ML19225C886
| ML19225C886 | |
| Person / Time | |
|---|---|
| Issue date: | 06/11/1979 |
| From: | Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19224C614 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7908030142 | |
| Download: ML19225C886 (13) | |
Text
-
pm ata
'o UNITED STATES
- [ g*y k
NUCLEAR REGULATORY COMMISSION
.E WASHINGTON, D. C. 20555 u'l/
,f o,,
D
....+
June 11, 1979 lS% p m a!, ; s.e.;p,) tr_
,p (o
r n'
L!!hj,}/OiUh/
- D MEMORANDUM FOR:
Chairman Hendrie
/
Commissioner Gilinsky Commissioner Kennedy
'-4 Commi ssioner Bradford Co==1ssioner Ahearne FROM:
Stephen F. Eilperin, S L 11b;:A f
SUEJECT:
.D.C.
CIRCUIT'S REMAND J STAE OF MIN'TESOTA V. NRC (No. 78-1269) AND ITS RELATION CO TiiE S-3 PECCEEDING Introduction This memorandum sut=arices the D.C. Circuit 's May 23 opinien in State of Minnesota v. NRC, explains its relationship to the present S-3 proceeding, discusses the scope of issues the Co -mi ssion should consider in carrying out the court's re=and, briefly touches upon the procedural aspec*.s of a further Commission prceeeding, and suggests changes in the S-3 statement of considerations te reflect the court's opinion and the Commission's plans to implement it.
Our reccamendations a"e as follows:
the present S-3 proc 55 ding should be concluded promptly with issuance of a final S-3 rule and accompanying statement of considerations.
Then a new Hea~ing Board should be appointed to conduct a generic preceeding to determine whether and when waste disposal (or failing that, 1cng-ter offsite storage) can reasonably be accceplished.
Reconsideration cf the zero release number for waste disposal in S-3 should be a possible outcene of the new generic proceeding.
The procedures.for this rulemaking should be primarily legislative with the Comniesien reserving its right to decide whether more adj udicatory precedures on specific issues are wa ranted.
Our views on the ccmposition of the Board and the procedures for new generic proceedings a e less firm than our views on the other issues.
In any event, we think the Cc==ission's decision on the Board and its procedu~es should be announced in a later notice of hearing after giving the ts::er acre consideration.
408 219 foto3DNL on, o n et, w v.<.
-v'
The Commissioners 2
d.b[f l 6h % /o
. l",o n,n b,! ycUN-a? u> 4 Discussion 1
y rp - Jg F 7"dd Gllj k[s, mL g
.5 ' !/,W y
a j
I.
The Court's Orinion The State of Minnesota and the New England Coalition on Nuclear Pollution challenged the grant of license enendrents for the expan-sion of the Prairie Island and Vermont Yankee spent fuel pools on the ground that the Commission violated NEPA and the Atomic Energy Act in excluding from their license amendment proceedings an evi-dentiary hearing into whether spent fuel could be disposed of safely.
Petitioners clai=ed that such an inouiry had to be undertaken pricr to the issuance of the license amendments, and that if no offsite solution could be proj ected as probably available, that the Cor-4 s-sion must take into account the safety and environmental trplica-tions of maintaining the reactor sites as nuclear waste disposal sites after expirati'on of the operationg licenses.
In particu]ar, petitioners argued that the Appeal Board had wrongly relied on the Cc= mission's 1977 denial of an NEDC rule =aking petition as a basis for excluding waste disposal issues frcc their spent fuel pool amendment proceedings, and that there was no record-supported assurance that Prairie Island and Vermont Yankee would not end up
'as de facto waste disposal facilities once the operating Licenses for those plants expired.
The court 's opinion, authored by Judge Leventhal, bypassed the principal issue petitioners raised.
The court chose not to decide whether the Appeal Board was legally correct in resolving the factual cuestions whether and when spent fuel would be disposed of safely by reference to Commission " assurances" which had not been the product of a rulemaking record devoted to considering these cuestions.
