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PRM-060-002 - 50FR18267 - States of Nevada & Minnesota: Filing of Petition for Rulemaking Concerning Implementation of EPA Environmental Standards
	ML23156A059
Person / Time
Issue date:	04/30/1985
From:	Bates A; NRC/SECY
To:	;
References
	PRM-060-002, 50FR18267
	Download: ML23156A059 (1)
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ADAMS Template: SECY-067 DOCUMENT DATE: 04/30/1985 TITLE: PRM-060-002 - 50FR18267 - STATES OF NEVADA &

MINNESOTA: FILING OF PETITION FOR RULEMAKING CONCERNING IMPLFEMENTATION OF EPA ENVIRONMENTAL STANDARDS CASE

REFERENCE:

PRM-060-002 50FR18267 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

S0FR18267 STATES OF NEVADA & MINNESOTA: FILING OF PETITION FOR PRM-060-002 RULEMAKING CONCERNING IMPLFEMENTATION OF EPA ENVIRONMENTAL STANDARDS COMMENT DOCUMENT NUMBER DOCUMENT DATE DOCKET DATE NAME REPRESENTING DESCRIPTION 0 01/21/1985 01/28/1985 PETITION FOR RULEMAKING 0 01/22/1985 01/28/1985 LTR . FM . J.H. DAVENPORT, REPRESENTING THE STATES OF NEVADA AND MINNESOTA, AND ENCLOSING PETITION FOR RULEMAKING 0 04/25/1985 04/26/1985 06/28/1985 07/01/1985 JOHN J. KEARNEY, SR. EDISON ELECTRIC VICE PRESIDENT INSTITUTE 2 06/28/1985 07/01/1985 WARREN A. BISHOP, WASHINGTON CHAIRMAN NUCLEAR WASTE BOARD Wednesday, March 13, 2002 Page 1 of 3

COMMENT DOCUMENT NUMBER DOCUMENT DATE DOCKET DATE NAME REPRESENTING DESCRIPTION 3 07/02/1985 07/05/1985 STEVE FRISHMAN TEXAS, STATE OF 4 07/01/1985 07/08/1985 PATRICK D. SPURGIN, UTAH HIGH LEVEL DIRECTOR NUCLEAR WASTE OFFICE

- 5 07/01/1985 07/08/1985 FELIX M. KlLLAR, JR. ARKANSAS/LOUISLAN A/MISSISSIPPI P&L 6 07/11/1985 07/15/1985 CARL A. SINDERBRAND. WISCONSIN, STATE OF ASST ATTY GEN 0 09/30/1985 10/03/1985 LTR. FM . J.H. DAVENPORT, REPRESENTING STATES OF NEV ADA AND MINNESOTA, ENCLOSING AMENDED FOR ADOPTION OF AMENDMENT TO I0C.F.R. PART 0 10/01/1985 10/07/1985 LTR. FM. J.H. DAVENPORT TO NRC CHAIRMAN PALLADINO ENCLOSING AMENDED PETITION OF THE ST ATES OF AND MINNESOTA FOR AMENDMENT TO 10 C.F.R. PART Wednesday, March 13, 2002 Page 2 of 3

COMMENT DOCUMENT NUMBER DOCUMENT DATE DOCKET DATE NAME REPRESENTING DESCRIPTION 0 09/30/1985 10/07/1985 CORRECTED COPY OF LTR. FM.

J.H. DAVENPORT ENCLOSING AMENDED PETITION FOR ADOPTION OF AMENDMENT TO 10 C.F.R. PART 60 03/05/2002 03/06/2002 FRN - DENIAL OF PETITION FOR RULEMAKING Wednesday, March 13, 2002 Page 3 of 3

STATUS OF RULEMAKING PROPOSED RULE: PRM-060-002 RULE NAME: STATES OF NEVADA & MINNESOTA: FILING OF PETIT. FOR RULEMAKING. PETITION REQUESTS NRC TO ADOPT REGULA TIONS CONCERNING IMPLEMENT. OF EPA ENVIRO. STANDS .

PROPOSED RULE FED REG CITE: S0FR18267 PROPOSED RULE PUBLICATION DATE: 04/30/85 NUMBER OF COMMENTS: 6 ORIGINAL DATE FOR COMMENTS: 07/01/85 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: FINAL RULE PUBLICATION DATE : I I NOTES ON SEE PRM-60-2A, AT 50 FR 51701. VOLUME 1 (1/28/85 - 10/07 / 85)

STATUS FILE LOCATED ON Pl.

F RULE THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PRM-060-002 RULE TITLE: STATES OF NEVADA & MINNESOTA: FILING OF PETIT. FOR RULEMAKING. PETITION REQUESTS NRC TO ADOPT REGULA TIONS CONCERNING IMPLEMENT. OF EPA ENVIRO. STANDS.

ROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 04 /25/85 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: I I STAFF CONTACTS ON THE RULE CONTACTl: JOHN PHILIPS MAIL STOP: 4000MNBB PHONE: 492-7086 CONTACT2: JAMES WOLF MAIL STOP: 9604MNBB PHONE: 492-86 94

DOCKET NO. PRM-060-002 (50FR18267)

In the Matter of STATES OF NEVADA l MINNESOTA: FILING OF PETIT. FOR RULEMAKING. PETITION REQUESTS NRC TO ADOPT REGULA TIONS CONCERNING IMPLEMENT. OF EPA ENVIRO. STANDS.

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 01/28/85 01/21/85 PETITION FOR RULEMAKING

-01/28/85 01/22/85 LTR. FM. J.H. DAVENPORT, REPRESENTING THE STATES OF NEVADA AND MINNESOTA, AND ENCLOSING PETITION FOR RULEMAKING 04/26/85 04/25/85 FEDERAL REGISTER NOTICE - RECEIPT OF PETITION FOR RULEMAKING 07/01/85 06/28/85 COMMENT OF EDISON ELECTRIC INSTITUTE (JOHN J. KEARNEY, SR. VICE PRESIDENT) ( 1) 07/01/85 06/28/85 COMMENT OF WASHINGTON NUCLEAR WASTE BOARD

{WARREN A. BISHOP, CHAIRMAN) { 2) 07/05/85 07/02/85 COMMENT OF STATE OF TEXAS (STEVE FRISHMAN) { 3) 07/08/85 07/01/85 COMMENT OF UTAH HIGH LEVEL NUCLEAR WASTE OFFICE

- 07/08/85 07/15/85 07/01/85 07/11/85 (PATRICK D. SPURGIN, DIRECTOR) (

(FELIX M. KILLAR, JR.) (

COMMENT OF STATE OF WISCONSIN 5) 4)

COMMENT OF ARKANSAS/LOUISIANA/MISSISSIPPI P&L (CARL A. SINDERBRAND, ASST ATTY GEN) ( 6) 10/03/85 09/30/85 LTR. FM. J.H. DAVENPORT, REPRESENTING STATES OF NEVADA AND MINNESOTA, ENCLOSING AMENDED PETITION FOR ADOPTION OF AMENDMENT TO 10 C.F.R. PART 60 10/07/85 10/01/85 LTR. FM. J.H. DAVENPORT TO NRC CHAIRMAN PALLADINO ENCLOSING AMENDED PETITION OF THE STATES OF NEVADA AND MINNESOTA FOR AMENDMENT TO 10 C.F.R. PART 60 10/07/85 09/30/85 CORRECTED COPY OF LTR. FM. J.H. DAVENPORT ENCLOSING AMENDED PETITION FOR ADOPTION OF AMENDMENT TO 10 C.F.R. PART 60

l)O(;KET NlJMBSI DOCKET NUMBER DOCKETED USNRC

"" FliiiDlflll,.. ~ PEflliONRU PIii 00,~fl [7590-01-P]

(50 FP. 1g fJJ,7) (SOFR 6/101)

NUCLEAR REGULATORY COMMISSION 2002 HAR -6 AH 7: 01 OFF ICE nr ,r 1:. sLC *tETARY RULEMAKINGS AHO ADJUDI CATIONS 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,

.... .J l

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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 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 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 T JM3@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 NRG amend its regulations in 10 CFR Part 60 that govern disposal of HLW in geologic repositories. The petitioners requested that NRG 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 NRG (see 40 CFR 191.14 (1985)). The petitioners subsequently filed an amended petition with the NRG on September 30, 1985 (PRM-60-2A) and the NRG published a notice of receipt of the amended petition on December 19, 1985 (50 FR 51701).

