ML20138P382

Recommends That Commission Approve,For Publication,Final Amend to 10CFR60 Re Site Characterization & Participation of States & Indian Tribes

ML20138P382
Person / Time
Issue date:	10/21/1985
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-RIA, TASK-SE SECY-85-333, NUDOCS 8511070095
Download: ML20138P382 (259)

Text

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RULEMAKING ISSUE October 21, 1985 , SECY-85-333 (Affirmation) ,

For: The Commissioners From: William J. Dircks ,

Executive Director for Operations

Subject:

PROCEDURAL AMENDMENTS TO 10 CFR 60 DEALING WITH SITE CHARACTERIZA-TION AND THE PARTICIPATION OF STATES AND INDIAN TRI8ES

Purpose:

To obtain Commission approval of a notice ,of final rulemaking.

Category: This paper involves several policy questions.

Brckground: The Commission published proposed procedural amendments to 10 CFR 60 dealing with site characterization and the participa-tion of States and Indian tribes on January 17, 1985 (50 FR 2579). The staff received comments from fifteen organizations on a large number of issues. The final amendments l

presented here were developed following consideration'of these I comments, as well as consideration of comments received from the ACRS Waste Management Subcommittee. l Summary: The final rulemaking recommended by this paper 4will conform the

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Contacts:

3 E. Regnier, NMSS, x74781 J. R. Wolf, ELD, x28694 , .-

C. Prichard, RES, x74586 T

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. The Commissioners 2 s 1 ,

procedures for licensing high-level waste geologic repositories u , in 10 CFR 60 to those specified by the Nuclear Waste Policy Act.

s Discussion: Licensing procedures which set forth a regulatory framework for licensing high-level radioactive waste (HLW) geologic repositories (10 CFR 60) were promulgated in final form on February 25, 1981 (46 FR 13971). In publishing the proposed

_,s procedures, the Commission recognized that provisions of Part 60 l

dealing with participation might have to be changed in the future should the passage of pertinent legislation take place -(44 FR i

70408). This did, in fact, occur with the passage of the Nuclear

{ Waste Policy Act of 1982 -- 42 U.S.C. 10101 et seq. (NWPA). The NWPA sets forth in considerable detail the roles and I

responsibilities of NRC, the Department of Energy (DOE), States and Indian tribes, and the general public during the process of siting and development of HLW geologic repositories. The NWPA r

requires that DOE consult and cooperate with States and tribes at many specified points throughout the repository siting and development process. DOE is required to issue its site i characterization plans (SCP's) for public comment, hold meetings

' to obtain public comment, and provide funding for States and tribes to participate in, and inform their residents about, the process. Additional procedural steps are required of DOE between the time DOE identifies a potential site, and the submission by DOE of an SCP. The contents of the SCP t.re specified by the NWPA, and are different from those given'in the original Part 60.1 A major difference is that the SCP would no longer contain ISzction 113(b)(1)(A) ofethe NWPA allows NRC to require submission by DOE of N "cny other information" but this is not an unlimited grant of authority. Such other information, must be germane to "a general plan for site characterization cctthities to be conducted at such candidate site."~

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The Commissioners 3 ,

site selection information; this information would instead be presented by DOE in environmental assessments (EA's) which DOE is required to prepare for each site.

In proposing procedural amendments to Part 60 to the Commission (SECY-84-263), the staff stated that amendments were needed to j (1) provide a framework for State, tribal, and public.

participation consistent with the NWPA, (2) avoid duplication of effort, and (3) conform the licensing procedures to the site selection process specified by the NWPA. The staff also identified some changes which it believed desirable to better reflect NRC's pre-licensing consultation and guidance process as it has evolved since the licensing procedures were promulgated.

The staff pointed out that some of.the proposed changes to Part 60 could be expected to be the focus of particular interest by i

States and tribes. These were identified as (a) the deletion from the SCP of NRC review of DOE's site selection process, (b) a perception that the proposed changes would represent a significant diminishing of opportunities for State and tribes to-

{ participate in the NRC pre-licensing process, and (c) the nature of NRC review of DOE's environmental assessments.

f In the course of preparing the proposed amendments, the staff l actively sought comment from States and. tribes. Several meetings were held with States and tribes, att.which the proposed -

amendments were discussed, and a number of comment letters were received. The staff documented its effort to seek comment in i Enclosures B and C to SECY-84-263. Following the submission of SECY-84-263 to the Commission on June 26, 1984, additional f comments were received from Minnesota, Nevada, Texas, and the f Environmental Policy Institute. The staff identified four I

significant issues contained in these comments and analyzed them for the Commission in SECY-84-263A, November 8, 1984. These issues were (1) NRC review of DOE's site screening and selection

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The Commissioners 4 process, (2) the decoupling of Part 60 and Part 51 revisions which are needed to reflect the NWPA, (3) the elimination of the draft site characterization analysis, and (4) concern about the basis for standing of States and tribes in a licensing hearing.

All but (4) had been discussed in SECY-84-263. As a result of the analysis of the four issues, the staff concluded that these  !

additional comments did not provide any new information which would lead it to change its recommendation to the Commission contained in SECY-84-263.

4 j A total of 15 organizations commented on the proposed rule.

While many specific, detailed points were raised, most of the discussion centered on a few underlying issues. Once again, NRC j review of DOE's site screening and. selection process, the l decoupling of Part 60 and Part 51 revisions which are needed to-reflect the NWPA, and the lack of a draft SCA received heavy l comment. In addition, many comments focused on the lack of any provision in the proposed amendments requiring DOE to refrain

! from sinking shafts for the site characterization process until a reasonable time had elapsed for review and comment on the SCP's.

1 Draft Site Characterization Analysis There were several comments about the deletion of t'he draft. site characterization analysis (SCA). Under the rule as proposed to -

be amended, NRC would issue.a single, final SCA on DOE's SCP and would invite public comment on its SCA, for consideration in the ongoing staff review and commentary on the DOE program. However, NRC would not issue both a draft and final SCA. Commenting a States believe that-they.have substantial expertise which NRC l should consider in preparing its SCA. :Some States want to have the benefit of NRC's expertise.while preparing their own comments. It was noted that the Director's invitation to -

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l The Commi.ssioners 5 State / tribes for comments on DOE's site characterization plan was discretionary. Concern was also expressed that NRC will not have to respond to State / tribe comments on the SCA, and may not actually address issues expressed in those comments. Some commenters believe that the opportunities and procedures for public and State involvement in the repository siting and development process under the NWPA are not substantially different from those contemplated when the previous regulations were promulgated. From this they conclude that there is no "

reason for NRC to change its procedures by eliminating the draft 1

SCA on DOE's SCP.  !

The staff agrees that there is a need for the States and tribes, 3 as well as other members of the public, to have an opportunity.to participate effectively in the review of the SCP. Prior to passage of NWPA, the provisions of Part 60 afforded the only l assurance that they would have this opportunity. The new law -

provided new guarantees for public participation. Specifically, ,

avenues were provided for commenting directly to DOE on its site screening decision and site characterization plans. In the staff's view, these changes were significant and raised the f

question whether the review procedures in Part 60 were still  !

j necessary, or even appropriate. ,

i With respect to the i.e.ed for NRC awareness of State and tribal '

i views, we believe there are effective means for obtaining such j views and the benefit of State and tribal expertise without  !

circulation of a draft SCA for comment. In the first place, the l preparation of the SCP will have been preceded by the extensive informal communications between DOE and NRC - all of which will  ;

1 have been documented in the public record. These include, -

) especially, the many technical meetings at which the States and l l

4 tribes may participate. The technical meetings afford an I l opportunity for the States and tribes to bring their concerns i about relevant issues to the attention of NRC as well as DOE.  !

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The Commissioners 6 i

Second, the staff has always welcomed the submission of comments from any interested parties, at any time, and will continue to do so. Third, as provided in the rule, NRC expects to review and consider comments made in-connection with public hearings held by DOE on its SCP. Fourth, the rule would provide for the solicitation by NRC of comments on the published SCA; while this would not require a detailed analysis of any particular comment, it would help to assure that NRC would not overlook any matter of substance which ought to be brought to-the attention of DOE.

! Finally, under a change that is reflected in the final rule that is recommended here, NRC would provide opportunity before

publication of the SCA, for the host State and affected Indian tribes to present their views on the DOE SCP and their

suggestions with respect to comments thereon which may be made by NRC. The avenues for receiving State and tribal views, as _ [

summarized above, will be sufficient to enable NRC to review and ~

comment to DOE cn its site characterization plans as contemplated .

by the NWPA.

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! Some commenters argued that the draft SCA should be kept because it would condense the numerous technical isseas and discussions, i which will be quite extensive and will take place at'a wide range ,

f of locations and times, in a way that would make it practicable.

j for them to be involved and to comment effectively.' However, the  !

principal issues should have been addressed in the documentation l 1

of these technical meetings. Specifically, the meeting minutes t or transcripts are placed in central locations (viz. public  !

document rooms) to facilitate public access and review.

Moreover, the issues will still all be addressed or " condensed" l

j in the SCP (and the SCA as well), where all parties will have an i oppo*tenity to consider them. The staff's analysis would not be .;

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needed in order for other reviewers to be able to comment  !

effectively on the SCP.8 f Moreover, as indicated, there are plenty of opportunities for NRC -

to be made aware of the issues of concern, so that they would be i dealt with in the SCA. But, most importantly, NWPA contemplates j that the States and affected Indian tribes will present tMir 'f criticisms to DOE directly. Under the statute, the Commission, l States, and affected Indian tribes have a parallel reviewing i function. This is different from the scheme outlined earlier in f

Part 60, and the difference should be reflected in the language j l

of the rule. 'j

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zSome commenters argue that the elimination of the draft SCA implies that NRC l cight not actually address issues that commenters wish to raise. As already j j noted, however, comments will be solicited on the SCA that is actually prepared,  :

so that any actual oversights can be addressed. The proposed rule (560.18(f))  !

provided that the Director would publish a notice requesting public comment on j thm SCA. This was intended to provide greater assurance to NRC that it had not l cvarlooked any issue of substance and that its analysis of the SCP has addressed j tha issues in a reasonable and understandable way. The staff expected that all  ;

comments received would be reviewed, but that no documented record of such l review would be made. A consideration of the comments received in response to [

th2 proposed rule suggests that the language might give rise to expectations  !

that NRC would analyze all comments on the SCA more formally, and that any , l l failure to do so (or any inadequate analysis of comments raised) might give rise [

. to a lawsuit to require NRC to carry out a fuller analysis. The Commission 1 i

could eliminate this contingency by amending 560.18 to omit'the requirement for l

public comment on the published SCA. The staff does not recommend that action, (

l htwever, as it regards the opportunity for public comment to be a valuable i centribution to effective NRC review. The staff maintains that the language  :

would not require the undertaking of a formal analysis.

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The Commissioners 8 Site Selection Information There were comments concerning the deletion of site screening and j selection information from the SCP contents. Some commenters favored the deletion, more opposed it. Unfavorable comments were i based on a perceived lack of any NRC review of DOE's site screen-

ing and selection process. However, the NRC has played a role in this process. This role has involved the review of site data to .

identify licensing issues at the earliest possible stage; review _

of environmental assessments which provide the basis for site , ,

selection decisions, review of other site specific documents; and concurrence in the siting guidelines. Also, we expect to review

! and comment on DOE's scoping documents and activities for implementing NEPA in the repository program which are to be developed pursuant to CEQ rules, and to comment on DOE's EIS.  !

The issue'of concern in connection with these amendments is not whether the Commission should be involved in the site screening and selection process; but what should be the required content l and the scope of NRC review of the SCPs. It is clear to the staff, from the NWPA, that the site selection issues previously dealt with in Part 60 were to be separated from the site  ;

j characterization plans and dealt with, instead, in the environmental assessments. The regulation was filling a gap by requiring site selection information in the SCP. That gap no longer exists. -

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Shaft Sinking Some commenters suggested that the regulation be amended'to f

require that DOE not proceed to characterize sites by sinking shafts until NRC and State review and comment upon the SCP are  ;

complete. The NWPA does appear to call for the SCP to be the-i 1 l

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The Commissioners 9 ,

time to take up shaft related issues. It is riot unreasonable to interpret the WPA to mean that DOE should wait. Thus, we are in 1 general agreement with the commenters' view of the WPA l requirements on this matter. As stated in the preamble to the i proposed rule, "The Commission believes that Congress intended I

that DOE should provide the plans sufficiently far in advance so l that comments may be developed and submitted back to DOE early j enough to be considered when shaft sinking occurs, and at all j times thereafter." However, the staff believes that this

question is essentially a matter of statutory construction of the-

! obligations of DOE under Section 113(b) of the WPA and that the

{ appropriate course is to leave it to D0E.in the first instance to

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j construe and apply the law. There is no compelling reason for the Commission to incorporate its interpretations of such a

provision in its own regulations. DOE has stated 8 that shaft ,

j sinking will not occur until sufficient time has elapsed to allow j for review and comment on the SCP's.4 l>

Simultaneous Promulaation of Amendments Some commenters recommend that all revisions to Part 60 and Part

] 51 to conform them to the WPA should be promulgated simul-taneously. In particular, they recommend that the revisions l

concerning NEPA requirements accompany the revisions currently l

being promulgated. They believe this is necessary to assure that

• 3 Mission Plan, DOE /RW-0005, June 1985, Vol. I, pg. 59 and Vol. II, pg. 128.

• States have recently expressed continued concern on this matter. For example, 2

in a July 18, 1985 meeting on Generic Exploratory Shaft-Design and Construction,

rzpresentatives of Texas and Utah, provided further explanation of the need for _j i a requirement that DOE wait to receive and consider comments on the SCP before  ;

j shaft sinking, and of their concern with the NRC/ DOE staff arrangements for

resolution of shaft-related issues ' prior to the SCP. They pointed out that the States are not yet prepared to participate in this early resolution process.

They have believed that, according to the WPA, these issues would be discussed ,

in the SCP and would be the subject of meaningful discussion in the comment on I the SCP. They are concerned that they do not now have the resources or l

tschnical expertise to participate fully in early resolution of such matters. j

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The Commissioners 10 f

a comprehensive and integrated approach is'taken and to eliminate

any confusion regarding NWPA and NEPA requirements. They argue that much of Part 60 now rests on NEPA authority so that failure to include NEPA in the currently proposed revision casts a cloud over the Commission's view of its authority to carry out early site reviews. This issue was raised earlier and was discussed in

SECY-84-263A. The Commission has not put off considering its responsibilities under NEPA as modified by the NWPA. In develop-ing these proposed regulation changes, we have specifically evaluated whether it was necessary to take any steps during the site screening stages to assure meeting our ultimate NEPA respon-sibilities. The issues in this amendment are separable from other NWPA mandated matters, including the NEPA concerns which l

i will be addressed in the Part 51 amendments.

i Changes in Final Amendments -

The staff made a number of changes in the final amendments in i

response to comments received. However, substantive changes were limited to these; (1) providing for public comment on NRC responses to DOE's semi-annual reports on site characterization, ,

. and (2) providing opportunity for the host State and affected Indian tribes for each site to be characterized to present their

views to NRC during preparation of the SCA.

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Commission resource needs to implement the provisions of 10 CFR 60 have been reflected in programmatic budget requests. Thus, no l significant new resource expenditures will be required by l issuance of the amendments.  !

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The Commissioners 11 i

i Recommendations: That the Commission:

1. Approve for publication final amendments to 10 CFR 60 dealing with site characterization and the participation of States and Indian tribes, and the accompanying Statement of Considerations, as set forth in the draft Federal Register notice in Enclosure A.

2. Certify that the revised rule will not have a significant economic impact on a substantial number of small entities.

This certification is necessary in order to satisfy the requirements of the Regulatocy Flexibility Act, 5 U. S. C.

605 (a).

3. Note:

(a) In accordance with section 121 (c) of the Nuclear Waste Policy Act, no environmental review has been performed in connection with this action.

(b) The comments received in response to the proposed rule

are contained in Enclosure C. The staff's analysis of these comments is contained in Enclosure B. The proposed Federal Register notice (Enclosure A) refers to the latter document as "the Commission's analysis." -

(c) Sections 60.62 and 60.63 of this rule amend information collection requirements that are subject to the Paper-work Reduction Act of 1980 (44. U. S. C. 3501 et seq.).

Office of Management and Budget approval of the information collection requirements in these amendments

has been obtained (OMB No. 3150-0127, expiration date l

l 11/30/87).

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The Commissioners 12 (d) The Chief Counsel for Advocacy of the Small Business Administration will be informed by the Division of Rules and Records of the Certification regarding economic impact on small entities.

(e) The Subcommittee on Energy and the Environment of the House Interior and Insular Affairs Committee, the Subcommittee on Nuclear Regulation of the Senate '

Committee on the Environment and Public Works, the Subcommittee on Energy, Nuclear Proliferation and Federal Services of the Senate Committee on Government Affairs, and the Subcommittee on Energy and Power of i the House Interstate and Foreign Commerce Committee I will be informed by a letter similar to Enclosure D.

, (f) The Office of Public Affairs has determined that it is

not necessary to issue a public announcement for these j amendments. However, a copy of this Commission paper package is being placed in the Public D'ocument Room.

(g) A regulatory analysis is contained in Enclosure E. '

(h) A comparative text of the proposed amendments is  !

included in Enc 1 ure G.  ;

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5 Willia 1. Dircks i

Executive Director for Operations l

Enclosures:

l l A - Federal Register Notice " Disposal of High-Level Radioactive i

! Wastes in Geologic Repositories: Amendments to Licensing ,

Procedures '

t B - Procedural Amendment Comments - Comment Suninary and Staff ,

! Analysis  !

i C - Public Comment Letters i D - Draft Congressional Letter  ;

l E - Regulatory Analysis l F - Federal Register Notice - Proposed Rule  !

l G - Comparative Text H - Staff Response to Corrents of the ACRS

I 13 Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Friday, November 8, 1985. ,

Commission Staff office comments, if any, should be submitted f to the Commissioners NLT Friday, November 1, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the  :

Secretariat should be apprised of when comments may be expected.

DISTRIBUTION:

Commissioners OGC OPE OI ,

i OCA i OIA OPA REGIONAL OFFICES EDO ,

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ACRS ASLBP

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ENCIDSURE A e

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'[7590-01]'

NUCLEAR REGULATORY COMISSION I 10 CFR PART 60

Disposal of High-Level Radioactive Wastes in Geologic Repositories:

Amendments to Licensing Procedures l

AGENCY: Nuclear Regulatory Commission.

l 4

ACTION: Final rule.

I SUMARY: The Nuclear Regulatory Consission (NRC) is amending its regula-I tions applicable to the disposal of high-leyel radioactive wastes in

! geologic repositories. These amendments deal with procedural aspects of 4

site characterization and the participation of States and Indian tribes.

Among other things, the rules set forth requirements applicable to the Department of Energy for submitting site characterization plans. For the most part, the amendments to licensing procedures are changes made to reflect the provisions of the Nuclear Waste Policy Act of 1982.

i EFFECTIVE DATE: LInsert date 30 day. Ofts ;:dlicMim in che Federal ,

Register]

i i

FOR FURTHER INFORMATION CONTACT: Clark Prichard, Office of Nuclear Regu-latory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 427-4586.

i SUPPLEMENTARY INFORMATION:

1 1 Enclosure A l l

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[7590-01] , ,

i 1 BACKGROUND i i  ;

k i

On February 25, 1981, the Nuclear Regulatory Commission (NRC)  ;

, promulgated licensing procedures for the disposal of high-level {

• radioactive waste (HLW) in geologic repositories (46 FR 13971). The 1 enactment of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.10101 2

et seq., brought about a need to revise some of the procedures in 10 CFR  :

3 1 60. The NWPA set forth in considerable detail the procedures to be i followed during the process of siting and development of it.W geologic j y .;

repositories, and the respective roles of NRC, the Department of Energy i l (DOE), and States and Indian tribes. These amendments contain the i i changes to 10 CFit Part 60 that are needed to conform the licensing j t

t j procedures in the rule to the provisions of the WPA. In addition, the j i

amendments contair. some changes considered desirable in light of- l 4 ,

experience gained w?th the pre-licensing consultation process since the ,

promulgation of the piocedural part of 10 CFR Part 60. j j On January 17, 1985 the Consiission published proposed procedural [

l

' amendmentsto10CFRPart60forpubliccomment(50FR2579). The {

proposed amendments contained revisions to (1) the content of the site f 1

I characterization plan (SCP), (2) NRC-review of the SCP, and the issuance  !

l

! by NRC of a site characterization analysis (SCA), (3) means and timing of i State and Indian tribe consultation with NRC and participation in NRC l l reviews, and (4) notice and publication by NRC with respect to site >i I

! characterization documents. The Cosmission received a number of conuents j on the proposed amendments, all of which have been carefully considered. ,

The principal issues raised by these consents are discussed below. l 1

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e l

2 Enclosure A l

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[7590-01]

! COMMENTS i

A total of 15 organizations ccamented on the proposed rule. (

addressing a variety of concerns. Five of these issues call for extended response in this statement. These issues are: whether NRC should issue  ;

a draft site characterization analysis; the deletion of site selection information from the contents of the SCP; whether DOE should be required 7 to receive and consider comments on the SCP before starting to sink a shaft; whether all amendments of 10 CFR Part 60 and Part 51 to conform

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with the Nuclear Waste Policy Act, especially those related to NEPA 4

l requirements and the present amendments, should be promulgated at the same time; and whether host States should automatically be afforded party  ;

status in licensing proceedings. Summaries of the connents received on  ;

these issues are presented below. Copies of all the comments, and the i t i Connission's analysis of them, are available in the Commission's Public Document Room. I I

a. Draft Site Characterization Anal.ysis i j

There were several consents about the deletion of the draft site l characterization analysis. Under the proposed rule, the NRC would have [

l issued an SCA, a final set of comments on DOE's SCP and would have ,

l>

j invited public comment on its SCA for consideration in the ongoing staff (

i l review and commentary on the DOE program but would not have issued both a j draft and a final SCA. Some connenters agreed with elimination of the .

l draft SCA. However, most commenters requested that NRC continue to issue j its analysis in both a draft and final form. Comnenting States and j i

i tribes believe that they have substantial expertise which NRC should  !

i 3 Enclosure A I

.[7590-01] , ,

consider in preparing its analysis on the DOE SCP. Some States wanted to see NRC's draft SCA to have the benefit of NRC's expertise while preparing their own comments. Some commenters emphasized a belief that any schedule delays resulting from issuing a draft SCA would not be important. Some commenters believed that the opportunities and procedures for public and State involvement in the repository siting and development process under the NWPA are not substantially different from those contemplated when the previous regulations were promulgated. From this they concluded that there is no reason for NRC to change its procedures by eliminating the draft analysis on DOE's SCP's.

The Commission understands the concerns of the States, tribes and public that their views be heard and considered. The Consiission intends ,

to be fully aware of State, tribe and public views before, during, and after the site characterization plan review. The States and tribes will  ;

be routinely infonned of the information made available to NRC and NRC's comnants thereon. The States and tribes are able to participate at NRC/D0E technical meetings. As is now being done, the NRC staff will continue to have discussions with State and tribe representatives and will respond to written submissions from the States and tribes. The NRC will also follow closely the NWPA mandated opportunities for State, tribe ,

i and public interaction with DOE to be aware of the concerns which are ,

i expressed by the States and tribes in these forums.

• The need for opportunities for State, Indian tribe, and public [

i involvement is addressed evtensively by the NWPA. The procedures i established by the statute provide means for informing NRC of issues of l concern. Given these specific procedures, and taking into account the scheduling provisions of the NWPA, the publication of a d; aft SCA is no  !

l 4 Enclosure A l l

[7590-01]'

L longer warranted. It is not required by law. It is important to note, i

however, that there will still be an opportunity to comment on NRC's SCA.

I as the rule a:; amended requires the solicitation of such comments. NRC i i

i will make further comments to DOE if the State and public comments on

( NRC's SCA provide substantial new grounds for making recommendations or i

stating objections to DOE's site characterization program. (It should be noted, however, that NRC does not contemplate a fomal comment analysis.)

j To furnish additional assurance to the host State and affected Indian tribes that their views will be considered in NRC's preparation of its SCA, a provision has been added to the final regulation providing an ,

l opportunity, before publication of the SCA by NRC, for those parties to .

f present their views on the DOE SCP and suggestions with respect to NRC '

I l

comments thereon.  :

j -!

b. Site Selection Information  ;

! Some commenters opposed the deletion of infonnation concerning DOE's

! site screening and selection process from the SCP contents. Some com- j

! i menters also connented unfavorably on a perceived lack of any NRC review  ;

i i of DOE's site screening and selection process. A few commenters

} supported the deletion of such information from the SCPs. *

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The Commission has carefully reviewed the arguments presented by the

commenters who stated that site selection infonnation should still be i included in the SCPs. The Commission continues to believe that such. ,

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information is neither appropriate nor required in an SCP. t l In regard to the generalized concern that NRC'should be involved in (

l the site selection process, it-is noted that the NRC has played an  !

important role in this process and will continue to do so. The sites 5 Enclosure A f f

m___~ . . _ . _ , _ , _ _ . _ _ _ _ _ - . _ . - . _ _ _ _ . , , _ . _ _ . , _ . . - - . _ _ _ . _ _ . . _ - . . , _ . . _ . , _ _ . . _ _ . -

[7590-01] , ,

4 under consideration for nomination have been the subject of continuous i scrutiny by the NRC staff to identify licensing issues at the earliest  !

possible stage. Available data are examined on a regular basis and site specific documents such as the environmental assessments are carefully

\

reviewed. There are also activities specified by the NWPA which afford-4 the NRC an opportunity to directly influence the site selection process.

j These are NRC concurrence in DOE's siting guidelines and review and com-i ment on the site characterization plans. NRC expects that.-under the EIS i scoping process pursuant to CEQ rules, DOE will keep NRC fully and i

currently informed of its plans for implementation. We also expect to review and connent on DOE's scoping documents and activities for i

implementing NEPA in the repository program which are to be developed

pursuant to CEQ rules, and to comment on DOE's EIS.

Thus, the issue of concern in this rulemaking is not whether the Commission should be involved in the DOE site screening and selection i process generally. It is, more specifically, the scope of the 1

information to be included in the DOE submission. The new statute, while i generally conforming to the earlier NRC regulation, omitted the i

! provisions dealing with NRC review of site selection matters. The l Cosmission construes this action as an indication that the site selection .

! issues previously dealt with in Part 60 were to be separated from the l site characterization reports and dealt with, instead, in the environmental assessments. Under the NWPA, the Comnission's role in the

! review of DOE's site characterization plans is to determine whether they l

! are appropriate in light of the Connission's regulations. Attention will I

be directed toward the adequacy of the characterization of a particular i l

\

6 Enclosure A l

[7590-01]

site; and this is different from, and not dependent upon, the 1 considera+4ar.s that led to the selection of that site.

c. Shaft Sinking l Some connenters suggested that the regulation should be~ amended to t

require that DOE may not proceed to characterize sites by sinking shafts until NRC and State review and comment upon the SCP are complete. One commenter suggested that the regulation be clarified to specify that

! completion of NRC review is not a condition precedent for shaft sinking.

h j The Consission is generally in accord with the commenters who regard NWPA ,

as requiring that DOE defer the sinking of shafts at least until such time as there has been an opportunity for pertinent connents on shaft sinking to have been solicited and considered by DOE. As stated in the l

l preamble to the proposed rule, "The Commission believes that Congress

! intended that DOE should provide the plans sufficiently far in advance so that connents may be developed and submitted back to DOE early enough to be considered when shaft sinking occurs, and all times thereafter." The i question, therefore, is not whether the Connission agrees with the j objective of those commenters to defer shaft sinking until after connents f on the SCP. have been received by DOE, but rather whether this requirement should be incorporated into the Connission's rules. What is involved is

! essentially a construction of the obligations of DOE, as a matter of statutoryinterpretation,undersection113(b)ofNWPA. Unless there is ,

a compelling reason for the Connission to incorporate its reading of such ,

i

a provision in its own regulations, the appropriate course is to leave it i .

l to DOE in the first instance to construe and apply the law.

i i

! 7 Enclosure A

[7590-01] . .

The Comission finds no such compelling reason. It relies, in part, on the opportunities for information exchange which are available to it under its established working arrangements (including the Procedural l Agreement, 48 FR 51876, described in the preamble to the proposed rule). }

t One of the objectives of these arrangements is to enable NRC to review  ;

t and comment in a timely fashion on those issues that may have a bearing j upon DOE's decision to proceed with, or delay, the sinking of repository i shafts. Many issues related to the shaft sinking have long lead times.

1 These issues are being taken up by the NRC prior to the SCP under the l

aforementioned open working arrangements. Moreover, the Consission is l l

, aware that DOE itself has indicated its intention to wait until it has .

completed a review of comments before proceeding to sink shafts. The 1 Connission observes that DOE's failure to await, and to take into .

r account, pertinent NRC connents might result in later licensing l difficulties.

I 5

d. Simultaneous Promulgation of Amendments l! '

Some connenters recommended that all revisions to Part 60 and Part 51 to conform them to the NWPA should be promulgated simultaneously. l In particular, they recomended that the revisions concerning NEPA .

f requirements accompany the revisions currently being promulgated. They  ;

believe that this would assure that a comprehensive and integrated r

approach is taken and any confusion regarding NWPA and NEPA requirements would be eliminated. They argue that much of Part 60 now rests on NEPA

authority so that failure to include NEPA in the currently proposed revision casts a cloud over the Connission's view of its authority to carry cut early site reviews. l i

i Enclosure A 8

, _ - - - - , , ,- n , _.

o . [7590-01]

The Consnission has not put off considering the responsibilities under NEPA as modified by the NWPA. In developing these changes to the regulation, the Consnission has specifically considered whether any procedures might be needed at the site screening or characterization stage, so as to assure that the Commission would be able to meet its ultimate NEPA responsibilities. The Commission concludes that they are not.

The Conunission's Part 51 regulations govern the Commission's responsibilities for conducting environmental reviews associated with its licensing and regulatory functions. Section 121(c) of NWPA, 42 U.S.C.

10141, clearly states that the requirements and criteria set forth in Part 60 relate to the Conninission's responsibility under the Atomic Energy Act and the Energy Reorganization Act and do not require a NEPA EIS. The Part 51 changes, on the other hand, will relate to the Consnission's NEPA obligations at the time DOE applies for a license.

It appears that, under NWPA, NRC prelicensing review of NEPA issues was, in fact, not intended to be extensive. Aside from its concurrence in the siting guidelines, the statutory scheme calls for NRC participation to commence with the filing of the site characterization ,

plans by DOE. Furthermore, unless DOE fails to follow the procedures for identifying sites to be characterized, as specified in NWPA, there would be no basis or authority to insist, for NEPA purposes, that particular sites be excluded or that other sites be selected for characterization. ,

i In light of the Comission's understanding with respect to its responsibilities, it is important to proceed with the present action .

I without awaiting other changes that will te proposed in the light of NWPA. This is especially the case so that the changes related to site i

1 9 Enclosure A

~

[7590-01] , .

characterization can be implemented in a timely fashion as DOE prepares its site characterization plans.

The Commission acknowledges that the authority citation for Part 60 includes a reference to NEPA; that is appropriate because the regulation specifiesNEPAlicensingfindings,10CFR60.31(c),60.41(d),and contemplates the inclusion, in a construction authorization and a license, of conditions to protect environmental values, 10 CFR 60.32(a),

60.42(a). These sections in essence, merely require that the construction and operation of a repository comply with NEPA requirements..

They do not represent a reliance on NEPA authority as a significant underpinning for Part 60. Part 51 of NRC regulations, which deals with NEPA implementation, will however need to be changed - specifically to (1) define the alternatives that must be discussed in an environmental impact statement, (2) exempt the promulgation of NRC licensing requirements and criteria from environmental review under NEPA, and (3) set out procedures that will be followed by the Commission in determining whether or not to adopt the DOE EIS. The alternatives are, for the most part, prescribed by NWPA. The exemption of. licensing requirements from environmental review is also an explicit feature of that Act. The ,

procedures for adoption of the DOE environmental impact statement will be ,

governed by NWPA and the regulations of the Council on Environmental Quality. These changes to Part 51 will be needed in order to conform NRC's licensing process to applicable law. Nothing in the present action impairs the Consiission's ability to make the required changes to Part 51 or otherwise to meet its NEPA obligations. Thus, in developing this current amendment the Commission has specifically considered whether any procedures might be needed dure..g the current site screening process to 10 Enclosure A l

.. . [7590-01]

assure meeting its ultimate NEPA responsibilities. The Comission concludes that they are not. Nothing in the upcoming Part 51 changes will affect early site screening involvement. Accordingly, this rule is separable from the amendments to be proposed to Part 51. It is_needed now by DOE, and there would be no justification for delay in promulgating it.

e. Party Status for Host State The point was raised that a host State is entitled to full party status at the outset in NRC licensing proceedings and should have the rights of such a party. An absolute right of participation in NRC licensing proceedings should be declared by 10 CFR Part 60.

Under section 189(a) of the Atomic Energy Act. 42 U.S.C. 2239, a person "whose interest may be affected" is entitled to be admitted to a licensing hearing as a party. Under this statutory provision, there can be no question that the host State has a legal right to be a party.

Nevertheless, as in any judicial or administrative proceeding, certain rules of practice are essential in order for the party's interest in a ,

matter, its contentions with respect thereto, and its claims for relief, ,

to be made a matter of record.

Rights of participation in NRC licensing proceedings are referenced in 10 CFR 560.63. The tests of standing are set out in 12.714. These tests are clearly met for host State participation. The standing tests would be met for affected Indian tribes as well. (It is also noted that States and arguably affected Indian tribes can participate under 10 CFR 62.715 without having to take a position on issues by 11 Enclosure A

[7590-01] . .

supplementing their intervention petition with contentions as required by .

92.714.) There is thus no substantial basis of concern with respect to the issue raised by the commenters. Once the State / tribe is admitted as 1

an intervenor, it would enjoy the full rights of a party. These include, with respect to all matters affecting its interest, the rights to ,

introduce evidence, put on witnesses, cross-examination, full notice and ,

service of all pleadings, full rights of discovery, and standing to i

appeal. Non-host States may also participate in licensing proceedings as l parties to the extent they meet the tests of standing set out in 10 CFR Part 2, or as interested States.

CHANGES TO THE PROPOSED AMENDMENTS ,

The final rule contains the following substantive changes from the

proposed rule as published on January 17, 1985.

Authority Citation i Section 14(a) of Public Law 95-601, 42 U.S.C. 2021a would require that DOE notify the Commission as early as possible after commencement of planning for a particular repository. The Comission was directed to i notify States in turn. As implied by the preamble to the proposed rule, the Comission considers these requirements to have been superseded by  ;

NWPA. The authority citation has been modified accordingly.

Exclusion of Defense Waste Facilities The Comission's licensing authority extends to two different classes of high-level waste disposal facilities: repositories used  !

primarily for civilian waste (including spent nuclear fuel) and 12 Enclosure A

7

[7590-01]

I

! facilities for defense wastes. Energy Reorganization Act of 1974, +

Sec. 202, 42 U.S.C. 5842. NWPA applies .only to some of these facilities o

- namely, those used at least in part for civilian wastes (i.e.t. not-1 exclusively for defense wastes). Sec. 8(c), 42 U.S.C. 10107. A i commenter suggested that the pre-NWPA procedures should expressly be i

retained for defense-only facilities, as they ware not covered by NWPA

! and the statute accordingly did not support any change in NRC '

2

!. requirements. The point has merit. However, in accordance with the

• e procedures set out in Section 8(b) of NWPA, the President has now 1

determined that the development of a repository for the disposal of I defense HLW is not required. There.is thus no longer any need for 4

i regulations dealing specifically with a defense-waste-only repository.

To reflect this conclusion, and clarify the scope of the regulations.

l 1 Section 60.1 is being revised so as to limit the application of the prt ,

to facilities " sited, constructed, or oportted in accordance with the ,

b

! Nuclear Waste Policy Act of 1982." Also, the reference in 160.17(a)(4)

{ to a geologic repository that is not subject to the Waste Policy Act has ';

been deleted. ,

i l 5 Authority Reference for Site Characterirfjtion l One connenter noted that the refervice to former '10 CFR 951.40, in f l

connection with the requirement that DCE is to conduct a program to characterize multiple sites, has been superseded by the NWPA. In  !

response to that comment, 560.15(c) has been changed to indicate that Sec.113 of the NWPA (42 U.S.C.10133) is the basis for the site ,

i '

l characterization program requirement. The proposed amendnents had r, imply renumbered this section from 160.10 to $60.15 without change. i I

i.

! 13 Enclosure A l

_ - . ~ . _ _ . , _ _ _ _ . _ . . . _ . . _ _ . _ . _ _ . _ . - . - . _ _ _ _ _ _ _ _ _ _ , . . - . _ _ . - - . - . .

[7590-01] ,

,1 Authority for Early Site Review by NRC I In response to the connent that the NRC should not rely on the l DOE-NRC Procedural Agreement as authority for early site review, the

, footnote to 160.18 is revised to delete the reference to the DOE-NRC i

j Procedural Agreement. The Commission relies upon the statutes listed in I

l the authority citation. >

I Public Conment on NRC Consents to DOE on Site Characterization One comment stated that issues arising during site characterization could be more readily brought to the Commission's attention by estab-f j lishing a notice and public consent process for the NRC semi-annual com-ments to DOE on site characterization. Just as the Commission will 1

i solicit connents on its connents on DOE's initial SCP, it wants to allow for public connent on any Connission connents on DOE's semi-annual l reports. Section 60.18(1) has therefore been changed to include a 1

provision that the Director shall invite public comment on comments which the Director makes to DOE upon review of the DOE semi-annual reports or

on any other consents which the Director makes to DOE on site

! characterization.

I t

Obtaining Host State and Affected Indian Tribe Views on the SCP

! Although the Connission continues to find preparation of the draft SCA to be unnecessary, some recognition of its intention to welcome the

~

views of host States and affected Indian tribes is warranted.

Accordingly,560.18(b)hasbeenchangedtoprovideanopportunityforthe host State and affected Indian tribes for each site to be characterized t

14 Enclosure A l

[7590-01]

to present their views on the DOE SCP and their suggestions with respect -

to NRC comments thereon.

Consultation and Site Review

- As stated in the notice of proposed rulemaking, prior provisions

, z' pertaining to participation of Indian tribes have been incorporated in the substantive provisions applicable to States. Further editorial

changes (i.e., references to " tribes") have been made to accomplish this 4

purpose in 660.62(c). The final rule,'in 560.2 also sets out the full s

text of the statutory definition of "affected Indian tribe".

ENVIRONMENTAL IMPACT s Pursuant to Section 121(c) of the Nuclear Waste Policy Act, this i rule does not require the preparation of an environmental [ impact statement under Section 102(2)(C) of the National Environmental. Policy  ;

Act of 1969 or any environmental review under subparagraph (E) or (F) of Section 102(2) of such act. f s

4  :

f PAPERWORK REDUCTION ACT STATEMENT-This final rule amends information collection requirements that are  ;

s subject to the Paperwork Reduction Act of 1980(44U.S.C.3501'etseq.).

These requirements were approved by the Office of Management and Budget- j Approval No. 3150-0127.

}

t i

REGULATORY FLEXIBILITY ACT CERTIFICATION f i

1  :

0 g

?

1 15 Enclosure A a- - u.r_ . - -,% ...--r-.---- . - - , ,,..----.-,,.,,wr w *- sy v * + "e W t

[7590-01] , ,

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.  ;

605(b)), the Commission certifies that this rule will not have a signifi-  ;

cant economic impact on a substantial number of small entities. This j rule relates to the licensing of only one entity, the U.S. Department of i i Energy, which does not fall within the scope of the definition of "small l entities" set forth in the Regulatory Flexibility Act.  ;

. Y

, r I *~ i LIST OF SUBJECTS IN 10 CFR PART 60 1

.I High-level waste, Nuclear power plants and reactors, Nuclear materials, Penalty, Reporting and recordkeeping requirements. Waste treatment and disposal. ,

i

[f ISSUANCE l For the reasons set out in the preamble and under the authority of f i

the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act  ;

of 1974, as amended the Nuclear Waste Policy Act of 1982, and 5 U.S.C. f B - , i 553, the Nuclear. Regulatory Commission is adopting the following amend- i

.. i ments to 10 CFli Part 60. l i

's f 1 PART 60 - DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTES IN  !

t GE0 LOGIC REPOSITORIES i  !

12 The' authority citation for Part 60 is revised to read as

, , i follows:

p

~'

r T 16 . Enclosure A.  !

- . , _. ,,.r. -_v_,., _ . _ - _ J,

[7590-01]

AUTHORITY: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929,  !

I 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092,2093,2095,2111,2201,2232,2233); secs.202,206,88 Stat.1244, 1246 (42 U.S.C. 5842, 5846); sec.10. Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 5851); sec.102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); sec. 121, Pub. L.97-425, 96 Stat. 2228 (42 U.S.C. 10141).

For the purposes of Sec. 223, 68 Stat. 958, as amended (42 U.S.C 2273), il 60.71 to 60.75 are issued under Sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 22010).

2. Section 60.1 is revised to read as follows:

560.1 Purpose and scope.

This part prescribes rules governing the licensing of the U.S.

Department of Energy to receive and possess source, special nuclear, and byproduct material at a geologic repository operations area sited, constructed, or operated in accordance with the Nuclear Waste. Policy Act of 1982. This part does not apply to any activity licensed under another part of this chapter.

3. Section 60.2 is revised by removing the definitions of " Indian tribe" and " Tribal organization" and inserting, in the appropriate alpha-betical location, a definition of the term "affected Indian tribe" to read as follows:

5 60.2 Definitions.

As used in this Part --

17 Enclosure A

[7590-01] , .

"Affected Indian tribe" means any Indian tribe - (a) within whose reservation boundaries a monitored retrievable storage facility, test and evaluation facility, or a repository for high-level radioactive waste or spent fuel is proposed to be located; (b) whose federally defined possessory or usage rights to other lands outside of the reservation's boundaries arising out of congressionally ratified treaties may be substantially and adversely affected by the locating of such a facility:

Provided, That the Secretary of the Interior finds, upon the petition of the appopriate governmental officials of the tribe, that such effects are both substantial and adverse to the tribe.

160.10 [tedesignated as 960.15]

4. Section 60.10 is redesignated as 5 60.15. In new 660.15, paragraph (c) is revised to read as follows:

5 60.15 Site characterization -

(c) As provided by Sec. 113 of the Nuclear Waste Policy Act (42 ,

l U.S.C. 10133), DOE is also required to conduct a program of site

( characterization, including in situ testing at depth, with respect to l

alternate sites.

5 60.11 [ Removed]

5. Section 60.11 is removed.

6. Sections 60.16 through 60.18 are added to read as follows:

18 Enclosure A

1

[7590-01] 1 l

5 60.16 Site characterization plan required.

Before proceeding to sink shafts at any area which has been approved by the President for site enaracterization, DOE shall submit to the Director, for review and comment, a site characterization plan for such area.

5 60.17 contents of site characterization plan.

The site characterization plan shell contain --

(a) A general plan for site characterization activities to be con-ducted at the area to be characterized, which general plan shall include:

(1) A description of such area, including information on quality assurance programs that have been applied to the collection, recording, and retention of information used in preparing such description.

(2) A description of such site characterization activities, including the following --

(1) The extent of planned excavations; (ii) Plans for any onsite testing with radioactive or nonradioactive material; (iii) Plans for any investigation activities that may affect the capability of such area to isolate high-level radioactive waste; (iv) Plans to control any adverse impacts from such site characterization activities that are important to safety or that are important to waste isolation; and (v) Plans to apply quality assurance to data collection, recording, and retention.

t I

19 Enclosure A i

[7590-01] , ,

(3) Plans for the decontamination and decommissioning of such area, and for the mitigation of any significant adverse environmental impacts caused by site characterization activities, if such area is determined unsuitable for application for a construction authorization ,

for a geologic repository operations area; (4) Criteria, developed pursuant to section 112(a) of the ,

Nuclear Waste Policy Act of 1982, to be used to detemine the suitability  !

of such area for the location of a geologic repository; and (5) Any other information which the Comission, by rule or l t

order, requires. ,

(b) A description of the possible waste fom or waste package for  ;

the high-level radioactive waste to be emplaced in such geologic reposi- ,

tory, a description (to the extent practicable) of the relationship be-tween such waste fom or waste package and the host rock at such area, ,

i and a description of the activities being conducted by DOE with respect .

to such possible waste fom or waste package or their relationship; and

, (c) A conceptual design for the geologic repository operations area {

that takes into account likely site-specific requirements.

f 5 60.18 Review of site characterization activities.1 (a) The Director shall cause to be published in the Federal ,

Register a notice that a site characterization plan has been received  !

from DOE and that a staff review of such plan has begun. The notice shall identify the area to be characterized and the NRC staff members to be consulted for further information.

l l

20 Enclosure A .

[7590-01]

(b) The Director shall make a copy of the site characterization plan available at the Public Document Room. The Director shall also e

lIn addition to the review of site characterization activities specified in this section, the Commission contemplates an ongoing review.of other

. information on site investigation and site characterization, in order to allow early identification of potential licensing issues for timely i resolution. This activity will include, for example, a review of the environmental assessments prepared by DOE at the time of site l nomination.

i 1

I i

i 21 Enclosure A

[7590-01] , ,,

transmit copies of the published notice of receipt to the Governor and legislature of the State in which the area to be characterized is located and to the governing body of any affected Indian tribe. The Director e shall provide an opportunity, with respect to any area to be characterized, for the State in which such area is located and for 'l

. affected Indian tribec to present their views on the site characterization plan and their suggestions with respect to comments thereon which may be made by NRC. In addition,'the Director shall make NRC staff available to consult with States and affected Indian tribes as provided in Subpart C of this part. l (c) The Director shall review the site characterization plan and j i prepare a site characterization analysis with respect to such plan. In j the preparation of such site characterization analysis, the Director may l invite and consider the views of interested persons on DOE's site char- l acterization plan and may review and consider coments made in connection with public hearings held by DOE.

(d) The Director shall provide to DOE the site characterization l analysis together with such additional coments as may be warranted. ,

These comments shall include either a statement that the Director has no objection to the DOE's site characterization program, if such a statement ,

is appropriate, or specific objections with respect to DOE's program for [

i characterization of the area concerned. In addition, the Director may j make specific recommendations pertinent to DOE's site characterization program. l l

1 (e) If DOE's planned site characterization activities include  !

i onsite testing with radioactive material, the Directorb comments shall j include a determination regarding whether or not the Comission concurs  !

f

22 Enclosure A t

._. _ . ~ ._,__.. _.. ~_.-.._ _ ..__ - _ _ . _ _.,... _ ._, _.._.I

[7590-01]

that tre propo nd use of such radioactive material is necessary to provide data for the preparation of the environmental reports required by law and for an application to be submitted under 6 60.22 of this part.

(f) The Director shall publish in the Federal Register a notice of availability of the site characterization analysis and a request for public coment. A reasonable period, not less than 90 days, shall be allowed for comment. Copies of the site characterization analyses and of the coments received shall be made available at the Public Document Room.

(g) During the conduct of site characterization activities, DOE shall report not less than once every six months to the Commission on the nature and extent of such activities and the information that has.been i

developed, and on the progress of waste for1n and waste package research and development. The semiannual reports shall include the results of site characterization studies, the identification of new issues, plans for additional studies to resolve new issues, elimination of plannad studies no longer necessary, id]ntification of decision points reached and modifications to schedules where appropriate. DOE shall also report its progress in developing the design of a geologic repository ope. cations area appropriate for the area being characterized, noting when key design -

parameters or features which depend upon the results of site characterization will be established. Other topics related to site characterization shall also be covered if requested by the Director.

(h) During the conduct of site characterization activities, NRC staff shall be permitted to' visit and inspect the locations at which such activities are carried out and to observe excavations, borings, and in situ tests as they are done.

23 Enclosure A

[7590-01] ,. ,

1 (1) The Director may coment at any time in writing to DOE, expres-sing current views on any aspect of site characterization. In particular, such coments shall be made whenever the Director, upon review of comments invited on the site characterization analysis or upon review of DOE's semiannual reports, determines that there are substantial new grounds for making recomnendations or stating objections to DOE's site characterization program. The Director shall invite public comment on any comments which the Director makes to DOE upon review of the DOE semiannual reports or on any other comments which the Director makes to I DOE on site characterization.

(j) The Director shall transmit copies of the site characterization a analysis and all connents to DOE made by the Director under this section to the Governor and legislature of the State in which the area to be  ;

characterized is located and to the governing body of any affected Indian tribe. When transmitting the site characterization analysis under this i

! paragraph, the Director shall invite the addressees to review and consent thereon.

(k) All correspondence between DOE and the NRC under this section, including the reports described in paragraph (g), shall be placed in the i

, Public Document Room. ,

(1) The activities described in paragraphs (a) through (k) above l

constitute informal conference between a prospective applicant and the staff,asdescribedini2.101(a)(1)ofthischapter,andarenotpartof l 2 . .

a proceeding under.the Atomic Energy Act of 1954, as amended. Accord- i s

ingly, neither the issuance of a site characterization analysis nor any other comments of the Director made under.this section constitute a com-  ;

mitment to issue any authorization or license or in any way affect the l I

24 Enclosure A

[7590-01]

authority of the Commission, the Atomic Safety and Licensing Appeal Board, Atomic Safety and Licensing Boards, other presiding officers, or - j

. the Director, in any such proceeding.

i -i

7. Subpart C is revised to read as follows: ,

SUBPART C - PARTICIPATION BY STATE GOVERWENTS AND INDIAN TRIBES  ;

9 60.61 Provision of information.  :

! (a) The Director shall provide to the Governor and legislature of any State in which a geologic repository operations area is or may be' I

located, and to the governing body of any affected Indian tribe, timely  :

c

) and complete information regarding determinations or plans made by the  !

a Commission with respect to the site characterization, siting, develop-

) ment, design, licensing, construction, operation, regulation, permanent-  !

1

! closure, or decontamination and dismantlement of surface facilities, of  !

i such geologic repository operations area.

(b) For purposes of this section, a geologic repository operations [

! l i area shall be considered to be one which "may be located" in a State if  ;

the location thereof in such State has been described in a site i t

characterization plan submitted to the Comission under this part.. i (c) Notwithstanding paragraph (a) of this section, the Director is not required to distribute any document to any entity if, with respect to .!

such document, that entity or its counsel is included on a service list l prepared pursuant to Part 2 of this chapter.  !

i i

4 -

25 Enclosure A i

'[7590-01] . .

(d) Copies of all communications by the Director under this section shall be placed in the Public Document Room, and copies thereof shall be furnished to DOE. .l 5 60.62 Site review. ,

(a) Whenever an area has been approved by the President for site characterization, and upon request of a State or an affected Indian tribe, the Director shall make NRC staff available to consult with representatives of such States and tribes.

(b) Requests for consultation shall be made in writing to the Director.

ri (c) Consultation under this section may include:

(1) Keeping the parties informed of the Director's views on the progress of site characterization.

(2) Review of applicable NRC regulations, licensing procedures, schedules, and opportunities for State and tribe participation in the Commission's regulatory activities.

(3) Cooperation in development of proposals for State and tribe participation in license reviews.

9 60.63 Participation in license reviews.

(a) State and local governments and affected Indian tribes may participate in license reviews as.provided in Subpart G of Part 2 of this '

chapter.

(b) In additica, whenever an area has been approved by the President for site characterization, a State or an affected Indian tribe may submit.to the Director a proposal to facilitate its participation in 26 Enclosure A

[7590-01]

the review of a site characterization plan and/or license application.

The proposal may be submitted at any time and shall contain a description and schedule of how the State or affected Indian tribe wishes to participate in the review, of what services or activities the State or affected Indian tribe wishes NRC to carry out, and how the services or activities proposed to be carried out by NRC would contribute to such participation. The proposal may include educational -or infonnation services (seminars, public meetings) or other actions on the part of NRC, such as establishing additional public document rooms or employment or exchange of State personnel under the Intergovernmental Personnel Act.

(c) The Director shall arrange for a meeting between the represen-tatives of the State or affected Indian tribe and the NRC staff to discuss any proposal submitted under paragraph (b) of this section, with a view to identifying any modifications that may contribute to the effective participation by such State or tribe.

(d) Subject to the availability of funds, the Director shall approve all or any part of a proposal, as it may be modified through the meeting described above, if it is detennined that:

(1) The proposed activities are suitable in light of the type and magnitude of impacts which the State or affected Indian tribe may bear; 4

(2) The proposed activities (1) will enhance communications between NRC and the State or affected Indian tribe, (ii) will make a pro-ductive and timely contribution to the review, and (iii) are authorized ,

by law.

I (e) The Director will advise the State or affected Indian tribe

! whether its proposal has been accepted or denied, and if all or any part 27 Enclosure A l

[7590-01] , ,

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of proposal is denied, the Director shall state the reason for the .

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denial.

(f) Proposals submitted under this section, and responses thereto, j i

i shall be made available at the Public Document Room. l l

1 9 60.64 Notice to States.

I I If the Governor and legislature of a State have jointly designated  ;

on their behalf a single person or entity to receive notice and j infonnation from the Commission under this part, the Commission will  !

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provide such notice and infonnation to the jointly designated person or  ;

l entity instead of the Governor and legislature separately.  !

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! $ 60.65 Representation. l

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! Any person who acts under this subpart as a representative for a i e .

l j State (or for the Governor or legislature thereof) or for an affected '

Indian tribe shall include in the request or other submission, or at the l request of the Connission, a statement of the basis of his or her authority to act in such representative capacity.

Dated at Washington, DC, this day of ,1985. l i i For the Nuclear Regulatory Connission. l l

l t  !

Samuel J. Chilk, ,

! Secretary of the Commission. l f l

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k 28 Enclosure A l l

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ENCIASURE B w

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PROCEDURAL AMENDMENT COMMENTS COMMENT

SUMMARY

AND STAFF ANALYSIS l

COMMENT NO. 1 Comment Summary There were several comments about the deletion of the draft site characterization analysis. Under the rule as proposed to be amended NRC will issue a single, final set of comments on DOE's SCP and will invite public comment on its comments but will not issue both a draft and a final set of comments. Some commenters agree with the elimination of the draft comments.

Most ccmmenters requested that NRC continue to issue its comments in both a draft and final form. Commenting States believe that they have substantial

! expertise which NRC should consider in preparing its comments. Some States t wanted to see NRC's draft comments to have the benefit of NRC's expertise while preparing their comments. Some commenters emphasized a belief that any schedule delays resulting from issuing draft comments would not be important.

Some commenters believe that the opportunities and procedures for public and state involvement.in the repository siting and development process under the NWPA are not substantially different from those contemplated when the previous 1 4

regulations were promulgated. From this they conclude that there is no reason l for NRC to change its procedures by eliminating the draft comments on DOE's SCP's.

