ML20199C513
| ML20199C513 | |
| Person / Time | |
|---|---|
| Issue date: | 11/06/1997 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-62FR60789, RULE-PR-2 PR-971106, NUDOCS 9711200039 | |
| Download: ML20199C513 (40) | |
Text
I DOCKET NUMBER
/' PROPOSED RULE _b - .O. - 00CKEJEsb-01-P)
(G2FR601F9) USHRC NUCLEAR REGULATORY COMMISSION
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OFFICE OF SECRETARY RIN 3150-AF88 RULEMNGS AND ADJUDiCAIIONS STAFr Procedures Applicable to Proceedings for the issuance of Licenses for the Receipt of High-level Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission is proposing to amend its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The proposed amendments are intended to allow application of technological developments that have occurred since the original rule was adu ced in 1989, while achieving the original goals of facilitating the Commission's ability to comply with the schedule for decision on the construction authorization for the repository
[ contained in Section 114(d) of the Nuclear Waste Policy Act, and providing for a thorough technical review of the license application and equitable access to information for the parties to the hearing.
2%.1998 DATES: Submit comments by [75 O'YO Ai- 4 FU6i.iGAirOnj. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date. ?
ADDRESSES: Send comments by mail addressed to the Secretary, U.S. Nuclear Regulatory I
Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 L
am and 4:15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking web site
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through the NRC hcme page (http://www.nrc.govl'This site provides the availability to L h~corNfnens as files (any format), if your web browser supports that function._ Fo, m - . _
information about the ir:teractive rutomaking site, contact Ms. Carol Gallagher, (301) 415--
- - 5g05l e-mail CAGgnm. gov.
3 Documents ,alated to this rulemaking, inclutling cornments received, may be examined at the NRC Public Document Room, 2120 L Street NW., (Lower Level),
Washington, DC. These same documents also may be viewed and downloaded electronically.
via the interactive rulemeking website established by NRC.for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)415-1641, e mail KLW@nrc. gov.
? - SUPPLEMENTARY INFORMATION:
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- 1. Bacitground The existing procedures for licenses to receive high-level radioactive waste at a L
i geologic repository were developed to address the Nuclear Regulaiory Commission's concem ,
regarding how best to review the U.S. Department of Energy (DOE) license application for a first of a-kind high-level radioactive waste (HLW) repository during the 3-year time period dictated by Section 114(d) of the Nuclear Weste Policy Act. The Commission Lwlieved it necessary to reduce the time normally spent on the discovery process at the start of a
- licensing proceeding and the timeconsuming service of documents during the proceeding if the Commission were to reach its decision within the alictted time. The Licensing Support System (LSS) concept, an electronic information management system, was created to achieve thic time reduction by making the information and data supporting a DOE application w
available simultaneously in a centralized database to allinterested parties before the E application is submitted and formal NRC review begins. Emerging information management S
e
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3 technologies for issue identification, electronic storage and retrieval, and electronic mail were
- recommended for these functions to help achieve the objectives of more effective and efficient review. ,
The Ccmmission employed the technique of negotiated rulemaking to develop the regulations goveming the development and use of the LSS. Negotiated rulemaking is the
- process by which the agency and the interests affected by a rulemaking meet to attempt to reach a consensus on a draft proposed rule, if a consensus is reached, the agency publishes the negotiated rule as the agency's proposed rule. The Commission selected the negotiated rulemaking approach to address the LSS issue for several reasons. In 1987, the idea of use of an electrc.'ic information management system in a Commission adjudicatory proceeding was novel, not only for the Commission, but in general. Therefore, the development of the rules for the use of such a system would benefit from discussion and joint poblem solving by those who might ultimately use the system and had experience with the Commission's traditional adjudicatory process. Furthermore, the potential users of the LSS possessed unique information that would be important to the design of the system, such as their computer capability and the amount and types of relevant documents that they nsight generate. !n addition, the potential for consensus was enhanced by the fact that the LSS rule focused on procedures for c, tucting the licensing process that might benefit all parties, rather than focusing on substantive technical criteria for a licensing process. Finally, the success of the LSS concept depended upon potential parties voluntarily complying with the licensing process for document identification and submission in the period before the DOE license application was submitted. Therefore, the involvement of interested parties in the
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devtsiopment of the provisions to govem the uce of the LSS was essential.
The Commission initiated the negotiated rulemaking in August 1987. The negotiating l
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committee, cor posed of State, local, and tribal govemments, industry represeritativen, NRC, DOE, and environmental groups, completed its work in July 1988. Except for the. industry -
coalition, all the parties on the negotiating committee agreed on the text and supplementary 1 information of a draft proposed rule. However, even '.he one dissenting party, the industry representative, had been a full and active participant in the drafting of the regulatory text and
- - : supporting information. ludustry did'not join the final consensus at the end of the process -
based on its belief that the use of a new technology in the licensing process would not' prove cost-beneficial. At that time, the cost of the LSS was estimated by DOE to be in the $200 rnillion range ' The Commission, recognizing the agreement among the other parties on the negot;ating committee, decided to publish the negotiated draft proposed rule es the
/ Commission's proposed rule in November 1983. Because of this of' ort, the final LSS rule (10 CFR Part 2, Subpart J), Procedures Applicable to Proceeding for the issuance of Licenses for the Receipt of High 8.evel Radioactive Waste et a Geologic Repository",.was pmmuigated on April 24,1989 (54 FR 14925).
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' The LSS rulo assigned the LSS Administrator (LSSA) function to the NRC which would be responsible for the management, administration, operation, and maintenance of the LSS; pursuant to DOE's agreement, gave DOE responsibility for the design, development, and implementation of the LSS; and established the charter of the LSS Advisory Review Panel (LSSARP) to provide consensus guidance on the design and development of the LSS ,
to both NRC and DOE The LSS war intended to provide a central, shared, federally funded s
database of licensing information beginning in 1995, the year DOE was expected to submit its application for a contatuction permit for the repository. The Comraission adopt,ed minor
- amendments further clarifying these procedures in a final rule published on February 26, 1991 (56 FR 7787).
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- 5 The Licensing Support System Administrator (LSSA) was appointed in January 1989.
The LSSARP was formed, holding its first meeting in December 1089. Also in December
- 1989, well before any serious development work could be started on the LSS, the Department of Energy revised its repository program schedule to extend its anticipated license application date from 1995 to 2001. Consequently, the LSS development schedule
- was extended.
II. Discussion The development of the LSS that was devised in the original procedural rules in 10 CFR Part 2, Subpart J, has not been accomplished during the th,)e that has passed since adoption of the rule. Many delays and changes in personnel and program structure have attended the Department of Energy's efforts to develop the '.SS. Budgetary shortfalls and the unanticipated length of time that it has taken to develop the licensing application for the repository not only delayed the development of the LSS, but also resulted in several additional years' accumulation of potentiallicensing infonnation.
