[Federal Register Volume 67, Number 47 (Monday, March 11, 2002)]
[Proposed Rules]
[Pages 10853-10856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5763]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 60

[Docket No. PRM-60-2 and 60-2A]


The States of Nevada and Minnesota; Denial of Petition for 
Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM-60-2 and 60-2A) submitted by the States of Nevada 
and Minnesota dealing with disposal of high-level radioactive waste 
(HLW). In PRM-60-2, the petitioners requested that the NRC adopt a 
regulation governing the implementation of certain generally applicable 
environmental standards for HLW that had been proposed by the U.S. 
Environmental

[[Page 10854]]

Protection Agency (EPA) in 1982. Subsequently, in PRM-60-2A, the 
petitioners amended their original petition after EPA issued final 
standards in 1985. The amended petition was placed on hold pending 
completion of certain rulemaking activities, including EPA and NRC 
development of new HLW disposal standards applicable only to a site at 
Yucca Mountain, Nevada. The NRC is denying the petition because the NRC 
considered and partially addressed petitioners' concerns in the 
development of its site-specific standards for a proposed repository at 
Yucca Mountain, and amending NRC's generic repository licensing 
regulations at this time would unnecessarily expend limited Commission 
resources because there is no current expectation that the generic 
regulations, in their current form, will be used.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letter to the petitioners may be examined at 
the NRC Public Document Room, Room O1F23, located at 11555 Rockville 
Pike, Rockville, MD.
    The NRC maintains an Agencywide Document Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. These documents may be accessed through the NRC's Public 
Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC 
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, telephone (301) 415-
6196, e-mail [email protected] or Timothy McCartin, telephone (301) 415-7285, 

e-mail [email protected] of the Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001.

SUPPLEMENTARY INFORMATION:

The Petition

    On April 30, 1985 (50 FR 18267), the NRC published a notice of 
receipt of a petition for rulemaking (PRM-60-2) filed by the States of 
Nevada and Minnesota (petitioners) on January 21, 1985. The petition 
requested that the NRC amend its regulations in 10 CFR Part 60 that 
govern disposal of HLW in geologic repositories. The petitioners 
requested that NRC amend its regulations to add assurance requirements 
proposed by the EPA (40 CFR 191.14) in EPA's proposed rule (47 FR 
58196; December 29, 1982) to establish generally applicable 
environmental standards for the management and disposal of spent 
nuclear fuel, HLW and transuranic wastes. EPA published its final 
environmental standards on September 19, 1985 (50 FR 38066).\1\ The 
final standards included the assurance requirements of concern to 
petitioners (e.g., institutional controls and post-permanent closure 
monitoring), but EPA did not impose these requirements on facilities 
regulated by the NRC (see 40 CFR 191.14 (1985)). The petitioners 
subsequently filed an amended petition with the NRC on September 30, 
1985 (PRM-60-2A) and the NRC published a notice of receipt of the 
amended petition on December 19, 1985 (50 FR 51701).
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    \1\ EPA's final disposal standards at 40 CFR Part 191 were 
struck down by the U.S. Court of Appeals for the 1st Circuit in NRDC 
v. EPA, 824 F.2d 1258 (1st Cir. 1987). However, in 1992, Congress, 
in the Waste Isolation Pilot Plant Land Withdrawal Act, Public Law 
102-579, reinstated the standards for sites other than Yucca 
Mountain, Nevada, except for those portions that were the specific 
subject of the judicial remand. The assurance requirements, 40 CFR 
191.14, were among the reinstated standards.
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    The amended petition requested that NRC amend 10 CFR part 60 to: 
(1) incorporate regulations that are substantively equivalent to EPA's 
1985 assurance requirements, and (2) incorporate regulations pertaining 
to NRC's potential adoption of the Final Environmental Impact Statement 
(FEIS) to be prepared by the U.S. Department of Energy (DOE) as part of 
its site recommendation of a potential geologic repository. In the 
notice of the amended petition, the NRC noted that rulemaking actions 
currently underway, when finalized, would address the concerns 
expressed by petitioners (50 FR 51703). The actions included proposed 
amendments to 10 CFR part 60 to eliminate inconsistencies between NRC's 
generic regulations and EPA's 1985 standards, and proposed amendments 
to 10 CFR part 51 on the adoption of DOE's FEIS. Accordingly, the 
notice advised readers that further consideration of the issues raised 
by petitioners would be deferred for consideration in these 
rulemakings. On July 3, 1989 (54 FR 27864), the NRC published a final 
rule, ``NEPA Review Procedures for Geologic Repositories for High-Level 
Waste.'' In that rulemaking, the NRC denied the portion of the amended 
petition proposing specific regulations to govern the process for 
adopting DOE's FEIS, but considered the concerns raised by petitioners 
on this issue in the process of formulating the final rule (54 FR 
27868).

