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SECY-97-058

March 6, 1997

PURPOSE:

(1) To inform the Commission of the U.S. Department of Energy's (DOE's) publication of proposed revised siting guidelines (10 CFR Part 960); (2) to inform the Commission about possible approaches to the review of DOE's revised siting guidelines, including the process for the Commission review; (3) to obtain Commission approval of a preferred approach; and (4) to advise the Commission of the staff's intent to conduct a general review of the revised siting guidelines and to provide DOE with the staff's comments during the public comment period.

BACKGROUND:

In his September 4, 1996, meeting with the Commission, the Director of the Office of Civilian Radioactive Waste Management described DOE's plans for updating its regulatory framework for evaluating the suitability of Yucca Mountain, Nevada, for development of a repository. Among other things, he said DOE planned to revise its siting guidelines (i.e., Part 960) to respond to policy changes and to reflect DOE's increased understanding of the Yucca Mountain site since the guidelines had been issued in 1984. (For example, the 1984 guidelines assumed a DOE site-selection process among multiple candidate sites in different geologic media and a DOE environmental impact statement, under the National Environmental Policy Act, that would address alternative sites. Neither assumption is true today.)

He also said DOE would obtain the Commission's concurrence on the revised guidelines, as was the case before promulgation of DOE's 1984 guidelines. The Nuclear Waste Policy Act of 1982 (NWPA) required DOE to obtain Commission concurrence before issuing the 1984 guidelines and, at the Commission's request, DOE committed to obtain Commission concurrence on future revisions when it issued the 1984 guidelines. DOE expects to complete rulemaking on revised guidelines by the end of fiscal year (FY) 1997. (See the timetable at the end of Attachment 1.)

DOE intends to use the revised guidelines to evaluate the suitability of the Yucca Mountain site for development as a repository. Despite changes to the National repository program over the years, the respective roles of DOE and the U.S. Nuclear Regulatory Commission, under the NWPA, have remained the same. DOE is responsible for characterizing the site and, if the site is suitable, for preparing a recommendation to the President. Among other things, NRC is responsible for preparing preliminary comments on DOE's at-depth characterization and waste form, regarding their sufficiency for inclusion in a license application. NRC's comments will be included with DOE's recommendation, which is currently planned for FY 2001.

DISCUSSION:

On December 16, 1996, DOE published a notice of proposed rulemaking in the Federal Register (61 FR 66158) proposing to amend its 1984 siting guidelines. Consistent with the announcement made during the September 1996 Commission briefing, DOE's Federal Register notice indicates that the proposed amendments are being submitted to NRC and that DOE will obtain the Commission's concurrence on the revised guidelines. Attachment 2 is a copy of DOE's proposed revised siting guidelines as they appeared in the Federal Register.

There are a few changes worth highlighting with respect to the revisions being proposed in the Federal Register notice. First, DOE is proposing to amend the siting guidelines by adding a new subpart, designated Subpart E, for Yucca Mountain (61 FR 66162). Under this new subpart, DOE is proposing the addition of a single qualifying condition for both the postclosure (10 CFR 960.6-1) and preclosure (10 CFR 960.6-2) periods that the geologic repository must meet in order for the site to be found suitable for development as a geologic repository (61 FR 66164). The qualifying condition in both cases would provide that DOE demonstrate compliance in accordance with the site-specific U.S. Environmental Protection (EPA) standards promulgated pursuant to the Energy Policy Act of 1992 (EnPA). In demonstrating compliance, DOE is expected to conduct total system performance assessments (TSPAs) of the proposed repository design, within the Yucca Mountain geologic setting (61 FR 66158, 66161), and would compare the TSPA results with the applicable standards to determine site suitability. Second, with respect to the postclosure and preclosure guidelines, DOE would recognize that a geologic repository at Yucca Mountain shall be evaluated against both the site-specific EPA standards and applicable NRC regulations. Third, DOE would not reach a determination on the suitability of the Yucca Mountain site in the absence of final promulgation of the EPA standards (61 FR 66164). Finally, the revisions more clearly state that DOE recognizes NRC's jurisdiction over the resolution of differences between the revised siting guidelines and NRC's geologic disposal regulations (61 FR 66162).

