ML20205S877

Proposed Rule 10CFR2, Rule on Submission & Mgt,Records & Documents Re Licensing of Geologic Repository for Disposal of High Level Radwaste. Rule Would Establish Basic Procedures for Licensing Proceeding

ML20205S877
Person / Time
Issue date:	10/25/1988
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-53FR44411, RULE-PR-2 PR-881025, NUDOCS 8811140021
Download: ML20205S877 (151)

Text

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DOCKET NUMBER

' PROPOS D RULE PR 1 5bPK W W]~ [75fM00

'88 E -2 All ;)4 f0Cbis - *"

p t. N f NUCLEAR REGULATORY COMMISSION 10 CFR PART 2 '

RULE ON THE SUBMISSION AND MANAGEMENT . (ECORDS AND DOCUMENTS RELATED TO THE LICENSING OF A GEOLOGIC e REPOSITORY FOR THE DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTE AGENCY: Nuclear Regulatory oczmission.

ACIION: Notlee of pr M _ rulemaking.

• SUF4%RY: 'Ihe Nuclear Regulatory ctrmtission as p .osing revisicos to the '

Ctznission's Rules at Practica Lt .10 CFi< Part 'l for N cdjtriicatory proceeding on the application for a lleense to receive and pm=aa high-level radioactive wasta at a geologic repository cperations area pursuant trs 10 CFR Part 50. 'Dw preposed revi.sions nuld establish the basic procedures for the lioert,ing prwing, Lchxliin prr;cedures for the use of the Licensing Stgport Systen, an alm.bdc informatico %-4

systen, in the pH-

: Shg. '1he kW revisicos are based ,en the deliberations of the comission's High-Inval Waste Licensing Stgport Systarn Advisory Cmmittee. 'Ihe Advisory Ctznittee was ocuposed of organizations r

representing the major interests likely to be affected by the rulemaking, [

and was established by the Cannission pursuant to the Federal Advisory Comittee Act, 5 U.S.C. App.1, in Septarber 1987.

1 0011140021 001025 N3F44411 PDit D b/o  !

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2-DNIES: 'Ihe ocenent period expires (INSERP DAIE 'IMIRW DMfS APHR RJBLICNTICE). Cumnants received after this data will be ocmsidered

. if it is practical to do so, kart assurance of ocaV.deraticn is given caly for tv=amits filed cm or before that dats- .

ADCRESSES!Sutnit written ocenents to: Secretary of the minaien, U.S.

Nuclear Regulatory carnissicm, Washingtcm DC, 2c"' \ttenticm:

Dockatig and Service Brancts. Copiens of <v=narits received may be examined at the NRC Public hnn=1t Ibcsi, 2120 L Street, NW.,

Washingtcn, DC.

ICR PURIHER INFORMATICH C12TIACT: .

Francis X. Camertn, Office of the General Oxnsel, U.S. Nuclear Regulatory Ctraissien, WaMiingten D.C. 20555, 'htlighens  !

, 301-492-1623.

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i SUPPIDeffARY INFRRTICH: '

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on August 5,1987, the nweimmicn announced (52 FR 29024) the formation of 1

the High-level Wasta Licensing Sursort Systen Advisory Otmittee l

("negotiating ocruittme") to devalcp remcidations for ruvisim the CLmissico's Rules of Practice in 10 CPR Part 2 for the adjudicatory l

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t pc-:-- 4ng cm the applicaticn for a license to receive and possess high-level radioactive wasta ("HDf") at a gec4cgic repository operaticos ares ("HDi licensing prmandinga) . 'Iha negotiating ocanittaa -scught ocnsensus cn the prmdww that would gcworn the HDt licensing sc-:--ilng, including the use of the Licensing Styport systa ("ISS"), an el Lwde information management syste , in the HDi licensing sc-:: - Eng. 'Ihe objective of the negotiated rulemaking was to provide for the ela ive reviw of the U.S, Department of Energy (DE) license applicaticn within the three-year time period required by Secticn 114(d) of the Nuclear Wasta Niicy Act of 1982 (NWPA), as amended. .

b ISS would contain the informatico supporting the DOE l' .ise applicatien, as well as the potentially relevant dmmnts generated by NFC and other padies to the licensing pWig, in a stardartitzed electronic forvat. All parties would than have aoones to this systm. Because the relevant informaticn would be roadMy available through access to the ISS, the initial ti;n Asamirg discxnary yw ess, incluiing the physical producticn and on-site review of demnants by parties to the HtW licenslig p ic-: M IN, will be sutstantially re ad. 'Iha use of the ISS during the HDi licensinrj preaadLng will provide for timely review of the ME license application by--

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providing Weprehensive ard early access to potentially relevant licensing inform tient

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_ pewiding full text seartd: capability of .,

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mm:h c.? the potantially relevant licensing infatuation; and ,

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_ pewiding fee the electronio tran-i-im of the far==1 papere during the licensing . .

proceeding. i i

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{ 1he Iss is designed to prwide for the entzy of, and access to, potentially [

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j relevant licensing infatuatica as early as practicable before DOE sukaits the license applicaticm for the repository to the n== 4 =len. Early ,

availability to potantial parties is expected to facilitate preparaticm for ,

i the adjudicatory hearing, and alme may assist in tho early identification l 4 i

ard resolv:ticm et licensing issues. l i

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The n==imicm used the prccess of negotiated rulemaking to devolcp the proposed rule. In negotiated ruiraking, the representatives of parties to i

j any be affected by a W.ed rule, including the n==imicm, convene as s t

a i grung over a period of time to attempt to reach ocmaensus en the prtpceed l J l

rule, were ecmeaneus is reached, it fornu the basis for the hi-icm's  !

I putposed rule dich is then issued for notice and omment. In establianing l j the negotiating cxzenittee, the Qaniasion agreed to imeus for consent any ,

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peteceed rule resulting frcm a cenernma of the negotiating ammaitten unlese

) l l the ozedssion found . that the prepened rule was inconsistant with its i

statutcry authority or was not appropriately justified.

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4 t In the Deosuber 18, 1986, M h Nation annotmcing the  !

Ozumission's !ntart to cordact a rdiated rulemaking (51 m 45334), the j l

Ommaission identified several interests that mi# be affected by this particaalar rulemaking. Shees interests included Indian Tribes, State  !

goverments, local goverments, and public interest grtags affected by i

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rupesitory siting, utilities, ratapayers, and FuGarsi agencies such as the ,

i MC and DOE. She ormanission stated that it would ccr. .ider parties for l

membership cm the reimting ccennittee cm the basis of (1) dwther they I t

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have a direct, i=madiata, and substantial stake in the rulemaking, (2) l' dwther tey may be adevately A W by another party en the l l

i ccannittaa, and (2) dwther their partielpatica is essential to a --ful i e

1 l negotiation. Based cm these critaria, the n==i== ion irwitad a rsaber of l grtaps to participata in the negotiated rulemaking. The first meeting of

! the r*4= ting cxamaittee was held in sap'h, 1987. The r*4= ting 1

l ccannittee ocupleted its an14Mrstions in .7uly,1988.

i l On February 5,124 (53 m 3404), the himmient zwined tte assbership of

] the negotiating ocummittee to reflect the changes in the HDI siting process ,

l ihas to the enactnant of the Nuclear Masta Policy Amendmnts Act of 1987 (Pub. L. No. 100-203). The primary affect of ths Act was to focmas the y

[ repartment of Ihergy sita characterizatica efforts em a single site in l slaveCa to detaraine its suitabi.lity for a geologic repository. Efforts in l

i regard to other first round sitas for a geologie repository and the saart:h

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1 for a seccnd round geologic repenitorf were tartinated. With this change in l

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the statutory frammerk, the himmien zwined the aanbaiship of the negotiating m.ttee to reflect the focus en characterizing the Nevada site. ,

'!hs mar +=rs of the twined negotiatin; rr=mittee are-i t

DOE r ,

E State of Nevada ,

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_ a coalition of Nevada local goveu._..ts a

_ a coalition of irdustry graps (niiscn Electric InstitutgAftility Nuclear Wasts Management Grup/U.S. Q:uncd1 for Energy l i

Awarunnes) i

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_ Naticmal omgrams of American Indians [

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_ a coalition of nat.icnal envite .tal  !

groups (Envi m ..e-d.al Defense Fund / Sierra 4

club /Frierds of the Earth) i l

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'Ibe hl==ico seshasizes that the groups iho were irwited to participata as masters of the negotiating ocustittee vers those h might be broadly affected by the ISS rulemakiss. 'those groups do nct, na'a==arily =6+4 to the groups or persms W might have standing to participata as a party to the h4==len's HDi licensing g x-r HLng.

In accordance with the h4== ion's zwplaticms in 10 CFR Turt 7, the hl==ien chartered the negotiating er-Ittee as an advisory ocznittee pursuant to the Federal Advisory Ccunittee Act (FACA), 5 U.S.C. App.l.

Urder these rehations, advance notice of negotiating ccanittee meetings h!ns provided in the Federal Registar, the meetings ,of the full nogetiating ccani% wars open to the public, ==hars of the public wars offered the witurtity to sukatit written stataments or make oral wats to the t l comittee, and detailed miru!:as of each meeting ware made available for public review and copying.

'Ihe Ormuission retained the Ctnservaticm Rundation, a ru viefit orgartizatico with expertise in the area of >=iintion ard neptiated rulemaking, to assist the hl==len in fac1Aitating the meetings of the negotiating crmnittee. Mr. Howard S. mm11mmn of the ocosarvation Fourdation ,

l served as the senlot facilitator for the lagotiated rulemaking, assisted by Timothy J. Healey, alsa of the Ocnservaticn Fourdaticm, and Matthew A. Iow  ;

of 'IU Sysrace. '!he facilitators chaired the negotiatirg sessions, assisted (

irdividual parties in forming and presentirg their pcsitions, and offered  ;

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4 -s- j l i e_ . _-%. ard alta::netives to help the negotiatire ocusaittaa reach  ;

otmoenmas.  :

1he negotiatitug oceanittaa established dee. ailed rh for con &cting ,

cunnittee meetings, ' including a protocol specifying that the otamittee would l 1 . i cperate by consenmas. "Qmeansus' was defined as no dissenting vote be!ag l 4

nst by any otzmaittas ammber cm a decisicn before the cemanittas for 1 aRaoval. All numbers of the negotiating ccusaittee, with the Wim of l l the in&astry coalition, agreed to the draft negotiating tctt of the pecposed j rule,that was dime by the negotiating cczmaittee at its final meeting j - ("final negotiating tact"). Under the ocannittaa protocols, the diamariting

) 9 tite by the irdustry precluded consensus en the proposed rule. f I

The industry coaliticm's concerns fen:aas en the ability of the Iss, as it was ,

conceived in the final negotiating text, to most the NWPA timeframe for a  !

hi==len decision cm the w ^ Man authorizatica for the repository >

! ctsz7- ,0y, industry coalition iv:- fatives argued that the cost of the l l 188 is unjustified.

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The hianic'= believes that the DCE cost estinate of appecedmately $200 l i

i mi.uien for the IAs cwer a ten-year life cycle would at least include eczna i

i of the ccats that would be incurred by D2 and MC as part of its normal i

records management process for repository licensing apart fran the ISS. f l

l Furthermore, even if the $200 millica estinata is attributad solely to l

! litigation sugcat, it is the h4== ion's belief that these costs are (

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cutweighed by the benefits of the preposed rulanakirq. 'Jhe DCE cost-benefit analysis indicates that wdmately $200 millicm would be saved for each year or licensirg delay that is eliminated das to the Iss. 'the gW rule, if implenentad, sets in place a prm=Anu for hearings that will allow the himaian to reach a decisf an on the w Lw:tico authorizatice within the timeframe specified in secticn 114(d) of the NWPA. However, even if the gw we to taka up to com-third longer than the proposed rule envisicos, the ISS would still result in aliminating substantial time frun current licensing practice. Under these cirumstarces, the benefits of the draft kW rule would exceed the oests of inplementing the Licensing Support Systan. In this regard, Ctanissicner Roberts specifically requests

[dblic c ant cm altarmtives to the Licensing Support Systan that would lead to a further reductico in the time for licensing the repository.

'Ihe Nimmien is p2blishing the final negotiating text as a prtposed rule ,

for public cranent. 'Ibe final rwgotiating text received the ardorsement of

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all participants en the negotiating ocanittee with the exceptico of the  :

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industry coaliticn. '! hose participartts de a; proved the final negotiating l l

text are DCE, the State of Nevada, the coaliticn of Nevada local goverments, the National Ctngrees cf American Indians, the coalition of naticnal arvimatal grtmps, and the NRC staff. 'Ihe prtponed rule is carefully drafted with the full participation of pecple with strong experience aid backgrtund in NRC practice. It reflexs the ocncerm of the j major interests affected by the rulenaking. In fact, the industry ,

coaliticn, although rit== anting en the final negotiating text, fully I

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participated in the drafti!q of the f3ml negotiating text, and unas ccaplimentary ocnoerning the affectiveness of the negotiating procean.

'De ht,-: --' rule ic being lasued for a thirty-day r-arit period. 'Ihe participants cm the regotiatirq committee W1o asprwed the final negotiating i

text have agreed to refrain fran ~ ating negatively cm the final negotiating text. 'e industry coalitica1, as wall as any non-participants in the noget.iaticm, art free to r-ant critically on any asipect of the r W rule, including cost aspects of the ISS. Ocnsistant with the negotiating rrenittee's functicn to advise the Oceanjssion cm the ISS rulemaking, the staff intands to submit the ecuments en the 9t--:M rule to Ee negotiating ecunittee for rwiew and cxmment, at which time participants 2 who apprwed the final negotiating text would be afforded a full csportunity i to .-at ard is55.ua to any criticism or potential rwisicn of the text.

'Ihey wculd also be free to r===- their positions on the ISS in light of any change in the NRC position with regard to the rulemakirq due to evenants ,

on the prtponed rule. l t  :

DOE has ===w the responsibility for designing the ISS ocnsistant with the requirements of the gW htle, and the ISS is now in the preliminary I i

design stage. DOE has issoed a series of reports that are intended to '

I provide the basis for detarmining the ISS design specificaticos. ( jige U.S.  !

, DepauM of Energy, ' Licensing Sunwrt Systen Preliminary Needs Analysis"  !

Tebruary 1988; "Idcensing Support System Preliminary Data Socpe Analysis"  !

Mart:h 1988; "Licensing Support Systen 0:rceptual Design Analysis" May 1988; i

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1 Licensing a gport system annafit-cost Analysis" July 1988. copias of these doczments are available thm F.X. Camartm, office of the General Counsel, 1 t

U.S. holear Regulatory r:A m.Aicr e HasL'ington, D.C., 20555, Taloghtmet f

(301)-492-1623. men some - *?A Lt. kmotmas av=Nle (currently j projected for Jamary, 199J Qt. belC, osIss A h tcr, will be respcmsible for management et : WA .etin< , ' he Iss.  ;

k I i me participants cm the negotiau.g ocanittaa are currently providing  !

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l informaticm to DCE cm the design of the Iss, and will contime to provide l

l ocuments to DCE cn the Iss design tmtil the las Advisory crrmittaa has been  !

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! - appointed by the hianicm pursuant to proposed secticm 2.1011(e)(2). Se l IES Advisory ocamittee will ba ocmposed of thm Stata of Nevada, the .

j coalitics of affected units of local gcuen at in Nevada that served on the !

i i l negotiating ocanittee, DOE, NRC, the National Congress of American Indians, j

! the coaliticm of national envirtraental grtags that served cm the-  !

l t i negotiating cxamittee, and other ===hars as the mi==ica may frts time-to- l l

time designata. So Iss Advisory caenittee will serve as an interia l 3

i advlacey grca, until the IAs Advisory arriew Penal is established by the Iss I l

A&ministrator. (

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I 4 In additicm, the Ims A&ainistrator will ocmmult with Dcs en the design and i 1

j develepannt of the Iss. It is anticipated .that the NRC and DOE will antar J l into a Namcman&m of Understanding that will est forth the detailed respcmsibilities of each ryency in ragazd to the ISS, and will prtwide for I i

the coordination of these responsibilities. [

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6 I She m-zi tule wculd apply to the IEN licensing pr~ Ming ard would be  :

used in -i=ctice with any hearings in that ptmaadiog. In this regard, it may be useful to stamarize the ch=4==icm's HIN licensing process.. After the DOE license applicaticm to receive and pcomens wasta at a geologic rt@ository is dockstad, the Chanissicm's regulaticms in 10 CTR Part 60 l

provide for the hi-ion to rwiew DCE's plans with respect to a geologic repository before the ocamancement of u . . t.ructicm. Accordingly, DOE may  ;

not ocreence w i.netice of a geologic rupesitory unless it has first filed '

a liormee applicatica and obtained the Ocamissicm's w Man i authorizaticm. 10 CFR 60.3(b) . A w ^Mcm authorizaticm is not itself l

4 . a license, since it &ses not authorize possession or use of ruclear

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iistarials, but ECE's failure to appl," for and obtain a w Mon authorizatico constitutes grounds for denial of the license that DOE would later need in order to receive high-lesi vasta at the repository. i Moreover, the canaissicm may, if m y, Isam orders to secura l t i l ocmpliance with construction author!.zatice ocnditiczw and to protect the ,

integrity of the repository. Oder 10 CPR 2.101(f)(8), a hearirg is

required cm the imamme of a - ^Mcm authorizaticn. In order for the Ocemiamien to issue a w M en authorization, the hi==icm sust i detarmine that the requil- 4 of 10 CTR 60.31 have been met, 'inclaiing  ;

r that the site ard design ocuply with the performance objectives and critaria l

in 9* = M E of 10 CFR Part 60.

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The ocenission's action cm the cr.nstructice authorization is part of the

ocruission's rwiew of the application for a license to receive and m==

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wasta at the reposita y. If the hiamien does authorize w ^Mcm, the 1

h i - icm must later zwiew, ard appews ce di-m, the license  !

applicaticm amen &sent to enplace wasta at the repository. Uru$er 10 CFR l 2.105 (4) (9) , the Q:enission any authorize a hearing cm the imme of i I

emplacement of wasta at the repository. In order for the ocannissico to 2

issue the license to reonive ard possess wasta at the repository, the himmien sust detamine that the requirements s. GR 60.41 have been met, inclixiing that construction of the repository has been substantially ocupleted in conformity with the lioerse applicaticm, the prwisions of the Atmic Energy Act, and the rules ard regulaticos of the hinsicm.

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1 ' Die NWPA differentiatas between an applicatir.r for a constructico authorization aM an aplicatica for a license, whereas 10 CFR Part 60  ;

refers solely to a license to remive and possess wasta (to be filed prior I I

to ex- L octicm). 'Ihe hinsicm ocmsiders this differentiation to lack any substantive significance. In the view of the himsico, the informatico it 1

needs in order to be able to ocmsidar the ia==nce of a - Mcm  ;

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authorizatice is generally the same as will be W prior to the issunnoe I i

of a license to receive ard possess HDf. Pbr this reamen, the h insico f

~ regulations call for to applioticm to be as oczplete as possible.'  !

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! L j 2.1000 Socpe of subpart.  ;

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'Ihe pmM rule establishes a new Sukpart J in 10 CPR Part 2 settig forth the r< ebras that gcNern the hl==icm's HIN licensig gc- =iing, including the use of the ISS for the =*=imaion and manageen u vf h%

in the ge:aiing. Generally, the gc ebres -in the nsW Sutpart take pr=,adance over the provisions of general applicability in 10 CFR 9&vt G.

However, Sectico 2.1000 cross-references any- secticns of general asplicability in Gutpart G that will ocotira2e to apply to t." *ti.W licensing L

pir-:=iing. 'Ihe pu,-M rule applies only to the HIN pv- =iing, and does not apply to licensing gc- =iings for any other type of facility or activity licensed by the himmicn. 'Ihm rule will be applicable to all

, parties to the HIN licensing pir-:71ng4 ragaztiless of Wwther a particular party was a metter of the negotiating rrenittaa.

