ML23156A063

PRM-060-002A - 50FR51701 - States of Nevada and Minnesota: Filing of Petition for Rulemaking

ML23156A063
Person / Time
Issue date:	12/19/1985
From:	Bates A NRC/SECY
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References
PRM-060-002A, 50FR51701
Download: ML23156A063 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 12/19/1985 TITLE: PRM-060-002A- 50FR51701 - STATES OF NEVADA AND MINNESOTA: FILING OF PETITION FOR RULEMAKING CASE

REFERENCE:

PRM-060-002A 50FR51701 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

50FR51701 STATES OF NEVADA AND MINNESOTA: FILING OF PETITION FOR RULEMAKING PRM-060-002A COMMENT DOCUMENT NUMBER DOCUMENT DATE DOCKET DATE NAME REPRESENTING DESCRIPTION 0 09/30/1985 10/03/1985 STATES OF NEVADA AND MINNESOTA AMENDED FOR RULEMAKING 12/16/1985 12/16/1985 FEDERAL REGISTER NOTICE OF 0

RECEIPT OF AMENDED PETITION 4 02/11/1986 02/19/1986 WARREN A. BISHOP, WASHINGTON CHAIR NUCLEAR WASTE BOARD 5 02/18/1986 02/21/1986 DAYID G. SCOTT NEW HAMPSHIRE, STATE OF 03/05/2002 03/06/2002 DENIAL OF PETITION FOR RULEMAKING.

Wednesday, March 13, 2002 Page 1 of 1

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1 PROPOSED RULE: PRM-060-002A RULE NAME: STATES OF NEVADA AND MINNESOTA: FILING OF PETITION FOR RULEMAKING PROPOSED RULE FED REG CITE: 50FR51701 PROPOSED RULE PUBLICATION DATE: 12/19/85 NUMBER OF COMMENTS: 3 ORIGINAL DATE FOR COMMENTS: 02/18/85 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: FINAL RULE PUBLICATION DATE: I I NOTES ON: AMENDED PETITION PRM-60-2, 50FR18267. PETITION IS TO BE ADDRESSED STATUS : IN PR-60, 51 FR 22288 PER REGULATORY AGENDA FOR JULY-SEPTEMBER 198 F RULE: 7. FILE LOCATED ON Pl.

PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PRM-060-002A RULE TITLE: STATES OF NEVADA AND MINNESOTA: FILING OF PETITION FOR RULEMAKING ROPOSED RULE PROPOSED RULE DATE PROPOSED RULE ECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 12/16/85 FINAL RULE DATE FINAL RULE SRM DATE: I I SIGNED BY SECRETARY: I I STAFF CONTACTS ON THE RULE CONTACT1: JOHN PHILIPS MAIL STOP: 4000MNBB PHONE: 492-7086 CONTACT2: MAIL STOP: PHONE:

PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY

DOCKET NO. PRM-060-002A (50FR51701)

In the Matter of STATES OF NEVADA AND MINNESOTA: FILING OF PETITION FOR RULEMAKING DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 10/03/85 12/16/85 09/30/85 12/16/85 STATES OF NEVADA AND MINNESOTA AMENDED PETITION FOR RULEMAKING FEDERAL REGISTER NOTICE OF RECEIPT OF AMENDED PETITION 02/19/86 02/11/86 COMMENT OF WASHINGTON STATE NUCLEAR WASTE BOARD (WARREN A. BISHOP, CHAIR) ( 4) 02/21/86 02/18/86 COMMENT OF STATE OF NEW HAMPSHIRE (DAVID G. SCOTT) ( 5)

DO{;KET NUMBER . DOCKE-T NUYaf.R DOCKETED USHRC PIIIIUUIU Ml ~ PlmrtON fUI PM (pj_;j~ [7590-01-P]

F

. ( 50 P. I g f9.h 7) . .(9J FR 6 I'!!}_j 2002 HAR -6 AH 7: 07 OFFICE i r , ,!L $LCHETARY NUCLEAR REGULATORY COMMISSION RULEHAKiiiGS ANO ADJUDICATIONS STAFF 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.

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 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 01 F23, located at 11555 Rcskville 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 email to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Mark Haisfield, telephone (301) 415-6196, e-mail MFH@nrc.gov or Timothy Mccartin, telephone (301) 415-7285, e-mail TJM3@nrc.gov 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 2

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).

~-*-*

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 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 (1s t 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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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, 4

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 3.t 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.

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' 5

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 opt:rated 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.

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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.

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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§ 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§ 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. DO E'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 8

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 [§ 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 definitions in 10 CFR Part 63. Specifically, 10 CFR Part 63 includes a definition for passive institutional controls (§ 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 (§ 63.121 );

(2) program to control and monitor radioactive effluents during operations (§ 63.21 );

(3) performance confirmation program (Subpart F); and (4) plans for decontamination of surface facilities (§ 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 9

exposures of the public beyond allowable limits. A detailed description of DOE's post-closure oversight program is required at§ 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 (En PA), 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.

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Consistent with statute, the NRG 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 11

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.

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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 NRG denies this petition.

Dated at Rockville, Maryland, this

-1>-

".\

L. t day o f - ~ - - - - - ' 2002.

For the Nuclear Regulatory Commission.

{LJ-e.--

Andrew L. Bates 1- /3 c~

Acting Secretary of the Commission.

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• hi llE: HIGH LlVi:L RADIOACTIV~ WASTJ DUMP ANYWF..i:& I 1 Y. I NNZSOTA IV 0 OOC,K(TED How can you even consider Minne sota as a potentia~Sw:rct e for a nuclear was tea ump ? There are ?Ii.ANY, ¥!.ANY , MANY unanswered questions and no guaranteed answers .

'86 HAR 31 PJ :38 We have the headwaters of t he three major wa t er s ystems of Nor t h America 1n our state . The Mississipp i Riv e r Fflth.eofG!'!e. ~at ~kes , and the Red River Valley all s tart i n northwest M.GMi O'W:i. r~, iEt would be a waste of money studying potential nuclear storag~R~~~s in the land of 10 , 000 lakes --~ IINESOTA.

You believe t hat Y.innesota may have crystalline rock formations , such as granite and gne iss , that can safely isolate h i ghly radioactiv e nuclear wast e s for 10 , 000 years or more . HOw~VER , TP2RE ARE S P~CIF I C PRO~IBMS WITH CR~STALLINE BEDROCK IN ¥.INNESOTA:

(.l) HYDROLOGY . Minnesota ' s abundant ground water coul d carry r adio -

nuc ll.des *over great distances . Minnesota ' s h1gh water table guarantees that the r eposit ory will be i n the saturated zone and will flood after it has b een backfilled and 11 perr.ia.nently sealed" . The behavior of ground water at the depth of a repository will be extreme ly difficult f or DOE to precl ict . CRYSTALLU,.c. ROCK rs NOT I MPERI*~ABU . JOirJTS.