Because of the length of time involved and the narrowing of the repository development program, much of the early material thought to be relevant at the time the rule was developed may no longer be relevant to the actual licensing proceeding that may not begin until about 2002. Also because of the extended period of time it has taken to develop the LSS for DOE's use as a document management system, it appears that all accumulated ciocuments may not have been 5.ientified and maintained properly for tracking of important repository developmont decisions. In addition, because document capture may now involve much larger backlogs than originally contemplated, the risk of failing to capture all the material originally required to be placed in the LSS is substantially larger than originally assumed. In order for the current Subpart J rules to apply, the LSSA must certify that the em
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DOE has complied with the requirement to enter all relevant documents in the LSS.
Therefore, eli of these factors combine to produce the high likelihood that the current rule cannot be implemented as orit,inally endsioned. If not, then 10 CFR Part 2, Subpart J, will no longer apply, instead, Subpart G, the generally applicable procedures for licensing proceedings, will apply. This means that there would be no pre-license application access to documents.
Although the development of the LSS has remained stalled, the state of technology in document automation and retrieval has overtaken the 1986 technology on which the original LSS was to be based. The use of computers to generate and maintain the complex documents of a party in litigation is widespread and commonplace. The Intemet is universally available to tie disparate and geographically dispersed systems together. Readily available commercial software applications can perform the documcnt management functions of the LSS. Therefore, the centralized LSS envisioned at the time the LSS rule was developed has become obsolete. The enormous expense of designing and maintaining a stand-alone system required by the current rules appears to be an unjustified expense, especially when it appears unlikely that the rule will be able to be implemented successfully even if the LSS is created.
Consequently, the Commission is proposing to amend its rules to allow more flexibility tn incorporate the advantages of new information mantgement technologies in the procedural rules for the licensing of the geologic repository. This would eliminate the LSS as a uniquely designed stand-alone system, while still maintaining the following primary functions of the LSS as a mechanism for the:
s (1) Discovery of documents before the license application is filed; (2) Electronic transmission of filings by the parties during the proceedirig; W
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. 7 i (3) Electronic transmisalon of orders and decisions related to the proceeding; and (4) Access to an electronic version of the docket.
The Commission believes that the proposed rule would continue to support the model schedu'4 for conducting the licensing proceeding within the 3-year statutory period that was published in the Statement of Considerations for the original 10 CFR Part 2, Subpart J, rule ,
.. published on April 14,1939 (54 FR 14925,14939).
The proposed rule would eliminate the current prescriptive requirement in 10 CFR Part 2, Subpart J, for a centralized " Licensing Support System' administered by the NRC and therefore also would eliminate the requirement for an LSS Administrator to ensure the L
viability of the central database. To replace these features of the exis, ting rule, the proposed I rule would require that all potential parties, including the NRC and DOE, make their documentary material available in electronic form to all other participants beginning in tte i pre-license application phase. This requirement is stated without unduly restrictive
- technological specifications, in order to accommodate flexible implementation consistent with
" current or future technological developments.
Documentary material weuld be defined as the material upon which a party intends to rely in support of its position in the licensing proceeding; any material which is relevant to, but does not support, that material or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interested govemmental participant, or party, including all related ' circulated drafts,' relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be re:ied upon and/or cited by a party. For the purposes of this rule, the pre-application phase would begin on the 4-A date that the President submits the site recommendation to Congress. This timing wonid allow access to the parties' documentary material enough before DOE submits the license
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'8 1, application to allow advance preparation of contentions and discovery requests before the ,
- license application, butIate enough irrthe repository development process to provide ,
' f meaningful information. , ,
' l A Pro-License Application Presiding Officer wou'id resolve any disputes over electronic access to documents during the pro-license application phase. Potential parties would be
- required to csrtify to the Pro-License A MicMtion Presiding Offw that they have complied with the requirement to provide electronic access to their documentary material. The ,
requirements of the current rule for an electronic hearing' docket would be retained, as well as the limitations on the permissible forms of discovery after the application is fWed.
The Commission is considering two attematives regarding the LSS Advisory Review Panel. In this proposed rule, because the concept of the LSJ would be replaced, the requirement for an LSS Advisory Review Panel would be modified so the panel can advise the Secretary of the Cotamission regarding standards and procede.%s for electronic access to documents and for maintenance of the electronic docket. This wouid require renaming of the advisory committee and redrafting of the committee charter. However, the Commission is also considering the attemative of replacing the Advisory Review Panel with a more informal c-users group, and particulariy requests comments from potential parties to the HLW repository licensing proceeding regarding these two attemative arrangements.
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lli. Section-by-Section Description of Changes in 6 2.1000, the reference to $ 2.70g would be removed because it would require compliance with $ 2.708 that would not apply to this subpart.
In 6 2._1001, the following definitions would be added, amended, or' removed:
ASCII Ale. This definition would be removed and no longer used in the rule.
Prescriptive references to specific technical standards would be removed to allow flexible 1
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- 9 implementation consistent with developing technology.
, QMumentary material. The definition of documentary material would be revised to cover material upon which a party, potential party, or interested govemmental participant intends to rely and/or cite in support of its position in the licensing proceeding; any material or other informaton which is relevant to, but does not support, that material or information or that party's position: and all reports and studies, prepared by or on behalf of the potential party, interested govemmental participant, or party, including all related ' circulated drafts,"
relevant to the issues se.t fo,th in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they win! be reSed upon and/or c.ited by a paity. This definition would be used in the rule in S 2.1003 to define what material must be provided in t iectronic form for access beginning l,i the pre-license appleation phase. Therefore the term " documentary material" would be intended to describe the most important body of material and would be defined clearly to require that all parties include electronic acce:s to any relevant material in their possession that does not support their position in the licensing proceeding, as well as providing access to the material that does support their position, and any reportt. and studies papared by the party on issues described in the Topical Guidelines, regardless of whether or not they would be relied upon or cited by the party. The scope of the documentary material would still be govemed by the topical guidelines.
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Electronic docxet. A new definition would be added to describe NRC's electronic information system to receive, distribute, store, and maintain NRC adjudicatory docket mater'ais in the licensing proceeding.
Inteorated electronic information. A new definition would be added to describe material made available in electronic form to potential parties, parties, or interested govemmental participants to the licensing proceeding for the high-level waste geologic o
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i i 10 repository, either as part of the NRC's pre-license application electronic docket or electronic docket or pursuant to electronic access to documentary material made available by individual potential parties, parties, and interested govemmental participants. This is a term for the information access that would replace the LSS in this rule.
LSS Administrator. This term would be eliminated from the rule because the concept
- of the LSS would also be removed. The Pre-license Application Presiding Officer will resolve disputes about electronic access to documents in the pre-license application phase.
P_a.rty. This definition would be revised to add 'affected unit of local govemment', as that term is defined in the Nuclear Waste Policy Act of 1982, as amended, and also to refer to that act for the definition of affected Indian tribe, in addition, any affected unit of local
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govemment, the host State, and any affected Indian Tribe would be requked to file a list of contentions.
