ML20206E558

EDO Control of Rulemaking Package Re 10CFR60, Definition of High-Level Radwaste & Procedural Amends Dealing W/Site Characterization & Participation of States & Indian Tribes. Continuation of Rulemaking Approved

ML20206E558
Person / Time
Issue date:	04/10/1985
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	Minogue R NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES)
References
NUDOCS 8606230421
Download: ML20206E558 (280)

Text

APR 101985 i

MEMORANDUM FOR: Robert B. Minogue, Director (

Office of Nuclear Regulatory Research FROM: William J. Dircks Executive Director for Operations

SUBJECT:

CONTROL OF NRC RULEMAKING

, By memorandum of February 13, 1984, " Control of NRC Rulemaking by Offices L Reporting to the EDO," Offices were directed that effective April 1,1984, (1) all offices under ED0 purview must obtain my approval to begin and/or continue a specific rulemaking, (2) resources were not to be expended on rule- I makings that have not been approved, and (3) RES would independently review rulemaking proposals forwarded for my approval and make recommendations to me concerning whether or not and how to proceed with the rulemakings.

~ In accordance with my directive, the following proposals concerning rulemaking ,

have been forwarded for my approval.

Proposed revision of 10 CFR Part 60 " Definition of High-Level Radioactive Waste" (Sponsored by RES . memorandum, Minogue to EDO dated March 12,1985.)

Proposed revision of 10 CFR Part 60, " Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian Tribes."

(Sponsored by RES - memorandum, Minogue to ED0 dated March 12,1985.)

I approve continuation of these rulemakings. The NRC Regulatory Agenda (NUREG-0936) should be modified to reflect the status of these rulemakings.

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\*****/ MAR 121985 MEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Robert B. Minogue, Director Office of Nuclear Regulatory Research

SUBJECT:

REVIEW BY ED0 0F ONG0ING RULEMAKINGS SPONSORED BY RES Enclosed is the review package of a specific ongoing rulemaking for which RES is the sponsoring office.

RES recommends that the rulemaking on the revision of the HLW definition in Part 60 continue. In sumary, the basis for my recomendation is as follows:

o The current system of waste classification leaves a very wide range j of radioactive wastes open to classification as either HLW or LLW.

Responsibility for disposal of many of these wastes is not defined.

This uncertainty is detrimental to both the HLW program, where DOE has responsibility for development of HLW geologic repositories; and the LLW program, which gives States the responsibility for LLW disposal. A rulemaking action which reduces the range of uncertainty concerning disposal responsibility would be beneficial.

o The Commission has asked the staff to review the definition of HLW in 10 CFR 60 in light of the passage of the Nuclear Waste Policy Act of 1982. This is a key part of the overall Comission directive to review the need to revise NRC regulations due to the passage of the Act.

o The staff is recomending an ANPR at this time because the staff needs additional information before proposing rulemaking. The staff believes that an ANPR would be an effective method of acquiring additional information.

2 MAR 121985 My recommendations concerning whether and how to continue with this proposed rulemaking sponsored by RES have been coordinated in draft form with the Division of Waste Management in NMSS.

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Ro'bert B. Minogue, irector Office of Nuclear Regulatory Research

Enclosure:

RES Rulemaking Review Package .

for 10 CFR Part 60--Definition ' -

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MAR 12 W MEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Robert B. Minogue, Director Office of Nuclear Regulatory Research

SUBJECT:

REVIEW BY ED0 0F ONG0ING RULEMAKINGS SPONSORED BY RES Enclosed is the review package of a specific ongoing rulemaking for which RES is the sponsoring office.

RES recommends that the rulemaking on the revision of the HLW definition in Part 60 continue. In summary, the basis for my recommendation is as follows:

o The current system of waste classification leaves a very wide range of radioactive wastes open to classification as either HLW or LLW.

Responsibility for disposal of many of these wastes is not defined.

This uncertainty is detrimental to both the HLW program, where DOE has responsibility for development of HLW geologic repositories; and the LLW program, which gives States the responsibility for LLW disposal. A rulemaking action which reduces the range of uncertainty concerning disposal responsibility would be beneficial.

o The Commission has asked the staff to review the definition of HLW in 10 CFR 60 in light of the passage of the Nuclear Waste Policy Act of 1982. This is a key part of the overall Commission directive to review the need to revise NRC regulations due to the passage of the Act.

o The staff is recomending an ANPR at this time because the staff needs additional information before proposing rulemaking. The staff believes that an ANPR would be an effective method of acquiring additional information.

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W 121965 My recommendations concerning whether and how to continue with this proposed rulemaking _ponsored by RES have been coordinated in draft form with the Division of Waste Management in NMSS.

Crisinal sisned bFs spEttr B. gneSE Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

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MEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Robert B. Minogue, Director Office of Nuclear Regulatory Research

SUBJECT:

REVIEW BY ED0 0F ONG0ING RULEMAKINGS SPONSORED BY RES Enclosed is the review package of a specific ongoing rulemaking for which RES is the sponsoring office.

RES recommends that the rulemaking on the revision of the HLW definition in Part 60 continue. In summary, the basis for my recommendation is as follows:

o The current system of waste classification leaves a very wide range of radioactive wastes open to classification as either HLW or LLW.'

Responsibility for disposal of many of these wastes is not defined.

This uncertainty is detrimental to both the HLW program, where DOE has responsibility for development of HLW geologic repositories; and the LLW program, which gives States the responsibility for LLW disposal. A rulemaking action which reduces the range of uncertainty concerning disposal responsibility would be beneficial.

o The Commission has asked the staff to review the definition of HLW in 10 CFR 60 in light of the passage of the Nuclear Waste Policy Act of 1982. This is a key part of the overall Commission directive to review the need to revise NRC regulations due to the passage of the Act.

o The staff is recommending an ANPR at this time because the staff needs additional information before proposing rulemaking. The staff believes that an ANPR would be an effective method of acquiring additional information.

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My recommendations concerning whether and how to contir.ue with this proposed rulemaking sponsored by RES have been coordinated in draft form with the Division of Waste Management in NMSS.

Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

RES Rulemaking Review Package for 10 CFR Part 60--Definition '

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I REGULATORY AGENDA ENTRY I j

TITLE:

ADVANCE NOTICE OF PROPOSED RULEMAKING-DEFINITION OF HIGH-LEVEL RADI0 ACTIVE l WASTE IN 10 CFR 60 CFR CITATION:

10 CFR 60 ABSTRACT:

NRC is contemplating revising the definition of HLW in Part 60 to reflect certain changes in the legal definition of HLW contained in the Nuclear Waste Policy Act of 1982. Due to the complex issues involved in revising the definition of HLW, which affects virtually the entire radioactive waste management system, the staff is proposing an ANPR rather than a proposed rule.

A revision of the definition of HLW would have an effect on DOE's plans for a l geologic repository, state plans for regional compacts to manage low-level waste, Federal vs. State responsibility for some above Class C wastes, cost of waste disposal for certain waste generators, and the development of new technologies and facilities to dispose of certain types of wastes. A definition of HLW which reduces uncertainty about responsibility for different types of wastes would benefit the radioactive waste management system. NRC would require staff effort from RES, ELD, NMSS and OSP to carry out a ulemaking, but such a rulemaking which reduces uncertainty might save NRC resources in the future by reducing the need for case-by-case reviews, and minimizing litigation.

TIMETABLE:

1) ANPR to Comission - 5/1/1985

2) ANPR published - 7/1/1985 LEGAL AUTHORITY:

Public Law 97-425, 42 U.S.C. 10101

~

EFFfCTS ON SMALL BUSINES'S AND OTHER ENTITIES:

P,ossibly on small business waste generators AGENCY CONTACT:

Clark Prichard '

Waste Management Branch  !

Office of Nuclear Regulatory Research Washington, DC 20555~

301-427-4586 i

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RULEMAKING AS CURRENTLY PROPOSED

. {7590-0Q 6 -

(2/14/85)

NUCLEAR REGULATORY COMMISSION 10 CFR Part 60 Definition of "High-Level Radioactive Waste" AGENCY: Nuclear Regulatory Comission.

ACTION: Advance notice of proposed rulemaking.

SUMMARY

The Comission has previously adopted regulations with respect to the disposal of high-level radioactive waste (HLW) in geologic repositories.

The Comission is considering changes in the definition of HLW in those regulations so as to follow more closely the statutory definition in the Nuclear Waste Policy Act of 1982 (NWPA). In this advance notice of proposed rulemaking, the Comission identifies legal and technical considerations that are pertinent to the definition of HLW, describes options for modifying the current definition of HLW, and solicits public coment.

While the Comission has initiated this effort under the provisions of the Nuclear Waste Policy Act, any revised definition of HLW will significantly affect the management of low-level wastes as well, since the Low Level Radioactive Waste Policy Act (LLRWPA) defines low-level wastes to include

' radioactive wastes other'than HLW, transuranic wastes, or mill tailings.

Providing for the disposal of materials classified as HLW by rule would be a Federal government responsibility as provided by the NWPA, while the States are responsible under the LLRWPA for providing disposal capacity for LLW (other than LLW from atomic energy defense activities or Federal research and development activities). Thus, any revised definition of HLW ,

developed by the Comission will directly affect the types and quantities of low-level wastes for which the States are responsible.

1 Enclosure

(7590-0Q Radioactive wastas have historically been defined largely by the source where they were generated. This method of classification is not correlated directly with the hazards of the wastes, with the resuit that low-level and high-level wastes as currently defined, span wide and overlapping ranges of radionuclide concentrations. The Commission is considering ways to define HLW (and thus LLW) on a sound technical basis that would correspond more closely to the human health risks of the wastes. In addition to improving the technical basis for the definition e' HLW, the Commission is seeking to develop a more precise definition to facilitate planning by waste generators and by State and Federal governments for carring out their waste management responsibilities.

This advance notice describes three principal options identified by the Comission for revising the current definition of HLW in 10 CFR Part 60.

Under the options described in this notice, certain additional wastes would be defined as HLW for purposes of the Nuclear Waste Policy Act. While materials so classified should be disposed of in a manner that assures permanent isolation, and as a result of such classification they would not be subject to State responsibility to provide available disposal capacity, the classification in itself would not necessitate disposal in a geologic repository. Other technologies, including those that may be developed in the future, may be acceptable if they adequately protect public health and safety. The Comission anticipates that the options described in this advance notice would substantially reduce current uncertainties regarding the classification of radioactive waste materials.

Many of the issues discussed in this advance notice are associated with the waste classifications and disposal responsibilities provided in NWPA and LLRWPA. For example, these acts refer to " transuranic waste," but the term is not defined and no governmental responsibility for disposal of such waste is assigned. On February 7, 1985, Rep. Morris K. Udall introduced H. R. 1083, the Low-Level Radioactive Waste Policy Amendments Act. Among other things, this bill would establish a Federal government responsibility for disposal of all radioactive wastes (except uranium mill tailings) with concentrations exceeding the current Class C limits of 10 CFR Part 61, and would explicitly define a " transuranic waste" category. If this bill becomes law, many of the issues discussed in this advance notice will have been resolved.

2 Enclosure

, {7590-011 DATES: Comment period expires [ insert date 90 days after publication of this advance notice in the FEDERAL REGISTER]. Comments received after this date will be considered if it is practical to do so, but assurance of considera-tion cannot be gtven except as to comments received on or before this date.

ADDRESSES: Send comments or suggestions to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Copies of comments received may be examined at the NRC Public Document Room, 1717 H Street N.W., Washington, DC 20555.

FOR FURTHER INFORMATION CONTACT:

W. Clark Prichard, Division of Radiation Programs and Earth Sciences, Office of Nuclear Regulatory Research, U.S.

Nuclear Regulatory Commission, Washington, D.C. 20555, telephone (301) 427-4586.

=

.p 3 Enclosure

i

, 17590-011 SUPPLEMENTARY INFORMATION:

I. Background There has long been a recognition that certain radioactive waste materials produced in the uranium fuel cycle require long-term isolation from man's biological environment and that, in view of public health and safety considerations, disposal of such wastes must be accomplished by the federal government on federally owned land. This policy was codified by the Atomic Energy Commission (AEC) in 1970, in Appendix F to 10 CFR Part 50.

The class of materials subject to this policy was called "high-level liquid radioactive wastes." The term was defined in terms of the source of the material rather than its hazardous characteristics. Specifically, Appendix F to 10 CFR Part 50 defined high-level waste as "those aqueous wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuels." As used in Appendix F, "high-level waste" thus refers to radioactive fission product and certain concentrated transuranic wastes generated at reprocessing plants. The .

term does not include incidental wastes resulting from reprocessing plant operations -- e.g., ion exchange beds, asphalted sludges, vermiculited sludges, and contaminated laboratory items, clothing, tools, and equipment. Nor are radioactive hulls and other irradiated and contaminated fuel structural hardware within the Appendix F definition.1 The first statutory use of the term "high-level radioactive waste" occurs in the Marine Protection, Research, and Sanctuaries Act of 1972 (Marine Sanctuaries Act). Congress adopted the Appendix F definition, but broadened it to include unreprocessed spent fuel as well.2 Two years later, the AEC was 1See 34 FR 8712, June 3, 1969 (notice of proposed rulemaking), 35 FR 17530 at 17532, November 14, 1970 (final rule). Incidental wastes generated in further treatment of HLW (e.g. decantaminated salt with residual activities on the order of 1,500 nCi/g Cs-137, 30 nCi/g Sr-90, 2 nCi/g Pu, as described in Department of Energy's FEIS on long-term management of defense HLW at the Savannah River Plant, 00E/EIS-0023,1979) would also, under the same reasoning, be outside the Appendix F definition.

2Sec. 3, Pub. L.92-532, as amended by Pub. L.93-254'(1974), 33 U.S.C. 1402.

l l 4 Enclosure gw- -- ms - - - - m-,m--, n. --a- - - w n,<wmm

17590-0Q abolished and its functions were civided between the Energy Research and Development Administration (now the Department of Energy) and the Nuclear Regulatory Comission (NRC or Comission). Energy Reorganization Act of 1974, Pub. L.93-438, 42..U.S.C. 5811. Under this legislation, certain activities of the Administration were to be subject to the Comission's licensing and regulatory authority. Specifically, NRC was to exercise licensing authority as to certain nuclear reactors and the follow 1ng waste facilities:

(3) Facilities used primarily for the receipt and storage of high-level radioactive wastes resulting from activities licensed under [the Atomic Energy] Act.

1 (4) Retrievable Surface Storage Facilities and other facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by the Administration, which are not used for, or are part of, research and development activities.3 Although neither the statute nor the legislative history defines the term "high-level radioactive waste" (HLW), the earlier usages in Appendix F and the Marine Sanctuaries Act are indicative of the meaning. The Comission so consttued the statute when it declared spent nuclear fuel to be a form of HLW and, by the same token, when it found transuranic-contaminated wastes (which might require long-term isolation in a Federal repository) not to be HLW.4 3Sec. 202, Pub. L.93-438, 42 U.S.C. 5842. Nuclear waste management responsibilities were subsequently transferred to the Department of Energy. Secs. 203(a)(8), 301(a), Pub. L. 95-91, 42 U.S.C. 7133(a)(8),

7151(a).

4 Proposed General Statement of Policy, " Licensing Procedures for Geologic f Repositories for High-Level Radioactive Wastes," 43 FR 53869, 53870, November 17, 1978; Report to Congress, " Regulation of Federal Radioactive Waste Activities", NUREG-0527 (1979), 2-1, 2-2, Appendix G.  !

l i i i l l 5 Enclosure t I__ ..

17590-011 i

l A different statutory formula appears in the West Valley Demonstration Project Act (West Valley Act), enacted in 1980. This legislation authorizes the Department of Energy (00E) to carry out a high-level radioactive waste management demonstration project for the purpose of demonstrating solidification techniques which can be used for preparing high-level radioactive waste for disposal. It includes the following definition:

The term "high level radioactive waste" means the high level radioactive waste which was produced by the reprocessing at the Center of spent nuclear fuel. Such term includes both liquid wastes which are produced directly in reprocessing, dry solid material derived from such liquid waste and such other material as the Commission designates as high level radioactive waste for purposes of protecting the public health and safety.5 The Commission has not yet designated any "other material" as HLW under the West Valley Act. Rather, it has construed the term in a manner equivalent to the Appendix F definition. That is, it is the liquid wastes in storage at the Center and the dry solid material derived from solidification activities that are regarded as HLW, and it is DOE's plans with respect to such wastes that are subject to the Commission's review.

Current NRC Regulations.

The Commission has adopted regulations that gover:. che licensing of DOE activities at geologic repositories for the disposal of HLW. The regulations define HLW in the jurisdictional sense. That is, if the facility is for the SSec. 6(4), Pub. L.96-368, 42 U.S.C. 2021a note.

l 6 Enclosure i 1

j_7590-0Q i l

l

" storage" of "HLW" as contemplated by the Energy Reorganization Act, the prescribed procedures and criteria would apply.6 The appropriate definition i for this purpose draws upon the understanding in 1974, as reflected in Appendix F and the . Marine Sanctuaries Act, rather than the words of the West Valley Act of more limited purpose and scope.

It should be emphasized that NRC's existing regulations in Part 60 do not recuire that any radioactive materials, whether HLW or not, be stored or I

disposed of in a geologic repository.7 Nor do they provide that radioactive materials must be HLW in order to be eligible to be disposed of in a geologic repository. Part 60 expressly provides for NRC review and licensing with l respect to any radioactive materials that may be emplaced in a geologic repository authorized for disposal of HLW. The significance of the term "high-level radioactive waste" as it appears in Part 60 is solely to identify the class of facilities subject to NRC jurisdiction.

The Commission has also adopted certain other regulations related to land disposal of radioactive wastes. 10 CFR Part 61. Based on analyses of human health risks, these regulations identify three classes of low-level l radioactive wastes which are routinely acceptable for near-surface disposal, I with " Class C" denoting the highest radionuclide concentrations of the three.

(See Appendix B for a brief discussion of the development of 10 CFR Part 61.)

j Class C does not, however, denote a maximum concentration limit for low-level

wastes. The low-level waste category includes all wastes not otherwise 6NRC regulations are codified in 10 CFR Part 60 (Part 60). DOE is required to  !

have a license to receive source, special nuclear or byproduct material at a 1 geologic repository operations area. 9 60.3. A geologic repository operations I i area is defined to refer to a "HLW facility" which in turn is defined as a facility subject to NRC licensing authority under the Energy Reorganization Act of 1974, note 3, supra. 9 60.2. The Part 60 definition of HLW, ibid.,

l i

1s as follows:

I "High-level radioactive waste" or "HLW" means: (1) Irradiated reactor fuel, (2) liquid wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for

, reprocessing irradiated reactor fuel, and (3) solids into which such

, liquid wastes have been converted.

i 7In the event that commercial reprocessing of irradiated reactor fuel is

pursueo, Appendix F of 10 CFR Part 50 would require that the resulting reprocessing wastes be transferred to a Federal repository.

7 Enclosure I

17590-0Q classified, while HLW is defined by source (rather than concentration or hazard) l and is limited to reprocessing wastes and spent fuel. Thus, there is no regulatory limit on the concentrations of LLW, and some LLW (exceeding Class C concentrations) Inay have concentrations exceeding those of HLW.

Nuclear Waste Policy Act of 1982.

The Nuclear Waste Policy Act of 1982 (Waste Policy Act), Pub. L.97-425, provides for the development of repositories for the disposal of high-level radioactive waste and establishes a program of research, development, and demonstration regarding the disposal of high-level radioactive waste.8 Instead of adopting the Appendix F language, as the Marine Sanctuaries Act j had done, the Waste Policy Act follows, with some modification, the text of j the West Valley Act. The new law provides that the term "high-level radioactive waste" means:

(A) The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in repro-cessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and

! (8) other highly radioactive material that the Comission, consistent with existing law, detemines by rule requires permanent isolation.9 l It should be noted that the Waste Policy Act does not require that materials regarded as HLW pursuant to this definition be disposed of in a j geologic repository. Indeed, the Waste Policy Act directs the Secretary (of DOE) to continue and accelerate a program of research, development and 8For purposes of the Waste Policy Act, " spent nuclear fuel" is distinguished from "high-level radioactive waste," but the provisions of the statute dealing with such spent nuclear fuel are not of present concern.

95ec. 2(12), Pub. L.97-425, 42 U.S.C. 10101(12).

8 Enclosure

17590-0Q investigation of alternative means and technologies for the permanent disposal of HLW.10 Part 60 and the changes discussed in this notice would allow for consideration of such alternatives by the Comission. Nevertheless, the Waste Policy Act does not specifically authorize DOE to construct or operate i

facilities for disposal by alternative means, and new legislative authorization i

might be needed in order to dispose of HLW by means other than emplacement in a deep geologic repository.

The oefinition of HLW in the Waste Policy Act is a departure from earlier formulations, including the one that appears in Part 60. The questions thus arise whether there is any material difference between the language in the regulations and the new law and whether new or revised rules ought to be adopted

by the Comission. By this notice, the Comission advises all interested 1 persons that such rulemaking is contemplated. The discussion that follows treats the two clauses of the Waste Policy Act separately. The Comission sol 1cits coments regarding its analysis of the law as well as any suggestions that may assist in the fonnulation of proposed rules.

A. Clause (A). The Comission finds that there is no material l difference between HLW as defined in Part 60 and Clause (A) of the Waste Policy Act. In arriving at this position, the Commission has concluded that the term "in sufficient concentrations" (which applies only to solids derived from liquid reprocessing wastes) should be interpreted in a manner consistent with earlier definitions, so that a numerical approach is not necess?ry.

Following this approach, there would be general congruence between HLW as referred to in the Energy Reorganization Act and Clause (A) of the Waste Policy Act. A fuller explanation of the Comission's rationale regarding Clause (A) is presented in Appendix A of this notice.

l 10Sec. 222, Pub. L.97-425, 42 U.S.C. 10202.

l 9 Enclosure r

1

(7590-011

8. Clause (B). The definition of Clause (B) of the Waste Policy Act pertains to "other highly radioactive material" that " requires permanent isolation," i.e., waste materials which were not HLW within the meaning of Part 60. The ph ase "other highly radioactive material" is considered to include some or all of the radioactive waste materials (now considered LLW) with radionuclide concentrations exceeding those considered generally acceptable for near-surface disposal under the Comission's LLW regulation, 10 CFR Part 61.

The following section of this advance notice discusses technical considerations relevant to waste classification under Clause (B).Section III identifies legal considerations related to the definition of HLW, and Section IV discusses three options identified by the Comission for modifying the current HLW definition.

II. Technical Considerations Related to Waste Classification. '

The hazards posed by radioactive wastes span a continuum from negligible to very high risks, and it has been found practical to group wastes into categories corresponding to the isolation 11 capabilities of the facilities available.for waste disposal. However, a lack of specific information regarding the capabilities of different types of conceptual disposal facilities has, in the past, delayed development of a waste classification system based on facility performance for wastes with concentrations exceeding the Class C limits of 10 CFR Part 61. This section describes some of the types and characteristics of facilities which might be used for waste disposal, the characteristics of wastes which are candidates for classification, and the types of analyses which the Comission would use for waste classification.

11The term " isolation" is defined in 10 CFR Part 60 to mean " inhibiting the transport of radioactive material so that amounts and concentrations of this material entering the accessible environment will be kept within prescribed limits."

10 Enclosure

{7590-011 ,

Types of Disposal Facilities.

At the present time, the only licensed facilities available in the U.S.

for disposal of radioactive wastes are near-surface disposal facilities in which wastes are emplaced in trenches (shallow land burial). The Department of Energy has used various (unlicensed) near-surface disposal facilities, including trenches, pits, ponds and cribs, for disposal of both solid and liquid radioactive wastes.

Several concepts are currently under development both in the U.S. and in other countries for disposal facilities, referred to here as " greater confinement facilities," which would provide a greater degree of isolation than current shallow land burial facilities. Enhanced isolation could be achieved at these facilities either by emplacement of wastes at greater depths below the earth's surface or by substantial use of engineered barriers.

Examples of such facilities include near-surface concrete bunkers and deep augered holes. DOE has also used a hydrofracture process in which liquid wastes mixed with cement and other materials are injected into a deep shale formation.

A third type of facility -- the deep geologic repository -- is under development and would provide the most secure degree of isolation for the most hazardous category of wastes. A repository would be located as much as 1000 meters below the surface of the earth in a geologic formation selected for its long-term stability, favorable waste isolation characteristics, and low potential for accidental human intrusion.

Other waste disposal options, including ocean disposal and disposal in space, are less likely to be used in the near future than are terrestrial means of disposal.. For this reason, only terrestrial disposal concepts are discussed in this advance notice.

Characteristics of Disposal Facilities.

The general types of waste disposal facilities described above can be distinguished by the following characteristics:

i 11 Enclosure

17590-0Q

--Reliance on Active Institutional Controls. Near-surface disposal facilities rely significantly on institutional controls for monitoring, maintenance and use of security measures to prevent inadvertent human intrusion during the first century foltowing waste emplacement. Present regulatory practice is j that such active institutional controls should not be relied on to remain j effective for more than about a century. Accordingly, geologic repositories f and other disposal methods are required by NRC regulations to be designed so j that such active institutional controls, even if provided for, are not required j for acceptably safe waste isolation.

--Stability. Near-surface disposal facilities at well selected sites can be j expected to remain stable for a few to several centuries, but may be subject j to natural processes such as erosion which would eventually degrade their performance. On the other hand, geologic repositories will be located in geologic formations which are selected to remain stable for many thousands of years and for which the likelihood of natural disruptive events or processes  !

4 in such formations is anticipated to be low. Other types of disposal facilities l will generally exhibit intermediate degrees of stability with some approaching l the stability of a geologic repository.

--potential for Human Intrusion. The likelihood of inadvertent human intrusion i

into a waste disposal facility depends on factors including the depth below l land surface, use of engineered intrusion barriers, and the presence of  ;

resources or other features which might promote future site exploration.

The likelihood of future inadvertent human intrusion into a disposal facility

is obviously very difficult to predict, but would generally be expected to be l reduced with increasing depth below land surface. Engineered barriers may be l

J effective in preventing,or deterring some types of intrusion, especially for j near-surface facilities. Location of disposal facilities away from known deposits of mineral resources or unique geologic features would reduce the l potential for inadvertent intrusion via mineral exploration activities.

l l --Temporal Separation from the Environment. The length of time during which l a disposal facility can be relied on to provide isolation (in the absence of j natural or human-induced disruptive events or processes) is dependent on a j number of factors including the depth of disposal, the geochemical and l geohydrologic features of a site, use of engineered barriers and the l characteristics of the waste materials. Some disposal concepts, including l

12 Enclosure

m 17590-0Q near-surface disposal, are limited by proximity to the earth's surface and/or proximity to groundwater resources such that they can effectively isolate wastes only for periods of a few to several centuries. These disposal facilities are therefore unsuitatrie for highly radioactive wastes unless the half-lives of the waste radionuclides are short so that the radioactivity of the waste will decay substantially within a few centuries. Wastes containing longer-lived radio-nuclides may be disposed of in such facilities only if the concentrations and quantities of long-lived radioactive materials are sufficiently low. Other disposal concepts can provide isolation for longer periods of time, with properly sited and designed geologic repositories capable of isolating wastes for tens of thousands of years.