S&AR ZONES A!'!D OTH.2:R FRACTURING COULD ACT AS CHAI N~ IS FOR C0NTA!HNATiill GROUND WAT~R TO rrov_:;: THRO T~E Tlli: ROCK .

(2) G.2:0CH.::: EISTRY . The ability of the minerals i n crystalline roc ks to absorb or tra p raclionuclides is comparatively low. -: im:rals , espe cially secondary riim:rals fornEJd i n low temperatures aft .' r t ht: rock cooled ,

could res pond aa v e rs: ly to t he heat and rad i a tion by r t*leasing water, dissolvin g- and chan:-ing stru cture . This could re st.1lt in lar ger ground water pathways anc1 morE? rapid ground wat e r r.!oveme:!"lt .

{ 3 ) , THER!l:O!-LC3'Al':ICS . The waste fron: a full repository (70 , 000 rnetr ic to~ *: oi mort) 1s e~pe ct ed to r elease up to 8 b illio~ wa tts of heat 1~

th~ first 1000 yE.*ars . HSAT FROJ.: TH.c WASTE; COUID SAUS2 .ADD ITIONAL FRACTURI N:; I Ir TH~ ROCK A!ID ~HIARGi EXISTING FRACTU&;S . Tifu ~AT r :AY ALSO i;FF~CT Tn.t: WAT.2:R BUOYANCE AND DRIV~ TIE GROUND WAT.:;,R TOWARD T:Lc!.

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{ 4) ROCK 1::2..CHAJiICS . Unprecl ictable joints , s hear zone s and othe r fract urins- co:!l~ licate thE: :n i nine process . Als o , -:-ro"IJ.ncl wate r pr(;ssure and flow enhances these c omplications .

(5) GLACIAL OVE3BlE::J6N . J'k,st of the crys t allin** bs:*droc_{ in Vi i nnt*sota is b lanketecl with glacial overb'J.rcl en , r a n: inc i!l cl E.* , t h from a fe. **i fE:et in the :nor tr.{:astE rn part of t he state to ovE:r 700 f t*e t in weste r n C J11nn e sota . :JOE; cont inue s to c ons i de r t hese dt:epl:: buried rock b,:xiiE;s ,

ye t the. r f.ad ily ac ~ it that , "LAR *:;..:: .2: XPA JS.SS OP 07~ ?i~'J3.D~:* i,,;ILL :i~K 3.i;D:l.OCK CffA?....A.C1'~:UST ICS Ai:J !LS '_*1r I !**: iG5COi~C~P1'IC'NS ABOFT r:-:E. P..:. T30T c-;y ,

S TRUCTlG.G , SHA?£ , SIZE , I'ECTONIC K ISTO::tY, Wf.'.JBOL(X; , ANJ G£0C?~f'lISrRY OF A POTEJ.17IAL BOS!' ROCK "BO::>f 11 (2JC~ , 1985a , 1 . 5 . 0 Guo.:r a.in-\- eed S A-F ST~ °i) ().UJ\) 3'u..rrn0Jv\J ~ .

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.. (6) MINERAL RESOURCES. Minnesota probably has s1gn1ficant and largely unexplored strategic mineral r esources in or near some of the crystalline rocks under considerat1nn. DO£ siting criteria state that "siting a ~epository near a known strateg ic or unique mineral resource poses a potential concern in that the repository may actually preempt future use of the resource" (DOE, 1985b, p . 96.)

MAicr QUESTIONS REMAIN REGARDING THE SAFETY OF DISPOSING HIGH- LEVEL RADIOACTIVE WASTE IN MINNESOTA 'S CRYSTALLINE BEDROCK. THESE QUESTIOm I":US T BE ANSWERED .

WE ARZ NOT CONVINCED THAT PERMANENT IRRETRIEVALBE BURIAL OF HIGH-IEVEL WASTE AT THIS TIME IS IN ANYOl'lE 'S BEST INTEREST. WE THINK-I NST2AD THAT A PROGRAM OF LONG- TERM STORAGE ( for example--above ground that could be monitoreaT WOUID BUY TJIB TIME NECESSARY TO FIND A CP..ED IELE WAY OF PROTECTI.JG OUR CHILDREN, GRANDCHII.DREN AND GR.SAT-GRANDCHII.DRE N FROM THESE VERY DANGEROULS WASTES.

In s ummary, Minnesota 1s concerned for our ground water and surface water resources, the inability to ever monitor or retrieve the waste after permanent closure of the repository, and the federal government 's emphas is on finding only a licensable site, NOTT& SAF.t;;ST ONE .

We r e co ~n ize t he need for a solution to the nuclear waste problem , but we bel1t~t ther e are alternatives that provide a greater margin of safety a:na l es s environmental ris k . Tht*r e has to bE: a safer alternative tha:n bel ow- ::rounc1 storage --COSl' SHOULD IWT & A FACTOR.

The hea lth a:nd live s of millions of pe op l e will be affected for r:-:o .SAHDS of cars --DON' T !'.AK.;. S UCH A T~:a:a I3Ll MISTA~ AS A HIGH-Lc.Vi.L D ISPCSAL s IT~ IJ-J r-'.i n rn.s soTA .

If you , t he Dt*par t r.ie.-n t of En *r y, t h i nk t h is type of rac11oact1vE. astc clU:7'0 is so safe for you , your c h ildren , yom* grandchildren, your grea t-

~ranc ch ildren , put it in or clos e t o Washington , DC--in other words, E ~ YO'.JR OW N. BACKYARD I I I I W~ DO !JOT WAJ,TT A HI 8 UV~ L RADIOACTIV-2; NUCUAR WASTi DUViP I N NINN.C:SOTA A!ID DO T FOR*:;..c,1' IT IIIIIIIIIIIIII Si;;,,:Hl ~ v~ P/ ~ q/7

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IX)CKET NUMBER ETITION RULE PRM /,IJ-.Zfl (5b Ft 5111 t) @

DOC:KErrn USNRC OFFICE OF STATE PLAN NIN G STATE OF NEW HAMPSHIRE "86 FEB 21 P4 :50 21/2 BEACON STREET - CONCORD 03301 TELEPHONE 603-271-2155 OFFICE 1.,F 1 DOCKET I G \ ,. t. ~I lf;f BRANCH February 18, 1986 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Dear Commissioners:

The State of New Hampshire wishes to comment upon the petition for rule-making submitted by the States of Nevada and Minnesota to the Nuclear Regulatory Commission on portions of 10 CFR, Part 60. This petition for rulemaking has been assigned Docket No. PRM-60-ZA and was docketed on October 3, 1985.