Potential carty. This definition would be revised to remove the reference to the LSS, and to substitute the term inteorated electronic infomghgn to describe the material to which the potential party will be given access.
Pre-license appigation electronic docket. A new de rinitionwould be added to describe NRC's electronic information system to receive, distribute, store, and maintain NFIC pre-license application docket materials during the pre-license application phase.
Pre-license apolication cha.ng. This definition is being specified for the purposes of this rule to begin on the date that the President submits the site recommendation to the Congress. This date has been chosen to allow access to the potential parties' documentary material enough before the license application to allow advance preparation of contentions and discovery requests before the application is filed, but late enough in the repository .
development process to provide meaningfulinformation.
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l, 11 Searchab'e full text. This definition would be revised to remove references to ASCll and to the LSS.
Toolcal Guidelines. A new definition would be added to describe the set of topics set forth in Regulatory Guide 3.69 that are intended to guide the scope of docamentary material under this subpart.
- Section 2.1002 would be removed because the LSS would no longer be required.
Access to integrated electronic information would provide the major functions which the LSS was designed to provide. Paragraphs (c) and (d), which state that participation by the host State in the pre-applicat;on phase will not affect its disapproval rights, and that this subpart
- shall not affect any participant's independent right to receive information, would be incorporated in the revised S 2.1003 as paragraphs (a)(2) and (3).
Section 2.1003 would be revised to describe information that would be required to be made available electronically by all potential parties, parties, and interested govemmental participants (including the NRC and DOE). This information would have to be made available to all other particinants f.eginning in the pre-license application phase, which starts at the date of the President's submission of the site recommendation tc the Congress. The requirements of the rule would be simpfad to require only that access to an electronic file be provided. All references to spocific format:t would be removed to allow flexibility in Implementation. The Commission intends that a potential party, party, or interested governmenthl participant might offer electronic access to its documentary material in a number of different ways, including by providing its documents in electronic form either to the NRC or to the DOE, to have the NRC or tne DOE maintain the documents for electronic
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Although the draft rule would require that documentary material ba made available
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electronically beginning on the date of the President's site recommendation to the Congress, the Commission would encourage the earliest feasible availability of documentary material in order to enhance the future smooth operation of the licensing proceeding. The paragraphs relating to evaluations and cenifications by the LSS Administrator would be removed because the LSS (and LSSA) concept would be removed. Section 2.1010 states that the Pre License Application Presiding Officer will resolve any disputes relating to electronic access to documents in the pre license application phase. Accordingly, the paragraphs which stated that the application would have to be docketed under Subpart G if the LSSA did not certify compliance would be removed, and Subpart J (including specifically referenced sections of Subpart G) would unconditionally embody the rules of procedure for the HLW licensing proceeding.
Section 2.1004 would be revised to provide procedures for providing access to a document that has not previously been provided in electronic form and to delete previous references to the LSS and the LSSA.
Section 2.1005 would be revised to delete reference to the LSS and to add an exclusion of readily available references, such as joumal articles or prcceedings, which .aay be subject to copyright.
Section 2.1006 would be revised to refer to providing a document in electronic form and to delete references to the LSS and the LSSA.
Section 2.1007 would be revised to refer to providing systems for access to integrated electronic information rather than providing terminals for access to the LSS. These systems must be maintained by DOE and NRC at the locations specified in the current version of the
- rule (except for the Uranium Recovery Field Office which no longer exists), beginning in the pre-license application phase.
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- 13 Section 2.1008 would be revised to allow electronic access to the integrated electronic
- information to any person who complies with the requirements of Subpart J, including t..e requirement in S 2.1003 to make documentary material available, and who agrees to comply with the orders of the Pre license Application Presiding Officer. The previous requirement to petition to the Pre-license Application Presiding Officer would be removed.
Sedon 2.1009 would be revised to delete references to the LSS and the LSSA and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party would be required to certify to the Pre License Presiding Officer that procedures to comply with 6 2.1003 have been implemented and that its documentary matarial has been made electronically available. A new requirement to update the certification at the request of the presiding officer would be added to replace a previous requirement to provide this certification at 6 month intervals.
Section 2.1010 would be revised to delete references to the LSS and the LSSA and to refer instead to electronic necess. The reference to petitions for access would be removed to conform to removal of this requirement. .
Section 2.1011 is being considered for revision in either of two altemative ways and the Commission requests specif;c comments on these altematives. This proposed rule would revise $2.1011 to reflect that the electronic availability of documentary material that is specified in this rule nn longer requires special equipment. The nams and functions of the LSS Advisory Review Panel would be amended to delete the reference to the LSS and substitute the purpose of arriving at standards and procedures to facilitate the electronic access to material and to the electronic docket. Because of the broad and non-prescriptive requirements regarding providirig electronic files in this proposed rule, the Advisory Review Panel would be very usefulin discussing standards and procedures to ensure that all W
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participants are able to access the electronic information. Because the LSS concept would be replaced, and the requirement for an LSS Advisory Review Panel would be modifed in the proposed rule to accommodate a new purpose, the advisory committee would have to be renamed and the committee charter would have to be redrafted.
However, the Commission is also considering the attemative of eliminating the requirement for an advisory committee chartered under the Federal Advisory Committee Act, and substituting a more informal voluntary users group to perform the functions of discussing electronic format standards, proceoures, and other details. If this option were adopted, the final rule would be revised to refer to the users group. This group would be able to interact using Intemet discussion areas (like LSSNet) as well as meetings, video conferences, or teleconferences. This users group would ideally make use of the current LSSARP members' knowledge and experience. The Commission is particularly requesting comment from potential partieo to the HLW repository concoming their interest and support for the informal users group attemative.
Section 2.1012(a) would be revised to allow the Director of the NRC Office of Nuclear Material Safety and Safeguards (NMSS) to determine that the application would not be acceptable if it is not able to be accessed through the electronic docket. Section 9
2.1012(b)(1) would be revised to substitute inteorated electronic informati B for Licensi Support System so that a person who has had access to the integrated electronic information would not be granted party status in the licensing proceeding if it cannot demonstrate compliance with the requirements of $ 2.1003. Section 2.1012 (d) would be revised to substitute ore-license aoolication electronic docket or elecPonic docket for Licensino Support
- System to indicate that access to either the pre-license application electronic docket or the electronic docket may be suspended or terminated for failure to comply with the orders of the L
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Pre-License Application Presiding Offcer or the Presiding Officer.
- Section 2.1013 would be revised to delete references to the LSS and LSSA and would refer to the provision of information in electronic form. The requirement in i
$ 2.1013(c)(5) to file one signed paper copy of each filing with the Secretary, NRC, would be removed because the electronic docket would not require signed paper copies. ,
Section 2.1014(c)(4) would delete a referonce to the LSS and make the failure of a petitioner to participate in the pre-license application phase a criterion in considering whether to grant a petition to intervene.
