[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Proposed Rules]
[Pages 67501-67503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32486]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 61
[Docket No. PRM-61-3]
Heartland Operation To Protect the Environment: Denial of
Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Denial of petition for rulemaking.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition
for rulemaking (PRM-61-3) submitted by the Heartland Operation to
Protect the Environment. The petitioner requested that the NRC amend
its regulations to adopt a rule regarding government ownership of a
low-level radioactive waste (LLRW) or (LLW) disposal site that is
consistent with petitioner's view of the applicable Federal statutes.
The petition is being denied because the NRC believes there is no
conflict between Section 151(b) of the Nuclear Waste Policy Act (NWPA)
and its regulations requiring that LLW disposal facilities be sited on
land owned by Federal or State government. The NRC has the authority to
require Federal or State land ownership as a condition for licensing a
LLW disposal facility and continues to believe the existing regulatory
procedures are appropriate.
ADDRESSES: Copies of the petition for rulemaking, the public comments
received, and the NRC's letter to the petitioner are available for
public inspection or copying in the NRC Public Document Room, 2120 L
Street NW. (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mark Haisfield, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-6196, E-mail [email protected].
SUPPLEMENTARY INFORMATION:
Background
On August 3, 1994 (59 FR 39485), prior to receipt of the petition
(PRM-61-3), the NRC published an advance notice of proposed rulemaking
(ANPRM) in the Federal Register regarding land ownership. The ANPRM
announced that the NRC was considering amending its regulations in 10
CFR 61.59(a) to allow private ownership of the land used for a LLRW
disposal facility site as an alternative to the current requirements
for Federal or State ownership. On July 18, 1995 (60 FR 36744), the NRC
published in the Federal Register a notice withdrawing the ANPRM
because the rule change was not warranted or needed. The basis for this
decision was the general indication from States and compacts that they
do not need, nor would they allow, private ownership, and that the rule
change under consideration could be potentially disruptive to the
current LLW program.
The Petition
On January 9, 1996 (61 FR 633), the NRC published a notice of
receipt of a petition for rulemaking filed by the Heartland Operation
to Protect the Environment (HOPE). The petitioner states that the NRC's
present regulation (10 CFR 61.59(a)), which permits disposal of LLW
``only on land owned in fee by the Federal or a State government,'' is
in conflict with a provision in Section 151(b) of the Nuclear Waste
Policy Act of 1982, as amended. The NWPA authorizes the U.S. Department
of Energy (DOE) ``to assume title and custody of low-level radioactive
waste and the land on which such waste is disposed of, upon request of
the owner of such waste and land and following termination of the
license issued by the Commission for such disposal * * *.'' Therefore,
the petitioner proposes that the NRC regulations should conform to the
NWPA provision and require private land ownership during operations and
closure of the facility, then converting title to the site to the DOE.
The petitioner, who also commented on the ANPRM, further states
that the notice withdrawing the ANPRM contains no documentation or
statement of any issue of public health and safety as the basis for the
regulation. Therefore, the petitioner believes that public health and
safety cannot be an issue upon which the NRC regulation is based.
The notice of withdrawal contains the statement: ``The Commission
believes that the potential negative impact of disrupting the current
process far outweighs any potential benefits that might be derived from
making a generic rule change at this time.'' In response, the
petitioner asserts that the Commission's role is to regulate nuclear
material in a manner that protects public health and safety and the
environment, that its role is not to facilitate specific processes,
i.e., the current LLRW disposal process.
The petitioner references the following quotation the NRC used in
the withdrawal notice. This quotation came from one of the comments
received on the ANPRM.
For over three decades the public has been led to believe that
all LLW disposal sites would necessarily be owned and controlled by
either a Federal or State government. This, we believe, has been an
important factor in convincing many proponent groups and State and
local LLW advisory groups that LLW can and will be disposed of in a
safe manner. To now try and convince these groups that Federal or
State ownership of LLW disposal sites is not required, may be
difficult and generate a significant credibility problem.
In response, the petitioner states that ``* * * credibility
problems occur when misrepresentations--i.e. government ownership is
necessary in order to assure proper LLRW management--are initially
made, and that such credibility problems are exacerbated the longer
such misrepresentations are allowed to continue.'' The petitioner
asserts that there would appear to be a larger credibility problem for
the Commission to maintain 10 CFR 61.59(a) that is, in the
petitioners's view, in direct conflict with a statute (i.e., Section
151(b) of the NWPA). The petitioner offers that, ``The Commission might
reflect on the Department of Energy's recent efforts to gain
credibility by coming clean on past misrepresentations--i.e. secret
radiation studies.''
Public Comments on the Petition
The notice of receipt of the petition for rulemaking invited
interested persons to submit written comments
[[Page 67502]]
concerning the petition. The NRC received six comment letters. Three
comment letters were received from States, one from the DOE, one from
the Nuclear Energy Institute (NEI), and one from an environmental
organization. The comments generally focused on the main element of the
petition, that the Commission amend its regulations to adopt a rule
regarding government ownership of a LLW disposal facility that mirrors
the NWPA or the resultant impact of this rule change. One commenter
supported the petitioner and the other five believe the petition should
be denied. The comments and responses were reviewed and considered in
the development of NRC's decision on this petition. These comments are
available in the NRC Public Document Room. A summary of the significant
comments follows:
The commenter that supported this petition for rulemaking was the
State of Nebraska. Nebraska had also commented on the ANPRM discussed
above, and its position continues to support the petitioner's view that
the current NRC rule conflicts with the NWPA. Its comment also states
that, ``* * * there is very little connection between promulgating
regulations deemed necessary or desirable to protect public health or
to minimize danger to life and property and the current regulation
which requires low-level waste disposal on land owned by the federal or
state government before a facility can be licensed. While there may be
a need for having the state or federal government involved in owning
the property AFTER the operation and closure of a facility, this is not
what the current rule does. Instead, it requires state or federal
ownership prior to the license being issued'' (emphasis in the
original).
