ML19209D183

Submits Proposed Procedures Called for by State of Mn Vs NRC Re Commission Confidence in Waste Disposal Methods. Recommends Use of Hybrid Hearing Procedures as Outlined in Draft Fr Notice Attached

ML19209D183
Person / Time
Issue date:	09/25/1979
From:	Bickwit L, Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
REF-10CFR9.7 SECY-79-397A, NUDOCS 7910190507
Download: ML19209D183 (28)

Text

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UNITED STATES September 25, 1979 NUCLEAR REGULATORY COMMISSION SECY-79-397A WASHINGTON, D. C. 20555 POLICY SESSION ITEM

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Lecnard 31ckwit, Jr.

General Counsel Howard

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Shapar Executive Legal Director q,. u 4. a. c..

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Purocse:

To forward a proposed se: of precedures for conducting the proceeding called for by State of."innesota v.

NRC.

Discussion:

At ycur request our offices have considered the cptiens available to the Commission in condu0 ing the waste confidence proceeding called for by the cour; cf appeals' remand in State of Minnesota v.

"RC.

Scme of Onese options have 'ceen previously discussed in the 2clicitor's It ne 11, 1979 memorandum to the Ocamissicn and in SE-'I 79-397 prepared b/'

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waste prce.eeding were discussed at che July 11 T.eeting on this sub*ect.

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time, the Chairnan asked CGC and CELD tc explore procedural options fc" direct Cct-mission involvenen; in the ',easte proceedin~,

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u confidence er assurance the ccmission be-lieves is apprcpriate and how the waste dispcsal e-

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_u 63t-322L SECY NOTE:

SECY-79-397/397A are scheduled for discussion on Thursday, September 27, 1979 I

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2 There are various procedural options open at each stage of the proceeding, and we will try to discuss each separately.

In some cases, however, the choice of an option for one stage of the proceeding will control or significantly limit the options available for subsequent stales.

We have attached a pro-posed Notice o. Proposed Rulemaking which incorporates our reccmmendations on how to proceed.

1.

Direct Commission Participation in the Proceeding The two obvious options here ara: (1) the entire proceeding could be managed directly by the Commission; or (2) the proceeding could be initially conducted by a subordinate or Board which would create a record and certify it to the Commission either with or without recommendations.

We believe the pros and cons of both options were fairly dis-cussed at the July 11 Commission meeting.

On the one hand, since the subject at issue is

" confidence" and not relatively objective numerical values as was the case in the S-3 proceeding, it would be valuable if the persons whose confidence is at issue could actually conduct the proceeding themselves to assure that the development of the record could most closely reflect the aspects of the matter that most concern them.

Furthermore, by having the Commission itself conduct the proceeding

-ime might be saved since there would be no " review of the record" stage.

Finally, the ultimate decision might be improved since the Commission would be much more familiar with a record compiled before it than it would be with a cold record certified to it by a Board.

On the other hand, there a;c two fairly obvious disadvantages to the Commission's conducting the proceeding.

First, the Con-mission and its legal advisers (OGC and the legal assistants) are not expe r t at organiz-ing and controlling a lengthy and complex croceeding such as this may be.

Proper control of a proceeding calls for skill and experience in administrative law that a Board 11'.,i 7G1 i

3 is more likely than the Commission to have.

Second, conduct of some portions of the proceeding may impose a significant time burden on the Commission.

As discussed at t!.e July 11 meeting, the S-3 and clearance rule hearings only consumed ten and three days of actual hearings, and so Commission time spent in the actual hearings may not be prohibitive.

However, actively monitoring the developcent of the proceeding, including setting schedules, consolidating parties, supervising discovery and similar matters may take considerable time, particularly for a five-person group which is not experienced in such areas and which is subject to the procedural constraints of the Sunshine Act.

While a majority of the Commission indicated on July 11 that the Commission should play a major role in the waste confidence hearing, other demands on the Commission's time require that the procedures be tailored to assure that Commission time is directed at the key substantive areas and that the total amount of time is not excessive.

Ue believe that the procedures recommended below are respon-sive to those concerns.

2.

