[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Notices]
[Pages 9048-9068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4440]



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Part II





Department of Energy





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Office of Civilian and Radioactive Waste Management; Nuclear Waste 
Repository Program: Yucca Mountain Site Recommendation to the President 
and Availability of Supporting Documents; Notice

  Federal Register / Vol. 67 , No. 39 / Wednesday, February 27, 2002 / 
Notices  

[[Page 9048]]


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DEPARTMENT OF ENERGY


Office of Civilian and Radioactive Waste Management; Nuclear 
Waste Repository Program: Yucca Mountain Site Recommendation to the 
President and Availability of Supporting Documents

AGENCY: Department of Energy, DOE.

ACTION: Notice, recommendation.

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SUMMARY: On February 14, 2002, the Secretary of Energy recommended to 
the President that the Yucca Mountain site in the State of Nevada be 
approved for development as a geologic repository for spent nuclear 
fuel and high-level radioactive waste. DOE today publishes the text of 
the letter from the Secretary to the President and the Recommendation 
by the Secretary of Energy Regarding the Suitability of the Yucca 
Mountain Site for a Repository Under the Nuclear Waste Policy Act of 
1982. DOE also announces the electronic and reading room availability 
of the documents that were forwarded to the President with the 
recommendation.

ADDRESSES: The documents are available through the Internet at http://www.ymp.gov, or may be inspected at the locations listed in 
Supplementary Information, below.

FOR FURTHER INFORMATION CONTACT: For further information contact: Yucca 
Mountain Site Characterization Office, Office of Civilian Radioactive 
Waste Management, U.S. Department of Energy, M/S 025, P.O. Box 364629, 
North Las Vegas, NV 89036-8629, 1-800-225-6972.

SUPPLEMENTARY INFORMATION: On February 14, 2002, the Secretary sent a 
letter to the President that recommended development of Yucca Mountain 
as a repository for spent nuclear fuel and high-level radioactive 
waste, pursuant to section 114(a)(1) of the Nuclear Waste Policy Act 
(NWPA). This notice includes a copy of the Secretary's letter and the 
Recommendation by the Secretary of Energy Regarding the Suitability of 
the Yucca Mountain Site for a Repository Under the Nuclear Waste Policy 
Act of 1982. In conjunction with this recommendation, the Secretary 
submitted the following documents to the President:

 Letter to the President
 Recommendation by the Secretary of Energy Regarding the 
Suitability of the Yucca Mountain Site for a Repository Under the 
Nuclear Waste Policy Act of 1982
 Yucca Mountain Science and Engineering Report (YMS&ER), 
Revision 1
 The Final Environmental Impact Statement (EIS) for a Geologic 
Repository for the Disposal of Spent Nuclear Fuel and High-Level 
Radioactive Waste at Yucca Mountain, Nye County, Nevada, along with 
letters received from the Secretary of the Interior, the Chair of the 
Council on Environmental Quality, the Administrator of the 
Environmental Protection Agency, and the Chairman of the Nuclear 
Regulatory Commission (NRC), transmitting their respective comments on 
the final EIS
 Letter from NRC Chairman Meserve to Under Secretary Card, 
dated November 13, 2001
 Comment Summary Document
 Supplemental Comment Summary Document
 Responses to comments from the Governor of Nevada received 
after the close of the public comment period
 Yucca Mountain Site Suitability Evaluation
 Impact reports from the State of Nevada and various counties

    The above documents are available on the Internet at www.ymp.gov 
and may be inspected at the locations listed below.

Public Reading Rooms

    Inyo County--Contact: Andrew Remus; (760) 878-0263; Inyo County 
Yucca Mountain Repository Assessment Office; 168 North Edwards; 
Independence, CA 93526.
    Oakland Operations Office--Contact: Judy Weiss; (510) 637-1762; U. 
S. Department of Energy Public Reading Room; EIC; 1301 Clay Street, 
Room 700N; Oakland, CA 94612-5208.
    National Renewable Energy Laboratory--Contact: John Horst; (303) 
275-4709; Public Reading Room; 1617 Cole Boulevard, Bldg 17-4; Golden, 
CO 80401.
    Rocky Flats Public Reading Room--Contact: Gary Morell; (303) 469-
4435; College Hill Library; 3705 West 112th Avenue; Westminster, CO 
80030.
    Headquarters Office--Contact: Carolyn Lawson; (202) 586-3142; U.S. 
Department of Energy; Room 1E-190, Forrestal Building; 1000 
Independence Avenue, SW; Washington, DC 20585.
    Atlanta Support Office--Contact: Ron Henderson; (404) 562-0555; 
U.S. Department of Energy; Public Reading Room; 75 Spring Street, Suite 
200; Atlanta, GA 30303.
    Southeastern Power Administration--Contact: Joel W. Seymour; (706) 
213-3810; U.S. Department of Energy; Public Reading Room; 1166 Athens 
Tech Road; Elberton, GA 30635-6711.
    Boise State University Library--Contact: Elaine Watson; (208) 426-
1737; Library -Government Documents; 1910 University Avenue; Boise, ID 
83725-03992.
    Idaho Operations Office--Contact: Brent Jacobson; (208) 526-1144; 
INEEL Technical Library, Public Reading Room; 1776 Science Center 
Drive, M/S 2300; Idaho Falls, ID 83402.
    Chicago Operations Office--Contact: John Shuler; (312) 996-2738; 
Document Department; University of Illinois at Chicago; 801 South 
Morgan Street; Chicago, IL 60607.
    Strategic Petroleum Reserve Project Management Office--Contact: 
Deanna Harvey; (504) 734-4316; U.S. Department of Energy; SPRPMO/SEB 
Reading Room; 850 Commerce Road, East; New Orleans, LA 70123.
    Lander County--Contact: Mickey Yarbro; (775) 635-2885; 315 S. 
Humboldt Street, Battle Mountain, NV 89820.
    Beatty Yucca Mountain Science Center--Contact: Marina Anderson; 
(775) 553-2130; 100 North E Avenue; Beatty, NV 89003.
    Lincoln County--Contact: Lola Stark; (775) 726-3511; 100 Depot 
Avenue; Suite 15; Caliente, NV 89008.
    Nevada State Clearinghouse--Contact: Heather Elliott; (775) 684-
0209; Department of Administration; 209 E. Musser Street, Room 200; 
Carson City, NV 89701.
    White Pine County--Contact: Josie Larson; (775) 289-2033; 959 
Campton Street; Ely, NV 89301.
    Eureka County--Contact: Leonard Fiorenzi; (775) 237-5372; 701 South 
Main; Eureka, NV 89316.
    Churchill County--Contact: Alan Kalt; (775) 428-0212; 155 North 
Taylor Street, Suite 182; Fallon, NV 89046-2748.
    Esmeralda County--Contact: George McCorkell; (775) 485-3419; 
Repository Oversight Program; 233 Crook Street; Goldfield, NV 89316.
    Mineral County--Contact: Judy Shankle; (775) 945-2484; First & A 
Streets; Hawthorne, NV 89415.
    Clark County--Contact: Irene Navis; (702) 455-5129; 500 South Grand 
Central Parkway, Suite 3012; Las Vegas, NV 89106.
    Las Vegas, Nevada--Contact: Vickie Nozero; (702) 895-2100; 
University of Nevada Las Vegas; Lied Library; Government Publications; 
4505 S. Maryland Parkway; Las Vegas, NV 89154-7013.
    Las Vegas Yucca Mountain Science Center--Contact: Claire Whetsel; 
(702) 295-1312; 4101-B Meadows Lane; Las Vegas, NV 89107.
    Nye County--Contact: Les W. Bradshaw; (775) 727-7727; Department

[[Page 9049]]

of Natural Resources and Federal Facilities; 1210 E. Basin Avenue, 
Suite 6; Pahrump, NV 89060.
    Pahrump Yucca Mountain Science Center--Contact: John Pawlak; (775) 
727-0896; 1141 South Highway 160, Suite 3; Pahrump NV, 89041.
    Reno, Nevada--Contact: Duncan Aldrich; (775) 784-6500, Ext. 256; 
University of Nevada, Reno; The University of Nevada Libraries; 
Business and Government Information Center M/S 322; 1664 N. Virginia 
Street; Reno, NV 89557-0044.
    Albuquerque Operations Office--Contact: Dave Baldwin; (505) 277-
5441; U.S. DOE Contract Reading Room, University of New Mexico, 
Zimmerman Library; Albuquerque, NM 87131-1466.
    Fernald Area Office--Contact: Diana Rayer; (513) 648-7480; U.S. 
Department of Energy; Public Information Room; 10995 Hamilton-Cleves 
Highway, M/S 78, Harrison OH 45030.
    National Energy Technology Lab--Contact: Bernadette Ward; (918) 
699-2033; U.S. Department of Energy; Williams Tower I, 1 West 3rd 
Street, Suite 1400, Tulsa, OK 74103.
    Southwestern Power Administration--Contact: Marti Ayres; (918) 595-
6609; U.S. Department of Energy; 1 West 3rd, Suite 1600; Tulsa, OK 
74103.
    Bonneville Power Administration--Contact: Bill Zimmerman; (503) 
230-7334; U.S. Department of Energy; BPA-C-ACS-1; 905 NE 11th Street; 
Portland, OR 97232.
    Pittsburgh Energy Technology Center--Contact: Ann C. Dunlap; (412) 
386-6167; U.S. Department of Energy; Building 922/M210; Cochrans Mill 
Road; Pittsburgh, PA 15236-0940.
    Savannah River Operations Office--Contact: Pauline Conner; (803) 
725-1408; Gregg-Graniteville Library; University of South Carolina-
Aiken; 171 University Parkway; Aiken, SC 29801.
    University of South Carolina--Contact: William Suddeth; (803) 777-
4841; Thomas Cooper Library; Documents/Microforms Department; Green and 
Sumter Streets; Columbia, SC 29208.
    Oak Ridge Operations Office--Contact: Walter Perry; (865) 241-4780; 
U.S. Department of Energy; Public Reading Room; 230 Warehouse Road, 
Suite 300; Oak Ridge, TN 37831.
    Southern Methodist University--Contact: Joseph Milazzo; (214) 768-
2561; Fondren Library East; Government Information; 6414 Hilltop Lane, 
Room 102; Dallas, TX 75205.
    University of Utah--Contact: Walter Jones; (801) 581-8863; Marriott 
Library Special Collections; 295 South 15th East; Salt Lake City, UT 
84112-0860.
    Richland Operations Center--Contact: Terri Traub; (509) 372-7443; 
U.S. Department of Energy; Public Reading Room; 2770 University Drive; 
Room 101L; Mailstop H2-53; Richland, WA 99352.

    Dated: February 19, 2002.
Lake H. Barrett,
Acting Director, Office of Civilian Radioactive Waste Management.

    Appendix: Letter to the President and Recommendation by the 
Secretary of Energy Regarding the Suitability of the Yucca Mountain 
Site for a Repository Under the Nuclear Waste Policy Act of 1982.
February 14, 2002.
The President
The White House
Washington, DC 20500

    Dear Mr. President: I am transmitting herewith, in accordance 
with section 114(a)(1) of the Nuclear Waste Policy Act of 1982 (the 
``Act''), 42 U.S.C. 10134, my recommendation for your approval of 
the Yucca Mountain site for the development of a nuclear waste 
repository, along with a comprehensive statement of the basis of my 
recommendation. In making this recommendation, I have examined three 
considerations.
    First, and most important, I have considered whether sound 
science supports the determination that the Yucca Mountain site is 
scientifically and technically suitable for the development of a 
repository. I am convinced that it does. This suitability 
determination provides the indispensable foundation for my 
recommendation. Irrespective of any other considerations, I could 
not and would not recommend the Yucca Mountain site without having 
first determined that a repository at Yucca Mountain will bring 
together the location, natural barriers, and design elements 
necessary to protect the health and safety of the public, including 
those Americans living in the immediate vicinity, now and long into 
the future.
    The Department has engaged in over 20 years of scientific and 
technical investigation of the suitability of the Yucca Mountain 
site. As part of this investigation, some of the world's best 
scientists have been examining every aspect of the natural 
processes--past, present and future--that could affect the ability 
of a repository beneath Yucca Mountain to isolate radionuclides 
emitted from any spent fuel and radioactive waste disposed there. 
They have been conducting equally searching investigations into the 
processes that could affect the behavior of the engineered barriers 
that are expected to contribute to successful isolation of 
radionuclides. These investigations have run the gamut, from mapping 
the geologic features of the site, to studying the repository rock, 
to investigating whether and how water moves through the Yucca 
Mountain site.
    To give just a few examples, Yucca Mountain scientists have: 
mapped geologic structures, including rock units, faults, fractures, 
and volcanic features; excavated more than 200 pits and trenches to 
remove rocks and other material for direct observation; drilled more 
than 450 boreholes; collected over 75,000 feet of core, and some 
18,000 geologic and water samples; constructed six and one-half 
miles of tunnels to provide access to the rocks that would be used 
for the repository; mapped the geologic features exposed by the 
underground openings in the tunnels; conducted the largest known 
test in history to simulate heat effects of a repository, heating 
some seven million cubic feet of rock over its ambient temperature; 
tested mechanical, chemical, and hydrologic properties of rock 
samples; and examined over 13,000 engineered material samples to 
determine their corrosion resistance in a variety of environments.
    The findings from these and numerous other studies have been 
used to expand our knowledge of the rocks beneath Yucca Mountain and 
the flow of water through these rocks, including amounts, pathways, 
and rates. Yucca Mountain scientists have used this vast reservoir 
of information to develop computer simulations that describe the 
natural features, events and processes that exist at Yucca Mountain 
and, in turn, have used these descriptions to develop the models to 
forecast how a repository will perform far into the future. Yucca 
Mountain scientists have followed a deliberately cautious approach 
to enhance confidence in any prediction of future performance.
    The results of this investigation have been openly and 
thoroughly reviewed by the Department and oversight entities such as 
the Nuclear Regulatory Commission (NRC), the Nuclear Waste Technical 
Review Board, and the U.S. Geological Survey, as well as having been 
subjected to scientific peer reviews, including a review undertaken 
by the International Atomic Energy Agency. The Department also has 
made available the scientific materials and analyses used to prepare 
the technical evaluations of site suitability for public review by 
all interested parties. The results of this extensive investigation 
and the external technical reviews of this body of scientific work 
give me confidence for the conclusion, based on sound scientific 
principles, that a repository at Yucca Mountain will be able to 
protect the health and safety of the public when evaluated against 
the radiological protection standards adopted by the Environmental 
Protection Agency and implemented by the NRC in accordance with 
Congressional direction in the Energy Policy Act of 1992.
    Second, having found the site technically suitable, I am also 
convinced that there are compelling national interests that require 
development of a repository. In brief, the reasons are these:
     A repository is important to our national security. 
About 40% of our fleet's principal combat vessels, including 
submarines and aircraft carriers, are nuclear-powered. They must 
periodically be refueled and the spent fuel removed. This spent fuel 
is currently stored at surface facilities under temporary 
arrangements. A repository is necessary to assure a permanent 
disposition pathway for this material and thereby enhance the 
certainty of future naval operational capability.

[[Page 9050]]

     A repository is important to promote our non-
proliferation objectives. The end of the Cold War has brought with 
it the welcome challenge of disposing of surplus weapons-grade 
plutonium as part of the process of decommissioning weapons we no 
longer need. A geological repository is an integral part of our 
disposition plans. Without it, our ability to meet our pledge to 
decommission our weapons could be placed in jeopardy, thereby 
jeopardizing the commitment of other nations, such as Russia, to 
decommission its own.
     A repository is important to our energy security. We 
must ensure that nuclear power, which provides 20% of the nation's 
electric power, remains an important part of our domestic energy 
production. Without the stabilizing effects of nuclear power, energy 
markets will become increasingly more exposed to price spikes and 
supply uncertainties, as we are forced to replace it with other 
energy sources to substitute for the almost five hours of 
electricity that nuclear power currently provides each day, on 
average, to each home, farm, factory and business in America. 
Nuclear power is also important to sustainable growth because it 
produces no controlled air pollutants, such as sulfur and 
particulates, or greenhouse gases. A repository at Yucca Mountain is 
indispensable to the maintenance and potential growth of this 
environmentally efficient source of energy.
     A repository is important to our homeland security. 
Spent nuclear fuel, high-level radioactive waste, and excess 
plutonium for which there is no complete disposal pathway without a 
repository are currently stored at over 131 sites in 39 States. More 
than 161 million Americans live within 75 miles of one or more of 
these sites. The facilities housing these materials were intended to 
do so on a temporary basis. They should be able to withstand current 
terrorist threats, but that may not remain the case in the future. 
These materials would be far better secured in a deep underground 
repository at Yucca Mountain, on federal land, far from population 
centers, that can withstand an attack well beyond any that is 
reasonably conceivable.
     And a repository is important to our efforts to protect 
the environment. It is past time for the federal government to 
implement an environmentally sound disposition plan for our defense 
wastes, which are located in Tennessee, Colorado, South Carolina, 
New Mexico, New York, Washington and Idaho. Among the wastes 
currently at these sites, approximately 100,000,000 gallons of high-
level liquid waste are stored in, and in some instances have leaked 
from, temporary holding tanks. About 2,500 metric tons of solid un-
reprocessed fuel from production and other reactors also are stored 
at these sites. It is also past time for the federal government to 
begin disposition of commercial spent fuel, a program that was to 
have begun in 1998. A repository is necessary for accomplishment of 
either of these objectives.
    Third, I have considered carefully the primary arguments against 
locating a repository at Yucca Mountain. None of these arguments 
rises to a level that would outweigh the case for going forward. 
This is not to say that there have not been important concerns 
identified. I am confident, however, these concerns have been and 
will continue to be addressed in an appropriate manner.
    In short, after months of study based on scientific and 
technical research unique in its scope and depth, and after 
reviewing the results of a public review process that went well 
beyond the requirements of the Act, I reached the conclusions 
described in the preceding paragraphs--namely, that technically and 
scientifically the Yucca Mountain site is fully suitable; that 
development of a repository at the Yucca Mountain site serves the 
national interest in numerous important ways; and that the arguments 
against its designation do not rise to a level that would outweigh 
the case for going forward. Not completing the site designation 
process and moving forward to licensing the development of a 
repository, as Congress mandated almost 20 years ago, would be an 
irresponsible dereliction of duty.
    Accordingly, I recommend the Yucca Mountain site for the 
development of a nuclear waste repository.

