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Regulatory Aspects of the Yucca Mountain Nuclear
Waste Repository
Ronald Thompson
Public Administration 601
Professor L. Luton
Spring 2009
Regulatory Aspects of the Yucca Mountain Nuclear
Waste Repository
Introduction
Current and future challenges arise from
nuclear fission products of nuclear power plants, called Spent Nuclear Fuel
(SNF) and High-Level Nuclear Waste (HLNW).
Their increasing accumulation at nuclear facilities became an urgent
problem in U.S. nuclear waste management.
One approach was to recycle the SNF and HLNW and reuse them in the
nuclear industry. The recycling
process, however, was expensive and uneconomic and incorporated a high risk of
their unauthorized use for nuclear weapon production. Congress enacted the Nuclear Waste Policy Act of 1982 to address
this problem and to store SNF and HLNW in a permanent, geologic underground
repository (Helron, 2002, pp. 181-182; Pomper, 2005, p. 32; Makhijani,
Zerriffi, Makhijani, 2001, p. 40, Yucca Mountain Repository Development, 2002,
p. 75, Helton, 2002, p. 182).
The Secretary of Energy recommended the
Yucca Mountain site as scientifically suitable to the President on February 14,
2002. The U.S. House of Representatives
and the Senate ignored the objections of Nevada with Joint Resolution (S.J.
Res. 34, introduced on April 9, 2002) on May 8, 2002. The Joint Resolution was signed into law by President Bush on
July 23, 2002 which confirmed the development of a geologic repository for the
permanent disposal of SNF and HLRW at Yucca Mountain, Nevada (Supplement to
Environmental Impact Statement, 2008, pp. 63463-63464; Yucca Mountain
Repository, 2002, pp. 8, 14).
The
nation’s repository program experienced numerous objections from the public and
government officials. Comments from
public hearings indicated many concerns to the proposed site relating to
scientific suitability, the transportation plan for SNF and HLNW, the land
ownership issues of the site, and human rights violations (Comments by
Individual, 2009). State officials of
State of Nevada, Agency for Nuclear Project, argued, for instance, that the Department of Energy did not submit
a licensing application to the United States Nuclear Regulatory Commission to
authorize a construction license within the statutory deadline (Loux, 2009, p.
1). Further legal agreements between
Department of Energy and private operators of the nuclear industry were at risk
not to meet their deadlines. It was
the Department’s responsibility to transport SNF and HLNW from nuclear
facilities and to store them at a permanent repository within a given time
frame (Yucca Mountain Repository, 127, 77, 148-149, 151-152).
The following analysis will consider the
major actors, federal statutes, and regulations involved in the regulatory
process of the Yucca Mountain repository.
I will identify a key procedural problem in the rule making process for
the post-closure operation of the repository.
This will involve the discussion on performance assessment associated
with the revision of the regulatory standards for the development of the Yucca
Mountain repository.
Regulatory Federal Agencies
associated with the Nation’s Repository Program
1.
U.S.
Department of Energy (DOE)
Has
responsibility for site characterization activities and building a permanent
disposal for HLNW and SNF (Yucca Mountain Repository, 2002, p. 155).
2.
U.S.
Environmental Protection Agency (EPA)
Has
responsibility for the development of radiation standards to protect the public
health and the environment (Yucca Mountain Repository, 2002, pp. 147, 155).
3.
U.S.
Council on Environmental Quality (CEQ)
Has
responsibility for implementing the procedural regulations of National
Environmental Policy Act of 1969 and coordinating all agencies’ efforts of how
to comply with the procedures to protect the environment (Draft Environmental
Impact Statement, 1999, p. 44200; Purpose, Policy, and Mandate, 1978, pt.
1500.1).
4.
U.S.
Nuclear Regulatory Commission (NRC)
Has
responsibility for reviewing and permitting nuclear waste repositories’
licensing applications for construction authorization (Yucca Mountain
Repository, 2002, pp. 14, 129, 147, 155).
Non-regulatory Agencies associated with the
Nation’s Repository Program
1.
U.
S. Nuclear Waste Technical Review Board (NWTRB)
Has
the responsibility for reviewing, independently, the DOE’s scientific and
technical standards for the nation’s repository program. The Board reported its findings to the
Congress and the Secretary of Energy (Yucca Mountain Repository, 2002, pp.
141-142,155; What is the U.S. Nuclear technical Review Board, 2007).
2.
U.S.
National Academy of Science (NAS)
Has
the responsibility for providing the latest, scientific knowledge and
understanding to Congress, regulatory agencies, boards, and the public (Yucca
Mountain Repository, 2002, pp. 127; OCRWM, 2001, pp. 57304, 57317).
3.
U.S.
General Accounting Office (GAO)
Has
the responsibility for overseeing the repository program’s baseline estimate
for schedules and costs (Yucca Mountain Repository, 2002, pp. 151-152).
4.
U.S.
Geological Survey (USGS)
Has
responsibility for analyzing sites for geologic repositories to support the
Secretary of Energy’s site recommendations to the President (Yucca Mountain
Repository, 2002, p. 173).