Overall Structure Before discussing specific options, it would be helpful to give an overview of the struc-ture we propose for the entire proceeding.

We believe the best structure would be a phased one in which stages could be added or deleted if and when it is felt that would be helpful.

The first stage would be publica-tion of a detailed notice of proposed rule-making similar to the attached draft which would outline what the purposes of the rulemaking are, what the intended schedule is, what procedures the Commission will employ, and, to the extent practical, what the possible outcomes of the proceeding are.

This last point is an attempt to eliminate a possibly unnecessary step:

normally a rule must be published as a proposal for public ccament before it can be finally adopted.

However, if the contours of the rule that i174 352

4 results from this proceeding are among those discussed at the outset of the rulemaking, there may be sufficient notice to permit the Commission to go directly to a final rule.

If a proposed rule results from this pro-ceeding, an additional 30-day comment period followed by Commission analysis of the comments received will be necessary before a final rule can be issued.

The notice would provide that any interested person or group might file within 30 days a notification of intent tc participate, setting forth the person's or group's iden-tity, qualifications, interests, and other special concerns.

These notifications could be used to make a preliminary consolidation of some persons and groups sharing similar interests to lessen the burden of participa-tion on them and to improve the quality of their participation.

The bases ~ar consoli-dation would be those set forth in 10 CFR 2.715a.

The nctice of proposed rulemaking would provide that = embers of the public who do not wish to be full participants in the proceeding, but who do wish to express their views on the issues should do so so at this stage.

Approximately 60 days after pub-lication of the notice of proposed rulemaking a first prehearing order would be issued consolidating participants, setting out a detailed schedule of future filings and resolving any other matters that may have arisen.

Following the prehearing Order the partici-cipants would be given approximately 60 addi-tional days (for a total of 120 since pub-lication of the notice) to complete and file their statements of position.

The statements wil' be the participants' principal contribu-tion to the waste confidence proceeding, and the participants should focus their preparation on them.

The statements should set forth the participants ' views on the confidence questions themselves and on the underlying assumptions and scenarios, both technical and institutional, upon which those 1174 353

5 views are based.*/

After the statements are filed, the participants would be given appro-xicately 60 days to prepare cross-statements discussing statements filed by other par-ticipants.

The cross-statements should be limited to material discussed in the state-ments and should not be used to introduce new material.

After the statements and cross-statements have been received, the Commission would decide the direction it wants to follow for the remainder of the proceeding.

It could ask for further written views on specific issues it identified as troublesome; it could proceed directly to a legislative-type hear-ing; or, if apprcpriate, it could initiate a more adj udicatory hearir.

Of these possi-bilities we believe it 1 most likely that you will wish to have a legislative hearing at that stage.

We have drafted the notice alcng those lines although the notice leaves open the possibility of adjudicatory hear-ings.

At either type of hearing, the par-ticipants would be further consolidated so that the oral presentations will be efficient and useful.

The speakers at the hearing should include both legal and technical representatives of the participants whc will be able to speak to the nerits of the ques-tions involved rather than just sunnarizing the previously filed statements.

The Oc=-

missioners could themselves questien the speakers and, in their discretion, could ask questions previously submitted by other participants.

In previous rulemakings such as S-3 where this latter procedure was ex-plcyed, a considerable number of such ques-tions were presented and a substantial por-tion of the hearing time was spent in asking

• /

In the S-3 proceeding the State cf New York raised the issue of the econcaic cost of waste disposal.

The Commission held that cost as such was not within the compass of that pro-ceeding and that econc=ics was only relevant insofar as the S-3 model facilities had to be shown tc be "econcaically feasible."

We believe that a similar aporoach is apprc-priate here, namely, that for a waste dispcsal scenaric to be considered available it must be shown not to be pro-hibitively expensive to build and operate.

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6 such derivative questions.

Finally, even assuming that initially a legislative rather than an adjudicatory hearing is chosen, the Commission should reserve the option of providing a final stage at which those per-sens who gave oral presentations could be cross-examined by other participants.

Based on the material received in this pro-ceeding and on other relevant information properly arcilable to it such as the S-3 rulemaking record, the Commission would publish either a proposed or a final rule in the Federal Register.