The amended petition requested that NRG 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 NRG 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 (1 st 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 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.

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,ated 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 (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.

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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 "DO E'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 864 7; 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 NRC denies this petition.

Dated at Rockville, Maryland, this

-1>-

~ day of i.. I

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__, 2002.

For the Nuclear Regulatory Commission.

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Andrew L. Bates b- 13 c-:,;;;-

Acting Secretary of the Commission.

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DURYEA. MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law (K£TE; James H. Davenport USNRC Evergreen Plaza Building Cheryl L. Duryea 711 Capitol Way Malachy R. Murphy Olympia, Waahington 98501 Roee Marie Van Winkle (206) 764-6001

-SS OCT -7 All :1 O Of Couneel . Seattle Tower, 24th Floor Robert F. Hauth, P.S. 1218 Third Avenue Seattle, Washington 98101 (2061 343-9366 Please reply to Olympia Mr. Samual Chilk, Secretary Nuclear Regulatory Commission Rm 1135 Matomic Building 1717 H Street Northwest Washington, D.c. 20555 Attention: Chief Docketing and Service Branch Re: Petition for Rulemaking 60-2

Dear Mr. Chilk:

Enclosed is the original and one copy of the Amended Petition of the States of Nevada and Minnesota for the adoption of an amendment to 10 C.F.R. Part 60. This Amended Petition amends that petition submitted on January 22, 1985 and docketed as PRM 60-2.

Please acknowledge the receipt of this Amended Petition by conforming the copy enclosed with the filed original and returning it to me.

Sincerely, DURYEA, MURPHY, DAVENPORT & VAN WINKLE

~

James H. Davenport Special Deputy Attorney General State of Nevada JHD:tjl Enclosures cc: Chairman Nunzio Palladino Commissioner James K. Asselstine Commissioner ~redrick M. Bernthal Commissioner Thomas M. Roberts Commissioner Lando w. Zech, Jr.

Mr. Martin Malsch Mr. Robert Loux Ms. Jocelyn F. Olson Mr. William Olmstead Mr. John Phillips Mr. Dan Egan

CKETEO us~. c 1

2

as OCT -7 All :10 UNITED STATES OF AMERICA OFf/(,t: Of St CRE.TAr1't 3 NUCLEAR REGULATORY COMMIS~ ETING & srnv1cr "A~l :H 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

,8 ___________

of an amendment to 10 C.F.R. Part 60

)

.)

AMENDED PETITION 9

10 11 The States of Nevada and Minnesota hereby amend their Petition to 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 15 Protection 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 26 AMENDED PETITION 1 DURYEA, MURPHY, DA YENPORT & YAN WINKLE Attomeys at Law Evergreen Plaz.a Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

parameters related to geologic repository performance and compliance I

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

6 (3) government ownership and regulations regarding land or resource 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 60.21(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 (c) The Commission shall evaluate the environmental impact 17 statement required by 42 u.s.c. 10134(£) and 10 C.F.R. 60.21(a) to 18 determine whether its adoption by the Commission would not compromise 19 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 26 AMENDED PETITION 2 DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plata Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6()(}1

(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 10101 et * .!S.:_).

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 compare the capabilities of different sites to isolate wastes were 17 based upon the following:

18 (i) only the undisturbed performance of the disposal system has 19 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 26 AMENDED PETITION 3 DURYEA, MURPHY, DAVENPORT& VAN WINKLE A ttomey:s 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.~-

13

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

(1) A detailed description of the program for post-permanent 16 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 DURYEA, MURPHY, 26 AMENDED PETITION 4 DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (106) 754-6()()1

(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 26 AMENDED PETITION 5 DURYEA, MURPHY, DA YENPORT & VAN WINKLE Attorneys at Law Evergreen Plata Building 711 Capitol Way Olympia, Washington 98501 (106) 754-6001

Section 60.112 for more than 100 years after disposal. However, the I 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 26 AMENDED PETITION 6 DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-60()1

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

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 During the pendency of the EPA rulemaking, significant 8

interaction occurred between Commission and EPA staff regarding which 9

was the proper agency to adopt rules in the nature of "assurance IO II 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 DURYEA, MURPHY, 26 AMENDED PETITION 7 DAVENPORT cl VAN WINKLE Attorneys at Law Evergreen Plaz,a Bulldlng 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

characterization must be performed pursuant to a plan reviewed by the 9

Commission and the affected state (Section 113(b)(l), 42 u.s.c.

10 10133(b)(l)) before characterization begins. 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 26 AMENDED PETITION 8 DURYEA, MURPHY, DA YENPORT & YAN WINKLE Attorneys at Law Evergreen Plauz Building 711 Capitol Way Olympia, Washington 98501 (106) 754-6001

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

I 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 Policy Act, 42 u.s.c. 10136(a), that a potentially acceptable site for a repository has been identified within the state. The Draft 9

10 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, pursuant to Section 113 of the Act. Nevada has an interest in, and 16 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 $tate, 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) 754-6()()]

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 121(a) of the Act, 42 u.s.c. 10141(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, 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 DURYEA, MURPHY, 26 AMENDED PETITION 10 DA YENPORT & YAN WINKLE Attorneys at Law Evergreen Plaz.a 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 121(a) of the Nuclear Waste Policy Act, 42 9

u.s.c. 10141(a), specifically states that EPA's authority to 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. 2021(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 26 AMENDED PETITION 11 DURYEA, MURPHY, 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 I ~~ Thomas, (D.C., n.c., 85-0518), EPA issued final standards 2 limiting offsite releases of radioactivity from repositories, 50 p.a.

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

C.F.R. 191.14, those assurance requirements do~ 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.

II 60.24(c). That proposed rule relates to NR.C 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

- 17 18 19 60 to Replace Assurance Requirements in 40 C.F.R. 191, March 21, 1985". NR.C staff, however, found that DOE's site selection guidelines, 10 C.F.R. 960.3-1-5, adequately address this issue.

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 NR.C's "independent responsibilities * *

to protect the public health 24 and safety under the Atomic Energy Act of 1954" (Section 114(f), 42 25 26 AMENDED PETITION 12 DURYEA, MURPHY, DAVENPORT & YAN WINKLE Attorneys at Law Evergreen Plaza Bullding 711 Capitol Way Olympia. Washington 98501 (206) 754-6()()1

1 u.s.c. 10134(f)) will be implicated. The National Environmental 2

Policy Act, 42 u.s.c. 4321, et _!3, together with the Atomic Energy 3

Act of 1954, as amended, 42 u.s.c. 2011, ~_!3, require the 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 11 In adopting the language of Section 114(f) of the NWPA, Congress 12 did not change the requirement for consideration of bona fide 13 alternatives in an EIS. It merely narrowed the universe of all 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 18 19 determination as to site suitability. A site which the Secretary has determined to be unsuitable for development as a repository, or, 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 Pla:r.a Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

Commission's responsibilities be carried out in such a case, and thus l

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, DA YENPORT & J'AN WINKLE Attorneys at Law Evergreen Pla'l'.11 Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6(}()1

CONCLUSION 1

The NRC should adopt the rules proposed by this amended petition.

2 3

DATED t h i s ~ day of $~ , 1985.

