High-Level Waste Testimony

February 10, 1999

Overview

Mr. Chairman, members of the Subcommittee, the Nuclear Regulatory Commission (NRC) is pleased to testify regarding the U.S. program for management and disposal of high-level radioactive waste and spent nuclear fuel. I also welcome the opportunity to discuss our observations on the progress of the Department of Energy (DOE) program to characterize the Yucca Mountain Site as a potential geological repository, including the recently-released viability assessment, and to present the Commission views on H.R. 45, the "Nuclear Waste Policy Act of 1999." I also will address the NRC efforts to establish site-specific licensing requirements for the proposed repository, and our general views on the Yucca Mountain standards prepared by the Environmental Protection Agency (EPA).

The NRC continues to make progress under the Nuclear Waste Policy Act (NWPA) and the Nuclear Waste Policy Amendments Act (NWPAA). We are meeting our current obligations to provide a regulatory framework for the licensing of a geologic repository and to consult with the DOE and other stakeholders in advance of the license application. As part of our overall pre-licensing strategy, we are concentrating our review on those key technical issues that are most important to repository performance and, therefore, to licensing. Since we refocused and streamlined our program in Fiscal Year 1996, I can report that the NRC staff has progressed, completing substantive reports on the status of resolution, at the staff level, of each of the key technical issues. These reports ultimately will form the basis for the Yucca Mountain review plan that will be used to guide our review of a license application.

Viability Assessment

I will begin by discussing the status of the NRC review of the DOE December 1998 Viability Assessment (VA). We received the VA in late December, and review by the NRC staff is continuing. The Commission expects to receive the results of the NRC staff review in mid-March. The principal objectives of the NRC review are to assess the DOE program in preparing a high-quality license application, to highlight significant information deficiencies, and to identify any major concerns with the DOE test plans, design concepts, or total system performance assessment. We define "major concerns" as ones that might result in an incomplete or unacceptable license application.

These objectives are consistent with NRC responsibilities for preliminary consultation under the NWPA. I am pleased to report that the NRC staff has identified no major concerns with many important aspects of the VA. We believe this can be attributed, in part, to the frequent, open interactions the NRC staff has maintained with the DOE over the past year in preparing the VA. During these public interactions, the DOE has furnished substantial information to our staff in advance of the VA release, which has facilitated our review. We are confident that the DOE recognizes many of the areas where additional work is needed prior to licensing. However, the NRC staff is identifying some specific issues during its review, which the staff will present to the Commission in March 1999.

For example, we expect to highlight the increased attention the DOE must give to the implementation of its Quality Assurance (QA) program for Yucca Mountain. As part of our continuing pre-licensing interactions, the NRC staff has identified persistent QA deficiencies in the DOE program. While most of the issues were first brought to light by the DOE itself, the DOE needs to be more effective in preventing and resolving these problems in a timely manner. We understand that DOE management agrees with the need for improving the QA program and is moving aggressively to make the necessary upgrades prior to submitting its license application. The DOE recently briefed the NRC staff (December 9, 1998) on its plans for corrective action, and plans to meet with the NRC in April 1999 to present their results. In response, the NRC has formed a team to determine whether the DOE has identified the problems adequately and implemented the needed corrective actions.

We are encouraged by the clear improvements in the overall DOE program, including planning, focusing on a "safety case" for licensing, and communicating with the NRC. However, it is important to emphasize that the ultimate responsibility rests with the DOE for demonstrating that licensing requirements are met to protect public health and safety and the environment. The Commission independently must assess and find "with reasonable assurance" that such demonstration has been made prior to licensing the repository. Among other things, the timely NRC review of a potential license application, consistent with the schedules laid out in the VA, depends on receipt of a high-quality license application from the DOE, a scientifically based and demonstrable standard on dose limits, and sufficient resources for the NRC to maintain its independent technical review capability.

