ML20137N082
| ML20137N082 | |
| Person / Time | |
|---|---|
| Issue date: | 09/06/1985 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8509180504 | |
| Download: ML20137N082 (169) | |
Text
h hf (( hhhhhhphph(h[phthph h )p h h pk TRNG11' ITAL 'IO: / Doctroent Cbntrol Desk, 016 Phillips 3% ADVANCED COPY 'IO: / / he Public Document Ibczn '
cc: C&R FROM: SDCY OPS BRANCH tac .
M -
papers)
Attached are copies of a Comnission meeting transcript (s) and related meeting doctanent(s) . Wey are being forwarded for entry on the Daily Accession Idst and placement in the Public Document Bocxu. No other distribution is requestod or required. Existing DCS identification numbers are listed on the individual doctrnents wherever known.
Meeting
Title:
Mu/ u-/ . N den- 4' O 8 $4, dzi CNLU.
h, Eudl<b$ ?? /lh blL M /Y) D f i~< -]
()
/ V Meeting Date: 9 /6 fft- Open X Closed .
/ .
DCS Cbpies (1 of each checked)
Itan
Description:
Copies Advanced Original May Duplicate To PDR , Dccrent be Dup
- Copy *
- 1. TRNGCRIPT 1 1
. When checked, DCS should send a ,
c:py of this transcript to the .
LPDR for: , *
(1)fAs "+/ L$LL
- 2. n $ttT~t tj_ / $ l
- 3. $
- 4. )
(PDR is advanced one copy of each doctznent,
- Verify if in DCS, and two of each SBCY paper.)
- Change to "PDR Available."
8509180504 850906 PDR 10CFR pg PT9.7
$ $ b bb l b bbb b bb lYblYbbI i blYlk
- 9/6/85 - Oral Presentations on Timing of DOE's Preliminary Determination on Suitability of Sites for Development i .as Repositories (PUBLIC MEETING)
. Attachments
'1. Testimony _of Del' White and'Ron Halfmoon j 2. Views of the Yakima Indiap Nation
~3 . Testimony of Gregg S. Larson State of Minnesota
- 4. Statement of Booth Gardner, Governor
- State of' Washington
- 5. Comments by STAND AND POWER
- 6. Statement of Edison Electric Institute
'l
?
'I 4
1 4
4 i
i 1-
C. ORIGINAL UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of:
CCMMISSION MEETING Oral Presentation on Timing of DOE's Preliminary Determination on Suitability of Sites for Development of Repositories (Public Meeting) Docket No.
f' Location: Washington, D. C.
Date: Friday, September 6, 1985 Pages: 1 - 126 ANN RILEY & ASSOCIATES Court Reporters
' 1625 I St., N.W.
g Suite 921 Washington, D.C. 20006 (202) 293-3950 N
?
1 D 1 SC LA I M ER 2
3 4
5 6 This is an unofficial transcript of a meeting of the 7 United States Nuclear Regulatory Commission held on Friday, 3 Septerter 6,1985 in the Commission's office at 1717 H Street, 9 N.W., Washington, D.C. The meeting was open to public 10 attendance and observation. This transcript has not been 11 reviewed, corrected, or edited, and it may contain
- 12 inaccuracles.
13 The transcript is intended solely for general 14 informational purposes. As provided by 10 CFR 9.103, it is 15 not part of the formal or informal record of decision of the 16 matters discussed. Expressions of cpinion in this transcript 17 do not necessarily reflect final determination or beliefs. No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument centained herein, except as the Commission may 21 authorize.
22 23 24 25
_ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ - __- . _s
1 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
3 ORAL PRESENTATION ON TIMING OF DOE'S PRELIMINARY 4 DETERMINATION ON SUITABILITY OF SITES FOR DEVELOPMENT OF REPOSITORIES 5
6 PUBLIC MEETING 7 .
Room 1130 8 1717 H Street, N.W.
Washington, D.C.
9 Friday, September 6,, 1985 10 The Commission met, pursuant to notice, at 11 9: 40 a.m.
12 ,
COMMISSIONERS PRESENT:
13 NUNZIO PALLADINO, Chairman of the Commission 14 THOMAS ROBERTS, Commissioner JAMES ASSELSTINE, Commissioner 15 FREDERICK BERNTHAL, Commissioner LANDO ZECH, Commissioner 16 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE:
17 J. HOYLE 18 M. MALSCH B. RUSCHE 19 R. HALF MOON D. TOUSLEY 20 K. GOVER T. LEHMAN 21 M. MURPHY S. FRISCHMAN 22 P. SPURGIN D. PROVOST 23 C. SINDERBRAND D. BERRICK 24 L. MILLS J. SILBERG 25 B. OLMSTEAD H. MILLER R. BROWNING
IA 1 PROCEED INGS 2 CHAIRMAN PALLADINO: Good morning, ladies and 3 gentlemen. The purpose of this meeting is to have the 4 Commission hear the views of representative of state, 5 Indian tribes, environmental groups, industry, other 6 interested segments of the public, and the Department of 7 Energy, on the proposed timing of DOE's preliminary a determination of site suitability for a high-level 9 radioactive waste repository.
10 This meeting, which was requested by Commissioner 11 Roberts, will help the Commission to decide on the course 12 of action for dealing with the change in DOE's position on 13 the earlier agreement between NRC and DOE regarding this 14 timing.
15 As most of you will recall, last year, on June 22, 16 1984, the Commission met with DOE to discuss and approve 17 DOE's repository siting guidelines. At that meeting, the 18 Commission also listened to representatives from many of 19 the same groups we have with us today. Among other things, 20 the matter of timing from the preliminary determination was 21 discussed.
22 Subsequently, on July 10, 1984, the Federal 23 Register Notice was published on NRC's final decision 24 regarding DOE's siting guidelines. The notice stated that 25 at the June 22 meeting the Commission and DOE agreed that i
1 L 1
2 I the preliminary determination should be made after 2 completion of site characterization and not at the time of 3 site nomination and r'ecommendation.
4 Since that time, DOE has taken the position that 5 the preliminary determination should be made'before 6 completion of site characterization. This position is 7 reflected in DOE's mission plan which is before Congress B for approval.
9 As noted earlier, the Commission is considering 10 the course of action it will take in dealing with the 11 change in DOE's position on the preliminary determination 12 timing.
- _ 13 Before coming to a final decision, it will be 14 helpful to obtain the views of our various speakers this 15 morning. Each representative will be allowed five minutes 16 to present his or her views, and in advance I would like to 17 express the Commission's appreciation for your willingness 18 to come here and be with us today.
19 Are there any additional remarks by other 20 Commissioners?
21 COMMISSIONER ZECH: No.
22 COMMISSIONER ASSELSTINE: No. -
23 CHAIRMAN PALLADINO: If not, then let me turn to 24 our first speaker, Mr. Ben Rusche from DOE. If you would 25 Join us at the table, Ben, we would appreciate it.
l
3 1 MR. RUSCHE: Mr. Chairman, members of the 2 Commission, I appreciate the opportunity of meeting with 3 you this morning to discuss the timing of the preliminary 4 determination'that is required by the Nuclear Waste Policy 5 Act.
6 I recall our discussion on July 28 in which this 7 subject was discussed at some length. I think it necessary 8 this morning for me to only briefly reiterate that 9 discussion, and that is my purpose. ,
10 It appears to me that most people will agree that 11 the act does not specify the time when this determination 12 should be made. I think there is no better evidence of 13 that fact than that we are having the meeting this 14 morning. If it was clear when the determination should be 15 made, we all would be in complete agreement and would be 16 following that provision of the act.
17 We would hold the view that lacking that precise 18 specification in the act, the act in effect leaves that 19 determination, timing, to the discretion of the Secretary 20 and it is in that mode that we have continued to operate.
21 Again, I think most people who have looked at the 22 issue would agree that the matter is not specifically 23 related to safety, and that you and we are charged v.. der 24 the act to assure the safety and health of the public and 25 the environment by complying with all of the rules and i
l l
l - -
4
! I regulations of the NRC; by complying with the standards and 2 regulations of the EPA, and any other Federal and state 3 bodies that have applicable regulations.
4 In that sense, we are a fully-regulated activity, 5 Just as if we were a private entity, and the preliminary 6 determination is not a factor in whether or not and to what 7 extent we meet that consideration.
8 It seems to me that that leaves us with the view 9 that the preliminary determination is a management or 10 programmatic decision and is related to how we conduct the 11 program and manage the resources, therefore.
12 Thirdly, I would try to raise the question for 13 your consideration as well as ours as to what the purpose 14 of the preliminary determination is. Again it is unclear 15 in the act as we read it.
16 We have read your words. We have had 17 correspondence from both Houses of Congress. We have read 18 the assessment, the recent staff assessment of the Office 19 of Technology Assessment. We have heard many views from 20 the industry. We had many comments in the 20,000 or so 21 separate sets of comments that were received concerning the 22 environmental assessments.
23 In short, we come to the conclusion that the 24 purpose of the preliminary determination is to assure 25 reasonableness in our selection of alternative sites for
5 I characterization and consideration eventually in the 2 environmental impact statement and in our application to 3 the Commission for a construction authorization.
4 We believe its purpose is to add assurance that 5 the three sites that we select for characterization, for 6 which we are going to expend a sizeable sum of money, have 7 a high probability of being found acceptable.
8 You and your staff and many members of the public 9 have asen the evaluation that we have done thus far as 10 depicted in our draft environmental assessment, and we have 11 all come to the conclusion -- I say "all," at least your 12 staff and our staff have -- that none of the nine sites 13 that are being considered for the first repository do we 14 find a basis to disqualify. That is, all nine of the sites 15 remain not disqualified in our consideration.
16 So our objective, then -- for this discussion --
17 is to look at the reasonableness argument. It obviously 18 could be made -- that is the determination could be made --
19 before we select sites for characterization, during the 20 time we are characterizing at some intermediate, 21 indeterminate point, or after site characterization -- and 22 I would only notice that after site characterization is a 23 very imprecise point -- and that we will continue gaining 24 information on the sites perhaps long after we have filed 25 an environmental impact statement and construction
6 I i
! I authorization with you.
2 Whatever point in the process is selected, it 3 should be reasonable, we believe, from the standpoint first 4 of the reading of the act and, second, from overall program 5 implementation.
6 In terms of reading of the act, we believe the act 7 requiros the Secretary to find that the sites nominated are 8 suitable for site characterization, and I think that is 9 straight-forward.
10 The act does not specify any finding to accompany 11 the recommendation of sites to the President for 12 characterization. A preliminary determination that sites 13 recommended to the President for selection for 14 characterization are suitable for development as 15 repositories on a preliminary Easis vould provide a basis 16 for the recommendation decision that would otherwise be 17 missing. And that is the course that we have indicated we 18 plan to take.
19 The requirement in Section 112 (b) ( 1 ) e ) 2 ) to
- 20 include an evaluation in the environmental assessments of 21 whether the sites are suitable for development as 22 repositories provides a basis upon which to make that 23 preliminary determination. It is on that basis that we 24 expect to make it, and you recall, that is the provision 25 that requires us to judge the sites in terms of the then
\' f
7 I available data.
2 For NEPA purposes, a preliminary determination at 3 the time of recommendation will add confidence that the 4 alternative sites considered in the EIS later on or, 5 indeed, reasonable alternatives.
6 In the second place, reasonableness in terms of 7 overall program implementation suggests:
! 8 First, that the preliminary determination must be 9 made on a site, that is at the time determination, "Not to unsuitable." All nine of the sites fit that category as of 11 the present time, that is based on our data and the draft 12 environmental assessments.
1: The preliminary determination must be made on 14 three sites, and the act itself requires us to select three 15 sites for characterization.
16 We have taken the view that that specification in 17 the act provides a considered balance between the need to 18 assure technical quality and safety, and at the limit that 19 is absolutely assured to the extent that human beings can 20 do it by compliance with your regulations and EPA's
{
21 regulations. The balance between technical quality and 7
22 safety and the need to proceed expeditiously in a cost-23 effective manner.
l 24 Therefore, in the mission plan we have indicated l 25 in response to your objection -- that is Objection 5 shown l
I- - -- - -- - - _ _ . . . ._. _ . . _ , _ . _ _ _ . .
8 I 1 on the Federal statements -- that we intend on the basis of l 2 these facts or these views, that we intend to make the ;
3 preliminary determination at the time we make the 4 recommendation to the President for selection of sites and :
5 characterization.
i 6 I believe this is consistent with the Act; with 7 NEPA; with the CEQ quidelines on EIS; your rules, ;
8 particularly Part 50 -- Part 51, excuse me -- and Part 60, f 9 and it certainly is consistent with the guidelines, which !
10 was the subject of our discussion first about a year and-a- [
?
11 half ago. , !
12 Mr. Chairman,'that concludes my comments. I will ;
-- 13 be glad to take questions now or, if you would prefer, even [
~
14 later on in the discussion, however you would prefer to !
15 handle it.
16 CHAIRMAN PALLADINO: Well, I think it might be l 17 appropriate to have questions now, unless Commissioners ,
18 feel otherwise.
19 COMMISSIONER ASSELSTINE: That's fine with me.
20 CHAIRMAN PALLADINO: All right.
21 Well, Ben, let me ask you a question. There have 22 been identified for us several alternatives, one of which .
23 is, we might not take any action. Another one is, wait 24 until the Congress decides on the mission plan before 25 taking a course of action. The third one would be, this is i i
9 0 1 a major revision that ought to come back for Commission 2 review in view of the fact that there was an important 3 consideration in our concurring in deciding guidelines.
4 Would you comment on what the impact of each of 5 'these might be?
6 MR. RUSCHE: Would you mind providing me the order 7 so that I can be sure of commenting?
8 CHAIRMAN PALLADINO: First, suppose we took no 9 action. What would that imply or impact? ,
10 MR. RUSCHE: Well, my interpretation of your 11 taking no action would be that based on the conversations 12 we have had, that the uncertainty and perhaps confusion --
13 if that's the right word -- of our discussion a year ago 14 has been clarified and you understand that what at least 15 some readings of those discussions would have led us to did 16 not, and you understand why we have taken this course of 17 action and we would proceed.
18 I think the down-side, if any, is that there may 17 still be some who would care to refer to that word in the 20 record that would appear to be a failure to fully comply 21 with every one of those details, even in spite of this 22 discussion, and therefore would perhaps leave some cloud on 23 the guidelines.
24 I am not in a position from a legal standpoint to 25 say whether that is serious or not. From a practical s
l I
10
'i i standpoint it doesn't seem serious to me, but it might be 2 otherwise.
3 The second one was?
4 CHAIRMAN PALLADINO: Waiting for Congress to act.
5 MR. RUSCHE: We have several sets of hearing 6 before Congress. I am sure this is going to be a subject 7 that will be discussed ir. each of those hearings.
8 I rather doubt that the Congress will take an 9 action which will have the effect of law. That is, that to Congress would adopt amendments to the NWPA. Now, I may be 13 wrong but I would be surprised if that is the case, and I 12 suspect that what will come out of those discussions will 1 - - 13 be a recognition that the issue is unclear in the act and
' - 14 that in the limit it is the discretion of the Secretary to 15 make the determination at a particular time and for a 16 purpose, and that is where the matter will reside.
17 So that will not, in effect, resolve anything in 18 your mind if there is a question remaining.
19 CHAIRMAN PALLADINO: The third one that the 20 Commission is considering is whether or not we should ask 21 for the deciding guidelines to come back so we could review 22 the situation and determine whether or not we concur in the 23 change.
24 MR. RUSCHE: I think we agreed last year that any 25 time you thought anything we did deserved that i
11 1 consideration, we were going to make it with you. As to 2 whether that is an appropriate course is obviously 3 something you have to make.
4 My own opinion would be that the discussion of 5 last summer when the guidelines were adopted was a fairly 6 clear recognition that this was not a safety issue. We 7 agreed to delete from the guidelines provisions that would a have dealt specifically with this subject, and it was on 9 that point of discussion in which there were conditions to attached -- at least as some of us read it -- that seemed 11 to be perhaps not fully met.
12 The conditions were not attached, though, from a 13 safety standpoint, I don't believe. Therefore, I would say 14 if you elected to reconsider the guidelines, it would be on 15 a procedural basis or an administrative basis, and not on a 16 safety basis.
17 If you were to elect that course, we would 18 obviously submit a request for modification. But it's 19 interesting that the modification would not have anything 20 to do with the guidelines because there is nothing in the 21 guidelines that we would modify.
22 CHAIRMAN PALLADINO: Ben if we took no action, 23 you implied that there might be a problem on an 24 uncertainty. If the "No action" were accompanied by a 25 statement that said this is a minor issue with regard to
12
! I approval of the siting guidelines, would that help?
2 MR. RUSCHE: Yes.
3 CHAIRMAN PALLADINO: I'm not indicating which way 4 we are going. I don't think we know.
5 MR. RUSCHE: Well, I'm sure we don't know.
6 CHAIRMAN PALLADINO: Okay, other questions? Tom?
7 Jim? .
8 COMMISSIONER ASSELSTINE: Just one quick one.
9 Ben, you said the act does not specify when the 10 preliminary determination is to be made, in your view.
II Accepting that view just for the moment for the sake of 12 argument, is there anything in the act that would prevent
-- 13 an agreement that the determination should be made after 14 rather than before site characterization, or at least after 15 site characterization is substantially complete if the 16 Commission were to determine that that is what is necessary 17 in order to assure an effective site screening and site 18 selection process?
19 Assuming for the moment that the Commission makes 20 that Judgment, is there anything in the act that precludes 21 that kind of an agreement?
22 MR. RUSCHE: I think only logic. That is, I 'o 23 not believe there is anything written in the act that would 24 preclude that. In fact, if the statement I made with 25 respect to the exercise of discretion by the Secretary is i
--.2.-
_ . - - - - - - - . ,_ 4 -
13 O 1 true, then that discretion is discretion and I think we 2 could make it when we conclude it is appropriate, and that 3 is what we have tried to do.
4 COMMISSIONER ASSELSTINE: I don't have any other 5 questions.
6 CHAIRMAN PALLADINO: Fred?
7 COMMISSIONER BERNTHAL: I have a question simply 8 of background here, and I believe I thought at least at one 9 time I knew the answer. But I would like somebody here, 10 perhaps Ben if you can, to review it for me.
11 What did Congress say,.or what did they not say, 12 in the conference report on this matter? Was there 13 anything contained in the conference report or did they 14 agree to accept the Senate interpretation? Or was there 15 nothing said about that?
16 I should recall, but I don't.
17 COMMISSIONER ASSELSTINE: There is no conference 18 report.
19 MR. RUSCHE: The Commissioner is correct. To the 20 best of my knowledge, there is no conference report. That 21 is one of the things that many of us have yearned for so 22 that we had a clearer picture of what the intent was.
23 As I understand what happened -- and maybe
~24 Commissioner Asselstine will be as close to it or closer 25 than I was -- that at the time when the act was literally l
l
14 1 being born, in the last moments, a House version that had 2 been adopted by the House, cam to the Senate and after a 3 good bit of discussion essentially a substitute for the 4 House version -- suggested by Senator McClure -- was placed 5 under discussion, and there remained several unclear issues 6 of which this was one. .
7 I believe there is some dialog that we have record
, 8 of, and much of that is referred to in both the letters 9 from Senator McClure and from Congressman Udall and others, 10 and there are various interpretations of what was meant, 11 what was said. I guess there 1 4 not very much question 12 about what was said but there is perhaps a little bit more 13 question about what was intended.
14 COMMISSIONER BERNTHAL: Okay. So the point is, 15 and I didn't recall, that there is nothing on the record 16 that would assist the court or this Commission in 17 interpreting -- as a matter of law -- beyond what is 18 actually written.
19 MR. RUSCHE: Oh, I believe some of the exchanges --
20 COMMISSIONER ASSELSTINE: No, that's not right.
21 MR. RUSCHE: -- some of the exchanges are on the 22 record. .
23 COMMISSIONER ASSELSTINE: That's right.
24 MR. RUSCHE: There Justwasnoconferencereporth 25 so to speak.
i l
g 15 1 COMMISSIONER ASSELSTINE: That's right, yes. This 2 bill did not go through the normal process of having a 3 Senate-passed version, a House-passed version, going to 4 conferedce, having the conferees meet, issue a conference
'5 report, and then have the conference version going back to 6 the House and the Senate.
7 It was at the last end of the session. There was 1
8 an effort to simply impose a substitute. But there is a 9 legislative history. The legislative history consipts of 10 statements by the floor managers and other participants in 11 both the House and the Senate discussing the provisions.
12 MR. RUSCHE: Yes, that's correct to the best of my 13 knowledge.
14 COMMISSIONER BERNTHAL: So it consists of floor 15 colloquy, essentially.
16 MR. RUSCHE: Yes, that's correct. And subsequent 17 comments on colloquy and so forth.
18 CHAIRMAN PALLADINO: Lando, do you have any 19 questions?
20 COMMISSIONER ZECH: No, just a comment.
21 As you know, Mr. Chairman, I was not a 22 Commissioner during the June 1984 meeting. So I was not 23 involved in that particular seeting nor the discussions 24 that took place there.
25 I have tried to review that and review the issue --
16 r-' .
I 1 a very important issue -- that we are discussing. I have 2 not really made up my mind completely as to my position, 3 but it does seem to me that the issue we are talking about 4 is a matter of timing. It does seem to me that this is an 5 issue that the Congress and Department of Energy have to 6 sort out.
7 Our involvement, of course, is concerning public 8 health and safety and licensing, and we certainly intend to
' carefully and thoughtfully review our regulatory 10 responsibilities as we proceed.
13 But it does seem to me at the moment that our 12 participation should be focused on the public health and l- - 13 safety aspects of it. I think, however, that since there
!' ~
14 has been some confusion in the guidelines and at least I 15 think we would be acting more responsibly to at least try 16 to review what has taken place and perhaps make a more 17 definitive position from the regulatory standpoint, that 18 might at least be helpful in this matter.
19 I think that is probably the position that we 20 should take.
21 CHAIRMAN PALLADINO: All right, any other comments 22 or questions?
23 COMMISSIONER ASSELSTINE: No.
24 CHAIRMAN PALLADINO: Thank you, Ben.
25 MR. RUSCHE: Thank you, Mr. Chairman.
17 1 CHAIRMAN PALLADINO: We have two representatives 2 from Indian tribes, and I was wondering if they would join 3 us at the table at this time. Ron Half Moon and Dean 4 Tousley.
5 Each of you, Mr. Half Moon and Mr. Tousley, would 6 have five minutes. I suggest we proceed with Mr. Half 7 Moon's presentation.
8 MR. HALF MOON: Thank you. My name is Ron Half 9 Moon. I am the program manager for the Nez Perce Nuclear 10 Waste Policy Act program.
11 I am accompanied by Kevin Gover who is the counsel 12 to the tribe on the nuclear waste policy issues.
13 It was intended for the chairman of the New Perce 14 tribe to be here to present the testimony but he was not 15 able to. So, the staff or I will be presenting this. If to there is no objectier., then I will read from our prepared 17 remarks.
18 Mr. Chairman, members of the Commission, we are 19 pleased to have this opportunity to present the views of 20 the Nez Perce tribe which has been designated as an I
21 affected Indian tribe under the Nuclear Waste Policy Act 1
22 with regard to the Hanford site on the matter of whether 23 Section 114 (f) of the act requires the Department'of Energy 24 to conduct characterization activities at potential 25 repository sites before making a preliminary determination l
I 18
' I of the suitability of such sites.
2 The legal issue presented by Section 114(f) is 3 complex and interesting but does not lend itself to a 4 definite answer. The Commission has available on its own 5 legal experts to dissect that issue. However, it 6 undoubtedly will be presented with a larger amount of legal i
7 research on the matter.
8 In our view, the section is ambiguous at best. We i
' wish to focus, therefore, on considerations other than the 10 precise statutory construction of 114 (f) .
11 We would note first that the Department of Energy 12 seems to be reneging on a commitment made to this 13 Commission and to the public that characterization would 14 occur prior to any preliminary determination of 15 suitability.
16 As you well know, the Commission's concurrence --
17 not advice but concurrence -- in the siting guidelines is 18 required by the act. Our reading of the Commission's 19 concurrence decision of July 10 is that characterization 20 must occur before any preliminary determination of i
l 21 suitability. In fact, the concurrence decision cannot be 22 read any other way.
23 If DOE did not agree with the Commission's 24 explanation of the agreement reached in June of 1984, it 25 should have said so.
,. 4
19
' 1 DOE's current position creates at least two 2 significant problems:
3 First, it called into the question the validity of 4 DOE's siting guidelines. Because the Commission must 5 concur in the siting guidelines and because DOE now intends 6 to violate a specific term of the Commission's written 7 concurrence, the validity of DOE's plan of operation is 8 open to question.