The disposal facility characteristics discussed above can be sumarized as being of two general types: 1) the capability of a facility to provide stable waste isolation without significant risk of disruption due to natural or human-induced events or processes, and 2) the degree of reliance on active institutional controls required to achieve such waste isolation.

Permanent Isolation of Wastes Since the Comission is to define as HLW highly radioactive material that

" requires pemanent isolation," it is essential to define what the elements of permanent isolation may be. The Comission has identified two possible interpretations of this term.

First, the Nuclear Waste Policy Act clearly envisions disposal of HLW in a deep geologic repository.12 Thus, the term "pemanent isolation" can be 12The Nuclear Waste Policy Act includes the following definitions:

The term " disposal" means the emplacement in a repository of high-level radioactive waste, spent nuclear fuel, or other highly radioactive material with no foreseeable intent of recovery, whether or not such emplacement permits the recovery of such waste.  ;

1 The term " repository" means any system licensed by the Comission that is intended to be used for, or may be used for, the permanent deep geologic disposal of high-level radioactive waste and spent nuclear fuel, whether or not such system is designed to permit the recovery, for a limited period during initial operation, of any materials placed in such system. I Such term includes both surface and subsurface areas at which high-level radioactive waste and spent nuclear fuel handling activities are conducted.

13 Enclosure

DS90-011 -

interpreted to mean isolation equivalent 13 to that provided by a deep geologic repository. Such an interpretation would be consistent with past use of the l term "high-level waste," including the requirement for transfer of reprocessing wastes to a Federg repository in Appendix F of 10 CFR Part 50.

An alternative interpretation would recognize that certain disposal facilities, while less secure than a deep geologic repository, are nevertheless capable of isolating wastes for an extended period of time. For wastes with suitable concentrations and half-lives, such isolation could be considered to be " permanent" if certain conditions are met. The disposal facility characteristics discussed above suggest two criteria for defining the elements of " permanent isolation." ,First, permanent isolation includes the isolation of wastes for a duration extending beyond the period during which active institutional controls may be relied upon. But this is not sufficiently limiting. The Comission believes that only certain kinds of facilities that provide isolation over this extended period could be regarded as affording " permanent isolation" in the sense of the NWPA. Clearly, a geologic repository is a facility that qualifies; and a shallow land burial facility is one that does not. A second element is needed to differentiate between these two. The Comission suggests that the critical distinction is that the repository must be capable of providing stable isolation without a significant risk of disruption due to natural or human-induced events or processes for a period of time long enough to allow the radioactivity of the waste to decay so that any releases are within acceptable limits. Some of the disposal concepts described above may be able to provide stable waste isolation for several centuries or longer (e.g., 500 years or more), and may provide permanent isolation in this sense.

The Comission recognizes that a third interpretation of " permanent iso-lation" is possible -- i.e., that any disposal method more secure than current shallow land burial practice represents permanent isolation. The statutory -

language and legislative history provide little guidance, but the Comission believes that this interpretation does not faithfully reflect legislative 13 Equivalent in terms of the capability to provide long-term stable waste isolation without significant risk of natural or human-induced disruption and without reliance on active institutional controls.

14 Enclosure

, - --_ -_ _ . _ ._?-. - ._ . .

9590-0Q intent. Some near-surface disposal concepts (e.g., burial at depths up to 30 meters or use of engineered barriers) would provide more stability than shallow land burial, but the Commission would not judge this increased stability to be suTficient to constitute permanent isolation.

Types of Wastes Clause (B) of the Nuclear Waste Policy Act refers to "other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation." The Comission considers that the phrase "other highly radioactive material" includes some or all of the radioactive waste materials with radionuclide concentrations exceeding the Class C limits of the Comission's LLW regulation,10 CFR Part 61. The Class C limits serve here to limit the range of radionuclide concentrations which might be considered for possible inclusion within a modified definition of the term "high-level radioactive waste." In this notice the Commission is' concerned only with "above Class C" wastes, and does not propose to amend the Part 61 classification system regarding wastes routinely acceptable for near-surface disposal.

The NRC has examined available infonnation regarding NRC and Agreement State licensees in order to identify the types of wastes currently being generated and likely to be generated in the future with radionuclide concentrations exceeding the Class C limits. These wastes are described in Appendix E of this advance notice, and the estimated volumes of these wastes are sumari,ied in Table 1.

While there is uncertainty regarding the actual volumes of some of these wastes (particularly those to be generated in the future), it is apparent that the volumes of these wastes are considerably smaller than the approximately 3,000,000 cubic feet of radioactive wastes currently being disposed of each year by near-surface disposal.* The Comission would welcome coment on the. ,

• The wastes listed in Table I have higher radionuclide concentrations than other LLW currently being disposed of by near-surface disposal. Thus, the amount of radioactivity present in these wastes will be a larger fraction of total LLW radioactivity than the volume figures would suggest. Nevertheless, these wastes will not generate significant amounts of heat, and therefore the requirement for disposal facility capacity will be determined primarily by the waste volumes. For this reason (and because different radionuclides are present in the wastes), comparisons of total amounts of radioactivity in the wastes would not be meaningful.

15 Enclosure

17590-011 TABLE 1. VOLUMES OF AB0VE CLASS C WASTES PRESENT ANTICIPATED ACTIVATED METALS VOLUMES VOLUMES Reactor operations a,200 ft3/yr Same Spent Fuel Hardware (including fuel end fittings) a 4,000 ft3/yr* Same Decommissioned Reactor Core Shrouds Negligible a 4,000 fts/ reactor i

TRANSURANICS i

Fuel Burnup Lab Operation < 600 ft3/yr Same Fuel Burnup Lab Decommissioning Negligible r- 10,000 ft3/ facility l Sealed Source Manufacturing Operations *300 ft3/yr Same Sealed Source Manufacturing l

Decommissioning Negligible ^ 3,000 ft3/ facility Materials Licensee Decommissioning Small Small PHARMACEUTICALS a 10 ft3/yr Same LARGE SEALED SOURCES Small Small

• Assumes disassembly of spent fuel at reactor plants. Such hardware might be considered " spent fuel" under terms of NWPA and DOE's waste fund contracts, and thus would not need to be classified as either HLW or LLW.

I 1

16 Enclosure 1 __

9590-0Q types, volumes and characteristics of above Class C wastes currently being generated or likely to be generated in the future.

The concentrations of radioactivity in some above Class C wastes --

especially discrgte. sealed sources and some miscellaneous wastes -- may approach or exceed the concentrations in reprocessing wastes (currently classified as high-level wastes). However, the total quantity of radioactivity in such sources may be small compared to the amount of radioactivity present in reprocessing wastes. This smaller quantity of radioactivity raises questions as to whether such wastes are " highly radioactive" under NWPA. The Comission could find that unless specified values, such as concentration and/or total activity, were exceeded, the wastes in question would not be considered highly radioactive.

Waste Classification The Comission considers that any system for classification of wastes must be based on, or include provisions for, analyses of potential hazards to public health and safety. Such analyses would be an extension of the 10 CFR Part 61 waste classification system and would be carried out using the following general approach.

1) Establish acceptance criteria. The criteria for evaluating the safety of waste disposal concepts are expected to be similar to existing radiological safety criteria (e.g., limits on doses to individuals), with modifications as appropriate to accomodate the unique circumstances of waste disposal. (Such circumstances might include the time periods of concern and the difficulties inherent in predicting both human activities and natural events and processes over such time periods.) For a land disposal facility 14 as described in 10 CFR Part 61, the per'formance objectives of that Part would be applicable. Any environmental radiation protection standards applicable to waste disposal which might be promulgated by the Environmental Protection l

14In 10 CFR Part 61, the term " land disposal facility" refers to all facilities for disposal of radioactive wastes into the subsurface of the land, except geologic repositories as defined in 10 CFR Part 6,0. ,

l 17 Enclosure

{7590-0Q Agency under its Atomic Energy Act Authority would be considered in developing acceptance criteria.

2) Define disposal options. The hazard which a radioactive waste poses to public health depends, in part, on the nature of the facility used for its disposal. Thus, the candidate options for disposal of wastes would be defined in terms of the characteristics which contribute to isolation of wastes from the environment. For land disposal facilities, such characteristics might include depth of disposal, use of engineered barriers, and the geologic, hydrologic and geochemical features of a disposal site. If specific disposal facilities have not yet been developed, descriptions of " generic" facilities would be developed to the extent that available information could be considered adequate to evaluate disposal system performance.

1 l 3) Characterize wastes. Wastes would be characterized in terms of the factors which determine their hazard and behavior after disposal, including physical and chemical forms of the waste, the radionuclide concentrations and associated radiological characteristics, the waste volumes, and the heat generation rates.

4) Develop assessment methodology. Analytical methods (including mathematical models and computer codes) for projecting disposal system performance would be acquired or developed. For land disposal facilities, such methods would include models of groundwater flow and contaminant transport. An assessment methodology would also include descriptions of the natural and human-initiated disruptive events or processes to be evaluated.

5) Evaluate disposal system performance. The performance of the candidate disposal options would be evaluated to estimate the public health hazards from waste disposal. Hazards below the acceptance criteria of 1) above would indicate an acceptable match of waste type and disposal option.

6) Consider cost-effectiveness and environmental impacts of options. The cost-effectiveness and environmental impacts of the available disposal options would be considered as part of the analysis of disposal system performance.

18 Enclosure

17590-0Q Analyses of the type described above are currently being pursued by the Comission for land disposal of above Class C wastes, and will be used to determine the classes of wastes acceptable for disposal in particular types of facilities, as_was done by the Comission in developing its classifications for near-surface disposal in 10 CFR Part 61. Those kinds of highly radioactive wastes which would be acceptable only for disposal in a facility that provides permanent isolation, as discussed ooove, would be classified by rule as HLW.

N I

19 Enclosure

~ ~ ~ ^^ ^

l

. III. Legal Considerations Related to the Nuclear Waste Policy Act l

l The exercise of Clause (B) authority may give rise to a number of

. legal questions, discussed below.

1 A. NRC jurisdiction with respect to DOE facilities. One factor to be considered is whether the classification of certain materials as HLW would result in an extension of NRC licensing jurisdiction. This issue may arise l because, under the Energy Reorganization Act of 1974, NRC exercises licensing authority as to certain DOE facilities for the receipt and storage of "high-level radioactive wastes." The Commission has indicated on several occasions that it does not regard transuranic-contaminated waste

! materials (TRU) to be HLW within the meaning of the 1974 law (see note 4, l supra). Congressional approval of this interpretation may be inferred from j the repeated authorizations for the Waste Isolation Pilot Plant (WIPP) as a 1

facility outside NRC's regulatory purview.15 WIPP is a facility intended for 1

the disposal of transuranic-contaminated wastes generated by DOE and its  !

predecessors.

4 15See, e.g. , Sec. 213(a), Pub. L.96-164 (Department of Energy National

Security and Military Applications of Nuclear Energy Authorization Act of '

! 1980). An alternative basis for exemption from NRC licensing is that the i facility is "used for ...research and development activities," as specified i in Sec. 202(4) of the Energy Reorganization Act, note 3, supra. WIPP is to j

" include an experimental facility for conducting experiments on defense wastes, including small volumes of defense high-level waste," such high-level waste to be retrieved and removed prior to facility decommissioning. The R&D exemption applies to those activities with high-level waste. WIPP would

) also be used "for demonstrating the safe disposal of TRU waste" from defense  :

j programs. Such TRU waste would be disposed of permanently. The "demonstra- '

l' tion" of disposal is not an R&D activity as contemplated by Sec. 202(4). If the demonstration of TRU disposal were viewed as R&D, DOE might also engage  ;

in demonstration of the disposal of high-level waste as a R&D activity that  !

i is exempt from licensing. Such a construction, in the Connission's view, i j would be totally unwarranted. For further information, refer to Department i

of Energy, Waste Isolation pilot Plant (WIPP)i Record of Decinion, 46 FR  !

} 9162, Jan. 25,1981 (setting out the purposes of the WIPP fac' 11ty) and Nuclear ,

Waste and Facility Siting Policy: Hearinas Before the Senate Comm. on Energy l and Natural Resources, 96th Cong., 1st Sess. 115 (wr1tten NRC response to l conn 1ttee question on licensing the WIPP facility). l 20 Enclosure i l

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

17590-0Q

, There might still be a question, however, whether a decision to classify TRU as a form of HLW under the Waste Policy Act would render a facility for disposal of such waste -- e.g., WIPP -- subject to NRC jurisdiction. There is no indication thirt-Congress had any such intent; and the express provision 16 that nothing in the Waste Policy Act shall be construed to amend or otherwise detract from the licensing requirements of the NRC as established in the Energy Reorganization Act lends weight to the view that NRC's jurisdiction over DOE facilities would not be affected by defining TRU as HLW under the Waste Policy Act.

The inclusion of additional fission-product-containing wastes in the scope of HLW as defined under Clause (B) authority could also raise issues.concerning NRC's licensing jurisdiction. This would not be a problem .if such wastes were disposed of in a geologic repository that was already licensable because of the presence of Clause (A) high-level wastes. If entirely different facilities were needed, however, the issue of NRC jurisdiction would have to be addressed.

B. Disposal of waste generated by materials licensees. The Waste Policy l Act established a Nuclear Waste Fund composed of payments made by the generators and owners of "high-level radioactive waste" (and spent fuel) that will ensure that the costs of disposal will be borne by the persons responsible for generating such waste. The Nuclear Waste Fund is to be funded with moneys obtained pursuant to contracts entered into between the Secretary of Energy and persons who generate or hold title to high-level radioactive waste.

The statute addresses the particulars of contracts with respect to spent nuclear fuel and solidified high-level radioactive waste derived from spent nuclear fuel used to generate electricity in a civilian nuclear power reactor.

It further limits the authority of the Consnission to issue or renew licenses for utilization and production facilities -- i.e., for present purposes, nuclear reactors and reprocessing plants -- unless the persons using such facilities have entered into contracts with the Secretary of Energy.

16Sec. 114(f), Pub. L.97-425, 42 U.S.C. 10134(f).

21 Enclosure

17590-0Q The absence of any reference to materials licensees (e.g., fuel fabri-f cators, some research laboratories) suggests that the Nuclear Waste Fund was not intended to apply to their activities. As a result, there could be a j

question if the 6 emission were to define materials licensees' waste l as high-level waste, because the waste might thereby become ineligible for disposal in a repository. The reason is that the law prohibits disposal of HLW in a repository unless such waste was covered by a contract entered into i by June 30,1983 (or the date the generator or owner comences generation of

] or takes title to the waste, if later). No contracts have been entered into with materials licensees who are not also facility licensees. Thus, it can be 5

argued that the Comission should refrain from designating highly radioactive materials generated by materials licensees as HLW under Clause (B).17 The Comission does not consider such an approach to be viable. The Comission considers tnat the intent of this provision of the Waste Policy Act l 1s to identify those wastes that DOE must consider in planning its program to dispose of HLW. The statutory language refers solely to considerations relating to " permanent isolation," and the character of the licensee generating

) or owning the waste is simply not relevant. If there are gcod reasons to treat l that waste from materials licensees as HLW, the Connission regards it as likely l that ary statutory impediment to the kcceptance of such waste at a geologic j repository could be modified.

i l C. Confidence regarding disposal capacity for power reactors. The i

availability of waste disposal facilities for wastes generated at i commercial power reactors has been the subject of controversy and litigation.

l The Waste Policy Act addresses these concerns by establishing a Federal responsi-

! bility to provide for the construction and operation of a geologic repository, l leaving undefined (i.e., to the discretion of the Comission) the classes of l materials that require pennanent isolation in such a facility. Whatever i materials they may be, however, they must be transferred to DOE for disposal; and the persons responsible for generating the waste must enter into contracts I

i

. 17The Nuclear Waste Fund is governed by Sec. 302, Pub. L.97-425, 42 U.S.C.

10222. The prohibition of disposal of HLW not covered by timely contracts j issetoutinSec.302(b)(2).

I 22 Enclosure

i 17590-0Q with 00E which provide for payment of fees sufficient to offset DOE's costs of

{

disposal. Existing facility licensees were required to enter into such l contracts by June 30, 1983.

The Comiss4cn believes that the purposes of the Waste Policy Act can best be accomplished if all the highly radioactive wastes generated by facility licensees (reactors and reprocessing plants) which require permanent isolation are covered by waste disposal contracts with DOE. This would l assure that DOE can accept possession of such wastes when necessary. Further, j in the absence of such assurance, the basis for Comission confidence that these l wastes will be safely stored and disposed of would be subject to question even if concerns about the disposal of the licensees' spent nuclear fuel had been j laid to rest. Accordingly, if there are any highly radioactive materials 5 (other than those previously regarded as HLW) that are generated by facility licensees and that require permanent isolation, the Comission believes that, for purposes of the Waste Policy Act, they should be regarded as "high-level

waste." The Comission has reviewed the tems of DOE's standard waste disposal contract and believes that classifying such additional materials as HLW would l require no changes to the contract terms.

l i D. Implications with respect to disposal methods. Under the Atomic Energy Act of 1954,,the Comission is authorized to establish such standards to govern the possession of licensed nuclear materials as it may deem necessary or desirable to protect health.18 Under this authority, the 3

Comission may classify materials according to their hazards and may prescribe l requirements for the long-tenn management or disposal thereof. It is not necessary to label materials as HLW under the Waste Policy Act in order to require their disposal in a geologic repository or other suitably permanent i facility.

4 The Comission exercised this authority with respect to concentrated I

reprocessing wastes by specifying, in Appendix F to 10 CFR Part 50, that any l

18Sec.161b., Pub.L.83-703,42U.S.C.2201(b).

i e

I 23 Enclosure l

V 17590-011 i

such wastes generated at licensed facilities are to be transferred to a Federal repository for disposal. More recently, the Commission classified certain low-level wastes as being generally acceptable for near-surface disposal.10 CFR-Eart 61. On the basis of further consideration, the Commission could specify appropriate disposal means for wastes exhibiting l radionuclide concentrations greater than those defined in Part 61. Thus, the Commission need not exercise Clause (B) authority in order to assure that radioactive wastes from licensed activities are disposed of properly.

Moreover, the identification of material as HLW under Clause (B) would not by itself mandate that such material must be disposed of in a geologic repository. Such modification of the meaning of HLW would have no impact on the Commission's ability to approve or specify appropriate means of disposal ,

for wastes generated by NRC licensees.

E. Relationship to State role. The Low-Level Radioactive Waste Policy '

Act, Pub. L.96-573, 42 U.S.C. 2021b., enacted in 1980, defines a State responsibility to provide, pursuant to regional compacts, for the disposal of

" low-level radioactive waste" (LLW)*. Such waste is defined to mean

" radioactive waste not classified as high-l'evel radioactive waste, transuranic waste, spent nuclear fuel, or by-product material as defined in Section 11.e.(2) of the Atomic Energy Act of 1954." l One way in which the Low-Level Radioactive Waste Policy Act could be interpreted is to construe its reference to high-level waste to mean the same thing as it does in the Energy Reorganization Act -- i.e., the reprocessing strears described in Appendix F to 10 CFR Part 50. But this could place on l the States a responsibility for the management of all other highly radioactive materials, simply because they were generated in operations other than reprocessing. We do not-believe that was intended. Rather, it was left to the Commission to classify wastes, where appropriate, as HLW -- with the 4

• States are not responsible for disposal of LLW from atomic energy defense activities or Federal research and development activities.

t 24 Enclosure

17590-0Q

) result that their management would be a Federal responsibility.19 The l Connission has not heretofore provioed guidance on the criteria it would use l in making such classifications.

Under the 1980 statute, the material in question will be regarded as low-level if "not classified as" HLW. One means of classification is by rule.

, Unquestionably, wastes which are defined to be HLW under Clause (B) of the Waste Policy Act would thereby be classified as HLW and would hence not fall within the scope of State responsibility under the Low-level Radioactive Waste l Policy Act. But material could also be " classified" as HLW for purposes of j the latter law on a case-by-case basis. It would be regarded as HLW even though it falls within neither Clause (A) nor Clause (B) of the Waste Policy Act definition.

The options suggested in Section IV of this advance notice would classify 2 additional radioactive materials as HLW by rule. Two of the options would not eliminate all questions regarding the classification of waste materials -- but

by categorizing some additional materials as HLW under Clause (B) of the Waste Policy Act definition, the Connission would substancially reduce the range 19In December 1980, Congress took up comprehensive nuclear waste legislation (S.2189), eventually passing a truncated version as the Low-Level Radio-active Waste Policy Act. The bill as introduced made provision, among other things, for the disposal of high-level radioactive waste in repositories.

"High-level radioactive waste" was defined to include material other than reprocessing wastes "as the Commission designates as high-level radioactive 1 waste for purposes of protecting the public health and safety." When the i

HLW provisions were removed from the legislation, so too was the definiticn of "high-level radioactive waste." A presumably unintended consequence was 2

that the definition of " low-level radioactive waste" was made less clear -

since it referred to HLW, yet that tenn was no longer defined. Before the amendment, materials which the Connission found to be particularly hazardous would be high-level waste and not subject to State responsibility. The purpose of the amendment had nothing to do with this. Both before and after the amendment, it is reasonable to view Congress as having intended to exclude from State responsibility those materials which the Connission might designate as HLW for purposes of protecting public health and safety.

See 128 Cong. Rec. S16539-46 and H12494-97 (daily eds. Dec. 13,1980).

l i

25 Enclosure

U 17590-0Q of uncertainty. The Comission anticipates that if Clause (B) were implemented in this way, the principal concerns would have been addressed; it would be unlikely that case-by-case determinations would result in large additional volumes of radicattive wastes becoming the responsibility of the States contrary to their expectations. If further experience provioes a technical basis, along with a demonstrated need, to broaden the scope of materials to be classified as HLW under Clause (B) of the Waste Policy Act, this could of course be done at any time.

F. Impact on existing technical criteria. NRC's regulations in Part 60 include technical criteria to be applied in licensing DOE's receipt and l possession of source, special nuclear, and byproduct material at a geologic j repository. The regulations would accommodate the disposal of any radioactive materials, including spent fuel, reprocessing wastes, or any other materials which could be disposed of in accordance with the specified performance l objectives. i Materials categorized as high-level waste are subject to a containment  ;

requirement ($ 60.113(a)(1)(1)(A)) and to specified waste package design '

criteria and waste form criteria ($ 60.135 (a-c)). However, the rule explicitly provides that design criteria for waste types other than HLW will be addressed on an individual basis if and when they are proposed for disposal in a geologic repository. 960.135(d).

The criteria that have been established apply to wastes characterized by the presence of fission products generating substantial amounts of heat at the time of emplacement, but with much reduced heat generation after decades or a few centuries.20

.If additional materials were to be designated as high-level waste, the 1 Comission would need to consider whether the existing repository design criteria are appropriate with respect to such materials.

]

! 20The Comission's expectation that HLW would generate significant amounts of i heat is reflected in the discussion of TRU in the notice of proposed

, rulemaking. 46 FR 35284 Reduction of the heat load, for example by removal l' of cesium-137 and strontium-90, could result in different containment requirements. 48 FR 28196.

I i

26 Enclosure l i

17590-011 l G. Applicability of HLW definition to naturally-occurring and accelerator-produced radioactive materials. Clause (B) provides that the Comission may extend the definition of the term "high-level radioactive waste" to include mater 4e1 mquiring pemanent isolation only where this is i

" consistent with existing law." The applicable existing law is the Atomic  ;

Energy Act of 1954, under which the Comission has authority to regulate the possession and use of " source material," "special nuclear material," and

" byproduct material." There are other radioactive materials, however:

naturally-occurring radioistopes, such as radium, and accelerst:r produced  !

radionuclides. These are not covered by the Atomic Energy Act and hence there l

would no statutory basis, consistent with existing law, for the Comission to i require that they be disposed of in accordance with Comission regulations.

Furthennore, the legal authority for DOE to accept such wastes for disposal

! at a geologic repository might require legislative clarification.

Nevertheless, as already noted 10 CFR Part 60 contemplates that "other radioactive materials other than HLW" (as currently defined in Part 60) may be j received for emplacement in a geologic repository. Furthermore, Part 60 contains certain requirements applicable to HLW, but not applicable to other wastes which might be emplaced in a geologic repository. Part 60 provides -

that packaging requirements for other wastes that are disposed of in a licensed repository would be detemined on a case-by-case basis when these wastes are proposed for disposal. If the Comission should find, based on technical considerations, that certain naturally-occurring or accelerator-produced i radioactive waste materials present hazards similar to licensed materials that are defined as high-level waste and that would require permanent isolation to  ;

be disposed of safely, Part 60 would allow these wastes to be disposed of in a licensed repository. Such classification would not alter the Comission's regulatory authority with respect to such materials.

IV. Approaches to Exercise of Clause (B) Authority.

The Comission's purpose in developing a modified definition of HLW under l Clause (B) of NWPA is to identify those wastes which require permanent 1 isolation. Such identification would allow waste generators and the

governments respon,sible for disposal to plan accordingly for receipt and disposal of wastes.

27 Enclosure l

l l _ _ . _ _ _ __. . - - - _ ,_

m 17590-0Q The Comission does not intend to specify the disposal technologies (e.g., deep geologic repositories, near-surface disposal facilities) to be used for any particular type of waste. The Comission's current regulations (10 CFR Parts 60 and 61) do not require use of any particular means of disposal, and the Comission continues to consider it inadvisable to impose such requirements -- in part to accomodate possible development of different disposal technologies in the future.

The Comission has identified three options for developing a modified definition of HLW. All three options include provisions for classification of wastes according to the isolation capabilities of disposal facilities, but differ in the timing of such analyses. The first option would require completion of classification analyses prior to development of a definition of HLW, while the second and third options would develop an initial operating definition of HLW by other means, and would allow subsequent exceptions to the definition on a case-by-case basis as more information regarding waste characteristics and disposal system performance becomes available.

As discussed in Section II of this advance notice, the Comission has identified two possible interpretations of the term " permanent isolation."