A final rule will b_ effective thirty days after publication.

Furthermore, we recommend the entire record in the waste proceeding should explicitly be made available for use in any future updating of Table S-3.

We have attached a chart which sets out the tentative schedule described above.

The total time from publication of the Nottce of Proposed Rulemaking to effectiveness of the rule should be 14 to 18 months with the largest uncertainties being whether the Commission would go directly to a legislative hearing and the amount of time the Commission will need to write the statement supporting the final rule after the hearing phase is ccmpleted.

3.

At What Stage Should the Commission Participate Assuming that the Commission does participate in the proceeding, there are a number of stages at which it can play a role.

However, the fundamental choice in this area is be-tween full Commission involvement from the outset of the proceeding and a phased involve-ment that focuses en the hearing itself.

The major disadvantage of the first option is the burden on the Commission of considering the preliminary matters that might arise before the hearing.

Uhile the magnitude of this burden could be lightened to a degree by having OGC sift incoming papers and provide recommendations and advice, if decisions on these matters are to be the Commission's,

1174 355

7 there will be an irreducible minimum of Commission time spent on each issue, no matter how minor.

Further, if discussion on any of these matters is needed, compliance with the Sunshine Act may cause additional consumption of time.

The principal alternative to full Commission participation would be for the Commission to defer its full involvement until the hearing begins and to have a subordinate conduct the pre-hearing process.

The subordinate (either an individual or a Board could be used) would be given primary responsibility for moni-toring the course of the proceeding, dealing with scheduling questions, issuing the first prehearing order, and organizing consoli-dation of participants so that the hearing before the Commission will be both effectiva and not unreasonably prolonged.

While this assignment will require sound judgment and solid administrative law skills, we do not believe that the aspects of the proceeding that may be ruled upon by the subordinate would be likely to significantly affect the outcome of the proceeding.

They will be largely procedural, scheduling, or other non-substantive matters that we do not believe would warrant substantial Commission atten-tion under any circumstances.

If a subordinate is chosen to conduct the prehearing aspects of the proceeding, there are three possible options.

The Cotoission could establish a special Board (as it has done in similar proceedings such as S-3);

it could ask the General Counsel or an OCC representative to supervise the proceeding; or it could have an individual lawyer member of the Licensing or Appeal Panels do the supervision.

Since the Commission itself will conduct the hearing, there is no need for a multi-disciplinary Board like the S-3 or GESMO boards.

The matters that the subordinate will have to deal with will be legal in nature, and so we believe the subordinate should be an individual actorney.

We do not believe that any CGC personnel or any of the Appeal Panel have had adequate i174 356

8 experience in controlling the preliminary stages of a complex multi-party proceeding such as this will likely be.

However, such an assignment is quite similar to the work a licensing board chairman has to do in the early stages of a contested adjudication.

Furthermore, if a hearing is held, a Licensing Panel attorney member would be a valuable asset available to assist in actual conduct of the hearing.

Accordingly, OGC recommends that a veteran attorney member of the Licensing Panel be selected as the " pre-siding officer" to be in charge of preliminary stages of the proceeding.

Although, as noted above, we do not think it likely that the presiding officer's pre-hearing rulings will deal with important substantive matters, there may be appeals from his rulings.

Our recommendation would be to permit any participant to request interlocutory review by the Commission of any decision by the presiding officer.

The presiding officer would forward any such request to the Commission with his views on whether certification was appropriate, und the officer himself would be allowed to certify to the Commission on his own motion any issue he believes requires sach certi-fication.

The Commission could resolve the participants' objections either when they are received or as part of the second prehearing order, which could be issued by it rather than by the officer.

The major disadvantage to having a subor-dinate conduct preliminary stages of the proceeding's familiarity with the issues and is that it would reduce the Commission participants and perhaps lessen the value of the hearing.

We believe this can be par-tially overcome by having OGC and OPE monitor the course of the proceeding during the preliminary stages and provide regular in-formational me=oranda to the Commission on developments.

If it appears at any time that substantial problems are arising, the Com-mission would of course retain authority to step in and reassert direct control.

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9 4.