New Hampshire is currently under consideration by the U.S. Department of Energy as a possible site for the second High Level Nuclear Waste Repository. On the 16th of January, a site in this state was designated by the U.S. Department of Energy in its draft Area Recommendation Report as being a "proposed Potentially Acceptable Site" for a repository.

Following a review of the petition submitted by Minnesota and Nevada, this state wishes to extend general support and agreement to the entire petition. We feel that the Nuclear Regulatory Commission must adopt the Environmental Protection Agency's assurance requirements for the reasons stated in the petition. We also feel that without such assurance require-ments having the force of regulation, the Department of Energy will have an excessive amount of discretion without adquate regulatory oversight.

Further specific concerns and comments on the petitioner's proposal are as follows :

Consideration of Bona Fide Alternatives - The Petitioner proposes a new Section 60.24(c)(2) stating that the Commission shall consider " *.. whether the alternative sites proposed in the Environmental Impact Statement are bona fide alternative sites; *** ". The State of New Hampshire is adamant that the Environmental Impact Statement consider as alternatives only sites that are capable of being developed as repositories under the existing regulations. To do otherwise is to pervert the intent of the National Environmental Policy Act, the Nuclear Waste Policy Act and the Atomic Energy Act of 1954, as amended. Furthermore, public confidence in the site selection process, and its perceived fairness, is crucial to the ultimate acceptance of the repository program. New Hampshire strongly supports any action that will mandate the consideration of at least three viable alternatives by the Department of Energy in the Environmental Impact Statement.

1 AekMWtw,N em ..:~.~-~.~-. ~~~

u s.

Secretary of the Connnission February 18, 1986 Post-Permanent Closure Monitoring - The Petitioners requested a revision to Section 60.Sl(A)(l) to include a detailed description of the program for Post-Permanent Closure Monitoring of a repository. The proposed Section (E) requires that the license amendment " *.. indicate how the results of Post-Permanent Closure Monitoring will be shared with affected State

... Governments". New Hampshire strongly believes that a significant Post-Permanent Closure Monitoring Program should be emplaced. The results of such a program must be widely shared, to include independent access to the raw data, with all levels of Government. This measure will be critical to the public health and safety of surrounding areas. Since no specific provision exists for this activity in the Nuclear Waste Policy Act, it is essential that the NRC adopt such regulations.

This State believes that a deep suspicion concerning the implementation of the Nuclear Waste Policy Act exists among the public, and that every reasonable action possible to allay those suspicions be taken. New Hampshire feels that the granting of the petitioners request will not only improve the repository program on a substantial basis, but will also serve to instill within the public the conviction that the Nuclear Regulatory Connnission is an effective guardian.

Any specific questions or comments on this issue should be directed to Roger Simmons at (603)271-2066.

Sincerely, fk/ldu-1/-

David G. Scott Acting Director DGS:RS/lb cc: State of Nevada State of Minnesota Congressman Judd Gregg Congressman Bob Smith Senator Warren Rudman Senator Gordon Humphrey