The consistency between DOE's guidelines and the Commission's repository regulations (10 CFR Part 60) was an important consideration when the Commission concurred in the 1984 guidelines. In particular, the Commission cited, as one of the principal criteria for its concurrence, that the 1984 guidelines were not in conflict with Part 60 (see Attachment 1). NRC's disposal regulations are likely to be undergoing revision when DOE seeks Commission concurrence on the revised guidelines. Under the EnPA, EPA is required to develop environmental standards specific to the Yucca Mountain site based on, and consistent with, the findings and recommendations of the National Academy of Sciences (issued in August 1995). The Commission is required to modify its technical criteria to be consistent with these standards within 1 year of promulgation of the EPA standards. The staff is currently cooperating with EPA to ensure the development of reasonable and implementable high-level waste standards. EPA is expected to issue its final standards no earlier than late FY 1997. Consequently, revised NRC licensing requirements, consistent with EPA's standards, will not be in final form when DOE submits the revised guidelines to NRC for concurrence.

In the Commission's development of a particular approach to its 1997 review of DOE's revised guidelines, the staff believes that the following policy considerations are appropriate:

• The Commission's consideration of possible revisions to Part 60 should not be perceived as being placed on the critical path concerning DOE's revised guidelines or any DOE assessment of the viability of the Yucca Mountain site. (As noted above, DOE has stated in its Federal Register notice (61 FR 66164) that it will not reach a determination on the suitability of the Yucca Mountain site under Part 960 in the absence of the final promulgation of the EPA standards. However, based the specific language in the notice, it is unclear whether DOE also intends to await revisions to Part 60 in reaching any site suitability determination.)
  
  
• The Commission should be free to revise or modify Part 60, as it deems necessary or appropriate, to be consistent with the EPA standards for Yucca Mountain.
  
  
• The Commission should be free to make whatever technical comments are appropriate, on DOE's revised guidelines.

Based on these policy considerations, the staff has identified four possible review options (in Section 5 of Attachment 1) for the Commission in determining how to review DOE's revised guidelines. They are: (1) take no action; (2) defer concurrence; (3) provide conditional concurrence; or (4) issue a "no objection." These options are not rank-ordered and elements of each could be combined to create other options.

ANALYSIS:

As noted, the staff believes it is important that NRC's revision of Part 60 not be perceived as being on the critical path of DOE's revised guidelines. This consideration therefore argues against adopting Review Option 2 ("defer concurrence") and against the formal reexamination of concurrence under Option 3 ("provide conditional concurrence") after Part 60 is revised. The staff also believes that NRC's ability to revise Part 60 is likely best preserved by the Commission's deciding not to carry out a formal concurrence role in DOE's revised guidelines. This consideration therefore argues in favor of Options 1 ("take no action"), and/or 4 ("issue a 'no objection' ").

Also, DOE's December 16, 1996, Federal Register notice, proposing revised guidelines, contains the statement that "[T]he proposed amendments would focus the site suitability evaluation of Yucca Mountain on a determination of whether the expected system performance will meet both the site-specific public health and safety standards that the EPA is establishing under Section 801 of the Energy Policy Act of 1992 and the applicable NRC regulations." (61 FR 66160) In the staff's view, because the National program no longer requires the evaluation of multiple sites, it is highly desirable for DOE's measure of the suitability of the Yucca Mountain site for development as a potential geologic repository to be made in the context of the Commission's revised geologic disposal regulation. Review Options 1 and/or 4 would provide the Commission the avenue to provide comments on DOE's approach referencing applicable NRC regulations, as well as the opportunity to offer specific comments on the background, process, and description of the proposed action.

In the meantime, the staff intends to conduct a general review and submit its comments during DOE's public comment period. Such a general review during the public comment period is appropriate in light of the Commission's later review, after DOE has received and considered public comments. The staff will indicate that it agrees with the concept that the revised guidelines should base suitability on compliance with applicable NRC disposal regulations to ensure that DOE does not find a site suitable that cannot subsequently be licensed. The staff will note that NRC's disposal regulations will undergo revision in accordance with the Energy Policy Act of 1992, as discussed above. Staff will suggest specific language to clarify the revised guidelines in this regard (see Attachment 1, Section 6).