Respectfully,
Spencer Abraham

Recommendation by the Secretary of Energy Regarding the Suitability of 
the Yucca Mountain Site for a Repository Under the Nuclear Waste Policy 
Act of 1982, February 2002

1. Introduction
2. Background
    2.1. History of the Yucca Mountain Project and the Nuclear Waste 
Policy Act
    2.2. The Nuclear Waste Policy Act and the Responsibilities of 
the Department of Energy and the Secretary
3. Decision
    3.1. The Recommendation
    3.2. What This Recommendation Means, and What It Does Not Mean
4. Decision Determination Methodology and the Decision-Making 
Process
5. Decision Criteria
    5.1. Scientific and Technical Suitability
    5.2. National Interest Considerations
6. Is Yucca Mountain Scientifically and Technically Suitable for 
Development of a Repository?
    6.1. Framework for Suitability Determination
    6.1.1. General Outline
    6.1.2. Radiation Protection Standards
    6.1.3. Underlying Hard Science
7. Results of Suitability Evaluations and Conclusions
    7.1. Results of Pre-Closure Evaluations
    7.2. Results of Post-Closure Evaluations
8. The National Interest
    8.1. Nuclear Science and the National Interest
    8.2. Energy Security
    8.3. National Security
    8.3.1. Powering the Navy Nuclear Fleet
    8.3.2. Allowing the Nation to Decommission Its Surplus Nuclear 
Weapons and Support Nuclear Non-Proliferation Efforts
    8.4. Protecting the Environment
    8.5. Facilitating Continuation of Research, Medical, and 
Humanitarian Programs
    8.6. Assisting Anti-Terrorism at Home
    8.7. Summary
9. None of the Arguments Against Yucca Mountain Withstands Analysis
    9.1. Assertion 1: The Citizens of Nevada Were Denied an Adequate 
Opportunity to Be Heard
    9.2. Assertion 2: The Project Has Received Inadequate Study
    9.3. Assertion 3: The Rules Were Changed in the Middle of the 
Game
    9.4. Assertion 4: The Process Tramples States' Rights
    9.5. Assertion 5: Transportation of Nuclear Materials is 
Disruptive and Dangerous
    9.6. Assertion 6: Transportation of Wastes to the Site Will Have 
a Dramatically Negative Economic Impact on Las Vegas
    9.7. Assertion 7: It is Premature for DOE to Make a Site 
Recommendation for Various Reasons
    9.7.1. The General Accounting Office has concluded that it is 
premature for DOE to make a site recommendation now
    9.7.2. DOE is not ready to make a site recommendation now 
because DOE and NRC have agreed on 293 technical items that need to 
be completed before DOE files a license application
    9.7.3. It is premature for DOE to make a recommendation now 
because DOE cannot complete this additional work until 2006. The 
NWPA requires DOE to file a license application within 90 days of 
the approval of site designation
10. Conclusion

1. Introduction

    For more than half a century, since nuclear science helped us 
win World War II and ring in the Atomic Age, scientists have known 
that the Nation would need a secure, permanent facility in which to 
dispose of radioactive wastes. Twenty years ago, when Congress 
adopted the Nuclear Waste Policy Act of 1982 (NWPA or ``the Act''), 
it recognized the overwhelming consensus in the scientific community 
that the best option for such a facility would be a deep underground 
repository. Fifteen years ago, Congress directed the Secretary of 
Energy to investigate and recommend to the President whether such a 
repository could be located safely at Yucca Mountain, Nevada. Since 
then, our country has spent billions of dollars and millions of 
hours of research endeavoring to answer this question. I have 
carefully reviewed the product of this study. In my judgment, it 
constitutes sound science and shows that a safe repository can be 
sited there. I also believe that compelling national interests 
counsel in favor of proceeding with this project. Accordingly, 
consistent with my responsibilities under the NWPA, today I am 
recommending that Yucca Mountain be developed as the site for an 
underground repository for spent fuel and other radioactive 
wastes.\1\
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    \1\ For purposes of this Recommendation, the terms ``radioactive 
waste'' and ``waste'' are used to cover high-level radioactive waste 
and spent nuclear fuel, as those terms are used in the Nuclear Waste 
Policy Act.
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    The first consideration in my decision was whether the Yucca 
Mountain site will safeguard the health and safety of the people,

[[Page 9051]]

in Nevada and across the country, and will be effective in 
containing at minimum risk the material it is designed to hold. 
Substantial evidence shows that it will. Yucca Mountain is far and 
away the most thoroughly researched site of its kind in the world. 
It is a geologically stable site, in a closed groundwater basin, 
isolated on thousands of acres of Federal land, and farther from any 
metropolitan area than the great majority of less secure, temporary 
nuclear waste storage sites that exist in the country today.
    This point bears emphasis. We are not confronting a hypothetical 
problem. We have a staggering amount of radioactive waste in this 
country--nearly 100,000,000 gallons of high-level nuclear waste and 
more than 40,000 metric tons of spent nuclear fuel with more created 
every day. Our choice is not between, on the one hand, a disposal 
site with costs and risks held to a minimum, and, on the other, a 
magic disposal system with no costs or risks at all. Instead, the 
real choice is between a single secure site, deep under the ground 
at Yucca Mountain, or making do with what we have now or some 
variant of it--131 aging surface sites, scattered across 39 states. 
Every one of those sites was built on the assumption that it would 
be temporary. As time goes by, every one is closer to the limit of 
its safe life span. And every one is at least a potential security 
risk--safe for today, but a question mark in decades to come.
    The Yucca Mountain facility is important to achieving a number 
of our national goals. It will promote our energy security, our 
national security, and safety in our homeland. It will help 
strengthen our economy and help us clean up the environment.
    The benefits of nuclear power are with us every day. Twenty 
percent of our country's electricity comes from nuclear energy. To 
put it another way, the ``average'' home operates on nuclear-
generated electricity for almost five hours a day. A government with 
a complacent, kick-the-can-down-the-road nuclear waste disposal 
policy will sooner or later have to ask its citizens which five 
hours of electricity they would care to do without.
    Regions that produce steel, automobiles, and durable goods rely 
in particular on nuclear power, which reduces the air pollution 
associated with fossil fuels--greenhouse gases, solid particulate 
matter, smog, and acid rain. But environmental concerns extend 
further. Most commercial spent fuel storage facilities are near 
large populations centers; in fact, more than 161 million Americans 
live within 75 miles of these facilities. These storage sites also 
tend to be near rivers, lakes, and seacoasts. Should a radioactive 
release occur from one of these older, less robust facilities, it 
could contaminate any of 20 major waterways, including the 
Mississippi River. Over 30 million Americans are served by these 
potentially at-risk water sources.
    Our national security interests are likewise at stake. Forty 
percent of our warships, including many of the most strategic 
vessels in our Navy, are powered by nuclear fuel, which eventually 
becomes spent fuel. At the same time, the end of the Cold War has 
brought the welcome challenge to our Nation of disposing of surplus 
weapons-grade plutonium as part of the process of decommissioning 
our nuclear weapons. Regardless of whether this material is turned 
into reactor fuel or otherwise treated, an underground repository is 
an indispensable component in any plan for its complete disposition. 
An affirmative decision on Yucca Mountain is also likely to affect 
other nations' weapons decommissioning, since their willingness to 
proceed will depend on being satisfied that we are doing so. Moving 
forward with the repository will contribute to our global efforts to 
stem the proliferation of nuclear weapons in other ways, since it 
will encourage nations with weaker controls over their own materials 
to follow a similar path of permanent, underground disposal, thereby 
making it more difficult for these materials to fall into the wrong 
hands. By moving forward with Yucca Mountain, we will show 
leadership, set out a roadmap, and encourage other nations to follow 
it.
    There will be those who say the problem of nuclear waste 
disposal generally, and Yucca Mountain in particular, needs more 
study. In fact, both issues have been studied for more than twice 
the amount of time it took to plan and complete the moon landing. My 
Recommendation today is consistent with the conclusion of the 
National Research Council of the National Academy of Sciences--a 
conclusion reached, not last week or last month, but 12 years ago. 
The Council noted ``a worldwide scientific consensus that deep 
geological disposal, the approach being followed by the United 
States, is the best option for disposing of high-level radioactive 
waste.'' \2\ Likewise, a broad spectrum of experts agrees that we 
now have enough information, including more than 20 years of 
researching Yucca Mountain specifically, to support a conclusion 
that such a repository can be safely located there.\3\
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    \2\ Rethinking High-Level Radioactive Waste Disposal: A Position 
Statement of the Board on Radioactive Waste Management, Washington, 
D.C., National Academy Press, 1990.
    \3\ Letter and attached report, Charles G. Groat, Director, U.S. 
Geologic Survey, to Robert G. Card, October 4, 2001 (hereafter USGS 
Letter & Report); Letter and attached report, Hans Riotte, NEA-IAEA 
Joint Secretariat, to Lake H. Barrett, November 2, 2001 (hereafter 
NEA-IAEA Letter & Report); Letter, Charles V. Shank, Director, 
Lawrence Berkeley National Laboratory, to Spencer Abraham, September 
6, 200 (hereafter Lawrence Berkeley National Laboratory Letter).
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    Nonetheless, should this site designation ultimately become 
effective, considerable additional study lies ahead. Before an ounce 
of spent fuel or radioactive waste could be sent to Yucca Mountain, 
indeed even before construction of the permanent facilities for 
emplacement of waste could begin there, the Department of Energy 
(DOE or ``the Department'') will be required to submit an 
application to the independent Nuclear Regulatory Commission (NRC). 
There, DOE would be required to make its case through a formal 
review process that will include public hearings and is expected to 
last at least three years. Only after that, if the license were 
granted, could construction begin. The DOE would also have to obtain 
an additional operating license, supported by evidence that public 
health and safety will be preserved, before any waste could actually 
be received.
    In short, even if the Yucca Mountain Recommendation were 
accepted today, an estimated minimum of eight more years lies ahead 
before the site would become operational.
    We have seen decades of study, and properly so for a decision of 
this importance, one with significant consequences for so many of 
our citizens. As necessary, many more years of study will be 
undertaken. But it is past time to stop sacrificing that which is 
forward-looking and prudent on the altar of a status quo we know 
ultimately will fail us. The status quo is not the best we can do 
for our energy future, our national security, our economy, our 
environment, and safety--and we are less safe every day as the clock 
runs down on dozens of older, temporary sites.
    I recommend the deep underground site at Yucca Mountain, Nevada, 
for development as our Nation's first permanent facility for 
disposing of high-level nuclear waste.

2. Background

2.1. History of the Yucca Mountain Project and the Nuclear Waste 
Policy Act

    The need for a secure facility in which to dispose of 
radioactive wastes has been known in this country at least since 
World War II. As early as 1957, a National Academy of Sciences 
report to the Atomic Energy Commission suggested burying radioactive 
waste in geologic formations. Beginning in the 1970s, the United 
States and other countries evaluated many options for the safe and 
permanent disposal of radioactive waste, including deep seabed 
disposal, remote island siting, dry cask storage, disposal in the 
polar ice sheets, transmutation, and rocketing waste into orbit 
around the sun. After analyzing these options, disposal in a mined 
geologic repository emerged as the preferred long-term environmental 
solution for the management of these wastes.\4\ Congress recognized 
this consensus 20 years ago when it passed the Nuclear Waste Policy 
Act of 1982.
---------------------------------------------------------------------------

    \4\ Final Environmental Impact Statement for Management of 
Commercially Generated Radioactive Waste, DOE/EIS-0046, 1980.
---------------------------------------------------------------------------

    In the Act, Congress created a Federal obligation to accept 
civilian spent nuclear fuel and dispose of it in a geologic 
facility. Congress also designated the agencies responsible for 
implementing this policy and specified their roles. The Department 
of Energy must characterize, site, design, build, and manage a 
Federal waste repository. The Environmental Protection Agency (EPA) 
must set the public health standards for it. The Nuclear Regulatory 
Commission must license its construction, operation, and closure.
    The Department of Energy began studying Yucca Mountain almost a 
quarter century ago. Even before Congress adopted the NWPA, the 
Department had begun national site screening research as part of the 
National Waste Terminal Storage program, which included examination 
of Federal sites that

[[Page 9052]]

had previously been used for defense-related activities and were 
already potentially contaminated. Yucca Mountain was one such 
location, on and adjacent to the Nevada Test Site, which was then 
under consideration. Work began on the Yucca Mountain site in 1978. 
When the NWPA was passed, the Department was studying more than 25 
sites around the country as potential repositories. The Act provided 
for the siting and development of two; Yucca Mountain was one of 
nine sites under consideration for the first repository program.
    Following the provisions of the Act and the Department's siting 
Guidelines,\5\ the Department prepared draft environmental 
assessments for the nine sites. Final environmental assessments were 
prepared for five of these, including Yucca Mountain. In 1986, the 
Department compared and ranked the sites under consideration for 
characterization. It did this by using a multi-attribute 
methodology--an accepted, formal scientific method used to help 
decision makers compare, on an equivalent basis, the many components 
that make up a complex decision. When all the components of the 
ranking decision were considered together, taking account of both 
pre-closure and post-closure concerns, Yucca Mountain was the top-
ranked site.\6\ The Department examined a variety of ways of 
combining the components of the ranking scheme; this only confirmed 
the conclusion that Yucca Mountain came out in first place. The EPA 
also looked at the performance of a repository in unsaturated tuff. 
The EPA noted that in its modeling in support of development of the 
standards, unsaturated tuff was one of the two geologic media that 
appeared most capable of limiting releases of radionuclides in a 
manner that keeps expected doses to individuals low.\7\
---------------------------------------------------------------------------

    \5\ The Guidelines then in force were promulgated at 10 CFR part 
960, General Guidelines for the Recommendation of Sites for Nuclear 
Waste Repositories, 1984.
    \6\ Recommendation by the Secretary of Energy of Candidate Sites 
for Site Characterization for the First Radioactive Waste 
Repository, DOE/S-0048, May 1986.
    \7\ Environmental Radiation Protection Standards for the 
Management and Disposal of Spent Nuclear Fuel, High-Level and 
Transuranic Radioactive Wastes, Final Rule, 40 CFR Part 191, 
December 20, 1993.
---------------------------------------------------------------------------

    In 1986, Secretary of Energy Herrington found three sites to be 
suitable for site characterization, and recommended the three, 
including Yucca Mountain, to President Reagan for detailed site 
characterization.\8\ The Secretary also made a preliminary finding, 
based on Guidelines that did not require site characterization, that 
the three sites were suitable for development as repositories.\9\
---------------------------------------------------------------------------

    \8\ Letter, John S. Herrington, Secretary of Energy, to 
President Ronald Reagan, May 27, 1986, with attached report, 
Recommendation by the Secretary of Energy of Candidate Sites for 
Site Characterization for the First Radioactive Waste Repository, 
DOE/S-0048, May 1986.
    \9\ Ibid.
---------------------------------------------------------------------------

    The next year, Congress amended the NWPA, and selected Yucca 
Mountain as the single site to be characterized. It simultaneously 
directed the Department to cease activities at all other potential 
sites. Although it has been suggested that Congress's decision was 
made for purely political reasons, the record described above 
reveals that the Yucca Mountain site consistently ranked at or near 
the top of the sites evaluated well before Congress's action.
    As previously noted, the National Research Council of the 
National Academy of Sciences concluded in 1990 (and reiterated last 
year) that there is ``a worldwide scientific consensus that deep 
geological disposal, the approach being followed by the United 
States, is the best option for disposing of high-level radioactive 
waste.''\10\ Today, many national and international scientific 
experts and nuclear waste management professionals agree with DOE 
that there exists sufficient information to support a national 
decision on designation of the Yucca Mountain site.\11\
---------------------------------------------------------------------------

    \10\ Rethinking High-Level Radioactive Waste Disposal: A 
Position Statement of the Board on Radioactive Waste Management, 
Washington, DC, National Academy Press, 1990. And: Disposition of 
High-Level Waste and Spent Nuclear Fuel: The Continuing Societal and 
Technical Challenges, Board on Radioactive Waste Management, 
Washington, DC, National Academy Press, 2001.
    \11\ USGS Letter & Report, supra; NEA-IAEA Letter & Report, 
supra; Lawrence Berkeley National Laboratory Letter, supra.
---------------------------------------------------------------------------

2.2. The Nuclear Waste Policy Act and the Responsibilities of the 
Department of Energy and the Secretary

    Congress assigned to the Secretary of Energy the primary 
responsibility for implementing the national policy of developing a 
deep underground repository. The Secretary must determine whether to 
initiate the next step laid out in the NWPA--a recommendation to 
designate Yucca Mountain as the site for development as a permanent 
disposal facility. The criteria for this determination are described 
more fully in section 5. Briefly, I first must determine whether 
Yucca Mountain is in fact technically and scientifically suitable to 
be a repository. A favorable suitability determination is 
indispensable for a positive recommendation of the site to the 
President. Under additional criteria I have adopted above and beyond 
the statutory requirements, I have also sought to determine whether, 
when other relevant considerations are taken into account, 
recommending it is in the overall national interest and, if so, 
whether there are countervailing arguments so strong that I should 
nonetheless decline to make the Recommendation.
    The Act contemplates several important stages in evaluating the 
site before a Secretarial recommendation is in order. It directs the 
Secretary to develop a site characterization plan, one that will 
help guide test programs for the collection of data to be used in 
evaluating the site. It directs the Secretary to conduct such 
characterization studies as may be necessary to evaluate the site's 
suitability. And it directs the Secretary to hold hearings in the 
vicinity of the prospective site to inform the residents and receive 
their comments. It is at the completion of these stages that the Act 
directs the Secretary, if he finds the site suitable, to determine 
whether to recommend it to the President for development as a 
permanent repository.
    If the Secretary recommends to the President that Yucca Mountain 
be developed, he must include with the Recommendation, and make 
available to the public, a comprehensive statement of the basis for 
his determination.\12\ If at any time the Secretary determines that 
Yucca Mountain is not a suitable site, he must report to Congress 
within six months his recommendations for further action to assure 
safe, permanent disposal of spent nuclear fuel and high-level 
radioactive waste.
---------------------------------------------------------------------------

    \12\ This document together with accompanying materials 
comprises the recommendation and the comprehensive statement. The 
accompanying materials are described in footnote 26.
---------------------------------------------------------------------------

    Following a Recommendation by the Secretary, the President may 
recommend the Yucca Mountain site to Congress ``if  . . . [he] 
considers [it] qualified for application for a construction 
authorization  * * *. \3\ If the President submits a recommendation 
to Congress, he must also submit a copy of the statement setting 
forth the basis for the Secretary's Recommendation.
---------------------------------------------------------------------------

    \3\ NWPA section 114(a)(2)(A).
---------------------------------------------------------------------------

    A Presidential recommendation takes effect 60 days after 
submission unless Nevada forwards a notice of disapproval to the 
Congress. If Nevada submits such a notice, Congress has a limited 
time during which it may nevertheless give effect to the President's 
recommendation by passing, under expedited procedures, a joint 
resolution of siting approval. If the President's recommendation 
takes effect, the Act directs the Secretary to submit to the NRC a 
construction license application.
    The NWPA by its terms contemplated that the entire process of 
siting, licensing, and constructing a repository would have been 
completed more than four years ago, by January 31, 1998. 
Accordingly, it required the Department to enter into contracts to 
begin accepting waste for disposal by that date.

3. Decision

3.1. The Recommendation

    After over 20 years of research and billions of dollars of 
carefully planned and reviewed scientific field work, the Department 
has found that a repository at Yucca Mountain brings together the 
location, natural barriers, and design elements most likely to 
protect the health and safety of the public, including those 
Americans living in the immediate vicinity, now and long into the 
future. It is therefore suitable, within the meaning of the NWPA, 
for development as a permanent nuclear waste and spent fuel 
repository.
    After reviewing the extensive, indeed unprecedented, analysis 
the Department has undertaken, and in discharging the 
responsibilities made incumbent on the Secretary under the Act, I am 
recommending to the President that Yucca Mountain be developed as 
the Nation's first permanent, deep underground repository for high-
level radioactive waste. A decision to develop Yucca Mountain will 
be a critical step forward in addressing our Nation's energy future, 
our national defense, our safety at home, and protection for our 
economy and environment.