(The tenor of the court's opinion indicates that had the court reached that issue, the Commission would not have p revaile d. )
Instead, the Court took note of the pendency of the related generic proceeding -- the S-3 croceeding -
"in which the issues of the storage and disposal of commercial nuclear wastes-are of central concern", and wrote that (slip cp. pp. 13-14):
It would be inapprcpriate for this court to ignore the relevance of proceedings in which some cf the basic cuesticns raised now are the subj ect cf current explcra-tion.
Since the disposition of the S-3 preceeding, though it has a somewhat different focus, j/ may have a bearir.g c' the pending cases, and being advised of recent d2velop=ents C/ that raise new issues about the feasibility of dispoc al solutions, we think it apprcpriate in the interest of scund airinistration to remand to the NRC for further consideration in the light of its S-3 proceeding and analysis.
In particular, the court contemplates consideration on remand of the specific qOO TWhd 4 b.o
-a v ~
u PC
q g,ht N [;9 9+ q /:p { f'1,'f r
- MLw u
P
-'he Ccmmissioners 3
W E 0 b
- ,j,u;k bf Ili rQjt-n a qq a g
c prom em isolated by petitioners -- determining whether there is reasonable assurance that an off-site s tcrage solution will be available by. the years 20G-39, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance th.at the
-fuel can be stored sa fely at the sites bey:nd those dates.
We neither vacate nor stay the licens e anend-ments, which would effectively shut down the plants. Ilf]
The court went on to note that "[t]he Co==1ssion may int egrat e the issues with the pending S-3 proceeding, designate a f ollow-on generic proceeding, or follow such other courses as it deems appropriat e. "
Slip cp. p. 16, n.10.
The court was " clear that the central issue posed by petitioners -- the feasitiZty cf interin or ultimate nuclear waste disposal solutions -- is one essentially common to all nuclear facilities" (slip op. p. 2), t h.: deter-
=ination of those questions in a generic proceeding which would proceed as a rulemaking rather than adjudication van legally permissible, and that "[t]he breadth of the questions involved and the fact that the ultimate determination can ne er n-ise above a prediction suggest that the determination may be a kind of legisla-tive j udgment for which rulemaking would suffict."
Slip op. p. 11.
ac cade by Judge Leventhal concluded his opinion by rej ecting
_1_/
The footnutes to the~ court's opinion were as follcws:
8/
The on-going S-3 proceedings have f:cused cnly en the issues a-ising under NEPA, as to the envir:n ental impact of nuclear waste disposal, and not on the effe:: of the uncer-tainty as to solutions under the public health and safety standard for licensing under the Atcmic Energy Act, which NRC counsel acknowledged is more rigorous than TdA standards in certain aspects.
And the S-? voceedin:;s may not be con-cerned with the scre limited iss.
dentifie:i in the pending cases of whether offsite storage ations will be available prior to the expiration of the opuating es-tificates.
C/
At oral argument counsel for petitener New England Coalition told the court of a final 3eport tc the ": esident by the Interagency Review Group on Nuclear Waste Ia agement, issued March 19, 1979, that casts s c=e douit nn whether cur-rent proposed solutions to the pe=anent vaste dispcsal proble-are technologically feasible.
Id. at 42.
Tre Re:c : also e.:..
the res.1st-pointed to gathering institutional problems, ance of localities to storage of wastes wi:hin Oneir ju-istic-tions, that "may well be more difficult tha. finding sclutions t o remaining te chnical problems. " M. at i n o.
408 "LL1 n
u
?:hTR) f ^% W
- p?! n
'(
ea f
lii
% "n_ Ik. Aj7mCe]
The Co==issioners 4
t us f ;.
u w,/
'g pp I l
d
-> w. u w, u o
u LaQ the utilities, but not by us, that waste disposal safety issues were never relevant to the licensing of nuclear power plants.
In a concurring cpinion, Judge Ta== emphasiced his belief that prior to Cc==ission approval of spent fuel pool expansion, NEP A and the Atc=ic Energy Act =andate a determination whether it is reasonably probable that an offsite fuel repository will be available by the time the plant's operating license eIp ires, and if not, whether it is reasonably probable that spent fuel can be stored safely ensite for an indefinite period.
