, ``Recommendation of Candidate
Sites for Site Characterization,'' of the 1982 NWPA required the DOE to
establish general guidelines for recommendation of sites for
repositories (the Guidelines). Section 112(a) required the DOE to
``issue general guidelines for recommendation of sites for
repositories,'' following consultation with the Council on
Environmental Quality, the Administrator of the EPA, the Director of
the Geological Survey, interested Governors, and the concurrence of the
NRC. This section also provided that ``such guidelines'' may be revised
from time to time.
The 1982 NWPA provided that the Guidelines would be used by the DOE
to identify and nominate at least five sites in different geologic
media as suitable for characterization. As part of this screening
process, section 112(b) required the Secretary to recommend three of
these sites to the President for characterization to determine their
suitability for development as a repository.
Section 113, ``Site Characterization,'' of the 1982 NWPA provided
that the DOE was to carry out site characterization activities
beginning with the candidate sites that had been approved under section
112(b) and that were located in various geologic media. Section 113(b)
required the DOE to develop and submit to the Governor of the State, or
governing body of the affected Indian tribe, a general plan describing
the activities to be conducted in characterizing that site and
identifying the criteria, developed pursuant to section 112(a), that
would be used to determine the suitability of each site for the
location of a repository.
Section 114, ``Site Approval and Construction Authorization,'' of
the 1982 NWPA provided that upon completion of public hearings in the
vicinity of each site and completion of site characterization at each
site, a single site could be recommended to the President for
development as a repository. The 1982 NWPA provided that this
recommendation by the Secretary to the President was to be accompanied
by a final Environmental Impact Statement (EIS) in accordance with the
requirements of the National Environmental Policy Act (NEPA), as
modified by section 114(f) of the 1982
[[Page 66159]]
NWPA. If the recommendation was approved and the designation of the
repository site became effective, the DOE was to submit a license
application to the NRC for authorization to construct the repository at
the designated site.
The 1987 amendments to the 1982 NWPA (the 1982 NWPA, as amended, is
hereinafter referred to as the NWPA), provided that site
characterization under section 113 and site approval under section 114
could proceed only at the Yucca Mountain site. Section 160 of the NWPA
required the DOE to terminate site-specific activities at the other two
candidate sites.
B. Development and Application of the Guidelines
To implement section 112(a) of the 1982 NWPA, the DOE published the
proposed ``General Guidelines for the Recommendation of Sites for
Nuclear Waste Repositories,'' for review and comment on February 13,
1983 (48 FR 5670). The DOE published the final version of the
Guidelines on December 6, 1984 (49 FR 47714), after considering public
comments, consulting with the designated agencies, and receiving the
concurrence of the NRC, as required by the 1982 NWPA.
The NRC concurred on the Guidelines after the DOE agreed to changes
that closely linked the Guidelines to the NRC regulatory requirements
of 10 CFR part 60 (49 FR 9650). In response to comments requesting
closer alignment of the Guidelines to the EPA and the NRC requirements,
the DOE stated that,
``In the event of a conflict between the Guidelines and either
10 CFR part 60 (the NRC regulations) or 40 CFR Part 191 (the EPA
regulations), these NRC and EPA regulations will supersede the
siting guidelines and constitute the operative requirement in any
application of the guidelines.'' (49 FR 47721)
Consistent with section 112(b) of the 1982 NWPA, the DOE used the
Guidelines in nominating five sites as suitable for characterization
and in recommending to the President the three sites to be
characterized as candidate sites for the first repository. On May 28,
1986, the President approved the three sites recommended for
characterization, including the Yucca Mountain site. The 1987
amendments to the 1982 NWPA required the DOE to characterize only the
Yucca Mountain site, and to terminate site-specific activities at all
other sites.
In accordance with section 113(b) of the NWPA, the DOE prepared a
Site Characterization Plan (the SCP) (1) for characterizing the Yucca
Mountain site.\1\ The SCP included a description of how the DOE
proposed to apply the Guidelines within the scope of the planned site
characterization program. The applicability of certain comparative
provisions in the Guidelines as a result of the 1987 amendments to the
1982 NWPA was explained in the SCP. The DOE stated that the provision
in the Guidelines for comparative evaluations of performance (10 CFR
960.3-1-5) was no longer applicable. The DOE also stated that the
provision in 10 CFR 960.5-1(a)(3), the preclosure system guideline for
Ease and Cost of Siting, Construction, Operation, and Closure, for
comparative evaluation of costs relative to other siting options was no
longer applicable.
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\1\ The documents mentioned followed by a number enclosed in
parenthesis are fully identified in III. References. Documents are
numbered only when first referenced.
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Although the SCP describes how the DOE would apply the Guidelines
during site characterization to evaluate the site in light of the 1987
amendments, a number of entities indicated that they remained unclear
as to the DOE's future application of the Guidelines. Because of the
continuing confusion in this regard, and because section 112(a) of the
NWPA, unchanged from the 1982 NWPA, and the Guidelines themselves
contemplate that the DOE may revise the Guidelines from time to time,
the DOE instituted an ongoing dialogue with external parties about the
Guidelines.
In October 1993, the 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. The members of
this group noted that because the development of the Guidelines
received broad public exposure through publication in the Federal
Register, the DOE's review of the Guidelines also should receive broad
public exposure. In response, the DOE published a Notice of Inquiry on
April 25, 1994 (59 FR 19680) eliciting the views of the public on the
appropriate role of the Guidelines in the evaluation of site
suitability at Yucca Mountain. The DOE then conducted a public workshop
on May 21, 1994, in Las Vegas, Nevada, to discuss the Guidelines and
other issues related to the process for the evaluation of site
suitability. The DOE also provided the opportunity for the public to
submit written comments. The comment period ended on June 24, 1994.
Following the public meeting and the close of the public comment
period, and after consideration of the comments received, the DOE
published a notice in the Federal Register on August 4, 1994 (59 FR
39766), announcing, that it would continue to use the Guidelines in 10
CFR part 960, as currently written and as explained in the SCP. The
detailed rationale for concluding that the existing Guidelines ``should
not be amended at this time,'' was published in a notice in the Federal
Register on September 14, 1995 (60 FR 47737). For reasons stated below,
the DOE has now determined that the Guidelines should be amended.
II. Description of Proposed Action
A. General Discussion
The DOE is proposing these amendments to clarify and focus the
Guidelines to be used in evaluating the suitability of the Yucca
Mountain site for development as a repository. The amendments would
concentrate the regulatory review on the analyses of overall repository
performance. This would enhance the ability of the DOE to provide the
public a more understandable conclusion about the suitability of the
Yucca Mountain site for development as a repository. To provide this
focus, a new subpart would be added to govern the evaluation of the
Yucca Mountain site. Other sections of the Guidelines would be revised
only as needed to make them consistent with the new subpart. The
Guidelines applicable to site screening and comparisons will be
preserved should they be needed in the future.