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit comments. The comment period closed on 
July 1, 1985, for PRM-60-2, and February 18, 1986, for PRM-60-2A. The 
NRC received eight comment letters on the petition and the amendment 
from seven commenters (one commenter provided comments on both PRM-60-2 
and 60-2A). There were six comment letters on PRM-60-2 and two comment 
letters on PRM-60-2A. Of the seven commenters, five were from States 
and two were from representatives of the nuclear power industry. The 
State commenters agreed with petitioners that assurance requirements 
should be included in NRC regulations whereas the industry commenters 
believed that assurance provisions should be in guidance rather than 
the regulations.

Intervening Actions

    Subsequent to submission of the petitions, two events occurred 
which substantially altered the legal landscape of the Government's 
program for the disposal of HLW. These events resulted in the 
Commission's withdrawal of its proposed amendments to conform 10 CFR 
part 60 to EPA's 1985 standards (63 FR 66498; December 2, 1998). First, 
in 1987, Congress amended the Nuclear Waste Policy Act of 1982 (NWPA) 
in the Nuclear Waste Policy Amendments Act (Public Law 100-203), to 
provide, among other things, that only the site at Yucca Mountain, 
Nevada, (YM) would be characterized for possible selection as a 
geologic repository. Second, in the Energy Policy Act of 1992 (Public 
Law 102-486), Congress required that EPA issue public health and 
environmental radiation protection standards that would apply solely to 
the YM site and that NRC modify its technical requirements and criteria 
to be consistent with the EPA standards. Pursuant to these statutory 
changes, the EPA issued its final standards applicable to YM in a new 
40 CFR Part 197 on June 13, 2001 (66 FR 32074) and the NRC issued its 
final conforming requirements in a new 10 CFR part 63--``Disposal of 
High-Level Radioactive Wastes in a Proposed Geologic Repository at 
Yucca Mountain, Nevada'' (66 FR 55732; November 2, 2001). In its 
rulemaking, the NRC also amended 10 CFR part 60 to make it clear that 
10 CFR part 60 only applies to the licensing of repositories at sites 
other than Yucca Mountain.

[[Page 10855]]

Denial of the Petition

    The NRC is denying the petition, as amended, for the following 
reasons:
    1. The petitioners' concerns were considered in the rulemaking 
establishing 10 CFR part 63 and the regulations in 10 CFR part 60 no 
longer apply to a repository at YM. Therefore, the petition, even if 
granted, would not affect the regulatory regime now in place for the 
licensing of a potential repository at the YM site.
    The NRC has established a new set of regulations applicable 
specifically and exclusively to a proposed repository at YM in 10 CFR 
part 63. The issues raised by the petitioners were considered in the 
course of this rulemaking as explained below. However, the petitioners' 
requested amendments were specifically directed to the provisions 
contained in 10 CFR part 60, ``Disposal of High-Level Radioactive 
Wastes in Geologic Repositories.'' At the time the petition was filed, 
these regulations were applicable to any potential HLW repository that 
would be sited, constructed or operated under the NWPA, including one 
at YM. However, 10 CFR part 60 now has been amended, in light of the 
statutory changes brought about by the 1987 amendments to the NWPA and 
by the Energy Policy Act of 1992, to apply to any potential repository 
except one at YM.
    2. There is no immediate need for revising 10 CFR part 60 and doing 
so would unnecessarily expend limited Commission resources.
    In the rulemaking to establish separate requirements for a 
repository at YM, the Commission chose to leave its existing generic 
requirements intact and in place. The Commission acknowledged that if a 
need arises to apply the existing generic requirements at 10 CFR part 
60, those requirements would need to be revised to account for 
developments in the capability of technical methods for assessing the 
performance of a geologic repository. See 64 FR 8641, 8643; February 
22, 1999. However, the Commission expressed confidence that it would be 
afforded adequate time and resources in future years to amend its 
generic regulations for any additional repository site that might be 
authorized. Should it become necessary to revise these regulations, 
petitioners would have ample opportunity to suggest amendments. Barring 
such an eventuality, however, there is no immediate need to amend 10 
CFR part 60 and doing so would unnecessarily expend limited Commission 
resources.