The court's opinion is striking in its conscicus refusal to "make law".
For a long time Judge Leventhal has been interested in explering ways in which the judiciary can work with administrative agencies to resolve disputes and his opinion in this case reflects that interest.
Thus unlike Judge Ta=='s concurrence which scuarely reads NEPA and the Atc=ic Energy Act as =andating a waste disposal determination prior to expanding spent fuel pool stcrage, Judge Leventhal's opinien for the court remands the case to the Cc- 'ssion "in the interest.cf sound administration".
This disposition allows Judge Leventhal to postpone a j udicial definition of the Cc= mission's cbligations regarding waste disposal and reactor licensing or pool e xp ansion.
It also allows Judge Leventhal to bypass the ouestion Judge Ta=='s cpinion calls to =ind -- which is if orior to perritting spent fuel pool expansion the Cc==ission has a statutcry obligation to make a waste disposal determination it thus far has not properly made, why is it that Judge Ta== does not interfere with the licensing amendments which permit expansion of the Prairie Island and Ver=ont Yankee spent IJel pocls.
All Judge Leventhal says of his cwn views is that Congress has chosen to rely cn NRC's assurances of confi-dence that a ' aste disposal sclution will be reached and there is no implication that Cengress intended that the NRC ignore new knowledge
- e 1d censing decisions.
or analysis 4-I suspect that Judge Leventhal's views are probably quite close to our office's views (see Me=crandum Strauss so Shapar (Feb.
1, 1977);
Me=crandu= Eilperin to Cc==1ssion (Feb. 24, 1c75)) -- that what the Cc=ris sion termed it s "p olicy" decisien not to continue the li cens-ing of reacters unless the Cc==ission was confident that a waste disposal solution would be available when needec, is, in reality,
a statutcry obligation.
However it is a statutcry otligation which could be satisfied outside cf the licensing context (i. e. by infer =ing Congress frc= time to time of the Cc=rission's views) up until the time that the basis for the Cc==issien's confidence was cuestioned, as here, cr as earlier with the NEDC rule =1 king petition.
Au that p eint, the Cc--d e e' en becc=es obliged to decide either in rulemaking or adj udication that there is reasonable assurance a solution can be available when needed, i.e. when storage will nc longer suffice as a matter of safety.
Since the Cctrission's statutcry obligation for a formal waste disposal finding is of fairly recent origin, and the Cc==ission has cc=ritted itself to explore that subject, there was 408 272
-tu
- e. u.>
The Cc==1ssioners 5
no j udicial reason to interfere with the spent fuel pool amendments,
especially v5ere lifting the expansion approvals would effectively close the plants.
While this is =y speculation about what Judge Leventhal may be thinking, I think'it is clear that the time has ce=e for a determination in a rule =aking or adjudicatory proceeding whether che Cc==ission is reasonably assured that wastes can be disposed of safely when necessary, and that a f=ilure to get on with that kind of proceeding will lead to an adverse j udicial decision which could have serious implications for the way in which the Cc==ission conducts its licensing of nuclear power plasts.
II.
Relationshio Of Court's Coinion To S-3 Proceedings As the court of appeals recogniz ed the Cc==1ssion's S-3 proceeding has a somewhat different focus chan the cases that were before the court.
First, S-3 treats the NEPA issue of the environmental impact of nuclear waste disposal rather than the effect of uncertainty as to waste disposal solutions en public health and safety licensing j udgments under the Atomic Energy Act.
Second, the S-3 proce ading has not addressed the timing of offsite storage solutions -- whether offsite storage or disposal will be available p=ior to 2007-09 when the Ver=cnt Yankee and Prairie Island operating licenses expire.
Third, since the March 19, 1979 IRG Report post-dates the close of the S-3 hearings the greater uncertainties the Report proj ects have n' ' been examined at a rulemaking hearing.
Fourth, the petitioners are not parties to the S-3 proceeding and in light of the considera-tions j ust set out, they must be offered an opportunity to speak to the issues pertinent to their lawsuit.