Response: -

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The Commission understands the concerns of the States and public that their .

views be heard and considered. The Commission intends to be fully aware of State and public views before, during, and after the site characterizatien plan review. The States will be routinely informed of the information made available to NRC and NRC's comments thereon. The States are able to attend NRC/ DOE technical meetings. As is now being done, the NRC staff will continue to have discussions with State representatives and will respond to any written '

submissions from the States. The NRC will also follow closely the NWPA '

I. mandated opportunities for State and public interaction with DOE to be aware of the concerns which are expressed by the States in these forums. ,

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We note that no commenter has suggested that the NRC has any statutory duty to publish its comments on the site characterization plans in draft for public #

comment. The NRC believes that the NWPA has assured enough additional opportunities for State and public involvement and changed the timing of the SCP's such that the NRC can be adequately informed of State and public views l without publishing its comments in draft and thus the expenditure of NRC 1 resources required to publish draft comments is no longer warranted. It is ,

important to note that there will still be an opportunity to comment on NRC's comments on the SCP. The rule as amended requires the solicitation of such .;

comments. Further, this single NRC issuance of comments will occur at ENCLOSURE B

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approximately the same point in time as the issuance of a draft would have occurred. Thus, to the extent that States want to rely on NRC expertise, NRC's comments will be available to them at the same time as they would have had a i draft been issued. Effectively the only difference will be that NRC will not

republish its comments. However, NRC will make further comments to DOE if the State and public comments on NRC's comments provide substantial new grounds for making recommendations or stating objections to DOE's site characterization l program. -

To provide additional assurance to the host State and affected Indian tribes that their views will be considered in NRC's preparation of its comments, a provision has been added to the regulation stating that before publishing its comments on an SCP the NRC staff will provide an opportunity for the host State and affected Indian tribes for the site to present their views on the DOE SCP and to review and discuss planned NRC comments on the SCP.

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3 COMMENT NO. 2 Comment Summary:

There were a large number of comments on the deletion of site screening and selection information from the SCP and the perceived lack of any NRC review of DOE's site screening and selection process. Most of the comments opposed the deletion of site screening and selection information from the SCP and more generally commented unfavorably on the perceived lack of any NRC review of DOE's site screening and selection process. The commenters primary arguments were:

NRC's obligations to protect health and safety under the Energy Reorganization Act and the Atomic Energy Act require that NRC review the DOE site selection process and engage in a comparative analysis of sites. Moreover, NRC's NEPA responsibilities, including consideration of site selection issues, remain unchanged. Under NEPA, NRC has a responsibility to use its expertise to evaluate and compare the choices as the list of sites is winnowed down. The obligation to consider alternatives is contained in NRC licensing standards and, accordingly, the issues should be addressed at the earliest possible time.

NWPA requires NRC to " oversee" DOE's site selection decisions. The authority to require DOE to submit "other information" in the site characterizaticn plan is sufficient to enable NRC to obtain and review site selection information.

Moreover, NRC will need to make a comparative evaluation of sites in order to satisfy EPA assurance requirements promulgated in accordance with NWPA.

Response

The prior rule required submission in the SCP of information concerning the criteria used to arrive at the candidate area, the method by which the site was selected for characterization, and the decision process by which the site was selected for characterization. The site characterization analysis was to contain a discussion of the items of information requested and an opinion by the Director that he has no objection to the DOE's site characterization program, if such an option is appropriate, or specific objections to DOE's proceeding with characterization of the named site. The NRC was to examine DOE's site selection process bearing in mind that each site selected for characterization should have no obvious deficiency relative to meeting the technical criteria of 10 CFR Part 60. (44 FR 70409)

The information submitted on the site selection process would have included information on the screening process by which DOE's "potentially acceptable" sites were arrived at as well as information on the process for selecting three of these sites for characterization.

The NWPA established a process in which the siting guidelines and the environmental assessments were prepared prior to the SCPs, and information on the site selection process was not included in the specified contents of the

4 SCPs. With information on the site selection process no longer required in the

. SCP's, NRC's review of the site selection process takes place in its I

concurrence in the siting guidelines and review of DOE's draft environmental assessments . DOE's general process for site selection is now specified by the a NWPA. The criteria for selection of sites and details of the selection process are contained in the siting guidelines in which.NRC.has concurred. However, it should be noted that the guidelines were not used in the screening process to arrive at the nine "potentially acceptable" sites which DOE identified. The i procedure of starting the site selection process for the first repository with i the nine sites whi h DOE had choosen from the site investigations conducted

prior to the NWPA was incorporated into the screening procedures specified in the guidelines. The Commission accepted this procedure in the guideline concurrence action. Thus the guideline screening prcedures were applied only to selection of five of the nine sites for nomination. The schedule of events set forth in the NWPA required DOE to identify "potentially acceptable" sites before the guidelines had been developed. These sites were required to be identified within 90 days of the passage of the Act before the guidelines were to be developed. In reviewing and concurring in the guidelines the Commission did not review the screening process by which DOE. arrived at the nine

! "potentially acceptable" sites. Information about this screening process would i have been included in the SCP's but, under the proposed revision, is no longer j'

provided to NRC in the SCPs. Although the NWPA makes no provisions for NRC review of DOE's identification of "potentially acceptable" sites for the first

. repository, some commenters believe that NRC should continue to require this ,

J screening information in the SCP's.

Several of these comments express the opinion that the Commission should play i an important role in DOE's site screening and selection process. In fact, the Commission has been doing just that, and it will continue to do so. Each of j the sites under consideration for nomination and selection for the first l repository has been the subject of continuous scrutiny by NRC staff. Public

! meetings have been held to inform NRC with respect to relevant issues at these i sites, NRC onsite representatives follow developments at the respective sites closely, pertinent literature and data are examined on a regular basis, and i

site-specific documents such as the environmental assessments are the subject of detailed scrutiny and comment. All of these NRC activities are designed to identify potential licensing issues at the earliest possible stage. By l communicating concerns in this fashion, it is hoped that DOE will thereby be

able to make its screening and selection decisions in a more informed manner.

l In addition, there are a number of activities specified by NWPA which afford

! NRC an opportunity to have influence in the site selection process. One of l these is the provision that the guidelines for selection must have the i concurrence of the Commission. In fact, when guide' lines were submitted, the Commission insisted upon several changes before it was prepared to concur therein. The opportunity to review and comment upon DOE's site i characterization plans will afford a further opportunity to communicate our views regarding the suitability of a site to DOE, and it is to be expected that-our comments will have some influence in the DOE decisionmaking process.

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Finally, NRC will have a role in commenting upon the environmental impact statement to be prepared by DOE and, in this context, will have an opportunity to express views with respect to the selection of the site which DOE proposes to develop.

The issue, therefore, is not whether the Commission should be involved in the DOE site screening and selection process generally. The question is much narrower. It concerns the scope of NRC review of DOE's site characterization plans. Before NWPA was enacted, the NRC regulations did provide for information regarding site selection to be included in the DOE submission. The new statute, while generally conforming to the regulation, omitted the provision dealing with NRC review of site selection matters. The Commission must now decide how this deliberate legislative action is to be given effect.

In short, the Commission has concluded that the activities described above provide appropriately for NRC involvement in site selection. There will be ample opportunity for our views to be made known to DOE, and it is to be expected that they will heed any well-founded concerns that we may express.

But it is not the Commission's role, under any of the statutes cited by the commenters, to select a site. That is the responsibility of DOE, along with the other parties identified by NWPA. It is decidedly our responsibility to make our concerns about the licensability of particular sites known to DOE as i early as possible. In our view, the regulation will serve this need well.

The Commission's duty, under the first statute cited by the commenters, ~the Atomic Energy Act, is to protect health. It has long been the Commission's position that the process of multiple site characterization provides a workable mechanism by which DOE will be able to develop a slate of candidate sites that are among the best that can reasonably be found and from which DOE will select its preferred site. The provisions of NWPA now require that DOE adhere to such a process. It is not the role or responsibility of the Commission to oversee the compliance of DOE with its statutory obligations. Rather, consistent with its customary practice, the Commission would consider only whether a license application meets prescribed criteria. In the case of a geologic repository, this will include an examination, among other things, of the isolation characteristics of the site. The application will not be granted unless these

. characteristics enable the Commission to make the findings, with respect to health and safety, that are required by Part 60. If the site in question does measure up to the standards established by rule, issuance of a construction authorization or license, as the case may be, would be in order. The same issue arose in connection with the Commission's original licensing procedures,

see 46 FR 13973; as was then stated, the Commission perceives no reason to adopt a different philosophy here.

The Commission agrees that it is appropriate, under the Energy Reorganization Act, to consider aspects of the geologic repository, in some manner, in advance of the submission of a license application. But such consideration is needed only insofar as it is relevant to the licensing findings that the Commission will be called upon to make. Accordingly, the Commission is actively engaged in the review of information developed by DOE with respect to any site that may l

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6 be the subject of a license application, but the purpose of NRC's ongoing review is to analyze the prospective site in terms of its conformance with licensing standards.

Under NEPA, the Commission does have a responsibility, of course, to consider alternatives to a proposed action. But the Nuclear Waste Policy Act largely defines the alternatives that are to be considered - namely, the sites which  !

have been characterized and as to which the Secretary of Energy has made a preliminary determination of their suitability for the development of a l repository. Although the Commission is directed to adopt the environmental i impact statement prepared by DOE "to the extent practicable," it will not be  ;

able to do so unless that EIS is an adequate statement to satisfy NEPA. (On  :

the other hand, the Commission can make the environmental findings specified in  ;

10 CFR Part 60 if the EIS, together with any needed supplements, is adequate.) i Accordingly, NRC included in its review of the environmental assessments for the first repository a consideration of any issues arising under NEPA which were likely to result in the DOE's EIS being determined judicially not to be adequate. Moreover, NRC will comment on the draft EIS to be prepared by DOE i with respect to a site recommended for development to the President. The focus of NRC comments is upon the reasonableness of DOE's statements and conclusions, for DOE's EIS can only be found to be adequate if it satisfies the so-called

" rule of reason." It is anticipated that amendments to 10 CFR Part 51 i (pertaining to implementation of NEPA), currently in preparation, will specifically provide for NRC comment upon the DOE draft EIS. Although the scope of the review need not, and will not, be as comprehensive as the ,

commenters consider to be desirable, it will be consistent with the statutory framework as understood by the Commission. Further consideration of the issue will be in order when proposed amendments to Part 51 are issued for public comment. .

Whatever the ultimate resolution of the scope of NRC review of NEPA issues may be, it is largely beside the point at this time. The present rulemaking deals

! with the contents of site characterization reports. It is clear to the Commission that the site selection issues previously dealt with in Part 60 were i to be separated from the site characterization reports and dealt with, instead, '

in the environmental assessments. The proposed amendments are designed to conform to NWPA. Accordingly, it is entirely proper to amend former section 60.11 to bring it into line with NWPA. While it is true that the Commission may require submission by DOE of "any other information," this is not an unlimited grant of authority. Such other information, under the introductory clause of section 113(b)(1)(A), must be germane to "a general plan for site characterization activiti.es to be conducted at such candidate site." The physical attributes of the site, as they may be understood, are of course essential to a review of the site characterization activities to be carried out. But it is difficult to conclude that the manner in which a particular site was selected, in preference to others, is relevant to an analysis of the i proposed program to characterize it. Under the NWPA, this information belongs  ;

in the environmental assessment and not the site characterization report. The

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Commission will therefore retain its original position, as set out in the rule previously proposed.

It is not necessary to speculate upon the effect of any "assurt.nce requirements" that may be issued by the Environmental Protection Agency. The EPA Standard has now been issued, and the assurance requirements contained therein do not apply to facilities subject to NRC licensing.

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COMMENT NO. 3 Comment Summary:

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! The procedures of existing 10 CFR Part 60 should be retained for.the licensing

! of repositories for defense high. level waste. The NWPA based changes being .

proposed should be applied only to commercial high level waste repositories. t I  !

! Response: r l The primary reason for amending 10 CFR Part 60 at this time is to conform the provisions of Commission regulations to current law. To emphasize this point, i i section 60.1 is being revised to provide that Part 60 applies to the licensing '

i of 00E to receive and possess source, special nuclear, and byproduct material i at a geologic repository operations area " sited, constructed, or operated in '

! accordance with the Nuclear Waste Policy Act of 1982." Under this language, a i repository used exclusively for wastes ges.erated by defense a'ctivities of DOE

would not be covered by Part 60 - since the procedures prescribed by NWPA do j not apply to such defense facilities. Sec. 8(c),.42 U.S.C. 10107(c).  ;

! The commenter is correct in noting that the proposed amendments would eliminate .

i the existing rules for a defense waste facility without providing an i l alternative structure. Furthermore, in the commenter's view, since NWPA does i not apply to such a facility, it does not necessitate any change'in the ,

Commission's licensing procedures with respect thereto. However, in accordance  !

. with the procedures set out in Sec. 8(b) of NWPA, the President has now  :

1 determined that the development of a repository for the disposal of high-level i radioactive waste resulting from atomic energy defense activities only is not i required. As provided by law, the Secretary of Energy will now proceed to  :

i arrange for the use of a repository that is subject to 10 CFR Part 60 for the i

! disposal of such waste. There'is thus no longer any need for regulations i dealing specifically with a defense-waste-only repository.  ;

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. i l One element of the commenter's concern relates to defense high-level wastes j that would be disposed of in some facility other than a geologic repository. ,  ;

l Both before and subsequent to enactment of NWPA, such a facility would be

licensable by NRC under Section 202(4) of the Energy Reorganization Act.

Licensing would not have been undertaken under Part 60, however, since those regulations apply, by their terms, exclusively to systems " intended to be used .!

i for, or may be used for, the disposal of radioactive wastes in excavated  ;

i geologic media." The changes being made therefore have no bearing upon the issues of concern to the commenter with respect to such other facilities..  ;

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9 COMMENT NO. 4 Comment Summary:

The rule does not explicitly require DOE to receive, review, or consider the comments by NRC on the site characterization plan before proceeding to sink a shaft to characterize a site. Some commenters suggested that 10 CFR Part 60 be amended to require that DOE may not proceed to characterize sites by sinking shafts until NRC and State review and comment upon the SCP are conplete. One commenter suggested that the rule be clarified to specify that completion of NRC review is not a condition precedent for shaft sinking.

Response

The Commission is generally in accord with the commenters who regard NWPA as requiring that DOE defer the sinking of shaf ts at least until such time as there has been an opportunity for pertinent comments to have been solicited and considered by 00E. As stated in the preamble to the proposed rule, "The Commission believes that Congress intended that DOE should provide the plans sufficiently far in advance so that comments may be developed and submitted back to DOE early enough to be considered when shaft sinking occurs, and at all times thereafter." The question, therefore, is not whether the Commission agrees with the objective of those co.imenters, but rather whether it should be incorporated into the Commission's rules. What is involved is essentially a construction of the obligations of DOE, as a matter of statutory construction, under section 113(b) of NWPA. Unless there is a compelling reason for the Commission to incorporate its interpretation of such a provision in its own regulations, the appropriate course is to leave it to DOE in the first instance to construe and apply the law.

The Commission finds no such compelling reason. It relies, in part, on the opportunities for information exchange which are available to it under its ,

established working arrangements (including the P' sedural Agreement described ,

in the preamble to the proposed rule). One of the objectives of these i arrangements is to enable NRC to review and comment in a timely fashion on those issues that may have a bearing upon DOE's decision to proceed with, or delay, the sinking of repository shafts. Moreover, the Commission is aware that DOE itself has indicated its intention to wait until the completion of a review and comment period before proceeding to sink shafts. Notwithstanding these considerations, should DOE proceed to sink shafts prematurely, and in ,

violation of NWPA as interpreted by the commenters, its actions could be challenged by the filing by a State, affected Indian tribe, or other aggrieved party, under section 119, of a petition for review.

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10 COMMENT NO. 5 Comment Summary:

The terms " Indian tribe" and " tribal organization" which are currently defined and used in the rule should not be replaced with the term "affected Indian tribes" which is defined and used in the NWPA. The proposed change would limit ,

participation by Indians and preclude participation by tribes not currently designated as "affected".

Response: l In proposing to make this change, the Commission believed it was complying with the statutory direction of Congress by defining the parties to receive special consideration as they were defined in the NWPA. After reviewing the comments on this proposed revision, the Commission remains persuaded that this is an appropriate course.

This is not to say, however, that the Commission does not recognize that as a practical matter, it may be appropriate to engage in consultations with tribal organizations other than those designated as "affected" under Section 2(2) of the Nuclear Waste Policy Act. The principal purpose, of the provisions for state and tribal participation in NRC pre-application reviews is to assist the staff in identifying potential licensing issues early, so that both NRC and DOE can fully prepare for a thorough review during the formal proceeding after an application is submitted. Because tribal organizations other than affected tribes may raise pertinent issues and may later successfully petition for leave to intervene in the formal proceeding, it would be prudent not to rule out consultation with tribal organizations during site characterization.

11 COMMENT NO. 6 Comment Summary:

The rule should state that the SCA will be provided to DOE within 150 days after NRC receives an SCP and that comments related to shaft sinking will be provided within 90 days.

A new section should be added putting into Part 60 the NWPA schedule requirements for NRC review of the license application. This would emphasize NRC's dual obligations to conduct its licensing proceedings in a full, fair and open manner, but also to reach its decisions in a timely manner.

Response

The Commission does not believe it is advisable to codify the timetables for these reviews. We interpret the timeframes in the NWPA to be directory rather that mandatory. NRC estimates that the review of an SCP of high quality and ,

completeness will require 5 months. While NRC will endeavor to complete reviews of the SCPs and license application as promptly as is consistent with a

. thorough review, the' time required for review is highly dependent on the quality and completeness of the DOE submittals.

The provid.ing of separate comments related to shaft sinking after 90 days would not be practical. The staff effort involved in the preparation and release of such separate comments would significantly delay the release of the complete set of comments on the SCP. It is possible that such separate comments could not be released much more quickly than could the entire set of comments.

We recognize that many potential licensing questions related to shaft

! construction (a critical path activity) must be addressed well before the start

, of shaft construction and, in some instances, even before SCP issuance. The NRC's ability to provide timely comments and guidance to DOE on shaft-related i activities is contingent on DOE scheduling effective interchange with NRC ,

before commitments and decisions are made on these activities, so that DOE can '

consider and develop satisfactory resolution of any NRC comment in a manner not to delay 00E's schedule.

In any event, codifying such schedule provisions might leave the sufficiency of an otherwise proper proceeding or reviaw in question and subject to legal challenge.

.s 12 COMMENT NO. 7 -

Comment Summary:

The regulation should include the provisions of NWPA $112 (f) which provide an [

exception under certain conditions to the requirement that DOE submit a site 1 characterization plan before proceeding to sink shafts at an area.

(Essentially a " grandfather" clause for site characterization at BWIP).  ;

Response:  ;

The NRC does not believe it is necessary to include this provision in the t regulation. It was never ascertained whether this provision would hsve been '

adequate to permit DOE to continue charactorization activities et BWIP. In any  ;

event, DOE has chosen to discontinue ch;racterization jetivities there until after an SCP has been submitted. The.11 ting guidelines which DOE has r promulgated as regulations would probably now foreclose the use of this exemption. -

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13 COMMENT NO. 8 Comment Summary:

Language of proposed rule in Section 60.18 (e) does not make it ciear that NRC concurrence is a legal prerequisite to the use of radioactive material in characterization.

Response

When the Commission adopted 10 CFR Part 60, it determined that it lacked jurisdiction over the use of radioactive material by DOE for purposes of site characterization. 46 FR 13974-75. This conclusion is expressly stated in the regulations. 10 CFR S 60.7(a). The Commission does not regard NWPA as having 2

expanded its licensing jurisdiction. As before, NRC may neither allow nor prohibit DOE's use of radioactive materials in site characterization.

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The Nuclear Waste Policy Act does confer new authority upon NRC, but it is limited in scope. This is the authority to concur. that DOE's use of

\ radioactive material "is necessary to provide data for the preparation of the F s required environmental reports and an application for a construction

.c" authorization for a repo:itory at such candidate site." Sec. 113(c)(2)(A), 42 U.S.C. 10133. The language of the proposed rule appropriately implements this provision.

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COMMENT NO. 9 -

4 Comment Summary:

A host State is entitled to full party status at the outset in NRC licensing proceedings and should have the rights of such a party, not those of a mere intervenor. An absolute right of participation in NRC licensing proceedings should be declared by 10 CFR Part 60. ,

Response: ,

Under section 189(a) of the Atomic Energy Act, 42 U.S.C. 2239, a person "whose interest may be affected" is entitled to be admitted to a licensing hearing as a party. Under this statutory provision, there can be no question that the host State has a legal right to be a party in the proceeding. Nevertheless, certain rules of practice are essential in order for a person who seeks to be a party to be admittad to the proceeding.

4 Rights of participation in NRC licensing proceedings are referenced ~in 10 CFR Part 60. The tests of standing are set out in S 2.714. These tests'are clearly met for host State or affected Indian tribe participation. Tnere is thusnosubstantialbasisofconcernwithrespecttotheissue?raisedbythe commenters. Once the State / tribe is admitted as an-intervenor, it would enjoy the full rights of a party. These include, with respect to all matters affecting its interest, the rights to introduce evidence, put on witnesses, cross-examination, full notice and service of all pleadings, full rights of discovery, and standing to appeal. Non-host States may also participate in licensing proceedings to the extent they meet the tests of standing set out in 10 CFR Part 2.

In addition, section 2.715 provides for the participation of an interested State (as well as counties and municipalities) in NRC proceedings even .if it chooses not to litigate particular contentions in the proceeding. It this role the State has an opportunity to introduce evidence, interrogate witnesses, and advise the Commission without taking a position on any issue; it may also file <

proposed findings and petition for Commission review of a Licensing Board , y decision. 10 CFR 2.715(c) extends this opportunity to participate as a interested State not only to the State in which a facility will be located, but also to those other States that can demonstrate an interest.

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E 15 COMMENT NO. 10 Comment Summary:

s, To avoid any impression that all site investigation and characterization s activities should allow for the precise identification of licensing issues, add "to the extent that relevant information becomes available as a result of such activities" to footnote 1 to S 60.18.

Response

- We agree that,all site investigations need not necessarily allow for precise yL licensing issue identification. But, we do not believe that this is implied by the footnote. The commenter may have misinterpreted the intent of the footnote. The footnote was merely intended to provide additional information with respect to NRC involvement in reviewing DOE prelicensing activities, using the review of DOE's environmental assessments as an example.

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16 COMMENT NO. 11 j Comment Summary:

j Proposed 60.63(b) would allow States / tribes to submit proposals for participation in site reviews "at any time". To maintain an efficient licensing process this should be changed to " timely".

Response

t In the current Part 60, there is a requirement that a State / tribe proposal must be submitted at any time prior to docketing of an application or up to 120 days thereafter. The change to "at any time" in the proposed amendments is in ,

recognition of the possibility of productive _and timely proposal being submitted outside such a tima frame.

NRC review and acceptance of proposals, covered in 60.63(d), will be on the .

basis that they make a timely and productive contribution to the review. *

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COMMENT NO. 12 Comment Summary:

The proposed changes to Subpart C of 10 CFR 60 were not necessary. NRC seems to be withholding information and consultation with States / tribes until a fairly late stage in the process of site selection.

Information to be provided by NRC under 60.61 is triggered by the submission of 3 the SCP. Consultation in site review is triggered by the Presidential approval -

of a site for characterization. By this time, NRC and DOE will have conducted i technical meetings and the EA's will have been developed by DOE and reviewed by -

! NRC. Part 60 should contain provisions to allow formal State / tribe interaction with NRC to begin earlier.

Response

, NRC policy is to encourage interaction with States / tribes to the maximum extent 4

possible within the limits of the Commission's authority. ~ NRC actions taken so far in the process of site selection--inviting State / tribe participation in the concurrence on the siting guidelines, for example--bear this out. There is no basis to the assertion that NRC is withholding information. ,The proposed amendments reflect changes in the schedule for activities made by the NWPA.

The law sets the point at which formal interaction between NRC and States / tribes begins at the site characterization stage. The proposed

, amendments do not represent a major change from the schedule for State / tribe participation under the current Part 60. -

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18 COMMENT NO. 13 Comment Summary:

10 CFR 60 and all NRC materials should write " Tribes" with a capital "T" because the word " Tribes" is capitalized in the U. S. Constitution.

Response

The style for capitalization has changed since the Constitution was written.

In proper modern English usage, the "t" in tribes is not capitalized unless used as part of the name of a specific tribe. (

Reference:

US GP0 Style Manual, January,1973 page 48). We note that the NWPA does not capitalize "t" in tribes.

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19 COMMENT NO. 14 Comment Summary: -

i The Director's invitation for State / tribe comment on the SCP should not be '

discretionary, but mandatory. Section 60.18 (c) of the rule should state that i

.the Director "shall" request comment.  ;

Response

The proposed amendments provide that the Director's invitation to comment on the SCP by States and tribes be on a discretionary basis. The staff believes that this should be retained. The Director should have the discretion to j determine, in a particular instance, whether it would be advantageous to t

. solicit and consider public comments on DOE's site characterization plan before issuance of a site characterization analysis. The e'x tent to which early reviews have afforded an opportunity for interested persons to identify issues  :

of concern, the need for additional expertise that might not be fully available at NRC, and the impact upon achievement of the scheduling directives of NWPA, are some of the factors that might be considered.

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20 COMMENT NO. 15 Comment Summary:

A public document room should be established in the town nearest the site.

Response

NRC presently makes every reasonable effort to assure public access to information. NRC has the discretion to establish public document rooms anywhere to facilitate public access to information. Under 60.63 proposals for the establishment of public document rooms will be considered by NRC. There is no need to specify in Part 60 requirements for tha location of public document rooms.

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21 COMMENT NO. 16 Comment Summary:

The commenter was concerned that the criteria for acceptance of proposals in Section 60.63 (d), that the proposed activities be timely, would be used to limit State / tribe participation. Experiences to date with the repository program and expectations regarding pressures exerted on decision makers as the program progresses create a concern that " timely" will be the focal point of the criteria, rather than " productive".

Response

The Commission acknowledges State (tribe) concerns that the NWPA schedule for activities could create thase pressures and place a strain on State and tribe resources. NRC presently is making every effort to keep States and tribes well-informed on activities so as to allow States and tribes time to plan for the types of participation which they may desire. However, the Commission must also acknowledge that there is a schedule fbr repository licensing, and that the timeliness of proposals has to be a factor in NRC consideration of them.

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22 COMMENT NO. 17 Comment Summary:

A footnote should be added to Section 60.15 (c) to indicate that the reference to Section 51.40 has been superseded by the NWPA Section 114 (f).

Response

The Commission agrees that the reference to S 51.40, which has heretofore been removed from the regulations, is no longer correct. It has accordingly been deleted from the final rule. The correct citation for the requirement that DOE is required to conduct a program of characterization with respect to alternative sites is NWPA itself (in particular, S 113, 42 U.S.C. 10133). In response to the comment, therefore, the final rule refers to the statute rather than to the superseded regulation.

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23 COMMENT NO. 18 l

Comment Summary:

l Mine safety considerations might require more shafts than are strictly necessary for site characterization, and the existing limitation in Section 60.15 (d) (2) on the number of exploratory boreholes and shafts should be revised to accommodate this need.

Response

The issue is outside the scope of the present rulemaking. The Commission notes, however, that if safety considerations do dictate the sinking of additional shafts, it would not be " practical" to limit the number of exploratory boreholes and shafts to a smaller number. In other words, the needed flexibility already is provided by the rule in Section 60.15 (d) (2) by the statement that "the number of exploratory boreholes and shafts shall be limited to the extent practical -- ." (emphasis supplied) t 4

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24 COMMENT NO. 19 Comment Summary:

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In Sections 60.15 and 60.17 the term " area to be characterized" has been used instead of the statutory term " candidate site." Both NRC and DOE should adhere to the statutory terminology to the greatest extent possible, in order to avoid the confusion that would result from the use of different names for identical -;

concepts.

Response

The term " site" is used in 10 CFR Part 60 to refer to the location of the controlled area - a very definite area with limits related to the isolation characteristics of a particular geologic repository. " Candidate site," as defined in the NWPA refers to a region of considerably greater extent. NRC believes that the introduction of the term " candidate site" into Part 60 would increase, rather than reduce, the likelihood of confusion, since in that event the word " site" would be applied both to the small.and definite location of the

" controlled area" and to the much larger and vaguer area comprehended in NWPA by the term " candidate site."

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O e 25 COMMENT NO. 20 Comment Summary:

Section 60.18 (e), which concerns NRC's finding of necessity for onsite testing with radioactive materials, should state that NRC will concur in the use of radioactive tracers if certain criteria are met, and that the removal of these trace amounts at the end of site characterization shall not be required.

Response

When the Commission adopted 10 CFR Part 60, it determined that it lacked jurisdiction over the use of radioactive material by DOE for purposes of site characterization. 46 FR 13974-75. This conclusion is expressly stated in the regulations. 10 CFR S 60.7(a). The Commission does not regard NWPA as having expanded its licensing jurisdiction. As before, NRC may neither allow nor prohibit DOE's use of radioactive materials in site characterization.

The Nuclear Waste Policy Act does confer new authority upon NRC, but it is limited in scope. This is the authority to concur that DOE's use of radioactive material "is necessary to provide data for the preparation of the required environmental reports and an application for a construction authorization for a repository at such candidate site." Sec. 113(c)(2)(A), 42 U.S.C. 10133. While NRC concurrence may be a legal prerequisite to DOE's use of radioactive material is characterization, this limitation is derived from the statute itself and not from any regulatory action, such as licensing, on the part of the Commission. The Commission merely makes a finding of necessity. Thus, it is not appropriate for NRC to specify residual quantities of radioactive material which would be " allowed".

While the statutory provisions of NWPA Section 113 (c) (2) (B) refer to the responsibilities of DOE, and it is not appropriate for NRC to construe the obligations of another agency, it is not apparent to the NRC that these provisions were intended to apply to tracer amounts of materials. We believe '

that this provision in the Act was intended to prevent DOE from creating a de ,

facto unlicensed repository by bringing in large amounts of HLW or spent fuel under the guise of testing which was in fact unnecessary.

o O 26 COMMENT NO. 21 Comment Summary:

The provision for NRC inspection of site characterization activities contained in Section 60.18 (h) should be qualified to specify inspections in accordance with the Procedural Agreement.

Response

The cited paragraph is a restatement of language contained in existing 10 CFR S 60.11(g), with editorial changes only. The Nuclear Waste Policy Act did not -

alter the relationship between the Commission and DOE during site characterization. Accordingly, it is appropriate to retain the regulatory language that had previously been approved. Moreover, the Procedural Agreement is merely a mechanism for implementing NWPA and not an independent source of regulatory authority. An explicit reference to the Procedural Agreement in the text of 9 60.18 could be misunderstood as implying that that instrument was a

> basis for the regulation. .

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27 COMMENT NO. 22 Comment Sumary:

The SCP's should contain socioeconomic, transportation, environmental and institutional information at the same level as for the technical elements. This part of the SCP's should also be updated and reviewed by NRC every 6 months.

Response

The Commission believes that any information which it requires, other than the items specifically called for under $ 113(b)(1)(A)(1-iv), should be pertinent to its review of " site characterization" activities at the site in question.

The term " site characterization," as defined in Sec. 2(21) of NWPA, refers to activities " undertaken to establish the geologic condition and the ranges of the parameters of a candidate site relevant to the location of a repository, including borings, surface excavations, excavations of exploratory shafts, -

limited subsurface lateral excavations and borings,.and in situ testing needed to evaluate the suitability of a candidate site for the location of a repository, but not including preliminary borings and geophysical testing needed to assess whether site characterization should be undertaken." This definition is so closely patterned after the earlier definition in 10 CFR.Part 60 as to imply that the Commission's usage was being adopted. There is no statement in the reports on the draft legislation to indicate the contrary.

In using the term " site characterization," the Commission has consistently focused upon those tests that must be undertaken to provide the kinds of geologic information which will be needed in order for DOE to be able to prepare a license application, and for the Commission to make licensing -

findings with respect thereto with reasonable assurance. Since the activities that are the subject of the instant comment are not " site characterization" within the established meaning of that term, the Commission must decline to require their submission in the site characterization plans. .

The Commission does not mean to imply that the information is not important. '

However, under the Waste Policy Act, that information is required to be obtained and circulated under a variety of mechanisms other than the site characterization olan. These include the environmental assessments for the several candidate sites, the environmental impact statement that is prepared after site characterization has been completed, and the information that is developed by DOE under the cooperative arrangements entered into with the States and affected Indian tribes.

Moreover, the Commission recognizes the value, for NEPA purposes, of current information from DOE with respect to the topics indicated in the comment.

However, under CEQ regulations, DOE-is already required to engage in an early and open scoping process for determining the scope of the issues to be addressed in an environmental impact statement and for identifying the significant issues related to a proposed action. This process, coupled with 1

28 the consultation-provisions of Section 117 the of NWPA, addresses the concerns of the comenter. It is neither necessary nor appropriate for the Comission to assert its regulatory authority so as to require DOE to fulfill its duties i under these other provisions of law.

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29 COMMENT NO. 23 Comment Summary:

All revisions to Part 60 and Part 51 to conform them to the NWPA should be promulgated simultaneously. In particular, the revisions concerning NEPA requirements should accompany the revisions currently being proposed. This would assure that a comprehensive and integrated approach is.taken and that any confusion regarding NWPA and NEPA requiremen*,s is eliminated. Much of Part 60 now rests on NEPA authority so that failure to include NEPA in the currently

~

proposed revision casts a cloud over the Commission's view of its authority to carry out early site reviews. It may also skew the scope of environmental assessment review by precluding reviews of alternatives and comparative-analysis.

Response

The Commission has not put off considering the responsibilities of the Commission under NEPA as modified by the NWPA. In. developing these proposed regulation changes, the Commission has specifically evaluated whether it was necessary for the Commission to take any steps during the site screening stages to assure meeting its ultimate NEPA responsibilities. The Commission concludes that NRC pre-licensing review should not be exhaustive, and in this regard it ,

differs from the commenters. In light of the Commission's understanding with respect to NRC's responsibilities, it would be important and appropriate to proceed with the present action without awaiting other changes that will be proposed in the light of the NWPA. In view of the need-to publish those changes related to the site characterization plans prior to the rapidly approaching time when DOE prepares those plans, it was necessary to consider these changes first and separately. These issues are separable from other NWPA-mandated matters, including NEPA concerns. The NEPA related amendments to NRC rules (1) will define the alternatives that must be discussed in an environmental impact statement, (2) will exempt the promulgation of. NRC licensing requirements and criteria from environmental review under NEPA, and (3) will set out the procedures that will be followed by the Commission'in '

determining whether or not to adopt the DOE EIS. The alternatives are, in principal part, defined by NWPA. The exemption for environmental review'of the promulgation of licensing rules is also explicitly stated by that Act. The procedures for adoption of the DOE environmental impact statement are mandated generally by NWPA and regulations of the Council on Environmental Quality. All of these matters are readily separable from the proposed amendments.

Furthermore, the Commission does not anticipate that the 10 CFR Part 51 amendments will address the commenters' concerns over the pre-licensing review of the DOE site selection process. Therefore, publication of the rule need not be deferred.

30 COMMENT N0. 24 Comment Summary:

The NRC should make clear that its licensing authority is not constrained or restric+ed by the NWPA. The responsibilities of NRC as expressed by 10 CFR Part 60 are essentially unchanged by the NWPA.

Response

The responsibilities of NRC as expressed by 10 CFR Part 60 are indeed essentially unchanged by the NWPA. The specific proposed changes to 10 CFR 60 are not explicitly required by the NWPA, but are what the Commission considers are necessary to make its regulations consistent with NWPA requirements and provisions.

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31 COMMENT NO. 25 Comment Summary:

Contrary to page 16 of SECY-84-263, NWPA Section 117 does provide new rights to states to receive information, and to be able to comment on such information and have such comment considered and acted upon by the Commission.

Response

The Commission agrees that to some extent Section 117 of the NWPA may have established new rights for the States to receive information, comment on such information, and have such comments considered. Since the proposed regulation incorporates the language of Section 117, the States are assured that NRC's regulatory program will accommodate any such rights notwithstanding the discussion of Section 117 in the statement of considerations.

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COMMENT NO. 26 Comment Summary:

In Section 60.17 (a) (2) (iv) the phrase "any adverse impacts from site characterization that are important to safety" has been substituted for the statutory phrase "any adverse, safety related impacts from such site characterization activities-- ." Though it is not clear what the difference is between these two phrases, less confusion will be caused if the statutory phrase is used.

Response

The comment only quotes a portion of the phrase that was substituted. Omitted ,

were the words "or that are important to waste isolation". The statement of considerations explains that the change was made to clarify our interpretation of the statute which is that DOE should address both those aspects of the site that could (1) be significant with respect to radiological safety prior to permanent closure or (2) affect the ability of the. repository to satisfy the performance objectives pertaining to waste isolation. 10 CFR'Part 60 contains l a definition of the words "important to safety". To meet the intent of the statute the term "important to safety" is the appropriate term which must be used. We note that this comment was made on an advance draft and was not repeated in the comments on the proposed rule which was accompanied by the statement of considerations explanation.

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33 COMMENT NO. 27 Comment Summary:

The term " semi-annual reports" in Section 60.18 (g) is incorrect as the NWPA and the proposed rule require reports "not be less that once every 6 months".

It is inappropriate that the Commission waive its expectation for more than the minimum reporting from 00E.

Response: ,

As the comments noted, the rule does require that " DOE shall report not less than once every six months" as required by the NWPA. Referring to such reports as semi-annual does not prevent DOE from making more frequent submissions if

, appropriate.

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34 COMMENT NO. 28 Comment Summary:

The rule relies on the Procedural Agreement for authority instead of on statutes. Relying on the Procedural Agreement does not give the Commission the foundation it needs to carry out early site review activities; the Commission has authority to perform such review activities under the Atomic Energy Act.

Part 60 should not be based upon the Procedural Agreement.

Response

NRC does not rely upon the Procedural Agreement as its authority to perform early site review activities. The authority is the Atomic Energy Act, the Energy Reorganization Act, and the Nuclear Waste Policy Act. The Procedural Agreement is merely the mechanism that has been developed to implement these statutes. Part 60 is not based on the Procedural Agreement, but upon the statutes cited above. See Authority citation. In response to the comment, however, the Commission has deleted the one reference to the Procedural Agreer'nt from the proposed rule. See the revised footnote to $60.18.

It is important in this regard to observe carefully the procedural framework that is laid out in NWPA. While there are some opportunities for early NRC participation, notably in connection with its concurrence in the DOE siting guidelines, the statute does not otherwise provide for NRC review until DOE has proceeded to the site characterization stage. It is at that point that the law calls for NRC to carry out its first site-specific review. In developing regulations, NRC should adhere as closely to NWPA as possible. It is therefore preferable to require submissions from DOE only at the times indicated by that law. See also response to Comment no. 2.

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35 COMMENT NO. 29

. Comment Summary:

Issues could be more readily brought to the Commission's attention by establishing a notice and public comment process for the NRC review of the semi-annual SCP updates.

Response: '

There is nothing that requires NRC to comment on the semi-annual reports on site characterization, and there will not necessarily be an NRC response to the 00E document. The 00E semi-annual reports will go to States and tribes as well

, as NRC, and States and Tribes may comment directly to DOE on them. A notice l and public comment procedure would be too cumbersome and create the potential for unproductive delays. However, the rule could provide for public comment on the NRC responses to 00E by having the Director invite comments, and this has been added to the rule.

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36 COMMENT NO. 30 Comment Summary:

NRC should retain in Part 60 provisions requiring NRC notification to local  ;

governments.

j Response:  ;

l The NWPA gives States the responsibility for informing local residents of any -

activities of the State, DOE, or NRC with respect to the site (Section 116(c)1(b)iv). In light of the procedures established by the NWPA, the

! proposed amendments to Part 60 which would limit NRC notification to States and

Indian tribes are entirely proper.

The NWPA calls for notification of " Governors, State legislatures, and tribal L councils." The notification procedures for Part 60 should conform to this. No

change is needed.

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u 37 COMMENT NO. 31 Comment Summary:

To offer explicit, comprehensive comments on S 60.15 through 60.18, knowledge of the mechanics and schedule of interaction between NRC and DOE in the site characterization process is necessary. One or more NRC/ DOE / State / Indian meetings should be held to develop the mechanics of the SCP interactions.

Response

There is no reason why explicit, comprehensive comments cannot be offered at this time on these proposed rule sections. The NWPA and this rule define the general process for interaction. Distribution of preliminary drafts of the proposed rule, prior meetings with the states and Indian tribes, and the comments on these proposed rules have given the interested parties opportunity for input into developing this general process.

At a later date, a meeting of the interested parties may well be appropriate to work out the details of the mechanics and schedules.

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38 COMMENT NO. 32 Comment Summary:

The Statement of Considerations should state that staff decisions (such as the '.

denial of a State participation proposal) can always be appealed to the Commission. 3

Response

! It is appropriate to leave the procedures for seeking Commission review .

informal, as is the case for most administrative actions that have been '

delegated to Staff. Should the staff decision prove to be unsatisfactory, the j aggrieved State could elect to try to persuade the Commission to review the action. Alternatively, it would have the option of seeking judicial review '

without having first to exhaust other remedies. (Adoption of the commenter's proposal could result in an aggrieved party's being required to appeal to the Commission whether it wished to do so or not.) ,

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39 COMMENT NO. 33 l

Comment Summary:

Since DOE is not fully cooperating with States, the Commission's reduc'. ion of opportunities for interaction may foreclose effective State participation in  !

decisions concerning the repository. Thus, NRC should not reduce opportunities l for State consultation i

Response

l Notwithstanding the formal changes in Commission responsibility, NRC encourages consultation with interested parties, so that information would be available routinely with respect to NRC's views. The commenter's concern with respect to DOE's cooperation, or lack thereof, is not a matter properly to be addressed by the Commission. Procedures for such cooperation have been set out in Sections 116 and 117 of NWPA. If the implementation of these procedures is ,

unsatisfactory, there are opportunities for judicial review and legislative l oversight. It is not the Commission's role, however, to regulate DOE's i interaction with the States and Indian tribes.

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40 COMMENT NO. 34 Comment Summary:

A NRC should fund State involvement in repository planning because States have , '

i had difficulty obtaining funds from 00E. '

s s Response: s The Commission explained, in the preamble to the proposed rulej that it believed Congress intended that DOE should assume the Federal responsibility for funding State involvement in repository planning. The commenter does not 4

take issue with this view. If, as appears to be agreed, NWPA vests DOE with this responsibility, the appropriate action for the Commission is to eliminate -

any inconsistent or contrary provisions from its regulation. The concern of l the State appears to be its lack of confidence in DOE's exercise of its funding authority. As in the case of other comments of this nature, discussed above, this is a matter for the affected States to work out with DOE; it is not something which the Commission is authorized to resolve or remedy. It remains true that the Commission may, in appropriate circumstances, turn to a State for particular services required by NRC in order to be able to carry out its own licensing functions effectively. But, as was explained at the time the proposed rule was issued, this is best characterized as a standard procurement activity rather than as part of the regulatory scheme for implementation of NWPA.

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g. COMMENT NO. 35 i Comment Summary:

i The rule should provide a mechanism to involve the Department of Interior in site screening and selection. A procedural agreement similar to that between i DOE and NRC should be executed between DOE and the Department of Interior.

• Response:

This rule is not an appropriate vehicle to provide a role for the Department of Interior in the site screening and selection process. The DOE has the primary responsibility for executing the site screening and selection process. If the-Department of Interior wished to become involved in this process, they should discuss this involvement directly with 00E. This amendment to the licensing procedures is being undertaken to reflect the requirements of the NWPA. A procedural agreement between DOE and DOI would also, of course, have to be negotiated directly with DOE.

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42 COMMENT NO. 36 ,

Comment Summary:

The type of information and level of analysis required in the SCP should be specified in greater detail in the rule.

Response

The Commission recognizes that the level of dete.il called for in SCP is not defined precisely in the regulations. There must be sufficient detail for the Commission and other statutory reviewers to be able to comment in an informed manner. The Commission believes that requiring more detail in the rule would

, not be practical given the different types of sites. See, aise, the discussion

• in the preamble to the proposed rule (50 FR 2585).

i NRC has issued a draft revision of a regulatory guide (Proposed Revision 1 to Regulatory Guide.4.17 - Standard Forniat and Content of Site Characterization Plans for High-Level Waste Geological Repositories, February, 1985) wh1ch suggests the types of information to be provided in the SCP and a uniform format for presenting the information.

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43 COMMENT NO. 37 Comment Summary:

Since NWPA Section 113(c)(4) requires the reclamation of a site determined to 1

be unsuitable for a repository, NRC should require DOE to plan for such reclamation.

Response

Section 113 includes two related provisions. Paragraph (c)(4), cited by the 2 commenter, requires "reasenable and necessary steps to reclaim the site and to mitigate any significant adverse environmental impacts caused by site chara'cterization activities." Paragraph (b)(1)(A)(iii) calls for DOE to submit, as part of its site characterization plan, " plans for the decoatamination and decommissioning of such candidate site, and for the mitigation of any significant adverse environmental impacts caused by site chlracterization activities" if a site is determined to be unsuitable. Thus, DOE must mitigate adverse impacts and submit plans for doing so as part of its site characterization plan. Also, under the law, DOE must " reclaim the site" and submit plans for " decontamination and decommissioning" of the site as part of its site characterization plan. As a matter of statutory interpretation, it would seem that the proper construction would equate the concepts of

" reclamation" and " decontamination and decommissioning." Accordingly, it is to

'be expected that DOE would in fact describe its plans for site reclamation as part of its site characterization plan. The Commission would not need this information, however, since the site concerned would not be one subject to NRC licensing authority (since, by definition, it had been determined not to be ,

suitable for a repository). The proposed rule is thus consistent with NWPA and .

approprface to serve NRC regulatory needs, and it will not be changed.

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I COMMENT NO. 38 Comment Summary:

It appears that NRC/ DOE proposes to limit general public involvement to compliance with NEPA only and to minimize State, Indian tribe, and other Federal agency involvement. According to 5 60.18 (a) NRC is proposing to no longer afford the public an opportunity to consult with staff and discuss issues of concern during staff review.

Response

The commenter is incorrect in thinking that the proposed rule is a joint NRC/ DOE proposal. This is an NRC regulation. DOE is the license applicant and has commented on the proposed rule the same as other interested parties.

Public involvement is not limited to NEPA compliance and in fact is now expanded by the combinaticn of the NWPA and the proposed rule. By looking only at S 60.18 (a) the commenter has incorrectly concluded that the proposed rule deletes the opportunity for States and tribes to consult with the staff during the review of the SCP. Such consultation is provided for in Section 60.62.

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45 COMMENT NO. 39 Comment Summary:

The rule should require DOE to submit site characterization plans before large-scale disturbances occur. Only " preliminary activities," which should be defined, should be exempt from the site characterization plan review.

Response

Section 114(b) of NWPA states that DOE's is to submit its plan for site characterization activities "before proceeding to sink shafts." This is the language that appeared in the proposed rule. The commenter would apparently wish to have the Commission construe this provision in a manner that would obligate DOE to make its submission before undertaking activities, other than preliminary activities, related to site characterization. Indeed, this could be meritorious, since DOE would then avoid expenditures which might subsequently turn out, in the light of comments made by the Commission, the States, and affected Indian tribes, to have been improvident. The difficulty with implementing this comment, however, is that the statute is explicit. The requirement is that the submission be made "before proceeding to sink shafts" and so long as DOE complies with this provision, the Commission can demand no more.

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. o 46 COMMENT NO. 40 Comment Summary: ,

States and tribes should be notified of meetings between NRC and DOE held under the procedural agreement between NRC and DOE in accordance with the spirit of

Section 117(a) of the NWPA.

Response

NRC agrees with the desirability of notifying States and tribes of meetings '

between NRC and 00E and has been providing such notification. NRC will continue to provide notification of such meetings, of the subjects to be discussed, end of the opportunity to participate at an appropriate level. No change in 10 CFR 60 is necessary.

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3 9 4 ENCLOSURE C 0

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PUBLIC COMMENT LETTERS

1) Nevada

2) Edison Electric Institute

3) Environmental Policy Institute 4)Connecticutt

5) Scientists and Engineers for Secure Energy

6) National Congress of American Indians

7) - - mis-docketed

8) Natural Resources Defense Council

9) Ecology Alert

10) Minnesota .

11) Texas- Frishman -

12) Texas-Smith

13) Coeur d' Alene Tribe of Idaho

14) DOE .

15)Yakima Indian Nation

16) DOI 17)Yakima Indian Nation *

18) Utah

19) Nevada * - +

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• These letters restate earlier comments and request mee C EHCLOSURE with Commission'

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'neCHAmo M.saYAN STATE OF NEVADA nostat a. m aa .

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{h*5Il2 NUC1. EAR WASTE PROJECT OFFICE _

omCE oF THE GOVERNOR 3 Capuel Complex Ca,see City. Nevada 89710 .

(702) 885 3744 March 4, 1985 .'

N ELR E 8DD man I n -

%./ g# o /1 Secretary of the Commission U.S. Nuclear Regulatory Commission ' LW ' M' Washington, D.C. 20555 ATTENTION: Docketing & Service Branch

Dear Sir:

Enclosed please find the Comments of the State of Nevada regarding amendments to 10 CFR 60, Disposal of High-Level Radioactive Waste in Geologic Repositories: Amendments to Licensing Procedures, SECY-84-263.

Should there be any questions, please do not hesitate to contact me.

S erely, .

s.4e ROBERT R. LO Director RRL*jm Encls. -

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MNL 81995 WmWeed by carti.,,,vm;, _

7_ g ( - ,, -.

, COMMENTS OF THE STATE OF NEVADA REGARDING PROPOSED 10 CFR PART 60-DlSPOSAL OF HIGH-LEVEL i

RADIOACTIVE WASTE IN GEOLOGIC REPOSITORIES: -

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AMENDMENTS TO LICENSING PROCEDURES

, 50 FED. REG. 2579-2590, JANUARY 17,1985.

The State of Nevada comme'nted pr,eviously on NRC proposals to amend 10 '

I CFR 60. On August 17,1984, Robert Loux corresponded with Mr. Robert Browning responding to the July 2,1984, request by Catherine F. Russell, State-Tribal Coordinator,' NNWSI, Division of Waste Management, Office of Nuclear Material Safety and Safeguards, that the State of Nevada submit comments on a sMff version (SECY 84-263) of a proposed rulemaking amending 10 CFR Part 60. The i

version published at 50 F.R. 2579-2590 is essentially identical to' the earlier staff

version on witich Nevada's comments were submitted. The change of the word

' ~

i "must" to the word "shall" in proposed sections 60.17(a) and 60.18(g) and (k), .and -

the minor change of wording in section 60.18(e), appear to be the only changes in the text (other than spelling). Inasmuch as so little change has occured, Nevada renews all of its comments offered previously. For use of reference they are enclosed herewith.

.Section 60.18 '

Sectiort 60.18(e) would now require that the Director, when commentisqr upon the DOE's site characterization plan " include a determination regarding whether or not the Commission concurs that the proposed use of such radioactive materialis necessary to provide data for the preparation of the environmental reports required by law and for an application to be submitted under section 60.22 of this part."

l The earlier staff version provided "the Director's comments shall include a 1

-. - _- . . _ . -- .- .-T-.-.-._.... - . - - - -- .. . - . ~ . -

^. . . i determination, if appropriate, that th3 Ccmmission concurs that the proposed use i cf such radioactive materialis necessary to provide data for the preparation of the f

environmental reports required by law and for an application to be submitted under r

section 60.22 of this part." We assume that this change is responsive to Nevada's 4

earlier comment that "the Commission is charged with the respons:bility to make  ;

an independent determination whether the use of radioactive material is necessary to provide adequate environmental data for a repository construction authorization." However, Nevada does no't believe that the language as changed i i

makes clear that the NRC's concurrence in DOE's use of radioactive materials in  !

characterization is.a legal prerequisite to its use.

j Proposed section 60.18 otherwise remains essentially unchanged. l l

Comments made by NRC staff at the Commission's meeting.of December 11,  !

l 1984 raise Nevada's concern that the cosimission's actual practice egarding review  !

I of DOE's site characterization plan will be different than that proposed in section  !

i 60.18. -

At page 35 of the transcript of the Commission's meeting, the following colloquy occurred: f

" Commissioner Asselstine: I assume that the way that is going to work l Is, you are going to get site characterization plans for those individual sites, and they might not come allin at once. -l "Mr. Browning: That's right, that's why that is shown as not a particular point the way the EA's are.  ;

~

" Commissioner Asselstine: Okay. But the sequence will always be that ,

you willget the site characterization . l Mr. Browning: Before the shaft . '

" Commissioner Asselstine.-they will be reviewed. Any comments or ,

concerns willbe resolved. Teen you go to actually doing the character-  !

ization.

l "Mr. Browning: Yes. What we'll probably have to do is to focus in on i those comments and concerns that relate to sinking of the shaft and 6 i

l l

l 2-  !

n, --, --, -. -n, ,-, en- ,e,-- , , r-,r --- ,,

give special attention to those as opposed to necessarily resolving all our comments on the site characterization plan, some of which may not have anything to do with this shaft sinking..

"Commissicaer Asselstine: Okay."

I Section 113(bXI) of the Nuclear Waste Policy Act requires that the site characterization plan be submitted to the Commission and the state in which the

~

candidate ' site is located for their review and comment "before proceeding to sink l

shafts . . . ." Section 113 (bX2) also requires that public hearings be held on site i characterization plans before DOE proce'eds to sink shafts at any candidate site.

NRC's proposed section 60.18 does not clearly state that the NRC's review and comment upon the site characterization plan must be complete before DOE may proceed to sink shafts at a repository site as Nevada thinks the Act requires. Mr.

i Browning's comment at the December 11, 1984 NRC meeting suggests that the NRC might be prepared to allow DOE to begin site characterization while some NRC concerns remain outstanding. Proposed 10 CFR 60 should be amended to clarify that D E may not proceed to charactarize sites by sinking shafts until NRC-i and state review and comment upon the characterization plan are complete.

f' Section 80.83 a

Proposed section 60.63 still fails to declare overtly that a state within which _

a nuclear waste repository is proposed to be placed will be a full party to the license proceeding. The proposed section merely refers to participation in ,

accordance with subpart G of part 2 of 10 CFR. That subpart provides for state intervention 'in licensing proceedings but does not declare that a stata would be a full party to the licensing proceeding. The text preceeding the proposed rule at 50 '

F.R. 2584 states that "affecteJ states and Indian tribes will be entitled. to participate in the licensing proceedings." Yet the language of proposed 10 CFR 60.63 makes no such declaration.

i i

3

! _ _ _ _ _ _ _ _ _ _ . _ _ _ . - - - - . - - _ - , . . . _ . - - ...U_.--. . _ .-- _ _.. ,-. __...,.__,.__,..,m_.-. . __~,.-,..m . .m ,-

i l,

Nevada contends that, as a state entitled to participate in repository site  !

. t selection and development, it is entitled to full party status at the outset in NRC I IIcensing proceedings. As such a party, not a mere intervenor, the state should be i

entitled to equivalent procedural rights as the Department of Energy at all stages.

This would, of course, include the right to introduce evidence, put on witnesses,

• cross examination, full notice of all pleadings, full rights of discovery, and standing i

~

to appeal. l The proposedr' ule leaves a state's party status ooen to later determination. .

That determination should be made now: party status guaranteed by rule.

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"i 1 .

L  :

. i I

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i 9

COMMENTS OF THE STATE OF NEVADA REGARDING AMENDMENTJ TO 10 CFR PART 60-DlSPOSAL OF HIGH-LEVEL RADIOACTIVE WASTEIN GEOLOGIC REPOSITORIES:

Amendments to Licensing Procedures, SECY-84-263. .

The State of Nevada submits these Comments in response to the July 2,1984 1

request by Catherine F. Russell, State / Tribal Coordinator, NNWSI, Division of Waste Management, Office of Nuclear Material Safety and Safeguards, United States Nuclear Regulatory Commission. These Comments are made with the understanding that staff is proposing a rulemaking, amending S 10 CFR Part 60.

The State of Nevada does not waive w relinquish the right to participate in and comment freely in that rulemaking by the submission of these infwmal comments

~

~

and reserves the.right to raise any issue.therein.

t Regulatory Amendment Consequent of Pm of the Nuclear Waste Policy Act.