As detailed in the Background section of this Notice, section 112
of the NWPA describes the steps to be taken during site screening and
prior to site characterization. The general guidelines required by
section 112(a) were developed in 1983 and 1984 when the DOE had only a
general understanding of geologic disposal and a mandate to use the
general guidelines to screen sites in various geologic media. The DOE
then formulated a generic set of guidelines to apply throughout the
entire siting process that could be applied to any site, in any type of
host rock, and in any geohydrologic setting.
As the DOE recognized in the December 6, 1984, Federal Register
notice publishing the Guidelines (49 FR 47714), the decision to
recommend sites for the development of repositories must include
analyses of expected repository performance. However, because the
comparison of characterized sites was then the focal point in the final
recommendation decision, the contribution of engineered barriers to the
ability of a repository system at each site to contain radioactive
waste was
[[Page 66160]]
minimized (49 FR 47714, 47729). The DOE response to comments that
stressed the importance of using system-analysis techniques, rather
than treating each factor (e.g., geohydrology) independently, was that
``the final comparisons of the sites are to be based on the system
guidelines'' (49 FR 47714, 47732). The DOE also explained that Part 960
consisted of general guidelines and that site-specific considerations
were not appropriate at that time (49 FR 47714, 47734). The DOE has
decided that it is now time for a site-specific evaluation of overall
system performance at Yucca Mountain.
Initially, the DOE planned a broad characterization program at
Yucca Mountain to ensure that all important scientific and technical
issues would be identified and addressed. The DOE recognized that the
iterative nature of site characterization would drive the broad-based
plan into a more narrowly focused program. Section 113c of the NWPA
provides that the DOE may conduct only such site characterization
activities as it determines are necessary to evaluate the suitability
of Yucca Mountain for submitting a construction authorization
application to the NRC and to comply with the National Environmental
Policy Act of 1969. That Congress intends the DOE to focus the work at
Yucca Mountain on only that which is necessary to determine site
suitability was recently reinforced in the Conference Report on the
Fiscal Year 1996 Energy and Water Development Appropriations Act, H.R.
Rep. No. 293, 104th Cong., 1st Sess. 68 (1995). In the Conference
Report the conferees directed the Department to refocus the repository
program on completing the core scientific activities at Yucca Mountain
and provided that the Department's goal should be to collect the
scientific information needed to determine the suitability of the Yucca
Mountain site.
On June 12, 1996, OCRWM released its revised Program Plan (2) which
addressed the direction of Congress in the Fiscal Year 1996
Appropriation legislation. It also recognized the great deal of
progress made in the evaluation and understanding of the Yucca Mountain
site since implementing the Civilian Radioactive Waste Management
Program Plan (3), published in December 1994. Consistent with the
policy direction from Congress, the revised Program Plan explained that
as part of Fiscal Year 1996 implementation of the restructured
repository program, OCRWM would propose amending the Guidelines to
provide a more efficient and understandable process for evaluating the
Yucca Mountain site. The revised Program Plan was endorsed 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 the
conferees directing that the appropriated funds be used in accordance
with the revised Program Plan.
Based on the DOE's accumulated knowledge, and significantly
enhanced understanding of the Yucca Mountain site and geologic
disposal, the DOE has now determined that a system performance
assessment approach provides the most meaningful method for evaluating
whether the Yucca Mountain site is suitable for development as a
repository. The performance assessments (4-6) conducted to date have
consistently driven the DOE to focus its evaluation of the Yucca
Mountain site on those aspects most important to predicting how the
overall system will perform in isolating and containing waste.
The DOE now understands 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 the DOE reach a meaningful conclusion regarding the
site's suitability for development as a repository. The proposed
amendments to the Guidelines would require a comprehensive evaluation
focused on whether a geologic repository at the Yucca Mountain site
would adequately protect the public and the environment from the
hazards posed by high-level radioactive waste and spent nuclear fuel.
This approach would include consideration of technical factors in an
integrated manner within the system postclosure and preclosure
qualifying conditions. Discrete, independent findings on individual
technical factors would not be required.
The proposed amendments would focus the site suitability evaluation
of Yucca Mountain on a determination of whether the expected system
performance will meet both the site-specific public health and safety
standards that the EPA is establishing under section 801 of the Energy
Policy Act of 1992 and the applicable NRC regulations. Compliance with
these requirements is the core of the approach proposed as subpart E to
part 960. The proposed amendments are being submitted to the NRC and
the DOE will obtain its concurrence in accordance with 10 CFR 960.1.
1. Congressional Direction
Since the DOE promulgated the Guidelines, Congress has made major
changes to the framework for developing a geologic repository. In 1987,
the NWPA designated Yucca Mountain as the only potential repository
site to be characterized, thereby eliminating the comparison of
multiple characterized sites. Although the DOE did not revise the
Guidelines at that time, it recognized in its SCP that not all of the
technical factors cited in the Guidelines would be equally significant
to the evaluation of the Yucca Mountain site.
In section 801 of the Energy Policy Act of 1992, Congress directed
the EPA to promulgate new site-specific health and safety standards for
protecting the public from radioactive releases at a repository at
Yucca Mountain. These standards will replace the general environmental
standard for geologic repositories (40 CFR part 191) for application at
the Yucca Mountain site. In the Energy Policy Act of 1992, Congress
also directed the NRC to revise its regulations to be consistent with
the new EPA standards.
In the Conference Report on the Fiscal Year 1996 Energy and Water
Development Appropriations Act, Congress directed the Program 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 (H.R. Rept. No.
293, 104th Cong., 1st Sess. 68 (1995)). The OCRWM responded by revising
its Program Plan. Part of the revised Program Plan approach is the
development of a proposal to amend the Guidelines for site-specific
application at the Yucca Mountain site. 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 Civilian Radioactive Waste Management
Draft Program Plan issued by the Department in May 1996 * * * ''
The DOE is proposing these amendments now in response to the
Congressional direction provided as part of the Fiscal Year 1996
appropriation process. The focused approach in this proposal is part of
the revised Program Plan that was developed based on Congressional
guidance and the technical understanding gained from characterization
work performed at Yucca Mountain.
[[Page 66161]]
2. Understanding Gained
The DOE has been considering Yucca Mountain as a potential site for
a repository since 1978. Formal site characterization studies began
following the publication of the SCP in December 1988. The DOE has
recently produced results in four major areas fundamental to advancing
the ability to evaluate this 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 the surface-based
testing and regional studies; (2) examination of the potential
repository horizon made possible by the excavation of the Exploratory
Studies Facility (ESF); (3) the site-specific conceptual design of the
engineered facilities, both surface and underground; and (4)
performance assessment analyses.
The DOE began collecting surface-based test data at the site and
from the surrounding region in the late 1970s, as described in the
Environmental Assessment (7) and the SCP. In recent years, project
scientists have undertaken a concerted effort to analyze and integrate
these data in order to formulate a better understanding of the site.