What this means, simply p is that the S-3 rule =aking as presently before the Cc==ission for -
ision, can not be used to resolve the questions the. court has recanded to the Cc==issSon for its consider-ation.
There has not been adecuate notice of tne Atc=ic Energy Act issues, there has not been notice er an evidentiary record cc= piled as to the timing of a waste disposal solution er cf sc=e other away-frc=-reacter =cderating step, and while the Co- 's sion can take note cf the IRG Eeport the court of appeals cpinicrr c onte= plates that the infor=ation in the Report should be evaluated in the context of further adversary participation.
Should the Cn==ission, then, proceed to a decision cn S-3, despite the clear necessity for a further proceeding en the issues identi-fied by the court?
I think so, and for several reasons.
First, as has of ten bc en expla' ned, the Cc==1ssion is obliged by NEPA to censider the enviren= ental effects of the fuel cycle whenever it issues a construction per=it er an operating license.
Not reaching a decision en the S-3 rulemaking does not free the ce==issien frc=
a decisien on issues enec= passed through the S-3 rule.
The subject has te be addressed, either generically or in individual licensing cu, n nnt
- Tl) (_
LU4 Nhh 7L ~9 i a
The Cc issioners 6
actions.
Second, the Cenniss'.on can not avoid a decisicn on the S-3 rule through the expedient of extending the intert: rule.
The justifica; ion for the extensions to date has been that the C ecris -
sion thinis the numbers in the interim rule and in the final rule are essentially interchangeable.
At sc=e point the Cc--4 ssion will be obliged to articulate why it thinks this is sc.
( That, of ccurse, is the function of the lengthy statement of considerations for the final rule.)
And, if the Cc==1ssion does not think so, it has no business extending the interi= rule.
Third, that a general update of S-3 isscheduled for the Fall, and that there is now a staff-imposed moratorium until the Fall on licensing nuclear power plants does not obviate the need for a decision, though it does lessen its urgency.
Even if the general update is produced on schedule and contains new inf ormation of significance, a new rule based on the general update will be sc=e considerable time away, extending well teyond the three month licensing moratorium. 2/ y.creover, whatever the length of the mcratorium, whether longer or shcrter than three
=cnths, it seems sensible to have as much of an agency's regulatory structure in place as one can.
Sc long as the C---i s sion is of t he view that the S-3 rule reasonably forecasts f uel cycle 2: pacts and t hat no maj or piece of information at odds with the nutters in the rule is in the near offing, I think the Cctaissicn should proceed
't o a decision.
At least thus far it has been ny understanding that the Commission does not view the IEG Report as at odds with its conclusions in the S-3 proceeding.
Thus a new proceeding, as con-templated by the cour', to take account of the I?.G infonnation does not call for withholding decision en S-3, or on that part of S-3 dealing with releases after closure of a waste disposal f acility.
What it could reasonably call for, as suggested in the next section of this me=crandum, is the cpenness to "$-consider the zero release number fcr waste disposal.
III.
Secre Of The New Proceeding a.
Generic or Care-by-Case Applications to increase the capacity of spent fuel storage pools for scme 21 reactors are prisent?7 pending at +"=
r^-~4=sior..
Of these, the prcpcsed expansicns at Dresden, !! orth Anna, Zicn, Salem and Ia Crosse are being litigated before a Licensing Ecard.
Trcj an is befc -
'e Cc =issien for review of an Appeal Ecard
-2/
I understand that a general update by the 7211 may be optimistic and that the principal changes in the c;date are not inconsistent with S-3 but rather relate tc subj ects not now covered by S-3 such as dose ccanitzsnt and s curce terms.
?
,5, 4
(
X uGJ
~
The Cc=missioners 7
decision, and the Frairie Island and Vermont Yankee expansions are presently before the Cc==ission on recand from the D. C.
Circuit. 1/
It hardly seems open to cuestion that the generic waste disposal issue should be handled in a generic proceeding rather than liti-gated in these eight individual proceedings and what others are to come.