9 In fact, DOE has practically asked to be sued on 10 the matter and certainly will be sued.
11 Second, when NRC announced that DOE has agreed to 12 something and DOE much later denies that agreement, public 13 confidence in the process -- including the confidence of 14 the Nez Perce tribe --
is shaken.
15 The only way to minimize the inevitable 16 controversy is to show the public that when DOE and NRC say 17 a certain procedure will be followed, it will be followed.
18 Shifting and contradictory interpretations and agreements 19 undermine the credibility of those agencies and therefore 20 diminish public confidence in the process.
21 From a policy perspective, we believe that 22 characterization prior to preliminary determination is the 23 more sound procedure.
24 Congress must have wanted the preliminary I 25 determination to be a decision of some significance, and if l
l I
20 3 1 the decision is a significant one, it obviously should be 2 made only on the basis of the greatest possible amount of 3 information, d The process of characterization yields information 5 and therefore should proceed significant decisions whenever 6 possible, including thq preliminary determination. In this 7 way, the protectien of public health and safety is better 8 served.
9 Finally, as a practical matter, the Commission and 10 DOE will spare themselves a number of problems by agreeing 11 that characterization will prpeeed the preliminary 12 determination.
. 13 As we have noted, the existing situation invites 14 litigation and is a demerit on the record of the progras.
15 Unlike many problems, however, these are capable of 16 correction. If DOE and the Commission simply agree that 17 characterization will precede the preliminary 18 determination, the problem we have discussed will disappear 19 and no new problems from such a decision are readily 20 foreseeable.
21 We would be happy to respond to any questions you 22 may have. -
23 CHAIRMAN PALLADINO: All right. Thank you, Mr.
24 Half Moon.
25 I am going to suggest we hear from Mr. Tousley and I i
21 I then, if you don't mind, we can have questions of both of t
2 you.
3 COMMISSIONER ASSELSTINE: Good idea.
4 MR. TOUSLEY: Mr. Chairman, members of the 5 Commission, I am Dean Tousley. I am an attorney for the 6 Yakima Indian nation and the tribe has asked me to make a 7 presentation on their behalf this morning.
8 To begin with, I would like to state that we 9 viewed the Commission's final concurrence decision with 10 respect to this matter as absolutely unequivocal. The two 11 sentences which are of greatest interest here are, "At the 12 June 22 Commission meeting, the Commissien and DOE agreed 13 that the preliminary determination required by Section 14 114 (f) of the NWPA should be made after the completion of 15 site characterization and not at the time of site 16 nomination and recommendation."
17 The Commission and DOE therefore agreed that the 18 last sentence containing the statement to the contrary 19 should be deleted from the guidelines.
20 DOE is now taking the position that the first 21 sentence I Just read has no effect. Mr. Rusche has. told us 22 on July 29 and again this morning that it has no effect 23 apparently because it is not based on. safety 24 considerations.
25 He seems to feel that that fact alone dismisses
22 i
! I any interest the Commission might have in that subject.
2 However, the Calvert Cliffs case 15 years ago established 3 quite clearly that it is the Commission's ultimate d responsibility to comply with the National Environmental 5 Policy Act when it engages in licensing actions.
6 The implication of DOE's position with respect to 7 this provision is that the Commission could get an EIS in 8 1991 or '92, or whatever, which considers as alternatives 9 sites which are known at the time of EIS submission to be 10 unsuitable for development as a repository.
u I would like to use a " hypo" to explore this 12 situation a little bit with you. In the reactor licensing 13 situation, i,f your staff came to you with an EIS for a .
14 reactor which stated that, "Four or five years ago when we 15 started to consider this matter, we believed that Sites B 16 and C were suitable alternatives to the proposed Site A for 17 this reactor.
18 "Today, however, we know that Sites B and C are 19 not suitable. Nevertheless, we bring you this EIS with 20 those three sites as the alternatives considered."
21 I submit to you that you would have a very 22 difficult time accepting that EIS as satisfying your NEPA 23 obligations. And that is precisely what will happen if you 24 ar. cept DOE's view of this provision. You will be in a 25 position of having to accept as alternatives sites which
23 I are known at the time that the EIS is submitted to be 2 unsuitable. I say that will not satisfy your NEPA 3 obligations.
4 Then other major point I would like to make about 5 the merits of this decision is that if the meaning is given 6 to this provision which the plain reading of the statute 7 gives, that is that characterization comes first and then a 8 determination of suitability, that provides DOE with a much 9 needed incentive to choose for characterization the best 10 sites it can find.
11 That kind of incentive is sorely missing anywhere 12 else in the regulatory framework of this program at this 13 time. Previously, there was a provision in the EPA's 14 standards, an assurance requirement, which would have 15 implemented an ALARA-type requirement to keep releases from 16 a repository as low as rea,sonably achievable, thus 17 providing incentive to select the best possible sites.
18 This interpretation which we urge on you today of 19 the preliminary determination provision also provides such 20 an incentive. Without it, there is no such incentive. The 21 only standard which DOE seems inclined to comply with is 22 one of suitability.
23 . We submit that determinations of absolute 24 suitability made today in light of the unprecedented 25 uncertainties involved in this program are simply not
24 2 1 reliable enough to provide the adequate assurance that we 2 can end up with a repository site which is sufficient in 3 its isolation capabilities.
4 The additional comparative incentive to pick the 5 best sites possible as well as suitable sites adds 6 considerably to our confidence in that respect.
7 T.he Yakima Indian nation believes that the clear a understanding which was apparent at the end of the June 22, 9 1984 Commission meeting and also in the Commission's final 10 concurrence decision was a very significant matter. It 11 contributed substantially to our feeling that our heavy 12 participation in the Commission's concurrence process was
~
--- 13 well spent and that it yielded important improvements in
~
14 the siting guidelines.
15 If the Commission reneges on this understanding at 16 this time, that will greatly degrade our sense of 17 accomplishment in this regard.
18 We urge the Commission, consistent with the plain 19 meaning of the language of Section 114(f) and its NEPA 20 obligations, to retain the current language of its 21 concurrence decision and make it perfectly clear to DOE 22 that it will require an EIS with suitable alternatives in 23 order to license a repository.
24 I thank you for this opportunity to amplify our 25 position on this matter.
25 1 CHAIRMAN PALLADINO: Thank you.
2 Well, let me ask one question either or both of 3 you can co: ament on.
4 If I understand DOE's position, it is that the 5 purpose of the preliminary determination was to assure all 6 parties that they were going after sites that really had 7 the potential for being suitable, based on the availability 8, of information.
9 Now, if one waits until after characterization, 10 then is this a preliminary decision? I admit it is a more il firm decision, but do you think that is in keeping with the 12 intent as DOE expresses it or interprets it?
13 MR. TOUSLEY: I would say that a determination 14 following characterization would certainly still be 15 preliminary. It would be certainly preliminary to the 16 ultimate decisions by the Commission on licensing as to the 17 suitability of the site.
18 Even the Commission's licensing decisions are 19 going to be preliminary in this program because we won't l 20 know for a long time whether these sites are really 21 suitable.
22 Making the determination prior to characterization 23 is so preliuinary as to be meaningless. They are making 24 that determination in selecting the sites to characterize.
25 It doesn't add anything to that to say, "We preliminarily l
26 5 3 determine that these sites are suitable." They are 2 selecting those sites to characterize. At the end of the 3 characterization period is the time when it's reasonable to 4 make a preliminary determination that they are suitable.
5 CHAIRMAN PALLADINO: Do you have any other 6 comments? .
7 MR. GOVER: Yes. We would pretty much agree with 8 that. As Dean points out, the preliminary determination 9 would appear to be meaningless if it simply means that the 10 three sites that are selected for characterization also are il preliminarily determined tp be suitable.
12 Because the phrase is undefined in the act and 13 seems to have emerged at the last minute during the 14 congressional debate, we have to try to find a way to give
- 15 it some meaning.
16 It seems to me if it is to be a meaningful 17 _ decision -- and we have to assume that Congress didn't 13 intend for it to be unmeaningful -- if it's going to be a 19 meaningful decision, it ought to be made on the basis of 20 the greatest among of information possible.
21 Characterization yields the greatest amount of 22 information and therefore it should occur either after or 23 at least late in the process of characterization. For that 24 proposition, there is some verydirectlegislativehistory, 25 whereas it is very difficult to find any legislative e , .
-r- -. , , - - - - . , - - - - - , - - -,---,r - .~-,w,e--
27 I history that would support DOE's interpretation of the 2 statute.
3 CHAIRMAN PALLADINO: Okay, let me stop there for a 4 mdhent. Tom, do you have questions?
5 COMMISSIONER ASSELSTINE: Just a couple of 6 questions.
7 Ron, let me ask you. The sense I get from your 8 statement was that this agreement was part of the 9 Commission 's concurrence decision , and if that concurrence 10 and the Commission's concorrence role is to be meaningful, 11 if the Department wants to change its view now, then that o 12 has to be done as part of the formal review process for the 13 guidelines. The Department has to request that the 14 Commission re-open the guidelines, at least on this aspect, 15 and make a new decision on whether it still concurs.
16 Is that a fair characterization of the view that 17 you were trying to express? If we don't do that, we are 18 basically undermining our concurrence role and the validity 19 of our concurrence decision, and also calling into question 20 the validity of the guidelines themselves.
21 MR. HALF MOON: The feeling that we've got 22 generally is that we feel that the concurrence decision is 23 of some consequence, and that a reneging by the DOE of that 24 apparent agreement is of some concern to us just as a 25 matter of some confidence in the process.
. o 28 I 1 I think by and large that we are not totally 2 familiar with the procedural aspects of what that means.
3 So from the public image standpoint as we see this obvious 4 disagreement, it is of some concern to us.
5 COMMISSIONER ASSELSTINE: Dean, I want to explore 6 the NEPA question a little more with you. Ben placed a 7 great deal of emphasis on the fact that in his view the 8 preliminary determination was not a factor in the safety 9 decisions, and Commissioner Zech, I think, was trying to 10 make the same point, that what he was concerned about was 11 with safety decisions here.
12 Isn't' that an unduly narrow reading of the 13 Commission's responsibilities? Isn't what we are really 14 talking about here the Commission's licensing
.15 responsibilities which include not only the health and 16 safety responsibilities under the Atomic Energy Act and 17 under some of the authority in the Nuclear Waste Policy 18 Act, but also the environmental review responsibilities 19 that are under NEPA and under the -- as interpreted and 20 modified by the Nuclear Waste Policy Act?
21 Don't we really have to look at the full range of 22 the Commission's licensing responsibilities?
23 MR. TOUSLEY: Yes.
24 (Laughter) 25 MR..TOUSLEY: I would amplify that a little bit.
l I
t
s 8 29
1 COMMISSIONER ASSELSTINE: Yes.
2 (Laughter) 3 COMMISSIONER BERNTHAL: Is this called " Leading 4 the witness?"
5 MR. TOUSLEY: As I hope I made clear in my 6 statement, I do think it goes very deeply to the 7 Commission 's NEPA responsibilities. But it really goes to a the safety responsibility as well.
9 COMMISSIONER ASSELSTINE: Yes.
10 MR. TOUSLEY: By having the incentive I talked 11 about on the quality of sites that are characterized, you 12 are much more likely to end up with a safe site, a 13 licensable site, at the end. That's total'ly apart from the 14 environmental obligations.
15 COMMISSIONER ASSELSTINE: Yes. In fact, let me 16 ask you on the technical side as opposed just to the 17 environmental side, I had a question in my own mind about 18 whether what DOE was proposing here was consistent with the 19 Commis sion 's own technical regulations.
20 When I look at Part 60 and the way Part 60 is 21 defined, defined site characterization, site 22 characterization is defined as the activities that will 23 generate the information needed to determine the 24 suitability of the site for geological repcsitory.
25 It sounds like to me the Commission's already made
30 p_ -
( l the technical Judgment in its regulations that the kind of 2 information from characterisation is the information that 3 is really needed to make a determination on site 4 suitability.
5 Do you see an inconsistency with what DOE has 6 proposed and what the Commission has already said in its 7 regulations is a technical requirement in order to make a a judgment on suitability?
9 MR. TOUSLEY: I think that's exactly right. The to determination at this time is simply that three sites are 11 suitable for characterization, not suitable for development 12 as repositories. ,
_ 13 COMMISSIONER ASSELSTINE: Right. And that's the 14 distinction that's made in our own regulations, I think; is 15 it not?
16 MR. TOUSLEY: I agree, yes.
17 CHAIRMAN PALLADINO: But it doesn't say la preliminary determination.
19 COMMISSIONER ASSELSTINE: It says any 20 determination. It says "a" determination.
21 CHAIRMAN PALLADINO: Well, a determination --
22 COMMISSIONER ASSELSTINE: And it draws a 23 distinction --
24 CHAIRMAN PALLADINO: Read it again, Jim.
25 COMMISSIONER ASSELSTINE: I can read you the whole e,
31 1 definition of site characterization.
2 " Site characterization means the program of 3 exploration and research, both in the laboratory and in the 4 field, undertaken to establish the geologic conditions and 5 the ranges of those parameters of a particular site 6 relevant to the procedures under this part. Site 7 characterization includes borings, surface excavations, i
a excavation of exploratory shafts, limited sub-surface 9 lateral excavations and borings, and in situ testing in 10 depth needed to determine the suitability of the site for a 11 geologic repository" --
i2 CHAIRMAN PALLADINO: Suitability.
13 COMMISSIONER ASSELSTINE: --
"but does not include 14 preliminary borings and geophysical testing needed to 15 decide whether site characterization should be undertaken."
16 So the regulations seem to draw a clear 17 distinction between the kind of limited information that is 18 available now to decide whether to undertake site 19 characterization and the more detailed information you get 20 out of site characterization to decide whether the site is 21 suitable for development.
22 COMMISSIONER BERNTHAL: It sounds like the use of 23 the word " preliminary" -- ,
24 CHAIRMAN PALLADINO: Excuse me. All right, go 25 ahead.
1 32 1 COMMISSIONER BERNTHAL: Well, I was just going to 2 say, it's not sure that you buttressed your case much. I 3 mean,'it refers to " preliminary."
4 COMMISSIONER ASSELSTINE: No --
5 COMMISSIONER BERNTHAL: Wait a minute, preliminary
- 6 borings and if you are carrying out --
7 COMMISSIONER ASSELSTINE: And geophysical testing.
i a COMMISSIONER BERNTHAL: -- preliminary studies --
4 9 COMMISSIONER ASSELSTINE: Needed to decide --
j 10 COMMISSIONER ASSELSTINE: -- whether the site I
11 characterization would he applicable to a preliminary 12 determination.
i 13 COMMISSIONER ASSELSTINE: No, I don't think so.
14 Not a determination of site suitability.
15 COMMISSIONER BERNTHAL: If I can interject a 16 related question, though. What would be left to do, 17 technically and scientifically, after site 18 characterization? That's a question'that I wanted to ask 19 broadly here. What else is there to do?
20 I mean, we have a statement from our legal counsel 21 here, Mr. Cunningham, that indicates -- and I'm trusting l
- 22 his interpretation of the law here, it should be-better 4
23 than mine -- that Section 113 indicates that site 24 characterization is complete when the Secretary considers l 25 that enough data is available to evaluate the suitability 4
. - , , - ,- ,, ,,----w, ,,n-, , , , , . , . , , - y--,,- -,,,--prae,,, -,n,.-, ,- ,-m.w,- --7.,,m,ww-.,,,, we,--e ,g-
33 2 1 for the site for a construction authorization application.
2 That defines, at least according to our legal 3 counsel's definition and a reading of the law, the d
- completion of characterization as being the point at which 5 the Secretary should believe that a construction 6 authorization is in order.
7 What else is there to do?
8 COMMISSIONER ASSELSTINE: Well, I think my own 9 answer would be, what is left to do is then proceed with 10 the licensing proceeding to make a final determination on M whether the site ic suitable for building a repository. .
12 MR. TOUSLEY: I think Mr. Rusche Just said that 13 gathering of information and learning more about the sites 14 does not end even at the time that a license application is 15 submitted.
16 COMMISSIONER ASSELSTINE: That's right.
17 MR. TOUSLEY: That will be an on-going process.
la Even constructing the repository will continue to be a M learning period in this program.
20 COMMISSIONER ASSELSTINE: Yes.
21 MR. TOUSLEY: There really is no way to adequately 22 characterize certain sites because they are so 1,ocally 23 heterogeneous that they are really going to have to mine 24 the site to know what's there.
25 COMMISSIONER BERNTHAL: Well, it just sounds to me
34 D- 1 that the section that Commissioner Asselstine Just read 2 refers to preliminary data gathering.
3 This is not an issue, a reading of the law, 4 incidentally, that I think this Commission is going to 5 settle. We have been advised;by our legal counsel that we 6 should not feel compelled to settle a legal reading of the 7 law on this matter.
a But I have to say that logic, to me at least, 9 seems to indicate that when you have done preliminary 10 technical work -- as the section that you Just read, Jim, 11 seems to suggest -- that at least the use of the word 12 " preliminary" would seem to indicate that that implies a 13 preliminary determination can be made from such preliminary 14 boring data.
15 COMMISSIONER ASSELSTINE: I guess I don't read it 16 that way. Just because the word " preliminary" is used in 17 relation to boring doesn't mean that that applies to a 18 determination on suitability.
19 COMMISSIONER BERNTHAL: Well, there is another 20 section where the word " preliminary" is absent, though, and 21 only " determination" is used.
22 That is the problem here. I think we all agree 23 that the law is less than lucid on this point.
24 CHAIRMAN PALLADINO: Okay, I suggest we try to 25 draw out the people that make presentations to us as much
35 1 as possible, rather than try to express our own views --
2 although I'm sure we can't go without expressing our own 3 views.
4 Lando, do you have a question?
5 COMMISSIONER ZECH: No, thank you.
6 COMMISSIONER ASSELSTINE: Well, I had one other 7 question --
8 CHAIRMAN PALLADINO: Oh, go ahead, Jim.
9 COMMISSIONER ASSELSTINE: -- for Dean. I want to 10 go back to Ben's third basic statement. He said that the 11 purpose in his view of the preliminary determination was to 12 assure the reasonableness in the selection of sites to
- . 13 assure that the three sites which are selected for r 14 characterization have a high probability for success.
t
.15 Are you saying you don't necessarily disagree with i
16 that in terms of the purpose of the preliminary 17 determination, but in your view that purpose is best IB fulfilled and achieved by requiring that the determination 19 be made after characterization because that's the real way f
20 to make sure that the site selection process will function 21 to select good sites that'have a high probability for r
22 making it through the process?
23 MR. TOUSLEY: That's correct. I don't understand l 74 what the statement that the sites are preliminarily :
25 suitable adds before characterization. It's simply a i i f
f
36 1 statement, it's out there. We have the information in the 2 EAs which are the basla for selecting sites to 3 characterize. They simply add the statement that they are 4 preliminar11y suitable.
5 That doesn't add anything that adds any confidence 6 of reasonableness to me.
7 -
COMMISSIONER ASSELSTINE: And that's because we a don't have --
9 MR. TOUSLEY: We don't have the information yet.
10 That's correct.
11 CHAIRMAN PALLADINO: All right. Anything more?
12 MR. GOVER: Mr. Chairman, Just one other things.
13 We have been in touch with the Umatilla Indian tribe, which 14 is the third of the affected tribes, and they asked us to 15 seek your leave for them to submit their own views in 16 writing, assuming the "ommission doesn't resolve the issue 17 today.
18 CHAIRMAN PALLADIJO: All right, we will be pleased 19 to receive them.
20 COMMISSIONER ASSELSTIh7: Sure.
21 COMMISSIONER BERNTHAL: Let me ask one further 22 question here. That really is a legal question which 23 doesn't parcicularly apply to your comments and testimony.
24 If I could ask OGC to comment. I'm curious to 25 know whether the Commission itself, as a matte of law, has
37 1 before it potential difficulty in the concurrence process.
2 It is clear, and I agree with your comments, it is 3 clear that the concurrence statement says something other 4 than what DOE now proposes to do.
5 What legal implications does that have for the 6 process, Marty? Is that cast out on the process? Should 7 the Commission -- whatever its views on interpreting the a law might be -- should the Commission feel compelled, 9 should it feel it necessary, then, that we reiterate this 10 ' process of concurrence to clear up that discrepancy?
11 MR. MALSCH: I can't give you a definite answer, 12 but let me suggest this: That if at some future date the
-- 13 Commission should be called upon to make an independent 14 determination as to whether the process has been consistent 15 with the Commission's own guidelines, it will then have to 16 confront the question definitively.
17 Now, it may be later, but it will be later. At i 18 that point in time, the issue will arise as to whether in 19 fact the process has been consistent with the Commission's 20 guidelines, and that will in turn raise the question as to 21 exactly what the Commission's guidelines entail.
22 CHAIRMAN PALLADINO: Marty, I think it would be 23 worth doing some research on it and giving us the benefit 24 of that additional research.
l 25 MR. MALSCH: Sure. We have not researched these l
- i i l
c 38 l l
1 questions independently. l 2 COMMISSIONER BERNTHAL: I think we need to know 3 that because independently even of what the Congress does, 4 we may have a monkey wrench here in the procedure that 5 could come back --
6 COMMISSIONER ASSELSTINE: Yes.
7 COMMISSIONER BERNTHAL: -- to haunt everybody 8 later on. I think we need a paper on that.
9 CHAIRMAN PALLADINO: Very good question.
10 Okay. Well, thank you very much, gentlemen. We 11 have representatives,of six states here this morning, and I 12 think it would be in our common best interest if all of you 13 Joined us at the table, and then we'll go down the list and 14 have each one of you make a presentation.
-15 Mr. Tom Lehman, Malachai Murphy, Steve Frischman, 16 Patrick Spurgin, Don Provost, Carl Sinderbrand, 17 18 19 20 21 22 ~
23 9
. O 25
39 e i CHAIRMAN PALLADINO: We will next hear from the 2
States, and I propose to have you make. presentations in the 3
order listed on my sheet, and I presume it is the same as 4 you all have, with Mr. Tom Lehman going first.
5 MR. LEHMAN: I am Tom Lehman, Associate Director of 6
the State of Minnesota, Washington Office.
7 I am here today on behalf of Gregg 3. Larson, 8
Director of Minnesota's High-Level Radioactive Waste 9 Program, and I would like to take this opportunity to read 30 his statement into the record.
13 Mr. Chairman and members of the Commission, I want 12 to thank you for your invitation to testify here today. I am g3 conf 1 dent that it reflects the Commission's sincere desire 34 te solicit and fully consider the views of the affected States and tribes on the provisions of Section 114(f) of the 33 Nuclear Waste Policy Act and on the Commission's final 16 37 concurrence with the Department of Energy's siting jg guidelines.
On the one hand, it is a surprise that the issue 9
20 of the timing of the preliminary determination of site 21 suitability is again before the Commission because the 22 parties that participated in the concurrence proceedings, and apparently Commission members and staff, had considered 23 the issue resolved. On the other hand, it is not surprising 24 25 giving DOE's propensity for policy reversal.
t; i
40 ;
i The State of Minnesota urges that t h'e Commission 2
reaffirm the agreement that was reached w1th 00E during the 3
June 22nd, 1994 meeting on final concurrence with the siting 4 gu1 del 1nes. We co so for the following two reasons:
5 First, it is clear from the record of the 6
proceedings, the decision notice in the Federal Register and 7
the subsequent Commission comments on DOE's draft mission 8
plan that the Commission had concluded that 00E agreed to 9
delete language from Section 960.3-2-3 of the guidelines l 10 requiring a preliminary determination of suitability at the 11 time sites are recommended for character 1:ation.
It is also clear that the Commission expected the 12 j3 final mission plan to reflect the agreement that the a preliminary determination would be made after completion of j$ site characterization.
g It is difficult to escape the fact that even 11 17 tne record was determined to be amb1guous, which it is not,
! 18 the Commission acted on the belief that there was an 39 agreement with DOE.
l 20 Our second reason for urging reaffirmation of the 21 agreement is based on the view that the Commission's 22 position on this issue is logical, justifiable and based on I
23 common sense. In the long run it will benefit the nuclear 24 waste program and the Commission's licensing process.
25 The question of whether or not alternative sites
. . m
~
. 41 1 are a necessary component of final site selection should not 2 De a difficult one to resolve. Minnesota supports the 3 Commission's concurrence position because a determination at 4 he end of character 1 ation is the best way to guarantee 5 that there will be backup sites.
6 Not only will this ensure that the Commission is 7 not presented with a falt accompli at the time of licensing, 8 11 only one site survives characterization, but it also will 9 contribute to schedule certalnty by providing back-ups in 10 the event that sites being characterized are judged 11 unsuttable.
12 The latter advantage is emphasized in the recent
~
!_ _ 13 report on the nuclear waste program that was prepared by the 14 Office of Technology Assessment.