Section 2.1017 would use the unavailability of the electronic docket instead of the LSS l
- as a justification for extending the computation of time in the proceeding.
Sections 2.1018 and 2.1019 would be revised to delete references to the LSS and instead to refer to providing documents electronically, in addition, minor editorial changes have been made throughout the proposed rule to improve readability.
Environmental Impact: Categorical Exclusion
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The NRC has determined that this proposed regulation is the type of action described l- in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulation.
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Paperwork Reduction Act Statement Thlu proposed rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et i
seq.).
Regulatory Analysis The history of the development of the existing rule,10 CFR Part 2, S%part J, and the l
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l is .I current regulatory problem are desenbod in the Background and Discussion sections of this noti:e. To address the regulatory problem, several attemt.tive approaches to amending the l regulations in Subpart J of Part 2 were considered.
Ootion 1: Existina rule.
i This approach would not take advantage of current and future technology. It would
. require an enormously expensive custom designed system to be developed using old assumptions about technological standards and the universe of
- relevant
- material. At the time of the development of the existing rule, the cost of the LSS was estimated by DOE to be in the $200 million range. - Furthermore, given the large backlog that contains a substantial amount of documents that may no longer be relevant because of the unanticipated delay in developing the LSS as initially designed in MG, there is a substantial chance that it would be impossible for the DOE to achievu, and for the LSSA to certify, compliance with the provisions of the current rule. In this case, the proceeding would have to be conducted under 10 CFR Part 2, Subpart G, and could result in a protracted discovery phase, in addition to the very costly and ineffective system, the further costs of using this approach are
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difficult to quantify, however the lengthened discovery phase could prevent the Commission ,
I from meeting the statutory deadline for decision on the application. This delay could also result in possible increased spent fuel storage costs for the additional length of the licensing proceeding. ,
L%tian 2: 10 CFR Part 2. Suboart G.
Because the NRC is developing a new system called the Agency-vnde Documents Access and Management System (ADAMS), which will provide an agencye electronic docket, it would be possible to rely or. existing adjudicatory procedure rules in 10 CFR Part 2, 4
Subpart G (which will have to be updated to reflect the electronic docket) to conduct the 7
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17 licensing proceeding. However, this approach would not provide pre-license application access to documents and could result in a protracted discovery phase. The costs of using this approach are difficult to quantify. However the lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application and result in possible increased spent fuel storage costs, as in Option 1.
- Qotion 3: Existino rule usina a distributed system.
This approach would allow using linked individualIntemet sites to serve as the LSS.
However, this approach does not solve the problem discussed in Option 1 conceming the requirement to carts re a huge backlog of material that may not have been maintained in a rnanner that would ever permit compliance with the rule, and which may not all be relevant to the future license application. Therefore, the costs of this approach, as in Option 1, would include the possibility that the LSS rule compliance finding could not be made and the proceeding would have to be conducted under 10 CFR Part 2, Subpart G. A lengthened discovery phase could prevent the Commission from meeting the statutory deadline for decision on the application and result in possible increased spent fuel storage costs, as in Option 1.
Option 4: Revised rule with more realistic document discovery sooroach.
This approach would remove the requirement for a central LSS system and LSS Administrator, but would require each potential party to provide for the electronic availability of both the material it intends to rely upon to support its position, any material which does not support that material or that position, and any rcports or studies prepared by or for the party, beginning in the pre application phase (presided over by a Pre-License Application Presiding Officer). This definition of documentary material would provide pre-application access to a more focussed set of the materials most important to the licensing proceeding, it would not M
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require electronic socess to the entire backlog of DOE and other parties' material, some of which may no longer be relevant to the licensing proceeding. The electronic docket functionality of the LSS would be provided by the NRC agency wide system with supervision of the Presiding Officer. Participation in the pre-license application phase would be one criterion for participating in the hearing. After the application is filed, in addition to the electronically available material, d6scovery would be limited to Interrogatories and depositions as in the current rule. The specific method of providing electronic access to documentary .
would not be specified, which would allow flexibility to accommodate current and futurs t
technology advances. Individual parties may give their documents in electronic form to NRC or DOE in order to provide electronic access. Because this rule would uncondP.bnally provide the procedural rules for the HLW licensing proceeding, there would be no last minute danger that the proceeding would have to be conducted under 10 CFR Part 2, Subpart G.
The Commission believes that Option 4 provides the most effective solution for maintaining the basic functionality of the LSS conceptual design, while most flexibly
- accommodating current and future technological developments. The Commission requests public comment on the draft regu! story analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the Addresses heading.
Regulatoly Flexibility Certification
- The amendments would modify the Commission's rules of practice and procedures.
The rule would be amended to allow more widely available electronic access to information before the license application is filed. Participants would be required to make their own documentary material available electronically. This proposed rule would not have a
? significant economic impact upon a substantial number of small entities. The license i
applicant for the HLW repository would be the Department of Energy . DOE would not fall lt C
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- 19 withiri the definition of a *small entity" in the NRC's size standards (10 CFR 2.810).
Although a few of the intervenors in the HLW proceeding would likely qualify as small c
entities, the impact on intervenors or potentialintervencrs would not be n?nificant. The requirement for participants to make their own documentary material available electronically is stated in a manner that would allow flexibility in implementation. Furthermore, it is consistent with current business practice to create documents electronically. Therefore, the exact additional costs involved in making the documentary rnaterials available electronically sre difficult to quanti *y. However, to avoid those costs, participants would have the option of providing their documents to NRC or DOE to maintain electronic availability. Thus, in accordance with the Regulatory Flexibility Act,5 U.S.C. 605(b), the NRC hereby certifies that this proposed rule would not have a significant economic impact upon a substantial number of small entities.
Backfit Analysis The NRC has determined that the backfit rules in 10 CFR Chapter 1, $$ 50.109, 72.62, and 76.78, do not apply to this rule, and therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in those rules.
List of Subjects in 10 CFR Part 2
~
Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
- For the reasons set out in the preamble and under the authority of tne Atomic Energy Act of 1954; as amended, the Energy Reorganization Act of 1974, as amended; and 5 U.S.C.
am
.--c----, ,_ - -- , - - - - , . , - - - . , , - . , . - . , . , , ,
]
- 20 .
553; the Nuclear Regulatory Commission is proposing to adopt the following amendments to
- 10 CFR Pan 2.
PART 2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS
- 1. The autnority citation for Part 2 continues to read as follows:
- AUTHORITY: Secs.161,181,68 Stat. 948,953, as amended (42 U.S.C. 2201,2231);
sec.191, as amended, Pub. L.87-615,76 Stat. 409 (42 U.S.C. 2241); sec. 201,88 Stat.