Earlier this year the Commision sought comments on proposed regulatory reforms concerning its geineral rules of practice contained in 10 CFR Part 2, some of which changes were necessary as a consequence of the passage of the Nuclear Waste Policy Act. In the proposal to which these comments are addressed the staff proposes amendments to the IIcensing procedures of 10 CPR Part 60 as a b

consequence of the passage of the Nuclear Waste Policy Act. The Nuclear Waste Policy Act creates new responsibilities for the Nuclear Regulatory Commission and '

new rights a:xt reep=dhilities for affected states. In order that the Commission

• correctly integrate the Nuclear Waste Policy Act into its regulatory framework in  !

a way which provices the states and other interested parties with their' full rights  !

under the Act, the Commission should promulgate all new rules reflecting the 1

. . 1 passage of the Nuclear Waste Policy Act in one rulemaking, thereby guaranteeing a l single, integrated approach and preventing potential contradiction, misunderstard-ing and confusion. As the discussion below will reveal, both Part 60 and Part 2 are relevant to a state's role in the repository licensing process. That process may w may not be best conducted under the current general rules of Part 2.

State Rights to NRC Information-Consultation.

At page 18 of Enclosure A to SECY-84-263, the staff states as follows:

"Under the Waste Policy Act, the Commission is directed to provide ' timely and complete infwmation regarding determinations or plans made with respect to site characterization, siting, development, design, licensing, construction, operation, regulation, w decommission-ing' of a repository, Sec.117,42 U.S.C.10137, but this affords no rights to States and Indian tribes beyond those already in law. H.R. Rep.97-785, Part I at 74." . .

This basic assumption is Incerect. It is based upon an incomplete reading of

,, the authwity on which it relies. Under 5117(aXI)[of the Nuclear Waste Policy -

Act, 42 U.S.C.10137(aXI), a state containing a potentially acceptable site is entitled to complete information from the NRC, as well as from DOE and "other agencies involved." Section 117 does provide new rights to the states which did not exist before the enactment of the Nuclear Waste Policy Act.

l The authority upon which the staff relies is found at page 74 of the Report of l 2

the Committee on Energy and Commerce on HR 6598, which contained the

. language now found in S 117 of the Act as passed. The complete relevant text is as

~

follows: 1 Tonsultation With States and Indian Tribes Section ll7(aX1) directs the Secretary, the Commission and all other involved agencies to provide the governor and the state legista- ,

ture and, where appropriate, the governing body of any Indian tribe 1 affected, timely and complete information regarding determinations or  ;

plans made with respect to the siting, design, construction, operation or '

regulation of a repository. While it is expected that the appropriate ,

state and Indian officials will be informed of pending decisions in time l

3

.-_ _ _ ._ _ - . _ _ _ _ _ _ . . _ _ _ ~. . _ _

o . , ,

for these officials to provide their comments and be afforded the l opportunity to have their views heard prior to the time when a decision

,becomes final, it is not intended that this provision give the appropriate state and Indian officials any additional rights to infwmation beyond those already provided in law to parties and the states regarding the licensing decisions of the Nuclear Regulatory Commission prior to the public announeement of such decisions. It is expected that the ,

Commission will provide the appropriate state and Indian officials with '

timely -acces to information regarding determinations e plans avail-l able to this Commision with respect to an application to construct or

operate a repository. This provision does not vest these state and Indian officials with any new statutory cause of action against the Commision regarding the internal deliberations of the licer. sing board, l the appeals board w the Commisioners regarding matters which are under consideration or which are in dispute, w impose any requirement i that the Commission and its hearing boards must consult with the appropriate state w Indian officals prior to deciding an issue which is within the Ifeensing authority of the Commission."

It is clear from a complete reading of the relevant repwt language that the Committee on Energy and Commerce intended that the rights granted to states under 5117(aXI) be limited only to the extent that they do not grant to states

! access to the deliberations of a licensing board, appeals board or the Commission.

"Dinformat!sn regarding determinations or plans made with respect to site char- ,

acterization, siting, development, design, licensing, construction, operation, regu-lation, or decommissioning" may at times be within the internal deliberations of such boards or the Comm,ission but generally speaking and certainly at this early stage, would not be.

The State of Nevada is concerned- that it be entitled, not only to receive co[nplete information, but to comment upon that information within an NRC procedural framework which allows the consideration of and action upon that comment. Unless such a framework exists, the statutory grant of a right to complete and timely information becomes meaningless.

1 l A relevant case in point is the proposed amenoment to 10 CFR Part 60 celeting the requirement that the Site Characterization Report (plan) be made 3

- - - - . - . . - - . _ - _ - - - . - , _ . , , . . , _ ..-._-e..m... .,c_-__.-mm,-.7., -,--. . ~ - - , . - -..- - - - - . - . , - -

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available to state and Tribal officials and to the public because it is duplicative of i

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i the statutory requirement that the Department of Energy do the same. See  :

1 discussion at page 14, Enclosure A, SECY-84-263. Though Nevada would certainly i i

agree that current 10 CFR S 60.11(c) is duplicative of the statutory requirement,  !

t S 60.11(d), and (e) are not. Section 60.11(e), in particular, requias not only at least i t

a 90 day comment period, but that the Director's final site characterization f i

analysis "take into account comments received and any additional information l acquired during the comment period." The State of Nevada is concerned that the l t

Co'mmission not forego its role of listening to the states and heeding their j t

comment, in defference to the Department of Energy. As the State of Nevada l t

became so completely aware in the process of NRC concurrence in DOE Siting l I

Guidelines, the Commission has a capability of listening to states and considering l their comment which the Department of Energy may not have because of its l

. 1

-. mission orientation with respect to repository development. i l

The Licensing Process. I l i l

Relevant Statute and Rules. l It is basic that the NRC's grant of a license to construct a high-level nuclear  !

waste repository is centrolled by f Il4(d) of the Nuclear Waste Policy Act, 42 USC j 10I34, and by "the laws applicable to such applications," i.e., the Atomic Energy l Act and the Energy Reorganization Act of 1974. Though it does not now  !

i

~

specifically so provide, one would assume that 10 CFR Part 2, subpart G, Rules of l General Applicability, would apply to repository licensing proceedings. Of course, j l

10 CFR Part 60 would apply, and prior NRC decisions and case law construing both are relevant.

. i l

4  :

_u. - ._

,i .

Assuming this to be the complete body of law describing how NRC repository licensing would occur, numerous questions now exist about a host state's role in the licensing process. ,

Host State as a Party in License Proceeding.

Neither 10 CFR Part G0, in its current or proposed form, nor 10 CFR Part 2, subpart G declare overtly that a state within whfeh a nulcear waste repository is proposed to be placed will be a full party to the license proceeding. Because the Nuclear Waste Policy Act describes the significance of state participation in waste facility licensing, a host state would certainly meet judicial standards of standing and would be an eligible intervening party as that concept is utilized in 10 CFR S 2.714(f) as proposed in 49 F.R.14698 earlier this year.10 CFR Part 2, subpart G would control standards for state participation in license proceedings under the a proposal contain'ed a't page 12, Enclosure G, SECY-84-263. This proposal is not, ,

however, adequate in the eyes of the State of Nevada. Any state which contains a *

, potentially acceptable site for the construction of a repository should be declared a full party in the future license proceecing by rule. As such a party, not a mere intervener, the state should be entitled to equivalent procedural rights and

-e amenities as the Department of Energy.- This would, of course, include the right to Introduce evidence, put on witnesses, cross examination, full notice and service of I

all pleadings, full rights of discovery, and standing to appeal.

I At page 18, Enclosure A SECY-84-263, the proposal states that "Affected  !

I states and Indian tribes will be entitled to participate in the licensing proceedings."

l It would seem that the staff agrees with the obvious conclusion that states are l entitled to be full parties. Yet the proposed rule leaves a state's party status to l l

later determination. That determination should be made now, a party status >

guaranteed by rule.  ;

5  !

u____ _ . - - . _ _ _ . _ _ _ _ -

j, _

One problem with the deferral of the determination of host state party status is the exclusion of a potential host state from meaningful interaction with the Department of Energy and Nuclear Regulatory Commission in prelleensing matters.

For ' instance, the NRC/ DOE Procedural Agreement, Enclosure F, SECY-64-263, provides for a significant amount of interaction between the license applicant,

DOE, and the licensing agency, NRC. The only role allowed states in this NRC/ DOE interaction is the ability to attend technical meetings under paragraph 2.e. If a potential host state is to become prepared to adequately protect its interest in a repository licensing pewi_ag it must stand on an equal footing with the applicant, as a party with full right to participate in the prelicensing process along with the applicant and the licensing agency.

Site Characterization Plan.

As discussed at page' 23, Enclosure A, SECY-84-263, "the prei,esed rule o'mits-  !

• the mandatory draft site characterization analysis described in existing 5 60.11.

However, the proposed rule does provide that the Director may invite and consider comments on the DOE site characterization plan and that he may also review and consider the comments made in connection with the public hearings which DOE is required to hold." Proposed 5 60.18(c) in fact requires the Diretor to review the ~

site characterization plan and prepare a site characterization analysis. Though the l Director is required to publish a notice that the analysis is available and allow 90 .

. days for comments, there is no requirement that comments received from states or other interested parties to the site characterization analysis receive any substan-l tive weight. Unless such a provision is included, a state cannot be assured that its I

comments will be heeded. While the Nuclear Regulatory Commission may be worthy of a state's trust that it will heed state comment, this requirement should be reduced to rule to insure state involvement.

6

. . . . _ . _ , . _ . . . . - - , , . , - - _ - . _ . _ . . . . , _ _ . - _ - , . . , . . . _ _ , - . , - ~ , _ . , , , , - , _ _ - _ -_ ._ .- - , , - - . .m......., _ . . _ . .

__ . r __ _ _ . _ . __.

The State of Nevada agrees with the statement, at page 14, Enclosure A, SEC.Y-84-263, that " Congress intended that DOE should provide the [ site charac-

, terizationi plans sufficiently far in advance so that comments may be developed and submitted back to DOE early enough to be considered when shaft sinking occurs, and'at.all times thereafter." -

Use of Radiometive Materialin Characterizatica.

Section 113(cX2XA) of the Nuclear Waste Policy Act,' 42 USC 10133, specifies I

i that the Department of Energy "may not use any radioactive material at t ,

candidate site unless the Commission concurs that such use is necessary to provide data for the preparation of the required environmental reports and an application -

i for a construction authorization for a repository ,at such candidate site;". The discussion at page 24, Enclosure A, SECY-84-263, and the amendatory peoposal.at proposed S 60.13(e),'page 8,' Enclosure G, SECY-84-263, do not correctly apply the ,

l i

'f

^

statutory' requirement. The discussion at page 24,* Enclosure A, suggests that the statutory language only confirms that DOE does not need a license to engage in j site. characterization using radioactive material. Though a full license, as that i term is ordinarily used may not be required, the NRC must "conaur" with the

-i Department of Energy that the use of radioactive materialis necessary to provide j i data for preparation of the required environmental reports. Note that the same  :

l . i verb, " concur," is used in this context and in S 112(s), NRC statutory responsibility i

j. with respect to guidelines.  ;

Proposed S 60.18(e) suggests that either the Commission's concurrence will be l granted "if appropriate", or another reading, that the Commission will eencur if the l site characterization plan includes the use of radioactive material. EI'ther readlig is inconsistent with the requirements of the statute. The NRC is charged with an [

~I i

7 )

^

independent determination whether the use of radioactive materialis necessary to provide adequate environmental data.

Comments Regarding Proposed Tert.

Section 60.17(a). l The term " area to be characterized" has been substituted for the statutory term " candidate site." Though Nevada is. sensitive to the justification for this-change, stated at page 19, Enclosure A, SECY-84-263, the introduction of this new  ;

term can only create controversy and uncertainty over its meaning. We suggest l l

returning to the statutory language. l i

1 Section 60.17(aX2Xiv). ,

The phrase "any adverse impacts from site characterization that are import-

1. ant to safety" has been substituted for the statutory phrase "any adverse, s'afety- l i

related impacts from such site characterization activities . . . ." Though it is' not clear at the outset what is the difference between these two phrases, less  !

confusion will be caused if the statutory phrase is used. l i

~

Section 60.18(e). j See discussion above at pages 7 and 8.  !

, l

~

i Section 60.18(f),(1).  !

t See discussion above at pages 8 ardii.  !

t l Section 60.18(g).

t The term " semi-annual reports" is incorrect as the statute and proposed rule i require that the Secretary report . to the Commision and the governor or  !

8  !

t

- - - ~~ --

l

(. .

t .

l .

legislature "not les than once every 6 months." It is inappropriate that the Commission waive its expectation for more than the minimum reporting from the .

Department of Energy.

i Section 6d.180).

The caveat contained in this subsection is appropriate and correctly stated.

Note that the issue contained in this caveat is the same issue raised by the Energy -'

and Commerce Committee report 97-785 discussed at page 3 above, rather than the issue for which that report is sited at page 16, Enclosure A, SECY-84-263.

i.  !

Section 60.63(a).

The subsection as drafted does not grant potential host states full party ,

status in licensing or proceedings or prelleensing activity. See <Hei=fon at page's

~ ~

- ~5'and 6 above. - -

t l

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Conclusion.- ,

j l

3 The Commission should utiltize a totalintegrated approach to the enactment ,

j f of rules consequent of the passage of the Nuclear Waste Policy Act. Those integrated rules should provide for full participation by affected states, defining their status as parties in any construction authorization proceeding at the outset. .

i

'As part of' the prelimming activity, an affected state should be entitled to j t comment on proposed NRC action with the expectation that comments will be i

heard, and when meritorious heeded. For instance, the NRC's site characterization  !

. I f analysis should be finalized only after the opportunity for state comment. When [

regulations are adopted, new concepts should not be introduced by variance from j statutory language, except where necessary to more greatly de ine statutory  ;

requirements.

6

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EDISON ELECTRIC T" I N STIT U T E ** *"" "" ' **' " ^""

11119m Street N 'N Wasmgton 0 C 20036-3691 Tei (202 8:sJrco March 1g.1985 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: 10 CFR Part 60: Disposal of High-Level Radioactive Waste in Geologic Repositories; Amendments to Licensing Procedures (50 Federal Register 2579)

Dear Mr. Secretary:

This letter is submitted on behalf cf the Edison Electric Institute (EEI) and Utility Nuclear Waste Management Group (UNWMG) in response to the above-referenced notice. In general, we believe the proposed revisions to procedures pertaining to NRC .

reviews of license applications for the disposal of high-level radioactive waste in geologic repositories appropriately reflect the provisions of the Nuclear Waste Policy Act of 1982, 42 U.S.C.

S 10101 et seq. ("NWPA" or "the Act"). We do have, however, the following specific comments.

First, as proposed, section 60.16 requires, without ,

exception that, before proceeding to sink shafts at any area which has been approved by the President for site characteriza-tion, DOE must " submit to the Director, for review and comment, a site characterization plan for such area." Section ll2 f f) of the  !

NWPA, 42 U.S.C. S 10132 ( f) , however, provides an exception to this provision. In addition, and in accordance with the Act, the rule should be clarified to specifically state that, in any -

event, completion of the NRC's review is not a condition precedent for DOE's commencing to sink shafts. Accordingly, to provide consistency with the Act, section 60.16 should be revised to read L as follows:

(a) Except as provided below in sub-section 60.16 (b) , before proceeding to sink 1 shafts at any area which has been approved by  :

the President for site characterization, DOE shall submit to the Director, for the com-mencement of review and comment, a site characterization plan for such area.

(b) Nothing in this section, however, is to be construed as prohibiting DOE from continuing ongoing or presently planned site l

EM 141985 I

Acknowledged by Cani. ,,,y,,,,,7 l t

Sccrotery of ths-Commission March 14, 1985 Page Two l i

characterization at any site on DOE land for which the location of the principal borehole has been approved by the Secretary of DOE by l

August 1, 1982, except that: (1) the environ-

mental assessment described in section 112 (b) (1) of the Nuclear Waste Policy Act of

! 1982 shall be prepared and made available to the public before proceeding to sink shafts at any such site; and (2) DOE shall not continue site characterization at any such site unless such site is among the candidate sites recommended by the Secretary of DOE under the first sentence of subsection ll2(b) .

for site characterization and approved by the '

President under subsection 112(c) of said Act; and (3) the Secretary shall conduct public hearings under subsection 113 (b) (2) and have complied with . requirements under section 117 of said Act within one year of the da'te of its enactment. -

Second, footnote 1 to proposed section 60.18 indicates that ,

"the commission contemplates an ongoing review of ... information on site investigation and site characterization, in order to  :

allow early identification of potential licensing issues for ,

timely resolution." The footnote goes on to give, as an . example of this activity, "a review of the environmental assessments prepared by DOE at the time of site nomination." Environmental

! assessments, however, are prepared at an early stage of the repository site-selection process. As a result, they should.not be expected to provide early, detailed identification of poten-tial licensing issues. Accordingly, to avoid any impression that

all* site investigation and characterization activities should, -,

i necessarily, allow for the precise identification of licensing issues, the words "to the extent that relevant information '

becomes available as a result of such activities" should be added to the end of the first sentence of the footnote.

Third, Section 60.63(b) allows a state or an affected Indian tribe to submit, "at any time," a proposal to the NRC to facili- i tate participation in the review of a site characterization plan and/or license application. Obviously, however, to assure an  !

orderly and efficient licensing review, such proposals chould be  !

submitted in a timely fashion and not delayed until a point where they might be disruptive. Accordingly, the proposed rule should- i

be modified to place a reasonable limit on when the proposal may ,

l be submitted; such as, for example, not later than the first -

prehearing conference in any proceeding. In addition, throughout, ,

sections 60. 63 (b) and (c), "NRC" is written . as "NCR." These i typographical errors should be corrected.

l l

t

Sacrotdry of the Commiccion March 14, 1985 Ptg3 Throa We appreciate the opportunity to comment on the proposed rule. If you have any questions or if we can otherwise be of assistance, please let us know.

Sin ely yours, M-. '

Toring Mills Vice Pre ident, Nuc ear Activities LEM:jhd t

1

osas namp ampe m ,

3R-4o g C.M PR etS79) -

ENVIRONMENTAL POLICY I N S 2' J T.,U T E

- . g., . . . .

March 14,'61985' 18 A:: :03 NdE .

Secretary of the Commission U.S. Nuclear Regulatory Commission 1717 H Street NW Washington, DC 20555 Attn: Docketing & Services Branch

Dear Mr. Secretary,

Attached are the comments of the Environmental Policy Institute concerning the Commission's proposed revisions to 10 CFR Part 60, " Disposal of High-Level Radioactive Waste in Geologic Repositories; Amendments to Licensing Procedures."

These comments are in response to the Commission's notice for comment published in the Federal Register on January 17, 1985(50 FR 2579).

Respectfully submitted, avid Berick, Director Nuclear Waste & Safety Project 2 Attachments

,l" l}yh*f k llhb b$

7 (LII:! 171u..ul)N t i fl,Of M'IGS f

?!g,,pa/AnuuY I % 00 i 85 00416 850318 PDR R 60 50 2579 PDR MAR 191985 M W by a unt. Z . _ ._____ _

h!M D Screer. S.E.. Wahmgton. D.C. 2(NNO (2()2) 544-2Nn l

. . i, I

l March 14, 1985 l In the naccer of:  !

t 10 CFR Part 60 f Disposal of High-Level Radioactive f Waste in Geologic Repositories;  !

Amendments to Licensing Procedures CDEMENTS QE THE ENVIRONMENTAL POLICY INSTITUTE QH PROPOSED  ;

ARENDMENTS T21A CZE 2ARI M LICENSING PROCEDORES EQR GEOLOGIC l REPOSITORI':S [

Introduction t The NRC proposes to amend its current regulations for i licensing high-level waste repositories to bring them into conformance with the Nuclear Waste Policy Act(NWPA). While we j acknowledge that some conforming changes are in order, such as ,

the redesignation of the Site Characterization Report and changes l in its content to conform to the requirements of Sec.113 of the -

NWPA, the proposed changes far excee'd those required for  !

conformance. Furthermore, NRC has arbitrarily chosen to conform l

some provisions of Part 60, while effectively suspending others, l j such as those related to NEPA. Finally, NRC proposes adoption i

of rules and procedures, such as its review of the Department of (

l Energy's (DOE) draf t environmental assessments (EA's), which are i l

• based on a Procedural Agreement rather than statutory authority; i a questionable basis for regulation and threatening to future j

interpretation.

l

i t HRC Arbitrarily Suspends Eart M Requirements i

The proposed rule identifies five " principal aspects" of NRC repository licensing procedures under review for conformance to the NWPA. NRC rather arbitrarily decides to address only two of l i the five in the proposed rulemaking. While it could be argued  !

that NRC is merely " reviewing" the need for conformance in the j remaining three areas, such as the definition of high-level  !

waste, the proposed rule would actually suspend those aspects of  :

Part 60 that are related to the National Environmental Policy l Act(NEPA). As such, there would not be eff ective regulations i pertaining to NEPA authority nor would NRC exercise such i authority. l t

The severity of this action is heightened because NRC is also  !

suspending regulations which are related to its NEPA authority, l such as its review of the DOE's site screening activities, but which may also rest upon the NRC's Atomic Energy Act(AEA) authority to protect public health and safety. ,

1

i Wo must also point out that NRC is currontly roviowing the EA's in cnticipation of filing comments coincidcntal to tho March ,

20, 1985 close of the DOE public c NRC is not a considering a range of site screening,omment issues period. related, to NEPA and its overlapping health and safety authority (see 50 FR 2579-2590, also see Browning /Cunningham memo, " Role, Scope, and Issues in '

Environmental Assessment Review" dated October 10, 1984,,

attached). As such, NRC appears to have already implemented the suspension of key elements of the existing regulations in the absence of any notice and certainly prior to the promulgation of "

final regulations pursuant to this rulemaking. This raises serious questions concerning NRC compliance with the Administrative Procedures Act.

I Aside from the APA question, NRC arbitrarily proposes to suspend its regulations related to NEPA and early review of DOE's' site selection activities on substantive merits. As stated in a foetnote in the preamble (footnote #1, 50 FR 2580), NRC intends to defer NEPA related ' aspects of conformance to a subsequent

, rulemaking since such issues require modification of Part 51.

While reliance on revision of, and conformance to, Part 51 may have been a logical argument for deferral of NEPA-related issues when the NRC staff first circulated draf ts of the proposed rule in mid-1983, the logic df this argument has long since f aded.

NRC revised Part 51 on March 12, 1984(49 FR 9352). l With Part 51 and the NRC's basic NEPA policies revised a year ago, there is no reason not to incorporate such changes as may be necessary to high-level waste repositories in the current

, rulemaking- The f act that repositories were not specifically i addressed in the Part 51 revisions only argues far. the inclusion i

of such revisions now since the bulk of Part 51 issues have been  ;

addressed. By electing to use the Part 51-conformance argument j for suspending NEPA and early site review related aspects of Part 60, NRC creates a Catch-22 situation. NRC can't review DOE's siting program, even in the environmental assessments (EA's),

l , because there aren't any regulations, ands there aren't any l regulations because NRC'n regulations have to be suspended because they address DOE's siting, program. -

l Even if the need for a separate, protracted NEPA-related rulemaking were valid, which it is not, the Commission has arbitrarily suspended Atomic Energy Act-related regulationNinsthe process. As the Commission acknowledged in issuing the current version of Part 60, the Commission has a " health and saf ety" i responsibility for review of DOE's siting program and th& j suitability of DOE's sites that parallels the Commission's NEPA i

authority to require early site review. As stated 'in the preamble to Part 60,  ; - -

"The Commission recognizes that[ under the  :

provisions of the Atomic Energy Act, a con- ,

sideration of alternatives might indeed be  !

appropriate, where necessary or desirable l to protect health." (46 FR 139712, Feb. 25,1981) Nl,

• I i

'3

, . . o

. . . . _ _ _ _ , . . ~ . . _ _ - . - - _ . . . . , - _ - . _ . . - . _.L_-_ __-_____.__ _________-.___E___

l Unloss tho NRC reviows tho mothodology and othor portinont l aspects of the DOE siting process, in the EA's if that is now l 1 where DOE and NWPA address such issues, than it cannot know if )

I ptiblic health and safety is being compromised. NRC's refusal to '

review

...the methodology used by DOE to compare sites ,

or upon the relative merits of one site against l

one another. . ." (50 FR 2583) i i

is co'ntrary to its early site review obligations to protect j public health and safety.

1 As is clear from the draf t EA's and background documents, DOE

- ' has selected sites on the basis of such criteria as the " ease of constructability" rather than public health and safety. A central feature of the DOE site selection process, the selection of sites based on the need for diverse geohydrologic provinces, is not provided for in the NWPA and'is essentially a management decision

• to hedge against DOE's decision to screen sites based upon [

inadequate data. This DOE siting policy is . contrary to the requirements of protecting public health and safety because there is no assurance that the sites chosen are those most suitable for protection'of health and safety.

s While we might agree with NRC's that the current s

requirements in Sec. 60,11 to 1nclude the method by which the

' site'was selected and identification of alternative sites are required by the NWPA to be addressed by DOE in the EA's and NRC i should also alter its Sec. 60.11 requirements to address them. in

! g

. that form (50 FR 2583), we completely disagree that this change ,

l somehow negates NRC's interest or obligation to address those i issues. If issues, such as site selection methodology, are to be 3 included in the EA's, au NRC proposes, all the more reason why  :

NRC's review of the EA's should extend to those aspects of the j

\ 'EA. Instead, NRC proposes to exclude those aspects of review l

_ while categorically concluding that  :

! l "Such review is not necessary to fulfill any I

, of its statutory responsibilities."(50 FR 2583) l l

This is an astounding statement given the fact that the )

current rule includes such requirements specifically to fulfill j such statutory responsibilities, especially NEPA. In light of  :

NRC's .f ailure to conf ront what alteration there may be in its l

NEPA responsibilities as a result of the NWPA, we must conclude I i that NRC's NEPA responsibilities remain unchanged and that the  ;

current requirements for review of DOE site selection must remain  !

l intact. They may be transf erred, by rule, to NRC review of the

' 5A's, but they may not be arbitrarily suspended as proposed.

1 As explained more fully below, we do not believe that a '

procedural agreement with DOE may serve as a substitute for statutory authority for regulation or the exercise of that 1 3

n :: - - :_:- -_-_______-_- .-

authority. NRC had a statutory "intoroot" in DOE's siting '

program when the current regulations were promulgated. It either continues to have that authority and may regulate and review DOE's program under that authority or it does not. A procedural agreement does not , nor cannot, constitute regulatory autho:ity.

Finally, it is our view that NRC's authority ,and responsibility under NEPA remains unaltered by the NWPA and that NRC authority under other statutes is similarly unsubordinated by the NWPA. To the extent that the NWPA does address NRC's

• authority, it underscores NRC's independent role as a regulator,  !

of DOE's high-level waste repositories.

, i E Proposen tg Restrict Review And Comment 4 gg h characterization Analynim ,  ;

NRC proposes to drastically alter its requirements for review; and comment of the Commission's Site Characterization i Analysis (SCA) . Rather than release a draft SCA for public review and comment, NRC now proposes to issue a single,qfinal SCA without benefit of comment. Comment on the SCA would be provided for in a 90-day comment period after publication,'but;NRC would not be required to take such comments into account as now I required in Sec. 60.ll(e) .  :

The NRC rationale for dropping the draft SCA and terminating an opportunity for review and comment of the NRC analysis before ,

is issued a a final report is questionable. The principal argument for such a change appears to be the " scheduling mandates  !

of the Waste Policy Act"(50 FR 2584). The other

• arguments",as i i to why this change should be made, such as the anticipated *

" extensive period of interaction between DOE and the states" and the number of technical meetings between DOE and NRC under the ,

Procedural Agreement do nat, contrary to NRC, provide a basis for  ;

dropping the draft SCA.

l The purpose of the Draf t SCA is not, as NRC implies, merely to allow states, Indian tribes and the public to gain access to I information on the DOE program. The Draft FCA also allows the i states, Indian tribes and the public access to information about i the EBC program. As stated in the preamble to the current rule,  ;

NRC intended that the draf t SCA be used to provide annortunity q

! inr. public Enamani nn tha HEC staff analysis af. tha EQE alta

] character 12ation renort. S ll i While it is understandable that the NRC staff does not wish I to have its analysis subject to public review an'd comment, a  !

series of technical meetings or DOE interaction with the states i does not substitute for a formal opportunity to review and i comment on a critical NRC document any more than those meetings j or DOE hearings constitute a substitute for the site.  !

characterization plan (SCP) or the SCA itself. To the extent that NRC believes that the SCP and the SCA are essential ,

component of its review of DOE site characterization activities, I the opportunity to review and comment on that analysis is i 4 if , j

, t  !

. a

similarly Gascntial.

The dramatic changes cited by NRC in the DOE program are not, in fact, df such magnitude that they alter the original justification for the draf t SCA. For example, NRC assumed, as noted in the preamble to the current rule, that DOE would provide an opportunity for public comment on its site characterization report prior to submittal to NRC(46 FR 13975, Feb. 25, 1981).

Likewise, the current rule envisioned the preparation, by DOE, of an environmental impact statement for site characterization. The final rule was modified,c hy adding a footnote to Sec. 60.11, specifically to allow DOE to incorporate information in its EIS into the SCA including the compilation of State, Indian and public views.

The new procedures- for " interaction" under the NWPA that NRC cites as justification for dropping the draft SCA are not -

substantially different from the level of " interaction" already contemplated at.the time the current rule was promulgated and do.

not justify alteration of this part of the rule.

! .An. argument must also be made that the very activities, such as- the large number of t'echnical meetings between DOE and NRC, cited by NRC as a reason to delete the draft SCA requirement, in fact, argue for retaining the requirement. Rather than "f reezing" the comment and review process, as the NRC puts it, the draft SCA is simply needed to " condense" the numerous technical issues and discussions. These discussions, by NRC's '

admission, will be quite extensive, will take place at a wide variety of locations, and times. It is only reasonable to " sum up" or " condense" the product of those meetings, and their relevence to the DOE site characterization activities.

NRC must conduct this " summary" and drafting activity in any event in order to prepare: its SCA. NRC would certainly be '

expected to benefit f rom public review and comment, including comment from those interested parties, who for reasons of time l and resources cannot possibly be expected to attend the numerous j and scattered technical and DOE meetings.

1 i

The draft SCA is also necessary to'the preservation of an independent NRC regulatory role. Absent the draft SCA, even

,' close observers of the technical meetings, will have little reason to believe that NRC's final conclusions were based on an independent evaluation and not swayed by "backroom" negotiations with DOE. As an organization which attended the NRC/ DOE staff negotiations concerning modification of the DOE site selection guidelines in the spring of"1984, we believe an independent

analysis and statement of position, prior to final issuance by NRC, is essential if any se'ablence of NRC independence is' to be assured. In the case of the guidelines example, we do not l

believe that NRC staff independence was effectively preserved.

Lastly, the NRC, raises the question of the NWPA schedule and implies that a 90-day comment period, and period for NRC response ,

e i 5

c. _ _ _ _

( . .

to comment, would substantially interfere with tho DOE's ability l to comply with th.e NWPA schedule. We do not believe that this l limited comment period, which addresses the adequacy of DOE's  !

site characterization activities and thus the ability of DOE to l meet all subsequent milestones, would impose such a delay. l

~

i The NWPA schedule, such as it is, is a variable process which l DOE is supposed to articulate in its Mission Plan (under Sec. 301) j and in its Project Decision Schedule (under Sec. Il4 (e) . The schedule is not a rigid one and the Act provides for extensions ,

of timetables including those imposed by the Project Decision  !

Schedule. ,

i l

DOE has demonstrated its own indifference to the NWPA schedule in numerous ways. For . example, Sec. 301(b) requires the submission of a final mission plan, to guide establishment of the r

, overall program schedule, within 17' months of enactment or by July 1984. DOE has missed this deadline and is expected to be almost a year late in issuing this critical document. In another example, DOE essentially withheld issuance of its final site selection guidelines fog five months, approximately 150 days, '

.after NRC published its concurrence in the Federal Register. We do not believe that the integrity of NRC's high-level waste regulatory program nor the rights of public, states and Indian ,

tribes to review and comment should be compromised to make up delays in DOE's schedule. , l In any event, NRC's responsibilities and authority to protect  !

public health and safety and the environment are insulated from  ;

the schedule. Among other considerations we refer the Commission i to the colloquy between Rep. Swif t and Rep. Udall during final  !

House consideration of the NWPA on December 20, 1982. The ,

colloquy states in part, j "By setting dates in this bill for DOE and NRC }

decisions we are setting statutory goals for the  !

repository activities authorized in this legis- -

i lation. Nothing in this bill, including the

- establishment of decision dates, is inconsistent with the statutory responsibilities of the Nuclear i Regulatory Commission to protect the public l health and safety and the environment." i (Cong. Record, December 20,~1982, p. E 10523)

Consequently, the NWPA " schedule" does not justify deletion '

of the draft SCA requirement. NRC should also establish a notice and comment process for the semiannual site characterization i reports (proposed Sec. 60.18(g)/ current Sec. 60.11(g)) along the  ;

lines of the comments allowed on the SCA. This would provide all  !

parties with an opportunity to bring issues to the Commission's  !

attention involving ongoing site characterization activities at  !

the same time the Commission was conducting its review. .

l 6

.,-----,-.-,,....--..-,..--..m-.____,,..,,_.,,,,7,,.%_ . ,..,.r,,._,..,_, - _ , , , , , ,

m ina af 2111 characterization Elan at Issue NRC correctly notes that the NWPA contemplates a number of steps in site selection and nomination which will preceed the

• point at which a site characterization plan is to be submitted to NRC. Under the current Part 60, DOE is to submit its site characterization report " .. .a s early as possible after commencement of planning for a particular geologic repository operations ar ea." NRC implies that this point in time is dramatically diff erent f rom that now requd:a4 by the NWPA and doesn't help the matter by leaving out of ide text the added distinction that the planning is specifically for "a particular geologic repository operations ar ea." This misleading omission occurs twice, once in ,the NRC's discussion of changes to the site characterization report (50 FR 2582) and again concerning the '

characterization analysis (50 FR 2584). By so doing, NRC distorts the actual point in time originally envisioned in the current regulations for submission of the report and makes it appear that the current version of Part 60 requires submission at a

• substantially earlier.. period of time than the NWPA.

The definition of a " geologic repository operations area" is ,

"...an HLW facility that is part of a geologic repository including both surface and subsurface areas, where waste

! handling activities are conducted."(sec. 60.2(1))

NRC implies in the proposed rule (50 FR 2583-2584) that under the NWPA f ramework the submission of a site characterization report comes at a later point in the process, af ter extens.ive data gathering and agency interaction, than originally contemplated in Part 60. Examination of DOE's timeline for repository development in the April, 1984 Draft Mission Plan for l

the Civilian Radioactive Waste Management Program (see p. 3-A-39, Vol. I and pp. 2-22 tp 2-26) indicates that planning for a particular repository operations area at a particular candidate site cannot begin until the site specific conceptual design stage. As DOE notes, - ;

"The conceptual designs for repositories in basalt, salt, and tuff are in different stages of development.

For salt, several generic designs are available for use. However, ginga specific 11133 hay.g not b.e.en selected, mite-specific conceptual designs Mill nah

. . . . . . - . - until EI.11., For basalt, the description of the site-specific design system has been published and an up-dated complete conceptual design will be com-pleted in FY 86. Preliminary repository concepts have been developed for tuff, a full conceptual design l

report planned for FY 85."(Mission Plan, Vol. II, p. 2-26)

(Emphasis added)

We question whether this " planning" for a particular repository operations area, as distinct from site screening based upon conceptual design, occurs at a later point in time 7

_ _ _ _ _ --_ _ _ _ _ , . , , , - _ -, -- --,--.-.m ,.._.-,_,,,,-,-m---- .---,_.,%__.,-_ .meww,_,.,---,.-.-7-.m_,--w-,

i than contemplated in the current version of Part 60. As noted in these comments, the current version of Part 60 contemplated that DOE would conduct a site selection process and complet* an 4

anzirnamintal 1m2A21 11111 mint an iti.EInRn11d 1111 charantarizatinn as11ri1121 Ehich manid insinda that consideration ni that sita selection process. It does not appear to us that the current DOE program, in apparent compliance with the NWPA, varies substantially from that contemplated by the NRC in promulgating the current version of Part 60.

NRC has grossly exaggerated the impact of the NWPA on the DOE repository development process over that contemplated by the current Part 60. That the NWPA requires submission of the site characterization reports prior to characterization shaf t sinking.

is simply not that different from current requirements. The fact that DOE's site screening process is more visible does not alter i the principal requirement that it have a narticular Rita before -

! it can plan for a particular repository operations area.

Furthermore, the question of how many days, weeks, months, or procedural steps prior to sinking the shaft DOE should submit the i

plan is still at issue. NRC cannot, of course, simply accept the strict letter of the NWPA that DOE submit the plan the day before it 'begins drilling tha shaft. The NRC staff, we should all agree, needs a significant period of time to review the plan prior to shaft sinking. The blanket adoption of NWPA language, in the proposed Sec. 60.16, that DOE submit the plan before sinking the i shaf ts does not, in our view, provide ample delineation of when the plan should be submitted. It does not assure that it will be submitted at a point in the process which will assure time for NRC review prior to shaf t sinking.

In its zeal to revise Part 60, NRC has made f ar too much of the requirement in the NWPA that DOE submit a characterization plan prior to sinking a shaft. The NWPA requirement is not i

substantially dif f erent f rom that contemplated by the current Part 60 and can just as readily be seen as a stricture on DOE ~

l that it not proceed with any aspect of site characterization, including shaf t sinking, without submitting such a plan. NRC's proposed changes to Sec. 60.16 are not adequate to assure timely review by NRC of the plan prior to shaft sinking.

Likewise, the NRC's arguments that substantially more public and agency interaction and site screening are required by the NWPA prior to submission of the plan than contemplated by NRC are also exaggerated and .not substantively different than contemplated in the current regulations. Therefore, the "schednling" of the site characterization plan in the NWPA is not ,

a basis for deleting the draft SCA requirement.

Procedural Agreement cannot Substittite ZgI Statutory Authority The proposed rule is heavily dependent upon the Procedural Agreement between DOE and NRC as a basis for changing Part 60 and for imposing new procedures, such as review of the EA's. While 8 ,

l l _ _ _ _ . _ - . _ . _ , .

i . .

we cannot objoct to the Proccdural Agroomont as a means of implementing the Commission's regulatory authority vis-a-vis the DOE high-level waste program, the Agreement cannot substitute for ,

l statutory authority or even for regulations implementing that I authority. The Procedural Agreement should be based upon Part 60 and not the reverse. NRC either has authority'in this area or it does not and oblique arguments about the need for early identification of licensing issues hardly constitutes a basis for

future interpretation of Part 60 and future Commission actions.

As stated earlier, we-do not believe that the NWPA ,

subordinated any prior NRC authority in this area and clearly i intends to create an independent regulatory role for NRC. We point out that the current regulations, 10 CFR Part 60 were promulgated February 25, 1981, before any congressional action was taken on nuclear waste legislation in the 97th Congress which enacted the NWPA. All relevent committees were mindful of the ,

regulations and in many cases central. elements of the regulations were incorporated into the legislation as the NRC notes. We

! conclude that Congress essentially concurred in the NRC regulatory scheme as provided in the current rule.

i

! Treatment gf, Defense Hasta 11 T11ocical and Inadequate

, Although the NWPA presumes that defense and commercial high-

, level wastes will be commingled and placed in the same '

repositories, Sec. 8 of the Act provides for a Presidential

, exemption. As the NRC is no doubt aware, DOE has also proposed I

that some high-level wastes that are not " easily retrievable" be , '

disposed of in a manner other than in geologic repositories.

This policy is articulated in "scopin'g notice" for DOE's environmental impact statement (48 FR 14029, April 1,1983) and in the draf t DOE report prepared in support of the Sec. 8 dccision (DOE /DP-0020 (Draf t)) "An Evaluation of Commercial Repository ,

Capacity for the Disposal of Def ense High-Level Waste" July, ,

1984). A provision is also incorporated in the 4th Working l' Draft of the final EPA high-level waste standards (May 21, 1984) providing for an exemption for disposal of certain high-level waste f rom defense activities f rom the EPA geologic disposal standards. Consequently, we believe that it is especially important that Part 60 explicitly apply to defense waste -

l disposal.

Defense waste disposal outside of the NWPA, as noted by NRC, would not occur in the same manner as commercial waste. The step-by-step procedures in the NWPA which NRC cites as a basis for alteration of Part 60, including the site nomination process, would be absent in the development of defense facility. In point of fact, the process would be virtually identical to that l envisioned by NRC when the current rule was promulgated, with the exception of the additional state and tribal consultation and cooperation requirements provided in Sec. 101 of the NWPA. ,

Logic would dictate that in the case of defense waste, where no NWPA changes occur in the DOE repository siting and 9

development process, Part 60 should remain unchanged. Instead, NRC concludes that it could "...still eff ectively discharge its ,

health and saf ety responsibilities..." if the proposed NWPA-based l regulations were applied. NRC does point out that this would i not hold for NEPA-related responsibilities (50 FR 2568), but the only change NRC proposes is in the contents of the Site l Characterization Report. No other changes from the proposed l regulations, such as retention of the draft SCA, would be provided. .

This proposed "fix" whereby NWPA-based changes would apply to a non-NWPA defense waste repository is wholly inadequate. NRC is simply proposing, apparently out of convenienca, to apply l inappropriate regulations to defense repositories; regulations NRC argues in the proposed rule must be substantively different from those currently applicable to defense waste facilities.

Given the additional institutional strictures on defense activities, such as limitation on the access to early information about waste forms, since DOE is self-regulating, we are doubtful that the current Part 60 is adequate to provide timely information to NRC and to other parties. Application of the l proposed regulations to' defense facilities would only limit further the ability of NRC and other parties to gain timely information and participate effectively in,the process. i Subpart C chances Ar.g &lso, Extreme and Unsunnorted l i

I NRC argues that the NWPA has now required DOE to provide i otates and Indian tribes with full rights of consultation and '

i cooperation and consequently the Commission's original concerns, t

expressed in Part 60, have been largely alleviated. What is not stated here, and should be, is that the Commission's own ,

authority to consult with state governments and indian tribes is  ;

substantially unaltered by the NWPA. For example, Sec. Il7 (c) ,

which authorizes DOE to enter into written agreements with states -

and Indian tribes contains a specific caveat that they shall not  !

affect the authority of the Commission. While we recognize that i NRC has limited resources and may wish to limit its assistance to l states and Indian tribes, the changes in Supart C are unnecessary  !

and unsubstantiated by the NWPA.  ;

The participation provisions of Subpart C appear to be i triggered at different points in the site selection process.  !

Information, to be provided under Sec. 60.,61, is triggered by the  !

submission of a site characterization plan (see Sec. 60.61(b)).. }

Consultation in site review is triggered by Presidential approval of a site for characterization under Sec. 60.62. l 1

In both cases, it appears to us that the Commission is l withholding information and consultation until a f airly late stage of the site selection process. By the time the SCP is  ;

submitted, DOE and NRC will have already begun site specific ,

l technical meetings will have conducted lengthy site selection [

activities. Because the amount of time which elapses between  ;

nomination and submission of the SCP is expected to be only a .l 10 i

.l

- matter of months, it would seem realistic to allow states to 1 begin formal information exchanges and consultation at a minimum j at the point when NRC and DOE technical exchanges begin. l

\

Consultation with NRC should occur as early as practicable, ]

probably at the point when a state is notified that it is a  :

"potentially acceptable site" under Sec. 116 or when preliminary investigationa are begun for a defense repository under Sec. 101 of the NWPA.  ;

Conclusion On February 25, 1983, NRC promulgated standards governing the {

procedures for licensing geologic repositories (46 FR 13971- i

, 13987). NRC now proposes to revise those regulations. We l believe that NRC has the burden of demonstrating why those i regulations should be revised in any substantive manner. NRC has  !

not demonstrated a legal or evidentiary basis for the proposed  !

changes, which include the arbitrary suspension of key elements l

of the current regulations.

NRC's principal clhim for the changes rests upon an j i exaggerated and misdirected interpretation of the NWPA which it ,

reads as requiring major alterations in the DOE program not l contemplated in the original regulations. Contrary to NRC's view,  !

the changes required by the NWPA are not substantively different j from those originally contemplated in the current regulations  ;

and do not require the magnitude of changes in NRC regulations  !

which the NRC proposes. While minor corrections may be necessary to conform Part 60 to the NWPA, NRC's proposed rule f ar exceeds the degree of conformance appropriate. ,

l The changes NRC proposes would drastically restrict the l opportunity to review and comment on NRC staff determinations  ;

relating to the regulation of repositories. NRC would also i

! arbitrarily suspend those aspects of the current regulations l

related to NEPA. NRC is currently reviewing the DOE's J environmental assessments, which by NRC's admission contain the l l NEPA-related elements embodied in the current regulations, but is i not considering those elements in its review.  !

l NRC's comments on the EA's are expected to be provided to DOE l i

by the close of the DOE public comment period on March 20, 1985. .

Consequently, NRC has effectively implemented the proposed rules  ;

l related to early site review prior to their final promulgation. j NRC has also suspended certain requirements of Part 60, i especially those related to NEPA, without notice. We believe this raises critical questions concerning NRC's possible I violation of the Administrative Procedures Act. l 11 l

- OCT 10 tog 4 MEMORANDUM FOR: Richard E. Cunningham, Director l

Division of Fuel Cycle, NMSS ,

i FROM:

Robert E. Browning, Director Division of Waste Management, NMSS

SUBJECT:

ROLE, SCOPE, AND ISSUES IN ENVIRONMENTAL s

ASSESSMENT REVIEW As you requested in your memorandian of August 30, 1984, on partiilpating i in the October 12 meeting on transportation in Colorado, this memorandum discusses the role and scope of the NRC review of D0E's Environmental Assessments (EA's) and issues for the candidate repositories. The discussion of the role and scope is from our EA Review Plan which has been developed

5 over the last several months and is now undergoing management review.

We will advise you of any-changes that occur before the October 12 meeting.

ROLE .

The information presented and referenced by the EA's will contain data, interpretations, and assessments available to date on each of the potential repository sites being considered by DOE for nomination. This information is important to NRC reviews for prelicensing (Site Characterization Plans ,

(SCP's)), licensing (License Application for construction authorization

! (LA)), and adopting to the extent practicable the Envirormental Impact Statement (EIS) prepared by 00E.

The NWPA does not require NRC review and comment on EA's or to otherwise l

- participate in the nomination process beyond the Commission concurring on i

the siting guidelines. It is nevertheless the intention of the NRC to review and connent on the EA's-(similar to other pertinent technical documents) in order to assess DOE's application of the siting guidelines.

[ According to the siting guidelines, DOE will make findings in its EA's with respect to qualifying, disqualifying, favorable and adverse conditions j

that are presented in the guidelines. The NRC staff will review these -

' findings and provide to DOE its views on the data, interpretations, and assessments that support DOE's findings. The staff will also consent on- any potential itcensing or EIS issue that DOE should consider in its nomination decision. Furthermore, in accordance with the NRC/ DOE Procedural Agreement (Enclosure 1), comments on the EA's are a useful mechanism for the NRC staff to identify potential licensing and EIS issues that may be anticipated and that any need to be addressed in DOE's activities during site character 1.tation. ,

WM Record le WM Project /

Docket No.

POR W 0:stribution:

(Re g n, U p M S f

, , , . , __e . , _

W e* f WY

- - , - - ..,-r.-- ,

q  ! g Q . .

\

OCT 10 Eg4 i

i Because the statute omits any reference to MRC in connection with the EA's or (

the nomination process, the NRC staff will not comment on DOE's judgment  !

regarding the relative merits of one site against another; this responsibility l lies with the DOE. The judgments 00E must make in comparing sites involve an  !

intertwining of " technical judgments" (e.g., thermo-mechanical response of the  ;

host rock) and "value judgments" (e.g., trade-offs between potential effects on national parks as opposed to prime agricultural land use). Rendering value i judgments on the relative merits of .various sites is clearly the responsibitity l of the DOE dar. ins the screening process. This is not to say that the NRC staff  :

would be silent on safety and substantive environmental concerns. However, in l the absence of such concerns, the responsibility for weighing the relative  ;

meri.ts of one site against another is DOE's.  !

l

• The staff's decision not to comment on the relative merits of sites is i consistent with the Commission's policy under the recently amended final rule, j Licensing and Regulatory Pol. icy and Procedures for Environmental Protection  ;

10 CR Part 51 (49R9352, March 12,1984). The statament of considerations in l i this final rule states, "As an independent regulatory agency, the NRC does not select sites or designs or participate with the applicant in selecting proposed {

sites or designs." );

More specifically, NRC's review of the draft EA's has two general objectives l which relate to NRC's responsibilities in prelicensing/ licensing (i.e., safety l

evaluations) and adopting the EIS, namely.

(1) Prelicensing/ licensing: The NRC staff will identify and review potential -

~ licensing issues and associated data, interpretations, and performance i assessments which may be important during site characterization, that j might result in licensing problems and which should be addressed by DOE  !

in the EA's. ,

/

(2) Adooting the EIS: The NRC staff will identify and review potential EIS 1ssues and associated data interpretations and assessments that might result in the NRC's being unable to adopt DOE's EIS and which should be addressed by DOE in the EA's.

The EA's, which follow the siting guidelines and NWpA requirements, will be somewhat complex in their structure; however, NRC's review responsibility and approach is simple. That is, for each draft EA submitted by 00E, NRC will review the findings and conclusions presented - to the extent they bor.r upon the foregoing responsibilities - and independently determine if they are substantiated. NRC will use this evaluation as a basis for identifying potential licensing issues for timely staff resolution.

-~ ................... ..................... ..................... ..........:.......... ..................... .... ...............

...............4 OATE k .................. ..................... ..................... ..................... ......**..***....... .................i

c n ew meno,.oi . cwa:4o OFFICIAL RECORD COPY * ** *** 2 "

n, _ _ _ _ _

OCT 101984 SCOPE The following criteria define how the data, interpretations, and assessments ,

that DOE used in applying the siting guidelines to the EA items in Enclosure 2 l will be reviewed by MRC.

(1) Adequate substantiation of assessments, interpretations, conclusions and findings.

(a) Adequate consideration of available data. ,

(b) Adequate consideration of alternative interpretations, assumptions, or performance assessments.

(c) Adequate consideration of uncertainties resulting from l all sources including data collection, analyses, interpre-

• tations, and performance assessments.

(d) Internal consistency of inferination including data, interpre-tations, assumptions, and methods of analysis and evaluation.

(e) Adequate documentation in EA or references to support interpretations, assumptions, conclusions. ~

(2) Potential licensing and EIS issues identified and adequately '

considered.

l As far as issues that are likely to arise at the October 12th meeting, our feeling is they will be related to transportation of waste and spent fuel similar to those discussed at the meeting in Columbus, Ohio on August 1, t 1984 The wasta transportation issues most commonly identified are safety, routing (especially weather and grades on I-70 in Colorado), routing models and methodology (use of site specific and corridor state specific data),

amergency responses, institutional responsibilities, impact on tourism ~

and traffic (Enclosure 3). The policy and Program Control Branch is currently preparing a paper on transportation issues in high level wasta which they will forward to you as soon as it is available. If my staff can be of further assistance contact Bill Lilley of my staff.

Original signed 59 Robert E. Browning -

Robert E. Browning. Director Edsum Division of Waste Management MMSS

1. MRC/00E Procedural Agreement

2. MRC's EA Review

3. Rocky Mountain News

• • • • SEE PREVIOUS ADNCURRENCE* ,

WMMP" MMMP' . l. .r! NM o rics> "

Bl'UTFf7c3*" ."..*RBbipTii'"""* 7""" "UO!(I V "." *" REB rig" """"""""

l cm> . .10. ./.. .. .... ./. 8 4..1. 0/..../. 8.4 .... .1 ..8.4....... ....10/.#../. 84...10..../[. ........

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). . . , . . . . , . ..

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, [ . ~ Megister f Wod. 48. Wo.166 / Rursd3y August 25. 1983 / Nr.tices 3s;ot then sent to th2!AFA Senior Advisory forinterface durtrag sit 2investination conducted at a candidate sits or the Croup which revi:ws and modifies as and s:te charac*enzation of sites for a submission of reports on the a:ture and necessary the drafts of all codes and geologic repositoty under the Nuclear extent of site charactenzanon acavmes guides enor to their betag forwarded to Weste Policy Act of1932. The text of at a candidate site and the aformanon the IAEA Secretanat and thence to the this agreement is published below. developed from sui.n activines.

IAEA Member States for comments. pon puwman moomssation cosefacTt

2. NRC On-Site Aepresentarires

. Tasmg mte account the conuments Mr. Robert L Browmns. Acung Director.

. received from the Member States, the Divtsion of Waste Management. Nuclear As early as practicable. foHowing i Semor Advisory Group then modines Regulatory Commission. Mail Stop 623 area phase Bald work. NRC on.stte the draft as necessary to reach SS. Washington. DC 20545:(301) gr. representatives will be stauoned at each l- agreement before forwarding it to the uno. site undergoms investigation pnncipany

'. IAEA Director General with a Dmed e siher senas.Marytead.itus teth to serve as a point d prompt recommendation that it be accepted. dev of Augua less. Infennatismal exchange and I

As part of this program. Safety Guide Fw h Nelow @ wry h censultaties and to preumanarily SC-412. " Operational Management of ndentify concerns s'ooyt such Radioacave E!!!uents and Westes 0. W investigat'oes relanng to potential

• *# "8""**

Arisms a Nuclear Power P! ants." has ,, Usensegissuse.

i. been developed. The working group lt consasung of Mr. E. Hladky from Procedural Agreemmat Bosween the U.S.

j Czechoslovakia: Mr. A. Higashi from Nucieer Reguissary Comm&mies and From the time this agreementisI

., Japan:Mr. A. B. Fleishman from the the U.S.Deparament of Energy entered inte, and for se long as site Umted Kingdom:and Mr.L. C. Oyen Identifying Guiding Principles for charactensanen activttles are being (Sargent and Lundy Engmeers) from the laterfees During Skee Inveaugnates and planned or are la progriben. DOE and U.S.A. developed the uutal draft of this Sise Charasseriaaties NRC willschedals and hold meetings guide from an IAEA collanon. This draft gg, gg periodically as provided in this secnon.

was subsequently modified by the IAEA A writtaa report agreed la by both DCE

. Technical Review Conumstee for d fw a ad and NRC will be prepared for each Operation and we are now salie: ting

,,, g gg,,,,,, g g meeting =eimling agreements reached, pubhc comment on a modified draft Co m m W ud b W s.Tecimicalamennes wiu be held (DOE) will ooserve in connecnon with, (Rev. 2. dated June 24.1983). Comments between DOE and NRC technicalstaf received by the Director. Of5ca of the charsaermanon of sites for a geologic repository under the Nuclaer to: review and consult on interpruanons Nuclear Regulatory Research. U.S. of data:ideadfy puestialhamness

. Nuclear Regulatory Commission, Wasta Policy Act of1982.The purpose

, of these procedures is to assure that as lasses aslee spes the enSmency of Wasamston. D.C. 20335. by October 10. available tafensation and data: and 1983. wtu be parucularly useful to the Informanon now is maintamed bewan h m agenom which wiu fuuim agree spes medieds and approachu for

U.S. repruentauves to the Technical me acquisidea of addinosalinformanon Review C.unmittu and the Senior h accmaphsh Web w d

! its raponsibuitu rdauve w am and data as needed to facilitate NRC l Advisory Group in developmg tfiest Hanquon ud chwamme ada, reviews and evahsstions and for staff

positrons on its adequacy pnor to their recoisnes of seek potesnalucessing the 'vn Weste Polic' Act / (NWPA).

issues,

! "*** IAEA Single """"88's comes of &i draft Safmy The agreement is to assure that NRC i receives adquate informanaa es a b. Periodic ananagement meetings will Guide may be obtamed by a written f

request to tlm Director. Office of Nuclear timely basis to enable NRC to review. Le held at the site.epec Sc protect level evalusta. and comment on &ose Dog =honever necessary, but at least

! Regulatory Research. U.S. Nuclear -

,,,,,% g g,,, g,,, quaturly, a rewww b sammary results

"' 8' l,

D { .

accordance with DOE's protect decision schedule and thereby facilitate early of .he technical meetings: to review the status of outstanding concerns and

issues

discuss plans for resoluuon of

[s U.S.C. 322:all . Idenufication of potentiallicensmg I Deted at Washingtsa. D.C. this teth day of issues for tamely staf resolutaan. The outstanding items and issues to update I . August tees. agreement is to assure that DOE has the schedule of techmcal meetings and l For the Nesleet Regulanery Commemen, prompt access to NRC for diame==== other acnons needed for staff resoluuon Rehest E.besegue, and explaestions relauwe to the intent. of open items rogarding site cheeser. CMes ofNuclearAagudocary mesmag and purpose of NRC comments charactertsamen programs: and to Aseseren. and evaluanees en DOE acevities and consait on what gemerts gedance is tre omaware rn se.ei.e ass.me so that DOE can be aware on a current advisable and necessary for NRC to I sman seen nue.e e basis. of the status of NRC acuens propers. Unresesved management issues

( relauve to DOE acavines. wiu be promptly elevated se upper

==a-*

This Procedere! Agreement shau be for reseletion.