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i 2.1001 Definitiens.

Section 2.1001 sets forth the definiticos of tarnrs used thruaghout Subpart i

J. 'Ihese definiticos will be di-M with the relevant sections of the f

propc.ed rule.

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. 2.1002 Righ-level Wasi

a Licensim Support Systan. .

1 Pred sectico 2.1002 describes the purpose and socpe of the ISS. 'Ihe ISS it ir.tanded to provide full text saarth capability of, or easy access to, the "hmntary material" of IDE, NRC, other parties to the HIH licensing pr W imI govt ".g nt entities participating in the HIR pWim as 1

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. "interested govermental participants" under 10 GR lt.715(c)1. perstms We q=11ey as "potential parties" under proposed sectica .2.1008; and their contractors ("parties," "interestad govermental .; participants," and "potantial parties," will be collectively referred to-harvlnafter as "IAS participants"). ISS participants must ensure that their wiu.?urs, l

cm mtitants, grantees, or other agents, ocuply with the applicable requirements of 94*=3t J.

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- For the pirposes of the informatice that will be in the ISS, "h %  !.

material" means any material or other information generated by or in the

. pcomaica of an ISS participant that is relevant to, or likely to lead to

& disocvery of information that is relevant to, the licensint of t'-

likely candidata site for a geologic rupesitory. Da identification of

material that is within the universe cf "relevant to, or likely to lead to

the diervwery of information that is relevant to, the licensing of the I likely candidata site for a geologic repository" will be determined by the l twical guidelines set forth later in this sqplementary Informaticm. It is

t also the oczenissicm's intent to issue these topical guidelines as an NRC l

! i 4 Regulatory Gktide. Da n=ni==ica expects all Iss participants to make a  ;

good faith effort to identify the h==ntary material within the' socpe of  !

i preposed sectica 2.1003. However, a rule of reason zust be applied to an [

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ISS participant's obligatice to identify all MW material within the  ;

e i scope of the tw ical guidelines. For exanple, DOE will not be expected to l j make an exhaustive searci of its archival matarial that conceivably might be l j i

! within the topical guidelines but has not been reviewed or consultad in any 1

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way in w ..h tcm with DOE's wsrk cm its licanoe applicaticm. It is also anticipated that the ISS Advisory Review Panel established pursuant to  :

i propcoed secticm 2.1011(e), in evaluating the impleenantatica of the ISS, may l make occasicmal rWtions to the n=ai==ica cm dwther par +4m1=r categories of h=aritary material (e.g., those limited by data ce subject) should still be included within the topical galhlines.

Although the tcpical guidelines will guide the selectim of relevant information for entry into the ISS, they will not be used for this purpose of l determink(! the scope of ccotanticos that can be offered in the HDi pr& Wing under pW sectica 2.1014. '!he socpe of ecotantiens will be 4

govemed by the Ctmmisaian's authority under relevant statutas and regulaticos.

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Pr-H sectica 2.1002(d) specifies that 91=n J is not intanded to -

i affect any indep -Oest ripit of a potential party, interested govermental l t

participant, or party to receive informatice or h ==rits . 'Ibese l independent rights consist of statutory rights under such statutes as the Freedca of Informaticm Act (703) , or the Hoclear Wasta Policy Act, as l

emended, or rights derived tzta grant requirements such as theos between DOE and the State of Nevada.

i 2.1003 Suhaimmicm of material to the ISS. f 1

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Proposed sect!cn 2.1003 sets forth the requiruments for the =*=Immico of hW material by ISS participants to the ISS Administrator for entry into the ISS. ISS participants, excluding DCE aM NRC, Eust adELit an ASCII file, a bibliographic header, aM an lange for all h=arits generated by  ;

the ISS participant or its 0sh.ctor after the ISS participant gains -=

to the ISS sursuant to either proposed secticm 2.1008 or r w-:d section 2.1014. Si4=4 maicm of these h = ants Eust be made ruammably contm:poraneous with their creatico. For h= ants generated, or acquired before the ISS participant gains access to the ISS, the ISS participant need only subnit a Mr and an image for each h= ant. '!he ISS Administrator will be respcnsible for antadng theem h= ants into the ISS in searchable full text. D:E aM NRC, ' the generators of the largest volumes of

• documntary matarial, will be respcosible for subnitting to the ISS

! Administrator ASCII files, bibliogra; hic baaders aM images of documents within the socpu of the topical guidelines. 'Ibe format critaria for the 1

e*=4maien end acceptance of ASCII, images, and banaars will be initially i

establistad by DOE: in concert with the ISS Advisory Mttee established pursuant to prepceed sectico 2.1011(e)(2), to be later supplemented as rananmary by the ISS Administrator in ocncert with the ISS Advisory Review Penal. *

! 'Iha and=4maico requirunants of rq-::d secticri 2.1003 generally apply only

to final h= ants, e.g., a h= ant bearing the signature of an uplcryee of i

an ISS participant or its contractors. Ibwever, paragrarhs (a) aM (b) of i

j prtrosed section 2.1003 Sso require the subnissico of "circulated drafts"

for entry into the Iss. A "cirt:ulated draft" means a ronfinal docment circulated for supervisory ocnourrence or signature and in Wich the original author or others in the concurrence process have mn,.ucarred.

The intent of this exceptien to the general rule cm final h-rits is to capture those h=arits to Wich there has been an unresolved objecticn by the author or other perscn in the internal management review prtxaeas (the  :

concurrence process) of an I.SS participant or its centractor. In effect, the hinsicn and the other goverment agencies to aru ISS participants are waiving their deliberative process privilege for these cirtulatal drafts. The objecticn or non-concurrence must be unresolved. Any draft

, h?=nts to Wich such a fortr0, unresolved objection exists aust be etnitted for entry into the ISS. Although many of the ISS participants or '

their contractors do not have the same type of ococurrence process as DOE and NRC, the hl==len expects all ISS participants to make a good faith l effort to apply the intant of this pzwisicn to their h==rit appM process.

This requim. eat applies regartiless of whether any final h=arit ultimtaly emerges frta the ISS participant's decisico-eaking process. A determination not to issue a final hM, or allowing a substantial period of time to I

elapse with no acticn being taken to issas a final h=arit, shall be dammai to be the completicn of the decision-making process. If a decisicn is made i

i not to finalize a h==rit to which there has been an cbjecticn, the draft ,

I of that docunent must be entered into the ISS after the decision-makirn l pr-e cn the document has been acrpleted, i.e., the requirwents of I

13 -

is-3-z1 secticri 2.1003 do not require a las participant to mutait a circa11ated draft to the las 211e the internal decisicr% process is ongoing. In addition, mder preposed section 2.1006(c), circulated drafts that are sibject to withholding under a privilege or Wim other than the deliberative process privilege (e.g., attorney work prockact), are not required to be submitted for entry in seardable full text to the IAS under proposed sectica 2.1003.

r As a general rule, all h=antary material is to be in the IAS in seardiable full text. However, the propcoed rule provides for Wdems to

. this general rule. Prtponed secticri 2.1003(c) addresses graphiMented

• h=aritary matarial that is not appropriata for entry into the Licensing support systaa in saarthable full text. Graphic-crientad h ==ntary material is material that is printed, scriptad, hanheittan, or otherwise displayud in hard copy form, and is capable of being captured in electrtrnic image by a digital scaming device. 'Greghicwiented material includes row data, ccuputer runs, otsputer pecgress and codes, field notas, laboratory notas, amps, and ph%4i Which have been printed, scripted, harsharittan or otharvias displayed in any hard copy form and eich, W111e capable of being captured in al .w.ic image by a digital acaming device, any be TW and suknitted to the IAS A&ministrator in any form of image, along with a bibliyg.ic header. Prtpceed secticas 2.1003(c) also addresses

- h=artary material that is not suitable for entry into the Licensing 9-d W~W in either image or searthable full text. Such material shall be dont nt m in the Licensing support Systman by a sufficiently descriptive

i l

{

biblic.eddc header. 'Ihe timafrase for entry of graphio<riented meterial,  ;

ce notarial that is not suitable for entzy in either image er maarttable j i

..d1 tenet, will be established pursuant to the acones pet +=1= in preposed  !

l secticr. 2.1011(d)(10). However, in any case, this type of Am==ritary j natarial sust be entered into the las after the principal investigator f I

] decides that the data are in a usable form, including the ocupletice of (

i

, .grdity assurance H v h . '!he m'a== pet +el should ensure that any l l

collection or "peckage" of de=aritary material, as .the term is used in l l

preposed section 2.1003(c)(3), Wticts Islates to a study, should be makaittad  !

l reasemably otzitanporanscus with the ocupletice of macts a apackage,"  ;

l including any quality assurance that may be required. .

I

- l l

Prepcmed sectica 2.1005 sets forth catagories of Am=arits that are to be l l

completely excluded frca the Iss, and preposed section 2.1006 sets forth the j i

l categories of Am==rits that any be withheld frtan entry into the ISS on the i i .

basis of a privilege or emospticm. '!he demi 1m of these prwisicos will be i

! dim ==ad below. l s  ;

i 'Ib anmare that progress is unde in desiyting, devoleping and loading the {

i  !

ISS, proposed secticm 2.1003(h) prwides for evaluations of III cicapliance with the requi -its of proposed section 2.1003 at six acrith intervals.

'Iha III license applicatico cannot be dockstad under 9*=M J, ttaas losing the bqpetits of 9_*=A J, unless the IAS Achinistrator certifies at least six months before the license application is submitted that Dot is in substantial cxmpliance with the prwisicos of the sukpart. Although proposed l

\

l section 2.1003(h)(1) reg. tires the certificatica decisicm six months befors

=*=i== ion of the tm license applicaticm, the himmico anticipatas that the Iss pacipants will have a:oses to the Iss well before the license applicatica is suknitted. 1he ISS Mhainistretce's decision c. :.M capliance any be reviewed by the Pro-License Agplicatim Licensirq Board established purmaant to prcpcmed secticm 2.1010, if the Board receives a properly v.1:' petiticm. Un$er proposed sections 2.1003(a)(1) and (b)(2), l r

ISS participants are rwquired to sutnit any h=aritary material generated l or WM befcLe 4 the ISS par +1eipant is given - to the ISS  !

l

("backlog"), no later than six acnths before the license applicaticm for the repository is suknitted. However, the hlmaien encourages ISS participants 6 suknit thia matarial for entry as som as possible after they have been given acosas to the Iss.

In the event that the Iss Administrator cannot certify tu cx:mpliance with RPM J, ECE may either pc.We the filing of the application until empliance is certified, or can file the license asplication for d*W mder 10 CPR Part 2, R5M G. In the lattar event, the hinsicm wculd note that it will be unlikely to meet the three year NWPA timeframe for a decision cm the issuance of a ocnetructicm authorizaticm, in the event of a ocntastad adjtmilcatory gt-riing. Although DOE may ultimately oces into ocupliance with the prtwisicme of sukpart J at scas point after the license application has t een dockstad under Sukpart G, the ccanissicm say still not be able to cartify that the statutory timaframe will be set. However, pred sectico 2.1003(h)(3)(ii) &es authorize the ccmission to specify

the extent to which R*=M J vill agly if DOE later ocmas into ocupliance.

'Ihe himaion is op' * 't.ic that the effective implementation of the rule prtpceed in this rufdes will allow the h4==len to meet the sche &la set i forth in Section 114(d) of the NWPh. .

2.1004 Amen &nents and additicos.

J

'Ihia sectico prwides for the adiition to, and amendment of, records subsitted by the ISS participants. 'Ihe subaittar has sixty days to verify i whether 5 &cN has haen entered w64y in the pre-license a@lication phase, and five days to verify correct entry after the license aplicatico has been =*=1tted. A./ arrors in entry disocworud Aring the sixty anc!

five day parieds may be cxnre: tad by the sukaitter. After the time period for verification has run, any errors may not be wa#und by revising the original document. Rather, the subnittar sust suknit a corrected version to the ISS Administrator, with a separate bibliographic Wr. Both the  !

I bibliogra#11c header for the rwined hW ard the original dooment sust l nota that two versions of the h= ant are in the ISS.

r i

Proposed section 2.1004 alto adiresses the issas of updates of doclaments l that are already in the ISS. Updated pages sust be suknittad to the ISS f Administrator for entry as a separate h==qt with a separata bibliographic l

! header. 'Iha bibliograptic We of the original docunant nust specify that  ;

an update is available. All the pages in a particular updata vill be f entered as a single h aant.  !

Prcromed secticm 2.1004(e) requires that any h =arit that has been irm My excluded tran the Ims must be submitted to the IAs Administrator for entry within two days of its identificatica by the Iss participant 1&c is responsible for the suhaissicn of the h==rit.

2.1005 Exclusicns.

Proposed section 2.1005 establishes several catagories of h=arits that do rot have to be entered into the Iss, either urder the requirements of prt: posed section 2.1003 or urder the derivative discovery requirements of prtposed sectica 2.1019. 'Jhese exclusicos include h=arits typically

~ferrid re to as official notice - arial; referunoe books ard text books; adrainistrative matarials such as general distributica ecuer memorarda, budget, finance, personnel, and prosa-.t matarials; press clippings ard press releases; junk mail; ard classified material. 'Iha socpe of work cm a O

procxa .-it related to rupesitory siting, w i.neticm, or cperation, or the transportation of spent ruclear fuel or hit;A-level wasta is not within the socye of these exclusicns.

2.1006 Privilege.

'Iha subaissica of h=arits to the IAS is subject to the traditional privileges from discovery recognized in NRC adjudicatory picc=Mngs, as well as all the exceptiens fran disclosure contained in 10 C7R 2.790 of the otrnissico's regulatlans. Twee privileges and excepticos include the

attorWient privilege, the attorney work pmhact privilege, the

{

govemment's deliberative pecomes euesytion, prt+ elm for privileged or  !

l i

confidential ocessercial or financial inter _ation, and the prelen of l mafeguards infonmatics). '!he Pro-License Agplication Licensing Board, ..

1 purisuant to sectice 2.1010(b), will rule en ary claims of withholding hm==9 l cut these privileges or exospticms. As in any MRC adjudicatory preemitrig, f  ;

l the Board may rule that the release of p.'.' '~yed or excepted natarial is j

3 .

necessary to a prtper etar taicm in the prmaartirig, or may ceder the

! disclosure of a docasaant under a protective ceder. Preposed secticm  !

i  !

j 2.1006(a) extends the deliberative process privilege mily available to l l

i l

federal govermant agencias to stata and Icm.1 goverTenants and Indian  !

W.bes. Safeguards informentien is to be protected under the provisions of f l

10 C2R 73.21. Sukpart I of 10 C2R Part 2 vill govern the protecticm and

)

, disclosure of any Destricted Data ard Naticrial Security Informaticm &lring  !

the pE-Mhig. 'Ihe existance of any material..of this type should be  !

1 ,

identified to the Licensing Board ard the parties pursuant to 10 C2R 2.907 {

and is not subject to the regtlirgements of prtpcmed section 2.1003. j r

l Accordingly, no headers need be mahatittad for R*=H: I infatuaticm.  ;

i  !

4

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2.1007 Access.

I.

l.

Prtpceed section 2.1007 establishes the provisicns for ama== to the IAS by f I

I the public and by ISS participants. In tarns of public access, the NRC and j Dot will provide public access terminals at their respective Public Dcctment f r

Roczes at Muh in Washirgtas D.C., at NRC regional offices, and at j i

, f

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

. I 1

i varicus locaticms in the vicinity of the likely candidata site for the repository. In the pro-license agplicatica shame, w to the las  ;

f throups theen public wr=== terminals will consist of full text searth capability of the full headers for h=arits in the las. 'me NRC and DX Public Nn==rit hxams will prwide amama, ocmsistant with current practice, to the paper cx:yy or alcrofiche af the h==rits of that agency before ,

wr=== to the LSS is available (currently projected for Jasmary 1991). Once the IAS is operaticmal, public acomms to the ISS headers will be available within the same H=mframs that the headers and ISS h=arits are available  ;

to ISS participants. In additicm, ocpies of =pelfic DOE or NRC h= ants

nay be requestad under the gh of the agencies' Public Document Bocuns <

l l and the F3IA regulaticms of the NRC, 10 CFR Part 9, A DOE, 10 CTR Part j i

1 1004. 'Ibene regulations prwide for a. tan day response time to requests,10  ;

CFR 9.25(e) and 10 CFR 2004.5(d)(1), and the waiver of copying fees to [

galified persons,10 CFR 9.39 and 20 CPR 1004.9(a). Public access to the

{ full text of all h==rits in the IAS, encompt for h==nts withheld frtan ,

i

! dielesurw urder pri: posed sectica 2.2006, shall ke prwided after the notice i

i i of hearing is 4=an=4 for the HIN lleensing prmanding. ECE and Nic will

! [

aneurs that adegants terminal wr=== facilities are prwided at the public '

i h==rit roms.

l Remota - to the ISS frtan indivichal ocmputer facilities will be  ;

available to ISS participanta both chirirg the pre-license applicatien phase and after the notice of haaring has been 4===4 'Iha cost of the crrputar  !

l

! facility and the tale 5 oneh connect charge must be borne by the l'>S i 1

l t

participant. However, they will rot be assessed a v=L=1 ptmaamirq unit (C3U) charge for moocas to the Iss. ISS participants will be #1 'a to file an el bude request for paper copies of Iss h=arits frta their irdividaal ocaguter facilities, and also will be able to file an el Lwde request for a fee waiver dan zwpastirg paper ocpies of h==rits in the Iss. 'Ihis waiver is currently available to qtalified persons or grtxys seekirg a fee waiver for ocpies of NRC h=arits Ww suknit a written rupest to the hiazion urder the himaion's Freedczn of Infomation Act (FOIA) regulations in 10 C8R Part 9. 'Ihe critaria in 10 C7R 9.39 would be used to detamine if the requestor should be grantad a fee waiver. Proposed secticri 2.1007(c)(4) would authorize the 'wimmicra to grant a generic fee waiver to a qualifyirg ISS participant after the initial request . .e a fee waiver has been made.

%=arits in the ISS will set be ocnsidered NRC agency records solely by virtue of the NRC being the ISS Mainistrator. However, any of those h% that were generated by cr sataitted to the NRC as part of the NRC's licensing rispcosibility for the repository will be NRC agency remrds. As noted above, h =arits considered agency records may be regaestad trder a FOIA recpest to the NR:. Similarly, DOE records may be regoestad from DOE under a FOIA request, and the records of any other goveuatal entity that may be cbligated to prtwide &cxments by virtue of a frun$n of informatica statute (e.g., a Stata agency) may be rupesi d.

It is anticipated that the public availability of baadars for ISS documaits vill facilitata free &as of infomaticn requests and rg -cr.

\

O 2.1000 Potential parties.

l Propoemi sectico 2.1000 establishes the suceitres for a param Wng a potential party &aring the pre-license applicatica yhnee, thereby gaining armaa to the ISS &aring this period. Upcm a petitice frta an interistad person, the Pro-License Applicaticm Licensing Board, established purmant to l r4---i secticn 2.1010, will detarmine in accordance with prtponed sectic .

- l 2.1008(c) if the perscm meets the critaria in rp-d sectica 2.1000(b).  !

t these critaria consist of the factors for determining intervention status under r --x d secticn 2.1014(c) or the critaria in 10 CFR 2.715 for  !