Non-governmental Agencies associated with the
Nation’s Repository Program
1.
Bechtel
SAIC Company, LLC
Has
the responsibility for reassessing DOE’s technical work which included time
requirements and costs for a licensing application to authorize construction
(Yucca Mountain Repository, 2002, p. 148).
Federal Statutory Acts
Congress
enacted the National Environmental Policy Act of 1969 (NEPA). The purpose of the Act was to protect the
environment. The Act directed CEQ to
establish standards for all Federal agencies of how to comply with the
procedures and the goals of the Act. The
President, Federal agencies, and courts were required to protect, restore, and
enhance the environment and share significant information and responsibilities
with public officials and citizens (Section 1500.1(a)(b)(c)). Following one statutory requirement, an
agency has to prepare a concise Environmental Impact Statements (EIS), based on
an environmental assessment, which was to be included in every recommendation
or report’s proposal (Sections 1500.2(b), 1502.3) (Purpose, policy, and
mandate, 1978, pt. 1500; Environmental Impact Statement, 1978, pt. 1502).
Congress enacted the Nuclear Waste Policy
Act of 1982 (NWPA). The NWPA’s purpose
was to find, develop, operate, monitor, and close nuclear waste repositories
for the permanent disposal of SNF and HLRW.
It defined the Federal responsibility to prevent adverse consequences
from the repository development and operation to public health and environment
from nuclear waste. The Act directed
EPA, DOE, and NRC to establish standards which had to be consistent with EPA’s
public health standards relevant to nuclear waste disposal and NRC’s “licensing
and criteria” (Office of Civilian
Radioactive Waste Management [OCRWM], 2001, p. 57299).
The initial site selection process was
based on three categories of criteria: (a) primary (e.g., geologic); (b)
qualifying and disqualifying (e.g., geochemistry); and (c) demographics (e.g.,
population density) (Section 112(a)). The
Act gave the DOE the authority to evaluate and adapt qualifying and
disqualifying factors. The nomination
and recommendation of three sites to the President was required under section
112(b) for further site characterization activities. An Environmental Impact Statement (EIS) was to be prepared by
DOE (OCRWM, 2001, pp. 57299-57300). The
initial step established guidelines based on NRC’s standards for site
recommendation in consultation with EPA, CEQ, USGS, and interested governors
(Office of Civilian Radioactive Waste Management [OCRWM], 1996).
The second step involved site
characterization activities (Section 113) at the sites approved by the
President (Section 112). Section
113(c) required the DOE’s site, suitability evaluation to be consistent with
the National Environmental Policy Act of 1969 (NEPA). This process served to prepare relevant data from field
investigations and apply them for a construction authorization (OCRWM, 2001,
pp. 57300, 57317).
The third step (Section 114) included (a)
a site approval by the President and his recommendation of the site to
Congress, and (b) approval by Congress of the recommended site, and (c) NRC’s
licensing authorization for construction of the repository at the proposed
site. This mandate involved a public
hearing process which included receiving residents’ comments regarding DOE’s
site characterization activities and findings. The Secretary of the DOE might decide to include these comments
in his site recommendation to the President.
If the Congress approved the recommended site, the NRC could accept
DOE’s application for a construction authorization (Section 114(a)(b)). The Secretary was required to submit a
Final Environmental Impact Statement (Section 114(f)) accompanied with his site
recommendation to the President (OCRWM, 2001, p. 57300).
Congress amended the Act in 1987. Section 160(b) directed DOE to perform site
characterization activities (Section 113) and approval and construction
authorization (Section 114) only for the Yucca Mountain location. The new mandates excluded all alternative
sites from the EIS process (as usually required under the NEPA) (OCRWM, 2001,
p. 57302). The amended Act created the
NWTRB which specifically reviewed DOE’s technical activities at the Yucca
Mountain location (What is the U.S Nuclear Waste Technical Review Board, 2007).
Congress enacted the Energy Policy Act of
1992 (EPACT). The Act extended DOE and
NRC’s responsibilities and authorities in regard to the repository
program. The EPACT directed the EPA to
promulgate new public health and safety rules relevant to the Yucca Mountain
repository. The EPACT required the NRC
to modify its rules (e.g., technical criteria) in compliance with EPA’s rule
making. Both, the EPA and NRC’s rule
making were to be based on NAS’s findings and recommendations. The EPA and NRC’s new rule making were to
guide and establish DOE’s suitability criteria at Yucca Mountain (OCRWM, 2001, pp. 57303-57304, 57313).
Yucca Mountain
Specific Rule Making
The
EPACT set the beginning of revising the regulatory framework for the Yucca
Mountain project. Section 801 of the
EPACT directed the EPA to replace previous established general environment
protection standards (40 C.F.R. Part 191) with the new public health and
environmental standards (C.F.R. Part 197) for establishing better safety
standards at the Yucca Mountain repository (OCRWM, 2001, p. 57313). The EPACT required that NRC and DOE modify
their rule making in analogy with the EPA’s new rules. The DOE’s site characterization suitability
criteria also had to be consistent with NRC’s licensing criteria (Section
112(a) of the NWPA) (OCRWM, 2001, pp. 57300, 57317). The new rules were based on previous, generic rule making as
follows.