DOCKET NUMBER

\ON RULE PR" _ {p()-.tfl C~ P!l ~/1() i) {f)

~~~x WARREN A. BISHOP Governor Chair STATE OF WASHINGTON OOC:KETEO USNRC NUCLEAR WASTE BOARD Mail Stop PV-11

• Olympia, Washington 98504 * (206) 459-6670

~ FEB 19 Pl?. :17 February 11, 1986 OFFICE. or :,c '* 1( ,... ,

• The Honorable Samuel J. Chalk, Secretary OOCKE TINCJ t. 5 ( VICf BRANCH United States Regulatory Commission Att: Docketing and Service Branch Washington, D.C. 20555

Dear Secretary Chalk:

RE: Nuclear Regulatory Commision Docket No. PRM-60-2A This is written in relation to your Commission's Notice pertain-ing to the Nevada's and Minnesota's petition and amended petition for rule-making pertaining to "assurance requirements" and "environmental impact statement" processing by the Commission under the Nuclear Waste Policy Act.

By previous comment to the Commission related to Docket No. 60-2, the Washington State Nuclear Waste Board supported the petition of Nevada and Minnesota. The Board wishes as well to be associ-ated generally with the amended petition of the two states.

In light of the representations of the Commission, relating to two proposed rule-making activities which "address the concerns expressed by the petitioner", contained in paragraph IV of the Commission's Notice to the Federal Register of December 19, 1985, Volume 50, No. 224 at page 51703, the Commission will not now present substantive comments supporting the petition. Rather, relying on the statement of the Commission of said paragraph IV, comments by this Board on the merits of the two state's petition will be submitted when the formal processing of the two afore-noted proposed rules of the Commission takes place.

The Nuclear Waste Board respectfully requests that the Commission provide notice to it of the initiation of the two rule-making activities described in paragraph IV.

Sincerely, bs~

Nuclear Waste Board State of Washington cc: Terry Husseman, Assistant Director, Nuclear Waste Program Charles Roe, Senior Assistant Attorney General FES 2 4 1986 rd *****

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/ U. S. NUCLEAR REGULA_TORy C*"*'MISSION DOCK 1

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1590-01 NUCLEAR REGULATORY COMMISSION Ifo L, }xx:...

10 CFR Part 60 D CKETE us ~c States of Nevada and Minnesota Filing of Petition for Rulemaking '85 OEC 16 P3 :24 Docket No ~ A AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of Receipt of Amended Petition for Rulemaking from the States of Nevada and Minnesota.

SUMMARY

The Nuclear Regulatory Commission is publishing for public comment this notice of receipt of a petition for rulemaking that amends an earlier petition for rulemaking (PRM-60-2) filed with the Commission on January 21, 1985.

This amended petition, filed by the States of Nevada and Minnesota, and dated September 30, 1985, was docketed by the Commission on October 3, 1985, and assigned Docket No. PRM-60-2A. The petitioner requests the Commission to amend its repository licensing regulations to incorporate the equivalent substance of the assurance requirements as issued in the final Environmental Protection Agency (EPA) Standards.

DATE: Corrment period expires February 18, 1986

• Corrments received after this date will be considered if it practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: All persons who desire to submit written comments concerning the petition for rulemaking should send their comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch.

Single copies of the petition may be obtained free by writing to the Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Co11111ission, Washington, DC 20555.

The petition, copies of comments, and accompanying documents to the petition may be inspected and copied for a fee at the NRC Public Document Room, 1717 H Street, NW, Washington, DC.

FOR FURTHER INFORMATION CONTACT: John Philips, Chief, Rules and Procedures Branch, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone: 301-492-7086 or Toll Free: 800-368-5642.

SUPPLEMENTARY INFORMATION:

Background

I. Statement of Grounds and Interest The State of Nevada filed this amended rulemaking petition as a State notified pursuant to the Nuclear Waste Policy Act (NWPA), that a potentially acceptable site for a repository has been identified within the state. The State of Nevada avers that it may become affected for purposes of participation in site character-ization, pursuant to §113 of the NWPA.

The State of Minnesota joins this amended petition as a state informed that it is being considered for site characterization for a second repository. The State of Minnesota avers that it may be directly affected by the substance of standards for the development of repositories.

The States of Nevada and Minnesota ground this petition on their respective interest in, ~nd the prevailing responsibility for, the protection of the future health and safety of their citizens.

II. Issues Raised in PRM-60-2 and 60-2A PRM-60-2 The petitioner filed the original petition {PRM-60-2) with the Commission on January 21, 1985. The petitioner requested the Commission to adopt a

• regulation governing the implementation of certain environmental standards which had been proposed by the Environmental Protection Agency. The NRC published a notice of the petition for rulemaking in the Federal Register on April 30, 1985 {50 FR 18267) and requested comments. The .comment period closed on July 1, 1985. Six comments were received in response to the notice.

PRM-60-2A The petitioner states that this amendment to PRM-60-2 is based on the intervening action of the Environmental Protection Agency (EPA) on September 19, 1985 {50 FR 38066), in which the EPA issued final standards for protection of the general environment from offsite releases from radioactive material in repositories. The petitioner hopes to accomplish two objectives in this amendment: {l) to place before the Commission the substance of the assurance requirements, in terms of amendments to 10 CFR Part 60, which the EPA's recently published standards failed to make applicable to NRC licensees, i.e. Department of EnP.rgy {DOE) high-level waste repositories; (2) to propose to the Commission requirements and considerations for the process of adopting the DOE Environmental Impact Statement.

III. Proposed Commission Findings The petitioner states that during the pendency of the EPA rulemaking, significant interaction occurred between Commission and EPA staff regarding which was the proper agency to adopt rules in the nature of "assurance requirements" that would apply to Commission licensees, to insure against the inherent uncertainties in selecting, designing and licensing waste disposal systems that must be very effective for more than 10,000 years. The Petitioner indicates that the two agencies agreed informally, and the EPA standard as

• finally issued provides, that assurance requirements are an appropriate mechanism to better guarantee that numerical standards will be realized; that the NRC was the more appropriate agency to adopt such standards as they apply to NRC licensees; and that the NRC approach would be to integrate the essence of EPA's earlier proposed rules into the repository licensing provisions of 10 CFR Part 60. Further, the Petitioner states that since evidP.nce used by DOE to apply the siting guidelines includes analysis of expected repository perform-ance to assess the likelihood of demonstrating compliance with the EPA standard,

• the rule proposed herein must be in place in order that DOE may design its site characterization plan in a manner consistent with the siting guidelines.

Petitioner proposes that the Commission make findings accordingly.

The IV. The Petitioner Proposes the Following Amendments to 10 CFR Part 60:

1. Add definitions to Section 60.2:

( ) "Active institutional control" means any measure other than a passive institutional control performed to: (1) control access to a site, (2) perform maintenance operations or remedial actions at a site, (3) control or

clean up releases from a site; or (4) monitor parameters related to geologic repository performance and compliance with standards limiting releases of radioactivity to the accessible environment.