I intaristad gcnerrmental participatien, both as evaluated in reference to the f2ipical guidelines set forth below. [

I A grant of m - to the ISS pursuarr'. to pW sectica 2.1008 beform an l t

applicatica is filed does not carry a prestapticn that a potential party '

will be a&aitted as a party after an applicaticn is filed urder section 2.1014 cr as an intarustad gcNernmental participant under 10 CTR 2.715. I Hcwever, the Hearing Ilconsing Ibard will ocnsider this as cne factor in i ruling cm petitlens for interventica urider prtponed sectics 2.1014(c). An 130 partici i =nt's - to the ISS chligatas it to ocuply with the ,

l regulatiens in sukpart J, including ocupliance with all orders of the  :

Pre-License Applicatica Licensing Board. ,

[

2.1009 Preceduras, i i

i i

4

. . - - . - . - . - _ = - _ _ _ _ . - - -

. _~ _ - - . .

i 1

Prtponed sectica 2.1009 = pacifies the rh each ISS participant must follow to ensure laplementatics of the requirunents in sukpart J, . including establishing i h to ensure that h==arrtary material is identified and mataitted for entry into the Iss. Ems IAS par +1al-st mast identify a r

l --ific indivi&aal as the las point-of-ocmtact. 1his individaal must i

! certify, at six senth intervals, that all hanarttary material for Wch the i i

I Iss participant is responsible under this subpart has been identified ard mutaittai to the IAS.

1

) 2.1010 Pro-License Applicatice Licensing Board.

i.. .

I Fiwd section 2.1010 establishes an Nlt Pre-License Application Licensing i i

I Board to rule cm requests for ==== to the ISS &xring the pro-license

! agplicatico phase, and to resolve disputes over the entry of h=aarits and 1

the devel p .t and implementatice of the IAS by DCE ard the ISS 1

Administrator. 'Ihe Board will be appointed six months beforu acomes to the '

l i l

IAS is scheduled to hoocuss available. 'Jhe Board possesses the same general pauars as other HIC Licensing Ikaards poseems under 10 GR 2.718 ard 10 CFR 2.721(d). In order to gain acomes to the IAS &aring the pro-license  !

) .  !

i applicatica yhnee, 'an IAS participant must agrue to ocuply with all orders l 3 ,

of the Pro-License Agplicaticn Licensing Board, and all IAS regulaticns. l 1

j 2.1011 ISS marageennt and administraticm. I ll l e b

l

l t

, t l

• l j -M-  ;

l l

i 3

prepoemi section 2.1011 establishes an las Administrator sein will be i.

l rumpensible for managing, operating, and unintaining the tas. ancause the i I 1as will contain in elect: runic fees, the decammentary usterial constituting l l

I the hi-im's doc $ set and official record for the repositesy licensing i

{ proomeding, and boomune use of the las will be an integral part of the

. osemission's adjudicatory hearing en the license applicaticm, the WC will

! serve as the las A&ministratar. 'Ihn las Administrater is to be aspointed i

i sixty days after the effective data of the final las rule. 'In order to 1

l avoid any conflict-of-interest petblems, the las Administrator comat be ary j person er organisatimal mit that either represents the U.S. Nuclear i

Dagulatory ,Ctzenission istaff as a party to the hipt-level wasta licensing

{ psoceeding or a part of the managment dnain .wting to the Director of the office of Nuclear Notarial safety and safeguards. On a related lasus, with the assomption of the hl= ion in its role as IAS A&ministrator (see the definitics of '18s Administrator"in p:tyceed section 2.1001), the las carmot reside in ary omputar system that is omtrelled by ary las participant, including its contractors, and cannot be physically lacetad on the premises of any las participant or its contractors.

'the las is to be desiend and developed by Exs cumsistant with the repirements in subpart J. 'this respesibility includes all peccaareent of heredare and software. Nousvar, the desip and develegment of the las by txs must be edertaken in ommultation with the IAS A&ministrator. After the IAs has been desiped and h opersticmal, all redesign and promrument by DOE must be with the concurrence of the IAS A&ninistrator.

4 Pmposed section 2.1011(e) ptwides for the establishment of an ISS Advisory Review Panel, Wch will be chartared urder the Federal Advisory ccanittee Act, to advise DOE cn the design ard develegnant of the ISS, and to advise  !

the ISS Administrator cm the implementatica of the IAS. 1he ISS A&Linistrator ageints th3 manhars of the Advisory Review Panel frta members

) of the Licensing Stgport System Advisory cbenittee established gursuant to rW secticn 2.1011(o)(2) within sixty days after the ISS A&Linistrator l 1

has been designated. The Licensing Suport System Advisory ctanittee vill '

be ex--:-d of the State of Nevada, the coalitice of affected units of local gcNau.. it in Nevada that served cm the negotiating nrmetttee, ICE, NRC, the Naticmal ctiv-s of American Iniians, the coalitica of naticmal envite.e.tal groups that served en the negotiating ocmaittae, ard other mar +=rs as the crmnissicn may frta time to time designata. Beanuse ICE is l now in the pim of designing the ISS, the Advisory Review Panel is ret yet available to prwide advice and r=er-andations to DOE. In the intaria r

period between publicatice of the prtponed rule ard ancihit of the  ;

t Advisory Panel by the ISS A&Linistrator, the ISS Advisory n=4ttaa vill  ;

perform the functicos of the Advisory Daview Panel set forth in prtposed l

sectica 2.1011(e). .

i i

It is anticipated that the DOE and NRC will antar into a Memoranin of i Understarding OCU), consistant with the requtite-us of the prW_ rule, i en the design ard deve1%.4 of the ISS. ,

l i

6 Proposed secticn 2.1011(d) sets forth the resp.nsibilities of the ISS A&ainistrutor including prwiding the necemeary perscrinal, matarlais, ard servions for the operation and maintenance of the ISS, ard entering the h==ritary material sutaitted gurisuant to pregomed secticn 2.1003 in searchable full text, as a propriata.

2.1012 Ctepliance.

Prtposed section 2.1012 establishes prwisicos to ensure ocepliance with the requirements of 9_W J, particularly the h=arit =*=iamien requi4MJ

, of g W section 2.1003. Dot may not autait the license aplicaticm for under Subpart J unless the ISS A&ninistrator certifies that toe is t

in substantial ard tirely ocupliance with prtpoemi section 2.1003. In atiiticm, urder propcmed section 2.1012(b)(1), re perscm may be grantad party or interested generrmental participant status in the hearing if it is not in substantial and timely ocupliance with the regairunents of prtponed  :

I secticn 2.1003. A perscm Nho is not in aabstantial ard timely ocuplianon at  :

the time specified for the =*=4mmien of petiticns to intervene or to beatne I

an intaristad gcwertwental participant, may late come into oospliarce ard be a&nittad to the hearing, ====ing they meet all the other rimpiruments in ,

prcposed secticn 2.10M cc 10 C7R 2.715(c) for nimmicm. However, persons {

a&tittad to the hearig un$er this petvisicn mast take the pc-r-ung as  ;

tiey find it. '!he Hearing Licensing Board will not antartain any ragmts frta such a persen to delay the prMing in ordar for that pem to  ;

ccryensata for time missed in the hearing. Prcposed secticm 2.1012(d)

. I

l ,

! l

(

I

{ pewides for the taruinetion or suspensica of an IAs par +14=nt's acomme 1

i ridits if it is in nanomplianos with ag applicable order of the  !

i

PP-TAcanos Application Licensing Board or the Nearing IJoensing Board.  !

! Nousvar, ary Ices of acomes under this section does not relieve an las '

1 par +1d='t of its respmaibilities in cumnacticm with the servios of  ;

1 -

l

pleadings under preposed Mim 2.1013 of this m&part. ,

i i

f~ 2.A013 Une of Las &aring adjudicatory proceeding. j l

Prtposed sectica 2.1013 establishes y.h for the electronic mataissica li

! of pleadings &aring the hearing, ce &aring the pro-license applicatica phase  !

for practice before the Pro-License Applicatica Licensing Board under , ,

i, k At sectica 2.1010, fx the elkb.ic trenmeissian of Board and 1 ,

i omonissica immaanaes and ceders, as wall as for cm-line mooses to the las l

&aring the hearing. t# ster prtponed sectica 2.1013(a) the Secastary of the l

{

4 t

i l Caesniasicm unintains the official docket purmaant to the rupiruments of 10 l 1 i

! OR 2.702. In this regard, escit potential party, party, or intarostad l gwertmental participant must mistit a siped gneper copy of each electrunic adjudicatory filing to the Secretary. 'Iha prepened rule gives the Secewtary l the flaatibility to establish the official docdest in either hard ocpy or t

)

electronic fare dependirg en the details of IAS desip and the recruda l nanagement regdruments of the hderal Arthives. Ab ent good cause, all {

i  :

l en&ibits tendered &aring the hearing sust have already been entered into the j i  !

las prior ta the crammencement of that portion of the hearing h the j eshibit is to be offwed. '

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

y ,

O  !

l i

2.1014

~

Into c l

Proposed sect a establishes the standards fcr intervention in the  !

HDf pr e M ing.

- PA W _ sectiet 2.1014 irwrporetae esveral of - the  ;

y ,

provisions currently in the 10 CFR 2.714' general standards for interventicm. 8 Accontingly, any pro /isiens of proposed secticri 2.1014 that remain unchangr4 '

i frte the 10 m L714 provizicms are to be int r ted according to the exf. sting practica. Prtpceed sectics 2.1014(a) requires petitions for interventice and propcoed enntanticos to be filed at the same time, as well 4

as petitions to participate under sectica 2.715(c) - both within thirty days afcar the notice of hearing. In additica to the factors now in 10 CfR l Sv714 (a) (2) , proposed secticm 2.1014(a) (2) requires the petitica to l l reference with particularity the specific %W material, or absence thereof, that provides the basis for the ocmtanticm, and the specific l

regulatory or statutory requis-eit, to which the ocmtentice is relevant.  ;

i

) 9 tis ocdifisic existing Ocamissicm practice in regard to cententions.  !

I

) Pnpesed secticm J.1014(a)(4) allows the mMing or amending of *z:mtanticms, t

! I including ocmtenticos based en the M 0 Staff Safety Evaluaticm WT. (SIR) l e contentions added or amended before the 4==rwce of the SIR will be  !

, l

avalmtad according to the factors for nentisell' filings in prtpceed sectico l l

l l 2.1014 (a) (1) . Ocotanticms bened cm informatice or issues raiaed in the SIR l i uunt be made within forty days after the issuance of tne SIR and will be  !

i i evaluated accortiing to the factors in 2.1014(a)(1). 'Ihe SIR is to be issued i i ,

within eighteen acntns after the license applicatice is dockstad. Any i l

i l

34 petiticos to amerd or add ocrrtanticos made scre than forty days after the immunne of the SER, in additica to the facters for ncmtimely filing in proposed section 2.1014( 4), must include a shcwing that the ocntantion involves a significent safety or erwim-,M issue .or miaan a material issue related to the performance evaluaticm anticipated by 10 CPR 60.112 or 10 CER 60.113. In this context, "mteriala may involve items that are material to descostratin vpliance with sections 60.112 or 113 but whicit in and of thermalvm may not ocmstituta a significant safety or

{

envimeital issue.

. Although pred section 2.1014(a)(4) places mame added restricticos cm the ggarding or adding of contantions otmpared to 10 CFR 2.714, the N4== ion believes that the early availability of hants through acos.s to :he ISS l

1 will facilitate the preparatien of timely and better based contenticns at I the cutset of the prra*44ng, as cxrpared to the traditional NRC licensing prraaiing where contanticra nust be prepared without the benefit of prior disowery.

l Proposed section 2.1014 (c) establishes the standards for permitting interventien in the HIM prr==9tng. Interventien is permitted as a mattar of right by an affected unit of local gwerranent as defined in artikn 2(31) 1 of the NWPA or by any affected Indian Tribe as defined in 10 CFR Part 60 of the Ctumissicn's rugulaticos. 'Ibe State of Nevada, like IDE or the NRC, is autmatically a party to the HIM prA, e==naim that a Nevada site is the subject of the DOE license applicaticn. All other petitims to l , _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _

V (

l intervene will be evaluated accordire to the factors in r --:_ :1 section 2.1014(c)(1) through (4).

2.1015 J$ peals.

Propced sectim 2.1015 sets forth the rM.tres for arpealirq himicos of the Pre-License Applicaticm LiceMW Board or of the Hearirq Licensing ,

Bad. Unliks the Wdrg ets pa.u:eas, cis frcan cep types of interlocutory orders, sucts as rulings cm the Wimmibility of contantions, must be filed within tan days, rather than at the ocmclusicm of the

. pic-:71irq.

2.1016 Hotions PW_ sectjen 2.1016 establishes the procedures for noticos practice in tht.HIN pr M ing. Dw proposed rule does not cmtain a provision similiar to 10 CFR 2.730(d) in regard to oral argunants cm motions. However, this mimmien is not intanded to change existing praction, i.e., requests for i oral argument cm substantive motiene are liberally grantad. It is within the discretice of the Board to allow arguments cm noticos under 10 CFR 2.753.

I 2.1017 Otzrputation of time.

1 l

4

r

- 36 =

Proposed section 2.1017 specifies the ccuputaticm of time for an act er an event for the IGN licensing g(-:- Hing. mar === of the availability of the al Lude transmission of pleadings throups the ISS, one day instand of five days is allowed for the transmissian of dcoanents in response to the service of a notice er other h= ant. ' mis will save substantial time

&zring the hearing. 'the use of el Lude transmissicm is addressed in proposed section 2.1013. If the Iss is urw le fee more than four accoms taars of any day that would termally be countad in the ocinputation of [

the time for filing, that day will not be ocuntad in the ocmputatien of l time. However, this would not include parieds of ISS unavailability & m to

^

a malfuncticm of the ISS participant's agiiM or to the operaticm of that acti:==nt. t l

l l i

t 2.1018 Discovery.

! l Proposed secticn 2.1018 specifies the scope and timing of discovery in the HIN licensing sc-: Wing. 'Ihe ISS provides the haant discovery in the l HIN licensing gc-:= ting, supplemented by the derivative discovery in

b _- -1

:1 secticm 2.1019. Discovery is limited to access to the haantary l

! material in the ISS; entry upon land for incpection and am=== to raw data; cral depositicms; requests fer *Micms; and informal requests for l informaticm. '!hese informal requests would be for the typa of informatica normally gathered through the use of written intarrogatories; 'Iberefore, the propened rule does not generally provide for the use of written intentgatories or depositicos qxm written goestions. Howw/er, if the

. - - . - - _ _ _ _ _ _ - _ . _ _ - - _ - - - - - -l

r ,

l

• P informal diamvery process does not satisfy a raquest for information, proposed 2.1018(a) (2) prwides a mechanism for the use of written interrogatories or depositicos won " 'm questicos, by ceder of a Discovery Master appointed under pc -- :ri mectico 2.1018(g). If no Discovery Master has been appointed, the Hearing Licensir' Board itself may consider these petiticos. Although informal d4=mvery may begin in the pre-license applicatico phase, an order ormpelling diamvery through written interrogatorias or through depositicos cn written questions can be issued by the Discovery Master or the Hearing Licensing Board caly after the license applicatico has been docksted.

i .

'Ihe required showirq of substantial need in regard to df amvery for an ISS participant's "representatives" in pmA secticn 2.1018(b)(2) does not include "ccnsultants" to a ISS participant, unless the consultant's respcosibilities are to assist in preparatico for litigaticn.

1 Proposed section 2.1019(c) empowers the Board to issue an order to protect a party frun @use of the discovery r. w. As noted earlier, the cbjective of the negotiated rulanaking is to provide for the effective review of and ,

hearing cm the DOE license applicaticn within the three year time period specified in Sectico 114(d) of the NWPA. Q:nsistent with this objective, sq-: ==4 sectico 2.1018(c) includes criteria to prevent abuse of the discovery prmaan fran frustrating this objective. In ruling en motions to protect a party frun a particular discovery request, the Board may consider

- - - . . . - . . _ _ _ _ . _ _ - _ _ _ _ _ , _ . _ . _ _ _ - - ._ .,,,-,m----___.m.____-

. \

any "undue delay" that would result fran the rHamvery request, as well as the failure to respond to a disocnery request. Under this critarim, the Board will rwiew any noticn for a protective .ar fran a par +1mlar discovery request, including a regaest for a written depositicm, to determine eether the request creates the potential for unreascnably interfering with meeting the three year schedule. men a party or an interested gcnermental participant ruascnably bv.? t - that the Board has not ruled in accordance with this rule and its underlying policy, it may seek review pursuant to directed certificaticm under section 0.718(i) of this part. The n=i=len itself may entertain such requests and will apply the criteria for granting directed certification liberally. The Hearing Licensing Board or Discx:very Mastar may also ocosider undue delay as.a. basis for granting a petitico for the use of writtan interrogatories or depositions cm written questions, under pW_ secticn 2.1018(a)(2).

1 i

In addition, prW secticos 2.1021 arri 2.1022, en the first and second pre-hearing conferences respectively, provide for the establishment of discovery schedulos by the Board. In octablishing these discovery l schedules, the Board m.ist ocnsider the objective of meeting the treee-year I

schedule specified in the NWPA, as well as the early availa):lility of informaticm made poscible by the Licensing Support Systra. Nrthermore, the

, Ebard should exercise all dbe diligence to ensure that diamvery is  !

ocmpleted within two years of the notice of hearing. Mcwever, this wou.1d l l

not prevent the Board fran establishing a schedale that provided for less  ;

1 l

--_,,._----,-,.__-,,-,e . - - - - - - . - - - - - - - - - - ,

,_,---,-------,,c---, - - - - - - - - - - - , - - - - - - - - -

than a cx:otirmous two-year period of discovery, or datamining whether any discovery is r==ma7 after the second pre-hearing omference.

PW_ secticn 2.1018(f) anticipatas the applicaticn of the traditional sanctions by the Licensing Board for failure to r+4 to a dimmvery request, including the 4==mnce of an order for a response or . answer to a discovery request.

2.1019 Depositims.

Frq=ad section 2.1019 provides for discovery through the taking of-depositicos. PrW section 2.1019 basically follows the content of the l

general depositico rule in 10 CPR 2.740a. However, in. W section 2.1019(i) provides for the derivative discovery of hmeats during the deposition. 'Ihis provision establishes requirinnents for the disclosure, and entry into the ISS, of material in a depcr-nt.'s possessico that would not be required to be initially entered into the Iss under proposed section 2.1003.

'Ihis includes perscnal records, travel vcuchers, speeches, preliminary drafts, ard marginalia. "Preliminary drafts" means any ncnfinal document that -is 'not a circulatei draft, i.e., en W11ch no formal, Unresolved objection or nonconcurrence has been made. "Marginalia" means harderittan, printed, or other types of notaticos added to a h ==nt, excluding underlining and highlighting.

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

40 -

2.1020 Entry tp m lard for iWim.

Proposed sectics 2.1020 establishes the gc ehus for parties to gain access to the land or property in t.u possession orwhul of another party or its omtractor for the purpose of inspectice and - to raw data.

However, this provisicm should not be construed as expanding any of the rights contained in Sectica 116 or Sectico 118 of the NWPA, or any W%'.r applicable statutory or rigulatory restricticos, related to sita investigaticm.

2.1021 First prehearirg conference.

PW_ section 2.1021 establishes a first pre-hearing ccmference in the HIH s ::'ing. 'Ihe first pre-hearing conference will identify the key i==== in the prMing, and omsider petiticms for intervention.

I 2.1022 Second prehearing conference.

Preposed secticm 2.1022 establishes a seccod pre-hearing conference in the HIM licensing sx714ng. 'Ihe second pzw-hearing conference is t'o be held not later than seventy days after the NRC staff Safety Evaluaticn Report is i == *1 'Ihe seccmd pre-hearing ocmference vill consider new or amarded contentions, stipulations and miminaions of fact, identification of witnesses, and the setting of a hearing schedule.