Several reports (8-16) issued in 1996 have significantly contributed to
that understanding. These analyses involve compiling the data collected
and developing process models to describe each of the characteristics
of the site. Further, data integration is proceeding from cross-
disciplinary discussions among the scientists and through consultations
with experts outside of the project. The result is a rapidly evolving
understanding of the natural system at the site and how the natural
system would function as part of a repository system.
Construction of the ESF has provided the opportunity for direct
underground observations and testing. Data obtained from the potential
repository host rock, together with the analysis of data from surface-
based studies (17-20), have significantly improved the understanding of
site conditions. For example, the rock quality at the repository level
generally confirms the assumptions upon which the projected area for
the statutory limit of 70,000 metric tons of heavy metal was based. No
new major faults have been found and some faults, when observed
underground, are less structurally significant than expected from
surface-based studies.
The DOE has now advanced its site-specific conceptual design (21)
to focus on the surface and subsurface facilities, the waste package,
and a concept of operations to describe how an operational repository
would function at Yucca Mountain. This focus allows project engineers
to develop process models to explicitly analyze such factors as
potential repository materials and layout, the thermal load imposed on
the system by waste emplacement, and the performance of the engineered
barrier system.
The models needed to evaluate repository system performance at the
Yucca Mountain site continue to become more detailed and more
representative of site conditions and engineered system behavior.
Performance assessments are analyses used to predict or estimate the
behavior of a system based on a given set of conditions. The
assessments take into consideration the inherent uncertainties in the
data and models used, and permit the evaluation of the significance of
these uncertainties in predicting performance for thousands of years
into the future. Performance assessments called ``Total System
Performance Assessments,'' were conducted in 1991, 1993, and 1995, and
another iteration is underway. The amount of detail in the models and
the amount of data available have increased with each iteration.
The results of these performance assessments describe what the
repository system will be capable of and how it will function through
time. For example, the performance assessments have confirmed that
among the most important characteristics of the Yucca Mountain site and
its suitability for repository development are the amount of water, the
flow pathways, and the rate at which water flows through and away from
the repository area. The repository system performance models will
enable the DOE to predict, with greater confidence, the way water moves
through the site and how this affects repository performance.
By evaluating, through system performance assessments, the
conclusions reached from analysis and integration of surface-based test
data, the observations and testing in the ESF, and the site-specific
advanced conceptual design, the DOE will be able to reach informed
conclusions regarding the suitability of the site for development as a
repository.
Information on the general approach that the DOE will take in
performing this work is available in the 1996 Revision I to the Program
Plan. More specific information on the nature and extent of changes to
previously planned activities is available in the Progress Reports that
the DOE issues semiannually pursuant to section 113(b)(3). The most
recently issued Progress Report (22) was distributed on October 8,
1996.
B. Proposed Revisions
Because section 160 of the NWPA provides that Yucca Mountain is to
be the sole site to be characterized by the DOE under section 113 of
the NWPA, the proposed amendments would establish a discrete set of
site-specific guidelines for evaluating the suitability of Yucca
Mountain for development as a repository. The site-specific guidelines
proposed for Yucca Mountain would be added to part 960 in a new subpart
E. Subpart B, the ``Implementation Guidelines,'' would be amended to
reflect the adoption of the new subpart E and provide the procedure and
basis for applying the new guidelines in subpart E. Subparts C and D
would be retained for potential future application in the event that it
is determined that Yucca Mountain is not suitable for development as a
repository and other sites are identified as potential candidate sites
for site characterization.
The proposed subpart E would focus on the ability of a repository
system at the Yucca Mountain site to protect public health and safety
by adequately containing and isolating waste, rather than on evaluating
each technical aspect of the site independently. This new subpart would
represent a change for evaluating Yucca Mountain from the Guideline's
general site screening and comparison approach to a site-specific
system performance approach.
The results of integrated assessments of system performance in
Subpart E would provide a more meaningful indicator of the ability of a
repository to protect public health and safety, before and after
permanent closure, than would separate evaluations of individual site
characteristics. For example, a geologic structural feature that
provides a fast pathway for ground-water flow through the mountain may
seem a detriment when considered alone but, when considered in
conjunction with a specific repository design, may act beneficially by
channeling flow away from the waste and thus reducing the potential for
ground-water contact with the waste packages.
In conducting performance assessments, the DOE uses computer and
mathematical models to evaluate the ability of the geologic repository
to contain and isolate high-level radioactive waste. This may include
the use of mathematical models of site processes such as water flow in
the geologic setting and engineering processes such as corrosion of the
waste packages as part of the assessment of
[[Page 66162]]
overall repository system performance. To evaluate potential radiation
exposure to the public, performance assessments use biosphere models
that describe the pathways by which individuals in the vicinity of
Yucca Mountain might receive radiation doses. Performance assessments
are iterative, so that insights gained from each assessment, together
with new scientific and engineering information and improvements in the
models themselves, are used to guide subsequent assessments.
The general provisions of subpart A and the implementation
guidelines of subpart B would be revised to reflect the addition of the
Yucca Mountain site-specific guidelines in subpart E, and to be
consistent with the NWPA. The proposed revisions would preserve the
existing portions of the Guidelines that are applicable to site
screening and to comparing sites in varied geologic settings as
provided in section 112(a) of the NWPA. Additional revisions would be
incorporated throughout the Guidelines only as needed to explicitly
accommodate the addition of subpart E.
Consistent with the existing structure of the Guidelines, the site-
specific guidelines proposed in subpart E would include postclosure and
preclosure system guidelines. The postclosure system and preclosure
radiological safety system guidelines proposed as ``qualifying
conditions'' in subpart E would be essentially the same as their
counterparts in subparts C and D, except that these amendments would
recognize the changes in the regulatory standards mandated by the
Energy Policy Act of 1992. Because 40 CFR part 191 is no longer the
applicable standard for the Yucca Mountain site, the new system
performance guidelines would apply the EPA's final rule for site-
specific public health and safety standards when they are issued and in
effect. The preclosure system guideline would also apply the NRC
regulations applicable to Yucca Mountain during the preclosure period.
The original suites of technical guidelines in subparts C and D
consider characteristics that might be important at any type of site in
any geologic or hydrologic setting and provide a basis for comparing
sites. Corresponding technical guidelines are not proposed in subpart
E. The performance assessments in subpart E will consider all of the
significant technical aspects of the site and demonstrate through
sensitivity analyses which characteristics are most important.