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 Heros Memorial Building 1935 West Country Road B2 7

Carson City, Nevada 89710 Roseville, Minnesota 55113 8

9

~ FO~.J.Mi 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 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, DA YENPORT & YAN WINKLE Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

DOCKET NUMBER * .

f j:TITIO_ti RULE PRJ *'6/J.-;,o (Sl;P:~1,~1}

DURYEA, MURPHY, DAVE NPORT & VAN WINKLE Attom s at Law t ETE r USNRC James H. Davenport Evergreen Plaza Building Cheryl L. Duryea 711 Capitol Way Malachy R. Murphy Rose Marie Van Winkle *as OCT -7 A11 :10 Olympia, Washington 98601 (206) 764-6001 Of Counsel Seattle Tower, 24t h Floor Robert F. Haut h, P.S. OFFICE 0~ St1..,H::. A 1218 Third Avenue DOCKETING & SE .VIC r. Seattle, Washington 98101

, ~AN ,H (206) 343-9366 October 1, 1985 Please reply to Olympia Chairman Nunzio J . Palladino United States Nuclear Regulatory Commission Matomic Building 1717 H Street Northwest Washington, D.C. 20555 Re: PRM 60-2

Dear Chairman Palladino:

Enclosed is a copy of the Amended Petition for Rulemaking (PRM 60-2) which the states of Nevada and Minnesota filed with the Secretary on September 30 . It is our intention that the Amended Petition accomplish two objectives. The first is to place before the Commission the substance of the assurance requirements , in terms of amendments to 10 C. F . R. Part 60, which the Envirnomental Protection Agency ' s recently published standards failed to make applicable to NRC licensees, e . g . Department of Energy high-level waste repositories . The second objective is to propose to the Commission a mechanism by which to insure that the Commission ' s independent responsiblity , under the Atomic Energy Act, to protect the public health and safety will not be compromised by the failure of the Department of Energy to comply with Section 114(f) of the Nuclear Waste Policy Act . That proposal can be found at proposed 10 C.F . R. 60 . 24(c) and (d).

The original Petition in this matter was filed on January 22, 1985.

The Commission published notice of receipt of the Petition on April 30, 1985, 50 F . R. 18267 , and requested that comments be filed by July 1, 1985.

No action has been taken on the Petition as of this date .

We are prepared at any time you may desire to brief the Commission on the proposals included in the Amended Petition . We would, of course,

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expect that the Commission would want to provide the same such briefing opportunity to any supporting or opposing parties on an equivelant basis.

Sincerely, DURYEA, MURPHY, DAVENPORT & VAN WINKLE James H. Davenport Special Deputy Attorney General State of Nevada JHD:tjl Enclosure October 1, 1985 Page 2 of 2

DOCKET NUMBER PETITION RULE PRM ~-1.

DURYEA, MURPHY, DAVENPORT & VAN WINKLE Attorneys at Law C.:KETEr James H. Davenport USNRC Evergreen Plaza Building Cheryl L. Duryea 711 Capitol Way Malachy R. Murphy Olympia, Washington 98601 Rose Marie Van Winkle *as OCT - 3 P1 :50 (206) 764-6001 Of Counsel Seattle Tower, 24th Floor Robert F. Hauth, P.S. Septembl\lfF.td:_ C{9:85-, nl :;... 1218 Third Avenue 1rocXETING & SERV 1Cf Seattle, Washington 98101 lftANCH (206) 343-9366 Please reply to Olympia Mr. Samual Chilk, Secretary Nuclear Regulatory Commission Rm 1135 Matomic Building 1717 H Street Northwest Washington, D.C. 20555 Attention: Chief Docketing and Service Branch Re: Petition for Rulemaking 60-2

Dear Mr. Chilk :

Enclosed is the original and one copy of the Amended Petition of the States of Nevada and Minnesota for the adoption of 10 C.F.R. Part 60.

This Amended Petition amends that petition submitted on January 22, 1985 and docketed as PRM 60-2.

Please acknowledge the receipt of this Amended Petition by conforming the copy enclosed with the filed original and returning it to me.

Sincerely, DURYEA, MURPHY, DAVENPORT & VAN WINK.LE JHD:tjl Enclosures cc: Chairman Nunzio Palladino Commissioner James K. Asselstine Commissioner Fredrick M. Bernthal Commissioner Thomas M. Roberts Commissioner Lando w. Zech, Jr.

Mr. Martin Malsch Mr. Robert Loux Ms. Jocelyn F. Olson Mr. William Olmstead Mr. John Phillips Mr. Dan Egan

DOCKET NUMBER

IDqr @,tatr nf llt.arnu.atu PETJTtON ~ULE PRM ~~//1 irpartmrut nf 3Ju.attrroocK::~ ~ Fil I ?,tt, z) "!£)

USNRC Carl A. Sinderbrand

as JUL 15 All :26 Bronson C. La Follette Assistant Attorney General Attorney General (608) 266-3936 OFFI CE OF SECRETAh Ed Garvey DOC KETING & SERVI Cf 123 West Washington Avenue Deputy Attorney General Mailing Address: P.O. Box 7857 July 11, 1985 BRANCH Madison, Wisconsin 53707-7857 Mr. Samuel Chilk, Secretary United States Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Services Branch Re: Petition for Rulemaking from States of Nevada and Minnesota, Docket No. PRM-60-2

Dear Mr. Chilk:

The State of Wisconsin hereby expresses its support for the above-referenced petition for rulemaking initiated by the States of Nevada and Minnesota. The proposed rulemaking would require the United States Nuclear Regulatory Commission (NRC) to adopt quality assurance requirements to ensure that any high-level radioactive waste repository would conform with environmental standards to be promulgated as 40 C.F.R. Part 191.

We understand that the promulgation of environmental repository performance standards by the United States Environmental Protection Agency (EPA) is presently being delayed because of questions surrounding EPA's jurisdiction to adopt associated quality assurance requirements. Irrespective of EPA's jurisdiction, we agree with petitioners that NRC has the independent authority to promulgate such requirements. We further believe that promulgation of such requirements by NRC will facilitate expeditious promulgation of the EPA environmental standards.

Promulgation of environmental standards and quality assurance requirements for repository siting is imperative. The United States Department of Energy (DOE) has promulgated and is currently applying its general guidelines for the siting of high-level radioactive waste repositories. These guidelines rely in large measure on the standards in 40 C. F. R. Part 191 as the criteria for assessing site suitability. Until such standards are actually promulgated, DOE's present siting activities will be subject to substantial uncertainty. It is both inappropriate and

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Mr. Samuel Chilk, Secretary July 11, 1985 Page 2 irresponsible to base significant siting decisions on proposed standards which remain subject to further consideration.

The State of Wisconsin maintains a continuing interest in these siting activities, in that the state has been identified by DOE for consideration of a second repository. It is essential that decisions made by DOE in connection with sites in both Wisconsin and elsewhere are premised on performance and quality assurance requirements which are certain, justifiable and uniformly applicable.

The NRC has suggested that, rather than accepting the petition for rulemaking, it may continue its negotiations with EPA toward development of one set of rules which would incorporate quality assurance requirements acceptable to both EPA and NRC. Since we are not privy to these negotiations, it is difficult to comment upon the potential for success. In light of the many months of unsuccessful negotiations to date, however, we believe that an independent rulemaking, as requested by Nevada and Minnesota, would provide a more effective and expeditious solution. Inconsistency and unnecessary duplication could be avoided by EPA's active participation in the NRC rulemaking proceeding.

For these reasons, the State of Wisconsin respectfully requests the NRC to accept and aggressively pursue this rulemaking.

Sincerely yours, LJA . ~

Carl A. Sinderbrand Assistant Attorney General CAS:dah

IX)CKET NUMBER PETIJION RULE PRM ~-~ @

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MID D LE SOUTH SERVICES , INC./ B0X 6100 O / N EW ORLEANS , LA. 7 O 15 I /(504) 528-5262 FELIX M. K I LLAR, J R .