6

. - - - - - - - - - - , - .-v.-.. - -w, - . - .- ,y- ~ - -- ---------.m - - - - - - , , - - - - , - - -

41 -

2.1023 Inmediate effectiveness.

Proposed sectics) 2.1023 provides for an inmaritata affectiveness review of the Licensing Board's initial decisicn en the i===a of a w hoction authorizaticrt. 'Ihe Ctenission's existing regulaticrus in 10 CFR 2.764 do not provide for an i==44mte effectiveness review. Rather 10 CPR 2.764 requires a h4==ico decisicn on the substantive merits of the Licensing Board decisicm befort a c .uocticrt authorization decisim can be final.

t Pred sectim 2.1023 would authorize the Dilw:: tor of the NRC Office of Nuclear Material Safety and Safeguards to allow DCE to proceed with

. c . koction, === = 4 ng a favorable Licensing Board decisien, if the oc==i d=icn did not suspend the Licensing Board decisicn after its supervisory 4==itata effectiveness review, or the Appeal Board did not stay tle effectiveness of tha initial decisien urder 10 CER 2.788. 'Ibe Appeal l Board and the hinaion would then undertaka a review of the substantive merits of the initial Licensing Board dacisicn. T=munce of the wruuctico authorization under these circumstances would be the event that 6

tolls the time period for detamining whether the NWPA three year time frame for the decisicn en the w.Locticn authorizatico had been satisfiai.

l l .

Schedule i l

! In order to assist the Hearing Licensing Board in establishing a schsdule l

l for the HIR pE Aing that will facilitate meeting the timeframe specified in the NWPA for a Ctanission decisicri en construction authorization, the l

l .

. l l

l

)

l l

n=nimim has prepared the followirq model timeline. 'Diis timelina is intended for general guidance only, and is not intended to suggest any i

prM%iticn by the n==4uim on the merits of DOE's future license application.

Dgy Regulation Action t

0 10 CFR 2.101(f) (8) Fed. Reg. Notice of Hearing

, 2.105(a) (5)

-30 2.1014(a) (1) - Pet. to intervene / request for hearing, w/ ocntenticos 2.715(c) Pet. for status as interested gwt. participant (IGP) 50 2.1014 (b) Answers to interventicn & IGP petitlens 70 2.1021 1st Prihearing Otnference '

100 1st Prehearing Conference order: identifies participants in pr M 4- %,

admits antentions, and sets

i

. 1 1

)

i discovery ard other sches21.s 2.1018(b) (1) Depositicn discovery begins 2.1019 110 2.1015(D) Appeele fra 1st Prehearing ,

0:nference Order, w/ briefs 120 2.1015(b) Briefs in cypositimi to appeals

~

150 AB order ruling en aple frm ist Prehearing Conference Order 548 NRC staff 4== = SIR 588 2.1014 (a) (4) Petitions to amend ocotantions based cn SIR 608 2.1014 (b) Answers to petitions to amknd SIR-related contantions i

I l 618 2.1022 2nd Prehearing Conference 648 2nd Prehearing 0:nference l

ceder: rules en amended ccotantiens, sets any further diamvery schedula, and sets edadule for profiled tastbacny and haaring 658 2.1015(b) Appeals fran 2nd Prehearing c:nference order, w/ briefs 668 2.1015(b) Briefs in cgposition to a p la 698 AB order ruling cn appaalm frtan 2nd Prehearing Conference Order 700 2.749 (set by IB) Final Moticos for ==="f di p ition 720 2.749 Replies to final acticms for

==a7 di w ition .

730 Supp. Info. Discovery ocupleta 740 IB order en final moticos for ,

sunnary di g ition

750 2.1015(b) Appeals frta final mannary M-~itim order, w/ briefs 760 Evidentiary hearing begins 2.1015(b) Briefs in oppositim to appeals frta final ===naq M-=ition orders ,

790 AB order en appeals frta final sumary disposition orders 850 Evidentiary hearing ends 880 2.754 (a) (1) Applicant's proposed finiings 890 2.754 (a) (2) Other parties' (except NRC staff's) prtpceed findings 900 2.754 (a) (2) HRC staff's prtpceed findi$gs 905 2.754 (a) (3) 4plicant's reply to prcpceed findings l

I 995 2.760 Initial Decision l

i

- 46 -

1005 2.788(a) Stay noticms to AB 2.762(a) Noticas of Appeal 2.1015(c) 1015 2.788(d) Replies to stay actions 1035 AB ruling cn stay moticm 2.762(b) Appellant's briefs ,

1045 2.788(a) Stay motions to Ctanission 1055 2.788(d) Replies to stay moticos ,

I h

l 1065 2.762(c) Appellee's brief l 1075 2.762(c) NRC staff brief I 1095 2.1023 0:mpletico of 1995S and l i

Susp. Info. h t==len m pazvisory review; ctanissico ruling on any st'ay ,

motiCms; insame of was^ Mon authorizaticm; HWPA 3-year period tolled 1105 2.763 Oral argument cm agpeals

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

. I o

i 1

i 1165 Agpeal Board decisicm i l

1180 2.101! Petiticms fear &=miasien review 2.786(b) (1).

1190 2.786(b) (3) Replies to pecitirms 1250 h4=mim himicn f

'Ibpical Guidelinas

'Ibe following tcpical guidelines are to be used for identifying the h=antary material that should be subnitted by ISS participants for entry into the ISS under pW sectica 2.1003. 'Ibe tcpical guidelines will also be used by the Pre-License Agplicaticn Licensing Board for evaluating petiticos for a-a to the ISS during the pre-license applicatien phase under pW secticn 2.1008.

I. CMYDCRIES OF DOCDENTS .

- W cal i v its and analyses including these develcped by contractces .

- QVQC records including qualification and training ricords Deternal coi1+hce

Internal memoransa neeting nimtes, including cor/nac meetings, n==i==Im meetings Drafts (i.e., those subnitted for decisicn beymd the first level of management or similar criterien)

Crssi s ional Q's & A's "Regulatory" <h'unerrts related to HIM site selecticn and licetmiing, such as:

I Draft and final envimatal assessments 4

Site characterizatim Plans site characterizaticn study plans site charactat' aticn puw1 ss reports

- T=== resolution 1%m -t Rulmakings Public and agency hr. fits en th'waants Respcnse to public ermnants Envi m . atal Impact Statsmant, twsnant We ,

t

. W mant, and related references i l

Licorse Applicaticn (IA) , IA data base, and related >

referenous

'Ibpical reports, data, and data analysis i Roccanardaticn Report to President Notice of Disapproval, if subnitted" II. GDEPAL 'ICPICS

l l

l

1. Any h= ant pertaining to the locatim and potential of valuable natural resources, hydrology, gec5 h ysim, tactmim (including volcanism),

gecnorphology, maisenic activity, atmic ene :y defm activities, prminity to water supplies, prtadmity to populatims, the effect upm the rights of users of water, prtadmity to cuyc.swd:s of the Natimal Park System, the Natimal Wildlife Refuge Systen, the Naticmal Wildlife ard Scenic River System, the National Wilderness Preserwtiv System, or National Fbrest Ianis, proximity to sites where high-level radioactive waste and spent ruclear fuel is generated or tamporarily stored, spent fuel and nuclear wasta transportaticm, safety factors involved in moving spent fuel or ruclear wasta to a ripository, the cost and impact of transporting spent fuel and nuclear wasta to a repository sita, the advantages of regional distribution in siting of repositoties, and various geologic wa h in which sites for repcsitories may be located.

2. Any docu:nent related to repository design, siting, mo^maction, or cperation, or the transportation of spent ruclear fuel ard high-level nuclear wasta, not categorized as an "excluded h==nt", generated by or in the possessicn of any contractor of the Depau.^et of Energy, the Nuclear Regulatory 0:enission, or any other party to the HIH licensing pong.

3. All doczments related to the physical attributes of the Basin and Rarge Province of the continental United States.

4. Any docu::ent listing ar4/or ocmsidering any site or locetico other than Yucca Mountain as a possible locatico for a high-level nuclear wasta repository, or any alternative technology to deep geol. 4 M--_1.

5. Any h ==rit analyzing the effect of the developnent of a repository at Yucca Mountain cm the rights of users of water in the Artnagosa greurd-water basin in Nevada.

t

6. Any haant analyzing the health and safety irtplicaticos to the people ard enviiw-wit of the trar+dation of spent fuel between locaticos whers spent fuel is generated or stored and Yucca Mountain, Nevada, or any other site ncninated for repository characterizatico on May 28, 1986, including, but not limited to:

a. Any. analysis of possible human error in the manufacture of spent fuel casks; *

b. Any analysis of the actual pcpulation density alcog all of any specifle projected routes of traval;

c. Any analysis of relaaaan frta any actual radioactive material .

transportatico incidents;

d. Any analysis of the energency respcnse time in any actual radioactive materials transportation incident; i

e. Any actual -biant data cm any rific projected routes of travel;

f. Any calculaties ce projectims of the probabilities of  :

I accidents on any specific projected routes of travel; .

g. Any data cm the physical - r w ties ;ce corstairment capabilities of spent fumi casks W114 have been used or whi& em Weetad to be used at any hyM.stical ce actual projected rupesitary; ,

t

h. Any analysis of medaling of the contairment capabilities of

• spent fuel casks under a stress scenario; .

1. Any analysis or ocuparison of spent fuel casks projected to be used against the spent fuel cask certificatica stardards of the Nuclear .

Regulatory h 4== ion;

j. Any analysis of the contalment capabilities of spent fuel i 4 an M i

period. i t

l

7. Any h= ant analyzing ce ocuparing Yucca Mat:ntain, Nevada, with any other site in the same gechydrologic setting. l

. l

s. Any document relating to potential interfarance or irsptibility [

l between a Yuoan Mountain, Nevada, high-level nuclear waste repository and l

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

atcanic energy defense activities at the Nevada '14st Site and Nellis Airforce bene.

9. Any h=aant related to the land status, une or ownership of Yucca Mountain, Nevada.

10. Any document ceneidering or analyzing the attributas or detrimenta of any engineered barrier tecn the radicruelide isolaticn cinpebility of Yucca Mountain, Nevada, or any other sita ocneidered.

11. Any Manant evaluating the effect of extended fue] turn-up an

~

Yucca Mountain, Nevada's adequacy as a repository site for MW 1 of spent fuel or upcn the design of any such theoretical repository.

12. Any M waant analyzing or investigating the potential for discharge of radionuclides into the Death Valley National Morument.

i

13. Any h=aant analyzing the zwcharge of the urderlying saturated i scos or the hydw-dactivitiy of the unsaturated scos at Yucca M:untain.

14. Any docLment ocntaining any data or analysis of volcanian in the  !

geologic setting of wriich Yucca Mountain is a part. .

l l

j 15. Any h=aant containing any data or analysis of tactenio events at f i l Yucca Mountain, or pertaining to the tectcnic framework of the Yucca i ,

- 53 '

Mountain area or any h= wit containirq any data or analysis of faults with or without surface expressicri in the area of M:x:a Mountain.

16. Any decanent ocritainirq instructicris or other limitaticiis cm) the socpe of ivork to be parformed by Department of Enargy perscrinal or contractors' perscrinal.

I

17. Any 5% pertaining to preventica .or cuhEl of human intrusion at the. Yucca Mountain site.

III. SPECIFIC TOPICS -

1. 'Ihe Site A. I.OCATICH, GDERAL APPEAPANCE AND TIRPAIN, AND PRISDir USE B. GIDIIGIC CCNDITICNS

1. Stratigraphy and volcanic history of the Yucca Ituntain area

a. Caldara arvoluticn and genesis of ash flows

b. Tisbar Mountain tiff

c. Paintbrush Tuff

d. Tuffaceous beds of calico Mills

a. Crrstar Flat tiff 1

f. Older tuffs  ;

g. sedhnentary units

1 l

54 --

h. basalts

2. stzucture

3. maimicity

4. Energy ard ainaral rescurces

a. Energy resources

b. Metals

c. Ncrunstals

5. Palecritology

6. Mineralology

^

7. h w pelogy ,

~

8. Tectonics

a. FaultinJ

b. Stress

c. Uplift / subsidence i

d. Volcanism '

C. HYINCUXIIC CDOITICNS i i

1. Surface water ,

2. Ground water

a. Grcund water numment

b. Grturd water quality

3. Present and projected water use in tFA area

4. Groundwater resources

5. Climatolgy  ;

y .

55 -

6. Metamicgy D. GEOCHIMIlmtY

1. Rock dundstry of the overlying and underlying host mits

2. Water chemistry of maaturated or saturated scuss ,

3. Alteratim

4. Retardation and Lar-pw.t.

E E. DWIR2tENmL SEITDG

1. Iand use

. a. - Federal use

~~

b. Agricultural i

1. Grazing land

11. Crepland

c. Mining  :

i

d. Pecreation  ;

e. Privata and ccrrutreial develed.  :

2. h kial and aquatic ecosystems  ;

l

a. Terrestrial vogstatim -

1. Iarroa-Ambrosia I

11. Iarrea-4M or Iansa-Djcluut 111. Cblecgyns iv. Mixed transition ,

v. Grassland-burn site  ;

r e

~ . .

56 --

b. h-klal wildlife

1. Mammals

11. Birds 111. Reptiles

c. W al-interest species ,

d. Aquatic ecosyntass

3. Air quality and weather ceniiticms: Air quality

4. Noise '

5. Aesthetic resources

6. An:haeological, cultural, and historical resources

7. Radiological background

a. M mitoring program

b. Dose amamar.nsnt F. 'IPNGPCRDTICH

1. Highway infrastructure and current use

2. Railroad infrastructtria and current use l

s G. SOCIOE)CINCHIC CINDITICNS

1. Econcaic ceniiticns

a. Nye county ,

b. Clark Ocunty

c. Lincoln county

d. Methodology

2. Populaticn density and distributicn i

l

I l

. i 57 --

a. R:pulaticms of the Stata c"' ' vada  ;

i

b. Pcgulatice of Nye Ocunty

c. Populaticm of Clark Octaity

d. Populaticm of Lincoln Ocurity

3. h mity services

a. Housing

b. Rhacation f

c. Water supply ,

d. htar treatment

e. Solid wasta

. f. Energy utilities ,

g. Public safety services I

h. Medical and social services

1. Library facilities

j. Parks and recreation

4. social ocrditicos

a. Dcistirg social organizaticm and social structure l

1. Rural social organization ard structure

11. Social organization and structure in urban clark ommity [

b. Culture and lifestyle

1. Dural culture i

11. Urban culture

1. Ccammity attributes r

d. Attitudes and pezueptions twant the repository l

t

[

58 --

5. Fiscal ard govm /4 structure

2. Ekpected Effects of the Site Characterizaticm Activities A. SI'IE ORRACHRIZATICE ACTIVITIES

1. Field shdian f

a. Exploratory drilling r

b. Geophysical surveys

c. Geologic magging

d. Stardard cperating practices for reclamation of areas

. disturbed by field studies trenching ,

i

2. Exploratory shaft facility j

a. Surface facilities

b. Exploratory shaft and undergrcurd workings

c. Secondary egress shaft  ;

d. Exploratory shaft testing program l

e. Final di=~iticm  ;

f. Standard cperating practices that would minimize !i potential ernim .tal dasage i

3. Other studies

a. Geodetic surveys

b. Horizontal core drilliry

c. Studies of past hydrologic corditiens

d. Studies of tactenics, seismicity, arx1 volcanism

.i'

e. studies of mat =nicity ird. aced by weapons tastirg

f. Field experiments in G 'lumal facilities

g. h.m shdian

b. Hasta package design, tastirg, ard analysis B. EXPECITD D'fECIS OF STIE 093AC11RI7ATICM '

1. D;ected of? ta cm the erwirtroent

a. Geology, hydrology, land use ard surface soils

1. Geology

11. Ifydrology

. iii. Iand use

~

iv. 9 M ace soils

b. Ecosystass

c. Air quality

d. Noise

e. Aesthetics

f. Arthaeological, cultural, and historical resources

2. socioecen:mic and tra.wtaticut ceniiticsis

a. Econcaic ocnditicms

1. Employsant

11. Materials

b. Pquietion density and distrib:tica

c. h e.ity services

d. Social oeniitiens

e. Fison1 ard genezmental structuru

4 60 -

f. Trar W ation

3. M:rkar safety

4. Irreversible ard irrc' levable ocastitaant of rumources i

r P

C. AIGNATIVE STIE 09@ACIIRI7ATICH ACTIVITIES i

i

3. Regional ard Iccal Effects of ?" "bg a Depository at the Site i

1 A. 'IHE REPOSIM

1. Construc. tion

, a. 'Ihe surface facilities 4

i

b. Acmss to the mihanTace

c. '2he subsurface facilities  !

d. Other w ." M en

i. Access reuta ,

ii. Railroad 111. Mined rock haniling ard storage facilities iv. Shafts ard other facti ties .

t

e. Utilities

2. Operations >

a. Engl W phase

1. Hasta receipt

11. Hasta espl %

b. Caretakar phase .

3. Retricvability l

e

- , _ , - - . . . -,-,,.,,,--,.---1-n , ,

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

4 .

= 61 - .

t l

4.' Dar==i==ioning and cicazze

5. schedule and labce force

4. Mutarial and :..wa.irce regulzumtrv-  !

i

8. EXPECHD EFFEC 35 W '30: PHYSICAL 1mm i l

1. Geologic impacts . . ..

, 2. Hydrologic 4 W 2 s

3. Iand use

4. Boosyntass

5. Air quality

a. Mierst airWity regulations [

i

b. Omstruction >

i

c. operatic.ns ,

i  :

l d. Deccasaissioning and closure 1 l

6. Noise .

t

a. G. i d cm '

i

b. Operations  !

i

c. n=rv - i== % ing and closure .

j

7. Aesthetic rumources

8. Arthmoological, maltural, and historical resources . I

9. Radiological, affects  !

l

a. omstruction l

b. Operation  !

