ML19330A433

Responds to 800220 & 0513 Ltrs Expressing Concern Re Procedures in Proposed Rulemaking on Storage & Disposal of Nuclear Waste.Forwards 800528 Order Re Working Group to Monitor Development of Record

ML19330A433
Person / Time
Issue date:	06/12/1980
From:	Ahearne J NRC COMMISSION (OCM)
To:	Varanini E CALIFORNIA, STATE OF
References
NUDOCS 8007280157
Download: ML19330A433 (1)

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UNITED STATES 8

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June 12, 198r CHAIRMAN Mr. Emilio E. Varanini, III Commissioner and Chairman Nuclear Fuel Cycle Comittee California Energy Comission 1111 Howe Avenue Sacramento, California 95825

Dear Mr. Varanini:

Thank you for your letters of February 20 and May 13,1980 expressing your concerns about the procedures in the Commission's proposed rule-making on the storage and disposal of nuclear waste (" Waste Confidence Rulemaking").

Both of your letters have been placed in the official docket of the Waste Confidence Rulemaking proceeding, I believe that you will find the Commission's Memorandum and Order of May 28,1980 (copy enclosed) to be responsive to your suggestions concerning procedures to assure that the record compiled in the proposed rulemaking will be adequate for a sound assessment of the likelihood that safe waste disposal can and will be achieved.

The Order refers to a worki.ng group established by the Commission to monitor the development of the record.

This group is composed of personnel from offices in close contact with' the Comission itself and should provide a meaningful level of Comissioner involvement at this stage of the proceeding.

As the Order notes, there will be opportunity later on, after the initial filings of the parties have been receive'd and reviewed, to see how well the procedures are working and to adopt further measures that may appear necessary, We appreciate the strong interest you have shown in this proceeding and look forward to your further participation, 1

Si )c'erely,

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\\C John F.

earne Enclosur5:

Memo and Order dated May 28, 1980 9

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UNITED STATES OF AMERICA

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John F. Ahearne, Chairman AD y.

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Peter A. Bradford

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In the Matter of

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y PROPOSED RULEMAKING ON THE STORAGE AND

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PR-50, -51 DISPOSAL OF NUCLEAR WASTE

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(44 Fed. Re,q. 61372)

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.(Waste Confidence Rulemaking)

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MEMORANDUM AND ORDER In the period following issuance of the Presiding Officer's Prehearing Con-ference Order on February 1,1980, the Commissio,n received two motions from parti-

.cipants requesting that the NRC staff be assigned an explicit role with regard to assuring the development of an adequate record in this proceeding. The Natural Resources Defense Council (NRDC) in a motion dated February 14, 1980, contended that the Commission cannot be assured of a complete record in this proceeding unless the staff solicits the views of technica.1 experts.1/ The California

. Energy Commission (CEC) in a mo, tion dated February 20, 1980, suggested that the staff should actively seek out a broad spectrum of views Sh empaneling a body of

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_lf This motion was supported by the States of Wisconsin, Ohio, Illinois, and New Hampshire.

It is opposed by the Utility Waste Management Group and the Edison Electric Institute.

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.:..._ experts to mediate the technical issues presented by this rulemaking. 2]

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The Commission has direc.ted its Office of Policy Evaluation to form a working group to advise the Commission regarding the adequacy of the record to

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be compiled in this proceeding. Th'e working group is composed of personnel from

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,. the Offices of Policy Evaluation, the General Counsel and the Executive Legal

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Director, aild is provided wit}i ~ticfinTcil~iupport by the program offices of

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f uclear Ma'terials Safety and Safeguards, R search, and Standards Development. 3J j

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The7 working grouVQt11?feview the participants' submissions and, after the

. cross-s a emen s are filed, will identify issues in controversy and any areas in tt t

which additional.information is needed.

Depending upon the procedures adopted at that point, the working group.will: assist in~ obtaining this further informa-tion by:

(1) preparing questions to be asked of participants by the Presiding p-t r s s.: : y* =.m v.. % i n _.

=.s Officer or the Commission; or (2) suggesting methods.of obtaining this information

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by other means, including soliciting information from other sources.

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CEC also suggested that the Commission or a committee composed of at least two Commissioners should conduct this proceeding.

As the Presiding Officer noted in his Order of February 1,1980, the Commission carefully considered the procedure it wished to follow and decided to employ hybrid rulemaking procedures and to designate a Presiding Officer who will monitor the early

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" preliminary stage of the proceeding-to' determine what procedures would.be e appropriate for the later stages of this proceeding. Accordingly, after the cross-statements are filed, CEC may again present this suggestion if it believes that this procedure would be appropriate for conducting the next stage of. this proceeding.

-3]--The -working-group-may -a-lso-engage the services of outside experts if it determines that such consultation is needed.

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summaryoftherecord,identifythekey.is' sue *andcontroversies,and' indicate

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how their resolution could affect the Commission's decision.

