February 28, 2000
Dr. William J. Boyle
U.S. Department of Energy
Yucca Mountain Site Characterization Office
P.O. Box 98608
Las Vegas, Nevada 89193-8606
Comments on 10 CFR 960 and 963 Supplemental Notice of Proposed Rulemaking [Docket No. RW-RM-99-963] RIN No. 1901-AA72. As published in Federal Register: November 30, 1999 (Volume 64, Number 229) Pages 67053—67089.
Dear Dr. Boyle:
We respectfully request that you withdraw the proposed rule change to 10 CFR Part 960 “General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories; Final Siting Guidelines.” We also respectfully request that you withdraw the proposed new rule, 10 CFR Part 963, specific to a Yucca Mountain repository. The proposed changes are flawed in such a fundamental way that extensive comments on this proposal would not be appropriate or adequate.
This action by the Department of Energy is not only a proposed change to the existing Site Recommendation Guidelines rule, but also an attempt to change the statute which mandates the guidelines – The Nuclear Waste Policy Act – in the guise of a proposed rule change. This is not only inappropriate and illegal, but an example of the same sort of foul play which has caused a total loss of public faith and confidence in the U.S. Department of Energy when it comes to nuclear programs and policies.
At issue here is whether or not there are bounding values for key parameters which determine the suitability of a particular site for the isolation of nuclear waste. Further, there is also the question as to whether these bounding values are used in decision making. The Nuclear Waste Policy Act specifies that such parameters be defined to qualify or disqualify any site from development as a nuclear waste repository.
In fact, according to current Guidelines, Yucca Mountain should already be disqualified. Data presented in the Viability Assessment of a Repository at Yucca Mountain supports a high-level finding that the site should be disqualified, based on the fast travel time of water in the mountain This parameter, perhaps more than any other, spells failure at Yucca Mountain for the goal of nuclear waste isolation over time. Indeed, DOE’s own performance assessments show this. If the criteria for determining what is acceptable and what is not acceptable is removed, then this data simply washes away into the massive uncertainty associated with a total system performance assessment.
That the Department is now seeking to quietly get rid of the criteria that would disqualify the site — and indeed, remove ANY basis for site disqualification — is a blatant subversion of the Nuclear Waste Policy Act, which at least nominally provides for a scientific basis for policy decisions. In fact, this proposal violates the scientific method itself. If a subject cannot meet a pre-defined criteria, the scientific method requires that the subject be rejected (i.e. the site be disqualified), NOT that the rules be changed in the middle of the game.
Specifically, the Department has misrepresented Section 113 of the Nuclear Waste Policy Act. The Department argues that a total system performance assessment will suffice to meet the requirements of the law on how a proposed repository site, already subject to site characterization, is to be recommended to the President as “suitable” for repository development. This is not the case. The law states:
(iv) criteria to be used to determine the suitability of such candidate site for the location of a repository, developed pursuant to section 112(a) [42 USC 10132(a)]
Section 112 (a) …Such guidelines shall specify factors that qualify or disqualify any site from development as a repository, including factors pertaining to the location of valuable natural resources, hydrology, geophysics, seismic activity, and atomic energy defense activities, proximity to water supplies, proximity to populations, effects upon the rights of users of water… (emphasis added)
The Department has no choice about this. The decision on ANY repository site, after site characterization has commenced is to be based on its ability to meet guidelines that are promulgated under Section 112 of the Act. These may be changed, but the requirement of specified factors which “qualify or disqualify” may not. It is not acceptable to try and explain away any remaining opportunity to reject Yucca Mountain as the repository site simply because of political and economic forces that seek to render this site as a “done deal” even in the face of sound, compelling scientific evidence that the site will in fact leak, and do so soon after the first container fails.
The claim that the proposed rule changes are to be in concert with the Nuclear Regulatory Commission’s new proposed licensing rule is completely backwards. The law clearly establishes that these Guidelines are meant to weed out any site which should be disqualified PRIOR to recommendation to the President, and so PRIOR to the NRC licensing process. Further, the NRC process is meant to be compatible with the guidelines, not the other way around.
The Energy Policy Act of 1992 simply directs NRC to make the licensing of a potential repository at Yucca Mountain consistent with a new EPA radiological standard for the site. The 1992 action is silent on the Site Recommendation Guidelines.
Invocation of NRC license-ability for a site which should already have been disqualified under existing law and rule is to turn nuclear waste management into nothing more than a rubber-stamp, a paper pushing process designed solely to relieve waste generating corporations of their economic burden. An underlying value embodied in the Nuclear Waste Policy Act was to put the collective good, protection of our health, safety and our environment first. This is one of the only justifications for the nuclear industry getting the tremendous gift of passing responsibility for this most deadly waste to the taxpayer. It is the government’s obligation to put the taxpayer first in this program.