1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53,62,63,81,103,104,105,68 Stat. 930,
- 932,933,935,936,937,938, as amended (42 U.S.C. 2073,2092,2093,2111,2133,2134, 2135); sec.114(f), Pub. L. 97 425,96 Stat. 2213, as amended (42 U.S.C.10134(f)); sec, 102, Pub. L. 91 190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat.1248 (42 U.S.C. 5871). Sections 2.102,2.103,2.104,2.105,2.721 also issued under secs. 102,103, 104,105,183,180,68 Stat. 936,937,938,95t,955, as amended (42 U.S.C. 2132,2133, 2134,2135, 2233,2239). Section 2.105 also issued under Pub. L.97-415, 90 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 alto issued under secs.161b, I, o,182,186,234,68 Stat. 948-951, 955,83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236,2282); sec. 206,88 Stat 1246 (42 U.S.C. 5846). Sectiun 2.205(j) also issued under Pub. L. 101 410, 104 Stat. 890, as amended by Section 31001(s), Pub. L.104134,110 Stat.1321-373 (28 U.S.C. 2461 note.) Sections 2.600 2.606 also issued under sec.102, Pub. L. 91 190, 83 Stat. 853, as amended (42 U.S.C,4332). Sections 2.700a,2.719 also issued under 5 U.S.C.
554. Sections 2.754,2.760,2.770,2.780 also issued under 5 U.S.C. 557. Section 2.764 also
- Issued under secs. 135,141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C.10155,10161).
Section 2.790 also issued under sec.103,68 Stat. 936, as amended (42 U.S.C. 2133) and 5
~
i
--= _- -_. - . _ _ - - _ _ _ - . - - . . ._ ._
~
b.
- 21 l i
I U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also '
issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85 256,71 Stat. 579, as amended (42 U.S.C.
2039). Subpart K also issued under sec.189,68 Stat. 955 (42 U.S.C. 2239); sec.134, Pub.
L. 97 425,96 Stat. 2230 (42 U.S.C.10154). Subpart L also issued under sec.189,68 Stat. !
955 (42 U.S.C. 2239).- Appendix A also issued under sec. 6, Pub. L. 91560,84 Stat.1473
, (42 U.S.C. 2135).
- 2. Section 2.1000 is revised to read as follows:
$ 2.1000 Scope of subpart.
The rules in this subpart govem the procedure for applications for a license to receive and possess high level radioactive waste at a geologic repository operations area noticed pursuant to 9 2.101(f)(8) or $ 2.105(a)(5). The procedures in this subpart take precedence over the 10 CFR Part 2, subpart G, rules of general applicability, except for the following provisions: $$ 2.702, 2.703, 2.704, 2.707, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721,2.722, 2.732,2.733,2.734, 2.742, 2.743, 2.750, 2.751,2.753,2.754, 2.755,2.756,
~
2.757,2.758,2,759,2.760,2.761, 2.763,2.770,2.771,2.772, 2.780,2.781, 2.786,2.788, and 2.790.
- 3. Section 2.1001 is amended by removing the definitions of ASCll File and LES Administrator; adding definitions of Electronic docket, Intearated electronic information, ELt
^
license apolication electronic docket, and Toolcal Guidelines; and revising the definitions of Documentary material,23Gy, Potential party, Pre-license soolication chase, and Searchable full text, to read as follows:
l 22 9 2.1001 Definitions.
Documentary material means any material or otnst information upon which a party, potential party, or interested govemmental participant intends to rely and/or to cite in support of its position in the proceeding for a license to receive and possess high-level radioactive
- waste at a geo:')ic repository operations area pursuant to part 60 of this chapter; any material or other information that is relevant to, but does not support, that material or information or that party's position; and all reports and studies, prepared by or on behalf of the potential party, interestod govemmental participant, or party, including all related
- circulated drafts,' relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party. The scope of documentary material shall be guided by the topical guidelines in the applicable NRC Regulatory Guide.
Electronic docket means the NRC information system that receives, distributes, stores, and retrieves the Commission's adjudicatory docket materials.
Intearated electronic informatiori means the material that is made available
~
electronically to parties, potential parties, and interested govemmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, as part of the electronic docket or electronic access to documentary material, beginning in the pre-license application phase.
~ . . . . .
Ep_rly for the purpose of this subpart means the DOE, the NRC staff, the host State, O
l.
- 23 I any affected unit of local govemment as defined in section 2 of the Nuclear Waste Policy Act f
of 1982, as amended (42 U.S.C.10101), any affected Indian Tnbe as detined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.10101), and a person admitted under 6 2.1014 to the proceeding on an application for a license to receive and ;
possess high level radioactive waste at a geologic repository operations area pursuant to part
- 60 of this chapter, provided that a host State, affected unit of local govemment, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of
$$ 2.1014(a)(2) (ii) and (iil).
Potential carty means any person who, during the period before the issuance of the first pre-hearing conference order under 9 2.1021(d), is given access to the integrated electronic information and who consents to comply with the regulations set forth in subpart J of this part, including the authority of the Pre License Application Presiding Officer designated pursuant to 9 2.1010.
Pre-license aoolication electronic docket means the NRC's electronic information system that receives distributes, stores, and maintains NRC pre-license application docket materials during the pre-license application phase.
Pre-license soolication chase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under 9 2.101(f)(3). For the purpose of this subpart, this period begins on the date that the President submits the site recommendation to the Congrecs pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy Act of 1982, as amended I
(42 U.S.C.10134(a)(2)(A)). .
45m y ,--a, ,-egen-,-r----e- --v,-,,----. v.,.rr,-vv..,e,,,-,,--,e--..m. --~-----:- ,w,,,on,,.-----,,a, - _ - , - - - - . - + - - - - . , - - - .- - - - - - - - - - - - - - - - - - - - - * - - - - -
)
- l. .
i 24 l Searchable full text means the electronic indexed entry of a document that allows the ,
[
- identification of specific words or groups of words wit hi n a text file. .
Ipplos! Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, which are intended to guide the scope of
' documentary material *.
- 4. Section 2.1002 is removed and reserved.
$2.1002 [ Removed]
- 5. Section 2.1003 is revised to read as follows: f i
5 2.1003 Availability of material. i
- (a) Be0 nning i in the pre-license application phase, subject to the exclusions in
$ 2.1005 and paragraphs (b) and (c) of this section, each potential party, interested govemmental participant or party, shall make availaole to other potential parties, interested govemment participants or parties -
(1) An electronic file for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested govemmental participant, or party. Concurrent with the production of the electronic file will be an authentication statement that indicates where an authenticated image copy of the document can be obtained, (2) The participation of the host State in the pre-license application phase shall not affect the State's ability to exercise its disapproval rights under section 116(b)(2) of the Nuclear Weste Policy Act, as amended,42 U S.C.101360.;(2).
(3) This subpart shall not affect any independent right of a potential party, interested govemmental participant or party to receive information.
(b)(1) Each potential party, interested govemmental participant, or party shall make O
l.