NRC/ DOE Procedural Agreement subject to the provistens of any project c. Early technical meetings will be aosseert Nuclear Regulatory decision schedule that may hereafter be scheduled to disemos writtes NRC l Commission, established by DOE and any comments on DOE documents such as I actions Nonce of NRC/ DOE Procsdural mgulauens est may lierufter be Sim Chareewnsanon Plans. Dots sema.

Agrument. sdopted by NRC. pursuant to law. In annual progrees reports, and techmcal parucular.nothing herein shall be reports to foster a mutual understanding eussesamvt ne Nuclear Regulatory construed to limit the authority of the of comments and the infoneauon or Commission and the Department of Commission to require the subetseson of scavines needed for staff reordution of Energy have signed a Procedural informanon as part of a genersi plan for the comments.

Agreement idenufytag guding ynnciples site charactensauen acavitsee to be d. la fennulating plans for ocavities h

• 1*- . l **** i

~ ':?.L 2 .-... - - - - - . .-- _ - - - - - --- - ~-

3872 Federal Respster / Wos 4a. Mc.166 # Wurs9cy. August 25. 1983 / N;tices which DOE mu undersaks t3 develop Dated: June tr.tsus. Power requested that the C:mmission irtforte: tion needed for stas resolutaon RobertI Morgan. helt operstran of Mam) Yankco until the of potenual licansang lasses. DCE win holect Direezer. Nuclear Weere pelicy Act license "has demonstrated that it has meet with NRC to prende an overetew hoger C*cs. u.5. Ceperimens af twry. adequate financal backing and cf the plana so that NRC can comment Deed June tr.1933. adequate Mancial supp:rt to raise on thetr sufScency. These disassasons capital requirement to es:.tmue John C. Devia.

will me held sufficiently seriy so that gj,,,wf, g;,, g gy,1,,f 3f,,,,,,f g,r,,7 operauen. to make and changes or any cnanges that NRC comments ma? and soferueros, f.'.5. Nucieor/tsfulatory capitalinvest=:::s reque.ed by tne entn21 can be duly considered by DCE in commassen. NRC. and to provide for the funing of a minner not to delay DOE acuvsties. inc .- r.w - us e its shutdown and dapesa! of spent fuel

e. Schedules of activ:ttes pertainmg to a w -a cose nen.ei-a at the end cf its licassed term." Ssfe technscal meetings wiu be made publicly Power also asked that the Com=nsion av:ilaole. Polanual hust States and determine wnst amounts Maine Ya-J. e effected Indian tnbes wiH be notined (Deemet No. sc-sos: c1.5-43-211 should collect to pronce for cad mvited to atta:d technical meeungs Maine Yankee Atomic Power Co. decommission:ng and disocul cf spent c:vered in this section (Secton 1 (Ma:ne Yankee Atomic PowerStatjen); fuel and order the creaton of a trust Me tings).Tne notiScanon wtB be given Memorsneum and Creer fund m whic.t dese monies would on o emely basis by the DCL nese accumulate until needed.

tebcal mest=gs mH be open The Comnitssion has considered and In dm mg Sa's Powe 's petition the noensgs wie members of t3e public affices the Director s Decision. CD 43 Director correctly obsers ed that the 3 I ceang parmitted to atteod as ocaervers. ]",' Ccmmissions' concern with financtal

' [c en d Oc

• I 15:alyRalease cfIn/cr=ctics 1

}, y p cno],S we 7,},

9

[,gif,[,', b,, y .

a. Dsta collected during site and joen lerabek (collectively " Safe to de proteccan of pubhc health and invesnganons wt!! be made available to Power") for accon pursuant to to CFR safey.* AHegauens about Enancal NRC on a c=wnt, conti=umg basis after 2.206. Safe Power sought an order to cifficulties at an operaung facility are the DCE (or DCE centracter) quality show cause why Mame Yankee Atomic not be themselves a sufficient basis for assu ance checks that are userentin

• Power Company ("Mame Yankee" or actica to restnct cperations. In de ditermmmg that the data has been "!icensee") should not be ordered to Comnussica ruiemaims. cited by the chiamed and dec:mented property. discentmue operation of its nuclear Director wh:ch aliminated 6e financal

b. DCE's analyse and evaluacons of power olant at Wiseasset. Maine. m' qualificauen review for electne utilities.

data w:H be cade avulable to NRC in a l' eat of Safe Power : allegations of 47 F.R.13750 the Commission noted the urnly m--er. Mame Yankee's financal smespability absence of evidence that financal to operate the Wiseasset fsetlity safely preblems are movitably linked wid

4. Site Specific Semples and dispose of spent fuel now stored cerner cuttmg en safety.* Thus. even there and to be generated cunng the had the Commiasson retamed its Ccnsistent with mutually agreed en remamder of the licensmg persed. The financal qualificauens review procacures. DCE will;rovide NRC with Ccmmission has concluded that dental requirements. a showing tse Maine ute spec:Sc sa=ples to be used by NRC of this peution lay withm the Director's r tade;endant analysis and Yankee was undergoms financal .

discretion but notes that subsequent difficulues would not by staelf require

. du4uon. developments provide addtuonal that the Commission helt operations at

"  : ection.

• i Asency use ofin/ctmouca that plant.' On the other hand.

rdmgly, rab th a It is understood that infer =stion =ade deciuung to review the Director's available to estner Agency under 61s decsien the Comnussion is issums the ""$ * * ** * '""d " h" S u n" * *

• agtsement may be used at $st Age =cy's memorandum and order to enlarge the 0, ',", l* * *,'," *,",*. 3 "*""* C**g""[,d opues in carrymg out its discussion of the issues raised by the mnem.ce:

responsibiliusa.

• P '""'n' N k"** "'f*i*'*7 C*a*me Nac

• In its petition for a show cause order dm ne prosa

• n" emu amon't bme en L Pro lect Specific Agtrements Safe Power alleged a number of "***'"***"***'***t*C""*****

t Project speciac agreements to crcumstances mdicat'ng " poor financial C ","ar,* '," ",,"*",,Cjs m. .,, a ,

condition of Maios Yankee". 8 Safe ,me..ne to cenerme see mnw a necmu w u i=;1ement the above prmcyles will be . er r a. tsrst. is its et mi ,ee st ine negonated within t:0 days of the ttme 'se : - _ em .t the seerem ommsen, NRc cas ines entav %nmee wananess -

this apreement is ontered ints.Does w ta cm arrs,in une m = ceae *? d **a*" * ** NRC d a***8

• u* eu he ham a8 **a-project specfic agreements will be me,i.e www

,,,,,,, (o,s 3c,aisser

, g 3,, , aoms pw 4 ces at arieca .same ren tilored to the speci!!c projects to reflect imw emnee crememnese mcJede: ft1 Use og Amus m Ceason. con me c__ __ay _

th:2 differences in sites and preject hanes seiwwe inmen emee et ine coman,, c.wmme UA . rs L.Ed. :4 rsa. rsr crgeruzations. *****" I'3' I

7. Nothmg in this agreement shall be ""* d **** '** '"n'me"*on*e"benahne el* Nnenneer partnese.reseautoa Commaaease a rWe as au-geile meeer rev.ew fuusi new m us Ier eeny Mvimme tres care is me o C Catun m New t.nyme Ceehen en I construed as limatmg forms of informal ** P*** Ca**" * ==* Sum Y m" e "**"d*'* ' N8C * '8-1581-censultation not mentioned in this ***" " "" **

• U"**' 8**'" tas ni me Ammic secry Ac me

• • "' "" ' 'ainn necro-me nee tous mesame,' tai ." unes et commmwn mer ceasee e i.eme e ceneina agreement (for example. telephone su et m.ne yanae e nuemmee sewas w mens u.no ine. e me, eenienee un comm.ee n, cr.nversation or exchanses of teports). -'m m.e uceenes el mi w esatuene commee une ins aceae. m os 6re immenes. . u ie am Thase othet coesultationa will be ' '""'**"'"**""'"*""*"*H8""8 "**'a* '* * *** 67 ***= emme eeni el documentad m a timely manner. 'wnees

"'*","'*"*'*"*'*"""*"""'** ",,",**"",",,",***',',*"***"'*,,"*,*g,,,,

. , , . ,e ,, w ,,.

I

6 i

ENCLOSURE 2 i SCOPE OF NRC'S EA REVIEW EA ITEMS IDENTIFIED IN SITING GUIDELINES NRC REVIEW l

1. Decision Process for Nomination

• None (addressed by Conr.ission concurrence on siting i guidelines)  :

2. Site Qualification / Disqualification

• 00E findings with respect to ,

the guidelines  :

t Technical evaluation used to i support findings i Data, interpretations, perfor- '

mance assessments supporting '

, technical evaluations

3. Geohydrologic Setting Detemination '

Technical evaluations used to  !

determine the geohydrologic $

settings  ;

Data, interpretations, perfor- ,

mance assessments supporting '

, technical. evaluations

4. Comparative Evaluation of Sites

• None regarding conclusions or  ;

, Within Geohydrologic Setting methodology -

Substantiation of conclusions q

5. Suitability for Development of

• Suitability conclusion '

l Repository

• i

• 00E findings with respect to {

l the appropriate guidelines  !

4 Technical evaluations used to i

! support findings -

(

Data, interpretations, perfor- I mance assessments supporting i technical evaluations

. i l

l

ENCLOSURE j[ (Cont'd)

SCOPE OF NRC'S EA REVIEW .

EA ITEMS IDENTIFIED IN SITING GUIDELINES NRC REVIEW

6. Suitability for Characterization

• Suitability conclusion DOE findings with respect to the appropriate guidelines Technical evaluations used to support findings Data, interpretations, perfor-

, mance assessments supporting technical evaluations

7. Comparative Evaluation of Site

• None regarding the relative Against All Other Sites - merits of one site against another Substantiation of conclusions

8. Effects of Site Characterization -

Public Health and Safety

• Proposed site characterization (Radiological) *

&ctivities I

• Potential effects on repository performance

{ Data, interpretations supporting above Public Health and Safety

• None (Non-Radiological) l Environment

• 00E findings with respect to the appropriate guidelines i

Technical evaluations used to support findings E

9

.{ t I

i ENCLOSURE 2 (Cont'd)

SC0pE OF NRC'S EA REVI W EA ITEMS IDENTIFIED IN SITING GUIDELINES NRC REVIEW

9. Alternative Activities for Site * ~ Alternative plans for site Character 1:ation to Avoid Effects

• characterization activities in No. 8 above

10. Regional and Local' Impacts of

• Proposed repository facilt ties Repository -

and operations ,

Effects on repository perfor-mance, environment, transper-tation and socioeconomics -

Data, interpretations support-

,ing above OTHER EA ITEMS

11. Descriptions of the Site and

• Data, interpretations, perfor-Region mance assessments 1

4

12. Descriptions of the Repository

• Preliminary designs Design Data, interpretations, perfor-

' mance assessments supporting l preliminary casigns l

l l

l l

6 9

.. . e I,;;., '.h *Q* h 4s . . meU.

State a likely, nucle. ar .

thoroughfare "Once the site is selected, reversing the federally generated momentum will be By SUE I.INOSAY practically impossible." Stillsr warned.

acca, ueumain News Statt Wnter - (Jntil recently, the topic has attracted little concern from state and local offi-Thousands of trucks carrying deadly ei g3, loads of spent nuclese fuel, each 10 times -1 don't think the sute gener211y is '

mcre radioactive than the bomo dropped aware of some of the planning that's going on llirosatms. may roll through Colorada un at the federst level which could result by the cad af the century posing a poten*

• in highcr use of the !.70 corridor for truns-tial danger that has so far. drawn a slow portation of spent nuclest fuel." said state resetson from state officists. Sen. Tom Class. D Fr:sco. whose moun.

The '.ssue centers around whether the tsmous district contsins'the most treach-feilcest govern: .ent will.locste its high* creus stretches of that route.

'evel rsd:nsctive wsste Jump in the West. "This highway presents such unique hsz-

'tany ex;.:rts sviieve it ;s likely.

ards itself under normal condit: ens, from

!! sne ct' three propose 3 Western s:tes is the Slousetrap at rush hour to the Eisen-e:husen. CMorado could become the hub of hower tunnel to a runsway truck in Vail

r. i and signway tn!!ic to the dump from  ;>:33,

• said Class. ~This is a tough road by '

tue East. where mest of the wast. from anv standsrd." -

nue'est reaeta s is prodace l. Denver and Colorsdo offie:sts contend Ac:ording to some federst projections. that the siste st:11 has time to make its the mspr trans;urtation corrtdce would influence felt.

Se Interstate 70. whics .;stses through "It's early enough in t.he process that if Denver and scross the Rocky Stount.s:ns. we act sacn. we esn respond." said Tony i One federst stucy estimates ,that by alsssaro. Denver's director of environ.

• 2004). a trsctor.tesiler truck carrying near* mentst sifairs. " DOE will nstrow the list j ly a half tan of highly rsd!csctive waste down to three sites in February. If we wait

, would arrive at the dump every 90. mis

• much heyond thst. we will have some scri-utes. 2 6 hcurs a day. every day, transform

• ous problems." ,

ing many interstate highways into nuc!est Casks bems used to ship the was e are j- tttorougnfares. designed to mest standstds set 23 yeses

, Earher this month a truck carrying sgo Their ability to withsund cr shes

n-I Navy tor;edce3 overturned at the inter

• der-estrent htg'hway ecodk: ens a bemg change of I 70 sad I 25 in Denver. closing Giau.sli ~q'deidade'd.G " ' ~ ~ * . . ' . * ~

both highw.sys. causing the 1stgest traffic But the Depar a, ment of*Ihergy says peo-pm in Denver's history and underscoring pie are be:oming seed!assly sisr=ed.

how vulnerable the city is to accidents involving hatsrdous materials.

iiigh volumes of spent nitclear fool, the

...a t radioset;ve substst.ca on Earth. 'U

,;; e; ,j/m:-en.

2. d $.; s.c .5  :"S:, O* w probsbly won't be on the road before 2000. g., ,,, r. :.- l That's how long it will tske to select and ps;.  ;=;3 Pets _

construct a dump.

'But decisions about where to locate the ;I;;'.*IR, C0!.0P.A00 dum;. which could have a msjer impact g.3 ;7 ;;qq:r: A"*l *:I'*3 on Colorsdo, are under active consider.

stion.

-The decisiens are being made now.a 2 - 721 W 0 said Fred Sli!!sr of the Environments! 304 l'olicy lastitute in Washington. "Colorsdo $ - l kh

O,2 3 @

• will lose iu say if it dos.sn't get involved  ; ,

no.w " ,

l J  !

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~

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4 Cenver, Colorado .8.ccky *0unta in ' ews  !

9 I

I . u.v. uwrw ass even a lot of activ*  ;

ism in the sees whien seems to frighten people /* said Roy Carrison. 00E*s trans- I potution eniet. "But these shipments have ,

been moved death or injur-for 40 years without ever any "Whetherit's the MX missile nue!aar i no problems o/. It is a fset there have been waste disposal the West is picked on for ,

dents." der t(sn conventions! acci- sites because there's a lot of room out here i and we don't have the political cloot we i Garrison said the incressed volume of sek. D Colo. seed to prohitut it." said Rep. t Ray Kogov- i shipments won't thresten the public, he .

?

contends that the shipping casks are Inde-stnctible. "In Utah. 84 percent of the land is

• i owned by the federal government. If the "Other hazardous materists the kind of record we?e talking about don't have ..

government wanta to deposat waste on land they own, sooner or later they are  :

here." Gar tson said. " Gasoline is consid-going to do it."

ered an acceptable people every year."r*sk and it ki!!s a lot of But Sen. Gary Hart. D Colo esutioned that the not.in.my back i But others say puhlic concer:t is j,u.st!-

fled. won't solve the problem. yard philosophy

" Frankly, as an Amar:can sa,d an elect.  !

"This stu!! isn't seid ce gasoline, it's ed official, I think it is irresponsable for radiosetive waste. And there :ss't a high people to ssy not in the West, or East or i level n:ctear dis;odt site that works any* South or any particular state. This is a '

where in the wor!d r:gst newl* said Steve nationa! problem. I Fr:shman, ger.ers! cour.sel for high.leve " Technology. rscher thsn oolitics. has to radicactive waste with the Texas goverl i nor's office. prevail." he said. "This stuff has to be put i So far, the astica's 76 nuc!ese reactorf act la the place whics has the least politi.

have genersted : .000 tons of wasta. It's cal muscle, but where it is the safest. And '

stored in pools of water at the reactor that dectsion will be msde by the president of the Unsted States.",

sites. But they are filling up.

• Few waste shipments have traveled the  !

Nine siterfor nuc!est waste dumps have .

been preposed. nation's highwap or railways in recent  :

The three in the West are near Moab, years because there is no national dump. <

Utah, on the border of Canyon!sads Na*

From 197*) to 1981, an average of 94 com-tional Pstk: on the U S. government's Han-mercist sad experimental shipments of 5 highly radiosctive waste were trans;cr:ed annes!!

ford reservation aest RJch! sad. Wash.t and

'J ' TheJ.r.

at the Nevads test site 65 miles acrthwest of I.is Vegas. aLishirdf *i.'ipments 'Would?.n- 1 eresse sassificantly oncir s 's'ite is bedt. -

It's sino possible that a temporsry site may be established at a federst ,losta11a. See NUCLEAR. Page 24 L I

tien la idaho Falls. Idaho. -

The Nuclear Wasta Policy Act of 1982 requires that three possrble sites be select

• ed early nett year. A final site is to be i chosen by 1987 sad opened in 1998. But the

legislation is frsught with loopholas and

. contradictions which open the door for .

j,

! years of chslienge.  ;

Although mest nue! ear waste is in the East, Mittsr ar.d others det the site will be .

i In the West, where populattens nearest the  ?

proposed sites sre lower, have less palltl* .

est influence and s e more supputtive of 1 the nuclear industry. }

i 1

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i I j

l.

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d) n' i

':i q 3/26/ 24 Rocky Mountain News Cenver, Colorad: .

I 6

Continued from page 8 release radioactive gases and particles into The Department of Energy estimates that the air. They could oe inhaled or settle on from 350.000 to 450.000 truck shipments or vegetation. soil or water and eventually be

. 35.000 to 45.000 rail shipments would be ingested. People near a radioactive spd1 necessary to transport the wasta produced would absorb radiation through the skin or by the currently operaung nuclear reactors by inhaling it.

over their 30 year lifetimes. Depeading on the amount of exposure. the Up to 120 trucks would be on the road effects can be immediate or latent, such as every day by the year 2000, according to a increased cancers, birth defects or genetic 1981 regnet by the National Academy of mutations.

• Science's Naticnal Research Council. ,

In 1930, the NRC estimated there would "Only one mess up could contaminate the be nearly 2.500 immediate deaths and even Colorado River or close the economic con- inore cancer vicums should such a calamity nection between the Eastern and Western occur at lunch hour in downtown .\tannattan.

i Slop es along I.70 for years." said geolqgist The prospects of an ace: dent are also 1 Rov Young, a consultant to the Sier-a C;ub. de. idly for Coloradans. While fewer lives Trucx ace: dents in general. including mi- would be lost if an accident occurred on I 70 nor incidents. occur at the rate of one every in the mountains, the impact on Color:ido's 400.000 mdes, according to DOT. ski and tour:sm indsstry would be devastat.

But the Nuc! ear Reg *:! story Commission ing.

says the probseility of an accident severe "Both I.70 and I.76 lead from the East to enough to break a cask is similar to that of a Denver where a mittion people are living,"

cask being struck by a meteor - once in said Colorado Port of Ent.7 director Dee several ms!! ion years. Hartman. " Essentially, we have no control

• The casks contain " spent fuel," a some ' over the feds. If they want ta br:ng it -

l what misleading term because it implies through Denver, they will."

' that the fuel has lost its. power. In fact, it is Who should respond to such an accident is mi!! ions of umes more radioactive than an open quesuon. An NRC re:: ort esumated

, fresh fuel. tHat a "model state system" would cost i

Fuel that has been irradiated inside a roughly 33.6 mi!! ion. " States shouldn't have nuc! ear reactor for several years is consid. to foot that bill." contends Texas' Frishman.

cred spent whe : the ent:ched uranium it But federal responsibility for emergency contai .s no longer timens ;roperly.

When it is removed, it must be stored respor.se offers litt!e comtart to Denver.

"They may say you don't need to train .'

j under water to cool it and contain the radia. local people becaus,e their people are always

, uon. on call, but we saw how we!! that worked Even after an unshielded fuel assembly with the torpedo incident." said Rep. Patri-has been out of a reactor for six months,its cia Schroeder, D Colo., who was highly criti-temperature exceeds too degrees Fahren. cal of the government's response to that heit. Standing one yard away, a person accident.

would receive a lethal dose of radiation in to Frtshman is ca!!!ng for a study of the risk 1 seconds. . .along various routes. He and others com-In an acetdent, a damaged cask could plain that responsibility for safely transport.

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P. w ing the waste is eerng icst in a eureaucratie - Ilart said the Raagsn administration had pl shuffle. dodged its responsibility to implement the 4 E r*

DOE transporuuan chief Roy Carrison Nuciaar Waste Policy Act. "There is plenty said his department's policy requires carri- of !atitude for the states to deal with it " he f.,J s

ers to follow the regulations of the Depart- said. "If the federst agencies wanted this act gff ment of Trsasporutton. to work, they would sit cown with the states DOT's regulat:ca H5!.164 direcu nuclear and make it work." N5 snioments to be trsesported on intersute 9*6 A number of states, including Utah, Ne-higsways, taking bypass routes arcund etties braska, Wisconsin Stinnesota and Washing-g wnere feasible and available. ton, have tried to get mapping information S.t, COT's enforcement of other har.:rdous developed for DOE at Oak Ridge National P-mater:als shipping regulat: ens. is not good.

For example. the truck carrytng tor;edes I.aboratortes in Tennessee. N that overturned in Denver should have by-Up to now DOE has reststed those e!!cr'.s.

DOE"s transporut2 ort head Carrison said Y

's %

passed the c:ty, but dicn't.

there is "some movement to accommodate More than 200 locs! and sute jur.sdictions the states' requests."

p have banned or restrie:ed the transport of 0 Colorado hasn't asked for the informst!on.

radiuactive waste thrcugh their communi. Denver intends to ask the state to make a ties. formal request. said Denver's Massaro. [E' DOT has muved to pre-empt seversi such I.aonard S!csky, side to Cov. Richard D. FE a.

or:11cs.. css. But resistsace continues to I.amm said the state is "follcwing the DOE build. Stichigsn passed a law pronibiting placntag process."' p*T r i.

transport of nuc!ese waste in casks witica On the mapping question. Stosky said Col-hadit been physicia!!y tested. Since none crado is "trying to track down that process.

I*

used in the United States has undergene such "We need to see*what they have and what i.

tests. the Stichigan law effectively bans au- it means. The current DOE plan says that h t-clear shipments. routes would be selected by commercis! Q5.

"The real issua." said Fr:shman "Is that shippers. Any mortel that predieu where ='

sutes ..eed infor=sti:n about transportation shipmenu would go is of !!mited utility. We I ."

so they can respo..d properly and be in, don't know yet if they would go by rail or .

volved in the process. Up to now DOE has highway." c k

been unwilling and unable to provide us Trucks car ying any hazardous products, sufficient information." includir.g radioactive waste, are already t ', '

Colorado and Denver barely have begun prohibited from traveling through the Eisen-considering restrictive laws aimed at nucle- hower Tunnel on !40. Instead, they are rout-W'e g-at transport and they have been slow to ask ed over I.ovelse.d Pass, which, Port of Ent.y  :-

for such information. director Hartman notas,is treacherous even "-,

"Clesrly, Colorado should do what it can on a good dsy. -

V to pass strong laws on routing and safety "Solee're having these trucks go over a r pr:outions." said Schroeder. "When states winding, curving road supposedly because nave pa sed 1sws, the govemment has said it's safer." Hartman said. "Is that good? I B p

it's been pre-empted. . . . They'** used that don't res!!y want nuclear waste going over to keep eve.jbody out of it."  !.oveland Pass or the tunnel

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'CE .~ ! C ?t ,.- March 12, 1985 l

'10Cw.E.TmG .5 iE4VW Ect.NCM Secretary of the Commission U.S. Nuclear Regulatory Commission .

Attention: Docketing and Service Branch Public Document Room 1717 H Street, N.W.

Washington, D.C. 20555

Dear Mr. Secretary:

The State of Connecticut offers the following comments concerning the proposed rule for " Disposal of High-Level Radioactive Waste in Geologic Repositories; Amendments to Licensing Procedures" as published in the January 13, 1985 '

issue of the Federal Register, Vol. 50, No. 11.

The proposed federal rule appears to restrict the role, of the public in determining site suitability of high-level nuclear waste repositories. The proposed rules, which would amend existing procedures, would eliminate the requirement for a draft site characteristic analysis, thereby circumventing early public comment. However, Connecticut's experience with siting locally unwanted land uses (LULU's) has benefitted from

, generous participation procedures.

The concept of limiting public participation is also contradicted by several recent theories published on this subject, including " Siting Hazardous Waste Facilities" by Dave Morell and Christopher Maggrian (1982',' Ballinger Publishing, Cambridge, Mass.), " Siting Hazardous Waste.

Management Facilities" (1983, the Conservation Foundation, chemical Manufacturers Association, National Audubon Society);

and " Facility Siting and Public Opposition" by Lawrence Bacow, Michael O' Hare, and Debra Sanderson (1983, VanNostrand Rhinehold, New York). These publications stress the point that no siting attempt can be successful, in the sense of minimizing community and personal disruption while assuring a fair and timely decision, unless all parties at interest are afforded access to complete information from the very beginning. ,

jkl&;!Y i ll$0S S -

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.cs.CUTIVE CHAMBERS -

• dARTFORD, CONNECTICUT s

Secretary to the Commission March 12, 1985 . i ,

Page 2 l

, t Even though the subject Waste Siting Act does not require  :

that a draft environmental assessment be made available for l public comment, the DOE intends to do so according to the i Federal Register Notice. If they intend to do so, the regulations f should clearly so state. Although the present administration  ;

may be sincere in its intent, the intent of future administrations  !

cannot be assumed. Any means to encourage adequate information l flow at all stages of such a project will enhance the likelihood j of an error free and acceptable decision. ,

I The experience of.the connecticut Siting Council in  ;

siting decisions regarding any " unwanted" facility indicates l 4 that restrictions on public participation in such decision,  !

! disguised as streamlined regulations, prove counterproductive.  !

Any time or money saved early on will almost certainly be lost  !

to more vigorous and effective public opposition and court l challenges at later stages of a project. In fact, a recent  !

study by Charles River Associates. a consulting firm in Boston, ,

Massachusetts, indicates that delays late in a construction  !

project are far more costly than those encountered at early stages.  !

l Thank you for this opportunity to review and comunent on t

this proposed rule. l t

Sincerely,  !

Od

! GLO~ l WILLIAM A. O'NEILL  !

Governor  !

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' SCIENTISTS AND ENGINEERS FOR SECttRE ENERGY. INC.

.au- m :eeue 370 Seventh . Avenue - Suite 500- New York. New York iecid - 4:21 $40 - 6595 n . - r-Miro .R. Todorovich - Executtic Dtrector 7

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• -- See a 1- D M 0;: M -

M,'J,T*' c%. U.S.NuclearRegulatorfCommission bMof8'J Washington, DC 20555

• mesas - i b".,E:ll" a- RE: 10 CFR Part 60 U:".' ",.'"'?" Disposal of High-Level c"."".fet"::',. Radioactive Waste in E"::' *:l"lTe Geologic Repoaitoeies:

2:"L %. a Amendments to Licensing W "::::,p Procedures (50 FR 2579, 5.c, =*,, ,E

. January 17, 1985) 8.se.se 1. C.h (c.a. *

Dear Mr. Chilk:

Ellll"d M

~"

mo Scientists and Engineers for Secure Energy has

n. a o Oc."""~* reviewed the proposed rule amending licensing procedures

"'" 7= '."."""

Ta u.,"."':~' for high-level radioactive waste repositories and wishes U r .( AA R.m M.d d.e C4".,,. to comn;end the Nuclear Regulatory Commission and the

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$Z Department of Energy for their sensitivity in dealing 4---p-Umm .4 r -

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la4 with this important step in the nuclear fuel cycle.

"s "'i".*J.,.

Wr.h n

While the passsage of the Nuclear Waste Policy Act c a.,v., o -

2ll" ,E:'l:: ,, of 1982 by Congress established a definite Federal u"cT,.

!". '~.,, , policy for waste disposa1, it also presented the ML ., r ,

py,,t,-A Commission with the task of proposing revisions to pre-tes dT.Aw'

$[ viously adopted procedures to reflect the provision of "v{m the Waste Policy Act and with the opportunity to take

-c L"." into consideration scientific experhnce gained in the oyTw".2"",e g Ei.~'"

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Paceteta Cogts Ross -Public Mfates Director . 2on Eye Screet NW- Suits 4o . Yoshington D.C. 2 coo 6 . (2o2) 223 -336:

R.Lestic Dugan.Ph.D -Western Representative

• 64 Castro Screet. San Francisco, cattfornia 94t:4.(485 I 552-n25

Samuol J. Chilk March 15, 1985

• 4 last three years. SE2 analyzed the revised procedures with f regard to:

(a) the public's ability to comment; i

(b) the implementation of the Commission's statutory 4 duties; and (c) the timely development and implementation of otherwise ,

safe high-level radioactive waste repositories.

We note that public input and review is mandated by the i

s Waste Policy Act and that under the proposed rules the citizens i

i in the states being considered for nomination as repositories j

will, on an ongoing basis, be given ample opportunity to comment ,

on the proposed plans. In fact, under the NBC/ DOE Procedural  !

) Agreement, " States and Indian ~ tribes will have an opportunity to be informed routinely concerning the information made available ,

to NRC and NRC's comment thereon and to attend NRC/ DOE technical  !

l i

} meetings"1 and further, "to bring their concerns to the atten- I tion of the NRC.= 2 The Waste Policy Act authorizes DOE to fund  !

a variety of State activities facilitating public review and com-ment and requires DOE to report on the site characterization )

i i i

1F ederal Register, Vol. 50, No.12, Thursday, January 17, 1985.

! Pages 2583-84.

2 Ibid, page 2584.

• I

Scaual J. Chilk - 3- March 15, 1985 activities at least twice a year to the Commission and to State and tribal of ficials.

The Waste Policy Act places primary responsibility on DOE for investigating the suitability of several areas as waste repositories. We find the procedures enumerated in these pro-1 posed rules facilitate timely development of repository sites i

because they have been designed to allow the investigation,

! review and comment phases to be carried out concurrently and in 4

parallel rather than consecutively thereby compressing the period i

of time involved without cutting short local input or jeop- l ardizing the resolution of safety issues.  !'

i Seeing meaningful revisions of NRC's procedures as moves 3

{

toward leaner, better and more efficient government, SE2 can not l agree with Cosaissioner Asselstine's views because they. would at

{

times add a layer of duplication and at others lengthen the f

process unnecessarily. !t Sincerely, .[

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l

%S< M TkJ D l t

! i Miro M. Todorovich t i , Executive Director i

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NATIONAL CONGRESS OF AMERICANINDLANS 4- E e4c if PS:07 March 18, 19Bb..' :.. :. If . c.!

axacutivs ornecion 3p;. n 3 sa .n.

Cn.na v.nnese a

& Cr.ee axactmvs comunTau  :

,,,,,,,,,,, The Honorable Samuel Chilk gc a8j,,

a Secretary of the Commission ,,

U.S. Nuclear Regulatory Commissio,n,,

e r= Washington, D.C. 20555 '

=ceen em or Ce ASCOstessee seCAETAAY De.e.M.s.,

co-==*

• caaa+ . RE: Comment on Procosed Change to m asunsa 10 CFR 60, Part 60 ,

c3 . sw, AREA vtCE PRSS40ENTS assacesmaan Bv Hand EU'."s, , -

atsvouenousaan

• • 5*

Dear Mr. Secretary:

AssACAmsto AAEA

->-- This resconds to the request for comment on rule

[,**,, changes to 10 CFR 60, Part 60, proposed by the

- s-Nuclear Regulatory Commission (NRC) (Federal Register, Vol. 50, No. 12, January 17, 1985).

'",,"",'.'.'"" This comment is offered by the National Congress-

""'"**a of American Indians (NCAI) . The NCAI, established L"",', ,%s aan in 1944 to promote Indian treaty, traditional,

~~ cultural and property rights, is the oldest and

===oce 4au largest national membership organization of American C #* Indian and Alaska Native governments and people.

fecstTM4 ASTERN AAEA O^f1" Although the NCAI is concerned about other proposals

....... for change to 10 CFR 60, our foremost objection y;l',a"a** regards the proposal to change Subpart A, Section

, , _ , , , 60.2, Definitions, wherein the terms " Indian Tribe" D a n=a.

and " Tribal organization" would be replaced by the ,

carm "affected Indian tribe," as defined in the l Mc.n a,m'."'*

eo u,.,- ^*" Nuclear Wasta Policy Act of 1982 (NWPA).

T,,',,',""^*" We strongly object to this proposed change because <

u.a it would serve to limit participation by an already j

$ ,, $ narrow category of Indian Tribes in the NRC high-  ;

4 c- m level waste geologic repository licensing procedures.

R. t N The proposed change would preclude participation by

%Q4s' N -

tribally-sanctioned organizations which may be re-quested by more than one tribal government in the

% h.% interest of cost-saving and information-sharing and ,

'* $ < technical assistance. l

-g- ((* {g32g242950318 60 SOFR2579 PDR 4Q 804 D STREET. N.E.

• WASHINGTON. D.C. 20002 e CO2) 546 9404 1"%42 AcknowW by card.. .MRt 19_1915]

Qs- ............7 l l

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l P NATIONAL' CONGRESS OF AMERICAN INDIANS s1 4a y' t

Letter - NRC Secretarv Chilk

[ Re: Comment on Proposed Change to 10 CFR 60 axacums oenscion March 18, 1985 '

h*aya,", = Page Two ,

sxecuma consamrras m esent Most importantly, the proposed change would preclude,

'",f.*,,"n$",,

o the participation of Tribes that are not at this time n nervie =e,sen, "affected tribes" under the NWPA. There.are only O'*,'*,,,,,c,,,,,

, three Tribes at present that have petitioned for and

,,,,,,,,,,,,,,,,,, , received "affected" status. Most Tribes in the first ga'lr,,,,,,,,,,, and second repository States have not petitioned for i affected' status , and some,may not be aware that i M

• • • """'*"'8*"

they are potentially affected. To ccrrect this infor-

mation gap, our organization has a contract with the

^"**'"***""

i Department of Energy to develop and disseminate infor-

! C L*"'" mation on the NWPA and related issues to Tribes that j ***"""*"'8*"'

could be 'affected by the siting and trans.cortation

C.',",",,"""^**^ issues. Since the federal government doe's 'not know\ s l a.

• where the sites, including the MRS site, or the trans-

! --"-- aasa portation routes will be,4the NRC should not preclude i

• JrY

=

participation by Tribes that may be affected by "these i smunesansa issues prospectively, buc~are not designated as af-

2"l",*."* . , r, , faetad" now. '

l J4H eau Aasa '

, jg,,';",,,, We are concerned that the NRC, by adopting the poor

[ ,,, ea ouenaea draftsmanship of the NWPA, may further limit partici-pation by Tribes that have dand and usage rights that C,, ,,,,, are not the subject of" congressionally-ratified  ;~

.,e o treaties. Section 2(2),of the NWPA mentions both S'*""

federally defined possessory or usage rights and con-i

. gressionally-ratified treaties, the latter being one

, C. ^a"a sa. "" ^"** method of establishing reservation boundaries and -;

, '"o* ag g Indian country. Indian country is defined in Section t '

i o .a , ll51(a) of 18 U.S.C. and the Court has interpreted

aow uaeaana it to mean include all reservation lands, with the  ;

2ll"J' ;ll"" term reservation being a term of art meaning all Indian '

i s.ca mo.nea lands which are subject to restrictions against aliena '

i C*,4" ,, _ tion, notwithstanding the issuance of any patent. In j ,,,,,,,,,,,,,,,,, 1871, in an appropriations act, Congress restricted as,=.a==

" tes future treaty-making with Indian Nations and Tribes. \

Since that time, nearly 30 million acres have been '

lL federally definsd as reservations or Indian country, b l through congressional settlements, Executive Orders,

! administrative procedures and court decisions. Also  :

since that time, Congress has passed numerous acts

! reco5nizing the property and usage rights of Tribes,

• x A .

e s

! l I

i 804 D STREET. N.E.

• WASHINGTON. D.C. 20002 * (202) 546 9404 >

! f t

_ _ - _ - . _ - - . - - , _ - _ _ - _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ - ~ - _ _ _

I -

h ANATIONAL CONGRESS OF AMERICAN hTDIANS 4a

V Letter - NRC Secretarv Chilk _ __

axacumassacron Re: Conunent on Proposed Change to 10 CFR 60

s ..,. March 18, 1985 t *'""""*

• ca" Page Three i axacuma commestrum E"5= '"""""'""

' including the National Environmental Policy Act,

, the American Indian Religious Freedom Act and the "u " r T '""'**"* Archaeological Resources Protection Act, all of which recognize Tribes, their rights and property, W " " '"'

irrespective of their establishment method. Since ,

o**==

• ca=a=== the NRC rule and the NWPA address, in the first

! '"' a

.a*",,",,a j instance, property that would be affected by

oia- =- r , nuclear waste, the focus here should be on the i aasawes ne eses character of that property and related jurisdic- .

assanssaaasa

• • C*"s, cional systems, rather than on the precise manner j c'.'.". in which.they were federally defined or recognized.

4.e,.

h**",4 For the present, we urge that the NRC leave the

. . , definitions as they are, cohsidering future changes i

g,y as the siting and transportation issues are more

.,,,,1 focused and as Tribes are at least as informed as .

gg 7, are the States today.

t  %",,.." ^"'" As an overall comment, we would appreciate changes

! ****"*" in 10 CFR 60, and all NRC materials, to write " Tribe (s)"

l , . . , , , with a capital "T," as " State (s)" is written with a

" "a ~ ** capital "S." Our guide for this is the initial

ausse*esanaa governing document of the United States, which provides

[ ** O" " in the Commerce Clause that Congress is authorized to l

nonweaersamaasa regulate commerce "with foreign Nations, and among the l s".",,,",,..",,,,",' several States, and with the Indian Tribes" (U.S.

l

, e, .aas.a Constitution, Article 1, Section 8, Clause 3).

ri w,,, . .

l d ,,,, Thank you for your serious .censideration of our gg comment.

g ,.a.sa Sincerely, sourweaman amaa N WM N" __h N

~

i Suzan Shown Harjo I

, Executive Director l

i

\ 1 804 D STREET. N.E. . WASHINGTON D.C. 2000* o (202) 546 9404 ,

4 s

,. _ - _ . - _ . . - ._,.----~..-,.-----m. . - - - - - - - -

Natural Resources Defense Council,Inc.

1350 NEW YORK AVENUE. N.W. ,' * ;. c . . .

SUITE 300

• WASHINGTON, D.C. 20005 . . .

783700 8 'O pc.g 20 New York Offe, West,rn Ofice 533 EAST (SND$TREET ,, , , 25 K,E A RM Y.lTR E ET l N Ew Yoks. N.Y. s o:68

949-o049 March 19, 1985 "$h"N?' D54an-6 68

• • 5 94' 8 1

M#

Samuel J. Chilk BM.E l -

)

Secretary U.S. Nuclear Regulatory Commission (gb pg Jgy/ .

Washington, D.C. 20555 Attention: Docketing and Service Branch

Dear Mr. Chilk:

The Natural Resources Defense Council, Inc. (NRDC) submits the following comments on the Nuclear Regulatory Commission's proposed rule regarding " Disposal of High-Level Radioactive Waste in Geologic Repositories; Amendments to Licensing Procedures" (50 Fed, Reg. 2579, January 17, 1985).

NRDC welcomes this opportunity to respond to the Commission's proposed revisions of 10 C.F.R. Part 60. It is our view, however, that by eliminating the requirements in S 60.11 for the commission review of the Department of Energy's (DOE) site selection process and the issuance for public comment of a draft site characterization analysis, the Commission _.

misapprehends the appropriate role it is to play in the selection -

and eventual construction and operation of a repository.

Furthermore, many of the reasons given by the Commission for these revisions are based on its interpretation of various sections of the Nuclear Waste Policy Act which are inapplicable to a defense-only repository. Our comments focus primarily on the need for Commission review of DOE's site selection process  !

and for issuance of a draf t site characterization analysis. We wish to underscore, however, the particular need for these two procedural steps in connection with the licensing of a defense- -

only repository.

New England Ogce: 8 0 BOSTON 5 POST ROAD

• SUDBURY,MA. 017*6

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' t I. The Commission Should and Must Review the DOE Site Selection Process The proposed rule sets forth two justifications for'

, eliminating the Commission's review of site selection information now required by 5 60.11 -- that there is no statutory authority l for such a review, and that such a review would come too late in l the process to be useful. Concerning the first justification, - I the Commission reasons that the site selection information does f not belong in the site characterization report (renamed in these  !

i revisions and hereafter referred to as the site characterization l I

plan) , since the Nuclear Waste Policy Act (NWPA) specifically  !

includes a discussion of these items in the environmental l assessments (EAs). The Commission, however, apparently does not f plan to review this infoemation in the draft or final environmental assessments. According to the Commission, there is l

simply a lack of authority for it to engage in any form of review I of DOE's site selection process.

l The second justification for the' proposed revision is that, with the passage of the NWPA,Ithe site characterization plan is  ;

not required until after the sites under consideration have

{

already been subject to extensive scrutiny. The proposal

(

concludes, although the point is not self-evident, that

_l Commission review of the site selection process would be  !

superfluous in light of the information already gathered about [

each site.

i Thess comments will address each of these justifications in  !

turn. As,a preliminary matt'er, however, it is our basic position. [

that the Commission should undertake a continuing comparative  !

review of the sites throughout the site selection process. In f this way-the Commission can most effectively exercise its  !

oversight and decisionmaking responsibilities concerning the siting of a repository. Although it would be preferable for the  !

Commission to review ' site selection information in the site t

_ __. 6 .. . . _ . . . - , . - . _ , _ _ . . . _ . _ _ _ - _ _ _ _ _ . . _ _ , _

. l l

characterization plan rather than in the EAs, the form of the j

, review is not as important as the fact that such review takes  !

I place. These comments, which focus on the necessity for Commission review of site selection information contained in the site characterization plan, can also be applied in large part to tne review of site selection information contained in the EAs.

A. The Commission Has the Statutory Authority and Responsibility to Review Site Selection Information In our view, a comparison and evaluation by the Commission j of the sites to be characterized is not discretionary. Rather, the Commission has the authority and responsibility to conduct l

such a review under the Nuclear Waste Policy Act, the Energy Reorganization Act, the Atomic Energy Act, and the National Environmental Policy Act. Other portions of the Commission's Part 60 regulations, which are not the subject of the current l proposed revision, also make site selection review advisable.

l. Nuclear Waste Policy Act The Commission is clearly reluctant to engage in the comparative evaluation of sites at any stage in the site l selection process. In explaining this reluctance, the Commission sets out some of its responsibilities under the Nuclear Waste Policy Act to emphasize that no specific provision provides for Commission review of site selection information. In our view, '

although the NNPA does not specifically require Commission site-selection review, or for that matter environmental assessment review, the structure of the Act and the Commission's extensive participation at all other stages of the process logically require the Commission to oversee DOE's site selection decisions. The process the Nuclear Waste Policy Act establishes, from the identification of potential sites, to nomination, to characterization, and to eventual . site selection, is a single site' selection process. This continued selection from among .-

r

._ . _ . _ _ _ _ _ _ _ . . .. _.._..m.. .

1 l

alternatives is the core of the repository siting process. -

Consequently, NRDC believes it is essential for the Commission to be involved in the decisionmaking as site alternatives are eliminated.

Moreover, contrary to assertions in the proposed rule,  ;

, nothing in the Nuclear Waste Policy Act " calls for" site selection information to be excluded from the site ,

characterization plan. 50 Fed. Reo. 2582, January 17, 1985. To the contrary, while the NNPA specifically requires inclusion of such information in the EAs and does not require its inclusion in the site characterization plan, the Act also provides that the Commission may require DOE to include in the site characterization plan, "any other information" it deems necessary. S ll3 (b) (1) (A) (v) . Clearlyf in light of this broad discretion given the Commission to require the inclusion of any information it deems necessary, the fact that site selection l information is not specifically named in 5 ll3 (b) does not mean-that it is excluded, as the Commission implies. Furthermore", the l Commission's failure to review similar information in the draft environmental assessments, demands continued inclusion of this information in the site characterization plan so as not to -

compound the error.

(

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As a separate matter; Section 121 of the Nuclear Waste l

Policy Act requires the Environmental Protection Agency -(EPA) to develop general requirements needed to assure protection of public health and the environment from management and disposal of high-level wastes. Once the EPA issues final standards, Section 121 of the NNPA requires the Commission to revise its Part 60 regulations to become consistent with those standards.

The most recent working draft of EPA's standards (to'be

, codified in 40 C.F.R. Part 191) establishes seven " assurance l requirements" that are designed to provide confidence that a repository will meet the long-term containment requirements. One

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of these " assurance requirements" provides that the Commission undertake a comparative evaluation of the three sites in order to determine which of the three sites' natural properties provides better isolation of the wastes. EPA intends that this evaluation play a significant role in choosing a site; consequently, the Commission's refusal to comment "upon the relative merits of one site against another" (50 Fed. Req. at 2583) conflicts with this requirement.

It is true that, as more detailed information is gathered j during site characterization activities, the determination called

! for in 5 191.14 (e) can be made with greater and greater accuracy. However, since the Commission claims that submission l

of the site characterization plan begins its formal, substantive review, the time to make preliminary determinations, based on the extensive information the Commission admits is already known about a site, is in its comment on the site characterization plan. Such determinations would assist DOE in carrying out its site characterization activities, and enable the Commission to identify areas of special concern within any one site, as well as alert it to issues affecting repository safety common to all three sites.

~

2. The Energy Reorganization Act Even if the Nuclear Waste Policy Act does not require the .

Commission to review DOE's site selection process, this does not j mean, as the Commission seems to conclude, that it is necessarily precluded from such review. Section 202(3) & (4) of the Energy Reorganization Act establishes the Commission's licensing and regulatory authority over all high-level nuclear waste repositories. The NWPA reconfirms this in S ll4 (e) . This authority enables the Commission to regulate DOE activities prior to construction since, in t'he words of the Commission, " DOE activities that take place before an application is filed and may L_ ____ _ _ _ _ _ _ . . .. _ _ . . , .- . _ _ _ _ _ _ _ _ _ _ _ _ _ . . . - _ . . . _

affect the long-term safety of the repository obviously may preclude receipt of a construction authorization." 46 Fed. Req .

at 13971.

This earlier commission interpretation of the scope of 5 202, in the preamble to the 1981 final rule, contrasts markedly with the present view of the Commission that there are some areas in the siting process in which it cannot participate. In our view, Section 202 evinces an active Commission involvement in all aspects of repository development, including final site selection. By not reviewing' site selection information wherever it may be found, the Commission is impermissibily limiting the scope of its duties.

3. The Atomic Energy Act .

In addition to preserving the Commission's authority to license repositories under the Energy Reorganization Act, Section 114 (e) of the NWPA also recognizes the Commission's independent authority to protect public health and safety under the Atomic Energy Act. NRDC believes that the refusal of the Commission to compare sites by reviewing site selection information compromises this responsibility. As noted earlier, the NNPA establishes a process by which potential sites are eliminated from -

consideration in stages. The methodology used to eliminate these alternatives, whether the number of sites is being reduced from 9 -

to 5, or from 5 to 3, or from 3 to 1, is obviously the essence of the Act. The proposed revision denies the Commission the ability to influence, in the most direct, basic way, DOE's site selection decisions. As recognized by all concerned, the geological features of a repository are by far the most important factor in ensuring safe isolation of high-level wastes. In our view, therefore, the refusal of the Commission to play a central role l in a comparative analysis of sites is an abdication of its public health and safety responsibilities.

- - . - , , - - - . , . . . - - - - , . , ~ - - - , . _ _ . . . _ , , ._ . - , .

4. The National Environmental Policy Act The National Environmental Policy Act (NEPA) also mandates

direct Commission input into DOE's site selection process. In fact, the Commission's original justification for the Part 60 rule was compliance with NEPA. 46 Fed. Req. at 13922. The Commission has offered no explanation for why this essential ingredient of the Commission's NEPA compliance, namely the evaluation of alternatives, is no longer valid; it states merely that a Part 51 rulemaking will come later. NRDC believes that, because Part 60 rests in part on NEPA authority, NRDC and other interested parties should be allowed to see and comment on those Part 51 revisions while considering the revisions of Part 60.

In the meantime, NRDC can draw only one conclusion from the Commission's refusal to avail itself of opportunities to review DOE site selection and to engage in comparative analysis of sites in both the EAs and site characterization plans -- that the commission has decided that such review is not its appropriate role. However, the Commission cannot' escape its responsibilities by refusing to recognize them. Consideration of alternatives is necessary for the simple reason that adverse environmental i impacts of site activities can be avoided or reduced through proper site selection. Thus, the Commission's required role in i

the siting process of a repository is not only merely to ascertain whether the repository meets the technical criteria, j guidelines, and standards established by DOE, NRC, and EPA, but 1

also to use its expertise to continually evaluate and compare the

( range of choices as the list of sites is winnowed down.

l S. Existing 10 C.F.R. Part 60 Regulations It should be noted that an ongoing evaluation of DOE's site selection decisions will better enable the Commission to make i reasoned decisions regarding construction authorization and license applications. Eventually the Commission will have to l ,

l * * ,

l

{

l evaluate alternatives in determining whether to issue a  ;

construction authorization (S 60.31(c)) and whether to issue a )

license (S 60.41(d)) . Although the relationships between the l sites will change as more information is received about each l site, the Commission should not wait until site characterization  !

is complete before beginning such a review. .!

Failure to engage in a comparative analysis based on current i knowledge will result in the amount and complexity of the information simply overwhelming the Commission when it finally has to evaluate alternatives as required in S 60.31 and }

S 60.41. Issues should instead be addressed at the earliest i possible time. This would allow the Commission to make tentative )

judgments, and would alert it to any change in circumstances. l Consequently, it is not only appropriate but highly desirable for , f the Commission to keep itself, DOE and the public informed l regarding its current views on the comparative evaluation of  !

sites. [

l

, B. Commission Review of Site Selection Information is Appropriate at the Site Characterization Plan Stage  ;

The second justification.the Commission offers for refusing .

to review site selection information is that such a review would l come too late in the process. In making this claim, the ,

]

Commission fails to recognize the purpose of review of site selection information, which is to provide Commission input into l I

DOE site selection decisions made at various stages of the  ;

process. By not reviewing site selection information in the draft environmental assessments, the Commission has missed a  !

t critical opportunity to make a comparative evaluation of the ,

potential sites. Thus, DOE's determination of which sites to {

j nominate, and which sites to recommend to the President, will be l made without the Commission's independent evaluation of DOE's  !

l tentative decisions. The Commission's next' formal opportunity to -

comment on site selection decisions is in its site  ;

i

9_

characterization analysis. The Comission should direct this analysis toward the critical step of choosing one site.

II. The Commission Should Retain the Part 60 Provision Requiring the Issuance of a Draft Site Chacterization Analysis Ifor Public Comment NRDC strongly supports the retention of the provision in Part 60 that requires issuance of a draf t site characterization analysis for public comment. Issuance of a draft site characterization analysis will involve the public in the decisionmaking process and assist the Commission in preparing its required analysis. 44' Fed. Req. at 70409. NRDC believes that formal public input into the Commission's analysis will force the Commission to scrutinize more carefully , DOE's site characterization plan, which will result in a more reasoned analysis by the Commission. In contrast, removing the public comment requirement will emasculate the Commission's role as an independent regulator of DOE's site characterization plan. '

The Commission argues that a public comment period is not appropriate because the Commission will already be aware of all the relevant issues and public concerns. Issue identification, however, is not as important as an opportunity for the public to -

comment upon the adequacy of the Commission's analysis, and its characerization of the issuss. The process would force the Commission to take into account concerns of the public, examine more closely its own assertions, and, perhaps most important, act as an intermediary between DOE and the public. These will occur only if a draft site characterization analysis is issued for public comment. -

The Commission claims that effective opportunities exist for i States, Indian . tribes and the public to influence the site j characterization process through formal and informal comment t

I during the siting process, the DOE /NRC Procedural Agreement, and i

i i

l i

the Section 60.18 (f) process. First, although these methods are j

' used to communicate to the Commission and to some extent to l inform interested parties of the Commission's activities, none l

provide that the Commission must actually address issues j expressed to it. As the Commission knows, it is one thing to be i

" aware" of public concerns, it is another to have to respond to f

them. There is also no assurance that the concerns of States,  !

Indian tribes or the public will be the concerns of the  !

Commission, thus expressing these concerns to the Commission does l not provide any reasonable assurance that they will have any  !

l influence on DOE's site characterization activities. Secondly, r l

l neither the comments to DOE on its site characterization plan.nor l

the informal constants to the Commission will be specifically l directed at the Commission's analysis of the site l

characterization plan.  !