The preclosure system guidelines in subpart D, other than the one
for radiological safety (Sec. 960.5-1(a)(1)), were originally intended
to provide a broad basis for site evaluation and for comparisons among
multiple characterized sites, prior to site recommendation under the
1982 NWPA. Sections 113 and 160 of the NWPA now direct the DOE to
characterize only the Yucca Mountain site to determine its suitability
for development as a repository. In the absence of a need to consider
siting alternatives, the DOE is not specifying separate system
guidelines for environmental, socioeconomic, and transportation
considerations in subpart E, as it did in Sec. 960.5-1(a)(2) of subpart
D. The DOE will not require or make findings with regard to such
considerations as part of any evaluation of the suitability of the
Yucca Mountain site for recommendation. The provisions of subpart D,
Sec. 960.5-1(a)(3), relating to the feasibility of constructing,
operating, and closing a repository at the Yucca Mountain site also are
not incorporated in subpart E. Absent the need to develop a broad basis
for comparative evaluations, such considerations are most appropriately
dealt with as part of the repository design process and in the
evaluation of the performance of any design concept with respect to the
radiological protection requirements of the preclosure system guideline
in subpart E.
The requirement in Sec. 960.5-1(a)(2) of subpart D to adequately
protect the public and the environment from hazards posed by the
disposal of radioactive waste is the essence of the preclosure system
guideline proposed as Sec. 960.6-2. Separately, as part of the
Environmental Impact Statement that will be prepared pursuant to
section 114 of the NWPA, the DOE will thoroughly explore potential
impacts to the environment as a result of developing a repository at
Yucca Mountain. The DOE will consider the information presented in the
Environmental Impact Statement, and the results of its evaluation of
the Yucca Mountain site under subpart E, in making any recommendation
that the site be developed.
1. General Provisions (subpart A)
This section of the Guidelines consists of the statement of
applicability of the Guidelines and the definitions. Revisions proposed
to this section would establish the applicability of the new subpart E
to the evaluation of the Yucca Mountain site for development as a
repository while preserving the general comparative siting process
originally defined in the Guidelines and would remove inconsistencies
with the 1987 amendments to the 1982 NWPA and the Energy Policy Act of
1992. Revisions are proposed for some of the definitions to make the
terms consistent with the NWPA and to accommodate programmatic changes
instituted since the Guidelines were written.
Section 960.1 Applicability
The statement of applicability would establish that these are the
Guidelines developed in accordance with sections 112(a) and
113(b)(1)(A)(iv) of the NWPA. It is the intent of these amendments to
continue to apply subparts C and D of 10 CFR part 960 as the General
Guidelines providing ``the primary criteria for the selection of sites
in various geologic media'' as required by section 112(a). The
comparative aspects of the regulation would be preserved for use if the
DOE ever needs to use the process to select other sites for
characterization through a comparative screening process.
The proposed amendments would account for the 1987 amendments
beginning with the insertion of the words ``as amended'' after
``Nuclear Waste Policy Act of 1982'' in the first sentence. Section
113(b)(1)(A)(iv) of the Act would also be referenced in the first
sentence to indicate that these Guidelines would contain the criteria
to determine the suitability of the candidate site for location of a
repository. A new second sentence would be inserted to make explicit
that subpart B explains the procedure and basis for applying the
guidelines in subparts C, D, and E. The second sentence would now state
that the Guidelines in subparts C and D will be used for comparative
suitability evaluations made pursuant to section 112(b). The final
phrase, ``and any preliminary suitability determinations required by
section 114(f)'' would be deleted because this requirement was removed
from section 114(f) by the 1987 amendments. This phrase would be
replaced by a new fourth sentence stating that ``Only subpart E will be
used for evaluating the suitability of the Yucca Mountain site pursuant
to section 113(b)(1)(A)(iv).''
These revisions would recognize that the EPA standards promulgated
under 40 CFR part 191 no longer apply to the Yucca Mountain site.
Section 801 of the Energy Policy Act of 1992 requires the EPA to issue
site-specific public health and safety standards as ``the only such
standards applicable to the Yucca Mountain site.'' Therefore, the third
sentence, stating that these guidelines are intended to complement the
requirements set forth in the Act, 10 CFR part 60, and 40 CFR part 191,
would be deleted. The fifth sentence is revised to more clearly state
that the DOE recognizes NRC jurisdiction for the
[[Page 66163]]
resolution of differences between the guidelines and the NRC
regulations. The sixth sentence would be deleted as unnecessary.
Section 960.2 Definitions
Revisions to the terms and definitions are proposed to reflect the
legislative and programmatic changes since the Guidelines were
originally written. The definition of the term ``Act'' would recognize
the 1987 amendments in its use throughout the regulation. The terms
``Application'' and ``Evaluation'' would include references to subpart
E for the Yucca Mountain site in addition to references to subparts C
and D. The definition of ``Closure'' would include ramps to acknowledge
the use of inclined ramps at Yucca Mountain in addition to vertical
shafts. The term ``Determination'' would now apply to subparts C and D
for purposes of decisions of suitability for site characterization, and
to subpart E for purposes of decisions of suitability for repository
development.
2. Implementation Guidelines (subpart B)
Section 960.3 Siting provisions
The implementation guidelines in subpart B establish the procedure
and basis for applying the postclosure and preclosure guidelines of
subparts C and D to the siting process when site recommendation for
characterization is to be made from multiple candidate sites. In
general, references to subpart E would be added to the implementation
guidelines in subpart B wherever subpart C and D are mentioned to
ensure consistency and clarity in the distinctions between the two sets
of postclosure and preclosure guidelines. Subpart B would be revised
only to the extent necessary to accommodate the insertion of subpart E
into the regulation.
The first sentence of section 960.3 would be replaced by two
sentences. The first would state that the guidelines of subpart B
establish the procedure and basis for applying the guidelines in
subparts C, D, and E. The new second sentence would explain that the
guidelines of subparts C and D apply to comparative evaluations of
multiple sites for suitability for characterization. The original
second sentence would be revised to include the word comparative in
reference to those parts of the siting process that require
consideration of various settings and consultation with various
affected units of government. A new final sentence would be added to
explicitly state that the guidelines of subpart E apply to evaluations
of the suitability of the Yucca Mountain site for development as a
repository.
Section 960.3-1 would be revised by replacing a phrase in the final
sentence to clarify that Sec. 960.3-1-5, Basis for Site Evaluations,
establishes the basis for applying subparts C, D and E. Section 960.3-
1-1 to Sec. 960.3-1-4-4 requires the consideration of various site
settings and types in precharacterization screening and describe the
types of evidence needed at each step in the sequence of siting
decisions. No changes are proposed to these sections because they are
already consistent with the proposed amendments to the existing
regulation and the proposed addition of subpart E.
Section 960.3-1-5 provides the basis for evaluations of individual
sites and comparisons between and among sites. This section provides
that the guidelines of subparts C and D apply to the screening and
selection of sites through the recommendation of candidate sites for
characterization. Because the NWPA now requires that only the Yucca
Mountain site be characterized and evaluated for suitability for
development as a repository, the proposed amendment would refer to
subpart E as the basis for this evaluation. This section would be
divided into three subsections to make the following two distinctions.
First, it would distinguish between evaluations of sites leading to
recommendations for characterization and the evaluation of the Yucca
Mountain site for development as a repository. Second, it would
distinguish the basis for evaluating individual sites from the basis
for comparing multiple sites.