MANA GER, N UCLEA R FUEL S UPPLY DOf:KETEO USHRC

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BRA'.~Cl-i Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Serv i ce Branch

SUBJECT:

Petiti on for Rulemaking (PRM 60-2) Nevada and Minnesota Middl e South Services, Inc . is submitting these comments on behalf of Arkansas Power & Light Company, Louisiana Power & Light Company, Mississippi Power & Light Company and itself. We have reviewed the petition for rule-making of Minnesota and Nevada, which requests the Commission to adopt as rule the assurance requirements contained in draft 40 CFR 191.14 of the Environmenta1 Protection Agency (EPA) dated May 21, 1984.

Middl e South believes that any assurance requirements considered appropriate by the Commission or EPA should be specified as guidance criteri a, not formal agency standards or regulation. As standards, assurance requirements could limit the flex i bility of the engineering of spent nucl ear fuel / high level waste reposi-tory systems. In addition, Middle South urges the Commission to maintain its position previous ly stated that fina l EPA high- l evel waste standards need not be issued prior to the initiation of the site characterization process. Middle South appreciates this opportunity to comment; if there are any questions, do not hesitate to contact me.

FMK/LLS/bjm File: 041-01 096-02 cc: Dr. T. W. Schnatz Mr. L. L. Kittrell Mr. J. F. Fager Nuclear Fuel Subcommittee NED/QA Managers JUL - 9 1985 AckftaNfedllid bJ tard ..** *. * ** #i -"r. *p ~

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DOCKET NUMBER 101 State Capitol Building PETITION* RULE PRM ~O-,L Salt Lake City, UT 84114 Telephone 801-533-4372 (_.57) FL /F,2~ 7) high level nuclear waste office Norman H, Bangerter, Governor Patrick D . Spurgin, Director Jack Wittman, Associate Director DOCKETED USN~C July 1, 1985

'85 UL -8 P1 :14 Secretary of the Cornmission uF 1 : , ~ ::t. l, ,t. A U.S. Nuclear Regulatory Commission OOCKE T NG & SE RVICf Washington, D.C. BRA NCH Attn: Docketing & Service Branch

Dear Sir:

With regard to the notice of the filing of a petition for rulemaking by the States of Nevada and Minnesota published in the April 30, 1985 Federal Register (50 FR 18627), the State of Utah High Level Nuclear waste Office offers the following comment:

It is our understanding that the EPA and the NRC have agreed that assurance requirements contained in 40 CFR 191 would not be applicable to facilities licensed by the NRC. Nonetheless, nuclear waste repository site evaluations must focus on site conditions which promote confidence that numerical radiation release standards contained in 40 CFR 191 can be met. Since site evaluations are underway, DOE decisions without suitable assurance requirements may produce sites which do not effectively afford confidence in terms of such requirements.

The difficulties ar1s1ng from the timing of site evaluations in relation to statutory required standards compels a timely resolution of issues related to assurance requirements. Therefore, without adopting specific positions stated in the rulemaking petition, this office supports rulemaking proceedings related to assurance requirements to the extent such proceedings would not be in conflict with vaid EPA rulemaking.

PDS/hud

I u. s. NUCLEAR REGULATORY COMMISSION DOCKETING & SERYI C;;: BRANCH OFFICE OF Tl-I E .. EC.RF f/R Y OF TH!';, CO ,.,,, , ,.,N

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c~ r-£ 1J>~r,7J 81 OFFICE OF THE GOVERNOR OOGKETEO MARK WHITE STATE CAPITOL USNRC GOVERNOR AUSTIN, TEXAS 78711 July 2, 1985 *ss JUL -s P12 :o9 Mr. Samuel J. Chilk GFFl r:: OF StCK t 1Ar1 OOCKET ING & SERVICf Secretary of the Commission BRANCH U.S. Nuclear Regulatory Commission 1717 H Street, NW Washington, D.C. 20555 Attention: Docketing and Service Branch RE: Comments Solicited in Notice of Receipt of Petition for Rulemaking from the States of Nevada and Minnesota (Federal Register, Vol. 50, No. 83, April 30, 1985, pp. 18267-18269)

Dear Mr. Chil k:

The Secretary of Energy in February, 1983 sent to the Governor of Texas, the President of the Texas Senate, and the Speaker of the Texas House notices intended to inform them that potentially acceptable sites for a high-level waste repository are located in Texas. The Texas Nuclear Waste Programs Office has been designated as the liaison with the Nuclear Regulatory Commission regarding Nuclear Waste Policy Act (NWPA) activities and is responsible for monitoring activities of the Department of Energy in carrying out the program for disposal of high-level waste as provided by the NWPA. In those capacities we offer the following comments on the petition for rulemaking referenced above.

The NRC ' s critical role in the repository development program, i.e. licensing or rejecting the sites selected by the DOE for repositories, makes the development of comprehensive NRC criteria essential. In order to improve the probability that early DOE decisions will ultimately lead to licensable sites, the full range of criteria and requirements must be available for application in siting considerations.

The need for promulgation of these criteria and requirements prior to key siting decisions is recognized by Congress and is reflected in the sequence of activities specified in the NWPA. That law requires that the key regulations of the NRC and Environmental Protection Agency (EPA) be promulgated by January, 1984 -- a full year prior to the recommendation by the Secretary of Energy to the President of three sites for characterization . Furthermore, the Site Selection Guidelines (10 CFR 960) promulgated by the DOE, as mandated by the NWPA, are clearly stated in their text to have been developed " ... to complement the requirements set forth in the Act (NWPA), 10 CFR Part 60, and 40 CFR Part 191." -- a clear indication that even the DOE recognizes the significance of these fundamental guidelines and the sequence of activities mandated by Congress.

('

J I u. s. NUCLEAR REGULATORY C0MMISSIO DOCK ETING & SERVICE E>RANCl-f.

Offl C.t. OF THE SECRETAH'(j OF Tl IE CO ll~S10N 001.

Postmark Date CQptes R e Add1 Co

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Mr. Samuel J. Chilk Page 2 The EPA first issued draft standards in December, 1982 and has subsequently produced an additional five working drafts with little evidence that a comprehensive final rule will soon be available. In view of the critical nature of the NRC and EPA rules, the NWPA requirement that those rules be compatible, and the tendency of of the DOE to proceed with their activities in spite of the absence of essential information and guidance, it appears prudent, even essential, that the requirements that the selected sites are to satisfy must be available before the sites are selected.

The slow action of the EPA in development of their rule deprives the DOE of necessary guidance, and we conclude that the NRC as the ultimate judge of the safety and acceptability of the sites selected must provide timely guidance to the DOE especially in the case of the fundamental guidance represented by the assurance requirements addressed in the referenced petition for rulemaking.

The Texas Nuclear Waste Programs Office commented on the draft 40 CFR 191 published by EPA in the Federal Register and later wrote to EPA in support of retaining the substance of the assurance requirements. Subsequent events and current circumstances lead us to conclude that these assurance requirements should be in the NRC rule 10 CFR 60.

The possible duplication of assurance requirements in both the EPA and NRC regulations is of no consequence. The NWPA provides that these two rules must be compatible and also specifies which rule will prevail in the event of any incon-sistency. Logic and prudence demand that the NRC rule include all of the essential elements for credible performance by DOE of the current and continuing early siting decisions.

The State of Texas fully supports the position that the NRC rule 10 CFR 60 should include assurance requirements as requested by the States of Nevada and Minnesota in their Petition for Rulemaking and urges the Nuclear Regulatory Com-mission to amend 10 CFR 60 to add appropriate assurance requirements.

Yours truly, Steve Frishman, Director Nuclear Waste Programs Office SF:dp cc: Dan Smith, Asst. Director

KETNU~* ..