( "Passive institutional control" means: (1) permanent markers placed at a site, (2) public records and archives, (3) government ownership and regulations regarding land or resource use, and (4) other methods of preserving knowledge about the location, design, and the contents of a geologic repository .

• 2. Add to Section 60.21(c) "Content of [license] application" and renumber remaining sections:

(9) A general description of the program for post-permanent closure monitoring of the geologic repository.

3. Add a new Section 60.24(c), (d) and reletter the remaining subsection as

( e) *

• (c) The Commission shall evaluate the environmental impact statement required by 42 U.S.C. 10134(f) and 10 CFR. 60.21(a) to determine whether its adoption by the Commission would not compromise the independent responsibilities of the Colffllission to protect the public health and safety under the Atomic Energy Act of 1954 (42 U.S.C. 2011, et . .lli.!_,). In making such a determination, the Commission shall consider:

(1) whether the Department of Energy has complied with the procedures and requirements of the Nuclear Waste Policy Act (42 U.S.C. 10101 et.~.).

-- (2) whether the alternative sites proposed in the environmental impact statement are bona fide alternative sites; that site characterization under 42 U.S.C. 10133 has been completed at such sites; and that the Secretary, after site characterization is complete, or substantially complete, at such sites, has made a preliminary determination that such sites are suitable for development as repositories consistent with the guidelines promulgated pursuant to 42 U.S.C. 10132.

(3) whether the consideration of the alternative sites considered in the

• environmental impact statement included consideration of the natural properties that are expected to provide better isolation of the wastes from the accessible environment for 100,000 years after disposal; and whether the analyses used by the Department of Energy to compare the capabilities of different sites to isolate wastes were based upon the following:

(i) only the undisturbed performance of the disposal system has been considered; (ii) the performance of the waste packages and waste forms planned for

• the disposal system was assumed to be the same from site to site and assumed to be at least an order of magnitude less effective than the performance required by 10 CFR 60.113; and (iii) no credit was taken for other engineering controls intended to correct preexisting natural flaws in the geologic media (e.g., grouting of fissures shall not be assumed, but effective sealing of the shafts needed to construct the repository shall be assumed).

(4) whether the disposal systems considered, selected or designed will keep releases to the accessible environment as low as reasonably achievable, taking into account technical, social and economic considerations.

(d) If the Commission determines that adoption of the environmental impact statement would compromise the independent responsibilities of the Commission, then the Commission shall consider fully the environmental impact of the selection of the proposed site as required by 42 U.S.C. 4321, et. gs.

4. Revise Section 60.Sl(a)(l) "License amendment for permanent closure" as follows:

(1) A detailed description of the program for post-permanent closure monitoring of the geologic repository in accordance with 60.144. As a minimum, this description shall:

(A) identify those parameters that will be monitored; (B) indicate how each parameter will be used to evaluate the expected performance of the repository; (C) describe those monitoring devices which will indicate the likelihood that standards limiting releases of radioactivity to the accessible environment may not be met .

• (D) discuss the length of time over which each parameter should be monitored to adequately confirm the expected performance of the repository; (E) indicate how the results of post-permanent closure monitoring will be shared with affected State, Indian tribal and local governments.

5. Add a new subsection to Section 60.52(c) "Termination of license" and renumber current Section 60.52(c)(3) as 60.52(c)(4).

(3) That the results available from the post-permanent closure monitoring program confirm the expectation that the repository will comply with the performance objectives set out at Sections 60.112 and 60.113.

6. Modify Section 60.113 by adding:

(d) In any event, however, and notwithstanding the provisions of (b) above, the geologic repository shall incorporate a system of multiple barriPrs, both engineered and natural, each 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. 1 Barrier means 1

any material or structure that prevents or substantially delays movement of water or radionuclides *

• 7. Add a new Section 60.114 "Institutional Controls":

Neither active nor passive institutional controls shall be deemed to assure compliance with the overall performance objective set out at Section 60.112 for more than 100 years after disposal. However, the effects of passive institutional controls may be considered in assessing the likelihood and consequences of processes and events affecting the geologic setting *

• 8.

(18)

Add a new Section 60.122(c)(18) and renumber later sections:

The presence of significant concentrations of any naturally-occurring material that is not widely available from other sources.

9. Add a new Section 60.144 "Post-Permanent Closure Monitoring":

A program of post-permanent closure monitoring shall be conducted and shall provide for monitoring of all repository characteristics which can reasonably be expected to provide substantive confirmatory information

regarding long-term repository performance, provided that the means for conducting such monitoring will not degrade repository performance. This program shall be continued until termination of a license which shall not occur until the Commission is convinced that there is no significant concern which could be addressed by further monitoring.

V. Statement in Support The Petitioner states that the rules proposed here are substantively equivalent

• to the EPA assurance requirements (which, by their terms, do not apply to NRC licensees), with one very notable exception: proposed 10 CFR 60.24(c). The Petitioner points out that this proposed new section relates to NRC review and adoption of DOE's environmental impact statement (EIS), a document developed in DOE's selection of a repository site. EPA's proposed 40 CFR 191.14(e) dealt with site selection, as NRC staff recognized in comments published by EPA in "Background Paper: Potential Changes in 10 CFR 60 to Replace Assurance Require-ments in 40 CFR 191, March 21, 1985". NRC staff, however, found that DOE's site

• selection guidelines, 10 CFR 960.3-1-5, adequately address this issue. Nevada and Minnesota are concerned, and the Petitioner believes that the Commission should also be, that DOE's site selection process may not produce bona fide alternatives for consideration in DOE's EIS because of DOE's current interpreta-tion of Section 114(f), 42 U.S.C. 10134(f). Petitioner asserts if it does not, NRC's "independent responsibilities . . . to protect the public health and safety under the Atomic Energy Act of 1954" (Section 114(f), 42 U.S.C. 10134(f))

will be implicated. The National Environmental Policy Act, 42 U.S.C. 4321, et~' together with the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011, et ~ ' require the Commission to consider bona fide alternatives, even if

Section 112 of the Nuclear Waste Policy Act, 42 U.S.C. 10132, does not require DOE to do so. Petitioner believes the rule proposed here would guarantee that bona fide alternatives were evaluated by the NRC, if not also DOE. The "low as reasonably achievable" releases concept has also been reintroduced in this context. The bases for DOE's consideration of natural properties expected to provide better isolation have also been reintroduced *

• The Petitioner states that in adopting the language of Section 114(f) of the NWPA, Congress did not change the requirement for consideration of bona fide alternatives in an EIS. It merely narrowed the universe of all alternatives which DOE must consider in the final EIS, from all sites reasonably available to only those three sites which had been characterized, and for which the Secretary had made a preliminary determination as to site suitability. The Petitioner believes that a site which the Secretary has determined to be unsuit-able for development as a repository, or, conversely, at which the Secretary

