[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]]

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Part V





Department of Energy





_______________________________________________________________________



Office of Civilian Radioactive Waste Management



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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 10CFR[email protected]. 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