The first would mean isolation equivalent to that provided by a deep geologic repository, while the alternate interpretation would mean stable isolation for several centuries or longer (e.g., 500 years or more) without significant risk of natural or human-induced disruption and without reliance on active institutional controls. Any of the three options discussed below could be implemented with either interpretation of " permanent isolation." As discussed in more-detail later in this advance notice, under either interpretation the first two options might effectively establish an " intermediate" class of wastes which would not be considered HLW, but which would also not be suitable for disposal using shallow-land burial facilities. If such a class of waste is found to exist, additional legislative clarification might be needed regarding governmental responsibility for providing disposal capacity for such wastes.

Option A--Define HLW by analysis of disposal technologies. One option for defining HLW would continue the Comission's on-going analyses of the 1

containment capabilities of various types of greater confinement disposal l

l l 28 Enclosure l

l

{7590-0Q facilities (e.g., highly-engineered near-surface facilities) to determine the waste types and concentrations which could be safely disposed of in them.*

These analyses would be carried out as described in Section II of this advance notice. --

Under the first interpretation of " permanent isolation" (meaning isolation equivalent to that provided by a geologic repository), all wastes found unsuitable for such greater confinement disposal methods would be classified as HLW. Other wastes with concentrations exceeding the current Class C limits which can safely be disposed of in greater confinement facilities would continue to be defined as low-level wastes, and the States would be responsible for providing facilities for their disposal.

Under the alternative interpretation of " permanent isolation," facilities would be considered to provide permanent isolation if they are found to be capable of providing stable isolation for several centuries or longer without significant risk of natural or human-induced disruptions and without reliance on institutional control. Wastes found to require the degree of isolation provided by such facilities would be defined as high-level wastes.

The primary advantage of this option is that it would comprehensively and unambiguously classify all wastes with concentrations excee' ding the current Class C limits based on the hazards of the wastes and the isolation capabilities of disposal facilities.

The major disadvantage of this option is the current uncertainty regarding both the characteristics of above Class C wastes and the waste isolation capabilities of greater confinement facilities. As discussed earlier, such facilities are still undergoing development, and evaluation of j the isolation capabilities of such facilities is therefore expected to require I substantial and lengthy analysis by the NRC before an expanded HLW definition could be developed. , l l

• It should be noted that it would not be adequate to merely examine the concentrations, half-lives and other radiological characteristics of wastes in order to evaluate the need for permanent isolation. The hazard to public health after waste disposal depends on the characteristics of a disposal facility, including its susceptibility to disruptions, as well as the nature of the waste. Thus, evaluations of disposal facility performance would be a necessary step in classifying wastes under this option.

29 Enclosure

~

G 17590-0Q It is also not clear that current legislation (NWPA and LLRWPA) was intended to assign responsibility for greater confinement facilities to the States. Current LLW disposal practice uses shallow land burial facilities, and it is reasonatrie to anticipate a reluctance of the States to develop more technically sophisticated facilities capable of providing safe disposal for wastes with higher radionuclide concentrations. Furthermore, the total volume of wastes with concentrations exceeding the Class C limits is expected to be relatively small, even for the entire nation. The economic costs of developing facilities on a state or regional basis might be significantly higher than the cost of developing one or a few national disposal facilities. Such higher costs could further contribute to a reluctance of the States to develop greater confinement disposal facilities, with the result that no such facilities would be made available in a timely fashion.

Option B--Define HLW by analogy with existing HLW. A more timely option l would examine the concentrations and radiological characteristics of existing high-level wastes (reprocessing wastes and spent fuel) in order to estimate the hazards posed by these wastes. Any above Class C wastes with similar concentrations and radiological characteristics would then also be classified as HLW. Remaining wastes with concentrations acove Class C would be classified on a case-by-case basis in the future (using analyses similar to those contemplated under Option A) as better information is developed regarding waste characteristics and the isolation capabilities of greater confinement facilities.21 Case-by-case analyses could address limited classes of wastes, l such as activated metals, in addition to individual waste items.

Although the exact values representative of reprocessing wastes which would serve as a definition of HLW requiring permanent isolation would need to be refined, a preliminary staff analysis 22 indicates that certain l

reprocessing stream waste materials can be characterized as exhibiting radionuclide concentrations as specified in the following Table 2.

21 Case-by-case analyses would be conducted as a rulemaking or using other procedural means to solicit the views of the States and other interested parties.

22 Draft NUREG-0946, An Evaluation of Highly Radioactive Material That Requires Permanent Isolation, 1983. Copies are available on request.

30 Enclosure

U 17590-011 TABLE 2.

Radionuclide Concentrations 23 Requiring Permanent Isolation Sr-90 210,000 Ci/m3 Cs-137 138,000 Ci/m3 Alpha-emitting TRU, Half-life _ 5 yrs 3,000 nCi/gm Pu-241 105,000 nCi/gm 8

under this option, wastes would be classified as HLW under the Waste 9 Policy Act and would be required to be disposed of by the Federal government if radionuclide concentrations exceeded the specified values. There would be an exception for small total quantities of radioactivity, but appropriate levels for such exceptions have not yet been analyzed.

The Commission would retain its authority, uncompromised, to identify on a case-by-case basis other wastes requiring permanent isolation (whichever way this term may be interpreted). Thus, public health and safety would not be placed at risk, since disposal of above Class C waste material (having concentrations exceeding those specified in Part 61 but below those in the table) or small quantities of highly radioactive material would be subject to individualized review, which would lead to a determination as to the appropriate waste classification.

23 Concentrations would be subject to averaging over the volume of the waste, but no credit would be allowed for dilution unless such dilution was required because of other technical considerations. For materials contain-ing a mixture of listed radionuclides, the sum of the fractions rule would apply, as under 10 CFR 661.55(a)(7).

31 Enclosure

,[7590-0Q The major advantage of this option is the timeliness with which a definition could be developed to reduce current uncertainty regarding waste classification. Both waste generators and disposal facility operators could begin to plan appropriately for disposal of those above Class C wastes which would initially be defined as HLW under this option. This option would also allow maximum flexibility to determine appropriate classifications and disposal modes for above Class C wastes as these wastes and potential disposal facilities are more thoroughly characterized in the future.

A major disadvantage would be the remaining uncertainty faced by both waste generators and disposal facility operators regarding the classifications of wastes not defined as HLW in the initial analysis. Planning for disposal of these wastes would likely be deferred until the wastes had been classified on a case-by-case basis. A second disadvantage of this option would be the initial lack of correlation between waste characteristics and the isolation capabilities of disposal systems, although subsequent case-by-case classifications would be based on disposal system performance. A third disadvantage might be a reluctance of. the States to develop greater confinement disposal facilities, as discussed under Option A above.

Option C--Define HLW with reference to Class C. This option would  !

initially define as HLW all wastes with radionuclide concentrations exceeding the NRC's current Class C limits (i.e., all wastes currently judged unsuitable for routine near-surface disposal under Part 61). If this option were adopted by the Commission, the Federal government would be responsible for providing available disposal capacity. No particular means of disposal would be required, and DOE (if authorized by subsequent legislation) could apply for an NRC license to dispose of wastes by means other than emplacement in a deep geologic repository where appropriate. DOE would presumably be authorized to levy disposal charges which would reflect the actual costs of disposal in facilities other than a deep geologic repository. The Commission anticipates that a provision would be included to allow case-by-case exceptions to the l definition of HLW for particular wastes, or classes of wastes, found to be suitable for near-surface disposal.24 24 Proposals for exceptions would be evaluated using rulemakings or other procedural means to solicit the views of the States and other

interested parties.

l 32 Enclosure l

l

\ - . .-.

u 17590-011 The major advantages of this option are its timeliness and its technically conservative approach. This option would largely eliminate uncertainty regarding the level of government (State or Federal) responsible for providing available dispossi capacity for all wastes. Thus, both waste generators and the operators of disposal facilities could plan appropriately for disposal of wastes, and facilities suitable for acceptance of all classes of wastes could be made available in a timely manner. The Commission anticipates that adoption of this option would remove a potential barrier -- i.e., uncertainty regarding waste classification -- which might inhibit State development of regional compacts for disposal of low-level wastes.

The major disadvantage of this option is its departure from past use of l the term "high-level waste" to refer only to the most hazardous class of I wastes. The Commission currently considers wastes suitable for land disposal, including disposal by greater confinement concepts, to be low-level ,

radioactive wastes (see 10 CFR Section 61.7(a)). Furthermore, classification l of all above Class C wastes as HLW might well prove inconsistent with Congressional intent as embodied in the Low Level Radioactive Waste Policy Act l and the Nuclear Waste Policy Act. Moreover, such classification might result in wastes being disposed of in facilities more secure than required and, as a result, the costs of disposal of wastes exceeding the Class C concentration limits could be increased.

" Intermediate" Class of Wastes L Options A and B discussed above could effectively establish an

" intermediate" class of wastes which would not be considered HLW, but which are also not suitable for disposal using shallow-land burial facilities. Such  !

wastes might include fission-product or activation-product wastes with concentrations above the current Class C limits as well as transuranic-contaminated wastes with concentrations exceeding 100 nCi/gm. Current [

legislation (NWPA and LLRWPA) does not address responsibilities for providing ,

1 33 Enclosure

U 17590-0Q disposal capacity for such wastes generated by activities other than atomic energy defense activities or Federal research and development activities.*

Thus, Options A and B could result in establishment of a class of wastes for which no disposaT'Tacilities currently exist, and for which additional legislation would be needed to establish governmental responsibility (Federal or State) for providing disposal capacity.

Option C, however, would initially classify all greater than Class C wastes as HLW, eliminating uncertainty regarding responsibility for disposal, and would allow reclassification of such wastes as appropriate. For example, if future legislation assigns governmental responsibility for disposal of wastes contaminated with transuranic radionuclides, it might be appropriate to reclassify such wastes so that they would no longer be considered Hi.W.

Thus, Option C would not establish an " intermediate" class of wastes at this time, but would allow such a class to be defined in the future.

Current NRC Programs The NRC currently has studies underway to examine the sources, volumes and characteristics of above Class C wastes as well as the isolation capabilities of waste disposal facilities more secure than trench burial. The Comission intends to continue these studies to provide the technical basis to pursue Option A, or to conduct the case-by-case waste classifications contemplated under Options B and C.

Should the Comission decide to proceed with Option B, the staff analysis reported in draft NUREG-0946 would be updated and refined to serve as the technical basis for an initial definition of HLW. Since the Commission has previously completed the 10 CFR Part 61 rulemaking which developed the Class C concentration limits, little additional technical preparation would be needed to pursue Option C.

Thus, the Commission considers that it currently has the technical preparations underway which would allow it to adopt any of the three options presented in this advance notice.

• Current legislation does refer to " transuranic waste," but this term is not defined, nor is governmental responsibility for disposal of " transuranic waste" assigned.

34 Enclosure

u 17590-01),

IV. Issues on Which Public Coments Are Particularly Sought The Commission invites coments on all the issues identified in this notice and any other issues that commenters might identify. However, comments (with supportive rationale) in response to the following questions would be particularly helpful.

1.a. Can Clause (A) of the Waste Policy Act definition of HLW reasunably be construed to be equivalent to the definition already contained in 10 CFR Part 60 (excluding the reference therein to spent fuel)? I

b. If such a construction is not appropriate, why not? .

c. If Clause (A) is equivalent to the 10 CFR Part 60 definition, would it be desirable to adopt the new statutory language and, if so, how should

" sufficient" concentration be explained?

2.a. Are there any additional radioactive materials (other than irradiated reactor fuel) generated by facility licensees that should be classified as HLW for purposes of the Waste Policy Act, pursuant to Clause (B),

so as to assure that they will be covered by waste disposal contracts with DOE 7

b. If there are such materials, how may they be identified in terms of

! the " highly radioactive" and " permanent isolation" criteria addressed in Issue 3, below? .

I

c. Would it be appropriate, arid consistent with the Waste Policy Act, to

, limit the application of Clause (B) to materials generated by facility licensees?

1

d. What difficulties (legal, administrative, financial, or other) would i an expanded definition of HLW cause in implementing the provisions of NWPA?

3.a. What is an appropriate interpretation of the phrase " highly l

radioactive" in Clause (B)? Should this phrase be defined in terms of l 1

quantities and concentrations of radionuclides without regard to half-life? l How should such quantities and concentrations be selected?

b. Should the phrase " requires permanent isolation" in NWPA be interpreted as requiring stable isolation without a significant risk of disruption due to natural or human-induced events or processes for a period of l time, extending beyond the period during which active institutional controls may be relied on, long enough to allow the radioactivity of the waste to decay significantly?

'^ C- ' ~ ~ ~

U

{7590-0Q

4. If NRC were to classify certain TRU wastes as HLW under the Waste Policy Act, what would be the implications for 00E, particularly as regards the WIPP facility?

5.a. Would it be desirable for the Comission to identify a class of licensed materials which must be disposed of in a geologic repository, or equivalent?

b. If so, what criteria should the Comission employ in defining this class?

c. What specific values, or other defining terms, should the Comission prescribe?

d. Should materials within this class be treated as HLW for purposes of the Waste Policy Act?

e. If such materials are classified as HLW, how could materials licensees be able to arrange lawfully for the disposal thereof?

6.a. Is it appropriate and desirable to proceed with a waste classification system which allows a category of wastes to be considered on a case-by-case basis,' or should the Comission instead develop a system which rigorously identified each potential waste stream as either low-level or high-level waste (with respect to State or Federal responsibility for disposal)?

b. If a provision for case-by-case evaluation is included in a modified definition of HLW, what criteria and procedures should be used to determine the appropriate means of disposal for specific types of wastes?

c. For purposes of the Low-Level Radioactive Waste Policy Act, must all wastes requiring pennanent isolation be regarded as HLW, whether or not so classified by rule? Or, must materials be classified as HLW by rule pursuant to Clause (B) of the Waste Policy Act definition, instead of being evaluated by the Comission on a case-by-case basis, in order to fall outside the scope of State responsibility?

7. Are there other issues which the Comission should consider in developing approaches to implementing Clause (B) authority; in particular, with respect to the approach discussed at some length in NUREG-0946?

l 35 Enclosure

17590-0Q APPENDIX A It appears to the Comission that the term "high-level waste," within the meaning of Clause (A) of the Waste Policy Act, is equivalent to the historic usage of the term in NRC regulations. This supplemental discussion explains the basis for this view.

It is clear, in the first place, that the principal liquid process streams from a chemical reprocessing plant are high-level radioactive waste under either the Part 60 definition or that in Clause (A) of the Waste Policy j Act. Under the former, they are described as the wastes from extraction cycles; under the latter, they are described as the liquid waste " produced directly in reprocessing." The Comission perceives no difference between the two. The phrase " produced directly in reprocessing" originated in the West Valley Act; it related to the liquid materials remaining after completion of the extraction cycles in the reprocessing plant. Since Congress understood '

the term high-level radioactive waste in the West Valley Act to refer to the liquid materials covered by Appendix F, it is reasonable to infer the same meaning for purposes of the Waste Policy Act.

The differences, if any, between the new statutory definition and prior ones would pertain to the solids produced in reprocessing. Appen-dix F and Part 60 now include within the definition of high-level wastes the solids "into which such liquid wastes have been converted"; and this is equivalent to " dry solid material derived from such liquid waste,"

which is the corresponding expression in the West Valley Act. A similar  :

phrase ("any solid material into which such liquid waste is made") appears I in Senate and House bil,1s in 1981 and early 1982. Later bills would have I

l l

36 Enclosure l

17590-0Q included such solids only if they containeo fission products and trans-uranic waste in concentrations detennined to require permanent isolation.25 As adopted, Clause (A) of the Waste Policy Act retains the concept that ,

high-level radioactive waste includes solid material containing fission products "in sufficient concentrations." The question is whether there needs to be some numerical interpretation of this tenn or whether prior definitions already import appropriate quantitative factors.

The Waste Policy Act provides no explicit guidance with respect to the concentrations that would be " sufficient" for solid waste derivatives to be considered HLW. In view of the objectives of the statute, however, the Comission believes that such materials should be regarded as HLW if they require permanent isolation, as in a geologic repository developed in accordance with the law. ButthisviewofClause(A)oftheWastePolicyAct definition is identical to that which underlies the earlier usage in Aopendix F and Part 60.26 The Comission finds no material difference.

25S.1662, as jointly reported (S. Rept.97-282) by the Senate Comittees on Energy and Natural Resources and on Environment and Public Works on November 30, 1981, contained the "any solid material" language. So did H.R. 3809, as reported (H.R. Rept.97-491, Part 1) by the House Comittee on Interior and Insular Affairs on April 27, 1982. The concept of con-centrations necessitating permanent isolation first appears in H.R. 3809, as reported (H.R. Rept.97-491, Part 2) by the House Armed Services Comittee on July 16, 1982; this concept was preserved in H.R. 6598, as reported (H.R. Rept.97-785, Part I) by the House Comittee on Energy and Commerce on August 20, 1982.

26In proposing the policy incorporated in Appendix F, the Comission declared that the high-level wastes under consideration "must be perma-nently isolated from man's biological environment." 34 FR 8712, June 3, 1969. This does not necessarily imply that only a geologic repository

could provide such permanent isolation, nor would 10 CFR Part 60 require a 9eologic repository ~be used to provide such permanent isolation.

l 37 Enclosure

17590-011 Thus, the Waste Policy Act's reference to reprocessing wastes appears to be equivalent to the definition in Part 60. That would suggest the desirability of substituting the new statutory language for the existing regulation. Ordinarily, this is the course the Commission would follow.

The difficulty is that the statutory definition is excessively vague. It would characterize as HLW the solid material derived from liquid waste -

"that contains fission products in sufficient concentrations." The Commis-sicn could not stop there: somehow it would need to interpret the language so that the sufficiency of fission product concentrations would be related either to the source of the waste (e.g., the concentrated wastes from solvent extraction cycles) or to specific numerical values. We think it i

makes most sense to relate the concept of " sufficient concentrations' to the traditional meaning of HLW and to consider the merits of a numerical approach only in connection with Clause (B) of the definition as discussed in the main text of this advance notice.27 27 Wastes generated incident to the reprocessing operations themselves, or incident to subsequent treatment of HLW, would never have been regarded as HLW. See note 1, supra. Such excluded materials would generally be characterized by low specific radioactivity. In the context of the Waste Policy Act, they could be regarded as materials which do not contain fission products "in sufficent concentrations."

l 38 Enclosure

l l

CLASS D WASTE Append'ix B. Wastes Exceeding Class C Concentrations l For a number of years NRC has had an ongoing program to develop regul0tions and criteria for disposal of low-level radioactive waste. At the time the NRC regulatory development program was initiated, there was a well documented need for comprehensive national standards and technical criteria for the disposal of low-level waste. The absence of sufficient technical standards and criteria was seen to be a major deterrent to the siting of new disposal fac111 ties by states and compacts. .

A significant milestone in this program was the promulgation of the regulation 10 CFR Part 61 (" Licensing Requirements for Land Disposal of Radioactive Waste") on December 27, 1982. This regulation establishes procedural requirements, institutional and financial requirements, and overall performance objectives for land disposal of radioactive waste, where land disposal may include a number of possible disposal methods such as mined cavities, engineered bunkers, or shallow land burial. . This regulation also contains technical criteria (on site suitability, design, operation, closure, and waste form) which are applicable to near-surface disposal, which is a subset of the broader range of land disposal methods. Near-surface disposal is defined as disposal in or within the upper 30 meters of the earth's surface, and may include a range of possible techniques such as concrete bunkers or shallow land burial . The Part 61 regulation is intended to be performance-oriented rather thanfrescriptive, with the result that the Part 61 technical criteria are '

written in relatively general terms, leaving a need for additional work in interpreting these criteria for various specific near-surface disposal methods.

l l

_ . _ . _ , - - ,_y - m ,.-_

U CLASS 0 WASTE A waste classifi Htiion system was also instituted in the regulation which establishes three classes of waste suitable for near-surface disposal: Class A, Class B, and Class C. Limiung concentrati:ans fer particular radionuclides were established for each waste class, with the highest class being Class C.

The Class C limits were established based on NRC's understanding, at the time of the rulemaking, of low-level waste characteristics and potential disposal methods. The numerical Class C limits are applicable to all potential near-surface disposal methods; however, the calculations performed to establish the limits are based on postulated use of one near-surface disposal method:

shallow land burial. The Class C limits are therefore conservative since there may be a number of near-surface disposal methods that have greater confinement capability (and higher disposal costs) than shallow land burial. I The regulation states that waste exceeding Class C concentrations is considered to be "not generally acceptable for near-surface disposal," where this is defined in 9 61.55 (a) as " waste for which waste form and disposal methods must be different, and in general more stringent, than those specified for Class C waste." Thus, waste exceeding Part 61 concentrations has been generally excluded from near-surface disposal and is being held in storage by licensees.

(This amounts to less than 1% of the approximately 3,000,000 ft3 of comercial low-level waste annually being generated.) Given the current absense of specific requirements for disposal of waste exceeding Class C concentrations, the regulation allows for evaluation of specific proposals for disposal of such waste on a case-by-case basis. The general criteria to be used in evaluating specific proposals are the Part 61 performance objectives containea in Subpart C of the regulation.

I 1

Current NRC activities include analyses of low-level waste that exceeds Class C concentrations to determine whether there exist alternative near-surface 1

l l

CLASS D WASTE disposalmethodsTe'.g.,concretebunkers,augeredholes,deeperdisposal)tnat may be suitable for safe disposal of such waste. These analyses include a more '

detailed characterization af low lkvel ests physicci, cren'ical, and radiological characteristics; as well as development of improved models for analysis of radiological and economic impacts. A related activity is [

development of more specific guidance for design and operation of alternative j near-surface and other land disposal methods. Both of these activities represent a continuation of the Part 61 rulemaking process as discussed in the ,

December 27, 1982 Federa_1_ Register Notice announcing the final Part 61 t regulation (Ref. 1).

Wastes exceeding Class C concentrations are projected to be generated by nuclear power reactors and other supporting nuclear fuel cycle facilities, and l also generated by radioisotope product manufacturers and other facilities and l licensees outside of the nuclear fuel cycle. Such wastes can be grouped as follows: [

• Plutonium-contaminated nuclear fuel cycle wastes Activated metals  ;

l Sealed sources

• Radioisotope product manufacturing wastes Other waste Plutonium-contaminated nuclear fuel cycle wastes. These wastes are currently being generated as part'of' operations that support the nuclear fuel cycle --

i.e., post-irradiation radiochemical and other performance analyses of spent fuel rods from nuclear reactors (e.g., "burnup studies). These operations generate about 600 ft 3 of plutonium-contaminated waste per year, much of which is believed to exceed Class C concentrations. This waste consists of

CLASS 0 WASTE solidified liquids"and other solid material such as scrap, trash, and contaminated equipment. Eventual decommissioning of the three facilities currently performing these analyses is expected to generate additional waste volumes, a portion of which is expected to exceed Class C concentrations.

Activated metals. Activated metals are typically generated as a result of neutron bombardment of metals forming the structure or internal components of a nuclear reactor used for power production, radioisotope production, or other purposes (e.g., education, testing, research). Activated metal wastes are unlike most other wastes being generated in that the radionuclides form part of the actual metal matrix rather than being mixed with large volumes of other, nonradioactive material such as paper or cloth. Radionuclide release is principally governed by the material corrosion rate, and for many metals such as stainless steel, the corrosion rate is quite low.

To date, only a small fraction of the activated metal waste currently being generated has been identified as exceeding Class C concentrations. Such waste appears to primarily consist of in-core instrumentation which is no longer serviceable. An example of this waste is a reactor flux wire which is physically small but may be high in activity. (A flux wire is a wire that is inserted into a tube running the length of the reactor core and used to make neutron flux measurements. Flux wires removed from reactor cores are generally rolled up on spools measuring approximately 1 ft in c1ameter and 3 inches thick.) NRC estimates that about 200 ft3 /yr of activated metal waste exceeding Class C concentrations is being generated.

Larger quantitles of activated metal wastes are projected to be generated in the future as a part of reactor decomissioning. Studies by NRC (Refs. 2, 3) indicate that over 99% of the waste volume that is projected to result from l

U i

CLASS D WASTE

~

nuclear power reactor decommissioning will not exceed Class C concentrations, and the 1% that is projected to exceed Class C concentrations will be almost totally activated metals from the core structure. Cons 4rvative estimates indicate that quantitles of decomniissioning wastes exceeding Class C concentrations will total about 4700 ft3 for a large (1175 MWe) pressurized water reactor (PWR) (Ref. 2) and about 1660 ft3 for a large (1155 WMe) boiling water reactor (BWR) (Ref. 3). Much smaller quantities of wastes exceeding Class C concentrations may also be generated from future decommissioning of test, research, and education reactors.

Another source of activated metal waste is expected to arise as part of >

consolidation of spent fuel assemblies for storage and/or disposal. Spent fuel assemblies now being periodically discharged from nuclear power reactors are stored in on-site fuel storage pools. Each assembly is composed of a number of individual fuel rods arranged in a rectangular array, and held in place by spacer grids, tie rods, metal end fittings, and other miscellaneous " hardware."

One option under consideration (but not as of this time implemented) for long-term waste storage and eventual disposal is to remove the hardware from the fuel rods. This allows the fuel rods, which contain the fission products which are of primary interest in terms of geologic repository disposal, to be consolidated into a smaller volume. This enables more economical storage and easier handling for transport and disposal. The hardware, which is composed of various types of corrosion-resistant metals such as Inconel or zircalloy, l becomes a second waste stream which could potentially be safely disposed by a j less expensive method than a geologic repository.

Depending upon parameters such as the fuel irradiation history and the hardware elemental composition, particular pieces of separated hardware may or may not exceed Class C concentrations. Assuming for illustration that all hardware 1

l l

CLASS 0 WASTE exceeds Class C c6ncentrations, then about 12 kg of waste hardware would be generated per BWR fuel assembly, and 26 kg per PWR fuel assembly (Ref. 4).

Assuming 200 fuel assemblies are replaced per year per large (1000 MWe) BWR,

roughly 2400 kg of activated metal hardware would be generated per year per i large BWR, or about 1700 kg per PWR. An approximate compacted volume is on the  ;

order of 50 ft /yr per large reactor, or about 4,000 f ts/yr over the entire 3

f nuclear industry. This estimate is very uncertain, however, and current NRC work is directed at defining potential volumes and material compositions in i more precise detail.

