ML19260E096
| ML19260E096 | |
| Person / Time | |
|---|---|
| Issue date: | 02/01/1980 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | CALIFORNIA, STATE OF, WISCONSIN, STATE OF |
| References | |
| FRN-44FR61372, RULE-PR-50, RULE-PR-51 NUDOCS 8002130347 | |
| Download: ML19260E096 (12) | |
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USNRG UNITED STATES OF AMERICA FEB 41980> '- !
NUCEAR REGULGORY GIMSSION G'
OfficacftheCa:3ta:7 7f rcts In the Matter of
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4 PROPOSED RUEMAKING ON THE STORAGE
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PR-50, 51 (44 FR 6
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AND DISPOSAL OF NUCEAR WASIE
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(Waste Confidence Rulemaking)
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FIRST PREHEARING CONFERENCE ORDER (February 1,1980)
A prehearing conference was held in this waste management rulemaking proceed-ing on January 29,1980 at 1717 H Street, N. W., Washington, D. C.
This conference cortvened pursuant to $1otice duly published in the Federal Rezister on January 16,1980 (45 FR 3056). The following Full Participants had representa-tives in attendance:
Department of Energy American Nuclear Society Accx:d.c Industrial Forun California Energy Cocmission Capital Iagal Foundation and Scientists and Engineers for Secure Energy Christa-Maria Cocmxrmalth of Massachusetts Ccarrxrmalth of Virginia Consolidated Dison Conpany of New York, Inc.
Consumrs Power Company County of Ocean and Township of Iower Alloways Creek Department of the Interior (U. S. Geological Survey)
Edison Electric Institute 8002130 f
. Envirornental Coalition on Nuclear Power General Electric Coupany Natural Resources Defense Council, Inc.
Marvin Isais New England Coalition on Nuclear Poll'ition Niagara & hawk Power Corporation, Orraha Public Power District, Power Authority of the State of New York, and Public Service Cocpany of Indiana, Inc. (Utilities)
Safe Haven, Ltd.
Scientists and Engineers for Secure Energy State of California (Department of Conservation)
State of Delaware State of Hawaii State of Illinois State of louisiana State of Maryland State of Minnesota State of Missouri State of New Hampshire State of New Jersey State of New York State of Ohio State of Oklah ma State of Oregon State of South Carolina State of Texas
. State of Verront State of Wisecnsin Tennessee Valley Authority Uraniun Fuel Cycle Group Utility Waste Manage a nt Group Representatives of the NRC Office of General Counsel (OGC), Staff, and Public Docunent Room (PDR), as well as the U. S. Department of Energy (DOE), also participated.
Written prehearing statem nts were filed by: The NRC Staff, the Department of Energy, the American Nuclear Society, California Department of Conservation, the Envhwutal Policy Institute, New England Coalition, Neighbors for the Enviun - t, the Utility Waste Management Group, the Edison Electric Institute, and the Environmental Coalition on Nuclear Power.(Tr.:17). Motions were filed by:
California Energy Resources Conmission, Consuner's Power Carpany, and the State of Wisconsin (Tr.17).
The Cocmission has described these issues to be covered in its generic reconsideration of the radioactive waste question so that it can (1) reassess its confidence that safe off-site disposal of radioactive waste from licensed facilities will be available, (2) determine when any such disposal or off-site storage will be available, and (3) if disposal or off-site storage will not be available until after the expiration of the licenses of certain nucimr facilities determine whether the wastes generated by those facilities can be safely stored on-site until such disposal is available (44 FR 61372, 61373). Hybrid ruleraking procedures are to be followed, rather than adversarial adjudicatory procedures (Tr. 19-20).
By its Order date' January 28 1980, the Conmission decided to provide procedural assistance.2 Full Parti
,.mits by serving without charge one copy of the transcript of this prehearing conference, and subsequent copies of statements of position and cross-statements filed with the Secretary (Tr.15-16).
The Cocmission also entered an OrderN on January 29, 1980, determining that formal discovery under the procedures set forth in 10 CFR Part 2 will not be permitted in the stages of the proceeding prior to the second prehearire order.
The availability of a cocprehensive bibliography and data bank, as well as the opportunity to file cross-statements of position, submission of questions to be asked by the Comission if an oral hearing is held, and requests for information from federal agencies under the Freedom of Information Act (5 U.S.C. Sec. 552),
were deemed sufficient to make necessary information reasonably available (Tr. 22).
The notice of proposed rulemaking provided that the "Ccamission's Staff will empile a full bibliography on the subjects relevant to the proceeding which will be made available to the public at an early stage of this proceeding."-
An information sheet was supplied at the prehearing conference which indicated that the following bibliographies are being unde available:
"NRC is contributing an extensive bibliography on the subject of waste disposal, Radioactive Waste Processing and Disposal, which includes TID-3311 plus supplements published between 1958 and 1980. This multi-volume bibliography will contain 19,000 refer nces from the Nuclear Science Abstracts and Energy Data Bases mdexed at Oak Ridge National Laboratory, Technical Informa-tion Center (OFNL, TIC) from the late 1950's up to Novenber 1979.
N omni.ssioner Bradford dissenting.