[[Page 9053]]

3.2. What This Recommendation Means, and What It Does Not Mean

    Even after so many years of research, this Recommendation is a 
preliminary step. It does no more than start the formal safety 
evaluation process. Before a license is granted, much less before 
repository construction or waste emplacement may begin, many steps 
and many years still lie ahead. The DOE must submit an application 
for a construction license; defend it through formal review, 
including public hearings; and receive authorization from the NRC, 
which has the statutory responsibility to ensure that any repository 
built at Yucca Mountain meets stringent tests of health and safety. 
The NRC licensing process is expected to take a minimum of three 
years. Opposing viewpoints will have every opportunity to be heard. 
If the NRC grants this first license, it will only authorize initial 
construction. The DOE would then have to seek and obtain a second 
operating license from the NRC before any wastes could be received. 
The process altogether is expected to take a minimum of eight years.
    The DOE would also be subject to NRC oversight as a condition of 
the operating license. Construction, licensing, and operation of the 
repository would also be subject to ongoing Congressional oversight.
    At some future point, the repository is expected to close. EPA 
and NRC regulations require monitoring after the DOE receives a 
license amendment authorizing the closure, which would be from 50 to 
about 300 years after waste emplacement begins, or possibly longer. 
The repository would also be designed, however, to be able to adapt 
to methods future generations might develop to manage high-level 
radioactive waste. Thus, even after completion of waste emplacement, 
the waste could be retrieved to take advantage of its economic value 
or usefulness to as yet undeveloped technologies.
    Permanently closing the repository would require sealing all 
shafts, ramps, exploratory boreholes, and other underground openings 
connected to the surface. Such sealing would discourage human 
intrusion and prevent water from entering through these openings. 
DOE's site stewardship would include maintaining control of the 
area, monitoring and testing, and implementing security measures 
against vandalism and theft. In addition, a network of permanent 
monuments and markers would be erected around the site to alert 
future generations to the presence and nature of the buried 
waste.\14\ Detailed public records held in multiple places would 
identify the location and layout of the repository and the nature 
and potential hazard of the waste it contains. The Federal 
Government would maintain control of the site for the indefinite 
future. Active security systems would prevent deliberate or 
inadvertent human intrusion and any other human activity that could 
adversely affect the performance of the repository.
---------------------------------------------------------------------------

    \14\ During characterization of the Yucca Mountain site, Nye 
County began to develop its Early Warning Monitoring program and 
boreholes. These boreholes not only provide information about water 
movement in the area of the site, but also can serve as monitoring 
points should a repository be built at Yucca Mountain.
---------------------------------------------------------------------------

4. Decision Determination Methodology and the Decision-Making Process

    I have considered many kinds of information in making my 
determination today. I have put on a hard hat, gone down into the 
Mountain, and spoken with many of the scientists and engineers 
working there. Of course my decision-making included a great deal 
more than that. I have also personally reviewed detailed summaries 
of the science and research undertaken by the Yucca Mountain Project 
since 1978. I relied upon review materials, program evaluations, and 
face-to-face briefings given by many individuals familiar with the 
Project, such as the acting program manager and program senior 
staff.
    My consideration included: (a) the general background of the 
program, including the relevant legislative history; (b) the types, 
sources, and amounts of radioactive waste that would be disposed of 
at the site and their risk; (c) the extent of Federal 
responsibilities; (d) the criteria for a suitability decision, 
including the NWPA's provisions bearing on the basis for the 
Secretary's consideration; the regulatory structure, its substance, 
history, and issues; DOE's Yucca Mountain Suitability Guidelines 
promulgated under the NWPA; \15\ the NRC licensing regulations,\16\ 
and EPA radiation protection standards \17\ as referenced in the 
Suitability Guidelines; (e) assessments of repository performance, 
including technical data and descriptions of how those data were 
gathered and evaluated; assessments of the effectiveness of natural 
and engineered barriers in meeting applicable radiation protection 
standards, and adjustments for uncertainties associated with each of 
these; (f) the Yucca Mountain Site Suitability Evaluation; (g) the 
views of members of the public, including those expressed at 
hearings and through written comments; (h) environmental, 
socioeconomic, and transportation issues; (i) program oversight 
history, technical issues, and responses, including the role and 
views of the NRC, the Nuclear Waste Technical Review Board, the 
General Accounting Office, the Inspector General, and the State of 
Nevada; and the role and views of the National Laboratories, the 
United States Geological Survey, and peer reviews; and (j) public 
policy impact.
---------------------------------------------------------------------------

    \15\ 10 CFR Part 963, Yucca Mountain Site Suitability 
Guidelines, November 14, 2001.
    \16\ 10 CFR Part 63, Disposal of High-Level Radioactive Waste in 
a Geologic Repository at Yucca Mountain, Nevada, November 2, 2001.
    \17\ 40 CFR Part 197, Public Health and Environmental Radiation 
Protection Standards for Yucca Mountain, Nevada, June 13, 2001.
---------------------------------------------------------------------------

    I also requested an external review of program briefing 
materials. It was conducted by Dr. Chris Whipple, a member of the 
National Academy of Engineering and an experienced independent peer 
reviewer of programs for both the Waste Isolation Pilot Plant and 
the Yucca Mountain Project. Dr. Whipple previously had led a peer 
review team that critically analyzed Total System Performance 
Assessment (TSPA) work of the Yucca Mountain Project.
    I also reviewed the comment summary documents from both the 
Environmental Impact Statement (EIS) and NWPA Section 114 site 
recommendation hearing process in order fully to take into account 
public views concerning a possible recommendation of the Yucca 
Mountain site. This review enabled me to evaluate scientific and 
research results in the context of both strongly held local concerns 
and issues of national importance. I took particular note of 
comments and concerns raised by the Governor of Nevada, governors of 
other states, state agencies, Native American tribes, and members of 
the public at large.

5. Decision Criteria

    My charge to make a recommendation to the President on this 
matter stems from the Nuclear Waste Policy Act of 1982. That statute 
directs the Secretary of Energy to determine ``whether to recommend 
to the President that he approve [the Yucca Mountain] site for 
development of a repository.'' \18\ The NWPA establishes certain 
guideposts along the way to making this determination, but it also 
gives the Secretary significant responsibility for deciding what the 
relevant considerations are to be.
---------------------------------------------------------------------------

    \18\ NWPA section 114(a)(1).
---------------------------------------------------------------------------

    Pursuant to that responsibility, I concluded that I should use 
three criteria in determining whether to recommend approval of the 
Yucca Mountain Project. First, is Yucca Mountain a scientifically 
and technically suitable site for a repository, i.e., a site that 
promises a reasonable expectation of public health and safety for 
disposal of spent nuclear fuel and high-level radioactive waste for 
the next 10,000 years? Second, are there compelling national 
interests that favor proceeding with the decision to site a 
repository there? And third, are there countervailing considerations 
that outweigh those interests?
    The first of these criteria is expressly contemplated by the 
NWPA, although the NWPA also confers considerable discretion and 
responsibility on the Secretary in defining how to determine 
scientific and technical suitability and in making a judgment on the 
question. The two other criteria are not specified by the NWPA, but 
I am convinced that they are appropriate checks on a pure 
suitability-based decision.

5.1. Scientific and Technical Suitability

    Under the NWPA, the first step in a Secretarial determination 
regarding Yucca Mountain is deciding whether it is scientifically 
and technically suitable as a repository site. Although the NWPA 
does not state explicitly that this is the initial step, the 
language and structure of the Act strongly suggest that this is so. 
Most significantly, section 114(a)(1) of the NWPA states that the 
Secretary's recommendation is to be made at the conclusion of site 
characterization.\19\ Section 113, in turn, makes clear that the 
function of site characterization is to provide enough site-specific 
information to allow a decision on Yucca Mountain's scientific 
suitability.\20\
---------------------------------------------------------------------------

    \19\ Ibid.
    \20\ This is apparent from two related provisions of section 
113: section 113(c)(1), which states that, ``The Secretary may 
conduct at the Yucca Mountain site only such site characterization 
activities as the Secretary considers necessary to provide the data 
required for evaluation of the suitability of such site for an 
application to be submitted to the Commission for a construction 
authorization for a repository at such site'' (as well as for NEPA 
purposes); and its companion provision, section 113(c)(3), which 
states that, ``If the Secretary at any time determines the Yucca 
Mountain site to be unsuitable for development as a repository, the 
Secretary shall  * * * terminate all site characterization 
activities [there].''

---------------------------------------------------------------------------

[[Page 9054]]

    As to what a determination of site suitability entails, the only 
real guidance the Act provides is that in several places it equates 
a favorable suitability judgment with a judgment that a repository 
could (1) be built at that site and (2) receive a construction 
authorization from the NRC.\21\ This suggests that a determination 
that the site is suitable entails a judgment on my part that a 
repository at Yucca Mountain would likely be licensable by the NRC.
---------------------------------------------------------------------------

    \21\ NWPA section 112(b)(1)(D)(ii); NWPA section 113(c)(1); NWPA 
section 113(c)(3).
---------------------------------------------------------------------------

    Beyond that, the NWPA largely leaves the question to the 
Secretary of Energy by charging him with establishing ``criteria to 
be used to determine the suitability of * * * candidate site[s] for 
the location of a repository.'' \22\ On November 14, 2001, following 
NRC's concurrence, the Department issued its final version of these 
criteria in a rule entitled, ``Yucca Mountain Site Suitability 
Guidelines.'' I shall describe these in detail in the next section 
of this Recommendation, but outline them here. In brief, DOE's 
Guidelines envision that I may find the Yucca Mountain site suitable 
if I conclude that a repository constructed there is ``likely'' to 
meet extremely stringent radiation protection standards designed to 
protect public health and safety.\23\ The EPA originally established 
these standards.\24\ They are now also set out in NRC licensing 
rules.\25\
---------------------------------------------------------------------------

    \22\ NWPA section 113(b)(1)(A)(iv). That section contemplates 
that these criteria are to be included in the first instance in the 
site characterization plan for each site and thereafter may be 
modified using the procedures of section 112(a).
    \23\ 10 CFR part 963.
    \24\ 40 CFR part 197.
    \25\ 10 CFR part 63.
---------------------------------------------------------------------------

    The EPA and NRC adopted the standards so as to assure that while 
the repository is receiving nuclear materials, any radiation doses 
to workers and members of the public in the vicinity of the site 
would be at safe levels, and that after the repository is sealed, 
radiation doses to those in the vicinity would be at safe levels for 
10,000 years. These radiation protection levels are identical to 
those with which the DOE will have to demonstrate compliance to the 
satisfaction of the NRC in order to obtain a license to build the 
repository.
    Using the Department's suitability Guidelines, I have concluded 
that Yucca Mountain is in fact suitable for a repository. The 
reasons for this conclusion are set out in section 7 of this 
Recommendation. However, I want to pause to make one thing clear at 
the outset. If for any reason I found that the site were not 
suitable or licensable, then, irrespective of any other 
consideration, I would not recommend it. Specifically, however much 
as I might believe that proceeding toward a repository would advance 
the national interest in other ways, those additional considerations 
could not properly influence, and have not influenced, my 
determination of suitability.

5.2. National Interest Considerations

    Beyond scientific suitability, the NWPA is virtually silent on 
what other standard or standards the Secretary should apply in 
making a recommendation. It does direct me to consider certain 
matters. It requires that I consider the record of hearings 
conducted in the vicinity of Yucca Mountain, the site 
characterization record, and various other information I am directed 
to transmit to the President with my Recommendation.\26\ The Act 
does not, however, specify how I am to consider these various items 
or what standard I am to use in weighing them. And finally among the 
items it directs me to take into account is, ``such other 
information as the Secretary considers appropriate.''
---------------------------------------------------------------------------

    \26\ The statutorily required information is set out in Section 
114(a)(1) of the NWPA, which states:
    Together with any recommendation of a site under this paragraph, 
the Secretary shall make available to the public, and submit to the 
President, a comprehensive statement of the basis of such 
recommendation, including the following:
    (A) A description of the proposed repository, including 
preliminary engineering specifications for the facility;
    (B) A description of the waste form or packaging proposed for 
use at such repository, and an explanation of the relationship 
between such waste form or packaging and the geologic medium of such 
site;
    (C) A discussion of data, obtained in site characterization 
activities, relating to the safety of such site;
    (D) A final environmental impact statement prepared for the 
Yucca Mountain site pursuant to subsection (f) and the National 
Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.], together 
with comments made concerning such environmental impact statement by 
the Secretary of the Interior, the Council on Environmental Quality, 
the Administrator, and the Commission, except that the Secretary 
shall not be required in any such environmental impact statement to 
consider the need for a repository, the alternatives to geological 
disposal, or alternative sites to the Yucca Mountain site;
    (E) Preliminary comments of the Commission concerning the extent 
to which the at-depth site characterization analysis and the waste 
form proposal for such site seem to be sufficient for inclusion in 
any application to be submitted by the Secretary for licensing of 
such site as a repository;
    (F) The views and comments of the Governor and legislature of 
any State, or the governing body of any affected Indian tribe, as 
determined by the Secretary, together with the response of the 
Secretary to such views;
    (G) Such other information as the Secretary considers 
appropriate; and
    (H) Any impact report submitted under section 116(c)(2)(B) [42 
U.S.C. 10136(c)(2)(B)] by the State of Nevada.
    This material is attached to this Recommendation, as follows:
     The description of the repository called for by section 
114(a)(1)(A) is contained in Chapter 2 of the Yucca Mountain Science 
and Engineering Report (YMS&ER), Revision 1.
     The material relating to the waste form called for by 
section 114(a)(1)(B) is contained in Chapters 3 and 4 of the YMS&ER, 
Revision 1.
     The discussion of site characterization data called for 
by section 114(a)(1)(C) is contained in Chapter 4 of the YMS&ER, 
Revision 1.
     The EIS-related material called for by section 
114(a)(1)(D) is contained in the Final Environmental Impact 
Statement (EIS) for a Geologic Repository for the Disposal of Spent 
Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye 
County, Nevada, along with letters received from the Secretary of 
the Interior, the Chair of the Council on Environmental Quality, the 
Administrator of the Environmental Protection Agency, and the 
Chairman of the Nuclear Regulatory Commission (NRC), transmitting 
their respective comments on the final EIS.
     The information called for by section 114(a)(1)(E) is 
contained in a letter from NRC Chairman Meserve to Under Secretary 
Card, dated November 13, 2001.
     The information called for by section 114(a)(1)(F) is 
contained in Section 2 of two separate reports, the Comment Summary 
Document and the Supplemental Comment Summary Document, and in a 
separate document providing responses to comments from the Governor 
of Nevada sent to the Department after the public comment periods on 
a possible site recommendation closed.
     Section 114(a)(1)(G) provides for the inclusion of 
other information as the Secretary considers appropriate. The 
report, Yucca Mountain Site Suitability Evaluation (DOE/RW-0549, 
February 2002), has been included as other information. This report 
provides an evaluation of the suitability of the Yucca Mountain site 
against Departmental Guidelines setting forth the criteria and 
methodology to be used in determining the suitability of the Yucca 
Mountain site, pursuant to section 113(b)(1)(A)(iv). In addition, 
impact reports submitted by the various Nevada counties have been 
included as other information to be forwarded to the President. In 
transmitting these reports to the President, the Department is 
neither deciding on, nor endorsing, any specific impact assistance 
requested by the governmental entities in those reports.
     The State of Nevada submitted an impact report pursuant 
to section 114(a)(1)(H). In transmitting this report to the 
President, the Department is likewise neither deciding on, nor 
endorsing this report.
---------------------------------------------------------------------------

    The approach taken in the Act led me to conclude that, after 
completing the first step of reaching a judgment as to the 
scientific suitability of Yucca Mountain, if I concluded the site 
was scientifically suitable, I should also address a second matter: 
whether it is in the overall national interest to build a repository 
there. In considering that issue, I have addressed two further 
questions: are there compelling national interests favoring 
development of the site, and if so, are there countervailing 
considerations weighty enough to overcome the arguments for 
proceeding with development? Sections 8 and 9 of this Recommendation 
set forth my conclusions on these questions.
    In my view, the statute's silence on the factors that go into 
the recommendation process makes it at a minimum ambiguous on 
whether I should conduct any inquiry beyond the question of 
scientific suitability. In light of that ambiguity, I have elected 
to construe the statute as allowing me, if I make a favorable 
suitability determination based on science, also to consider whether 
development of a repository at Yucca Mountain is in the national 
interest. For several reasons, I believe this is the better way to 
interpret the NWPA. First, given the

[[Page 9055]]

significance of a siting decision and the nature of the officers 
involved, one would expect that even if a Cabinet Secretary were to 
find a site technically suitable for a repository, he should be able 
to take broader considerations into account in determining what 
recommendation to make to the President. A pure suitability-based 
decision risks taking insufficient heed of the views of the people, 
particularly in Nevada but in other parts of the country as well. 
Second, it is difficult to envision a Cabinet Secretary's making a 
recommendation without taking into account these broader 
considerations. Finally, it is plain that any conclusion on whether 
to recommend this site is likely to be reviewed by Congress. Since 
that review will inevitably focus on broader questions than the 
scientific and technical suitability of the site, it seems useful in 
the first instance for the Executive Branch to factor such 
considerations into its recommendation as well. I note, however, 
that if my interpretation of the statute in this regard is 
incorrect, and Congress has made a finding of suitability the sole 
determinant of whether to recommend Yucca Mountain, my 
Recommendation would be the same.

6. Is Yucca Mountain Scientifically and Technically Suitable for 
Development of a Repository?

    The Department of Energy has spent over two decades and billions 
of dollars on carefully planned and reviewed scientific fieldwork 
designed to help determine whether Yucca Mountain is a suitable site 
for a repository. The results of that work are summarized in the 
Yucca Mountain Science and Engineering Report, Revision 1, and 
evaluated in the Yucca Mountain Site Suitability Evaluation (YMSSE), 
which concludes, as set out in 10 CFR part 963, that Yucca Mountain 
is ``likely'' to meet the applicable radiation standards and thus to 
protect the health and safety of the public, including those living 
in the immediate vicinity now and thousands of years from now. I 
have carefully studied that evaluation and much of the material 
underlying it, and I believe it to be correct.