15 Furthermore, as a second repository state s we want 4
16 to stress the 1mportance of maintaining geologic media 17 options. In limiting the current seconc repository program 18 to granite, DOE has put all its eggs in one basket. DOE has 1
19 argued that consideration of a variety of geolog1c media for 20 a second repository, as required in Section 112(a) of the 21 Act, could occur through nomination of s1tes that were 22 characterized but not selected for the final first j' 23 repository site as provided for in Section 112(b)(1)(C).
24 There was no certainty, however, that such sites would be 25 available 11 the preliminary determination is made at the
. = - .
42 i start of cnaracter12ation.
2 Commission staff concern over the environmental 3
1mpact statement implications of the DOE position is also I 4 warranted. If the EIS lacks reasonable alternatives, it i
5 would fail to meet the requirements of the National 6
Environmental Policy Act and the Nuclear Waste Policy Act, i 7 a,nd adoption by the Commission would be precluded.
8 The EIS implications have a public as well as g legal dimension because of the importance that the to interested public normally ascribes to full and rigorous EIS 13 analysis of alternatives.
12 Finally, the pre 11minary detarmination of 33 suitability is a tall that wags the des in the siting 34 program. Recognition that the determination must be made at j$
the end of character 12ation 1s a compelling incentive for DOE to recommend the best possible sites for 16 17 characterization.
18 It would be a very visible demonstration of DCE's 39 often repeated intention to eliminate flawed sites as early 20 as poss1ble in order to focus on sites that hold the 21 greatest promise of suitability.
22 As a licensing agency, it is particularly important that the Commission continue to be viewed as an 23 24 independent ent1ty that does not vasc111 ate under pressure 25 on key policy issues.
43 l l Commission failure to reaffirm this agreement and
[
2 condition of concurrence w111 set a precedent for disregard 3
of other concurrence conditions, damage the credibility of 4 the Commission and contribute to the perception that the 5 Commission will readily bend and cede authority to DOE when 6 conflicts arise. That perception reduces public confidence 7
in the nuclear waste progr2m and the 1mportant role of the 8
Commission in this undertaking.
9 Thank you.
10 CHAIRMAN PALLADINO: Thank you very much.
11 I suggest again that we have all the 12 representatives speak and then we will raise questions.
13 Mr. Murphy from the State of Nevada.
14 MR. MURPHY: Thank you, Mr. Chairman.
My name is Malachal Murphy. I am a Special Deputy 15 16 Attorney General for the State of Nevada.
17 I have prepared some written remarks which I will la submit, Mr. Chairman, rather than read them.
19 And also in the interest of brevity, because 20 things could get repetitive here pretty.quickly, I think I 21 would just like to associate myself with the remarks of my 22 state and tribal colleagues, with one exception, and that is 23 that we do not feel there is any ambiguity in the Act.
24 CHAIRMAN PALLADINO: That you do not what?
25 MR. MURPHY: We do not feel there is any amb1gulty
. 44 J l
i in the Act. We feel it is perfectly clear that the Act l 2
requires the tim 1ng of the preliminary determination to I 3
, follow character 1:ation rather than precede it.
4 And with that one small point, I think what I have 5
to say has already been clearly said by others, and I think 6
I will just wait for questions. , i 7
CHAIRMAN PALLADINO: All right. I am sure we will 8
have questions on your position.
9 Mr. Frischman I think is next.
jo MR. FRISCHMAN: Yes. Thank you.
l ji In the int'erest of brev1ty, I will follow Mr.
o 6
- 17 Murphy's example, but I would like to take the same except1on that he did.
13 34 I do want to go into maybe a slightly different approach in the view of this issue.
33 16 First of all, as I have said, we feel that it is 37 important that the preliminary determination of suitability l ig be made after s1te characterization. If in the alternative j9 you chose to accept the position of Mr. Rusche and the l
20 Department of Energy, I think it is compelling that you 21 return to a concurrence proceeding.
4 22 And the reason I say this is because the 23 guidelines themselves are very much tied up in the 24 evaluation of the sites that may lead to aEy determination, g, j
) i of suitabil'ty. . G' 25 i
I l
l u
-- - e .-, w .w.e- -,
45 L
1 1 If you look at what happens in the guldel1nes and 2 in the Act relative to the nomination and recommendation of 3 sites, first, I take exception with Mr. Rusche's comment
. 4 that the purpose for the preliminary determination 15 to 5 support or be a basis for a recommendation.
6 The Act itself provides some basis for that 7 recommendation, and the guidelines in which you concurred provide a further basis for that recommendation. And if you a
9 look at the requirements for the environmental assessment 10 leading to a nomination, one of the six elements is to 11 evaluate the suitability for development of a repository ,
12 under each guideline that does not require site
__ 13 character 1:ation.
u So you already have a basis for nomination and 15 recommendation. You don't need the preliminary determination 16 of suitability to do that.
U CHAIRMAN PALLADINO: Could you read that again. I la am sorry, I didn't pick it all up.
19 MR. FRISCHMAN: Yes. One of the required six 20 elements in the environmental assessment, which 1s to 21 support a nomination and, according to the guidelines, a 22 recommendation as well, 1s an evaluation of the su1 tab 11ity 23 for development as a repository under each guideline that 24 does not requ1re site character 1:ation for its application.
25 So you are dealing here with an obv1ous 6 i
j 46 i understanding that you do not have a full s'pectrum of 2
understanding on the site itself.
3 Now we could go into many of the problems that we 4
have discussed before about the guidelines and the fact that 5
tney are vague, they are not definitive and they are 6
applicable to almost any site in the country if you accept 7
those that don't meet t h 'e population density standards.
g So we are dealing with a whole series of sites 9
that right now really are not d1fferent in knowledge before 10 and after a recommendation.
ii I would think if Mr. Rusche really wants to carry 12 this to the proper extreme in his own mind, he ought to say j3 that all nine sites are determined to be preliminarily 14 sultacle, because the judgment 1s no different and the j$
environmental assessment does not change that judgment 16 oecause the Information is no different.
1 37 So we are in a position now where if the
_ig determ1 nation is made, and if you look at the guidelines, 19 the guidelines incorporate In the system guidelines, among 4
20 other rules, your 10 CFR 60 and the as yet to be published 21 40 CFR 191, those are definitive requirements. ;
22 Now if you going to say that the site is suitable 4- 23 to begin with, then what you are doing 15 assuming the
- 24 compliance witn your requ1rements at this point because you 2$
nave already sort of Ignored that there are guidelines that 1
, 47 I I e i can't be appliec. You are just saying that everything is 2 being app 11ed.
3 So the assumption then is made that the sites that 4 are cetermined to be pre 11minar11y suitable are in fact in 5 compliance anc meet the requ1rements of your 10 CFR 60 and 6 other rules.
7 Now let's go back to the 1980 programmatic EIS s tnat the Department of Energy submitted and has been 9 final 12ec anc is supposedly the guiding NEPA document for to tnis program, cecause I have heard of nothing that removes 11 that document.
12 In that, wnether we like it or not, sites are in a 13 position wnere you can assume the* acceptability of the site, 14 unless you find that 1t is disqualified, up to the point and 13 through the point of recommend 1ng that site for site 16 character 1 ation or beginning site character 1:ation.
17 At the pcInt that the decision is made to begin 18 site character 1:ation, accord 1ng to that environmental 19 1mpact statement and other documents subsequent to that, you 20 can no longer assume the acceptability of that site. You 21 must then determine through facts that the site 15 22 acceptable. There 1s a flop-over.
23 I have alwtys hac a proolem with the assumption 24 early, out now wnat is happening is the assumption by the 25 cnange recommenced or taken by Mr. Rusche, that assumption
48
) 15 being carried further into the cnaracteri:ation of sites, 2 anc I submit in violation of that 1980 EIS.
3 So I think you have a process here that I would 4
not like to right now get into the argument of whether 1t is 5
safety related because I agree with the fact that your 6
responsibilities as a Commission are much greater than-just 7
safety.
8 So I think you are facing an issue of overall g compliance of this program, not only with the Waste Policy to Act, but with previous approved policy and a very dangerous ij assumption that a site at this point meets your requirements 12 when the facts are not on the table.
CHAIRMAN PALLADINO: All right. Thank you.
i3 ja Let's see, we go next to Mr. Spurgin.
15 MR. SPURGIN: Yes. My name is Pat Spurgin., and I am g from the State of Utah.
17 I have to follow along with my colleagues and say 18 that most of what I would say 15 redundant to what you have i j9 already heard.
20 I would Just like to make the point that we 21 believe that the Commission's resransibilities also extend .
22 to cons 1deration of env1ronmental impacts, and we believe 23 that that responsibility extends to the early stages of the 24 site selection process as well.
And we feel that the guidelines in their present 25 i
, - ~ - - --
49 i 1 form and the Commission's concurrence in them at least in 2 part compromises the ability of the Commission to fulfill 3 its responsibility for consideration of env1ronmental 4 1mpacts.
5 I would note that Utah doesn't believe that the 6
Department of Energy has to date gathered sufficient 7
information nor done sufficient analysis to make any kind of a
determ1 nation of suitability, whether it be the preliminary 9 cetermination on a discussion or the simple cetermination of 10 the suitacility of a site for further consideration.
11 By the same token, if the Section ll4(f) 12 determ1 nation of suitability is ceferred, all of the things 13 considered would still be an inadequate substitute for the 14 careful consiceration of the safety, health and 15 environmental 1mpacts aris1ng from the earlier DOE 16 decisions, and that is the basic message.
17 Thank you for the opportunity.
la CHAIRMAN PALLADINO: All right. Thank you.
19 Next Mr. Don Provost.
20 MR, FROVOST: Thank you, Mr. Cnatrman.
21 I am Don Provost, Acting Program Director of the 22 State of Washington Office of High-Level Nuclear Waste 23 Management.
24 I have a statement here from Governor Gardner, and 25 I so I w111 Just read his statement to you.
- . 50 i Mr. Chairman and members of the Commission, thank 2
you for inv1 ting me to present my views on the importance 3-and timing of the preliminary determination of suitability 4
of potential hign-level warte repository sites.
5 The State of Washington at every opportunity has 6 clearly ,and forcefully stated its opinion concerning Section 114(f) of the Nuclear Waste Policy Act. Our position is 7
8 faithful to both the sp1r1t and the letter of the Act and 9 the intent of Congress. We emphatically believe the Act 10 requires a preliminary determination of suitability to be 11 made after charac'terization is substantially complete.
r .
12 Others have already testified about the legal 33 justification for our position. So I will discuss the 3
34 implications of our position.
15 This is a very significant issue for both the 16 State of Washington and the Nuclear Regulatory Commission.
17 It is important to remember that USDOE makes a preliminary 18 determination and NRC makes a final determination of 39 suitability during the licensing process. Our citi: ens need 20 to be convinced that both determinations guarantee safe 21 permanent disposal of h19h-level wastes.
- 22 Before I discuss the specific. concerns about the 23 timing, I want to give three conditions wnicn must be met before Washington State would consider accepting a
- w, 24
)
+ 5
25 repository site. These conditions are:
- _ _ _ _ _ _ _ , . . _ . . . _ . _ . _ , ~ . . . .. - , . _ , ,e__ , , , . . _ , . , . . . , _ . - _ , _ - - ~
v 91 I
( ) -- USDOE must demonstrate to our satisfaction 2 that the reposttory will be safe.
3 -- USDOE must oemonstrate that Hanford 1s better 4 ano safer tnan any other site.
5
-- The proposed repository must be acceptable to 6 Washington State c1t12 ens.
7 Let me briefly explain how the deciston on a
determination of suitability relates to the three 9 conoitions. ,
to USDOE must use performance assessment techniques 11 to demonstrate that the repository will be safe. As y.o u 12 know, Hanford is the most complex site under consideration.
i3 Extensive studies will have to be completed before USDOE can 14 reliably conclude that groundwater travel times will meet .
15 EPA and NRC requirements.
16 In its draft environmental assessment comments, 17 NRC states that it believes limitations of the available 18 data do not allow h1gh confidence to be assigned to any 19 travel time estimates at this time. Independent experts 20 engaged by the State of Washington agree with this 21 statement.
22 At this time with this 11mited information, USDOE 23 cannot comonstrate that a repository at Hanford will be 24 safe. A preliminary determination of suitability should not 25 be maoe until USDOE can demonstrate tne site is a safe site.
52 O
T i The Nuclear Waste Policy Act e'stablishes a 2
' procedure which allows the preliminary determination to be 3
made when relevant and necessary information is available.
4 This is not the time.
5 Condition t,wo implies a comparison among acceptable sites. If Hanford is chosen, it is very possible 6
7 that a disqualifying fatal flaw will be discovered during 8 site character 12ation. Even if site characterization is g completea at Hanford, we are convinced that USDOE will be jo unable to assign high confidence to groundwater travel 11 times. .
12 If one or more sites are disqualifted, bSDOE and NRC would have a very difficult time proving the cnosen site 33 u 1s better and safer. If only one site would remain-on the j$
list, comparison among alternattves would be impossible and 34 USDOE would be unable to demonstrate that the chosen site is 17 safer and better.
18 This leads me to condition three, citizen j9 acceptability. Having three suitable sites after 20 cnaracterization 15 a fundamental requirement for C1tizen 21 acceptance. Having fewer than three sites available after character 12ation will ensure a political failure. Such a 22 23 political failure would most likely occur during a 24 repository licensing process.
25 On August 1st I testified before the House
. 53 I
I Subcommittee on Energy, Conservation and Power of the House
( 1 2 Committee on Energy and Commerce. I testified that the 3 effort to site a h1gh-level repository 15 on the wrong 4 track. Public confidence is already at a low point. I
$ recommended a pause in the headlong rush to site a
-6 repository and that non-USDOE experts be asked to review the 7 ranking methodology.
8 That procedure should set aside political 9 considerations and focus on a single issue, the issue of 10 safety. I hope that the quality and scope of this review 15 11 sufficient to put the siting effort back on the right track.
12 Before I end my testimony, I wish to compliment 13 the Nuclear Regulatory Commiss*1on and staff for the quality 14 and objective nature of the result waste isolation project l 15 work. This most important work requires a high standard of 16 excellence.
17 We have received top-level technical performance 13 from NRC. As a result, we now have high confidence in the 19 NRC. We are concerned tnat an incorrect decision on the 20 timing of a preliminary determination of suttability will 21 not only affect NRC's performance, but also' place NRC in an 22 untenable position when the licensing decision is before it.
23 In summary, the Nuclear Waste Policy Act requires 24 that preliminary determinations of suitability for three 25 potential repository tites follow site character 12ation. If i
I I
l I
54 i USDOE makes a premature pre 11mina y determination, legal 2
challenges certainly will delay the repository program.
- 3 It runs counter to the Nuclear Waste Policy Act's 4
intent of siting a safe repository with a supportable 5
procedure. A determination after characterization will 6
protect the public health and safety, ensure public 7
confidence and comply with the Nuclear Waste Po11cy Act.
- g COMMISSIONER PALLADINO
- All right. Thank you very 9
much, Mr. Provost.
in Let's see, we nave Mr. Carl S1nderbrand from the si State of Wisconsin next. >
i 12 MR. SINDERBRAND: Thank you, Mr. Chairman and 13 members of'the Commission.
14 My name is Carl Sinderbrand from the Wisconsin i
j$ Department of Justice representing the State of Wisconsin in this matter, 16 t
17 I appear here today with two hats. One as the is representative of a state being considered for a second 19 repository, but also as a representative of a state with a substantial investment in nuclear power, which is very 20
, 21 concerned that the DOE program result in a timely conclusion 22 at selection of a repository which will meet NRC standards, i
i I would like to make several points, one legal and 23 i the rest practical.
24 25 From a legal perspective, I believe that a j 9
l l
.. -. . . _ . , _ . . . - _ _ . _ . _. ._- ~- -- - _ . - ._. . _ _ . .
SS I '
! I thorough reaolng of the Act of both in its structure and by 2 any accepted rules of statutory construction can only lead 3 to the determination that the preliminary determinat1on must 4 be made afte* Character 12ation for at least two reasons.
5 One is that the DOE's current interpretation would 6
result in the preliminary determination requirement being 7 superfluous and, secondlyi because its interpretation could a
lead to an environmental impact statement which presents no 9 alternatives to the selected site which confl1 cts with NEP8.
10 I believe it is clear that the intent of Congress was that 11 NEPA be complied with in the selection of a site for 12 cavelopment of a repository.
13 I would also like to agree with Mr. Provost's 14 comment w1th respect to a public acceptability and the 15 political consequences of the Department of Energy's 16 dectston.
17 The States have an important role in the ultimate 18 selection of a repos1 tory. In order for a State to be to willing to accept a repository, recogn1rtng that the States 20 have both geographically and politically a much more 21 immediate and close relationship w1th a repository than 00E 22 does, it must not only meet the minimum technical standards 23 before the NRC in 10 CFR 60, but it must also be considered 24 to be the best available site.
25 This reflects. I believe, a philosophical
< 1 I
. . . 96
)
dispute between the States, which may host a repositoryi and 2 the 00E. The States are concerned that the applicat1on of 3
the guidelines leads to the selection of a politically 4
acceptable and the best available site.
5 00E in its position today and in its program 6
generally is clearly focusing on the selection of perhaps 7
only one technically acceptable site. I think this 1s a g
distinction worth consideration because, as the NRC has
- reflected before, a public acceptability and acceptab111ty 10 cy the States is a very important consideration.
11 The 'other point I would like to raise is relevant a .
12 to the second repository States, one that Mr. Lehman has alluded,to. DOE is in essence putting all its eggs in one 13 i4 basket with respect to the second repository, and that 15 i$
that it is only considering crystaline rochs. The Nuclear 16 Waste Policy Act in the guidelines reflects tha need to 17 consider alternative media both within the first and second is repos1 tory process, i9 If 00E under its interpretation goes through 20 character 12ation and has only one acceptable site, there 21 will be no alternatives to grant 1t for consideratton for a 22 5'COMO f0P051tOfY' -
73 Thank you.
24 COMMISSIONEP PALLA0!NO: Th"ank you, e 9.,
Well, let me start the questioning with two E
25
l
$7 j l
l T
[ 1 questions, j l
2 Several of you, and I guess, Mr. Murphy, you were l l
3 the first one who said that the Act clearly requires that l
- 4 the oreliminary determination be made after site 5 character 12ation. Could you elucidate on tnat and why you 6 think it is so?
7 MR. MURPHY: Well, I th1nk 1t is so because of the g application of fundamental principles of English grammar, 9 Mr. Chairman. .
10 (Laughter.)
11 COMMISSIONER PALLAOINO: Vell, there aren,'t that 12 many of us that understand the grammar. So would you help
_ _ _ 13 us. ,
14 MR. MURPHY: Congress said that the Secretary must 15 do two things. He must first characterize sites and he must le secondly make a preliminary determination that such sites 17 are suitable for development as repositortes. Not a 13 preliminary determination that they are suitable for further lg investigation, but a preliminary determination that they are 20 suitable for development as repositories after or following gi characterizing three sites.
22 We see absolutely no ambiguity whatsoever. Resort 23 to the legislative history, to the floor colloquy simply 24 confirms what the language of the statute itself says, in 25 our view.
98
> ; COMMISSIONER BERNTHAL: Isn't it true that the 2
floor collocuy though confirms it in one House anc not the other House of Congress pretty much? I mean I agree with 3
4 you. I think the floor colloquy on the House side seems to confirm that, and the floor colloquy on the Senate side 6
seems to say the opposite.
7 MR. MURPHY: No, I don't agree with that, g Commissioner Bernthal. I think the floor colloquy in the g House confirms it more clearly than the floor colloquy in to the Senate in our view of the Act. But I don't think that it the remarks on the Senate floor support the Depar.tment of 12 Energy's position at all.
MR. FRISCHMAN: May I add something to that, and 13 34 that is the full statement in 114(f) goes to t h e e:: t e n t that such sites are suitable for development as repositories 35 16 consistent with the guidelines promulgated unoer Section n ll2(a).
13 Now let me reiterate one of my points, and that is 39 that it is known and understood in this Act and in its 20 application to date that all of those guidelines cannot be 21 applied until site characterization is underway.
22 So consistent with those guidelines, and it does 23 not say consistent with those guidelines which can be 24 applied prior to site character 12ation. It says consistent 25 with tne guidelines of Il2(a).
59 8
1 COMMISSIONER PALLADINO: But one of the 2 difficulties that I have is I may not read things the same 3 way as the various legal people mtsht, and the various legal 4 people don't seem to be reading it all the same way. So I 5 guess it leads me to wonder whtther it is all that clear.
6 MR. FRISCHMAN: I prefer to apply the rule of 7 lo91c, just as Mr. Rusche, and we just happen to disagree 8 once again.
9 (Laughter.)
10 MR. MURPHY: God forbid if the Congress should ever 11 pass a statute that doesn't require interpretation.
12 (Laughter.)
13 COMMISSIONER PALLADINO: I appreciate that, but
- 14 even Congress is interpreting it differently on both sloes 13 of the House.
16 Well, maybe other questions will bring out further 17 clar1fication.
18 Let me Just ask one other question. I guess Mr.
19 Provost first introduced the statement that it must be the 20 best available site, 11 I recall correctly.
21 And then I guess it was mr. Sinderbrand who said, 22 or maybe you both said, that it must be politically 23 acceptable. Are these necessarily consistent requirements?
24 You may have the best available site on a technical basis, 25 and if that is what you meant, then I am not sure !
I l
l
60
' understand whether the next one excludes that one, and that 2
is that it must be acceptable to the cit 1: ens.
3 MR. PROVOST: Well, I con't think you will ever 4 prove acces.tability to our citi: ens unless you have 5
something to compare them against and acceptable sites to 6
compare at the end. If you get through a process, and if you
, 7 make your preliminary determination early and one or two 8
sites drop out and you are left with one, you can be sure 9 you are not going to get one through. It is going to be a io political disaster. The only way it will ever be acceptable 31 15 If there are three acceptable sites at the time of the 12 preliminary determination.
COMMISSIONER PALLADINO: No, I was trying to i3 14 understand, and I thought I had the paper before me, but I j$ must have misla1d it, you said we want the best available 16 site, and then I think you said the requirement that it must 17 De acceptable to people.
18 MR. PROVOST: That is Governor Gardner's position.
39 MR. MURPMY: Let me expand on that thought for one 20 moment, if I could, Mr. Chairman.
21 From Nevada's point of view at least, it is not -
22 only a question of the site being acceptable, but the process has to be acceptable to the public. The process of 23 24 selecting that site must be politically acceptable to the 25 public or there is no chance in the world that a notice of
61 t
! I disapproval will not be filed.
2 The only way that there is any hope of achieving 3 that kind of acceptability is for the public to be genuinely 4 satisfied that the Department has considered genuine 5
alternatives, and genuine alternatives we think are sites 6 for which the determinations are made as late in the process 7 as possible after securing as much confirmed scientific data a
as is possible to achieve consistent with a reasonable 9 application of the deadlines which Congress has imposed on 10 the Department.
11 COMMISSIONER BERNTHAL: I have to say I agree with 12 the point you made that there is an obvious flaw here in 13 what appears to have been agreed to by the Commission and ,
14 the Department of Energy. That is unfortunate and that may 15 well require that the Commission take some steps to make 16 sure that public acceptability is guaranteed.
17 COMMISSIONER ROBERTS: I don't see how you are ever is go1ng to guarantee that, tg COMMISSIONER BERNTHAL: But on the point that I 20 said earlier, I do not propose, at least as one member of 21 the Commission, to get into interpreting a law that Congress 22 1s surely free to Interpret far better than we can. And if 23 they choose not to, then I would suggest that is the job of 24 the Court.
25 This law is Just plain ambiguous, and I am not i
. 62
- i sure the reading of English is quite as simple as you might 2
suggest. It is a mess, quite frankly.
MR. FRISCHMAN: I would like to expand on the 3
4 confidence thing Just to add that in Texas confidence in a 5
preliminary determination of suitability at this potnt would 6 D', absolutely :ero because not one scientific investigator 7
working for the DOE program has ever set foot on either site 3
in Texas.
COMMISSIONER PALLADINO: That is interesting.
9 to MR. MURPHY: That speaks to a point you made ti earlier, too, Commissioner Bernthal, the colloquy between i .
i 12 you and Commissioner Asselstine on preliminary borings. They naven't done any preliminary borings in Texas. They are i3 14 going to make that preliminary determination of suitability i$
in Texas without any preliminary borings.
16 MR. FRISCHMAN: It will be made on the basis of i7 extrapolation of data from borings around a 25,000 square i
is mile area.