The positions and specific comments from the five commenters who
believe the petition should be denied are basically covered in the
``Reasons for Denial'' Section.
Reasons for Denial
The NRC is denying the petition for the following reasons: First,
the NRC believes the petitioner is incorrect that the current
regulations are inconsistent with Section 151(b) of the NWPA; second,
the NRC has the authority to require Federal or State land ownership as
a condition for licensing a LLW disposal facility and continues to
believe the existing regulatory procedures are appropriate; and third,
the NRC continues to believe that there would be a negative impact if
the changes proposed by the petitioner were implemented.
1. The NRC agrees with those commenters who believe the petitioner
has incorrectly interpreted the language and intent of the NWPA.
Section 151(b) of the NWPA merely authorizes, but does not require, the
DOE to take title to LLW disposal facility sites following termination
of an NRC license for such disposal. This is demonstrated by the
discretionary language of the statute. For example, under Section
151(b), as quoted by the petitioner, ``The Secretary (DOE) [sic] shall
have the [sic] authority to assume title and custody of low-level
radioactive waste and the land on which such waste is disposed of, upon
request by [sic] the owner of such waste and land and following
termination of the license issued by the Commission (NRC) [sic] for
such disposal * * *.'' The NRC believes that there is no conflict
between Section 151(b) of the NWPA and 10 CFR 61.59(a). NRC's
requirement under Sec. 61.59(a), that facilities be sited on land owned
by Federal or State government, does not prevent DOE from exercising
its authority under Section 151(b) of the NWPA to assume title and
custody after license termination. The DOE is a Federal entity and thus
could satisfy the Sec. 61.59(a) requirement for governmental land
ownership. The NRC regulation in Sec. 61.59(a) is broader than the
statutory requirement. For example, assuming for purposes of argument,
if DOE lacked the authority under Section 151(b) of the NWPA to own a
disposal site prior to license termination, NRC's regulations would
allow another Federal or State entity to own the land as required by
Sec. 61.59(a). The focus of Sec. 61.59(a) is on Federal or State land
ownership, whereas the focus of Section 151(b) is on DOE's authority to
assume title and custody of a LLW disposal facility.
Further, under Section 151(b)(2), ``If the Secretary assumes title
and custody of any such waste and land under this subsection, the
Secretary shall maintain such waste and land in a manner that will
protect the public health and safety, and the environment.'' The NWPA
thus allows the DOE, if it so chooses, to assume title and custody of
the waste and land after license termination. The discretionary nature
of the statutory language indicates that the petitioner's conclusion is
incorrect.
Finally, Sec. 61.59(a), on its face does not impose any obligation
on the States, rather it imposes a condition with respect to land
disposal of low-level waste, namely that the Commission will permit
disposal of low-level waste only on land owned by a Federal or State
entity. Thus, we see no conflict with the holding in New York v. United
States, 112 S. Ct. 2408 (1992) that Congress does not have the
authority under the Constitution to compel the States to take
affirmative action with regard to waste disposal. Similarly, NRC's
regulation, Sec. 61.59(a), does not direct or compel the States to take
affirmative action with regard to waste disposal.
2. As stated in the notice of withdrawal of the ANPRM, the
``Commission believes there is adequate statutory authority for the NRC
to require Federal or State land ownership.'' This authority comes from
the Atomic Energy Act of 1954, as amended, in Section 161b which gives
the Commission the authority to promulgate regulations deemed necessary
or desirable to protect health or to minimize danger to life or
property. The requirement for Federal or State government ownership of
land for disposal of waste at a land disposal facility has been a
requirement in the Commission's regulations since the inception of
commercial disposal operations (NRC promulgated the land ownership
requirement in 1961 (26 FR 352, January 18, 1961)). In exceptional
cases an exemption from this requirement may be granted in the public
interest if life or property is not endangered pursuant to 10 CFR 61.6.
The granting of an exemption by the State of Utah from State land
ownership regulations led the Commission to issue the ANPRM in order to
solicit comments regarding the possible desirability of changing the
rule, but the majority of comments received in response to that
solicitation convinced the Commission that no change should be made.
The NRC continues to believe that the requirement for governmental land
ownership in Sec. 61.59(a) will ensure control of the disposal site
after closure, and thereby reduce the potential for inadvertent
intrusion, better ensure integrity of the site, and facilitate
monitoring of site performance. Further, the NRC staff believes that
requiring government ownership prior to licensing is beneficial so that
a potential licensing issue is settled prior to the facility beginning
operation. The experience of the State of California in obtaining
Federal land for the proposed Ward Valley disposal facility is a case
in point that transfer of land is not automatic and should not be
assumed at the time the license is granted. Therefore, requiring
governmental land ownership prior to licensing is an appropriate
regulatory requirement.
3. In addition, as discussed in the notice of withdrawal of the
ANPRM and by several of the commenters, the proposed change in the
requirements could have a de-stabilizing effect on the ongoing efforts
by the States to license
[[Page 67503]]
LLW disposal facilities. The NRC believes that because there would be
no health and safety benefit from the proposed change in requirements,
it is inappropriate to take an action which could have an adverse
impact on the timely development of safe LLW disposal facilities.
For reasons cited in this document, the NRC denies the petition.
Dated at Rockville, Maryland, this 9th day of December, 1996.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 96-32486 Filed 12-20-96; 8:45 am]
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