[Federal Register Volume 66, Number 208 (Friday, October 26, 2001)]
[Notices]
[Pages 54303-54305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26946]


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NUCLEAR REGULATORY COMMISSION


Final Decision Related to the U.S. Department of Energy's General 
Guidelines for the Recommendation of Sites for Nuclear Waste 
Repositories and its Yucca Mountain Site Suitability Guidelines

AGENCY: Nuclear Regulatory Commission.

ACTION: Concurrence on the U.S. Department of Energy's revision of its 
general guidelines for the recommendation of sites for nuclear waste 
repositories, and on its guidelines for determining the suitability of 
the site at Yucca Mountain, Nevada.

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SUMMARY: This final decision sets forth the reasons of the U.S. Nuclear 
Regulatory Commission (``NRC'' or the ``Commission'') for concurring on 
the revised ``General Guidelines for the Recommendation of Sites for 
Nuclear Waste Repositories'' and on the ``Yucca Mountain Site 
Suitability Guidelines,'' designated 10 CFR part 963, proposed by the 
U.S. Department of Energy (``DOE'' or the ``Department''). These draft 
final guidelines were submitted by DOE to the Commission for review and 
concurrence on May 4, 2000.

EFFECTIVE DATE: October 26, 2001.

FOR FURTHER INFORMATION, CONTACT: Michael P. Lee, Division of Waste 
Management, Environmental and Performance Assessment Branch, telephone 
301/415-6677, e-mail: [email protected]; or C. William Reamer, Division of 
Waste Management, High-Level Waste Branch, telephone 301/415-6537, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    Section 112(a) of the Nuclear Waste Policy Act of 1982 (NWPA) 
directed DOE to develop general siting guidelines for the 
recommendation of sites for characterization as potential repositories 
for the disposal of spent nuclear fuel and other high-level radioactive 
wastes (HLW). Section 112(a) also called for NRC to concur on those 
guidelines. DOE issued its final guidelines, in the form of 10 CFR part 
960, on December 6, 1984 (49 FR 47715). The DOE guidelines defined the 
technical requirements that candidate sites must meet, and specified 
how DOE would implement its HLW repository site-selection process. The 
guidelines also recognized NRC jurisdiction for the resolution of 
differences between the guidelines and NRC's regulations governing the 
disposal of HLW in geologic repositories at 10 CFR part 60 and provided 
that DOE would obtain NRC concurrence on future revisions to the siting 
guidelines. NRC concurred on DOE's general siting guidelines in July 
1984 (49 FR 28130).
    In 1987, Congress amended the NWPA and directed DOE to characterize 
only the Yucca Mountain site, in Nye County, Nevada. In 1992, in the 
Energy Policy Act (EnPA--Public Law 102-486), Congress directed the 
National Academy of Sciences (NAS) to conduct a study to provide 
findings and recommendations on reasonable standards for protection of 
the public health and safety, from releases of radioactive materials 
stored or disposed of in a repository at the Yucca Mountain site. The 
EnPA also required the U.S. Environmental Protection Agency (EPA) to 
issue public health and safety standards consistent with the findings 
and recommendations of the NAS, and the NRC to modify its technical 
requirements and criteria to be consistent with EPA's standards. The 
NAS published its recommendations in August 1995.
    On December 16, 1996, DOE published proposed modifications to its 
original 1984 guidelines (61 FR 66158). DOE's proposed amendments would 
have created a new subpart to part 960, addressing only the Yucca 
Mountain site, and were designed to concentrate the regulatory review 
on the analyses of overall repository performance. EPA published its 
final site-specific radiation standards for Yucca Mountain (40 CFR part 
197) on June 13, 2001 (66 FR 32073). After publication of proposed 
site-specific disposal regulations for public comment on February 22, 
1999 (64 FR 8640), NRC considered and affirmed NRC's final regulations 
on September 7, 2001.

