ML20154P732

Forwards Ofc of Executive Legal Director Comments on HR 1852 (EDO-5618)

ML20154P732
Person / Time
Issue date:	03/26/1979
From:	Malsch M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Trubatch S NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
TASK-TF, TASK-URFO NUDOCS 9810230058
Download: ML20154P732 (30)

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March 26,1979 MEMORANDUM FOR:

Sheldon Trubatch

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Office of the General Counsel FROM:

Martin G. Malsch Chief Regulations Counsel

SUBJECT:

DELD COMMENTS ON H. R.1852 (ED0-5618)

Attached are the Office of the Executive Legal Director comments on the subject bill.

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9810230058 790326 PDR ORG NRCG

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OELD Views on 11. R.1852 i

1.

Th'e NEPA responsibilities of the Commission are unclear.

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14 indicates that NRC would not be exempted from NEPA, though it would " satisfy" NEPA requirements "only in accordance with the provisions of this Act." See also Section 5(d)(3).

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Buhndersection5(d)(1),theCommissionisdirectednottoconsider

,any site, technique, or method for the design, construction, and operation other than that selected by the Secretary. This takes on special significance when the language of Section 5(d) is U-contrasted with one of its evid'ent sources, namely, the Commission's proposed statement of policy.

There it was provided that a NEPA cost-benefit balance sould be drawn by the Commission prior to issuance of a construction authorization or provisional construc-tion authorization.

Our concern is not directed to the desirability of having NRC carry out NEPA reviews.

Congress could, should it deem it desirable, OC vest this responsibility exclusively in DOE. The problem we believe should be highlig'hted, however, is the uncertainty regarding the NRC role that the proposed language would be certain to engender.

2.

The two-year review period for disposition of an application for a construction authorization is too short--at least if such disposition is taken to mean a final grant or denial of a " full" construction authorization as opposed to a provisional construction

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authorization.

If the scope of NRC review is limited by the

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exclusion of NEPA issues, two years might be sufficient to allow L

for determinations appropriate to the issuance of a provisional construction authorization.

3.

The reference to a " license application" for construction is erroneous. The only licensing authority of.the Comission applies to the receipt and possession of nuclear material.

This concern can be dealt with simply by striking the word " license" from section5(d)(1).

O 4.

The direction to dispose of a 1icense application, pursuant to section 5(d)(4) "in a manner consistent with the goals and purposes of this Act" is obj'ectionable insofar as it might be read to establish licensing criteria other than those set forth in the Atomic Energy Act. This is potentially a serious problem when one, examinesthepurposesoftheAct(sec.2(b)),whichrelateto having the repository in operation by September 30, 1988 and not at al t the pr tecti n f' health and safety.

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The legislative history should make it clear that the differen.tia-tion between " nuclear wastes" and " spent nuclear fuel" (e.g.,sec.

3(3)) is not intended to imply that spent fuel is not high-level radioactive waste within the meaning of section 202 of the Energy Reorganization Act.

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The authority of the Secretary to regulate the form of materials delivered to a repository (sec. 7(a)(2)) should not be regarded

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The assessment of the possibilities of migration into the eco-

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system by EPA,is probably inappropriate, except to the extent

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statements. A more detailed review would be duplicative of the Commission's functions and a departure irom the established division of responsibilities between NRC and EPA.

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Participation in Commission proceedings should be the prerogative of a " State" rather than a " State legislature."

(Sec. 11 (b). )

9.

References to the ' Chairman of the Commission" should be deleted

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Commission as a whole.

(See, esp.sec.12,sec.13(b).)

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10. Section13(d)mayleadtodisputesastowhetherparticular Commission regulations are promulgated "under this Act" or under the Atomic Energy Act, particularly if they are of broader appli-cability.

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Section13(d)mightcutoffuntimelychallengesfiledbyDOE. The extent to which challenges by ot'her persons would be barred is unclear.

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12. The " joint lead agency" approach to NEPA seems inappropriate for

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a, situation in which one agency is an applicant for a license and a second agency has adjudicatory responsibility.

If NRC retains NEPA responsibilities, it would probably be most appropriate for-it to serve as the sole lead agency.

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Thefeferenceto"authorityofStatestoinspectnuclearfacilities as designated pursuant to State law" is potentially very trouble-some.

If it means no more than that State representatives should have an opportunity to visit the site and view the activities conducted there from time to time, in accordance with regulations of the Commission, it should so provide. But the implication is that the activities;should in some way be subject to State regu-lation. The desirability and extent of such regulation are matters requiring careful evaluation. See Hancock v. Train, 48 L.Ed.2d 555, 565:

"Because of the fundamental principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when Q

and to the extent there is a ' clear congressional mandate,'

' specific congressional action' that makes this authorization of state regulation ' clear and unambiguous.'"