The NRC HLW program remains on schedule consistent with our responsibilities under the Nuclear Waste Policy Act of 1982, as amended, and the Energy Policy Act of 1992. We are developing the regulatory framework and review criteria to prepare ourselves to review a repository license application from the DOE in 2002. We expect to comment on the DOE draft Environmental Impact Statement (EIS) for a proposed Yucca Mountain repository in Fiscal Year 2000, and to provide comments on the DOE site recommendation in Fiscal Year 2001. Through early NRC staff identification and resolution of key technical issues for repository licensing, we are preparing to complete our review of the DOE license application in three years. We also have recently completed rulemaking to establish a Licensing Support Network, using web-based technology, to facilitate access to supporting documents to expedite the review of the license application.

Draft Proposed EPA Standards

Let me turn now to your second area of interest, the Environmental Protection Agency (EPA) efforts to develop radiation standards for the repository. The EPA is obligated, under the Energy Policy Act of 1992, to issue final health-based standards for Yucca Mountain that are based on, and consistent with, the recommendations and findings of the National Academy of Sciences (NAS). The NAS reported its findings to the EPA on August 1, 1995. The Commission, under the same Act, must modify, if needed, its technical criteria to be consistent with the final EPA standards within a year of their issuance.

The Commission is aware of continued efforts by the EPA over the last two years to develop radiation standards for Yucca Mountain. To facilitate this process, the NRC and EPA staffs have held several meetings for the exchange of information. The Commission also is aware of recent discussions between the EPA and the DOE, to which the NRC is not always privy, that may have resulted in revisions to the current EPA approach. The EPA and DOE staffs have advised the NRC staff that the EPA soon may move forward with interagency review of the draft standards. The NRC plans to review these draft standards when they become available to determine whether they raise any implementation issues.

Because we anticipate that we will have only a very short period in which to issue final implementing regulations once the final EPA standards are issued, the Commission initiated its own rulemaking in parallel with the development of the EPA standards. The NRC staff provided the Commission a draft proposed rule last October, which the Commission released to the public concurrent with the Commission review. The Commission recently approved publication of proposed regulations at 10 CFR Part 63 with some minor modifications. In fact, the proposed rule is expected to be published for public comments soon. We believe that we have an obligation to make public now our intended approach for implementing the health-based standards called for by the Congress, in order for the DOE to begin preparing a license application, and to allow for timely and meaningful public involvement in the development of our implementing regulations.

Our proposed regulations include an individual dose limit, which we believe is generally consistent with the requirements of Section 801 of the Energy Policy Act and with the recommendations of the National Academy of Sciences. We propose an all-pathways standard of 25 millirem per year expected dose to the average member of the group which receives the greatest exposure, the so called "critical group." We believe such a standard is protective of public health and safety and the environment. It also is consistent with standards for other waste management facilities licensed by the NRC, and with national and international recommendations for radiation protection. As our proposed rule makes clear, the NRC will amend its regulations in the proposed 10 CFR Part 63, if needed, to conform to the final EPA standards, or to any new legislation that may be enacted.

H.R. 45

Finally, I will offer our views on the proposed legislation, H.R. 45, the subject of the hearing this morning. In general, the Commission agrees with the fundamental approach taken in H.R. 45. This Bill contains the basic elements of an integrated system for the management and disposal of high-level radioactive waste that is necessary for the protection of the public health and safety, the environment, and the common defense and security. These elements include central interim storage and deep geologic disposal, together with a transportation program linking the elements together. Moreover, H.R. 45 recognizes that the overall, long-term success of the national program to manage spent fuel and other high-level radioactive waste requires a permanent disposal solution.

As an interim measure, the NRC considers available technologies for wet and dry storage of spent fuel at reactor sites to be safe, but we view dry storage as the preferred method for supplementary storage of spent fuel at operating plants. Continued at-reactor storage, for an interim period, will continue to protect public health and safety. However, we believe that centralized interim storage of spent fuel in dry cask storage systems offers several beneficial features. A centralized interim storage facility, when compared with dispersed storage at about 75 sites across the country, would allow for more focused inspection and surveillance by both the DOE and the NRC. In addition, such a facility would be more efficient (especially at permanently shut-down facilities), and would afford operational and programmatic benefits for the DOE program for accepting waste from utilities. However, as the regulator of such a facility, the NRC takes no position as to where a centralized facility should be located. For any proposed site, the Commission must make the appropriate safety, security and environmental findings before issuing the license.