I As for the Procedural Agreement, although the Connaission may view it as the principal mechanism for evaluating site i characterization, the Agreement is less concerned with providing for public input and more concerned with NRC/ DOE interactions. l While NRDC is in favor of the purposes underlying the Agreement, f and believes it can be used effectively to ensure better i communication between the the Commission and DOE, the Procedural i

Agreement simply does not provide any means for - ensuring (

l Commission consideration of State, Indian tribes, or public I

concerns. There is no comparison between a Procedural Agreement [

that provides for notification to States and Indian tribes of  !

techaical meetings, which the public may attend as observers, and -

l i

i an open public comment period on a draft site characterization l

analysis. If the Commission is actually going to rely on the i Agreement's procedures as providing an efficacious means for DOE i

and the Commission to obtain input on site characterization, then ,

the least the Commission can do.is to make the public  !

participation provisions less inadequate by proviAing for l

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notification to the public of the meetings and responding to public discussion and comment in a dormal manner.

Finally, Section 60.18 (f) requires the Director merely to invite comments on the site characterization plan. Not only is the Director not required to respond to the comments, but in all likelihood site characterization will have begun bernre the comments are even read.

NRDC does not agree with the Commission's contention that l comment and review on a draft site characerization would be at odds with the ongoing dynamic review process it envisions. The i Commission implies that comment on a draft site characterization analysis would " freeze" the entire review process. Though NRDC supports the Commission's notion of an ongoing evaluative process, NRDC also supports establishing a window through which -

~

all the accumulated knowledge can be viewed at once and the interrelatedness of the issues involved in site characterization examined. If the Commission is suggesting that any analysis will have to deal with only the information available at the time, NRDC agrees. There is no reason, however , why this analysis cannot be meaningful. Site characterization is not an " arbitrary point in time," but a critical stage in the process, which is why the NWPA requires DOE to issue its site characterization  :

plans for comment and to hold hearings near the site,'and why the  !

Commission must comment on DOE's plan. Any freeze of the I analysis process would in fact be difficult, since during the {

period of comment and reciew the Commissicn and DOE would  !

presumably be exchanging information under the terms of the Procedural Agreement, and during site characterization DOE is  !

required by both the NWPA and the Commission to submit periodic  ;

i updates on its characterization activities. .;

NRDC strongly disagrees with any notion that the scheduling provisions.of the Nuclear Waste Policy Act require that the draf t

~

site characterization analysis not be issued for public

, .. _ - ,_.,-- - , -- , - - -. - r- - - - - - - .

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I comment. Considering the infrequency with which actions have up l to now met the deadlines established in the NWPA, we find very  ;

curious the Commission's emphasis on the 3 to 4 month period it f would take to receive comments and respond to them. Also, as the f

Conmiission is aware, the original proposed rule specifically j found that a public comment period could be met "without undue f

schedule delays." 44 Fed. Reg. at 70409. If there were no reason to receive comments on a draft site characterization {

analysis, NRDC agrees that it would be desirable for the Commission to " complete its review and provide comments to f DOE...in a prompt fashion." As discussed above, however, there  !

are very important reasons that comments should be received and  !

the Commission should not neglect them.

[

Respectfully submitted, l F ::W a- -

B'arbara A. Finainore i i Charles E. Magraw  ;

Natural Resources Defense Council  !

1350 New York Avenue N.W., Suite 300  !

Washington, D.C. 20005 '

(202) 783-7800 ,,

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. 7~ ~ 0 2:35 Re: Proposed rule - Eigh Wash, DC 20555 level waste discosal Fed Reg - J an 17-85, p 2579 ATT: DCG.ETING & SERVICft,i: rah 41. ..r. + r

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,, .; y i h 'ta Gentlemen =

We corrend your sta ter.er.t (nege 2583, col 1) that ever though the

" Waste Policy Act makes to nrovision for the Corrission to corrent to LOE on its ervironrental asseserents...it is revertheless the intertion of the Comrissjon to review and corrett on the environ-rettal asse ssmerts, as well as o the r technical docurents. . . "

This is too irrortant an issue to be ircairedby legal hair-splitting over who does whet, and to which.

Bette r to have many controls, ard reviews by the public at every sten of the way, then tot enough.

After all, DGE e.rd ERC will be urenaring designs fer renositories interded to last for thousands of yeers. - So, additional corths, or even ye ars, snett in planning and review should r ot be considered time wasted.

We also suggest this is too irrortant an issue to be entrusted ex-clusively to state or local officicle. Beyond having vote-ge.tting versonali tie s, too many of these folks have the IQ of a groundhog.

hE: CCialSSILia.h ASSEhSTE E'S ADDITICI;Id VIZnS:

1 - We con cur.

2 - se also suggest thet 60.18(c) be re-worded to read: " ...the Director shell invite and consider the views of irterested cerscus on DLL's site characterizstion plans erd shall review

...etcp (By the way, who is this Directer?)

l 3 - We corrend yctr decision ir 60.18(f) to allow a period of "not less than 90 days" for nublic ccnrent.

4- Etnaltyp We su. gest e nublic docurert room autcmatica))y be

' estrbli shed it ti.e court house or other oublic build.ing in the town ter re st the site - it whi ch all docureets, co rre e-rordence etc re: the nrc ject str12 ce avsi: atle for Dub 31c its ectier.

5 - Firs 11y, though nublic corret t tay be tedious, renetitious er ever divisive, we feel the peoule viho wi21 live re r the efte stculd be g3 vet a re spectful hearing. Ycu may find the cerron-sense views of sone old farrer rey just m2wmise the "eynerts".

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Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 29555 -

Attention: Docketing and Service Branch

Dear Mr. Secretary:

Attached are the State of Minnesota's comments on the proposed revisions to 18 CFR 68, as published in the Federal Register on l January 17, 1985.

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Sincerely,

. Tom Kalitowski, Chairman l Governor's Task Force on High-Level l Radioactive Waste Enclosure i

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. STATE OF MINNESOTA COMMENTS ON THE PROPOSED AMENDMENTS TO 18 C.F.R. PART 68 . ,o .;%

i The State of Minnesota has reviewed the proposed amendments to _L3 - -

C.F.R. Part 68, " Disposal of High-Level Radioactive Waste in Geologic Repositories.' Minnesota wishes to comment on aspects of the i proposed amendments relating to the participation of states and I I

affected Indian tribes in site characterization. analysis and licensing reviews. I

1. Minnesota otrongly disagrees with the proposed rules regarding

. the contents of the site characterization plan. Because the guidelines lack any provisions requiring DOE to. set forth.its

. meth'd o for selection of sites for characterization or describe .

its- decision process, we believe that the NRC should request that

! . such information be provided in the site characterization. plan.

Requiring such information by the NRC does not conflict with the Nuclear Waste Policy Act (NNPA) or duplicate information already provided by DOE. The Waste Policy Act specifies that DOE will prepare an environmental assessment for each' site nominated for characterization. The content of these environmental assessments -

is specified and includes the type of site selection information previously required by 18 CFR 68 in the site characterization

report. However, the site selection information pertains only to the selection of the 1123. nominated sites, and not to the _.

i

. selection of the three candidate sites; it is nat duplicative of

information previously required.

There is no provision of the NWPA that precludes the NRC from considering site selection information; instead, Section 13 (b) (1) (A) (v) of NWPA authorizes the NRC to request 'Any other information required" for its review of a general plan for site cnaracterization. Because the site selection information for the I

three candidates sites is not available elsewhertu_and because.

the NRC does have the authority to request such information, we _

believe it should be included in the site characterization plan.

I We are troubled by the reluctance of DOE to provide the method and decision process used in the selection of the three candidate sites and the reluctance of the NRC staff to review and comment on such information. While we would like to believe that the selection would be based on technical considerations and the desire to produce three viable alternatives, this reluctance leads us to the conclusion that other considerations will enter into the decision. This should not be a concern of the states alone, but also should be shared by the NRC and the staff. The willingness to look at the quality of the data available but not ~

its application, compartmentalizes review activities to an unreasonable and unnecessary extent. Taking this " blind" position is also inconsistent with the NRC's past efforts to develop a participatory role in the process as early as possible'.

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It is difficult to understand why the NRC finds it inappropriate to comment on site selection information, particularly if sites l are selected that will raise potential licensing issues. There.

is no way to avoid the politically sensitive aspects of site selection; they are present at each stage of the process. Rather than be a party to procedures that promote an aura of secrecy, 1 the Commission, in the interest of ensuring that sites selected I for characterization are the best among the five nominated,- .i should be pursuing a course more characteristic of an independent l regulator than a DOE facilitator. -

l We wish we could share the NRC's confidence that these DOE decisions will lead to a licensible site; however, the general -

nature of the guidelines and DOE's position on past issues, such as the preliminary determination of suitability, have not been -

reassuring. We hope the NRC will retain the methodology and  !

decision process in the contents required for the site '

characterization plan, thereby providing other parties, if not i the NRC, with the opportunity to review and comment on those l issues.  !

2. Minnesota favors the current language in 19 CFR 69.11 that l provides for public comment on a draft site characterization i analysis prepared by NRC staff. The NRC assumes that ongoing j consultation and contact between the NRC, DOE and the states and j affected parties eliminates the need for any formal public interaction with the NRC. The NRC, however, should not assume  !

that the states or other interested parties will have the  !

resources to participate in a manner similar to that of NRC and i DOE. This was apparent when similar' assumptions were made about  !

the DOE /NRC staff concurrence meetings. Even if states and ,

i interested parties are to participate at that level, they lack  !

some of the technical expertise needed to carefully and fully j follow and understand the progress of this program in all its '

complexity.

I l The states and affected parties would find it extremely helpful -l

{ to have a document, prepared by technical experts, that analyzes l

! and identifies key issues associated with various aspects of the j site characterization program. Many of the states and parties <

involved would depend on the NRC to provide this analysis before j

} they submitted their ccaments to DOE. This is a critical point  !

) in the repository siting program and every effort should be made l l by- NRC staff to enhance, rather than restrict, public comment and  !

participation.  !

l The desire to maintain an ongoing DOE /NRC interagency process is commendable and should be encouraged; however, it should not be i considered a substitute for formal public review of the site  :

i characterization analysis. If scheduling mandates are to be [

emphasized, then we suggest that this interaction be depended on  !

to reduce the amount of time needed by staff to prepare the ,

analysis and compensate for the time required for public review i of that analysis.

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3. The proposed amendments, if adopted, would change 19 CPR Part 68.63(a) to read as follows:

State and local governments and affected Indian tribes may

_ par.ticipate in license reviews as provided in subpart c of Part 2 of this chaeter. (Emphasis added.) . _ . . . _ _ _ . . . _ _

This proposed rule is nothing more than a reminder to states, .

local governments, and affected Indian tribes of the existence ~of 19-CPR Part 2, which governs-procedure in NRC adjudications and which dnas agt provide a state, local government or affected Indian tribes an absolute right to participation in NRC. licensing proceedings even though the licensing proceeding will have a direct impact on the state, local government or affected Indian tribe.

Minnesota believes that the proposed rule amendment should be changed to provide an absolute right of participation in NRC hearings on licensing a high-level radioactive waste repository to those state, local and tribal governments which are affected by the proposed repository. The decision being made in such a proceeding will profoundly affect those entities. The ,

possibility that these entities could be excluded from participation should be remedied.

Minnesota's position on this matter is prompted not only by the importance on the repository licensing matter,.but also by the recent efforts of the NRC staff to " reform" the NRC's rules of )

practice so that states, local governments, and affected Indian i tribes could be prevented from effectively participating in NRC  !

licensing hearings of any kind. The staff's suggestions for

" improving" the licensing process were published on April 12,

, 1984 (49 Ped. Reg. 14698). In a letter dated May 25, 1984, Minnesota strongly objected to those suggestions. A copy of that letter is attached. Minnesota continues to believe that those  :

suggestions would adversely affect all future intervenors and _

would reduce the public's confidence in the NRC as a licensing body.

Minnesota urges the NRC to change the proposed language of 18 CFR  !

Section 69.63(a) to read as follows: ,

l Upon request, the government of any state, county, l municipality or Indian tribe affected by the location of the i proposed repository shall be granted party status in any hearing conducted by the Commission on the license

application held pursuant to Subpart G of Part 2 of this .

chapter. ,[

l

4. The existing 19 CPR Section 68.63 sets forth criteria for approval of state proposals to facilitate state participation.  !

The proposed amendments would renumber Section 68.63(b)(2) to be .

Section 68.63(d) (2) and amend it to read as follows-t

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The proposed activities (i) will enhance communciations 4 between NRC and the state or affected Indian tribes, (ii) will make a productive and__ timely contribution to the  :'

review, and (iii) are authorized by law. (Emphasis added.)

l i The addition of the word " timely" in describing the type of j contribution of a state or Indian tribe that would be looked upon j favorably by the NRC could be used to further limit the . j participatuion of a state or Indian tribe in the review of a site  :

characterization plan and/or a license application. While i Minnesota recognizes the need to conduct the proposed activities -'

in a. manner that does not unduly delay license reviews, we also .;

recognize that the states do not always have the expertise and  !

personnel immediately available to address complex issues that  !

will be considered by the NRC.  !

I Based on our experience to date with the repository program, as l well as our expectations regarding the pressures exerted on -l decision makers as the program progresses, we are concerned that  ;

the word ' timely" will become the focal point of this  !

qualification, despite the benefits that might accompany state l participation. The key word is " productive" and, if a state can  !

make a productive contribution to the review, the NRC should be  !

willing to accommodate reasonable needs of states in providing- }

that contribution. i i

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yi tjigog,urgipg-sogggas l,ses sense ATTOR%&Y GE.staAL May 25, 1984 ..

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• Secretary U. S. Nuclear Regulatory Commission Washington D.C. 20555 Re:-Request for public comments on suggestions for procedural.

~

changes in nuclear power plant licensing process. 40 Fed.

Reg. 14698 (April 12, 1984)

Dear Sir:

On April 12, 1984, the Commission published a request for public comments on suggestions for procedural changes.in the nuclear power plant licensing process. (49 Fed. Reg. 14698.)

The State of Minnesota, by its Attorney General and its Minnesota Pollution Control Agency, (hereinafter " Minnesota") has reviewed the suggestions published in the Federal Register and wishes to comment on five aspects of the suggestions, as ,

discussed.below.

1. Creation of a Screening Atomic Safety and Licensihe ,

Board. It has been suggested that 10 C.F.R. Section 2.721- be -

revised to authori:e the establishment of one or more Screening Atomic Safety and Licensing Boards. The screening boards would rule on requests for hearing, petitions for leave to intervene, and admissibility of contentions in all initial licensing -

proceedings.

Minnesota supports the adoption of this suggestion. The -l creation of screening boards should result in more consistency- l l

and predictability with respect to the rulings made by the i Boards. Under the present system, an individual Atomic Safety and Licensing Board is appointed each time a request for hearing is received, and that individual Board makes its own determinations on requests for hearing, petitions for leave to intervene, and the admissibility of contentions. Because each Board is not necessarily aware of what is being done by other Boards or what other Boards have done in the past, there is potential for conflicting rulings on similar requests, petitions, -

and contentions. Minnesota believes that improving consistency and predictability as to these rulings by creating screening boards would benefit all parties.  ;

- - ~

[ e . d. m .

AN ECUAL OPPCRTUNITY EMPl. OYER r - WT' 4 7 y( c

. wet. . a

_ 2. Apolyina Judicial Standards of Standing. It has been - "~

suggested that 10 C.F.R. Section 2.714 be amended so'Ehat no ' -' ~

person would be able to initiate a hearing on a nuclear power plant or intervene in a hearing on a nuclear power plant unless that person can meet judicial standards of standing.

Specifically, 10 C.F.R. Section 2.714(f) is proposed to be Lmended as follows:

(f) Ruling on request for hearing or petition to

' -- intervene. The Commission or the presiding officer -

designated to rule on the intervention petition or request for hearing shall, in ruling on the request or petition shall (sic] consider the following factors, among other things:

(1) The nature of the requestor's or petitioner's right under the Act to be made a party to the proceeding.

-(2) The nature and extent of the requestor's or petitioner's property, financial, or other interest in the proceeding. .

. (3) The possible effect,of any order which may be entered in the proceeding on the requestor's or .

.- petit.ioner 'scin terest . No request for hearine or petition to intervene may be granted unless the ~ * '

L __

Commission or the presiding of ficer desianated to rule "* ~~

on the request or petition determines that the requestor ~

.or the petitioner meets iudicial standards for standing.

Minnesota strongly objects to the suggestion because it is contrary to express provisions of the Atomic Energy Act (Act).

Section 189 of the Act provides, in relevant part: ,

In any proceeding under this Act, for the granting, i suspending, revoking, or amending of any license or construction permit, or application to. transfer control,'

. . . the Commission shall crant a hearing upon the

. _ . request of anv person whose interest may be affected bv the proceeding, and shall admit any such person as a - ~

party to such proceeding.

(Emphasis supplied.) Under the Act, any person "whose interest may be affected" has standing to request a hearing or to intervene in a hearing and the Commission is required by the Acc -

to grant such a hearing request or admit any such person as a party. The suggested amendment would require a person's request l

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or petition to be denied if the person could not meet the more

! strincent test that must be met to establish judicial standards- ~~ ~ ~

for standing.

Judicial standards for standing are discussed in the leading

_ _ . . _ __ case _ of Association of Data _ Processine Service Orcanizations, Inc. v. Camo, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

In that case the United States Supreme Court announced ~i two-part test fcr standing. Standing exists if "tne plaintiff alleges that the challenged action has caused him injury in fact, -

economic or otherwise," and if "the interest sought to be protected by the complainant is arguably within the zone of - -

interest to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 152-153, 90 S.Ct. at 829-830.

The suggested amendment goes beyond the requirements of the Act and is thus beyond the Commission's statutory authority.

. Therefore the Commission cannot adopt the suggested amendment.

I

_ _ . _. 3. Changine the Requirements Relating to Contentions. It has ~ ~

been suggested that 10 C.F.R. Section 2~.714 be amended to change ,

the requirements relating to contentions. These changes, as discussed below, are significant, and Minnesota objects to these changes. 1

- - . .i First, the suggested Amendments would change the time for filing of contentions. The existing 10 C.F.R. Section 2.714(b)  !

, allows the person who requests a hearing or petitions to j intervene to file his or her contentions "not later than fif teen ,

(15) days prior to the holding of the special prehearing conference." The suggested amended 10 C.F.R. Section 2.714(g) requires the contentions and supporting information to be submitted "at the time the petition or request is filed." _;

Second, the suggested amendments would greatly increase the  ;

burden on the perron who requests a hearing or petitions to ,

intervene to provide information supporting the contentions. The

. present regulation,. 10 C.F.R. Section 2.714(b) only requires the  ;

" bases for each cor;tention set forth with reasonable  !

specificity." The suggested amended regulation 10 C.F.R. ,

52.714(g)(1) would require submission of the folicwing:

(i) A brief explanation of the bases of the contention.

(ii) A concise statement of the alleged facts or expert opinion which support the contention and which at the .

time of the filing the requestor or petitioner intends to rely upon in proving its contentions at the hearing, ,

. 4 ,

I together with references to the specific sources and i documents which will be relieG upon to establish such i facts or expert opinion.

(iii) Sufficient information (which may included  ;

information pursuant to 52.714(g)(1)(i) and (ii)) to ., '

show that a genuine dispute exists with the aoplicant _1/

on an issue of law, fact or policy. This showing must include references to the specific portions of the

. application (including the applicant's environmental and safety report) which the requestor or petitioner ,

disputes and the supporting reasons for each such dispute, or, if the requestor or petitioner believes that the application fails to contain certain information on a relevant matter as required by law, the identification each such failure and the supporting ,

reasons for the requestor's or petitioner's belief. On issuer arising under NEPA, a petitioner shall file -

contentions based on the applicant's environmental .

i report. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draf t or final environmental impact statement or appraisal that dif fer significantly from the data or =

conclusions in the applicant'.s document. Amended or new contentions based on NRC environmental documents shall be filed an.d ruled upon in initial licensing proceeding 3  ;

in accordance' with paragraph (j) of this section. .

(Emphasis supplied.) ,

The suggested amendments relating to content '.cns create an imoessible situation for intervenors. Ordinarily, in accordance with the provisions of 10 C.F.R. 52.105 (d) , the Commission informs the public, in the Federal Register, about a proposed license or license amendment thirty days before the due date for the filing of requests for hearing or petitions to intervene. -

This has, in most cases, been just barely enough time for a potential intervenor to make a decision that it is interested in filing a request for hearing or a petition to intervene and to  !

file the request or petition. Additional time is essential to allow for the drafting of contentions. Under the suggested amendments, potential intervenors will have a maximum of thirty '

_1/ History has shown that intervenors in Commission licensing proceedings are just as likely to have a genuine dispute with -

the Commission staff on issues of law, fact, or policy as.

with the applicant. If this suggested amendment is intended to limit litigation of disputes only to those between the applicant and the intervenor, this suggested amendment is not- i reasonable. -

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. l days to obtain a copy of the license application and supporting information, review that infor. nation, note all problems, develop a case-in-chief, put it in writing, and submit it within the deadline.

The requirement that intervenors must submit, along with their contentions, all of the information set forth in the suggested amendments to 10 C.F.R. Section 2.714(g)(1) amounts to .

a- requirement that intervenors have ready their case-in-chief at the time of filing the request for hearing or petition to -

. intervene, prior to the opportunity to conduct discovery. This -

requirement is much too onerous at the point in the proceeding where the only decision to be made is whether a particular contention is admissible. It is more onerous- than the requirements in any judicial proceeding. Minnesota recognizes that this information must eventually be developed in order to i

have a meaningful presentation of the issues. However, this I information should not be required at such a pr'eliminary stage.

i Under the suggested amendments, the only persons who have a hope of submitting an admissible contention are those who have been privileged to have received a copy' of the license amendment as the same time as the Commission staff received it,'who have -

followed the commission staff review and the draf ting of the -

proposed license or license amendment, and who have been

~

_ preparing their case in chief prior t6 the publicatipn of notice ,  :

~

in the Federal Register of the existence of the license application. In a state such as Minnesota, which is a non-agreement state, it is doubtful that anyone, including the

! State and its agencies, could submit a successful request for hearing or petition to intervene.

In Minnesota's experience, the present rule allowing contentions to be filed just prior to the special prehearing i conference has allowed sufficient time to prepare meaningful contentions and the statement of bases required by the present i rule has provided sufficient information to allow the Licensing Boards to rule on their admissibility. Therefore the present rule should be retained. The suggested amendments are unreasonable and should be rejected by the Commission.

4. Recuirinc a Demonstration of Soecial Need for Cross Examination. It has been suggested that 10 C.F.R. Section 3.733 and 2.743 be revised to permit cross examination only upon the request of a party filed within 10 days af ter service of the written testimony concerning a particular issue and limiting -

cross examination only to those parties who have submitted an admissible contention on the issue. A motion to cross examine

- , ..__,,---.y-, ....-.--.,-w,__,.-.,.~.-,.,-

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must include a detailed cross examination plan and a statement .as l to why written testimony could not establish the same points. -

i

Minnesota regards this suggestion as entirely unacceptable. l The major purpose of a Commission licensing hearing is to

adiudicate disputed facts. Trial-type procedures _ are not only  !

appropriate but essential to develop a full and complete hearing record. The right of parties to cross examine witnesses in an adversarial proceeding is a fundamental characte'ristic of Ehe-

. adversarial process arising from basic constitutional principles  !

l' of due process. There would have to be an extraordinarily good .i reason to remove that constitutional right entirely from persons l who did not happen to file a contention on a given. issue. Such a j i good reason is not demonstrated by the discussion of this --

suggestion. In fact, no reason is of f ered by the discussion of - l this issue.

There are perfectly legitimate reasons why an intervenor may- -!

wish to, and should have a right to, cross examine witnesses on  ;

issues raised by another party. Many intervenors, including i o states, have limited resources to devote to Commission licensing i proceedings. They be forced by this fadt to coordinate their ef forts with other intervenors and to divide up the work with respect to issue in which they have a common interest. Thus two  ;

intervenors may, to avoid duplication of effort, agr.ee between  ;

themselves to assert dif f erent contentions but to suppor't. each -

1 other with respect to the presentation of evidence and the cross  !

i examination of adverse witnesses concerning these contentions. '

i In addition, given the complexity of the subject matter, an i intervenor may discover that it is vitally interested -in an issue  !

which it did not initially identify. The Commission has no valid [

reason to cut off the rights of parties to fully participate in  !

all issues which are the subject of the hearings.

Even where the suggested amendment allows a party an  !'

occortunitv to make a motion fcc the right to cross examine I witnesses, the terms of the suggested amendment is a de facto ,

removal of the right to cross examination. It is totally l unreasonable and unrealistic to expect a party who has been  !

i served with potentially voluminous testimony and exhibits to  !

accomplish, within ten days, the tasks of reading and digesting  !

the material, preparing a detailed cross examination plan, and -

l

l. preparing and submitting a written motion to the presiding i j officer. No person who has ever been a party to a Commission

{

) licensing proceeding could seriously suggest that . ten days would t i be sufficient to accomplish all of this. - , ]

The time schedule established by this suggested amendment  !

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7-contains serious potential for abuse by parties with substantial financial resources. For example, an applicant who wishes to ensure that its witnesses will not be cross examined has the ,

opportunity to present the intervenors with thousands of pages of l' testimony and exhibits which would be clearly beyond the '

capability of the intervenor to review in time to file a motion for cross examination. -

-r Minnesota emphatically objects to the suggested amendments i regarding cross examination and urges the Commission not to ,

consider them any further. *

5. Limitations,on Filino Procosed Findines of Fact,_

It has been suggestid_th_at Conclusions of Law, and Exceotions. -

10 C.F.R. Sections 2.754 and 2.762 be amended ~ti l'imit the fi' ling ~

of proposed findings of fact, conclusions of law, and exceptions on a given issue only to those parties who raised the issue in a contention. Applicants and Commission staff, however, would not  ;

be subject to this limitation. j Minnesota strenuously objects to th.is suggestion, as it will -

not further the Commission's interest in better decision-making ,

and it will severely limit the full participation by intervenors. I As discussed above, intervenors may have a significant interest in contentions raised by other parties. There is nothing -

inherently unf air about a party ' submitting its views as to the state of the record on an issue which has been duly raised in an ,

adversarial proceeding. The filing of proposed findings of fact and conclusions of law does no harm; on the contrary, it could be i of help to the decision-makers. The filing of valid exceptions

• by persons other than those who put an issue in controversy is likewise no threat to sound decision-making. This suggestion is not supported by any valid rationale and should not be adopted by the Commission. ,

i Minnesota appreciates the opportunity to comment on the l suggested amendments, which, if adopted, would have a pr*ofound l impact on the ability of Minnesota to participate in any future '

Commission licensing proceedings. In general, the suggestions are inimical to intervenors and to the public. The suggestion that these amendments would " improve" the hearing process is j

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l l ironic. The " improvement" would consist of the elimination of all hearings other than those requested by applicants.

Very truly yours, HUBERT H. HUMPHREY, III Attorney General

. By J HL Y-pELYp'F.OLSON

. . . . . . A p_0 s - Ah MARQENE E. SENECHAL I

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Special Assistfant

( Attorneys General I

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.. 2 OFFICE OF THE GOVERNOR MAAX WHlis STATE CAPITOL .

GCvE"Om AUSTIN, TEXAS 73711 -*

g Septemoer g,1933 Mr. Robert Browning is Nuclear Regulatory Comission s ,

Washington, D.C. 20555 ( \ -

y 3

.I RE: Procedural Amendments to Nuciear 'Rhu7atory,Comiss' ion 10 CFR 60, \

Disposal of High-level Radioactive Wastes in~ Geologic Repositories '

Oear Mr. Browning:

We have reviewed the draft materials distributed to state representatives at the meeting on August 19, 1983, at Dallas, and evaluated the various pro-posals relative to our interests in particioating in Nuclear Regulatory Com-mission activities and decisions as they relate to disposar of high-level nuclear wastes in geologic repositories. We have also reviewed the existing appropriate sections of 10 CFR 60 to determine whether amendments' are needed to have the rule conform to prevision's of the flucleak Waste Policy Act of ic82. We have determined that, while some minimal le'h1 sof amendment to procedure is needed to achieve conformity with the Act, further amendment may be approcriate to enhance the efficiency and maintairr the substance of an assured opportunity for interaction between an interested state and NRC.

We have chosen as a format #cr a re: pense to ec .e rewest for cc=e ":,

a revisicn, in rule form, ci the accroorf ate sectins of 10 C:R 60. You .

will find :his draf t revision attached. Mucil of i Miii te familiar t:

you, as we have crawn heavily from sections of the 'etisting 10 CFR 60, as -

well as fecm the cwo draf t procosals prescetst ir 'F. Calla: meeting. if focus aas inrgely on Section 60.11 and Sutoer: C :# the rule, as was yc';rs, but you will note some major corceotual variations?rcr your 8/17/82 Draft.

I think you will find the proposal, overall, 'to be succortive of my state-ment in the Dallas meeting to the effect that we and other states are ,-

seeking an assured access to flRC activities and decisions that affect us as potential host states for a hign-level nuclear waste repository. We also want tnat access to be one that does not result in an unnecessary burden on the NRC or the states, yet will result in a full and constructive rela-tionship between the parties. N 3

MMBM6858 Ey88. MAR 2 5 305g +

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e Mr. Robert Browning

/ Sectember 9, 1982 Page :

You will note in the attached proposed rule amendments that we cave developed a procecure that remcves the e.<isting requirement far 1RC to write and subr it far puolic review a Dra#t Site Characterization Analpi:.

While we prefer the cr2-- SCA process now stancing in 10. CFR 60, .2 also recogni:e the acvisory nature of the SCA and the neec to ex;.edite its transai tt.il to CCE. Thu: we view cur proposai to contain an 4ccactable alternative process by .inicn substantially the same esults cin ce achieved by NRC and the states, but in a manner that is less consumptive

,7 of time and resources on the part of all parties.

Our proposed changes to Subpart C, we think, preserve the opcortunity 1

for formal. interaction between parties, while establishing a more permissive

' means of achieving that interaction. In addition, we have attempted to include only those provisions of the existing Subpart C that seem aporo-priate in light of the crevisions of the Nuclear Waste Policy Act.

We appreciate the opportunity to respond tn your draft proposals regarding NRC Rule 10 CFR 60. If you have t;uestions or cements regarding m our proposal please do not hesitate to contact me. I will tic nappy to discuss this matter further with you and your staff, at your convenience.

f Sincerely,

(#?-y <

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....- . a_ l - -% L 'p'^%

Steve Frishman, Director Nuclear Waste Programs Office j IF::: a l -

En. '.csura l cc: .Mc. iiolmes Brown. National Governor's Ar. ociatten l

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. t N CFR P *RT R - O tSPMAl. :F H!3H-!.EVEL '4 STE3 .*: GEGLCGIC REPOSi?CRIE 1.

Ihc Aut .cr' ty ci ta t f n fer e' .. ;

- 30 CO:iticua: ".2 rSdd as follCWs:

AUTHORITY:

2ecs. 51, 53, 52, 63, 55, si, . , a: . , . .c. a<., se,

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. . , .c.e s .., . . m. . . .

530. 332, 933, 935, 943, 953. 954, a: accoded (42 U S C. . 2071 -2C72, 2092,2093,2095,2111,2201,2232,2233); secs 202,.206, 88 Stat! '

1244, 1246 (42 U.S.C 5E42, 5546); secs. 10 and 14

. Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5551); sec . 102, Pub.Nj91-190, 83 S:at. 853 (42 U.S.C. 4332); sec.121, Pub 'f L.97-425, 95 Stat.

2223 (42 U.S.C. 10141). ~

2.

Secticn 60.2 is revised by inser-ing,iin the a;: rep i r ate alsnatatical Iccation, a definition of the term "affected India As revised, 560.2 reads: n tribe." <

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i 60 2 Cefiniticas. , i t'

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.'is u.:2: in this par -- zg 1

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Affected *ndian tribe" ceans an eaffected .

r as defined Indian in the ?luclear Wasta Policy A ct of 1982.

T

3.  ?

Secticn 50.2 is further amended by deleting tne definitio t.-ite" anc " Tribal organi:ation." ns of " Indian

,9 4

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.. - ,s 4 t N1 Section 50.10 is redesignated as $60.15.

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1. 44

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', (v ) ~ Plans':0 apply quality,as:urance to cata .. . ,

collection, recording, and re:er.:icn.

(3) Plans for the ;ermanent closure, doc:ntaminaticn, anc disman -

tlament of surface facilities anc f r the mitigatien of any -

. significant adver:e environmental im ac 3 : .used by site characteri:ation activities, if such area is determined s

unsuitable for application for a const uction authorization

'for a geologic repository cperations area, (4) Criteria, ' developed pursuant to section Il2(a) of the Nuclear Waste Policy Act of 1982, to be used to cetemine the suita-bility of such area for the location of a geologic repository; and (5) Any other infomation whicn thi C:=ission, by rule or crder, .

requires. .

(b) A description of the possible waste form or waste package for the hign-level radioactive waste to be em:lacec in suca geol:gic re::siccry, : descrictica (to the extant ;r:: tic:cle) cf the relatiensni; :etween sucn waste form er nas:e sa:kage and tne I h:st rock at such area, and a descrip icn of the activities beinqi::ncuc:ad :y COE with respect o such ;cssit,le .,asta for= or waste package or syca relationship; anc (c) A conceptual design for the geologic reposi:Ory operations area 4

that takes into acccunt likely site-specific requirements.

e

!50.Is heview of site enaracteri:stien activities .

(a) The Director shall cause to be published in the Federal Recister a notice that a site characterization plan has ' een c received frem 1

.' CCs and : hat a stafT ' aiew of such plan has begun. The notice

.- v - '

, {

N shall identify the area to be characteri:ed and the NRC s:aff mesters to be censui:ed for further infor aticn.

1

. -(5) Jba Giracur cnali maka a copy Of :he si:e characteriza:ica pian a.ailable c: the Public Cccumeh Rccm. The Director shall also tran:mit copies of the published notice of receipt to the Governor and legislature of the State in which the' area to be charactari:ed i

is located and to the governing bcdy of any affected Indian tribe.  !

. t

(:) (i) l The Director shall review the site characteriza: ion pian anc '

pre;are a tita charac eri:ation analysis with respect to su:5 l i

plan. - *

(2)

The Direc cr shall, in the Federal Recister notice provided 4

for in Section c0.18(a), request c: ment from affect;ed states, Indian tribes, and interested persons which he wil review

{)

and consider in preparing the site characteri:ation analysis -

an'd additional cc=ents anc rec mencation:.

2)

Tne Director shall also review and c:nsicar c:=ents an

uestions sucmittac in the CCE ;uclic hearings heic ac::rdinc

o Section ll3(b)(2)(3) of :ne Nuciaar Waste Policy /,c: cf '

1982, and the Dirac=r shall review and censicer CCE rescensa such questicas and ccmments in his preparation of the site

naracteri:ati:n analysf1 and acdit.ignal c; cents anc rac:m-menda tions .

. 3.

(d)

The Director shall~ provide to 00E his- site characterization analy .a

[

tcgether with a sumary of coments received under Section c0.18(c) and his response to those coments, and such additional cer.ents as

. , ne e m ated. . Such comments 9911 f ac !

• c i e.sa- * "#-

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. that the Direct:r has no chjection to tho CCE's site characteri-tation prtgram, if such a statament is apprcpriate, or specific - -

objections with respect to 00E's program f:r ::aractarization of the area concerne:.

In gdditica, the. 3irec :r :ay =ake s;ecific w

rec:==enda:icns pertinent :o 20E's site naractari:stien pregram.

(e)

' If 20E's plannec site characterization activitie,s include ensite testing with radicactive material, the Direct:r's comments shall include a determination, if appropriate, that the Cannission.

concurs that the proposed use of such radioactive material'is i

necessary to provide data for the preparation of the environmental rescrts required by law and for an application to be sucmitted under 550.22 of this part.

(NGTE:

60.22 appears to need ' revision to support Sucsection (e (f) ~ The c::=ents of the Director under this section shall no tute a c:mmitment to issue any authcrizaticn ce license er in any way affect the authority of the C:::ission, the At==ic Safety and

                                 '.icansing Ap;eal 5 card, Atcmic Safety and '.icensing Ecards, cthar presiding officaes, or the Of rector, in any cr cteding unter Suchart G Of Dart : ti :nis aaptar.                                            -

(g) Curing the conduct of site characterization activities,' CGE shall regore not less than once every six months to the Ccmmission on

                              .the nature and extent of such activities and the infer =atio
               .               has been develcped and on the progress of -aste form and waste                    -

package research and development. The semiannual reports shall include the results of site characteri:ation studies, the iden-tification of new issues, plans. for additional studies to resolve

                                                                                                           \      ss ,.

new issues, elimination of plandec studies no lenger necessary',

• identifica:ica of' decision point: reachec and m.cdificaticas to sr.nedules .:hcra appre riata. 00E shall also rescrt its ; regress in develeping the design cf a geciegic racesit:ry eteratiens area appropriate for the area teing charactari:ed, noting wnen

                                ' key design parameter's or features which depend upon the results of sita characteri:stion will be established. Other topics related to sita characteri:ation shall also be c:vered if requested by the Director.

(h) During the c:nduct of sita characteri:ation activities, NRC staff shall be parmitted to visit and inspect the locations at wnien such activities are carried cut and -to Observe excavations, borings, and in situ tests as they are done. - r (1) Tha Oirect:r may comment at any time in writing to CCE, excressing currant views on any ascect of cite charact2ri:ati:n. C:::ar.ts r2.eited in 2:::rdance with this facti:n anc 3ection 50.54 :n li

e c:nsicerac :y the Dirac: r in fcrmulating his views. .

(j) The Director shall transmit copies of the sita characteri:stion - ' analysis including the c mment summary and response required [ under Section 60.18(d). all c mments to CCE made by him under

                                   ,this section to the Governor and legislature of the State                           I in unich the area to be characteri:ed is Iccated and to the governing body of any affected Indian tri'c e.                                      I
                                                                                                                      .; I men % _ _._ _. __+-1      _.:-=- --                                                             _.
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(k)

  '                          All correspondence between CCE and the .';RC under this , ...
    .. pr                                                                                     .

e p. including the re;crts descritec in paragraph (g) shall be placed in the Public Occumen: Accm. [1) Jhe activi:ies described in paragra;ns (a) througn (k) above

         -                  constituta inf:r=al conference between a prospective applicant and the staff, as described in 52.101(a)(1) i)f this chapter, and are not part of a prcceeding under the Atcmic Energy Ac of 1954, as ambnded.

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     .,      .             3CC .,60, 3UEFART C-PART!C* PAT!GN 3Y STATE C-GVERt:
                                                                           ~

MENTS ANG INDIAH TRIBE 3 4 Section 50.61 ~ Provision of Information (a) The Director snail provice to the Governce ar.d Lagislature of a containinb a site ur.ich ha tcan appecvec for Lita characteri:atica, and 4 to the gcverning bcdy of any affectad Indian tribe, timely and complete information regarding determinations or plans made by the ccmmissicn wit respect to the site characterization, siting, development, design, lican: ing construction, operation, regulation, permanent closure, decontaminat and dismantienent of surface facilities of any preposed re;csitory at such site. , (b) Notwithstanding paragraph (a), the Directer is not required to distribute any document to any ~ entity if, with respect' to such document, that entit

                                                                                                           ~

or its counsel is included en a sarvice _ list prepared ;ursuant to part 2 1 of this chapter. .

                         -(:)   Ccpics cf all ec.mmunications by the Directer under this sectiori shall ta placed in the Fublic Occument Recm and ccpies : hereof snall te              - .

furpithed to 00E.- ' 4 Section 50.52 Sita Raview (a) Ucon, apcreval of a site fer. sita characteri:ation and upon request of a stato, or Indian tribe, the Dirac:cr shall make available NRC staff tc - censult with representatives of states and Indian tribes to keep them informed of the Directcr's view on the progress of sita characterization m 4 m.m.. 7 .- .  :. - -- ---

     *s/' <-

and to notify them of any sucsecuent me2 tings or furth:r c:nsultati:ns . . 5 wi th the Cesartment of En:rgy. (b) Requests for censultation shall be made in ariting to the Direc:cr. (c) Should tha S ste, Indian tribe, or other in arestad persen direct

            ,                questions or c mments in accordance with section 60.18(c)(2) to !!RC concerning the preparation of the site characterization analysis, the Director snall review and consider such ccmments and questions in the preparation of the sita charactarization analysis.             In addition, he shall summarize and respond o such c:mmen:3 and questions and ;revida sucn summary anc response to 00E in ac:or:ance with Section 60.18(d)..

(c) Consultation under this section ma'y include, among other things, a review of applicable PIRC regulations, licensing procedures, protential schedules c and the type and scope of State activities in the license review and site characterization plan review. In addition, staff shall be made available to ccoperate with the State in develocing prccesals for participatica by the State. Sic-icn 50.52 . riling cf Prepcsals f:r S r. ate Par-tcipatian (a) Sta:e and local governments and affected incian tribes may participats in Itcense reviews as ;rovidee in Sut;ar: 3 of Part 2 cf this enactar. (b) States in wnich sites n'ave been ap;reved for site characteri:ation may submit to the Director a proposal for State participation in the , review of the site characterization activity reports and/or license application.

A state's propcsal t: participate may be submittad at any time price ta decketing of an applica-ion or up to 120 days thereafter. ' (c) Proposals for participation under this Sub; art : nail be mada in w

                       -and signed by the Gcvernor of the State or the official designatec s Oate 'au or by joint :esignation of tha goverr. r ard legislat ra.
                                                                                ~

(c-) Itams which may be presented for c:nsideration, in whole Cr in part, to revision by the State, in a proposal for State particication include

     .                 bu: are not limited :::              .

7 I (i ) A general description of how the State wishes t participate in the re'iiew and a preliminary identification of issues which it -- wishai to review. (2) A preliminary description of material and information w'ich n the State plans to submjt to the i:RC staff f r c:nsiceraticn in the review. . (5' Scrvicas or acti:n2 .vnicn the State may enus:t such as samir.ars, puoiic meetings, acc::1cnal Public Occumen: Eccms, or empicyment . or exchange of State ;ersonnel nder the intergoverr. mental Dersenr.el Act. Section 50.54 - Approval of Freposals (a) The Diractor and a representative of the State shall jointly arran'ge for meetings tet'.veen the representatives of the State and the t:RC staff to i

                                 .    . - -    -                                                           i g-

     'l  -

t

 -{.

discuss any proposal submitted uncer Section 60.53(b), wit . geal of identifying any mocifications that may c:ntricute to the effective partIicipation by the State. (b) The Director shall approve all or any part of a. proposal as it may be modified through the meetings described above if it is determine that the proposed activities: (1) will enhance c mmunications between NP.C and the State, 4 (2) will centribute productively to the license review and/cr site characterization activity aper; reviews, and (3) are not prohibited by law. (c) The decision of the Director shall be transmitted in writing to the Governor or designated official of the originating State. A cecy of the decisien shall be made available at the Public Occumen . If all or any part ef a proposal is rejected, the decision shall state cne reason for the rejection. (c) The 3 tate criginating the pr:cesal may acceal the rejec-ion of all er any part af a ;r:posal to the Ccmmission.

           .    (a)

A c:fy of all proposals received snall :e mace availa:le at the pu Cccc::ent Pccm. . , _ . - - _ _=-m==-=^^^ ^

Section 60.55 Participation by Indian Tribes ' (240 CHAT:GE5 SUGGESTED IW TH13 SECTIC 1) Secti n 60.55 tiotice ts States.

                          .                                                   If the Governer and Legislature of a Stata ha:

jointly designated on their behalf a single person,cr entity to receive actice and infer =ation frcm the Comission under this part, the Ccmission will prcvii such notice and information to the jointly designated person or entity instead t of the Governor and Legislature separately. Section 60.57 Cocrdination The Director =ay take into account the desirability of avoiding dupiteati,cn of ' eff:rt in taking action on ciultiple preposals sucmitted pursu'anc to the crevis-of this Subpart to tne utent this can te ac::=;lishec without sub:tantial preducice t: the parties concerned. 4 e l

                                                                                                                 ' S
                                                 - , - , - - -       ^ ' ' ' ' ~ ' ~ ~   ' ' " " ' ' '

                                                            *I
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                                                         /]-
                                                                D.,

ee0BCEED llutf h4 g i.3.[d@c.K53 FE A579) t 3 3:.+- OFFICE OF THE GOVERNOR 4 MARK WHITE STATE CAPITOL COVEme.ca AUSTIN. TEXAS 78711 . l September 19, 1984 . Mr. Robert Browning Director i Division of Waste Management U. S. Nuclear Regulatory Comission Washington, D.C. 20555 I

Dear Mr. Browning:

We appreciate the oppurtunity for c.ontinued consultation with you and your staff on the draft revision of 10 CFR 60 - " Disposal of High-level Radioactive Wastes in Geologic Repositories". While we find no objection to most of the proposed modifications, there are several key points on which we are compelled to coment: (1) opportunity for state coment on the NRC site characterization analysis prior to its submission to t: Depa.tment of Energy, (2) trrevocable commitment by NRC to explicitly respond to the affected state coment on site characterization analyses, and (3) a defined mechanism for appeal to the Commission of state participation decisions by the Director of the NRC Office of Nuclear Material Safety and Safeguards l ( Nf tSS ) . Section references below apply to the July,1984 draf t revision to 10 CFR 60 (Document 7590-01). 1 Iteres (1) and (2) above concerns subpart B, sections 60.15 through c0.15 addressing site characteri:ation. In order to offer explicit comments on these sections, krowledge of the mechanics and schedule of interactions between NRC. and 00E in the site characterization process is necessary. The

                  *usclear Waste Policy Act provides broad guidance on this permn of the hign-lesel WJste dispCsal t?ogram. The Act also provides in ;ection 117 that the Comissica shall prwide timely anc cnmplate inforniation for, aeone;
                  .Ah n things, si'e characterization plans. Consistent with tnt;se provision.

et the: Act, we reco:me:nd that one or r!cre meetings be held for CCE, URC, potential nest states, and affected Indian tribes to develop the mechanics of the interactions surrounding the site characterization plan, site character-i:ation analysis, comments of the affected states and Indian tribes, and the initiation of site characterization activities. Until this prncess is ade-i quately defined we cannot prepare comprehensive. comments on the portions of 10 CTR 60 addressing participation in the site cnaracterization pl.anning procese. l In spite of the uncertainty presented t,y the lack of detail for the site chara'cteri:ation ::lanning process, we have prepared cont.ents on the current draf t revision cf 10 CFR 60 based on assumptions regarding details of that process. The three key assumptions are: (a) the DOE will not corrsnence site W 2519 Aanudsid by*l...: .._ _85g

                                                                                                .1
      ,, , . w _ _         n,-- _. e .       .  - -.

p 1 F . ' jZg N.$ Mr. Robert Browning. Director

                   'livision of Easte Manag pent                                        -

F September lu,19M 1 Page ? E. ~ G }.: r.n.irec ter i:s L im, an t i i th if nai site characteric4rinn analysis nas been

,J                 wbmitW. tu tNw rid addrened. (b) the NPC will be allocateo sufficient time to t0:talete a cwcrehend te process for a%essment of the CCE site charat te* i:ation plan, and (c} the DOE site cnaracterization plan will he modified t: address the issue; presented in tne site charactert:ation
                   .inalpis Vfure -i te char.acNei:ation begins. Ar rotM above. final ccet nts an 10 6R 60 cann:t ce pre.rared until these key issues are cefinitively a ddre=%0d .

With respect to the opportunity for state input, the revised rule contains two relevant provisions. At subsection 60.18(c) the Director of NMSS is permitted (but not required) to " invite and consider the views of interested persons on DOE's site characterization plan". This mechanism cculd allow some affected state input but only at the discretion of the Directer, and the comments would not be based on a draft site characterization analysis, in view of the removal of this provision in the draf t revision. The other relevant provision (subsection 60.18(f)) of the draf t revision instructs the Director of HMSS to request public consnent on the site char-acteri:ation analysis, but it is our understanding that the opportunity for comment will occur af ter the site characterization analysis is submitted to the DOE and further that the coninents will then simply be filed in the NRC Public Document Room.

                             "e submit that offices and agencies of each potential host state are          -

uniquely oualified, because of extensive familiarity with geotechnical dr.d Other factors regarding the potential sites and vicinities, to ioentiff relevant issues to be addressud in the site t.baracteri:ation plons and the ardlyses of those pidns. For exampie, in Texas, we have obtai.:ed cata from the Texas 0 apartment of Water Resources on quality and availability of water frem a water-bearing unit .hac had not been considered by 00[. This rec.og-M tion et anique state pers::ec.ive was, in fact, notes hy tt e NF.C in Nt; PEG-0539,

                     %e:c . f = Ir:p ..v mg '. tate Part'clMtion in the Liting, Li.;ensing, and Deminp-ace. t c.t S.dera ! .!u . lea r Wa s te .Sc i i t t ies . "

The ':.ed for gro. iter stat: input in the lici.nsing pri.ci s .a , cleerlj articciated ir c:a of the key ..asta management studie; nf re ent jears, th  ;

                     % part Y tr. ?rcsident by the 'nter.garcy Review Grcup cn k. lear Waste
                     '*anagenent (TID-29442, pp. 95-96). Although, the Nuclear Waste Policy Act rr:luires that hearings be held in the vicinity of sites to be characterized, cur experience suggests that DCE responses to these coments will not be adequate. The critical licensing role played by NRC should enhance the likelihood of DOE attention to concerns identified by the states if the NP.C linds merit in those concerns and passes them on to DOE in the site charac-teriz. tion analysis.

With respect to our concern that the NRC respond directly to comments of

 ,                   affected states, the key role of these states in the high-level waste manage-ment issue is clearly articulated in the Nuclear Waste Policy Act. State leadership of the affected states is identified as the focal point for inter-action between the federal government and affected parties. Because of that
           .,.         _:._a          ..
                                                ,,,,,_a,_,,,;,;,,,,_,_a---     -
                                                                                 ----.-~ ~                   .-

a.. p h Mr. Robert Brce 1?ng. 3irector l "'.'" Division of Waste '4anagement f.t September l'). I')M _ Fage 3 ($. . f. F regensibility, it is essential that thc state receive direct ecsponses to canecrn:, satmitted tu feceral autnori les nn kg progeh documents -- such as the site cht.racterization ar.,ily>is. We, tiierefore, reco:miend alteration at 10 CFR 60 to include an irrevocable comitment for direct fiRC response t: na t.! co....:ents un tha t docusaent. Congress recognized the states' critical - need for full irformation and, furthermore, grants spr-ific authority to obtain that infor:.etion in section 117 of the Nuclear aaste Policy Act. Finally, item (3) above concerns the provision in subpart C, subsection 60.63(e) which states that the Director of NMSS will accept or deny state participation proposals. In view of the relatively subjective determination re. quired to make such a decision based on the specified criteria (subsection 60.63(d)), we are concerned that a mechanism be defined for appeal of unfavor-atile decisions to the Commission. Based on discussions with you and your staff on July 27, 1984 and August 9,1984, we understand that staff decisions can always be appealed to the Commission itself and explicit statement of that option in 10 CFR 60 is not required. This understanding, if correct, sufficiently addresses our concern about this provisions. We strongly support your suggestien that language noting this opportunity for appeal to the Commission be included in the Statement of Consideration for this rule. We appreciate your providing a copy of jour draf t revision of 10 CFR 60 for review. I hope these comments are helpful in this revisinn of the high-leeml radioactive waste disposal regulations. Yours truly, r ( , f

                                                              ' O ,i. O l h Da r. 2:l th , Est,i s tar , Di rec W-       -
                                                             %ciaar Waste Programs Offica
                   .t:a.

M 3 teve F. ishaan. Director, Nuclear Waste Programs Of fir..$ i __- ._-.. - .. - - =

                                                               ,                                                           M MD                      L l
                                                  ,                olvtWon of Planning and Natural A. sources F# afE79J .

COEUR d'ALENE TRIBE OF IDAHO :M,Y

                                                    '                   ca.ur eAi.n. Tne i s..eauan.r.

Pt.UMMER. loAHu 8?A51

                                                                                                                                       *d5 73 251/P4:31 16 March 1985 L." Ice 'e W.h:7..k Secretary of the Ccemissicn                                   CCMET ,G & SEP.ll:

U.S. Nuclear Regulatory Ccmmissicn ND Washington, O. C. 20555 Sir: This is to ccmment en the prcposed rulemaking of Jan. 17, 1985 (Federal Register, Vol. 50, No.12, p. 2579), limiting notificatien, i funding, and participaticn by Indian Tribes to these having " affect-ed status" as defined under the Nuclear Waste Policy Act of 1982. Thus Section 60.2 would change " Indian Tribe" and " Tribal Organiza-tion" to "affected Indian Tribe" as cefined in the NWPA, which requires that "affected status" be determined by the Secretary of the Interior. I would bring to your attentien that the Secretary has fcund the Cceur d'Alene Tribe not entitled to "affected status" even though Lake Coeur d' Alene (one-third of which lies within the Cceur d'Alene Indian Reservation) and the.Cceur d' Alene River and its tributaries are crossad, recrossed, and skirted through much of their length by Ini.erstate 90, a primary transcortation rcute to the prcposed Hanford repository, and even though the Tribe's Reservation lies dennwind frcm Hanford in an area. wher's the soil has been transported frco as far away as Gregon by the prevailing winds, which bicw frca Hanford for the major part of the year. The definiticn is in any case rather peculiar, giving more imoortance to areas cutsice reservaticns, wnere Tribes have no =cre than fishing T'

                                                           .             hunting, and gathering rights, than to Reservation lands themselves,

ts where Tribal memters live.

                                                           ~,,s
                                       &              Q                                                                                                      _
                                         -                 .' i          In ccnjuncticn with Secticn 60.63, which new is to read "

7 (T 4 . State and 1ccal governments and affected Indian Tribes may partici-

                                                                                                                                                       . .     )

i w, j y pate in license reviews . . . . " the Cceur d' Alene Tribe is thus l 4Qg entirely excluded frcm the prccess., even though the potential camage i

                                       .s              ,

t to its lands certainly exceeds that to any 1ccal government's lands.

                                         -a M '.9                        The NRC shculd provide a means by which Tribes which do not meet MM                                                     the peculiar definiticn of "affected Tribe" even thcugn subject M    xg
                                                      $ .a3              to transportation and wincbcrne effects, can receive funding for effective participaticn in the prccess.

l

                                  .N ' g ~               d Respectfully,
                         ,                                                     f'ha               /                                                            j 4

l%g

7. James C. Albrecht e Natural Rescurces Planner f

m .dbyeint. _ - , l

F

  ~     _

N )R-60 n g . . (p Csue ,m9) Department of Energy Washington, D.C. 20585

                                    'iAR 21 1985 i

Mr. Samuel J. Chilk Secretary of the Comission Attention: Docketing and Service Branch U.S. Nuclear Regulatory Ccanission Washington, D.C. 29555

Dear Mr. Chilk:

      'me Depart:nent of mergy is pleased to respond to the request of the Maclear Regulatory Ccamission (NRC) for coments on the proposed proce-duz:al anendments to 10 CFR 60, published on January 17, 1985 (50 Federal Reaister 2579). The progrsed anendments should bring the regulation in line with the Nuclear %ce Policy Act of 198'2. Attached are our ccm-ments with re3- .m%d alternative language where appropriate. Most of our recemnended changes to the proposed or existing rules are in the

line-in/line-out for

n. Res wwesied additions are underlined and reccm-mended deletions are in brackets. For each reconmended change, we have added a brief rationale. We are available to meet with NRC concerning' the enclosed ccments. -

t l' Sincerely,

                                                             $l
                                                    ~

t. L /i C. Rusche, Director Office of Civilian Radioactive Waste . Management ,

i C

Enclosure:

DOE Ccanents on NRC Proposed Pavisions' to 10 CFR Part 60 b y l'

                                                                                   -.a. W ,.a . g l l l                                                                                                      l 6 eme         I
                                                           % ecm...H .88

• g 4 ,

                               ,                            DCE Ccaments on NRC Proposed Revisions to 19 CFR Part 69 l.3 COMMENTS CN SUPPI. DENTARY INFORMATICN

' DOE notes that the first footnote to page 2589 of the proposed rule identifies that the Cantent of Application Section (69.21) l will be reviewed after issuance of the tcE Siting G2idelines. We would encourage the NRC to propose any necessarf revisions to this section as soon as practicable in order to ensure that any i additional data deemed necessary by the NRC staff to make a finding can be factored into the site characterization activities and to minimize any unnecessary delay in the license application preparation activities which DOE has already begun. In addition,'Ceamissioner Asselstine requested comments on two matters set forth at page 2588 of the Proposed Bule. With ! regard to the first point raised by Conmissioner Asselstine, DOE agrees with NRC that discussion of the site screening and selection process in the site characterization plans is , neither necessary nor appropriate. This information will have l already received extensive and sufficient public review, j including a review by the NRC staff, during preparation of the i site specific envirormental assessments. Therefore, DOE agrees l with the deletion of the requirenent in the existing 19 CFR 69.11. ! as proposed by NRC. The second point r'aised by Caumissioner Asselstine deals with the timing of public review of NRC's site I characterization analyses. DOE agrees with NRC that circulation.