The subsection heading ``(a) General Provisions,'' is inserted at
the beginning of the section. This newly designated subsection would
consist of the first two sentences of Sec. 960.3-1-5 with the following
revisions. A proposed addition to the first sentence would specify that
the evaluation of the suitability of the Yucca Mountain site for
development as a repository would be based on the guidelines in subpart
E. The second sentence, assigning primary significance to the
postclosure guidelines, except during the screening of potentially
acceptable sites (the first of the four decisions in the siting process
sequence set forth in Sec. 960.3-1-4), would exempt subpart E from this
ranking of the guidelines. The guidelines were ranked to reflect the
fundamental purpose of a repository to provide long-term isolation of
radioactive waste and to facilitate comparisons of sites where some
site attributes under the Guidelines may be similar. The ranking would
not apply to subpart E because it would serve no comparative purpose.
To clarify this distinction between evaluating individual sites and
ranking the guidelines for comparisons of multiple sites, the word
``comparisons'' would replace ``evaluations'' in the second sentence of
subsection (a).
The subsection heading ``(b) Site Evaluations,'' would be inserted
before the third sentence in Sec. 960.3-1-5 to create a new subsection
containing the third through tenth sentences of this section revised as
follows. This subsection would separate the process and basis for
evaluating individual sites from the process for comparing multiple
sites under the proposed subsection (c). The description of the
arrangement of the Guidelines would now refer directly to subparts C
and D where the system guidelines have corresponding technical
guidelines. A sentence would be added for clarity, after the eighth
sentence, stating that subpart E does not contain corresponding
technical guidelines. This sentence is added because the proposed
subpart E use of system guidelines would consider the full range of
relevant site conditions embodied in any technical guidelines. The
proposed system guideline approach of subpart E would not eliminate or
disguise consideration of any specific characteristic of the Yucca
Mountain site that may affect repository performance. Indeed, the
relevant technical factors in subparts C and D would still be
considered; but, rather than each being evaluated against a specific
independent technical guideline, the factors would be considered for
their role in the system's performance. The ninth (now tenth) sentence
of this subsection would be revised to explain that subpart E would be
used to evaluate the Yucca Mountain site. The final sentence would be
revised to explain that disqualification of a site depends on findings
made regarding the ``applicable'' qualifying or disqualifying
conditions. For the characterization work at Yucca Mountain, the
``applicable'' conditions would be the qualifying conditions in
Sec. 960.6.
The subsection heading ``(c) Site Comparisons,'' would be inserted
before the eleventh sentence of Sec. 960.3-1-5. The subsection would
consist of the remainder of this section revised as follows. The first
sentence would now include a specific reference to subparts C and D to
avoid confusion with subpart E. The portion of the sentence referencing
Sec. 960.3-2-4, ``performed to support the recommendation of sites for
the development of repositories in Sec. 960.3-2-4,'' would be deleted.
This
[[Page 66164]]
deletion would recognize that Sec. 960.3-2-4, ``Recommendation of sites
for the development of repositories,'' would be revised to no longer
include comparisons of characterized sites. The next sentence, defining
the accessible environment, would be deleted because that term is
already defined in Sec. 960.2. The repetition of the definition is
unnecessary and potentially confusing.
Section 960.3-2 addresses the four steps in the comparative siting
process in Secs. 960.3-2-1 through 960.3-2-4. Sections 960.3-2-1
through 960.3-2-3 address the three steps in the process that were
completed before the 1987 amendments designated Yucca Mountain as the
sole site to be characterized. Although these steps were successfully
completed with regard to the Yucca Mountain site, they are still found
in section 112 of the NWPA, and could possibly be used to evaluate
another or other sites in the future. Therefore, no changes are
proposed to these sections.
Section 960.3-2-4, ``Recommendation of sites for the development of
repositories,'' establishes the process for the fourth and final step
in the siting process. This section refers to multiple characterized
candidate sites for the development of the first repository, or
subsequent repositories. It would now recognize Yucca Mountain as the
sole candidate site that may be recommended under section 114 of the
NWPA. The title would be revised to ``Recommendation of a site for the
development of a repository.'' The first sentence would now explain
that the Yucca Mountain site shall be evaluated on the basis of the
guidelines in subpart E. Because section 114 of the NWPA now provides
only for the recommendation of the Yucca Mountain site if it is found
suitable for development as a repository, the final sentence would
refer specifically to the Yucca Mountain site and all references to
other candidate sites would be deleted. If the Yucca Mountain site is
found unsuitable, NWPA subsection 113(c)(3)(F) requires the Secretary
to report to Congress recommendations for further action to assure the
safe, permanent disposal of spent nuclear fuel and high-level
radioactive waste, including the need for new legislative authority.
3. Yucca Mountain Site Guidelines (subpart E)
Section 960.6 Yucca Mountain Site Guidelines
The postclosure and preclosure system guidelines of subpart E would
each contain a single qualifying condition that the geologic repository
at Yucca Mountain must meet in order for the site to be found suitable
for development as a repository. The qualifying condition in both cases
would provide that the geologic repository shall be capable of limiting
radioactive releases as required by the site-specific standards to be
promulgated by the EPA pursuant to the Energy Policy Act of 1992. The
DOE would not reach a determination on the suitability of the Yucca
Mountain site under these Guidelines in the absence of the final
promulgation of those standards. Because the NRC must conform its
regulations to the EPA standards, these guidelines also refer to the
NRC regulations implementing those standards.
Section 960.6 would provide that a decision to recommend the site
as suitable for development as a repository under the Guidelines must
include compliance with both postclosure and preclosure system
guidelines. The DOE would evaluate compliance with these guidelines by
conducting performance assessments and then comparing the results of
those assessments to the applicable standards and regulations.
In Sec. 960.6-1, ``Postclosure system guideline,'' the DOE would
recognize that a geologic repository at Yucca Mountain shall be
evaluated against the site-specific EPA standards and the NRC
regulations implementing them. The key differences between the
postclosure guidelines under subpart C and this section would be that
this section would not include technical guidelines and would require
using the site-specific EPA standards being promulgated pursuant to
section 801 of the Energy Policy Act of 1992 and the NRC regulations
implementing those standards. Compliance with the postclosure system
guideline in this section would be determined through a performance
assessment that evaluates the ability of the repository system to allow
for the containment and isolation of radioactive waste after permanent
closure.