Sealed sources. A number of discrete sealed sources have been fabricated for a ,

variety of medical and industrial applications, including irradiation devices, moisture and density gauges, and well-logging gauges. Each source contains  ;

only one or a limited number of radioisotopes. Sealed sources can range in l activity from a few millionths of a curie for sources used in home smoke detectors to several thousand curies for sources used in radiotherapy  ;

irrad1ators. Sealed sources are produced in several physical forms, including I metal foils, metal spheres, and metal cylinders clamped onto cables. The majority of the large activity (several curies and up) sources, however, are i

physically quite small (generally less than an inch or two in diameter and 6 inches in length) and consist of granules of radioactive materials doubly encapsulated in a metal such as stainless steel. These dimensions are such -

i that, like activated metals, sealed sources may be considered to be a unique  ;

form of low-level waste. Characterizing sealed sources in terms of radionuclide concentration certainly appears to be of less utility than i

characterizing sealed sources in terms of source activity. f Depending upon the application, sealed sources may be manufactured using a '

variety of different radioisotopes. A review of the NRC sealed source registry  ;

l I

i

CLASS D WASTE was conducted td7dentify those source designs which may contain radioisotopes in quantities that might exceed Class C concentrations. The principal large sources of concern appear to be those containing Cs-137, Pu-238, Pu-239, and Am-241. Large Cs-137 sources are generally used in irradiators, and while some

large sources can range up to a few thousand curies, most which are sold appear i

to contain in the neighborhood of 500 curies. Cs-137 is a beta / gamma emitter having a half life of 30 years, which suggests that special packaging and disposal techniques can be readily developed for safe near-surface disposal of  ;

sources containing this isotope.  !

The remaining three isotopes are alpha emitters and are longer lived. Sources  ;

manufactured using these isotopes can range up to a few tens of curies. Pu-239 l sources are not connonly manufactured. Pu-238 sources have been manufactured f j for use as nuclear batteries for applications such as heart pacemakers. Pu-238 l has also been used in neutron sources, although neutron sources currently being f l manufactured generally contain Am-241. Am-241 is also used in a wide variety of other industrial applications such as fill level gauges.

Neutron sources produce neutrons for applications such as reactor startup, well  ;

logging, mineral exploration, and clinical calcium measurements. These sources -

contain alpha-emitting radionuclides such as Am-241 plus a target material (generally beryllium) which generates neutrons when bombarded by alpha I particles. Most neutron sources appear to contain approximately 20 curies of

activity.  !

t It is difficult to project potential waste sealed source volumes and j activities, since sealed sources as wastes are not routinely generated as part l of licensed operations, and only become waste when a decision is made by a  !

licensee to treat them as such. In addition, source manufacturers are licensed l t

l 4

l

l CLASS 0 WASTE i

by NRC and Agreemen't States to manufacture a particular source design up to a I specified radioisotope curie limit. Most actual sources, however, contain activities considerably less than the design limit. Finally, many sources held by licensees may be recycled back to the manufacturer when they are no longer usable. This is particularly true for large Cs-137 sources. For large alpha-emitting sources (e.g., containing plutonium or americium), one estimate is that there may be as many as 10,000 such sgurces in existence. If all such large sources were candidates for disposal, the total source volume would come to only about 35 ft3 Waste packaging requirements for shipping, however, would increase this volume by several orders of magnitude.

Radioisotope product manufacturing wastes. Wastes exceeding Class C concentrations are being occasionally generated as part of mantfacture of sealed sources, radiopharmaceutical products, and other materials used for industrial, educational, and medical applications. Volumes and characteristics of such wastes are difficult to project, since such manufacturing operations are licensed by both NRC and Agreement States. However, it is believed that the majority of this waste consists of sealed sources which cannot be recycled, Pu-238 and Am-241 source manufacturing scrap, and waste contaminated with C-14 Sealed sources as a waste form have been discussed above. Manufacture of large Pu-238 and Am-241 sources is believed to be concentrated in only a few facilities. Generation of waste exceeding Class C concentrations is believed to total only a few hundred ft3 a year. The C-14 waste is generated as a result of radiopharmaceutical manufacturing in approximate volumes of 10 fta per year.

J Manufacturing waste thus being generated is currently be stored by the waste generators, although a decision on the disposition of the waste will need to be I

CLASS 0 WASTE l

made prior to thi eventual decommissioning of the manufacturing facliities, j

, Decommissioning waste volumes will include the stored waste (estimated to I currently total a few thousand fta in the case of the plutonium and americium waste) in addition to building rubble. Based on past experience and analysis of decommissioning operations at reactors and other facilities, probably only a few percent of the building rubble will exceed Class C concentrations.

Other wastes. Although the above wastes are believed to be the principal wastes that are expected to exceed Class C concentrations, other wastes may also be occasionally generated. For example,!relatively small quantities of such wastes are currently being generated as part of deco.itamination of the Three Mile Island, Unit 2, nuclear power plant. However, these wastes are being generated as a result of the 1979 accident, are therefore considered abnormal, and are being transferred to the Department of Energy (00E) under a memorandum of understanding with NRC. Wastes exceeding Class C concentrations and generated as part of the West Valley Demonstration Project are also being transferred to DOE for storage pending disposal.

i A final concern is sealed sources and other was'te containing discrete quantities of Ra-226. Products containing Ra-226 have been manufactured in the past for a variety of industrial and medical applications. Such wastes are not regulated by NRC but have been occasionally disposed at licensed low-level waste disposal facilities. NRC is currently investigating the impacts of disposal of such waste in order to provide guidance to states and other interested parties on safe disposal methods and any concentration limitations.

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1. U.S. Nuclear Regulatory Commission, "10 CFR Parts 2, 19, 20, 21, 30, 40, 51, 61, 70, 73, and 170: Licensing Requirements for Land Disposal of Radioactive Waste," 47 FR 57446, December 27, 1982.

2. Murphy, E.S., " Technology, Safety and Costs of Decommissioning a Reference Pressurized Water Reactor Power Station: Classification of Decommissioning Wastes," NUREG/CR-0130, Addendum 3, Pacific Northwest Laboratory for U.S. Nuclear Regulatory Commission, September 1984.

3. Murphy, E.S., " Technology, Safety ano Costs of Decommissioning a Reference  !

Boiling Water Reactor Power Station: Classification of Decommissioning Wastes," NUREG/CR-0672, Addendum 2, Pacific Northwest Laboratory for U.S.

Nuclear Regulatory Commission, September 1984

4. U.S. Department of Energy, " Spent Fuel and Radioactive Waste Inventories, Projections, and Characteristics," DOE /RW-0006, Oak Ridge National Laboratory for Office of Civilian Radioactive Waste Management, Septemoer 1984 7 , ,.

17590-011 l

LIST OF SUBJECTS IN 10 CFR PART 60  !

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

AUTHORITY: The authority citation for this document is Sec. 161, Pub. L.83-703, 68 Stat. 948, as amended (42 U.S.C. 2201).

Dated at Washington, D.C. , this day of ,1985.

For the Nuclear Regulatory Commission Samuel J. Chilk Secretary of the Comission l

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M TASK LEADER EVALUATION s *

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I DRAFT RECOMMENDATION:

DEFINITION OF HLW IN 10 CFR 60 Proceeding with rulemaking to define high-level radioactive waste is in accordance with the Commission's policy and planning guidance to implement provisions of the Nuclear Waste Policy Act of 1982 and amend NRC regulations I where necessary to carry out NRC responsibilities for the U.S. high-level radioactive waste program. An advance notice of proposed rulemaking is the recommended action to be taken at this time due to the complexity of the issue and the ramifications of rulemaking on both high-level and low-level radioactive waste management. Additional information is needed by the staff which may be elicited by the ANPR.

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e DRAFT 02/11/85 1 DEFINITION OF HLW IN 10 CFR 60

Issue 10 CFR 60 is the basis for NRC regulation of high-level waste (HLW) geologic repositories. Part 60 contains a definition of what constitutes HLW for the purposes of the rule. The Nuclear Waste Policy Act of 1982 also contains a definition of HLW. The law provides that the term HLW means:

a. The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and

b. Other highly udioactive material that the Comission, consistent with existing law, determines by rule requires permanent isolation.

The definition of HLW in the Nuclear Waste Policy Act is different from that which appears in Part 60. The questions thus arise whether there is any material difference between the language in the regulations and the new law and whether new or revised rules ought to be adopted by the Comission.

In approving the final amendments to 10 CFR Part 60 - technical criteria (SECY-83-59/83-598), the Commission requested that the staff review the need to revise the definition of HLW in 10 CFR Part 60 to conform to the definition of HLW in the Nuclear Waste Policy Act of 19g2 as part of the ongoing review of the procedural portion of 10 CFR Part 60 Necessity and Urgency For Addressing the Issue The present system of radioactive waste classification needs clarification.

At present low-level radioactive wastes are defined as radioactive wastes other than high-level waste, transuranic wastes, or mill tailings by the Low-Level Radioactive Waste Policy Act of 1980. The Nuclear Waste Policy Act directs the Commission to add other highly radioactive materials which require permanent isolation to the existing class of wastes which are defined as HLW.

,Moreover, as what constitutes low-level waste depends on the definition of high-level waste, much of the range of radioactive wastes is undefined.

The lack of specificity in the waste classification system is of partic-ular concern at this time for two reasons; firstly, the development of a system for management of low-level waste by State compacts and individual States is at a critical stage. States are concerned about what radioactive wastes will become their responsibility under the new system. The definition of HLW and its implications for what is classified as low-level waste is a major issue in assigning responsibility for disposal between States and the Federal government. Secondly, the U.S. HLW program of providing for long-term 1 Staff requirements memorandum to William J. Dircks and Herzel H.E. Plaine from Samuel J. Chilk, May 27, 1983. (Enclosure A)

isolation of HLW in geologic repositories is also in its fonnative stages. A major concern for DOE planners and industry is the quantity of waste for which DOE will accept title on/er the Waste Policy Act. As a corollary, both DOE and States are concerned about any significant amounts of radioactive wastes which might be found to be unsuitable for shallow-land burial yet not require disposal in a geologic repository. Should a waste classification system arise which resulted in large quantities of " intermediate" wastes, disposal i facilities and responsibility for disposal would have to be established.

In proposing amendments to 10 CFR 60 dealing with site characterization and the participation States and Indian tribes, the Comission noted that it anticipated publication of an ANPR on the definition of HLW in coming months (50 FR 2580).

Alternatives to Rulemaking One alternative to rulemaking would be to do nothing to resolve differences in the definition of HLW. The current waste disposal system is operating in the absence of any Comission action to clarify the definition of HLW. Perhaps the system could continue to operate effectively in the absence of additional classification of waste types. The Comision could exercise its regulatory authority by case-by-case determinations of waste classification and disposal methods.

A second alternative would be to seek further clarification from Congress as to its legislative intent on what constitutes high and low level waste.

This could be done by asking for legislation to amend the Low-Level Radioactive Waste Policy Act of 1980 and the Nuclear Waste Policy Act of 1982, or in a less 4

formal manner. Congress, not NRC would be making direct decisions about waste classification which impact on responsibilities for disposal of various types of radioactive wastes.

Option A, as described in the enclosed draft Federal Register Notice, might be considered to be an alternative, at least to rulemaking at this time.

Briefly, Option A in the ANPR would have NRC continue ongoing studies of waste characteristics and waste facilities to determine types of waste and concentra-

! tions which could be safely disposed of in them. At a later date, when the sL dies are completed, NRC could proceed with a rulemaking action.

How the Issue Will be Addressed Through Rulemaking 10 CFR 60 would be amended to take into account the definition of HLW in the Waste Policy Act. Th'e rulemaking action would clarify what additional radioactive wastes requiring permanent isolation should be classified as HLW under clause (B) of the Nuclear Waste Policy Act definition above.

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l How the Public, Industry, and NRC will be Affected as a Result of Rulemaking

a. Industry Uncertainty as to the possible classification of wastes is a detri-ment to producers of radioactive wastes. Industry cannot plan ahead for efficient and cost-effective waste management if there exists substantial uncertainty about what governmental entity will be responsible for disposal,

, what method will be required for disposal, what acceptance criteria there are for waste facilities, and what the cost of waste disposal will be.

A more defined waste classification scheme which would result in

, resolving to some degree the uncertainties mentioned above would have the following positive effects on waste generators.

1) Waste packaging could become more efficient as generators know exactly where wastes will go and what acceptance criteria for wastes are.

I 2) Industry location decisions would be more efficient as indus-tries would know more about what facilities will accept various wastes gener-ated by them. Industry could plan for locations which minimized transportation and other waste handling costs.

3) If, as is likely, resolving some of the uncertainty about responsibilities for wastes would assist States to establish a system for low-level waste management and disposal, industry would benefit from greater availability of disposal facilities for low-level wastes, reduction in the need for, and expense of maintaining temporary storage, and a reduction in the cost

, of waste transportation from increased availability of regional sites.

I 4) A more well-defined waste classification system could lead to 1 increased interest on the part of the waste management system in development of new technologies for waste disposal and eventually additional facilities for disposal of wastes not requiring disposal in a geologic repository.

5) The existence of a more well-defined waste classification scheme based on risk to public health and safety should reduce total industry costs for waste disposal as wastes would be disposed of in facilities suitable for the degree of hazard posed by the waste. The added costs of disposal of wastes in facilities more elaborate t % necessary for safe waste disposal would be avoided,

b. The Public As lowered costs were passed on to consumers of goods and services provided by waste generators, the public would benefit from the establishment of a system for waste classification and disposal responsibilities which were based on relative hazard of the waste. This point is brought out very clearly by the letter from the National Council on Radiation Protection and Measurements (Enclosure B).

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States would benefit as they would have very specific information about the types of wastes they will be responsible for. The development of regional compacts would be helped as well as the actual siting and construc-tion of new facilities for disposal of low-level radioactive wastes.

c. NRC The NRC would benefit from a reduction in uncertainty about waste classification and disposal responsibility. Resources which would be used to evaluate case-by-case classifications of radioactive wastes would be freed for other purposes. As a more defined waste classification system would be of great benefit to States and DOE, NRC relations with these entities should be improved as NRC would be viewed as resolving a current issue in a timely manner.

NRC Resources and Schedule Needed for Rulemaking:

a. Resources

1) Estimated person months of staff time for Proposed Rule 6 Mos. from RES 12 Mos. from NMSS 5 Mos. from ELD

& Mos. from ADMIN for Resolving Comments and Final Rule 6 Mos. from RES 12 Mos. from NMSS 5 Mos. from ELD

& Mos. from ADMIN

2) Consultants, Technical Support Contracts 300K annual technical support for next 2 fiscal years.

3) Other Resources none required

b. Schedule ,_

March 30, 1985 - Package to EDO April 30, 1985 - Package to Commission June 30, 1985 - Publication of ANPR in Federal Register

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QUALITY CONTROL EVALUATION The staff conducting this review has carried out a quality control evaluation in accordance with the procedure specified in the May 10, 1984 memorandum from Robert B. Minogue to RES Division Directors. The procedures which have been conducted by the staff meet all criteria for quality control.

Compliance with CRGR Charter requirements is not applicable for this rulemaking action as the rulemaking applies only to radioactive waste management, and is not a generic requirement to be imposed by the NRC staff on one or more classes of power reactors.

The rulemaking action is in complete accord with Comission policy and

guidance as outlined in VII, " Managing Nuclear Waste" U.S. Nuclear Regulatory Comission Policy and Planning Guidance -1984, NUREG-0885 Issue 3.

The guidance reads:

Policy:

1. "The NRC waste management program is critical to the success of an urgent national task. NRC will provide the necessary licensing and regulatory oversight for the Executive Branch's program as required by the Nuclear Waste Policy Act of 1982 (NWPA) or otherwise approved by Congress. NRC's programs will be based on the premise that, in the absence of unresolved safety concerns, the NRC regulatory program will not delay implementation of the Executive Branch's program.

2. The staff should continue to maintain close communications with DOE, the states and affected Indian tribes so that required activities and lead times are identified early in the planning process. As part of this activity the staff should be prepared to accommodate state and Indian tribe participation in NRC high level waste activities.

3. To the extent possible, and consistent with NRC's independent role, research required to support programs to implement the NWPA should be perfonned by DOE. NRC will continue its technical program to support the  ;

development of licensing criteria and identification of technical issues.

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4. The NRC will monitor the activities associated with the Low Level '

Radioactive Waste Policy Act and provide advice as necessary to the Congress and technical assistance to the States as necessary.

Planning Guidance

1. The staff should develop a memorandum of understanding with DOE to cover the NRC's interactions with DOE implementing the provisions of the NWPA.

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2.. The staff should review the existing and proposed regulations that are covered by areas addressed by the NWPA, and make conforming changes as necessary. When EPA standards are published, regulations should be reviewed to determine whether any changes are required."

This rulemaking action directly responds to Policy: 1), 2), and 2) in

" Planning Guidance". It indirectly responds to Policy: 3).

The rulemaking action recommended here - an Advance Notice of Proposed Rulemaking-complies with guidance in Regulations Handbook, NUREG/BR-0053. An ANPR should be issued when rulemaking is contemplated, but the decision to issue a proposed rule depends on comment received. The NRC may propose several alternative solutions in an ANPR.

This is exactly the case in the ANPR on HLW definition. The agency needs public comment before making a decision on rulemaking. This ANPR outlines 3 possible options and requests public comment on them. The enclosed Federal Register Notice complies with format requirements given for an ANPR in NUREG/BR-0053.

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SUPPORTING DOCUMENTATION

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• *uy'o, UNITED STATES IN RESPONSE, PLEASE 8 , REFER TO: M830523C o NUCLEAR REGULATORY COMMISSION y, . ,i WASHIN GTON, D.C. 20656 ACTION - Minogue g Cys: Dircks

..... May 27, 1983

• OFFICE OF THE SECRETARY Stel1o ggyjg Come11a Peell 0

MEMORANDUM FOR: William J. Dircks, Executive Director for Operations nningham g

h E8 Herzel H.E. Plaine, Gener Oc unsel FROM: Samuel J. Chilk, Secreta Shelton

SUBJECT:

STAFF REQUIREMENTS - AFFT ION / DISCUSSION AND VOTE, 3:30P.M.,MONbAY,MAY23, 1983, COMMISSIONERS' CONFERENCE ROOM, D.C. OFFICE (OPEN TO PUBLIC ATTENDANCE)

I. SECY-83-ll7 - Review of ALAB-701 - In the Matter of Philadelphia Electric Co., et al.

The Commission, by a 3-2 vote (Chairman Palladino and Commissioners Gilinsky and Asselstine agreeing) approved an order that holds in abeyance a decision whether or not to review ALAB-701 until the completion of the Commission's current review of the requirement for control and stabilization of uranium mill tailings piles. Commissioners Ahearne and Roberts provided separate views.

(Subsequently, on May 27, 1983 the Secretary signed the Order with the separate views attached.)

II. SECY-83-59/83-59B - 10 CFR Part 60 -- Disposal of High-Level Radioactive Wastes in Geologic Repositories:

Technical Criteria and Conforming Amendments The Commission, by a vote of 5-0, approved the final amendments to 10 CFR Part 60 as attached.

The Commission requested that the staff review the need to revise the definition of high-level waste in 10 CFR Part 60 to conform to the definition of high-level waste in the Nuclear Waste Act of 1982 during the ongoing review of the procedural portion of 10 CFR Part 60. A recommendation as to possible revision should be provided along with the other changes to the procedural partion of 10 CFR Part 60.

(GfMF) @Httf #MNleNWdf i ##9/1f8tff R16 (EDOSuspense: 8/25/83)

Rec'd On, gan 001307 cm. ****- . .. . .e. 4. .-rh ENCLOSURE 5 A l . - - . .

You should revise the final rule as indicated in the attached copy and return it for signature and publication in the Federal Register.

(iHHP)-6 f 5 (SECY Suspense: 6/17/83)

You should also advise the appropriate Congressional Committees, issue the public announcement, and provide copies of the rule to all who submitted comments on the rule.

(BDO/OCA/OPA) (SECY Suspense: 6/30/83)

Kib Attachments: (TO EDO ONLY)

, As stated cc: Chairman Palladino Commissioner Gilinsky Commissioner Ahearne Commissioner Roberts Commissioner Asselstine Commission Staff Offices PDR - Advance DCS - 016 Phillips 4

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2579 Federal Register / Vol. 50. No.12 / Thursday, January 17. 1983 / Proposed Rules l l

10 CFR Part 60 )

on competition, employment. PART 1407-SUSPENSION AND '

irn estment. productivity. innovation, or DEBARMENT Disposal of High-Level Radioactive ,

on the ability of U.S.. based enterprises Waste in Geologic Repositories; see to compete with foreign. based 140r 1 Purpose. Amendments to Licensing Procedures enterprises in domestic or export markets.

1 j Su si n and debarment. Aossocv: Nuclear Regulatory Commission.

It has been determined that the Authority: Sec. 4. 62 Stat.10'o. as amended acTiost Proposed rule.

Regulatory Flexibility Act is not (15 U.Ssc. 714bl.

applicable to this proposed rule since sussesAsty:ne Nuclear Regulatory CCC is not required by 5 U.S.C. 553 or 3 1407.1 purpose. Commission is proposing revisions to any other provision of law to publish a . Pan pdbes the tenns and procedums with mopect to NRC revieu notice of proposed rulemaking with c nditions under which penons Re an of license applications for disposal of respect to the subject matter of this rule. Individual or any form of business high. level radioactive waste in geologic His program / activity is not subject to entity, such as proprietorship,

' repositories. For the most part. the the provisions of Executive Order 12342 partnership. corporation. association, or revisions rdect the provisions of the which requires intergovernmental cooperative) may be suspended and Nuclear Waste policy Act of1982.

consultation with State and local debarred from contracting with the particularly es they relate to site officials. See the Notice related to 7 CFR Commodity Cmdit Corporation (CCC) characterization and the participation of Part 3015. Subpart V. published at 48 FR and from otherwise participat' trig h'n States and Indian tribes in the process programs administered or financed by of siting, licensing, and development of 29115 Qune 24.1983).

disposal facilities.

Section 4(d) of the CCC Charter Act. CCC.

marts: Comment period expires March as amended (15 U.S.C. 714b(d)).

authorizes CCC to adopt. amend. and 3 1407.2 Suspeheten and debarment. 18.1985. Comments received after repeal rules and regulations governin8 The provisions of 41 CFR 4-1.000 et March 18.1985 will be considered if it is the manner in which its business may be seg. shallbe applicable to all CCC practical to do so. but assurance of conducted and the powers vested in it suspension and debarment proceedings, consideration cannot be given except as may be exercised. In accordance with except that the authority to suspend or to comments filed on or before that date this authority. the regulations at 7 CR debar is reserved to the Executive Vice Aoonassts: Submit written r.omments Part 1407 set forth the procedures under President. CCC. or his designee. and suggestions to: Secretary of the which CCC may debar or suspend i U.S. Nuh Relatory individuals and firms from contracting g 14o7.3 scope. Commission.Washingon. DC 20555.

CCC suspension ar,d deburment Attention: Docketing and Service with CCC and from otherwise.. Branch. Copies of comments received pa pa in ogra ' proceedings shall not be applicable to y na Y no 'd m contracts entered into by CCC under its may be exammed at the Commissior s CCC's suspension and debarment price support operations and other CCC Public Document Room.1717 H Street

• "* *Ith e programs with persons in their capacity NW, Washington. DC.

g g CC as predes. pon aman meonesATWN CMACE proposes to revise Part 1407 to adopt the Clark Prichard. Division of Radiation Department's suspension ynd Signed At Waabington. D.C. on January it. - Programs and Earth Sciences. Office of

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debarment regufstions found at 41 CFR 1ssa. Nuclear Regulatory Research. U.S.

4-1.000 et seg. and to provide that: (1) Everett Itank. * '

• CCC suspension and debarment proceedings shall not be applicable t6,

,Enocutive Vice Pireadant. Commodity credit Corporecion. .

427-4586.

h* , pof,pmy contracts antered into by CCC under its SUPmsstNTARY mFonssaTioW:The

[m Dec. 85-1339 Wed 1-tm 845 am) price support operations and other CCC Nuclear Regulatory Commission prograans with persons in their capacity

- caos sema m (Commission or NRC)in 1981, as producers and (2) the autority to -

Promulgated proceduras for heens,mg l suspend or debar is revised to the Department of Energy (DOE) facilities Executive Vice President.CCC ae NUCLEAR his [s REGULATORY for disposal of high-level radioactive ,

designee.. wasta la geologic mpositorin (46 m la ordee t'o expedite the review of the COMMISSION 13971. February 25,1981). More recently, provisions of this proposed rule in light Congress has established a definite 10 CFR Part 2 of potential CCC suspension and Federai policy for guch disposul.

debarme st proceedings,it has b en Nuclear Waste Pohey Act c 1982. Pub.

Criteria for Reopening Records in 1.97-425. 42 U.S.C.10101 (Waste Policy determined that the comment period Formal Licensing ProceecNngs shou!d be limited to a period of 30 days. b Accordingly. Comments must be Act directs the Commission, not later U###'#####

mceived os o&fm Mruary 19J005 . t In FR Doc. 84 33644 beginning on page ,ch;"c", , ,s and c ter that in order to.be assured of considershon.

5 n nu p II " lI "PEIII " "PP' *i"8 '

Ilst of Subjects in 7 CFR Part 1487 .

Repo M disapproving license applications with

~ Administrative practice and appearedin the heading.ne word respect to geologic repositories.The

" Records" should have appeared in its Commission has complied with this procedure..Covernment contrnets.

place.%e heading is corrected to read requirement by publishing final Pen,alities.;

as set forth above. technical critena (48 FR 28914. June 21.