ETITION RU~ PRM UJ.-J. /.ii l()Hf-l)C5ell~ 67J Fil 18:Lf.1) If!!!/ WARREN A. BISHOP Governor Chair STATE OF WASHINGTON NUCLEAR WASTE BOARD 0(.;KETE C USl-1 C Mail Stop PV- 11

Olympia, Washington 98504 * (206) 459-6670 June 28, 1985

'85 Jll -1 p3:07 OFF ICE Of St.t;rtt IAt-<

Mr. Samuel J. Chilk, Secretary DOCKETING & SE~VICf Nuclear Regulatory Commission RANCH Washington, D.C. 20555 RE: In re Petition of the States of Nevada and Minnesota for the Adoption of a New Regulation for the Imple-mentation of 40 CFR 191.

Nuclear Regulatory Commission Docket No. 60-21

Dear Mr. Chilk:

The state of Washington, like the petitioner Nevada, is a state that has been notified under the Nuclear Waste Policy Act (NWPA) that a potentially acceptable site for a repository has been identified within its boundaries. Washington, again like Nevada, avers that it may become affected for purposes of "site char-acterization" under Section 113 of the NWPA.

This comment in support of the petition of Nevada and Minnesota is submitted because of Washington's interest in protecting the future health and safety of its citizens.

The adoption by the Nuclear Regulatory Commission of the "assurance requirements" regulations proposed by Nevada and Minnesota will buttress substantively the environmental protection elements of the NWPA's repository program. Further, it will remove impediments to the much-needed adoption by the United States Environmental Pro-tection Agency, under Section 12l(a) of the NWPA, of standards for protection of the general environment from radioactive materials from repositories. In this regard, we associate with the analysis contained in the two states' petition.

The Nuclear Regulatory Commission is urged to adopt a regulation governing the implementation of proposed 40 CFR 191 as set forth in Section 1 of the petition of Nevada and Minnesota.

Thank you for taking our comments into account.

Sincerely,

.d..RJ?o~

Warren A. Bishop Chairman Nuclear Waste Board WAB:hlt JUL *2 AQMluw1'dlld by Olrd . ** u ..._.,.*u u ..u

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DOCKET NUMBER PETITION RULE PRM &,()-~ (j) JOHN J. KEARNEY, Senior Vice President (b?J Fil IBt2, 7)

EDISON ELECTRIC INSTITUTE The association of electric companies C:KETEO 11 1119th Street, N.W. USN C Washington , D.C. 20036 Tel: (202) 828-7400 June 28 ,'8598'- -1 A11 :QS OFFICE OF SE~Rt iAP}

Secretary of the Commission OOCKET IN SERVlf 1.

U.S. Nuclear Regulatory Commission BRANCH Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Notice of Receipt of Petition for Rulemaking from the States of Nevada and Minnesota (50 Federal Register 18,267)

These comments are submitted on behalf of both the Edison Electric Institute ( "EEI") and the Utility Nuclear Waste Management Group ( "UNWMG")

We have reviewed the Petition To Institute Rulemaking (~Petition") filed by the States of Nevada and Minnesota, which requests that the Nuclear Regulatory Commission ( "NRC") adopt under its authority the assurance requirements originally proposed by the Environmental Protection Agency ("EPA") during the development of its standards for the disposal of high-level radioactive wastes (see, ~ ' section 191.14 of EPA Working Draft No. 4, dated May 21, 1984).

EEI/UNWMG believe that any assurance requirements considered necessary by either the NRC or EPA should be specified in terms of guidance, and not be made part of formal agency standards and regulations. Such an appr oach would afford designers greater flexibility in the selection and engineering of repository systems. This, in turn , would facilitate the use of site-speci -

fic characteristics in achieving adequate, overall disposal system performance.

In addition, the Petition also requests that the NRC find that the Nuclear Waste Policy Act requires that final EPA standards for the disposal of high-level radioactive waste must be issued before the Department of Energy {"DOE") can publish environmental assessments or nominate or recommend a site for characterization. As the Commission has already concluded, however, it is not necessary for final EPA high-level waste standards to be issued prior to the initiation o f site characterization. (See Letter from Chairman Palladino to James H. Davenport, dated December 5, 1984 .) The Petition provides no basis for modifying this conclusion, and EEI/UNWMG therefore urge that the NRC reaffirm its position and reject that presented by Nevada and Minnesota.

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Secretary of the Commission June 28 , 1985 Page Two In sum, for the reasons discussed above, the Petition should be denied. We would be pleased to discuss these comments with you in additional detail if you have any questions or we might otherwise be of assistance.

Sincerely yours, Xt;z::z earney ce Presid nt JJK: jhd

7590-01 Nuclear Regulatory Commission 10 CFR Part 60 States of Nevada and Minnesota *ss APR 26 AlO :57 Filing of Petition for Rulemaking GFF!C: OF SECRtT k""

DOCKEilNG & S£RVl';f Docket No. PRM-60-2 BRANCH .

AGENCY: Nuclear Regulatory Commission .

ACTION: Notice of Receipt of 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. This petition, filed by the States of Nevada and Minnesota, and dated January 21, 1985, was docketed by the Commission on January 28, 1985, and assigned Docket No. PRM-60-2. The petitioner requests that the Commission adopt a regulation governing the

implementation of certain environmental standards which have been proposed by the Environmental Protection Agency.

DATE: Corrment period expires July 1, 1985 Co11111ents received after this date will be considered if it is 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 peti tion for rulemaking should send their comments to the Secretary of the Commission, U.S. Nuc l ear Regula t ory Commission, Washington, DC 20555, Att~ntion: Docketing and Service Branch.

Single copies of the petition may be obtained free by writing to the Div i sion of Ru l es and Records, Office of Administration, U.S. Nuclear Regula t ory Corrvnission, Washington, DC 20555.

The petition, copies of corrvnents, 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, Chie f , 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 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 parti cipa-tion in site characterization, pursuant to §1 13 of the NWPA. The State of Minnesota joins this 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 th i s petition on their respective interest in, and the prevailing respons i bi l ity for, the protection of the future health and safety of their citizens .

II. Statement in Support of Petition The petitioner notes that the NWPA, enacted by Congress on December 20, 1982, and approved by the President on January 7, 1983, requires that the President recolTITiend a first, high-level nuclear waste repository location to Congress by March 31, 1987 (§114(a)(2)(A), 42 U.S.C. 10134(a )( 2)(A)) or March 31, 1988, if he determines an extension is necessary (§114(a) (2 )(B), 42 U.S.C. 10134 (a)(2)(B)). The Nuclear Regulatory Commission (Commission) must act upon an application for construction authorization for that repository by January 1,

1989, or within three years of the application's filing (§114{d)(l), (2), 42 U.S.C. 10134(d)(l), (2)). The President's recommendation must be based upon Department of Energy (DOE) site characterization at a site which must have been recommended by January 1, 1985 (§112{b)(l)(D), 42 U.S.C. 10133(b)(l )( D)).

Site characterization must be performed pursuant to a p1an reviewed by the Commission and the affected state (§113(b)(l), 42 U.S.C. 10133(b)(l) ) before characterization begins. That plan must include criteria to be used by DOE to determine the suitability of such candidate site for the locat i on of a 11 repository, developed pursuant to §112(a);" (§113(b)(l)(A)(iv), 42 U.S.C.

10133(b)(l)(A)(iv)). DOE's §112(a) guidelines, as concurred in by the

I

Commission on June 22, 1984 (49 FR 28130) require that evidence used to apply those guidelines include 11 analysis of expected repository performance to assess the likelihood of demonstrating compliance with 40 CFR 191 and 10 CFR 60 **.. 11 Section 121(a) of the NWPA requires the Environmental Protection Agency (EPA) to promulgate by rule, not later than one year after the date of the enactment of the NWPA, or January 7, 1984, 11 generally applicable standards for protection of the general environment from offsite releases from radioactive material in repositories." The EPA published a proposed rule, 11 Environmenta1 Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes 11 on December 29, 1982 (47 FR 58196). The proposed rule contained a section entitled 11 Assurance Requirements - 40 CFR 191.14. 11 Accord-ing to petitioner, such assurance requirements are clearly 11 generally applicable standards 11 within the meaning of Section 121 (a) of NWPA.