Section 960.6-2, ``Preclosure radiological safety system
guideline,'' would provide for compliance with the EPA site-specific
standards and the NRC radiation protection standards applicable during
construction, operation and closure of the repository. The preclosure
radiological safety system guideline in subpart D calls for compliance
with 10 CFR parts 20 and 60, and 40 CFR part 191. This preclosure
guideline would recognize that the EPA site-specific standards, rather
than 40 CFR part 191, apply to Yucca Mountain. It would also recognize
the application of the requirements of 10 CFR part 20, ``Standards for
Protection Against Radiation,'' which generally apply to licensed,
operational nuclear facilities throughout the United States, and 10 CFR
Part 60, ``Disposal of High-Level Radioactive Wastes in Geologic
Repositories,'' or successor provisions. Thus, the main difference
between the subpart D preclosure radiological safety system guideline
and the preclosure evaluation conducted under this section is that this
section would apply the Yucca Mountain site-specific EPA standards
being developed pursuant to the Energy Policy Act of 1992.
4. Appendix III
Appendix III--Application of the System and Technical Guidelines During
the Siting Process
The introductory text in this appendix would be amended by adding a
single sentence to clearly establish that this appendix does not apply
to the guidelines of Subpart E for the evaluation of the Yucca Mountain
site for its suitability for development as a repository. The
distinctions between lower-level and higher-level findings have been
preserved for their use in the comparative siting process.
III. References
1. DOE (U.S. Department of Energy), 1988. Site Characterization
Plan: Yucca Mountain Site, Nevada Research and Development Area,
Nevada, DOE/RW- 0199, Office of Civilian Radioactive Waste
Management, Washington, DC, December 1988.
2. DOE (U.S. Department of Energy), 1996. Civilian Radioactive Waste
Management Program Plan, Revision 1, DOE/RW-0458, Revision I, Office
of Civilian Radioactive Waste Management, Washington, DC, May 1996.
3. DOE (U.S. Department of Energy), 1994. Civilian Radioactive Waste
Management Program Plan, DOE/RW-0458, three volumes, Office of
Civilian Radioactive Waste Management, Washington, DC, December
1994.
4. Barnard, R.W., M.L. Wilson, H.A. Dockery, J.H. Gauthier, P.G.
Kaplan, R.R. Eaton, F.W. Bingham, and T.H. Robey, 1992. TSPA 1991:
An Initial Total-System Performance Assessment for Yucca Mountain,
SAND91-2795, Sandia National Laboratories, Albuquerque, New Mexico.
[[Page 66165]]
5. Wilson, M.L., J.H. Gauthier, R.W. Barnard, G.E. Barr, H.A.
Dockery, E. Dunn, R.R. Eaton, D.C. Guerin, N. Lu, M.J. Martinez, R.
Nilson, C.A. Rautman, T.H. Robey, B. Ross, E.E. Ryder, A.R.
Schenker, S.A. Shannon, L.H. Skinner, W.G. Halsey, J. Gansemer, L.C.
Lewis, A.D. Lamont, I.R. Triay, A. Meijer, and D.E. Morris, 1994.
Total System Performance Assessment for Yucca Mountain--SNL Second
Iteration (TSPA-1993), SAND93-2675, Sandia National Laboratories,
Albuquerque, New Mexico.
6. CRWMS M&O (Civilian Radioactive Waste Management System
Management and Operating Contractor), 1995. Total System Performance
Assessment--1995: An Evaluation of the Potential Yucca Mountain
Repository, B00000000-01717-2200-00136, Rev. 01, TRW Environmental
Safety Systems Inc., Las Vegas, Nevada, November 1995.
7. DOE (U.S. Department of Energy), 1986. Final Environmental
Assessment: Yucca Mountain Site, Nevada Research and Development
Area, Nevada, DOE/RW-0073, Office of Civilian Radioactive Waste
Management, Washington, DC, May 1986.
8. Bish, D.L., J.W. Carey, B.A. Carlos, S.J. Chipera, G.D. Guthrie,
S.S. Levy, D.T. Vaniman, and G. Wolde-Gabriel, 1996. Summary and
Synthesis Report on Mineralogy and Petrology Studies for the Yucca
Mountain Site Characterization Project, Geology and Geochemistry
Group, Earth and Environmental Sciences Division, Los Alamos
National Laboratory, Los Alamos, New Mexico, August 1996.
9. Robinson, B.A., A.V. Wolfsberg, H.S. Viswanathan, C.W. Gable,
G.A. Zyvoloski, and H.J. Turin, 1996. Site-Scale Unsaturated Zone
Flow and Transport Model--Modeling of Flow, Radionuclide Migration,
and Environmental Isotope Distributions at Yucca Mountain.
10. Zyvoloski, G., J. Czarnecki, B.A. Robinson, C.W. Gable, and C.
Faunt, 1996. Saturated Zone Radionuclide Transport Model.
11. Bovardsson, G.S. and T.M. Bandurraga (eds.), 1996. Development
and Calibration of the Three-Dimensional Site-Scale Unsaturated Zone
Model of Yucca Mountain, Nevada. Earth Sciences Division, Lawrence
Berkeley National Laboratory, Berkeley, California, August 1996.
12. Wilder, D.G., 1996. Volume II: Near-Field and Altered-Zone
Environment Report, UCRL-LR-124998, Lawrence Livermore National
Laboratory, Livermore, California, August 1996.
13. Forester, R.M., J.P. Bradbury, C. Carter, A.B. Elvidge, M.L.
Hemphill, S.C. Lundstrom, S.A. Mahan, B.D. Marshall, L.A. Neymark,
J.B. Paces, S.E. Sharpe, J.F. Whelan, and P.E. Wigand, 1996.
Synthesis of Quaternary Response of the Yucca Mountain Unsaturated
and Saturated Zone Hydrology to Climate Change, U.S. Geological
Survey, Lakewood, Colorado.
14. CRWMS M&O (Civilian Radioactive Waste Management System
Management and Operating Contractor), 1996. A 3-D Geologic Framework
and Integrated Site Model of Yucca Mountain: Version ISM1.0, Rev.
01, TRW Environmental Safety Systems Inc., Las Vegas, Nevada, August
1996.
15. Triay, I.R., A. Meijer, J.L. Conca, K.S. Kung, R.S. Rundberg,
and E.A. Streitelmeier, 1996. Summary and Synthesis Report on
Radionuclide Retardation for the Yucca Mountain Site
Characterization Project, Chemical Science and Technology Division,
Los Alamos National Laboratory, Los Alamos, New Mexico, August 1996.
16. Hersman, L.E., 1996. Summary and Synthesis of Biological
Sorption and Transport, Life Science Division, Los Alamos National
Laboratory, Los Alamos, New Mexico.
17. U.S. Geological Survey, U.S. Bureau of Reclamation. 1996a.
Letter Report (Transmittal Letter from R.L. Craig to Susan Jones,
dated 10/3/96): Geology of the North/South Main Drift, Exploratory
Studies Facility Stations 27+00 to 55+00, Maps and Data Submittal
(S.C. Beason et al., deliverable ID 3GGF603M); 38 drawings, support
information and attachments.
18. Barr, D.L., T.C. Moyer, W.L. Singleton, A.L. Albin, R.C. Lung,
A.C. Lee, S.C. Beason, G.L. Eatman (U.S. Geological Survey, U.S.