The court of appeals has made quite clea? that a generic proce ling is proper.
Moreover, at this point, the court has declined to interfere with the grant of license amendments to expand spent fuel storage capacity while the Cc=rission considers whether and when an offsite waste disposal solution will be ac complished. 4/
Given the Cc==ission's present thinking on the government 's movement toward a waste disposal solution and its linkage to reactor licens-ing, 1/ spent fuel pool expansion proposals should continue to be acted upon now but be made subj ect to the outcome of whatever con-ditions the Commission may later impose as a result of its future generic waste disposal proceeding.
b.
Issues for the Generic Proceed _i_n_c At a minicu= the new generic proceeding must consider the issue recanded by the court for the Commission's consideration -- "whether there is a reasonable assurance that an off-site storage solution will be available by the years 2007-09, the expiration of the p lant s ' cperating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates."
S lip op. p.
14 6/
One obvious co==ent should be made about this.
Given a literal, or narrow, or grudging reading, the court 's instructions do not call for a determination that nuclear wastes can be disposed of safely when needed.
Rather, the narrow 1/
Increases in the capacity of spent fuel pools for 50 of the 67 cperating reactors have already been approved.
-h/
Presu= ably, if the Ccrmission does not take prompt action to institute a generic proceeding or does not proceed diligently with it, at a party 's urging the ccurt could re-consider.
E/
- See,
- e. g., March 9, 19 79 Cennission lett ers to Senator Glenn.
-6/
Cr as Judge TE=n put it in his concurring opinion:
"Sp e ci fi-cally, there cust be a determination whether it is reasonably probable that an offsite fuel repository will be available when the cperating license of the nuclear plant in cuestion expires."
Slip op., concurring cpinion, p.
1.
n, c
nr~
'"'9 U
j
- 1D3 L LUO
9 The Commissioners 8
issue is simply whether it is reasonably probable as the year 2000 rolls around that the Prairie Island and Vermont Yankee spent fuel assemblies can be transferred to another location or safely left on-site until a transfer is later effected.
This narrow issue reflects the fact that the cases before the court arose in the con-text of expanding waste storage capacity rather than as a general challenge to licensing power plants and production of nuclear waste.
Moreover, the narrow issue seems straightforward and, as things go, simple.
Can the United States provide an away-from-reactor storage site sometime in the next quarter century to safely house the spent fuel from individual recctors in the event that individual reactor sites can no. longer safely or acceptably retain the spent fuel?
Months or years of het 'ings should not be necessary to answer that question.
While a generic preaeedit on that limited issue would
.guably comply with the c oe.
'ust.uctions in these cases, we would se unhappy with so nafr. w - t r oceeding.
This is -so for a variety of reasons.
First, the ubait s concern is with whether nuclear wastes can be disposed of
- " 2y. not with whether a larger stcrage pool can be built.
Second, aspects of the court's opinics suggest a more generous hearing tt i.. est1 gate whether it is "reascrably probable that an offsite waste discosal solution will be available", TE=m, J.,
slip. op. p.
1, and to consicer "whether current proposed solutions to the oernanent waste discosal problem are technologi-cally feasible".
Slip op. p.
14, n.9 Thi rd, the Cornission has advised Congress and the Executive Branch that it is cc: mitted to reassessing its basis for confidence [that nuclear wastes will be safely cared for] as new ' data are developed and progress is cade in the Federal waste management program."
Co==ission letter to Senator Glenn (March 9, 1979); see also Letter to Dr. Joseph P.
Kearney from Mr. Dircks (May 30, 1979).
The court 's remand provides a suitable, and perhaps comp uls ory, occasion for locking at this larger question.
There are still =cre expanded issues the Cc= mission could look into at the new generic proceeding.
For example, the Co- 'ssion could utilize the proceeding to give its views en DOE's GEZS on alterna-tive waste disposal technologies.
And it may well be that the Executive Branch will ask the Commission to review DCE's GEIS and to make findings, based on that study, whether wastes can be dis-posed of safely when needed.
See Letter to Dr. Joseph P.