RECOMMENDATIONS:

(1) In light of the aforementioned discussion, the staff recommends that Option 4 ("issue a 'no objection' ") be adopted as the preferred review option for the Commission.

(2) Apart from the recommended review option, a related issue concerns the process for the Commission review. Before concurring in DOE's 1984 guidelines, the Commission offered the opportunity for written public comment and held public meetings (see Attachment 3). However, the Commission also determined in 1984 that the process was not legally required. As a discretionary matter, it would again be useful for the Commission to obtain written public comment. When DOE submits its revised guidelines for concurrence, the Commission would publish a Federal Register notice of receipt of DOE's submittal, describing its process for review and requesting written comments on the matters the Commission should consider. The Commission would also direct the staff to prepare a summary and analysis of the comments that would ultimately become a public document. Although a public meeting before the Commission is an option as well, it is not clear at this time why a meeting would be needed.

COORDINATION:

The Office of the General Counsel has reviewed this paper and has no legal objection.

ATTACHMENT 1

BACKGROUND -- 10 CFR PART 960

1.  DOE'S 1984 SITING GUIDELINES

Section 112(a) of the Nuclear Waste Policy Act of 1982 (NWPA), as amended, directed the U.S. Department of Energy (DOE) to develop general siting guidelines for the recommendation of potential sites as candidates for geologic repositories for high-level radioactive waste (HLW). Section 112(a) of NWPA also called for the U.S. Nuclear Regulatory Commission to concur on those guidelines. DOE's final siting guidelines, in the form of 10 CFR Part 960, were published in the Federal Register on December 6, 1984 (49 FR 47715).

Part 960 is divided into three major categories: implementation guidelines, postclosure guidelines, and preclosure guidelines. The implementation guidelines establish general rules to be followed in the process of selecting a site for repository development, and govern the application of all other Part 960 siting guidelines. The postclosure guidelines govern the siting considerations that deal with the long-term behavior of a geologic repository, whereas the preclosure guidelines govern the siting considerations that deal with the construction and operation of the repository.

Although DOE has noted that its siting guidelines and the Commission's geologic disposal regulation at 10 CFR Part 60 serve different purposes, the Department has previously argued that the main objective of its siting program is to identify a site that will meet NRC's geologic disposal regulation. Therefore, to improve the chances that a candidate site would be licensable, DOE referenced or repeated many of the applicable provisions of the Commission's regulations at Part 60.

2.  DOE'S SITE-SELECTION PROCESS

Before passage of the Nuclear Waste Policy Amendments Act of 1987 (NWPAA), DOE was to use its siting guidelines for the suitability determinations required by Section 112(b) of NWPA, as well as for any preliminary determinations required by Section 114(f) of NWPA. To implement these and other provisions of NWPA, DOE's process of selecting a repository site was envisioned to take place in four stages: (1) site screening; (2) nomination of at least five sites for characterization; (3) recommendation, to the President, of three of the five sites for characterization; and (4) recommendation of one of the three characterized sites for repository development. DOE was to apply its siting guidelines at each of these stages.

At the time the guidelines were developed, DOE had begun the site screening process and was considering nine sites in six States as potentially acceptable. DOE prepared draft environmental assessments (EAs) for each of the nine sites nominated for public review and comment, based on its siting guidelines. After preparation of the final EAs, in 1986, DOE began the second step in the NWPA site-selection process. However, in its 1987 amendments to NWPA (Section 113(A)), Congress directed DOE to characterize only the Yucca Mountain, Nevada, site.

