[Federal Register Volume 61, Number 6 (Tuesday, January 9, 1996)]
[Proposed Rules]
[Pages 633-634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-282]



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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 61, No. 6 / Tuesday, January 9, 1996 / 
Proposed Rules  

[[Page 633]]


NUCLEAR REGULATORY COMMISSION

10 CFR Part 61

[Docket No. PRM-61-3]


Heartland Operation To Protect the Environment

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of receipt of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is docketing, as a 
petition for rulemaking, a document, dated August 7, 1995, filed with 
the Commission by Heartland Operation to Protect the Environment 
(HOPE). The petition was assigned Docket No. PRM-61-3 on October 6, 
1995. The petitioner requests that the Commission amend its regulations 
to adopt a rule regarding government ownership of a low-level 
radioactive waste disposal site that is consistent with Federal 
statute. In this document, the NRC is announcing the receipt of the 
petition and requesting public comment on the suggested amendment.

DATES: Submit comments by March 11, 1996. Comments received after this 
date will be considered if it is practical to do so. However, assurance 
of consideration cannot be given except as to comments received on or 
before this date.

ADDRESSES: Submit comments to the Nuclear Regulatory Commission, 
Attention: Docketing and Service Branch, Office of the Secretary, 
Washington, DC 20555-0001. For a copy of the petition, write to the 
Rules Review Section, Rules Review and Directives Branch, Division of 
Freedom of Information and Publications Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review 
Section, at the same address as above or by telephone: 301-415-7163 or 
toll free: 1-800-368-5642.

SUPPLEMENTARY INFORMATION:

Background

    The NRC published an advance notice of proposed rulemaking (ANPRM) 
in the Federal Register on August 3, 1994 (59 FR 39485). The ANPRM 
announced that the NRC was considering amending its regulations to 
allow private ownership of the land used for a low-level radioactive 
waste (LLRW) facility site as an alternative to the current requirement 
for Federal or State ownership. In the ANPRM, NRC considered the option 
to allow private-land ownership indefinitely, given that adequate land-
use restrictions were imposed. The ANPRM invited comment on 12 
questions to assist the NRC in determining if such a change could be 
made without adversely impacting public health and safety. The NRC 
received 49 comment letters in response to the ANPRM. The NRC prepared 
a detailed summary of the comments received.1

    \1\ Copies of the summary are available for inspection or 
copying for a fee from the NRC Public Document Room at 2120 L Street 
NW, (Lower Level), Washington DC; the PDR's mailing address is US 
NRC, Mail Stop LL-6, Washington, DC 20555-0001; telephone (202) 634-
3273; fax (202) 634-3343.
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    On July 18, 1995 (60 FR 36744), the NRC published a notice 
withdrawing the ANPRM published in the Federal Register on August 3, 
1994. In the notice of withdrawal, the NRC stated that a rule change to 
allow private-land ownership of a LLRW site is not warranted or needed. 
The NRC stated that the bases for its decision are that State and 
compacts have generally indicated that they do not need, nor would they 
allow, private-land ownership and that this rule change could be 
potentially disruptive to the current LLRW program.

Petitioner's Concern

    The petitioner states that the NRC's present regulation (10 CFR 
61.59(a)), which requires disposal of LLRW ``only on land owned in fee 
by the Federal or a State government,'' is in conflict with a provision 
in the Nuclear Waste Policy Act of 1982 (NWPA), as amended (42 USC 
10171(b)). The act authorizes the U.S. Department of Energy ``to assume 
title and custody of low-level radioactive waste and the land on which 
such waste is disposed of, upon request by the owner of such waste and 
land following termination of the license issued by the Commission 
(NRC) for such disposal * * *.'' Therefore, the petitioner proposes 
that the NRC regulations should conform to NWPA provision and require 
private land ownership during operations and closure of the facility, 
then converting title to the site to the U.S. Department of Energy.
    The petitioner states that, because of the conflict between the NRC 
regulation and the NWPA statute, the NRC regulation is void with regard 
to Federal ownership of a LLRW disposal site before commencement of the 
receipt of waste. The petitioner asserts that if the regulation is void 
with regard to Federal ownership, that it is also silent or 
unconstitutional with regard to State ownership. The petitioner 
references the following case [New York v. United States, 112 S.Ct. 
2408 (1992)].
    Several commenters, including the petitioner, made similar comments 
on the ANPRM that there is not an adequate basis for requiring Federal 
or State land ownership, which therefore would support private 
ownership. In the withdrawal of the ANPRM, the Commission stated that 
it believes there is adequate statutory authority for NRC to require 
Federal or State land ownership. The Commission Paper (SECY-95-152; 
dated June 13, 1995) further discussed the NRC staff rationale for 
believing that NRC has this authority. The paper stated the staff's 
belief that NRC has authority to require Federal or State land 
ownership pursuant to the Atomic Energy Act of 1954, as amended, in 
Section 161b. This section gives the Commission the authority to 
promulgate regulations deemed necessary or desirable to protect health 
or to minimize danger to life or property.
    The petitioner further states that the notice withdrawing the ANPRM 
(60 FR 36744) contains no documentation or statement of any issue of 
public health and safety as the basis for the regulation; therefore, 
the petitioner believes public health and safety cannot be an issue 
upon which the NRC regulation is based.
    The petitioner also states that the notice of withdrawal contains 
the statement: ``The Commission believes that the potential negative 
impact of disrupting the current process far outweighs any potential 
benefits that 

[[Page 634]]
might be derived from making a generic rule change at that time.'' In 
response, the petitioner asserts that the Commission's role is to 
regulate nuclear material in a manner that protects public health and 
safety and the environment, that its role is not to facilitate specific 
processes, i.e., the current LLRW disposal process.
    The petitioner references the following quote from the notice of 
withdrawal:

    For over three decades the public has been led to believe that 
all LLW disposal sites would necessarily be owned and controlled by 
either a Federal or State government. This, we believe, has been an 
important factor in convincing many proponent groups and State and 
local LLW advisory groups that LLW can and will be disposed of in a 
safe manner. To now try and convince these groups that Federal or 
State ownership of LLW disposal sites is not required may be 
difficult and generate a significant credibility problem.

    In response, the petitioner states that credibility problems occur 
when misrepresentations, i.e., government ownership is necessary to 
ensure proper LLRW management, are initially made and that the 
credibility problems are exacerbated the longer the misrepresentations 
are allowed to continue. The petitioner believes that there certainly 
would appear to be a larger credibility problem for the Commission to 
maintain a regulation that is in direct conflict with a statute. The 
petitioner offers that the Commission might reflect on the Department 
of Energy's recent efforts to gain credibility by coming clean on past 
misrepresentations, i.e., secret radiation studies.

Conclusion

    The petitioner believes that for the stated reasons, the NRC should 
adopt a rule regarding government ownership of LLRW disposal sites that 
is consistent with the Federal statute [42 USC 10171(b)].

    Dated at Rockville, Maryland, this 2nd day of January, 1996.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-282 Filed 1-8-96; 8:45 am]
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