Section 204 of H.R. 45 establishes a two-phased licensing process for an interim storage facility. In the first phase, the DOE is required to submit an application for a twenty-year license for a facility with a capacity of not more than 10,000 metric tons of uranium (MTU) within 12 months of enactment of the Act. The draft legislation provides that the Commission may accept or reject this application within 36 months. In the second phase, the DOE will submit an application for a license with an initial term of 100 years, which would be renewable for additional terms, and have a capacity of 40,000 MTU. The DOE would be allowed to commence construction as soon as it submits its first application; however, the NRC may suspend construction if it determines that there is unreasonable risk to the public health and safety.

If the initial license were granted, an effective way to implement the second phase would be to amend the original license to accommodate an increase in capacity. I hasten to add that the NRC regulations currently allow site-specific interim storage license terms for 20 years, which may be renewed for another 20 years. The NRC regulations would need to be revised to permit a 100-year license. The NRC staff has begun only recently to evaluate the technical considerations associated with licensing of dry cask storage systems and facilities for a period of 20 to 100 years. We have not identified any safety or environmental issues that would preclude issuance of a license for 100 years. However, given the information available at this time, we have not yet determined that 100 years should be established as the license term for an above-ground, centralized interim storage facility. Whatever the specified term for second phase, from an NRC perspective, an effective way to implement the second phase would be to amend the original license to accommodate an increase in capacity.

As you may know, the NRC currently is reviewing the DOE May 1997 topical report for a non-site-specific centralized interim storage facility. The NRC staff expects to complete its review by October 1999. The NRC Assessment Report will provide an early indication of the acceptability and feasibility of the DOE approach to centralized interim storage, which should be useful to the DOE prior to its submission of a license application.

H.R. 45 also recognizes the importance of the integrated transportation of spent fuel and high-level waste in the current regulatory system. The NRC supports the requirement that NRC-certified packages be used for these activities. To this end, we currently are reviewing six commercial designs for dual-purpose storage/transportation cask systems. By December 2000, we anticipate that all of the storage reviews and two of the transportation reviews should be completed.

We have identified three specific changes to the proposed legislation that should be considered. First, Section 202 would require that the Secretary of Energy use routes that minimize the transportation of spent fuel and high-level radioactive waste through populated areas to the maximum practicable extent, and consistent with Federal requirements governing transportation of hazardous materials. This provision is not consistent with the route selection requirements for spent fuel shipments not subject to this Act. The U.S. Department of Transportation (DOT) currently has established highway routing rules that apply to spent fuel shipments, and they currently do not require avoidance of populated areas. The routing rules were developed by the DOT after extensive public involvement and have proven successful. In fact, the current DOT rules require the use of the interstate system, an implication that spent fuel shipments may transit populated areas. Further, the avoidance of such routes might increase shipment distance, time, and risk. Therefore, it is not clear that this provision enhances public health and safety.

Section 203 states that "acceptance by the Secretary of any spent nuclear fuel or high-level radioactive waste shall constitute a transfer of title to the Secretary." If the transfer were to take place at the utilities prior to shipment, the material would become DOE-titled material, not NRC-licensed material, at the time of shipment. Under current statute, shipment by the DOE of DOE-titled material is not currently subject to the NRC transportation safety or physical security requirements. Consequently, unless it is explicitly spelled out in H.R. 45, the NRC would have no oversight role of such shipments, including inspection of the shipments for radiological safety, or review and approval of shipment physical security plans. Although the shipments would be subject to the DOT Hazardous Material Regulations, many stakeholders expect that such shipments would be subject to regulation by the NRC. For the NRC to assume this role, H.R. 45 would need to be modified to require NRC oversight of the shipments.

With regard to transportation, we agree with the incorporation of emergency response training requirements in H.R. 45. We believe this mechanism would provide for a more coordinated review and would enhance consensus building. We would look forward to consulting with the DOT and others on the scope and elements for required training.