In addition, the

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Presiding Offi.cer may at.any time.du. ring,.t.h.y'. proceeding identify. areas in.which.

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the workin.g's=roup.could. provide assistanceT.:.The Commission will consider the

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The Commission, believes that at.the.present stage of.the proceeding the

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j establishment of this_wo.rking. group ade.quately. addresses the concerns expressed

_in, the, motions. refe.rr.ed..to.aboye,._ Many issues may be resolved. by the. participants'

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position papers and cross statements, thus. obviating the need for additional.

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expe--t opini.ons on those issues.s..ccording}y,,the Commission believes it would A

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I be, premature to soligf t. expert opinion..at. this time.

After these documents.have..

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been fil.ed..the working. group.will.b'e able to.Sentify the important and contro-

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versial issues and then to determine whether the special participation by experts as urged b) NRDC and CEC would materially clarify particular issues or disputed evidence. y Insofar as.the.J.RDC.and. CEC. motions l. request Commiss, ion action other.than:.

,.t that described in this Memorandum and Order, those motions are denied.

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l Commissioner. Bradfo.rd would have. preferred that the staff v.i.ews on tae sub-c....e

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stantive issues.be:. subject.to. public, scrutiny.

He also would have preferred that

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the Commission undertake the service.of all filings in this case.

y To a..large. extent,cthe.natur.e.of. participation by non-participant experts, should 'it be found necessary, will be determined by the issues they would address. Thus, CEC's suggestion for technical roediation is also premature at this time..

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It is so ORDERED.*. 'l."

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For the Comission 1

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MMUEL J. C LK Secr.etary of the omission l

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- Dated at Was.h.in ton D.C..

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l this 28th day of May, 'l980. -

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STATE OF CALIFORNIA-THE RESOURCES AGENCY EDMUN) d. SCWN JR., Governor

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Dear Chairman Ahearne:

M As a member of the California Energy Commission (CEC), a participant in the nuclear waste confidence proceeding, and as presiding member of the CEC's Nuclear Fuel Cycle Committee, I am concerned that this important investigation be conducted in a manner permitting full public participation and a com-plete and coherent record.

Recent developments in the proceeding appear to jeopardize achievement of these goals.

Moreover, these developments seem to depart from the expressed intent of the Commission, and threaten to erode public confidence in this inquiry.

On October 25, 1979, the Commission issued its Notice of Proposed Rulemaking in this matter.

(44 Fed. Reg. 61372.)

There,. recognizing the complexity of this proceeding, the Commission actively solicited the suggestions of all in,erested parties regarding a variety of questions, including t

procedural issues.

(See 44 Fed. Reg. 61373, 61374.)

In particular, the Commission specified that notices of intent to participate should include discussion "of any special matters or concerns sought to be raised."

The Commission also stated it was "considering whether additional procedures should be employed" for the hearing.

In response to the notice, the CEC filed a notice of intent to participate which raised, among other matters, two procedural issues.

First, we suggested that the NRC should' conduct this rulemaking itself, or delegate it to a committee of two or more commissioners, rather than leaving it to some subordinate body.1/

Second, we urged the NRC to actively seek out a broad spectrum of views by empaneling a body of experts to " mediate" the complex technical issues presented by this rulemaking.2/

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The CEC conducts all its hearings-in this manner, and has found that it promotes informed decisionmaking.

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Scientific " mediation" is an issue' ' identification tech-

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Technical experts on both sides'o'f'a-controversy confer-

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and then publish a statement describing where they agree'and disagree.

For issues where disagreement exists, the (cont.)

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February 20,c1980 Page 2 These questions remained unresolved (indeed, until a prehearing conference was held on January 29, unacknowledged)

At that time, we again raised our concerns in a prehearing 1980.

conference statement and related motion.

In addition, we asked the hearing officer to certify both issues to the NRC 7

itself, where such fundamental matters should be resolved.

Many states and other parties supported our motion.

Three days later, on February 1, 1980, issued a prehearing'conferenc'e" order'that,the hearing officer summarily rejected our motion with respect to both theseamong other things, matters.

for certification.Moreover, the order' seemingly ignored our request Most disturbing of all, however, was the hearing officer's apparent refusal to even consider the merit of our suggestions.

The order instead suggests that partici-objections or suggestions. pants in this rulemaking are precluded from raising In the words of the order, the procedures themselves."" participation does not extend to-a challenge Such an order severely-limits meaningful public participation and the' ultimate credibility of this proceeding.

The NRC cannot expect parties to keep silent when they perceive funda-mental procedural. issues related to this hearing.

If parties are' precluded from. voicing such concerns precisely because they are significant, suffer.

the inte'grity of the hearing process will

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We' firmly believe the hearing officer has misunderstood the directions of the Commission.

The Commission's Notice of Proposed Rulemaking invited parties to make exactly the type of suggestions we have raised.