Kearney fro: Mr. Circks (May 30, 1979). 1/
The proble: with this alternative
_7/
I have sent Dr. Kearney a copy of the State of Minnesota decision so that he is advised of the fact that the Corrission will be conducting further hearings on storage or disposal of nuclear wastes in advance of the final DOE GEIS.
Mr. Dircks has also spoken to Dr. Kearney about this.
408 226
,n-
- =ar f }i l'
s
The Co==issioners 9
is that DOE's GEIS is now only a draft, and the final. version is probably a year or more away.
The Cornission could not wait that long to begin its proceeding in response to the court's order.
While no doubt the Cc==ission's proceeding will not be concluded by the time the DOE GEIS is final, there seers no co=pelling reason at this point to make it a principal subj ect of the Co'n-mission's new generic proceeding.
Another possible issue for the new proceeding is reconsideration of the zero release waste disposal number in S-3 The new proceeding is clearly pertinent to that number -- or' what it reflects -- the likelihood that nucle a: wastes once buried will stay buried.
But while the continued validity of that assessment will be open to question in the new proceeding we reco==end that reconsideration of the S-3 number should not be a formal issue in the proceeding.
Instead, we suggest that the notice of hearing alert the public to the possibility that the record in the new proceeding on waste dis-posal can be incorporated into whatever hearing is held on the general update cf S-3 Our reason for this more te=porizing approach is that we think an expression of Co==ission confidence or lack of confidence in the per=Enency of nuclear waste disposal may not be best addressed through sc=e curie release number -- whether zero, 400, 1200 or what have you.
To call for reconsideration of the zero release number seems to suggest an adherence to the present S-3 format j ust at a time when the general update =ay propose a changed format.
We think the information generated in the new proceeding can be used in the general update s1= ply by giving nctice of that possibility.
c.
The Ecard and Procedures We are not asking the Commission to decide now either en the re=bers of a Hearing Ecard or on the procedures for the new hearing.
We do think, howe ver, that the Cc==ission can decide whether it wants to again tap the S-3 Hearing Board or to seek new Ecard = embers.
We suggest trying a new Board.
While the chcice of a new Eoard will likely lead to greater delay in getting started and the Coumission will be forfeiting a large sum of knowledge which the S-3 Board already has, S/ a new Board would e=phasize the distinctness cf the new proceeding frc= S-3, could include pecple of different disci-plines, and would e=phasize the Cc==ission's c o- ' tme nt to a fresh
-8/
We have not been advised whether the S-3 Ecard renbers would be available if the Cc==ission wanted ther to serve for the new Board.
/
4m, 4UO c' 2 /
The Co==1ssioners 10 look at waste diposal proposals.
As to hearing procedures, the scope is at the Ccesission's dis cre-tion.
My preference is for the legislative procedures the Cc--4s-sion recently employed in S-3 but without delegating to the Hearing Ecard the final say as to cross-examination on particular issues.
The problems with more adjudicatory procedures are that (1) they can be time consuming and tie up too ruch staff time to the new proceeding, (2) can be difficult to conduct if, as is probable, there will be many participants in the new proceeding, (3) are overly formal for the kind of predictive judgment that the waste disposal issue calls for and (4) are inappropriate for a situation where the Staff is not the repository of most of the expertness on the subject.
The NRC staff should not be placed in the role of principal pro-ponent of waste disposal progress.
The prospects for waste dis-posal cust be based on infor:ation largely in the hmnds of other
- agencies, e.g.,
DOE and USGS, and there may be difficulty in securing extended participation of the work force of these other agencies.
All of these considerations counsel against an overly adjudicatory structure for the generic proceeding.
Indeeed, in considering more adjudicatory procedures, it may be useful to recall what Judge Bazelon said when discussing the idea of a Science Court as a way for the legal process to cope with technological issues:
I fear that a. lengthy adversary proceeding, limited solely to factual issues, might well exaggerate the importance of those issues, and might tend to diminish the importance of value choices.
A factual decision by a Science Court, surrounded by all the mysticue of both science and law, might well have encrmous, and unwarranted,
p olitical i= pact.