6.1. Framework for Suitability Determination

6.1.1. General Outline

    The general outline of the analytic framework I have used to 
evaluate the scientific suitability of the site is set out in the 
Department's Yucca Mountain Site Suitability Guidelines, found at 10 
CFR part 963.
    The framework has three key features. First, the Guidelines 
divide the suitability inquiry into sub-inquiries concerning a 
``pre-closure'' safety evaluation and a ``post-closure'' performance 
evaluation. The ``pre-closure'' evaluation involves assessing 
whether a repository at the site is likely to be able to operate 
safely while it is open and receiving wastes. The ``post-closure'' 
evaluation involves assessing whether the repository is likely to 
continue to isolate the materials for 10,000 years after it has been 
sealed, so as to prevent harmful releases of radionuclides.
    Second, the Guidelines set out a method and criteria for 
conducting the pre-closure safety evaluation. The method is 
essentially the same as that used to evaluate the safety of other 
proposed nuclear facilities; it is not particularly novel and should 
be recognized by those familiar with safety assessments of existing 
facilities. This is because, while it is open and receiving nuclear 
materials, a repository at Yucca Mountain will not be very 
different, in terms of its functions and the activities expected to 
take place there, from many other modern facilities built to handle 
such materials. A pre-closure evaluation to assess the probable 
safety of such a facility entails considering its design, the nature 
of the substances it handles, and the kinds of activities and 
external events that might occur while it is receiving waste. It 
then uses known data to forecast the level of radioactivity to which 
workers and members of the public would be likely to be exposed as a 
result.
    Third, the Guidelines set out a method and criteria for 
evaluating the post-closure performance of the repository. This is 
the most challenging aspect of evaluating Yucca Mountain's 
suitability, since it entails assessing the ability of the 
repository to isolate radioactive materials far into the future. The 
scientific consensus is, and the Guidelines specify, that this 
should be done using a ``Total System Performance Assessment.'' This 
approach, which is similar to other efforts to forecast the behavior 
of complex systems over long periods of time, takes information 
derived from a multitude of experiments and known facts. It feeds 
that information into a series of models. These in turn are used to 
develop one overarching model of how well a repository at Yucca 
Mountain would be likely to perform in preventing the escape of 
radioactivity and radioactive materials. The model can then be used 
to forecast the levels of radioactivity to which people near the 
repository might be exposed 10,000 years or more after the 
repository is sealed.\27\
---------------------------------------------------------------------------

    \27\ The selection of the 10,000-year compliance period for the 
individual-protection standard involves both technical and policy 
considerations. EPA weighed both during the rulemaking for 40 CFR 
Part 197. EPA considered policy and technical factors, as well as 
the experience of other EPA and international programs. First, EPA 
evaluated the policies for managing risks from the disposal of both 
long lived, hazardous, nonradioactive materials and radioactive 
materials. Second, EPA evaluated consistency with both 40 CFR Part 
191 and the issue of consistent time periods for the protection of 
groundwater resources and public health. Third, EPA considered the 
issue of uncertainty in predicting dose over the very long periods 
contemplated in the alternative of peak dose within the period of 
geologic stability. Finally, EPA reviewed the feasibility of 
implementing the alternative of peak risk within the period of 
geologic stability.
    As a result of these considerations, EPA established a 10,000-
year compliance period with a quantitative limit and a requirement 
to calculate the peak dose, using performance assessments, if the 
peak dose occurs after 10,000 years. Under this approach, DOE must 
make the performance assessment results for the post-10,000-year 
period part of the public record by including them in the EIS for 
Yucca Mountain.
    The relevance of a 10,000-year compliance period can also be 
understood by examining hazard indices that compare the potential 
risk of released radionuclides to other risks. One such analysis, 
presented in the Final Environmental Impact Statement for the 
Management of Commercially Generated Radioactive Waste, DOE/EIS-
0046F, examined the relative amounts of water required to bring the 
concentration of a substance to allowable drinking water standards. 
The relative hazard for spent fuel compared to the toxicity of the 
ore used to produce the reactor fuel at one year after removal of 
the spent fuel from the reactor is about the same hazard as a rich 
mercury ore. The hazard index is about the same as average mercury 
ores at about 80 years. By 200 years the hazard index is about the 
same as average lead ore; by 1,000 years it is comparable to a 
silver ore. The relative hazard index is about the same as the 
uranium ore that it came from at 10,000 years. This is not to 
suggest that the wastes from spent fuel are not toxic. However, it 
is suggested that where concern for the toxicity of the ore bodies 
is not great, the spent fuel should cause no greater concern, 
particularly if placed within multiple engineered barriers in 
geologic formations, at least as, if not more, remote from the 
biosphere than these common ores.
---------------------------------------------------------------------------

6.1.2. Radiation Protection Standards

    A key question to be answered, as part of any suitability 
determination is, ``What level of radiation exposure is acceptable?'
    DOE's Site Suitability Guidelines use as their benchmark the 
levels the NRC has specified for purposes of deciding whether to 
license a repository at Yucca Mountain. The NRC, in turn, 
established these levels on the basis of radiation protection 
standards set by the EPA. The standards generally require that 
during pre-closure, the repository facilities, operations, and 
controls restrict radiation doses to less than 15 millirem a year 
\28\ to a member of the public in its vicinity.\29\ During post-
closure, they generally require that the maximum radiation dose 
allowed to someone living in the vicinity of Yucca Mountain be no 
more than 15 millirem per year, and no

[[Page 9056]]

more than four millirem per year from certain radionuclides in the 
groundwater.\30\
---------------------------------------------------------------------------

    \28\ Risk to human beings from radiation is due to its ionizing 
effects. Radionuclides found in nature, commercial products, and 
nuclear waste emit ionizing radiation. The forms of ionizing 
radiation differ in their penetrating power or energy and in the 
manner in which they affect human tissue. Some ionizing radiation, 
known as alpha radiation, can be stopped by a sheet of paper, but 
may be very harmful if inhaled, ingested or otherwise admitted into 
the body. Long-lived radioactive elements, with atomic numbers 
higher than 92, such as plutonium, emit alpha radiation. Other 
ionizing radiation, known as beta radiation, can penetrate the skin 
and can cause serious effects if emitted from an inhaled or ingested 
radionuclide. The ionizing radiation with the greatest penetrating 
power is gamma radiation; it can penetrate and damage critical 
organs in the body. Fission products can emit both gamma and beta 
radiation depending on the radionuclides present. In high-level 
nuclear waste, beta and gamma radiation emitters, such as cesium and 
strontium, present the greatest hazard for the first 300 to 1,000 
years, by which time they have decayed. After that time, the alpha-
emitting radionuclides present the greatest hazard. Radiation doses 
can be correlated to potential biologic effects and are measured in 
a unit called a rem. Doses are often expressed in terms of 
thousandths of a rem, or millirem (mrem); the internationally used 
unit is the Sievert (S), which is equivalent to 100 rem.
    \29\ The NRC regulations also require that the annual dose to 
workers there be less than 5 rem. See 10 CFR part 63, referencing 10 
CFR part 20. This is the general standard for occupational exposure 
that applies in numerous other settings, such as operating nuclear 
facilities.
    \30\ During both pre- and post-closure, the NRC licensing rules, 
10 CFR part 63, also contain a number of more particularized 
standards for specific situations. These are referenced in the 
results tables contained in the following sections. Pursuant to 
EPA's groundwater standard, 40 CFR part 197, they also contain 
concentration limits on certain kinds of radionuclides that may be 
present in the water, whether or not their presence is attributable 
to a potential repository. These are also referenced in the results 
tables.
---------------------------------------------------------------------------

    This level of radiation exposure is comparable to, or less than, 
ordinary variations in natural background radiation that people 
typically experience each year. It is also less than radiation 
levels to which Americans are exposed in the course of their 
everyday lives--in other words, radiation ``doses'' to which people 
generally give no thought at all.
    To understand this, it is important to remember that radiation 
is part of the natural world and that we are exposed to it all the 
time. Every day we encounter radiation from space in the form of 
cosmic rays. Every day we are also exposed to terrestrial radiation, 
emitted from naturally radioactive substances in the earth's 
surface.
    In addition to natural background radiation from these sources, 
people are exposed to radiation from other everyday sources. These 
include X-rays and other medical procedures, and consumer goods 
(e.g., television sets and smoke detectors).
    Americans, on average, receive an annual radiation exposure of 
360 millirem from their surroundings. The 15 millirem dose the EPA 
standard set as the acceptable annual exposure from the repository 
is thus slightly over four percent of what we receive every year 
right now.
    Moreover, background radiation varies from one location to 
another due to many natural and man-made factors. At higher 
elevations, the atmosphere provides less protection from cosmic 
rays, so background radiation is higher. In the United States, this 
variation can be 50 or more millirem. Thus, if the repository 
generates radiation doses set as the benchmark in the Guidelines, 
the incremental radiation dose a person living in the vicinity of 
Yucca Mountain would receive from it would be about the same level 
of increase in radiation exposure as a person would experience as a 
result of moving from Philadelphia to Denver.
    Ordinary air travel is another example. Flying at typical cross-
country altitudes results in increased exposure of about one-half 
millirem per hour. If the Yucca Mountain repository generates 
radiation at the 15 millirem benchmark, it would increase the 
exposure of those living near it to about the same extent as if they 
took three round trip flights between the East Coast and Las Vegas.
    Rocks and soil also affect natural background radiation, 
particularly if the rocks are igneous or the soils derived from 
igneous rock, which can contain radioactive potassium, thorium, or 
uranium. In these cases, the variation in the background radiation 
is frequently in the tens of millirem or higher. Wood contains 
virtually no naturally occurring radioactive substances that 
contribute to radiation exposures, but bricks and concrete made from 
crushed rock and soils often do. Living or working in structures 
made from these materials can also result in tens of millirem of 
increased exposure to radiation. Thus, if the repository generates 
radiation at the levels in the Guidelines' benchmark, it is likely 
to result in less additional exposure to a person living in its 
vicinity than if he moved from a wood house to a brick house.
    Finally, it is noteworthy that the radiation protection 
standards referenced by the Guidelines are based on those selected 
by the NRC for licensing the repository. They in turn relied on the 
EPA rule establishing these as the appropriate standards for the 
site. The NRC and EPA acted pursuant to specific directives in the 
NWPA, in which Congress first assigned to the EPA the responsibility 
to set these standards, and later in the Energy Policy Act of 1992, 
which directed the EPA to act in conjunction with the National 
Academy of Sciences and develop a standard specifically for Yucca 
Mountain. The EPA carefully considered the question of how to do so. 
The 15 millirem per year standard is the same it has applied to the 
Waste Isolation Pilot Plant in New Mexico.\31\ And it is well within 
the National Academy of Sciences-recommended range, a range 
developed in part by referring to guidelines from national and 
international advisory bodies and regulations in other developed 
countries.\32\
---------------------------------------------------------------------------

    \31\ 40 CFR part 191.
    \32\ Technical Bases for Yucca Mountain Standards, National 
Academy of Sciences, National Research Council, 1995.
---------------------------------------------------------------------------

    For all these reasons, there is every cause to believe that a 
repository that can meet the 15 millirem radiation protection 
standard will be fully protective of the health and safety of 
residents living in the vicinity of the repository.\33\
---------------------------------------------------------------------------

    \33\ As noted above, the EPA, in 40 CFR part 197, also 
established groundwater protection standards in the Yucca Mountain 
rule; these are compatible with drinking water standards applied 
elsewhere in the United States, and apply maximum contaminant 
levels, as well as a 4 mrem/yr dose standard.
---------------------------------------------------------------------------

6.1.3. Underlying Hard Science

    As explained in section 6.1.1, the Guidelines contemplate the 
use of models and analyses to project whether the repository will 
meet the 15 millirem dose standard.\34\ To have confidence in the 
model results, however, it is important to understand the kind of 
science that went into constructing them.
---------------------------------------------------------------------------

    \34\ As well, of course, as the other radiation protection 
standards such as the groundwater standard.
---------------------------------------------------------------------------

    For over 20 years, scientists have been investigating every 
aspect of the natural processes--past, present and future--that 
could affect the ability of a repository beneath Yucca Mountain to 
isolate radionuclides emitted from nuclear materials emplaced there. 
They have been conducting equally searching investigations into the 
processes that would allow them to understand the behavior of the 
engineered barriers--principally the waste ``packages'' (more nearly 
akin to vaults)--that are expected to contribute to successful waste 
isolation. These investigations have run the gamut, from mapping the 
geological features of the site, to studying the repository rock, to 
investigating whether and how water moves through the Mountain. To 
give just a few examples:

At the Surface of the Repository

     Yucca Mountain scientists have mapped geologic 
structures, including rock units, faults, fractures, and volcanic 
features. To do this, they have excavated more than 200 pits and 
trenches to remove alluvial material or weathered rock to be able to 
observe surface and near-surface features directly, as well as to 
understand what events and processes have occurred or might occur at 
the Mountain.
     They have drilled more than 450 surface boreholes and 
collected over 75,000 feet of geologic core samples and some 18,000 
geologic and water samples. They used the information obtained to 
identify rock and other formations beneath the surface, monitor 
infiltration of moisture, measure the depth of the water table and 
properties of the hydrologic system, observe the rate at which water 
moves from the surface into subsurface rock, and determine air and 
water movement properties above the water table.
     They have conducted aquifer testing at sets of wells to 
determine the transport and other properties of the saturated zone 
below Yucca Mountain. These tests included injecting easily 
identified groundwater tracers in one well, which were then detected 
in another; this helped scientists understand how fast water moves.
     They have conducted tectonic field studies to evaluate 
extensions of the earth's crust and the probability of seismic 
events near Yucca Mountain.

Underground

    The Department's scientists have conducted a massive project to 
probe the area under the Mountain's surface where the repository 
will be built.
     They constructed a five mile-long main underground 
tunnel, the Exploratory Studies Facility, to provide access to the 
specific rock type that would be used for the repository. This main 
tunnel is adjacent to the proposed repository block, about 800 feet 
underground. After completing the main tunnel, they excavated a 
second tunnel, 1.6-miles long and 16.5 feet in diameter. This 
tunnel, referred to as the Cross-Drift tunnel, runs about 45 feet 
above and across the repository block.
     They then mapped the geologic features such as faults, 
fractures, stratigraphic units, mineral compositions, etc., exposed 
by the underground openings in the tunnels.
     They collected rock samples to determine geotechnical 
properties.
     They conducted a drift-scale thermal test to observe 
the effects of heat on the hydrologic, mechanical, and chemical 
properties of the rock, and chemical properties of the water and gas 
liberated as a result of heating. The four yearlong heating cycle of 
the drift-scale test was the largest known heater test in history, 
heating some seven million cubic feet of rock over its

[[Page 9057]]

ambient temperature. This test also included samples of engineered 
materials to determine corrosion resistance in simulated repository 
conditions.

In Various Laboratory-Based Studies

    Yucca Mountain scientists have supplemented with laboratory work 
the surface and underground tests previously described.
     They have tested mechanical, chemical, and hydrologic 
properties of rock samples in support of repository design and 
development of natural process models.
     They have tested radionuclides to determine solubility 
and colloid formation that affect their transport if released.
     They have tested over 13,000 engineered material 
samples to determine their corrosion resistance in a variety of 
environments.
     They have determined the chemical properties of water 
samples and the effects of heat on the behavior and properties of 
water in the host rock.
    The findings from these numerous studies were used to develop 
computer simulations that describe the natural features, events, and 
processes that exist at Yucca Mountain or that could be changed as 
the result of waste disposal. The descriptions in turn were used to 
develop the models discussed in the next section to project the 
likely radiation doses from the repository.

7. Results of Suitability Evaluations and Conclusions

    As explained above, the Guidelines contemplate that the 
Secretary will evaluate the suitability of the Yucca Mountain site 
for a repository on two separate bases.
    The Guidelines first contemplate that I will determine whether 
the site is suitable for a repository during the entire pre-closure 
or operational period, assumed to be from 50 to 300 years after 
emplacement of nuclear materials begins. To answer this question, 
the Guidelines ask me to determine whether, while it is operating, 
the repository is likely to result in annual radiation doses to 
people in the vicinity and those working there that will fall below 
the dosage levels set in the radiation protection standards.\35\ The 
Guidelines contemplate that I will use a pre-closure safety 
evaluation to guide my response.\36\
---------------------------------------------------------------------------

    \35\ 10 CFR part 963.
    \36\ Ibid.
---------------------------------------------------------------------------

    Second, the Guidelines contemplate that I will determine whether 
the repository is suitable `` in other words, may reasonably be 
expected to be safe `` after it has been sealed. To answer that 
question, the Guidelines ask me to determine whether it is likely 
that the repository will continue to isolate radionuclides for 
10,000 years after it is sealed, so that an individual living 18 
kilometers (11 miles) from the repository is not exposed to annual 
radiation doses above those set in the radiation protection 
standards.\37\ The Guidelines contemplate that I will use a Total 
System Performance Assessment to guide my response to this 
question.\38\
---------------------------------------------------------------------------

    \37\ Ibid.
    \38\ Ibid.
---------------------------------------------------------------------------

    The Department has completed both the Pre-Closure Safety 
Evaluation and TSPA called for by the Guidelines. These project that 
a repository at Yucca Mountain will result in radioactive doses well 
below the applicable radiation protection standards. As I explain 
below, I have reviewed these projections and the bases for them, and 
I believe them to be well founded. I also believe both the Pre-
Closure Safety Evaluation and the Total System Performance 
Assessment have properly considered the criteria set out in the 
Guidelines for each period. Using these evaluations as set out in 
the Guidelines,\39\ I believe it is likely that a repository at 
Yucca Mountain will result in radiation doses below the radiation 
protection standards for both periods. Accordingly, I believe Yucca 
Mountain is suitable for the development of a repository.
---------------------------------------------------------------------------

    \39\ Ibid.
---------------------------------------------------------------------------

7.1. Results of Pre-Closure Evaluations

    As explained in section 6.1.1, the Pre-Closure Safety Evaluation 
method I have employed is commonly used to assess the likely 
performance of planned or prospective nuclear facilities. 
Essentially what it involves is evaluating whether the contemplated 
facility is designed to prevent or mitigate the effects of possible 
accidents. The facility will be considered safe if its design is 
likely to result in radioactive releases below those set in the 
radiation protection standards.
    The Department has conducted such a Pre-Closure Safety 
Evaluation, which is summarized in the Yucca Mountain Science and 
Engineering Report, Revision 1.\40\ In conducting this evaluation, 
the Department considered descriptions of how the site will be laid 
out, the surface facilities, and the underground facilities and 
their operations. It also considered a series of potential hazards, 
including, for example, seismic activity, flooding, and severe 
winds, and their consequences. Finally, it considered preliminary 
descriptions of how components of the facilities' design would 
prevent or mitigate the effects of accidents.
---------------------------------------------------------------------------

    \40\ Yucca Mountain Science and Engineering Report, Revision 1.
---------------------------------------------------------------------------

    The Pre-Closure Safety Evaluation concluded that the preliminary 
design would prevent or dramatically mitigate the effects of 
accidents, and that the repository would therefore not result in 
radioactive releases that would lead to exposure levels above those 
set by the radiation protection standards. It considered the pre-
closure criteria of 10 CFR 963.14 in reaching this conclusion. In 
particular, it found that the preliminary design has the ability to 
contain and limit releases of radioactive materials; the ability to 
implement control and emergency systems to limit exposures to 
radiation; the ability to maintain a system and components that 
perform their intended safety functions; and the ability to preserve 
the option to retrieve wastes during the pre-closure period. The 
annual doses of radiation to which the Pre-Closure Safety Evaluation 
projected individuals in the vicinity of the repository and workers 
would be exposed are set out in the following table. These doses 
fall well below the levels that the radiation protection standards 
establish.
    I have carefully reviewed the Pre-Closure Safety Evaluation and 
find its conclusions persuasive. I am therefore convinced that a 
repository can be built at Yucca Mountain that will operate safely 
without harming those in the repository's vicinity during the pre-
closure period. Finally, I would note that although many aspects of 
this project are controversial, there is no controversy of which I 
am aware concerning this aspect of the Department's conclusions. 
This stands to reason. The kinds of activities that would take place 
at the repository during the pre-closure period `` essentially, the 
management and handling of nuclear materials including packaging and 
emplacement in the repository `` are similar to the kinds of 
activities that at present go on every day, and have gone on for 
years, at temporary storage sites around the country. These 
activities are conducted safely at those sites, and no one has 
advanced a plausible reason why they could not be conducted equally 
if not more safely during pre-closure operations at a new, state-of-
the-art facility at Yucca Mountain.
    That is not an insignificant point, since the pre-closure period 
will last at least 50 years after the start of emplacement, which 
will begin at the earliest eight years from today. Moreover, the 
Department's Pre-Closure Safety Evaluation also assumed a possible 
alternative pre-closure period of 300 years from the beginning of 
emplacement, and its conclusions remained unchanged. Thus, the 
Department's conclusion that the repository can operate safely for 
the next 300 years `` or for about three generations longer than the 
United States has existed `` has not been seriously questioned.