The Commission strongly supports including in H.R. 45 permanent, deep geologic disposal of spent fuel and high-level radioactive waste as an essential element of the integrated system, described in H.R. 45. The Commission continues to believe that deep underground disposal is a sound and technically feasible solution to the problem of final disposition of spent nuclear fuel and other high-level radioactive wastes. Because the Waste Confidence decision of the Commission is predicated on the eventual availability of disposal in a mined geologic repository, we strongly support the inclusion of Section 204(g). Such a provision would permit the Commission to base its waste confidence determinations not only on the DOE obligation to construct and operate an interim storage facility, but also on its obligation to develop and implement the integrated spent fuel management system, including permanent, deep geologic disposal.

With regard to licensing schedules in H.R. 45, the Commission supports the provision of 36 months for the NRC to review and complete licensing action on an application for an interim storage facility. The Commission also supports the approach taken in section 205(a)(1) to revoke the DOE repository siting guidelines to allow the DOE to focus on developing a high-quality repository license application.

The Commission also supports an effective and efficient public hearing process. The Commission currently is studying the NRC hearing process, including the process that would be used for repository licensing. If, on the basis of this study, the Commission concludes that changes to the hearing process are warranted, we will propose them for adoption in a separate notice and comment rulemaking. In the Part 63 rulemaking, the Commission is not seeking comment on potential changes to the hearing process. However, in the interest of openness, the Commission wishes to say that, at present, we are considering improvements to our hearing process to increase its efficiency and effectiveness.

We believe that the timetables established for licensing of both the interim storage facility and the repository will be adequate, provided:

• That the license applications and supporting documentation are submitted in a timely fashion and are of sufficient quality, and
  
• That sufficient resources are provided for the NRC programs to accommodate concurrent pre-licensing and licensing reviews for the two facilities. In order to meet the schedules and milestones described in H.R. 45, the legislation would need to be enacted by June 1999.

With respect to the proposed performance standard for the repository in H.R. 45, the Commission considers 10,000 years to be a sufficient length of time to assess the isolation capability of the system, including contributions from both engineered and natural barriers. The Commission believes that the standard in H.R. 45 of an annual effective dose of 100 mrem (1 mSv) to the average member of the general population in the vicinity of Yucca Mountain is consistent with the protection of public health and safety. The Commission believes that, within the context of implementing the 100 mrem annual dose limit specified in H.R. 45, the NRC has the flexibility to implement the internationally accepted "average member of the critical group" approach, using a reference biosphere, as recommended by the National Academy of Sciences, for application to the Yucca Mountain repository. To provide reasonable assurance that the 100 mrem annual limit will be met, the Commission anticipates that the expected value for dose to the average member of the critical group would be restricted to 25 mrem per year (as specified in our proposed 10 CFR Part 63). We understand that H.R. 45 intends to give the Commission the flexibility to adopt this approach.

Further, we support provisions in H.R. 45 on the scope of the National Environmental Policy Act of 1969 (NEPA) responsibilities of the NRC for disposal that, consistent with existing law, direct the NRC to adopt the DOE EIS, to the extent practicable, in the repository licensing proceeding. The Commission also supports the provisions of the bill on specifying the scope of the NRC EIS, requiring the generic consideration of transportation impacts, and identifying the issues that should not be considered by the Commission under NEPA for interim storage. The Commission also recommends that H.R. 45 make clear that the NRC will not be required to prepare an EIS under section 102(2)(C) of NEPA, or any environmental review under subparagraph (E) or (F) of the Act, in connection with the issuance of disposal regulations in Section 205(b). This would be comparable to existing law contained in section 121(c) of the Nuclear Waste Policy Act of 1982.

Conclusion

The Commission agrees that H.R. 45 outlines an appropriate program for the permanent disposition of high-level radioactive waste, by providing an integrated spent fuel management system, on-site storage, centralized off-site storage, and deep geologic disposal, with a transportation system to link them. However, the Commission is meeting its obligations under existing law to prepare for licensing a geologic repository. The Commission believes that its proposed Part 63 regulation is an appropriate approach to ensure that the regulatory framework is sufficiently protective of public health and safety and the environment and developed in a timely manner. Whether under the existing law or a revised legislative framework, the U.S. high-level waste program needs both statutory and institutional stability in order to proceed in an orderly, efficient, timely, and effective fashion. The Commission believes that, when coupled with sufficient resources to maintain progress in all phases, H.R. 45 can supply this necessary stability. We appreciate the opportunity to provide our views.