"Moreover, it's not entirely clear to me that all disputes accng experts either could be or should be " resolved".
When experts disagree, it is usually not so much about the cbjectively verifiable facts, but about the icplications which can be drawn from those facts.
And they disagree precisely because it is impossible to say with certainty which i=plicaticns are the " correct" ones."
Address by David L. Eazelon, "Ccping with Technology Through the Legal Prcces" p.
14 (Nov. 29, 1976); see also NEDC v. KRC, 547 7.2d 633, 6th (D.C. Cir. 1976), rev'd sub nc= Vermont Yan:-:ee Nuclear F ewer C e ro.
- v. NRDC, 435 U.S. 519 (197c) ("we have beer. core ccncernec with
=aryng sure that the record develcped by agency procedures discloses n n. Q' f ^ n 906 fU
- t"TJ L-n O
i!0
,o The Cc=tissioners 11 a thorough ventilation of the issues than with what devices the agency used to create the dialogue"). 9/
IV.
Recctmendation That the Commission adopt.the reco=mendations set forth on page 1 of this memorandum.
A suggested modification to the S-3 statement of Considerations to take account of the State of Minnesota decision is attached.
Attachment:
As stated cc:
OPE ELD JECY
'/
C There are, of course, a whole range of procedural devices between bare bones notice and cccrent and a full blown adj udicatory hearing.
A f air sa=pling have been listed in Judge Eatelen's Ver=cnt Yankee cpinion -
"infornal cen-ferences between intervencrs and staff, document dis ecvery,
interrogatories, technical advisory ccnnittees comprised of cu side experts with differing perspectivet, limited cress-examination, funding independent research by interven:rs,
detailed annotation of technical repcrts, surveys cf exis:-
ing literature, [and] nemoranda explaining rethodclogy."
NEDC v.
NRC, 547 F.2d at 653
[g 229
Insert, page 5, preceding the first full paragraph In response to a recent decision by the United States Court of Appeals for the District of Columbia. Circuit, State of Kinnesota
- v. NRC, Nos. 78-1269 and 78-2032 (May 23, 1979), the Cc==ission intends to conduct a generic proceeding which will consider the most recent evidence regarding the likelihood that nuclear waste can be safely disposed of and when that, or some other off-site storage solution, can be accomplished.
That new generic waste disposal proceeding will be separate and diffe:~ent in secpe and purpose from further fuel cycle rulemakings de[. ling with an S-3 narrative and general update of S-3, but will $ n part review and update the conclusions regarding waste disposal which have been reached in the present rulemaking.
The record eczpiled in the new generic waste disposal proceeding can be considered in, and made a part of the record in, the general update of S-3 4as
,aJ ze L
...,a Insert, page 39a, following "That issue has been separately addressed by the Cc= mission."
Furthermore, the Cc==ission intends in the near future to
~
conduct a generic proceeding to reassess the outlook for the availability of safe waste' disposal methods in light of new data 25a/
and recent developments in the Federal waste management program.
25a/ The immediate occasion for this proceeding is the D.C.
Circuit's remand to the Ccmcission of State of Minnesota v. NRC, Nos.
78-1269 and 78-2032 (May 23, 1979) to consider whether there is reasonable assurance that an off-site stcrage solution for nuclear wastes will be available by the years 2007-09, the expiratien dates for licenses of certain nuclear plants where the Cocnission has granted permits to expand on-site spent fuel capacities and if not, whether there is reasonable assurance that the fuel can be stored safely at the site beyond those dates.
A continuing reassessment of the Cc--4 ssion's views on waste disposal is part of the ccamitment which the Ccanissien has made to Congress.
The final IRG repcrt, which was Evail-able to the fuel cycle rulemaking participants only at the close of the ruleraking and only in draft f or=, will be p art cf the new informaticn which the Cermission will consider in its reassessment.
The Cc==ission will anncunce at a later date the specific procedures to be adcpted for this proceeding and its precise secpe.
4 @' @
77 LJ Q09 919.
u."
ww-