Accordirigly, it is proposed that 7 CFR 19831. He Commission is now turning to Part 1407 be revised to read as follows: awne caos nos ei.m l

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2580 Federal Register / Vol. 50. No.12 / Thursday January 17, 1985 / Proposed Rules a review of its previously adopted the need for cooperation with the States consult informally in advance with NRC procedures. One objective is to reflect with respect to the control of radiation staff. At this early stage. NRC would the provisions of the Waste Policy Act. hazards, the Federal government was point out aspects of a location selected in addition, however, the Commission is authorized to regulate the disposal of by DOE which might require special taking this opportunity to clarify its high-level radioactive waste to protect attention or present special problems procedures in the light of experience public health and safety (42 U.S.C. and NRC would help to define the kinds gained over the past three years in 2021(c).10 CFR 150.15). Nevertheless, ofinformation needed for licensing consultations on the SCA reviews of the Act recognizes the need for decisions. As noted, repository DOE siting projects and in light of the cooperation with the States. 42 U.S.C. construction (including sinking of the extensive prelicensing interaction 2021(a), and it is Commission practice to main repository shaft) would require process now underway between NRC. consult with State and local licensing action. Site characterization the states. and DOE. governments on matters of common would continue during repository He principal aspects of the licensing interest.' construction, with the data to be procedures that the Commission has Recognizing that furtherlegislative reviewed before issuance of a license under review concern (1) the role of guidance would help to define authorizing receipt of radioactive NRC during site screening and site appropriate forms of consultation and material. Upon commencement of NRC's characterization activities. (2) State. cooperation. Congress in 1978 directed informal review.NRC would publish a tribal and public participation in NRC the Commission to prepare a report on notice in the Federal Register, send activities with respect to geologic means for improving the opportunities copies ofinformation submitted by DOE repositories. (3) NRC responsibilities for State participation in the process for to State and local officials, and offer to under the National Environmental Policy siting, licensing, and developing nuclear meet with those officials to provide Act (NEPA). (4) procedures and waste storage or disposal facilities. NRC information and explore possibilities of standards for identifying categories of Authorization'Act for Fiscal Year 1979, their participation in the licensing material as high-level radioactive Pub. l.95-401. Sec 14(b). After process.

wastes, and (5) changes, especially with consultation with the States, the After soliciting and considering views, respect to content of the license Commission submitted its report to . the Comission next proceeded to issue a-application, needed to conform the Congress in 1973.Means for/mprormg proposed rule. One significant difference licensing procedures to the technical State Ptzrticipation in the Siting. from the policy statement was that DOE criteria.'The present rulemaking Licensing and Development of rederal would be permited to sink shafts and proposal deals with the first two of Nuclear Waste facilities. NUREG-0539. engage in site characterization activities these topics: because the two are so reprinted :n Nuclear Waste Isolation at depth before formallicensing intertwined they will be treated Pilot Plant (WIPPh Oversight Hearings proceedings were commenced. DOE's tagether. Before the Subcommittee on Oversight site characterization plans would y,ey g,,,,4 andInvestigatwns of the House Comm. ,,,,ng,g,,, y, ,,,;,,,g g, on laterior and lasular Affairs. 98th considerable detail in advance'. with in 1974, when the Atomic Energy Cong.,1st Sess. 514-601 (1979) (the NRC

• Commission's functions were divided between the Energy Research and Report).ne NRC Report. " Based on the premise that State involvement in any

["" dt i fha - ct rization ana ysis.

ne proposed rule incorporated detailed Development Admmistration(ERDA) national nuclear waste management provisions to ensure extensive and the Nuclear Regulatory program is a critical element in making opportunities for State and public Commission. Congress provided the program work." included several participation.nese procedures were generally that ERDA high-level waste procedural and substantive designed to allow affected States to disposal facilities were to the subject to recommendations.

NRC's regulatory and licensing authority The value of such State involvement- participate to the fullest extent poss,ible within the limits of the Commission s (42 U.S.C. 5842). NRC's role with respect for the Commission as well as for the authority and the to such facilities remained unchanged States-was emphasized as the NRC and capabilities., State's own desires The Co when the functions of ERDA were developed a framework forlicensing observed. however, that ,mmis,si,onprovisions transferred in 1977 to the new geologic tep6sitories for high-level State participation would be reviewed Department of Energy (DOE) (42 U.S.C. radioactive waste (10 CF1L Part 80). De Bret step in this process was the in the light of any peninent stat 7151). changes that may be enacted., utod Although the Atomic Energy Act Commission's publication of a Proposed Moreover,it noted that the extent of recognizes the interest of the States in General Statement of Policy (43 FR State participation may be affected by the peaceful uses of atomic energy and 53889. November 17.1978). This legislative action on the matters c'ccument contemplated that the discussed in the NRC Report (44 F1t

' twees penamins to NEPA nu require Commission would make licensing 7040s, December 6.1979.

modincanone to to Cnt Pan st. A-imants a to determinations before DOE commenced CHL Pen suo redect the Wate Pohey Act wiu be construction of a repository shaft. DOE De final rule added provisions with the subject of a sabesquent rulemak4However. would be encouraged, however, to respect to notice to and participation by actions whirt the Commission may take ret *"" " Indian tribes. However, inasmuch as environmental assessements reqetred by the Weste Pohey Act are heaaad later la this statement, s42 USC mt! le a and1Rcation of a 1sge statute pp canmenu on b pesd @n pointed out no serious deficiencies i canaderation of the denmuon of HLW la meerved. .lch added a new Secuan F4 to the Atonue and the Commissaan anttetpetes publication of en raesy Act of1ss4 Secnon F4 estabhabed the opportunities for State and public advance nouce of proposed ruiemanms on this topic p .cedures and enteria for discononuance of rticipation, the provisions that had in comme months The concent of apphcatsnn r,deres regulatory responsibiliues with reinect to n proposed were adopted without

.ection will be reviewed efter tesuance of DOE byproduct. sourra. and special nuclear matenais sittna suidelines under the Waste Policy Act to take and the assamotion enereof by the Staire. However. material change (46 Flt 13971. February such suadehnes into account tf and as appropnate. under htson F4. the resulauon of hash-lesel waste 25,1961).

The Comaussion would welcome sussesuona from dispoe4 for safety reasons remained a Federe! Both the proposed rule and final rule interested persons with respect to other chaners responsitnhty. See Ibeific Cos e Elserne Ca v.

j ihai may be needed no retract provisions of the Enerry comm,n,on. est UA isa rs a rm rsz, contemplated that DOE would l

, Wute Pohey Act. no(1ss3h characterize several sites at depth.

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Federal Register / Vcl. 50. No.12 / Thursd:sy. Januiry 17, 1985 / Pr:pos:d Rults 2581 IC primarily so as to enable the opportunity to identify and consider a characterization analysis to DOE. As

-Commission to discharge its NEPA broad range of public concerns; this noted above, these procedures were d responsibilities with respect to would assist NRC in the preparation of a designed to solicit comments that would evaluation of attematives. With this in comprehensive and reasoned analysis. assist NRC to prepare a comprehensive mind. DOE would have been required. The site characterization report would and reasoned analysis.

as discussed below, to include include more than a description of the ds information conceming its site selection site and the program to be undertaken to 4. Consultation (f ond1. f oa64/al/

process in its site characterization characterize the ability of the site to Under Part 80. NRC staff would report to NRC. achieve waste isolation. It would also consult with State govemment and discusa "the method by which the site Tnbal officials on written request, to De Existag Regulations was selected for site keep them informed of NRC views on The principal aspects of the existing characterization . . . and . .a the progress of site characterization and licensing procedures that are of present description of the decision process by to notify them of NRC meetings and interest relate to (1) submission of which the site was selected for consultations with DOE. NRC would DOE's site characterization report. (2) characterization, including the means respond to written question or public notice of receipt of the site used to obtain public. Indian tribal and comments from these officials and .

characterization report. (3) the States views during selection." transmit such responses to DOE.

preparation of a site characterization Altemative media and sites at which Consultation would not be limited to site analysis by NRC (4) consultation DOE intends to carry out site characterization but could include a

,'E between NRC and States and Indian characterization would be identified. review of NRC licensing procedures and tnbes. (5) participation in NRC reviews. DOE's report on these topicswould the type and scope of State and Tribal g

and (6) procedures for the formal enable the Commission to consider activities in the bcense review permitted hearing process. It will be useful to whether additional information might be by law as well.

review the present language of to CFR needed by the Commission in ,.

dischargingits NEPA responsibilities (4(. 5 Proposals forSIate Participatw.n Part 60 with respect to these items s, (ff 6a62-64/

before tuming to the changes that we FR 13972).

pMpose to adopt. The NRC Report (at 18-24. 27-?.8)

~2 Notice andFublication (f 6aJJ) distinguished between improvement of E  ; 2. Site Chamcterization fleport (f oa11/ As directed by section 14(a) of the a " ' '

NRC requires that DOE submit a site 1980 NRC Authorization Act. NRC rules ' ',,pa

, h d ar e a characterization report "as early as provide for notice to the Govemor and other, the carrying out of an possible after commencement of the State legislature of the State of " independent State review"of a planning for a particular geologic proposed situs whenever a site proposal to store or dispose of nuclear repository operations area, and prior to characterization report is received. waste. The Report identified several sita characterization." Both the timing Although not requirwt to do so by law. - avenues for State participation in NRC and required content of this report NRC would also (1) transmit copies of reviews that could be implemented reflect the statutory directive in section the site characterization report to these under existing law.Dese included addressees. (2) provide similar notice to

((,g,y, 3-14(a) of the NRC Authorization Act for h g I twoo. Pub. L se01. which provides: localofficials tribalorganizations and , ,t on ices.

Ram p Sec.14(al Any person. agency. or other entity proposing to develop a storage or g] [egneter g exchange of personnel under the Intergovemmental personnel Act, and

_ esposal factury. inciamag s ust espoemi receipt of the site characterization report which, among other things will contracts for technical services needed facility. for high-levet resoactive wastes, or by the Commission. Besides the trradiated nuclear reactor fuel shall notify advise that govemmental and Tribal the Comm-n as early as possable after the officials may request consultation with activities that could be carried out under com= =---- t of planning for a particular existing law the Report (at 28)

NRC staff. .

prope.W facihty. The Conunission shall in recommended that the Congress tum not:iy the Govemor and the State 3. Site Chamcterization Ano/ysis " establish a grant program to allow the leeislaiore of the State of proposed situs (f6a11) States to participate more fully in the whenew the Conunission has Wedge of The rules provide that NRC will Federal waste management program."

such pmpoeal review the site characterization report Part 60 provides for State De Commission in propoemg its and prepare a draft site characterization participation in the review of a site licensing procedures, made specific analysis which discusses the characterization report and/or license reference to this statute and explained information submitted by DOE. and that application. A proposalinitiated by the that its rule would " ensure that the a request for public comment on the State would describe how the State notice from the Department will. in fact. draft site characterization analysis is to wishes to participate in the review and initiate a meaningful, substantive be published in the Federal Register. how it plans to facilitate local -

review"(44 FR 70409). The site copies are to be transmitted to the State government and citizen participation, characterization report. together with and local officials and Tribal and it would include funding estimates ,

the NRC staff assessment thereof and organizations who had previously of work to be done under contract with meetings between NRC staff and State received notice under the rule. it was the NRC. Subject to the availability of officials and other interested persons, anticipated that NRC would hold local funds and legal constraints. NRC would

" assures an early opportunity for other public meetings in the immediate area of approve State proposals that it finds will Federal and State agencies and the the site to be charactertzed both to enhance communications with the State public to become involved in the disseminate information and to obtain and contribute productively to NRC's decision making process" with respect public input, but this is not an explicit license review.

to DOE's site characterization and site requirement under the rule. After a Under the State participation selection programs. Ibid. De review comment period of at least 90 days. NRC provisions. proposals can be submitted process would provide NRC an would transmit a final site -

by any State "potentially affected" by

up -n _i . '

(

1 2582 Federal Register / Vol. 50. No.12 / Thursday, January 17, 1985 / Proposed Rules l

l the siting of a repository, even if the U.S.C.10134 (recommendation for NRC with respect to this agency's prospective repository site is in a development)].The designation of a site functions. Nevertheless, an examination different State. By the same token. as suitable for application for a of the details of the Waste Po! Icy Act Indian tribes "potentially affected'* by construction authorization will no't be highlights differences from Part 60 which the siting of a repository may submit effective over State objections except need to be taken into account. In proposals for participatioriin the same pursuant to a Congressional resolution addition, there are some changes-manner as the States. which thereafter becomes law (Sec.115, earticularly with respect to funding of

( . .

& formall.icensmg Procedures 42 U.S.C.10135). State participation-that would have j

ne Waste Policy Act reconfirms the been desirable even in the absence of ne NRC rules provide that notice of authority and responsibility of the

} the new legislation.The need for

specified events (docketing. hearing. Commission to review a specific proposed issuance of license, issuance revisions can be analyzed using the repository proposal, pursuant to the same heading as before.

oflicense) will be published in the Atomic Energy Act. in order to protect Federal Register; there are additional #* N#

the public health and safety. The Waste ## '# ###

specific requirements for notice to State Pol cy Act provides for Commission As is the case under the existing and local officials (and to Tribal review prior to site characterization, as regulations,it is appropriate that.the organizations if a repository is to be well as in a formal licensing proceeding, submission ofinformation about a site located within an Indian reservation).10 and for a Commission determinationand CFR 2.101-2.106. Affected States and as plans for characterization of the site to whether a repository of a particular should be the occasion for commencing Indian tnbes desiring to participate as a design at a specified site will provide party to a licensing proceeding may NRC's initial substantive review.

adequate isolation of radioactive waste. However, the Waste Policy Act specifies petition for leave to intervene; and they may also participate in a more limited . The Waste Policy Act makes no specific a number of actions DOE must take capacity as provided by the regulation. provision for the Commission to engage . before such information is required to be 10 CFR 2.714,2.715. in. or independently review, the submitted to NRC. Further, the Waste processes of site screening and Policy Act calls for NRC to review De Needed Revisions selection.The Commission's only information of narrower scope than that One of the purposes of the Waste Prescribed participation in this selection which, under to CFR Part 60, was to be Policy Act is to define the relationship process comes in NRC's review and included in the DOE sitt between the Federal government and concumace in guidelines for the characterization report.

the State governments. and between thi recommendation of sites for repositories Under i 60.11. the site respective Federal agencies, with (Sec.112(a). 42 U.S.C.10132). However. characterization report was to be i

respect to the disposal of high. level the Commission will review DOE's draft furnished to NRC "as early as possible I radioactive waste. The Act presenbes in environmental assessmsnts as it would after commencement of planning" for a great detail procedures for DOE to review any otherinformation on site particular repository. In contrast. the consult and cooperate with the States investigation and site characterization. Waste Policy Act requires that DOE first (and affected Indian tnbes) with respect in order to allow early identification of nominate several sites (after holding to determining the suitability of an area potential licensing issues for timely l public hearings and consulting with the '

for a repository and with respect to resolution. Reviews will be carried out govemors of affected States) and that other issues arising in connection with in accord with the procedural agreement particular locations would then be the planning siting, development, between NRC and DOE forinterface recommended as candidate sites which, construction, operation. or closure of durirg site investigation and site if approved by the President, would be such a facility (Sec.117,42 U.S.C.10137). characterization.: eligible for site characterization.

DOE is directed to make initial grants to While the Waste Policy Act ne new law marks this time-before States with potentially acceptable sites establishes new procedtfres for the high- DOE proceeds to sink shafts-as the for a repository and. subsequently, to level waste management program, the point when the site characterization provide further grants to any State in Commission remains entirely free to plan is submitted. When the which there is a site approved for consult with the States and Indian Commission reviews this plan, the site I tribes, at its own initiative or theirs.

characterization (Sec.116(c),42 U.S.C. to be characterized wi!! already have 10136). The latter grants are to enable with respect to any matter pertaining to been the subject of extensive scrutiny. It the States among other things. to review NRC's regulatory role. Although specific will have been described in an potential impacts of the repository upon channels are established for States and environmental assessment in which the the State and its residents and to Indian tribes to engage in consultation alting guidelines are applied and will provide information to such residents . and cooperation with DOE, these cannot have been discussed at public meetings regarding th~e activities of DOE or the substitute for direct interaction with - at which public comments will have Commission with respect to the site.

been solicited and received. It also will DOE is also directed to provide financial *Procedwei Ayee.nent twtween the US Nedser have been reviewed by both DOE and and technical assistance to a State in itesalatory consuman and the ur Depenment of the President in the course of the which a repository is to be located, after nomination approval process. Extensive NRC has issued a construction Qj"."Assut as nt asMN ss. Iss3Mw procedwd8 ,

Q P"programa data gathefing 7, j *c',may have been I authorization. in order to mitigate the i

impacts of development of the Aarw wans daisned to eum that sa infonnauon carried out in coo l unction with these flaw as nomissed e f.auta= ese esency's activities.

I repository. Ibid. The Waste Policy Act also contains requirements that DOE

, Ay,'"g" 'p',"""

DOE may very well need to make procedwe Acument aise proeides that oot is to choices and commitments in the course ho'd public heanngs at several stages of monfr pomenal heet 5.atse and effected Indun of such data gathering that could have a site selection and characterization (Sec. intee of tachawal meennes twtween doc and Nitc

• ' significant bearing upon the safety and i' 112(b):2). 42 U.S.C.10132 (nomination): ' ,5,h"gbes N ' N S h E " $ m"as8 j'j" licensability of a repository.The dnlling l h Sec.113(b)(2). 42 U.S.C.10133 to open meetmss. with members of the pubhc be ng of boreholes for testing purposes, for --

(chstactenzdon): Sec.114(a)(1). 42 penened se ettend u obururs. example, could affect the integrity of a g l a*! ,

______._.____J

Federal Register / Vol. 50. No.12 / Thursdiy. January 17, 1985 / ProposId Rults 2583

. =

DOE to compare sites or upon the opportunity for consultation thereon repository that might be constructed at the site. Close coordination between relative ments of one site against with the NRC staff.

' DOE and NRC is therefore needed prior another. Such a reuew by NRCis not J. Site Gometerhon Analysis.

t submission of the site necessary to fulfill any of its statutory h . characterization report so as t of acilitate responsibilities. Moreover DOE will be The Waste Policy Act requires, before the early identification of issues of selecting sites using guidelines in which DOE proceeds to sink shafts at a potential safety significance and so as to the NRC will have already concurred. candidate site, that DOE submit its site afford an opportunity for NRC to We regard it as eppropriate, however, characterization plans to NRC (as well provide DOE with timely views. and fully consistent with the objectives as State and tribal officials) for review Under the Waste Policy Act, the of the Waste Policy Act for the NRC and comment (Sec.113(b). 42 U.S.C.

staff to provide to DOE current 10133).The Commission believes that Information which is to be submitted to expressions ofits views on the quality Congress intended that DOE should the Commission for review and comment prior to site characterization is of the data available and the potential provide the plans sufficiently far in similar to existing I 60.11. Both Part 60 licensing issues that may be anticipated advance so that comments may be and that may need to be addressed in developed and submitted back to DOE and the statute call for DOE to describe DOE's site investigation and site the site, the proposed site early enough to be considered when characterization activities, a conceptual characterization activities. shaft sinking occurs, and at all time in view of the foregoing thereafter. As explained above. this repository design. and certain implies an ongoing working relationship d e at ge b th e ng and or p kg owev veral with DOE to assure that its data and categories of'information which were content of the DOE site characthri'z'ation assessments are made avail le to NRCj report to conform to t) e Waste Policy

' previously listed in i 60.11 are omitted as they are developed. As a ady Act. Despite these changes. however, mentioned. NRC and DOE have, in fact, under the Waste Policy Act from the

' required submission to NRC-notably, the Commissyn plans to be involved at developed a Procedura Agreement earlier stages irf reviewing data the method by which the site was collected by DOE as well as its under which NRC is to have access to selected for site characterization, the information as it is generated and.

programs for gathering additional data.

identification and location of altemative The instrument for accomplishing this-. equally important. NRC,is to comment media and sites at which DOE Intends regularly lo DOE with respect to this namely, the Procedural Agreement to conduct site charactenzation and a referred to above-is already in place information.

description of the decision process by and is being implemented routinely. nus, the Commission expects that which the site was selected for the principal means of evaluation will charactenzation (including the means 2. Notice and Publication be the interagency process that begms used to obtain public. Indian tnbal and De Waste Policy Act provides that: early in DOE's consideration of a site.

State views during selection). Before nominating a site, the Secretary When investigations have progressed ne Waste Policy Act still requires a [ f Energy] shall notify the Govermr far enough to warrant sinking of shafts, discussion of the omitted items. but in n and legislature of the State in which it is our expectation that NRC will separate document called an such site is located, or the governing already be adquately informed with body of the affected Indian tribe where respect to data generated to date and

{g"b1 2 1 E such site is located, as the case may be, that NRC's concerns would already f su h aminaugn and the basis for have been focused and brought to the s a n is to p d y public '" ""*" " **" "8

' hearings held by DOE and consultation US 1 32 Lat

• bli the case. NRCo sh' ^uld be in a position to by DOE with governors of affected hearings an a pr s d view c mplete its review and provide States. Ibid. Although not required to do process involving Presidential approval, e mments to DOE. as miuM h 6e so by the Waste Polly Act. DOE DOE must submit site characterization . Waste Policy Act,in a prompt fashion.

intends to make environmental plans to those same officials, for review The site characterization analysis would assessments in draft form available for and comment: concurrently. DOE is be,a continuing dynamic process, better public comment. All this occurs in required to submit such plans to NRC suited for ongoing publicinpu connection with the nomination of a site (Sec.113(b)(11. 42 U.S.C.10133). review, rather than freezing the ,t and NRC prior to Presidential review and Although publication of notice in the comment and review proce,ss at one approval of a candidate site for site Federal Registee is not required arbitrary point in time.

characterization- expressly. DOE must make both the An ongoing public review process The Waste Policy Act makes no environmental assesament and the site would also facilitate DOE's ability to provision for the Commission to characterization plan "available to the public" (Secs.112(b)(1)(G).113(b)(2)( A). obtain comments on its site comment to DOE on its environmental characterization plan from the States assessments or otherwise to participate 42 U.S.C.10132-33].The Commission anticipates that DOE will give notice in and Indian tribes as well.ne Waste in the nomination process. It is Policy Act affords an opportunity for nevertheless the intention of the the Federal Register as the means for assuring adequate public availability of these entitles to enter into written Commission to review and comment on agreements with DOE specifying the environmental assessments, as well these documents.

as other technical documents being' Since DOE is required to make its site procedures for consultation and characterization plan available to State cooperation that could include early prepared by DOE. in order to assess on review. Moreover, the NRC/ DOE a continuing basis the information and tribal officials and to the public.

Procedural Agreement assures that collected to date and the program for the duplicative provisions may be removed development of additionalinformation from Part 80. Even so, however. it makes States and Indian tribes will have an sense for the Commission to publicly opportunity to be informed routinely for a potentiallicense application, concerning the information made However, the NRC staff would not acknowledge receipt of DOE's comment upon the methodology used by submission so as to provide notice of the available to NRC and NRC's comments e 1

y .- .

--n _ - , ~.L-^l -- --

~

2584 Federal Register / Vol. 50. No.12 / Thursday. January 17, 1965 / Proposed Rules thereon and to attend NRC/ DOE rights to States and Indian tribes beyond a Formall./ censing Procedures technical meetings. those already provided in law. H.R. Rep.

Under existing 10 CFR Part 60. DOE's97-785. Part I at 74. The proposed submission of site characterization amendments contain conforming the s cI n gs ad plans was to occur. as already noted. language implementing this requirement. been described in the Commission's desfo "as early as possible after commencement of planning, for a

%e Waste Policy Act charges DOE with the responsibility to " consult and

d ] I Fa lication, subject to certain deadlines. "in particular repository.There was no ,ooperate' with the States and Indian assurance that either NRC or other tribes in an effort to resolve their Acordance with the laws applicable to interested parties would have had prior concerns about the safety, such applications" (Sec.114(d). 42 U.S.C.

information about the site or any environmental, and economic impacts of 10134). Affected States and Indian tribes opportunity to make conerns known to a repository. States may make will be entitled to participate in the DOE. It was in this context that the licensing pro eedings.

comments and recommendations to Commission determined that NRC DOE regarding any activities taken TM new requirement that DOE and would prepare a draft site under this subtitle." and this may be NRC provide timely and complete characterization analysis for public funded by grants from DOE (Sec. Information to the States and tribes. Sec.

review and comment before developing 116(c)(1)(B)(v). 42 U.S.C.10136). DOE is 117(a). 42 U.S.C.10137 would apply to a statement of the agency's views for directed to take State and Indian significant milestones in the formal consideration by DOE. concerns into account "to the maximum adjudicatory process.De rule presently Under the Waste Policy Act.however, extent feasible" (Sec.117(b). 42 U.S.C. reflects this, and the Commission finda DOE's submission comes after an 10137). Accordingly. in expectation that no need to moddy the fwmal mgulatg extensive period of interaction between States and tribes will communicate stmetum fu ucasing acuvWs at DOE and the States, affected Indian directly with DOE with respect to its site 8dN N"DN-tnbe,s. and the pub!!c. and after characterization plans. the provision . Section-by. Sect /on Anolysis Presidential review and approval of the . that the Directorawdl respond to sites recommended for characterization. questions and comments of the States in light of the foregoing By the time a site characterization plan and tribes on DOE's plans has been considerations, the Commission is is to be submitted for review and deleted. . proposing to revise its licensms comment, there should have been ample However, the Commission has opportunity for NRC to have become [rocedures with in igh. level waste respect geologic torepositories.

disposal of consistently expressed its intention to acquainted wyh both DOE's programs maintain a dialogue with the States. The following section.by.section and the public s concerns. Since analysis provides additional technical meetings under the Procedural Indian tribes, and members of the public.This intention is unchanged. The explanatg infamadon. All refmaces Agreemena will be open, interested are to Title 10. Chapter I. Code of parties will have an opportunity to scope oy dia;ogue may app e n a u Federal Regulations. Other revissons, follow the course of NRC activities and , including changes that may be needed to to bring their concerns to the attention ed by NRC in the disch Iits 11 conform with the Waste Policy Act's of NRC. Further opportunities for public '

provisions fw envirmunental mviews, involvement are provided by law. since responsibilities.

gggg g DOE must also seek the comments of 5. Proposols for State Pbrticipotion rulemaking, the States and tnbes, and hold public hearings in the vicinity of the site. For Subpart C of to CFR Part 80 provides 10 CTif Pbrt m Subport A these reasons, together with the for the filing of proposals by States and scheduling mandates of the Waste Indian tribes for participation in reviews Section m.? Definitions.

Policy Act, the Comrnission believes it is of site characterization reports and %e terms " Indian 1Yibe" and " Tribal no longer necessary to prepare a draft license applications. In~ response to such organization" would no longer appear in site charactenzation analysis on which proposals. NRC would consider Part 60 and the definitions of the terms public comment is sought.The providing certain educational or have therefore been deleted.%e term Commission particularly asks for views informatinnjervices and funding work "affected Indian tnbe." as defined in the on this proposed change. that ttw Stdte proposes to perform for Weste Policy Act. is the proper it should be emphasized, however, the Canmission, under contract,in designation for those entities that are that NRC will have been engaged in an support of the review. entitled to notice and other recognition ongoing review of DOE's activities even With enactasent of the Weste Policy under the rule.The proposed rule before submission of a site ,

- Act, authority to fund a broad variety of incorporates the statutory definition of characterization plan and that the State activities. including grants to - "affected Indian tribe."

comments of interested parties may be enable a State"to review activities . . .

submitted at any time for consideration for purposes of determining any 20 CMt Pbrim Subport B as a part of that review process Potential economic, social, public health ne sections in this subpart have been

• C##8d'#U#" and safety, and enviromnental impacts" renumbered so se to allow forinsertion of a repository hos been vested in DOE. of additional general provisions, if*

Under the Waste Policy Act, the Sec.110(c)(1)(B)(i). 42 U.S.C.1013e: see needed, at a future date.