[[Page 9058]]



               Table 1.--Summary Pre-Closure Dose Performance Criteria and Evaluation Results \41\
----------------------------------------------------------------------------------------------------------------
              Standard                          Limits                                Results
----------------------------------------------------------------------------------------------------------------
                                              Public Exposures \a\
----------------------------------------------------------------------------------------------------------------
Pre-closure standard: 10 CFR         15 mrem/yr\b\..............  0.06 mrem/yr \b\
 63.204, referenced in 10 CFR
 963.2; Pre-Closure Performance
 Objective for normal operations
 and Category 1 event sequences per
 10 CFR 63.111(a)(2), referenced in
 10 CFR 963.2.
Constraint specified for air         10 mrem/yr \b,d\...........  0.06 mrem/yr \b\
 emissions of radioactive material
 to the environment (not a dose
 limitation): 10 CFR 20.1101 (d)
 \c\.
Dose limits for individual member    100 mrem/yr \b,d\..........  0.06mrem/yr \b\
 of the public for normal            2 mrem/hr in any             2 mrem/hr
 operations and Category 1 event      unrestricted area from
 sequences: 10 CFR 20.1301 \c\.       external sources.
Pre-Closure Performance Objective    5 rem \b\..................  0.02 rem \b\
 for any Category 2 event sequence:  50 rem organ or tissue dose  0.10 rem
 10 CFR 63.111(b)(2), referenced in   (other than the lens of
 10 CFR 963.2.                        the eye).                   0.06 rem
                                     15 rem lens of the eye dose  0.04 rem \b\
                                     50 rem skin dose...........
----------------------------------------------------------------------------------------------------------------
                                               Workers' Exposures
----------------------------------------------------------------------------------------------------------------
Occupational Dose Limits for Adults  5 rem/yr \b\...............  0.01 rem/yr \b\
 from normal operational emissions   50 rem/yr organ or tissue    0.10 rem/yr
 and Category 1 event sequences: 10   dose (other than the lens   0.15 rem/yr
 CFR 20.1201 \e\.                     of the eye).                0.13 rem/yr
                                     15 rem/yr lens of the eye
                                      dose.
                                     50 rem/yr skin dose........
Routine Occupational Dose Limits     5 rem/yr \b\...............  0.06 to 0.79 rem/yr \b\
 for Adults: 10 CFR 20.1201 \e\.
----------------------------------------------------------------------------------------------------------------
\a\ Results for public exposures are calculated at the site boundary.
\b\ Total effective dose equivalent.
\c\ 10 CFR 63.111(a)(1), which is referenced in 10 CFR 963.2, would require repository operations area to meet
  the requirements of 10 CFR part 20.
\d\ 10 CFR 20.1301(a)(1), which is cross-referenced through 10 CFR 963.2; dose limit to extent applicable.
\e\ 10 CFR 63.111(b)(1), which referenced in 10 CFR 963.2, would require repository design objectives for
  Category 1 and normal operations to meet 10 CFR 63.111(a)(1) requirements (10 CFR part 20).

7.2. Results of Post-Closure Evaluations

    The\41\ most challenging aspect of evaluating Yucca Mountain is 
assessing the likely post-closure performance of a repository 10,000 
years into the future. As previously explained, the Department's 
Guidelines contemplate that this will be done using a Total System 
Performance Assessment. That assessment involves using data compiled 
from scientific investigation into the natural processes that affect 
the site, the behavior of the waste, and the behavior of the 
engineered barriers such as the waste packages; developing models 
from these data; then developing a single model of how, as a whole, 
a repository at Yucca Mountain is likely to behave during the post-
closure period. The model is then used to project radiation doses to 
which people in the vicinity of the Mountain are likely to be 
exposed as a result of the repository. Finally, the assessment 
compares the projected doses with the radiation protection standards 
to determine whether the repository is likely to comply with them.
---------------------------------------------------------------------------

    \41\ Yucca Mountain Site Suitability Evaluation.
---------------------------------------------------------------------------

    The challenge, obviously, is that this involves making a 
prediction a very long time into the future concerning the behavior 
of a very complex system. To place 10,000 years into perspective, 
consider that the Roman Empire flourished nearly 2,000 years ago. 
The pyramids were built as long as 5,000 years ago, and plants were 
domesticated some 10,000 years ago. Accordingly, as the NRC 
explained, ``Proof that the geologic repository will conform with 
the objectives for post-closure performance is not to be had in the 
ordinary sense of the word because of the uncertainties inherent in 
the understanding of the evolution of the geologic setting, 
biosphere, and engineered barrier system''\42\ over 10,000 years. 
The judgment that the NRC envisions making is therefore not a 
certainty that the repository will conform to the standard, 
certainty being unattainable in this or virtually any other 
important matter where choices must be made. Rather, as it goes on 
to explain, ``For such long-term performance, what is required is 
reasonable expectation, making allowance for the time period, 
hazards, and uncertainties involved, that the outcome will conform 
with the objectives for post-closure performance for the geologic 
repository.''\43\ The Nuclear Waste Technical Review Board recently 
summarized much the same thought (emphasis added): ``Eliminating all 
uncertainty associated with estimates of repository performance 
would never be possible at any repository site.''\44\
---------------------------------------------------------------------------

    \42\ Disposal of High-Level Radioactive Wastes in a Proposed 
Geologic Repository at Yucca Mountain, Nevada, Final Rule, 66 FR 
55731, 55804, November 2, 2001.
    \43\ Ibid.
    \44\ Nuclear Waste Technical Review Board Letter Report from all 
Board members to Speaker Hastert, Senator Byrd, and Secretary 
Abraham, January 24, 2002.
---------------------------------------------------------------------------

    These views, in turn, inform my understanding of the judgment I 
am expected to make at this stage of the proceeding in evaluating 
the likely post-closure performance of a repository at Yucca 
Mountain. To conclude that it is suitable for post-closure, I do not 
need to know that we have answered all questions about the way each 
aspect of the repository will behave 10,000 years from now; that 
would be an impossible task. Rather, what I need to decide is 
whether, using the TSPA results, and fully bearing in mind the 
inevitable uncertainties connected with such an enterprise, I can 
responsibly conclude that we know enough to warrant a predictive 
judgment on my part that, during the post-closure period, a 
repository at Yucca Mountain is likely to meet the radiation 
protection standards.
    I believe I can. Essentially, the reason for this is the system 
of multiple and redundant safeguards that will be created by the 
combination of the site's natural barriers and the engineered ones 
we will add. Even given many uncertainties, this calculated 
redundancy makes it likely that very little, if any, radiation will 
find its way to the accessible environment.
    Before I describe in broad terms how the TSPA results and the 
criteria used in the regulations lead to this conclusion, I would 
like to give an illustration of how this works. The illustration 
draws on the TSPA analyses, but also explains what these analyses 
mean in the real world.

[[Page 9059]]

An Example

    The most studied issue relating to Yucca Mountain, and the 
single most pressing concern many have felt about the post-closure 
phase of a repository there, is whether there might be a way for 
radionuclides from the emplaced nuclear materials to contaminate the 
water supply. This is not a problem unique to Yucca Mountain. 
Rather, besides disruptive events discussed later, water is the 
primary mechanism to transport radionuclides to people and is also 
the most likely mechanism for radionuclides to escape from the 
storage facilities we have now.
    In the case of Yucca Mountain, the concern has been that 
rainwater seeping into the Mountain might contact disposal casks and 
carry radionuclides down to the water table in sufficient amounts to 
endanger sources of groundwater. In my judgment, when one considers 
everything we have learned about the multiple natural and engineered 
barriers that lie at the core of the Department's planning for this 
Project, this concern turns out to have virtually no realistic 
foundation.
    Yucca Mountain is in the middle of a desert. Like any desert, it 
has an arid climate, receiving less than eight inches of rain in an 
average year. Most of that runs off the Mountain or evaporates. Only 
about five percent, less than four-tenths of an inch per year, ever 
reaches repository depth.
    In order to reach the tunnels where the waste casks would be 
housed, this water must travel through about 800 feet of densely 
welded and bedded tuffs,\45\ a trip that will typically require more 
than 1,000 years. The amount of water that eventually reaches the 
repository level at any point in time is very small, so small that 
capillary forces tend to retain it in small pores and fractures in 
the rock. It is noteworthy that all our observations so far indicate 
that no water actually drips into the tunnels at this level and all 
of the water is retained within the rock.
---------------------------------------------------------------------------

    \45\ Yucca Mountain consists of alternating layers of welded and 
nonwelded volcanic material known as welded and non-welded tuff: 
welded tuff at the surface, welded tuff at the level of the 
repository, and an intervening layer of nonwelded tuffs. These 
nonwelded units contain few fractures; thus, they delay the downward 
flow of moisture into the welded tuff layer below, where the 
repository would be located. At the repository level, water in small 
fractures has a tendency to remain in the fractures rather than flow 
into larger openings, such as tunnels. Thus, the small amount of 
water traveling through small fractures near any emplacement tunnel 
would tend to flow around the tunnel, rather than seeping, forming a 
drip, and falling onto the drip shields below. Non-welded tuffs 
below the repository also provide a significant barrier to 
radionuclide transport. Deposits of minerals in the fractures 
demonstrate that for the last several million years the repository 
host rock has been under unsaturated conditions, even when higher 
precipitation, owing to the continent's overall glacial conditions, 
prevailed at the Mountain's surface.
---------------------------------------------------------------------------

    In spite of this finding, our TSPA ran calculations based on the 
assumption that water does drip into the tunnels. At that point, 
even just to reach radionuclides in the waste, the water would still 
have to breach the engineered barriers. These include waste packages 
composed of an outer barrier of highly corrosion-resistant alloy and 
a thick inner barrier of high quality stainless steel.
    The waste package is designed to prevent contact between the 
waste pellets and water that might seep into the tunnels 
unexpectedly, and thus to prevent release of radionuclides.\46\ In 
addition, anchored above each waste package is a titanium drip 
shield that provides yet more protection against seepage. But even 
assuming the water defeats both the titanium shield and the metal 
waste package, the waste form itself is a barrier to the release of 
radionuclides. Specifically, the spent fuel is in the form of 
ceramic pellets, resistant to degradation and covered with a 
corrosion-resistant metal cladding.
---------------------------------------------------------------------------

    \46\ These engineered barriers will protect the waste under a 
wide range of conditions. For example, the barriers are protected by 
their underground location from the daily variations in temperature 
and moisture that occur above ground. As a result, the Mountain 
provides favorable conditions for the performance of these barriers. 
Indeed, the battery of tests we have conducted suggests that the 
waste packages are extremely resistant to corrosion.
---------------------------------------------------------------------------

    Nevertheless, DOE scientists ran a set of calculations assuming 
that water penetrated the titanium shield and made small holes in 
three waste packages, due to manufacturing defects (even though the 
manufacturing process will be tightly controlled). The scientists 
further assumed that the water dissolves some of the ceramic waste. 
Even so, the analyses showed that only small quantities of 
radionuclides would diffuse and escape from the solid waste form. In 
order to reach the water table from the repository, the water, now 
assumed to be carrying radionuclides, must travel another 800 feet 
through layers of rock, some of which are nearly impenetrable. 
During this trip, many of the radionuclides are adsorbed by the rock 
because of its chemical properties.
    The result of all this is instructive. Even under these adverse 
conditions, all assumed in the teeth of a high probability that not 
one of them will come to pass, the amount of radionuclides reaching 
the water table is so low that annual doses to people who could 
drink the water are well below the applicable radiation standards, 
and less than a millionth of the annual dose people receive from 
natural background radiation. Extrapolating from these calculations 
shows that even if all of the waste packages were breached in the 
fashion I have described above, the resulting contribution to annual 
dose would still be below the radiation safety standards, and less 
than one percent of the natural background.\47\
---------------------------------------------------------------------------

    \47\ Yucca Mountain Science and Engineering Report, Revision 1.
---------------------------------------------------------------------------

Total System Performance More Generally

    It is important to understand that there is nothing unique about 
the kind of planning illustrated in the water seepage scenario 
described above. Rather, the scenario is characteristic of the 
studies DOE has undertaken and the solutions it has devised: 
deliberately pessimistic assumptions incorporated sometimes to the 
point of extravagance, met with multiple redundancies to assure 
safety. For example, one of our scenarios for Nevada postulates the 
return of ice ages, and examines Yucca Mountain assuming that it 
would receive about twice as much rain as it does today with four 
times as much infiltration into the Mountain.
    As in the example above, the Department evaluated physical and 
historical information used to develop models of repository 
components, and then employed those models to forecast how the 
repository would perform in the post-closure period. These results 
are described at length in the TPSA analyses and summarized in 
Chapter 4 of the Yucca Mountain Science and Engineering Report.\48\
---------------------------------------------------------------------------

    \48\ Ibid.
---------------------------------------------------------------------------

    The Department used the suitability criteria set forth in 10 CFR 
963.17 in the TSPA analyses. It carefully evaluated and modeled the 
behavior of characteristics of the site, such as its geologic, 
hydrologic, geophysical, and geochemical properties. Likewise it 
evaluated what are called unsaturated zone flow characteristics, 
such as precipitation entering the Mountain and water movement 
through the pores of the rock--in other words, natural processes 
which affect the amount of water entering the unsaturated zone above 
the repository and potentially coming in contact with wastes inside. 
DOE also evaluated and modeled near-field environment 
characteristics, such as effects of heat from the waste on waterflow 
through the site, the temperature and humidity at the engineered 
barriers, and chemical reactions and products that could result from 
water contacting the engineered barriers.
    The Department carefully studied and modeled the characteristics 
of the engineered barriers as they aged. DOE emphasized specifically 
those processes important to determining waste package lifetimes and 
the potential for corroding the package. It examined waste form 
degradation characteristics, including potential corrosion or break-
down of the cladding on the spent fuel pellets and the ability of 
individual radionuclides to resist dissolving in water that might 
penetrate breached waste packages. It examined ways in which 
radionuclides could begin to move outward once the engineered 
barrier system has been degraded--for example, whether colloidal 
particles might form and whether radionuclides could adhere to these 
particles as they were assumed to wash through the remaining 
barriers. Finally, the Department evaluated and modeled saturated 
and unsaturated zone flow characteristics, such as how water with 
dissolved radionuclides or colloidal particles might move through 
the unsaturated zone below the repository, how heat from the waste 
would affect waterflow through the site, and how water with 
dissolved radionuclides would move in the saturated zone 800 feet 
beneath the repository (assuming it could reach that depth).
    Consistent with 10 CFR 963.17, the Department also evaluated the 
lifestyle and habits of individuals who potentially could be exposed 
to radioactive material at a future time, based, as would be 
required by NRC

[[Page 9060]]

licensing regulations,\49\ on representative current conditions. 
Currently, there are about 3,500 people who live in Amargosa Valley, 
the closest town to Yucca Mountain. They consume ground or surface 
water from the immediate area through direct extraction or by eating 
plants that have grown in the soil. The Department therefore assumed 
that the ``reasonably maximally exposed individual''--that is, the 
hypothetical person envisioned to test whether the repository is 
likely to meet required radiation protection standards--likewise 
would drink water and eat agricultural products grown with water 
from the area, and built that assumption into its models.
---------------------------------------------------------------------------

    \49\ 10 CFR part 63.
---------------------------------------------------------------------------

    Using the models described above, as well as a host of others it 
generated taking account of other relevant features, events and 
processes that could affect the repository's performance, the 
Department developed a representative simulation of the behavior of 
the proposed Yucca Mountain site. It then considered thousands of 
possibilities about what might happen there. For example, it 
considered the possibility that waste packages might be manufactured 
defectively. It considered the possibility that the climate would 
change. It considered earthquakes. Our studies show that earthquakes 
probably will occur at Yucca Mountain sometime in the future. 
Because the occurrence of earthquakes is difficult to predict, our 
models conservatively treat earthquakes by assuming that they will 
occur over the next 10,000 years.
    Essentially, if the Department believed that there was close to 
a 1 in 10,000 per year probability of some potentially adverse 
occurrence in the course of the 10,000 year post-closure period 
(which comes to a probability close to one during the entire period) 
the Department considered that possibility, unless it concluded the 
occurrence would not affect the repository's performance. It then 
used the simulation model to calculate what the resulting dose would 
be based on each such possibility. Finally, it used the mean peak 
values of the results of these calculations to project the resulting 
dose.
    The Department then proceeded to consider the impact of 
disruptive events, such as volcanism, with a lower probability of 
occurrence, on the order of one in 10,000 over the entire 10,000 
year period (meaning roughly a one in a 100 million per year of 
occurring during that time). This led it to analyze, for example, 
the effects that a volcano might have on the repository's waste 
containment capabilities. Scientists started with a careful analysis 
of the entire geologic setting of Yucca Mountain. Then, with 
substantial data on regional volcanoes, they used computer modeling 
to understand each volcanic center's controlling structures. Experts 
then estimated the likelihood of magma intruding into one of the 
repository's emplacement tunnels. The DOE estimates the likelihood 
of such an event's occurring during the first 10,000 years after 
repository closure to be one chance in about 70 million per year, or 
one chance in 7,000 over the entire period.
    Including volcanoes in its analyses, the TSPA results still 
indicate that the site meets the EPA standards.\50\ What the 
calculations showed is that the projected, probability-weighted 
maximum mean annual dose to an individual from the repository for 
the next 10,000 years is one-tenth of a millirem. That is less than 
one-fifth of the dose an individual gets from a one-hour airplane 
flight. And it is less than one one-hundredth of the dose that DOE's 
Guidelines, using the EPA standards, specify as acceptable for 
assessing suitability.
---------------------------------------------------------------------------

    \50\ The results produced under volcanic scenarios are weighted 
by probability under the NRC method specified for how to treat low 
probability events. 10 CFR Part 63.
---------------------------------------------------------------------------

    Finally, in a separate assessment, analysts studied a 
hypothetical scenario under which people inadvertently intruded into 
the repository while drilling for water. The Guidelines' radiation 
protection standards, based on EPA and NRC rules, specify that as 
part of its Total System Performance Assessment, DOE should 
determine when a human-caused penetration of a waste package could 
first occur via drilling, assuming the drillers were using current 
technology and practices and did not recognize that they had hit 
anything unusual. If such an intrusion could occur within 10,000 
years, the 15 millirem dose limit would apply.
    DOE's analyses, however, indicate that unrecognized contact 
through drilling would not happen within 10,000 years. Under 
conditions that DOE believes can realistically be expected to exist 
at the repository, the waste packages are extremely corrosion-
resistant for tens of thousands of years. Even under pessimistic 
assumptions, the earliest time DOE could even devise a scenario 
under which a waste package would be unnoticeable to a driller is 
approximately 30,000 years. Before then, the waste package structure 
would be readily apparent to a driller who hit it.
    Table 2 presents the summary results of the Total System 
Performance Assessment analyses and how they compare to the 
radiation protection standards.\51\
---------------------------------------------------------------------------

    \51\ Yucca Mountain Site Suitability Evaluation.
---------------------------------------------------------------------------

In Summary

    Using the methods and criteria set out in DOE's Yucca Mountain 
Site Suitability Guidelines, I am convinced that the Yucca Mountain 
site is scientifically suitable--in a word, safe--for development of 
a repository. Specifically, on the basis of the safety evaluation 
DOE has conducted pursuant to 10 CFR 963.13, it is my judgment that 
a repository at the site is likely to meet applicable radiation 
protection standards for the pre-closure period. And on the basis of 
the Total System Performance Assessment DOE has conducted pursuant 
to 10 CFR 963.16, it is my judgment that a repository at the site is 
likely to meet applicable radiation protection standards for the 
post-closure period as well. Additionally, I have evaluated the pre-
closure suitability criteria of 10 CFR 963.14 and the post-closure 
suitability criteria of 10 CFR 963.17, and am convinced that the 
safety evaluations were done under the stringent standards required. 
Accordingly, I find the Yucca Mountain site suitable for development 
of a repository.

