[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Proposed Rules]
[Pages 67501-67503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32486]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 61

[Docket No. PRM-61-3]


Heartland Operation To Protect the Environment: Denial of 
Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM-61-3) submitted by the Heartland Operation to 
Protect the Environment. The petitioner requested that the NRC amend 
its regulations to adopt a rule regarding government ownership of a 
low-level radioactive waste (LLRW) or (LLW) disposal site that is 
consistent with petitioner's view of the applicable Federal statutes. 
The petition is being denied because the NRC believes there is no 
conflict between Section 151(b) of the Nuclear Waste Policy Act (NWPA) 
and its regulations requiring that LLW disposal facilities be sited on 
land owned by Federal or State government. The NRC has the authority to 
require Federal or State land ownership as a condition for licensing a 
LLW disposal facility and continues to believe the existing regulatory 
procedures are appropriate.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letter to the petitioner are available for 
public inspection or copying in the NRC Public Document Room, 2120 L 
Street NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-6196, E-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 3, 1994 (59 FR 39485), prior to receipt of the petition 
(PRM-61-3), the NRC published an advance notice of proposed rulemaking 
(ANPRM) in the Federal Register regarding land ownership. The ANPRM 
announced that the NRC was considering amending its regulations in 10 
CFR 61.59(a) to allow private ownership of the land used for a LLRW 
disposal facility site as an alternative to the current requirements 
for Federal or State ownership. On July 18, 1995 (60 FR 36744), the NRC 
published in the Federal Register a notice withdrawing the ANPRM 
because the rule change was not warranted or needed. The basis for this 
decision was the general indication from States and compacts that they 
do not need, nor would they allow, private ownership, and that the rule 
change under consideration could be potentially disruptive to the 
current LLW program.

The Petition

    On January 9, 1996 (61 FR 633), the NRC published a notice of 
receipt of a petition for rulemaking filed by the Heartland Operation 
to Protect the Environment (HOPE). The petitioner states that the NRC's 
present regulation (10 CFR 61.59(a)), which permits disposal of LLW 
``only on land owned in fee by the Federal or a State government,'' is 
in conflict with a provision in Section 151(b) of the Nuclear Waste 
Policy Act of 1982, as amended. The NWPA authorizes the U.S. Department 
of Energy (DOE) ``to assume title and custody of low-level radioactive 
waste and the land on which such waste is disposed of, upon request of 
the owner of such waste and land and following termination of the 
license issued by the Commission for such disposal * * *.'' Therefore, 
the petitioner proposes that the NRC regulations should conform to the 
NWPA provision and require private land ownership during operations and 
closure of the facility, then converting title to the site to the DOE.
    The petitioner, who also commented on the ANPRM, further states 
that the notice withdrawing the ANPRM contains no documentation or 
statement of any issue of public health and safety as the basis for the 
regulation. Therefore, the petitioner believes that public health and 
safety cannot be an issue upon which the NRC regulation is based.
    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 might be derived from 
making a generic rule change at this 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 quotation the NRC used in 
the withdrawal notice. This quotation came from one of the comments 
received on the ANPRM.

    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 in order to assure proper LLRW management--are initially 
made, and that such credibility problems are exacerbated the longer 
such misrepresentations are allowed to continue.'' The petitioner 
asserts that there would appear to be a larger credibility problem for 
the Commission to maintain 10 CFR 61.59(a) that is, in the 
petitioners's view, in direct conflict with a statute (i.e., Section 
151(b) of the NWPA). 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.''

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit written comments

[[Page 67502]]

concerning the petition. The NRC received six comment letters. Three 
comment letters were received from States, one from the DOE, one from 
the Nuclear Energy Institute (NEI), and one from an environmental 
organization. The comments generally focused on the main element of the 
petition, that the Commission amend its regulations to adopt a rule 
regarding government ownership of a LLW disposal facility that mirrors 
the NWPA or the resultant impact of this rule change. One commenter 
supported the petitioner and the other five believe the petition should 
be denied. The comments and responses were reviewed and considered in 
the development of NRC's decision on this petition. These comments are 
available in the NRC Public Document Room. A summary of the significant 
comments follows:
    The commenter that supported this petition for rulemaking was the 
State of Nebraska. Nebraska had also commented on the ANPRM discussed 
above, and its position continues to support the petitioner's view that 
the current NRC rule conflicts with the NWPA. Its comment also states 
that, ``* * * there is very little connection between promulgating 
regulations deemed necessary or desirable to protect public health or 
to minimize danger to life and property and the current regulation 
which requires low-level waste disposal on land owned by the federal or 
state government before a facility can be licensed. While there may be 
a need for having the state or federal government involved in owning 
the property AFTER the operation and closure of a facility, this is not 
what the current rule does. Instead, it requires state or federal 
ownership prior to the license being issued'' (emphasis in the 
original).
    The positions and specific comments from the five commenters who 
believe the petition should be denied are basically covered in the 
``Reasons for Denial'' Section.