39 COMMISSIONER BERNTHAL: But let me, if I can ---
20 COMMISSIONER PALLADINO: Yes, go ahead.
. 21 COMMISSIONER BERNTHAL: --- just for the public 22 record here, because I think it i s, ,i mp o r t a n t to the public, 23 share our understanding or lack thereof on the confusion in 24 the law on this particular point,"and I don't i n t m16%,t o
)
25 imply the law is a mess on every point, but on th9s Riming f
63
! 1 question it 15.
2 Our legal office aga1n sifted through the 3 le9islative record on this, and I find 1t interesting that o 4 Congressman Ottinger, who I suspect shared your view at 5 least to some extent in this matter of timing, and if you 6 don't like DOE's position and you don't like the position 7
that 005 and NRC apparently agreed to, then you can 11nd 8 something in between in Congressman Ottinger's comment, 9 because ne sayse and I am quoting now, "It is envis1onec i 10 that this preliminary determ1 nation would occur late in the 11 site character 1zation program." ,
12 So now you have got all three. It is before or is 13 1t after or 15 It during. Now I submit to you that is ,
14 ambiguous.
15 MR. FRISCHMAN: Well, I would like to put that into 16 the context of my comments on the guidelines, and that is 17 that you can reach a point sometime during site la characterization when the Department is going to have to 19 make some kind of a determination for itself regarding the 20 suitability for a repository. And I think the point was made 21 already that the determination of suitab111ty is reserved to 22 you folks, the Commission.
23 The Department can only make a preliminary 24 determination in the context of whetner a 51te is in fact 25 suttacle for a repository or not. When they make that
. 64 9
i preliminary determination, they thin have a bas 1s for 2
handing you an application.
3 MR. MURPHY: Nevada agrees with that position, 4 Commissioner Bernthal to the extent that enaractert:ation .
needs to be substantially completed before the preliminary 6
determ1n'ation can be made, and by that we think Congress 7
meant that you have to have completed characterization to 8
the e>ttent-that you can apply those guidelines which require g character 1:ation for their application.
10 Now at what point in time in the character 12ation it process that occurs, I am willing to concede at least is 12 within the programmatic discretion of Mr. Rusche and his 33 staff. But they can't make it before they even begin the 14 process of characterizing the s1te to apply those guidelines
, j$ which require character 12ation, and that is what they are 16 suggesting to you that they are going to co.
17 COMMISSIONER PALL.40!NO: Well, that would imply, is and I got this also from Mr. Provost's prepared comments, l
39 that would Imply that they had better be starting with more 20 than three to be character 12ed or somewhere along the line 21 if one falls out for some reason then you have to go back (
22 and s ta r t another one. ;
1 23 MR. PROVOST: Or they had better go in with three t
- t 24 good sites and not go $nevith risky sites. Hanford is an t
., 1 25 example of where there h1s been a lot of work done, but the t
e
65 I
l 1 certitude of the results to date, and I think the NRC, EA 2 comments, ourselves and everybody agrees that they are 3 nowhere near being able to have any confidence in results.
4 COMMISSIONER PALLADINO: But you are saying they 5 must make a preliminary determination that they have three 6 good sites. That supports the other position.
7 MR. PROVOST: No, no.
COMMISSIONER PALLADINO: You have the problem that 8
} 9 ,ouy either make a preliminary determination that you have 10 three real good sites or you say I can*t make it because I l
i 11 don't have enough daga and therefore I have to start more 12 sites.
]
- _, 13 MR. PROVOST
- Of you could have a situation, as in i- 14 the current first three, where you have two sites that are
- j$ on government land, whicn went through a site selection to process that was completely different than any other site.
l 17 So it isn't like the second round where you go through a ;
l 18 very organized site selection process, 19 MR. MURPHY: Let me present a worst case scenario, 20 Mr. Chairman, which I think does point out that this 1
< 21 question indeed implicates public health and safety issues I 1
l 22 and not just environmental or timing 1ssues.
I 23 Assume through the application of guidelines, 24 which we think even after the Commission's concurrence are j 25 imperfectly subjective, but assume through the application h h ll
66
' i of those subjective guidelines in a subject manner based on 2
what we feel to be in some cases inadequate and questionable 3
data in the environmental assessments that preliminary 4
determinations are made early in the process before
$ confirmed scientific data sufficient to make those decisions 6
1s even begun to be gathered.
7 And assume further that the end result of that 8
process is one marginally acceptable site and twc sites that 9 are determined to be unsultable.
to The Department then comes to this Commission with 11 an application for a construction authori:ation and puts you 12 folks in the very uncomfortable position, because of all of 33 the years of effort and hundreds of millions of dollars 14 expended on tne program, of taking a look at only one site 95 out of three which is perhaps suitable, but only marginally 16 so based on then known data, and you would then be in the 37 position of asking yourselves whether to abort this entire is 10, 15 or 20 year process or to authori:e tne construction gg of a site which may later turn out to be bad.
20 That is really the critical question we are 21 talking about here today is how much confidence are you 22 going to require in the earliest siting decisions and, consequently, how much hard, confirmed and defensible 23 24 scientific data must the Department generate before they 2$
begin to make those decisions.
67 1 MR. FRISCHMAN: This comes back to the question of 2 what does 1t mean to reopen concurrence on the guidelines.
3 Mr. Rusche said it means nothing other than to deal with the 4 issue of preliminary determination.
5 Well, I submit if you deal with it and say that it 6 15 later, that it is at the end of later in site 7 character 1:ation, then that is all you have to do. But 11 1t 8
goes the way the Department of Energy wants it to go, the 9 purpose for reopening concurrence is to determine if the 10 guidelines are sufficiently definitive and 1gorous to 11 handle the question of are there facts that support this 12 determination or is it assumptions that support this i) determination, and your own rules require facts.
14 COMMISSIONER PALLADINO: Let me see, Commissioner 13 Roberts, do you have questions?
16 COMMISSIONER ROBERTS: No.
17 COMMISSIONER PALLADINO: Jim 7 is COMMISSIONER ASSELSTINE: A couple of points, and 19 let me pick up on the one that you were just talking about.
20 Mal. I think you have to recognize that the argument that 21 Mr. Rusche has made han to be tempting or appealing to the 22 Commission in one respect, and that 1s that, gee, you guys 23 don't have to worry so much about this legal issue. You can 24 duck the legal issue.
25 And I think Commissioner Bernthal was talling i
63 '
I s l l
2- i about well, maybe the Commission shouldn't get involved.
2 Lat's leave this to the Department of Energy and the 3
Congress and say 1t is a matter of their discretton.
4 I guess I would like to address that head on and 5
588' you know, can.the Commission duck it, can the 6 Commission afford to duck it and what kind of a situat1on is 7
the Commission likely to 11nd itself in if it does that. If g
th1ngs go ahead the way that DOE has proposed them and 00E g picks three sites, and I won't speculate on which three, anc jo for some reason or another one of those sites drops out it Decause there are difficulties in doing the characterization 12 work, and a second drops out because some flaw is 1dentified g3
.during characterization.
34 Then 00E comes back to the Commission with one
.g$
site, and then the Commission has to fulfill its environmental impact responsibilities that still exist under 16 17 the law. Are we on the spot then and are we the ones then that get left holding the bag. And if that is the case, can 13 ig the Commission really afford to duck the legal question now 20 and aren't we really going to pay for it later on?
MR. FRISCHMAN: I think you.will pay for it in real 21 22 dollars because you will get an environmental impact statement that you must accept to the extent practicable and 23 24 it will be very low on the scale of accepting to the extent 25 practicable when you interpret NEPA as it applies to your
69 1I decisions.
2 COMMISSIONER ASSELSTINE: And I take it that we 3 would be in the position of having to defend in Court an 4 environmental Impact statement that says, gee, 11 we have 5 got one site here and the alternatives that we considered 6 washed out a couple of years ago in the process ---
7 MR. FRISCHMAN: Well, the question is whether you a
want to spent the dollars defending yourselves in Court, or 9 you send your staff out to develop two more sites.
10 COMMISSIONER ASSELSTINE: That is true at that 11 point in time.
12 COMMISSIONER PALLADINO: But I suggest that you
___ 13 ought to start with more sites if you are not sure.
14 COMMISSIONER ASSELSTINE: Well, I personally happen is to feel that is right, that we probably ought to start with to four sites rather than just three, and also make sure ---
17 COMMISSIONER PALLADINO: Well, I said "more." I is didn't say four. I don't know how many. I said more.
19 MR. MURPHY: There is some logic to that, but !
20 have to live with my colleagues from Mississippi and Utah as 21 well, Mr. Chairman.
22 (Laughter.)
- ) I don't think they want to hear us suggest that 24 four or five sites should be characterized.
25 MR. FRISCHMAN: And I am not really suggesting that i
- . 70 I l
l
/* 1 you have to fully develop a lot'of sites. What you would 2
have to do is investigate to the point where you had at 3
least viable alternatives, and you could probably do that 1
4 for an EIS without breaking ground. ,
5 COMMISSIONER ASSELSTINE: That is true,.and I thinh 6
you also get to the point that Mr. Provost mentioned, too, l
7 which is making sure that the sites you go forward with l g really are ones that you are likely to be able te work with. ,
j 9 COMMISSIONER PALLADINO: But it sounds like double
- io talk to me. It sounds like you are saytng we don't want a ;
11 lot more sites, we want the three that we have a pretty good 12 assurance are going to go through, and that to me sounds i !
i3 like a pre 11minary determination.
l 14 Now if it goes through ---
i
- j$ MR. PROVOST
- I think the history of the Hanford to site would ---
l
- 17 COMMISSIONER PALLADINO
- Well, just let me finish. {
i
^
13 MR. PROVOST: Okay.
39 COMMISSIONER PALLADINO: If you go beyond that
! 20 preltminary determination and one of these falls out, then l
i 21 that is proof that you didn't make a good determination. i i
l 22 V'II.' I say yes, that is proof, but assuming that a j 23 determination as made on honest and as good a set of grounds 1
24 as we could develoM Shen ! think the time was when you hac l 2, decided tnai the,e.sesuid be tn,ee s,tes, wn,cn th,ee s,tes l
l i
71 1 should be characterized.
1 j 2 MR. MURPHY: But remember what the significance to ,
j 3 the end result of the process is that we are talking about 4 here. If the Secretary is allowed to make his preliminary f
5 determination of suitability before characterization begins 6 rather than substantially completed, then the process can 7 continue to go forward through licensing and through the 8
application for a construction authorization even if only 1
9, one or two sites are ultimately found to be suitable for the 10 application of such a license.
11 It, on the other hand, he has to make the i,
l 12 preliminary determination of suitabtitty substantially into l 13 characterization for the purpose we submit of having three h
14 genuine alternatives for the Commisston to consider in 15 adopting to the extent practicable the Department's EIS, 16 then it is an entirely different kettle of fish, i
l 17 I suggest that at that point in time, if we get to j 18 the end of this process with only one suitable site, 1
I 19 preliminarily determined to be suitable, and I don't even 4
20 think it 12 a question of practicality, I would suggest the 21 Commission would be legally prohibited from adopting such an i'
22 environmental impact statement.
23 COMMISSIONER PALLA0!NO: But you departed from my 24 point. My only point that I was bringing up is there seemed 25 to be some reluctance to go to more sites. If you really i
i i
l
72 ,
l' t think that the preliminary determination is made after the 2
site character 1:ation 15 done and you want three to end up 1 3 with, it sounds to me like you have to start with more, and 4
that is all I was tryIng to clear up.
. 5 MR. SINDERBRAND: That is not necessarily true, Mr.
6 Chairman.
7 COMMISSIONER PALLADINO: Or you must be prepared to i
- g stop along the way and add one.
t 9 MR. SINDERBRAND: If I may ado, the preliminary to determination of suitability is not the only analysis of it suitability that occurs in the process. In preparing the 1
32 environmental analysts to support the characterization i3 dec151on, suitability must be determined.
l u The real issue isn't when the Initial j t$
determinations of suitability occur, but when the last 16 determination of suitability occurs, and we submit that f 4
i i i 37 can't be made until after the data supporting guideline 18 determinations are made, and that is well into site i
l 19 characterization.
20 MR. MURPHY: The point that has been made many 1 i 21 times earlier, and I think Commissioner Asselstine made it !
I 22 at the July 29th meeting, the final determination of h
tuitability is made at this table. Everyth1iis the Secretary 23 i
L 24 does is preliminary in that respect. The final decision is l-i 25 made right here in this room. (
? >
t f
l t
h 1 COMMISSIONER PALLADINO: I agree that everything 1s 2 preliminary until you get a final repository, but I don't 3 think that is the context in which the Congress developed 4 their concept of preliminary determination, or otherwise 5 they would have said so.
6 Jim, go ahead.
7 COMMISSIONER ASSELSTINE: I was going to say I ,
8 think that is what they did have in mind myself.
9 (Laughter.)
10 And I think that i f ever there is going to be an 11 issue in the licensing proceeding, it is going to be the 12 suttability of that sita for development as a repository.
_, i3 That is going to be, no matter what site is selected, a 14 central issue in any licensing proceeding, and ultimately 13 the judgment is going to have to be made here.
16 The other question I guess I wanted to raise is 17 sort of a broader one, and that is what does this all do to 18 the process.
19 When I think back to a year or so ago when we were 20 last at this table on this subject, the sense I had, and I 21 think many of us expressed it at the time and, Fred, I think 22 You expressed it and, Joe, I think you did as well, was that 23 we were concerned and troubled when we had the guldelines 24 before us that after a number of iterations, reviews and 25 drafts by DOE that what we had before us was a set of n --,,e -, ,- , - , - , . ,
74 8
- guidelines where the States and Indian tribes were almost 2
unanimous in saying there are some fundamental weaknesses in 3
these guidelines.
4 They don't provide an effective and an adequate method for screening and selecting sites that are going to 6
provide a high degree of assurance that there are going to 7
be good sites chosen for character):ation, and that at the 8
end of the road you will have good sites to make a selection g from to develop the' repository. And there were a variety of jo examples that I think all of you gave about that.
11 I know a number of us expressed the concern at the time that we thought this whole process was getting off on 1,2 13 the wrong foot if what we had at this very early stage in a the process was a fundamental disagreement among all of the States on one side and the Department of Energy on the other i$
16 about this program as going and whether we had an effective j7 site screening process or we had one that was fatally 18 flawed.
39 I think in many respects the Commission's concurrence decision represented a good faith effort on our 20 part to try and deal with-that. We made some changes that 21 22 our staf.1 recommended to us, and we made some more that we 23 came up with, and I think one of those, one key one, in my 24 view,.was the agreement with DOE on the timing of the 25 preliminary determination.
75
- 1 I guess what I am wondering 1s it str1kes me that 2 this whole exercise now reopens those old wounds and I am 3 interested in your reaction of what this does to the 4 process, what it does to where we are now and what it does 5
to the kind of cooperation and agreement that I think is 6 absolutely essential to the success of this program.
7 Mal, I agreed very much with the comments that you s
said about the States' role as this gets down the road, 9 particularly when the President selects a s1te and what it 10 does to our regulatory program, to the States' ability to 11 have confidence in us and to the working relationship with 12 DOE and to the whole success of the program.
13 MR. FRISCHMAN: I agree with me. It not only ,
u reopens old wounds, but it opens existing wounds.
15 I think the place where that happened and I think 16 the place that you need to consider very carefully is 17 Appendix 3 and 4 are a result of the Commission's 18 determination that some more things needed to be done for 19 concurrence.
20 Now Appendix 3 and 4 have never been part of DOE's 21 public rulemaking process. Appendix 3 and 4 were subject to 22 our discussion, which was by invitation to a meeting with 23 the Comm1ss1on.
24 So Appendix 3 and 4 we saw at the time as being 25 weak and 1nadequate, especially in the face of the vagueness 8
J e
, 76 of the techn1 cal guidelines t'hemselves.
) i 7
And I think the only reason that we probably 3
didn't become extremely disturbed about the weakness of 4
Appendix 3 and 4, weak to the point where you have three pr 5
so pages of information necessary for nomination and for 6
sites for character 1:ation, and then a line that says the 7
types of information will be used except where findings set g
forth in Appendix 3 of this part can be arrived at by a 9
reasonable alternative, whatever that 15.
10 So we had little faith, and about the only thing il that kept us together in figuring w'e l l , we will try these 12 guidelines and we will do what Mike Lawrence asked us to do, j3 the proof of the guidelines is in their application, when we 14 left tne room that day, the only thing that left us any j$
faith at all was that the process of determ1ning suitability 16 of sites was not going to be nailed down at the same time 17 that these guidelines were used to say these are the world's 18 best sites out there that we can deal with right now.
i9 So we have totally lost confidence if we lose the 20 ability to say that at the end of the process there are 21 going to be some further determinations, rather than just 22 stacking more and more and more concrete determinations on the front end based on assumptions.
23 24 MR. sin 09EBRAND: If I may add to that ---
l COMM195Id*NER PALLADINO: Let me make a point.
25
77 3 -
- ( l We have only one 1ssue that we are talking about, the 2 timing. You may say that that destroys or undermines all the 3 conf 1dence in everything that has been done up to now, but I 4 am not sure that that 1s the right thing to be talking about 5 nere because one thing doesn't completely undermine the 6 confidence.
- 7 I think we should make sure that we recognize that 8
there is only one item under discussion, and that is the 9 timing of the preliminary determination. Now to the extent j 10 that might undermine your confidence, it would be 11 appropriate, but I wouldn't get into all the other items.
12 MR. SINDERBRAND: If I may say, Mr. Chairman, that i3 I agree with Mr. Frischman that the States left the June 14 22nd, 1984 concurrence meeting with the reflection that the
.15 preliminary determination being made after character 1:ation 16 would provide the necessary incentive lacking in Appendix 3 17 for DOE to avail itself of the best information available 18 prior to making characterization decisions, and that the 19 absence of that assurance definitely does undermine our 20 confidence.
21 One must question at least rhetorically why the 22 Department of Energy is so intent in retracting from this 23 agreement that it made in the June 22nd meeting, and I would 24 suggest that is a reflection of a low level of confidence on 25 behalf of DOE that application of Appendix 3 will lead to
- - - - - - - . - - - - - , . - - - . , . -_,,,7
78
- e i t'h e selection of sites for character 1:ation that can be 2 determined to be suitable after character 1:ation.
3 MR. MURPHY: Let me add something to that point in 4
using the Department's own language, Mr. Chairman, and this 5
is what they are asking you and the public to accept at this 6
point in time, "To make a preliminary determination of 7
suitability when," and I am reading from page 189 of Volume 8
I of the Mission Plan, "when all of the issue 1dentified in 9
Chapter 1 remained unresolved to some degree at this stage jo of repository site investigations and development."
l 11 A l.1 of their technical issues rematn unresolved to 12 some degree, and yet they still insist that they can, and 13 they are not going to resolve them between now and December, 14 and yet they still insist that they can preliminar11y determine that three sites are suitable for development as 15 16 repos1 tories, not for further Investigat1on, but for I
17 development as repos1 tories.
18 That does not instill a great deal of confidence 19 in the process either among members of State governments or 20 the public or Indian tribes.
COMMISSIONER ASSELSTINE: You know, Joe, you are 21 22 right that this meeting is to discuss the timing of the 23 preliminary determination question, but it does appear to me 24 that the two elements are linked because ---
COMMISSIONER PALLADINO: I was suggesting that we 25 I
. . . I 79 J
.f
-9 1 only link them to the extent that it ties to this question.
2 COMMISSIONER ASSELSTINE: That is right, but as I ,
3 recall, many of the comments from the States were quite 4 focused on these guidelines don't spell out with a great 5 deal of precision what the criteria are going to bei 6 particularly disqualifying criteria, criteria that will bump 7 a site out.
8 COMMISSIONER PALLADINO: I agree that we got a lot 9 of very valuable contributions last time and we made changes j 10 bared on those.
11 COMMISSIONER ASSELSTINE: Nor do the guidelines 12 spell out with a great deal of specificity what information 13 is needed in order to make those kinds of judgments. And we 14 did not in the changes we made really go back and change 15 that fundamental approach of the 00E guidelines. We let 00E 16 take that flexible approach. We said all right, we won't go 17 back and try and rewrite the guidelines, and I think we all 18 recognized at the time that, first, there was a lot of 19 pressure on us to get the concurrence decision done and, 20 second, it might have been fairly impractical for us to try 21 and rewrite the guidelines ourselves.
22 Rather than bump them back to DOE, I think what we 23 tried to do is provide some added assurance that th1s 24 process, this site selection process would work. And the way 25 we did that is to say that we want this. determination made i
i L
i
__ ,. - ,m
80
' i after characterization rather than before when we are 2
confidence that you will have the information.
3 Now whether it is after or whether 1t is after 4
character 11ation_has been largely completed in my mind 4
ooesn't make a whole lot of difference. But I think the big 5
6 difference is before you even start to gather that 7 information.
g I guess those are the couple of questions that I g had.
jo COMMISSIONER PALLADINO: Okay.
11 Fred, do you have more?
12 COMMISSIONER BERNTHAL: I just have a comment. My recollection of that very useful last meeting we had with 33 ja the States and Indian tribes was that at least some of the j$ difficulties were based on lack of communication and the g language not being clear and DOE and at least some members 37 of tha Commission reading th1ngs one way when they didn't 18 say that so clearly.
39 That in fact I thought was cleared up in what I 20 thought was a very useful meeting. I don't recall this 21 question of timing being the sine qua non of the whole 22 Process though. Now it may be that that 1s what you all have in the backs of your minds. I would have to go back and 23 24 check the transcript, but I don't recall that being raised 25 as the central 1ssue that made these guidelines acceptable
81
' to the States.
1 2 MR. FRISCHMAN: Once that position developed, we 1
3 were afraid to toucn it.
4 COMMISSIONER BERNTHAL: That may well be.
I 5 (Laughter.)
6 That is all sort of history, and I think again I 7
have to say at this point the Commission at least has to I 8 have concern that this process not De Jeopardized because of g what could be a serious legal difficulty raised later on.
l jo Again, I need to see an opinion on that.
11 MR. MURPHY: Let me suggest another concern the
, i; Commission ought to have had, and that is whether or not it 13 was the sinv qua none in the m1nds of all five voting 14 members of the Commission, that language d1d find its way j$
into your order and you should now be concerned with whether 16 or not you are going to allow the Department of Energy to h
I
, 17 turn its back on and walk away from that order or whether or ig not you are going to start a process to reconsider or 19 whether or not you are going to insist upon your order being 20 adhered to.
21 COMMISSIONER PALLADINO: That is our dilemma, yes.
l 22 Any more, Fred?
, 23 COMMISSIONER BERNTHAL: No.
24 COMMISSIONER PALLADINO: Lando?
, 25 COMMISSIONER ZECH: No, thank you, t
i i
l I
(
l~
82 7 .
( 1 COMMISSIONER PALLADINO: Welli thank you very much, 2 gentlemen. We appreciate your input. As usuali it is very 3 valuable and will be carefully considered.
4 MR. FRISCHMAN: I would like to say for all tf us 5 that we very much appreciate your being willing to hear us 6 and those others who are listec on the agenda today. I think 7 it goes a long way in our appreciation of how seriously you 8 take this issue and the whole repository issue.
9 Thank you.
10 COMMISSIONER PALLADINO: All right. Thank you.
II I am going,to suggest a short break.
12 COMMISSIONER ASSELSTINE: Good idea.
_ _ , 13 COMMISSIONER PALLADINO: Would we all try to be 14 back here by 11:30.)
15 (Recess taken from 11:22 to 11:34.)
16 17 18 I9 20 21 22' 23 2 W'.
J
. 5h 25 i i e
83 1 CHAIRMAN PALLADINO: Please take your seats.
2 Ladies and gentlemen, we are going to resume the 3 presentation scheduled for this topic on preliminary 4 determination.
5 At this time, I'd like to have Mr. Dave Berrick 6 from Environmental Policy Institute Join us at the table.
7 MR. BERRICK: Thank you, Mr. Chairman.
8 COMMISSIONER ASSELSTINE: Joe, do you want to try
- 9 and do -- well, I don't know if they object, but we might 10 do the last two together?
Il CHAIRMAN PALLADINO: It was suggested by SECY that 12 they be separate, so I'll follow --
13 COMMISSIONER ASSELSTINE: Fine.
14 (Laughter) .
15 CHAIRMAN PALLADINO: And they have discussed it 16 with the individuals.
17 COMMISSIONER ASSELSTINE: Great. Fine.
18 MR. BERRICK: We wouldn 't care , Mr. Chairman.
19 (Laughter) 20 MR. BERRICK: Mr. Chairman, I am David Berrick, 21 representing Environmental Policy Institute this morning, 22 and also two Texas citizen groups, Stand and Power, which 23 you have allowed to make a presentation this morning. I 24 will make an oral presentation on behalf of all three 25 organizations. We will submit separate written submissions
84 r
d
~' 1
- to you.