3.  COMMISSION'S 1984 CONCURRENCE PROCESS

On November 22, 1983, DOE submitted its proposed guidelines, in the form of Part 960. NRC had found earlier (48 FR 39536) that its concurrence proceeding was not a rulemaking and hence did not require notice and opportunity for public comment. Nevertheless, the Commission decided to receive written comments and conduct a public meeting on the siting guidelines (48 FR 55789). On December 15, 1983, NRC described its decision-making process for concurring on DOE's siting guidelines and set forth the procedural format for a public meeting on the guidelines. (See Attachment 3 to the Commission Paper.) After consideration of the public comments received through this process, the Commission provided its preliminary concurrence on the guidelines on March 14, 1984 (49 FR 9650). In providing its preliminary concurrence, the Commission applied the following criteria in its decision (see SECY-84-233):

Moreover, in providing its concurrence, DOE agreed to meet seven conditions, of which the principal two⁽²⁾ were:

After the Commission's preliminary concurrence decision, the staff met publicly with DOE on six occasions to discuss the conditions of concurrence. As a result of the overall consultation and comment process, and on the basis of a review of the public comments received thereon, NRC's Executive Director for Operations submitted to the Commission a policy paper (SECY-84-233, dated June 11, 1984) proposing a final decision (i.e., concurrence) on the guidelines. The Commission voted unanimously to grant concurrence on the guidelines on June 22, 1984. DOE published its final siting guidelines in the Federal Register on December 6, 1984.

Subsequent to the publishing of the final DOE siting guidelines, NWPAA directed DOE to evaluate only the proposed site at Yucca Mountain.

4.  DOE'S REVISED SITING GUIDELINES

With regard to its plans for revising the siting guidelines, DOE described its conceptual approach and timetable during an October 23, 1996, DOE/NRC management meeting. (See timeline at the end of this attachment.) As indicated in the attached timetable, DOE published its revised siting guidelines in the Federal Register for public comment on December 16, 1996 (61 FR 66158). As noted in the Federal Register notice, there was to be a 60-day public comment period, ending February 14, 1997, during which there was one public meeting in Las Vegas, Nevada, scheduled for January 23, 1997. (However, during the public meeting, DOE announced that the public comment period would be extended an additional 30 days. Consequently, the public comment period is now scheduled to end on March 17, 1997 (62 FR 4941).) Unlike the Commission's 1984 concurrence process (see Attachment 3 to the Commission Paper), DOE's 1996 plans suggest that the Commission begin its review in parallel to the Department's disposition of public comments. DOE's plans call for receiving NRC concurrence within 6 months after Commission receipt of the revised siting guidelines. DOE estimates that its revisions will take ten months to complete.

DOE's proposed revised siting guidelines as they appear in the Federal Register are contained in Attachment 2 to the Commission Paper. The staff has reviewed the proposed revisions and has determined that, overall, the revisions being proposed by the Department are limited to amending the existing Part 960 by adding a new subpart (designated Subpart E) to address only the Yucca Mountain site. Subpart E would contain qualifying conditions for the postclosure and preclosure periods of performance that Yucca Mountain must meet, for the site to be found suitable. The qualifying conditions would provide that the proposed geologic repository be capable of meeting the U.S. Environmental Protection Agency (EPA) radiation protection standards and NRC's regulations implementing these standards. In its proposal, DOE would perform a preclosure and a postclosure performance assessment, using a proposed site-specific repository design, and compare it with the applicable regulatory standards, to determine whether the site is suitable. According to the Federal Register notice, DOE would not reach a determination on the suitability of the site in the absence of final promulgation of the EPA standards. Moreover, DOE is proposing that the existing 1984 siting guidelines would remain intact should they be needed if the Yucca Mountain site were found unsuitable. Finally, minor but specific amendments to the existing siting guidelines are also being proposed that describe how the new subpart would be implemented.

5.  PROPOSED REVIEW OPTIONS FOR THE COMMISSION

The staff has identified the following four possible review options for the Commission to consider in determining how to review DOE's revised guidelines. These options are not rank-ordered and elements of each could be combined to create other possible options.