In response to its published notice of proposed rulemaking, EPA received objections regarding the authority of EPA to promulgate the proposed 11 Assurance Requirements. 11 These objections were based on legal arguments that §121( a} of the NWPA spec ifically clarifies that EPA's authority to promu l gate the proposed .

rule arises 11 under other provisions of law. 11 Those "other provisions of law 11 include the Atomic Energy Act of 1954, as amended, and the Pres i dent's Reorgan i -

zation Plan No. 3 of 1970. According to petitioner, the essence of the obj ecti on was that Reorganization Plan No. 3 placed within the Federal Radiation Council, which is no longer in existence, rather than EPA, the authori ty fo r requ i rements such as those contained within proposed 40 CFR 191.14.

The statutory deadline for the promulgation of the EPA standards has passed with-out promulgation of the standards. Petitioner states that the primary reason for that failure is the jurisd i ctional dispute over EPA's authority to issue the requirements contained in 40 CFR 191.14. The petitioner states that because proposed 40 CFR 191.14 contains generally applicable standards for the protec-tion of the general environment from offsite releases from radioactive materials in repositories, the EPA should proceed to finalize 40 CFR 191. It is also argued that DOE cou l d not make nomination decisions or recommendations for characterization until EPA standards are final.

Petitioner asserts that disputes as to the question of authority preclude EPA from issuing its final standards. The petitioner states further that the general authority of the Commission to protect the health and safety of the public against radiation hazards under the Atomic Energy Act endows the Commission with the power to enact regulations of the nature contained in proposed 40 CFR 191.14 notwithstanding the question over EPA's authority.

Therefore, the petitioner suggests that since no objections have been raised

regarding the substance of proposed 40 CFR 191.14, and because the proposed rule does provide confidence that the containment requirements of 40 CFR 191.13 would be met by a repository, the NRC should enact under its authority the proposed regulations originally published by EPA on December 29, 1982 (47 FR 58196), thereby removing the jurisdictional issue as an impediment to the EPA's promulgation of the proposed section. According to the petition, once this impediment is removed, the EPA could move to final adoption of its rule. The

petition also rec i tes certain proposed Corrmission findings, including a f i nding that the EPA's standards must be final before environmental assessments can be finally published and before DOE may nominate a site or recommend a site for characterization.

III. Conclusion The assurance requirements referred to by the petitioner have been the subject of prior consideration by the Commission. As a result of such consideration, the Commission on May 17, 1984, directed the staff to continue discussions with EPA on those assurance requirements, with the objective of coming to a mutual agreement on provisions that could be incorporated into 10 CFR Part 60.* If the NRC and EPA staffs arrive at such agreement, appropriate rule changes will be recommended to the Commission. If approved by the Commission, such changes will be publ i shed in the Federal Register. There would be an opportunity for further public comment before any final amendments are adopted.

le As a matter of orderly administrative procedure, the Commission may elect to continue its efforts to resolve any outstanding differences with EPA, and to deny the instant petition. This would avoid duplicative, and indeed poss i bly

The Commiss i on direction to the staff, along with other pertinent materials, has been placed in the file of this proceeding.

conflicting, rulemaking activities. The issues raised in the petition would not be disregarded, but would, on the contrary, be considered in the development of rules acceptable to EPA which the Commission may propose for adoption.

Commenters are invited to express their views as to the appropriateness of this course of action.

Dated at Washington, DC this .JS"fl.

- day of 1985.

For the Nuclear Regulatory Commission.

John C.

Assistant the Commission .

DURYEA, HOUCHINS, MURPHY & DAVENPORT ATTORNEYS AT LAW

JAMES H. DAVENPORT EVERGREEN PLAZA BUILDING CHERYL L DURYEA 711 SoUTH CAPITOL WAY OLYMPIA, WASHINGTON 98501 R. CORBIN HOUCHINS, P.S.

MAL.ACHY R . MURPHY ROSE MARIE VAN WINKLE

as p3 :4flELEPHONE: (206) 754-6001 SEATTLE TOWER, 24TH FLoOR SEATTLE, WASHINGTON 98104 OF CoUNSEL: -. -. , : . TELEPHONE: (206) 343-9597 JARDINE, TURNER, FOREMAN & APPEL, P .C. ,, ** ,* * - ,: ..! .'l. ~Ef-(,t;f; ,

ROBERT F. HAUTH, P.C.

,.i*;Mlil~ase reply to: Olympia January 22, 1985 DOCKET NUM~ .

Mr. Samuel J. Chilk Secretary PETITION RULE PRM ~-'2/

Nuclear Regulatory Commission (5lJ FIG //£(p7}

Room 1135 Matomic Building 1717 H Street Northwest Washington, D.C. 20555 Attention: Chief, Docketing and Service Branch Re: Petition for Rulemaking

Dear Mr. Chilk:

Enclosed is the original and one copy of the Petition of the States of Nevada and Minnesota for the adoption of a new regulation for the implementation of 40 CFR 191. This Petition is submitted in accordance with 10 CPR 2.802.

Please notify me of the docket number which has been assigned to this Petition by conforming the copy enclosed with the filed original and returning it to me.

Sincerely, DURYEA, HOUCHINS, MURPHY & DAVENPORT JHD:tjl Enclosure cc: Chairman Nunzio Palladino Mr. Lee Tho mas Commissioner James K. Asselstine Mr. Sheldon Myers Commissioner Fredrich M. Bernthal Mr. Robert Loux Commissioner Thomas M. Roberts Ms. Jocelyn F. Olson Commissioner Lando W. Zech Jr. Mr. William Olmstad Mr. Sheldon Trubatch

. . .UY -: !.tJS__/Jj --

Acknowtedged by card . .****** ~-.-,.. *~

DOCKET NUMBER-.

PETITION RULE PRM 6,0-/u 1 UNITED STATES OF AMERICA 2

.85 NUCLEAR REGULATORY COMMISSION JAN 28 P3 :43 3 BEFORE THE COMMISSIONERS 4 In the matter of )

the Petition of the )

5 States of Nevada and Minnesota )

for the Adoption of a ) DOCKET NO.

6 New Regulation for the )

7 _____________

Implementation of 40 C.F.R. 191. )

)

8 9

10 PETITION TO INSTITUTE RULEMAKING The States of Nevada and Minnesota, Petitioner, hereby respectfully requests and petitions the Nuclear Regulatory Commission, NRC, pursuant to 5 11 U.S.C § 553 and 10 C.F .R. §§ 2.800-2.804, to exercise its rulemaking authority 12 and adopt a regulation governing the implementation of proposed 40 C.F.R. 191 13 14 by the Nuclear Regulatory Commission.

L Text of Proposed Rules.

15 A. Assurance Requirements.

16 17 To provide the confidence needed for compliance with the Environmental 18 Protection Agency's generally applicable Environmental Standards for the 19 management and disposal of spent nuclear fuel and high-level and transuranic 20 radioactive waste, 40 C.F.R. 191.13, the Commission shall determine the 21 compliance of any proposal of the Department of Energy for a construction 22 authorization for the development of a high-level nuclear waste repository with 23 those standards through application of the following:

24 25 26 PETITION FOR RULEMAKING 1 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorneys at Law Evergreen Plaza Building 711 Capitol War Olympia, Wahington 98501 (206) 754-6001

I (a) Active institutional controls over disposal sites should be maintained 2 for as long a period of time as is reasonable after disposal; however, isolation of 3 the wastes from the environment shall not rely upon any of the active controls 4 for more than 100 years after disposal.

5 (b) During the period that active controls are maintained, disposal site 6 shall be monitored to detect any substantial and detrimental deviations from 7 expected performance. This monitoring shall be done with techniques that do

8 9

10 not jeopardize the isolation of the wastes.

(c) Disposal sites shall be designated by the most permanent markers and records practicable to indicate the dangers of the wastes and their location.