2 First, Mr. Chairman, members of the Commission, we 3
do thank you for the opportunity to appear this morning.
4 I think it 's important that we reiterate, as has 5 been said before, that there was an agreement. That the 6 Commission clearly in its concurrence order said that there 7 was an agreement that the Department of Energy would make a 8 preliminary determination of suitability at the close of 9
site characterization.
10 DOE acknowledges in the mission plan itself that
' discussio'ns at that meeting indicated a further agreement 12 on this question. We believe that for policy reasons the
-- 13 Department of Energy does not want to pursue that Id agreement.
?5 The basic question, we feel, before the Commission 16 is, was that original agreement signed; should the 17 Commission hold to that original decision? We believe that la it should.
19 As the Commission discussed on June 22, 1984 20 making the preliminary determination of suitability at the 21 time of recommendation will mean that it will be made on 22 the most general of criteria and the flinsiest of data.
23 We agree with observations made by the NRC staff 24 in Attachment 3 to SECY paper 85-258 -- which I believe was 25 presented to the Commission concerning the last meeting on i
I l
85 1 July 29 -- where the staff noted - and this is again 2 amplified in DOE's comments this morning and in DOE's 3 mission plan -- that they will make this preliminary 4 determination primarily on the basis of those site 5 selection guidelines that do not require site 6 charectorization.
7 As the staff pointed out, those are the most .
8 general kind, they are things like site ownership, for 9 example. And we would further point out that when you look 10 at Appendix 3, as was just discussed by the previous panel, 11 even those guidelines are not carried to a final 12 determinative Level 2 or Level 4 finding.
13 The Texas groups want to stress at this point that 14 there are no site-specific data on the Texas site. Mr.
15 Frischman alluded to that earlier. And that the draft 16 Environmental Assessment specifically says that no site-17 specific data have been collected. And the Texas groups 18 contend that no site-specific data will be collected prior 19 to the decision to make a preliminary determination 20 involving the Texas sites.
21 As the Commission, we believe, found in 1984, 22 making a preliminary determination of suitability before 23 characterization reduces it to a meaningless requirement.
24 As for the legal interpretation,'let me just make 25 three basic points:
86 1 We believe that the conclusion reached by the 2
Commission in 1984 that the decision should be made after 3 characterization is the best interpretation of Section d
113(f).
5 Looking at the plain meaning of the scetion, we 6
believe it's clear that the decision should follow 7
characterization. DOE alleges that there is no timing a requirement in the act for when this decision should be 9
made, and we suggest that 114(f) and, as Mr. Udall land Mr. j 10 Dingell in their letters to DOE and the Commission have
'I pointed out, does specifically set a time for that 12 decision, which is after completion of site 13 characterizaticn.
3d Next, DOE and other people, including the speakers 15 this morning, talked about the question of preliminary, 16 whether or not this is a preliminary determination and 17 whether or not there is significance that should be 18 attached to the word " preliminary."
19 We would just simply suggest that looking at 20 Section 114(f) and putting it in the context of the Nuclear 21 Waste Policy Act is pieliminary to a great many things, 22 including preliminary to the onset of the NEPA review 23 process itself. We cannot prepare a draft environmental 24 impact statement. We can certainly not obtain adequate 25 public comment unless we have alternatives.
~
87 1 And when we look at the structure of 113(f), it is i
2 the purpose of these provisions that we are debating to 3 come up with those alternatives to run through the NEPA -
4 process.
5 So it's preliminary to the onset and completion of 6 the NEPA process itself. It's preliminary to the 4
7 recommendation by the Secretary to the President of a final a site, and so on. There is a great number of following 9 decision points well before the question of even submitting 10 an application to the Department of Energy.
11 Similarly, we do not believe that this preliminary 12 determination is an independent determination. That it 13 must be taken within the context of Il4(f). It's sole
- 14 purpose in the act is to provide those alternative sites 15 for the preparation of the EIS. It is completely redundant 16 to insert it at the point where the Department of Energy is 17 already making a recommendation decision. l 4
18 Finally, I think it's important to address this 19 whole question of three suitable sites. I realize that i
20 that's not the issue on point here as to whether or not i
21 three suitable sites need to be done. But it's important j 22 because DOE has raised, as has a letter you have, I think,
?
! 23 received from the Senate, raises this specter of l 24 catastrophic events occurring to the repository program if 25 three suitable sites must be found after characterization. .
i i
.. . ~ . . , - , . . _ - .
4 88 i >
I 1
- First, I think it's important, again, to 2
understand that the idea that these sites have to be 3
perfect sites or that these sites have to be qualified for d
application, for construction authorization, have nd basis 5 in the statute themselves or in the legi'slative history to 6 our understanding.
7 They can only be -- the section can only be read 8 in the context of developing sites that are suitable for .
i 9
the purpose of implementing NEPA. As DOE points out in the t
to mission plan, there are many additional pieces of II information analysis, such as a preliminary safety !
12 analysis, that must be prepared before the DOE can apply 33 for a construction authorization.
i Id DOE has contended, and the issue has come up l 15 before, that it might have to characterize a fourth site, t 16 and this has raised a number of questions for a number of 37 people.
t I8 Without addressing the merits, I think it's 19 important to make the argument that Mr. Rusche himself made [
20 on July 29 before the Commission, that characterization of f 21 a fourth site or a fifth site, or a fiftieth site, would
-22 not reduce the probability of having an inadequate site to 23 zero. That that probability is certainly going to exist !
i a [
24 under anyones} scenario. l
. 0/ I 25 The only way to reduce that probability is through f i i ,
F F
89 1 a technically conservative program, which we believe that 2 the Waste Policy Act and the NRC regulations call for. The 3 NRC itself in proposing revisions to Part 60 has suggested 4 that because of the extensive interactions in developing 5 site characterization plans, site characterization 6 activities, that there will be timely identification of 7 licensing problems. We will not find ourselves at the end e of the road suddenly beset by an inadequate site and
- ' finding ourselves with a multi-year delay.
10 Finally, I think, i t 's just important to point out M that a fodrth site will be characterized, as will a fifth 12 site probably, and that will occur in the second repository 13 program. It's not an obligation on the part of the
'd Department that can be avoided in any case.
15 Finally, just on the point of the Commission 16 action. Again, we believe that the order that the 17 Commission issued in 1984 is the best interpretation of 18 114(f) and has sound policy reasons.
19 It's not clear, however, that this issue as DOE 20 has interpreted really affects the letter of the guidelines 21 because -- and Mr. Rusche said earlier today -- the changes 22 that were made at that time struck any reference to this 23 determination in the guidelines. So, as DOE is now 24 interpreting this doesn't cast any specific alteration on 25 the guidelines themselves.
9 90 T' .
E I At this point we would suggest that the Commission 2 reaffirm, for the reasons I have discussed, its original 3 order and to continue to pursue resolution of this conflict d
through the Nuclear Waste Policy A;t procedures such as 5 comments on the mission plan, comments by the staff on the 6 project decision schedule which the Commission has already 7 forwarded and, I assume, will continue to forward.
8 Thank you.
9 Thank you.
CHAIRMAN PALLADINO:
10 COMMISSIONER BERNTHAL: I will try to answer any
'I questions at this point.
12 You might help me clarify CHAIRMAN PALLADINO:
-- 13 something with regard to the requirements of the Id Environmental Policy Act.
15 When it says that we must address alternatives, if 16 one had addressed alternatives and the alternatives didn't 17 pan out or it may turn out that you thought they were 38 alternatives but you did examine them, does it mean you 19 must always have -- come up with alternatives? Providing 20 you have explored alternatives.
21 For example, there may be things that the nation 22 may do for which it examines alternatives and finds none of 23 them viable. Does that mean then it can't go ahead and 24 make its decision on the remaining viable one?
25 MR. BERRICK: The act goes a long way towards
91 1 limiting the scope of the NEPA alternatives requirement.
2 It limits the alternative sites, but it also limits issues 3 such as the timing of the repository and the technology.
4 So the act itself in 114(f),go,es a long way 5 towards limiting exactly that issue. The only alternatives 6 that are left for consideration are essentially the 7 alternatives that we are trying to identify here, which are 8 those three sites which in our opinion have been 9 characterized and have been found to be preliminarily 10 suitable.
M But we believe -- I'm sorry. But we believe that 12 is still a requirement under NEPA that those must be 13 reasonable alternatives. An unsuitable site, we doubt, la would suffice as a reasonable alternative.
15 CHAIRMAN PALLADINO: Yes. I was only addressing 16 the very limited question. If there are three sites that 17 are evaluated -- whenever it is done -- and it turns out is that one or two are not suitable but one is, is not the 19 NEPA requirement satisfied so far as evaluating 20 alternatives?
21 MR. BERRICK: We don't believe that it would be.
22 And I think that we would also point to the legislative 23 history and the scope of which Congress restricted those 24 alternatives. It clearly specified which alternatives 25 would be considered in the preparation of this EIS.
92 I I So, it has narrowed the issue of alternatives and 2
has defined what constitutes the alternativer. But they 3 would still have to be reasonable in terms of implementing 4 the National Environmental Policy Act.
5 CHAIRMAN PALLADINO: Let's assume they are 6 reasonable, that it was evaluated on the best information 7 available and some real effort was made to get the 8 information, and the information was gotten, and it was 9
determined that one or two of these sites is not suitable.
10 Has not NEPA's requirement be satisfied because
" the three sites were evaluated?
12 MR. BERRICK: We would argue, no. But that would 13 not mean that a court, looking at the reasonableness test, ld wouldn't come to an alternative conclusion.
15 CHAIRMAN PALLADINO: Well, the reason I asked the 16 question, you seemed to imply that it was very clear in 17 114(f), and I've got to admit I went over it hurriedly la here. I didn't find all that clarity.
19 COMMISSIONER BERNTHAL: I think the impression 20 that it's clear is created by something that in itself is 21 unclear, and that's the numbering. It happens that there 22 is a number one and a number two in this process.
23 And it is true that in 114 (f) number one is 24 indicated to be the characterization, and number two 25 preliminary determination. Whether there is any meaning to
93 I that in the law once again, I guess, is up to Congress or 2 the courts to decide.
3 MR. BERRICK: We would point out again to the 4 Commission that in crafting the Waste Policy Act it's very 5 clear that the Congress spent a lot of time looking at the 6 NEPA issue. The whole question about restricting NEPA in 7 the early stages; of limiting the EIS to Just a single 8 point in the process indicates to us that Congress did 9 spend a lot of time looking at exactly this issue.
10 We would Just have to disagree with the general u conclusion that the Department has that Congress Just 12 somehow didn't identify more clearly what it was that was 13 intended at the only point in time where a full 14 environmental impact statement is actually required.
4 15 I think that you have to look at 114(f) in the 16 context of the legislation and what was called at that time 17 the NEPA road map, to use the expression that was used in 18 the committee reports.
19 This is the only place in which the EIS was done.
20 Congress very deliberately crafted the application of NEPA 21 to this statute. I think 114(f) needs to be read carefully 22 and this subsection involving alternative sites needs to be 23 taken within that context.
24 CHAIRMAN PALLADINO: Commissioner Roberts, any 25 questions?
l l
94 I
I E Commissioner Asselstine?
2 Just a question nor two COMMISSIONER ASSELSTINE:
3 on that point that you raised, Joe.
d Dave, if you looked at another example, hot 5
nuclear waste repositories and outside of the confines of 6
this act, isn't what Joe described basically right, what 7
NFPA requires is a good-faith look for alternatives.
8 It could well be that the conclusion would be, "Well, we looked. We looked at a number of different 10 sites, for example, for nuclear power plants within the II service area of.this particular company and we Just didn't 12 And this is the one that find any other acceptable ones.
13 we are going to go forward with because when we looked, Id various sites had different problems."
15 So, if you look Just at NEPA outside of the 16 confines of the waste repository proceeding, I think he's 17 basically right; isn't he?
18 MR. BERRICK: We would concede that a court, l'
looking at that reasonableness test, may conclude --
20 COMMISSIONER ASSELSTINE: But wasn't one of the 21 key concerns of the Congress -- and I think in both the l
22 House and the Senate -- that this process was very 23 complicated and very complex, and you had at least two r
24 agencies, Fbderal agencies, involved in various aspects of
. G' 25 the decision -- DOE and NRC -- at various decision points
,r ,
-- . -- , - , . . ~, - , - - - - - , - - . . -
- 95 I throughout the process, selecting sites, characterizing 2 sites, recommending a site or nominating a site, or 3 selecting a site to be developed for licensing process.
4 Wasn't there a lot of concern on the part of the 5 members about, "Well, how does NEPA, how is NEPA going to 6 apply this process and are we going to get ourselves into 7 endless court battles about when you have to have 8 environmental impact statements; how many environmental
. ' impact statements do you have to have; which points are 10 actions that trigger EISs and which aren't?"
11
- So that what the Congress was trying to do is 12 spell out how NEPA applied in this particular case to bring 13 some rationality to the process and minimize the potential 14 for endless litigation on this. Wasn't that part of what 15 the Congress was trying to do?
16 MR. BERRICK: I think that's exactly what it was 17 intended to do, and there was in every draft of the bill, la virtually, an effort to limit this whole question of 19 alternatives as well.
20 COMMISSIONER ASSELSTINE: Is the crux of your 21 point in terms of the clarity of the statute the fact that 22 it does require the determination either in the latter 23 stages or after characterization?
24 Does that really turn on the fact that this whole 25 discussion came about in the context of limiting and
96 I I defining the environmental impact statement 2 responsibilities for the repository, how the issue came 3 about and where this requirement is found in the act, and d the context that it's found in terms of spelling out what 5
has to be done to meet it?
6 MR. BERRICK: Essentially, that's correct. We 7 don't believe you can take that preliminary determination 8 and make it this rather independent, stand-alone 9
determination.
10 COMMISSIONER ASSELSTINE: Pull it out of the 11 coniext and then Just shift it around wherever you want.
12 Okay, that's all I have.
-- 13 CHAIRMAN PALLADINO: Fred?
l' COMMISSIONER BERNTHAL: Let me just ask you the 15 question that I raised a while back.- It really goes to the 16 question of what remains to be done as a technical matter.
17 Let's stand aside, for a moment, from the procedural 18 questions and the legal questions.
19 What, in your judgment, would have been intended 20 technically if the preliminary determination were to wait 21 until all characterization had been done and therefore, at 22 least I think as this part of the law reads plainly, the 23 President is prepared to make application for a 24 construction authorization.
25 What else would remain to be done technically?
i
97
{' 1 MR. BERRICK: Well, I am going to just refer you 2 to a statement made by the Department of Energy in the 3 mission plan in response to comments on this specific 4 point, page 140 of Volume 2, where they say, "The data l
5 collected during site characterization will be those needed l 6 to demonstrate compliance with those siting guidelines that l
7 according to the act require site characterization for, a their application.
9 "Among them are both technical guidelines as well
. I 10 as site and system guidelines for the entire waste disposal ,
il system. Compliance with each guideline is the minimum 12 requirement for site recommendation.
f i 13 "In order to receive a construction authorization l 14 from the NRC, however, DOE will need to demonstrate more 15 than compliance with the siting guidelines. It will need ;
16 to prepare a preliminary safety analysis report; it will l 17 need to demonstrate compliance with NRC performance 18 objectives for various subsystems of the waste disposal 19 system, and submit a more detailed repository design. l 20 "In order to meet those requirements, DOE will 21 need to collect some data beyond those required of the !
22 demonstration of site suitability."
l 23 So, I am Just suggesting that after l
l 24 characterization there are additional analyses and 25 additional technical data, perhaps, on things like waste I
l i
l r
-. - - . - - , , ,n - ,--
- 98 I 3 I I forms and repository logistical systems, and other kinds of 2
things, which will have~to be completed -- safety analysis -
3 - before we get to the point of going to the Commission and d
applying for a construction authorization.
5 Furthermore, in the statute itself 114 (a) -- I 6
don't have it in front of me -- but il4(a) has a list of 7 documentation and support material that the Secretary is 8 supposed to forward, I believe, to the President or the President to the Congress, in making the recommendation on to the final site.
" The environmental impact statement is obviously 12 one. But there is a significant, lengthy list of 13 materials. I just don't have that section in front of me.
It's 114(a)(1), which we would believe would require 15 additional analysis.
16 COMMISSIONER BERNTHAL: Well, it's interesting 17 that DOE itself makes tha.t interpretation because -- I 18 don't know whether you agree or not, but to me it would l' almost look like a plain reading of the language of the law 20 would indicate a fairly high degree of certainty at the end 21 of the characterization process before that would then lead 22 rather quickly into an application for construction 23 authorization.
24 But I think I have heard what I need to know. I 25 appreciate your opinion on that.
99 1 CHAIRMAN PALLADINO: Okay, Commissioner Zech?
- 2 COMMISSIONER ZECH
- No, thank you.
3 CHAIRMAN PALLADINO: Well, thank you very much.
4 MR. BERRICK: Thank you, Mr. Chairman, and thank 5 you again on behalf of all three organizations for the 6 opportunity to make a presentation this morning.
7 CHAIRMAN PALLADINO: Well, you 're welcome.
8 9 .
j 10 2
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 i
[
100
! I We will now near from Loring Mills ano Jay 511 berg.
3 MR. MILLS: Mr. Chairman and Commissioners, I am Loring Mills, and with me this morning is Jay S11 berg, our legal consultant on this issue.
My comments will not be redundant of the prior 7
nine presenters. It has been a lengthy meeting and I will try to make them brief.
9 10 We were intimately involved in providing utility 11 industry input during the Congressional development of the .
12 Nuclear Waste Policy Act, and the Policy Act does entail many compromises. Implementation of that act is of vital 33
- ja concern to our memDers ano the electric 1ty ratepayers.
We are pleased to have this opportunity to present 15 g our views on the timing of DOE's preliminary determination 17 of suitability. Making the preliminary determination is 18 quite separate from meeting the site selection guldelines.
i9 We fully concur with the position of the 20 Department of Energy as set forth in the mission plan. The 21 preliminary determination should be made before DOE makes 22 1ts recommendation to the President of the United States, a 23 very, very insignificant step that the President needs to 24 have supported for the three sites to be selected for site 25 cnaracterization.
- 3 We d1d submit cetalled views on this when we l
. I 101 1
commended on the DOE draft mission plan, and we would 11ke 2
to provide to you for your consideration our more recent 3
4 oetailed written views on that.
we note that DOE's interpretation is consistent with that of the principal Senate sponsors, the floor 6
managers of the Nuclear Waste Policy Act.
7 Tne final language of the Act was a McClure 8
9 substitute to the House-passed version. Section 114-F was 10 modified to be consistent with the Senate amendments 11 clarifying that the preliminary determination 1s to be based on site selection guidelines, and there is no reference to 12 e results from site characterization in that regard.
13 j,
Unfortunately, there is little formal legislative history on the final version of the Nuclear Waste Policy 15 Act. Principal supporters did meet informally to agree on 16 certain amendments to the McClure substitute, a Senate 37 jg version of the House-passed bill.
Our understanding of the timing of the tim 1ng of 39 the preliminary determination when the bill was passed was 20 21 1dentical to that of Senator McClure as indicated 1n his letter in June to the Secretary.
22 More importantly, we believe that statutortly 23 C nstruction of the language,'when placed in context of the 24 entire site selection process and the deadline mandated for 25 accomplishing the requ1rements of the Act, really leaves no
102 1
other interpretation.
2 3
The use of the word " preliminary" Itself suggests 4 that the determination w111 be made at some time before the 5
completion of site enaracteri:ation, and you have discussed 6 that a. great deal this morning.
4 7
-After that. time, DOE is in a position to make its final determ1 nation and then apply for the NRC license.
8 9
There are more than one final determination by any
, io particular group of bodies. There will not be someone making i
- a preliminary determination and someone else making the 12 final determination necessarily. There will be more than j3 one.
j4 If the preliminary determination were to be required after site character 1:ation, the entire process of 15 g site selection becomes subject to an unacceptable risk, and j7 the schedules, and the schedules are an important part of ig the Act laid out in the Act, W111 not be met.
19 DOE would be required either to characterize more 20 than three sites, something inconsistent with the explicit 21 language of the Act, or face the unacceptable risk of large 22 schedule delays and hugh cost uncertainties should one of 23 the initial three sites be found unsuitable.
! 24 DOE's interpretation is the only one consistent with the overall, the overall purpose, structure and mandate 25 of the Act. Also, DOE's interpretation of its obligation j i I l
1 i
I
-e - - -
- ,, :- ,---,e -
103 f
' 1 under the statute is to be given great weight.
2 The Court of Appeals for the District of Columbia 3
recently reinforced this siew 11 1ts decision affirming DOE's interpretation of the one-time fee structure pursuant 5
to the Act. Here we believe the Commission should accede to 6
the interpretation of DOE, which is the principal agent 7
respons1 e r implementation of the Act.
8 Certainly the Commission's foremost obligation is 9
to ensure the safe isolation of nuclear waste. Yet the Act 10 33 also provides deadlines to all federal agencies for accomplishing their responsibilities.
12 The Commission must view its responsibilities as 33 y,
well as those of the Department of Energy in light of the pr gram Djectives of the Act, including the schedules 15 g mandated by Congress.
As to the ~ 1ssue before us today, we believe NRC's 97 position on the timing of the preliminary determination as 18 reflected in the comments on the draft mission plan becomes 39 untenable when all program objectives are considered.
20 Thank you.
21 Mr. Silberg and I will be pleased to answer your 22
""*"t'0"**
23 COMMISSIONER PALLADINO: All right. Thank you.
24 One question. I don't think there is any dispute 25 acout the fact that there was an agreement reached between l
l l
l . - ._ .- _ ,
104 F
( l 2
the Commission and DOE on the preliminary decision being 3
made after site characterization. Is there any dispute about 4 that?
COMMISSIONER ASSELSTINE: Well, I think between us 5
6 and Mr. Rusche t h ,e r e is a dispute.
7 COMMISSIONER PALLADINO: About whether or not ---
l g COMMISSIONER ASSELSTINE: He says there wasn't an 9
agreement, that he did not agree that the determination in would be made after rather than before. Our decision is j
ti clear, but he has told ys both today and before, whenever we 12 met a few weeks ago, that that is not what he agreed to.
COMMISSIONER PALLADINO: Well, okay.
_ 33
~
COMMISSIONER ASSELSTINE: I agree with you. I think 34 i
33 it is clear.
g (Laughter.)
17 COMMISSIONER PALLADINO: I think it is clear. Even 18 though my position at the time was I would rather be silent on the.1ssue. I feel that there was an agreement.
39 20 COMMISSIONER ASSELSTINE: That is correct.
COMMISSIONER ROBERTS: I think you and I were 21 22 silent. . ,
4 COMMISSIONER PALLADINO: Yes. We said we wanted to 23 be silent on that issue, and that was we didn't w$nt to take 24 25 a stand on that.
, , COMMISSIONER ASSELSTINE: I think you are
- ,,-.a v - - - -
n y
9 105
) I absolutely right, there was an agreement.
2 COMMISSIONER PALLADINO: But I do think there was 3
.an agreement. Well, let's assume there was an agreement, or
- at least I must say the Commission feels there was an 5
agreement. Now what is your view about having that come 6
back, since it was a part of the siting guideline review?
7 g
What 15 your view about that coming back, or having to come 9
back to the Commission for further consideration?
MR. MILLS: I would like to comment on that, and 10 j; then I would like to have Mr. Silberg kind of indicate what ,
might be an appropriate direction to proceed on to resolve 12 that question before you.
33 j,
I was here at that hearing on June 22nd of '84 fr m a different perspective in the audience. I also read 15 g the order as issued. I believe that there were different interpretations of what was said at the time. Typically 37 there was more than one lawyer in the crowd.
18 g, (Laughter.)
COMMISSIONER PALLADINO: There were a few of us 20 that aren't lawyers.
21 (Laughter.)
22 23 MR. MILLS: And that there was some ~ confusion. I believe it was also unbalanced in the sense of some people 24 understood quite directly what was trying to be accomplished 25 with that decision wh11e others did not fully understand the l
l l
5 &
106 1
2 significance of it at the time partly because of the amount 3
of time that they had had being involved with it. Others 4
uncerstooc it completely of what they were trying to 5
achieve. ,
6 Thus, do you really have any agreement when in 7
fact there was a difference of' understanding of the two g
parties that were involved?
9 COMMISSIONER BERNTHAL: I agree with you. That jo issue simply was not front and center, and the reason it was it not front and center, very easy to understand, was that ,
there wasn't any argument over it. There was an agreement 12 that 00E, and Jim felt I think rather strongly at the time,
__ 33 34 and since DOE acceded, and that is why it says that in our concurrence, there was no argument. It s1mply wasn't the 33 16 major issue of the meeting.