C 2_/44 FR 61374.
" DOE's Bibliography on waste subid.tte.1 under cover letter from Cmer F. Brown, Office of the General Counsel, DOE, to Marshall E.
Miller dated January 18, 1980. m is bibliography contains 11,922 references from the Nuclear Science Abstracts, The Energy Data Base, and two of the Ecological Scienceq/ nformation Center's Data I
Bases indexed from 1967 to later 1979."2 In addition, the Cocmtssicn stated that a data bank would be maintained and made publicly available, covering relevant infonnation on waste storage and disposal. The data bank will include the IRG Report, the background material the IRG collected in preparing the report, the Generic Enviwwental Inpact Statement on Waste Management being prepared by DOE, and a collection of other principal works to be conpiled by the Staff. The information sheet described the following data bank documents, in additicn to the extensive bibliographies:
"Ihe NRC Databank of documents related to nuclear waste storage and disposal as referenced in 44 Fed. Reg. 61372 will be located in the Conmission's Public Document Room (PDR) at 1717 H Street, N.W.,
Washington, D. C., and will include the following sets of documents:
1.
Regular collection of orders, issuances, subnissions, corres-pondence, etc., generated by or camunicated to NRC and directly related to PR 50, 51 (44 Fed. Reg. 61372).
2.
Collection of technical documents and reports containing
' relevant information on waste storage and disposal' compiled by the NRC staff (44 Fed. Reg. 61374), including:
a.
The Report by the Interagency Review Group on Waste Management, TID-29442.
b.
The Department of Energy's Draft GEIS on Waste Manage-ment.
'Other principal wrks' -- estimated at 130 or more c.
documents.
3.
Collection of an estimated 300 technical documents and reports referenced in the DOE submission. There is expected to be overlap between this set of documents and the documents in Item #2."i/
3_/ r. 24-26.
T b/r.23-27.
T
. A nu:ber of participants stated that it was a serious hardship to then to have data bank documents available only in the Washington, D. C. public document room (Tr. 28-43). The NRC Staff and DOE have identified approximately 130 core documents which are reasonably necessary to enable participants to make meaningful contributions to this proceeding (Tr. 38). DOE presently maintains 10 public document room in major cities regicnally around the country (Tr. 37, 40-41, 43-45, 59-56).
It was agreed that both DOE and NBC Staff will make available at the 10 regional offices of DOE both the core documents which they have identified, as well as additional docunents which are relevant to the subject of waste management.
A list of such principal documents and the locaticn of the regional document rocms will be mailed to Full Participants by the Secretary of the Ca: mission, after the lists have been filed by DOE and the Staff, respectively.
The California Energy Resources Conservation and Development Cocmission (CEC) filed a motion for reconsideration of the hearing schedule, requesting that the sixty-day period for preparing and filing position statements not ccxmence until after the resolution of certain procedural questions which it had asserted. These procedural issues were described by CEC as (1) the Cormission itself should preside over this rulemaking, or designate a ccrimittee of two or more Ccnuissioners to conduct this proceeding, and (2) that the Cocmissicn should present as its csn witnesses experts from a broad spectrum of disciplines, views and interests to mediate the technical issues presented by this rulemaking. An order was also sought certifying both issues to the Cocmission. This motion is denied.
The Comnission carefully considered and described the procedure it wished to follow in its notice of proposed rulemaking (44 FR 61372). As there stated, 'The Cmmission has chosen to s:: ploy hybrid rulemaking procedures for conducting this
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proceeding."
A' presiding officer was named whose " principal responsibility will be to monitor the early stages of the proceeding for the ramdnsion, and to assist the Cocmission in conducting the later porticns." The Ccqmission has thus clearly exercised its plenary po u r to establish the form and procedures to be followed in this rul making. The Participants are given an opportunity to take part in this rulemaking proceeding in carpliance with its own established framework and procedures.
Such participaticn does not extend to a challenge or attack upon the precedures thmselves, whether in the guise of motions for reconsideration or requests for certification of issues.
As an outgrowth of the CEC notion described above, a nunber of Participantsb!
also requested that the NRC Staff be imrrM ntely and directly involved in the proceeding either by spons dng a number of witnesses,1! presenting a base case,7/
or stating a position.8/ The Staff took the position that it would not be filing a position becaura it has been directed to consider all sides of the question, and it should not 'ae frozen into taking a particular position.1I The Office of General Counsel also stated that it would not be appropriate for the Staff to td e a position at this time before a carplete record has been ccrnpiled and the various viewshavebeenpresented.El 1/ CEC, States of Illinois, New Hanpshire, Ohio, Vermont and Wisconsin, Safe Haven Ltd. and Marvin L. Lewis.
1/r.65-67,70,90.
T U r. 69, 76, 83.
T 0I
- Tr. 80, 95-99.
1/r.95,100.
T EITr. 100-101, 104-105.
. The various requests made concerning the role of the Staff in this proceeding will be treated as motions stated in the course of the prehearing conference.
Such motions will be denied. Here again some Participants are attenpting to convert a hybrid, legislative type of rulemaking into a confrontational or adversarial type of adjudicatory proceeding.