1.  Take no action:

Under this option, the Commission would advise DOE that no additional actions are necessary to fulfill any obligation or commitment to obtain Commission concurrence, because of developments subsequent to issuance of the 1984 guidelines. It can reasonably be argued that NRC concurrence on the revised guidelines is unnecessary because NRC's role in the 1984 guidelines (i.e., the earlier need for inter-comparison of multiple sites or for consideration of alternatives for siting in DOE's EIS) is unaffected by DOE's proposed amendments. The Commission would note DOE's amendments leave the guidelines to be used to select sites for characterization of sites other than Yucca Mountain unchanged. Moreover, the Commission's HLW disposal regulations would provide the basis for any future NRC technical comments on the sufficiency of site characterization and adequacy of waste form in any DOE assessment, evaluation, or recommendation on site suitability. Under this option, although concurrence would be unnecessary, the Commission would be free to provide DOE with any views it had on the revised guidelines for the record.

2.  Defer concurrence:

This option envisions that the Commission would notify DOE that it would defer concurrence on the revised guidelines until after EPA's site-specific regulations for Yucca Mountain and NRC's conformance of Part 60 had been promulgated. If, after revising Part 60, it became clear to the Commission that DOE's revised guidelines were inconsistent with revised Part 60 in some significant way, this option might provide the Commission the best opportunity to obtain a change in DOE's amended guidelines. This option would arguably broadly construe the 1984 understanding of the need for NRC re-concurrence on revision of Part 960. However, if DOE sees its amendments as changing their use under Section 112 of NWPA, it may believe that it could not finalize revised guidelines absent NRC concurrence and, to that extent, this option might therefore hinder DOE's future use of the guidelines in an evaluation of site suitability.

3.  Provide conditional concurrence:

Under this option, the Commission would concur on the revised guidelines now, absent a revised NRC disposal regulation, but on the condition that the revised guidelines would be conformed, if necessary, to NRC disposal regulations and any future revision of those regulations. The conditional concurrence would recognize that the comparative siting guidelines, in Part 960, for sites other than Yucca Mountain, remain unchanged by DOE's proposed revision of Part 960. In providing a conditional concurrence, the Commission could require DOE to make any changes to the revised guidelines that are needed at this time. Like Option 2, this option would broadly construe the understanding regarding the need for re-concurrence respecting DOE guideline revisions. Further, like Option 2, it might hinder DOE's use of the guidelines if DOE believed it needed to await formal Commission concurrence, after promulgation of revised NRC disposal regulations, that the aforementioned condition had been met.

4.  Issue a "no objection":

This option would have the Commission state (after reviewing the revised guidelines and assuming its concerns, if any, were accommodated by DOE) that it had no objection to DOE's use of the revised guidelines in its site suitability determination. Under this option, notwithstanding that NRC's revised disposal regulation is not in place, a "no objection" by the Commission could be based on DOE's leaving the site comparison guidelines unchanged, with respect to sites other than Yucca Mountain, and on DOE's commitment to base its Yucca Mountain site suitability determination on NRC's disposal regulations including future revisions, if necessary. This option would also permit the Commission to make comments on DOE's revised guidelines. If the Commission had objections to the revised guidelines, it could state them together with the basis for its objections.

6.  PROPOSED REVIEW PROCESS FOR THE REVISED SITING GUIDELINES

Apart from possible review options, a related issue is the process the staff and the Commission should follow to implement its respective reviews. Before it concurred in DOE's 1984 guidelines, the Commission offered the opportunity for written public comment and held public meetings before the Commission (see Attachment 3 to the Commission Paper). However, the Commission also determined at that time that the process it used was not legally required.

In 1984, NRC initiated its concurrence process soon after DOE published its revised siting guidelines. As part of this process, the staff had complete access to DOE's public comment process. For example, DOE agreed to provide

NRC with copies of all public comments as they were submitted to DOE so that the staff could review the comments independently and expeditiously. DOE also provided NRC with various drafts of the analysis and responses to public comments. Before their transmittal to the Commission, DOE briefed members of the staff and Commission offices on the final draft of the siting guidelines.

The staff intends to provide DOE with staff-level comments before the March 17, 1997, deadline for public comments. In its comments submitted during the public comment period, the staff would note that: (a) its review reflects the staff's initial views on the revised siting guidelines, and a more detailed review (with attendant comments) is likely to follow as part of the Commission's deliberations; and (b) its comments reflect only a general review of DOE's proposal. Specifically, the staff will note that DOE should reword the postclosure system guideline (10 CFR 960.6-1) to refer to EPA and NRC standards and regulations established specifically for the Yucca Mountain site, and delete the words "...implementing those standards...." This change would more accurately describe NRC's geologic repository regulations which do more than just implement EPA's standards.