Bureau of Reclamation). 1996. Report: Geology of the North Ramp,
Exploratory Studies Facility Stations 4+00 to 28+00 (deliverable ID
3GGF602M); 179 pages, 47 figures, 18 tables, 31 photographs, 3
plates, 36 drawings, attachments.
19. Beason, S.C., G.A. Thurlington, R.C. Lung, G.L. Eatman, D.
Ryter, and D.L. Barr (U.S. Geological Survey, U.S. Bureau of
Reclamation). 1996. Report: Geology of the North Ramp, Exploratory
Studies Facility Stations 0+60 to 4+00 (deliverable ID 3GGF530M,
3GGF540M); 98 pages, 9 figures, 1 table, 20 photographs, 15
drawings, attachments.
20. Fabryka-Martin, J.T., P.R. Dixon, S. Levy, B. Liu, H.J. Turin,
and A.V. Wolfsberg, 1996. Systematic Sampling for Chlorine-36 in the
Exploratory Studies Facility, LA-CST-TIP-96-001, Los Alamos National
Laboratory, Los Alamos, New Mexico, March 1996.
21. CRWMS M&O (Civilian Radioactive Waste Management System
Management and Operating Contractor), 1996a. Mined Geologic Disposal
System Advanced Conceptual Design Report, B00000000-0717-5705-00027,
Rev. 00, four volumes, TRW Environmental Safety Systems Inc., Las
Vegas, Nevada.
22. DOE (U.S. Department of Energy), 1996. Site Characterization
Progress Report: Yucca Mountain, Nevada, Number 14, DOE/RW-0488,
Office of Civilian Radioactive Waste Management, Washington, DC.,
August 1996.
IV. 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. The
Department also encourages interested persons to participate in the
public hearing to be held at the time and place indicated at the
beginning of this notice.
B. Written Comment Procedures
The DOE requests public comments only on the proposed amendatory
language in this notice and will not consider comments on the current
regulation in this rulemaking proceeding. Written comments (eight
copies) should be identified on the outside of the envelope, and on the
comments themselves, with the designation: ``General Guidelines NOPR,
Docket Number RW-RM-96-100'' 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 a written comment cannot provide eight
copies, alternative arrangements can be made in advance by calling
(702) 794-5578. Additionally, the Department would appreciate an
electronic copy of the written comments to the extent possible. The
Department is currently using WordPerfect 6.1 for Windows. 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. In addition, a transcript of the
proceedings of the public hearing will be filed in the docket. The
transcript and additional material will be available by electronic mail
at the following URL address: http://www.ymp.gov. 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 claimed to be confidential has been
deleted. The Department of Energy will make its own
[[Page 66166]]
determination of any such claim and treat it according to its
determination.
C. Public Hearing Procedures
The time and place of the public hearing are indicated at the
beginning of this notice. The Department invites any person who has an
interest in the proposed regulation or who is a representative of a
group or class of persons which has an interest to make a request for
an opportunity to make an oral presentation at the hearing. Requests to
speak should be sent to the address or phone number indicated in the
ADDRESSES section of this notice and be received by the time specified
in the DATES section of this notice. The person making the request
should briefly describe his or her interest in the proceedings and, if
appropriate, state why that person is a proper representative of the
group or class of persons that has such an interest. The person also
should provide a phone number where they may be reached during the day.
Each person selected to speak at a public hearing will be notified as
to the approximate time that they will be speaking. They should bring
eight copies of their oral statement to the hearing. In the event any
person wishing to testify cannot meet this requirement, alternative
arrangements can be made in advance by calling (702) 794-1322. The
length of each presentation will be limited to five minutes, or based
on the number of persons requesting to speak. Persons planning to speak
should address their comments to the proposed amendatory language
contained in this notice. The DOE will not consider testimony on the
language in the current regulation in this rulemaking proceeding. A
Department official will be designated to preside at the hearing. The
hearing will not be a judicial or an evidentiary-type hearing, but will
be conducted in accordance with 5 U.S.C. 553 and section 501 of the
Department of Energy Organization Act. 42 U.S.C. 7191. At the
conclusion of all initial oral statements, each person will be given
the opportunity to make a rebuttal or clarifying statement. These
statements will be given in the order in which the initial statements
were made. Any further procedural rules needed for the proper conduct
of the hearing will be announced by the Presiding Officer at the
hearing. If the DOE must cancel the hearing, the DOE will make every
effort to publish an advance notice of such cancellation in the Federal
Register. Notice of cancellation will also be given to all persons
scheduled to speak at the hearing. Hearing dates may be canceled in the
event no public testimony has been scheduled in advance.
V. Compliance With the National Environmental Policy Act (NEPA)
The issuance of these amendments to the Guidelines is a preliminary
decision making activity pursuant to section 112(d) and 113(d) of the
NWPA and therefore does not require the preparation of an environmental
impact statement pursuant to section 102(2)(C) of the NEPA or any other
environmental review under section 102(2) (E) or (F) of the NEPA.
VI. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., was enacted
by Congress to ensure that small entities do not 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 rule
will not regulate anyone outside of the DOE. It merely articulates
proposed considerations for the Secretary of Energy to undertake in
determining whether the Yucca Mountain site is suitable to be
recommended for development as a repository. Accordingly, no regulatory
flexibility analysis is required under the Regulatory Flexibility Act.
VII. Review Under the Paperwork Reduction Act
The DOE has determined that this proposed rule contains no new or
amended recordkeeping, reporting, or application requirements, or any
other type of information collection requirements subject to the
Paperwork Reduction Act (Pub. L. 96-511).
VIII. Review Under Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to closely examine the impacts of regulatory
actions on State, local, and tribal governments. Section 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 proposed rule is not likely to result in the promulgation of
any final rule that includes 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 and the proposed amendments
to part 960 in this rule largely incorporate requirements specifically
provided in sections 112 and 113 of the NWPA. Moreover, sections 112,
113 and 114 of the NWPA 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.
IX. 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 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.
X. 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:
[[Page 66167]]
``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
rule is not a significant regulatory action that requires a review by
the OIRA.
XI. 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.
XII. 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 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 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 proposed regulations meet the relevant standards
of Executive Order 12988.
List of Subjects in 10 CFR Part 960
Environmental protection, Geologic repositories, Nuclear energy,
Nuclear materials, Radiation protection, Waste disposal.
Issued in Washington, DC, on December 9, 1996.
Daniel A. Dreyfus,
Director, Office of Civilian Radioactive Waste Management.
For the reasons set out in the preamble, part 960 of title 10 of
the Code of Federal Regulations is proposed to be amended as follows.
PART 960--GENERAL GUIDELINES FOR THE RECOMMENDATION OF SITES FOR
NUCLEAR WASTE REPOSITORIES
1. The authority citation for 10 CFR part 960 is revised to read as
follows:
Authority: 42 U.S.C. 2011 et seq., 42 U.S.C. 5801 et seq., 42
U.S.C. 7101 et seq., 42 U.S.C. 10101 et seq.