Data Base and Discovery We recommend that the Commission not employ in this proceeding the normal rules of adversary discovery set out in 10 CFR Part 2.

Those rules are designed for use in adjudi-cations to prevent one party from " surprising" another at trial and we believe they are in-appropriate for use in a rulemaking action such as the waste confidence proceeding.

Instead, we balieve the participants should be provided with the principal existing materials the Com:aission believes are rele-vant to the matter at issue.

Furthermore, participants should be instructed to supplement their presentations with any other relevant documents they choose to rely upon in their statements.

In this fashion all participants will have access to and may comment upon all material that may forn a part of the Ccm-mission's decision.

We have been informed by staff that a relatively complete biblicgraphy of material relevant to nuclear waste dis-posal could be assembled without too much difficulty.

We believe such a bibliography would be quite useful to the participants in the waste confidence proceeding.

In addition to this bibliography, the Ccm-mission should make available to the par-ticipants the basic documents on waste storage and dispcsal, including the IRG Report, the supporting documents the IRG assembled (which we assume would be made available to the Commission on request), and the DOE GEIS en waste management.

We be-lieve also it may be helpful if that data base were supplemented at an early stage of the proceeding by requesting relevant government agencies to submit their preliminary views en the confidence questions addressed in this proceeding and perhaps tc update their views en the IRG report so that the other par-ticip ants could consider those views during the entire proceeding.

We believe the relevant agencies wh;_a views might be re-quested would include, in addition to :TRC staff:

DOE, EPA, the USGS, and perhaps Other federal agencies such as Interior, Defense, State and CEQ.

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10 Traditional inter-party discovery should not be permitted except on the basis it was allowed in GESMO and ECCS, namely, only in exceptional circumstances, when the Com-mission itself finds that compelling justi-fication therefor has been shown.

Insofar as NRC documents are concerned, an ext-ensive number of relevant documents would be made available initially in the data bank and any other desired documents could be sought under the TOIA.

5.

Role of the Staff National energy policy organization has created a situation in which ultimate dis-posal of nuclear waste is no longer an issue on which Commission staff has a mono' poly of the relevant information.

In contrast to the situation present in other major NRC rulemakings such as the ECCS or S-3 pro-ceedings other agencies such as DOE may be in possession of as much or more of relevant information as is NRC staff.

Accordingly, it would not be appropriate for staff to be required to play a proponent's role and to have to advance a case that all other par-ticipants would address.

Even if staff could gear up to play such a role, it would require an enormous expenditure of staff resources that, particularly in light of the strain that TMI has placed on staff manpower, would be out of proportion to any benefit to the Commission.

By way of comparison, NRR has estimated that staff's participation in S-3 required over 20 person-years of professional and contractor effort.

We believe that the lead role in waste dis-posal, if there is to be such a role, should be played by other agencies with expertise in the relevant matters.

These agencies would include DOE, USGS, EPA, and the other agencies mentioned above.

Those agencies would place their preliminary views on the record early so that all participants in-cluding NRC staff could discuss them in their statements.

Similarly the cgency repre-sentatives could be scheduled to speak first in the hearing phase so that the other par-ticipants could take account of their positions.

I174 359

11 6.

The Hearing If the Commission decides to hold a hearing itself, the Chairman and the Commissioners should preside regardless of whether a legis-lative or adjudicatory hearing is involved.

However, it would seem sensible for the Commission to use the presiding officer who conducted the previous phases of the pro-ceeding as an adviser.

That officer could assist the Conmission in resolving any legal or procedural questions that might arise and could add the benefits of his or her ex-perience both in this particular proceeding and in administrative law generally.

As discussed above, the Commission should avoid finally determining the precise proce-dures for the hearing until it has received the written statements and it can determine what procedures are best adapted to resolving the issues as the Commission then sees them.

However, we believe that a legislative type hearing is most likely and that it would be helpful to discuss how we believe such a hearing would proceed.

The hearing would begin with the delivery of prepared statements from the representatives of the several groups into which the partici-pants had been consolidated.

The statements should summarize the material set cut in the previously submitted statements and cross-statements.

We believe the speakers should be prepared to speak directly to the merits of the technical, legal and institutional issues involved.