10 CFR Part 63 and the Petition

    Although the Commission is denying the petition for the reasons 
stated above, the Commission considered the substantive issues raised 
in the petition in the development of NRC's final 10 CFR part 63 rule. 
A summary of how the petitioners' proposals are addressed in 10 CFR 
part 63 is provided below:

Post-permanent Closure Monitoring

    The petitioners proposed revisions to the regulations that provide 
further specification to the requirements for the monitoring program to 
be implemented after the repository has been permanently sealed (i.e., 
post-permanent closure). Generally, the petitioners requested that 
post-permanent closure monitoring provide substantive confirmatory 
information regarding long-term repository performance at the time of 
license termination, post-permanent closure monitoring will not degrade 
repository performance, and that minimum requirements for the 
description of the monitoring program be established in the regulation 
(e.g., parameters to be monitored and monitoring devices). The 
Commission's new regulations in 10 CFR part 63 address the petitioners' 
concerns in the requirements for a performance confirmation program and 
a program for post-permanent closure monitoring.
    Although both the performance confirmation program and the post-
permanent closure monitoring program include monitoring, the Commission 
considers these two programs to be distinctly different because each 
program addresses very distinct regulatory periods and decisions. The 
performance confirmation program is conducted up to the time of the 
decision to permanently close the repository. Thus, the performance 
confirmation data is used to inform and increase confidence in the 
Commission's decision on permanent closure of the repository. 
Objectives and requirements of the performance confirmation program are 
specified in subpart F of part 63 that are consistent with the 
petitioners' recommendations (e.g., the performance confirmation 
program: monitors and evaluates subsurface conditions against design 
assumptions; confirms natural and engineered barriers are functioning 
as intended and anticipated; monitors and analyzes changes from the 
baseline condition of parameters that could affect repository 
performance; and is conducted in a manner that does not adversely 
affect repository performance). When DOE files an application to amend 
the license for permanent closure, it is required, by Sec. 63.51(a)(1), 
to update its performance assessment of the repository with the 
performance confirmation data. Consistent with NRC's licensing 
procedures, this information and associated analyses will be available 
to all stakeholders.
    The program of post-permanent closure monitoring begins after the 
performance confirmation program ends (i.e., after the time of 
permanent closure). The program for post-permanent closure monitoring 
would only occur if the Commission reaches a positive finding on the 
amendment for permanent closure. If an amendment for permanent closure 
is granted, it is expected that the performance confirmation program 
would have provided further information to increase confidence that 
repository performance is expected to comply with the regulations. 
Post-permanent closure monitoring is not considered an extension of the 
confirmation program, but is intended as a more general program 
expected to monitor a variety of conditions (e.g., land-use controls 
established under Sec. 63.121(b), safeguards information, and potential 
release of radionuclides into ground water) to ensure public health and 
safety is protected. The Commission did not specify details for the 
post-permanent closure monitoring program in 10 CFR part 63, as was 
provided for the performance confirmation program. DOE's development 
and NRC review of the post-permanent closure monitoring program, 
submitted as part of the license amendment for permanent closure, will 
benefit from the results of the performance confirmation program 
(anticipated to extend over tens of years). Therefore, the Commission 
considers the general requirement for a post-permanent closure 
monitoring program to be appropriate and additional details are neither 
necessary nor warranted at this time. As part of a license amendment 
for permanent closure [Sec. 63.51(a)(2)], the details of the post-
permanent closure monitoring program will be subject to regulatory 
review and the NRC's licensing process.

Institutional Controls

    The petitioners provided additional text for 10 CFR part 60 that 
would clarify the regulatory approach for institutional controls. 
First, the petitioners proposed definitions for active and passive 
institutional controls. The Commission agrees with the concepts for 
active and passive institutional controls as proposed by the 
petitioners and has included the essential elements of the petitioner's

[[Page 10856]]