NRC 10 C.F.R Part 60 Rule required a performance assessment of
individual parts (e.g., geohydrology, tectonics) of the Yucca Mountain
repository. Each subsystem had to be
evaluated independently from each other.
The subsystem standards of a repository design and site characterization
criteria were conditions for a potential licensing application (OCRWM, 2001,
pp. 57314-57315).
.
NRC 10 C.F.R. Part 63 Rule required a performance assessment of the
entire system of the Yucca Mountain. The
new standard eliminated the old subsystem standards of 10 C.F.R Part 60. New “numeric radiation dose limits [were
adapted from EPA’s] public health and environmental standards” (OCRWM, 2001, p.
57324) in 40 CFR Part 197 and was the only condition for a potential licensing
application. The rule considered that
the public will not receive an annual dose of 15 mrem during repository
pre-closure. During the post-closure
period, individual protection, human intrusion, and ground water standards
governed the licensing process (OCRWM, 2001, pp.57314, 57324-57325).
DOE 10 C.F.R. Part 960 Rule defined disqualifying and qualifying
conditions (site suitability guidelines) based on the results of the subsystems
performances. The technical guidelines
had to be consistent with EPA’s radiation standards (40 C.F.R. Part 191) and
NRC’s licensing applications (C.F.R. Part 60) (OCRWM, 2001, p. 57314).
DOE 10 C.F.R. Part 963
Rule updated the old site suitability
guidelines (site suitability criteria for assessment) based on the results of
the entire system performance of the Yucca Mountain repository (OCRWM, 2001,
pp. 57298, 57314). The “applicable
radiation protection standards” (OCRWM, 2001, p. 57324) were adapted from the
NRC’s numerical radiation dose standards in 10 C.F.R. Part 63.
The DOE’s
Environmental Impact Statements
Discussion and
Conclusion
The NRC’s conclusion was based on ground
water standards in accordance with 10 C.F.R. Part 63.331. The rule stressed the
protection of ground water from radioactive contamination released from Yucca
Mountain disposal system for a post-closure time period of 10,000 years (OCRWM,
2001, p. 57325). In NRC’s judgment, the
DOE did not address well this problem (OCRWM, 2001, p. 57314) and the NRC’s
decision still revealed inconsistencies between the Yucca Mountain specific
criteria and general rule making criteria applying to actions involving
multiple agencies (e.g., DOE and NRC).
A brief review might help to reveal the
problem. First, the revision of the
regulatory framework by EPA, NRC, and DOE was based on a substantial change of
how to approach a repository performance assessment. The new DOE’s
guidelines had to be consistent with new NRC’s rules which were based on (a) a
performance assessment of the entire system of the Yucca Mountain repository
and (b) on new public health and environmental standards adapted from EPA. Subsystem criteria lost their relevance and
required DOE to make new standards consistent with new NRC’s standards (OCRWM,
2001, 57317).
The basis for revising the old standards was
triggered by the input of new knowledge and scientific understanding,
especially relevant for the post-closure time period (OCRWM, 2001, pp. 57303-
57304, 57315; Nuclear Waste Technical Review Board, 2001, p. 18322). To create new guidelines, the performance assessment was
directed to combine the assessment of specific repository design parts (e.g.,
engineered barriers) and Yucca Mountain’s structural features (e.g., geological
faults) in mathematical models which analyzed the overall performance of the
entire system (e.g., site and engineering processes). This was, for instance, desirable to improve the prediction of
groundwater behavior (e.g., flow path) during the post-closure operation of the
repository (OCRWM, 1996, 66161).
The purpose of this new approach was to
understand better the performance of the repository in the future and to serve
as new guidelines to create improved standards for the nation’s repository
program. The original problems
appeared to be triggered by missing data (Yucca Mountain Repository, 2002, p.
140) which, for instance, led to unreliable data models and, consequently, to
delays in adapting and modifying rules and licensing applications (OCRWM, 2001,
57304).
The DOE also tried to mitigate the
problem of meeting application deadlines for construction and the associated
legal damages to operators of nuclear facilities by contracting a private
company (Bechtel SAIC Company). The
baseline estimate for scheduling a potential NRC’s license application was out
of control, and Bechtel was authorized by DOE to correct this problem. Yet additional technical work and assessment
did not remedy the problem of meeting statutory schedules (Yucca Mountain
Repository, 2002, pp. 148-149).
In conclusion, the legal regime revealed
its vagueness in the process of rule making.
Adverse consequences of legal responsibilities and reliabilities became
further challenged to meet the objectives of the nation’s repository program
(Yucca Mountain Repository, 2002, pp. 151-152). The bureaucracy increasingly grew by adding further private
organization in the licensing process. In
sum, the relevance of scientific knowledge controlled the progress of rule
making. This appeared to be
counterproductive in meeting statutory goals and objectives but improved the
performance prediction of the repository in the future.
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