17 COMMISSIONER ASSELSTINE: I think there were two gg issues. I think there was-confusion on one and there was not 39 confusion on the other.
20 One issue being, when should the preliminary determination be made, I-think there was an agreement on 21 22 that.and there wasn't any' confusion.
23 There was a difference of vtew on what the 24 significance of that was in termsHof whether you had to have three valid sites at the end of the process, and there I 25 think It was pretty clear in the discussion that we agreed
107 U 1 we would simply disagree and not deal with that aspect of 2
3 the issue.
But I think you may be right that there was a l
difference in terms of background and understanding on the 6
8'9"'fiC'"C'*
7 COMMISSIONER PALLADINO: I didn't think there was !
any difference with regard to the timing.
8 COMMISSIONER ASSELSTINE: That is right, there 9
10 wasn't. -
]
i it COMMISSIONER PALLADINO: Even though I didn't think I wanted to interject ourselves into the timing, I thought 12
, there was agreement with the majority.
- 33 y, COMMISSIONER ASSELSTINE: Yes.
COMMISSIONER PALLADINO: Well, assuming there was,
- 15 then I guess I am still interested in the degree to which, 16 f or at least the requirement of the Commission to draw this l 37 I
back and re-examine its position.
j . 18 I g, MR. SILBERG: The guidelines themselves, as I -
understand them, are silent on this matter at the present 20 1.
time. We think i t would be appropriate for the Commission to 21 clarify its views as expressed in its decision, the decision 22 itself not being subject to any disagreement, and to 23 indicate what the current understanding is, what DOE's 24
- current position is and what NRC's current position 1s.
25 We don't think that involves a reopening of the
-- .--. -.--y ..m --.
.,v., -
,---wy --,+e.-
- e ,%.*~ ,ve- i,-,
108 P 1 9
2 guidelines themselves. I think, as most people would agree, 3
this was just not a central issue in the guideltne process.
4 So we don't think it is necessary that we have a wholesale re-examination of everything that has been discussed.
6 I think it would be useful to clarify the record 7
and to clear the air to remove the cloud that was mentioned earlier and make sure that it is clear as of today, it is 8
g not a matter in the guidelines and here are the positions of 10 the parties. We think that can be done based on the record ti developed at this meeting without a lot of additional 12 lawy'ering.
y3 COMMISSIONER PALLADINO: Okay. Let me see if 34 Commissioner Roberts has any questions?
(No response.)
15 i g COMMISSIONER PALLADINO: Jim?
) i7 COMMISSIONER ASSELSTINE: Two, and I will try and j gg keep them pretty much to quick ones.
i9 One is a related issue and has to do with the Commission's decision in the waste co'.fidence proceeding, 20 and I know that is something that is of vital interest to 21 22 you all because that is the basis for the Commission's ability to continue to license plants and for our judgment 23 2,
that plants that now have licenses can continue to generate spent fuel.
25 I think, as you will recall, a very important
)
f a
~
\
109 l
,a ;
2 basis or element in the Commission's waste confidence decision was our reliance upon the enactment of the Nuclear 3
i 4
Waste Po11cy Act and that this provided a framework that would really move us towards a successful solution to the 5
waste problem and on a timely basis within the confines of 6
the time periods that were defined by the Court in the waste 7
e nfidence proceeding.
8 9
One of the comments that we received back when we put the proposed waste confidence dects1on out for comment 10 ij was wait a minute, you can't put such heavy reliance on the i
Nuclear Waste Policy Act. Tnere are ameiguities and i 12 j) questions of interpretation about what the Act means and how
]
j j, th1s process is all going to work.
j And the Commission in its waste confidence 15 l
g decision says welle you know, we have looked at this and we
- j7 don't see a big problem here. For example, the only area 4
jg where people had suggested perhaps that there might be an
- j9 ambiguity was on the timing of this preliminary 2
20 determination.
1 We have worked out this agreement with DOE where 21 I f
we have resolved that 1ssue and we don't see any 22 ambiguities, and that is the basis for our conclusion that 23 ur Judgment is right in the waste confidence proceeding 24 that the Act really does move us forward substantially in 25 i '
~
resolving this problem and solving it on a timely basis.
t 4
i
[
l 110 r-,
! I
,?
2 I guess what I am concerned about is doesn't the 3
mere fact that now we have this ambiguity and now we have an
, 4 open dispute over the timing of the preliminary 5
determination, doesn't that call into question the validity i
6 of the Commiss1on's waste confidence decision and reopen 3
7 that whole matter that I think 15 probably of vital interest to your memoer companies? It seems to me it does, but !
8
- g would be Interested in your reaction to it, and I am going 1
10 to ask our staff tne same question.
ti MR. SILBERG: *Without going back, and I don't have
- a 12 t r.e text of the decision in front of me, again it would not appear to me that the timing of the preliminary decision is
, _ _ _ 13 14 of such central interest to the viability of the nuclear i
j$ waste program and the Nuclear Waste Policy Act as a basis 16 for your waste confidence decision that a change on that 17 1ssue would necessarily reopen the waste confidence 18 d*C1810D' ig There are indeed going to De lots of motters which 20 will come up for challenge as people 90 down the read 21 implementing the Nuclear Waste Policy Act. There have 22 already oeen a number of lawsuits and there wi,1,1 be more, !
can assure you.
23
~
24 The fact that people may dispute on 1ssue eo involving implementation of the Act doesn't mean that the . C-25 process isn't moving along. Indeed, I think everyone would 4
111
--- agree that the process is mov1ng along. It may not be at the I
speed that some people would like, it may be too fast for 2
some and not fast enough for others, but I don't see any 3
wholesale change in the nature of the program that would 4
such that would undercut the underlying basis for the waste 5
confidence decision.
6 MR. MILLS: I would like to add a comment. I do not 7
recall when the Commission finally made its waste confidence 8
rulemaking determination.
COMMISSIONER ASSELSTINE: August 31st, 1994.
10 MR. MILLS: It was almost a year ago at this point.
I thought that the elaboration that you made and putting as much emphasis on the preliminary determination may have been
. . 13 l a small element of that consideration. But I suggest that there were a great many other considerations and that was 15 not a preemptive sort of element.
16 COMMISSIONER ASSELSTINE: I think that the emphasis g
on the Act and the benefits that the Act provides in terms of providing greater assurance that in fact there will be a solution available within the time specified by the Courts is something that was a fairly central element of the dactsion.
22 T P. * ! 1s one of the two items that the Commission 23 chose to address specifically in answering the charge that wait a minute, you can't put that heavy a reliance on the
. e 112 I
$ I Act. The Act itself creates questions and uncertainties anc 2
ambiguittes. So how strong a one this is, I don't know, but 3
4 this is only one of only two examples that the Commission 5
specifically referred to in saying that is not a problem.
6 But you might want to take a look specifically at that 7
reference because it is something that is I guess of concern 8
to me.
9 The other question I had is a somewhat broader to one, and mayDe you nave addressed it to the extent of your it answer, but when I go back to the situation a year or so age 12 and I look at where we are now in terms of the concerns that g3 the States have about the site selec* tion process and how the 34 guidelines are being applied and interpretec, I recall a 33 statement that somebody made to me shortly after the Waste 16 Policy Act was enacted.
i7 They said to me, well now we have got the 18 framework and the challenge is to make it work, and to a 39 certain extent that is tied into the waste confidence 20 decision.
I wonder whether you are at all concerned or 21 22 troubled by the fact that at this early stage in the process we seem to have, particularly with reopening this question, 23 such fundamental disagreements between the States and tt 24 seems to be virtually all of the States, on the one hand, 26 and tne Indian tribes and the Department of Energy on the
113 1
other, on how the site selection process is moving forwarc 2
to the extent of the number of lawsuits that have already 3
Deen filed in the process?
I guess to what extent are you concerned that the 5
way this process is being 1mplemented and the way the 6
framework 1s being 1mplemented, particularly on the site 7
g selection part of things that we are losing the kind of consensus that seems to me so important to making that 9
framework work and achieve a successful result at the end, 10 gg the successful result that we all want, which is a good, g7 safe repository located in an adequate area?
j MR. MILLS: Commissioner, there is no question that
,3 3,
we have some concern about the process and we also have l c neern a ut the schedule, both of which were defined in 15 the Act as it was passed. It was debated a sign 1ficant amount at the time of the development of the Act that the 37 prolonged effort could go on for an indeterminate period 18 unless Congress established some time periods under which things should be ach1eved.
20 In the earlier drafts of the legislation there 21 22 were much shorter times than there are in the final draft of the Act, and that was debated and of great concern. We are 23 24 comfortable that there are deadlines or at least scheduled components provided. We are uncomfortable that they are not 25 all being met.
! =
1.
l 114 h, -
~
- i 2
We see these many challenges that are taking place i
1 3 as almost more in line with how can I impact the schedule 4
rather than how can I achieve a solution, and that is
! 5 disturbing to us.
l 6 We view some of these lawsuits in that category.
We want the process to go forward, and we believe it is very
]I 7
8 significant to get this one behind us. We believe that an 9
understanding between the Nuclear Regulatory Commission and 10 the Department of Energy on this would be appropriate. We 4
j ti also recognize that it is really the Department of Energy's y responsibility to make the preliminary determination and to
)
g make their recommendation to the President for selecting the I l
. y three sites.
There will be a number of decision points through
} g3 the process which w111 be challenged. I expect that tf this 16 g7 were not one, there might be another. We are concerned about i 18 the schedule and are concerned about the site selection i
39 process. We do believe the site selection guidelines, which l
4 20 were concurred in by the NRC a year ago, are appropriate, and we believe there should be all effort to implement them.
21 l
22 MR. SILBERG: I think while we would all like to ;
1 see a process that works smoothly without litigation, ! l 23 l don't think any of us assumed that that would happen, and 24 indeed the Nuclear Waste Policy Act as Congress enacted it 25
], was based on the assumption that there would be disputes and t
I
. t 1 115 1
i there would be litigation.
2 I So the fact that people are in disagreement, anc j 3 the fact that people are in Court coesn't mean that the f 4 ,
I process isn't working. Congress in fact put in judicial 5
' review provisions and put in the expedited judicial review 6
i provisions and put in a NEPA road map recogn1:1ng that there 7
were to be these disputes and providing a mechanism to ,
) 8 9
resolve them.
i I wouldn't give up hope certainly. Indeed, one i 10 3; could argue that the* process is working now exactly the way i{ #
We all hope that j g the Congress thought it was going to work.
i it will work smoothly, but that doesn't mean that the 33 y, process isn't working, j COMMISSIONER PALLA0!NO: May ! make a comment with 15 i
regard to wasth confidence. I would urge us not to abandon t l g I
(
the waste confidence document as problems are uncovered ;
97 i
18 unless they are so great that the basis for the waste ;
i.
confidence document is completely destroyed. I haven't l 39 l
I reached such a point and I think it is something we ought to !
20 l
think about carefully. Maybe I will stop there.
21
! MR. MILLS: I concur with that, Mr. Chairman. I 22 ,
i '
would also comment on a dialogue that went on a few minutes 23 ago about the environmental impact statemen't requirements. , ,
24 A
l I believe early on in the drafting of the . G 25 I
legislation before it was passed there was one Itst put l
! i
116 1 6 I I 2
together of perhaps 27 different EIS's that would have had 3
to have been mace in order to achieve the process as
. 4 originally conceived.
5 A great deal of work went on In this area to 6
assure that that was not the roadblock in getting on with 7
the Act, and I think the Act is fairly clear in that regarc 8
on how to k'oceed without running through an impossible 9 ma:e.
to COMMISSIObER PALLADINO: Do you have more?
in COMMISSIONER ASSELSTINE: No. ,
12 COMMISSIONER PALLADINO: Frec.
i3 COMMISSIONER BERNTHAL: No.
34 COMMISSIONER PALLADINO: Lando?
15 COMMISIONER ZECH: No. I woulo Just like to thank to all the participants for a very useful discussion on a very, 37 very important matter, and I thank them very much, all of 18 them.
ig COMMISSIONEP PALLADINO: I think we all share your 20 view on that.
21 Well, we thank you, Mr. Mills and Mr. S11 berg.
22 MR. MILLS: Thank you.
COMMISSIONER PALLADINO: Now, let's see, we did not 23 24 plan a presentation by the staff, but if there are Commissioner questions, we do have at least two 25 representatives from the staff and perhaps more who would be 1
i
O
- 117 1
willing to try to respond.
2 I gather you had some.
3 COMMISSIONER ASSELSTINE: I have a couple, yes.
4 COMMISSIONER PALLADINO: Did you have any questions 5
6 also for the staff?
7 COMMISSIONER ZECH: No.
COMMISSIONER PALLADINO: Did you?
g 9
COMMISSIONER ROBERTS: No.
COMMISSIONER PALLADINO: Fred?
10
,, COMMISSIONER BERNTHAL: I may. I have a comment or two, or a request.
12 COMMISSIONER PALLADINO: Okay. Go ahead.
,3 Welcome, gentlemen.
COMMISSIONER ASSELSTINE: I guess I had one sort of 15 technical question and a couple of sort of legal questions.
g On the technical side, one of the things that we 37 3, heard from the States is the amount of information that is j,
available now, particularly on some of these sites, is really quite limited and there are a good deal of 20 uncertainties about that information. The States were saying 21 they Just d1dn't see how you could make a determination, 22 whether you call it preliminary or final or whatever, a 23 determination of site suitability.
24 I guess I would be interested in the staff's view 25 of how comfortable tney are from a technical standpoint with
118 I
i 1 2 the level of in f or mat ion on some of these sites and the 3
ability to make a determination, whether you want to call it 4
preliminary or f1nal, a determination on site suitability?
5 And I guess I would raise with you the same 6
question I raised early on in the morning, and that is when 7
I look at our regulations and the definition of site character 1:ation, it seems to be sayIng that the Lind of 8
g detailed activ1tles that will go on during site 10 character 1:ation are to develop the information needed to ji make a determination on site suitability.
12 I guess I would ask for your comments both on that
__ 33 and on the level of uncertainties and the limited j, Information that is now available on the various sites since 15 you all have gone through the draft environmental 16 assessments.
17 MR. BROWtlING: Nell, clearly, the amount of ig information and the data available today is nowhere near necessary to make a licensing decision. In fact, in most of 99 20 the cases, except for the case of Hanford where a draft site character 1ratton report had been prepared early in the 21 22 process, we have not yet seen the DOE's detaileo plans for character 1 ring the sites. Each one will probably be 23 74 different to some extent.
5 clearly there is a level of uncertainty 25
- 3 inherent in the amount of information you have for making
-- - - -- .-- _ - . - . _ _ . . ~ . - . _ _ .
119 4
l* 1 2
any kind of a decision, even a decision to pick which site l
to make the investment decision to continue characterizing 3
the sites which, as Mr.Rusche point out, is a very expensive 4
proposition and it requires a lot of consideration. But that
! 5 1s their decision at this stage of the game.
6
< I might defer to Hub Miller, whose people have 7 ,
i 8
done the detailed technical evaluations of each of the nine 9
sites represented by the nine draft environmental
! assessments to get any more detail with regard to the 10 i
j; technical data that is available for specific sites.
i It varies from site to site. The sites that are 12 currently under federal control clearly have the major 33 j 3, amount of data. From our technical standpoint, we would like j
to see the process continue where the data is generated 15 g necessary to make the decisions. So anything that could be (
j i7 done to keep the process going so DOE can continue to jg collect the data necessary to make these key decisions is going to be very important.
39 MR. MILLER: I wouldn't say anything other than 20 that, as Bob said, at each of the sites there is significant 21 uncertainty about key site parameters, and it won't be until 22 23 site characterization is conducted that we will resolve 1ssues relating to the geologic related site suitability 24 questions. I don't know how else to say it. The only 25 l
benchmark to use really is relative to what is needed for i <
i I
120 1
2 licensing and, as Bob said, we have got far less than what i
3 we will need for that certainly. l 4 COMMISSIONER ASSELSTINE: Bill, my second question ;
5 1 think really goes to you, and that is DOE has this !
6 approach, and they want to make the preliminary 7
determination early at the time that they recommend the a
8 three sites for characterization.
! 9 Particularly given the potential that what we i
4 to could end up with is a license application where only one or i it perhaps two of the three sites, but potentially only one of
! 12 the three sites is still valid at the time that they come in I
f __, g3 with the license application and that the other two a
]. 14 alternatives wash out, do you think that approach i s consistent with the Nuclear Waste Policy Act as a whole, and i$
i 16 what potential difficulties do you see for our NEPA i 17 responsibilities under the Act?
MR. OLMSTEAD: You hand me a loaded question that 18 39 is hypothetically phrased so that I have to say that I don't think that we couId forward at that point.
20 1 have to say that the one place ! disagree with 21 22 the 00E in this process is in equating the preliminary determination for purposes of 114-F with the nomination of 23 i
24 three sites for characterization in the Act. ! do not thinh l 25 that tnose are the same activities.
, I think they have a lot of discretion as to where ,
1- i 1
i p.. .,,am - - -,- .- , - . ,-.-- , -,,---n_.-n,.n. -, , , , _ - - - . - , . - . - , . . . . . , - , , -
-n+-,-, - . - .
, 121 for the preparation of an environmental impact statement, which is what the 114-F finding 1s.
I have a lot of trouble with the after-the-fact legislative history we have Deen getting because in the 10th Circuit, which is not exactly a liberal bastion, they Just 5
threw out the in the mill tatlings case all of the 6
after-the-fact letters that were written by Congress as 7
inappropriate for consideration in interpreting the statute. l 1
! 8 So we have to look to the Congressional record. It is not really clear. It was on two days, one day in the to 1
j, House and one cay'in the Senate in the closing days of the session. And on the Senate side you don't find much, but you 12 l do find an interesting statement by Senator Simpson to the ;
4~' g l .
- j. g effect that out of the five sites, two that weren't selected !
as three to go forward with the character 12ation, couIdn't 15 16 be used for the second repository in the selection of five 17 sites. But the two that were characterized but not 18 recommended for the application for the repository could be i
19 used as one of the three sites for character 12ation for the 20 second repository.
21 COMMISSIONER ASSELSTINE: So that supports the t
- 22 House interpretation, doesn't it? .
23 MR. OLMSTEAD: That clearly supports the view that l 24 they need to be suitable for development as repositortes' P'.
1 25 after character 12atton.
1 i
i 122 1 I
- l
'- 1 COMMISSIONER ASSELSTINE: That is interesting. !
2 take it your criticism of after-the-fact attempts to provide
]
, 3 after-the-fact legislative history, that is, here is what we 4 intended the law to do, that criticism goes primarily to the
! l l 5 Senate letter, does it not, as opposed to the House letter? i L
, 6 MR. OLMSTEAD: Right.
L l '
7 (Laughter.)
8 I have to say that what I think they intended was [
9 they understood that the Nuclear Regulatory Commission had i 10 had a lot of litigation of alternative sites, and that there ;
1 l 11 was going to be a hugh problem with alternative sites 1, f j 12 they didn't do something.
I 13 COMMISSIONER ASSELSTINE: Right. l
! la MR. OLMSTEAD: And so they wanted to define the ;
15 process by which those alternatives were going to be weaned i
j 16 out and deemed acceptable for purposes of the environmental 1
f 17 Impact statement. l
! le They didn't have a very good idea about how all I
19 that process worked. I don't think any of them did, except i I ,
i 20 that they knew that at some point the Secretary had to 21 prepare a draft impact statement and he had to have a final 22 Impact statement and something could happen between those j 23 two points. ,
i J 24 So they didn't want something that came in as a ,
i 25 part of the comment process in the final impact statement I
l (
! I
123 i .
? I and going forward with the licensing application to impact 2 the schedule.
3 So I think the reason they said preliminary 4 determination, they were referring to the dactsion of the 5 Secretary at the time he decided to prepare the impact 6 statement in the three sites, because that impact statement 7 15 going to start pointing at one, and he didn't want Courts 8 getting in there and telling him he couldn't do that.
9 So that is why I have always viewed him to have a 10 great deal of discretto.1 during site character 1:ation about 11 when he makes the determination of which site is going to be 12 the site under 113 that he submits as an application to us.
13 And the information developed subsequent to that I don't 14 think affects our ab111ty to adopt the impact statement.
15 But if he takes a r1sk and does it at the time he 16 nominates three sites, and two weeks into nomination ona of 17 the sites falls out, I think that we have problems. But I am 18 Just trying to give it a reasonable reading. I am not trying 19 to tell you it is absolutely clear.
20 COMMISSIONER ASSELSTINE: Right. The last question 21 I have I guess is the waste confidence decision question.
22 You heard my question to Loring Hills and Jay 511 berg. To 23 what extent do you think that this raises or at least calls 24 into question that aspect of the waste confidence decision 2$ where we specifically saye hey, we don't see ambiguities, 1
I
&
- 124 1
7
' I and to the extent that people pointed out any, we resolved 2 that one. We worked it out.
3 ,
MR. OLMSTEAD: Well, I have to admit, ! don't have
.i 4 a lot of insight into why that language got into the waste l
5 confidence proceeding because OPE and OGC and the five
- 6 Commissioners were the ones ---
7 COMMISSIONER ASSELSTINE: But it is there, i
i 8 (Laughter.)
l j 9 MR. OLMSTEAD: I assumed at the time it was an to effort in recognition of the agreement that was reached or i
11 that the Commission had put in the concurrence decision to
] 12 say to the public, hey, we don't have to worry about this.
1 .
1 13 We have real conficence that we are going to have good 4
14 sites. Out beyond that, I haven't looked at that for a lot t$ of months, and I don't want to speculate.
i l 16 COMMISSIONER ASSELSTINE! I hadn't either, quite i
17 frankly, until very recently. I thought that whole issue was l 18 settled, but these issues have a way of unsettling l
i, th.mselv.s.
i i 20 I guess that is -all I have.
l 21 COMMISSIONER PALLADINOt Okay.
3
! 22 Fred, do you have any questions?
l
! 23 COMMISSIONER BERHTHAL! No. I have a comment or 24 two, but let's finish the questions here.
l 25 COMMISSIONER PALLADINO! All right. Are you through l
l
?
I L
e 125 I with the staff?
2 COMMISSIONER ASSELSTINE: Yes.
3 COMMISSIONER PALLADINO: Well, thank you very much.
4 Let me express the Commission's gratitude to all 5 of the participants in this morning's session. I know I got 6 a lot of insight that I didn't have when ! came in, and I am
.? sure all of us have benefittee.
8 We do thank you all.
9 Now there is a question as to when the submittals 10 that people said they were going to send in should come in.
Il ! haven't thought about a specific date, but it certainly 12 should be as soon as possible so t, hat we can make our 13 decision. If it could be done by the middle of next week, it 14 would be very beneficial to us.
15 Now are there other comments?
16 COMMISSIONER BERNTHAL: I had one question 17 actually, if we can take a minute, for 00E, and that is an 18 inquiry as to the status of the site characterization work 19 as of today. How would you characterize the status of that 20 site characterization work?
21 MR. RUSCHE: There is considerable work that has 22 been done at the two federally owned sites and no literal 23 onsite work at other sites, although there has been some 24 limited investigation.
25 I would say that as of the moment there is no site
. - . - - . - . _ _ . - _ - . _ .... -~
6 4
! , 126 a
i' I character 1:ation work going on. The site characterization 2 effort is the next step in the process after selection of 3 sites, and the development of site character 1:ation plans, I 4 which is an intensive activity involving your staff, States i
5 and others.
, 6 It will be only when we reach that threshold that 7 we would begin actual site characterization work under the i 8 Act.
9 COMMISSIONER BERNTHAL: So right now you are still 1
l 10 waiting for this preliminary stap to be completed then? +
- 11 MR. RUSCHE
- We are watting for the completion of ,
4 l 12 the environmental assessments and the nomination by the l
i 13 Secretary of five sites and the recommendation of three n .
la sites which should occur next year unless we find ourselves 1
- is in some other environment.
4 16 COMMISSIONER SERNTHAL: Okay. That is all I have.
17 COMMISSIONER PALLADINO: Thank you very much, Ben.
18 Well, we again express our appreciation to all 19 participants, and we will stand adjourned.
20 (Whereupon, at 12:30 p.m., the meeting adjourned.)
21 e e e o e e 22 i
4 i
4 22
}
I 25 ;
i e
L i !
, ,---~,,.--,--,.,.-~--.m.,, , - . . , , - - - - - - - , - - . - , , , _ - , ,,-_,,,,,%_- ._ , - - ,. ,, . - __ ,, ,-,,._,_-y,m.,y.
O e I 1 CERTIFICATE OF OFFICIAL REPORTER 2
3 4
5 This is to certify that the attached proceedings 6 before the United States Nuclear Regulatory Commission in the 7 matter of Commission ?!eetino e
9 Name of proceeding: Oral Presentation on Timing of DOE's Preliminary Determination on Suitability to '
of Sites for Development of Repositorie's (Public Meeting) 11 Occket No.