25 available in electronic image form, subject to the claims of privilege in i 2.1006,
- graphic oriented documentary material that incbdes raw data, computer runs, computer ,
programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, or hand written. Text embeddsd within these documents need not be separately entered in searchable ful; text. Graphic-oriented documents may include.
- (l) Calibrnilon procedures, logs, guidelines, data and discrepancies; (ii) Gauge, meter and computer settings; (iii) Probe locations; i
P/) Logging intervals and rates;
- (w) Data logs in whatever form captured; (vi) Text data sheets; (vil) Equations and sampling rates; (viii) Sensor data and procedures; (ix) Data Descriptions; (x) Field and laboratory notebooks; (xi) Analog computer, meter or other device print outs; (xii) Digital computer print-outs; (xiii) Photographs; (xiv) Graphs, plots, strip charts, sketches; (xv) Descriptive material related to the inforrr.ation identified in paragraph (b)(1) of this section.
(2) Each potential party, interested govemmental participant, or party shall make available in an electronic file, subject to the claims of priv3ege in 9 2.1006, only a bibliographic header for eacn item of documentary material that is not suitable for imaga or
.m e - - _ , , - _ _ - - . - , , . - . , , .,,.,-y . , r -- - , - m - -., ,, ,--
.I .
26 ,
I searchable full text. ;
.. (c) Each potential party, interested govemmental participant, or party shall make available electronically a bibliographic header for each documentary material-(1) For which a claim of privilege is asserted; l
(2) Which constitutes confidential financial or commercial information; or
- (3) Which constitutes safeguards information under $ 73.21 of this chapter.
(d) Basic licensing documents generated by DOE, sust as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC, such as the Site Characterization Analy. 2, and the Safety Evaluation Report, shall be made available .
in electronic form by the respective agency that generated the document.
~
- 6. Section 2.1004 is revised to read as follows:
$ 2.1004 Amendments and additions.
Any document that has not been provided to other parties in electronic form must be identified in an electronic notice and made available for inspection and copying by the potential party, interested govemmental participant, or party responsible for the submission of the document within two days after it has been requested unless some other time is ;
approved by the Pro-License Application Presidire Officer or the Presiding Officer designated for the high4evel waste proceeding. The time allowed under this parag sph will be stayed pending Officer action on a motion to extend the time. <
7, Section 2.1005 is revised to read as follows: l
$ 2.1005 Exclusions.
The following material is excluded from the requirement to provide electronic cecase .
- er.nor pursuant to $ 2.1003, or through derivative discovery pursuant to $ 2.1019(i)-
(a) Official notice materials; 4
l
l.
- 27 :
(b) Reference books and text books;
- (c) Material pertaining exclusively to administration, such as material related to ,
budgets, financial management, personnel, office space, general distribution memoranda, or i procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the transportation of spent nuclear fuel or high level waste;
- (d) Press clippings and press releases; (e) Junk mail; 3 (f) Preferences cited in contractor reports that are readily available; (g) Classified material subject to Subpart i of this part:
- (h) Readily available references, such as Joumal articles and proceedings, which may be subject to copyright.
- 8. Section 2.1006 is revised to read as follows:
$ 2.1006 Privilege.
(a) Subject to the requirements in $ ~2.1003(c), the traditional discovery privileges recognized in NRC adjudicatory proceedings and the exceptione from disclosure in 9 2.790 may be asserted by potential parties, interested govemmental participants, and parties, in addition to Federal agencies, the deliberative process privilege may also be asserted by State and local govemment entities and Indian Tribes.
(b) Any document for which a claim of privilege is asserted, but is denied in whole or in part by the Pre License Application Presiding Officer or the Presiding Officer, must be 4
provided in electronic form by the party, interested govemmental participant, or potential party that asserted the claim to-(1) The other participants; or 6
..-es---.__, ., -.-..-_-m . .--,m. r - - -
I .
28 .
(2) To the Pre l.icense Application Presiding Officer or to the Presiding Officer,;or entry into a Protective Order file,if the Pre License Application Presiding Officer or the Presiding Officer so directs tinder 95 2.101o(b) or 2.1018(c).
(c) Notwithstanding any availability of the deliberative process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shi.l! be provided for
- electror,1c access pursuant to 9 2.1003(a).
- 9. Section 2.1007 is being revised to road as follows:
$ 2.1007 Access.
(a)(1) A system to provide electronic access to the integrated electronic information shall be provided at the headquarters of DOE, and at all DOE Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, beginning in the pre license applict. tion phase.
(2) A system to provide electronic access to the integrated electronic information shall be providcd at the headqua'ters Public Document Room of NRC, and at all NRC Local Public Document Rooms established !.i the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices beginning in the pre-license appleation phase.
(3) The systems for electronic accecs specif:ed in paragraphs (a)(1) and (a)(2) of this
~
section shall include locations at Las Vegas, Nevada; Reno, Nevada; Carson City, Nevada; Nye County, Nevada; and Lincoln County, Nevada.
(b) Public availability of paper and electronic copies of the records, as well as duplication fees, and fee waiver for those records, is govemed by the Freedom of
- Information Act (FOIA) regulations of the respective agencies.
(c) Documents to which electronic access has been provided by other parties, M
- h. !
- 29 potential parties, or interested govemmental participants pursuant to this Gubpart shall not be
. considered as agency records of the Nuclear Regulatory Commission or the Department of Energy unless and until they have been entered into the docket of the proceeding pursuant to
$2J02 ior purposes of the FOIA,5 U.S.C. 552, if these documents remain under the .
e custody and control of the agency or oti;anization that identified the documents. Requests
- - for access pursuant to the FOIA to documents submitted by a Federal agency shall be transmitted to that Federal agency. ,
- 10. Section 2.1008 is revised to read as follows:
$ 2.1008 Potoni,al parties.
Any person who complies with the regulations in this subpart, including 6 2.1003, and agrees to comply with the orders of the Pro-License Application Presiding Officer designated under $ 2.1010, may have electronic access to the Integrated electronic information made available pursuant to this subpart in the pre-license application phase.
- 11. Section 2.1009 is revised to read as follows:
$ 2.1009 Procedures.
(a) Each potent:al party, interested govemmental participant, or party shall-(1) Designate an official who will be responsible for adminictration of its responsibility to provide electronic files of documentary material ;
(2) Establish procedures to implement the requirements in 6 2.1003; (3) Provide training to its staff on the procedures for implementation of the responsibihty to provide electronic files of documentary material;
-(4) Ensure that all documents carry the submitter's unique identification number, (5) Cooperate with the advisory review process established by the NRC under
$ 2.1011(c).
9-umm
.- . _ _ _ , - - , . . . - . . , - . . . . + . - - , - - ----,-.-------..--,,-m y -- y, , .r,, , , - - . _ , - . - - . . - . , ,r.. w -
30 .
(b) The responsible official designated pursuant to paragraph (a)(1) of this section
- shall certify to the Pre License Application Pres; ding Officer that the procedures specified in paragraph (a)(2) of this section have been implemented, end that to the bes' of his or her knowledge, the documentary material specified in S 2.1003 has been identified and made electronically available. Upon order of a duty appointed presiding officer, the responsiole
- official shall update this certification.