Similar to the 1984 process, the staff intends to provide the Commission with a summary of the public comments received by DOE. This paper would be intended to assist the Commission in its deliberations of whether to grant or withhold its re-concurrence on the revised siting guidelines. At the discretion of the Commission, it may wish to obtain the assistance of written public comments at this point in the process.

Finally, when DOE submits its revised guidelines to the Commission, for concurrence at the end of DOE's rulemaking, the Commission could publish a notice in the Federal Register noting receipt of DOE's submittal, describing the Commission's proposed approach for review of the guidelines, and requesting written comment on the matters the Commission should consider in its review and decision. The Commission could also direct the staff to prepare a written summary and analysis of the comments received that would ultimately become a public document. Although a public meeting before the Commission is an option as well, it is not clear at this time why a meeting should be needed or what purpose it would serve that is not already being served by the aforementioned written comments.

At the end of this process, the staff proposes that it prepare a recommendation to the Commission on the revised siting guidelines.

7.  CURRENT PROGRAM

Since 1987, DOE's repository program at Yucca Mountain has continued to evolve. DOE's most recent program plan is contained in the draft Office of Civilian Radioactive Waste Management Program Plan (Revision 1), dated June 11, 1996. This document revised DOE's previous 1994 Program Plan approach and is referenced in Congress' most recent direction and associated budget reductions (i.e., the Fiscal Year (FY) 1997 Energy and Water Development Appropriations Act). Among other things, DOE's revised program plan outlines a revised program strategy. The key objectives of this strategy are:

DOE has not, to our knowledge, officially disclosed what role, if any, its revised siting guidelines might have with respect to the Viability Assessment. However, with the increased programmatic focus on total system performance, the staff expects DOE to use its revised siting guidelines as the technical bases for any major programmatic decisions in the future.

ATTACHMENT 3

CHRONOLOGY OF 1984 PROCESS ON 10 CFR PART 960

U.S. Department of Energy (DOE) publishes draft siting guidelines in the Federal Register (48 FR 5670) on February 7, 1983.

• 45-day public comment period, including regional hearings
• Staff comments on draft guidelines provided in SECY-83-121. Staff provided comments to DOE on April 7, 1983.
• Staff summary of public hearings provided in SECY-83-241

DOE publishes comments response document in the Federal Register (48 FR 26441) on June 7, 1983.

• 30-day public comment period, including consultation meetings with affected States and several Federal agencies, including the U.S. Nuclear Regulatory Commission

DOE submits siting guidelines to NRC for concurrence on November 22, 1983.

• SECY-83-504 transmits siting guidelines and other background information to the Commission.

NRC requests public comments on DOE's November 22, 1983, submittal (see 48 FR 55789).

• Commission conducts public meeting on January 11, 1984 (SECY-84-2 provided to Commission in preparation for the meeting).
• Public comment period ends February 1, 1984.
• Staff analysis of public comments received as of January 11, 1984 (SECY-84-67)

Preliminary Commission decision on March 14, 1984 (49 FR 9650)

• Seven conditions for granting concurrence identified
• Six public meetings were held between NRC and DOE to resolve the Commission's concerns.

DOE revised and re-submitted its siting guidelines to Commission for final concurrence on May 14, 1984.

Staff recommendation to Commission to concur on final siting guidelines made June 11, 1984 (see SECY-84-233).

Commission scheduled public meeting on June 22, 1984, with DOE, several interested States, and Indian Tribes.

• Commission voted unanimously to issue its concurrence at the meeting.
• Formal statement of its final decision, dated July 3, 1984, published in the Federal Register on July 10, 1984 (49 FR 28130)

DOE publishes final guidelines in Federal Register on December 6, 1984 (49 FR 47714).

1. NWPAA has eliminated the need for consideration of alternative repository sites in an EIS.

2. The remaining conditions related to specific language changes in the siting criteria themselves as well as clarifications and additional specificity regarding their application.