We must also remember that as a first in the world project, the US repository program will “benchmark” the rest of the world in their nuclear waste programs. Canada and Sweden have much more protective standards than any of the US federal agencies. What is the justification for less protection in this country?
It is possible that elements of the proposed changes could be folded into the existing Site Recommendation Guidelines for the consideration of future alternative sites. The use of system performance assessment as a means to project how the site might meet or fail to meet the various subsystem requirements is valid. The substitution of such performance assessment for benchmark criteria makes no sense. In any case, Yucca Mountain should be acknowledged today as a failed site.
It is also inappropriate for ALL of the evaluation in the Site Suitability decision for a national high-level nuclear waste repository to be focused solely on issues that concern only the proposed repository site itself. This program is national in scope and national in impact, regardless of the site location: Suitability Guidelines should continue to encompass issues of natural resources, transportation to the site, and socio-economic impacts. In our view, if there are changes to the Site Recommendation Guidelines, a full application of the Executive Order on Environmental Justice should be explicitly required.
A related issue is the fact that the Department held only two public hearings on these proposed changes, both in Nevada. The new 10 CFR 960 would apply to the future search for a new or a second repository site. Even if Yucca Mountain were to be used, it is clear that a reasonable “cool” model for a repository there would not hold all of the waste that has currently been generated. Therefore, it will not hold all of the waste yet to be generated by today’s reactors over their license period. Even with a very hot model the additional waste resulting from a 30% increase in operation time from reactor license extensions, continued use of the nuclear navy and the ever expanding range of foreign nuclear materials that are brought to the US make a second repository a given under any Yucca disposal scheme. Thus, nuclear waste repository siting is still a concern for all 50 states. So why did DOE hold hearings only in Nevada? Might not others in this country have something to say about these proposals?
Another disturbing aspect of the current proposal is that it is a covert attempt to move the nuclear waste management program away from geologic disposal, towards engineered management, with no open acknowledgement or discussion of this fact. In total system performance, engineered barriers would provide “credit” to offset the rate of ground water travel, in an effort to mitigate the fact that Yucca Mountain will leak like a sieve. This contradicts the fact that the current program began with the supposition that the Earth itself would provide long-term isolation of radioactivity.
We might support such a move away from geologic disposal, were there to be an honest movement in this direction. A good faith redirection of the program would require that the current repository program be halted, the current Environmental Impact Statement process be cancelled, that there be high-level discussions and studies – both federal and independent, both including participation of affected and concerned citizens and the NGO community — to promulgate proposals about how this might best be accomplished, what factors would need to be considered and how they could be regulated. Likely there would be legislative as well as administrative processes, all with full stake-holder and public participation – a much more appropriate and legitimate way to make such a megalithic transition from the existing program to a new program
As much work as this sounds like, it is less work than dealing with transportation crises and remediation of a failed site with waste in it, and THEN having to engage in the process just detailed on top of an existing failure. Certainly it is more appropriate than trying to sneak it into a rulemaking in the middle of a program that is supposed to accomplish geologic isolation.
Finally, we support public participation in ALL aspects of nuclear waste policy and management. In order for there to truly be participation on the part of those affected by these decisions, there must be some respect and thought given to the timing of the participation opportunity. The publication of this Notice of Proposed Rulemaking during the holiday season and the once in a lifetime millennium transition, concurrent with public hearings and the opportunity for public comment on the Draft EIS for a Yucca Mountain Repository again destroys any hope which the DOE might have of being seen as taking action “in good faith.”
In 1998 NIRS and 218 other organizations petitioned Secretary Richardson calling for the immediate disqualification of Yucca Mountain under the current Site Recommendation Guidelines, based on DOE’s own data showing the presence of bomb test fallout at repository depth in Yucca Mountain. We are outraged that the Department is now seeking to lay aside those guidelines rather than disqualify Yucca Mountain and restore the site.
We urge you to withdraw this proposed rule.
Kevin Kamps, Mary Olson
Nuclear Information and Resource Service
CC: Kenny Guinn, Governor of NV
Secretary of Energy Bill Richardson
Ivan Itkin, Director of the D.O.E. OCRWM
Martha A. Madden, Special Assistant, D.O.E. OCRWM
Linda Lance, Council on Environmental Quality
Senator Harry Reid
Senator Richard Bryan
Senator Barbara Boxer
Representative Edward Markey
Representative Dennis Kucinich