1 I

i. Workar aw_n during normal operation

11. Public expomirs during normal aparation j l

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

62 -

111. Accidental exposurs &trirq eparatim C. EXPECIID EFMDCIS OF 'IRANSPCRDCICE ACTIVITIES

1. Trar+=tation of pecple and natarials

a. Highway impacts

1. Construction

11. Operatims lii. Deccmdssionirq e

b. Railroad impacts

2. Transportation of ruclear wastas l

a. Shipnant and routirq ruclear wasta shipments I

)

- 1. National shipnant and routing

11. Regicnal shiposat and routiry

b. Radiological inpacts

1. Naticnal impacts

11. Regicnal inpacts ,

iii. Maxhnally exposed individad impacts

c. Nonradiological impacts

1. Naticnal impacts

11. Regional impacts

d. Risk samary

1. Natienti risk mannary

11. negicnal risk ===a7

e. Custs of ruclear wasta transportatico l

f. hargency response 1

.c-D. EXPECI1lD EFFECIS CN SOCICEEN3GC 02iDITICMS

1. soonzic ocrditicos

a. Imbcr

b. Materials and rescurces .

c. Cast

d. Inocne

e. Iard use

f. marina ,

2. Population density ard distributicrt

3. Ckasunity services

a. Hausmg

b. Bbcation

c. Watar m g ly

d. hter treatsant

e. Public safety services

f. Medical services

g. Transportatim

4. Mal acrditiczis

a. Mai .h and social organizaticz)

1. Standard effects en ~4=1_ structure ard F ial organizatics)

11. Special effects cz) w ini structure and social organizaticm

b. Culthcu and lifestyle

c. Attitudes ard percerties

64 - 1

5. Fjacal o.vditicos ard goverment st:ructure

4. suitability of the Yucca Mcuntain. site fee sita charactarizatica and for Duvelepsent as a Rapository  ;

A. SUTIABILITY OF '!HE WCCA PCufDJN STIE PCR EEM2.DINDfr AS A l REPOSI M EVAHATIN AGAINSF DE GUIIELINES 'IHAT DO HCTI REQUIRE STIE ORRACIERIZATICH

1. Technical guidelines ,

n. Postclosuru site ownership and -hul

- 1. Data relevant to the evaluation

11. Favorable conditim 4

iii. Potentially adverse ocnditica iv. Evaluatim and cx:rclusica for the qualifying conditica cm the postclosure sita ownarship and ll control guidelines

b. Pcpulation density and distriht. ion ,

i. Data relevant to the evaluatice i.. Favorable ormditions ,

i 111. Potentially adverse ocnditiens iv. Discpalifying ocnditica

v. Evaluation and acrclusica for the cpalifying ccrdition en the petulation density ard distrihition guideline

. c. Proclosure site ownership and control i

4

---

w - - - - - - - - -

-- --- , - - - , - , - - - - - - - - - - . , , - _ . , , , - - - . - - , -.,--,,,---,---,-n.-e-,---,---,,, _-,-.- ---- - v-.,e--e,7em

65 -

1. Data relevant to the evaluation

11. Favorable ecoditicn lii. Potentially adverse omditicm '

iv. Evaluation and omclusicn for the galifying

• condition cm the procleaure site ownership and ocntzel gatene

d. Meteorology ,

i. Data relevant to the evaluation

11. Favorable conditicn 111. Potentially adverse ecodition iv. Evaluatico and etnclusicn for the qualifying

-~

ocnditicn en the seteorology guideline

e. Offsite installatims and cperaticos L

1. Data relevant to the evaluaticm

11. Favorable conditicos 111. Potantially adverse cerviiticos iv. Disqualifying condition

, i I v. Evaluation and ocmclusien for the qualifying l l

ocnditica cm the offsita installaticos cperations l guideline '

f. Envite ;. ital gality

i. Data rulevant to the evaluaticn

11. Favorable ecoditicms l 111. Potentially adverse conditicas .

l I

iv. Disqualifying conditions i

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

66 - .

v. Evaluation and omclusien for the qualifying omdition en the erwim Aml Wity @ lines

g. socioecenaic L=~t=

1. Data relwant to the evaluation

11. Favwable condities

• iii. Potentially adverse condities ,

iv. Disqualifying ocmdition

v. Evaluaticn and conclusicn fee the qualifying condition en the socioeconcatic guideliEs J

h. Transpectation

i. Data relevant to the evaluation

11. Favorable conditicru, .  !

iii. Potentially adverse ccrditions '

1 iv. Evaluaticm and conclusion for the qualifying condition cm the trarwtatico guideline

2. Proclosure Systen l

a. Proclosure systant radiological safety i l

1. Data relevant to the waluation ,

11. Evaluaticn of the Yucca leuntain site i iii. Conclusica for the qualifying ccmditicm on the i proclosure system guideline radiological safety

b. Proclosure systant envircruent, soci h M cs, and transportation

1. Data relwant to the evaluation ii. Evaluaticn of the Yucca Mxntain ' site 1,

l l

- 6'1 -

111. Conclusics for the P1441ng ocmdition cm the proclosure system guideline erwircreant, socio- .

e accrranics, and transportatism

3. Postclosure technical  !

a. Gechydrology

1. Data relevant to the evaluaticm i

11. Favorable ocmditions iii. Pctantially adverse ecmditicms iv. Diacpalifying ocndition

(

v. Evaluatica and ocmclusica for the cpalifying .  !

condition cm the postelceure ge@rology guideline .

b. Geochemistry

1. Kata relevant to the evaluatica

11. Favorable conditicms 111. Potentially adverse conditicms r iv. Evaluatica and conclusica for the cpalifying (

i:

conditico en the postclosure geochemistry guidelina i 1

v. Plans for sita characterization  !

c. 3eck characteristics

• F T

I

1. Data relevant to the evaluatica [

, t

11. Favorable ocmditicns i

iii. Potentially adverse ecmditicms iv. Evaluatice ard ocmclusica for the cpalifying EE O [t d O ,

I NMM [

r l I i

t

?

c

l 1

d. Climatic changes

i. Data relevart 5 +he evaluatica

11. Favorable omditions 111. Potentially adverse ccmditions iv. Evaluatics and conclusien for the climate changes t

q=11 eying ccmdition

e. Erosien

i. Data relevant to the evaluatico ,

11. Favorable acrditions i

111. Potentially adverse acrditions .

iv. Disqualifyirq conditien ,

v. Qualifying ocni Acm

f. Dissolutica ,

, i. Data relevant to the evaluation t

11. Favorable cxmditica lii. Potentially adverse ocndition iv. Din =11 tying cxrditica j

v. Evaluation and conclusien for the qualifying j ceditico cm the etclosurs and M eanlutico i piMaline *

g. Tectcmics j i

1. Data relevant to the evaluaticm  ;

11. Favorable conditicm 1 111. Potentially adverse ocruiticm ,

l iv. Disqualifying conditir l 4

e-- w,,m . - ,- - - - - , - - - , .-,% e-----%--.~.--,.-y.--e-,.-.---v- --=----,---.,---ww,v.---- .-w--,.--. -,--m,---.-,,.-

V. Evaluatim and emclusicm for the qualifying ocniitica cm the postclerm tactadca ehline

h. manan interference: natural resources and site owner-ship and control

i. Data relevant,to the evaluation

11. Favorable ocnditions lii. Potentially adverse conditiva f

iv. Diaqualifying omdities

v. Evaluation and ocnclusica for the qualifying I

amdition en the postclosure tannan interferunos and natural resources teamical guideline .. .

4. Postclosure system

a. Evaluaticm of the Yucca ikuntain Sita

1. Quantitative analyses  ;

1

, ii. Qualitative analysis ,

I l

b. Sununary ard ecoclusica for the qualifying ocnditicn on j the postclosure system guideline

5. Proclosure tacimical [

a. surface characteristics ,

i. Data relevant to the evaluatico -

11. Favorable ocnditions >

111. Potantially adverse ocoditicas  !

iv. Evaluation and conclusicm for' the qualifying [

i co'ndition on the proclosuru surface characteristics [

l guideline 1 l

i

~

b. Rock characteristics

1. Data relevant to the evaluatism ii. Favorable conditicns. .. ..

iii. Potentially adverse acrstiticos iv. Din =11fying acrditicn

v. Evaluaticn and conclusicn for the qualifying ocndition cm the proclosure rock am acteristics guideline '

c. Hydrology

1. Data relevant to the evalue.tJcn

11. Favorable ,cmditicms -

~

iii. Potentially adverse c:mdition -

iv. Disqualify 1rg ocndition

v. Evaluation and ocnclusien for the qualifying ocmdition cm the proclosuru hydrology guideline

d. Tectcnics

1. Data relevant to the evaluation

11. Favorable ocmditicn 111. Potantially advmes ocoditions iv. Disqualifying corditien

v. Evaluation and ocnclusion for the qualifying ocoditico cm the precicours tactcnics guideline

6. Ease and cost of siting, w.^Mco, operatico, and closure

a. Data rulevant to the evaluaticn

b. Evaluation l

l

c. Conclusicms for the qualifying ocmdition cm the anse ard

^

cost of siting, - &, operaticm, and c3mure ad a.m.

t

7. Omelusion'regarding suitability of the haeca McLatain site for sita characterisation 4

i.

1 B. PERFER9M 2 ANADf5ES

1. Proclosure radiologimi mafety asseamments >

j a. Proclosure radiaticm protection standards

b. Methods for proclesqe radiologimi assesment i 1. Radiological asseamment of - ^Mm activities I

j ,

11. Radiological assessment of namm1 wet.icns -

l iii. Radiological assessaant of accidental releases i

2. Preliminary analysis of postclosure performance

! a. Subsystam descriptiens i

1. Engineered barrier subsysten l ii. 1he natural barrier rJheystaa 1

b. Preliminary performanos analyses of the major +-.'J of the system

! i. The wasta package lifetina

11. Anlease rata frts the engineered barrier subsystem

c. Preliminary systaa performanos description and analysis

d. onpariners with regulatory perfonnance objectives

e. Preliminary evaluation of disruptive events: disruptive natural processes

72 -

f. Conclusicos

5. Transportatica A. REGUIATICNS REIATTD TO SAHDUMCS

1. Safeguards

2. Ocnclusica ,

t B. PACN GINGS

1. Packaging design, testing, ard analysis

. 2. Types of F W ing

- a. Spent fuel

b. Casks for defense high-level wasta ard West Valley ,

high-level wasta

c. Casks for use frta an MRS to the rupesitory I

3. Possible future devel w .ts

a. M M fic regulaticms f

b. CNerweight truck casks  !

c. Ibd ocnsolidatica l

d. Advanced handling m @ -

{

e. Ctabination storage /shi; ping casks  !

C. PCn1NTIAL HAZAR[E OF 'IRANSREDCICH i

1. Potential consequences to an individual exposed to a ==vN= -

i extant

a. Normal trar w i.

i l

6

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

I

b. Arv iriarits

2. Potential ocnsequences to a large pcpdaticn from very severe trimsportatico amiriarit:s

3. Risk = W

a. Outline of method for estinating populaticm risks

b. otsputational unials and methods for populatico risks

c. Changes to the analytical unial s and methods for pepdatica risks ,

d. Transportation seemries evaluated for risk analysis

a. A--=rtien about wastes

f. Operational consideraticos for use in risk analysis g .' Values for factors namiari to calculate pcpdatico risks

h. Results of population risk analyses

1. Uncertainties

4. Risks associated with defective cask cx:nstzu ticm, lack of gality assurance, inadequata maintenance and hanan error D. CCST ANAIXSIS

1. Outline method

2. Assumpticms .

3. M la l 4. cost estimatas l

5. Limitations, of results l

1 l E. IRRE 'IRANSPORT 'IO REPO6TIERIES 1

l l

9 l

F. EFTECT OF A M2EICRED REIRIEVABIE FICRAGE TACILIIY W

'IRANSRRIATIN ESTD935 G. EF77CF OF AT-REACIER 300 Cm90LIIATIW W 'IRANSRRIATICH E! RID 9MS l H. CRITERIA FCR APPLYDG 'IRANSPCRDCIW GUIII22NE I. DOE RESPCNSTATTJTIES FtR 'IRANSPCRDTICH SAFEIY ,

1. Prenotificaticn

2. Emargenef respmse

, . 3. Insurance coverage for transportatica accidents O

f J. !ODAL MIX

1. Train shipnents

a. Ordinary  :

b. Dedicatad train  ;

2. Truck shipments  ;

a. Imgal we1 #

b. Overwei #

~

l Dwirci Mal IWact: Categorical Exclusim l

'Ibe NRC has detarmined that this prtposed rule is the type of action i hibed in categorical exclusion 10 C2R 51.22(c)(1). Dw.riifore, neither i

i l- .

i

an erwircreantal iM statament nor an erwircreantal assessment has been l

prepared for this proposed rule.  !

Papescrk Ra&actim Agt M l 1

i l

'this propened rule does not ocritain informaticm collection re@irements l l

l that are subject to the Paperwork Re&acticm Act of 1980 (44 U.S.C 3501 et j M .).

i ,

i t

,Raoulatory Analysis  ;

a ,

i ,

i

'the DOE analysis of the oosts and benefits of the IAS (U.S. Department of i

? l

Energy, "Licensing PW System Benefit-Chat Analysis" July,1988) and l f ocupanion DOE apts ("Preliminary Heads Analysis;" "Preliminary Data Scope Analysis;" and %--f =1 Desip Analysist") are available for inspection f

)

' in the NRC Public Document Roan, 2120 L Street NW, lemahington, DC. Single

) copies :ney be obtained frcm Francis L Camaren, Office of General counsal, f a  !

U.S. Nuclear Regulatory Ozmission, leashingte DC, 20555; 'hlegiums: lt

! (301)-492-1623. [

5 4

t I

l

! pagulatory Flexibility Analysis  ;

i  !

' f

! In accordance with the Regulatory Flexibility Act of 1980, (5 U.S.C.  :

605(b)), the omaission certifies that this rule will not, if prtmulgated, have a significant econ mic impact cm a substantial nunter of small 1 -

, i l

i

(

1

. . . _ - - . - - , - - ~ - . - , , , . - - - . , . . _ _ _ . . - - . - - , _ . _ . - _ , ,,,., - , -n_-, n - ,

e entities. She prtyceed rule affects par +iai-ts in the M= ion's HDi i

licensing proceeding. The substantial majority of these par +1aip 'ta do not I sall within the scope of the definition of "email entities' set forth in the Regulatory Flexibility Act or the asall Basiness size standards est cut in regulaticms issued by the maall susiness A& ministration at 13 CNR Part 121.

% hfit Analysis 3

i l The NRC has detarmined that the backfit rule,10 CFR 50.109, does not apply to this pecposed rule and, therefore, that a backfit analysis is not j required for this propened rule becunase these amen &nents do not imolve any wisions Wticts would impose backfits as defined in 10 C2R 50.109(a)(1),

i 4

List gi SMeets 1D 19 52B 2hti 2 l

i j Administrative practice and i h, Antitrust, pfpro&act material, classified information, Dwircreantal protection, naclear saterials, miclear

) power plants and reactors, Penalty, Sex discrimination, source material, I

] Special raaclear material, Masta treatment and di& 1.

I l Fer the reasons est cut in the penamble and under the authority of the j Atcaic Energy Act of 1954, as asarded, the Energy Reorganization Act of

1974, as amarded, and 5 U.S.C. 552 and 553, the NRC is prtposing to adcyt i

! the following anen&nents to 10 CFR Part 2.

• I

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

l

i PARr 2 - RAE OF PRACTIM PCR EDESTIC LIGNSING N g i

1. L.a authority citaticm for Part 2 contimes to read as followet l l'

l l l

AUDER1W: Sets. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. ,

2201, 2231); sec.191, as amended, P@. L 87-415, 76 Stat. 409 (42 U.S.C.

I 2241); rv. 211, 88 Stat.1242, as amended (42 U.S.C. 5441); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 64 ,

f i

Stat. 930, 932, 933, 935, 936. 937, 938, as amended (42 U.S.C. 2073, 2092, l l I l 2093, 2111, 2133, 2D4, 2135); sec.102, Pub. L 91-190, 83 Stat. 853, as

t i meended (42 U.S.C. 4332); sec. 301, SS Stat. 1248 (42 U.S.C. 5471). 7

] Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, l J

l 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C.

I 2D2, 2133, 2134, 2DS, 2233, 2239) . Section 2.105 also issued urider. Pub.  ;

r L 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued (

1 m$er secz. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C.

1 I '

I 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5446) . Secticris 2.600-2.606 also issued under sec.102, Pub. L 91-190, 83 Stat. 853, as amended (42 (

l U.S.C. 4332). Sections 2.700s, 2.719 also immed under 5 U.B.C. 554.

) Sectists 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section f

?

2.764 and 'Inble 1A of Agpeniix C also immed under secs. D5,141, Pub. L. t

{

i 97-425, 96 Otat. 2232, 2241 (42 U.S.C. 10155, 101(1). Sectica 2.790 also [

p 1

! im=M urv$er sec. 103, 68 Stat. 936, as amen $sd (42 U.S.C. 2D3) and 5 i  !

U.S.C. 552. Sections 2.800 and 2.808 also imm M under 5 U.S.C. 553.

4

) i i  !

l

\

l .

j

Sectics 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) . P5M K also lasued trder sec. 189, 68 Stat. 955 (44 t!.S.C. 2239); sec. 134, Pub. L 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 4, Pub. L.91-560, 84 Stat.1473 (42 U.S.C. 2135) . 4pendix B also issued tmder sec.10, Pub. L.99-240, 99 Stat.1842 (42 U.S.C. 2021b et seq.) . ,

4

2. Section 2.700.is revised to read as follows: l d2.700 Socpe of mipart.

% general rules of 'his subpart govern s -Mire in all adjudications j initiatari by the immunce of an order to show cause, an order pura: ant to section 2.205(e), a notice of hearing, a notice of prtponed acticn pursuant to sectico 2.105, or a notice issued pursuant to secticn 2.102(r$)(3). 'Ihe

• I g --Mire applicable to the pWing cm an applicatica for a license to l receive ard possess high-level radioactive wasta at a geologic ripository operations area are set forth in subpart J of this part.

i l

t 1

3. A new introductory paragraph to sectica 2.714 is ad$sd to read u i follows: l d2.714 Intervention. f i

o  :

79 -

With the exception of license 4plicatin dockstad under subpart J of this l

Part, l

e e e e e  !

I i

4. In section 2.722, par.>p,'. (a)(4) is a&$ed to read as folicws:

t 4 ,

i 2.722 S - 4=1 assistants to the presiding officer.  ;

r (a) * *

• 2 . - L

(4) Disecary Master to rule en the matters v ified in secticri [

2.1018(a)(2) of this part.

l L

l l i

e e e e e ,

i l

l

5. In sectica 2.743, par,4. (f) is revised to rwed as follcust ,

I d 2.743 Evidonos. ,

! l i

l I

l t 1 I ,

?

- - ~ , . - , - . ---~~__--..w-_ -

,-__-----__-_-_.-,,---..w-,-. _ , _ _ _ _ _ . - , . . - _ - . , _ _ - . , _ _ - - - , ,

4 (f) Exhibits. A written awhibit will riot be roomived in evidence unless the original and two copies are offered and a copy is furnished to each party, ,

i or the parties have been previously furnished with ogies or the presiding ,

l officer directs otherwise. Se presiding officer any permit a party to replace with a true copy an original h=arit a&mitted in evidence. Exhibits in the prMing m an applicatim for a license to reasive and possess l I

high-level radioactive wests at a geolog... pository operatione '

area are i I

governed by secticn 2.1013 of this part. -

I i

l d 2.764 (Amended) i

6. In secticn 2.764, paragragh (d) is removed and reserved, j i

i I

7. In Part 2, a new Subpart J is addai to read as folicwet  !

I

(

1 1

f l

l f

_ . . . . . . _ _ _ , - _ -~.,- _ ____ _ _-_______.I

4 I

l 10 CFR Part 2 - subpart J Table of Contents f

i 2.1000 scope of subpart. [

2.1001 Definitions.  ;

I 2.1002 High-level Waste Licensing suppor; " 2en. l i

2.1003. submission of material to the LSS. ,

i 2.1004 Amendments and additions.

i 2.1005 Exclusions.

2.1006 Privilege.

271007 Access. I

2.1008 Potential parties.

i ,

2.1009 Procedures.

. 2.1010 Pre-License Application Licensing' Board.

2.1011 LSS management and administration. 7 a  !

i 2.1012 Compliance. ,

f

2.1013 Use of LSS during adjudicatory proceeding.  ;

l 2.1014 Intervention.  !

l

2.1015 Appeals.

• i 2.1016 Motions 2.1017 Computation of time.

L 2.1018 Discovery. i l

2.1019 Depositions upon oral examination and upon written questions. l f 2.1020 Entry upon land for inspection and other pur;xists. f

! t E

i i I

. l e r.,,--. ~ . -,-- -,,--.*r - - - - - - . , -.,,-.--- -. ,, - - e ww-.m..-.

m-,.- w-e m - - -w-- m -- - %-, - .

i 2.1021 First prehearing conference.

2.1022 second prehearing conference.

2.1023 Immediate effectiveness of. initial decision.

2.1000 Scope of Subpart.

The rules in this subpart govern the procedure for ac,'inations for a license to receive and possess high-level radioIactive  !

waste at a geologic repository operations area noticed pursuant to section 2.101(f)(8) or section 2.105(a)(5) of this part. The procedures in this subpart take precedence over the 10 CFR KGbpart G, rules of general applicability, except for *SJ following provisions: 2.702, 2.703, 2.704, 2.707, 2,709, 2.711, r

2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, 2.732, j 2.733, 2.734, 2.742, 2.743, 2.749, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761, 2.762, 2.763, l 2.770, 2.771, 2.772, 2.780, 2.781, 2.785, 2.786, 2.787, 2.788, and 2.790.

. I 2.1001 Definitions. l l

"ASCII File" means a computerized text file conforming to the American Standard Code for Information Interchange which represent characters and symbols. l t

h 5

-_r.

- a3 -

"Bibliographic header" means the minimum series of descriptive fields that a potential party, interested governmental participant, or party must submit with a document- or other material. The bibliographic header fields are a subset of the fields in the full header.

"Circulated draft" means a nonfinal document circulated for supervisory concurrence or signature in which the original author or others in the concurrence process have non-concurred.

' A "circulated draft" meeting the above criterion includes a draft of a document that eventually becomes a final document, and a draft of a document that does not become a final document due to either a decision not to finalise the document or the passage of a substantial period of time in which no action has been taken on the document.

"DOE" means the U.S. Department of Energy or its duly authorized representatives.