                                           . of a draft site characterization analysis for public coament is not necessary and that the rule should be promulgated as now proposed. Onder the proposed rule,- the public will have a                                               "

i sufficient opportunity to coament on the site characterization i analyses and to make the NRC aware of its concerns at any time

during the site characterization process. Also, DOE will be i interacting extensively with NT and the States and Indian tribes prior to the release of the site characterization plans.

i This will allow all parties anple opportunity to et:nment on ' DOE's planned activities during site characterization. - 2.9 SEC:' ION-BY-SlrTION ANALYSIS (The underlined wording should be inserted for the reasons specified i in the rationale.) Subpart B 69.15 (c) NRC has stated that it will be revising 19 CFR Part 51 (presently to make it consistent with the WPA. Pending this ' 69.19 (c)) revision, NRC should footnote the cross reference to Part 51.49 in Section 69.15(c) to indicate that WPA has l 3, superseded the current Section 51.49(d) This footnote  ! should identify Section 114(f) of the WPA as containing the envirormental review provisions applicable to  ! high level nuclear weste repositories.

• i I

                                                                                                                                                                            .f

I 60.15 (d) (2) The numcer of exploratory boreholes and shafts shall be limited to the extent practical, consistent with obtaining the infoc:tation needed for site characteri-zation, and with mine safety censiderations. 1 Rationale: Safety considerations might require more shafts than , are strictly necessary for site cnaracterization. l 60.16, In the proposed revisions to these sections, the word ,

,                                         66.17                    " area" is used synonymously with the tem " candidate

} site", as defined in the WPA and the Siting G2idelines.

Although E has expressed a preference not, to adopt the statutory tem in this case, DOE strongly kalieves that

, both agencies should adhere to the statutory terminology

to the greatest extent possible, in order to avoid the confusion that would result frca the two agencies having ,

different names for identical concepts. Accordingly,

                                                                  . JOE urges that E adopt the term " candidate site", and make any additional changes necessary to give its regulations the maximum congruence with statutory terminology.

66.18 (d) Within 150 days of receipt . of a site characterization plan fran 00E, the director shall provide to 00E the i site characterization analysis together with such l additional coments as may be warranted. These l coments shall include either a statsnant that the

Directog has no objection to the DOE's site character-

- ization program, if such a statement is appropriate, or specific objections with respect to DOE's program for characterization 'of the area concerned. In addition, the Director may make specific recarmendations pertinent to DOE's site characterization program.

l Within 96 days of receipt of a site characterization

plan from DOE, tne Director shall provide to 00E specific coments that, in the Director's view , -

snould ce considered by 00E prior to the sinxing of exploratory shafts. Rationale: The sinking of exploratory shafts at a candidate site is a critical path activity in each site characterization program. The site characterization programs thanselves are critical path activities in the overall weste management program. Accordingly, it is essential that a specified time be estan11shed for significant events that could affect those critical path activities. The comments of E on a site characterization plan is one of those ' significant events. The suggested modification to Section 60.18(d) provides for two much specified time intervals: first, a ninty (90) day period within . tdtich E will provide; to DOE those specific coments l _.-,,.,,.._,._.,,.._,.._-..,,,,,wn , , , ~ . . - ,n. ,..._, , _., , ..,,..._,,.-,...,..,_,n, . . -

                                                                                                                                           .,..,,,..,_,,..nn- - , .,,, -.

i l . .

                                                   .                                                                                                       i considered by TE prior to sinking exploratory shafts;                                                       ;

the second, a 159-day period for issuing the overall 1 i site characterization analysis. The ninty (99) day ' !' period is consistant with the time being planned for public review and coment on the scP's. This will ensure timely consideration of all ccanents prior to

sinking of exploratory shafts and minimize the

! potential for delays. l l 69.18 (e) If DOE's planned site characterization activities j include on-site testing with radioactive matarial, the ' Director's cannents shall include a detennination, if appropriate, that the Ctannission concurs that the pro-posed use of such radioactive material is necessary to , provide data for the preparation of the environmental i reports required by law and for an application to be sdanitted under 69.22 of this part. The Camnission will concur in the use of radioactive tracers if, at the end of site cnaracterization, they will be present in the geologic repository operations

area in concentrations less than those allowed by 4

Table II, 19 CFR 29. The removal of these trace amounts at the end of site -characterization sna11 not be required.

Rationale: the regulation does not differentiate betwen "18 matric tons of spent fuel" (the maximun amount Feenissible inder Section 13(c)(2)(B) (i)) and anall mounts of radio-active tracers. The proposed change is necessary to ~

allow DOE the flexibility to use radibactive tracers if -

! necessary in conducting site characterization activities. , 69.18 (h) During the conduct of site characterization activities, NRC staff shall be pez:nitted ... as they are done in j i accordance with the Procedural Agreenent and imoldiienting pro]ect specific acreenent betwen NRC and DOE in effect " ' i j at that time. l t 1 ]_ Rationale: DOE suggests that the regulation specifically reference { the existing DCE/NBC Procedure Agreement and the project , ' specific implenenting agreenent to preclude any' questions , concerning their ~ future applicability. I 1 New section i

69. Thnely Canaission Actien f

I l I The Cannission shall issue a final Msion aporoving or l i disapproving tne issuance of a construction authoriza- j tion not later than - i 4

1. January 1,1989, for the first such acclication

• I

                                           ~                                                                                                            .,

i and January 1,1992, for the second such . 4 application; or l

                                                                                                                                                       ' ,l I

4 t i

    -_- . - - .- - - - .               -w                 -         - - ~ - - -        - - - - - - ~ ~           - ~ ~ ~         ~      ' ^ ^ ^ ~

          -.    .         .                                  - .=. . -                           - .     . .  . -    __ . _-         - _

4 , 1 J

i. '

A *he exciratien of three voars after the date of l tne sucmission of such apolication, exceot enat the Camissien may extend sucn deadline by not acre than 12 mentna if, not less tnan 30 davs before such deadline, ne Ccamission comolles witn the reoorting requirenents estaclished av law; tdtichever is later. Rationale: This recc=nanded new section teuld recognize the i NRC's responsibility under Section 114(d) of the MGA to i reach a decision on construction authorization within the timetable set forth therein. Dot believes this time-table to be stringent, and therafere also believes that a specific regulatory provision to the effect of this roccamendation is desirable, in order to anphasize the NRC's dual obligations to conduct its licensing proceed-ings in a full, fair and open mannar, but also to reach

.                                                               its decisions in a timely manner.

4 I 1 1 1 i e I

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                                                                           *I..--

200t S ST R E CT, N. W.

• SulTC 430 WASHINGTON, D.C. scnago - ,.zg 31 GAIL McGRCEVY MARMON TELEPHONE CLLYN R. WCISS (202)326 3500 wlLLIAM S. JORDAN, lil .' '.' . . . .

                                                                                            . '^

OfANC CURRAN OCAN R. TOUSLEY . gg . - OXX':E .)a.L *!.L. Y:f - April 8, 1985 Samuel Chilk, Secretary U.S. Nuclear Regulatory Commission ATTN: Docketing and Service Branch Washington, D.C. 20555

Dear Mr. Ohilk:

Enclosed are the Comments of the Confederated Tri'bes and Bands of the Yakima Indian Nation on the Proposed Amendments to 10 CFR Part 60, 50 Fed. Reg. 2579. . Sincerely yours,

                                                                                         ,1 Q               . M Dean R. Tousley ASSOCIATE ATTORNEY FOR THE YAKIMA INDIAN NATION Enclosure                                                                                                       .

cc: Mr. Melvin R. Sampson

• Mr. Russell Jim '

Mr. James B. Hovis

                                                      % by conf....MR                                  9115

                                                        .                ..    ,r-   -

y . .-- m- - _: ain:31 UNITED STATES OF AMERI62 NUCLEAR REGULATORY COMMISSION

t .. *. ]

c q :,.,f m i :s. :D '. ggggcg l Disposal of High-Level Radioactive ) ' Waste in Geologic Repositories; ) 10 CFR Part 60  ; Amendments to Licensing Procedures ) 50 Fed. Reg. 2579 i _____________________________________) COMMENTS OF THE YAKIMA INDIAN NATION Pursuant to Nuclear Regulatory Commission notice publ.ished January 17, 1985, 50 Fed. Reg. 2579, the Confederated Tribes and Bands of the Yakima Indian Nation submit the following comments on NRC's proposed amendments to licensing, procedures for disposal of high-level radioactive waste in geologic repositories, 10 CFR Part 60. Except for the two matters discussed below, the Yakima Indian Nation has no objections to the other proposed amendmen'ts 2 to Part 60. I. THE COMMISSION INCORRECTLY CONCLUDES THAT IT LACKS AUTHORITY TO REVIEW DOE'S SITE SELECTION PROCESS. -' The proposed amendments to 10 CFR Part 60 would eliminate the I provision in 10 CFR S 60.11 that' the NRC review DOE's repository i site selection process. The Commission concludes that, since the i i l Nuclear Waste Policy Act ,("NWPA") does not explicitly provide for NRC review of the site screening and selection processes of the Department of Energy, "(sjuch a review by NRC is not necessary to i fulfill any of its statutory responsibilities." 50 Fed. Reg. . 2583, col. 2. The Yakima Indian Nation strongly disagrees. l - 1-l , _ . - _ - _ . . _ - , _ . - __. _ - . _. .

Apart from ignoring clear statu' tory authority to engage in a review of DOE's site selection process, NRC's failure to do so would be a policy mistake with profound implications for the likelihood of success of the national radioactive waste disposal program. A. NRC review of DOE's site selection process is not only authorized, but is required by the Atomic Energy Act of 1954, the Energy Reorganization Act of 1974, the National Environmental Policy Act of 1969, and the Nuclear Waste Pclicy Act of 1982. The lack of explicit NWPA provisions for NRC review of DOE's site selection process--other than the Commission's concurrence in the general siting guidelines--does not dispose of the possible sources of statutory authority for the Commission to do so. On the contrary, the NWPA quite clearly provides that NRC au.hority to promulgate technical requirements and criteria (i.e., Part 60) is pursuant to "other provisions of law." NWPA 5 121(b)(1)(A). i The NWPA specifically mentions as such authority the Atomic Energy Act of 1954 (42 U.S.C. I 2011 et seq.) and the Energy Reorganization Ac.t of 1974 (42 U.S.C. $ 5801 et seq.). Thus, Congress did not intend in the NWPA to prescribe the scope of NRC . review of DOE's repository program. Rather, the authority for NRC requirements and their appropriate scope are derived from those "other provisions of law." The Atomic Energy Act, as amended by the Energy Reorganization Act, is the NRC's organic statute. It assigns to the NRC the primary responsibility for assuring that the public health and safety and the environment are adequately protected

                                                                                                                                                                                                                                                    .     . i E

j from the hazards associated with activities involving radioactive materials, including disposal. Section 202 of the Energy I Reorganization Act explictly establishes NRC authority to license , , and regulate high-level waste repositories, 42 U.S.C. 9 5842. i ! In' sharp contrast to questions of nuclear power plant safety,  !

                                                                                                                                                                                                                                                             ?

the primary determinant of the adequacy of a high-level  ! l radioactive waste repository over the very long periods of concern i I

will be not engineered features, but rather the natural, geologic l I

characteristics of the site chosen. Congress emphasized this [ i

;                                                                                                                                                                                                                                                            i point when it required in the NWPA that detailed geologic                                                                                                                                                                             [

i 1 d j considerations should be the primary criteria for the selection of l l t j sites for repositories, NWPA 5 ll2(a), and when it established f l - i i elaborate procedures for the selection of sites. See NWPA SS I 112-118. This primacy of natural site conditions in determining the adequacy of a proposed repository means that siting is the. i i absolute essence of the NRC's mandated public health and safety [ j and environmental protection responsibilities under the t  ; i

    ,                 above-cited statutes.                                                                                                                                                                                                                  !

f r I l The repository site selection process is by far the most jr l* important aspect of the adequacy of the repository program. Thus, ! for NRC to decline to review that process in the crucial early . i, stages of selecting sites for characterization would be a basic  ! abdication of its public health and safety and environmental I i protection responsibilities under the Atomic Energy Act and Energy Reorganization Act. NRC cannot hope to adequately discharge its  : r responsibilities by deferring its review of the sites until the  ! stage of repository construction authorization. i I y i i

I i Moreover, the commission's responsibilities under the National Environmental Protection Act ("NEPA") require it to engage in evaluation of alternatives as a part of its licensing process. Under NWPA 9 Il4(f), the Commission must, to the extent practicable, adopt the environmental impact statement submitted by DOE with its application for construction authorization as its own. Under the same section, the alternatives considered in that

• EIS for purposes of NEPA compliance are those 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 il2(a).

, Thus, the sites which DOE selects for characterization now will be i 4 the only effective alternatives that the Commission will have to j consider in fulfilling its NEPA responsibilities. It was precisely in recognition of this fact that the Qommission I required, as a condition of its concurrence in DOE's siting guidelines, that DOE agree to make the " preliminary dotermination j 1 of suitability" at the end of site characterization instead of ,' l l before it, as DOE had proposed. The Commission recognized at that' I time that if DOE did not have strong incentives to select the must

• suitable sites for characterization, the Department might later i

l come to the Commission with an EIS which considers unacceptable ' l alternatives. For the same reason of satisfactory NEPA compliance, the l Commission must play an active role in reviewing DOE's comparison and selection of sites for characterization. Indeed, NEPA was ' cited by the commission as its primary authority for the original

                                      -4

                                                                                                                                    =     ;

} i promulgation of Part 60. 46 Fe'd. Reg. 13922. The same NEPA responsibilities which prompted the original promulgation of Part i 60, including its requirement for NRC review of DOE's site

                                                                                                                                          \

selection process, remains unaltered'by the NWPA. [ i i In the most important court case interpreting the  ! i i l Commission's role in NEPA implementation, the U.S. Court of f Appeals for the D.C. Circuit wrote: i t NEPA requires that an agency must--to the fullest extent  ! possible under its other statutory ooligations--consider i alternatives damage. to its actions which would reduce environaestal  ; That principle establishes that consideration of { ] environmental matters must be more than a pro forma ritual.  ! Such a full exercise of substantive discretion is required at  ; ) every important, appropriate and nonduplicative stage of an [ ] agency's proceedings.

• 4 i l Calvert Cliffs Coordinating Committee, Inc. v. U. S. .4tomic Energy Commission, 449 F.2d 1109, 1128 (D.C. Cir. 1971)

(Emphasis in the original). The only alternatives which the . i

commission need consider under the NEPA modifications included in  ;

t the NWPA are the three sites which are celected for r i characterization by DOE. NWPA 9 Il4(f). If DOE selects for  ! characterization sites which are unlikely to prove to be suitable I alternatives for NEPA purposes, NRC will not have an acceptable i b EIS which it can adopt. a  !

' Since ultimate NRC satisfaction of its NEPA responsibility is >

[ r being profoundly affected by present DOE actions in selecting  ! sites for characterization, there can be no question but that this  ! i is an "important, appropriate and nonduplicative stage of (the] f t proceeding" which requires NRC's " full exercise of its substantive ' discretion". On'ly aggressive NRC review and oversight of the DOE

I~ .'l >

    .       .                                                                                           5 9
                                                                                           ,~

selection of sites for characte'rization can ensure 3the i f J,' Commission's ability to adopt the DOE EIS. Finally, the NWPA explicitly does not compel the Commission i to amend or narrow the scope of its licensing requirements. NWPA

i l 9 ll4(f) states, in part: I l nothing in this subsection shall affect any, independent responsibilities of the Commission to protect the public l l health and safety under the Atomic Energy Act .... Nothlag '

{ i in this Act shall be construed to amend or otherwise detract l from the licensing requirements of the Nucler (sic] ' l Regulatory consission as established in title II of the ' Energy Reorganization Act of 1974. . . .

                                                                                %      s                           >

s (Emphasis added.) Congress was well aware of the existing ' i i s provisions of Part 60 when it passed the NWPA,'end incorporated ,s" ' ) Y many of them in Lhe Act. However, in light of the above langua'ge, s

• j j it could not be more clear that Congress did not intend its l

r. ,

failure to incorporate all of the details of Part 60 in the Act to *' i ! i be deemed as implicit rejections of them. Inconsistent .  ! I j provisions, such as the commission properly addresses in other aspects of the instant proposal, obviously warrant amendments by g, f the NRC. On the other hand, where Congress was silent on a subject i already addressed by the Commission in Part 60--such as NRC review ~ I of DOE's site selection process--Congress.made plain its intent that NRC licensing and regulatory requirements not be deemed f l Laplicitly curtailed by any provision in the NWPA. l j l Thus, the Commission's conclusion that the NWPA by omission t l somehow proscribes its review of DOE's site seiection process is patently incorrect. As discusse'd above, Commission responsibilities under its organic statutes and NEPA require such . > [ F p _. _ _. ._.. I

a review, and the NWPA is entir~ely consistent with those requirements. Recommendation

         ,        The Commission should amend Part 60 to explicitly mandate thorough NRC review of the draft EAs, including the methodology used by DOE in the comparison of sites.         Provision for only a partial NRC EA review in the NRC/ DOE Procedural Agreement is not -

sufficient, since the NRC's failure to review DOE's comparison methodoiogy is a basic abdication of its statutory . responsibilities, and the Procedural Agreement is too easily amended without the benefit of pubLic participation. ,

8. NRC failure to review DOE's site selection process and comparison methodology would be a policy mistake which significantly increases the chance for another major failure in the nation's nuclear waste disposal program. ,

Policy considerations apart from any statutory requirements argue even more strongly for NRC review of DOE's site comparison and selection process. If DOE makes serious missteps in its site selection process ias virtually all of the affected parties believe they are doing now), the Commission's only recourse at the , q time a final site is selected will be to reject DOE's application d

for a construction authorization. Certainly the adverse

• implications of such a development for the successful and timely implementation of a repository would far ' outweigh any possible costs associated with a less deferential Commission stance on site selection for characterization now.

Serious federal efforts to locate a reposLtory have been l . thwarted at least twice in the past by the technical and political' I siting blunders of DOE's predecessor agencies. The extensive

                                              -1  .                                     i

s I s state and tribal participation Drescribed by the NWPA for the siting process ought to do much to improve the political ' atmosphere, but it does not substitute for thorough technical l oversight by the agency responsible for protecting public health  ! and safety and the environment--the NRC. In sum, the Yakima Indian Nation strongly supports the l position expressed by Commissioner Asselstine, 50 Fed. Reg. 2588, that NRC should retain the 10 CFR S 60.11 requirement for NRC review of the site screening and selection process which is now to be documented in the environmental assessments.' Alternatively (but less desireably), the Commission should require-a thorough site selection discussion in the site characterization plans pursuant to its authority under NWPA 9 ll3(b)(1)(A)(v). and the commission should thoroughly review that discussion in its site characterization analysis. II. THE COMMISSION SHOULD RETAIN THE PRESENT REQUIREMENT FOR ISSUANCE OF A DRAFT SITE CHARACTERIZATION ANALYSIS FOR PUBLIC COMMENT. I The Commission contends that the 10 CFR 9 ad.ll requirement for issuance of a draft site characterization analysis ("SCA") for # ( e public comment is no longer needed because of the new timing for.'a site characterization plan ("SCP") and the prior opportunities for interactions among DOE and other program participants. While the NWPA does provide for additional opportunities for DOE interactibn with states and Indian tribes prior to issuance of the SCP, that ,. 4 does not obviate the utility of Commission issuance of its SCA in draft form. 4

i In addition to providing a' vehicle to involve the public in  ; the decision-making process, the issuance for public comment of a i draft SCA also serves as a means of assisting the Commission in preparing its own analysis. That function, which the Yakima Indian Nation believes is very important, is unaffected by any changes imposed by the NWPA.  ! Experience to date in this program has shown that the views i of affect states and Indian tribes and public interest groups can be very important in the development of the Commission's positions I on important issues in the waste disposal program. For example, the Commission's stance on DOE's proposed general siting i guidelines was obviously quite materially affected by the arguments presented to the Commission by affected parties on that , issue. The guidelines were significantly improved as a result of that influence. Since affected states and tribes have the benefit . of NWPA funding for their participation in this program, their resources are better than usual to provide well-considered I comments. The ability of the affected parties to present their own ~ comments to DOE on the SCPs is very important, but those comments do not have the impact of the comments of the regulator. Once r again, the experience with the siting guidelines is an excellent  ! l example of this point. Most of the revisions which the Commission  ! sought in DOE's proposed siting guidelines were basically the same as revisions which were sought by the states and Indian tribes for a year prior to their submission to_the Commission for concurrence. DOE (and the NRC Staff) largely ignored our comments

                                      -  g-

until they were pressed by the Commission itself in its  ! conditional concurrence decision. The Commission's SCAs can in a like manner be beneficially affected by an opportunity for comments by affected parties prior to finalization. It is no slight to the competence of the Commission Staff to state that NWPA-funded affected states and tribes might identify important issues and arguments which the Staff overlooked, but would want to include. Neither comments to DOE on the SCP nor informal opportunities to comment to NRC under the Procedural Agreement will substitute for an opportunity to comment on NRC's analysis of the SCPs. As far as the scheduling mandates of the NWPA are concerned, the YIN feels strongly that the benefits to the Commission and the program to be derived from comments on draft SCAs far outweigh the costs in terms of delay. In addition, the Commission can specify a relatively short comment period (e.g., 30 days) and. refuse to grant extensions. While this would be less than ideal from the viewpoint of prospective commenters, it would be far better than no opportunity to comment at all. ' To conclude, the Yakima Indian Nation strongly supports the view of Commissioner Anselstine that the present requirement in 10 CFR S 60.11 for NRC issuance of draft site characterization analyses for public comment should be retained. Nothing in the NWPA requires or even suggests the deletion of this procedural step, and the potential benefits of it far outweigh the potential costs.

Respectfully submitted,

                                                  ) ll

($W.Ron $, . m,'ma./a Dean R. Tousley HARMON, WEISS & JORDAN 2001 S Street, N.W. Suite 430 Washington, D.C. 20009 ASSOCIATE ATTORNEY FOR April 8, 1985 THE YAKIMA INDIAN NATION 9 l l l

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     , 'r ^ee          Um.ted States Department of theInteriorcsoes.ae79) r            e M                            OFFICE OF THE. SECRETARY
         ;D                               WASHINGTON, D.C. 20240 I%7/8  "

ER 85/134 . APR 1 1 GB5 Secretary of the Commission W A915 Mist U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gracg+,:j 00Cxe, g, g ,g , u im

                                                                                   ,.R:n  TE9vi7*

Dear Sir:

The Department of the Interior has reviewed the proposed Amendments to Licensing Procedures for Disposal of High-Level Radioactive Waste in Geologic Repositories as noted in the Federal Register on January 17,1985, and has the following comments. General The revisions as proposed would no longer require the preparation of draft Site Characterization Analyses (SCAs) by the Nuclear Regulatory Commission (NRC) for the Department of Energy (DOE) Site Characterization Plans (SCPs) for candidate repository sites. As proposed, only final SCAs would be required. No public comment would be invited until the SCAs have been completed by NRC. This revision decreases the oppwtunities for this Department to alleviate potential conflicts or issues concerning natural resources under our jurisdiction. Likewise issues within our areas of expertise might not surface until well into the SCA process. An explanation for this revision is given on page 2584 of the Notice. The stated reasons for this change include (1) the extensive opportunities for interaction between NRC, DOE, the States, affected Indian tribes, and the public regarding the sites recommended for characterization, .and (2) scheduling mandates for the Nuclear Waste Policy Act of 1982 (NWPA). Given that the review opportunities affwded the general public are also our only oppwtunities, we are concerned that NRC's proposed changes will limit this Department's participation in the licensing of repositories until very late in the decision process. We agree that numerous opportunities are available to interact with DOE during pre-licensing activities (e.g., opportunities to comment on draft Environmental Assessments ~ and SCPs and to present testimony at related hearings). However, during this same period of time, specific opportunities to interact directly with NRC, the ultimate licensing authwity, are relatively limited. The review of draft SCAs would provide such a specifle opportunity. In additfon, it is unclear that the scheduling mandates of NWPA will not accommodate draft and final SCAs prepared by NRC [see page 26 (Figure 9) and I page 55 (Table 3), Preliminary Draft, Project Decision Schedule, Radioactive Waste 1 Management System, DOE /RW-0018, January 1985]. We recommend retaining the present requirement for the preparation of a draft SCA because it allows for early conflict resolution. We would also urge that the final rulemaking provide a mechanism to involve any Federal land management agency in site screening and selection whose management responsibilities may be affected by a geologic repository. Otherwise, the affected agency might have to cope with schedules developed independently by DOE and other entities. t l Ac5=adad wc=S..I.18 pas oj .-

Secret ry of the Commissien 2 1 A procedural agreement similar to that between DOE and the NRC should be executed between DOE and any affected Federal land management agency to assure that information flow is maintained to facilitate each organization's mission with regard to site investigation and characterization, and to ensure that affected land management i agencies are informed of and invited to all technical meetings. An additional concern is that NRC's future plans include revisions to 10 CFR 51, which governs its procedures fw NEPA compliance under the NWPA. With such revisions, NRC i could lessen the level ed effectiveness of the Department of the Interior's role, in { reviewing license applications and the development of disposal activities. We urge the  ! Department of the Interior be allowed to review any proposed revisions to NRC's NEPA l compilance procedures. i Specific Comments to 10 CFR 60, Subpart B Proposed Revisions 560.17 - This section specifies the contents of the SCP that DOE must submit to NRC as l part of the licensing process for a repository. We recognize that there are several j changes to this section that are necessitated by the provisions of the NWPA; however, j there are other revisions to this section that we believe should not be made and are not t necessitated by the NWPA. Foremost, we recommend that NRC retain the requirement I for DOE to identify in a SCP the criteria used to arrive at the candidate area and to  ! describe the process by which the site was selected for characterization. Although the l preamble states that NRC anticipates that such information would _be provided by DOE in the environmental assessment to accompany the SCP we do not believe such infwmation { should be deleted from DOE's plan, which serves as the " record of decision" document for ~ the proposed site. The decision process for site selection should require DOE to identify, l

address, and describe the means by which issues of concern raised by the public were then considered by DOE. Further, our review of the assessments for the nine sites issued l for consideration in December 1984 by DOE indicated many conclusions reached in these j

'     EA's were based upon erroneous reasonings. However, such information will be fully              !

addressed in the environmental documents accompanying this plan, nothing more than an  ! executive summary of the issues and an iteration of DOE's analysis and decision need be j presented in the SCP.  ; j We recommend that NRC spell out precisely what type of information and the level of i analysis that must be reflected in DOE's SCP and its overall licensing application to ( NRC, because the information required in this proposed rulemaking is vague. We believe the NRC should qualify the information needed tw adequate review of applications. To i  ! merely state that the DOE will understand and provide information to the level of detail ' required by the NRC and other statutory reviewers (e.g., Department of the Interior) is  ; not adequate. Considering the fact that the NRC and DOE appear to be attempting to i lessen opportunities for the general public and other Federal agencies to participate i throughout the decision process, it is difficult to know how reviewers, other than the  ! NRC, may be able to request further information or analysis from DOE.  ! We recommend that NRC's requirement for DOE to plan for not only mitigating i significant adverse impacts but also recialming the site be retained within the proposed i i rules. Under paragraph (aX3) of this section, NRC does not require DOE to plan for - l

reclaiming the site, but merely to plan for mitigating any significant adverse  ;

environmental impacts that occur as a result of site characterization. We believe  ! l

i Secretary of tha Commission 3 l regulatory revision is a serious omission by NRC in light of the fact that reclamation plaming is required by the NWPA [42 U.S.C.10133(cX4)l. 560.18 - This section considers the review procedures for site characterization activities. We recommend that NRC retain the provisions for public participation rather than adopt the changes as proposed in this document. As stated above, it appears that NRC/ DOE proposes to limit general public involvement to compliance with NEPA only and to minimize State, Indian tribe, and other Federal agency involvement on decision documents. NRC will continue to publish a notice in the Federal Register that a SCP has l been received from DOE and that NRC staff review has begun. However, according to i paragraph (a) of this section, NRC is proposing to no longer afford the public an l opportunity to consult with staff and discus issues of concern during staff review, but merely allow the public to contact the NRC staff for inform.: tion on the proposal. Also, along the same vein, paragmph (c) of this section proposes the' GC may invite and may consider the views of interested persons. We believe the proposal is a much less responsive policy than presently exercised by NRC under its existing regulations. These regulations state: "The Director shall publish a notice of availability of the draft. analysis and . request comment .. The Director shall then prepare a final... analysis which shall take into account comments received and any additionalinformation acquired during the comment period."[10 CFR 60, ll(d)-(e)]. We hope these comments will be helpful to you. Sincerely, (,dly 63/C  ! ruce Blanchard, Director

                                                                      #   Environmental Project Review l

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                                                                   '85 APR 18 21;53 April 17, 1985 0FT'OE # !!Crir.iAF -

OCCMEhNG a SE?vfCf SPANCH Honorable Samuel Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: 10 CFR Part 60 Amendments

Dear Secretary Chilk:

On January 17, 1985, the Commission issued for public comment proposed amendments to 10 CFR Part 60, Licensing Procedures for Disposal of High-level Radioactive Waste in Geologic Repositories, 50 Fed. Reg. 2579. Because of the coin.cident deadlines for submission of comments on these proposed amendments and on the draft environmental assessments for proposed repository sites, the Yakima Indian Nation filed its comments on these amendments late, on April 8, 1985. As detailed in our comments (enclosed), the Yakima Indian Nation feels strongly that the proposed amendments, if adopted as proposed, would seriously undermine the Commission's ability to fulfill its statutory responsibilities in the nuclear waste program. Moreover, the proposed amendments would greatly increase the likelihood that the national nuclear waste disposal program would experience very significant unnecessary delays or outright failures in its implementation. In brief, we believe the - Commission staff's reluctance to engage in a thorough review of the Department of Energy's site screening and selection process constitutes a fundamental abdication of the Commission's public health and safety and environmental protection responsibilities under the Atomic Energy Act, the National Environmental Policy Act, and the Energy Reorganization Act. Moreover, contrary to the  ; commission's position expressed in the proposed amendments, nothing in the Nuclear Waste Policy Act either requires or suggests such deference by the Commission concerning the selection of sites for characterization. Because these issues have such profound implications for the Commission's responsibilities in this crucial national program and l for the success of the program itself, the Yakima Nation feels ' that they deserve a higher degree of scrutiny than the Commission might ordinarily devote to such a rulemaking. For this reason, we apo * - cqq Ackm*oesa by ca rt . . . . . . . . . . . . ,

l Honorable Samuel Chilk, Secretary ) April 17, 1985 Page 2 request that the Commission schedule a public meeting before voting on promulgation of a final rule to receive oral comments on this proposed rule from the staff, affected states, Indian tribes, and representatives of the general public that have submitted comments on the proposal. Such a session, similar to the ones which the Commission held during its consideration of the concurrence in DOE's general siting guidelines, would serve to illuminate the issues in this vital rulemaking for the Commissioners' benefit, and, whether or not it changed the outcome, would result in a better-informed Commission decision. The Yakima Nation urges your favorable consideratio1 of this request. Sincerely yours,

                                          '_         A-f_MELVIN'R. SMON,[=       __

- l Vice Chairman /

Yakima Tribal Council MPS:1s Encic:Ure 9

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

                                                                                                       )                                                                !

Disposal of High-Level Radioactive ) l Waste in Geologic Repositories; ) 10 CFR Part 60  : Amendments to Licensing Procedures ) 50 Fed. Reg. 2579 l

                                                                                                       )

COMMENTS OF THE YAKIMA INDIAN NATION Pursuant to Nuclear Regulatory Commission notice published January 17, 1985, 50 Fed. Reg. 2579, the Confederated Tribes and Bands of the Yakima Indian Nation submit the following comments i on NRC's proposed amendments to licensing procedures for disposal of high-level radioactive waste in geologic repositories, 10 CFR Part 60. Except for the two matters discussed below, the Yakima Indian Nation has no objections to the other proposed amendments to Part 60. I. THE COMMISSION INCORRECTLY CONCLUDES THAT IT LACES AUTHORITY TO REVIEW DOE'S SITE SELECTION PROCESS. The proposed amendments to 10 CFR Part 60 would eliminate the provision in 10 CFR S 60.11 that the NRC review DOE's repository site selection process. The Commission concludes that, since the Nuclear Waste Policy Act ("NWPA") does not explicitly provide for NRC review of the site screening and selection processes of the Department of Energy, "[sjuch a review by,NRC is not necessary to fulfill any of its statutory responsibilities." 50 Fed. Reg. 1-

     - - - , , , , . -                 , , , , . - - - , , - .w-,v..  .    , w,   ,,,.,,,-_.,,y_#__

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2583, col. 2. The Yakina Indian Nation strongly disagrees. Apart from ignoring clear statutory authority to engage in a review of DOE's site selection process, NRC's failure to do so would be a policy mistake with profound implications for the likelihood of success of the national radioactive waste disposal program. A. NRC review of DOE's site selection process is not only authorized, but is required by the Atomic Energy Act of 1954, the Energy Reorganization Act of 1974, the National Environmental Policy Act of 1969, and the Nuclear Waste Policy Act of 1982. The lack of explicit NWPA provisions for NRC review of DOE's 1 site selection process--other than the. commission's concurrence in the general siting guidelines--does not dispose of the possible sources of statutory authority for the Commission to do so. On the contrary, the NWPA quite clearly provides that NRC authority to promulgate technical requirements and criteria (i.e., Part 60) is pursuant to "other provisions of law." NWPA S 121(b)(1)(A). The NWPA specifically mentions as such authority the Atomic Energy l Act of 1954 (42 U.S.C. S 2011 et seq.) and the Energy Reorganization Act of 1974 (42 U.S.C. 9 5801 et seq.). Thus, Congress did not intend in the NWPA to prescribe the scope of NRC review of DOE's repository program. Rather, the authority for NRC i requirements and their appropriate scope are derived from those "other provisions of law." The. Atomic Energy Act, as amended by the Energy Reorganization Act, is the NRC's organic statute. It assigns to-the NRC the primary responsibility for assuring that the public i

i health and safety and the environment are adequately protected ~ l from the hazards associated with activities involving radioactive materials, including disposal. Section 202 of the Energy Reorganization Act explictly establishes NRC authority to license and regulate high-level waste repositories, 42 U.S.C. S 5842. In sharp contrast to questions of nuclear power plant safety, the primary determinant of the adequacy of a high-level radioactive waste repository over the very ,long periods of concern will be not engineered features, but rather the natural, geologic characteristics of the site chosen. Congress emphasized this point when it required in the NWPA that detailed geologic considerations should be the primary criteria for the selection of' sites for repositories, NWPA S 112(a), and when it established i elaborate procedures for the' selection of sites. - See NWP A S S , 112-118. This primacy of natural site conditions in determining i i' the adequacy of a proposed repository means that siting id the absolute essence of the NRC's mandated public health and safety i and environmental protection responsibilities under the  ! above-cited statutes. l  ; The repository site selection process is by far the most  ! important aspect of the adequacy of the repository program. Thus, j for NRC to decline to review that process in the crucial early i, stages of selecting sites for characterization would be a basic abdication of its public health and safety and environmental [; protection responsibilities under the Atomic Energy Act and Energy Reorganization Act. NRC cannot hope to adequately discharge its , [ responsibilities by deferring its^ review of the sites until the  ; I __ .__-_.-___._1__2._ *

                                     . _ .  ._.._.._-._.L.2__-.__.____.  . .__r %_._ _ _.

____1____.-. -_ n

stage of repository construction authorization. l Moreover, the Commission's responsibilities under the  ! National Environmental Protection Act ("NEPA") require it to f engage in evaluation of alternatives as a part of its licensing process. Under NWPA $ ll4( f), the Commission Lust, to the extent j practicable, adopt the environmental impact statement submitted by l ! DOE with its application for construction authorization as its  : i own. Under the same section, the alternatives considered in that i EIS for purposes of NEPA compliance are those 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  ! Il2(a). - Thus, the sites which DOE selects for characterization now will ue f, the only effective alternatives that the Commission will have to  : r consider in fulfilling its NEPA responsibilities. It was precisely in recognition of this fact that the Commission  ! required, as a condition of its concurrence in DOE's siting guidelines, that DOE agree to make the " preliminary determination .! t I i of suitability" at the end of site characterization instead of . ! l j before it, as DOE had proposed. The Commission recognized at that  !; time that if DOE did not have strong incentives to select the most , suitable sites for characterization, the Department might later i  ; come to the Commission with an EIS which considers unacceptable  ! i

• j alternatives. '

For the same reason of satisfactory NEPA compliance, the l t commission must play an active role in reviewing DOE's comparison  ; j and selection of sites for characterization. Indeed, NEPA was i t I

t j i cited by the Commission as its primary authority for the original l promulgation of Part 60. 46 Fed. Reg. 13922. The same NEPA responsibilities which prompted the original promulgation of Part  ! i 60, including its requirement for NRC review of DOE's site  ! 4 i selection process, remains unaltered by the NWPA. j e

;          In the most important court case interpreting the                                       l

' t Commission's role in NEPA implementation, the U.S. Court of l Appeals for the C.C. Circuit wrote-NEPA requires tant an agency must--to the fullest extent i possible under its other statutory obligations--consider l alternatives to its actions-which would reduce environmental damage. That principle establishes that consideration of j environmental matters must be more than a pro forma ritual.  ! Such a full exercise of substantive discretion is required at  ! every important, aporopriate and nonduplicative stage of an l agency's proceedings.  ! r Calvert Cliffs Coordinatins Co.maittee, In c. v. U. S. Atomic l Energy Commission, 449 F.2d 1109, 1128 (D.C. Cir. 1971) (Emphasis in the original) The only alternatives which the Commission need consider under the NEPA modifications included in the NWPA are the three sites which are selected for L characterization by DOE. NWPA 5 ll4(f). If DOE selects for characterization sites which are unlikely to prove to be suitable j alternatives for NEPA purposes, NHC will not have an acceptable  ! EIS which it can adopt. I Since ultimate NRC satisfaction of its NEPA responsibility is i being profoundly affected by present DOE actions in selecting sites for characterization, there can be no question but that this i is an "important, appropriate and nonduplicative stage of (the] I proceeding" which requires NRC's " full exercise of its substantive i i

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• discretion". Only aggressive NRC review and oversight of the DOE selection of sites for characterization can ensure the

, Commission's ability to adopt the DOE EIS. Finally, the NWPA explicitly does not compel the Cosmission to amend or narrow the scope of its licensing requirements. NWPA 5 114( f) states, in part: nothing in this subsection shall affect any independent responsibilities of the Commission to protect the public health and safety under the Atomic Energy Act .... Nothing in this Act shall be construed to amend or otherwise detract from the licensing requirements of the Nucler [ sic] Regulatory Commission as established in title II of the Energy Reorganization Act of 1974. . . . (Emphasis added.) Congress was well aware of the existing s provisions of Part 60 when it passed the NWPA, and incorporated many of them in the Act. However, in light of the above language, it could'not be more clear that Congress did not intend its failure to incorporate all of the details of Part 60 in the Act to j be deemed as implicit rejections of them. Inconsistent provisions, such as the Commission properly addresses in dy.her aspects of the instant proposal, obviously warrant amendments by the NRC. On the other hand, where Congress was silent on a subject ~ already addressed by the Commission in Part 60--such as NRC review of DOE's site selection process--Congress made plain its intent that NRC licensing and regulatory requirements not h4 ' deemed implicitly curtailed by any provision in the NWPA. Thus, the Commission's conclusion that tne NWPA by omission somehow proscribes its review of DOE's site selection process is patently incorrect. As discussed above, Commission responsibilities under its organic statutes and NEPA require such 6-

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l l a review, and the NWPA is entirely consistent with those requirements. Recommendation The commission should amend Part 60 to explicitly mandate thorough NRC review of the draft EAs, including the methodology used by DOE in the comparison of sites. Provision for only a partial NRC EA review in the NRC/ DOE Procedural Agreement is not sufficient, since the NRC's failure to review DOE's comparison methodology is a basic abdication of its statutory respensibilities, and the Procedural Agreement is too easily l amended without the benefit of public participation. S. NRC failure to review DOE's site selection process and ' comparison methodology would be a policy mistake which ' significantly increases the chance for another major failure in the nation's nuclear weste disposal' program. Policy considerations apart from any statutory requirements i argue even more strongly for NRC review of DOE's site comparison and selection process. If DOE makes serious missteps in its site { selection process (as virtually all of the affected parties believe they are doing now), the Commission's only recourse at the . I time a final site is selected will be to reject DOE's~ application  ! i for a construction authorization. Certainly the adverse j implications of such a development for the successful and timely i l implementation of a repository would far outweigh any possible t. costs associated with a less deferential Commission stance on site 3 selection for characterization now.

                                                                                                   )

i I Serious federal efforts to locate a repository have been l thwarted at least twice in the past by the technical and political siting blunders of DOE's predecessor agencies. The extensive l l

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state and tribal participation prescribed by the NWP for the siting process ought to do much to improve the political atmosphere, but it does not substitute for thorough technical oversight by the agency responsible for protecting public health and safety and the environment--the NRC. In sum, the Yakima Indian Nation strongly supports the position expressed by Commissioner Asselstine, 50 Fed. Reg. 2588, that NRC should retain the 10 CFR 9 60.11 requirement for NRC review of the site screening and selection process which is now to be documented in the environmental assessments. Alternatively (but less desireably), the Commission should require a thorough site selection discussion in the site characterization plans pursuant to its authority under NWPA 9 113(b)(1)(A)(v), and the commission should thoroughly review that discussion in its site characterization analysis. I II. THE COMMISSION SHOULD RETAIN THE PRESENT REQUIREMENT FOR ISSUANCE OF A DRAFT SITE CHARACTERIZATION ANALYSIS FOR PUBLIC COMMENT. The Comm_ssion contends that the 10 CFR 9 60.11 requirement i for issuance of a draft site characterization analysis ("SCA") for ( public comment is no longer needed because of the new timing for a f site characterization plan ("SCP") and the prior opportunities for i interactions among DOE and other program participants. While the NWPA does provide for additional opportunities for DOE interaction  ! l with states and Indian tribes prior to issuance of the SCP, that  ! does not obviate the utility of Commission issuance of its SCA in. 'k draft form. , i ,

O In addition to providing a vehicle to involve the public in i the decision-making process, the issuance for public comment of a draft SCA also serves as a means of assisting the Commission in preparing its own analysis. That function, which the ~takima In'dian Nation believes is very important, is unaffected by any changes imposed by the NWPA. Experience to date in this program has shown that the views of affect states and Indian tribes and public interest groups can be very important in the development of the commiasion's positions j on important issues in the waste disposal program. For example, the Commission's stance on DOE's proposed general siting guidelines was obviously quite materially affected by the arguments presented to the commission by affected parties on that 3 issue. The guidelines were significantly improved.as a result of that influence. Since affected states and tribes have the benefit I of NWPA funding for their participation in this program, their , resources are better than usual to provide well-considered - comments. l The ability of the affected parties to present their own i comments to DOE on the SCPs is very important, but those comments [ do not have the impact of the comments of the regulator. Once  ! again, the experience with the siting guidelines is an excellent  ! example of this point. Most of the revisions which the Commission  ! sought in DOE's proposed siting guidelines were basically the same l as revisions which were sought by the states and Indian tribes for i a year prior to their submission to the Commission for t concurrence. DOE (and the NRC Staff) largely ignored our comments > 9 -  ! r,____ . _ _ _ _~m - - . .w..__--,____,,.--..r . . - - . . -

until they were pressed by the Commission itself in its conditional concurrence decision. The Commission's SCAs can in a like manner be beneficially affected by an opportunity for comments by a"ffected parties prior to finalization. It is no slight to the competence of the Commission Staff to state that NWPA-funded affected states and tribes might identify important issues and arguments which the* Staff overlooked, but would want to include. Neither comments to DOE on the SCP nor informal opportunities to comment to NRC under the Procedural Agreement will substitute for an opportunity to comment on NRC's analysis of the SCPs.

,            As far as the scheduling mandates of the NWPA are concerned, the YIN feels strongly that the benefits to the commission and the program to be derived from comments on draft SCAs far outweigh the                                                      '

costs in terms of delay. In addition, the Commission can specify 1 a relatively short comment period (e.g., 30 days) and refuse to L grant extensions. While this would be less than ideal from the i ! viewpoint of prospective commenters, it would be far better than no opportunity to comment at all. -! To conclude, the Yakima Indian Nation strongly supports the . view of Commissioner Asselstine that the present requirement in 10  : f CFR S 60.11 for NRC issuance of draft site characterization l i analyses for public comment should be retained. Nothing in the ( NWPA requires or even suggests the deletion of this procedural step, and the potential benefits of it far outweigh the potential Costs. [ r

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a Respectfully submitted, l Dean R. Tousley l HARMON. WEISS & JORDAN 2001 S Street, N.W.  ; Suite 430 Washington, D.C. 20009 , ASSOCIATE ATTORNEY FOR April 4, 1985 THE YAKIMA INDIAN NATION  ! I

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QU ' Norman H. Bangerter. Covernor Patrick D. Souryn. Director lack Wttman. AssocNhI April 17, 1985 g gg gg GFFICE 0.c SEC!1d?Am GOCMETING & SEPv:C.r IRANCH Secretary of the Comission U. S. Nuclear Regulatory Comission Washington, D.C. 20555 Attention: Docketing and Service Branch

Dear Sirs:

On .lanuary 17, 1985, the Nuclear Regulatory Comission published a notice of proposed rule-making addressing modifications,to 10 CFR Part 60 necessitated by provisions of the Nuclear Waste Policy Act of 1982. This letter serves as the comments of the State of Utah High-Level Nee. lear Waste Office on the proposed rule. As a general coment, it is noted that the Nuclear Waste Policy Act contains unique provisions for state participation in nuclear waste repository siting, construction, operation and decomissioning procedures. This special role of the states reflects a recognition that state participation is necessary for an appropriate level of public confidence in the safety of the disposal strategies called for in the Act. Clearly, the NRC also plays a unique role in the repository program. Provisions of the Nuclear Waste Policy Act call for NRC involvement in the - program from the drafting of site selection guidelines, through site l characterization plan review and comment, to the end point of repository l decomissioning. NRC involvement throughout the program is necessary for its ultimate acceptability to the public. The states' participation in licensing is tied directly to NRC involvement. These considerations suggest that the-NRC should interpret its authority under federal law in a manner that provides most liberally for NRC and state participation in 00E siting and licensing activities. On a more specific note, a clearer definition should be added to the regulations for " preliminary activities". The DOE is not obligated to submit the site characterization plan to the NRC until the 00E plans to comence shaft sinking. As preliminary activities may be environmentally disruptive, it may al t ; trigger state regulation required state permits. 3D9 0 e qq ACNfYOurtedired by Cafif. ..........,.,esiasueg

Sscretary of Comission , l April.15, 1985 page two Therefore, the definition of preliminary activities is of great I importance. It is urged that activities performed in preparation of sinking a i shaft, including design boreholes and surface preparation be considered part j of the shaft sinking process.so that such activities can be effectively j evaluated along with the site characterization plan. j As is noted in the section-by-section analysis of the proposed changes,  ! under the heading of "provisior of information", the Nuclear Waste Policy Act  ! requires the Comission to furnish timely and complete information to host  ; states ar.d affected indian tribes regarding its determinations or plans. j i The DOE and NRC have undertaken, through procedural agreements, a series  ! of meetings wherein the two egencies exchange views on the adequacy of certain activities undertaken by DOE in view of NRC's interpretations of the ( requirements for licensing. The Comission is urged to assure that the states  : and affected tribes are given notice of such meetings, of the subjects to be discussed, and of the opportunity to attend and participate at an appropriate i level in the meetings in accordance with the spirit of section ll7(a) of the l Nuclear Waste Policy Act. I Finally, in regard to Comissioner Asselstin'e's request for cuenents on retention of requirements for issuance of draft site characterization analyses - for public coment, we would urge in this ar.d in all other cases, that the NRC i only retreat from the provisions of present 10 CFR Part 60 to the extent  ! mandated by the law and no more, and that the Commission otherwise maintain j the current level of involvement by all parties in site characterization  ; planning and review. The Comission is again referred to our general t comentary at the beginning of this letter. i In addition to these coments, please see the attached analysis of changes to the regulation developed by other state reviewers.  ; We hope that these comments will be of assistance in the preparation of l the final modification to 10 CFR Part 60.  ; i Si ly. l

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, (atrick D. Spul gin / 1 Director f O  ! POS/hud , I cc: Toni Ristau i enclosure i n p - -- , ,, , , _ . . - _ , . , -

1 5 ANALYSIS OF PROPOSED REVISIONS TO 10 CFR PART 60 Suasaary The purpose of the proposed revisions to 10 CFR Part 60 is to revise the regulations that treat state. and Indian tribal participation in the siting and. licensing process to conform with the provisions of the Nuclear Waste Policy Act of 1982. The portions of '10 CFR Part 60 that are proposed for revision to make the regulations conform with the provisions of the Nuclear Waste Policy Act of 1982 include: Section Rzisting Section Title 60.2 Definitions 60.10 Site Characterization 60.11 Site Characterization Report 60.61 Site Review 60.62 Filing of Proposals for State Participation 60.63 Approval of Proposals , 60.64 Participation by Indian Tribes

60.65 Coordination '

The Nuclear Regulatory Commission (NRC) is required by law to cooperate with the states, and the NRC rscognizes the value of state participation in sit-ing and licensing decisions. However, the cooperation between the NRC and the states, as presently defined, consists mainly of issue definition and information exchange. The states are nol granted a full advise-and-consent role in the decision process under current interpretations of the applicable statutes (The Atomic Energy Act of 1954, as amended; Reorganization Plan No. ! 3 of 1940; and the Nuclear Waste Policy Act of 1982) or regulations (10 CFR l Part 60). 1 Another problem with the way that the 10 CFR Part 60 regulations are struc-tured is that the NRC's role is basically only advisory until after site characterization is completed, as the Department of Energy (DOE) is ' not - required to obtain any type of license or formal approval from the NRC until. after site characterization is completed. The NRC does not become involved in the process for a particular site until after a site characterization ' plan is submitted by the DOE for that site. State involvement is tied to NRC involvement, as a State is not considered an interested party for purposes of these participation provisions until after the State is identified within a site characterization plan. This is well after the ! conclusion of the environmental assessment process. It is not clear in the Act or in the regulations what role, if any, State comments prior to the site characterization phase have in influencing either NRC or DOE decision processes. As the Act and the regulations both define the commencement of the site characterization phase as the beginning of shaft sinking, there apparently is no regular mechanism available to the States to influence activities that occur prior to that time. Though many serious environmental consequences can result from these " preliminary" l 1

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activities, the only re/ress if the DOE or the NRC ignore State concerns  ! about such activities appear to be through the courts under the provisions of Section 119 of the Nuclear Waste Policy Act. l Specific Changes Proposed for 10 CFR Part 60 i t Specific changes in 10 CFR Part 60 (and their implications for the State of l' Utah) are summarized below. i ne changes proposed for Section 60.2 (Definitions) do not affect state par- ( ticipation in the siting and licensing process. In order to provide cen-  ! l forming definitions with the Nuclear Waste Policy Act, the definitions of j

      " Indian tribe" and " tribal organization" have been dropped, and a definition       j of "affected Indian tribe" is added.        The definition of "affected Indian       !

tribe" is the same as that provided in the Nuclear Waste Policy Act. i

The " preapplication review" portions of 10 CFR Part 60, which deal with site f characterization activities, have been extensiv61y revised. Substantively. l these revisions define the contents of the site characterization plan that DOE aust submit to the NRC prior to the commencement of the DOE's site char- l acterization activities. In addition to information required under the old l version of the " preapplication review" regulations (old 10 CFR 60,10 and h 60.11), the DOE aust submit plans for decontaminating and decommissioning the site characterization area, including plans for aitigation of any sig-nificant environmental effects, if the area is deemed to be unsuitable for development as a repository. De DOE aust also submit its criteria, devel- (

l oped pursuant to section 112(a) of the Nuclear Waste Policy Act for reposi- { tory activities covered by that section of the Act, or other siting criteria j i utilized by the DOE for other types of sites, utilized for determining the  : suitability of sites foe location of a geologic repository. The level'of l informat.lon required for waste forms or waste packages has been upgraded j from a description of the research and development efforts related to waste  ! 4 packaging to a requirement that the DOE provide a description of the waste i form or package and its relationship to the natural barrier systems peculiar to an individus1 site. The conceptual design foe' the repository that the a DOE must submit must take into account "likely site'-specific requirements." (See proposed 10 CFR 60.15, 60.16, 60.17, and 60.18). The language for l these additional regulatory requirements is quoted directly from Section 113  ; of the Nuclear Weste Policy Act.  ! Also, it is important to note that both the Act (Section 113(b)) and the regulations (new 10 CFR 60.16) require that the site characterization plan l be submitted to the NRC "before proceeding to sink shafts at any candidate  ; site." Previously, the NRC required the DOE to submit site characterization  ! plans as early as possible in the DOE's planning process. This implies that l i l certain preliminary activities, such as drilling and seismic exploration, as  ; well as construction of access, could occur prior to DOE submission of the i site characterization plan. Thus, the only effective opportunity available i to the NRC or the states and tribes for review and comment on such activi- l ties (if it is available at all) is at the Invironmental Assessment stage. l l 2 i i

l l Once the NIC receives a copy of DOE's site characterization plan for a given site, the NRC must prepare a site characterization analysis and make this analysis available to the public for comument. This analysis must be trans-mitted to the host state and affected Indian tribes, along with an invita-tion to comment. In both the old and new versions of the rule, the NRC will publish a notice of opportunity for comment in the Federal Remister, and will afford a reasonable cosasnt period. "not less than 90 days," for com- l ment by interested parties, including states, j l n e NRC mur,t provide the site characterization analysis to the DOE, together with whatever comments the NRC feels are important, and the NRC must include l a statement either than the Director of the NRC has no objection to the , DOE's proposed site characterization program, or specific objections to

and/or recosusendations about the ' DOE's proposed program. nose new provi-sions are similar to those in the old version of the rule.