Reasons for Denial

    The NRC is denying the petition for the following reasons: First, 
the NRC believes the petitioner is incorrect that the current 
regulations are inconsistent with Section 151(b) of the NWPA; second, 
the NRC has the authority to require Federal or State land ownership as 
a condition for licensing a LLW disposal facility and continues to 
believe the existing regulatory procedures are appropriate; and third, 
the NRC continues to believe that there would be a negative impact if 
the changes proposed by the petitioner were implemented.
    1. The NRC agrees with those commenters who believe the petitioner 
has incorrectly interpreted the language and intent of the NWPA. 
Section 151(b) of the NWPA merely authorizes, but does not require, the 
DOE to take title to LLW disposal facility sites following termination 
of an NRC license for such disposal. This is demonstrated by the 
discretionary language of the statute. For example, under Section 
151(b), as quoted by the petitioner, ``The Secretary (DOE) [sic] shall 
have the [sic] authority to assume title and custody of low-level 
radioactive waste and the land on which such waste is disposed of, upon 
request by [sic] the owner of such waste and land and following 
termination of the license issued by the Commission (NRC) [sic] for 
such disposal * * *.'' The NRC believes that there is no conflict 
between Section 151(b) of the NWPA and 10 CFR 61.59(a). NRC's 
requirement under Sec. 61.59(a), that facilities be sited on land owned 
by Federal or State government, does not prevent DOE from exercising 
its authority under Section 151(b) of the NWPA to assume title and 
custody after license termination. The DOE is a Federal entity and thus 
could satisfy the Sec. 61.59(a) requirement for governmental land 
ownership. The NRC regulation in Sec. 61.59(a) is broader than the 
statutory requirement. For example, assuming for purposes of argument, 
if DOE lacked the authority under Section 151(b) of the NWPA to own a 
disposal site prior to license termination, NRC's regulations would 
allow another Federal or State entity to own the land as required by 
Sec. 61.59(a). The focus of Sec. 61.59(a) is on Federal or State land 
ownership, whereas the focus of Section 151(b) is on DOE's authority to 
assume title and custody of a LLW disposal facility.
    Further, under Section 151(b)(2), ``If the Secretary assumes title 
and custody of any such waste and land under this subsection, the 
Secretary shall maintain such waste and land in a manner that will 
protect the public health and safety, and the environment.'' The NWPA 
thus allows the DOE, if it so chooses, to assume title and custody of 
the waste and land after license termination. The discretionary nature 
of the statutory language indicates that the petitioner's conclusion is 
incorrect.
    Finally, Sec. 61.59(a), on its face does not impose any obligation 
on the States, rather it imposes a condition with respect to land 
disposal of low-level waste, namely that the Commission will permit 
disposal of low-level waste only on land owned by a Federal or State 
entity. Thus, we see no conflict with the holding in New York v. United 
States, 112 S. Ct. 2408 (1992) that Congress does not have the 
authority under the Constitution to compel the States to take 
affirmative action with regard to waste disposal. Similarly, NRC's 
regulation, Sec. 61.59(a), does not direct or compel the States to take 
affirmative action with regard to waste disposal.
    2. As stated in the notice of withdrawal of the ANPRM, the 
``Commission believes there is adequate statutory authority for the NRC 
to require Federal or State land ownership.'' This authority comes from 
the Atomic Energy Act of 1954, as amended, in Section 161b which gives 
the Commission the authority to promulgate regulations deemed necessary 
or desirable to protect health or to minimize danger to life or 
property. The requirement for Federal or State government ownership of 
land for disposal of waste at a land disposal facility has been a 
requirement in the Commission's regulations since the inception of 
commercial disposal operations (NRC promulgated the land ownership 
requirement in 1961 (26 FR 352, January 18, 1961)). In exceptional 
cases an exemption from this requirement may be granted in the public 
interest if life or property is not endangered pursuant to 10 CFR 61.6. 
The granting of an exemption by the State of Utah from State land 
ownership regulations led the Commission to issue the ANPRM in order to 
solicit comments regarding the possible desirability of changing the 
rule, but the majority of comments received in response to that 
solicitation convinced the Commission that no change should be made. 
The NRC continues to believe that the requirement for governmental land 
ownership in Sec. 61.59(a) will ensure control of the disposal site 
after closure, and thereby reduce the potential for inadvertent 
intrusion, better ensure integrity of the site, and facilitate 
monitoring of site performance. Further, the NRC staff believes that 
requiring government ownership prior to licensing is beneficial so that 
a potential licensing issue is settled prior to the facility beginning 
operation. The experience of the State of California in obtaining 
Federal land for the proposed Ward Valley disposal facility is a case 
in point that transfer of land is not automatic and should not be 
assumed at the time the license is granted. Therefore, requiring 
governmental land ownership prior to licensing is an appropriate 
regulatory requirement.
    3. In addition, as discussed in the notice of withdrawal of the 
ANPRM and by several of the commenters, the proposed change in the 
requirements could have a de-stabilizing effect on the ongoing efforts 
by the States to license

[[Page 67503]]

LLW disposal facilities. The NRC believes that because there would be 
no health and safety benefit from the proposed change in requirements, 
it is inappropriate to take an action which could have an adverse 
impact on the timely development of safe LLW disposal facilities.
    For reasons cited in this document, the NRC denies the petition.

    Dated at Rockville, Maryland, this 9th day of December, 1996.

    For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 96-32486 Filed 12-20-96; 8:45 am]
BILLING CODE 7590-01-P