• was unable to make a preliminary determination of suitability, is simply not an alternative. The Petitioner believes the Secretary's responsibilities, under either the NWPA or NEPA, to consider alternative sites, is simply not met by the consideration of three sites, one or two of which were determined at any time to be unsuitable for development as repositories. The Petitioner states further that neither would the Cormnission's responsibilities be carried out in such a case, and thus such a result would severely jeopardize the Commission's ability, under Section 114(f), to adopt the Secretary's final EIS in order to meet the Commission's legal obligations under NEPA.

VI. Notice Regarding Related Actions The Commission presently has underway rulemaking actions which, when finalized, will address the concerns expressed by the petitioner. The Corrmission is now preparing to publish proposed amendments to 10 CFR Part 60 to eliminate inconsistencies between the EPA standard and the rule {see Unified Agenda of Federal Regulations, Current and Projected Rulemaking - Elimination of Incon-sistences between NRC Regulations and EPA standards - 0MB Regulation Identifier

• Number 3150-AC03, 50 FR 44992, October 29, 1985). The Commission anticipates that the proposed rule would incorporate the EPA "assurance requirements" in Part 60, to the extent appropriate, satisfying that aspect of the petitioner's request. The remaining aspect of the petitioner's request, adding a provision to Part 60 relating to NRC review and adoption of DOE's environmental impact statement, falls within the scope of a separate, ongoing rulemaking which would amend Part 51 to conform to provisions of the Nuclear Waste Policy Act concerning environmental review in HLW geologic repository licensing procedures (see Unified

• Agenda of Federal Regulations, Current and Projected Rulemaking - Part 51 Conforming Amendments - 0MB Regulation Identifier Number 3150-AC04, 50 FR 44992, October 29, 1985). Accordingly, commenters are advised that further considera-tion of the issues raised by the petitioner will be deferred for consideration in the rulemaking actions referred to above. The present schedule calls for the

publication of these two proposed rules within nine months. Any comments received in response to this notice would, in that event, be incorporated in the administrative record for those proceedings.

Dated at Bethesda Maryland, this (t,t! day of 'C?.e.c.Q.JJ.1\e~ 1985.

Fo the Nuclear Regulatory Corrmission .

• Secretary oft e Commission .

DOCKET NUMB!R :*

PETITION RULE PRM -(;,{)-,2_;

1 *s5 ocr -3 P1 :so 2

UNITED STATES OF AMERICA OFF{cr:- re _

3 DOCKtrt*,, :; ::. cRfJ P. i-i \1 NUCLEAR REGULATORY COMMISSION BR~Jc,~Et<V/r,f_

4 BEFORE THE COMMISSIONERS 5 In the matter of )

the Petition of the )

6 States of Nevada and )

Minnesota for the adoption) DOCKET NO. PRM 60-2 7

of an amendment to )

8 ______________

10 C.F.R. Part 60 )

)

AMENDED PETITION 9

10 The States of Nevada and~Minnesota hereby amend their Petition to 11 12 Institute Rulemaking, submitted herein, pursuant to 5 u.s.c. Section 13 553 and 10 C.F.R. Section 2.800-2.809, on January 21, 1985. This amendment is based on the intervening action of the Environmental 14 .

15 Prote~ tion Agency (EPA) on August 15, 1985 in which the EPA issued 16 final standards for protection of the general environment from offsite 17 releases from radioactive material in repositories.

18 I. Proposed Rules 19 A. Amend 10 C.F.R. Part 60 as follows:

20

1. Add definitions to Section 60.2:

21

( ) "Active institutional control" means any measure other than 22 a passive institutional control performed to: (1) control access to a 23 site, (2) perform maintenance operations or remedial actions at a 24 site, (3) control or clean up releases from a site, or (4) monitor 25

• AMENDED PETITION 1 DURYEA, MURPHY, 26 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 7// Capitol Way Olympia, Washington 9850/

(106) 754-600/

parameters related to geologic repository performance and compliance 1

with standards limiting releases of radioactivity to the accessible 2

environment.

3

( ) "Passive institutional control" means: (1) permanent 4

markers placed at a site, (2) public records and archives, 5

(3) government ownership and regulations regarding land or resource 6

7 use, and (4) other methods of preserving knowledge about the location, design, and the contents of a geologic repository.

8 9

2. Add to Section 60.2l(c) "Content of [license] application" 10 and renumber remaining sections:

11 (9) A general description of the program for post-permanent 12 closure monitoring of the geologic repository.

13 14

3. Add a new Section 60.24(c), (d) and reletter the remaining 15 subsection as (e).

- 16 17 18 19 (c) The Commission shall evaluate the environmental impact statement required by 42 u.s.c. 10134(f) and 10 C.F.R. 60.2l(a) to determine whether its adoption by the Commission would not compromise the independent responsibilities of the Commission to protect the 20 public health and safety under the Atomic Energy Act of 1954 (42 21 u.s.c. 2011, et. seq.,). In making such a determination, the 22 Commission shall consider:

23 24 25 AMENDED PETITION 2 DURYEA, MURPHY, 26 DAVENPORT& VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

(1) whether the Department of Energy has complied with the 1 procedures and requirements of the Nuclear Waste Policy Act (42 u.s.c.

2 1010 1 et

• seq * )

• 3 (2) whether the alternative sites proposed in the environmental 4

impact statement are bona fide alternative sites; that site 5

characterization under 42 u.s.c. 10133 has been completed at such 6

sites; and that the Secretary, after site characterization is 7

complete, or substantially complete, at such sites, has made a 8

preliminary determination that such sites are suitable for development 9

as repositories consistent with the guidelines promulgated pursuant to 10 42 u.s.c. 10132.

11 (3) whether the consideration of the alternative sites considered 12 in the environmental impact statement included consideration of the 13 natural properties that are expected to provide better isolation of 14 the wastes from the accessible environment for 10,000 years after 15 disposal; and whether the analyses used by the Department of Energy to

• 16 17 18 19 compare the capabilities of different sites to isolate wastes were based upon the following:

(i) only the undisturbed performance of the disposal system has been considered; 20 (ii) the performance of the waste packages and waste forms 21 planned for the disposal system was assumed to be the same from site 22 to site and assumed to be at least an order of magnitude less 23 effective than the performance required by 10 C.F.R. 60.113; and 24 25 AMENDED PETITION 3 DURYEA, MURPHY, 26 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

(iii) no credit was taken for other engineering controls intended 1 to correct preexisting natural flaws in the geologic media (e.g.,

2 grouting of fissures shall not be assumed, but effective sealing of 3 the shafts needed to construct the repository shall be assumed).

4 (4) whether the disposal systems considered, selected or designed 5

will keep releases to the accessible environment as low as reasonably 6

achievable, taking into account technical, social and economic 7 considerations.

8 (d) If the Commission determines that adoption of the 9

environmental impact statement would compromise the independent 10 responsibilities of the Commission, then the Commission shall consider 11 fully the environmental impact of the selection of the proposed site 12 as required by 42 u.s.c. 4321, et. seq.

13 14 4. Revise Section 60.Sl(a)(l) "License amendment for permanent 15 closure" as follows:

16 (1) A detailed description of the program for post-permanent 17 closure monitoring of the geologic repository in accordance with 18 60.144. As a minimum, this description shall:

19 (A) identify those parameters that will be monitored; 20 (B) indicate how each parameter will be used to evaluate 21 the expected performance of the repository; 22 (C) describe those monitoring devices which will 23 indicate the likelihood that standards limiting releases of 24 radioactivity to the accessible environment may not be met.