II (d) Disposal systems shall use several different types of barriers to 12 isolate the wastes from the environment. Both engineered and natural barriers 13 shall be included. Each barrier shall be designed or selected so that it 14 complements the others and can significantly compensate for uncertainties about 15 the performance of one or more of the other barriers.

16 (e) When selecting high-level radioactive waste repository sites from 17 among alternatives considered in detail (e.g., from among those characterized in 18 accordance with the Nuclear Waste Policy Act of 1982), one of the significant 19 considerations shall be selection of sites that have natural properties that are 20 expected to provide better isolation of the wastes from the accessible environ-21 ment for 100,000 years after disposal. Analyses used to compare the capabilities 22 of different sites to isolate wastes (with regard to this provision only) shall be 23 based upon the following: (1) only the undisturbed performance of the disposal 24 system should be considered; (2) the performance of the waste packages and 25 26 PETITION FOR RULEMAKING 2 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Anor11ey3 at Law Evergreen Plaza Building 711 Capitol Way Olymput, Wuhington 98501 (206) 754-6001

I waste forms planned for the disposal system shall be assumed to be the same 2 from site to site and shall be assumed to be at least an order of magnitude less 3 effective than the performance required by 10 CPR 60.113; and (3) no credit 4 shall be taken for other engineering controls intended to correct preexising 5 natural flaws in the geologic media (e.g., grouting of fissures should not be 6 assumed, but effective sealing of the shafts needed to construct the repository 7 should be assumed) *

8 9

IO (f) Places where there has been mining for resources, or where there is a reasonable expectation of exploration for scarce or easily accessible resources, or where there is a significant concentration of any material that is not widely II available from other sources, should be avoided in selecting disposal sites. Such 12 places shall not be used for disposal of the wastes covered by this Part unless the 13 favorable characteristics of such places more than compensate for their greater 14 likelihood of being disturbed in the future.

15 (g) Disposal systems should be selected so that removal of most of the 16 wastes is not precluded for a reasonable period of time after disposal*

17 (h) Disposal systems shall be selected and designed to keep releases to l8 the accessible environment as small as reasonably achievable, taking into 19 account technical social and economic considerations.

20 21 B. Commission Findings.

22 The rules promulgated herein were originally proposed by the Environmen-23 tal Protection Agency for inclusion in 40 C.F.R. 191 on December 29, 1982 57 24 C.F.R. 58196 pursuant to § 12l(a) of the Nuclear Waste Policy Act, 42 U.S.C.

25 PETITION FOR RULEMAKING 3 26 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Anorneya at Law Evergreen Plua Building 711 Capitol W *r Olympia, Wuhington 98501 (2()6) 754-6001

l 10141, the Atomic Energy Act of 1954, as amended, and the President's 2

Reorganization Plan No. 3 of 1970. Significant public comment was received by 3

the Environmental Protection Agency pursuant thereto. Such comment has been 4

reduced to written record which the Nuclear Regulatory Commission has 5

reviewed for substantive content. Also, response to such comment had been 6

incorporated by the Environmental Protection agency in its latest draft version 7

of the rule with amendment herein promulgated*

8 9

IO The President must recommend a first high-level nuclear waste repository location to Congress by March 3 I, 1987 (§ 114(a)(2)(A), 42 U.S.C. 10134(a)(2)(A))

or March 3 I, 1988 if he determines an extension necessary (§ 114(a){2)(B), 42 II U.S.C. 10134(a)(2){B)). The Nuclear Regulatory Commission must act upon an 12 application for construction authorization for that repository by January I, 1989 13 or within 3 years of the application's filing(§ 114(d)(l), (2), 42 U.S.C 10134(d)(l),

14 (2)). The President's recommendation must be based upon Department of Energy 15 site characterization at a site which must have been recommended by January l, 16 1985 (§ 112(b)(l)(D), 42 u.s.c. 10133(b)(l)(D)). Site characterization must be 17 performed pursuant to a plan reviewed by the Commission and the affected state 18

(§ 113(b)(l), 42 U.S.C. 10133(b)(l)) before characterization begins. That plan 19 must include criteria to be used by DOE to determine the "suitability of such 20 candidate site for the location of a repository, developed pursuant to § 112(a);"

21

(§ 113(b)(l)(A)(iv), 42 U.S.C. 10133(b)(l)(A)(iv}). DO E's § 112(a) guidelines, as 22 concurred in by the Commission on June 22, 1984, 49 F.R. 28130, require that 23 evidence used to apply those guidelines include "analysis of expected repository 24 performance to assess the likelihood of demonstrating compliance with 40 C.F.R.

25 26 PETITION FOR RULEMAKING 4 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympi.a, Wuhington 98501 (2(}6) 754-6()()1

1 191 and 10 C.F.R. 60 **** " Proposed 10 C.F.R. 960.3-1-5. The Commission 2

finds, therefore, that the rule herein enacted must be in place in order that the 3

Department of Energy may design its site characterization plan, for approval by 4

the Nuclear Regulatory Commission, in a manner consistent with its final 5

guidelines.

6 The Commission also finds that, as a matter of the legal requirements of 7

the Nuclear Waste Policy Act, the EPA's standards required by § 12l(a) of the 8

Act must be final before environmental assessments prepared by DOE pursuant 9

to § 112(b)(l)(E) of the Act can be finally published and before DOE may 10 nominate a site or recommend a site for characterization pursuant to 11

§ 112(b)(l)(A) and (B) of the Act.

12 13 C. 42 U.S.C. 2239(a)(2)(A).

14 The Commission finds that the rule promulgated herein does not amend any 15 operating license currently in effect.

16 17 II. Groun~ and Interest.

18 Petitioner State of Nevada files this rulemaking Petition as a state 19 notified, pursuant to § 116(a) of the Nuclear Waste Policy Act, 42 U.S.C 20 10136(a), that a potentially acceptable site for a repository has been identified 21 within the state. The Draft Environmental Assessment of the Yucca Mountain 22 Site, Nevada Research and Development Area, Nevada, published on December 23 20, 1984, indicates that the Yucca Mountain site may be nominated under 24

§ 112(b)(l)(A) of the Act and may be recommended for characterization under 25 26 PETITION FOR RULEMAKING 5 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorneya at Law Evergreen Plua Building 711 Capitol Way Olympia, Wuhington 98501 (206) 754-6()()1

I

§ 112(b)(l)(B) of the Act. The State of Nevada may become affected for 2

purposes of participation in site characterization, pursuant to § 113 of the Act.

3 Nevada has an interest in, and the prevailing responsibility for, the protection of 4

the future health and safety of the citizens of the State of Nevada.

5 Petitioner State of Minnesota joins this Petition as a state informed by the 6

Department of Energy that, due to the presence of crystalline rock within its 7

borders, the State is being considered for site characterization for a second 8

repository. As a potentially acceptable state the State of Minnesota may be 9

directly affected by the substance of standards for development of repositories.

IO Minnesota has an interest in, and the prevailing responsibility for the protection 11 of the future health and safety of the citizens of the State of Minnesota.

12 13

m. Statement in Support.

14 The Nuclear Waste Policy Act was enacted by the Congress on December 15 20, 1982 and approved by the President on January 7,198.3. Section 12l(a) of the 16 Act, 42 U.S.C. 10141(a), required the Environmental Protection Agency to 17 promulgate by rule, not later than one year after the date of the enactment of 18 the Act, or January 7, 1984, "generally applicable standards for protection of the 19 general environment from offsite releases from radioactive material in reposi-20 tories." Pursuant to its view of that requirement and its general authority under 21 the Atomic Energy Act and the President's Reorganization Plan of 1970, the 22 Environmental Protection Agency published proposed "Environmental Standards 23 for the Management and Disposal of Spent Nuclear Fuel, High-Level and 24 Transuranic Radioactive Wastes" on December 29, 1982 (47 F.R. 58196). Those 25 26 PETITION FOR RULEMAKING 6 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorneys at Law Evergreen Pwa Building 711 Capitol Way Olympia, Wuhington 98501 (206) 754-6001

I proposed standards include Containment Requirement (proposed 40 C.F .R.