"Document" means any written, printed, recorded, magnetic, grap. hic matter, or other documentary material, regardless of form or characteristic.

"Documentary material" means any material or other information that is relevant to, or likely to lead to the discovery of

i i

I l

information that is relevant to, the licensing of the likely j candidate site for a geologic repository..The scope of

^

documentary material shall be guided.by the-topical guidelines

,' in Regulatory Guide _.,,,,. f l

"Full header" means the series of descriptive fields and  ;

q subject terms given to a document or other material.

j "Image" means a visual likeness of a document, presented on a f i

paper copy, microform, or a bit-map on optical or magnetic i

1 j media. f

~

"Interested governmental participant" means any person admitted f f .

] under section 2.715(c) of this part to the proceeding on an {

.l j application for a license to receive and possess high-level i

radioactive waste at a geologic repository operations area i

! . (

) pursuant to Part 40 of this chapter, I f t

4

(

) i "Lss Administrator" means the person within the *,7.s. Nuclear l l

Regulatory Commission responsible for administration,  !

, management, and operation of the Licensing support system. The I

l Les Administrator shall not be in any organisational unit that either represents the U.S. Nuclear Regulatory Commission staff i as a party to the high-level waste licensing proceeding or is a l l 1 part of the management chain reporting to the Director of the l I I i

l i

85 -

Office of Nuclear Material Safety and safeguards. For purposes of this subpart the organizational unit within the NRC selected to be the Lss Administrator shall not be considered to be a party to the proceeding.

"Marginalia" means handwritten,' printed, or other types of notations added to a document excluding underlining and highlighting.

"NRC" means the U.S. Nuclear Regulatory commission or its duly authorized representatives.

"Party" for purposes of this subpart means the DOE, the NRC staff, the host State and any affected Indian Tribe in accordance with section 60.63(a) of this chapter, and a person admitted under section 2.1014 of this subpart 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 or affected Indian Tribe shall file a list of contentions in accordance with the provisions of sections 2.1014 (a) (2) (ii) , (iii), and (iv) of this subpart.

"Personal record" means a document in the possession of an individual associated with a party, interested governmental

participant, or potential party that was not required to be created or retained by the party, interested governmental participant, or potential party, and can be retained or discarded at the possessor's sole discretion, or documents of a personal nature that are not associated with any business of the party, interested governmental participant, or potential party.

,l i

j "Potential party" means any person who, during the period I before the issuance of the first pre-hearing conference order under section 2.1021(d) of this subpart, is granted access to th'a Licensing Support System and who consents to comply with the regulations set forth fn subpart J of this part, including the authority of the Pre-License Application Licensing Board

established pursuant to section 2.1010 of this subpart.

(

5 "Pre-license application phase" means the time period before the l!. cense application to receive and possess high-level i

] radioactive waste at a geologic repository operations area is docketed under section 2.101(f) (3) of this part.

I i

"Preliminary draft" means any nonfinal document that is not a

, circulated draft.

a l

l i i 1:  ?

1 1

i "Searchable fell text" means the electronic indexed entry of a document in ASCII into the Licensing support system that allows 4

the identification of specific words or groups of words within a text file.

l 2.1002 Nigh-Level Waste Licensing support systaa.

(a) The Licensing support system is an electronic information i management system containing the documentary' material of the DOE and its contractors, and the documentary material of all

] , other partjes, .'nterested governmental participants and ,

1 J

potential parties and their contractors. Access to the Licensing support systen by the parties, interested governmental participants, and potential parties provides the document discovsry in the proceeding. Tha Licensing support systen provides fdc the electronic transmission of filings by the parties during the high-level waste proceeding, and orders and decisions of the Commission and Commission adjudicatory boards related to the proceeding.

(b) The Licensing support system shall include documentary material not privileged under section 2.1006 or excluded under section 2.1005 of this subpart.

9

33 -

(c) The participation of the host State in the Licensing suppor? system during the pre-license application phase shall not have any affect on the state's exercise of its disapproval rights under section 110(b)(2) of the Nuclear Wasta Policy Act, as amended, 42 U.S.C. 10136 (b) (2) .

r j 'his subpart shall not affect any independent right of a potential party, interested governmental participant or party to receive information.

2.1003 Submission of material to the L85. .

(a) subject to the exclusions in section 2.1005 of this subpart and paragraphs (c) and (d) of this section, each potential party, interested governmental participant or party, with the ' exception of the DOE and the NRC, shall submit to the LSS Administrator--

(1) subject to paragraph (a)(3) of this section, an ASCII file, an image, and a bibliographic header, reasonably contemporaneous with its creation or acquisition, 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 governmental participant, or party after the date on which such potential

39 -

party,' interested. governmental participant or party is given accese to the Licensing Support System.

(2) an image, a bibliographic header, e.nd, if available, kn ASCII file, no later than six months before the license application is submitted under section 60.22 of this. chapter, for all dc.  : .itary material (including circulated drafts but excluding. preliminary drafts), generated by, or at th's direction c.t, or acquired hy, a potenti.a1 party, interested governmental participant, or party, on or before the date an which such potential party, interested governmental .

participant r party was given access to the Licensing Support System.

(3) an image and bibliographic header for documentary material included under paragraphs (a)(1) of this section that i

l were acquired from a person that is not a potential party, l

party, or interested governmental participant.  :

l  !

l (b) Subject to the exclusions in section 2.1005 of this subpart, and subject to paragraphs (c) and (d) of this section, I

l the DOE and the NRC shall submit to the LSS ~ Administrator--

l t

=

1

l (1) an ASCII file, an image, and a bibliographic header, reasonably contemporaneous with its creation or acquisition, for all documentary material (including circulated drafts but excluding preliminary drafts)..

generated by, or at the direction of, or acquired by, the DOE or the NRC after the date on which the Licensing a Support Systou 1. available for access.

f (2) an ASCII filo, an image, and a bibliographic header no later than six months before the license application is submitted under section 60.22 of this chapter for all documentary mat.- 'al (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, the DOE or the NRC on or .

before the date on which the Licensing Support Syrtem is l available for access.

(c) (1) Each potential party, interested governmental participant, or party shall submit, subject to the claims of

]

privilege in section 2.1006, an imago and a hibliographic header, in a time frama to be establishso ty the access protocols under sect 3on 2.10h1(d) (10) of this subpart, for all graphic oriented documentary raterial. Graphic-oriented documentary material includes, raw data, computer runn, computer programs and codes, field notes, labora

• ory .'otes ,

91 -

maps, diagrams and photographs which have been printed, scripted, hand written or otherwise displayed in any hard copy form and which, while capable of being captured in electrcnic image by a digital scanning device, any be captured and submitted to the LSS Administrator in any form of image. Text embedded within these documents need not be separately entered in searchable full text.

I Such graphic-oriented documents may include:

Calibration procedures, logs, guidelines, data and

~~

discrepancies; Gauge, mater and computer settings; Probe locations; Logging intervals and rates; Data logs in whatever form captured; Test data sheets; Equations and sampling rates; Sensor data and procedures; Data Descriptions; l Field and laboratory notebooks; Analog computer, meter or other device print-outs; Digital computer print-outs; Photographs; Graphs, plots, strip charts, sketches;

,,-,.-..-..--.-,,....-,._,,m ,, ,,__- , ,, ,__ _-_ __ __ _ _._ , ,__,___ _ , . _ _ _ . ____ __ _ _.__ , , _ _

Descriptive material related to the information above.

(2) Each potential party, interested governmental participant, or party, in a time frame to be established by the access protocols under section 2.1011(d) (10) of this subpart, shall submit, subject to the claims of privilege in section 2.1006, only a bibliographic header fc. t Oh item of documentary material that is not suitable for entry into the Licensing Support System in image or searchable full text. The header shall include all required fields and shall sufficiently describe t'ho information and references to related information End access protocols. Whenever any doc" intary material is transferred to some other media, a new header shall be supplied. Any documentary matnrial for walch a header only has been supplied to the system shall be made available to any other party, potential party or interested governmental participant th , ugh the access protocols determined by the LSS administrator under section 2.1011(d)(10) or through ent.y upon i land for inspection and otiier purposes pursuant to section 2.1020.

(3) Whenever documentary material described in paragraphs (c) (1) or (c)(2) of this section has been collected or used in conjonction with other such information to analyze, critique, support or justify any particular technical .or scientific l

_ 93 conclusion, or relates to other documentary material as part of the same scope of technical work or investigation, than an appropriate bibliographic header-shall be submitted for a table of contents describing that package of information, and documentary material contained within that package shall be named and ioentified.

I (d) Each potential party, interested governmental participant, or party shall submit a bibliographic header for each documentary material--

l (1) for which a claim of privilege is asserted; or 9-l (2) which constitutes confidential financial or

( commercial informations or (3) which constitutes safeguards information under ,  ;

l section 73.21 of this Chapter.

l l

I (e) In addition to the submission of documentary ma'carial under paragraphs (a) and (b) of this section, potsntial p.. ties, interested governmental participants, or parties may request that another potential party's, interested governmental

(

l t

- 94 .

l participant's, party's, or third party's documentary material l 1

be entered into the Licensing Support System in searchable full text if they or the other potential party, interested governmental participant, or party intend to rely on such docuuentary material during the licensing proceeding.

(f) Submission of ASCII files, images, and bibliographi.

headers shall be in accordance with established criteria.

(g) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license application, or by NRC such as the Site Characterization Analysis, and the Safety Evaluation Report, shall be submitted to the LSS Administrator by the respective agency that generated the document.

(h) (1) Docketing of the application for a license to receive and possess high-level radioactive waste at a geologic repository operations area shall not be permitted under subpart J of this part unless the LSS Administrator has certified, at least six months in advance of the submission of the license application, that the DOE has substantially complied with its obligations under this section.

95 -

(2)(i) The LSS Administrator shall evaluate the extent of the DOE's compliance with the provisions of this section at six month intervals beginning six months.after his or her appointment under section 2.1011 of this subpart.

(ii) The LSS Administrator shall issue a written report of his or her evaluation of DOE compliance under paragraph (h) (1) of this section. The report shall include r recommendations to the DOE on any actions necessary to achieve substantial compliance pursuant to paragraph (h)(1) of this

- section.

(iii) Potential parties may submit comments on the report prepared pursuant to paragraph (h)(2)(ii) to the LSS Administrator.

(3) (1) In the event that the LSS Administrator does not l certify substantial compliance under paragraph (h)(1) of this section, the proceeding on the application for a license to receive and possess high-level radioactive waste at a geologic repository operations area shall be governed by subpart G of this part.

(ii) If, subsequent to the submission of such application under subpart G of this part, the LSS Administrator

issues the certification described in paragraph (h)(1) of this section, the commission may, upon request by any party or interested movernmental e'rticipant to the proceeding, specify the extent to which the provisions of subpart J of this part may be used in the proceeding.

2.1004 Amendments and additions. ,

(a) Within sixty days after a document has been entered into the Licensing Support System by the LSS Administrator during the pre-license application phase, and within five days after a document has been entered into the Licensing Support System by the LSS Administrator after the license application has been docketed, the submitter shall make reasonable efforts to verify that the document has been entered correctly, and shall notify the LSS Administrator of any errors in entry.

, (b) After the time period specified for verification in paragraph (a) of this section has expired, a submitter who desires to amend an incorrect document shall--

(1) submit the corrected version to the LSS Administrator for entry as a separate document; and

~

(2) submit a bibliographic header for the corrected version that identifies all revisions to the corrected version.

(3) the LSS Administrator shall ensure that the bibliographic header for the original document specifies that a corrected version is also in the Licensing Support System.

(c) (1) A submitter shall submit any revised pages of a document in the Licensing Support System to the LSS Kaministrator for entry into the Licensing Support System as a separate document.

(2) The LSS Administrator shall ensure that the bibliographic header for the original document specif!.es that revisions have been entered into the Licensing Support System.

(d) Any document that has been incorrectly excluded from the Licensing Support System must be submitted to the LSS Administrator by the potential party, interested governmental participant, or party responsible for the submission of the document within two days after its exclusion has been identified unless some other time is approved by the Pre-License Application Licensing Board or the Licensing Board

established for the high-level waste proceeding, hereinafter the "Hearing Licensing Board"; provided, however, that the time for submittal under this paragraph will be stayed pending Board action on a motion to extend the time of submittal.

2.1005 Exclusions.

f The following material is excluded from entry into the Licensing support system, either through initial entry pursuant to section 2.1003 of this subpart, or through derivative  ;

discovery pursuant to section 2.1019(i) of this subpart--

(a) official notice materials; (b) reference books and text books; 1

(c) material pertaining exclusively to  !

administration, such as material related to budgets, financial management, personnel, l office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository siting, construction, or operation, or to the e r. . transportation of spent nuclear fuel or  ;

high-level waster (d) press clippings and press releases;  !

. e

99 (e) junk mail; (f) references cited in contractor reports that are readily available; (g) classified material subject to subpart I of this Part.

2.1006 Privilege.

1 (a) Subject to the requirements in section 2.1003(d) of this subpart, the traditional discovery privilege 4 recognized in NRC ,

~

Kajudicatory proceedings and the exceptior.s from disclosure in section 2.790 of this part may be asserced by potential parties, interested governmental participants, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by State and local government 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 Applic'ation Licensing Board or the Hearing Licensing Board shall be submitted by the party, intet;ested governmental participant, or l

'c;tential party that asserted the claim to--

4 e - ----- ,- -- - - - - . . - - , - - , - _ - - - - - - - - - - . - , -- , - - . - . . - - , - - - - - - - , - - , , --,----,,y , - - - ,- -r

- 100 -

(1) the LSS Administrator for entry into the Licensing Support ~ System into an open access file; or i

(2) to the LSS Administrator or to the Board, for entry into a Protective Order file, if the Board so directs under section 2.1010(b) or section 2.1018(c) of this subpart.

(c) Notwithstanding any availability of the deliberat'ive process privilege under paragraph (a) of this section, circulated drafts not otherwise privileged shall be submitted for entry into the Licensing Support System pursuant to ,

secti- J 2.1003 (a) and 2.1003(b) of this subpart.

l 4

l 2.1007 Access.

(a)(1) Terminals fer access to full headers for.all documents in the Licensing Support System during the pre-license application phase, and images of the non-privileged documents of DOE, 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.

(2) Terminals fo. access to full headers for all documents in the Licensing Support System durf,ig the pre'-license application phase, and images of tha non-privileged documents i

- 101 - .

of NRC, shall be provided at the headquarters Public Document Room of NRC, and at all NRC Local Public Document Rooms established in the vicinity of the likely candidate site for a geologic repository, and at the NRC Regional Offices,. including the Uranium , Recovery Field Office in Denver, Colorado.

(3) The 'cass terminals specified in paragraphs (a) (1) and (a) (2) of this section shall include terminals at' Las Vegas, Nevada; Reno, Nevada; Carson City, Nevada; Nye County, Nevada; and Lincoln County, Nevada.

(4) The h - 1ers specified in paragraphs (a)(1) and (a) (2) of this section shall be available at the some time that those headers are made available to the potential parties, parties, and interested governmental participants.

(5) Public access to the searchable full text and images of all the documents in the Licensing Support System, not privileged under section 2.1006, shat 4 be provided by the LSS l

Administrator at all the locations specified in paragraphs (a) (1) and (a)(2) of thin section after a notice of hearing has l been issued pursuant to section 2.101(f)(8) or section i

2.105 (a) (5) on an application for a license to receive and posser.' high-level radioactive waste at a geologic repository operations area.

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

6

- 102 - l i

(b) Public availability of paper copies of the records specified in paragraph (a) of this section,- as. well- as duplication fees, and fee waiver for those records,.will be governed by the Freedom of Information Act regulations of the respective agencies.

(c) Access to the Licensing Support System for potential parties, interested governmental participants, and parties will be provided in the following manner--

(1) full text search capability through dial-up access from remote locations a .he requestor's expense; (2) image access at remote locations at the requestor's expense; (3) the capability to electronically request a paper copy of a docammnt at the time of search; (4) generic fee waiver for the paper copy requested under paragraph (c)(3) of this section for requestors who meet the ,

criteria in section 9.41 of this chapter.

(d) Documents submitted to the LSS Administrator for entry into the Licensing Support System shall not be considered as

~

- 103 -

agency records of the LSS Administrator for purposes of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and shall  !

remain under the custody and control of the agency or organization that submitted the documents to the LSS -

Administrator. Requests for access pursuant to the FOIA to documents submitted by a Federal agency shall be transmitted to that federal agency.

t 2.1008 Potential parties. l (a) A person may petition the Pre-License Application Licensing Board established purs- .t co section 2.1010 of this subpart for access to the Licensing Support System. l (b) A petition must set forth with particularity the interest of the petitioner in gaining access to the Licensing Support System with particular reference to --

l 1

(1) the factors set out in section 2.1014 (c) (1), (2), and

! (3) of this subpart as determined in reference to the topical l guidelines in Regulatory Guide _.__.; or (2) the criteria in section 2.715(c) of this part as deteruined in reference to the topical guidelines in Regulatory Guide _.__..

i e

.i i

- 104 - ,

(c) The Pre-License Application Licensing Board shall, in ruling on a petition for access, conside. i.he factors set forth in paragraph (b) of this section.

1

. [

(d) Any person whose' petition for access is approved pursuant to paragraph (c) of this section shall cou,1y with the regulations set forth in this subpart, including section  ;

2.1003, and agree to comply with the orders of the Pre-License i

Application Licensing Board established pursuant to section i 2.1010 of this subpart.

• i 2.1009 Procedures. l l

1 (a) Each potential party, interested governmental participant, or party shall-- t (1) designate an official who will be responsible for administration of its Licensing Support System -

responsibilities; (2) establish procedures to implement the requirements in i

section 2.1003 of this subpart; l l

(3) provide training to its staff on the procedures for i

! implementation of Licensing Support System responsibilities;  !

i l

-m-- ,,--.--__,.._-_,-,._____,_-.____.,_,_,,__.m . , _ --- __ _y,, _- _ _ _ ______ ,____.

+

- 105 -

(4) ensure that -all. documents carry the submitter's unique identification number; (5) cooperate.with the advisory review process established by the LSS Administrator pursuant to section 2.1011(a) of this subpart.

(b) The responsible official designated pursuant . paragraph (a) (1) of this section shall certify to the LSS Admin'istrator, at six month intervals designated by the LSS Administrator, that the procedurec specified in paragraph (a)(2) of this

. section have been implemented, and that to the best of his or Eer knowledge, the documentary material specified ! section 2.1003 of this subpart has been identified and submitted to the Licensing Support System.

I 2.1010 Pre-License Application Licensing Board.

(a) (1) A Pre-License Application Licensing Board designated by the Commission shall rule on all petitions for access to the

, Licensing Support System submitted under section 2.1008 of this subpart; disputes over the entry of documents during the pre-license application phase, including disputes relating to relevance and privilege; disputes relating to the LSS Administrator's decision on substantial compliance pursuant to section 2.1003(h) of this subpart; discovery disputes; disputes l

106 -

relating to access to the Licensing Support System; disputes relating to the design and development of the Licensing Support System by DOE.or the operation of the Licensing Support System by the LSS Administrator under section 2.1011 of this subpart, including disputes relating to the implementation of the recommendations of the LSS Advisory Review Panel established under section 2.1011(a) of this subpart.

t (2) The Pre-License Application Licensing Board shall be designated six months before access to the Licensing Support 59 stem is scheduled to be available..

(b) The Board shall rule on any claim of document withholding to determine--

(1) whether it is documentary material within the scope of this subpart; l

(2) whether the material is excluded from entry into the i Licensing Support System under section 2.1005 of this subpart;  ;

l l

(3) whether the material is privileged or otherwise excepted from disclosure under section 2.1006 of this subpar.;

i 4

_ - - .__m___,__,,__y.,,_m.- , _ _ , , _ .