In some cases this may mean that a party will need to'have both legal and technical representatives address the Com-mission.

That is the type of issue of which the presiding officer could advise and that could be resolved in the second pre-hearing order.

1174 360

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12 After the prepared remarks the speakers would be questioned by the Commissioners.

Pr o-vision could be made for the other parti-cipants to submit written questions to the Commission for it to address to the speakers, if it chooses.

As discussed above, the requested questions may prove to be a sig-nificant element of the hearing and provision should be made in either the first or second prehearing orders for the participants to submit their questions sufficiently early so that decisions can be made on which ques-tions to address to the other participants.

Selection among the questions will be an area in which the presiding officer's advf:e to the Commission may be quite helpful.

If the Commission does choose to permit a cross-examination stage, we believe that aspects of the proceeding can be controlled by the Chairman with the assistance of the presiding officer.

With regard to possible cross-examination, we recommend that the Commission defer any final decision on whether to have any cross-examination until the hearing is over.

At that time it could follow the precedent set in GESMO and S-3 and permit any participant to request cross-examination.

To obtain cross-examination a participant would be required to identify the issue or issues as to which cross-examination is sought, the participant or representative involved, and to demonstrate either. (1) why the legis-lative procedure has not proven adequate to consider fully the particular aspect of the matter that is the subject of the request (the GESMO test), (2) that cross-examination is necessary to prepare a record adequate for a sount decision (the S-3 test), or (3) that cross-examination is necessary for a full and true disclosure of the facts (the APA test for adjudicatory proceedings).

In practice we believe the choice of which test to use is not likely to affect any individual decision whether to permit cross-examination, but, on balance, we recommend use of the S-3 test because it avoids any possible confusion that i175 001

13 might result from introducing an adjudicatory concept into a rulemaking and because it focuses the participants' presentation on the benefits of cross-examination and not on the asserted deficiencies of the previously employed procedures.

Cross-examination could consume a considerable amount of time beyond what we have estimated for the hearing.

If the Commission were to decide to permit relatively free cross-examination by parti-cipants, that would argue against the pro-posal that the Commission conduct the hearing itself.

In any event, a final decision on the matter of cross-examination need not be reached before the second prehearing order at the earliest.

7.

Post-Hearing Proceedings Immediately after the hearing (including any cross-examination phase), the Commission should organize a small working group to pre-pare a proposed rule the accompanying de-tailed rationale that discusses the record and explains the basis for the decision.

The working group should be composed of appro-priate staff.

In preparing the proposed rule, the working group should consider the entire record of the proceeding, other relevant information and whatever instructions the Cc=missicn gives it after the hearing.

Cnce the working group drafts a proposed rule, the Commission will be briefed on it and can order it to be published for comment.

Depending on the extent to which the rule was presaged in the Notice of Prcposed Rulemaking, it may not be necessary to publish a proposed rule, and the Commission can T.cVe directly to censideration of the final rule.

However, if the rule as drafted by the working group and approved by the Cormission significantly diverges from previous policy, or relies sub-stantially on material not discussed in the Notice, publication as a proposed rule may be required.

In any event, the Commission may wish to publish the rule in prcposed form 1175 002

14 initially so as to obtain public comment on its rationale.

The final rule will become effective 30 days after publication in the Federal Register.

8.

Pending Proceedings There are a number of pending adj udications in which the issues addressed in this rule-making are potentially significant.

Most importantly, there are over twenty spent fuel pool expansion proceedings which are similar to the Vermont Yankee and Prairie Island cases which gave rise to the State of Minnesota decision.

We believe these proceedings should continue and that they should not address the issues involved in the rulemaking on a case-by-case basis.

The Court of Appeals did not vacate or revoke the licens-ing actions involved in the cases before it.

Consequently, we believe licenses can issue in other proceedings.

However, it should be made explicit that all such proceedings will remain subject to whatever action is called for as a recult of this rulemaking.

Recommendation:

That the Commission publish the attached Notice of Proposed Rulemaking, and that it immediately begin the process of selecting a presiding officer.