25 AMENDED PETITION 4 DURYEA, MURPHY, 26 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

(D) discuss the length of time over which each parameter 1

should be monitored to adequately confirm the expected performance of 2 the repository; 3

(E) indicate how the results of post-permanent closure 4

monitoring will be shared with affected State, Indian tribal and local 5

governments.

6 7 (5) Add a new subsection to Section 60.52(c) "Termination of 8 license" and renumber current Section 60.52(c)(3) as 60.52(c)(4).

9 (3) That the results available from the post-permanent closure 10 monitoring program confirm the expectation that the repository will 11 comply with the performance objectives set out at Sections 60.112 and 12 60.113.

13

6. Modify Section 60.113 by adding:

14 (d) In any event, however, and notwithstanding the provisions of 15

,,,--, (b) above, the geologic repository shall incorporate a system of 16 multiple barriers, both engineered and natural, each designed or 17 selected so that it complements the others and can significantly 18 compensate for uncertainties about the performance of one or more of 19 the other barriers. 'Barrier' means any material or structure that 20 prevents or substantially delays movement of water or radionuclides.

21 22 7. Add a new Section 60.114 "Institutional Controls":

23 Neither active nor passive institutional controls shall be deemed 24 to assure compliance with the overall performance objective set out at 25 AMENDED PETITION DURYEA, MURPHY, 26 5 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

Section 60.112 for more than 100 years after disposal. However, the 1 effects of passive institutional controls may be considered in 2 assessing the likelihood and consequences of processes and events 3 affecting the geologic setting.

4

8. Add a new Section 60.122(c)(l8) and renumber later sections:

5 (18) The presence of significant concentrations of any naturally-6 occurring material that is not widely available from other sources.

7 8

9. Add a new Section 60.144 "Post-Permanent Closure Monitoring":

9 A program of post-permanent closure monitoring shall be conducted 10 and shall provide for monitoring of all repository characteristics 11 which can reasonably be expected to provide substantive confirmatory 12 information regarding long-term repository performance, provided that 13 the means for conducting such monitoring will not degrade repository 14 performance. This program shall be continued until termination of a 15 license which shall not occur until the Commission is convinced that 16 there is no significant concern which could be addressed by further 17 monitoring.

18 19 B. Commission Findings.

20 The essential substance of the rules promulgated herein was 21 originally proposed by the Environmental Protection Agency for 22 inclusion in 40 C.F.R. 191 on December 29, 1982, 57 F.R. 58196, 23 pursuant to Section 12l(a) of the Nuclear Waste Policy Act, 42 u.s.c.

24 10141, the Atomic Energy Act of 1954, as amended, and the President's 25 AMENDED PETITION 6 DURYEA, MURPHY, 26 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

Reorganization Plan No. 3 of 1970. Significant public comment was 1

received by the Environmental Protection Agency pursuant thereto.

2 Such comment has been reduced to written record which the Nuclear 3

Regulatory Commission has reviewed for substantive content. Response 4

to such comment has been incorporated by the Environmental Protection 5

Agency in its final version of the rule issued on August 15, 1985, 50 6

F.R. 38065.

7 8

During the pendency of the EPA rulemaking, significant 9

interaction occurred between Commission and EPA staff regarding which 10 was the proper agency to adopt rules in the nature of "assurance 11 requirements" which would apply to Commission licensees, to insure 12 against the inherent uncertainties in selecting, designing and 13 licensing waste disposal systems that must be very effective for more 14 than 10,000 years. The two agencies agreed informally, and the EPA 15 standard as finally issued provides, that assurance requirements are 16 an appropriate mechanism to better guarantee that numerical standards 17 will be realized; that the NRC was the more appropriate agency to 18 adopt such standards as they apply to NRC licensees; and that the NRC 19 approach would be to integrate the essence of EPA's earlier proposed 20 rules into the repository licensing provisions of 10 C.F.R. 60. The 21 Commission finds that the adopted rules realize those objectives.

22 The President must recommend a first high-level nuclear waste 23 repository location to Congress by March 31, 1987 (Section 24 114(a)(2)(A), 42 u.s.c. 10134(a)(2)(A)) or March 31, 1988 if he 25 26 AMENDED PETITION 7 DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

determines an extension necessary (Section 114(a)(2)(B), NWPA 42 1

u.s.c. 10134(a)(2)(B)). The Nuclear Regulatory Commission must act 2

upon an application for construction authorization for that repository 3

by January 1, 1989, or within 3 years of the application's filing 4

(Section 114(d)(l), (2), 42 u.s.c. 10134(d)(l), (2)). The President's 5

recommendation must be based upon Department of Energy site 6

characterization at a site which must have been recommended by January 7

1, 1985 (Section 112(b)(l)(D), 42 u.s.c. 10133(b)(l)(D)). Site

- 8 9

10 characterization must be performed pursuant to a plan reviewed by the Commission and the affected state (Section 113(b)(l), 42 10133(b)(l)) before characterization begins.

u.s.c.

That plan must include 11 criteria to be used by DOE to determine the "suitability of such 12 candidate site for the location of a repository, developed pursuant to 13 Section 112(a);" (Section 113(b)(l)(A)(iv), 42 u.s.c.

14 10133(b)(l)(A)(iv)). DOE's Section 112(a) guidelines, as concurred in 15 by the Commission on June 22, 1984, 49 F.R. 28130, require that 16 .

evidence used to apply those guidelines include "analysis of expected 17 repository performance to assess the likelihood of demonstrating 18 compliance with 40 C.F.R. 191 and 10 C.F.R. 60 ** 10 C.F.R. 19 960.3-1-5. The Commission finds, therefore, that the rule herein 20 adopted must be in place in order that the Department of Energy may 21 design its site characterization plan in a manner consistent with its 22 final guidelines.

23 24 25 AMENDED PETITION DURYEA, MURPHY, 26 8 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

C. 42 u.s.c. 2239(a)(2)(A).

1 The Commission finds that the rule promulgated herein does not 2 amend any operating license currently in effect.

3 4 II. Grounds and Interest.

5 Petitioner State of Nevada files this amended rulemaking Petition 6

as a state notified, pursuant to Section 116(a) of the Nuclear Waste 7

- 8 9

10 Policy Act, 42 u.s.c. 10136(a), that a potentially acceptable site for a repository has been identified within the state. The Draft Environmental Assessment of the Yucca Mountain Site, Nevada Research 11 and Development Area, Nevada, published on December 20, 1984, 12 indicates that the Yucca Mountain site may be nominated under Section 13 112(b)(l)(A) of the Act and may be recommended for characterization 14 under Section 112(b)(l)(B) of the Act. The State of Nevada may become 15 affected for purposes of participation in site characterization, 16 pursuant to Section 113 of the Act. Nevada has an interest in, and 17 the prevailing responsibility for, the protection of the future health 18 and safety of the citizens of the State of Nevada.

19 Petitioner State of Minnesota joins this amended Petition as a 20 state informed by the Department of Energy that, due to the presence 21 of crystalline rock within its borders, the State is being considered 22 for site characterization for a second repository. As a potentially 23 acceptable state, the State of Minnesota may be directly affected by 24 the substance of standards for development of repositories. Minnesota 25 26 AMENDED PETITION 9 DURYEA, MURPHY, DAVENPORT& VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

has an interest in, and the prevailing responsibility for the I

protection of the future health and safety of the citizens of the 2 State of Minnesota.

3 4