12 P l ace r Washington, D. C.
13 Date: Friday, September 6, 1985 14 15 were held as herein' appears and that this is the original 1
16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
Is (Signature) [g g%
(Typed Name of Reporter) Mary C. Simons 20 l
21 , g, l
22 . *2 23 Ann Riley & Associates. Ltd.
24 25
9/6/85 i o SCHEDULING NOTES TITLE: ORAL PRESENTATIONS ON TIMING OF DOE'S PRELIMINARY DETERMINATION ON SUITABILITY OF SITES FOR DEVELOPMENT AS REPOSITORIES SCHEDULED: 9:30 A.M., FRIDAY, SEPTEMBER 6, 1985 (OPEN)
DURATION: APPROX 2-1/2 HRS PARTICIPANTS:
- BEN RUSCHE ,
(5 MIN EACH) DOE
- RON HALF MOON NEZ PERCE INDIANS (IDAHO)
- DEAN TOUSLEY YAKIMA INDIANS (WASHINGTON) .
- TOM LEHMAN STATE OF MINNESOTA
- MALACHAI MURPHY STATE OF NEVADA
- STEVE FRISCHMAN i
3 , s . . - .
, a TESTIMONY OF DEL WHITE AND RON HALFMOON, NEZ PERCE TRIBE OF I DAHO, BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION SEPTEMBER 6, 1985 Mr. Chairman, members of the Commission, we are pleased to have this opportunity to present the views of the Nez Perce Tribe, which has been designated an affected Indian tribe under the Nuclear Waste Policy Act with regard to the Hanford site, on the matter of whether section ll4(f),of the i j
Act requires the Department of Energy to conduct characterization activities at potential repository sites before making a preliminary determination of the suitability of such sites.
The legal issue presented by section ll4(f) is complex and interesting, but does not lend itself to a definite ,
t answer. The Commission has available its own legal experts ,
to dissect that issue, however, and undoubtedly will be presented with a large amount of legal research on the matter, t
In our view, the section is ambiguous at best. We wish to focus, therefore, on considerations other than the precise ;
statutory construction of section ll4(f). L f
We would note first that DOE seems to be reneging on a l commitment made to this Commission and to the public that !
characterization would occur prior to any preliminary [
determination of suitability. As you well know, the Commission's I concurrence - not advice, but concurrence - in the siting guidelines is required by the Act. Our reading of the Commission's Concurrence Decision of July 10 is that
_ . . __ __ = --. - . . . .. .- __ -_ -- -. . . - -
j , -
- characterization must occur before any preliminary determination j of suitability. In fact, the Concurrence Decision cannot be read any other way. If DOE did not agree with the Commission's explanation of the agreement reached in June of 1984, it should have said so. DOE's current position creates at least two significant problems.
- First, it calls into question the validity of DOE's
! siting guidelines. Because the Commission must concur in the
- siting guidelines, and because DOE now intends'to violate a specific. term of the Commission's written concurrence, the validity of DOE's plan of operation is open to question. In
~ fact, DOE has practically asked to be sued on the matter, and l almost.certainly will be sued.
1 Second, when NRC announces that DOE has agreed to q something, and DOE much.later denies that agreement, public confidence in the process - including the confidence of the ,
Nez Perce Tribe - is shaken. The only way to minimize the inevitable controversy is to show the public that when DOE and NRC say a certain procedure will be followed, it will be i
followed. Shifting-and contradictory interpretations and agreements undermine the credibility of both agencies and, therefore, diminish public confidence in the process.
From a policy perspective,' we believe that characterization prior to preliminary determination .is the more sound procedure.
Congress must have wanted the preliminary determination to be
- a. decision of some significance. And if the decision is a 4
,c.*,-.<,,,,g .w..,. ,- y-#+ -,*y-, ,,,<r., e g .:. n gp .,-,-.c yb,-. ---,*un,.-r--wp,-
i -
l i
significant one, it obviously should be made only on the basis of the greatest possible amount of information. The process of characterization yields information and, therefore, should precede significant decisions whenever possible, including the preliminary determination. In this way, the protection of public health and safety is better served.
Finally, as a practical matter, the Commision and DOE will spare themselves a number of problems by agreeing that characterization will precede t'he preliminary determination.
As we have noted, the existing situation invites litigation and. is a demerit on the record of the program. t!nlike many problems, however, these are capable of correction. If DOE and the Commission simply agree that characterization will precede the preliminary determination, the problems we have discussed will disappear and no new problems from such a decision are readily foreseeable.
We would be happy to respond to any questions you may have.
f.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, J r.
)
NRC's Posture Concerning the )
Department of Energy's Timing of )
the Preliminary Determination of )
Suitability for Development of a ) 42 U.S.C. S 10134(f)
Site as a Repository Under Section ) 49 Fed. Reg. 28130 114(f) of the Nuclear Waste Policy )
Act of 1982 )
)
VIEWS OF THE YAKIMA INDIAN NATION On. July 10, 1984, following an extensive process, the NRC published in the Federal Register its final concurrence (49 Fed.
Reg. 28130) in the Department of Energy's general guidelines for the selection of high-level radioactive waste repository sites (10 CFR Part 960) pursuant to section ll2(a) of the Nuclear Waste Policy Act o f 19 8 2 ( "NWP A " ) , 42 U.S.C. S 10132(a). Before giving its final concurrence, the Commission had requested DOE to make several substantial changes to the guidelines as they had been submitted to the Commission.
Among the issues for which the Commission ultimately sought improvements in the siting guidelines was the timing of DOC's preliminary determination of suitability of a prospective site for development as a repository pursuant to section 114(f) of the NWPA. That section of the Act states, in part: .
-For purposes of complying with the requirements of the National Environmental Policy Act of 1969 . . . and this section, the Secretary shall consider as alternate sites for the first repository to be developed under this subtitle 3 candidate sites with respect to which (1) s ite characteri-i L.
zation has been completed under section 113; and (2) the Secretary has made a preliminary determination, that such sites are suitable for development as repositories consistent with the guidelines promulgated under section ll2(a).
In the revised guidelines which DOE submitted to NRC following the Commission's preliminary concurrence decision and extensive inceractions between the two agencies, DOE had on its own initiative inserted language in the guidelines to the ef fect that the preliminary determination of suitability would be made prior to site characterization, at the time that three sites are recommended for characterization. Numerous interested parties objected to DOE's ir.terpretation, as it goes against the natural meaning of the statutory language, which requires first characterization of at least three sites, then a preliminary determination of suitability, in that order. Moreover, because of another provision in section ll4(f), DOE's position has serious adverse implications for the Commission's ability to comply with its obligations under the National Environmental Policy Act of 1969 ("NEPA").
At its June 22, 1984 public meeting concerning final concurrence in the guidelines, the timing of the preliminary determination of suitability was a major, if not the major, topic ',
of discussion. Most of the representatives of af f ected States and Indian Tribes that addressed the Commissioners that day, including the Yakima Indian Nation, expressed strong support for the position that the preliminary determination of suitability should be made af ter site characterization was completed, and a host of reasons was offered in support of that position.
Commissioner Asselstine, with the apparent support of Commissioners Gilinsky and Bernthal and the abstention of Chairman Palladino and Commissioner Roberts, urged DOE Of fice of Civilian Radioactive Waste Management Director Benard Rusche to accede to the view that the preliminary determination of l suitability should come after characterization, and there should still be three apparently suitable sites at that time.
At that June 22 meeting, Mr. Rusche quite clearly agreed to the first request, concerning the timing of the determination, and declined to accede to the second, concerning the number of suitable sites that must be found at that time. As to the latter issue, Commissioner Asselstine and Mr. Rusche agreed to disagree, ,
j leaving resolution for a later time. But as to the timing, Mr.
Rusche's concession was unmistakable. The Commission's final concurrence decision agrees completely with this version of the events at that June 22 meeting, stating:
At the June 22, 1984 Commission meeting, the Commission l '
and DOE agreed that the preliminary determination required by section ll4(f) of the NWPA should be made after the i h
I i
l I l
t
completion of site characterization and not at the time of site nomination and recommendation. The Commission and DOE therefore agree that the last sentence of the first full paragraph in S 960.3-2-3 of Subpart B should be deleted.
49 Fed. Reg. at 28139, col. 3. DOE now takes the following incredible position, explicated by Mr. Rusche at his July 29, 1985 briefing for the Commissioners, concerning the meaning of this passage:
- 1) The first sentence quoted above has no effect.
- 2) The effect of the second sentence is that, while DOE must take the statement of its preferred interpretation out of the guidelines, it is perfectly acceptable to put the very same provision in the Mission Plan. (The Commission, coincidentally, has no concurrence authority over_the latter.)
- 3) DOE did not bring to the Commission's attention its disagreement with the obviously inconsistent language of the concurrence decision because the Department supposedly did not see any inconsistency.
In sum, DOE takes the position that the only thing agreed to..
at the June 22, 1984 meeting with respect to this subject was that its resolution should- be deferred to a later time. We submit that this conclusion cannot be reached from a reading of the transcript of that meeting, or from the concurrence decision.
The Merits l The Yakima Indian Nation presented its arguments in support i
of Commissioner Asselstine's view of this provision at the June 22, 1984 meeting, but they bear reviewing here. The first and controlling reason for interpreting section 114(f) to require the preliminary determination of suitability after site characteri-zation is that the plain meaning rule of statutory construccion requires this interpretation. The NWPA essentially curtails the !
effect of NEPA until the stage when DOE applies to NRC for '
authorization to construct a repository. Only at that stage must DOE prepare a NEPA environmental impact statement, which must, to ,
j the extent practicable, be adopted by the Commission as part of ,
its licensing. The consideration of alternatives in the EIS, j which has been repeatedly held to be the very heart of NEPA t l
compliance, is to be limited to those three sites which have been characterized and preliminarily determined to be suitable, in that order. ;
While Congress limited the general environmental law of the .
land by delaying NEPA implementation, Congress retained the (
driving force of NEPA by requiring that viable alternatives be l
i l
I considered by the decisien-makers. The seminal consideration of alternatives must still be a serious undertaking in the EIS for a
! repository. DOE's interpretation would mean that the EIS
' alternatives could consist of DOE's preferred site plus two sites I
which characterization has shown to be unsuitable. That clearly would not satisfy the NEPA requirement for a meaningful consideration of alternatives. Moreover, it would prevent the NRC from adopting DOE's EIS, thus causing a major delay in the waste disposal program.
A meaningful. consideration of alternatives requires that the alternatives be viable ones at the time when the EIS is being drafted, which is at the end of site characterization. It is inconceivable that an EIS could be found acceptable if the l
alternatives it considers were deemed suitable five years earlier, but are known at the time of EIS preparation, on the basis of characterization, to be unsuitable. Yet this is
- precisely the implication of DOE's interpretation of this passage. ;
Finally. the Yakima Indian Nation feels very strongly that j the post-characterization timing of the preliminary determination i of suitability is called for in order to provide an incentive for DOE to select the best possible sites for characterization. If DOE knows that it must have three suitable sites at the end of ..
characterization in order to submit a suitable EIS, it will have
! a strong incentive to choose the best sites it can for character-ization. It is apparent from the draf t environmental assessments .
- and the sites proposed to be recommended for characterization I therein that the current lack of such an incentive poses a serious threat to the prospects for successful accomplishment of this program's objectives.
Since the Environmental Protection Agency has eliminated from its environmental standards in 40 CFR Part 191 any assurance l
requirement calling on DOE to select sites so as to keep radioactive releases as low as reasonably achievable, there is no remaining provision in the implementing regulations of any of the i three involved agencies which call for excellence in site ,
l selection. Mere " suitability" is the only standard that DOE feels compelled to satisfy.
We submit that in light of the enormous uncertainties and unprecedented time frames of concern in this program, our twentieth century subjective findings of absolute suitability of a site do not provide sufficient assurance that.any site will in fact isolate wastes from the environment for a long enough time.
- The additional comparative finding that the chosen site is among the best that can be found substantially improves confidence that isolation will be successful. DOE must have three suitable sites j at the end of. characterization, as required by the language of the statute, in order to satisfy its and the Commission's NEPA l
.
- l j
obligations. This requirement supplies a strong incentive for DOE to choose for characterization sites that are among the best that can be found.
Conclusion The clear understanding which was apparent at the end of the June 22, 1984 meeting and in the Commission's final concurrence decision with respect to this matter was very significant to the Yakima Nation. It contributed substantially to a conclusion by us that our extensive participation in the Commission's concur-rence process had been a worthwhile pursuit and that the process had yielded important improvements in the siting guidelines and the likelihood of a successful waste program generally. If the Commission reneges on this understanding now, it will greatly degrade that sense of accomplishment on our part.
The Yakima Indian Nation urges the Commission, consistent with the plain meaning of the language in section 114(f) of the NWPA snd its NEPA obligations as modified by the Act, to retain the current language of its concurrence decision and require DOE to accede to the position it already agreed to at the June 22, 1984 Commission meeting; i.e., that the timing of the preliminary determination of suitability should be after site characteriza-tion.
We thank you for this opportunity to restate and amplify our views concerning this important issue.
.. . . - . _ - - _ . . - . _ . _ = _ - . . _ _ . .
9 i
1 4
i
(
I i
}
t t
t I
T 1
TESTIMONY OF i
GREGG S. LARSON
- DIRECTOR HIGH-LEVEL RADI0 ACTIVE WASTE PROGRAM
- STATE OF MINNES0TA BEFORE U.S. NUCLEAR REGULATORY COMMISSION l,
SEPTEMBER 6.'1985 i
t.
4-
^
I i
. t
- j. ,
4 4
4 i
I i
h 4
t I
!r I
, , - , . . .-.._.,~,_._.,,__,-_.,._m . . _ . , . , . . . , _ , , _ _ , , - _ _ . . , . , . . . _ .-.....~..4.. .,,. _ , , _ . _ _ _ , . . . m,.- , , , . . ..
u f, liinnesota Rad-Waste Testimony, 9/06/85 1 Mr. Chairman and Members of the Commission:
I am Gregg Larsen, Director of the High-Level Radioactive Waste Program for the State of Minnesota. I want to thank you for your invitation to testify here today. I am confident that it reflects the Comission's sincere desire to solicit and fully consider the views of the affected states and tribes on the provisions of Section 114(f) of the Nuclear Waste Policy Act (42 U.S.C 10134) and on the Commission's final concurrence with the Department of Energy's (DOE) siting guidelines.
On one hand, it is a surprise that the issue of the timing of the preliminary determination of site suitability is again before the Comission because the parties that participated in the concurrence proceedings, and apparently Comission members and staff, had considered the issue resolved. On the other hand, it is not surprising given DOE's propensity for policy reversal.
The State of Minnesota urges that the Comission reaffirm the agreement that was reached with DOE during the June 22, 1984, meeting on final concurrence with the siting guidelines. We do so for the following two reasons:
. i .-
Minnesota Rad-Waste Testimony, 9/06/85 2 First, it is clear from the record of the proceedings, the decision notice in the Federal Register, and the subsequent Commission coments on DOE's draft Mission Plan, that the Comission had concluded that DOE agreed to delete language from Section 960.3-2-3 of the guidelines requiring a preliminary determination of suitability at the time sites are recommended for characterization. It also is e. lear that the Comission expected the final Mission Plan to reflect the agreement that the preliminary determination would be made after completion of site characterization. It is difficult to escape the fact that, even if the record was determined to be ambiguous, which it is not, the Commission acted on the belief that there was an agreement with DOE.
Our second reason for urging reaffirmation of the agreement is based on the view that the Comission position on this issue is logical, justifiable, and based on comon sense. In the long run, it will benefit the nuclear waste program and the Comission's licensing process.
The question of whether or not alternative sites are a necessary component of final site selection should not be a 1
difficult one to resolve. Minnesota supports the Comission's concurrence position because a determination at the end of characterization is the best way to guarantee that there will be j
Minnesota Rad-Waste Testimony, 9/06/85 3 back-up sites. Not only will this ensure that the Commission is l not presented with a fait accompli at the time of licensing, if only one site survives characterization, but it also will contribute to schedule certainty by providing back-ups in the event that sites being characterized are judged unsuitable. The latter advantage is emphasized in the recent report on the nuclear waste program that was prepared by the Office of Technology Assessment.
1 Furthermore, as a second repository state, we want to stress the importance of maintaining geologic media options. In limiting the current second repository program to granite, DOE has put all its eggs in one basket. 00E has argued that consideration '
2 of a variety of geologic media for a second repository, as required in Section 112(a) of the Act, could occur through [
nomination of sites that were characterized, but not selected for the final first repository site, as provided for in Section i 112(b)(1)(C). There is no certainty, however, that such sites would be available if the preliminary determination is made at l
l the start of characterization.
Commission staff concern over the Environmental Impact Statement
! (EIS) implications of the DOE position is also warranted. If t
the EIS lacks reasonable alternatives, it would fail to meet the requirements of the National Environmental Policy Act and the Nuclear Waste Policy Act, and adoption by the Commission would be l
- _ , _ ___ _ , _ _ . - ~ _
O O Minnesota Rad-Waste Testimony, 9/06/85 4 precluded. The EIS implications have a public, as well as legal, dimension because of the importance that the interested public normally ascribes to full and rigorous EIS analysis of l alternatives.
f Finally, the preliminary determination of suitability is "the tail that wags the dog" in the siting program. Recognition that the determination must be made at the end of characterization is a compelling incentive for DOE to recommend the best possible sites for characterization. It would be a very visible demonstration of DOE's often repeated intention to eliminate flawed sites as early as possible in order to focus on sites that hold the greatest promise of suitability.
As the licensing agency, it is particularly important that the Commission continue to be viewed as an independent entity that does not vacillate under pressure on key policy issues.
Commission failure to reaffirm this agreement and condition of concurrence will set a precedent for disregard of other concurrence conditions, damage the credibility of the Commission, and contribute to the perception that the Commission will readily bend and cede authority to DOE when conflicts arise. That perception reduces public confidence in the nuclear waste program and the important role of the Commission in this undertaking.
Thank you, i
i
?
l
L.
STATEMENT OF BOOTH GARDNER, GOVERNOR STATE OF WASHINGTON TO THE NUCLEAR REGULATORY COMMISSION SEPTEMBER 6, 1985 MR. CHAIRMAN AND MEMBERS OF THE COMMISSION:
THANK YOU FOR INVITING ME TO PRESENT MY VIEWS ON THE IMPORTANCE AND TIMING OF THE PRELIMINARY DETERMINATION OF SUITABILITY OF POTENTIAL HIGH-LEVEL WASTE REPOSITORY SITES. THE STATE OF WASHINGTON, AT EVERY OPPORTUNITY, HAS CLEARLY AND FORCEFULLY STATED ITS OPINION CONCERNING SECTION ll4(F) 0F THE NUCLEAR WASTE POLICY ACT (NWPA). OUR POSITION IS FAITHFUL TO BOTH THE SPIRIT AND THE LETTER OF NWPA, AND THE INTENT OF CONGRESS. WE EMPHATICALLY BELIEVE THE ACT REQUIRES A PRELIMINARY DETERMINATION OF SUITABILITY TO BE MADE AFTER CHARACTERIZATION IS SUBSTANTIALLY COMPLETE.
OTHERS HAVE ALREADY TESTIFIED ABOUT THE LEGAL JUSTIFICATION FOR OUR POSITION, SO I WILL DISCUSS THE IMPLICATIONS OF OUR POSITION. THIS IS A VERY SIGNIFICANT ISSUE FOR BOTH THE STATE OF WASHINGTON AND THE NUCLEAR REGULATORY COMMISSION. IT IS IMPORTANT TO REMEMBER THAT USD0E MAKES THE PRELIMINARY DETERMINATION, AND NRC MAKES THE FINAL DETERMINATION OF SUITABILITY DURING THE LICENSING PROCESS.
OUR CITIZENS NEED TO BE CONVINCED THAT BOTH DETERMINATIONS GUARANTEE SAFE PERMANENT DISPOSAL OF HIGH-LEVEL WASTES.
i
BEFORE I DISCUSS MY SPECIFIC CONCERNA ABOUT THE TIMING OF THE PRELIMINARY DETERMINATION, I WANT TO GIVE THE THREE CONDITIONS WHICH MUST BE MET BEFORE WASHINGTON STATE WOULD CONSIDER ACCEPTING A REPOSITORY SITE. THESE CONDITIONS ARE:
1 USD0E MUST DEMONSTRATE TO OUR SATISFACTION THAT THE REPOSITORY WILL BE SAFE.
2 USD0E MUST DEMONSTRATE THAT HANFORD IS BETTER AND SAFER THAN ANY OTHER SITE.
3 THE PROPOSED REPOSITORY MUST BE ACCEPTABLE TO WASHINGTON STATE CITIZENS.
LET ME BRIEFLY EXPLAIN HOW THE DECISION ON DETERMINATION OF SUITABILITY RELATES TO THE THREE CONDITIONS. USD0E MUST USE PERFORMANCE ASSESSMENT TECHNIQUES TO DEMONSTRATE THAT THE REPOSITORY WILL BE SAFE. AS YOU KNOW, HANFORD IS THE MOST COMPLEX SITE UNDER CONSIDERATION. EXTENSIVE STUDIES WILL HAVE TO BE COMPLETED BEFORE USD0E CAN RELIABLY CONCLUDE THAT GROUNDWATER TRAVEL TIMES WILL MEET EPA AND NRC REQUIREMENTS. IN ITS DRAFT ENVIRONMENTAL ASSESSMENT COMMENTS, NRC STATES THAT IT BELIEVES
" LIMITATIONS OF THE AVAILABLE DATA DO NOT ALLOW HIGH CONFIDENCE TO BE ASSIGNED TO ANY TRAVEL TIME ESTIMATES AT THIS TIME".
INDEPENDENT EXPERTS ENGAGED BY THE STATE OF WASHINGTON AGREE WITH THIS STATEMENT. AT THIS TIME, WITH THIS LIMITED INF0RMATION, USD0E CANNOT DEMONSTRATE THAT A REPOSITORY AT HANFORD WILL BE SAFE. A PRELIMINARY DETERMINATION OF SUITABILITY SHOULD NOT BE MADE UNTIL USD0E CAN DEMONSTRATE THE SITE IS A SAFE SITE. NWPA ESTABLISHES A j
PROCEDURE WHICH ALLOWS THE PRELIMINARY DETERMINATION TO BE MADE WHEN RELEVANT AND NECESSARY INFORMATION IS AVAILABLE. THIS IS NOT THE TIME.
CONDITION TWO IMPLIES A COMPARISON AMONG ACCEPTABLE SITES. IF HANFORD IS CHOSEN, IT IS VERY POSSIBLE THAT A DISQUALIFYING FATAL FLAW WILL BE DISCOVERED DURING SITE CHARACTERIZATION. EVEN IF SITE CHARACTERIZATION IS COMPLETED AT HANFORD, WE ARE CONVINCED THAT USD0E WILL BE UNABLE TO ASSIGN HIGH CONFIDENCE TO GROUNDWATER TRAVEL TIMES. IF ONE OR MORE SITES ARE DISQUALIFIED, USD0E AND NRC WOULD HAVE A VERY DIFFICULT TIME PROVING THE CHOSEN SITE IS BETTER AND SAFER. IF ONLY ONE SITE WOULD REMAIN ON THE LIST, COMPARISON AMONG ALTERNATIVES WOULD BE IMPOSSIBLE AND USD0E WOULD BE UNABLE TO DEMONSTRATE THAT THE CHOSEN SITE IS SAFER AND BETTER.
THIS LEADS ME TO CONDITION THREE, CITIZEN ACCEPTABILITY.
HAVING THREE SUITABLE SITES AFTER CHARACTERIZATION IS THE FUNDAMENTAL REQUIREMENT FOR CITIZEN ACCEPTANCE. HAVING FEWER THAN THREE SUITABLE SITES AFTER CHARACTERIZATION WILL ENSURE A POLITICAL FAILURE. SUCH A POLITICAL FAILURE WOULD MOST LIKELY OCCUR DURING THE REPOSITORY LICENSING PROCESS.
ON AUGUST 1, I TESTIFIED BEFORE THE HOUSE SUBCOMMITTEE ON ENERGY CONSERVATION AND POWER OF THE HOUSE COMMITTEE ON ENERGY AND COMMERCE. I TESTIFIED THAT THE EFFORT TO SITC A HIGH-LEVEL REPOSITORY IS ON THE WRONG TRACK. PUBLIC CONFIDENCE'IS ALREADY AT A LOW POINT. I RECOMMENDED A PAUSE IN THE HEADLONG RUSH TO SITE A REPOSITORY AND THAT NON-USD0E EXPERTS BE ASKED TO REVIEW THE RANKING METHODOLOGY. THAT PROCEDURE SHOULD SET ASIDE POLITICAL i
CONSIDERATIONS AND FOCUS ON A SINGLE ISSUE--THE ISSUE OF SAFETY. I HOPE THAT THE QUALITY AND SCOPE OF THIS REVIEW IS SUFFICIENT TO PUT THE SITING EFFORT BACK ON THE RIGHT TRACK.