definitions in 10 CFR part 63. Specifically, 10 CFR part 63 includes a 
definition for passive institutional controls (Sec. 63.302) and 
provides specific requirements for active institutional controls in the 
regulation. Active institutional controls are specific actions required 
during, and beyond, the operational phase of a potential repository 
that are more appropriate as regulatory requirements rather than as 
parts of a definition. Specific aspects of the petitioner's proposed 
definition for ``active institutional control'' are provided in 10 CFR 
part 63, such as: (1) requirements for ownership and control of 
interests in land (Sec. 63.121); (2) program to control and monitor 
radioactive effluents during operations (Sec. 63.21); (3) performance 
confirmation program (Subpart F); and (4) plans for decontamination of 
surface facilities (Sec. 63.52). In addition, pursuant to the Energy 
Policy Act of 1992, DOE is required to provide post-closure oversight 
to prevent any activity at the site that poses an unreasonable risk of 
breaching the repository's engineered or geologic barriers or 
increasing exposures of the public beyond allowable limits. A detailed 
description of DOE's post-closure oversight program is required at 
Sec. 63.51(a)(3).
    Second, the petitioners requested a new section be added to 10 CFR 
part 60 clarifying that institutional controls will not assure 
compliance beyond 100 years after disposal, but that passive 
institutional controls may be considered in assessing the likelihood 
and consequences of processes and events affecting the geologic 
setting. A more restrictive approach for institutional controls has 
been implemented in EPA's final standards in 40 CFR part 197 and NRC's 
final standards in 10 CFR part 63 than was proposed in the petition. 
DOE is not allowed to rely on institutional controls to assure 
compliance and 10 CFR part 63 does not permit passive institutional 
controls to be considered in assessing the likelihood and consequences 
of processes and events. Both EPA's approach in 40 CFR part 197 and the 
Commission's approach in 10 CFR part 63 are based primarily on 
recommendations by the National Academy of Sciences (NAS).
    In 1992, Congress directed EPA, at Section 801 of the Energy Policy 
Act of 1992, Public Law 102-486 (EnPA), to contract with the NAS to 
advise EPA on the appropriate technical basis for public health and 
safety standards governing the Yucca Mountain repository. On August 1, 
1995, the NAS published its report entitled ``Technical Bases for Yucca 
Mountain Standards.'' The EnPA specifically asked the NAS to address 
the issue of the effectiveness of institutional controls to prevent 
breaching of the repository's engineered or geologic barriers as a 
result of human intrusion. The NAS concluded that it was not reasonable 
to assume that institutional controls will prevent breaching of the 
repository's barriers. Thus, the NAS recommended a stylized calculation 
be used to determine whether or not a human intrusion would 
substantially degrade repository performance as an approach to 
understand potential impacts to the repository. EPA's final standards 
in 40 CFR part 197 generally adopted the NAS approach. Consistent with 
statute, the NRC incorporated the EPA human intrusion standard in 10 
CFR part 63. The regulations in 40 CFR part 197 require DOE to 
determine the earliest time after disposal that the waste package would 
degrade sufficiently that a stylized human intrusion could occur 
without recognition by the drillers. DOE must then analyze in a 
stylized scenario the consequences of a potential intrusion into the 
repository, whether such intrusion occurs before or after 10,000 years 
after disposal. EPA noted in the preamble to its final rule (66 FR 
32073, at 32104, June 13, 2001) that ``DOE's waste package performance 
estimates indicate that a waste package would be recognizable to a 
driller for at least thousands of years.'' The petitioners' 
recommendation that passive institutional controls could be considered 
in assessing processes and events affecting the geologic setting is 
contrary to the NAS determination that it is not possible to make 
scientifically supportable predictions of the probability that a 
repository barrier will be breached as a result of human intrusion. 
Consistent with EPA's standards in 40 CFR part 197, the Commission has 
not included any provisions for the use of active or passive 
institutional controls to be used in determining the likelihood of 
processes and events. EPA's and NRC's final regulations for Yucca 
Mountain provide further details with regard to the adopted approach to 
human intrusion (66 FR 32073, at 32104, June 13, 2001; 66 FR 55732, at 
55760, November 2, 2001).

Multiple Barriers

    The petitioners requested performance requirements for the multiple 
barrier system of the repository specify that each barrier should be 
designed or selected so that it complements the others and can 
significantly compensate for uncertainties about the performance of one 
or more of the other barriers. The regulations in 10 CFR part 63 
require the repository to be comprised of multiple barriers (at least 
one engineered and one natural) and requires DOE to identify each 
barrier important to waste isolation, describe each barrier's 
capability to isolate waste, and provide the technical basis for each 
barrier's capability. In arriving at this approach, the Commission 
provided a technical basis in the proposed rule for 10 CFR part 63 (64 
FR 8647; February 22, 1999) and considered public comments in the final 
rule for 10 CFR part 63 (66 FR 55758; November 2, 2001). This approach 
provides the Commission the information necessary to understand how all 
components of the repository system work together to ensure that the 
repository system is robust and not wholly dependent on a single 
barrier. The petitioners' request to include additional qualifying 
words such as ``significantly compensate for uncertainties'' are 
neither necessary nor warranted to ensure the Commission is provided 
sufficient information to make its regulatory decision.

Siting Criteria

    The petitioners requested that the presence of significant 
concentrations of any naturally occurring material not widely available 
from other sources be added as a potentially adverse condition to be 
considered under siting criteria. Siting criteria were provided for in 
10 CFR part 60, in part, to provide a basis for comparing different 
sites. The regulations in 10 CFR part 63 do not contain such criteria 
because the need for siting criteria was removed when the Nuclear Waste 
Policy Amendments Act directed DOE to characterize a single site. 
Therefore, the petitioners' suggestion is not relevant to 10 CFR part 
63.

Adoption of the Environmental Impact Statement

    This section of the petition was reviewed by the Commission and 
denied in the NRC's final rule, ``NEPA Review Procedures for Geologic 
Repositories for High-Level Waste'' (54 FR 27864; July 3, 1989).
    For the reasons cited in this document, the NRC denies this 
petition.

    Dated at Rockville, Maryland, this 5th day of March, 2002.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 02-5763 Filed 3-8-02; 8:45 am]
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