- 107 -

(4) if privileged, whether it is an absolute or qualified privilege; (5) if qualified, whether the document should be disclosed because it is necessary to a proper decision in the proceeding; (6) whether the material should be disclosed un, der a protective order containing such protective terms and conditions (including affidavits of non-disclosure) as may be

', necessary and appropriate to limit the disclosure to potential

~

participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel.

l When Safeguards Information protected from disclosure under 1

section 147 of the Atomic Energy Act, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the Commission staff, it shall also be protected according to the requirements of section 73.21 of this chapter. The Board may also prescribe such additional procedures as will effectively safegu'ard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which l

would be available if Safeguards Information were not involved.

In addition to any other sanction that may be imposed by the Board for violation of an order issued pursuant to this

(

- 108 - ,

t I

J paragraph, violation.of an order pertaining to th's disclosure l of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act, as amended, may be

~

subject to a civil penalty imposed pursuant to section 2.205 of this part. For the purpose of imposing the criminal penalties contained in section 2Z3 of the Atomic Energy Act, as amended, l any order issued pursuant to this paragraph with respect to safeguards Information shall be deemed an order issue'd under  ;

section 161b of the Atomic Energy Act.

, ., (c) Upon.a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from entry into the Licensing support system under section 2.1005 of this subpart, the potential party, interested ,

t governmental participant, or party who asserted the claim of withholding must submit the document to the LSS Administrator  ;

within two days for entry into the Licensing support System. f i

I (d) The service of all pleadings, discovery requests and I

answers, orders, and decisions during the pre-license  ;

application phase shall be made according to the procedures f

specified in section 2.1013(c) of this subpart.

l i

l l

1 1 l

---M , _ l

. - 109 -

4 (e) The Pre-License Application Licensing Board shall possess all the general powers specified in sections 2.721(d) and 2.718 of this part.

2.1011 LSS Management and Administration.

(a) The Licensing support system shall be. administered by the LSS Administrator who will be designated within sixty days after the effective date of the rule. .

06) (1) consistent with the requirements in this subpart, and in

consultation with the LSS Administrator, DOE shall be

! responsible for the design and development of the computer system necessary to implement the Licensing support system, including the procurement of computer hardware and software, and, with the concurrence of the LSS Administrator, the i

follow-on redesign and procurement of equipment necessary to maintain the Licensing support system.

(2) With respect to the procurement undertaken pursuant to

paragraph (b)(1) of this section, a representative of the LSS l

l Administrator shall participate as a member of the source t Evalauation Panel for such procurement.

l I

s 11o . .

(3) DOE shall implement consensus advice from the LSS Advisory Review Panel under paragraph (f)(1) of this section that is consistent with the requirements of this subpart.

(c) (1) The Licensing support System, described in section 2.1002, shall not be part of any computer system that is controlled by any party, interested governmental participant, or. potential party, including DOE and its contractors, or that is physically located on the premises of any party, interested governmental partici, pant, or potentia

• party, including DOE and that of its contractors.

(2) Nothing in this subpart shall preclude DOE, NRC, or any other party, potential party, or interested governmental participant, from using the Licensing Support System computer facility for a records management system for documentary material independent of the Licensing support System.

i (d) The LSS Administrator shall be responsible for the management and administration of the Licensing support s'ystem, including the responsibility to--

(1) implement the consensus advice of the LSS Advisory Review Panel under paragraph (f) of this section that is consistent with the requirements of this subpart;

]

, - 111 - .

e (2) provide the n'ecessary personnel, materials, and services for operation and maintenance of the Licensing Support system; (3) identify and recommend to DOE any redesign or procurement actions necessary to ensure that the design and operation of the Licensing Support System meets the objectives of this subpart; (4) make a concurrence decision, within thirty, days of a request from DOE, on any redesign and related procurement performed by DOE under paragraph (b) of this section; (5) consult with DOE on the design and development of the Licensing Support System under paragraph (b) of this section; (6) evaluate and certify compliance with the requirements of this subpart under section 2.1003(h);

- (7) ensure LSS availability and the integrity of the LSS data bases (8) receive and enter the documentary material specified in section 2.1003 of this subpart into the Licensing Support System in the appropriate format; (9) maintain security for the Licensing Support Sy' stem data base, including assigning user password security codes; (10) establish access protocols for raw data, field notes, and other items covered by section 2.1003(c) of this subpart; (11) maintain the thesaurus and authority tables for the Licensing Support System;

- 112 - .

~

(12) estab11sh and implement a training program for Licensing Support System users; (10, provide support staff to assist users of the Licensing Support System; (14) other duties as specified in this subpart or necessary for Licensing Support System operation and maintenan;:a.

t (e) (1) The LSS Administrator shall establish an LSS Advisory Review Panel composed of the LSS Advisory committee members identified in paragraph (s)(2) of this section who wish to serve withi.n sixty days after designation of the LSS Administrator pursuant to paragraph (a) of this section. The LSS Administrator 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. I, giving particular consideration  ;

to potential parties, parties, and interested governmental l

participants who were not members of the the NRC HLW Licensing  !

Support System Advisory committee.

(2) Pending the establishment of the LSS Advisory Review Panel under paragraph (e)(1) of this section, the NRC will establish a Licensing Support System Advisory committee whose membership will initially include the State of Nevada, a

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

113 -

L coalition of affected units of local government in. Nevada who were on the NRC High-Level Waste Licensing Support System Advisory Committee, DOE, NRC, the National.Congruss.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 tiau nsignate to perform the responsibilities in paragraph (f) of this section. e (f) (1) The LSS Advisory Review Panel shall provide advice to--

r (i) DOE on the fundamental issues of the design and l development of the computer system necessary to implement the I Licensing Support System under paragraph (b) of this section;  :

and (

(ii) the LSS Administrator on the operation and maintenance of the Licensing Support System under paragraph (d) of this section.

(2) The responsibilities of the LSS Advisory Review Panel shall include advice on--

(i) format standards for the submission of documentary material to the Licensing Support System by the parties, ,

i i

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

6 114 - -

interested governmental participants,.or potential parties, such as ascii files, bibliographic headers, and images; (ii) the procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license app. . Clon phase and the high-level waste licensing proceeding; '

(ifi) access protocols for raw data, field notes, and

. other items covered by section 2.1003(c) of this subpart; (iv) a thesaurus and authority tables; (v) reasonable requirements for headers,'the control of duplication, retrieval, display, image delivery, query response, and "user friendly" design; (vi) other duties as specified in this subpart or as directed by the LSS Administrator.

l 2.1012 Compliance. i

r ,

(a) In addition to the requirements of section 2.101(f) of t

this part, the Director of the NRC Office of Nuclear Materials l 1

i 1

- 115 -

safety and safeguards may determine that the tendered application is not acceptable for docketing under this subpart, if the LSS Administrator has not issued the certification described in section 2.1003 (h) (1) of this part... - .

(b) (1) A person, including a potential party granted access to the Licensing Support System under section 2.1008 of this subpart, shall not be granted party status under section 2.1014 of this part, or status as an interested governmental participant under section 2.715(c) of this part, if it cannot demonstrate substantial and timely compliance with the requirements of section 2.1003 of this subpdrt at the time it requests participation in the high-level waste licensing proceeding under either section 2.1014 or section 2.-715(c) of this part.

l (2) A person denied party status or interested governmental participant status under paragraph (b)(1) of this l

section may request party status or interested governmental j participant status upon a showing of subssquent compliance with l the requirements of section 2.1003 of this subpart. Adaission of such a party or interested governmental participant under section 2.1014 of this subpart or section 2.715(c) of this part, respectively, shall be conditioned on accepting the status of the proceeding at the time of admission.

e

- 116 - *

(c) The Hearing Licensing Board shall not make a finding of substantial and timely compliance pursuant to paragraph (b) of this section for any person who is not in compliance with nil applicable orders of the Pre-License Application Licencirg Board established pursuant to section 2.1010 of this subpart.

(d) Access to the Licensing Support System may be Sospended or terminated by the Pre-license Application Licensing Board or the Hearing Licensing Board for any potential party, interested governmental participant or party who is in noncompliance with  !

any applicable order c2 the Pre-license Application Licensing Board or the Hearing Licensing Boar'd or the requ!rements of this subpart.

l 2.1013 Use of LSS during adjudicatory proceeding.

(a) (1) Pursuant to section 2.702, the Secretary of the NRC will maintain the official docket of the proceeding on the application for a license to receive and possess waste at a geologic repository operations area.

(2) Commencing with the docketing 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 LSS Administrator shall establish a file within

. i

- 117 I

I the Licensing Support System to contain the official rc 3rd f materials of the high-level radioactive waste licensing  !

t' e proceeding in searchas te full text, or for material that is not i i

suitable for entry ir taarchable full text, by header and i

image, as appropriate. j t

(b) Absent good cause, all exhibits tendered during the i c

l hearing must have been entered into the Licensing Support system before the commencement of that portion of the hearirg f in which the exhibit will be offered, The official record file l l

j in the Licensing Support system will contain a list of all l l

axhibits, showing where in the transcript each was marked for identification and where it was received into evidence or  !

l l rejected. Transcripts will be entered into the Licensing

{

l- Support System by the LSS Administrator on a daily basis in

order to provide next-day availability at the hearing.

i j (c) (1) All filings in the adjudicatory proceeding on the license application to receive and possess high-level radioactive waste at a geologic repository operations area

pursuant to Part 60 of this cnapter shall be transmitted i electronically by the submitter to the board (s), parties, the LSS Administrator, and the Secretary, according to established i format revulrements. Parties and interested governmental l

i l

4 .

--_._.-...-_-____m___ , - . . . . . . . . . , , _ _ _

~

Ils -

4 participants vill be. required to use a password security code for the electronic transmission of these documents.

(2) Filings required to be served shall be served upon either the parties and interested governmental participants, or their designated representatives. When a party or interested governmental participant has appeared by attorney, service must be made upon the attorney of record.

4 (3) Service upon a party or interested governmental

' participant is complete when the sender receives elect conic j acknowledgment ("dulivery 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 ,

l be shown for sach ' document filed, by-- ,

r i

r (i) electronic acknowledgment ("delivery receipt") or (ii) the affidavit of the person making the scrvice; or (iii) the certificate of counsel.

l 4

__ -_.--_-__-,,,___--._.--y,

-- - , , - - - - - - r_,_ _,_m__,__  %-m_ _ _ _ - , ,_ _ - __ - , , . - - . -.

- 119 -

(5) One signed paper copy of each filing shall be served promptly on the ' Secretary by regular mail pursuant to the requirements of sections 2.708 and 2.701 of this part.

i (6) All Board and commission insuances and orders , l

{ will be transmitted electronically to the parties, interested

3.iernmental participants, and the Lss Administrator.

(d) Online access to the Licensing Support System, including a

' Protective Order Tile if authorized by a Board, shall be l provided to the board (s), the representatives of the parties 1

J interested governmental participants, and the witnesses l while testifying, for use during the hearing. Use of paper copy i

1 and other images will also be permitted at the hearing. l l

i 2.1014 Intervention. j i

(a)(1) Any person whose interest may be affected by a h i

proceeding on the application for a license to receive and

• t

possess high-level radioactive waste at a geologic repository l

! operatio6s area pursuant to Part 60 of this chapter and who (

r desires to participate as a party shall file a written j petitl6B lbr leave to intervene. In a proceeding noticed I

purlsu: at'tG section 2.105 of this part, any person whose inter 4wt may be affected may also request a hearing. The l

l t

- 120 -

l l

petition and/or request, and any request to participate under section 2.715(c) of this part, shall be filed within thirty days after the publication of the notice of hearing in the Federal Epsister. Montimely filings will not be entertained absent a determination by the Commission, or the Hearing Licensing Board designated to rule on the petition and/or  :

request, tiic.t the petition and/or request should be granted based upon a balancing of the following factors, in addition to satisfying those set out in paragraphs (a)(2) and (c) of this section:

~~

(i) gend cause, if any, for failure to file on timer l

i (ii) the availability of other means whereby the  !

petitioner's interest will be protected; ,

l j (iii) the extent to which the petitioner's participation may

! reasonably be expected to assist in developing a sound record; l

. j (iv) the extent to which the petitioner's interest will be t

l represented by e. nting parties; f 1

(v) the e et%. a which the petitioner's participation will broaden the inn ir delay the proceeding.

4 ,

)

i i

- 121 - i I

i (2) The petition shall set forth with particularity--

(i) the intere=L of the petitioner in the proceeding, and how that interest may be affected by the results of the  :

proveeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in paragrar (c) of this section; i 1 -

I t t

i (ii) a list of the contentions that petitioner seeks to t 1 have litigated in the matter, and the bases for each contention r

, set forth with reasonable specificity; .

, l

) (iii) reference to the specific documentary material, or the ,

absence thereof, that provides a basis for each contention; and

• i i (iv) as to each contention, the specific regulatory or j statutory requirement to which the contention is relevant.

1 i (3) Any petitioner who fails to satisfy paragraphs [

, (a) (2) (ii) , (iii), and (iv) of this section with respect to at l t

least one contention shall not be permitted to participate as a

party.. i I

! (4) Any party may m+ . its contentions specified in l l f j paragraph (a)(2)(ii) of this section. The Hearing Licensing  ;

1

- 122 -

k i

Board shall rule on any petition to amend such contentions  !

based on the balancing of the factors specified in paragraph (a) (1) of this section. Fwcitions to amend that are based on  ;

information or issues raised in the Safety Evaluation Report l (JER) issued by the NRC staff shall be made no later than forty j days after the issuance of the SER. - Any petition to amend

! contentions that is filed .' at this time shall include, in l 1  ;

l addition to the factors specified in paragraph (a)(1) of this , l

! section, a showing tnat a significant safety or environmental  :

t

) issue is involved or that the amended contention raises a (

i l

material issue related to the performance evaluation  !

anticipated by sections 60.1 and 60.113 of this chapter. f i

i (b) Any party or interested governmental participant may file  :

an answer to a petition for leave to intervene or a petition to 1 '

j amend contentions within twenty days after service of the l 4

t petition.

f

(c) Subject to paragraph (a)(3) of this section, the Commission, or the Hearing Licensing Board designated to rule j 1

j on petitions to intervene and/or requests for hearing shall  ;

r permit intervention, in any hearing on an application for a l

] license to receive and possess high-level radioactive waste at 1

a geologic repository operations area, b'y an affected unit of 1 local government as defined in section 2(31) of the Nuclear i

1

]

J

)

- 123 -

Waste Policy Act of 1982, as amended, 42 U.S.C. 10101. In all other circumstances, the commission or Board shall, in ruling on a petition for leave to intervene, consider the following factors, among other things:

(1) The nature of the petitioner's right under the Atomic Energy Act to be made a party to th. c Jceeding; 1

, (2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding; (3) The possible effect of any ort' that may be entered in the proceeding on the petitioner's interests (4) The petitioner's participation as a potential party under section 2.1008(c) of this subpart.

. (d) An order permitting intervention and/or directing a hearing may be conditioned on such terms as the Commission, or the designated Hearing Licensing Board may direct in the interests oft (1) restricting irrelevant, duplicative, or repetitive evidence and argument,

- 124 -

i l

(2) having common interests represented by a spokesman, and (3) retaining authority to determine prio -;'les and control the compass of the hearing.

(e) In any case in which, after consideration of the factors i set forth in paragraph (c) of this section, th.s commission or l

! the Hearing Licensing Board finds that the petitioner's t

interest is limited to one or more of the issues involved in  ;

the proceeding, any order allowing intervention shall limit the petitioner's participation accordingly.

i i

\

1 (f) A person permitted to intervene becomes a party to the l 1 proceeding, subject to any limitations imposed pursuant to -

f paragraph (e) of this section.

(g) Unless otherwise expressly provided in the order

allowing intervention, the granting of a petition for leave to

. l l intervants does not change or enlarge the issues specified in  !

i i

the notice of hearing. .

l j 2.1015 Appeals.  :

.t l j

i i

- 125 -

l i

(a) No appeals from any board order or decision issued l l

under this subpart are permitted, except as prescribed in paragraphs (b), (c), (d) , and (e) .

(b) A notice of appeal from- (i) a Pre-License Application Licensing Board order issued pursuant to section 2.1(*.-' ^* this subpart, (ii) a Hearing Licensing Board First or Second l Prehearing Conference Order issued pursuant to section 2.1021-or 2.1022 of this subpart, (iii) a Hearing Licensing Board l order granting or denying a motion for summary disposition l issued in accordance with section 2.749 of this part, or (iv) a i

Hearing Licensing Board order granting or denying a petition to i amend one or more contentions pursuant to section 2.1014(a)(4)

,of this subpart, shall be filed with the Atomic Safety spo Licensing Appeal Board no later than ten (10) days after  ;

service of the order. A supporting brief shall accompany the notice of appeal. Any other party, interested governmental participant, or potential party may file a brief in opposition E to the appeal no later than ten days after service of the i appeal.

1 i (c) Appeals from a Hearing Licensing Board initial  ;

decision or partial initial decision shall be filed and bt' fsd I

l

. - . . ._. . - - - - - .- _ . . . . - = _ - - -- ._-

r

- 126 - , [

i before the Atomic Safety and Licensing Appeal Board in accordance with the requirements of section 2.762 of this part. f I

i (d) When, in the judgment of a Board, prompt appellate I l

review of an order not immediately appenlable under paragraph l t

(b) of this section is necessary to prevent detriment to the l public interest or unusual delay or expense, the Board may f  !

refer the ruling promptly to the Appeal Board or Commission, as l l

appropriate, and shall provide notice of this referral to the i parties, interested governmental participants, or potential (

parties. The parties, interested governmental participants, or

, j potential parties may also request that the Board certify,  !

pursuant to section 2.718(i) of this part, rulings not  !

\  ?

j immediately appealable under paragraph (b) of this section.  ;

1  ;

(e) A party, interested governmental participant, or f l

l potential party may seek Commission review of any Appeal Board >

) decision or order issued under this section in accordance with f

L l the procedures in section 2.786(b) of this part. i d .

1  !

1 (f) Unless otherwise ordered, the filing of an appeal,  !

petition for review, referral, or request for certification of l 1

j a ruling shall not stay the proceeding or extend the time for l I

the performance of any act. l J l t

i f'

I 1 i

, - 127 -

2.1016 Motions. ,

(a) All motions shall be addressed to the Commission or, when a proceeding is pending before a: Board, to the Board. All actions, unless made orally on the record, shall be filed according to the provisions of section 2.1013(c) of this subpart.

t

,(b) A motion shall state with particularity the grounds and i

'the relief sought, and shall be accompanied by any affidavits

. or other evidence relied on, and, as appropriate, a proposed  !

form of order. ,

i r

(c) Within ten days after service of a action a party,

, potential party, or interested governmental participant may I I

file an answer in support of or in opposition to the motion, accompanied by affidavits or other evidence. The moving party shall have no right to reply, except as permitted by the Board i

! or the secretary or the Assistant secretary.

(d) The Board may dispose of motions either by order or by ruling orally during the course of a prehearing conference or i j hearing, t

r

- 128 - -

l i

(e) Where the motion in question is a notion to compel discovery under section 2.720(h)(2) of this part or sechion ,

2.1018(f) of this subpart, parties, potential parties, and interested governmental participants may file answers to the motion pursuant to paragraph (c) of this section. The Board in its discretion, may order that the answer be given orally during a telephone conference or other prehearing conference, j rather than filed electronically. If responses are given over the telephone the Board shall issue a written order on the notion which summarizes the views presented by the parties, l - potential parties, and interested governmental participants ,

unless the conference has been transcribed. This does not ,

preclude the Board from issuing a prior oral ruling on the ,

matter which is effective at the time of its issuance, provided that the terms of the ruling are incorporated in the subsequent l

written order.  ;

1

)

2.1017 Computation of time. l In computing any period of time, the day of the act, event, or default after which the designated period of time begins to

.. run is not included. The last day of tha period so computed is 1

r included unless it is a Saturday, Sunday, or legal holiday at  ;

i the place where the action or event is to occur, in which event  :

7 i

i i

- 129 -

?