8. The National Interest

    Having determined that the site is scientifically suitable, I 
now turn to the remaining factors I outlined above as bearing on my 
Recommendation. Are there compelling national interests favoring 
going forward with a repository at Yucca Mountain? If so, are there 
countervailing considerations of sufficient weight to overcome those 
interests? In this section I set out my conclusions on the first 
question. In section 9 I set out my views on the second.

8.1. Nuclear Science and the National Interest

    Our country depends in many ways on the benefits of nuclear 
science: in the generation of twenty percent of the Nation's 
electricity; in the operation of many of the Navy's most strategic 
vessels; in the maintenance of the Nation's nuclear weapons arsenal; 
and in numerous research and development projects, both medical and 
scientific. All these activities produce radioactive wastes that 
have been accumulating since the mid-1940s. They are currently 
scattered among 131 sites in 39 states, residing in temporary 
surface storage facilities and awaiting final disposal. In exchange 
for the many benefits of nuclear power, we assume the cost of 
managing its byproducts in a responsible, safe, and secure fashion. 
And there is a near-universal consensus that a deep geologic 
facility is the only scientifically credible, long-term solution to 
a problem that will only grow more difficult the longer it is 
ignored.

          Table 2.--Summary Post-Closure Dose and Activity Concentration Limits and Evaluation Results
----------------------------------------------------------------------------------------------------------------
             Standard                        Limits                               Results \e\
----------------------------------------------------------------------------------------------------------------
Individual protection standard:    15 mrem/yr TEDE..........  0.1mrem/yr \a\ (HTOM)
 10 CFR 63.311, referenced in 10                              0.1 mrem/yr \a\ (LTOM)
 CFR 963.2.
Human intrusion standard: 10 CFR   15 mrem/yr TEDE..........  NA \b\
 63.321, referenced in 10 CFR
 963.2.

[[Page 9061]]

 
Groundwater protection standard:   5 pCi/L combined radium-   1.04 pCi/L\c\ (HTOM)
 10 CFR 63.331, referenced in 10    226 and radium-228,       1.04 pCi/L\c\ (LTOM)
 CFR 963.2.                         including natural
                                    background.
                                   15 pCi/L gross alpha       1.1 pCi/L\c,\ \d\ (HTOM)
                                    activity (including       1.1 pCi/L\c,\ \d\ (LTOM)
                                    radium-226 but excluding
                                    radon and uranium),
                                    including natural
                                    background.
                                   4 mrem/yr to the whole     .000023 mrem/yr (HTOM)
                                    body or any organ from    .000013 mrem/yr (LTOM)
                                    combined beta- and
                                    photon-emitting
                                    radionuclides.
----------------------------------------------------------------------------------------------------------------
\a\ Probability-weighted peak mean dose equivalent for the nominal and disruptive scenarios, which include
  igneous activity; results are based on an average annual water demand of approximately 2,000 acre-ft; the mean
  dose for groundwater-pathway-dominated scenarios would be reduced by approximately one-third by using 3,000
  acre-ft.
\b\ Human-intrusion-related releases are not expected during the period of regulatory compliance; the DOE has
  determined that the earliest time after disposal that the waste package would degrade sufficiently that a
  human intrusion could occur without recognition by the driller is at least 30,000 years, so the dose limits do
  not apply for purposes of the site suitability evaluation.
\c\ These values represent measured natural background radiation concentrations; calculated activity
  concentrations from repository releases are well below minimum detection levels, background radiation
  concentrations, and regulatory limits.
\d\ Gross alpha background concentrations are 0.4 pCi/L  0.7 (for maximum of 1.1 pCi/L).
\e\ Peak value of the mean probability-weighted results within the regulatory timeframe.
TEDE=total effective dose equivalent; HTOM=higher temperature operating mode; LTOM=lower-temperature operating
  mode; NA=not applicable. Source: Williams 2001a, Section 6, Tables 6-1, 6-2, 6-3, and 6-4.

8.2. Energy Security

    Roughly 20 percent of our country's electricity is generated 
from nuclear power. This means that, on average, each home, farm, 
factory, and business in America runs on nuclear fuel for a little 
less than five hours a day.
    A balanced energy policy--one that makes use of multiple sources 
of energy, rather than becoming dependent entirely on generating 
electricity from a single source, such as natural gas--is important 
to economic growth. Our vulnerability to shortages and price spikes 
rises in direct proportion to our failure to maintain diverse 
sources of power. To assure that we will continue to have reliable 
and affordable sources of energy, we need to preserve our access to 
nuclear power.
    Yet the Federal government's failure to meet its obligation to 
dispose of spent nuclear fuel under the NWPA--as it has been 
supposed to do starting in 1998 `` is placing our access to this 
source of energy in jeopardy. Nuclear power plants have been storing 
their spent fuel on site, but many are running out of space to do 
so. Unless a better solution is found, a growing number of these 
plants will not be able to find additional storage space and will be 
forced to shut down prematurely. Nor are we likely to see any new 
plants built.
    Already we are facing a growing imbalance between our projected 
energy needs and our projected supplies. The loss of existing 
electric generating capacity that we will experience if nuclear 
plants start going off-line would significantly exacerbate this 
problem, leading to price spikes and increased electricity rates as 
relatively cheap power is taken off the market. A permanent 
repository for spent nuclear fuel is essential to our continuing to 
count on nuclear energy to help us meet our energy demands.

8.3. National Security

8.3.1. Powering the Navy Nuclear Fleet

    A strong Navy is a vital part of national security. Many of the 
most strategically important vessels in our fleet, including 
submarines and aircraft carriers, are nuclear powered. They have 
played a major role in every significant military action in which 
the United States has been involved for some 40 years, including our 
current operations in Afghanistan. They are also essential to our 
nuclear deterrent. In short, our nuclear-powered Navy is 
indispensable to our status as a world power.
    For the nuclear Navy to function, nuclear ships must be refueled 
periodically and the spent fuel removed. The spent fuel must go 
someplace. Currently, as part of a consent decree entered into 
between the State of Idaho and the Federal Government, this material 
goes to temporary surface storage facilities at the Idaho National 
Environmental and Engineering Laboratory. But this cannot continue 
indefinitely, and indeed the agreement specifies that the spent fuel 
must be removed. Failure to establish a permanent disposition 
pathway is not only irresponsible, but could also create serious 
future uncertainties potentially affecting the continued capability 
of our Naval operations.

8.3.2. Allowing the Nation to Decommission Its Surplus Nuclear Weapons 
and Support Nuclear Non-Proliferation Efforts

    A decision now on the Yucca Mountain repository is also 
important in several ways to our efforts to prevent the 
proliferation of nuclear weapons. First, the end of the Cold War has 
brought the welcome challenge to our country of disposing of surplus 
weapons-grade plutonium as part of the process of decommissioning 
weapons we no longer need. Current plans call for turning the 
plutonium into ``mixed-oxide'' or ``MOX'' fuel. But creating MOX 
fuel as well as burning the fuel in a nuclear reactor will generate 
spent nuclear fuel, and other byproducts which themselves will 
require somewhere to go. A geological repository is critical to 
completing disposal of these materials. Such complete disposal is 
important if we are to expect other nations to decommission their 
own weapons, which they are unlikely to do unless persuaded that we 
are truly decommissioning our own.
    A repository is important to non-proliferation for other reasons 
as well. Unauthorized removal of nuclear materials from a repository 
will be difficult even in the absence of strong institutional 
controls. Therefore, in countries that lack such controls, and even 
in our own, a safe repository is essential in preventing these 
materials from falling into the hands of rogue nations. By 
permanently disposing of nuclear weapons materials in a facility of 
this kind, the United States would encourage other nations to do the 
same.

8.4. Protecting the Environment

    An underground repository at Yucca Mountain is important to our 
efforts to protect our environment and achieve sustainable growth in 
two ways. First, it will allow us to dispose of the radioactive 
waste that has been building up in our country for over fifty years 
in a safe and environmentally sound manner. Second, it will 
facilitate continued use and potential expansion of nuclear power, 
one of the few sources of electricity currently available to us that 
emits no carbon dioxide or other greenhouse gases.
    As to the first point: While the Federal government has long 
promised that it would assume responsibility for nuclear waste, it 
has yet to start implementing an environmentally sound approach for 
disposing of this material. It is past time for us to do so. The 
production of nuclear weapons at the end of the Second World War and 
for many years thereafter has resulted in a legacy of high-level 
radioactive waste and spent fuel, currently located in Tennessee, 
Colorado, South Carolina, New Mexico, New York, Washington, and 
Idaho. Among these wastes, approximately 100,000,000 gallons of 
high-level liquid waste are stored in, and in some instances have 
leaked from, temporary holding tanks. In addition to this high-level 
radioactive waste, about 2,100 metric tons of solid, unreprocessed 
fuel from a plutonium-production reactor are stored at the Hanford 
Nuclear Reservation, with another 400 metric tons stored at other 
DOE sites.

[[Page 9062]]

    In addition, under the NWPA, the Federal government is also 
responsible for disposing of spent commercial fuel, a program that 
was to have begun in 1998, four years ago. More than 161 million 
Americans, well more than half the population, reside within 75 
miles of a major nuclear facility--and, thus, within 75 miles of 
that facility's aging and temporary capacity for storing this 
material. Moreover, because nuclear reactors require abundant water 
for cooling, on-site storage tends to be located near rivers, lakes, 
and seacoasts. Ten closed facilities, such as Big Rock Point, on the 
banks of Lake Michigan, also house spent fuel and incur significant 
annual costs without providing any ongoing benefit. Over the long-
term, without active management and monitoring, degrading surface 
storage facilities may pose a risk to any of 20 major U.S. lakes and 
waterways, including the Mississippi River. Millions of Americans 
are served by municipal water systems with intakes along these 
waterways. In recent letters, Governors Bob Taft of Ohio \52\ and 
John Engler of Michigan \53\ raised concerns about the advisability 
of long-term storage of spent fuel in temporary systems so close to 
major bodies of water. The scientific consensus is that disposal of 
this material in a deep underground repository is not merely the 
safe answer and the right answer for protecting our environment but 
the only answer that has any degree of realism.
---------------------------------------------------------------------------

    \52\ Letter, Governor Bob Taft to Secretary Spencer Abraham, 
July 30, 2001.
    \53\ Letter, Governor John Engler to Secretary Spencer Abraham, 
September 5, 2001.
---------------------------------------------------------------------------

    In addition, nuclear power is one of only a few sources of power 
available to us now in a potentially plentiful and economical manner 
that could drastically reduce air pollution and greenhouse gas 
emissions caused by the generation of electricity. It produces no 
controlled air pollutants, such as sulfur and particulates, or 
greenhouse gases. Therefore, it can help keep our air clean, avoid 
generation of ground-level ozone, and prevent acid rain. A 
repository at Yucca Mountain is indispensable to the maintenance and 
potential expansion of the use of this environmentally efficient 
source of energy.

8.5. Facilitating Continuation of Research, Medical, and 
Humanitarian Programs

    The Department has provided fuel for use in research reactors in 
domestic and foreign universities and laboratories. Research 
reactors provide a wide range of benefits including the production 
of radioisotopes for medical use--e.g., in body-scan imaging and the 
treatment of cancer. To limit the risk to the public, and to support 
nuclear non-proliferation objectives, these laboratories are 
required to return the DOE-origin spent fuel from domestic research 
reactors and from foreign research reactors. These spent fuels are 
temporarily stored at Savannah River, South Carolina, and at the 
Idaho National Engineering and Environmental Laboratory while 
awaiting disposal in a permanent repository.
    Again, we can either implement a permanent solution--Yucca 
Mountain--or risk eroding our capacity to conduct this kind of 
research. The chances of a person becoming sick from the nuclear 
materials to be stored at the Yucca Mountain site are, as shown 
above, all but non-existent. Responsible critics must balance that 
against the chance of a person becoming sick as a result of the 
research that may not be undertaken, remaining sick for want of the 
drug that may not be found, or dying for lack of the cure that may 
not be developed--all because the nuclear fuel-dependent science 
that could produce these things was never done, our country having 
run out of places to dispose of the waste.

8.6. Assisting Anti-Terrorism at Home

    As I have noted previously, spent fuel and other high level 
radioactive waste is presently stored at temporary storage 
facilities at 131 locations in 39 states. Ten of these are at 
shutdown reactor sites for which security would not otherwise be 
required. Moreover, many reactors are approaching their storage 
capacity and are likely to seek some form of off-site storage, 
thereby creating potential new targets.
    Storage by reactor-owners was intended to be a temporary 
arrangement. The design of the storage facilities reflects that 
fact. They tend to be less secured than the reactors themselves, and 
the structures surrounding the fuel stored in aboveground containers 
are also less robust.
    These storage facilities should be able to withstand current 
threats. But as the determination and sophistication of terrorists 
increases, that may well change. That means we will have to choose 
one of two courses. We can continue to endeavor to secure each of 
these sites, many of which, as noted above, are close to major 
metropolitan areas and waterways. Or we can consolidate this fuel in 
one remote, secure, arid underground location and continue to 
develop state-of-the-art security arrangements to protect it there.
    To me the choice is clear. The proposed geologic repository in 
the desert at Yucca Mountain offers unique features that make it far 
easier to secure against terrorist threats. These include: (1) 
Disposal 800 feet below ground; (2) remote location; (3) restricted 
access afforded by Federal land ownership of the Nevada Test Site; 
(4) proximity to Nellis Air Force Range; (5) restricted airspace 
above the site; (6) far from any major waterways. The design and 
operation of a geologic repository, including surface operations, 
can also incorporate from the beginning appropriate features to 
protect against a terrorist threat and can be changed, if necessary, 
to respond to future changes in the terrorist threat.
    An operational repository will also be an important signal to 
other nuclear countries, none of which have opened a repository. 
Inadequately protected nuclear waste in any country is a potential 
danger to us, and we can't expect them to site a facility if we, 
with more resources, won't. A fresh look at nuclear material 
security should involve new concepts such as those inherent in a 
geologic repository, and should set the standard for the manner in 
which the international community manages its own nuclear materials.
    To understand Yucca Mountain's relative advantage in frustrating 
potential terrorist attacks compared to the status quo, one need 
only ask the following: If nuclear materials were already emplaced 
there, would anyone even suggest that we should spread them to 131 
sites in 39 states, at locations typically closer to major cities 
and waterways than Yucca Mountain is, as a means of discouraging a 
terrorist attack?

8.7. Summary

    In short, there are important reasons to move forward with a 
repository at Yucca Mountain. Doing so will advance our energy 
security by helping us to maintain diverse sources of energy supply. 
It will advance our national security by helping to provide 
operational certainty to our nuclear Navy and by facilitating the 
decomissioning of nuclear weapons and the secure disposition of 
nuclear materials. It will help us clean up our environment by 
allowing us to close the nuclear fuel cycle and giving us greater 
access to a form of energy that does not emit greenhouse gases. And 
it will help us in our efforts to secure ourselves against terrorist 
threats by allowing us to remove nuclear materials from scattered 
above-ground locations to a single, secure underground facility. 
Given the site's scientific and technical suitability, I find that 
compelling national interests counsel in favor of taking the next 
step toward siting a repository at Yucca Mountain.

9. None of the Arguments Against Yucca Mountain Withstands Analysis

    As explained above, after months of study based on research 
unique in its scope and depth, I have concluded that the Yucca 
Mountain site is fully suitable under the most cautious standards 
that reasonably might be applied. I have also concluded that it 
serves the national interest in numerous important ways. The final 
question I shall examine is whether the arguments against its 
designation not rise to a level that outweighs the case for going 
forward. I believe they do not, as I shall explain. I do so by 
briefly describing these principle arguments made by opponents of 
the Project, and then responding to them.

9.1. Assertion 1: The Citizens of Nevada Were Denied an Adequate 
Opportunity To Be Heard

    Critics have claimed that the decision-making process under the 
NWPA was unfair because it allowed insufficient opportunity for 
public input, particularly from the citizens of Nevada. That is not 
so. There was ample opportunity for public discussion and debate; 
the Department in fact went well beyond the Act's requirements in 
providing notice and the opportunity to be heard.
    My predecessors and I invited and encouraged public, 
governmental, and tribal participation at all levels. The Department 
also made numerous Yucca Mountain documents available to the public. 
These included several specifically prepared to inform any who might 
be interested of the technical information and analyses that I would 
have before me as I considered the suitability of the site. There 
was no statutory requirement for producing these documents; I 
considered it important to make them available, and thus to provide 
a timely

[[Page 9063]]

sharing of information that would form the basis of my consideration 
and, ultimately, decision.
    To assist in discharging part of the Secretarial 
responsibilities created by the Act, the Department conducted 
official public meetings before starting the Environmental Impact 
Statement. Subsequently, the Department held a total of 24 public 
hearings on the draft and the supplemental draft Environmental 
Impact Statements. With the release of the Yucca Mountain Science 
and Engineering Report in May 2001, the DOE opened a public comment 
period lasting approximately six months; the period continued 
through the release of the Preliminary Site Suitability Evaluation 
in July 2001 and closed on October 19, 2001. After publishing DOE's 
final rule, ``Yucca Mountain Site Suitability Guidelines,'' on 
November 14, 2001, I announced an additional 30-day supplemental 
comment period with a closing date of December 14, 2001. During 
these combined public comment periods, the DOE held 66 additional 
public hearings across Nevada and in Inyo County, California, to 
receive comments on my consideration of a possible recommendation of 
the Yucca Mountain site. More than 17,000 comments were 
received.\54\
---------------------------------------------------------------------------

    \54\ Comment Summary Document and Supplemental Comment Summary 
Document, February 2002.
---------------------------------------------------------------------------

    The lengths to which the Department went to solicit public 
comment can be seen in the details: From 1995 through 2001, there 
were 126 official hearings with a court reporter present. The Nevada 
cities where these hearings were held included: Amargosa Valley, 
Battle Mountain, Caliente, Carson City, Crescent Valley, Elko, Ely, 
Fallon, Gardnerville, Goldfield, Hawthorne, Las Vegas, Lovelock, 
Pahrump, Reno, Tonopah, Virginia City, Winnemucca, and Yerington. 
Elsewhere, meetings were held in Independence, Lone Pine, 
Sacramento, and San Bernardino in California; Washington, DC; Boise, 
ID; Chicago, IL; Denver, CO; Dallas/Ft. Worth, TX; Salt Lake City, 
UT; Baltimore, MD; Albany, NY; Atlanta, GA; Kansas City, MO.; 
Cleveland, OH; and St. Louis, MO.
    There were 600 hours of public meetings for the 2001 hearings 
alone. All in all, there were a total of 528 comment days, or about 
a year and a half. Additionally, the science centers were open for 
340 hours (both with and without court reporter) to receive 
comments. Since 1991, there have been 2,062 tours of Yucca Mountain, 
and 49,073 visitors have been to the site.
    In light of the extensive opportunities DOE has provided for 
public input, it is my judgment that the opportunities for hearing 
and consideration of comments were abundant and met any procedural 
measure of fairness.