Additional sections have been added requiring the DOE to include a descrip-tion of and justification for any planned onsite testing with radioactive materials (NRC approval of such planned testing is required), and a require-ment for semiannual progress reports by the DOE to the NRC during site characterization activities. De use of radioactive materials at the site characterization stage is governed by the Nuclear Waste Policy Act (see See-tion 113(c)(2)(A) and (B)). De requirement for a semiannual progress report appears to be an NRC requirement not explicitly covered in the Act, - justified by the NRC's interest in expediting licensing decisions. De new s sections of the rule make mandatory reporting of progress and issues by the DOE to the NRC. De NRC may, when it receives these reports or comments from other interested parties or on its own initiative, comment to the DOE at any time during the , site characterization process, and the NRC may also raise cbjections to the DOE's conduct of the characterization process. In both the old and new versions of the rule, copies of any such correspondence are to be made available by the NRC in its Public Document Room. The final portion of this section in both the old and new versions of the rule indicate that consultations between the NRC and the DOE are informal consultations and are not regarded as a part of a proceeding under the pro-visions of the Atomic Energy Act of 1954, as amended. De new version of the rule adds a disclaimer stating that the conduct of informal conferences does not imply that the NRC will issue a license or any other authorization, ' and that the authorities of the NRC, the Atomic Safety and Licensing Boards and Appeal Board, and the presiding officers or NRC Director are unaf-facted. Subpart C of 10 CFR Part 60 defines and orders participation by States and Indian tribes in the site characterization and licensing process. De Nuclear Weste Policy Act contains several explicit sections treating State and Indian tribal participation at various points in the process. Unfortu-nately, except for the State " veto" provisions (Section ll6(b)(2)), which can only be implemented after a site is formally recommended by the Presi- , dont to the Congress, this participation is mainly limited to information and consunication. Neither the statute nor the regulations at 10 CFR Part 60 appear to offer the opportunity for true interactive cooperation, coordi-nation, and decisionmaking between the NRC, the DOE, and the States and l Indian tribes.

• 3

              ~

4 1 Old 10 CFR 60.61 will be retitled " Provision of Information", and the revised " Site Review" provisions have been moved to 10 CFR 60.62. The section on provision of information provides that States and affected tribes will be notified regarding NRC determinations or plans made with respect to site characterization or other geologic repository activities. However, these provisions ar2 not triggered until a geologic repository "may be located" within a State. For the purposes of this section, a repository "may be located" within a State when such State is identified in a plan sub-mitted to the NRC by the DOR. The " Site Review" section has been moved to 10 CFR 60.62, and the old see-tion 60.62, entitled " Filing of Proposals for State Participation," has been eliminated. The site review provisions are not triggered until an area has been approved by the President for characterization and a request for con-sultation is subaltted in writing to the NRC by either the State or an affected Indian tribe. Consultation is defined as keeping the parties informed of the Director's views on the progress of site characterization; 1 review of applicable NRC regulations, procedures, and schedules; and cooper-ation in developing State proposals for participation in licensing reviews.

Old section 60.63, entitled " Approval of Proposals " has been eliminated. A

, new section, entitled " Participation in License Reviews," has been substi-tuted. Participation in licensing reviews is defined by the rules of prac-tice before the NRC provided in 10 CFR Part 2 (Subpart G). States and affected Indian tribes may submit proposals to the Director of the NRC for . participation in the review of site characterization plans or license appli-cations. The State or tribe may also request meetings with the NRC regard-ing any such proposal. The NRC may then, subject to the availability .of funds, approve all or part of the proposal. To be approved, proposed acti-vities must be suitable in light of the type and magnitude of potential

impacts,' must enhance consunications between the NRC and the state, must aske a timely and effective contribution to the review, and must be author-ized by*1aw.

Old section 60.64, entitled " Participation by Indian Tribes," has been ella-insted, as Indian participation has now been incorporated in the various _ l sections dealing with State participation. A section entitled " Notice to I States" has been substituted. This section provides that the Governor and legislature of a State any jointly designate a person or entity to receive information and notification from the NRC on their behalf. Old section 60.65, entitled " Coordination," has also been eliminated. This section allowed the Director of the NRC to take into account the desira-l bility of avoiding duplication of effort in acting upon multiple participa-tion proposals. However, the Nuclear Waste Policy Act now specifically ! grants participation rights to the States and affected Indian tribes, and Indian participation, for example, cannot be foreclosed even though a pro-posal for State participation has been submitted. Thus, the old section is no longer applicable. Old section 60.65 is now titled " Representation," and it requires any person or entity acting in a representative capacity for a tribe or a State to submit a basis for such authority upon request by the NRC. . 4

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OC0hEIlhG & SERVICf BRANCH April 16, 1985 Commissioner Nunzio J. Palladino Chairman, Nuclear Regulatory Commission 1717.H Street, N.W. Washington, D.C. 20555 - t i

Dear Chairman Palladino:

I on January 17, 1985, the Nuclear Regulatory commission published for notice and comment at 50 TR 2579-2590 amendments to 10 CFR 60, " Disposal of High-Level Radioactive Waste in Geologic Repositories: Amendments to Licensing Procedures." On March 4, 1985, the State of Nevada submitted comments for consideration on the aforementioned proposed rule amendment. As reflected in the published notice, the aspects of the licensing procedures that the Commission has under review concern ' i (1) the role of the NRC during site screening and site. character-l ization activities, and (2) state, tribal and public participa . l tion in NRC activities with respect to geologic repositories. I believe that our comments on this proposed amendment, and our ongoing interaction with the Commission staff, reflect our concern with these issues. , I an, therefore, requesting, at this time, a meeting with I the Commission in order to more fully elaborate and clarify our i concern with this matter. A meeting similar to the one conducted { by the Commission on the DOE siting guidelines (10 CFR 960) would -

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4 - provide a good opportunity for the affected states and tribes to 3 discuss these issues and concerns directly with the Commission. f This request should not be interpreted as a request for but for a meeting in keeping with the excellent public hearing, interaction and relationship that the affected states and tribss have had with the commission. j Should

                     .      I            look forward to' hearing from you in this regard.

you have any questions, please do not hesitate to contact me. Sincerely, Robert L. Loux e Director i RLL/gjb cc: Commissioner James K. Asselstine ,

                            ' Commissioner Frederick M. Bernthal                -

commissioner Thomas M. Roberts i Commissioner Lando W. Zach, Jr. ' Secretary Samuel J. Chilkv' Mr. Robert Browning i e l t b t t

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DRAFT CONGRESSIONAL LETTER

Dear Mr. Chairman:

Enclosed for your information is a copy of a notice of rulemaking to be published in the Federal Register. On January 17, 1985 the Commission published proposed procedural amendments to 10 CFR 60, its statutory authority to license and regulate the disposal of high-level radioactive wastes in geologic repositories (50 FR 2579). The - Commission received eighteen comment letters on the proposed revisions to the procedures in 10 CFR Part 60. The final amendments reflect changes suggested by some comments. There were a number of comments related to NRC review of DOE's site selection process, issuance by NRC of a draft site characterization analysis, and the issuance by NRC of amendments to its NEPA procedures which the Commission could not accommodate. The enclosed amendments make certain revisions to'the procedures for site characterization and the participation of States and Indian tribes in the process of siting, licensing, and development of a geologic repository for high-level nuclear waste. The proposed amendments affect the means and timing of State and Indian tribe participation. However, the Commission believes that the amendments do not significantly alter the basic principle of providing for the fullest and most complete participation of States and Indian tribes possible within the limits of the Commission's authority. We will continue to keep your committee informed on rulemakings concerning high-level radioactive waste. Sincerely, Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

As stated 1 F

• ENCLOSURE D

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4 's e O ENCLOSURE E - e l i i l l Y

Regulatory Analysis 10 CFR Part 60 4

1. Statement of the Problem The final rule 10 CFR Part 60, " Disposal of High-Level Radiocctive Wastes in Geologic Repositories," as currently written (46 FR 13971), contains proce-dures for site characterization and the participation of States and Indian tribes in the siting, licensing, and development of high-level radioactive waste repositories. The Nuclear Waste Policy Act of 1982, Public Law 97-425 (Nuclear Waste Policy Act), establishes in considerable detail the procedures to be followed in the process of siting and licensing a geologic repository.

The Nuclear Waste Policy Act contains specific provisions for site characteriza-tion and State and Indian tribe participation in the process of siting, licensing, and development of high-level radioactive waste repositories. Revisions to the procedures given in the final rule 10 CFR Part 60 for site characterization and the participation of States and Indian tribes ar5 being published in final form. For the most part, the revisions are needed in order to reflect the provisions of the Nuclear Waste Policy Act of 1982, particularly as they relate to site characterization and the participation of States and Indian tribes in the process of siting, licensing, and development of disposal facilities. In addition, however, the Commission is taking this opportunity to clarify its procedures in the light of further understanding and experience gained since the promulgation of the procedural rule.

2. Objective The objective of the proposed regulatory action is to make certain changes in 10 CFR Part 60 to reflect procedures for site characterization and for State "

and Indian tribe participation in the process of siting, licensing, and , developing of high-level radioactive waste repositories established by the Nuclear Waste Policy Act, and to clarify the Commission's procedures in light of the l l ENCLOSU'tE E 11/30/83 1 ,

experience gained since the promulgation of the procedural rule 10 CFR Part 60 several years ago.

3. Alternatives (a) Leave the final provisions of 10 CFR Part 60 (46 FR 13971) intact.

(b) Delete reference to State and Indian tribe participation in the process of siting, licensing, and development of a repository in 10 CFR Part 60, and publish procedures for State and Indian tribe participation as a regulatory guide.

4. Consecuences (a) Proposed Action: Publish final amendments to 10 CFR Part 60 to bring procedures for site characterization and State and Indian tribe participation in the siting, licensing, and development of high-level radioactive waste repositories in accordance with the Nuclear Waste Policy Act, and to clarify ,

the procedures in light of recent experience. The proposed revisions in 10 CFR Part 60 would bring the final rule in' conformity with the Nuclear Waste Policy Act. They would clarify the proce-dures for site characterization und State and Indian tribe interaction with the Nuclear Regulatory Commission in light of recently enacted legislation and the experience gained over the last several years. The clarification of these procedures would benefit States and Indian tribes by giving them accurate, realistic information about opportunities available to States and Ind'ian tribes to participate in consultations with the Nuclear Regulatory Commission. This would in turn make the process of siting, licensing, and development of high . level radioactive waste geologic repositories more efficient. The most effective way of promulgating the revised procedures would be as revisions to 10 CFR Part 60. The promulgation of the revised procedures in this format would accomplish the objective with no unnecessary delay in making the revisions public. 11/30/83 2

                                                                                              )

l t (b) Alternative 1: Leave the provisiens of the final rule,10 CFR Part 60, intact. ' This alternative woulc be inadequate because it would result in inconsistencies between the final rule,10 CFR Part 60 and the Nuclear Waste Policy Act. These - inconsistencies would leave uncertain the opportunities for participation of - States and Indian tribes in the NRC activities related to siting, licensing, i and development of a high-level radioactive waste geologic repository, and could. , lead to costly and time-consuming inefficiencies in the process. The staff also considered a variation of this alternative where only minor changes would be made to conform terminology in 10 CFR Part 60 to the Waste Act, as an administrative rulemaking, without opportunity for public  ! comment. This variation would result in the same uncertainties and i inefficiencies in the licensing process.  ! (c) Alternative 2: Delete reference to State and Indian tribe participa-tion in 10 CFR Part 60 and publish procedures for State and Indian tribe participation as a regulatory guide. . If this alternative were adopted, participation of States and Indian tribes would not be governed by the regulations of 10 CFR Part 60. Publishing proce-dures for State and Indian tribe participation as a regulatory guide would give only suggested guidance. States and Indian tribes have indicated strong-preference for formal procedures. The regulatory guide approach would not be suitable for this reason. I

5. Decision Rationale I The NRC staff has evaluated the proposed action and two aiternative courses' '

of action. The procedures for site characterization and State and Indian tribe . participatio'n in the siting, licensing, and development of high-level radioactive waste geologic repositories must be revised to bring them in accordance with the Nuclear Waste Policy Act, and to clarify the procedures in light of recent , experience. Revising the procedures for State and Indian tribe participation i by means of revising the final rule,10 CFR Part 60, is the most effective method of accomplishing this. 11/30/83 3

The staff received numerous public comments on the proposed procedural amendments. While many comments supported the general idea of changes in 10 CFR 60 to bring it in conformity with the Nuclear Waste Policy Act, a number of comments favored retention of some of the aspects of 10 CFR 60 which were proposed for revision. Some commentors were against proposed changes which would remove site screening and selection information from the SCP requirements. An additional proposed changed, deletion of the requirement for a draft SCA to be issued by NRC in advance of the final SCA, drew some unfavorable comment. Nevertheless, the staff has not found sufficient reason ' to change its decision to chcose the proposed action as the preferred alternative. G 8 k 9 P 11/30/83 4

3, 5 ) e e O s 7 0 e ENCLOSURE F 4 s

          ,,g.. 1 gy g.2gy-         #

                 ~

5 AV 4,,/ Federal Register / WL 50. Ns.12 / Thursday, linurry 17. 1985 i Pr::pos:d h!cs % 25 11 on competition employment. PART 1407-SUSPENSION ANO . 10 CFR Part te vestment.productwity, innovation or DESARafENT the abdity of U.S.-based enterprises Diesosel omgh4evel Rm to pote with foreign-based see Wase M W RepenW ent ses in domestic or export 18'1 P"w Amendments to % PrN Sus t mark 1 gion and dh mossee: Nuclear Regulatory It been determined that the Aushaney: Sec. 4. et Saet. . as amended Regulat Flambi!!ty Act ,is not (ts U.5,C.714t4 admon Proposed mie. applica to this rule since CCC is r 'tiy 5 UAC. 553 or t 14sf.1 purpose. sumann h Nuclear Regulatwy any other ion oflaw to publish a r%==- is proposing revisions to This part the terms and procedures with respect to NRC review > notics of r , _ _ rulemalung with conditions which persons (l.a m o(license applications for disposal of mopect t the manerof thismio. Individual or asly form of business @el radioective waste in geologic This progresa vity is not outsect to entity, suchyd proprietorship. ,,peegtories. For the most part. the , the provisions of Live Order 12342  ;,,, ;,,,,

• corporation, association.or ' revisions reflect the provisions of the which requires Int ernmental coopers l may be suspended and Nucleer Weste Policy Act of1982.

consultation with Sto and local contracting with the particularly es they relate to site ometals.See the Non related to 7 CFR d.e r--- ty Credit Corporation (CCC characterisation and the participation of Part 3015. Subpart V. pu Ished at 44 FR md fsfoe otherwise participating 15 ) and Indian tribes in the process States 29115 (June 24.1983). administered or financed by of siting, licensing, and development of Section 4(d) of the CCC arter Act. disposal facilities. as amended its U.S.C. 714b( ). ca?ss: Comment period expires Starch au:horizes CCC to adopt, am and 14erJ sateenesen and demannent. 1a.1985. Comments received after repeal rules and regulations go rning ne provisions of 41 CFR 4-1.800 et htarch 18.1985 will be considered if it is the manner in which its business y be seg. shall be applicable to all CCC pracucal to do so. but assurance of conducted and the powers vested it suspension and deberment proceedings. consideration cannot be given except as may be exercised.la accordance w except that the authority to suspend or to comments filed on or before that date this authonty, the regulations at 7 deber is reserved to the Executive Vice . e Submit wntten comma:nts Part 1407 set forth the procedures President. CCC. or his designee. and suggestions to: Secretary of the which CCC may debar or suspend Comminion. U.S. Nucivat Regulatory individuals and firms from contra ting i14e7J Seese. Commission. Washington. DC 20555. with CCC and from otherwise . CCC suspension and debarment Attention: Docketing and Service participating in programs admi tered --dw=- shall not be applicable to Branch. Copies of comments received or financed by CCC. In order tp conform tractsiratered lato by CCC under its may be examined at the Commission's CCC's suspension and debe ent Public Document Room.1717 H Street support operations and other CCC

=gulations with those of th with persons in their capacity NW. Washington. DC.

Department d Agircul CCC as paa rusmesa aeronssation comfacT: proposes to revise Part 1 to adopt the

             . Department's suspensi                                                          -

At Wesiassion. D.C. on leneary 11. M Pnchard. Diviska d Radiation deberment regunitions . Programs and Earth Sciences. Omco of nd atou,and 41 CFR tees. ry Rmearch. U.S. 4-1.800 et asq. and to de that:(1) svesuet CCC surpension debarment , Executive (N.uc h WW Commhsim. proceedings shall be applicable ta, C p. _ -:=_. hesident. ,. . Commodity Ceedi'.Washmston DC20555 telephone (301! 427-45as. supstaesswfanyinsponesafiose The pnce and ome 17RDoc.as-1 Filed t-to ass tes eel l programs wie in their capacity saa.se coes se Nuclear Regulatory Commission l as producers a (2) the autority to (Commission or NRC)in 1981 . susped or h revhed 2 S e - - promulgated procedures for licensing uve Department of Energy (DOE) facilities Pmident. CCC. or hism/aRE / TORY for disposal of high. level radioactive . C0ddletSSION westes in "'* In order expedite the review of the agr _ pe mary 25 ly. of this proposed mio in ught ) Mo e Provi' 10 CFR Part 2 Consress has established a definite of pot al CCC suspaska and lev dcrui poiicy for sus.h disposal. the NbM MM 97 [.S. 010 (W Po icy be limited to a pened of 30 days. Pormel1.icensing l A4.tl. Section 121 of the Waste Policy l A . commente must be hon Act directs tre Commission. not later ved on or before February 19.1988 ' then January 1.198d. to promulgate in to be assured of consideration. In FR Doc. 84-33644 bes'inm on page technical requirements and criteria that

                                                                                                                                                                            )

of Subjects is 7 CFR Part 1487 gg, rts" R y ig i e p)lfcations viith

                     ^ Admimetrative pres ceand                                                      appeared la the l== ding ne                              respect to geologic repositories. The procedure. Covernment contracts.                                                  " Records" should have appeared                ts        Commission has complied with this Penalities..                                                                      place.The heeding is corrected to                        requirement by publishina final i                        Accordirigly, it is proposed that 7 CFR as set forth above.                                                                           technical enteria (4s FR 28914. June 21.

Part 1407 be revised to read as follows: saame ones issw.as 19831. De Commission is now turning to ENCLOSURE F l l l l'

  ,w; -m- r w _ ..                                         -

c e ~ um- .r a.w,- -- z____ _ _ _

                                                                                                                .                         -n-~-.;. = w - - -

2580 Federal Register / Vol. 50. No.12 / 'I1 ursday. January 17. 1985 / Proposed Rules a review of its previously adopted the need for cooperation with the States consult informally in advance with NRC procedures. One objective is to reflect with respect to the control of radiation staff. At this early stage.NRC would the provisions of the Waste Policy Act. hasards, the Fsderal government was point out aspects of a location selected in additioo. however, the Commission is authorized to regulate the disposal of by DOE which might require spedal taking this opportunity to clanfy its high-level radioactive waste to protect attention or present special problems procedures in the light of experience public health and safety (42 U.S.C. and NRC would help to define the kiri,ds gained over the past three years in 2021(c).10 CER 150.15). Nevertheless, ofinformation needed for licensing consultations on the SCA reviews of the Ac.: recognizes the need for decisions. As noted, repository l DOE siting projects and in light of the cooperation with the States. 42 U.S.C. construction (including sinking of the extensive prel! censing interaction 2021[e), and it is Commission practice to main repository shan) would require process now underway between NRC, consult with State and local licensing action. Site characterization the states, and DOE. governments on matters of - - - would continue during repository De pnndpal aspects of the licensing laterest.' construction, with the data to be procedures that the Commission has Recognizing that further legislative reviewed before i====a= of a license under review concern (1) the role of guidance would help to define authorizing receipt of radioactive NRC dunns site screening and site appropriate forms of consultation and material Upon coeune=== mat of NRC's characterization activities. (2) State, cooperation. Congress in 1978 directed informal review.NRC would publish a tribal. and public participation in NRC the Commission to prepare a report on notice in the Federal Register send activities with respect to geologic means for improving the opportunities copies ofinformation submitted by DOE repositories. (3) NRC responsibilities for State participation in the process for to State and local officials, and offer to under the National Environmental Policy siting. licensing, and developing nuclear meet with those officials to prcvide Act (NYPA). (4) procedures and waste storage or disposal facilities. NRC information and explore possibilities of standards for identifying categories of Authonsation'Act for Fiscal Year 1979, their peticipation in the licensing material as high. level radioactive Pub. L 95-60t. Sec 14(b). After process, wastes. and (5) changes, especially with consultation with the States, the After solidting and considering views. respect to content of the license Commission submitted its report to the Comission next proceeded to issue a . application. needed to conform the Congress in 1979. Maarts for Improving proposed rule. One significant difference bcensing procedures to the technical State phrricipation in the Siting. . from the policy statement was that DOE critena.'The present rulemaking Licensing and Development of federal would be permited to sink shafts and propossi deals with the first two of Nuclear Waste facilities. NUREG-0539. engage in site characterization activities j these topics: because the two are so reprinted in Nuclear Waste IsolatJon at depth before formallicensing i intertwined they will be treated Pilot Plant (WIPP]r Oversight Hecangs proceedings wm commmed DOE's ( toge&c. Esfore the u-a==ittee on Oversight site characterization plans would Backgreed andInvestigations of the House Camm. nevertheless Le reviewed in onIntenorandInsularAffairs. Seth considerable detail in advance; with In 1974, when the Atomic Energy Cong ist Sess. 314-401 (1979) (the NRC Commission's functions were divided ""' for bl ' " Report).The NRC Report. " Based on the between the Energy Research and draA sik on ana ysis. premise that State involvement in any Development Administration (ERDA) De preposed rule locorporated detailed national nuclear weste management , and the Nuc!est Reru'.atory program is a critical element in :::aking M""* Commission. Congress provided the program work." included several opp #ttnida a public generaUy that ERDA high level waste disposal facilities were to the subject to gw a.. ar:d substantive WP*d"* D*" M**d"* "" designed to allow affected States to recommendations. NRC's regulatory and licensing authority The value of such State involvement- participate to the fullest extent poss,ible (42 U.S.C. 5842). NRC's role with respect for the Comunission as well as for the wisin se hauts d @e Commissim s to such facilities remained unchanged States--was emphasized as the NRC suswiy and se when the functions of ERDA were and capabWHes.,, De CoState's own desires developed a framework for !! censing observed. however, that ,,mmissim transferred in 1977 to the new geologic fep6eitories for high level provisions for Department of Energy (DOE)(42 U.S.C. State perdcipadon would be reviewed radioactive waste (10 CFR Part 80). The in the light of any 7151). Srst step in tids procem was the ent sta Although the Atomic Energy Act Commission's publication of a Proposed changu sat snay u set d ,tutory ' recognizes the interest of the States in General Statement of Policy (43 FR W ecm.it nomd eat me exknt d the peaceful uses of atomic energy and State participe5on may be affected by 53ase. November 17.1978). This document contemplated that the legislative action c:a the matters _

          'iness perveamng to NEPA wig rogam                   i mmission would make licensing                    discussed in the NRC Report (44 FR medancanoes to is CH Port st Amends.este to 10          determinations before DOE commericed               N hk & M Crlt Past 51 to reCect the Wute Pohcy Act ma be         construction of a repository shaft. DCg               De Snal mie added provisius with se abiscr d e eduq== ruimbs. Howene.                                                                       respect to notice to and participation by k8          would    be encouraged. however,     to Indian tnbes. However, inasmuch as
       *cnans en,         ='aduweseawnes renenentes    ** C=="c"       *ar by regwed   '"* "se w"m*ee Palacy Act are escassed teter to stue acessmeet.                                                           E*bli                    th               1*
                                                                 '4s tL1C am le e oneScotles of a tese stafete considerense et ine densties a se.w is reserved.        wwe sedes e new secues ne to me Ateous             pointed out no serious deficiencies in and the conunin.en ennerpeen punheenes or se            res,sy Ace etisse. seenes ne -i. w                 the opportunities for State and public edvance nonce et proposed reen.e.. s a one topie a ceanns meethe N conwet et sepacenne omoneeres end entene ser eseceassesse et                cipation the provisions that had romerni regnimary ensees.t.litsee me reseeci te
       =cnon win be mwwed attw tuunce et oot                   bypresens. ers. we esec et ==cieer eierenei.          MP'"d "" 'dopted "'th"3' e.tirig ymdehrnn under the Wu:e Pohcy Act to take       and the meumenen inerset by the States. However. material change (46 FR 13971. February i

auch gencelones into account it eeJ es appregnate. eeder 5nuse FL the regelease at hesh-levet weste 25.1981). I m %- would weiceme weseenees trem essee,aar utery unene rue med a raderes Both the proposed rule and final rule i mierested persons with resoect te omer charree- roepene.aihty. .$re her6c Coe e Caetric CA e. l met me, to medad ie = sect prene.ses of the snecer come,=.en. m tr.s na rs Ltd.24 rsa, contemplated that DOE would , I wn.e Powey Act. m nemi. characterize several sites at depth. .i i

Federal Registee / Vcl. 50. Ns.12 / Thursd;y. linuary 17. 1985 / Propostd Rules f.S81 22 RC pnmarily so as to enable the opportunity to identify and consider a

                       ' Commission to discharge its NEPA charactensation analysis to DOEA broad rense of public concerns tius                                          noted above, these procedures were d                    reponsibuiues we mopect to                             would easiat NRC in the preparation of a designed to solicit comments that would evaluation of allematives. With this in                comprehensive and reasoned analysis.                                         assist NRC to prepare a comprehensive mind. DOE would have been required.                          The site charactansation report would and reasoned analysis.

as discusand below, to include includeisore than a desenption of the information concoming its site selection site and the program to be undertaken to 4. Consdm#m(f ARE f daos/o# process in its site characterization characterize the abihty of the site to report to NRC. Under Part 80. NRC staff would achieve waste isolation. It u ould also consult with State govemment and De Esisdas Regulanees discuss the method by which the site Tnbal officials, on wnsten request to was selected for site keep them informed of NRC views on The principal aspects of the existing charactensation . . . and . . . a

 ;                        bcensing g--i that are of present                                                                                                   the progress of site charactentation and description of the decision process by                                       to notify them of NRC meetings and Interest relate to (1) submission of                   which the site was selected for
                      . DOE's site charactensation report. (2)                                                                                                consultauons with DOE.NRC would characterization, including the means                                        respond to wntten question or i

a public notice of receipt of the site used to obtain public. ladian tribal and charactenzation report. (3) the comments from these officials and - States views during selection." transmit such responses to DOE preparation of a site characterization Alternative media and sites at which i analysis by NRC. (4) consultation DOEintends to carry out site Conedtauon would not be limited to site l 'E characterization, but could include a

    '                    between NRC and States and Indian                       characterization would be identified.

tnbes (5) participation in NRC reviews. review of NRC licensing procedures and 4

'                                                                                DOE's report on these topicswould                                            the type and scope of State and Tnbal
'   g                     and (6) procedures for the formal                      enable the Commission to consider heanns process. it will be useful to                                                                                                 activities in the license review permitted whether additional irformation might be by law as well review the present language of to CHL                   needed by the Commission in part 60 with respect to these items                     discharging 1ts .NT.PA responsibilitics (4f,                                5. Propruals fxState Perticipation s.

8 before turmng to the changes that we FR 13972). (jf6ad2-dd/ propose to adopt.

 '                                                                              2. Notice andPub# cation (f dan /                                               The NRC Report (at 18-24. 27-281 E                                                                                                                                                        distinguished between improvement of L Site Chorocterization Jtepart(f aan/ ~ As directed by section 14(a) of the NRC requires that COE submit a site              1980 NRC Authonsstion Act. NRC rules p          Ho"      '            '
'   s charactenzation report "as early as                    provide for notice to the Govemor and fro es,a          gn a       a- o       e possible after commencement of                         the State legislature of the State of                                        .other, the carrying out of an planning for a particular geologic                     proposed situs whenever a site                                                'Indepadet Staw review" of a

, repository operations area, and prior to charectorization report is received. proposal to store or dispose of nuclear { site characterization." Both the tirning Although not required to do ao by law. W Rertidnufim mud i and required content of this report NRC would also (1) transmit copies of avenues for State participation in NRC t reflect the statutory directive in section the site charactensation report to these reviewn that could be implerr:ented

8. unde

• existing law.These included 14(a) of the NRC Authorization Act for addressees. (2) provide similer notice to i 19e0. pub.l.95 401 which pnmdes; local officials, tnbal organizations, and support frorn NRCin the form of Sec.14(el Any persas, assocy or obe gnous States. and (3 adodf du sw.h entity proposing to develop a storage or M m uder h

                    , disposal facthly, incieding e last disposal               receipt of the site characterization                                         Intergovernmentalpersonnel Act,and i

focality for high level radiometive weases, or t* port which. among other things. will contracts for technical services :ieed<d irrediawd socieer rescier fbel, abeit notify advise that governmental and Tribal by the t'a==ianians. Besides the the e--a= es early se possible after the oGlcials may reques6eonsultation with activities that could be carriea out under

                         - - - - -- t of piemmas for a particular               NRC staf.                                                          .        **3* ting law, the Report (at 28) proposed facauty. The --a=         shall is i
'                                                                                                                                                           recommended that the Congress turn nonfy the Governor and the Saw                    3. Site Characterisatierr Analysis                                          " establish a grant program to allow the          l l*.
                         !apslature of the State of proposed situs whenever tlw ca===aa- has knowledge of (fdan/                                                                      States to participate more fully in the
                         '"'A P "'I'                                                The rules provide that NRC will                                      Federal waste management program."

i

'                                                                               review the site characterization report                                         part 80 provides for Stats The Commission. la proposing its                 and prepare a draft site chsrectenzation participation in the review of a site licensing procedures. made specific                     analysis which discusses the                                                characterisation report and/or license referer e to this statute and explainant                information submitted by DOE. and that application. A proposalinitiated by the that its rule would" ensure that the                    a reqt.aet for public comment on the                                        State would desenbe how the State l                       notice from the Department wdl. la fact.                draft site characterization analysis is to                                  wishes to participate in the review and j      -

initiate a meaningful. substantive be published in the Federal Registee how it placs to facilitate local

review"(44 FR 70ece). %e site copies are to be transmitted to the State government and citizen participatfor, 1 charseterization report. together with and local officials and Tribal 4 and it would include funding est

ma:es ,

the NRC staff assessment thereof and organizations who had prewtensly meetings between NRC staff and State of work to be done under contract with received notice under the rule. It was the NRC. Subject to the a* ailability of officials and other laterested persoes, anticipated that NRC would hold local funds and legal constrair.ta. NRC would

                        " assures an early opportunity for other                public meetings in the framediate area of approve State proposals that it finds wd!

Federal and State agencies and the the site to be characterized, both to public to become involved in the . enhance communications with the State

!                                                                               dissemiaste information and to obtain                                      and enntribute producti"ely to NRC's decision making process" with respect                   public input. bu. this is not an explicit

license review.

to DOE's site characterizatha and site requirement under the risie. After a Under the State parti:ipation selection programs./6/d.no review process would provide NRC an comment pened of at least 90 days.NRC provisions, proposals cac be submitted j would transmit a final site - by any State "potentially aTected" by 4'

    ._...m_.----      ,_w.-.-,--            ,%,--__m...    -,  ,,_e,-_ , . . ,-  -r-,y
                                                                                   ,_        _ . - __ym._..,,-., - , , - . , , . -

I 2S82 Feder:I Register / Vcl 50. N:.12 / Thursday. Trnuny 17, 1985 / Proposed Rules the sating of a repository, even if the U.S.C 10134 (recommendation for NRC with respect to this agency's prospective repository site is in a development)).De designadon of a site functions. Nevertheless, an examination different State. By the esme token. as suitable for application for a of the details of the Weste Policy Act Indian tnbes "potentially affected" by constructici authonsation will neIt be highlights differences boat Part so which the siting of a repository may submit effective over State objections except need to be taken into account. !n

proposals for participadon in the same pursuant to a Congressional resolution addition there are some changes--

manner as the States. which thereafter becomes law (Sec.115. garticularly with respect to funding of a F"*t hi"Ih uine 42 U.SsC.10135). State participatioet would have De Weste Policy Act reconfirms the been desirable even is the absence of De NRC rules provide that notice of authority and responsibility of the the new legislation.The need for i spec Red events (docketing.hearms. r%==i==iaa to review a specine revisions can be analysed using the l proposed issuance of license, issuance repository proposal. pursuant to the same heading as before. i oflicense) will be published in the Atomic Energy Act. in order to protect Federal Repster: there are additional the public health and safety.The Weste g gg specific requirements for notice to State Policy Act providea for f%==iaion As is the case under the existes

 ,        and local officials (and to Tribal              mytow prior to site characterisation, as              regulations,it la appropriate that the
'         organizations if a repository is to be          well as in a formallicensing p.+- "_ g.           -

subraission ofinformation about a site located within en Indisa reservation).10 and for a Commission determination as and plans for charactensation of the site ! CFR 2.101-2.108. Affected States and to whether a repository of a particular should be the ace =aa for commencmg i Indian tribes desarms to participate as a design at a specified site will provide NRC's initial substantive review. party to a licensms proceeding may adequate isolation of radioactive weste. However, the Wome Policy Act specifies

;         petition for leave to intervene: and they      The Weste Policy Act makes no specific a number of actions DOE must take i         may also participate in a more limited .

provision fdr the Commission to engage before such information is reqmrod to be capac:ty as provided by the regulation. in, or independently review, the submitted to NRC.Further, the Waste { 10 CFR 2.714. 2.715. prae ===== of site screening and Policy Act calls forNRC to review The Needed Revisions selection.The Commission's only Information of narrower scope ther' that

                                                         ,.d_ _ _' participation in this selection which, under to CFR Part so, was to be Po cy ct                      la o hip         process comes iri NRC's review and                    included in the DOE sian I          between the Federal governrnent and            concurrence in guidelines for the                     characterization report.

the State governments, and betweca the recommendation of sites for repositories Under i ell 11.the site respective Federal agencies, with (Sec.112(a). 42 U.S.C.10132). However. characterization report was to be i respect to the disposal of high-level the Commission will review DOE's draft furrushed to NRC "as early as possible I ' radioactive weste.The Act prescribes in environmental assessments as it would aAer connimaemanat of planning" for a great detail procedures for DOE to rmew any o&erinformanda on site particular spository. In contmst. the consult and cooperate with the States investigation and site characterization. Waste Policy Act requires that DOE Srst (and affected Indian tnb s) with respect in order to allow early identincation of nominate several sites (after holding to determining the suitability of an ares potential licensing issues for timely public hearings and consulting with the for a repository and with respect to resolution. Reviews will be carried out governors of affected States) and that other issues srising in connection with in accord with the pm-i.! agreement particularlocations would then be the planning. siting. development. between NRC and DOE for interface recommended as candidate stes which. l construction, o;,eration. or closure of during site investigation and site if approved by the President would be such a facility (Sec.117,42 U.S.C.10137). characterization.: elipble for site charactensation. DOE is directed to make initial grants to While the Waste Policy Act De new law marks this time--before States with potentially acceptabie sites establishes new procediftes for the high. DOE proceeds to sink shafte-as the for a repository and. subsequently, to level waste management program, the point when the site characterization provide further grants to any State la Consnission maains entirely Ikee to plan is submitted.When the which there is a site approved for consult with the States and Indian r%=====4ia reviews this plan. tim site characterisation (Sec.118(cl. 42 U.S.C. tribse; at its own initletive or theiro, to be characterised will already have  ! 10136l.The latter grants are to enable with respect tr. any matter pertaining to been the subject of extensive scrutiny. It  ! the States among other things, to revmw NRC's regulatory role. Although specific will have been desenbod in an l potentialimpacts of the repository upon ***""*le are established for States and environmental amasse= mat in which the ladian tribes to~ engsge in consultation i the State and its residents and to siting guidelines are applied and will  ! provide information to such residents and cooperation with DOE. thes1 cannot have been discussed at public meetings 4

   . regarding th'e activities of DOE or the         substitute for direct lateraction with               at which public comments will have Comreission with respect to the site.                                                                                                              (

been solicited and received. It also will l DOE is also directed to provide flamace=1 epiewswei As, msns henseen ine us sessiser have been reviewed by both DOE and ' and technical assistance to a State in asseiseery ceaseemse see ine u.s, ossenmes et 8""8F 'emetrise sedies pasasen far aussem the President in the course of the I which a repository is to be located, after neednation approval process. Extensive

• l NRC has issued a construction m"E'$,'i, sI"m" data gathering programa may have been authonsation. in order to mitigate the Apesewer ie emped is seeme inee se seieneeses carned out in conjunction with these l impacts of developinent of the Ib.w . massense se semaissee seem esessy e activities. '

repository. Ibid. The Weste policy Act also contains requirements that DOE

                                                                      ,,"$                      Y"                DOE may very well need to make        ,

p,eeeeew a,,s use ,, ,, des ines pos is se choices and commitments in the course hold public heannes at several stages of see8r possemai nem seeses see eassise seene l of such data gathering that could have a i site selection and characterinarir,n (Sec. tr*se er wenisms menese menian oor ese sac significant bearing upon the safety and b ' 112(b)l21. 42 U.S.C.10132 (nomination): Sec.113(b)(2L 42 U C.10133 g"f,'l,",d[% , esDOE nee $as e m ,, licensability of a repo# tory. De dnlling f l no e,se e,e.e ,, ,,,in ,, e, g, ,em,c beise of boreholes for testing purposes for g l (charactensation): Sec.114(al(1). 42 penness se eased as esservese, example. could affect the integrity of a gj l I , mhI __.__ _ ___ .. _ ._ .__.. _ .._ _ _ _ _ _. _ ,- .. _ a

j Federal Register / Vol. 50. Ns.12 / Thursday. january 17. 1985 / Proposed Rults 2583 i z repository that might be constructed at DOE to compere sites or upon the opportumty for consultation thereon 4 the site. Close coordination between relative ments of one site against with the NRC staff. ' ' DOE and NRC is therefore needed pnor another.Such a reuew b NRCis not to submission of the site necessary to fulfill any ofits statutory A 'N' O*##""8 M ##8-b charactensation report so as to facilitate responsibilities. Moreover DOE wdl be The Weste Policy Act requires. before ' the early identification of issues of selecting sites using guadelines in which DOE proceeds to sank shafts at a potential safety significance and so as to the NRC will have already concurred. candidate site. that DOE submit its site afford an opportumty for NRC to We regard it as appropriate, however, charactensation plans to NRC (as well provide DOE with timely views. and fully consistent with the objectives as State and tnbal omcials) for mview Under the Waste Policy Act.the of the Weste Policy Act. for the NRC and comment (Sec.113(b). C U.S.C information which is to be submitted to staN to provide to DOE current im331. The Coeunission believes that the Commission for review and expmssions of its views on the quality Congress intended that DOE should comment pnot to site charactensation is of the data available and the potential provide the plans sufficiently far in similar to existing i 80.11. Both Part 80 licensing issues that may be anticipated advance so that coniments may be j and the statute call for DOE to describe - and that may need to be addressed in developed and submitted back to DOE

the site, the proposed site DOE's site investigation and site early enough to be cons.dered when characterization activities, a conceptual characterization activities. shaft sinking occurs. and at alltime l In view of the foregoing repository design. and certain g g ,,g g , gg, e on s

e orma n Cy a ts are med a la e NR previously listed in 6 00.11 are omitted P as they are developed. As already under the Waste Policy Act from the Ag' t "' J , uired submiss t NRC-notably. iss n pl na nvo$v d'ai mentiontd. NRC and DOE have. in fact. earlier stagelin'reviwing data developed a Proceoural Agreement

                *             I*        '"'"                 collected by DOE as well as its                    under which NRC is to have access to programs for gethering additional data.            information as it is generated and.

nt catio I ti of al ative equally important. NRC is to comment ne instrument for accomplishing this-- media and sites at which DOEintends namely, the Procedural Agreement regularlylo DOE with respect to this i to conduct site characterization. and a referred to above--is airesdy in place information. description of the decision process by Rus, the Commission expects that and is being implemented routinely. 1 which the site was selected for the principal means of evaluation wdl charactenzation (including the means 2. Notice arrdFuhlication . be the interagency process that begins i used to obtain public. Indian tnbal and The Waste Policy Act provides that: early in DOE's consideration of a site. State views during selection). Before nominating a site, the Secretary When investigations have progressed i The Weste Policy Act stillrequims a u k ts. discussion of the coitted items. but in a separate document called an h, og"[e a te g N k

such sim is lasted, or se pvenmg mggpWMg

environmental assessment (Sec. body of the sRected Indian tnbe whom respect to data pnerated to date and

114b)(1) 42 U.S.C 1m32). De such site is located, as the case may be, that NRC's concerns would already

          ~

u o using a be ri s I U C. by DOE with goverMrs of affected I *** * '"* *" heanags and a p revi * ! U"a'MNdy"L"'DO E"O1",'u'a%'ln",*J,';l'2",0,'etlTof. at aste

                                                                                                                                    'm"e"diiUME.a~"'"~O*by*e y Ac ir a Pmmpt fashion.

a intends to make envuonmental plans to those some omcials. for review e sue chametwizauon analysis wedd I assessments in draft form available for and comment: concurantly. DOE is be a continuing dynamic process, better I public comment. All this occurs in required to sobr. sit such plans to NRC suited for ongoins public input and NRC j connection with the nomination of a site (Sec.113(b)(1),42 U.S.C 10133) myim raser than 7msing* ee i Prior to Presidential review and Although publication of notice in the coment and mim process at one ) approval of a r=nalate site for site Federal Registeris not required characterization. expressly. DOE must make both the Mary point in Hee. l An ongoing public mim procese ne Weste Policy Act makes no emnronmental assessment and the site , i provision for the Commission to characterization plan "avadable to the would also facilitate DOE's ability to j comment to DOE on its environmental public" (Secs.112( b)(1 )(C1.113(b)(2)( A), obtain comments on its site i ' assessments or otherwise to participate characterization plan from the States 42 U.S.C 10132-33l. The Commission . In the nomination process.it is anticipates that DOE will give notice in and Indian tribes as well.The Weste , nevertheless the intention of the the Federal Register as the means for Policy Act affords an opportunity for

• l these entities to enter into written

! Commission to review and coma.ent on assuring adequate public availability of i i the environmental assessments. as well these documents, agreements with DOE specifying  : as other technical documents being' ~ Since DOE is nquired to make its site procedures for consultation and  ! prepared by DOE. in order to assess on charactensation plan available to State moperation that could include early a continuing basis the information and inbal of!1cials and to the public. review. Moreover, the NRC/ DOE collected to date and the program for the duplicative provisions may be removed Procedural Agreement assures that  : development of additionalinformation from Part 80. Even so, however. it makes States and ladian tnbes wdl have an , for a potentiallicense application, sense for the Commission to publicly opportunity to be informed routinely l However, the NRC staff would not acknowledge receipt of DOE's concerning the information made comment upon the methodology used by submission so as to provide notice of the svadable to NRC and NRC's comments O e www~-_

I 2584 7'ederal Registir / Vol. 50. No.12 / Thursdsy. knuary 17. 1985 / Proposed Rules. thmon and in ettend NRC/ DOE nghts to States and bidian trbs beyond a pbemoffJcomeingMocombres . technical meetings. those streedy provided in law. H.R. Rep. Under existing to CFR Part 80. DOEs gr-res. Part I at 74. The proposed he Weem hucy As incaponta i submission of site characterization amendments contais conforming

• I plans was to occur.as aimedy nosed. language impleinenting this requirenant. h Cana 's "as early as possible after The Weste Policy Act charges DOE with " ** **,,,; g 7,,

commencement of planning, for a the responsibility to " consult and e DObpplic on.

p. articular repository.Dere was no cooperate ** with the States and Indian * "

assurance that either NRC or other *',"' icable W Inbos la en effort to resolve their interested parties would have had prior concerns about the safety. informatsuri about the site or any environmental and econostic impacts of , , g' opportumty to make conerne known to a espository. States easy make w HI be m W m A pe n g , DOE.it was in this context that the I I*8" comunents and recoausendations to Commission determined that NRC DOE regarding any activities taken De om minimeent that DOE and would propero a draft site NRC pmmie emeh and complete ender this subtitle." and this may be charactenamiian analysis for public funded by grants hem DOE (Sec. Informadon to se States and enbn Sec. mview and comment before developing 117(al. 42 U.S.C.10137. would apply to a statement of the agency's views for 11e(cM1XBXv). 42 U.S.C.101361. DOE is directed to take State and Indian sismAcant ==na.en=== la the formal consideration by DOE. ediodicatory process.h rule presently Under the Waste Policy Act however. concerns lato account "to the maximum extent feasible'* (Sec.117tb). 42 U.S.C. mnects sia, and ee Cmmmesion Amis DOEs submission comes after an 10137). Accordingly. In expectation ti.st no need to modh he fonnel mgulatory extensive period ofinteraction between structure for licensing activities at States and tribes will communicate DOE and the States affected Indian erectly with DOE with respect to its site 8I'8'* "P"d*d" tnbes. and the public, and after Presidential review and approval of the .. characterisation plans, the provision . Section.by. Sect /on Analysis . that the Director =ill respond to sites recommended for charactensation. questions and comroents of the States In light d he fuegoing i By the time a site characterization plan considerations, theComuniesion is

 '                                                                                               and triba on Dors plans has been is to be submitted for review and                                                deleted.                                       .                          propoeng to revise its licensing comment. there should have been ample However, the Commission has                                            C               " "'"P "'P"'*I #

l opportunity for NRC to have become i

 =

consistently expressed its intention to high. level waste in geologic mpositones. acquainted with both DOE's programs  ; and the public a concems. Since maintain a dialogue mth the States, h foHowing sectmn4y. cocoon technical meetings under the Procedural InAma inbes, and members of the anahsis pendas addinonal Agreement will be open,laterested public. This intention is unchanged. M explanatory infonnsdom. AH refemocas parties will have se opportunity to ***P g g **Y ~ are to Title 10. Chapter I Code of follow the coarse of NRC activitise and to bnns their concems to the attention

                                                                                                ,T,, '

emd Federal Reguladens. Other revimoan, including changes that may be needed to j of NRC. Further opportunities for public NRC in the discharge of its licensing confam wth se Weste ucy Act's involvement are provided by law. since ""P""ou g ,, provisions for emetrommental reviews, DOE must also seek the commenis of wiu be the subject of separate J. Propose /s for Slote Ptrrticipation relemaking, the States and tnbes, and hold public ' hearings in the vicinity of the site. For Subpart C of to CFR Port 80 provides laCPN#bria Scopert A these reasons, together with the for &* Aha8 d proposals by States and scheduling mandates of the Weste Indfan tr. bee for paracipation la reviews Section aa2 Ds/Tartsons, Policy Act, the Commission believes it is of sim characterizados mports and W tems "Inden Whe" and %el no longer necessary to prepare a draft licame applications. In~resbonse to such organisation" would no longer appear in proposals.NRC would consider i site charactensation analysis on which Port 80 and the deAnitions of the terras public comment is sought.The pnwiens certais educedonal or  ! how esafom han delmed.W tons  ; I Casunission particularty asks for views infonnadon,sem6ces and heading work "affected Inden tribe." as denned in the  ; on % proposed change that the Stdte proposes to perforat for Weste Pblicy Act,le the proper It should be emphasized, howevo. r to 'a==laala= emler oosproct,la j tion for those esuties that am that NRC will have been engaged in an support of the sowiew. and to nodce and other mcognidos ongoing review of DOE's actinties even With enactment of the Wesse Policy under the rule.& proposed rule before submission of a site Act, aotherity to fund a broad variety of lacorporates the statutory denmelon of characterization plan and that th, State activities, including grants to "a!Tected Indian tribe." comments of interested parties stay be enable a State "to review activitter . . . submittei at any time for consideration for p*Fposes ofdetermining any gy efy pi,,,gg g,gp,,,g j as a part of that review process. Potential economic. social. public heelth h sections in this subpart have been

• C8888 h and safety, and environmental Isopects" renumbered so as to allow forinsertion of a roposetary has been vested in DOE.

Under the Weste Policy Act, the of additional general provisione, f(  ; Sec.11e(cK1NENI). 42 U.S.C.10t3er see needed, at a fatore date. Commission is directed to provide also Sec. ItalbM2XAXI)(pertaining to { timely and complete information effected Indian tribes). 'the scope of . 3,.,j,, g jg ff,,,,,,,fy g g ypf gj,, 3 regarding determinatione or plans made NRC assistance available may be ,3,,,,,,,,,,,j,,, l

i. mth respect to site chorectorisoffem, limned by this sestatory direction.

No change. ' l* sinng, dowlopman, demgn. Heenang. Howem, e&er elemum of Come construction. operation. regulation or support would not be affected as Section dafs-is/formerlyfest11/. i decommissioning"of a repository.Sec. explained in greeter detailin the The forrner section i elLit captioned t17. 42 U.S.C.10137. but this affords no section.by section analysie below. y }

                                                                                                                                                                         " Site characterisaffon report."has been                          >

l 4i i-_------- _ _ _ - - . - - - - - . - - - , - - - - - - - . . .----.----.n,-_ --..-,,,,__,,n,-,--.,.,,,,,-,--n-,--,- - , , _n,~,,_n.-,_ m

l Federal Regi:ter / Vcl. 50. Nr.12 / Thursd2y. janur. 17. 1985 / Proposed Ruiss-- - 2585 1 j tmsed to conform to the Weste Policy when the context pertame to the area in sufficantly clear: should additio ?el Act.13 has been divided into three which waste handling activities an information be needed, the Com 7ssion sections in order to provide a clearer- conducted. would retain the option. by order. to editonal structure. Part 80 defines " host rock" as "the require further submissions. The " site charactenzation report" has geologic medium in which the waste is As noted the Commission has been changed to a " site charactenzation emplaced." Accordingly, the rule refers included an explicit statement that the plan." Note that this includes more than to the waste. host rock relationship site characterization plans should spell DOE's " general plan for site instead of the relationship of the waste out DOE's quality assurance programs. r.haractenzation activities;" conforming form or packaging and the geologic Existmg i eo.11 includes such language. to Sec.113(b). 42 U.S.C.10133. It must medium.The statute's reference to the but it was not included in the also incorporate information on waste packasms for the waste corresponds counterpart provision of the Waste form and packagmg as well as a to Part oo's " waste package, and the Policy Act. However. since a pnneipal conceptual repository design. The proposed rule retams the latter term for sun of site characterization is to develop chainge from " report" to " plan" better purposes of consistency. data that hen beea obtained and conveys to sense that DOE is desenbing The Waste Policy Act requires DOE to documented in a fashion which will a program to obtain information which include in its general plan for site suppen licensing findings, the NRC can be used later to evaluate a site. as characterization activities "any other informaffon required by the review should be concerned with the opposed to a presentation of data which approach which DOE is taking to data would allow a preliminary judgment as Commission." The Commission has so ion, ed and n as to site acceptability.The NRC review far identified only one such item- g process at this stage is not directed to namely infurmation with respect tg

• I quality assurance. Other informatioh which DOE seeks to assemble. Because advising DOE whether or not the site is of the importance it attaches to this item or is not satisfactory, but rather whether may hereafter be found to be needed to the Commission considers an explicit or not the charactensation proyam (1) ena'ble the Commission to determine

       .       will generate data needed for ernving at whether the proposed site                               mquirement for submission of charactensation activities are                    mformation on quality assurance subsequent licensing determinations and (2) will adversely and significantly       appropriate:if so. the Commission                 prolrams to be necessary, affect the ability of the geologic             would establish its requirement either                We have also incorporated the repository to achieve the presenbed            by rule (particularly if the.information          statutory requirement that DOE is to perfo mance objectives.                        would be valuable on a genene basis) or include in its general plan a statement of by order in a particular case. Although           the enteria to be used to determine Sectmnmm Sitechametenrotion                                                           ~

the Commission s obligations to observe suitability of the site for the location of a Pk # *M the statutory schedule must be heeded. repository. Because site characterization The requirement for DOE to s'ubmit a there is no reason in principle why the will be a prerequisite for application of site characterization report appeared in submission of other information could some guidelines. see Sec.112(b)(1)(El(li). I 60,11(a). As before, the document (now not be ordered even after the site 42 U.S.C.10132. we anticipate that the a " plan") is to be submitted to the charactenzation plan had been filed, if site characterization pis . will also Director of NRC's Office of Nuclear required for the Commission to include a description of how DOE will Material Safety and Safeguards.The discharge ita review and comment use the information gathered dunng site purpose of the submission ("for review responsibilities effectively. charactensation to determine if the site and comment") is derived from the ne Weste Policy A::t's reference to suitability guidelines are met. Waste Policy Act. Similarly. the timing plan's to control any adverse. " safety- The Waste Policy Act applies only of the submission ("before proceeding to related" impacts from site with respect to geologic repositories that sink shafts ) reflects the new statutory charactensation activities can be traced are used. at least in part. for the disposal direction. to former i 60.11(a)(6)(lii). The ,g ,,,,,,g,, ,egygg;,, ,,,j,,, The regulation refers to .. Commission's concern"onginally was charactenzation at any area which has that DOE address those aspects of site

                                                                                                              . utih Sm 8. u U.S.C.1010s. If DOE were to develop a facility exclusively for been approved by the President for site       characterization that (1) could be                wastes from atomic energy defense characterization. Such an area would be significant with respect to radiological                activities, it would nevertheless be.

a " candidate site" as defined in the safety prior to permanent closure or (2) l subject to licensing by NRC under the i Weste Policy Act.The regulation avoids could affect the ability of the repository Energy Reorganization Act.no that term, however. because it already to satisfy the performance objectives pertaining to waste isolation. The Commission has considered whether the defines " site

• la a different way.

proposed rule coatains la uage that changes proposed herein, which are I

Section su Contents ofsite reflects this construction the statute. largely raponsive to the Waste Policy l characterization plan. The Commission recognizes that the Act wou!d be appropriate with respect '

This section restates, with minor requested level of detail is not spelled to suel, defense facilities it appears that I I changes, the information which the out precisely. Such items as "a the Commission. acting under amended Waste Policy Act requires to be description of the area" and "a Part 80, could stiu effectively discharge l submitted to the Commission for review conceptual design for the geologic its health and safety responsibilities for and comment. repository operations area that takes such defense waste facilities. But. in this Because Part 80 defines high-level # into account likely site-specific section. the provisions that presenbe the radioactive weste to include spent requirements" must not be read in

• contents of the site charactensation i

nuclear fuel, the latter category of Isolation.ney must be understood to plan need to recognize that defenseanly ( , matenal is not referred to in i 60.17. require sufficient detail for the facilities would not have any applicable Cor sistent with ether provisions of Commission and other statutory siting enteria " developed pursuant to Part 00. the term " geologic repository reviewers to be ab's to comment in an Section 112(a) of the Nuclear Waste operations area" (rather than " geologic informed manner. Se construed. the Policy Act";instead. in that case. the repository" or " repository") is employed Commission believes that they are n.le requires that the site

             - -                   L L J JL7 2 i LL.LL L ~l                                                                                      :

mm - - 258s Federal Register / Vol sal. No.12 / Thursday. January 17. 1985 / Proposed Rules charsetensation plan set out the siting site charecterizadon plan and ht he assessesnts wi!! be revi. d = other entene actually used by DOE. may also review and consider the DOE documents wdl Le-for the On environmental matters, the comments made in connection with the purpose of early identification of situation is more complex.h Weste public heertogs which Doe's is requind potential licensing issues for timely Policy Act limitations with respect to the ~ to hold. Moreover, the Director wdl resolution. scope of the Commission's publish a notice of availability of a site h Waste Po!!cy Act requires the environmental responsibilities under characterisation analysis and will tnvite DQE report to the Commission (and to NEPA-which we would implement in host States, affected ladian tnbes and Stfte and tribal authontles) at least the modified procedures at the site all other interveted persons to review seafannually on the nature and extent charactenzation stage-would not apply and comment thereon. Comments of site characterization activities and ~ to a repository used solely for defense received in respone to such invitation the information developed from such wastes. Accordingly, the Comrnission wul be reviewed by the Director: and activities.The same concerns were would expect to require that DOE where the Director cbterames that there addressed in existing i alL11(3).h submit, with its site characterization are substantial new grounds for maidnS Commission believes the two plan for a defense facility, those itema of recornmendation or stating objections to formulations are essentially the same. Information with respect to site DOE's site characterization progresa, but that the more detailed version in the screening and selection that appear in these concerns will be expressed to NRC regulation provides a clearer - existing I 60.11(a) but which are not DOE. statement of the information that is included in this proposed rule. Because h Director's review of the site needed. Accordmgly, the proposed rule the information relates to characterization plan is substantiallY conforms closely to the Commission's implementation of NEPA. It would be equivalent to the final site earlier rule.The most significant change. Incorporated in revised 10 CFR Part 51 characterization analysis presenbe bY reflecting the adption of a statutory rather than Part 60. . . existing i 80.u." Die refererice to the directive to DOE,is that the provisiona Director's " comments" mflects the Mrs now er. pressed in mandatory Seedon oa.M Review of site Waste Policy Act provision that the ("shall") terms. Also, the existing rule characramation activstJas. information is submitted to the includes a provision.for subnussion of As under existing i 80.11(b) the Commission for " review and comment." addinonal mports on any topic.if - Commission wdl publish notice of h proposed rule refers to a requested by the Director: as modified, receipt of DOE's site characterizatMa " statement" of objections by the - such cther topics must still be covered plan. Although this may duplicate Director.Instearl.of a Director's as requested by the Director, but the information published by DOE.it wdl " opinion" of r ilections by the Director

• information may be included in the serve to identify, to anyone interested- insteed of director's " opinion ~t the semiannual reports instead of appropriate poets of cantact within the later term was unnecessarily equivocal. . additional" ones. The Director will NRC staff. Since altamative arena are it is intended that the objections would review the semiannual reporta and.

not required to be identified in the site be directed et the nature of the site where appropnete on the basis of new charactenzation plan, the proposed rule characterization activities being information contained theremithe cauts any reference to such areas. proposed and not to the suitabdity of the Director wul mh romendations or Languese pertaining to consultation has site as such: of course. ifit appeared state objections with respect to DOE's been nvtsed to conform with proposed that a particular site exhibited such a site chandensaden payan Subpart C profound deficiency that it could not be Simdarly, notwithstanding duplication compensetri for adequately in the !!sht h proposed mie pnmdes k h of notice by DOE, the Commission wdl of data from any site characterization Director to transmit to State and enbal give direct notice to State and tnbal omcials copies of all comments made to program, the Director could object to the oscials concerning receipt of DOE's site program in its entirety.but the DOE under i 60.18.This includes not characterization plan. Under the Commission regards this as highly only the site charactenzation analysis proposed rules. this information would improbable given the procedures prior to and comments on the site characterization plan. but also any other be furnished to the officials entitled to submission of a site charactertsenen timely and complete information under plan to NRCspecified in the Waste comments which,,the mmoor chooses to the Waste Pol';y Act. Because such make by way of expmemng carmnt Poll &Act. views." Other correspondence between offldals would almady have recalved The tacission of a finding with mopect copies of the site characterization plans to the necessity of using radioecdve NRC and DOE will be placed la the from DOE. the notice frors the materialimplements the specific Public Document Roon: but will not Commission would not be accompanied routinely be distnbuted to the - direction in Section 113(c)(2)(A). 42. by additional copies therect However, a U.S.C 10133: the Commission has designated officials.The omission of the copy of the site characterization plan previously concluded that the use of requirement that the Director consider would be placed in the pubic Document source. special nuclear, and bypredoct comments received from States in Room. lExisting i 80.11 would require material for purposes of site accordanos with I e0.81 conforms to the local officials, and also the governors of characterization does not require a changes in Subpert C Sech comments contiguous States, to be afforded notice  !! cense.10 CFR I 80.7. and there is no may, however, be solicited and from NRC This requirement has been reason to believe that the Weste Policy remwed as appropriate in individual deleted in the Ught of the new statetory Act was intended to change this view. casa ard, as noted. comments on the provisions.) Since DOEle not required to proper, site characterization analysis wd! be For the nosons set out fn the an environmentelimpact statement with Svited and will be reviewed. and such discussion above. the proposed rule respect to site characterrzatinn. see Sec. review may be the basis for the director cauts the mandatory draft orte 113(dl. 42 U.S.C 10133 the references in to express to DOE additional charecteeisation analysis described in references in existing i 80.11 te such recommendations or oblections. existing i etL11. However. the proposed statement have oeen omitted. A footnote Except for some editorial changes, rule does provide that the Director may to the text of the rule points out. othe provisions of 100.18 are the same invite and consider comments on DOE's however, thet DOE's environmental se existing regulations. il IP

                                                                                                                                                                             ?.

h e

  . I.                    Federal Registee / Vcl. 50. No.12 / Thursday. January 17. 1985 / Propos:d Rules                                             ?.58' 10 CFR Port m Subport C                          elmuuted ref;tence t3 any consult:tirn a proposal ta f:c:litate its partierpetron This subpart desis with participadon            activstles by NRC that are more                  in the reuew of a site charactenzation by State governments and Indian tnbes             appropnetely and directly carried out by plan and/or license application. The in the Commission's licensing and pre-            DOE under those procedures.Thus.                 existing requirement that proposals be licensing scavides.De role of es                   consistent with the Weste Policy Act,            submitted no later than 120 days after States and tribes in repository siting and geesdons n% Na ate                                       docksting of a license application has des elopment to add.essed in great detail chamcarizadon submissions should be                       been eliminated; although early by several provisions in the Nuclear               directed to DOE for its conalderation            submissions are desirable. we can d'aste policy Act. While the                       and response. and notification readily conceive of cases in which Commission finds that some changes in              concermng    NRC  meetings      or               proposala subautted after review of a Subpart C are needed in light of those             consultations with DOE should be                 licenu application could be provisions it remains our intention to             provided by DOE.Notwithstanding                  implemented in the mutualinterests of encourage close working relations with             these  changes,  however. it   remains the policy of the Commission that                    the propoems entity and the the States and tnbes. The revisions and designed to clanfy the means by which                                                P

[ Commission. activities that The types NRC might consider of services or ( this can be accomplished in a manner providing would include those confonning to se new law. " be ',yg g", ,$ed,,gg, g',Q$fo

                                                              ,,                               gy              educahonaMafonnadon usu and Section otL61 Provision ofinformation.             respect to NRC's views on the progress           W* # *** ** ' ** "'

• ofsite characterization on NRC existing i 80.82(d).