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 governmental participant, has the right or 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 prescribed period, If the Licensing support Syster,is unavailable for more than four access hours of any l

- day that would be counted in the computation of time,' that day will not be counted in the computation of time.

l . '

3i1018 Discovery.

1 (a) (1) Parties, potential parties, and interested governmental barticipants in the high-2evel waste licensing proceeding may obtain discovery by one or more of the following methods:

access to the documentary material in the Licensing Support System submitted pursuant to section 2.1003 of this subpart; l i

entry upon land for inspection, access to raw data, or other purposes pursuant to section 2.1020 of this subpart; access to, i

or the production of, copies of decumentary material for which "r,,,

bibliographic headers only have been submitted pursuant to i

< . - . section 2.1003(c) and sect!sn 2.1003(d) of this subpart;

n. depositions upon oral examination pursuant to section 2.1019 of l

- 130 - -

this subpart; requests for admission pursuant to section 2.742 l

of this part; informal requests for information not available l in the Licensing Support Systan; and interrogatories and  !

depositions upon written questions, as provided in paragraph l (a) (2) of this section.

(2) Interrogatories and depositions upon written questions may be authorized by order of the discovery master appointed under paragraph (g) of this section, or if no discovery master has been appointed, by order of the Hearing Licensing Board, in

. .the event that the parties are unable, after informal good 7 faith efforts, to resolve a dispute in a timely fashion i

concerning the production of information.

I* i'b) (1) Parties, potential parties, and interested governmental participants, pursuant to the methods set forth in f

paragraph (a) of this section, may obtain discovery regarding l any matter, not privileged, which is relevant to the licensing of the likely candidate site for a geologic repository,whether

, it relates to the claim or defense of the person seeking  !

discovery or to the claim or defense of any other person. I j .Sxgqpt for discovery pursuant to section 2.1018(a) (2) and  ;

n aution 2.1019 of this subpart, all other discovery shall begin I

(.4v!ng the pre-license application phase. Discovery pursuant [

l l

- 131 -  ;

1 f

i to section 2.1018(a)(2) and section 2.1019 of this subpart shall begin after the issuance of the first pre-hearing l cs...erence order under section 2.1021 of this subpart, and shall be limited to the issues defined in that order or I subsequent amendments to the order. It is not ground for f

objection that the information sought will be inadmissible at i

1: c ' iaring if the information sought appears reasonably l

calculated to lead to the discovery of admissible evidence.

l i

(2) A party, potential party, or interested governmental  !

l participant may obtain discovery of documentary material (

i otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of, or for the hearing by, or for another party's, potential party's, or interested governmental l participant's representative (including its attorney, surety, l

indemnitor, insurer, or similiar agent) only upon a showing l that the party, potential party, or interested governmental  :

l l participant seeking discovery has substantial need of the materials in the preparation of its case and that it is unable

[

vithout undue hardship to obtain the substantial equivalent of the materiale by other means. In ordering discovery of these ,

I materials whea the required showing has been made, the Board j shall pr' App against disclosure of the mental impressions, l conclus '.is.,.. . pinions, or legal theories of an attorney or I

l 1

l

- 132 -

other representative of a party, potential party, or interested governmental participant concerning the proceeding.

(c) Upon motion by a party, potential party, interested governmental participant, or the per, son from whom discovery is sought, and for good cause shewn, the Board may make any order that justlev raquires to protect a party, potential party, interested governmental participant, or other person'from annoyance, embarrassment, oppression, or undue burden, delay, or expense, including one or more of the followings (1) that

' the discovery not be had; (2) that the discovery may be had ,

enly on spee' led terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party, potential party, or interested governmental participant seeking discovery; (4) that certain matters not be inquired into, or that the scope of discovery be limited to certain matterst (5) that discovery be conducted with no one present except persons designated by the Board; (6) that, subject to the provisions of section 2.790 of this part, a trade secret or other confidential research, development, ( '; umercial information j not be disclosed or !>e disclosed only in a designated way; (7) l that studies and vra ations not be prepared. If the motion l

for a protective. 1 .- is denied in whole or in part, the Board i may, on such terms a 4 conditions as are just, order that any

4

- 133 -

party, potential party, interested governmental participant or other person provide or permit discovery.

(d) Except as provided in paragraph (b) of this section,.and

- unless the Board upon motion, for the convenience of parties, potential parties, interested governmental participants, and witnesses and in th6 la:erest of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party, potential party, or interested governmental participant is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's, potential party's, et aterested governmental participant's discovery.

l (e) A party, potential party, or interested governmental 1

participant who has included all documentary material relevant l

{ to any discovery request in the Licensing Support system or who i has responded to a request for discovery with a response that was complete when made is under no duty to supplement its response to include information thereafter acquired, except as i follows:

(1) To the extent that vritten interrogatories are l

authorized pursuant to perograph (a)(2) of this section, a t

party or interested governmental participant is under a duty to w

t

- 134 - '

seasonably supplement its response to any question directly l addressed to (1) the identity and location of persons having knowledge of discoverable matters, and (ii) the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the witness is expected to l testify, and the substance of the-witness's testimony. l (2) A party, potential party, or interested governmental i

participant is under a duty seasonably to amend a prior response if it obtains information upon the basis of which (i)

', i,t knows that the response was incorrect when made, or (ii) it knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the ,

response is in substance a knowing concealment. ,

I l

I (3) A duty to supplement responses may be imposed by order l of the Board or agreement of the parties, potential parties, ,

and interested governmental participants.

(f)(1) If a deponent or a party, potential party, or interested governmental participant upon whom a request for discovery is  !

served fails to respond or objects to,,fge request, or any part thereof, the party, potential party,ygg.Anterested governmental participant submitting the request or taking the deposition may  !

i

. ). .

-_ I

, - 135 - .

nove the Board, within five days efter the date of the response or after failure to respond to the request, for an order compelling a response in accordance with the request. The motion shall set forth the nature of the questions or the l

request, the response or objection of the party, potential party, interested governmental participant, or other person upon whom the request vns served, and 2.. .aents in support of the motion. For purposaa of this paragraph, an evasi;ve or t incomplete answer or response shall be treated as a failure to answer or respond. Failure to answer or respond shall not be

. excused on the ground that the discovery sought is objectionable unless the person, party jotential party, or interested governmental participant failing to answer or respond has applied for a protective order pursuant to [

paragraph (c) of this section.

1 1

1 l (2) In ruling on a motion made pursuant to this section, the Board may make such a protective order as it is authorized to f make on a motion made pursuant to paragraph (c) of this i section. -

l (3) An independent request for issuance of a subpoena may l

l be directed to a nonparty for production of dor'susnts. This section does not apply to requests for the te.n ' iny of the NRC 1

- 136 -

l regulatory staff pursuant to section 2.720(h)(2)(i) of. this part.

(g) The Hearing Licensing Board pursuant to section.2.722 of th,is part may appoint a discovery master to resolve disputes between parties concerning informal requests for information as provided in paragraphs (a)(1) and (a)(2) of thiu . ction.

t I

2.1019 Depositions upon oral examination and upon  ;

written questions.

(a) Any party or interested governmental participant desiring to take the testimony of any person by deposition on oral examination shall, without leave of the commission or the Hearing Licensing Board give reasonable notice in writing to every other party and interested governmental participant, to the person to be examined, and to the Hearing Licensing Board of the proposed time and place of taking the deposition; the  ;

1 name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify him or her or the class or group to which he or she belongst the matters upon which each person will be er .An.sd  !

i and the name or descriptive title and address of the t t.ce x  !

I before whom the deposition is to be taken. l l

4

.._,____...._._,_._________..m____ _ _ _ , _ _ _ _ _ _ . _ . _ _ , _ . _ _ _ ._____.-s_______,_

- - 137 -

(b) Within the United States,.a deposition may be taken before any officer authorised to administer' oaths by the laws of the United States or of the place where the examination is held.

Outside of the United States,.a deposition may be taken before a secretary of an embassy or legation, a consul general, vice consul or consular agent of the United States, or a per6 m authorized to administer oaths designated by the commission.

Depositions may be conducted by telephone or by video teleconference at the option of the party or interested governmental participant taking the deposition.

(c) The deponent shall be sworn or shall affirm before any questions are put to him or her. Examination and cross-examination shall proceed as at a hearing. Each question propounded shall be recorded and the answer taken down in the words of the witness. Objections on questions of evidence shall be noted in short form without the arguments. The officer shall not decide on the competency, materiality, or relevancy of evidence but shall record the evidence sub' ject to objection. Objections on questions of evidence not made before the officer shall not be deemed waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.

- 138 - l i

l (d) When the testimony is fully transcribed, the deposition I shall be submitted to the deponent for examination and  !

signature unless the deponent is ill or cannot be found or i refuses to sign. The officer shall certify the deposition or, i

if the deposition is not signed by the deponent, shall certify - l i

the reasons for the T311ure to sign, and shall promptly .

t transmit the deposition no the L88 Administrator for submission i i

into the Licensing suppcrt Systaa. '  !

t I

1 (e) Where the deposition is to be taken on written questions f r

as authorized under section 2.1018(a)(2) of this subpart, the ,

party or interested governmental participant taking the j deposition shall serve a copy of the questions, showing each  !

l question separately and consecutively numbered, on every other i I

party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be asked. Within tes days after service, any other party or interested governmental participant may serve cross-questions. The questions,  ;

i cross-questions, and answers shall be recorded and signed, and  !

l the deposition certified, returned, and transmitted to the LSS l Administrator ad in the case of a deposition on oral l

examination. . f l

l

- 139 -

(f) A deposition will not become a part of the evidentiary record in the hearing unless received in evidence. If only part of a deposition is' offered in evidence by a party or interested governmental participant, any other party or interested governmental participant may introduce any other parts. A party or interested governmental participant shall not be deemed to make a person its own witness for any purpose by taking his or her deposition.

. (g) A deponent whose deposition is taksn and the officer taking a-deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party or interested governmental participant at whose instance the deposition.is taken.

(h) The deponent may be accompanied, represented, and advised by legal counsel.

(i)(1) After receiving written notice of the deposition *under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an index of all documents in his or her possession, relevant to the subject matter of the deposition, including the categories of documents set forth in paragraph (i)(2) of this

- 140 - ,

l section, to all parties and interested governmental l participants. The index shall identify those records which have already been entered into the Licensing support system.

All documents that are not identical to documents already in the Licensing support System, whether by reason of subsequent modification or by the addition of notations, shall be treated ,

as Japarate documents.

t (2) The following material is excluded from initial entry into the Licensing support system, but is subject to l derivative discovery under paragraph (i)(1) of this section--

(i) personal records; (ii) travel vouchers; 7 (iii) speeches; (iv) preliminary drafts; (v) marginalia.

f (3) Subject to paragraph (i)(6) of this section, any l party or interested governmental participant may request from i

the deponent a paper copy of any or all of the documents on the index that have not already been entered into the Licensing  :

I

support System.

l i

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

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(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 governmental participant requests that have not already been entered into the Licensing support system 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 certified deposition.

(5) subject to paragraph (i)(6) of this section, a party os interested governmental participant may request that any or all documents on the index that have not already been entered into the Licensing support system, and on which it intends to rely at hearing, be entered into the Las by the deponent.

(6) The deposing party or interested governmental participant shall assume the responsibility for the obligations set forth in paragraphs (i)(1), (i) (3) , (i) (4), and (i) (5) of this section when deposing someone other than a party of interested governmental participant.

.vo) r (j) In a proceeding in which the NRC is a party, the NRC staff

, da ,

will make available one or more witnesses designated by the ti. Executive Director for Operations, for oral examination at the

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hearing or on deposition regarding any matter, not privileged, l which is relevant to the issues in the proceeding. The  !

attendance and testimony of the Commissioners and named NRC l t

personnel at a hearing or on deposition may not be required by  !

the Board, by subpoena or otherwise: Provided, That the Board l i

may, upon a showing of exceptional circumstances, such as a j case in which a particular named NRC employee has direct l personal knowledge of.a material fact not known to the j witnesses made available by the Executive Director for operations, require the attendance and testimony of named NRC ,

. personnel.

Section 2.1020 Entry upon land for inspection and other i

purposes.

l (a) Any party, potential party, or interested governmental participant may serve on any other party, potential party, or interested governmental participant a request to permit entry j i

upon designated land or other property in the possession or f control of the party, potential party, or interested I governmental participant upon whom the request is served for the purpose of access to raw data, inspection and measuring, l t

sur- ?J.4g, photographing, testing, or sampling the property or l I

an" mignated object or operation thereon, within the scope of s e t. .n 2.1018 of this subpart.

. - 14' -

(b) The request may be served on any party, potential party, or i inte. cod governmental participant without leave of the Commission or the Board.

(c) The request shall describe with reasonable particularity ,

the thod or other property to be inspected either by individual item or by category. The request shall specify a rea,sonable '

time, place, and manner of making the inspection and performing (

(

t the related acts.

(d) The party, potential party, or interested governmenta).

participant upon whom the request is served shall serve on the (

party, potential party, or interested governmental participant l i

subs'4 ting the request a written response within ten days after f l

1 the service of the request. The response shall state, with 1

respect to each item or category, that inspection and related f i

activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection shall be stated. If objection is made to part of an item or -

i category, the part shall be specified.

l 2.1021 First prehearing conference.

l 1

I I

i

4

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(a) In any proceeding involving an application for a license to receive and p as high-level radioactive wasts at a geologic repository operations area pursuant to Part 60 of this chapter the commission or the Hearing Licensing board will direct the parties, interested governmental participants and any petitioners for intervention, or their counsel, to appear at a specified time and place, within seventy days after the notice of hearing is published, or such other time as the commission or the Hearing Licensing Board may doen appropriate, for a 4 .

I conference tot ,

i f f

(1) permit iwantification of the key issues in the f proceeding; i

l  !

l 1 (2) take any steps necessary for further identification of  !

I j the issues; i i

! l 1 (3) consider all intervention petitions to allow the hearing l

Licensing Board to make such preliminary or final determination l

I as to the parties and interested governmental participants, as f i may be appropriate; I i  !

3 (4) establish a . ..adule for further actions in the i

l, proceeding; and ,

i l 1

1 i i i

I l I I

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(5) establish a discovery schedule for the proceeding taking into account the objective of meeting the three-year time schedule specifie,' 'm. section 114(d) of the Nuclear Wasta Policy Act of 1982, as amended, 42 U.S.C. 10134(d).-

(b) The Board may order any further formal and informal conference 3 among the parties and interested governmental participants including teleconferences, to the extent that it considers that such a conference would expedite the proceeding.

t (c) A preh, earing conference held purruant to this section shall be stenographically repc.ced.

l (d) The Board shall enter an order which recites the action taken at the conference, the schedule for further actions in the proceeding, and any agreements by the parties, and which I

identifies the key issues in the proceeding, makes a preliminary or final determination as to the parties and interested governmental participants in the proceeding,,and l

! provides for the submission of status reports on discovery.

l 2.1022 Second prehearing conference.

l .

i l

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l (c) The Commission or the Hearing Licensing Board in a proceeding on an application for a license to receive and possess high-level radioactive & Le at a geologic repository l operations area shall direct the partiese intereste9. l governmental participants, or their counsel to appear at a I specified time and place not later than seventy days after the safety Evaluation Report is issued by the NRC staff for a conference to consider: ,

(1) any amended contentions submitted under section 2.1014 (a) (4 ) of this subpart; (2) simplification, clarification, and specification of the issues; (3) the obtaining of stipulations and admissions of fact and of the contents and authenticity of documents to avoid unnecessary prooft (4) identification of witnesses and the limitation cat the .

number of expert witnesses, and other steps to expedite the presentation of evidence; (5) the setting of a hoaring schedul..;

. tse dea

z 147 -

(6) establishing a discovery schedule for tha proceeding taking into account the objective of meeting the.three year time schedule specified in section 114(d) of the. Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. 10134(d); and (7) such other matters as may aid in the orderly disposition of the proceedir.g.

l i

{ (b) A prehearing conference held pursuant to this section shall be stenographically reported.

(c) The Board shall enter an order which reciten the action taken at the conference and the agreements by the parties, limits the issues or defines the matters in controversy to be determined in the proceeding, sets a discovery schedule, and sets the hearing schedule.

2.1023 Immediate effectiveness of initial decision.

(a) Pending review and final decision by the comm- ion, an initial decision resolving all issues before the ring L

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)

Licensing Board in favor of issuance or caendment of a construction authorization pursuant to"section~60.11 of this chapter or a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to section 60.41 of this chapter, will be immediately effective upon issucnce exce'/. --

(1) as provided in any order issued in accordance with section 2.788 of this part that stays the effectiveness of an l 1

initial decision; or l l

(2) as otherwise provided by the commission in s. cial circumstances,,

(b) The Director of Nuclear Material Safety and Safeguards, notwithstanding the filing or pendency of an appeal or a petition for review pursuant to section 2.1015 of this subpart, promptly shall issue a construction authorization or a license to receive and possess high-level radioactive waste at a geologic repository operations area, or Eaendments thereto, following an initial decision resolving all issues beforte the Hearing Licensing Board in favor of the licenJing action, upon making the appropriate licensing findings, except-- ,

(1) as provided in paragraph (c) of this section; or ,

i .

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(2) as provided in any order issued in accordance with section 2.788 of-this part that stays the effectiveness of an ,

initial decisions or (3) as otherwise provided by the Commission in special circumstances.

t i

(c)(1) Before the Director of Nuclear Material Safety and Safeguards may issue a construction authorization or a license I to receive and possess waste at a geologic repository operations area in accordance with paragraph (b) of this f section, the commission, in the exercise of its supervisory

, 1 authority over agency proceedings, shall undertake and complete a supervisory examination of those issues contested in the proceeding before the Hearing Licensing Board to consider l whether there is any significant basis for doubting that the facility will be constructed or operated with adequate protection of the public health and safety, and whether,the Ccamission should take action to suspend or to otherwise condition the effectiveness of a Hearing Licensing Board decision that resolves contested issues in a proceeding in ,

! . favor of issuing a construction authorization or a license to f receive and possess high-level radioactive waste at a geoJogic repository operations area. This supervisory examination is

, t T.

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not part of the adjudicatory proceeding. The Commission si:all notify the Director in writing when its supervisory examination conducted in accordance with this paragraph has been completed.

(2) Before the Director of Nuclear Material Safety and Safeguards issues a construction authorization or a license to receive and possess high-level radioactive waste at a geologic I

repository c, .ations area, the Commission shall review those issues that have not been contested in the proceeding before the Hearing Licensing Board but about which the Director must make appropriate findings prior to the issuar.ca of such a license. The Director shall issue a construction authorization i

or a license to receive and possess high-level radioactive waste at a geologic repository operations area only after written no*.ification from the Commission of its complecion of its review under this paragraph and of its determination that it is appropriate for the Director to issue such a construction authorization or license. This commission review of uncontested issues is not part of the adjudicatory proceeding.

(3) No suspension of the effectiveness of a Hearing  ;

Licensing Beard's initial decision or postponement of the Director's issuance of a construction authorization or license  ;

that results from a Commission supervisory examination of contested issues under paragraph (c)(1) of this section or a

f }

l

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review of uncontested issues under paragraph (c)(2) of this section will be entered except in writing with a statement of the reasons. such suspension.or postponement will be limited to such period as is necessary for the commission to resolve the matters at issue. If the supervisory examination results ,

in a suspension of the effectiveness of the Hearing Licensing Board's initial decision under paragraph (c) (1) of this section, the Commission will take review of the decis' ion sua

, sponte and further proceedings relative to the contested matters at issue will be in accordance with procedures for participation by the DOE, the NRC' staff, or other parties and interested governmental participants to the Hearing Licensing Board proceeding established by the Commission in its written statement of reasons. If a postponement results from a review under paragraph (c)(2) of this section, comments on the uncontested matters at issue may be filed by the DOE within ten days of service of the Commission's written statement.

l Dated at Rockville, MD this day of Cha h w , 1988.

For e Nuclear Re gulatory Commission.

I Samuel J Chilk, secretary of a Commission. T[

l l

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