- 12. Section 2.1010 is revised to read as follows:
$ 2.1010 Pre License Application Presiding Officer.
(a)(1) The Commission may deaig1ste s one or more members of the Commission, or
- an atomic safety and licensing board, or a named officer who has been delegated final authority on the matter (Pre-License Application Presiding Officer) to rule on disputes over the electronic availability of documents during the pre-license application phase, including disputes relating to privilege, and disputes relating to the implementation of the recommendations of the Advisory Review Panel established under 6 2.1011(e).
(2) The Pre-License Application Presiding Officer shall be designated before the integrated electronic information is scheduled to be available.
(b) The Pre-License Application Presiding Of,1cer shall rule or, any claim of document withholding to determine-(1) Whether it is documentary material wit'iin the scope of this subpart; (2) Whether the material is excluded under $2.1005; (3) Whether the material is prvileged or otherwise excepted from disclosure under 6 2.1006; (4) If privilegad, whether it is an absolute or qualified privilege; (5) If qualified, whether the document should be disclosed because it is necessary to O
I.
' 31 a proper decision in the proceeding;
. (6) Whether the material should be disclosed under a protective order containing such protective terms and conditions (including affidavits of nondisclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested govemmental participants and parties in the proceeding, or to their qualified witnesses and
- counsel. When Safeguards Information protected from disclosure under section 147 of the Atomic Energy Ad of 1954, as amended, is received and possessed by a potential party, interested govemmental participant, or party, other than the Commission staff, it shall also be protected according to the requirements of 9 73.21 of this chapter. The Pre-License Application Presiding Officer may also prescribe such additional procedures as will effectively safeguard and prevent disclosure of Safeguards information to unauthorized persons with minimum impairment of the procedural rights which would be available if Safeguards Information were not involved. In addition to any other sanction that may be imposed by the Pre License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards information potected nom disclosure under section 147 of the Atomic Energy Act of 1954, as amended, the entity in violation may be subject to a civil penalty imposed pursuant to $ 2.205. For the purpose of imposing the criminal penalties contained la section 223 of the Atomic Energy Act of 1954, as amended, any order issued pursuant to this paragraph with respect to Safeguards information sf.all be deemed to be an order issued under section 161b of the Atomic Energy Act of 1954, as amended.
(c) Upon a final determination that the material is relevant, and not privileged, exernpt from disclosure, or otherwise exempt from production under 9 2.1005, the potential party, L
interested govemmental participant, or party who asserted 'he claim of withholding must make the document available in accordance with the provisions of this subpart within two L.
l .
32 .
days.
. (d) The service of all pleadings and answers, orders, and decisions during the pre license application phase shall be made according to the procedures soecified in
$ 2.1013(c) and entered into the pre-license application electronic docket.
(e) The Pre License Application Presiding Officer shall possess all the genr tal e
- powers specified in $$ 2.721(c) and 2.718.
(f) The Commission, in designating the Pre License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer.
- 13. Section 2.1011 is revised to read as follows:
S 2.1011 Management of electronic information.
(a) Electronic document production and the electronic docket are subject to the provisions of this subpart.
(b) The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.
(c)(1) The Secretary of the Commission shall establish an Advisory Review Panel composed of the Advisory I;om:nittee members identified in paragraph (c)(2) of this section
~
who wish to serve. The Secretary of the Commission shall have the authority to appoint additional representatives to the Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act,5 U.S.C. app.1, giving particular consideration to potential parties, parties, and interested govemmental participants who were not members of
' the NRC HLW Licensing Support System Advisory Committee.
(2) The Advisory Committee membership willinitially include the State of Nevada, a W
- l. ;
. 33 coalition of affected units of local govemment in Nevada who were on the NRC High Level I
, Waste 1.icensing Support System Advisory Committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental groups who were on the NRC ,
High Level Waste Licensing Support System Advisory Committee and such other members as the Commission may from time to time designate to perform the responsibilities in
- paragraph (d) of this section.
(d)(1) The Advisory Review Partel shall provide advice to.
(i) NRC on the fundamentalissues of the type of computer system necessary to access the integrated electronic information effectively under paragraph (b) of this section;
-- and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket under the Commission's Rules of Practice (10 CFR Part 2).
(2) The respons,ibilities of the Advisory Review Panel shallinclude advice on-(i) Format standards for providing electronic access to documentary material to the parties, interested govemmental participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high-level waste licensing proceeding; (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.
- 14. In $ 2.1012, paragraphs (a), (b)(1), and (d) are revised to read as follows:
s 6 2.1012 Compliance.
4
- (a) In afidition to the requirements of 9 2.101(f), the Director of the NRC's Office of Nuclear Materials Safety and Safeguards may determine that the tendered application is not
h I .
s<
acceptable for docketing under this subpart if the Secretary of the Commission determines that it cannot be effectively ed through the Commission's elodronic docket.
(b)(1) A person, including a potential party given access to the integrated electronic information under this subpart, shall not be granted party status under i 2.1014, or status as an interested govemmental participant under i 2.715(c), if it cannot demonstrate substantial :
- and timely compliance with the requirements of $ 2.1003 at the time it requests participation irs the high4evel waste licensing proceeding under 6 2.1014 or 6 2.715(c).
..... I (d)
Access to the pre 4icense application electronic docket or electronic docket may be suspended or terminated by the Pro-License Application Presiding Omcor or the Presiding Officer for any potentitt party, intoiested govemmental participant or party who is in noncompliance with any applicable order of the Pro-Lloonse Application P.wsiding Omoer tsr the Presiding Officer or the requirements of this subpart. .
I
- 15. Section 2.1013 is revised to read as follows:
$ 2.1013 Use of the electronic docket during the proceeding. ,
(a),1) Pursuant to l 2.702, the Secretary of the Commission will maintain the official docket of the proceeding on the application for a license to receive and possow waste at a i
geologic repository operations area.
- (2) Commencing with the docketing in an electronic form of the license application to receive and possess high-level radioactive waste at a. geologic repository operations area pursuant to part 60 of this chapter, the Secretary of the Commission, upon determining that the application can be property accessed under the Commission's electronic docket rules, : vill establish an electronic docket to contain the official record materials of the high-level radioactive waste licensing proceeding in searchable full text, or for material that is not e
_er, . , - - - .- , , - - - ,v~,-- . , . - , , - - # - w--- ,, , , - - , - - 4 --- . --, - , ,-/
I.
35 suitable for entry in searchable full text, by header arid image, as appropriate.
. (b) Absent good cause, all exhibits tendered during the hearing must have been made available to the parties in electronic form before the commencement of that portion of the hearing in which the exhibit will be offered. The electronic docket contains a list of all exhibits, showing where in the transcript each was marked for identification and where it was
- received into evidence or rejected. Transcripts will be entered into the electronic docket on a daily basis in order to provide next day availability at the hearing.