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3 IN THE HOUSE OF REPRESENTATIVES t

FEBRUARY 5,1979 Mr. GoLDWATER introduce 4'the following bill; which 'was referred jointly to the Committees on Interior and Insular Affairs, Interstate and Foreign Com-g.:

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(i) As soon as he deems necessarv. the Secretarv is an-r innrized to acouire Oy v:.nmsw. lenw. condemnation, or

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'h major items of equipntent, and real property (incI ding, 5

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13 CONTRACTS 14 SEC. 6. (a) The Secretary shall provide funds, by

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c 21 in accordance with such rules as the Secretary may prescribe 22 under the provisions of this section. The Secretary may enter r

23 into contracts under this section without regard to section 24 3709 of the Revised Statutes (41 U.S.C. 5).

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5 demonstration repository of nuclear wastes or spent nuclear 3i

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9 reflecting the monetary value of the energy content 10 contained within spent nuclear fuel assemb!ies, as de-

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10 any person makes a showing satisfactory to the Secretary 1

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with ihr nurposes of section 1905 of title 18 of the United

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10 SEC. 8. The Secretary of Transportation, in consulta-k

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J' 12 tion,vith the Chairman of the Commission, the Administra-t i

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17 blics to the Federal demonstration repository, and the g

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r 7 and eighty days after the selection of the site for the Federal 8 demonstration repository pursuant to section 5.

9 ENVIRONMENTAL PROTECTION AGENCY 10 SEC. 9. (a)(1) As soon as possible, but not later than six l

11 months after the date of enactment of this Act, the Adminis-I' 12 trator, in consultation with the Secretary, the Chairman of I

13 the Commission, and the heads of other appropriate Federal 14 agencies, shall determine and promulgate emironmental pro-15 tection standards and criteria for exposure to radiation from p

/16 activities involved in the permanent storage and disposal of 1

17 spent nuclear fuel assemblies and nuclear wastes.

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18 (2) The standards determined and promulgated under 19 paragraph (1) shall consider appropriate public health and j

20 safety aspects relating to the storage of spent nuclear fuel U

21 assembhes and disposal of nuclear wastes.

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22 (3) Before the promulgation of any standards or criteria 23 pursuant to this section, the Administrator shall publish the j

24 proposed standards and criteria in the Federal Register, 25 together with a statement of the research, analysis, and s

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3,1. r 3 thirty days for written comments thereon and an opportunity, I

l 4 after such comment period and after public notice, for any j

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16 (c) The Administrator may undertake or contract to

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19 NUCLEAR WASTE MANAGEMENT ADVISORY COMMITTEE ih 20 SEC. 10. (a) There is hereby established a Nuclear

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.i 23 and advise the Secretary on-T (1) the scope and pace of research and develop-24

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spent nuclear fuel assemblies and disonsal of nuclent 2

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(2) the relative costs and benefits of the technol-4 ogies available for the storage of spent nuclear fuel as-5 semblies and disposal of nuclear wastes, taking into 6

consideration the technical, economic, legal, environ-7 mental, and social factors associated with their use; (3) new and existing policies and programs of 8

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Federal, State, and local governments required to I

10 develop the requisite technology for the storage of 11 spent nuclear fuel assemblics and the disposal of nu-12 clear wast $s, taking into cons'ideration the technical, 13

,_ economic, legal, environmental, and social factors 14 involved; 15 (4) research, development, and demonstration i

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activities relating to the construction and operation of 17-a Federal demonstration repository, including the de-

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22 clear wastes and spent nuclear fuel assemblies to such 23 repository; j

24 (5) means to insure effective participation by State 25 and' local authorities, relevant segments of the econ-x

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(6) all actions taken by the Secretary to carry out

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(b) The Committee shall composed of fifteen mem-iW 8 bers, including nine members appointed by the Secretary w

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22 tary of how those views were taken into account. Upon selee g

23 tion of a site for the repository, the Secretary shall notify the i

24 Governor of the State and the chief executive of the mtmici-25 pality in which the designated site lies and furnish such Gov-

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4 5 he resolves such matter with the Governor, or unless he finds w.- [fj-6 that the construction and operation of a Federal demonstra-

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(B) will further the public interest with appropri-i

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ate considera, tion to regional, State, and local interests.

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ty to offer evidence, interrogate witnesses, and advise the 21 22 Commission regarding the application without requiring the 23 State legislature or its representative to take a position for or

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10 lead agencies in preparing a final environmentalimpact state-

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15 ronmental Quality thereunder. Such statement shall be com-16 pleted by no later than December 31,1981. For the purposes

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17 of complying with such requirements, the Department of V.

- 18 Energy and the Commission shall, to the maximum extent i

19 possible, adopt and incorporate by reference any environmen-A-

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22 radioactive wastes.

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under section 102(2)(C) of the National Environmental 1

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Policy Act of 1969 in a manner consistent with the ji a'

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(d) Nothing in this Act shall affect the authority of jgg to 5

L'i 9 States to inspect nuclear facilities as designated pursuant to J

10 State law or pursuant to section 274 of the Atomic Energy (1 il cj A1 11 Act.

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r 12 AUTHOR,IZATION OF APPROPEIATIONS

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14 sums as may be necessary to carry out the purposes of this i

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