III. Statement in Support.

5 The Nuclear Waste Policy Act was enacted by the Congress on 6

December 20, 1982 and approved by the President on January 7, 1983.

7 Section 12l(a) of the Act, 42 u.s.c. 1014l(a), required the 8

Environmental Protection Agency to promulgate by rule, not later than 9

one year after the date of the enactment of the Act, or January 7, 10 1984, "generally applicable standards for protection of the general 11 environment from offsite releases from radioactive material in 12 repositories." Pursuant to its view of that requirement and its 13 general authority under the Atomic Energy Act and the President's 14 Reorganization Plan of 1970, the Environmental Protection Agency 15 published proposed "Environmental Standards for the Management and 16 Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive 17 Wastes" on December 29, 1982 (47 F.R. 58196). Those proposed 18 standards include Containment Requirements (proposed 40 C.F.R.

19 191.13), Assurance Requirements (proposed 40 C.F.R. 191.14) and 20 Guidance for Implementation (proposed 40 C.F.R. 191.16).

21 The Environmental Protection Agency received significant written 22 comment and conducted public hearings on the proposed standards. The 23 entire record of the rulemaking is contained within Environmental 24 Protection Agency Docket No. R 8203 and is available for inspection in 25 AMENDED PETITION 10 DURYEA, MURPHY, 26 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

the West Tower Lobby, Gallery One, Central Docket Section, 401 M 1

Street Southeast, Washington, D.C.

2 In 1983, early in the process of notice and comment on EPA's 3

proposed 40 C.F.R. 191, objections were raised regarding the authority 4

of the Environmental Protection Agency to promulgate that portion of 5

its proposed rules contained in proposed 40 C.F.R. 191.14, entitled 6

"Assurance Requirements." The objections were based on the legal 7

8 argument that Section 12l(a) of the Nuclear Waste Policy Act, 42 9 u.s.c. 1014l(a), specifically states that EPA's authority to 10 promulgate the proposed rules arises "under other provisions of law."

11 Those "other provisions of law" include the Atomic Energy Act of 1954 12 as amended, 20 u.s.c. 202l(h), and the President's Reorganization Plan 13 No. 3 of 1970, which placed within the Federal Radiation Council, now 14 no longer in existence, rather than the Environmental Protection 15 Agency, the authority for such requirements as contained within the 16 proposed 40 C.F.R. 191.14

• 17 The States of Nevada and Minnesota filed the original Petition in 18 this matter on January 21, 1985, in an effort to catalyze resolution 19 of the apparent disagreement between the NRC and EPA regarding the 20 appropriate agency to adopt the substantive rule which Nevada and 21 Minnesota desire. The Commission docketed the Petition, 50 F.R.

22 18267, and requested comments thereon. Six comments were received and 23 the comment period was closed on July 1, 1985. No action has yet been 24 proposed.

25 AMENDED PETITION DURYEA, MURPHY, 26 11 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

On August 15, 1985, pursuant to a stipulated Consent Order in 1

NRDC v. Thomas, (D.C., D.C., 85-0518), EPA issued final standards 2

limiting offsite releases of radioactivity from repositories, 50 F.R.

3 38065. Though "assurance requirements" were included therein, 40 4

C.F.R. 191.14, those assurance requirements do not apply to NRC 5

licensees,~ wit: the Department of Energy. It is therefore 6

mandatory that NRC amend its repository licensing regulations to 7

incorporate the equivalent substance of EPA standards.

8 The rules proposed here are those which EPA staff and NRC staff 9

recognized as substantively equivalent to the EPA assurance 10 requirements with one very notable exception: proposed 10 C.F.R. 11 60.24(c). That proposed rule relates to NRC review and adoption of 12 DOE's environmental impact statement, a document developed in DOE's 13 selection of a repository site. EPA's proposed 40 C.F.R. 191.14(e) 14 dealt with site selection, as NRC staff recognized in comments 15 published by EPA in "Background Paper: Potential Changes in 10 C.F.R. 16 60 to Replace Assurance Requirements in 40 C.F.R. 191, March 21, 17 1985". NRC staff, however, found that DOE's site selection 18 guidelines, 10 C.F.R. 960.3-1-5, adequately address this issue.

19 Nevada and Minnesota are concerned and the Commission should also be, 20 that DOE's site selection process may not produce bona fide 21 alternatives for consideration in DOE's EIS because of DOE's current 22 interpretation of Section 114(f), 42 u.s.c. 10134(f). If it does not, 23 NRC's "independent responsibilities * *

• to protect the public health 24 and safety under the Atomic Energy Act of 1954" (Section 114(f), 42 25 AMENDED PETITION 12 DURYEA, MURPHY, 26 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

u.s.c. 10134(f)) will be implicated. The National Environmental 1

Policy Act, 42 u.s.c. 4321, et seq, together with the Atomic Energy 2

Act of 1954, as amended, 42 u.s.c. 2011, ~ seq, require the 3

Commission to consider bona fide alternatives, even if Section 112 of 4

5 the Nuclear Waste Policy Act, 42 u.s.c. 10132, does not require DOE to do so. The rule which is proposed here would guarantee that bona fide 6

alternatives were evaluated by the NRC, if not also DOE. The "low as 7

reasonably achievable" releases concept has also been reintroduced in 8

this context. The bases for DOE's consideration of natural properties 9

expected to provide better isolation have also been reintroduced.

10 In adopting the language of Section 114(f) of the NWPA, Congress 11 did not change the requirement for consideration of bona fide 12 alternatives in an EIS. It merely narrowed the universe of all 13 14 alternatives which DOE must consider in the final EIS, from all sites 15 reasonably available to only those three sites which had been 16 characterized, and for which the Secretary had made a preliminary 17 determination as to site suitability. A site which the Secretary has 18 determined to be unsuitable for development as a repository, or, 19 conversely, at which the Secretary was unable to make a preliminary 20 determination of suitability, is simply not an alternative. Thus the 21 Secretary's responsibilities, under either the NWPA or NEPA, to 22 consider alternative sites, is simply not met by the consideration of 23 three sites, one or two of which were determined at any time to be 24 unsuitable for development as repositories. Neither would the 25 DURYEA, MURPHY, 26 AMENDED PETITION 13 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 7JJ Capitol Way Olympia, Washington 98501 (206) 754-6001

1""'19119 Commission's responsibilities be carried out in such a case, and thus 1

such a result would severely jeopardize the Commission's ability, 2

under Section 114(f), to adopt the Secretary's final EIS in order to 3

meet the Commission's legal obligations under NEPA.

4 For further comments in support of the proposed 10 C.F.R. 5 60.24(c), (d) the Commission is referred to the remarks of the State 6

of Nevada with respect to Section 114(f) of the Nuclear Waste Policy 7

Act submitted to the Commission at its meeting on September 6, 1985.

8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AMENDED PETITION 14 DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (106) 754-6001

/'

CONCLUSION 1

The NRC should adopt the rules proposed by this amended petition, 2

DATED t h i s ~ d a y o f ~ ~ , 1985, 3

4 STATE OF NEVADA STATE OF MINNESOTA 5

Honorable Brian McKay, Hubert H, Humphrey III Attorney General Attorney General 6

State of Nevada State of Minnesota Heras Memorial Building 1935 West Country Road B2 7

Carson City, Nevada 89710 Roseville, Minnesota 55113 8

9

~ F-tJ~ . JP.tJ Jocelyn.olson 10 Special Deputy Attorney General 11 0 State of Minnesota Heroes Memorial Building 1935 West Country Road B2 12 Carson City, Nevada 89710 Roseville, Minnesota 55113 13 14 15 ecia State of Nevada 16 711 Capitol Way Olympia, Washington 98501 17 18 19 James H. Davenport Special Deputy Attorney General 20 State of Nevada 711 Capitol Way 21 Olympia, Washington 98501 22 23 24 25 26 AMENDED PETITION 15 DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 7Il Capitol Way Olympia, Washington 98501 (206) 754-6001