CGC's recommendation for judicial officer would be Marshall Miller, who is a highly regarded full-time Licensing Panel member.

However, we believe the vieMs of the Licensing and Appeal Panel Chairmen should be sought before a final decision is made.

OELD believes that it would be inappro-priate for it to submit advice with respect to the selection Of the presiding officer.

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Lecnard Bickwit, Jr.

General Counsel

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Howard K. Shapar.

Executive Legal Director Attachments:

1.

Uctice of Prepcsed Rulemaking 2.

Schedule Chart 1175 003

. DISTRIBUTION:

Comissioners Comission Staff Offices Exec. Dir. for Opers.

ACRS ASLBP ASLAP Secretariat m

1175 004

U.S. NUCLEAR REGULATORY COMMISSION STORAGE AND DISPOSAL OF NUCLEAR WASTE AGENCY:

U.S. Nuclear Regulatory Commission ACTION:

Notice of Proposed Rulemaking

SUMMARY

The United States Nuclear Regulatory Commission is conducting a generic proceeding to reassess its degree of confidence that radioactive wastes produced by ruclear facilities will be safely disposed of, to determine when any such disposal will be available, and whether such wastes can be safely stored until they are safely disposed of.

This rulemaking has been initiated in response to the decision of the Uni.

tates Court of Appeals for the District of Columbia Circuit in State of Minnesota v. NRC, Nos. 78-1269 and 78-2032 (May 23, 1979), but it also is a continuation of previous proceedings conducted by the Cc= mission in this area.

42 FR 34391 (July 5, 197~).

This notice describes the procedures the Co==issien will employ to conduct that proceeding and how mem-bers of the public can participate.

If the Commis-sion finds from this proceeding reasonable assurance that radioactive wastes from nuclear facilit$es will be safely disposed of off-site prior to the expiration 1i75 005

2 erf the license for the facility, it will promul-gate a rule providing that the safety and environ-mental 1 plications of radioactive waste remaining on site after the anticipated expiration of the facility licenses involved need not be considered in individual facility licensing proceedings.

DATES:

Notices of inten to participate must be filed by 30 days after publication of this notice.

Other deadlines are described below.

FOR FURTHER Stephen S. Ostrach, Office of the General Counsel, INFORMATION U.S. Nuclear Regulatory Commission, Washington, CONTA T:

DC, 20555 (202) 634-3223 SUPPLEMENTARY INFORMATION:

Background

On May 23, 1979 the United States Court of Appeals for the District of Columbia Circuit remanded two licensing actions to the Ccmmission to censider whether an off-site storage solution for nuclear wastes will be available by the years 2007-09, the expiration dates of the licenses of the Vermont Yt.1kee and Prairie Islund nuclear plants to which the Commission had granted permits to increase the on-site waste storage facilities, and, if not, whether that waste can be stored at the sites past those dates and until an off-site solution i175 006

3 is available.

In response to the D.C.

Circuit's decision the Commission has decided to undertake a generic reconsideration of the radioactive waste question so.that it can: (1) reassess itr confi-dence ': hat safe off-site disposal of rantoactive waste fron licensed facilities will be available; (2) determine when any such disposal will be available; and (3) it disposal will not be avail-able until after the expiration of the licenses of certain nuclear facilities, determine whether the wastes generated by those facilities can be safely stored on-site until such disposal is available.

Previously, in connection with a petition for rulemaking filed by the Natural Resources Defense Council the Commission considered the related question of the likelihood that waste disposal will be accomplished safely, and at that time it found reasonable assurance that methods of safe permanent disposal of high-level waste would be available when they were needed.

42 F.R.

34391, 34393 (July 5, 1977), peo. for rev. dismissed sub nom. NRDC v. NRC, 582 F.2d 166 (2nd Cir. 1978).

However, in denying the NRDC petition, the Cenmi'3-sion announced its intent :o re assess this find?.ng periodically.

This new proceeding will offer an 1i75 007

4 opportunity for the Commission to reassess its earlier finding, to obtain wider public participa-tion in its decision and also to take account of new data and.recent developments in the federal waste management plan, most notably the Report to the President by the Interagency Review Group on Waste Management, TID-29442 (March, 1979) (the "IRG Rerort").