This direction, as well as the importance of this:rulemaking, would consider these procedural issues. suggests the Commission It is regrettable that ihe hearing officer has refused to consider these_particular suggestions.

ourselves believe the merit of these proposals is clear.Many parties including are convinced that the procedures we suggest would focus this We statement. sets forth the respective positions of each side and any suggestions for resolving the dispute.

This technique was i

1 used successfully.in Sweden to define issues similar to those presented in this rulemaking.

For a more detailed description-

) QN of the technique, see Nancy E. Abrams and R. Stephen Berry, c:.

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" Mediation:

A Better Alternative to the Science Court," Bulletin of the Atomic Scientists, April 1977; and Nancy E. Abrams i

" Nuclear Politics in Sweden," Environment, May 1979.

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M John F. Ahearne, Chairman Nuclear Regulatory Comission February 20, 1980 Page 3

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proceeding on the important issues while also ensuring a complete and im-partial record.

In its Notice of Proposed Rulemaking to actively participate in this proce,eding.the Commission indicated its desire order illustrates the problems that may result from participation.

The precise issues-that wil1 be-addressed in the ceeding.

this stage is necessary to ensure that the parties will matters thit the Commission believes are necessary for its decision.

question in this proceeding is the NRC's confidence.Moreo of course from a rev,iew of a lengthy record developed by a sub Rather, the Commission itself, or a committee of the commissioners direct the proceeding and the issues it addresses.

, should The second procedure's'uggested by the CEC, mediation of the issues

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balanc'ed panel of technical experts, would also result in an expeditious focusing of issues.

putes not really material to the Commission's ultimate decis the same time would guarr, tee that the decision is based on a compre record.

This procedure has also been used elsewhere with considerable success, most notably b waste disposal issues. y the Swedish government in its review of nuclear

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cern to you also and that they can be resolved.It is my hope th If I can be of further

. assistance in explaining the CEC's suggestions in greater detail, please do not hesitate to contact me.

S'

erely, cc:

Commissioner Hendrie M

f Commissioner Gilinsky i

. Commissioner Kennedy

p MD Commissioner Bradford MILIO E. VARANINI, III Commissioner and Chairman Nuclear Fuel Cycle Committee h

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$TAff. F CAUFcRNIA-THE RESOURCES AGENCY EDMUND G. BROWN JR., Conrnor CAllFORNIA $NERGY COMMISSION

• 1111 HOWE AVENUE SACRAMENTO, CAUFORNIA 95825 May 13, 1980 Mr. John F. Ahearne, Chairman Nuclear Regulatory Coninission 1717 H Street, N. W.

Washington, D. C.

Dear Chairman /hearne:

On February 20, 1980, I wrote to you expressing my concern about the procedures being used in the nuclear waste confidence proceeding.

As that letter states, the California Energy Commission (CEC) is primarily cencerned with ensuring the active participation of the NRC commissioners in the proceeding rather than delegating the matter to a hearing officer.

To date, I have not received any response to my letter.

The extraordinary nature of this proceeding necessitates the extra-ordinary procedure of having the Commission or a committee of com-missioners directly hear this case.

Uncertainty over the disposal of radioactive waste is one of the major impediments to increased use of nuclear energy.

The central issue before the Commission is their confidence that this uncertainty will be resolved.

Obviously, this determination is fraught with complex policy judgments involving the most fundamental and unprecedented questions of continuing societal risk.

Furthermore, it is virtually impossible to separate the technical issues involving nuclear waste disposal from these difficult policy questions.

Even now, however, the parties have received no guidance from NRC on what is their standard for confidence.

Thus, for this proceeding to have any real focus, the commissioners themselves must preside and make the necessary policy decisions.

The recently issued United States Department of Energy (DOE) Statement of Position on the Waste Confidence Rulemaking underscores the need for direct Commission involvement.

That statemer.t shows that the national nuclear waste disposal program is at a crossroads.

The future course of that program as proposed by DOE is based upon their assessment of what is sufficient confidence for waste disposal.

The NRC commissioners through their assessment of confidence will never have a better oppor-tunity to provide the needed direction to federal waste. disposal plans.

I am frankly surprised at NRC's apparent reluctance to use this pro-7*

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Chairman John F. Ahearne Page,

ceeding for a meaningful evaluation of nuclear waste disposal activities.

A comparatively small amount of Commission time invested now in this proceeding could forestall many more years of dispute over waste dis-posal.

I trust that you will give this matter your personal attention.

I hope to hear from you soon.

Sincerely, h

N W

EMILIO E. VARANINI, III COMMISSIONER AND CHAIRMAN NUCLEAR FUEL CYCLE COMMITTEE cc:

Commissioner Joseph M. Fendrie Commissioner Victor Giiinsky Commissioner Richard T. Kennedy Commissioner Peter A. Bradford California Congressional Delegation Editorial Board - Nucleonics Week Editorial Board - Washington Post Senator Gary Hart Congressman Morris Udall s

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