2 191.13), Assurance Requirements (proposed 40 C.F .R. 191.14) and Guidance for 3 Implementation (proposed 40 C.F.R. 191.16).

4 The Environmental Protection Agency received significant written 5 comment and conducted public hearings on the proposed standards. The entire 6 record of the rulemaking is contained within Environmental Protection Agency 7 Docket No. R 82-3 and is available for inspection in the West Tower Lobby,

8 9

Gallery One, Central Docket Section, 401 M Street Southeast, Washington, D.C.

In 1983, early in the process of notice and comment on EPA's proposed 40 C.F .R. 191, objections were raised regarding the authority of the Environmental 11 Protection Agency to promulgate that portion of its proposed rules contained in 12 proposed 40 C.F.R. 191.14, entitled "Assurance Requirements." These objections 13 were based on the legal argument that§ 12l(a) of the Nuclear Waste Policy Act, 14 42 U.S.C. 1014l(a), specifically clarifies that EPA's authority to promulgate the 15 proposed rules arises "under other provisions of law. 11 Those "other provisions of 16 law" include the Atomic Energy Act of 1954 as amended, 20 U.S.C. 202l(h), and 17 the President's Reorganization Plan No. 3 of 1970. The essence of the objection 18 was that the President's Reorganization Plan No. 3 of 1970 placed within the 19 Federal Radiation Council, now no longer in existence, rather than the Environ-20 mental Protection Agency, the authority for such requirements as contained 21 within the proposed 40 C.F.R. 191.14.

22 On May 21, 1984, the Environmental Protection Agency published Working 23 Draft No. 4-Final 40 C.F.R. 191-5/21/84, the proposed environmental standards, 24 for review within EPA and other federal agencies.

25 26 PETITION FOR RULEMAKING 7 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorner- at Law Evergreen Plan Building 711 Capitol Way Olympia, Wuhington 98501 (206) 754-(i()()J

l Even though the Environmental Protection Agency's statutory deadline for 2

promulgation of the standards is past, the Environmental Protection Agency has 3

not finalized 40 C.F.R. 191 as required by § 112(a) of the Nuclear Waste Policy 4

Act. The primary reason for that failure is the jurisdictional issue of the 5

Environmental Protection Agency's authority to promulgate requirements of the 6

nature contained in proposed 40 C.F.R. 191.14.

7 Even though Congress recognized, in § 12l(a) of the Nuclear Waste Policy 8

Act, 42 U.S.C. 1014l(a), that EPA's authority to promulgate the standards 9

existed "pursuant to authority under other provisions of law, 11 Congress clearly believed that such other authority included the authority to promulgate 11 "generally applicable standards for protection of the general environment from 12 offsite releases of radioactive material and repositories." Proposed 40 C.F .R.

13 191.14, Assurance Requirements, are clearly such "generally applicable 14 standards." To the extent that 20 U.S.C. 202l(h) or the President's Reorganiza-15 tion Plan No. 3 of 1970 have an alternate legal meaning, it would seem that 16

§ 12l(a) prevails over that earlier law and contains the necessary EPA authority.

17 Because proposed 40 C.F.R. 191.14 contains generally applicable standards 18 for the protection of the general environment from offsite releases from 19 radioactive materials in repositories, the Environmental Protection Agency 20 should proceed to finalize 40 C.F.R. 191. However, dispute as to the question of 21 authority continues to preclude that from happening. Fortunately, the general 22 authority of the Nuclear Regulatory Commission to protect the health and safety 23 of the public against radiation hazards under the Atomic Energy Act endows the 24 Commission with the power to enact regulations of the nature contained in 25 26 PETITION FOR RULEMAKING 8 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorneys at Law Evergreen PIM.a Building 711 Capitol Way Olympia, Wahington 98501 (206) 754.6()()1

1 proposed 40 C.F.R. 191.14 notwithstanding EPA's authority. Inasmuch as no 2

objections have been raised to the substance of proposed 40 C.F .R 191.14, and 3

because the proposed rule does provide confidence that the requirements of 4

proposed 40 C.F.R. 191.13 would be met by a repository, the NRC should enact 5

the proposed regulation under its own authority, thereby totally removing the 6

jurisdictional issue as an impediment to EPA's promulgation of the proposed 7

section. When that impediment is removed, the Environmental Protection 8

Agency could move to final adoption of its rule.

9 It is important that the EPA finalize its § 121(a) standards. Those standards are the performance criteria against which a repository host media 11 must be selected and a repository engineered. Site characterization is the 12 process by which DOE will fully evaluate and project whether EPA standards can 13 be met at a particular location. DOE's site characterization plan required by 14

§ 113(b) of the Act establishes the DOE's method of performing that evaluation 15 and prediction. It would not be possible for DOE to draft that plan nor for the 16 Commission to review that plan, as impliedly required by § 113(b)(l)(A)(v) and 17 (c)(2)(A) of the Act, if EPA's standards were not yet final. (See also 10 C.F.R. 18 60.1 l(b)-(g) and SECY-84-263.) DOE could certainly not make nomination 19 decisions required by § 112(b)(l)(A) or recommendations for characterization 20 required by § 112(b)(l)(B) if no final EPA standard is in existence against which 21 to compare the relative merits of respective sites. This logic is confirmed by 22 the fact that § 12 l(a) requires EPA standards be final a full year before the date 23 by which § 112(b)(l)(B) requires that the first three sites be recommended for 24 characterization.

25 26 PETITION FOR RULEMAKING 9 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Anorneys at Law Evergreen Plua Building 7J 1 Capitol Way Olympia, Wiuhillgton 98501 (206) 754-(,()()J

1 IV. Prayer.

2 Petitioners pray the Nuclear Regulatory Commission to adopt a regulation 3

governing the implementation of proposed 40 C.F.R. 191 as proposed in Section I 4

of this Petition.

5 6

Dated this;2 Is) ~y 0 ~ 1985.

7 by: ~ <::J STATE OF NEVADA STATE OF MINNESOTA

8 9

10 Honorable Brian McKay, Attorney General State of Nevada Heroes Memorial Bldg.

Hubert H. Humphrey Ill Attorney General of State of Minnesota 1935 West County Road B2 Carson City, Nevada 89710 Roseville, Minnesota 55113 11 12 13 Harry S nston,

~

JocelynF.Olson F.tJ~sJN-0 De~mty~ey General Special Deputy Attorney General 14 State of Nevada State of Minnesota Heroes Memorial Bldg. 1935 West County Road B2 15 Carson City, Nevada 89710 Roseville, Minnesota 55113 16 17 18 s State of Ne 19 711 Capitol Way Olympia, Washington 98501 20

~

21 22 JamesiLJ5avenp~

23 Special Deputy Attorney General State of Nevada 24 711 Capitol Way Olympia, Washington 98501 25 26 PETITION FOR RULEMAKING 10 DURYEA, HOUCHINS, MURPHY AND DAVENPORT Attorneya 11t Law Evergreen Plu11 Building 711 Capitol Way Olympia, Wahington 98501 (206) 754-6001

ML23156A059

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REFERENCE:

SUMMARY

Dear Mr. Chilk:

Dear Chairman Palladino:

Dear Mr. Chilk :

Dear Mr. Chilk:

SUBJECT:

Dear Sir:

Dear Mr. Chil k:

Dear Mr. Chilk:

SUMMARY

Background

Dear Mr. Chilk:

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ML23156A059

Text

REFERENCE:

SUMMARY

Dear Mr. Chilk:

Dear Chairman Palladino:

Dear Mr. Chilk :

Dear Mr. Chilk:

SUBJECT:

Dear Sir:

Dear Mr. Chil k:

Dear Mr. Chilk:

SUMMARY

Background

Dear Mr. Chilk:

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