Commission is directed to provide also Sec.110(b)(2)(A)(1)(pertaining to

" timely and complete information affected Indian tribes). The scope of .Sectionm25/former/ I Im10/ Site regarding determmations or plans made NRC assistance available may be #*# ####U"'

i mth respect to site ci erecterization, limited by this statutory direction. No change.

• siting, development. design. licensing.

However, other elements of Commission construction. operation. regula tiott. or support would not be affected as Sedia mJMs/fWyfm1f/.

decommissioning" of a repository. Sec. explained in greater detailin the ne former section 180.11. captioned 117. 42 U.S.C.10137, but this affords no section.by.section analysis below. " Site characterization report." has been ,

Feder:1 Register / Vol. 50. No.12 / Thursdry. Januurt 17. 1985 / Propost;d Rules __ 2585 when the context pertains to the area in sufficiently clea: should additional resised to conform to the Waste Policy which waste handling activities are information be needed. the Commission Act. It has been divided into three ,

would retain the option. by order, to sections in order to provide a c! carer- conducted.

Part 60 defines " host rock" as "the require further submissions.

editorial structure. As noted, the Commission has The " site characterization report" has geologic medium in which the waste is been changed to a " site characterization emplaced." Accordingly.the rule refers included an explicit statement that the plan." Note that this includes more than to the waste-host rock relationship site characterization plans shou!d spell DOE's " general plan for site mstead of the relationship of the waste out DOE's quality assurance programs. l charactenzation activities;" conforming form or packaging and the geologic Existing ( 60.11 includes such language.

to Sec.113[b). 42 U.S.C.10133, it must med,um.The i statute s reference to the but it was not included in the aho incorporate information on waste packagmg for the waste corresponds counterpart provision of the Waste form and packaging as well as a to Part 6(ys " waste package, and the Policy Act. However, since a pnncipal conceptual repository design.The proposed rule retains the latter term for aim of site characterization is to develop change from ' report

• to " plan better purposes of consistency. data that h bee bt d and conveys to sense that DOE is describing The Waste Policy Act requires DOE t documente in a fashion w ich will include in its , general plan for site a program to obtam,mformation which support licensing findings, the NRC can be used later to evaluate a site, as characterization activities any other miew should be concerned with the ,

opposed to a presentation of data which mformation required by the approach which DOE is taking to data would allow a preliminary judgment as Commission." The Commission has so collection. recording. and retention as to site acceptability. ne NRC review far identified only one such item-- well as to the content of the mformation process at this stage is not directed to namely infurmation with respect 19 which DOE seeks to assemble. Because advising DOE whether or not the site is quality assurance. Other infarraittiog of the importance it attaches to this item or is not satisfactory, but rather whether may hereafter be found to be needed to the Commission considers an explicit or not the charactenzation program (1) enable the Commission to determine requirement for submission of will generate data needed for arriving at whether the proposed site information on quality assurance subsequent licensing determinations characterization activities are programs to be necessary, and (2) will adversely and significantly appropriate:if so, the Commission would establish its requirement either We have also incorporated the affect the ability of the geologic statutory requirement that DOE is to repository to achieve the prescribed by rule (particularly if the.information would be valuable on a generic basis) or include in its general plan a statement of performance objectis es.

by order in a particular case. Although the enteria to be used to determine Section 6a M Site choroctertzotion the Commission s obligations to observe suitability of the site for the location of a Pj,n requig the statutory schedule must be heeded. repository. Because site characterization ne requirement for DOE to s'ubmit a there is no reason in principle why the will be a prerequisite for application of site characterization report appeared in submission of other information could some guidelines, see Sec.112(b}(1)(El(ii).

I 60.11(a). As before, the document (now not be ordered even after tha site 42 U.S C.10132. we anticipate that the a " plan")is to be submitted to the characterization plan had been filed. if site charactentation plan will also Director of NRC's Office of Nuclear required for the Commission to include a description of how DOE will Matenal Safety and , Safeguards. The discharge its review and comment use the information gathered during site purpose of the submission ("for review responsibilities effectively. characterization to determine if the site and comment")is derived from the The Waste Policy-Act's reference to suitability guidelines are met.

Waste Policy Act.Similarly. the timing plans to control any adversa. " safety- ne Weste Policy Act applies only of the submission (*before proceeding to related" impacts from site with respect to geologic repositones that sink shafts,) reflects the new statutory charactentation activities can be traced are used. at least in part. for the disposal direction. to former i 60.11(a)(6)(iii).De of wastes from civilian nuclear The regulation refers to . Commission a concern" originally was ' activities. Sec. 8. 42 U.S.C.10108. If DOE charactenzation at any area which has that DOE address those aspects of site were to develop a facility exclusively for been approved by the President for site characterization that (1) could be wastes from atomic energy defense characterization.Such an area would be significant with respect to radiological activities. it would nevertheless be a " candidate site" as defined in the safety prior to permanent closure or (2) subject to licensina by NRC under the Waste Policy Act.ne regulation avoids could affect the ability of the repository Energy Reorganization Act.ne that term. however, because it already to satisfy the performance objectives Commission has considered whether the defines " site"in a different way. pertaining to waste isolation. The changes proposed herein, which are proposed rule containa len uage that largely responsive to the Waste Policy Section 60.17, Contents of site reflects this construction o the statute. Act. would be appropriate with respect chatucterization plan. The Commission recognizes that the

' to such defense facihtiep it appears that his section restates. with minor requested level of detail is not spelled the Commission, acting under amended changes. the information which the out precisely. Such items as "a Part 60, co aid still effectively discharge Waste Policy Act requires to be description of the ares" and "a its health and safety responsibilities for submitted to the Commission for review conceptual design for the geologic such defense waste facilities. But, in this and comment. repository operations area that takes into account likely site-specific section, the provisions that prescribe the Because Part 80 defm' es high-level #

radioactive waste to include spent requirements" must not be read in

• contents of the site characterization isolation. ney must be understood to plan need to recognize that defense-only nuclear fuel, the latter category of facilities would not have any applicable material is not referred to in i 60.17. require sufficient detail for the Commission and other statutory siting criteria " developed pursuant to Cor sistent with other provisions of Part 00. the term " geologic repository reviewers to be able to comment in an Section 112(a)of the Nuclear Waste informed manner. So construed. the Policy Act":instead. In that case, the operations area"(rather than " geologic rule requires that the site repository" or " repository") is employed Commission believes that they are l

l t

.,r- . y ,. -- ,- .-y.wm,

-- - - , , , v.- _ , - -

• • c=

sp y _ yQ- m. [ = A  ; ; Y ~ -

p 2S86 Federal Register / Vol 50. No.12 / 'Iliursday. January 17. 1965 / Proposed Rules l characterization plan set out the siting site characterization plan and that he nuessments will be reviewed-es other criteria actually used by DOE. may also review and consider the DOE documents will be-for the On environmental matters the comments made in connection with the purpose of early identification of l

I situation is more complex.%e Waste public hearings which Doe's is required potential licensing issues for timely Policy Act limitations with respect to the ' to hold. Moreover. the Director will resolution.

scope of the Commission's publish a notice of availability of a site %e Waste Policy Act requires the environmentai responsibilities under characterization analysis and will invite DgE report to the Commission (and to NEPA-which we would implement in host States, affected Indian tribes and State and tribal authorities) at least

! the modified procedures at the site all other interested persons to review semiannually on the nature and axtent I characterization stage--would not apply and comment thereon. Comments of site characterization activities and ~

to a repository used solely for defense received in respone to such invitation the information developed from such wastes. Accordingly, the Commission will be reviewed by the Director: and activities.%e same concerns were would expect to require that DOE where the Director determines that there addrened in existing I 60.11(g).ne submit, with its site characterization are substantial new grounds for maldng Commiulon believes the two plan for a defense facility, those itema of re-andation or stating objections to formulations are essentially the same, information with respect to site DOE's site characterization program. but that the more detailed version in the {

screening and selection that appear in these concerns will be expressed to NRC regulation provides a clearer .  !

existing i 60.11(a) but which are not DOE. statement of the information that is l included in this proposed rule. Because %e Director's review of the site needed. Accordingly the proposed rule the information relates to characterization plan is substantially conforms closely to the Commission's implementation of NEPA. It would be equivalent to the final site earlier rule.The most significant change.

Incorporated in revised to CF1t Part 51 characterization analysis prescribe bY reflecting the adption of a statutory rather than Part 80. , existing i so.u.%e reference to the direcuve to DOE is that the provisions Directw's " comments' mflects the Mre now expressed in mandatory Section 80.M Review of site Waste Policy Act provision that the ("shall") terms. Also, the existing rule I chorocterization activities. information is submitted to the includes a provision for submission of -

As under existing i ao.11(b), the Commission for " review and comment." addiuonal reports OEany topic,if Comminion will publish notice of The proposed rule refers to a requested by the Director: as modified.

receipt of DOE's site characterization " statement" of objections by the such other topics must still be covered plan. Although this may duplicate Director instead of a Director's as requested by the Director, but the information published by DOE. It will " opinion" of objections by the Dtrector, information may be included in the serve to identify, to anyone interested, instead of a Director's " opinion"; the l semiannual reports instead of appropriate points of contact within the later term was unnecessarily equivocal. addidual" ones.De Diredor will l NRC staff. Since alternative areas are It is intended that the objections would "'I'" * "'"I'"""*

I not required to be identified in the site be directed at the nature of the site 'E ' ' ' " "P *"* "g "* "

characterization plan, the proposed rule charactenzation activities being I"I"** U" **"I' * )

i omits any reference to such areas, Language pertaining to consultation has proposed and not to the suitability of the U"d" * **

site as such: of course,if it appeared

'""'" * "I "' "

state objections with respect to DOE's been revised to conform with proposed that a particular site exhibited such a site charederizaum prognm.

Subpart C profound deficiency that it could not be De proposed rule provides for the Similarly. notwithstanding duplication compensated for adequately in the light of notice by DOE. the Commission will Director to transmit to State and tribal of data from any site characterization officials copies of all comments made to give direct notice to State and tribal program, the Director could object to the DOE under i 80.13.This includes not of!Icials concerning receipt of DOE's site program in its entirety, but the characterization plan. Under the only the site characterization analysis Commission regards thisis highly rules, this information would and comments or' the site pro improbable given the procedures prior to characterization plan, but also any other

' bed to the officials entitled to j be submission of a site characterization timely and complete information under comments which the Director chooses to i plan to NRCspecified in the Waste make by way of" expressing current the Waste Policy Act.Because such polii/y Act.

officials would already have received The incission of a finding with respect views." Other correspondence between to the necessity of using radioactive NRC and DOE will be placed in the copies of the site characterization plans from DOE. the notice from the materialimplements the specific Public Document Room. but will not Commission would not be accompanied direction in Section 113(c)(2)(A). 42, routinely be distributed to the -

by additional copies thereofdfowever, a U.S.C.10133: the Commission has designated officials.no omission of the copy of the site characterization plan previously concluded that the use of requirement that the Director consider would be placed in the pubic Document source. special nuclear, and byproduct comments received from States in Room. (Existing I 80.11 would require material for purposes of site accordance with I 80.61 conforms to the loca' officials, and also the governors of characterization does not require a changes la Subpart C Sech comments ,

contiguous States to be afforded notice license.10 CFR I 80.7. and there le no may however, be solicited and from NRC This requirement has been reason to believe that the Waste Policy reviewed as appropr61e in individual deleted in the light of the new statutory Act was intended to change this view, cases and, as noted. comments on the provisions.) Since DOE le not required to proper, site cherecterization analysis will be For the reesons set out in the an environmental Impect statement with invited and will be reviewed and such discussion above, the proposed rule rupect to site characterization, see Sec. review may be the basis for the director to express to DOE additional L.

omits the mandatory draft site u3(d). 42 U.S.C 10133, the references in recommdations or objections.

I characteeisation analysis described in existing i 80L11. However. the proposed references la existing i 80.11 to such statement have been omitted. A footnotie Except hr some editorial changes,

[

i rule does provide that the Director may to the text of the rule points out. othe provisions of 100.18 are the same j invite and consider comments on DOE's however, that DOE's environmental as existing regulations. et f

Federal Register / Vd. 50. N2.12 / Thursday. linuary 17, 1985 / Pr:pss d Rules 2587 m CFR Port 60. Subport C climinsted reftrznca to any consultztion a proposil to fzcilitate its participation This subpart deals with participation activities by NRC that are more in the review of a site characterization by State governments and Indian tnbes appmpriately and directly carried out by plan and/or license application. 'lhe la the Commission's licensing and pre- DOE under those procedures. Thus. existing requirement that proposals be licensing activities.ne role of the consistent with the Waste Pohey Act, submitted no later than 120 days after States and inbes in repository siting and questions concerning DOE's site docketing of a license application has development is add.essed in great detail charactenzation submissions should be been eliminated; although early by several provisions in the Nuclear directed to DOE for its consideration submissions are desirable. we can Waste policy Act. While the and response, and notification readily conceive of cases in which concerning NRC meetings or proposals submitted after review of a Commission finds that some changes in consultations with DOE should be license application could be Subpart C are needed in light of those provided by DOE. Notwithstanding implemented in the mutual interests of provisions, it remains our intention to these changes, however,it remams the encourage close working relations with the proposing entity and the the States and tribes.ne revisions and policy of the Commission that . . Commission.The types of services or designed to clarify the means by which c neultation with interested parties with activities that NRC might consider respect to site characterization should providing would include those this can be accomplished in a manner "

conf nuing 2 the new law. educational or information services and o[be a a a le t el ae on at am M ut b Section M Pmvision ofinformotion. respect to NRC's views on the progress [t, g This section implements the ' d p g ,',,'d on the deve opment of The Commission has omitted those requirement in the Waste Policy Act. Portions of existing i 80.62(c) that proposals for participation in licen. p*

Sec.117(a). 42 USC.10137. that NRC ,,y,,,, m. - . contemplate Commission funding of furnish time!y and complete information Although the Waste Policy Act does State work in support of the license to host States and affected Indian tribes not provide formally for NRC activity review. in light of the Waste policy Act.

regardmg its determinations or plans. It prior to Presidential approval of an area funding of such work to improve the epplies, insofar as Commission for site characf*erization, and this is State's capacity to review a license responsibilities are concerned, from the noted in revised i 60.62, there will be application is a responsibility of DOE time a site characterization proposalis coordination during the earlier stages of and it is to be financed out of the submitted throughout the entire life of site screenmg and site characterization Nuclear Waste Fund. We do not rule out the mpository through in accordance with the Procedural the possibility that the NRC may decommissioning. Consistent with Agreement between NRC and DOE; contract with State governments on 1 other usage in Part 80, the phrase special provisions has been made in that occasion for particular services that we

" perm,anent closure, or decontamination agreement for States and Indian tribes may require in order to be able to and dismantlement of surface facilities to rece ve notice and to attend NRC/ discharge our statutory responsibilities is used instead of th,e statutory term

,,d"" ""-onmg.

DOE meetings so as to enable them to effectively.De execution of such

, engage knowledgeably, on an early and contracts would be carried out under 8* " ongoing basis, in site characterization c ,,[ g established procurement procedur,es and determinations made in the course of Yo"pportunity to request that the $tations wit c to co petitive licensing proceedings. Under our rules of Director consult with respect to the NFC bidding and avoidance of conflicts of Practice, portfes on the service list in review of site characterization activities interest. See 41 CFR Chapter I (Federal such prowedings are required to be is not limited to prospective host States. Procurement Regulations). A further served with notice of all. relevant ne extent to whic!f a State may be reason for handling such contracts pleadings decisions, order,etc. , affected by the prospective location under the general procurement Avordingly, the Commission will use would. of course, be a factor for the regulations rather than Part so is that this established procedure as the means . . Director to consider in determining the ' the criteria for approval of proposals for prr,viding information regarding staff resources that would be made (existing I 60.63, proposed I 80.63(d))

licensing actions. available for purposes of such would be inappropriate when the t

Section ot182 Site review. - consultation. Commission's purpose is to acquire The Waste Policy Act establishes a Section atis Participation in license services which it needs in dischargir g .

structure for the involvement of States reviews. . Its own reviewing functions.

and affected Indian tribes. The proposed This section is a substitute for the Considering this limitation of the rule therefore provides explicitly for earlier il 80.62-40.65. scope of NRC activities under Subpart consultation with States and affected Section 80.83 acknowledges, first of C. the requirement for gubernatorial Indian tribes but omits mention of local , all, that State and local governments approval of a State proposal has been

"~ eliminated as being unnecessary.De -

governments. (However, the and affected Indian tribes may Commission anticipates,in light of the participate in license reviews as information required to be included in Waste Policy Act. see Sec. provided in the Commission's rules of the proposal has also been modified to 116(c)(1)(B)(iv) 42 UAC.10136. that the practice. Local governments are conform to the limitation of scope.The States would establish appropriate mentioned in this context because they Waste Policy Act may have further procedures to address local government may have standing apart from the State dmited the opportunities for states to 1 and citizen concerns.)

• in which they are located, to participate receive funding from the NRC. the 1 r Since the concerns of the States and in a licensing proceeding as a party or Commission is of the view that Congress )

( affected Indian tribes will be dealt with participate in a more lirmted capacity, intended that DOE should assume the -

primarily under the statutory See to CFR 2J14. 2515(c). Fedetal responsibility for activities of ,

l The regulation retains a provision for the types described in Sections 116 and

. consultation and cooperation procedures, the Commission has a State or affected Indian tribe to submit 118 and that such activities should be l

.M k - d b 2 as h ly 1

. } * +884RM!b88WL e, "*T .

l Tans.,s.u m .- massaannmaass e r n m nam n, . - ,, dan ., - .. '

l l

l 2588 Federal Register / Vol. 50. No.12 / Thursday, January 17, 1985 / Proposed Rules financed out of the Nuclear Waste Fund of1969, as amended, and the Nuclear PART 60-DISPOSAL OF HIGH. LEVEL rather than out of NRC appropriations. Waste Policy Act of1982, and not just RADIOACTIVE WASTES IN GEOLOGIC

. Existing i 60.64, pertaining to the NRC/ DOE Procedural Agreement. REPOSITORIES participation of Indian tnbes, has been Commissioner Asselstine would also incorporated in the substantive retain the present requirement in to CFR 1.Re authority citation for Part 60 provisions applicable to States.%e 80.11 for NRC issuance of the draft site , continues to read as follgws: .

change has been made for editorial Amberity-Secs. 51. 53. 62. 83. 65. 81.181.

characterization analyses for public reasons and is not intended to afrect the 1az.1es, es stat. e2s, eso, e32, oss. 935. sea, right of affected Indian tribes to comment.

es3. eso, as amended (42 U.S.C 2071. 2073.

participate like the States in the Commissioner Asselstine would 2os2. 2003. 20es. 2111. 2201, 2232. 2:33h secs.

activities described in Subpart C. appreciate comment on whother these 202. 20s, as Stat.1244.124e (42 U.S.C 5842.

Existing i 80.65 dealing with two elements should be retained in the 5ese): uca. to and 14. Pub. L 95-601,92 stat.

coordination of multiple proposals, has Commission's regulations. 2951 (42 U.S.C 2021e and sast h sec.102. Pub.

l been deleted. The Commission deems it L et-tso as Stat. ass (42 U.S.C 43321: sec. 1 EnvironmentalImpact 121. Pub. L 97-425,96 Stat. 2228 (42 U.S.C unlikely that multiple proposals of the l kinds considered eligible for acceptance 10141). s Pursuant to section 121(c) of the a 2 under Subpart C would present any Nuclear Waste Policy Act, this proposed Pu

, gg g 80 72 t l undue administrative difficulties: the rule does not require the preparation of are tuued under sec. teto, os stat. osa, as criteria for approval of proposals I an environmentalimpact statement amended (42 U.S C 2201o)).

(especially the finding of " productive under section 102(2)(c) of the National i

2. Section 60.2 is revised by removing contribution to the license review) Environmental Policy Act of1989 or any the definitions of " Indian tnbe" and would afford the Director adequate . .oaum.ntal review under ., ' Tribal organization" and inserting. in ira t of avo ding pYeation. subparagrapir(E) or (F) of section 102(2) the appropriate alphabetical location, a of such act. definition of the term affected Indian Section 80.6d Notice to States. tribe" to read as follows:

Paperwork Redugtlon Act Statement

%e Commission encourages the Covernor and legislature of a State to His proposed rule contains - Ies.2 Denneene.

jointly designate a singla point of information collection requirements that As used in this part-contact to receive notice and are subject to the Paperwork Reduction * * * *

• l information from the Commission.%is Act of 1900 (44 U.S.C. 3501 et. seq.). %is "Affected Indian tribe" means an l section provides for notice to such rule has been submitted to the Office of affected Indian tribe as defined in the j jointly designated nominees. Management a3d Budget for review and Nuclear Waste Policy Act of 1982. '

Sectionoaas Representation. *P9"'*I *I ** W'**k * * * *

• requirements.

Under the present rule, the signature g es.to gneeenignated es g so.tsl of the Governor would serve to 'M Zi Mexibility /:ct Certification document the authority pursuant to 3. Section 80.10 is Redesignated in accordance with the regulatory I 80.15.

which proposals were being submitted Flexibility Act of 1900 (5 U.d.C. 805(b)).

~

to the Commission. Submissions by I " " IR***dI the Commission certifies that this rule d tatio ifityo the will not. If promulgated, have a 4. Section 80.111s Removed.

the e tnbe and the authority ofits significant economic impact on a 5. Sections 80.16 through 60.18 are l substantial number of.emall entities, added to read as follows:

representatives.%is section is designed ,

to retain the principle of assuring that his proposed rule relates to the licensing of only one entity, the U.S. Sne characartasuon pien representatives are properly identified.

With respect to States, a change is Department of Energy, which does not needed to reflect the fact that proposala . fallh the scope of the definition of Before proceeding to sink shafts at will no longer need to be signed by the "small entities" set forth in the any area which has been approved by Covernor. In the case ofIndian tribes. Regulatory Flexibility Act. the President for site characterization, the determination by the Secretary of DOE shall submit to the Director, for IJet of Subjects in le CFR Part es review and comment, a site the Interior that it is "affected" ,

eliminates the need for the Commis'sion High-level waste. Nuclear power characterization plan for such area. ,

I to be concerned with its eligibility. plants and reactors. Nuclear materials. -

I mn centene of sne charactertsason 1 Comunissieser Asselsdavs Addidonal Penalty. Reporting and recordkeeping peen. 1 yg,,, requirements. Waste treatment and He site characterisation plan shall Commissioner Asselstine would contain-retain the present requirement in 10 CFR leeuance (a) A general plan for site 80.11 for NRC review of the site For the reasons set out in the charachrizadon acMu Me screening and selection process which g conducted at the area to be DOE must now include in the , ,f3 d characterised. which general plan shall environmental assessments. He would include-cite as the Commission's authority to se Energy Rewganizadon Act of1M

. (1) A description of such area, review the draft environmental as amended, the Nuclear Waste Policy including information on quality Act of 1982. and 5 U.S.C. 553, the assessments the Atomic Energy Act of assurance programs that have been

. 1954, as amended, the Energy Nuclear R Sulatory Commission applied to the collection. recording and l Reorganization Act of1974, as amended, proposes to adopt the following retention ofInformation used in a the National Environmental Policy Act amendment to to CFR Part 80- preparing such description. I'

~

bgen %  %

Federal Registir / Vol. 50. N2.12 / Thursdiy. knutry 17, 1985 / Proposed Rul2s 2589 (2) A description of such site notice that a site characterization plan months to the Commission on the nature characterization activities. including the has been received from DOE and that a and extent of such activities and the 1 staff review of such plan has begun.The information that has been developed following:- and on the progress of waste form and (il ne extent of planned excavations: notice shallidentify the area to be waste package research and (iil Plans for any onsite testing with characterized and the NRC staff members to be consulted for further development. ne semiennual reports radioactive or nonradioactive material: shallinclude the results of site (iii) plans for any investigation information.

(b) The Director shall make a copy of charactenzation studies, the activities that may affect the capability the site characterization plan available identification of new issues, plans for of such area to isolate high-level additional studies to resolve new issues.

radioactive waste; et the Public Document Room.The

. Director shall also transmit copies of the elimination of planned studies no longer (iv) Plans to control any adverse published notice of receipt to the necessary, identification of decision

- impacts from sucl. nte characterization Govern r and legislature of the State in points reached and modifications to tA activities that are important to safety or which the area to be charactenzed is schedules where appropriate. DOE shall that are important to waste isolation: located and to the governing body of also report its progress in developing the and any affected Indian tribe. In addition. design of a geologic repository

• the Director shall make NRC staff operations area appropriate for the area

" re din ni e o dt c le ti available to consult with States and being characterized. noting when key (3) Plans for the decontamination and affected Indian tribes as provided in design parameters or features which decommissioning of such area. and for Subpart C of this part. ,,.e - depend upon the results of site the mitigation of any significant adverse (c)The Director shall review (he site characterization will be established, environmentalimpacts caused by site characterization plan and prepare a site Other topics related to site characterization activities. if such area characterization analysis with respect to characterization shall also be covered if is determined unsuitable for application such plan. In the preparation of such site requested by the Director.

a for a construction authoriration for a characterization analysis, the Directior th) During the conduct of site geologic repository operations area; may invite and consider the views of charactenzation activities. NRC staff (4) Criteria. developed pursuant to interested persons on DOE's site shall be permitted to visit and inspect -

section 112(a) of the Nuclear Waste characterization plan and may review the locations at which such activities Policy Act of 1982 (or in the case of a and consider comments made in are carried out and to observe geologic repository that is not subject to connection with public hearings held by excavations. borings, and in site tests as the Waste Poney Act. such other sitm8 DOE. "" "**

criteria as may have been used by (d)ne Director shall provide to DOE . N ne mets may comment at any DOE), to be used to determine the the site characterization analysis time m wnting to DOE. expressing suitability of such area for the location together with such additional comments ** * "I "'U" "Y**E'"

• of a geologic repository; and as may be warranted.ncse comments characterization. "In particular, such (5) Any otherinformation which the shallinclude either a statement that the henever the Commission. by rule or order requires. Director has no objection to the DOE's [ents shall be med site characterization program, if such a (b) A description of the possible waste form or waste package for the statement is appropriate, or specific Wh h sim chaMM.on u g high-level radioactive waste to be objections with respot to DOE's program 8"* , Y," ','g ,pon P0tts erm o that emplaced in such geologg repository, a forcharacterizatfordof the area ' " ""

description (to the extent practicable) of concerned. In addition, the Director may kin 8 d o st the relationship between such waste make specific recommendations o ect ns to a site form or waste package and the host rock,, pertinent to DOE ~s site characterization , P'08 ,

at such area. and a description of the program. *

. (j) The Director shall transmit copies activities being conducted by DOE with (e)If DOE *s planned site of the site characterizauon analysis and respect to such possible waste form or charactenzation activities include onsite all comments to DOE made by him waste package or their relationship: and testing with radioactive material, the under this section to the Covernor and (c) A conceptual design for the Director's comments shallinclude a legislature of the State in which the area determination regarding whether or not geologic repository operations area that to be characterized is located and to the takes into account likely site-specific the Commission concurs that the governing body of any affected Indian proposed use of such radioactive tribe. When transmitting the site uirements' materialis necessary to provide data for characterization analysis under this 1 80.18 Review of este charactertasten the preparation of the environmental Paragraph, the Director shallinvtte the e activities.' reports required by law and for an application to be submitted under addressees to review and comment .