9.2. Assertion 2: The Project Has Received Inadequate Study

    Critics have said that there has been inadequate study to 
determine Yucca Mountain's suitability. To the contrary, and as I 
believe section 6 of this Recommendation makes clear at length, the 
characterization process at Yucca Mountain is unprecedented for any 
even remotely comparable undertaking. Indeed, Yucca Mountain studies 
have now been under way for nearly five times as long as it took to 
build the Hoover Dam and more than six times the entire duration of 
the Manhattan Project. Yucca Mountain is, by any measure, the most 
exhaustively studied project of its kind the world has ever known.
    Beginning in 1978 and continuing to the present day, the 
Department has spent billions of dollars on characterization 
studies. There has been ongoing dialogue between the Department and 
the NRC over the goals, content and results of the test programs. As 
noted, there have been ample opportunities for public involvement. 
At this still early stage, and with many more years before the Yucca 
Mountain site could become operational, the request for yet more 
preliminary study, even before seeking a license from the NRC, is 
unsupportable. Additional study will be undertaken at stages to come 
as an appropriate part of the licensing process.
    For these reasons, I have concluded that the current body of 
accumulated scientific and technical knowledge provides a more than 
adequate technical basis to designate the Yucca Mountain site, 
thereby beginning the licensing phase of the project. For 
convenience, a listing of the types of tests that have been 
performed is provided in Table 3.

9.3. Assertion 3: The Rules Were Changed in the Middle of the Game

    The State of Nevada claims that at some point the Department 
concluded that Yucca Mountain was not suitable under earlier 
regulations, and then changed the rules to fit the site. That is not 
true. Even the most elementary knowledge of the history of the 
program shows this claim is baseless.
    The Guidelines did change, but not in a way that disadvantaged 
critics from making their case, and certainly not to suit any pre-
existing agenda at the Department. Rather, they were changed to 
conform to changes in the statutory and regulatory framework 
governing the siting process and in the scientific consensus 
regarding the best approach for assessing the likely performance of 
a repository over long periods of time.

       Table 3.--Types of Tests Performed to Collect Data for Site
                 Characterization of Yucca Mountain \55\
------------------------------------------------------------------------
             Process models                 Types of tests and studies
------------------------------------------------------------------------
Unsaturated Zone (the rocks above the    Future climate studies,
 water table containing little water      Infiltration model studies,
 that limit the amount of water that      Unsaturated zone flow model
 can contact waste packages).             studies, Seepage model
                                          studies, Unsaturated zone
                                          transport studies.
Near-Field Environment (moisture,        Drift scale test, Single heater
 temperature, and chemistry conditions    test, Large block test, Field
 surrounding and affecting the waste      tests on coupled processes,
 packages).                               Laboratory coupled processes
                                          tests.
Engineered Barrier System (EBS) (man-    Cementicious materials tests,
 made features comprising the             EBS design tests, In-drift gas
 repository that influence how            composition tests, In-drift
 radionuclides might move).               water chemistry, precipitates
                                          and salts tests, Microbial
                                          communities tests,
                                          Radionuclide transport tests,
                                          Drift degradation analysis
                                          tests, Rock mass mechanical
                                          properties tests.
Waste Package (metal container that the  Waste package environment
 wastes would be placed in).              tests, Materials selection
                                          studies, General corrosion
                                          tests, Localized corrosion
                                          tests, Stress corrosion
                                          cracking tests, Hydrogen-
                                          induced cracking tests,
                                          Metallurgical stability/phases
                                          tests, Manufacturing defects
                                          tests, Filler material tests,
                                          Welding tests.
Waste Form (high-level wastes and spent  Radioisotope inventory study,
 fuel that are the source of              In-package chemistry tests,
 radionuclides).                          Commercial spent nuclear fuel
                                          cladding degradation tests,
                                          Defense spent nuclear fuel
                                          degradation tests, High level
                                          waste glass degradation tests,
                                          Dissolved radioisotope
                                          concentration tests, Colloid
                                          radioisotope concentration
                                          tests.
Saturated Zone (movement of water in     Saturated zone characterization
 rocks below the water table).            studies, Saturated zone flow
                                          studies Saturated zone
                                          transport studies.
Integrated Site Model (computer models   Geologic framework model
 of the geology).                         studies, Rock properties model
                                          studies, Mineralogical model
                                          studies.

[[Page 9064]]

 
Site Description (description of the     Geologic mapping studies,
 repository).                             Fracture data collection
                                          studies, Natural resources
                                          assessment studies, Erosion
                                          studies, Natural and man-made
                                          analog studies.
Disruptive Events (unlikely disruptions  Probability of igneous activity
 to the repository).                      studies, Characteristics of
                                          igneous activity studies,
                                          Seismic hazards studies.
------------------------------------------------------------------------

      
---------------------------------------------------------------------------

    \55\ Summary information about progress in testing is provided 
to the NRC twice each year. There are 23 Semiannual Progress Reports 
available, covering all testing for the Yucca Mountain site. These 
documents include references to numerous technical reports of the 
Program, which number in the thousands.
---------------------------------------------------------------------------

    The DOE's original siting Guidelines were promulgated in 1984. 
At the time, the Nuclear Waste Policy Act called on the Department 
to evaluate and characterize multiple sites and to recommend one or 
more among them. Also at the time, consistent with the scientific 
and regulatory consensus of the late 1970's, the Nuclear Regulatory 
Commission had in place regulations for licensing repositories that 
sought to protect against radioactive releases by focusing on the 
performance of individual subparts, or subsystems, that were part of 
the repository. Finally, the EPA had proposed rules for repositories 
that also focused on limiting the amount and type of radionuclides 
released from a repository. Consistent with this framework, DOE's 
Guidelines focused on making comparative judgments among sites and 
emphasized mechanisms for evaluating the performance of potential 
repository subsystems against the NRC subsystem performance 
requirements and the EPA release limits.
    Starting in 1987, however, both the regulatory framework and 
scientific consensus began to change. To begin with, Congress 
changed the law governing evaluation and selection of a repository 
site. In 1987, it amended the Nuclear Waste Policy Act to eliminate 
any authority or responsibility on the part of the Department for 
comparing sites, directed the Department to cease all evaluation of 
any potential repository sites other than Yucca Mountain, and 
directed it to focus its efforts exclusively on determining whether 
or not to recommend the Yucca Mountain site. This change was 
important, as it eliminated a central purpose of the Guidelines--to 
compare and contrast multiple fully characterized sites for ultimate 
selection of one among several for recommendation.
    Next, Congress reinforced its directive to focus on Yucca 
Mountain in section 801 of the Energy Policy Act of 1992. This 
provision also gave three new directives to EPA. First, it directed 
EPA, within 90 days of enactment, to contract with the National 
Academy of Sciences for a study regarding, among other topics, 
whether a specific kind of radiation protection standard for 
repositories would be protective of public health and safety. The 
question posed was whether standards prescribing a maximum annual 
effective dose individuals could receive from the repository--as 
opposed to the then-current standards EPA had in place focusing on 
releases--would be reasonable standards for protecting health and 
safety at the Yucca Mountain site. Second, Congress directed EPA, 
consistent with the findings and recommendations of the Academy, to 
promulgate such standards no later than one year after completion of 
the Academy's study. Finally, it directed that such standards, when 
promulgated, would be the exclusive public health and safety 
standards applicable to the Yucca Mountain site. Section 801 also 
contained a directive to the NRC that, within a year after EPA's 
promulgation of the new standards, NRC modify its licensing criteria 
for repositories under the NWPA as necessary to be consistent with 
the EPA standards.
    Pursuant to the section 801 directive, in 1995 the National 
Academy of Sciences published a report entitled ``Technical Bases 
for Yucca Mountain Standards.''\56\ This report concluded that dose 
standards would be protective of public health and safety.\57\ It 
also concluded that if EPA adopted this kind of standard, it would 
be appropriate for the NRC to revise its licensing rules, which 
currently focused on subsystem performance, to focus instead on the 
performance of the total repository system, including both its 
engineered and natural barriers. It noted that this would be a 
preferable approach because it was the performance of the entire 
repository, not the different subsystems, that was crucial, and that 
imposition of separate subsystem performance requirements might 
result in suboptimal performance of the repository as a whole.\58\ 
Finally, National Academy of Sciences noted that its 
recommendations, if adopted, ``impl[ied] the development of 
regulatory and analytical approaches for Yucca Mountain that are 
different from those employed in the past'' whose promulgation would 
likely require more than the one-year timeframe specified in the 
Energy Policy Act of 1992.
---------------------------------------------------------------------------

    \56\ Technical Bases for Yucca Mountain Standards, National 
Academy of Sciences, National Research Council, 1995.
    \57\ Ibid.
    \58\ Ibid.
---------------------------------------------------------------------------

    Along with these changes in regulatory thinking, the scientific 
and technical understanding of repository performance at Yucca 
Mountain was advancing. The DOE's use of Total System Performance 
Assessment to evaluate repository performance became more 
sophisticated, and helped focus DOE's research work on those areas 
important to maximizing the safety of the repository and minimizing 
public exposure to radionuclide releases from the repository.
    In 1999, the culmination of years of scientific and technical 
advancements and careful regulatory review resulted in EPA and NRC 
proposals for new regulations specific to a repository at Yucca 
Mountain based on state-of-the-art science and regulatory 
standards.\59\ Since section 113(c) of the NWPA directed DOE to 
focus its site characterization activities on those necessary to 
evaluate the suitability of the site for a license application to 
the NRC, the proposed changes to the EPA and NRC rules in turn 
required DOE to propose modifications to its criteria and 
methodology for determining the suitability of the Yucca Mountain 
site. Accordingly, DOE proposed new state-of-the-art Yucca-Mountain-
specific site suitability Guidelines consistent with NRC licensing 
regulations.\60\ After EPA and NRC finalized their revisions,\61\ 
DOE promptly finalized its own.\62\ For the reasons explained in the 
National Academy of Sciences study, the revised Guidelines' focus on 
the performance of the total repository system also makes them a 
better tool for protection of public safety than the old Guidelines, 
since the old subsystem approach might have resulted in a repository 
whose subsystems performed better in one or another respect but 
whose total performance in protecting human health was inferior.
---------------------------------------------------------------------------

    \59\ Disposal of High-Level Radioactive Wastes in a Proposed 
Geological Repository at Yucca Mountain, Nevada, Proposed Rule, 64 
FR 8640, February 22, 1999; Environmental Radiation Protection 
Standards for Yucca Mountain, Nevada, Proposed Rule, 64 FR 46975, 
August 27, 1999.
    \60\ General Guidelines for the Recommendation of Sites for 
Nuclear Waste Repositories, Yucca Mountain Site Suitability 
Guidelines, 64 FR 67054, November 30, 1999.
    \61\ Public Health and Environmental Radiation Protection 
Standards for Yucca Mountain, Nevada, Final Rule, 66 FR 32073, June 
13, 2001; Disposal of High-Level Radioactive Wastes in a Proposed 
Geologic Repository at Yucca Mountain, Nevada; Final Rule, 66 FR 
55732, November 2, 2001.
    \62\ General Guidelines for the Recommendation of Sites for 
Nuclear Waste Repositories, Yucca Mountain Site Suitability 
Guidelines, Final Rule, 66 FR 57303, November 14, 2001.
---------------------------------------------------------------------------

    In short, far from seeking to manipulate its siting Guidelines 
to fit the site, DOE had no choice but to amend its Guidelines to 
conform with the new regulatory framework established at Congress's 
direction by the National Academy of Sciences, the EPA, and the NRC. 
Moreover, this framework represents the culmination of a carefully 
considered set of regulatory decisions initiated at the direction of 
the Congress of the United States and completed nine years

[[Page 9065]]

later, in which top scientists in the country have participated, and 
in which expert regulatory authorities, the NRC and the EPA, have 
played the leading role. These authorities likewise agree that the 
new regulatory framework, of which the Department's revised 
Guidelines are a necessary part, forms a coherent whole well 
designed to protect the health and safety of the public.

9.4. Assertion 4: The Process Tramples States' Rights

    Some have argued that a Federal selection of siting disrespects 
states' rights. That is incorrect. Indeed, Nevada's interests have 
been accorded a place in Federal law to an extent seldom, if ever, 
seen before.
    As provided by the NWPA, the State of Nevada has the right to 
veto any Presidential site recommendation. It may do so by 
submitting a notice of disapproval to Congress within 60 days of the 
President's action.
    If Nevada submits a notice of disapproval, Congress has 90 
calendar days of continuous session to override the notice by 
passing a resolution of siting designation. If it does not do so, 
the State's disapproval becomes effective.
    The respect due Nevada has not stopped with grudging obedience 
to the statutory commands. Instead, as noted previously, the 
Department has held hearings over a range of dates and places well 
in excess of what reasonably could have been viewed as a statutory 
mandate. And I have taken full account of Governor Guinn's comment 
and those of Nevada's other elected officials who oppose this 
Project. Although they reflect a view I do not share, I will 
continue to accord them the highest degree of respect.
    Finally, the Federal Government has appropriated more funds to 
Nevada to conduct its own Yucca Mountain studies than any other 
State has ever been given for any remotely similar purpose. Since 
the start of the Program in 1983, the State of Nevada has received 
over $78 million in oversight funding. Since 1989, when the affected 
units of local government requested oversight funding, they have 
received over $67 million. In total, the State of Nevada and the 
affected units of local government have received over $145 million 
over that timeframe; with Nye County, home to Yucca Mountain, 
receiving over $22 million and Clark County, home to Las Vegas, 
receiving about $25 million. In addition, over the last 10 years, 
the State of Nevada and the affected units of local government have 
been given over $73 million to compensate for taxes they would have 
collected on the site characterization and the development and 
operation of a repository if they were legally authorized to tax 
activities of the Federal Government. Nye County has also conducted 
its own oversight drilling program since 1996, for which over that 
time Nye has received almost $21 million. Thus, the grand total that 
has been awarded to the state and its local governments simply on 
account of Yucca Mountain research has been nearly $240 million.
    Given the extensive evidence that the state has been, and will 
be, accorded a degree of involvement and authority seldom if ever 
accorded under similar circumstances, it is my judgment that the 
assertion of an infringement on state's rights is incorrect.

9.5. Assertion 5: Transportation of Nuclear Materials Is Disruptive 
and Dangerous

    Critics have argued that transporting wastes to Yucca Mountain 
is simply too dangerous, given the amount involved and the distances 
that will need to be traversed, sometimes near population centers.
    These concerns are not substantiated for three principal 
reasons. First, they take no account of the dangers of not 
transporting the wastes and leaving them to degrade and/or 
accumulate in their present, temporary facilities. Second, they pay 
no heed to the fact that, if the Yucca Mountain repository is not 
built, some wastes that would have been bound for that location will 
have to be transported elsewhere, meaning that our real choice is 
not between transporting or not transporting, but between 
transporting with as much planning and safety as possible, or 
transporting with such organization as the moment might invite. And 
third, they ignore the remarkable record of safe transportation of 
nuclear materials that our country has achieved over more than three 
decades.
    The first point is not difficult to understand. The potential 
hazards of transporting wastes are made to appear menacing only by 
ignoring the potential hazards of leaving the material where it is--
at 131 aging surface facilities in 39 states. Every ton of waste not 
transported for five or ten minutes near a town on the route to 
Yucca Mountain is a ton of waste left sitting in or near someone 
else's town--and not for five or ten minutes but indefinitely. Most 
of the wastes left where they are in or near dozens of towns (and 
cities) continue to accumulate day-by-day in temporary facilities 
not intended for long-term storage or disposal.
    The second point is also fairly simple. Many of these older 
sites have reached or will soon reach pool storage limits. Over 40 
are projected to need some form of dry storage by 2010. Additional 
facilities will therefore be required. There are real limits, 
however, to how many of these can realistically be expected to be 
built on site. Many utilities do not have the space available to 
build them, and are likely to face major regulatory hurdles in 
attempting to acquire it.
    Therefore one way or another, unless all these reactors shut 
down, off-site storage facilities will need to be built, substantial 
amounts of waste will have to be transported there, and this will 
happen not in the distant future but quite soon. For example, today 
nuclear utilities and a Native American tribe in Utah are working 
toward construction of an ``interim'' storage facility on tribal 
land. Whether or not this effort ultimately succeeds, it is likely 
that some similar effort will. Thus, if we are merely to keep our 
present supply of nuclear energy, at some fast-approaching point 
there will be transportation of nuclear wastes. The only question is 
whether we will have (a) numerous supplemental storage sites 
springing up, with transportation to them arranged ad hoc, or (b) 
one permanent repository, with transportation to it arranged 
systematically and with years of advance planning. The second 
alternative is plainly preferable, making the Yucca Mountain plan 
superior on this ground alone.
    Finally, transportation of nuclear waste is not remotely the 
risky venture Yucca's critics seek to make it out to be. Over the 
last 30 years, there have been over 2,700 shipments of spent nuclear 
fuel. Occasional traffic accidents have occurred, but there has not 
been one identifiable injury related to radiation exposure because 
of them. In addition, since 1975, or since the last stages of the 
war in Vietnam, national security shipments have traveled over 100 
million miles--more than the distance from here to the sun--with no 
accidents causing a fatality or harmful release of radioactive 
material.\63\
---------------------------------------------------------------------------

    \63\ About the Transportation Safeguards System, Office of 
Transportation Safeguards Fact Sheet.
---------------------------------------------------------------------------

    Our safety record is comparable to that in Europe, where nuclear 
fuel has been transported extensively since 1966.\64\ Over the last 
25 years, more than 70,000 MTU (an amount roughly equal to what is 
expected to be shipped over the entire active life of the Yucca 
Mountain Project) has been shipped in approximately 20,000 casks. 
France and Britain average 650 shipments per year, even though the 
population density in each of those countries grossly exceeds that 
of the United States.
---------------------------------------------------------------------------

    \64\ Presentation by Ronald Pope, Head of Transport Safety Unit 
for the Internal Atomic Energy Agency, at 13th International 
Symposium for Packing of Radioactive Materials 2001, Chicago, IL, 
September 2001.
---------------------------------------------------------------------------

    Even so, we need not, and should not, be content to rest upon 
the record of the past no matter how good. For transportation to 
Yucca Mountain, the Department of Transportation has established a 
process that DOE and the states must use for evaluating potential 
routes. Consistent with Federal regulations, the NRC would approve 
all routes and security plans and would certify transportation casks 
prior to shipment.
    In short, for all these reasons, I have concluded that the 
stated concerns about transportation are ill-founded and should not 
stand in the way of taking the next step toward designation of the 
Yucca Mountain site.