II. DOE's Revised Siting Guidelines

    In 1999, DOE decided to issue a revised proposal amending its 
general guidelines, in lieu of finalizing the 1996 proposed revised 
guidelines. Its revised proposal limited the general guidelines to the 
preliminary screening of potential sites for a nuclear waste 
repository, and added a new part 963 for determining the suitability of 
the Yucca Mountain site for a potential geologic repository (64 FR 
67054).
    DOE gave three principal reasons for its new proposal: (a) The need 
to provide more specificity for the criteria and methodology to be used 
in evaluating the suitability of the Yucca Mountain site and to better 
explain the legal bases for the proposal; (b) DOE's issuance, in 
December 1998, of the report entitled, ``Viability Assessment of a 
Repository at Yucca Mountain,'' which sets forth the bases for the site 
suitability criteria DOE is proposing to use and the methodology for 
applying the criteria to a design for a proposed repository at the 
Yucca Mountain site; and (c) the need for better alignment with EPA's 
and NRC's site-specific regulations, under development at the time. See 
64 FR 67054, 67055. The public comment period for the proposed rule 
ended on February 14, 2000. In addition, DOE conducted two public 
hearings in Nevada as part of the public comment process. Overall, DOE 
received about 125 comments, questions, and concerns on its proposal 
from 45 entities and members of the public, including comments from the 
NRC staff, dated March 3, 2000.
    In the new part 963, DOE proposes two separate determinations for 
evaluating the suitability of the Yucca Mountain site. Using 
information and data developed through its site characterization 
programs to date, DOE would conduct both a preclosure and a postclosure 
safety evaluation. The two separate, risk-based assessments are 
consistent with NRC's final site-specific regulation for the proposed 
Yucca Mountain site, 10 CFR part 63, which calls for an Preclosure 
Safety Assessment and Total System Performance Assessment for the two 
respective phases of repository activities. DOE would compare the 
results from each of the two analyses with the applicable EPA standards 
and the NRC regulations. 10 CFR part 963 also specifies the evaluation 
methods and criteria to be used, as well as the specific determinations 
to be reached by DOE. Although the revised draft final siting 
guidelines at part 963 are closely linked to certain licensing criteria 
and requirements in NRC's part 63 regulation, DOE has noted that 
meeting part 963 would not be the equivalent of a determination that 
the candidate site and the proposed design will meet all the NRC 
licensing requirements necessary to receive authorization to construct 
the proposed repository at Yucca Mountain.
    In a letter dated May 4, 2000, DOE sent to the Commission, for its 
review and concurrence, the revised draft final siting guidelines, in 
the form of a proposed Federal Register notice

[[Page 54304]]

amending part 960 and containing the new part 963. Also included as 
part of the proposed Federal Register notice were a DOE analysis and 
response to the comments.

III. Concurrence Criteria

    The Commission considered what criteria were appropriate for its 
concurrence in its 1984 decision-making on DOE's siting guidelines and 
believes that these criteria should continue to be used, to the extent 
that they are still appropriate. The 1984 concurrence criteria were:
    1. The siting guidelines must not be in conflict with NRC's 
geologic disposal regulations.
    2. The siting guidelines must not contain provisions that might 
lead DOE to select sites that would not be reasonable alternatives for 
an Environmental Impact Statement (EIS).
    3. The siting guidelines should not contain provisions that are in 
conflict with NRC responsibilities embodied in NWPA, as amended.
    The Commission finds that the first and the third criteria remain 
relevant. The second criterion is no longer relevant because the 1987 
amendments to the NWPA eliminated the need for consideration of 
alternative repository sites in an EIS. Moreover, in providing its 1984 
concurrence, DOE agreed to meet seven conditions, of which the 
principal two \1\ were:
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    \1\ The remaining conditions pertained to specific languate in 
the siting criteria, themselves, as well as clarifications and 
additional specificity regarding their application.
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    1. DOE was to amend its siting guidelines to recognize NRC 
jurisdiction over resolution of differences between the Department's 
siting guidelines and NRC's geologic disposal regulations.
    2. DOE was to commit to obtain NRC concurrence on future siting 
guideline revisions.
    These two conditions remain valid for the present concurrence 
decision.