Purpose of Proceeding The purpose of this proceeding is solely to assess generically the degree of assurance now available that radioactive waste can be safely disposed of, to determine when such disposal will be available, and to determine whether radioactive wastes can be safely stored on-site past the expiration of existing facility licenses until off-site disposal is available.

In additional to information sub-mit'ted by public participants and government agencies, this proceeding will draw upon the record ccmpiled in the Ccamission's recently concluded rulemaking on the environmental impacts of the nuclear fuel cycle (44 FR 45362-74 (August 2, 1979)), and the record compiled herein will be available for use in the general fuel cycle rule i175 008

5 update discussed in that rulemaking.

However, tF'.s proceeding is not designed to reach quanti-tative conclusions about waste respository impacts or performance.

The Commission will consider economic issues in this proceeding in the same fashion such issues were considered in the recent fuel cycle rulemaking, namely a waste disposal model will not be considered realistically avail-able if it would be prohibitively expensive to build and operate such a proposed facility.

C[.

44 FR at 45367.

During this proceeding the safety implications and environmental impacts of adioactive waste storage on-site for the duration of a license will con-tinue to be subj ects for adjudication in individual facility licensing proceedings.

The Commission has decided, however, that during this proceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings.

These i= sues are most appropriately addrer. sed in a generic proceeding of the character here envisaged.

Furthermore, the court in the State of Minnesota case by remanding this matter to the Commission but not vacating or revoking the facility licenses involved, has supported the 1175 009

6 Commission's conclusion that licensing practices need not be altered during this proceeding.

However, all licensing proceedings now underway will be subject to whatever final determinations are reached in this proceeding.

If the Co= mission finds reasonable assurance that safe, off-site disposal for radioactive wastes from licensed facilities will be available prior to expiration of the facilities' licensos, it will promulgate a final rule providing that the environ-mental and safety implications of continued on-site storage after the termination of licenses need not be considered in individual licensing proceedings.

In the event the Commission determines that on-site storage after license expiration may be necessary, it will issue a rule providing how that question will be addressed.

Procedures The Commission has chosen to employ hybrid rule-making procedures for conducting this proceeding.

Within thirty days after publication of this notice members of the public may file a notice of intent to participate as a " full' participant" in the further stages of the proceeding discussed i175 010

7 below.

The notice of intent shcald set forth the person's or group'5 identity, technical or other qualifications to participate, tentative positions on the issue.s to be considered, and a discussion of any special matters or concerns sought to be raised.

Furthermore, at thnt time those members of the public do not wish to be full participants but who wish to file comments on the issues addressed la this rulemaking should file their comments.

The individuals or groups who have chosen to participate as full participants shall be super-vised by a " presiding officer" who will be named by the Commission at a later date.

That officer's principal responsibility will be to monitor the early stages of the proceeding for the Commission, and to assist the Commisrion in conducting the Aater portions.

To those ends he or she will have authority to order consolidation of individuals or groups in the same fashion provided in 10 CFR 2.715a.

The presiding officer may take appropriate action to avoid delay, including if necessary holding pre-hearing conferences or certifying matters to the Cctmission.

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8 The Commission's staff will compile a full biblio-graphy on the subjects relevant to the proceeding which will be made available to the public at an early stage.of this proceeding.

In addition to that bibliography the Ccemission will maintain a publicly available data bank which will include relevant information on waste storage and disposal.

The data bank will include che IRG Report, the background material the IRG collected in preparing the report, the Generic Environmental Impact Statement on Waste Management being preparec by the Department of Energy, and a collection of other principal works that the Commission staff will compile on the subject of radioactive waste storage and disposal.

Furthermore, the Commission will Jolicit the views of a number of federal agencies on the questions involved in this 7.*cceed.-

ing and on the conclusions of the IRG Report and make the responses of those agencies available in the data bank so that the participants can address them in their papers.

The Commission expects that full participants will voluntarily make relevant documents in their possession available to other full participants to the extent practical and will reference and produce on request the documents on which they rely.