(a)no Director shall cause to be i 60.22 of this part. themon.

oublished in the FederalRegister a (k) All correspondence between DOE (f) The Director shall publish in the Federal Register a notice of availability and the NRC under this sectiort. l

'in addst.on to the revww oteste chareciensanos of the site characterization analysis and including the reports described in l acHvmes specirwd in the sechon. the Commuseon Paragraph (3) shall be placed in the , 3 contemplates se engoing review esother er a request for publiC comment A i informanen on site menosanon and e* reasonable period. not less than 90 days. Public Document Room.

g l shall be allowed for comment. Copies of (1) ne activities described in Y

ir $nN s for numely re 4.non Tbs actmtr mu inctode. for esempes. e the site characterization analyses and of paragraphs (a) through (k) above constitute informal conference between en6. of stu enviroanntat ue mente propered the comments received shall be made by Dot si the time of rw noanstaan A procedural available at the Public Document Room. a prospective applicant and the staff. as (3) During the conduct of site described in i 2.101(a)(1) of this chapter, d E*."!.*n"Ed7w NorN.."['"'

i.

published in the Federei negater. es fit as7ot.

Characterization activities. DOE shall and are not part of a proceeding under report not less than once every six the Atomic Energy Act of1954.as Aveuse s.tess.

.g g- .

_aJ._

mn

. c- - w_ a s_.n . n_. _n- _ __ a.

Federal Register / Vol. 50. No.12 / Thursday. January 17. 1985 / Proposed Rules I 2590 1 l

amended. Accordingly, neither the (2) Review of applicable NRC (f) Proposals submitted under this regulations. licensing procedures, section, and responses thereto, shall be issuance of a site characterization analysis nor any other comments of the schedules, and opportunities for state made available at the Public, Document Director made under this section participation in the Commission's Room.

constitute a commitment to issue any regulatory activities. j authorization or license or in any way (3) Cooperation in development of l proposals for State participation in If the Govemor and legislature of a affect the authority of the Commission, the Atomic Safety and I.icensing Appeal license reviews. , State have jointly designated on their Board. Atomic Safty and Licensing behalf a single person or entity to I es.s3 perncipenon in moonee rwwws. receive notice and information from the Boards, other presiding officers or the (a) State and local governments and Commission under this part. the Director,in any such proceeding.

affected Indian tribes may participate in Commission will provide such notice 6.Subpart C is revised to read as license reviews as provided in Subpart and information to the jointly

• raging designated person or entity instead of G of Part 2 of this chapter.

(b)In addition, whenever an area has the Govemor and legislature separately.

Subpart C-Participation by State Govemments and Indian Tribes been approved by the President for site 3 00.45 Repreesnteeon.

characterization, a State or an affected I es.st pmessen of informetton- Indian tribe may submit to the Director Any person who acts under this ,

(a)The Director shall provide to the a proposal to facilitate its participation subpart as a representative for a State l Govemor and legislature of any State in in the review of a site characterization (or for the Govemor or legislature <

which a geologic repository operations plan and/or license application.The thereof) or for an affected Indian tribe l area is or may be located. and to the proposal may be submitted at any time shallinclude in his request or other l

and shalltontain a description and submission, or at the request of the goveming body of any affected Indian tnbe, timely and complete information schedule of how the State or affected " 'ommission a statement of the basisof regarding determinations or plans made Indian tribe wishes to participate in the his authority to act in such by the Commission with respect to the review, of what services or activities the. representative qapacity. -

site characterization, siting. State or affected Indian tribe wishes Detedt n~hin'gton. D.C. this toth da'y of development, design. licensing. NCR to carry out, and how the services January. tees.

construction operation regulation. or activities proposed to be carried out For the Nuclear Regulatory Commission.

permanent closure, or decontamination by NCR would contribute to such saamel J. Cm.

and dismantlemenmt of surface participation. The proposal may inclur% Secretoryo/the commission.

facilities, of such geologic respository educational or information services p g,g operations area. (seminars. pubhc meetings) or otivr

" C888 "*** *

(b) For purposes of this section. a actions on the part of NCR. suc'. as geologic repository operations area shall establishing additional publi" document be considered to be one which"may be rooms or employment or exchange of located"in a State if the location thereof State personnel under th9 DEPARTMENT OF TRANSPORTATION

- la such State has been described in a IntergovernmentalPerstnnel Act.

(c) The Director shall a range for a Coast Guard site characterization plan submitted to the Commission under this part. meeting between the reprssentatives of 33 CFR Part 117 (c) Notwithstanding paragraph (a), the - the State or affected Indian tribe and the Director is not required to distribute any NCR staff to discuss any pn posal ymg docume'nt to any entity if, with respect submitted under paragraph (b) of this to such document. that entity or its section, with a view of identifying any Drawbridge Operation Regulations; counselis included on a service list modifications that may contribute to the Sabine River (Old Channel),TX prepared pursuant to Part 2 of this affective participation by such State or chapter. tribe. Acasocv: Coast Guard. DOT.

(d) Copies of all communications by ** (d)'SA}ect to the availability of funds- Acnoec Proposed rule.

the Director under this section shall be the Director shall approve all or part of placed in the Pub!!c Document Room. a proposal as it may be snodified sunsa Asm At the request of the and copies thereof shall be furnished to through the meeting described above, if Levingston Shipbuilding Company, the DOE. It la determined that: Coast Guard is considering a change to (1)The proposed activities are the regulation goveming the operation of

• g so.sa see reew' suitable in light of the type and the pontoon bridge on the Old Channel (a) Whenever an area has been magnitude of impacts which the State or of the Sabine River, mile 9.5 behind approved by the President for site aNected Indian tribe may bear: Orange Harbor Island in Orange. Texas characterization, and upon request of a (2)The proposed activities (1) will to provide that the draw need not open.

State or an affected Indian tribe. the enhance communications between NRC Presently, the draw is required to open Director shall make NRC staff available and the State or affected Indian tribe (ii) on signal from 700 a.m. to 12.00 to consult with representatives of such will make a productive and timely midnight Monday through Friday except States and tnbes. contribution to the review and (iii) are federal holidays, and to open on signal (b) Requests for consultation shall be authorized by law. at all other times if at least eight hours made in writing to the Director. (ellte Director will advise the State notice is given.This proposalis being or affected Indian tribe whether its made because no requests have been (c) Consultation under this section made to open the draw since 1970. This may include: proposal has been accepted or denied.

(1) Keeping the parties informed of the and if all or any part of proposalis action should relieve the bridge owner Director

• views en the progress of site denied, the Director shall state the of the burden of having a person .

l

?

characterization. reason for the denial. available to open the draw.

i l

, 'U I i

. i

%CEP National Council on Radiation Protection and Measurements 7910 WnnnunedT AVENUE, SUITE 1014. sETHESDA. MAmVLA80. 20014-3005 AAEA CODE (301) 857 2652 WAAREN K SENCL. AIR. Ph.D., Messient

' ' S JAMES ADELSTEIN. M D. War Moselent t W ROGER NEY, J.D . Essadese Drector October 15, 1984 Bonorable William D. Ruckelshaus Bonorable Donald Paul Eodel i Administrator Secretary U.S. Environmental Protection Agency U.S. Department of Energy 401 M Street, S.W. 1000 Independence Avenue S.W.

1200 West Tower Washington, D.C. 20585 Washington, D.C. 20460 Monorable Bunsio J. Falladino l Chairman U.S. Nuclear Regulatory Commission 1717 E Street, N.W.

lith Floor Washington, D.C. 20555 Gentlemen:

As indicated in my letter of March 26, 1984, the National Council on Radiation Protection and Measurements (NCEP) undertook an examination of the definitions applicable to radioactive waste. In part, the work was initiated because of our belief that control measures for radioactive weste must be based on rational evaluations of the potential hasard of the weste, rather than on artificial considerations such as the source of the weste.

s The Panel on the Definition of Eigh Level Radioactive Waste, established as a Task Group under Scientific Coanittee 38, convened on March 9 and May 9, 1984. The panel was chaired by Norril Eisenbud and included Drs. Edward i Albenesius, Melvin Carter, John Natussek, Dade Noeller, Frank Parker and l

Martin Steindler. The affiliations of these individuals are listed in the attachment. The Task Group was briefed by representatives of the Department of Energy, the Environmental Protection Agency, and the Nuclear Esgulatory l Commission.

This letter summarises the conclusions of the Task Group based on (1) the information provided during these briefings, (2) our review of a number of relevant documents submitted to us and, (3) our collective esperience with the

subject of radioactive weste management.

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There appears to be an urgent need for a generally accepted definition of high-level unste. The absence of such a definition, which seems strange in view of the importance of the subject, is due to the number of federal agencies that have been involved during the past 40 years and the considerable number of federal laws and regulations that exist, all developed at different times and under -different circumstances. There has been an evident failure of interagency coordination. The first legal definition of high-level waste was published in 1970 in Appendix F to 10 CFR, Part 50. A total of seven legal definitions have come to our attention, none of which are as comprehensive as is necessary.

Radioactive waste defined as "high level" will be isolated in deep geological repositories to insure protection of the public. It is therefore important that the wastes be classified properly so that those requiring permanent isolation can be identified correctly and that wastes for which a lesser degree of protection will be sufficient are not required to be placed in deep geological repositories that are expensive to build and will be of lialted capacity. While the primary goal of waste annagement met be to protect the health of the public, it is important that this goal be achieved with due attention to economic factors. In this connection, the Task Group acted that a criterion, 10 nanocuries per gram, which until recently served as the cutoff between shallow land burial and other disposal modes for transuranic waste, was established a number of years ago with an insufficient technical basis. Upon investigation by the NCEF, it was found that the criterion could be increased tenfold without increasing the risks either to workers or the public. 'this change, which was recently made by the Nuclear Reguistory Commission, has already resulted in a savings of $250 million.

It is planned that only two high-level waste repositories will be built by the end of the century and that they will cost about $20 billion. It is important that the valuable capacity of these repositories not be filled by radioactive vaste that can be disposed of by some lesser means. giace the i

definition of high-level waste will determine whether a given waste goes to a geological repository or elsewhere, the definition should be precise and the various federal agencies should adopt definitions that are atually consistent. The Task Group was pleased to learn that the Nuclear Regulatory

, Commission is about to propose a new definition which, according to the l Rnvironmental Protection Agency representative, would be acceptable to the Agency. This is a gratifying forward step. We also stress the importance of

, assuring that the Nuclear Regulatory Commission's proposed definition rests on a firm technical basis and recommend that the technical bases for the definition be made available for external scientific review.

l The Task Group 1argely limited its attention to high-level waste.

However, the Task Group noted that new Nuclear Regulatory Commission regulations governing the disposal of low-level waste (for which a definition has been provided in 10 CFR 60) have been promulgated. The decision of the Commission to classify soch waste into three categories of required l confinement according to activity level and half-life appears to be an appropriate step forward that provides a more scientific basis for low-level disposal options. The Task Group found that such a classification is

consistent with the philosophy that the classification of radioactive wastes

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should be based upon those factors which determine radiation risk. This will include type of emission and biological factors related to chealcal form.

incorporation of a de ninfais criterion, as is being contemplated by the Nuclear Regulatory Tommission for 10 CFR 20, may provide the final link necessary for a comprehensive waste classification and disposal system. The NCRP could provide a review of the bases for low-level and de minimis classifications simultaneously with an assessment of the h1K-level waste '

definition. This process would make available, for the first time, a scientific review of the bases of the numerical criteria for classifying the full spectrum of radioactive waste from the de minimis to the highest levels j that will become available.  !

l In summary, the Task Group found that definitions of unste as promulgated i by Federal agencies and the Congress are largely uncoordinated and thus promise to cause unneeded confusion and possible expense. The recommendations of the Task Group, based on the results of the briefings and other sources, are as follows:

1. Federal agencies involved in Righ level Radioactive Waste (ELW) should participate in a study that seeks to provide a conson, comprehensive, and functional definition of ELW (and other wastes) for governmental use.

Such a study could be carried out by one of several groups, including and perhaps especially, the NCRP, but success will require the participation

and the acceptance of the results by all affected agencies.

2. Definitions of BLW, and other waste types, should be based on estimates of risk rather than origin of the waste. This approach appears to require disposal methods to be identified, but these methods can and should be defined on a generic basis rather than a site-specific basis.

3. Federal agencies should, in the course of examination of the definitions of waste classes, orient their decisions to the practical recognition that nuclide content of wastes may represent a continuum. The disposal methods applicable to the waste are also likely to represent a continuum which any be fragmented by practical considerations of economics and technology.

4. New regulations concerning nuclear wastes and their disposal issued by Federal agencies should be accompanied by their scientific and technologic bases and should be subjected to peer review before being issued for public comment.

5. Each Federal agency concerned with radioactive asterials and waste should be encouraged to coordinate its activiti'es that may arise in diverse departments. Particular attention should be given by agencies to the integration of activities that deal with similar asterials arising from a variety of sources (e.g., accelerator produced, naturally-occurring, and fission produced nuclides). Regulations based on risk and subjected to thorough peer review should be the bases of action throughout the agencies.

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6. The Ezeeutive branch of government should integrate the requirements of

• Federal agencies for the management of radioactive asterials and present to the Congress recommendations that will remove the fragmentation and conflicts resulting from the provisions in several laws.

I hope fhist these recommendations will prove helpful in moving forward on the important probism of defining high-level waste. I can assure you that the NCRP sta,nds ready to help in any usy that we can.

Sincerely yours, f *p .

Warren K. Sinclair President UKS WRN/ah Attachment l

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NATIONAL COUNCIL ON RADIATION PE0TECTION AND MEASURENTUS 7910 Woodsont Avenue, Suite 1016 Bethesda, Maryland 20814 Fanel en the Definition of Eigh Invol Radiesetive Waste i

i Dr. Merril Eisenhed, Chairman Professor Institute of Environmental Medicine New York University Medical Center P. O. Box 817 hazedo, New York 10987 l

Dr. Edenrd L. Albeessies E. I. DuPont de Nemours & Co. Dr. Freak L. Father i

Savannah River Laboratory Environmental and Water Aiken, South Carolina 19801 Essources Engineering Vanderbilt University l Mashv111e, Tennessee 37235 Dr. Melvin W. Carter Neely Professor Dr. Martin Steindler School of Nuclear Engineering Associate Director Emerson Building, Roon 237 Chemical Engineering Div.

Georgia Institute of Technology Argonne National Laboratory Atlanta, Georgia 30332 Argonne, Illinois 60439 Dr. Bede W. Moeller Dr. Joke M. Natuesek Earvard School of Public Esalth Director Department of Environmental Realth Sciences Radiological Sciences Institute 677 Euntington Avenue Center for Laboratory Boston, Massachusetts 02115 and Research Empire State Plasa l Albany, New York 12201 1

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Dr. Warren K. SincTN1r HJMiller is President JLinehan L 7, National Council on Radiation JKennedy Q iM g" A Protection and Measurements C ,? . -N SCoplan 7910 Woodmont Avenue RBoyle Suite 1016 JGreeves Bethesda, MD 20814-3095 RJWright RJohnson

Dear Dr. Sinclair:

RCook Thank you for your letter of October 15, 1984 in which you described the work of the Council's Panel on the Definition of High-Level Radioactive Waste. We appreciate having had the opportunity to brief the Panel on our upcoming rulemaking related to the definition of the term "high-level radioactive waste," and we look forward to future constructive connents from, and involvement with, the Panel as our rulemaking proceeds.

As you are aware, the Nuclear Waste Policy Act of 1982 assigned to the Nuclear Regulatory Connission (NRC) the responsibility to determine, by rule, which wastes constitute "high-level radioactive waste" (HLW), and we have initiated a rulemaking to broaden the NRC's current definition of HLW. In your letter, you reconnended, among other things, that all affected Federal agencies participate in the oevelopment of a definition of HLW, and that the technical bases for a definition be subjected to scientific peer review. I agree with these reconnendations, and note that we plan to work closely with the Department of Energy (DOE), the Environmental Protection Agency (EPA), and state agencies as our rulemaking proceeds. To assist us in the regulatory development process, we intend to solicit review and connent on technical issues from appropriate bodies such as the NRC's Advisory Connittee on Reactor Safeguards (ACRS). In this regard, I would welcome technical input from the Panel at any time.

Your letter also reconnended that a definition of HLW should be derived based on estimates of risk, rather than origin, of wastes similar to the approaches adopted b Part 61) y the NRC in developing its Low-Level Waste (LLW) regulation (10 CFR ano the "below regulatory concern" criterion being considered for Part

20. Risk will, of course, be a major consideration in development of a definition by the NRC. We have taken a first step toward a risk-based approach in the technical support for our draft Advance Notice of Proposed Rulemaking where we evaluateo both the radiotoxicity and the longevity of radionuclides

l .. .

. 1 407.2.2./DF/84/11/13 NOV 2 91984 -

-2 present in wastes. % anticipate that future studies will be expa technologies, analogous to the analyses used to develop the LLW .

classifications.

I look fonvard to a mutually productive relationship with the Panel throughout the course of our rulemaking.  :

Sincerely, crHnt) Siped by ed- 2. :raning  ;

Robert E. Browning, Director )

Division of Waste Management Office of Nuclear Material Safety and Safeguards l l

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USER OFFICE CONCURRENCE i

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MEMORANDUM FOR: Robert E. Browning. Director gg /

Division of Waste Management, NMSS tp.,,3 /

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Karl R. Goller, Director FROM:

Division of Radiation Programs b ' Ud fM and Earth Sciences, RES ,

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SUBJECT:

DRAFT RECOP94ENDATIONS TO ED0 CONCERNING WHETHER AND HOW TO CONTINUE WITH ONGOING RULEMAKING SPONSORED BY RES--DEFINITION OF HLW Enclosed for your consideration are draft recomendations supported by a draft office review concerning whether and how to continue with an ongoing rulemaking sponsored by RES for which your office is identified as the user office.

This memorandum constitutes my concurrence in the enclosed draft recomendations. I plan to dispatch this memorandum with the enclosed draft J recomendations to the Director, RES, within two weeks from the above date.

Please acknowledge receipt by returning this memorandum along with the enclosed fom.

Karl R. Goller, Director Division of Radiation Programs and Earth Sciences, RES

Enclosure:

As stated h* b. /c 3 p p 4 x4 p~^f - t a/L 9 ' p s / A ~/ "a 4 ytolod 5 ' .

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f, Receipt acknowledged. No Comment.

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Receipt acknowledged. Comment as follows:

1) On page 2 of the Rulemaking Review package, I recommend deletion of the fourth paragraph discussing development of a definition by another Federal organization.

2) The NMSS staff resource estimate should be increased to 12 person months for both the proposed and final rules.

3) I anticipate a need for $ 300K in technical support contracts for each of the next two fiscal years to support this rulemaking.

Robert E. 'Ywning, Dir6ctor Division of Waste Management Office of Nuclear Materials Safety and Safeguards t

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MAR 121985

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PEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Robert B. Minogue, Director Office of Nuclear Regulatory Research

SUBJECT:

REVIEW BY ED0 0F ONG0ING RULEMAKINGS SPONSORED BY RES Enclosed is the review package of a specific ongoing rulemaking for which RES is the sponsoring office.

Based on our review of the ongoing RES sponsored rulemaking, "10 CFR Part 60--Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian Tribes," RES recommends that it be continued. The rulemaking responds directly to Commission guidance to the staff to review NRC regulations in the light of the passage of the Nuclear Waste Policy Act of 1982. The Nuclear Waste Policy Act sets out detailed procedures for site characterization and the participation of States and Indian tribes. The statute specifies the content of DOE's site characterization plans for each of the three sites recommended for site characterization, establishes procedures for direct interaction between DOE and States and Indian tribes during the review process for DOE's site characterization and other activities, and provides for DOE funding of certain State and Indian tribe activities carried out in connection with the siting and development of a HLW geologic repository. It is necessary to amend 10 CFR 60 to provide a framework for State, tribal, and public participation consistent with the Nuclear Waste Policy Act, avoid duplication of effort, and conform the licensing procedures to the site selection process specified by the Act.

The Commission recently approved the publication of proposed amendments to 10 CFR 60 to bring the rule in conformity with the Nuclear Waste Policy Act (50 FR 2530). RES recommends that the staff proceed with review of public comments and preparation of final amendments.

t

e e L 2 ALAR 121985 My recomendations concerning whether and how to continue with this proposed

~

rulemaking sponsored by RES have been coordinated in draft form with the Division of Waste Management in NMSS.

Ib Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

RES Rulemaking Review Package for 10 CFR Part 60--Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian tribes.

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i MAR 121985 MEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Robert B. Minogue, Director Office of Nuclear Regulatory Research

SUBJECT:

REVIEW BY ED0 0F ONG0ING RULEMAKINGS SPONSORED BY RES Enclosed is the review package of a specific ongoing rulemaking for which RES.

is the sponsoring office.

Based on our review of the ongoing RES sponsored rulemaking, "10 CFR Part 60--Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian Tribes," RES recomends that it be continued. The rulemaking responds directly to Commission guidance to the staff to review NRC regulations in the light of the passage of the Nuclear Waste Policy Act of 1982. The Nuclear Waste Policy Act sets out detailed procedures for site characterization and the participation of States and Indian tribes. The statute specifies the content of DOE's site characterization plans for each of the three sites recomended for site characterization, establishes procedures for direct interaction between DOE and States and Indian tribes during the review process for DOE's site characterization and other activities, and provides for DOE funding of certain State and Indian tribe activities carried out in connection with the siting and development of a HLW geologic repository. It is necessary to amend 10 CFR 60 to provide a framework for State, tribal, and public participation consistent with the Nuclear Waste Policy Act, avoid duplication of effort, and conform the licensing procedures to the site selection process specified by the Act.

The Commission recently approved the publication of proposed amendments to 10 CFR 60 to bring the rule in conformity with the Nuclear Waste Policy Act (50 FR 2580). RES recommends that the staff proceed with review of public comments and preparation of final amendments.

OFC: DRPES/WMB :DRPES/WMB :DRPES/WMB :DRPES/WMB :DRPES/WMB  : :

NAME:CPrichard:pd:FCostanzi :KGoller  : Dross :RMinogue : : :

DATE:  :  :  :  :  : :

1 2, 1985 My recommendations concerning whether and how to continue with this proposed rulemaking sponsored by RES have been coordinated in draft fann with the Division of Waste Management in NMSS.

Cristand siput by:

HOIWtr B. MIEDER Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

RES Rulemaking Review Package for 10 CFR Part 60--Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian tribes.

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REGULATORY AGENDA ENTRY TITLE:

PROPOSED PROCEDURAL AMENDMENTS TO PART 60 CFR CITATION:

10 CFR.60 ABSTRACT:

NRC has proposed procedural amendments to Part 60 dealing with site characterization and the participation of States and Indian tribes. These revisions would conform the rule to procedures laid out in the Nuclear Waste Policy Act. They would affect the content of the site characterization plan submitted by DOE, and the means and timing of State and Indian tribe participation in the licensing process.

TIMETABLE:

1) Proposed Amendments published in Federal Register-January 17, 1985

2) Comment period ends - March 18, 1985 LEGAL AUTHORITY:

Public Law 97-425, 42 U.S.C. 10101 EFFECTS ON SMALL BUSINESS AND OTHER ENTITIES:

None AGENCY CONTACT:

Clark Prichard Waste Management Branch Office of Nuclear Regulatory Research Washington, DC 20555 301-427-4586 1

I

TASK LEADER REVIEW PACKAGE

MEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Robert B. Minogue, Director Office of Nuclear Regulatory Research

SUBJECT:

REVIEW BY EDO OF ONG0ING RULEMAKINGS SPONSORED BY RES Enclosed is the review package of a specific ongoing rulemaking for which RES~

is the sponsoring office.

Based on our review of the ongoing RES sponsored rulemaking, "10 CFR Part 60--Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian Tribes," RES reconnends that it be continued. The rulemaking responds directly to Connission guidance to the staff to review NRC regulations in the light of the passage of the Nuclear Waste Policy Act of 1982. The Nuclear Waste Policy Act sets out detailed procedures for site characterization and the participation of States and Indian tribes. The statute specifies the content of DOE's site characterization plans for each of the three sites reconnended for site characterization, establishes procedures for direct interaction between DOE and States and Indian tribes during the review process for DOE's site characterization and other activities, and provides for DOE funding of certain State and Indian tribe activities carried out in connection with the siting and development of a HLW geologic repository. It is necessary to amend 10 CFR 60 to provide a framework for State, tribal, and public participation consistent with the Nuclear Waste i Policy Act, avoid duplication of effort, and conform the licensing procedures I l

to the site selection process specified by the Act. )

1 The Connission recently approved the publication of proposed amendments to 10 CFR 60 to bring the rule in conformity with the Nuclear Waste Policy Act (50 FR 2580). RES reconner.ds that the staff proceed with review of public comments and preparation of final amendments.

OFC: DRPES/WMB :DRPES/WM3 :DRPES/WMB :DRPES/WMB :DRPES/WMB :  :

NAME:CPrichard:pd:FCostanzi :KGoller  : Dross :RMinogue :  :  :

DATE:  :  :  :  :  :  :

l l

l My recommendations concerning whether and how to continue with this proposed rulemaking sponsored by RES have been coordinated in draft fons with the Division of Waste Management in NMSS.

Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

RES Rulemaking Review Package for 10 CFR Part 60--Procedural Amendments Dealing with Site Characterization and the Participation of States and Indian tribes.