(c)(1) All filings in the adjudicatory proceeding n the license application to receive and possess high level radioactive waste at a geologic repository operations area pursuant to
. part 60 of this chapter shall be transmitted electronically by the submitter to the Presiding Officer, parties, and t'a Secretary of thc Commission, according to established format
[
requirements. Parties and interested govemmental participants will be required to use a password secunty code for the electronic transtnission of these documerts.
(2) Filings required to be served shall be served upon either the parties and interested govemmental participants, or their designated representatives. When a party or interested govemmental participant has appeared by attomey, service must be made upon the attomey of record.
(3) Service upon a party or interested jovemmental participant is completed when the sender receives electronic acknewledgment (" delivery receipt") that the electronic submission has been placed in the recipient's electronic mailbox.
(4) Proof of service, stating the name and address of the person on whom served and the manner and date of service, shall be shown for each document filed, by- .
4
- (i) Electronic acknowledgment (" delivery receipt");
(ii) The affidavit of the person making the service: or O
0 l
l 36 (iii) The :ertificate of counsel.
(5) Alli' residing Officer and Commission issuances and orders will be transmitted electronically to the parties and interested govemmental participants.
(d) Online access to the electronic docket, including a Protective Order File if authorized by a Presiding Officer, shall be provided to the Presiding Officer, the
- representatives of the parties and interested govemmental participants, and the witnesses while 'es3fying, for use during the hearing. Use of paper copy and other images will also be permitted at the hearing.
- 16. In 9 2.1014, paragraph (c)(4) is revised to read as follows:
9 2.1014 Intervention.
(c)
The failure of the petitioner to participate as a potential party in the pre-license (4) application phase.
- 17. Sectior 2.1017 is revised to read as follows:
9 2.1017 Computation of time, in comput ng any period of time, the day of the act, event, or default after which tha designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or interested
- govemmental participant, has the right of is required to do some act within a prescribed period after the service of a notice or other document upon it, one day shall be added to the l
f 1.
I
~
' 3 7 L
j prescnbad period. If the electronic docket is unavailable for more than four access hours of r
-- any day that would be counted ir, the corrputation of time, that day will not be counted in the 3
computation of time. '
f
- 18. In i 2.1018, paragraph (a)(1) and the introductory text of paragraph (e) are i
revised to read as follows:
- - $ 2.1018 '%covery. '
i t
- (a)(1) Parties, potential parties, and interested govemmental participants in the high-level waste licensing proceeding may obtain discovery by one or more of the following !
methods: t
-- (1)
Access to the documentary material made available pursuant to $ 2.1003 ;
(ii) Entry upon land for inspection, access to raw data, or other purposes pursuant to $ 2.1020; (iii) Access to, or the production of, copies of documentary material for which ;
- bibliographic headers only have been submitted pursuant to $ 2,1003 (b) and (c);
(iv) Depositions upon oral examination pursuant to $ 2.101g; (v) Requests for admission pursuant to 9 2.742; I (vi) Informal requests for information not made electronically available, such as the 1 .
names of witnesses and the subjects they plan to address; and (vil) Intenogatories and depositions upon written questions, as provided in I
paragraph (a)(2) of this section. l (e) - A party, potential party, or interested govemmental participant who has made
" available in electronic form all material relevant to any discovery request or who has
!. responded to_a request for discovery with a response that was complete when made la under .
g.
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l- -
38 ,
no duty to supplement its response to include information thereafter acquired, except as follows: .
- 19. In $ 2.1019, paragraphs (d). (e), and (i) are revised to read as fellows: ,
- $ 2.1019 Depitions.
(d) When the teatimony is fu;ly transcribed, the deposition shall be submitted to the 1
2 - deponent for examination and signature unless the deponent is ill or cannot be found or
~ refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by l i
- l. the deponent, shall certify the reasons for th failure to sign, and shall promptly transmit an olectronic copy of the depos?. ion to the Secretary of the Commission for entry into the electronic docket.
(e) Where the deposition is to be taken on written questions as authorized under
$ 2.1018(a)(2) , the party or 6nterested govemmental participant taking the deposition shell
[. *
- serve a copy of the questions, showing each question separateh and consecutively .
numbered, on every other party and interested govemmental participant with a notice stating tt e name and address of the person who is to answer them, and the name, der.aiption, title, f and address of the officer before whom they are to be asked. Within ten days after service, _
any other party or interested govemmental participant may serve cross < questions. The questions, cross < questions, and answers shall be recorded and signed, arx the deposition i
certified, retumed, and transmitted in electronic form to the Secretary of the Commission for entry into the electronic docket as in the case of a deposition on oral axemination.
I ......
i (i)(1)- After receiving written notice of the deposition under paragraph (a) or paragraph e
- ,-..~,a - ,_ _- X-..-~---,,.__._.__a.___.__1_ _
\
I-i 39 (e) of this section, and ten days before the scheduled date of the deposition, the deponent
- shall submit an electronic index of all documents in his or her possession, relevant to the subject matter of the deposition, includinn the categories of documents set forth in paragraph (i)(2) of this section, to all parties and intc osted govemmental participants. The index shall identify those records which have already been made available electronically. All documents
- that are not identical to documents already made available electronically , whether by reason of subsequent modification or by the addition of notations, shall be treated as separate documents.
(2) The following material is excluded from the initial requirements of 9 2.1003 to be
- made available electronically, but is subject to derivative discovery under paragraph (i)(1) of this section-(i) Personal records; (ii) Travel vouchers; (iii) Speeches; (iv) Preliminary drafts; (v) Marginalia.
(3) Subject to paragraph (i)(6) of this section, any party or interested govemmental participant may n: quest from the deponent a paper copy of any or all of the documents on the index that have not already been provided electronically.
(4) Subject to paragraph (i)(6) of this section, the deponent shall bring a paper copy of all documents on the index that the deposing party or interested govemmental participant requests that have not already been provided electronically to an oral deposition conducted
~
pursuant to paragraph (a) of this section, or in the case of a deposition taken on written questions pursuant to paragraph (e) of this section, shall submit such documents with the aus
- - - - - - - - - - ~ _ _ _ _ _ _ _ _ __ _ _
) e 40 certifieo deposition.
(5) Subject to paragrrph (is'S) of this sectior,, a party or interested govemmental participant may request that sny or .ill ocNments on the index that have not already been provided electronically, and on which it intends to rely et hearing, be made electronically available by the deponent.
(6) The deposing party or interested govemmental participant shall assume 'he responsibility for the obligations set forth in paragraphs (t)(1), (i)(3), (i)(4), and (i)(5) of this section when deposing someone other than a party or interested govemmental participant.
Dated at Rockville, MD, this b day of Ncvember,1997.
For the Nuclear Regulatory Commission.
b John C. oyle, Secretary of the Commission.
um W
e
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