IV. Commission Decision

    The NRC staff raised three issues in its March 3, 2000, comments on 
DOE's 1999 proposed revised guidelines. First, the staff pointed out 
that there appeared to be no discussion addressing the potential matter 
of a conflict between the proposed revisions and the applicable NRC 
regulations and recommended that this issue be addressed in the 
statement of considerations (SOC) for the guidelines. Second, the staff 
noted that the SOC inappropriately included a reference to NRC's 
quality assurance (QA) criteria of Appendix B in 10 CFR part 50 as 
``considerations'' rather than as ``pass/fail standards'' in DOE's 
discussion of how it has defined ``criteria.'' Staff underscored that 
NRC's QA criteria are factors that must be present if DOE's QA program 
is to be judged adequate and that any implication that NRC's QA 
criteria are not required should be avoided, lest confusion result as 
to their standing as regulatory requirements. Third, the staff noted 
that DOE's proposed definition of ``cladding'' conveyed the inaccurate 
notion that all cladding is corrosion-resistant, whereas, in reality, 
some spent nuclear fuels are clad in aluminum, which is not generally 
considered corrosion-resistant.
    DOE has addressed these comments in its draft final revisions to 
its guidelines. With respect to the first comment, DOE has added 
material in its SOC explaining that the necessary consistency between 
the DOE and NRC regulations is obtained through the careful crafting of 
its regulation to conform to pertinent parts of NRC's part 63, and that 
any conflicts between the two are resolved through the concurrence 
process. With respect to the second comment, DOE's SOC now acknowledges 
that NRC's QA criteria are factors that must be present for anyone's QA 
program to be judged adequate, and that NRC's QA criteria are mandatory 
despite their lack of quantitative, pass-fail references. Finally, DOE 
has revised its definition of ``cladding'' to indicate that it is 
generally made of corrosion-resistant zirconium alloy or stainless 
steel, thereby eliminating the implication that it is always made of 
such material. The Commission finds that DOE acceptably addressed the 
NRC staff's comments.
    Further, the Commission has not identified anything in DOE's 
revised siting guidelines that conflicts with NRC's 10 CFR part 63 
regulation, as modified to be consistent with the final EPA standard 
for Yucca Mountain, nor has the Commission identified anything in DOE's 
revised siting guidelines that would conflict with NRC's 
responsibilities under the NWPA, as amended. With respect to the two 
conditions, DOE has responded acceptably, as described above, to the 
concerns that NRC jurisdiction be recognized for the resolution of any 
potential conflicts between DOE and NRC regulations. Regarding the 
second condition, DOE continues to commit [see 10 CFR 963.10(b)] to 
seek NRC concurrence on future revisions, if any, to its siting 
guidelines.
    In summary, the Commission has determined that DOE has acceptably 
addressed the issues raised by the NRC staff in its March 3, 2000, 
letter. Further, the Commission finds: (a) that the siting guidelines 
are not in conflict with NRC's geologic disposal regulations at 10 CFR 
part 63; and (b) the siting guidelines do not contain provisions that 
are in conflict with NRC responsibilities embodied in the NWPA, as 
amended. Therefore, the Commission concurs on DOE's revised general 
guidelines for the recommendation of sites for nuclear waste 
repositories (part 960) and on its guidelines for determining the 
suitability of the Yucca Mountain site (part 963).
    The Commission recognizes that DOE could make further changes to 
its revised draft final siting guidelines submitted to the Commission, 
for concurrence, prior to the publication of the guidelines. 
Consequently, the Commission's concurrence is conditional on DOE's 
agreement to notify NRC of any changes to the draft final guidelines 
(including changes to the Supplemental Information) and its agreement 
to retransmit the revised rulemaking package to the Commission, if any 
substantive changes are made, for a determination as to whether re-
concurrence is needed.\2\
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    \2\ We also note that DOE needs to modify the reference to ``the 
quality assurance (QA)criteria of Appendix B in 10 CFR part 50 * * * 
``in the Supplenmental Information of its May 4, 2000, proposed 
Federal Register notice. This reference is no longer warranted in 
light of the incorporation of applicable part 50 QA criteria in the 
final part 63 rule.
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V. Commission Concurrence Process

    Neither the NWPA nor its amendments specify any particular 
procedure for NRC concurrence on DOE's siting guidelines. In an earlier 
ruling on a petition by the Yakima Indian Nation, the Commission found 
that NRC's concurrence responsibility is not a rulemaking and does not 
require notice and opportunity for public comment (48 FR 39536). The 
State of Nevada and Nye County (Nevada), in May 2000, requested that 
the Commission provide the opportunity for public comment by interested 
stakeholders.
    DOE's siting guidelines at part 963 are similar to, and consistent 
with, NRC's site-specific disposal regulations for Yucca Mountain at 
Part 63. Extensive public comment was obtained, on the proposed part 
63,\3\ through a Federal Register notice and the conduct of five public 
meetings in Nevada. Moreover, the Commission has reviewed the record of 
public comments on the proposed part 963 as well. Consequently, the 
Commission has determined that sufficient information is available in 
the record regarding

[[Page 54305]]

stakeholder concerns such that further stakeholder involvement before 
the Commission's concurrence on part 963 is not necessary.

    Dated this 19th day of October, 2001, at Rockville, Maryland.
    For the Commission.
Annette Vietti-Cook,
Secretary of the Commission.
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    \3\ On September 7, 2001, the Commission approved the final rule 
at part 63.
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[FR Doc. 01-26946 Filed 10-25-01; 8:45 am]
BILLING CODE 7590-01-P