Dia secdon iniplements se requirement in the Weste Policy Act. procedures, and on the development of The Commission has omitted those Sec.117(a). 42 U.S.C.10137, that NRC proposals foe participation in licen. se.* portions of existing i a0.82(c) that

                                                              ,ygy,,                             r,.           contemplete Commission funding of furmsh time!y and complete information Although the Waste Policy Act does            State work in support of the license to host States and aflected Indian tribes regardmg its determinations or plans. It          not provide formally for NRC activity            review. In light of the Waste Policy Act.

epplies. msofar as Commission prior to Presidential approval of an area funding of such work to improve the responsibilities are concerned. from the for site characi*enzation, and this is State's capacity to review a license noted in revised 180.82, there mil be application is a responsibility of DOE time a site characterization proposalis submitted throughout the entire life of coordination dunng the earlier stages of and it is to be financed out of the s te screenmg and site characterization Nuclear Waste Fund. We do not rule out the mpository ens,gh In accordance with the Procedural decommissioning. Consistent with the possibility that the NRC may  ; Agreement between NRC and DOE: contract with State governments on gther usage m Part 60, the phrase I permanent closure. or decontamination special provisions has been made in that occasion for particular services that we agreement for States and Indian tribes may require in order to be abie to and dismantlement of surface facilities i is used instead of th to receive notice and to attend NRC/ discharge our statutory responsibilities

           ,decomnussioning, ,e statutory term               DOE meetings so as to enable thern to             effectively.ne execution of such

• engage knowledgeably, on an early and contracts would be carned out under

                    ,     ["','y              g ongotas basis. in site characterization renews.

established ment procedurys and determinations made in the course of would be su ject to applicable De gpc,J.idty to request that the limitations with respect to competitive 2 licensing practice. proceedings. parties on the service Under list in our rules of Director consult with respect to the NRC bidding and avoidance of confli such procedings are required to be .evsew of site characterization activities Interest. See 41 CFR Chapter I (Federei i served with notaca of all tslevant is not limited to prospective host States. Procurement Regulations). A further piesdings, decisions, order. etc. The extent to whicK a State may be reason for handling such contracts aFated by the prospective location Accordingly, the Commission will use under the general precurement would.of course. be a facter for the regulations rather than Part 80 is that this established procedure as the means . , Director to considae in determining the for prc,viding informatiou regardin8 '.the e.riteria for approval of proposals etaf resources that would be made icensing actions. available for purposes of such (exist ng i Re3. proposed i 60.8Md)) consultation. would be inappropriate when the - Sectiondtut? Sitereview. - Commission's purpose is to acquire ne Waste Policy Act establishes a Sectiona0.82 Porticipotioninlicense services which it needs in discharging structure for the involvement of States i n ws. . its own myiming functions. and affected Indian tribes. The proposed his section is a substitute for the Considering this limitation of the rule therefore provides explicitly for earlier $180.82-a0.65. scope of NRC activities under Subpert consultation mth States and effected Section 60.83 schnowledges. first of C. the requirement for gubernatorial Indian inbes but omits mention oflocal . all, that State and local governments approvalof a State proposal has been governments. (However, the and aNected Indian tnbes may eliminated as being unnecessary.no Commission anticipates,in light of the participate in !! cense reviews as information required to be included in Waste Policy Act, su Sec. provided in the Commission's rules of the proposal has also been modified to 116(c)[1)[B)[iv). 42 U.S.C.10138, that the practice. Imcal governments are conform to the !!mitation of scope.The States would estabilah appropriate mentioned in this context because they Waste Policy Act may have further procedures to address local government may have standing. spart from the State limited the opportunities for states to and citizen concernt.) in which they are located, to participate receive funding frota the NRC, the Since the concerna of the States and in a licensing proceed!cs as a party or Commission is of the view that Congresa eHected Indian tnbes will be dealt with participate in a more Ilmited capacity. l intended that DOE should assume the  ! pnmarily under the statutory See to Cat 1714.1713(c). Feders! responsibility for activities of  ; consultation and cooperation De regulation retains a provision for the types desenbed la Sections its and , ' procedures, the Commission has a State or erected Indian tribe to submit its and that such activities should be I tughup=9sp % $ @ L{yy M w.5%E " ,M

3- . --n.wp. m..:.y y x-q3 =.g. 33, ., .m a , 9:: - - - aak an m < < -, a . . . . . . . . 1.~nC , 2S88 Federal Reitister / Vol. 50. No.12 / "!1 ursday. January 17. 1965 / Proposed Rules financed out of the Nuclear Weste l'und of1980, as amended. and the Nuclear PART to-CISPOSAI. OF HIGH. LEVEL rather than out of NRC appropriations. Weste Policy Act of 1982. and not just RADICACTIVE WASTES IN GEOLOGIC Edsting i etL64 pertaming to the NRC/ DOE Procedural Agreement. ' MPOSITORIES participation of Indian tnbes. has been Commissioner Asselstine would also incorporated in the substantive reta a the present requirement in to CFR 1.De authony citadon fw Part 80 provtsions applicable to States.The conunun to med as fdigws: - change has ban made fw edtwist 80.11 for NRC issuance of b draft site e 2 st.sa,es.as,as,et. tot. roesons and is not intended to affect the characterizauon analyses for public , taa. Iss. se stas. sea, sac, est. ass, ass, eso,

                                                                 """"**g, right of affected Indian tnbes to                                                              sas. see, as amended (43 USC aort. arra, partidpate like the States in the                 Comaussioner Asselstine would                ansa, auss, aoss. 2111. 2201. m2. 2mk seca.

activities described in Subpart C. approdate comment on whether thes* aus. ans, se Stat.1244. taas (42 USC ses2. Existing i 80.65. dealing with two elements should be retained in the sedeh seca.10 and 14. Pub. L ss-401. St Stat. coordination of multiple proposals, has Commission's regulations. 2sst (42 UAC :orta and 5451h sec.102. !W been deleted. The Commission deems it Environmentallampact 1.et-tee 5 se stat. ass (43 U.S C 4:32hsec. unlikely that multiple proposals of the 121. Put . I. sr-423. se Stat. me (42 USC kinds considered eligible for acceptanca Pursuant to section 121(c) of the * *3 3-under Subpart C would present any Nuclear Waste Policy Act, this proposed ** undue admu.ustrative difficulties: the rule does not require the preparation of

                                                                                                                                $" *                 **I'**[*

n, are inued under See, teto. es stat. eso. as criteria for approval of proposals an environmentalimpact statement (especially the finding of" productive amended (42 USC 2201ot). under section 102(2)(c) of the National 2. Section 60.21s revised by removing contributton to the license review) Environmental Policy Act of 1969 or anY would afford the Director adequate the definitions of" Indian tribe" and environmental review under ."Tnbal organization" and inserting. in discretion to take into account the subpangmpir(ETor (F) of section 102(2) desirability of avoiding duplication. the appropriate alphabetical location. a of such act. defimtion of the term "affected Indian Section do.8d Notice to States. tnbe* to med as foHows: Paperwork Reduction Act Statement . De Commission encourages the Covernor and legislature of a State to This proposed rule contains. - I m 2 Deerdeona. jointly designate a single point of information cdlection mquirements that As used in this part-contact to receive notice and are subject to the Paperwork Reductiort * * * *

• Information from the Commission. His Act of19eo (44 U.S.C. 3501 et. seq.). This "Affected Indian tnbe* means an section provides for notice to such rule has been submitted to the Office of affected Indian tnbe as defined in the jointly designated nominees. Management and Budget for review and Nuclear Weste Policy Act of1982.

Sectim 80M Repimatotion, approvalof the paperwork . . . r*

• requirements.

Under the pasent rule the signature g es.te (Redesignoted as I so.1st of the Govemor would serve to Regulatory Flexibility Act Certification document the authority pursuant to 3. Section 80.10 is Redesignated In accordance with the Regulatory [ e0.15. whic14 pmposals were being submitted - Flexibility Act of 19e0 (S U.S.C. 005(b}}. to the Commission. Submissions by I se.11 memoved) I" * ' the Commission certifies that this rule by ud o ee h will not,if promulgated. have a signiDeant mnomic impact on a

                                                                                                                     ' 4. Section 80.111s Removed.

tnbe and the authority ofits 3. Sections 80.16 throust 60.18 are representatives.This section is designed substantial number of.email entities. edded to read as follows: to retain the principle of assuring that This proposed rule relates to the representatives are properly identifled. licensing of only one entity, the U.S. I se.te sne enerecurtsenen pian With respect to States, a change is Department of Energy, which does not "9"'"d' needed to reflect the fact that proposals . fall 1iriGGn the scope of the definition of Before proceeding to sink shafts at wsu no longer need to be signed by b "smaD endties" set forth in the any ans which has been approved by , Governor. In the case of Indian tnbes. Regulatory Flexibility Act. the President for site characterization, the determination by the Secretary of DOE shall submit to b Director, for IJet iSubjects la is CFR Part se the Interior that it is "affected" review and comunent. a site eliminates the need for the Comminion High. level waste. Nuclear power characterisation plan for such area. to be concerned with its eligibility. plants and reactors. Nuclear materials-I se.17 Canents of one charactortueuen . rh-taala==* Aaselsdoe's Addhicaal Penalty. Reporting and recordkeeping peen. Vlows aW. -~ts. Waste treatment and The site characterization plan shall Conunissioner Aaselstine would contain-- retain the present requirement in 10 CFR !aeusace (a) A seneral plan for site e0.11 for NRC review of the site 8' *"***"8"' 3' I" characterization activides to be rcreening and selection process which

• DOE must now include in the pasmWe and under s"e authonW eeconducted at the area to be Atotnic Energy Act of 1964, as amended, charactensed. which general plan shall environmental assessements. He would include--

cite as the Commission's authonty to ee Energy Reganisation Act of 1974. (1) A description of such area. review b draft environmental as amended, the Nue!est Waste Policy Act of1982, and 5 U.S.C. 553. the including inforenation on quality ' assessments the Atomic Energy Act of assursace programs that have been 1954. as amended, the Energy Nuclear Regulatory Commission applied to the collection, recording, and = Reorganization Act of 1774. as amended, proposes to adopt the following L retention ofinformation use iits the National Environmental Policy Act amendment to 10 CFR Part 80. prepanns such description. lt g n

Feder-1 R: sister / Vol. 50. No.12 / Thursday January 17. 1985 / Proposed Rules 2589 2 - , (2) A desenption of such site

• notice that a site charactenzation plan months to the Commission on the nature i

         ~       charactenzation activities. including the                                                                                                                                                        $

has been received from DOE and that a I followine and extant of such activities and the  ! (i) The extent of planned excavations: staff remw of such plan has best"i. N informatson that has been developed ' notice shallidentify the area to be and on the progress of waste form and liil Plans for any onsite testing with charactenzad and the NRC staff waste package research and radioactive or nonradioactive matenal: members to be consulted for further development. no semiertnual reports l (iiil Plans for any mvestigation information. shallinclude the results of site activities that may affect the capabdity (b) The Director shall make a copy of charactenzation studies. the of such area to isolate high. level the site characterization plan available identification of new issues. plans for radioactive waste: at the Public Document Room. He i (iv) Plans to control any adverse Director shall also transmit copies of the additional studies to resolve new issues.  ! published notica of receipt to the elimination of planned studies no longer ' impacts from such site ch'aractensation necessary, identification of decision h- Covernor and legislature of the State in activities that are important to safety or points reached and modifications to

• that are important to waste isolation: which the area to be characterized is schedules where appropriate. DOE shall ud located and to the governing body of also report its progress in developing the

      **              iv1 Plans to apply quality assurance to any affected ladian tnbe. In addition,                                                 design of a geologic repository i

data collection. recording. and retention. the Director shall make NRC staff operations area appropnate for the area (3) Plans for the decontamination and available to consult with States and affected Indian tribes as provided in being characterized, noting when key  ! decommissioning of such area. and for design parameters or features which g the mitigation of any significant adverse Subpart C of this part. ,, , e .* depend upon the results of site environmental impacts caused by site (c) The Director shall review (he site i characterization plan and prepare a site charactenzation will be established. characterization activities. if such area characterization analysis with respect to Other topics related to site a is determmed unsuitable for application such plan. In the preparation of such site charactenzation shall also be covered if fnr a construction authoriration for a requested by the Director. pologic repository operations area: characterization analysis, the Directior may inytte and consider the views of (h) Dunns the conduct of site (4) Cntena. developed pursuant to charactenzation activities. NRC staff interested persons on DOE's site section lisal of the Nuclear Waste characterization plan and may review shall be perraitted to visit and inspect - Policy Act of1982(orin the case of a the locanons at which such activities tieologic repository that is not subject to and consider comments made in connection with public hearings held by are carned out and to observe the Waste Poucy Act. such other siting DOE. excavations. bonnss, and in site tests as criteria as may has e been used by * ** (d) The Director shall provide to DOE DOE). to be used to determine the the site charactenzation analysis 0) actor may comment at any suitability of such area for the location Hme in w ngt DOE. expmseg togett er with such additional comments of ageologicrepository;and current views on any aspect of site as may be warranted.These comments (5) Any other information which the charactenzation. In particular, such i shall include either a statement that the Commission by rule or order. requires. Director has no objection to the DOE's '"' " d w u' * (b) A desenption of the possible site characterization program. if such a (""" tor. , c ns s waste form or waste package for the statement is appropriate, or specific invited on the site characterization high-level radioactive waste to be objections with respot to DOE's program '"* I ' Y "P'"""**

• emplaced in such geologic. repository, a for characterization.of the area semiannual reports. determines that desenption (to the extent practicable) of concerned. In addition. the Director may the relationship between such weste make specific recommendatione are g j ne unds for ung form or waste package and the host rock, , pertinent to DOE's site sharacterf:ation '

st such area, and a description of the program. .ch s u n l activities being conducted by DOE with (el!! DOE's planned s,ite (J) The Director shall transmit copies . . respect to such possible waste form or charactenzation activities include onsite of the site characterisation analysis and l waste package or their relationship: and testing with radioactive material. the all comments to DOE made by him (c) A conceptual design for the Director's comments shallinclude a under this section to the Governor and fa s into acc  ! si e s fic Co on mars at th t ae an e 9uirements* proposed use of such radioactive governing body of any affected Indian material is necessary to provide data for tnbe. When transmitting the site f eeds Reviewof astecharsetertaaeen the preparation of the environmental charactenzation analysis under this activetsee ' reports required by law and for an paragraph. the Director shall invite the (a) The Director shall cause to be application to be submitted under addressees to remw and comment oublished in the Federal Resister a i 60.22 of this port. thmon. (f) The Director shall publish in the (k) All correspondence between DOE i ta .4dinen w du mw. st == dwecienenne. Federal Registae a notice of avadabdity and the NRC under this section. ecuv. nee sparwd = inie seensa. eihe - - of the site charactenzation analysis and including the reports described in www of eiher .e a request for public comment. A ennumweise inrennenen en mee um na enemise.oseuse end mes paragraph (3). shall be placed in the , reasonable period. not less than 90 days. Public Document Room. .

              ',,","',*j'g*,*"7g "g*,*,dl,, ,,,           , % shall be allowed for comment. Copies of (1)The activities desenbed in i

mennematim ecovier aincsmen.foreneeps.. the site characterization analyses and of paragraphs (a) through (k) above mww of the environmenal sense wnte presered b DOE as she time of sue nommanan. A pmcedural the comments received shall be made Constitute informal Conference between sommens ecenne riac.oos mierface emnne mie available at the Public Document Rcom. a prospective applicant and the staff, as (3) During the conduct of site

              ,,ZNr"",,e A,            s seas.
                                     ,                 NN                    charactarization activities. DOE shall report not less than once every six desenbed in i 2.101(a)(1) of this chapter.

and are not part of a proceeding under the Atomic Energy Act of 1964. as

_3- --- - 2S90 Federal Register / Vol. 50. No.12 / Thursday, January 17 1985 / Proposed Rules amended. Accordingly, neither the lasuance of a site charactertzstion (2) Review of applicable NRC analysis nor any other comments of the regulationa. licensing procedures, (f) Proposals submitted under this Director made under this section schedules, and opportunities for state section. and responses thereto, shat! be constitute a commitment to issue any participation in the Commission's made available at the Public Docurnent regulatory activities. Room. ' authonzation orlicense or in any way affect the authority of the Commission. (3) Cooperation in development of

                                                                                                                                                                     '*8***'

the Atomic Safety and Ucensing Appeal proposals for State participation in Board. Atomic Safty and ucensing license reviews. if the Govemor and legislature of a Boards, other presiding officers. or the , State have lointly designated on their Director. In any such proceeding. i es.s3 penicipesien in aisenemww*- behalf a single person or entity to a.Sub (a) State andlocalgovernments and rece ve notica and information from the gog,,,part Cla revised to reed as a Rocted Indian tribes may participate in Commission under this part, the k

• license reviewe as provided in SubpartCommission wiH provide such notice Suispart C of Part 2 of this chapter. and infonnsdon to the jointly .

t L.. .-..N;Qation try State designated person or entity instead of *

                             . and Indian Trities                         be(en) approved by the President                                                      for and siteb       la addition,                 when

{ the Governor legislature separately. g mat prevenien etIntermemen- characterization, a State or an affected I a ss Representessa. (a %e Director shall provide to the Indian tribe may submit to the Director Cove)mor and legislature ofa proposal any State in its particWlon to facilitate Any person who acta under this which a geologic repository operations in the review of a site characterization subpart as a representative for a State area la or may be located. and to the plan and/or license application. The (or for the Covemor orlegislature goveming body of any affected Indias proposal may be submitted at any time thereof) or for an affected Indian tribe tribe. timely and complete information and shallr.omain a description and shallinclude in his request or other regarding determinations or plans made schedule of how the State or affccud *

• submission, or at the request of the by the Comriission with respect to the Indian tnbe wishes to participate in the Commission. a statement of the basisef site character 12ation. siting. review, of what services or activities the his authority to act in such development. design. licensing. representative capacity.

State or affected Indian tribe wishes - construction. operation. regulation. NCR to carry out, and how the services Detedt WMin'ston. D.C. this 10th diy of permanent closure. or decontamination or activities proposed to be carried out knuary.1ses, and dismanelemenmt of surface by NCR would contribute to such For the Nuclear Regulatory Comnussion. facilities, of such operations area. geologic respository participation. The propo si may include Samuelim

educational or informatic t services Secretoryo/che Commission.

(b) For purposes of this section, a (seminars, public meeting il or other i actions on the part of NQ'. such as [FR Dw.as m ThM mW i be considered to be one which "may begeologic ent repository operations area shau

   -      located"in a State if the location thereof rooms or employment or excnaus= i.'                                                             __
                                                                                                                                                                                            . ==r State personnel under the La such State has been describedIntergovemmental               in a                           Personnel Act.

site characterization plan submitted to OtPARTMENT OF TRANSPORT / flON the Commission under this part. '(c)The Director shallarrange for a Coast Guard (c) Notwithstanding paragraph (a), the - meeting between the representatives of Director is not required to distribute the anyState or afected Indian tribe EFR PM Uy ' document to any entity if. with respect NCR staff to discusa any proposa.e d the I to such document, that entity or its submitted under paragraph (b) of this ymg counsella included on a service list section. with a view of identifying any prepared pursuant to Part 2 of this modifications that may contribute to the Drewtsr'dge Operation Regulations; chapter. effective participation by such State or tribe. sassine River (Old Channel) TX (d) Copies of aD communications by Aessocy: Coast Guard. DOT. the Director under this section shall e (dliid beJect to the availability of funds. placed la the Public Document Room. the D6tector shall approve all or part of Acnosc Proposed rule. and copies thereof shall be furnished to a proposal. as it may be modified DOE. through the meeting described above,if susssaany: At the request of the . it is determined thac Levingston Shipbuilding Company. the Ius2 see reew, (1) De proposed activities are Coast Guard is considettag a change to (s) Whenever an area has been suitable in light of the type and the regulation goveming the operation of approved by the Pntsident for site magnitudar ofimpacts which the State or the pontoon bridge on the Old Channel ' I characterization, and upon request of a affected Indian tribe may best: of the Sabine River, mile 9J behind , ! State or an affected Indian tribe, the 12 %e proposed activities (l) will Orange Harbor Island. In Orange. Texas Director shall make NRC staff available to consult with re enha)nce communications between NRC and the State or affer/.ed Indian tnbe to provide that the draw need not open. (ii) Presently, the draw is required to open States and tnbes.presentatives of such on signal from 7m s.m. to 12:00 will make a productive and timely (b) Requeses for consultation shall be contnbution to the review and (iii) are raldnight Monda made in wnting to the Director. authortred by law. federal holidays,y through Friday except and to open on signal may (c)include: Consultation under this section (e)De Director will advise the State at all othe: times if at least Wht hours or affected Indian tribe whetherits nottee is given. This proposat is being ' (t) Keeping the parties informed of the proposal has been accepted or denied, made because no requesta have been Director

• views on the progress of site and if all or any part of proposalis made to open the draw since 1970. This .

charectenzation. denied, the Director shnil state the action should relieve the bndse owner reason for the denial, of the burden of having a person available to open the draw. , [, i hi

                                                   - - - _ _ - _ .               _ .- __. -.__ __                       .-- -_ . ~ .

4-' ENCLOSURE d . I 1 l I i sg t e

 . .                                                                                         4 COMPARATIVE TEXT PART 60 - DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTES IN GE0 LOGIC REPOSITORIES

1. The authority citation for Part 60 [eentinues] is revised to read as follows:

AUTHORITY: 1246 (42 U.S.C. 5842, 5846); Secs.[10-and-2,4] Sec. 10, Pub. L. 95-601,92 Stat.2951(42U.S.C..[2021a-and]5851).

2. Section 60.1 is revised to read as follows:

660. 1 Purpose and Scope This part prescribes rules governing the licensing of the U. S. Department of Energy to receive and possess source, special material, and byproduct material at a geologi'c repository operations area sited, constructed, or operated in accordance with the Nuclear Waste Policy Act of 1982. This part does not apply to any activity licensed under another part of this chapter. 660. 2 Definitions "f.ffected Indian tribe" means [an-affeeted-ind4an-te4be-as-def4ned 4n-the-Nuelear-Waste-Pel4ey-Aet-ef-1982,] any Indian tribe - l (a) within whose reservation boundaries a monitored retrievable storage facility, test and evaluation facility, or a repository for high-level radioactive waste or spent fuel is proposed to be located; (b) whose federally defined possessory or usage rights to other lands outside of the reservation's boundaries arising out of DRAFT 07/22/85 1 COMPARATIVE TEXTS P6D - DUP 1

                ~_.         _ _ _ _              _ _  .

I i i congressionaly ratified treaties may be substantially and adversely affected by the locating of such a facility: provided, that the Secretary of the Interior finds, upon the petition of the ! appropriate governmental officials of the tribe, that such effects j are both substantial and adverse to the tribe. i I l 560.15(c) As provided [4n-i-56,40-of-this-ehapter3 by Section 113 of the Nuclear Waste Policy Act (42 U.S.C.10101), DOE is also required to conduct l a program of site characterization, including in situ testing at depth, wita respect to alternate sites. 4 l 160.18 Review of site characterization activities.1 (b) The Director shall make a copy of the site characterization plan available at the Public Document Room. The Director shall also transmit copies j of the published notice of re eipt to the Governor and legislature of the State j in which the area to be characterized is located and to the governing body of any affected Indian tribe. The Director shall provide an opportunity, with f respect to any area to be characterized, for the State in which such area is located and for affected Indian tribes to present their views on the site ! characterization plan and their suggestions with respect to NRC comments o,n_ ! thereon which may be made by NRC. In addition, the Director shall make NRC l staff available to consult with States and effected Indian tribes as provided in Subpart C of this Part. (1) The Director may coment at any time in writing to DOE, expressing current views on any aspect of site characterization. In particular, such I I IIn addition to the review of site characterization activities specified in I this section, the Comission contemplates an ongoing review of other informa-- - l tion on site investigation and site characterization, in order to allow early l early identification of potential licensing issues for timely resolution. This activity will include, for example, a review of the environmental assess-ments prepared by DOE at the time of site nomination. [A-procedural-agree-ment-severing-NRG-90E-4nterface-during-s44e-inves44ga44en-and-s44e-sharseter-4aa44en-has-been-pub 44shed-4n-the-Federal-Reg 4 ster-48-FR-38704,-August-35,  : 1983,] and review of issues related to long lead time exploratory shaft i planning and procurement actions by DOE pr'or to issuance of site  ! characterization plans. j DRAFT 07/22/85 2 COMPARATIVE TEXTS P6D - DUP (

g  ! i comments shall be made whenever the Director, upon review of comments invited j on the site characterization analysis or upon review of DOE's semiannual f reports, determines that there are substantial new grounds for making recom- [ mendations or stating objections to DOE's site characterization program. The { Director shall invite public coment on any comments which the Director makes to DOE upon review of the DOE semi-annual reports or on any other coments . I which the Director makes to DOE on site characterization.

.                                                                                                                              i i                                                                                                                               !

(j) The Director shall transmit copies of the site characterization analysis , i and all coments to DOE made by [his] the Director under this section to the ! Governor and legislature of the State in which the area to be characterized is  : located and to the governing body of any affected Indian tribe. j 560.61(c) . l  ! Notwithstanding paragraph (a) of this sect on, the Director is not i required to distribute any document to any entity if, with respect to such r ! document, that entity or its counsel is included on a service list prepared I pursuant to Part 2 of this chapter. - 1 4 1 j 660.22(c)

(2) Review of applicable NRC regulations, licensing procedures, schedules, and opportunities for State and tribe participation in the i

Comission's regulatory activities. i' t (3) Cooperation in development of proposals for State and tribe * ! participation in license reviews.  ! 560.65 t ! Any person who acts under this Subpart as a representative for a State v (or for the Governor or legislature thereof) or for an affected Indian tribe j shall include in [h4s] the request or other submission, or at the request of l 4 the Comission, a statement of the basis of his or her authority to act in l such representative capacity.  ;

                                                                                                                              ]

DRAFT 07/22/85 3 COMPARATIVE TEXTS P6D - DUP  : _- . _ _ _ - ____ _ -__._._ _ _ _ __ _ _ . _ . _ . - - _ _ ~ . . _.

7._ O- p ENCLOSURE H - 4 4 e s

o

   - y ,-

i STAFF RESPONSE TO COMMENTS OF THE ACRS

1. Much of the public connent on the proposed amendments has centered on the deletion of a draft site characterization analysis, and the fact that there continues to be a requirement for a final site characterization l analysis has perhaps received less attention than otherwise. However. the proposed rule itself is explicit on this requirement; 60.17 (c) states that; "The Director shall review the site characterization plans and prepare a site characterization analysis with respect to such plan.

In the preparation of such site characterization analysis, the Director may invite and consider the views of interested persons on DOE's site characterization plan and may review and consider comments made in connection with public hearings held by DOE." 60.17 (d) states that; .

                   "The Director shall provide to DOE the site characterization analysis together with such additional comments as may be warranted."

The rule calls for the Director to give notice of the availability of the

                                                                                    ~

site characterization aralysis in the Federal Register [60.17 (f)]. The staff believes that 60.17 as written is suffit.iently clear on the requirement for a site characterization analysis.

2. The language in 60.17 (a)(3) is essentially the same as that in the Nuclear Waste Policy Act Sec.113(b)(A)(iii). The connent correctly notes that this language calls for plans for the decontamination and daconnissioning of a candidete site, and for the mitigation of any.

significant adverse environmental impacts caused by site characterization activities if the site is detennined unsuitable for application for ~a - construction authorization for.a repository. This seems to ignore instances where a candidate site may be found suitable for an application for a construction authorization, but.was not selected for an application. However, 60.17 deals with the site characterization plan, which must be submitted in advance of actual site characterization activities.. It would be'during the course of site characterization activities or subsequently , that a site selected for characterization would be found unsuitable. At the point in time when the site characterization plan must be submitted, there is the potential for any such site to be found unsuitable. The re-quirement in 60.17(a)(3) follows the NWPA in requiring the site characterization plan. to address this contingency. What site restoration is required is a separate issue. The NWPA does not address this in detail, and the Connission's authority to establish 4 ENCLOSURE H \

r . o requirements for site restoration which do not involve radiological issues is not apparent. The inclusion of an item in the plan does not itself indicate that review by NRC ic required, as the NWPA calls for the site characterization plans to go to states and Indian tribes for comment. For these reasons, the staff prefers not to specify any such requirements in the rule. The staff considers the meaning of " decontamination and decommissioning" as it appears in the NWPA and 60.17(a)(3) to be the same as reclamation. Elsewhere in Sec. 113 of the NWPA, " reclaim" is used to describe the same activities referred to above as " decontamination and decommissioning". Sec. 113(c)(4) states that the Secretary (of DOE)

                  "shall take reasonable and necessary steps to reclaim the site and to mitigate any significant adverse environmental impacts caused by site characterization activities."

The staff believes that the continuation of the use of the NWPA language is desireable for the purpose of consistency with the NWPA. Some additional guidance is contained in Proposed Revision 1 to Regulatory Guide 4.17 - Standard Format and Content of Site Characterization Plans for High-level Waste Geologic Repositories. The staff can adopt other language in the Final Revision 1 in referring to activities described in 60.17(a)(3) should " decommissioning and decontamination" prove to be mis-leading terminology.

3. These comments support the staff's position that the rule should not call for an independent evaluation by NRC of the site screening and selection process used by DOE, and that no draft site characterization analysis should be required of NRC.

1 2 L

                              ~

1/9/86

-                               .::I:c'_!,a l.._ II; TITLE:      PRESENTATIONS BY PARTICIPANTS ON PROPOSED AMENDMENTS TO PART 60 SCHEDULED:  9:30 A.M., FRIDAY, JANAURY 24, 1986 (OPEN)

DURATION: PPROX 3 HRS SPEAKERS:

• STATE PANEL 25 MIN (TENTATIVE) NEVADA TEXAS UTAH CONNECTICUT MINNESOTA
• TRIBAL PANEL 15 MIN YAKIMA INDIAN NATION COEUR D'ALENE TRIBE OF IDAHO NATIONAL CONGRESS OF AMERICAN INDIANS 10 MINUTE INTERMISSION
• PUBLIC INTEREST GROUPS 15 MIN ENVIRONMENTAL POLICY INSTITUTE NATURAL RESOURCES DEFENSE COUNCIL ECOLOGY ALERT
• FEDERAL AGENCY PANEL 10 MIN DEPARTMENT OF ENERGY DEPARTMENT OF INTERIOR
• INDUSTRY-AND PROFESSIONAL ASSOCIATIONS 10 MIN EDISON ELECTRIC INSTITUTE SCIENTISTS AND ENGINEERS FOR SECURE ENERGY DOCUMENT: SECY-85-333

HARMON & WEISS 200sS STRECT,N.w. SUlTC 430 WASHINGTON. D.C. 20ooo-uss G Att McGRCCvy M ARMON TCLCpMONE CLLYNA wCISS (2025328 3500 OIANC CURRAN OCAN N, TOUSLEY ANDRCA C. FCRSTCR November 27, 1985 , Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 RE: Proposed Amendments to 10 CFR Part 60

Dear Chairman Palladino:

On April 17, 1985, Yakima Tribal Council Vice Chairman Melvin R. Sampson wrote the Commission requesting that the Commission convene a public meeting to hear comments of interested parties on the proposed amendments to 10 CFR Part 60. Unfortunately, the Commission denied that request. As it is our understanding that the proposed amendments are currently before you for a vote, we are writing again now to renew our earlier request. We understand that the Commission recently granted a similar request to the American Mining Congress in the Commission's mill tailings rulemaking. The equities are even stronger in favor of your grant of this request than was true in the e sse of the American Mining Congress, since we--and several state governments--have already made a timely request for this meeting. Substantively, the deficiencies in the proposed amendments to Part 60 have only become more apparent since our initial request. DOE's interpretation of the timing of the preliminary 4 determination of suitability, and the promulgation of weakened final EPA standards, have resulted in a virtual regulatory vacuum as far as scrutiny of DOE's site selection process is concerned. Consequently, the arguments for careful NRC review of'that process are even stronger than before.

(" HAcw:N 4 Warcs Nuzio J. Palladino November 27, 1985 Page 2 For the reasons above, as well as those set forth in our April 17 letter, the Yakima Indian Nation urges the Commission to hold a public meeting to accept comments.by interested parties before voting on amendments to 10 CFR Part 60. As we stated in our previous letter, both the process and your rule can only be strengthensd by your grant of this opportunity. Sincerely yours, Dean R. Tousley ASSOCIATE ATTORNEY FOR THE YAKIMA INDIAN NATION cc: Melvin Sampson Russell Jim Jim Hovis Catherine Russell k

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CCCKE' % 4 SE2Virl SPANCH Honorable Samuel Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: 10 CFR Part 60 Amendments

Dear Secretary Chilk:

On January 17, 1985, the Cor. mission issued for public ccmment proposed amendments to 10 CFR Part 60,. Licensing Procedures for Disposal of High-level Radioactive Waate in Geologic Repositories, 50 Fed. Reg. 2579. Because of the coincident deadlines for submission of comments on these proposed amendments and on the draft environmental assessments for proposed repository sites, the Yakima Indian Nation filed its comments on these amendments late, on April 8, 1985. As detailed in our comments (enclo sed) , the Yakima Indian Nation feels strongly that the proposed amendments, if adopted as proposed, would seriously undermine the Commission's ability to fulfill its stacutory responsibilities in the nuclear waste program. Moreover, the proposed amendments would greatly increase. the likelihood that the national nuclear waste disposal program would experience "ery significant unnecessary delays or outright failures in its 11plementation. In brief, we believe the Commission staff's reluctance to engage in a thorough review of the Department of Energy's site screening and selection process constitutes a fundamental abdication of the Commission's public health and safety and environmental protection responsibilities under the Atomic Energy Act, the National Environmental Policy Act, and the Energy Reorganization Act. Moreover, contrary to the Commission's position expressed in the proposed amendments, nothing in the Nuclear Waste Policy Act either requires or suggests such deference by the Commission concerning the selection of sites for characterization. Because these issues have such profound implications for the Commission's responsibilities in this crucial national program and for the success of the program itself, the Yakima Nation feels that they deserve a higher degree of scrutiny than the Commission might ordinarily devote to such a rulemaking. For this reason, we Apo a e 10Aq M*W by cani . . . . . . . . . . . . . ,

i Honorable Samuel Chilk, Secretary

 ;   April 17, 1985 Page 2 I

I request that the Commission schedule a public meeting before voting on promulgation of a final rule to receive oral comments on this proposed rule from the staff, affected states, Indian tribes, ' and representatives of the general public that have submitted comments on the proposal. Such a session, similar to the ones which the Commission held during its consideration of the concurrence in DOE's general siting guidelines, would serve to illuminate the issues in this vital rulemaking for the Commissioners' benefit, and, whether or not iti changed the outcome, would result in a better-informed Commission decision. I The Yakima Nation urges your favorable consideration of this request. Sincerely yours,

                                                 ~

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MELVIN R.!S M ON,[ Vice Chairman / Yakima Tribal Council 1 MRS:ls I' Enclosure i

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i l ANALYSIS OF PROPOSED REVISIONS TO 10 CFR PART 60 f l Suassarr , The purpose of the proposed revisions to 10 CFR Part 60 is to revise the . regulations that treat state and Indian tribal participation in the siting i and licens ng process to confona with the provisions of the Nuclear Weste Policy Act of 1982. The portions of 10 CFR Part 60 that are proposed for revision ts aske the regulations conform with the provisions of the Nuclear Waste Policy Act of 1982 include: Section Iristina Section Title . 60.2 Definitions 60.10 Site Characterization 4 60.11 Site Characterization Report 60.61 Site Review 60.62 Filing of Proposals for State Participation 60.63 Approval of Proposals t 60.64 Participation by Indian Tribes l l 60.65 Coordination i The Nuclear Regulatory Commission (NBC) is required by law to cooperate with the states, and the NEC recognizes the value of state participation in sit-Ing and licensing decisions. However, the cooperation between the NBC and the states, as presently defined, consists mainly of issue definition and The states are not granted a full ' advise-and-consent i information exchange. role in the decision process under current interpretations of the applicable , statutes (The Atomic Energy Act of 1954, as amended; Reorgantastion Plan No. 3 of 1940; and the Nuclear Waste Polley Act of 1982) or regulations (10 CFR

;                        Part 60).                                                                                                                                                                                                        l 1

Another problem with the way that the 10 CFR Part 60 regulations are struc- l a tured is that the NRC's role is basically only advisory until gG35, site j characterization is completed, as the Department of Energy (DOE) is not j required to obtain any type of license or formal approval from the Ntc until after site characterisation is completed. The NRC does not become involved i in the process for a particular site until af ter a site characterization plan is submitted by the DOE for that site. State involvement is tied to j NRC involvement, as a State is not considered an interested party for i pdeposes of these participation provisions until after the State is ( 16atified within a site characterisation plan. This is well after the ecnclusion of the environmental assessment process. i It is not clear in the Act or .in the regulations what role, if any, State  ! i comments prior to the site character 1:ation phase have in influencing either Nic or DOE decision processes. As the Act and the regulations both define i the commencement of the site characterization phase as the beginning of  ! shaft sinking, there apparently is no regular mechanism available to the  ! States to influence activities that occur prior to that time. Though many  ! serious environmental consequences can result from these apreliminary" t > [ t

            - . - - - -  , , . . , - - - - -            en - - - - - - - -           + . - - , , , , , , _ - - , - - ,----,-_--.,-,.,---n             ,,,._,_------,+,,-,.,..,n,---      - - - - , , , , , - - -   m,~,-.,-_-. - - - -

l l j- . j activittee, the saly redress if the DOE or the NBC ignore State concerns i about such estivities appear to be through the courts under the provisions ' j et Secties 119 of the Nuclear Weste Policy Act. l' Specific Chamaes Proposed for 10 CFR Part 60 i ) Specific changes in 10 CFR Part 60 (and their laplications for the State of - l Utah) are summarized below. De changes ' proposed for Section 60.2 (Deflaitions) do not affect state par-ticipation la the sittag and licensing process. In order to provide con-

foretas dettaltions with the Nuclear Waste Policy Act, the def tattions of ,

j " Indian tribe" and " tribal organtastion" have been dropped, and a deftaltion l 1 of "affected Indian tribe" is added. De defialtion of "affected Indiaa tribe" is the same as that provided la the Nuclear Waste Policy Act. i l

)
 !                                no " preapplication review" portions of 10 CFR Part 60, which deal with site                                              '

! characterizatica activities, have been estensively revised. Substantively. these revisions define the contents of the site characterisation plan that i DOE aust subatt to the Ntc prior to the commencement of the DOE's site char-  ; acterization activities. In addition to information required under the old versica of the " preapplication review" regulations (old 10 CFR 60.10 and l 60.11), the DOE aust submit plans for decontaminating and decossissiontag i l the site characterizatica area, including plans for attigation of any sig- l nificant environmentel effects, if the area is deemed to be unsuitable for  ; i' development as a repos' tory. De DOE aust also submit its criteria, devel- l oped pursuant to section 112(a) of the Nuclear Weste Policy Act for repost-tory activities covered by L.at section of the Act, or other siting criteria utill ed by the DOE for other types of sites, utilized for determintas the suitability of sites for locatloa of a geologic repository. De level of j laformatJon required for waste forms or waste packages has been upgraded ! from a description of the research and development efforts related to waste packaging to a requiressat that the DOE provide a description of the waste form or package and its relationship to the natural barrier systems peculiar to en ladividual site. De conceptual destsa for the repository that the DOE aust subalt must take into account "likely site-specific requiroseats." (See proposed 10 Cit 60.15, 60.16, 60.17, and 60.18) . The language for j these additional regulatory requirements is quoted directly from Section 113

-                                  of the Nuclear Weste Policy Act.

Also, it is tapertant to note that both the Act (Section 113(b)) and the regulations (now 10 CFR 60.16) require that the site characterisation plan l be subattted to the NRC "before proceeding to stak shafts at any candidate j I site." Previously, the Ntc required the DOE to submit site characterization ! plans as early as possible la the DOE's planalas process, h is taplies that i certain prelialaary activities, such as drilling and seismic esploration, as l well as construction of access, could occur prior to DOE submissloa of the

site characterization plan. nus, the only effective opportunity available to the NBC or the states and tribes for review and consent on such activi-i ties (if it is available at all) is'at the Environaestal Assessment stage.

I__ - _ _ _ _ _ _ _ _ _ _ . _ - ____ _ _ _ _ _ _ _ _ _ _ _ _

i . l l l i Once the NBC receives a copy of DOR's site characterization plan for a given site, the BBC aust prepare a site characterization analysis and aske this

!                                  analysis available to the public for comment. His analysis must be trans-
<                                  mitted to the host state and affected Indian tribes, along with an invita-
!                                   tion to commeet. In both the old and new versions of the rule, the Ntc wil'.
,                                  publish a notice of opportunity for comment in the Federal tettster, and                                                  ,
!                                  will afford a reasonable comment period, "not less than 90 days " for com-                                               i

! ment by interested parties, including states. I ! ne Ntc must provide the site characterization analysis to the Dot, together

!                                  with whatever connents the NRC feels are laportant, and the Ntc must include                                              '

j a statement either than the Director of the Ntc has no objection to the DOE's proposed site characterization program, or specific objections to and/or recommendations about the DOE's proposed program. Does new provi- l { 1 4 sions are stallar to those in the old version of the rule. Additional sections have been added requiring the DOE to include a descrip- l i tion of and justification for any planned onsite testing with radleactive  ! ? matselais (Nic spproval of such planned testing is required), and a require-ment for semlannual progress reports by the DOE to the Nic during site

characterization activities, ne use of radioactive materials at the site  !

l characterization stage is governed by the Nuclear Weste Policy Act (see Sec-l tion 113(c)(2)(A) and (B)). De requirement for a sealannual progress { report appears to be an Ntc requirement not esplicitly covered in the Act,  ! justified by the NRC's interest in expediting licensing decistens. De new ~ sections of the rule make mandatory reporting of progress and issues by the i DOE to the NBC. De Nic may, when it receives these reports or comments i from other interested parties or on its own initiative, comment to the DOE j at any time during the site characterization process, and the Ntc may also ! raise objections to the DOE's conduct of the character 1:stion process. In  ! I both the old and new versions of the rule, copies of any such correspondence i are to be made available by the Nic in its Public Document toon, f I ne final portion of this section in both the old and new versions of the lI rule indicate that consultations between the Ntc and the DOE see informal l consultations and are not regarded as a part of a proceeding under the pro-l visions of the Atoele Energy Act of 1954, as amended. De new version of 7 the rule adds a disclaimer stating that the conduct of informal conferences l ! does not taply that the NRC will issue a license or any other authorization. I and that the authorities of the NBC, the Atomic Safety and Licensing Boards ! and Appeal Board, and the presiding officers or Ntc Director are unaf-l facted. Subpart C of 10 CFR Part 60 defines and orders participation by States and , Indian tribes in the site characterization and licensing process. De , } Nuclear Weste Policy Act contains several esplicit sections treating State and Indian tribal participation at various points in the process. Unfortu- l nately, except for the State " veto" provisions (Section 116(b)(2)), which  ; can only be laplemented af ter a site is formally recommended by the Prost- i dont to the Congress, this participation is mainly limited to information  ; and coanunication. Neither the statute nor the regulations at 10 CPR Part

• 60 appear to offer the opportunity for true interactive cooperation, coordi-nation, and decisionsaking between the NBC, the Dot, and the States and Indian tribes. .

3

i  : ! i i  : 1 i i  ! i I j Old 10 CFR 48.41 will be retitled "Frevistos of Information", and the revised " Site Review" previsions have been moved to 10 CFR 60.62. De l l section en provistos of information provides that States and affected tribes I will be notified regarding Ntc deteralsettons or plans ande with respect to j site characterisation or other geologic repository activities. However, ' j these provisions are not triggered until a geologic repository "may be

located" withis a State. For the purposes of this section, a repository  ;

j "may be located" within a State when such State is identified la a plan sub-  ! altted to the NBC by the DOS. De " Site Review' section has been moved to 10 CFR 60.62, and the old see-i tion 60,62, entitled " Filing of Proposals for State Participation," has been i eliminated, ne site review provisions are not triggered until as area has , been approved by the President for characterization ggd a request for coa. ) sultation is subaltted in writing to the Mac by either the State or as l ,! affected Indian tribe. Consultation is defined as keeping the parties j taformed of the Director's views on the progress of site characterization;  !

review of applicable Ntc regulations, procedures, and schedules; and cooper-i ation la developlag State proposals for participation in liceastas reviews.

i j Old sectica 60.63, entitled " Approval of Proposals " has been ellainated. A i { aew section, entitled " Participation in License Reviews." has been substi- l 1 tuted. Participation la licensing reviews is defined by the rules of prac-  ! l tice before the NBC provided la 10 CFR Part 2 (Subpart G). States and l affected Indian tribes may submit proposals to the Director of the NBC for l participation in the review of site characterisation plans or lleense app 11-cations, no State or tribe may also request meetings with the Ntc regard-ing any such proposal. De Nic may then, subject to the availability of funds, approve all or part of the proposal. To be approved, proposed actt-vities must be suitable in light of the type and magnitude of potential i l !apacts,' must enhance communications between the Ntc and the state, must aske a timely and effective contribution to the review, and must be author- [ l l imod by law. l Old section 60.64, entitled " Participation by Indian Tribes," has been ella-insted, as Indian participation has now been incorporated la the various l l sections deallas with State participation. A section entitled " Notice to l l States" has been substituted. nis section provides that the Governor and ' ! legislature of a State any jointly designate a person or entity to receive i i information and notification from the Ntc on.their behalf. Old secties 60.65, entitled " Coordination," has also been eliminated. nis  ! section allowed the Director of the NRC to take into account the destra-bility of eveldtag duplication of effort la acting upon multiple participa- i tion proposals. However, the Nuclear Weste Policy Act new specifically grants participation rights to the States and affected Indian tribes, and Indian participation, for example, cannot be foreclosed even though a pro-posal for State participation has been subaltted. nus, the old section is ao longer applicable. Old section 60.65 is now titled " Representation," and  ! It requires any person or entity acting in a representative capacity for a tribe or a State to submit a basis for such authority upon request by the Ntc. 4 h

i* Recosseesdatiesa i no currently proposed revisions to 10 CFR Part 60 for the most part include I minor wording changes that conform the existing regulations to the provi-sions of the Nuclear Waste Policy Act. He NgC appears to be utilizing a l restrictive interpretation of its authorities under the Act in order to avoid duplicating DOE authorities and responsibilities. De State of Utah would like to encourage the most liberal interpretation possible of the NBC and State participatory role in the DOE's siting and licensing activities. I Under both the Act and the proposed regulations, the opportunities for State participation with Etc in the siting portions of the process have been

'   restricted,    no States cannot formally propose participation in the process untti efter a site characterization plan is received by the Nic. nts is in contrast to earlier versions of the regulations, which encouraged subelsslon of site character 1:stion plans to the Nic at the earliest possible point in the process. As plan subelttal triggers State participation, State partici-pation was thus potentially available at an earlier point in the process 1    under the old regulations.      As the language in the proposed rule deallas with this issue is quoted verbatim from the Act, it appears unlikely that this restrictive requirement can be relased in the proposed rule.

Under the proposed rule, the DOE is not obligated to subelt plans to the NBC until the DOE plans to cossmence shaf t sinking; " preliminary" activities are . j not covered by these plans. A clear definition should be added to the regu- ! lations of what, esactly, constitutes " preliminary" activities, as these l pre-plan activities may be environmentally disruptive and may also trigger State regulation or require State permits. For esample, is site preparation and construction of access prior to commencement of actual shaft sinking considered to be " preliminary " and thus esempt from the participation requirements, or is it considered to be a part of the shaft sinking? De latter interpretation is preferred, as the DOE would then have to subalt plans for such activities to the Nic (and the Nic would haveconsequent to solicit State participation) befor_t large-scala disturbances (and environmental damage) occur. 1 l l l 5 i k .

STATE OF NEVAD'A noesnt D.Lous atCHAno' N.' envAm

• ospeceer Co.sesse O

NUCLEAR WASTE PROJECT OFFICE Cap 6tol Comptes Caeson C6sv. Nevada 89710 (702) 885 3744 December 3, 1985 Mr. t:unzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission , Washington, D.C. 20555

Dear Chairman Palladino:

As you are aware, some time ago the State of tievada requested that the commission convene a public meeting to hear the comments and concerns of affected states and tribes on the proposed a m_e ndments to 10 CFR Part 60, and that request was denied. As consideration of the aforementioned proposed amendments is before the Commission, and the Commission has granted a similar request in this regard to the American Mining Congress relative to the Commission's mill tailings rulemaking, I am therefore, at this  ; time, renewing my request that the Commission hold the aforemen-tioned public meeting. We are making this renewed request again in the spirit of cooperation, and hope that the Commission will see the value in conducting such a public meeting. 1 Should you have any questions, please do not hesitate to contact me. Sincerely,

                                               , -o h r Robert R. Loux Director                                                               .

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