9.6. Assertion 6: Transportation of Wastes to the Site Will Have a 
Dramatically Negative Economic Impact on Las Vegas

    There have been repeated assertions that shipments of 
radioactive waste through the Las Vegas valley could have effects on 
the local, entertainment-based, economy. Such effects could include, 
for example, discouraging tourism and lowering property values. 
These assertions are largely unsupportable by any evidence and are 
addressed in the Final Environmental Impact Statement.
    Much of what has been said in the preceding section applies here 
as well. The record speaks for itself. In addition to the history of 
safe shipment on interstate highways through relatively open spaces, 
five metric tons of spent nuclear fuel from 27 countries have, over 
the last 16 years, been transported without incident through

[[Page 9066]]

Concord, California, and Charleston, South Carolina (the latter, 
like Las Vegas, a tourist destination). There is no reason to 
believe that a similar safe record will not be achieved in Nevada.
    The truth of it is that many tourists coming to Las Vegas will 
be farther from nuclear sites when they get there than when they 
left home. All major nuclear power generation facilities in the 
United States are located near large metropolitan centers in order 
to minimize the amount of power lost during transmission. It is thus 
not surprising that more than 161 million Americans are closer to a 
commercial nuclear facility than anyone in Las Vegas is to Yucca 
Mountain, as shown in Table 4. Indeed there are few large 
metropolitan centers that do not have a major nuclear facility 
located within 75 miles.\65\
---------------------------------------------------------------------------

    \65\ It is noteworthy that Atlantic City has three reactor sites 
closer than 75 miles at the same time its tourism-based economy has 
been expanding. Yucca Mountain, by contrast, would be one of the few 
nuclear facilities in the country in a remote area with no 
metropolitan center within 75 miles.

   Table 4.--U.S. Population in Contiguous United States Living Within Various Distances of Commercial Nuclear
                                                   Facilities
----------------------------------------------------------------------------------------------------------------
                                                           Zone (miles from facilities)
              State              -------------------------------------------------------------------------------
                                       0-25            25-50           50-75           0-50            0-75
----------------------------------------------------------------------------------------------------------------
AL..............................         327,488         617,283         452,817         944,771       1,397,588
AR..............................          91,993         159,544         859,399         251,537       1,110,936
AZ..............................          25,803       1,550,878       1,608,816       1,576,682       3,185,497
CA..............................       2,488,467       8,666,094      11,962,159      11,154,561      23,116,719
CO..............................           (\1\)           (\1\)           (\1\)           (\1\)           (\1\)
CT..............................         962,725       2,394,573          55,292       3,357,298       3,412,590
DC..............................  ..............         153,634         418,425         153,634         572,059
DE..............................         457,523         184,324         123,438         641,847         765,285
FL..............................       1,135,427       2,865,538       3,550,098       4,000,965       7,551,063
GA..............................         186,028         886,879       1,145,585       1,072,907       2,218,491
IA..............................         512,517         566,867         474,723       1,079,384       1,554,107
ID..............................           (\1\)           (\1\)           (\1\)           (\1\)           (\1\)
IL..............................       2,068,321       7,970,381         835,971      10,038,701      10,874,673
IN..............................          34,431         945,514         468,802         979,945       1,448,747
KS..............................          19,797         161,268         686,554         181,065         867,619
KY..............................
LA..............................         786,052       1,592,771         772,888       2,378,823       3,151,710
MA..............................         740,668       4,346,548       1,275,039       5,087,217       6,362,255
MD..............................         438,958       2,528,095       2,007,566       2,967,053       4,974,619
ME..............................         151,828         521,691         280,266         673,520         953,785
MI..............................         898,433       3,815,786       2,491,128       4,714,219       7,205,346
MN..............................         450,935       2,999,162         330,754       3,450,097       3,780,850
MO..............................          72,929         393,186         952,824         466,115       1,418,939
MS..............................          36,411         169,211         561,585         205,622         767,207
MT..............................
NC..............................       1,864,567       2,265,107       2,577,799       4,129,674       6,747,239
ND..............................
NE..............................         564,594         181,950         379,944         746,544       1,126,488
NH..............................         278,528         649,119         188,301         927,646       1,115,947
NJ..............................         795,512       5,628,139       2,023,890       6,423,650       8,447,540
NM..............................           (\1\)           (\1\)           (\1\)           (\1\)           (\1\)
NV..............................
NY..............................       1,866,267       9,017,732       5,435,801      10,883,999      16,319,800
OH..............................         656,156       2,790,959       2,074,628       3,447,115       5,521,743
OK..............................  ..............  ..............           5,479  ..............           5,479
OR..............................          45,053       1,381,995         432,829       1,427,047       1,859,876
PA..............................       3,206,819       6,437,719       1,564,624       9,644,538      11,209,162
RI..............................          19,252         284,282         744,786         303,534       1,048,320
SC..............................         705,470       1,760,435         747,457       2,465,906       3,213,363
SD..............................  ..............  ..............             569  ..............             569
TN..............................         532,368         456,157         927,261         988,525       1,915,786
TX..............................         136,390       1,337,035       3,766,243       1,473,425       5,239,668
UT..............................           (\1\)           (\1\)           (\1\)           (\1\)           (\1\)
VA..............................         597,715       2,377,308       2,221,770       2,975,024       5,196,794
VT..............................          54,257          43,739          77,319          97,996         175,315
WA..............................         331,397         500,577         585,734         831,974       1,417,708
WI..............................         542,083       2,065,518       1,646,584       2,607,601       4,254,185
WV..............................          43,813          65,183          37,095         108,996         146,090
WY..............................
                                 -------------------------------------------------------------------------------
      Grand Total...............      24,126,975      80,732,181      56,752,239     104,859,156     161,651,160
Proposed Repository at Yucca               1,678          13,084          19,069          14,762         33,831
 Mountain: Population around
 Yucca Mountain.................
----------------------------------------------------------------------------------------------------------------
\1\ State with no commercial facilities but with other nuclear facilities depending on a repository for waste
  disposition.


[[Page 9067]]

    As shown in Table 5, 22 of the 30 most populous metropolitan 
areas in the United States have 36 operating nuclear reactors closer 
to them than a waste repository at Yucca Mountain would be to Las 
Vegas, some 90 miles distant.

                   Table 5.--Top 30 Metropolitan Areas in Contiguous U.S. by Population--Distance to Nearest Commercial Power Reactor
                     [Does not include other nuclear facilities that are dependent on a high-level repository for waste disposition]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Population                                                                                                  Distance
 Rank           Area name           2000 Census         Major population centers             State        Nearest commercial  nuclear reactor   (miles)
                                     (note 1)                                                                                                   (note 4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
     1  New York-Northern New        21,199,865  New York.............................  NY.............  Indian Point........................       45.0
         Jersey-Long Island, NY-                 Jersey City..........................  NJ.............  Indian Point........................       44.4
         NJ-CT-PA CMSA (Note 2).
     2  Los Angeles-Riverside-       16,373,645  Los Angeles..........................  CA.............  San Onofre..........................       61.5
         Orange County, CA CMSA.                 Riverside............................  CA.............  San Onofre..........................       41.2
     3  Chicago-Gary-Kenosha, IL-     9,157,540  Chicago..............................  IL.............  Zion................................       44.9
         IN-WI CMSA.                             Rockford.............................  IL.............  Byron...............................       17.7
     4  Washington-Baltimore, DC-     7,608,070  Baltimore............................  MD.............  Peach Bottom........................       43.0
         MD-VA-WV CMSA.                          Washington, DC.......................  DC.............  Calvert Cliffs......................       51.2
     5  San Francisco-Oakland-San     7,039,362  San Francisco........................  CA.............  Rancho Seco.........................       81.3
         Jose, CA CMSA.                          Oakland..............................  CA.............  Rancho Seco.........................       73.3
                                                 San Jose.............................  CA.............  Rancho Seco.........................       81.8
     6  Philadelphia-Wilmington-      6,188,463  Philadelphia.........................  PA.............  Limerick............................       34.1
         Atlantic City, PA-NJ-DE-
         MD CMSA.
     7  Boston-Worcester-             5,819,100  Boston...............................  MA.............  Pilgrim.............................       45.2
         Lawrence, MA-NH-ME-CT                   Worcester............................  MA.............  Vermont Yankee......................       60.3
         CMSA.
     8  Detroit-Ann Arbor-Flint,      5,456,428  Detroit..............................  MI.............  Fermi...............................       30.4
         MI CMSA.
     9  Dallas-Fort Worth, TX         5,221,801  Dallas...............................  TX.............  Comanche Peak.......................       69.3
         CMSA.                                   Fort Worth...........................  TX.............  Comanche Peak.......................       41.7
    10  Houston-Galveston-            4,669,571  Houston..............................  TX.............  South Texas Project.................       82.7
         Brazoria, TX CMSA.
    11  Atlanta, GA MSA (Note 3).     4,112,198  Atlanta..............................  GA.............  Sequoyah............................      121.7
    12  Miami-Fort Lauderdale, FL     3,876,380  Fort Lauderdale......................  FL.............  Turkey Point........................       57.9
         CMSA.                                   Miami................................  FL.............  Turkey Point........................       29.6
    13  Seattle-Tacoma-Bremerton,     3,554,760  Seattle..............................  WA.............  Trojan..............................      111.4
         WA CMSA.                                Tacoma...............................  WA.............  Trojan..............................       86.4
    14  Phoenix-Mesa, AZ MSA.....     3,251,876  Glendale.............................  AZ.............  Palo Verde..........................       40.4
                                                 Scottsdale...........................  AZ.............  Palo Verde..........................       56.3
                                                 Phoenix..............................  AZ.............  Palo Verde..........................       45.8
                                                 Tempe................................  AZ.............  Palo Verde..........................       55.2
                                                 Mesa.................................  AZ.............  Palo Verde..........................       60.2
                                                 Chandler.............................  AZ.............  Palo Verde..........................       59.4
    15  Minneapolis-St. Paul, MN-     2,968,806  Minneapolis..........................  MN.............  Monticello..........................       39.1
         WI MSA.                                 Saint Paul...........................  MN.............  Prairie Island Station..............       34.2
    16  Cleveland-Akron, OH CMSA.     2,945,831  Cleveland............................  OH.............  Perry...............................       39.3
                                                 Akron................................  OH.............  Perry...............................       59.3
    17  San Diego, CA MSA........     2,813,833  San Diego............................  CA.............  SAN ONOFRE..........................       50.7
    18  St. Louis, MO-IL MSA.....     2,603,607  Saint Louis..........................  MO.............  Callaway............................       91.7
    19  Denver-Boulder-Greeley,       2,581,506  Denver...............................  CO.............  Fort Calhoun........................      495.6
         CO CMSA.
    20  Tampa-St. Petersburg-         2,395,997  Tampa................................  FL.............  Crystal River.......................       81.9
         Clearwater, FL MSA.
    21  Pittsburgh, PA MSA.......     2,358,695  Pittsburgh...........................  PA.............  Beaver Valley.......................       29.6
    22  Portland-Salem, OR-WA         2,265,223  Portland.............................  OR.............  Trojan..............................       37.2
         CMSA.
    23  Cincinnati-Hamilton, OH-      1,979,202  Cincinnati...........................  OH.............  Davis Besse.........................      206.8
         KY-IN CMSA.
    24  Sacramento-Yolo, CA CMSA.     1,796,857  Sacramento...........................  CA.............  Rancho Seco.........................       26.1
    25  Kansas City, MO-KS MSA...     1,776,062  Kansas City..........................  MO.............  Wolf Creek..........................       88.2
                                                 Kansas City..........................  KS.............  Wolf Creek..........................       87.0
    26  Milwaukee-Racine, WI CMSA     1,689,572  Milwaukee............................  WI.............  Zion................................       44.2
    27  Orlando, FL MSA..........     1,644,561  Orlando..............................  FL.............  Crystal River.......................       98.7
    28  Indianapolis, IN MSA.....     1,607,486  Indianapolis.........................  IN.............  Clinton.............................      156.5
    29  San Antonio, TX MSA......     1,592,383  San Antonio..........................  TX.............  South Texas Project.................      161.3
    30  Norfolk-Virginia Beach-       1,569,541  Newport News.........................  VA.............  Surry...............................       23.2
         Newport News, VA-NC MSA.                Virginia Beach.......................  VA.............  Surry...............................       53.4
                                                 Norfolk..............................  VA.............  Surry...............................      37.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Populations from 2000 Census data for Continental USA.
\2\ CMSA means ``Consolidated Metropolitan Statistical Area''.
\3\ MSA means ``Metropolitan Statistical Area''.
\4\ Distances shown are relative to a central feature such as a city hall, county seat, or capitol building.

    Many cities with strong tourism industries are located closer to 
existing storage facilities than Las Vegas would be to a repository 
at Yucca Mountain. Therefore, those who assert that a repository 90 
miles from Las Vegas would have dramatically negative effects on 
local tourism have the burden of producing strong evidence to back 
up their claims. They have not done so. Thus, I know of no reason

[[Page 9068]]

to believe that there is any compelling argument that the Las Vegas 
economy would be harmed by a repository at Yucca Mountain.

9.7. Assertion 7: It Is Premature for DOE To Make a Site 
Recommendation for Various Reasons

9.7.1. The General Accounting Office Has Concluded That It Is Premature 
for DOE To Make a Site Recommendation Now

    The GAO did make this statement in its draft report, Technical, 
Schedule, and Cost Uncertainties of the Yucca Mountain Repository 
Project, which was prematurely released.\66\ After receiving the 
Department's response, however, in the final version of this report, 
released in December 2001, GAO expressly acknowledged that ``the 
Secretary has the discretion to make such a recommendation at this 
time.'' \67\
---------------------------------------------------------------------------

    \66\ Nuclear Waste: Technical, Schedule, and Cost Uncertainties 
of the Yucca Mountain Repository Project, Unpublished Draft.
    \67\ Nuclear Waste: Technical, Schedule, and Cost Uncertainties 
of the Yucca Mountain Repository Project, GAO-02-191, December 21, 
2001.
---------------------------------------------------------------------------

9.7.2. DOE Is Not Ready To Make a Site Recommendation Now Because DOE 
and NRC Have Agreed on 293 Technical Items That Need To Be Completed 
Before DOE Files a License Application

    The Nuclear Regulatory Commission provided a sufficiency letter 
to DOE on November 13, 2001, that concluded that existing and 
planned work, upon completion, would be sufficient to apply for a 
construction authorization. The agreed upon course of action by DOE 
and the NRC is intended to assist in the license application phase 
of the project, not site recommendation. In consultation with the 
Nuclear Regulatory Commission staff concerning licensing, DOE agreed 
it would obtain certain additional information relating to nine 
``key technical issues'' to support license application. The DOE 
agreed to undertake 293 activities that would assist in resolution 
of these issues.
    The NRC has never stated that this was work that DOE needed to 
complete before site recommendation. In fact, it went out of its way 
not to do so. The Commission is well aware that section 114(a)(1)(E) 
of the NWPA requires a Secretarial recommendation of Yucca Mountain 
to be accompanied by a letter from the Commission providing its 
preliminary comments on the sufficiency of the information the 
Department has assembled for a construction license application. Had 
it been of the view that site recommendation should not proceed, its 
preliminary views would have stated that this information is not 
sufficient and that the Commission has no confidence that it ever 
will be.
    Instead, in its section 114(a)(1)(E) letter, the Commission said 
the opposite: ``[T]he NRC believes that sufficient at-depth 
characterization analysis and waste form proposal information, 
although not available now, will be available at the time of a 
potential license application such that development of an acceptable 
license application is achievable'' (emphasis added). It also listed 
the outstanding issues as ``closed pending,'' meaning that the NRC 
staff has confidence that DOE's proposed approach, together with the 
agreement to provide additional information, acceptably addresses 
the issue so that no information beyond that provided or agreed to 
would likely be required for a license application.
    The DOE has completed over one-third of the actions necessary to 
fulfill the 293 agreements and has submitted the results to the NRC 
for review. The NRC has documented 23 of these as ``complete.'' The 
remaining work consists largely of documentation (improve technical 
positions and provide additional plans and procedures) and 
confirmation (enhance understanding with additional testing or 
analysis or additional corroboration of data or models).
    As I explained earlier, the NWPA makes clear that site 
recommendation is an intermediate step. The filing of a construction 
license application is the step that comes after site recommendation 
is complete. It is entirely unsurprising that the Department would 
have to do additional work before taking that next step. But the 
fact that the next step will require additional work is no reason 
not to take this one.

9.7.3. It Is Premature for DOE To Make a Recommendation Now Because DOE 
Cannot Complete This Additional Work Until 2006. The NWPA Requires DOE 
To File a License Application Within 90 Days of the Approval of Site 
Designation

    When Congress enacted the NWPA in 1982, it included in the Act a 
series of deadlines that represented its best judgment regarding how 
long various steps should take. These deadlines included the 90-day 
provision referenced above. They also included a requirement that 
DOE begin disposing of waste in 1998, in the expectation that a 
repository would by then have been built and licensed.
    Obviously, the timeframes set in the Act have proven to be 
optimistic. That is no reason, however, for the Department not to 
honor what was plainly their central function: to move along as 
promptly and as responsibly as possible in the development of a 
repository. Accordingly, to read the 90-day provision at issue as a 
basis for proceeding more slowly stands the provision on its head.
    Our current plans call for filing a license application at the 
end of 2004, not 2006. Assuming Congressional action on this 
question this year, that would mean that DOE could be two years late 
in filing the application. But any delay in site recommendation will 
only result in further delay in the filing of this application. For 
the reasons explained in section 7, I believe I have the information 
necessary to allow me to determine that the site is scientifically 
and technically suitable, and I have so determined. That being so, I 
am confident that I best honor the various deadlines set out in the 
Act, including the central 1998 deadline (already passed) specifying 
when the Department was to begin waste disposal, by proceeding with 
site recommendation as promptly as I can after reaching this 
conclusion.

10. Conclusion

    As I explained at the outset of this document, the Nuclear Waste 
Policy Act vests responsibilities for deciding how this country will 
proceed with regard to nuclear waste in a number of different 
Federal and state actors. As Secretary of Energy, I am charged with 
making a specific determination: whether to recommend to the 
President that Yucca Mountain be developed as the site for a 
repository for spent fuel and high-level radioactive wastes. I have 
endeavored to discharge that responsibility conscientiously and to 
the best of my ability.
    The first question I believe the law asks me to answer is 
whether the Yucca Mountain site is scientifically and technically 
suitable for development as a repository. The amount and quality of 
research the Department of Energy has invested into answering this 
question--done by top-flight people, much of it on the watch of my 
predecessors from both parties--is nothing short of staggering. 
After careful evaluation, I am convinced that the product of over 20 
years, millions of hours, and four billion dollars of this research 
provides a sound scientific basis for concluding that the site can 
perform safely during both the pre- and post-closure periods, and 
that it is indeed scientifically and technically suitable for 
development as a repository.
    Having resolved this fundamental question, I then turned to a 
second set of considerations: are there compelling national 
interests that warrant proceeding with this project? I am convinced 
that there are, and that a repository for nuclear waste at Yucca 
Mountain will advance, in important ways, our energy security, our 
national security, our environmental goals, and our security against 
terrorist attacks.
    Finally, I examined the arguments that opponents of the project 
have advanced for why we should not proceed. I do not believe any of 
them is of sufficient weight to warrant following a different 
course.
    Accordingly, I have determined to recommend to the President 
that he find Yucca Mountain qualified for application for a 
construction authorization before the Nuclear Regulatory Commission, 
and that he recommend it for development of a repository.

[FR Doc. 02-4440 Filed 2-26-02; 8:45 am]
BILLING CODE 6450-01-P