Requests for interrogatories, i\\15 D\\2

9 dapositions or other formal discovery will not be entertained unless in exceptional circumstances the Commission finds there is compelling justification therefor.

Approximate 30 days after the notices of intent are filed, the officer will issue a prehearing order resolving all preliminary issues including consolid'. tion.

Following the prehearing order the participants will have approximately 60 additional days (the exact time to be set in the pre-hearing order) to prepare and file their statements of position.

The statements will be the participants' principal contribution to the waste confidence proceeding, and participants should focus their preparation on them.

The statements should set forth the participants' views on the issues dis-cussed above, and on the underlying assumptions and scenarios, both technical and institutional, upon which those views are based.

After the statements are filed, the participants will be given appro-ximately 60 days (to be set by the order) to prepare cross-statements discussing s.tatements filed by other participants.

The cross-statements should be limited to material discussed in the statements and should not be used to introduce n2w material.

10 After the statements and cross-statements have been received, the Commission with the assistance of the presidir.g officer will issue a second pr'e-hearing order. Tnis order will set out the pro-cedures to be followed for tr, remainder of the hearing and may provide for further written sub-missions from the full participants, or for the scheduling of an oral hearing. If the Commission dcsires oral presentations, the part;.cipants may be further consolidated to ensure that the oral presentations will ct efficient and useful. Unless different procedures are set out in the second prehearing order, the hearing will begin with delivery of prepared statements from the representatives, both technical and legal, of the groups into which the participants have been consolidated. These statements should succinctly su==arize tne participants' views previously set forth in their statements and cross-statements. Participants should ensure that their representatives will be able to address the merits of the legal,, technical and institutional issues that have been raised in this proceeding. After the prepared remarks the speakers will be questiened by the members of the Commission. Furthermore, other participants will be given the opportunity to 1175 004

11 submit written questions to the Commission for it, in its discretion, to ask of participants. The Commission reserves the option of providing a final stage at which representatives of the parti-cipants may be cross-exanined by other participants. The Commission will defer deciding whether to per-mit any cross-examination until after the hearing is over. To obtain cross-examination a partici-pant will be required to identify the issue or issues as to which cross-examination is sought, and the representative or participant involved, and to demonstrate that cross-examination is necessary to prepare a record adequate for a sound decision. Based on the material received in this proceeding and on any other relevant information properly available to it, the Commission will publish a final rule in the Federal Rezister. That rule will be effective thirty days after publication. Comments, notices of intent to particpate, and any other documents filed in this proceeding should be filed by serving a en*, the Secretary of the n' Cctaission, U.S. Nuclear Regulatory Commission, i175 015

12 ~ Washington, D.C. 20555, Attention: Docketing and Service Branch. All filings will be available for public inspection in the Cormission's Public Document Room at 1717 H Street, N.W., Washington, D.C. For the Commission Samuel J. Chilk Dated: \\\\15 3I6

i f -T 2c- ~ k ~ I' .d,.* o-CollfARIS0N OT ($ilHAl[D $(llEDULE FOR RUllHAKING 10 AiSt55 C0ftlI5510!! fN I4.3 CONFIDIN.CE Willi $CllEDULE FOR $.3 AND ACCE55 RULE PROCitDING - ;1 .-~ s 4,a M. FEDERAL RECI$TER N0llCE WA51E Public Coninents first Pre-Statements CONfl0tMCE and Nottees of hearing Confer-of Cross order and Preparation ' and Wrlie [fteca second Prehearing Review Record Rule ~. PROCEEDING intent ence Orde.' Position Statements for llearing flea ring Rule Llvenes 30 30 60 60 90 'l0 180 3'0-60 ,, days days days days days days days days Prehearing Prepare Written Respon. 4 Cross-ex requests Review of record $-3 Activities Testimony ' Questions Questions

llearin, Completion of record Preparation of decision '

83 48 31 16 '74 86 days days days days days 120 days c. (10 actual hearing days days) ,,' CLEARANCE Prehearing Frepare Testimony, Cross-ez Requests Review of Record - ACCES$ Ac tis !! 8es Questions. Responses Ilearing Completion of Record Preparation of Decision .f j e RULE 120 74 2 70 ~, days days days days days 160

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