BEFORE I END MY TESTIMONY, I WISH TO COMPLIMENT THE NUCLEAR REGULATORY COMMISSION AND ITS STAFF FOR THE QUALITY AND OBJECTIVE NATURE OF THEIR BASALT ISOLATION PROJECT WORK. THIS MOST IMPORTANT WORK REQUIRES A STANDARD OF EXCELLENCE. WE HAVE RECEIVED TOP LEVEL TECHNICAL PERFORMANCE FROM NRC. AS A RESULT WE NOW HAVE HIGH CONFIDENCE IN NRC. WE ARE CONCERNED THAT AN INCORRECT DECISION ON THE TIMING OF A PRELIMINARY DETERMINATION OF SUITABILITY WILL NOT ONLY AFFECT NRC'S PERFORMANCE, BUT ALSO PLACE NRC IN AN UNTENABLE POSITION WHEN THE LICENSING DECISION IS BEFORE IT.
IN
SUMMARY
, THE NUCLEAR WASTE POLICY ACT REQUIRES ThAT PRELIMINARY DETERMINATIONS OF SUITABILITY FOR THREE POTENTIAL REPOSITORY SITES FOLLOW SITE CHARACTERIZATIONS. IF USDOE MAKES A PREMATURE PRELIMINARY DETERMINATION, LEGAL CHALLENGES WILL CERTAINLY DELAY THE REPOSITORY PROGRAM. IT RUNS COUNTER TO NWPA'S INTENT OF SITING A SAFE REPOSITORY WITH A SUPPORTABLE PROCEDURE. A DETERMINATION AFTER CHARACTERIZATION WILL PROTECT PUBLIC HEALTH AND SAFETY, ENSURE PUBLIC CONFIDENCE AND COMPLY WITH THE NUCLEAR WASTE POLICY ACT.
i i
1 l
I l _q_
l l
e
.~ HECTOR & ASSOCIATES PA (DPJENTS BY STAND AND PO5ER REGARDItG THE TIMItG OF THE PRELIMINARY DETERMINATION OF SITE SUITABILITY AS A NUCLEAR IM TE REPOSITORY SUBMITTED TO THE NUCLEAR REGULATORY COMMISSION PREPARED BY ALICE G. HEC'IOR, Attorney DON HANCOCK, Technical Advisor September 6,1985 ALICE G HECTOR HOLLIS A WHITSON 820 SECOND STREET NW. ALEUOUEROVE.NEW MEXICO 87102 TELEPHONE %242 7600
I
- l STAND and POlyER, citizens' organizations in Swisher and Deaf Smith counties, Texas respectively, thank the Commission for the opportunity to present their views on the timing of the Secretary of Energy's preliminary determination 1
that sites are suitable for development as repositories, required by Section 114(f) of the Nuclear inste Policy Act (NWPA).
STAND and POtER strongly believe that it is appropriate and necessary for the Commission to have this meeting and that interested citizens should be able to participate in this 'and other similar meetings, along with state and tribal representatives and other affected parties. As we pointed out in our letter of August 27 to Secretary Chilk, our participation is particularly appropriate given our substantial interest in and comment on this issue. We would hope that in future public meetings related to the tMPA, the Commission would provide timely notification to affected parties and invite their participation.
We also believe that when a large number of parties are interested in a particular issue, consolidation of comnents from parties with similar interests can legitimately be requested by the Commission. In the case of this meetirg on the timing of the preliminary determination, we have asked the Environmental Policy Institute (EPI) to summarize some of our views for the Commission in its oral presentation. This request is made in the interests of consolidating comments and, given the extremely short notice provided and the short amount of time allotted for our presentation, to make best use of the limited resources available to STAND and POhER.
I l
I 1
l I
To briefly summarize our conments, STAND and POER continue to believe that the Secretary's preliminary detemination of site suitability must take place af ter site characterization. Thus, we concur with the Commission's position on the timing of the detemination. Since DOE's Mission Plan continues to state the preliminary determination will be made before site characterization, we believe that the commission should again affirm its position that such timing is inappropriate and to so infom the congressional committees which will have oversight responsibility for the Mission Plan.
NWA requirements recarding the preliminary determination section 114(f), in part, states:
For the purposes of conplying with the requirements of the National Environmental Policy Act of 1%9 (42 U.S.C. 4321 et seq.), cortpliance with the procedures and requirements of this Act shall be deemed adequate consideration of the need for a
. repository, the time of the initial availability of a repository, and all alternatives to the isolation of high-level radioactive waste and spent fuel in a repository. For purposes of complying with the requirements of the National Environmental Policy Act of 1969 (42 U.S.C.1321 et seq. ) and this section, the Secretary shall consider as alternate sites for the first repository to be developed under this subtitle 3 candidate sites with respect to which (1) site characterization has been completed under section 113; and (2) the Secretary has +
made a preliminary determination that such sites are suitable for development as repositories consistent with the guidelines promulgated under section 112(a). The Secretary shall consider as alternative sites for subsequent repositories at least three of the remaining sites reccrnnended by the Secretary by January 1,1985, and by July 1,1989, pursuant to section 112(b) and approved by the President for site characterization pursuant to section 112(c) for which (1) site characterization has been completed under section 113; and (2) the Secretary has made a preliminary detemination that such sites are suitable for development as repositories consistent with the guidelines promulgated tmder section 112(a).
The literal reading of the section indicates that the timing of the preliminary determination is after site characterization has been conpleted and before release of the required environmental inpact statenent. Such 2
l timing of the detemination logically follws frm the steps specified in the Act:
(1) The Secretary peceulgates guidelines (section 112(a)).
(2) The Secretary nominates at least 5 sites "he determines suitable for site characterization for selection of the first repository site" (section ll2(b)(1)(A)).
(3) The Secretary reemmends 3 of the nominated sites to the President for characterization (Section 112(b)(1)(B)).
(4) FollcWing presidential approval, DOE characterizes the sites (Section 113)).
(5) Follcuing site characterization, the Secretary makes his preliminary determination of suitability for a repository and issues an EIS (Section ll4(f)).
(6) The president recocunends to Congress one site to be develcped as a repository (Section ll6(b)(2)).
Additionally, making the preliminary determination af ter site characterization makes eminent sense legally. Under the Act, it is not the Secretary who decides that a site is suitable for a repository, rather it is the NRC which makes the determination of site suitability in its licensing process. The Secretary's preliminary detemination should certify his belief that the sites are suitable for repository development, as the basis for an EIS and for the president's decision as to which site should be reccrnmended as the repository.
This logical, legal reading of the Act, consistently held by STAND and poler, is the same as the Commission's interpretation. Thus, the Commission's comments on the draft Mission Plan properly pointed out that makirg the 3
I preliminary determination before site characterization was inappropriate. The DOE, however, did not change the timing of the preliminary determination in the final Mission Plan. Rather, DOE's response was to maintain its position that the preliminary determination can be nede before site characterization (50 Federal Register 2M50).
In its Federal Register response, DOE seems to interpret the term
" preliminary" to mean "early" because "the Act recognized the possibility of a site's subsequently being found by the Secretary to Le unsuitable." On the contrary, Section 114(f) refers to " preliminary" as opposed to the " final" determination of suitability-a decision that rests with the NRC following a rigorous licensing process. Section 114(f) specifically stated that the Commission's independent responsibilities and licensing requirements were not affected by the Act or this section.
Phking the preliminary determination before site characterization is also inconsistent with the requirements of Section 112(b)(1)(E)(ii) of the NWPA.
That subsection requires that the Environmental Assessments evaluate sites as to whether they are suitable for repository development for each guideline that does not require site characterization. Clearly Congress intended that some guidelines required under Section 112(a) could be applied to site evaluation before site characterization and that some guidelines could be applied only after site characterization. Thus, Section 114, whidi applies to site approval and construction authorization af ter site characterization, requires that the preliminary determination " consistent with the guidelines pecoulgated under section 112(a)" be based on evaluation of the sites against all guidelines, not just those that are applied before site characterization.
4 i
0 t
Furthermore, in the case of Texas where DOE's draf t EA admits "[s]ite-specific data have not been collected" (page 3-1 of the Deaf Smith and Swisher County Draf t EAs), DOE would have to make its preliminary determination of suitability with no o site specific data! Clearly, Congress could not have intended for the preliminary determination to be mde with so little factual information.
As an additional justification for its interpretation of the section 114(f) requirement, " DOE has concluded that a preliminary determination mde after site characterization, as suggested in the Commission's objection, would have the effect of requiring that three sites be found suitable at the end of site characteriza tion. . . . Requiring three suitable sites at the end of site characterization would necessitate the DOE's characterizing trore than three sites or accepting the risk of large schedule and cost uncertainties should one of the initial three sites be found unsuitable." (50 Federal Register 28450) Such an argument is at best a " red herring" and only shows DOE's lack of confidence in its own program. The DOE's logic seems to be that characterizing 5 unsuitable sites would somehos result in having 3 suitable sites. Rather, what the las and the Ccrnmission's interpretation require is that DOE must make its recomrrendation to the president of 3 sites to characterize (Section ll2(b)(1)(B)) based on a rigorcus scientific approach to ensure that the sites charecterized are likely to be suitable for repository development and that the preliminary determination be mde af ter site characterization based on substantial site-specific chta. The determination is preliminary because the President, the affected state or Indian tribe, and the Congress are involved in the final determination of what site is selected for the repository and because the final determination of site suitability is 5
\
made by the Cmmission through its licensing authority.
Finally, to read section 114(f) as allcwing the preliminary detemination to be made before site selection means that unsuitable sites could be considered
" reasonable alternatives" in the EIS. Such an interpretation is ludicrous and not consiatent with NEPA.
Conclusion STAND and POWER reiterate their view that the Secretary's preliminary determination of site suitability must be mde af ter site characterization.
The organizations urge the Commission to continue to uphold that position and to convey its continuing disagreemnt with DOE's interpretation of tMPA to the appecpriate congressional ccrnmittees.
Thank you for your consideration of these views.
6 i
L
i
- to I
1 STATEMENT ON-BEHALF.0F EDISON ELECTRIC INSTITUTE
> THE UTILITY NUCLEAR WASTE MANAGEMENT GROUP BEFORE THE f
NUCLEAR REGULATORY COMMISSION I PUBLIC MEETING 1
SEPTEMBER 6, 1985
]
1 REGARDING l
l THE NUCLEAR WASTE POLICY ACT, SECTION ll4 (f) :
TI!!ING OF THE PRELIMINARY DETERMINATION OF SUITABILITY OF ALTERNATE REPOSITORY SITES I
i PRESENTATION BY l
, LORING E. MILLS l JAY E. SILBERG, ESQUIRE i
}
i i
'I I
e The Edison Electric Institute (EEI) and the Utility Nuclear
, Waste Management Group (UNWMG) were intimately involved in providing utility industry input during the Congressional devel-opment and at the time of enactment of the Nuclear Waste Policy Act. Implementation of that Act is of vital concern to our member utilities and their electricity customers. We are pleased to have this opportunity to present our views on Section 114 ( f) of the Act, regarding the timing of DOE's " preliminary determina-tion" of suitability of those sites considered for the first repository.
We fully concur with the position of the Department of I Energy as set forth in the Mission Plan. The preliminary deter-mination should be made before DOE makes its recommendation to the President of the United States for the three sites to be characterized. EEI and UNWMG submitted detailed views to DOE on this issue in our July 1984 comments on the draft Mission Plan.
We submit for your consideration, as well, our more recent detailed written views.
i We note that DOE's interpretation is consistent with that of j the principal Senate sponsors and floor managers of the Nuclear i
Waste Policy Act -- Senators McClure, Domenici, Simpson and i
- Johnston -- as expressed in their June 25, 1985 letter to Secretary Herrington. The final language of the Act was a McClure substitute to the House-passed version (H.R. 3809), as amended in the Senate. One of the principal amendments involved the site selection process. Section 114 (f) was also modified to 1
i i
0 be consistent with the Senate amendments clarifying that the preliminary determination is to be based on the Site Selection
. Guidelines.
Unfortunately, there is little formal legislative history on the final version of the Nuclear Eastef Policy Act. Principal
! supporters of the bills in both Houses of Congress met informally to agree on certain amendments to the McClure substitute --
a Senate version -- to the House-passed bill. The conflicting interpretations offered recently by the principal sponsors in the Senate and the House help create some' confusion.
Our understanding of the timing of the Section 114 ( f) preliminary determination, at the time the bill was passed, was identical to that of Senator McClure. More importantly, we believe that statutory construction of the language of Section 114 ( f) -- in the context of the entire site selection process and the deadlines mandated for accomplishing the requirements of the Act --
leave room for no other interpretation. The use of the word " preliminary" itself suggests that the determination will be t
made at some time before the completion of site characterization.
After that time, DOE is in a position to make its final determin-ation of suitability prior to applying to the NRC for a license.
If the preliminary determination were to be required after site characterization, the entire process of site selection becomes subject to an unacceptable risk that the schedules laid out in +
i the Act will not be met. DOE would be required either to charac-terize more than three sites, something inconsistent with the
- i 1
explicit language of the Act, or face the unacceptable risk of large schedule delays and huge cost uncertainties should one of the initial three sites be found unsuitable. DOE's interpreta-tion is the only one consistent with the overall purpose, struc-ture and candate of the Act.
Also, DOE's interpretation of its obligations under the statute ,i s to be given great weight. The Court of Appeals for the District of Columbia recently reinforced this view in its decision affirming DOE's interpretation of the one-time fee structure pursuant to the Nuclear Waste Policy Act. Here we believe that the Commission should accede to the interpretation of DOE, which is the principal agency responsible for implementa-tion of the Act.
Certainly, the Commission's foremost obligation is to ensure the safe isolation of nuclear wastes. Yet the Act also provides i deadlines to all federal agencies for accomplishing their respon-sibilities. The Commission must view its responsibilities, as well as those of the Department of Energy, in light of the program objectives of the Act including the schedules mandated by Congress. As to the issue before us today, we believe NRC's position on the timing of the preliminary determination, as reflected in its comments on the draft Mission Plan, becomes untenable when all program objectives are considered.
Mr. Silberg and I will be pleased to answer any questions you may have.
l
Attachment A to EEI/UNWMG Statement Before the Nuclear Regulatory Ccmmission, September 6, 1985 INTERPRETATION OF SECTION ll4(f) OF THE NUCLEAR WASTE POLICY ACT Section ll4(f) of the Nuclear Waste Policy Act ("NWPA")
details compliance with the National Environmental Policy Act of 1969 ("NEPA") in selecting the first geologic repository for waste disposal, and provides in pertinent part:
For purposes of complying with the require-ments of the National Environmental Policy Act of 1969 (42 U.S.C. 1321 et seq.) and this section, the Secretary (of Energy]
shall consider as alternate sites for the first repository to be developed under this subtitle 3 candidate sites with respect to which (1) site characterization has been crmpleted under Section 113; and (2) the
. Secretary has made a preliminary determina-tion that such sites are suitable for de-velopment as repositories consistent with the guidelines promulgated under Section ll2(a).
Comments on the Mission Plan elicited conflicting views on the timing of the " preliminary determination" of site suitability.
DOE has interpreted the NWPA to allow the " preliminary determi-f
, nation" to be made at the time the Secretary recommends three sites to the President for site characterization. See Mission i Plan, Volume II, 5 5.4.1 at 138-40.
In their comments on the Mission PJSt, the NRC, certain States and environmental groups arcq$' tt it three sites must receive a " preliminary determinatita" vt cuitability after site
~
characterization activities are completed. While the language of this section and the legislative history surrounding the f l
l r
I ,
5
b inclusion of the language at issue in the Act are not without some ambiguity, DOE's interpretation is the only one consistent with the purpose, structure and mandate of the Act.
The position taken by the NRC, et al., would require a finding of site suitability at the end of the site character-ization process. Such an interpretation would be an odd time for a preliminary determination (since DOE will then have all of the information available to make its final determination) and it would necessarily recuire that three sites survive char-acterization. DOE notes that such an interpretation means ei- ;
i ther characterizing more than three sites or accepting the risk t
of large schedule and cost uncertainties should one of the ini-tial three sites be found unsuitable. For this reason it is ;
I inconsistent with the Act. ,
Section 112(b)(1) of the Act directs the Secretary to .
I "ncminate at least 5 sites" and " recommend to the President 3 of the nominated sites" for site characterization. The Act L
does not permit characterization of more than three sites (otherwise the Act would have directed the Secretary to recom-mend at least three sites for characterization). The NWPA does i not contemplate, nor would the mandated schedule for repository !
initial operations permit, the possibility of delay while char- f acterizing a fourth or fifth site, should one or more of the three sites be found unsuitable after characterization was com-pleted. ;
t b
a One of the principal amendments in the Senate version of the House-passed bill was in changing the site selection pro-cess. The House bill was to have the Secretary recommend to the President at least five sites by July, 1984 and one addi-tional site by February 1, 1985 for site characterization.
From these six (or more) sites at least three would be charac-terized. The Senate bill provided that at least five sites would be nominated, but only three would be recommended for characterization and one would be selected for the first repos-itory. !
While the language of the Act is complex and not without some ambiguity, the answer to this important question of inter-pretation, in the context of the site selection process, is compellingly clear. Senator Simpson asked for clarification of the repository site selection procedure during final Senate de-bate as reflected in the following brief excerpt from a collo-quy with Senator Johnston. !
MR. SIMPSON. . . . .
Of the five sites nominated in the first round, three will be recommended for characterization, and one of these three will be selected as the first rocository.
MR. JOHNSTON. The Senator is correct.
i 1/ See 128 Cona. Rec. S 15641 (daily ed. Dec. 20, 1982).
2/ 128 Cong. Rec. S 15660-61 (daily ed. Dec. 20, 1982).
t .
Senator Johnston, one of the floor managers of the NWPA, did not in any way qualify his answer. He did not say that one of the three would be selected only if all three sites recom-mended for characterization were subsequently found " suitable".
It was without doubt, the intent of Congress that one of the three initially characterized sites "will be selected as the first repository".
DOE's interpretation is the only one consistent with the Congressional mandate to implement the NWPA on the schedule es-tablished by law. An essential and virtually unprecedented as-pect of the NWPA was the detailed schedules or deadlines man-dated by the Congress for accomplishment of the requirements of the Act by the federal agencies, including a "roadmap" inter-preting the requirements of NEPA compliance. The Senate Com-mittees carefully considered the testimony of witnesses from ,
DOE, NRC, other federal agencies and interested parties before reporting S. 1662. Based on such testimony, the schedules originally established in draf t bills were adjusted to provide three additional years to be allocated to site identification, site characterization and selection, and to NRC's review and approval of the application to build the first repository. The Senate Committees determined the schedule to be " realistic and workable" and expected "the involved agencies to do everything possible to assure that [the} schedule is met."1# Indeed the i 3/ S. Rep. No. 282, 97th Cong., 1st Sess. 21 (1981).
deadlines were' extended even further after careful considert.-
tion by the House Committees and reconsideration by the Senate.
The schedule.could not accommodate the potential delay of char-acterizing a fourth or fifth site, if one or more of the three t
i sites initially characterized were found unsuitable.
Unfortunately, there is little formal legislative history on the final version of the NWPA. Differences in the Senate-passed version of the NWPA (S. 1662) and in the House-passed version (H.R. 3809) were not resolved in a Confer-ence Committee. Instead, the principal supporters of the bills in both Houses of Congress met informally to agree on certain amendments to a McClure substitute to the House-passed bill.
The Senate then passed the McClure substitute to H.R. 3809, as, amended, by voice vote. On the same day, the House agreed to the Senate's version of H.R. 3809.
As it turns out, Section ll4(f) was the subject of two of seventeen negotiated amendments to the McClure substitute. The language which appears in the enacted version of the NWPA was drafted by the ad hoc Senate-House negotiators. Senator McClure described the Amendments to Section ll4(f) during the final Senate debate as follows: S!
Mr. President, these two amendments are of a clarifying nature, to make it clear that the Secretary's preliminary determination that sites are suitable for development as !
repositories is to be made consistent with >
the Secretary's guidelines promulgated 4/ 128 Cong. Rec. at S 15642 (daily ed. Dec. 20, 1982).
t t
l under Section 112(a). Without reference to 1 4
the ll2(a) guidelines, it was not clear !
what criteria the Secretary was to use in
- making this preliminary determination, and 2
this amerdment is intended to clarify that
- oversight.
4
- The amendment to Section ll4(f) reflected compromise.
r Senator McClure wanted to avoid any possibility that the EIS to accompany the recommendation of the site for the first reposi-tory might be embroiled in litigation regarding the adequacy of the " preliminary determination" of suitability of alternate sites. The Senators and Representatives were also mindful of the need to avoid major amendments to the House-passed version in the sensitive area of NEPA compliance, to avoid last minute 4 controversy that could result in adjournment without final pas-sage of the Act. The compromise was to clarify the criteria for making the " preliminary determination" of the suitability l
j of the alternate sites by reference to the guidelines promul-t 1 gated under Section ll2(a) for recommendation of candidate sites for site characterization in the first place. Senator McClure notes that this amendment was also meant "to clarify j that the Secretary's ' preliminary determination' is to be made 1
at that point in time when the guidelines are applied 'in con-sidering candidate-sites for recommendation'." This occurs "when the Secretary recommends three of the candidate sites to the. President for characterization (i.e., prior to site charac-terization."E!
5/ Letter to Honorable John Herrington from Senators McClure, Domenici, Simpson and Johnston dated June 25, 1985.
l I i
i A
In a letter from Congressmen Dingell, Markey, Swift and Wyden providing their understanding of the legislative history of Section ll4(f), a statement by Representative Ottinger is cited, which of fers his opinion that the preliminary determina-tion would occur late in the site characterization program.5!
This statement occurred December 2, 1982, prior to the Senate amendments to the site selection process. The concern
.ad dressed by Representati ve Otti nger was one expressed by the States that the site selection process would "be a stacked deck for or against a particular site."1! This concern was addressed in part by the Senate amendment which required that the preliminary determination be made on the basis of the Site j Selection Guidelines to preclude consideration of a bogus site.
In any event, what was " envisioned" by Representative Ottinger is not a binding interpretation of the bill -- even in the form
- as passed by the House.
Congressman Udall points to his statement in the December l
20, 1982 Congressional Record (H. 10523) for support of his in-terpretation of when a prelimi. nary determination of suitability must be made.E! It appears that Mr. Udall's understanding of I
the changes to the bill as a result of amendments in the Senate t
6/ Letter from Congressmen Dingell, Markey, Swift and Wyden
- to Mr. Ben Rusche dated July 26, 1985.
7/ 128 Cong. Rec. H. 8797 (daily ed. Dec. 2, 1982).
8/ Letter from Congressman Udall to Mr. Benard Rusche dated
- July 26, 1985.
f i
i t - . - . . , - - . . . , -
.. .. . .- . .. ...~ - = - .-. . . . . -. - -- . .. .
i
)
- differs from Senator McClure's understanding. Senator McClure t
was, of course, the author and proponent of the amendments and the McClure substitute to H.R. 3809 that was passed by the Sen-
+
ate and the House on December 20, 1985. This difference of f
3 opinion inr two of the principal sponsors of waste legislation l underscores the complexity of the statute, the uncertainty of legislative history and the need to analyze the Act in the con-text of the overall prcgram enacted by. Congress. As noted above, such an' analysis leads inexorably to the interpretation given by DOE in the Mission Plan.
l The language of the NWPA and the legislative history as l reflected in the floor statements on the day of its passage, support DOE's position that the President's recommendation to the Congress of the site for the first repository will be se-lected from the initial three sites characterized, and the EIS l need only consider such sites as alternates. Thus, the prelim-inary determination of site suitability can logically be made only prior to site characterization. Furthermore, an interpre-i' tation to the contrary could not be sustained because it could (if one of the characterized sites were found " unsuitable" after three years of characterization activities) needlessly abort the deadlines established by the NWPA. The federal agen-cies tasked with implementation of the NWPA cannot ignore that
- statutory mandate.
Finally, DOE's interpretation of its obligations under the NWPA is to be given great weight. General Electric Uranium 8-r
. . . - ,--e.- - ,- . ,,,. . we,- ,, , . , - ,,p-. , , . , . . . . , . . -.-,a-., - - , - , . , .,pw-.,ny- ,m, - - .
--.m.., ,. --
Management Corporation v. DOE, 764 F.2d. 896 (D.C. Cir. 1985);
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S.Ct. 2778 (1984).
4 I
l u