Several times the Staff was even referred to as a " party", which should be regtdred to take a position the same as other Participants.11/ This viea is erroneous. The Staff is not a party, and cannot be cocpelled to become one, or to be treated as though it were. The Camission again has plenary power to determine the role of the Staff, and its assigned duties of preparing a canprehensive bibliography, or cac: piling a collec-tion of principal works for inclusion in the data bank, do not convert the Staff into a party on a level with Participants. The Participants are offered an opportunity to state their views affirmatively on waste management, and to file cross-statements discussing statenents filed by other Participants. This does not require the Staff to state a position, make a case, sustain a burden of proof, or otherwise be subjected to adversarial conduct.
The Participants will have the benefit of a statement of position by DOE at an early date, which should enable them to focus their statements on significant facts and conclusions. DOE is without question the lead federal agency on waste management, which has produced a substantial data base and extensive studies and analyses of these complex issues. DOE here has forthrightly stated that there is reasonable assurance that nuclear waste from licensed facilities (1) can be safely disposed of off-site, (2) either such disposal or alternatively off-site E r. 97, 101.
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storage will be available before the expiration of certain operating licenses, and (3) nuclear waste can be stored safely until it is disposed of ultfrately.12/
DOE has further agreed to file its statment of position first in this proceeding, and it has stated that such a 400-500 page initial statement will be filed by April 15,1980.S/ Accordingly, the Participants will have everything they contend is needed from the Staff, in a more carplete form from DOE.
The State of Wisconsin has filed a motion for clarification and bifurcation.
Clarification of the Staff's role is requested, for reasons similar to those advanced by CEC. 'Ihis motion is denied for the same reasons.
Bifurcation of the proceeding to require either outside experts s the Staff to submit testimony first is also contrary to the procedure established by the Comnission, and the motion is denied.
LWG-EEI raised two questions regarding the scope of issues.
DOE has indicated that it intends to deal only with the disposal of spent fuel in this proceeding, and that waste from reprocessing should not be considered. UFB-EEI objected to this lindtation. The position of DOE is sustained in this regard, in light of the Cormdssion's suspension of its further consideration of reprocessing spent fuel from camercial reactors, In the Matter of Generic Environmental State-ment on Mixed Oxide Fuel, Docket No. RM-50-5, 42 FR 65334 (1977). This followed the decision of the President on April 7, 1977, to defer indefinitely all civilian reprocessing of spent fuel.
In addition, DCE could not have its stmtement of position ready for filing by April 15, 1980 if it were required to consider the disposal of waste from reprocessing.
SITr. 61.
See also DOE's Notice of Intent to be a Full Participant, pp.1-2.
S/ r. 105, 107.
T The second point raised by IM C-EEI deals with the position taken by the Staff that this proceeding is concerned solely with high-level waste, and low-level waste and uraniun mill tailings are not within its scope (Tr.114). We agree that this proceeding is concerned cnly with the unnagement of high-level waste. That is the issue which the court focused on when these proceedings sure renanded for NRC consideration.E! It is also the sole issue involved in the Conmission's decision to reassess its 1977 findings (42 FR 34391), which dealt specifically with "permanant disposal of high-level radioactive wastes" generated by ccumercial reactors.E/ There is no necessity to explore here other wastes which have been or are being considered by the Conmission in other proceedings.
This rulemaking proceeding does not involve a major federal action having a significant impact on the environment, and consequently an environmental inpact statementisnotrequiredbyNEPA.El The reracking of spent fuel pools in various nuclear reactors is also beyond the scope of this proceeding.EI The ConInission has determined by its Order dated January 29, 1980, that discovery will not be permitted during the first phase of this proceeding.
However, if any Participant has questions regarding the DOE statement of position which genuinely require clarification, as opposed to covert discovery, such E/ ate of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.1979).
St EITr. 114, 120-122.
EITr. 123-124.
EITr. 125.
questions may be addressed to the Presiding Officer for his further consideration.El The safety of transportation of spent nuclear fuel is beyond tre scope of this proceeding, for the same reasons governing the exclusion of low-level waste and uraniun mill tailings, suora. 'Ihis trmsportation issue has been and is being extensively considered in other proceedings.EI The following schedule shall govern the further conduct of the first phase of this proceeding:
The DOE in cooperation with the NRC Staff shall establish within a reasonable time regional data banks in the 10 federal regions of the country. All Participants shall forthwith commnce the prepara-tion of their statenents of position, which will be their principal contribution to the waste confidence proceeding.
By April 15, 1980, DOE shall file and serve its statement of position.
By June 9, 1980, all Participants shall file their statements of position.
By August 11, 1980, all Participants sball file their cross-state-ments regarding statsmnts of others.
EITr. 155.
EITr. 125-132.
By Septecher 10, 1980, all Participants shall file their suggestions as to further proceedings, additional areas of inquiry or further data or studies.
Thereafter the Cmmission with the assistance of the Presiding Officer will issue a seccH prehearing order, setting out the procedures to be followed for the reainder of the hearing.
It is so ordered.
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t Ifarshall E. Miller Presiding Officer Dated at Bethesda, Maryland this 1st day of February 1980.