Subpart A--General Provisions
2. Section 960.1 is revised to read as follows:
Sec. 960.1 Applicability.
These guidelines were developed in accordance with the requirements
of sections 112(a) and 113(b)(1)(A)(iv) of the Nuclear Waste Policy Act
of 1982, as amended, for use by the Secretary of Energy in evaluating
the suitability of sites for the development of repositories. Subpart B
of this part explains the procedure and basis for applying the
guidelines in subparts C, D and E of this part. The guidelines in
subparts C and D of this part will be used for comparative suitability
evaluations and determinations made pursuant to section 112(b). Only
subpart E of this part will be used for evaluating the suitability of
the Yucca Mountain site pursuant to section 113(b)(1)(A)(iv). In the
event of an inconsistency between the guidelines and the applicable NRC
regulations, the NRC regulations would apply. The DOE contemplates
revising the guidelines from time to time, as permitted by the Act, to
take into account revisions made to the NRC regulations and to
otherwise update the guidelines as necessary. The DOE will submit the
revisions to the NRC and obtain its concurrence before issuance.
3. Section 960.2 is amended by revising the definitions of ``Act,''
``Application,'' ``Closure,'' ``Determination,'' and ``Evaluation,'' 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, in accordance with
the types of findings specified in appendix III to this part, or with
the qualifying conditions specified in the guidelines of subpart E of
this part.
* * * * *
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.
* * * * *
Determination means a decision by the Secretary that a site is
suitable for characterization consistent with the guidelines of
subparts C and D of this part or that the Yucca Mountain site is
suitable for development as a repository consistent with subpart E of
this part.
* * * * *
Evaluation means the act of carefully examining the characteristics
of a site in relation to the requirements of the qualifying or
disqualifying conditions specified in the guidelines of subpart C and D
or subpart E of this part.
4. Section 960.3 is revised to read as follows:
Sec. 960.3 Implementation guidelines.
The guidelines of this subpart establish the procedure and basis
for applying the guidelines in subparts C, D
[[Page 66168]]
and E of this part. The postclosure and the preclosure guidelines of
subparts C and D of this part, respectively, apply to comparative
evaluations of the suitability of multiple sites for characterization.
As may be appropriate during the comparative siting process, this
procedure requires consideration of a variety of geohydrologic settings
and rock types, regionality, and environmental impacts and consultation
with affected States, affected Indian tribes, and Federal agencies. The
postclosure and preclosure guidelines of subpart E of this part apply
to evaluations of the suitability of the Yucca Mountain site for
development as a repository.
5. Section 960.3-1 is amended by revising the final sentence of the
section to read as follows:
Sec. 960.3-1 Siting provisions.
* * * Section 960.3-1-5 establishes the basis for site evaluations
against the postclosure and the preclosure guidelines of subparts C, D
and E of this part.
6. Section 960.3-1-5 is revised to read as follows:
Sec. 960.3-1-5 Basis for site evaluations.
(a) General provisions. 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 that the evaluation of the suitability of the
Yucca Mountain site for development as a repository shall be based on
the guidelines in subpart E of this part. Except for screening for
potentially acceptable sites as specified in Sec. 960.3-2-1 and in the
implementation of subpart E of this part, such comparisons 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.
(b) Site evaluations. Both the postclosure and the preclosure
guidelines of subparts C and D of this part consist of a system
guideline or guidelines and corresponding groups of technical
guidelines. 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. 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. The guidelines of subpart E of this part contain two
system performance guidelines without corresponding technical
guidelines. For purposes of recommending the Yucca Mountain site for
development as a repository, such evidence shall include analyses of
expected repository performance to determine the ability of the site to
comply with the standards set forth in subpart E of this part. A site
shall be disqualified at any time during the siting process if the
evidence supports a finding by the DOE that an applicable disqualifying
condition exists or an applicable qualifying condition cannot be met.
(c) Site comparisons. Comparisons between and among sites shall be
based on the system guidelines in subparts C and D of this part, 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 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. Site comparisons shall evaluate predicted releases of
radionuclides to the accessible environment. Releases of different
radionuclides shall be combined by the methods specified in appendix A
of 40 CFR part 191. 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 hydrologic 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 above 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
[[Page 66169]]
factor of 10, with similar uncertainties, may be assumed to provide
equivalent isolation.
7. Section 960.3-2-4 is revised to read as follows:
Sec. 960.3-2-4 Recommendation of a site for the development of a
repository.
After completion of site characterization and non-geologic data
gathering activities at the Yucca Mountain site, the site shall be
evaluated on the basis of the guidelines specified in subpart E of this
part. Together with any recommendation to the President to approve the
Yucca Mountain site for the development of a repository, the Secretary
shall make available to the public, and submit to the President, a
comprehensive statement of the basis of such recommendation pursuant to
the requirements specified in section 114(a)(1) of the Act, including
an environmental impact statement prepared in accordance with the
provisions of sections 114(a)(1)(D) and 114(f) of the Act.
8. Subpart E is added to read as follows:
Subpart E--Yucca Mountain Site Guidelines
Sec.
960.6 Yucca Mountain site guidelines.
960.6-1 Postclosure system guideline.
960.6-2 Preclosure radiological safety system guideline.
Subpart E--Yucca Mountain Site Guidelines
Sec. 960.6 Yucca Mountain site guidelines.
The guidelines in this subpart specify the qualifying conditions
that a geologic repository at Yucca Mountain shall meet for the site to
be determined suitable for development as a repository. The guidelines
are separated into postclosure and preclosure system guidelines.
Compliance with the postclosure system guideline shall be determined by
the ability of a geologic repository to meet the applicable standards
through a postclosure system performance assessment. Compliance with
the preclosure radiological safety system guideline shall be determined
by the ability of a geologic repository to meet the applicable
standards through a preclosure performance assessment.
Sec. 960.6-1 Postclosure system guideline.
Qualifying condition. The geologic repository shall allow for the
containment and isolation of radioactive waste after permanent closure
in accordance with the EPA standards established specifically for the
Yucca Mountain site and the NRC regulations implementing those
standards.
Sec. 960.6-2 Preclosure radiological safety system guideline.
Qualifying condition. During construction, operation, and closure,
the geologic repository shall perform in accordance with the EPA
standards established specifically for the Yucca Mountain site and the
applicable safety requirements set forth in 10 CFR parts 20 and 60 or
their successor provisions.
9. Appendix III is amended in the introductory text of paragraph
number 1 by adding a new sentence immediately after the first sentence
of that paragraph to read as follows:
Appendix III--Application of the System and Technical Guidelines During
the Siting Process
1. * * * This appendix does not apply to the guidelines of
subpart E for the evaluation of the Yucca Mountain site for its
suitability for development as a repository. * * *
[FR Doc. 96-31603 Filed 12-13-96; 8:45 am]
BILLING CODE 6450-01-P