DISTRIBUTION Subj. FCostanzi Circ. KGoller Chron. Dross WMB/rf RMinogue CPrichard i

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DATE:  :  :  :  :  :  :

NRC REGULATORY AGENDA ENTRY l

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?

e RULEMAKING AS CURRENTLY PROPOSED 4

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i 3508 Federal Register / Vol. 50. No.12 / Mursday January 17. 1985 / Proposed Rules ,

i PART 00-DOSPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC IIEPOSITORIES 1.The authority citetion for Part to

, continues to read as foligws:

• " ^ "___ et.33.et.83.e5.et.181.

1SL103.e5 Stat.es.330.esL S33 e38 ees.

983. 354. as assaded (42 UAC 3071. W73.

302. Sees sees.2111. San.323L 3333h escs.

32. MR. BB Stat.13s4.1308 (42 UAC 0e42.

Se46h secs. Se and 14. pub. L eM. et Stot.

351 (42 UAC aorte and seath sec.102. Pub.

L St-lee, as Stat. 353 (42 UAC 4332k sec.

121. pub. L fr-425. SE Stat. 2235 (42 UAC 10141). .

For the purposes of Sec. 223. es Stat. ess. as aseanded (42 UAC 2273). Il ao.71 to 00.75 are leeued under 5sc.181o. es Stat. eso, se a=*ad.d (42 UAC 2301o1).

2. Section 80.2 la revised by removing the definitions of " Indian tribe" and

" Tribal organi4 tion" and inserting. In the appropriate alphabetical location, a definition of the term "a!!ected Indian tribe"lo read esfollows: .

g es.2 connniens.

As used in this part-

"Affected Indian tribe" means an affected Indian tribe as dermed in the Nuclear Waste Policy Act of1982.

98e.10 [Rodesignotedasl80.151 3.Section 80.10 is Redesignated i 5 80.15.

I es.11 (nomoved]

4. Section 80.11 is Removed.

S. Sections 80.16 through 80.18 are added to read as follows:

I80.16 este adierectortsetton plan

• 4uired.

Before proceeding to sink shafts at any area which has been approved by the President for site characterization.

DOE shall submit to the Director, for review and --ant, a site characterization plan for such area.

I09.17 Centente of one ehreacterisethre plan.

'Ik site characterization plan shall contain-(a) A general plan for site charecterintion activities to be conducted at the area to be characterdsed, which general plan shall faciude-(1) A description of such area.

Includinginfonnation on quality assurance programs that have been applied to the collectice, recording, and retention ofinformation used in preparing such description.

Federd Regist:r / Vcl. 50. Ns.12 / Thuredsy. knuary 17. 1385 / Proposed Rults 2589 notice that a site characterisation plan asonths to the r hiaasen en the nature (2) A description of such site characterization activities. including the has been received from DOE and that a and extent of such activities and the folloc;q sta5 review of such plan has begun. The information that has been developed notice shallidentify the area to be and on the yngrees of waste form and (i)The utent of planned excavations: waste package resserch and till Nns for any onsite testing whh characterised and the NRC staff members to be consulted for further development The semiannual reports radioactive or nonradioactive material: shain include b meuhs of aim (iii) Nns for any investi eetion infonnation.

t (b)The Director shall make a copy of characterisation studies, the activities that may affect the capability the site charactensation plan available identification of new issues, plans for d sud wu k inlaw high-levd additional stednes to resolve new issues.

at the Public Docusment Room.The radioacun wum'. Mme or shah also tranamn copies d ee olisninauon of planed studies no longw (iv) Nas to control any adverse published nouce dmoeipt u &e asensary,idenHAcedon ddecision -

impacts from such site characterisation Governor and legislature of the State in points reached and modificatlone to activities that are Isiportant to safety or adedules where appropriate. DOE shall which the area to be charactensed is are important to waste isolation: louwd ad k emmnig bdyof aim W b m h denlopig b any affected Indian tribe. In addition, design of a geologic repository (v)mns to apply quality assurance to the Director shallmake NRC staff operations area appropriate for the area data collection. recording, and retention. available to consult with States and being charactensed, noting when key (3) Nns for the decontamination and aNectedIndian tribu a preided in design parametwo or fumen which decommissioning d such area. and for Subpart C of this part. V- depend upon the results of site the mitigation of any significent admee (c)The Director shall rem 0ie siteaeracterisation will be established.

environmental impacts caused by site characterization plan and prepare a liite Other topics related to site chractensation activities. if such area characterization analysis with respect to characterization shall also be covered if is detennmed unsuitable for application auch plan. In the preparation of such site requested by the Director.

for a construction authorisetion for a characterization analysis. the Directior (b) During the conduct of site geologic repository operutions area; may invite and consider the views of characterization activities. NRC staff (4) Criteria. developed pursuant to interested persons on DOE's site shall be perndtted to visit and inspect -

section 112(a) of the Nuclear Waste charactertantion plan and may review the locations at which such activities policy Act of198:(orin the case of a and consider comments made m are carried out and to observe geologic repository that is not subject to connection with public hearings held by encanum bwigs, and in die wets a the Waste Policy Act,such other sitmg DOE. mde criteria as may have been used by (d)h Director shall provide to DOE bj(ih D6 rector may comument at any DOE). to be used to determine the the site characterisation snelysis time in wriung to DOE. expressing suitability of such area for the location togethw with such additional comments current views on any aspect of site of a geologic repository: and as may be warranted.These comments charactwisanon.In pwumin, such (5) Any otherinfonnation which the shall include either a statement that the commum dan b made whenaw &

Director has no objection to the DOE's Commission by rule or order, requires.

(b) A description of the possible alte characterisation program. if such a statement is appropriate, or specific gj,7g $

waste form or waste package for the mlysis a wiew WDOE's high-level radioactive waste to be obpections with respot to DOE"s program --" " reports, determines that emplaced in such geolqsic. repository, a for characterisaticarof the ares tem a knHa! ngunds for.

desaiption (to the extent practicable) of concerned. In addition, the Director may - --- - ' dons w staung the relationship between such weste make specific mcommendations makigb Woch DOE's WW form or waste package and the host rock pertinent to DOE's site, characterization g, ,

at such area, and a description of the program. . .

activities being conducted by DOE with le)If DOE's planned site - (1) The Director shall,;, transmi,t

,, y, co,,p6es g

respect to such possible weste form or characterisation activities include onsite d a HOE M W

• 8' "* " undw this section to the Gownor and A fir &e ta allincia geologic repository operations ares that detumina aguding or not *g,,d 88,j' anda$

takes iam account ely site. specific Somning body of any affected ladian proposed use of such radioactive tribe.When transmitting the site emiuimments. .

materialis necesswy to provide data for characterisation analysis under this g es,ts sieves = et sets sciaractertsamen the preparation of the environmental r

Paragraph the Director den kvhe &a asevesse.' ceports required by law and for an addressees to review and comment ,

(alN Director shall cause to be application to be submitted under B 80.22 of this part.

temon.

oublished in the Federal Register a (k) AB -p,7 = bHween DOE (f)The Director shall publishla the -

FederalRegister a notice of avaGabuity and the NRC under this section.

,",,'" of the site charactensation analysis and including the dwalbed in

,,h"u*.** M "[.' N .".I ".*,n ,cm paragraph (31. be placed in the .

=-siew. .e a request for public comment. A .

ms.e=at=n en see is iss.n i et e.u .ad da ear reasonable period. not less than so days. Public Document Room.

• • • "'""'"* * *'*"

• en seety shall be allowed for coaunent Copies of (I)The activities describedin

..ua""m"a Na's*uv'n*y res"imesman"** enem n '""" the

'" esite

e. characterisation analyses and of peregraphs(e) through(k) above ig nu ,,.pw d the comunents received abau be made constitute informal conference betwun

.wis..re. , e prospective applicant and the staff. as by not et she une er iw in.em. 4 procedwal available at the public Document Room, seriemen ssowas NBC-DOE hweha dwms "" (3) During the conduct of site described in i 2.10t(s)(1) of this chapter.

" and are not part of a proceeding under

".'bhah'dN" s r"e" men raN . characterlastion activities.DOEshaH the Atomic Energy Act of1864, as 4, ens auses, report notless than once every six l .

1, -

I

l 2S90 Federal Register / Vol. 50. No.12 / Hursday. January 17. 1985 / Proposed Rules tmended. Accordingly, neither the (2) Review of applicable NRC , (f) Proposals submitted under this lasuance of a site characterisation ,

ations. licensing procedures, section, and responses thereto, shall be taalysis nor any other comments of the ules.and opportunities for state made available at the public Document Director made under this section participation la the Commission's Room.

constitute a commitment to issue any regulatory activities.

authorisation or license or in any way (3) Cooperation in development of I8"88 "****8'

(Nect the authority of the Commission. is for State participation in If the Governor and legislature of a the Atomic Safety and I.lcensing Appeal noe reviews. State have jointly designated on their Board. Atomic Safty and Licensing l 3 eta 3 partedpaden M 5eense mWews.

behalf a single person or entity to i Boards, other presiding officers, or the receive notice and information from the Director. In any such proceeding. (a) State and localgovernments and Commission under this part, the 3.Subpart C is revised to read as aNected Indian tribes may participate in t'a==3amia= wiu provide such notice rogow,. license mviews as ed la Subpart and infonnation to the lointly C of part 2 of this pter. designated person or entity instead of

, Subpert C 1.' , n . by State -

(b)In addition. whenever as area has the Governor and legislature separately.

Governments and Indian Tribes been approved by the president for site 3 GEST Pmdeten of hformaeon.

characterization, a State or an affected Ietes W Indian tribe may submit to the Director Any person who acts tmder this (a)h Dimeter shall provide to the a proposal to facilitate its participation - subpart as a representative for a State Governor and legislature of any State in in the review of a site characterisation (or for the Governor or legislature which a geologic repository operations plan and/or license application. The thereof) or for an aNected Indian tribe area is or may be located. and to the proposal may be submitted at any time shallinclude in his request or other governing body of any aNected Indian and shallinatain a description end. submission or at the request of the tribe, timely and complete information schedule of how the State or affected " Commission. a statement of the basis of regarding determinations or plans made by the Commission with respect to the Indian enbe wishes to participate in the his authority to act in such )

revww. of what services or activities the representative qspecity. -

' site charactensation, siting. State or aNseted Indian tribe wishes development. design. licensing. NCR to carry out, and how the services construction, operation. regulation, or activities proposed to be carried out persianent closure. or decontamination by NCR would contribute to such i and dismantlemenat of surface . . participation. & proposal may include facilities, of such geologic respository  !

educational or information services operations area. (===ia=*s. public meetings) or other j (b) For purposes of this section, a actions on the part of NCR. such as 1 i

geologic repository operations area shan establishing additional public document l be considered to be one which"may be rooms or employment or exchange of located"la a State if the location thereof State personnel under the in such State has been described in a Intergovemmental personnel Act.

site characterisation plan submitted to (c)& Director shall arrange for a l the Coaunission under this part. meeting between the representatives of I (c) Notwithstanding paragraph (s), the the State or afected Indian tribe and the

' Director is not required to distribute any NCR staN to discuss any proposal )

dae==e'nt to any entity if. with respect submitted under paragraph (b) of this to such dar== ant that entity or its section, with a view ofidentifying any counselis included on a service list moddications that may contnbute to the prepared purseant to part 2 of this g5ective participation by such State or chapter. tribe.

(d) Copies of au comununications by - - (d)IRbject to the availability of funds.

the Director under this section shall be the Dirm. tor shau apprerre au or part of placed in the public Document Room, a propoenL as it may be modified and copies thereof shan be furnished to through the meeting described above. if DOE. It is detersuned that:

Iemas susmwow. (1)' Ins proposed activities are suitable la light of the type and (a) Whenever sa area has been magnitude ofimpacts which the State or approved by the president for site afected ladian tribe may bear:

characterisatica, and upon request of a (2)h proposed activities (1) wGI State or as aNected Indian tribe. the ==h==ca comununications between NRC Directee shau make NRC staf avallable to consult with representatives dsuch and the State or mRected Indian ente (ii) wtB make a productive and thnely States and inbes.

(b) Requests for consultation shall be contribution to the review and (iii) are authortsed by law.

maade la writing to the Director.

(e) I%e Director wtB advise the State (c) Consultation under this sectica er aNectedIndian tribe whether its 1 may include: .

proposal has been accepted or denied.

(1) Keeping the parties informed of the and if au or any part of proposalis Director' views on the progress of site denied, the Director shall state the characterisation. reason for the denial

. . , _ , . , ,_ _ , , _ _ . . _ _ _ _ _ _ . . , . . _ _ _ . _ . __ _,____,___._-,.--,,__,7 _ _ . . , _ _ . _ _ , , _ , _ l

---

w---

TASK LEADER EVALUATION

Issue:

The procedural portions of 10 CFR 60 were finalized prior to the passage of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101 et seq.). The Waste Policy Act contains very specific procedures for site characterization and the participation of States and Indian tribes which, in many instances, do not confonn to the procedures laid out in 10 CFR 60. In the statement of considerations to the proposed 10 CFR 60 -- licensing procedures, the Comission stated that " provisions for State participation would be revised in the light of any pertinent statutory changes that may be enacted" (44 FR 70408).

The staff completed a review of the procedures in 10 CFR 60 and recommended amendments to conform them to those contained in the Waste Policy Act (SECY-84-263).

The Commission approved publication of the proposed amendments which appeared in the Federal Register on January 17, 1985 (50 FR 2580). The staff would next review comments (the comment period ends March 18,1985)and recomend final amendments to the Comission. This rulemaking now is being reviewed to determine whether or not it should continue.

Necessity and Urgency of Addressing this Issue:

The Nuclear Waste Policy Act set out a rigorous schedule for the siting and development of a HLW geologic repository. The Comission has told the staff to base programs on the premise that "in the absence of unresolved safety concerns, the NRC regulatory program will not delay implementation of the Executive Branch's program." 1/

l l

1/ " Managing Nuclear Waste", VII, U.S. Nuclear Regulatory Commission Policy and Planning Guidance - 1984.

2

The site characterization process is due to begin shortly, starting with a site characterization plan which DOE must submit to NRC for each of the three recommended geologic repository sites. The content and fomat of the site characterization plan must be established as soon as possible so as to allow the site characterization process to proceed.

States, Indian tribes, and the public are eager to participate in reviewing the site characterization plans and subsequent activities. Procedures for their participation should also be established as soon as possible.

How the Issue will be Addressed Through Rulemaking:

Rulemaking would amend the procedural portion of 10 CFR 60 to conform to procedures in the Nuclear Waste Policy Act. Major changes in 10 CFR 60 which are being proposed are:

1) Elimination of NRC review of the site screening and selection process as part of the site characterization plan.

2) Changes in procedures for NRC consultation and interaction with States and Indian tribes to reflect the Waste Policy Act's provisions for direct interaction between States and tribes and DOE.

3) Elimination of the issuance by NRC of a draft site characterization analysis, but retention of the issuance by NRC of a final document.

4) Elimination of many provisions for NRC funding of State / tribe activities in view of the Waste Policy Act's provisions for direct

. funding of these activities by D0E.

The proposed amendments are necessary to (1) provide a framework for State, tribal, and public participation consistent with the Waste Policy Act, (2) avoid duplication of effort, and (3) conform the licensing procedures to the site i selection process specified by the Waste Policy Act. In addition, some changes are being proposed which reflect better NRC's pre-licensing evaluation process as it has evolved since the licensing procedures were promulgated.

1

Alternatives to the Proposed Action Alternative 1: Leave the provisions of the final rule, 10 CFR Part 60, intact.

This alternative would be inadequate because it would result in

)

inconsistencies between the final rule, 10 CFR Part 60 and the Nuclear j Waste Policy Act. These inconsistencies would leave uncertain the

~

opportunities for participation of States and Indian tribes in the NRC

, activities related to siting, licensing, and development of a high-level i

radioactive waste geologic repository, and could lead to costly and time-consuming inefficiencies in the process.

The staff also considered a variation of this alternative where only minor changes would be made to conform terminology in 10 CFR Part 60 to the Waste Act, as an administrative rulemaking,' without opportunity for public comment. This variation would result in the same uncertainties and inefficiencies in the licensing process.

i Alternative 2: Delete reference to State and Indian tribe participation in 10 CFR Part 60 and publish procedures for State and Indian tribe participation as a regulatory guide.

If this alternative were adopted, participation of States and Indian tribes would not be governed by the regulations of 10 CFR Part 60.

Publishing procedures for State and Indian tribe participation as a regulatory guide would give only suggested guidance. States and Indian tribes have indicated strong preference for formal procedures. The regulatory guide approach would not be suitable for this reason.

The NRC staff has evaluated the proposed action and two alternative courses of action. The procedures for site characterization and St' ate and Ir.dian tribe participation in the siting, licensing, and development of high-le/e1 radioactive waste geologic repositories must be revised to bring them in  !

accordance with the Nuclear Waste Policy Act, and to clarify the procedures in  ;

DRAFT 02/25/85 ;4 QUALITY ASSURANCE

i light of recent experience. Revising the procedures for State and Indian tribe participation by means of revising the final rule.10 CFR Part 60, is the most l effective method of accomplishing this.

l l

l l

l I

4 DRAFT 02/25/85 5 QUALITY ASSURANCE i

Effects on Industry. The Public, and NRC a) Industry The elimination of inconsistencies between 10 CFR 60 and the Nuclear Waste Policy Act in the areas of site characterization and the participation of States and Indian tribes will make the licensing process for HLW geologic repositories clearer and more efficient. This should have the effect of creating better opportunities for public participation

' in the licensing process. Industry will be an important part of the public participation process. The proposed amendments to Part 60 should reduce confusion and disputed interpretations about procedures, allowing more time and resources to be spent on reviewing and commenting on substantive technical issues.

b) Public The same reasoning as in (a) applies to the public as well. Amendments to 10 CFR Part 60 which clarify the procedures for public participation should reduce time and resources spent on resolving disputes over procedures, thus freeing them for review of technical issues.

The staff believes that the proposed amendments would alter the timing and 1

means of public participation, but would not reduce the overall opportunities for public participation.

The staff's rationale for this belief is stated in SECY 84-263 and SECY-84-263A(EnclosureA). The staff believes that the Nuclear Waste Policy Act places emphasis on direct public interaction with DOE, thus reducing or eliminating the need for NRC to maintain duplicative procedures. The Act also changes the timing of events in the licensing process, which makes it advisable to alter some procedures in 10 CFR 60.

Several States and the Environmental Policy Institute believe thet the i

proposed amendments would reduce the opportunities for public DRAFT 02/25/85 -2 QUALITY ASSURANCE

participation. The staff has considered these views, but has not changed I

its recomendation because of them (SECY-84-263 and 84-264-A).

c. NRC Following through with this rulemaking would reduce the probability of disputed interpretations of licensing procedures for HLW geologic repositories. This would in turn conserve NRC resources which would otherwise be hxpended in administrative law or judicial actions relating

'to resolution of these disputed interpretations.

)

• i 1

DRAFT 02/25/85 3 QUALITY ASSURANCE

iI NRC Resources and Schedule for Rulemaking:

A. Resources (1) NRC Staff Time Resolve coments and final rule person month 6 RES 6 NMSS 6 ELD i ADMIN (2) Other Resources None required B. Schedule 1/17/85 proposed amendments were published 3/18/85 coment period ends 8/15/85 final amendments to EDO 10/15/85 Comission approval 11/15/85 final amendments published 4

l

QUALITY ASSURANCE The procedures for this rulemaking action follow those specified in guidance contained in the May 10, 1984 memorandum from Robert B. Minogue to all RES Division Directors.

The proposed amendments to 10 CFR 60 dealing with site characterization and the participation of States and Indian Tribes directly respond to guidance from the Commission to be found in policy and planning guidance for 1984. The Commission directs the staff to " review the existing and proposed regulations that are covered by areas addressed by the NWPA, and make confonning changes as necessary."1/ The staff should also " continue to maintain close communications with DOE, the States and affected Indian tribes so that required activities and lead times are identified early in the planning process. As part of this activity the staff should be prepared to acconinodate State and Indian tribe participation in NRC high level waste activities."2/

Compliance with CRGR charter requirements is not applicable for this rulemaking action as the rulemaking applies only to radioactive waste management, and is not a generic requirement to be imposed by the NRC staff on one or more classes of power reactions.

1/ " Managing Nuclear Waste", VII, U.S. Nuclear Regulatory Comisssion Policy and Planning Guidance-19 F 2/ ibid.

DRAFT 02/25/85 ~1 QUALITY ASSURANCE i

l DRAFT REC 0PetENDATION The staff reconnends continuation of the rulemaking action to amend the 10 CFR 60 procedures for site characterization and the participation of States and Indian tribes. This is in accordance with Connission policy and planning guidance to the staff. Coments on the proposed rule changes will be evaluated and the staff will draw up final amendments for Comission approval.

I l

9 SUPPORTING DOCl.HENTATION

June 26, 1984 SECY-84-263 For: The Commissioners From: William J. Dircks Executive Director for Operations

Subject:

10 CFR PART 60--DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTE IN GEOLOGIC REPOSITORIES: AMENDMENTS TO LICENSING PROCEDURES Category: This paper involves several policy questions.

Purpose:

To request Commission approval to publish proposed amendments to 10 CFR Part 60 related to site characterization and the participation of States and Indian tribes in the process of siting, licensing, and development of high-level radioactive waste disposal facilities.

Discussion: Final licensing procedures which set forth a regulatory framework for licensing geologic repositories for the disposal of high-level radioactive waste (HLW) were' published on February 25, 1981 (46 FR 13971). These licensing procedures include provisions dealing with site characterization and the participation of States and Indian tribes in the process of siting, licensing, and development of a geologic repository.

In the statement of considerations to the proposed rule 10 CFR Part 60--Licensing Procedures (44 FR 70408), the Commission indicated that the procedures were " designed to allow affected States to participate to the fullest extent possible within the limits of the Commission's authority and the States' own desires and capabilities" (44 FR 70412). The Commission stated, however, that " provisions for State participation would be reviewed in the light of any pertinent statutory changes that may be enacted" (44 FR 70408). The final rule added provisions to ensure Indian tribes the same opportunities for participation as given to States, but did not otherwise significantly change the procedures for participation in the proposed rule.

Contact:

Patricia A. Comella, RES X74616 James R. Wolf, ELD X28694

The Commissioners 2 The existing 10 CFR Part 60 procedural regulations were written in the absence of any comprehensive legislation or other framework specifying the respective roles of NRC, DOE or the States and Indian tribes in the site selection process. Consequently,10 CFR Part 60 alone specified opportunities for public participation. It requires, among other things, that NRC issue a draft site characterization analysis for public comment, that NRC answer questions from States / Indian tribes pertaining to DOE's site characterization report (renamed a site characterization plan in the proposed amendments), and that NRC provide DOE documents to interested parties. It requires that a site characterization report submitted by DOE contain infonnation on site selection which the Comission would use in making National Environmental Policy Act determinations. The regulation has detailed provisions describing how States and Indian tribes may submit proposals to NRC for participation in the licensing process.

Since then, pertinent statutory change has been brought about by the Nuclear Waste Policy Act of 1982--42 U.S.C.

10101 et seq. (Waste Policy Act). The Waste Policy Act now defines the roles and responsibilities of NRC and DOE in their interaction with one another and in their interaction with the States, tribes, and general public. The Waste

. Policy Act requires that DOE consult and cooperate with the States and tribes at many specified points throughout the repository siting and development process. It requires,

-for example, that DOE issue its site characterization plan for public coment and directs DOE to hold public meetings during a mandated siting process. It requires DOE to provide funding to States and tribes to support their ,

participation in the repository siting process, including '

support for providing information to their residents regarding any activities of the Comission. The Waste Policy Act requires added procedural steps of DOE between the time when DOE identifies a potential site, and the time when it submits a site characterization plan to the NRC.

The Waste Policy Act specifies the content of the site characterization plan, with some differences from what is required by 10 CFR Part 60. In particular, the site characterization plan would not include site selection information. The Waste Policy Act specifies that 00E will prepare an environmental assessment for each site nominated for characterization. The content of these environmental -l assessments is specified and includes the type of site selection information previously required by 10 CFR Part 60 in the site characterization report.

G 0 The Commissioners 3 While the Waste Policy Act does not require the Commission to alter its principle of allowing States and affected Indian tribes the fullest opportunities possible for participation, certain revisions to the procedures in 10 CFR Part 60 are necessary to bring the procedures in the rule in accordance with the procedures contained in the Waste Policy Act, and to factor in the experience gained in carrying out the pre-licensing consultation process since the existing procedures were adopted.

Thus, it is necessary to amend 10 CFR Part 60 to (1) provide a framework for State, tribal and public participation consistent with the Waste Policy Act, (2) avoid duplication of effort, and (3) conform the licensing procedures to the site selection process specified by the Waste Policy Act. In addition, some changes are desirable to reflect better NRC's pre-licensing evaluation process as it has evolved since the licensing procedures were promulgated. The staff's recomended changes are found in Enclosure A.

The net result of the combined provisions of the Waste Policy Act and the proposed amendments to 10 CFR Part 60 will be to provide the States, affected Indian tribes and the general public with equal or greater opportunity for participation in the repository development and licensing process than existed under 10 CFR Part 60 alone. Since the proposed amendments to 10 CFR Part 60 would alter the procedures under which States, Indian tribes and the public could participate in the NRC review process, the staff has made efforts to obtain the views of States and public interest groups on the proposed revision. Summaries of staff efforts to obtain the views of States and public interest groups on the proposed revisions are provided as Enclosures B and C. It is expected that some State representatives may argue that, since the Waste Policy Act does not expressly require NRC to change its licensing procedures, Congress did not intend for NRC to modify those provisions in Part 60 that speak to NRC relations with States and affected Indian Tribes.

It is also expected that some of the changes will be the focus of special comment.

These are:

. A significant change to the Site Characterization Plan (SCP) review process,' which may be a controversial issue, is the deletion of NRC review of DOE's site selection process. Information concerning the site selection process will no longer be required in the SCP because the Waste Policy Act now requires this

The Comissioners 4 information to be in an environmental assessment (EA) instead of in the SCP. NRC is not required by law or regulation to review the EA. Thus, there is some concern regarding NRC's exerting less influence on the site selection process than would be exerted under the existing rule.

. There may also be controversy resulting from a possible misperception that there has been a significant narrowing of state opportunities to participate in the NRC pre-licensing process, particularly regarding opportunities for funding by NRC of state activities. This would not result from the proposed amendments.

. Another potential issue is the nature of NRC review of DOE's environmental assessments. An analysis of the Comission's NEPA responsibilities as modified by the Waste Policy Act will be prepared in connection with the development of amendments to 10 CFR Part 51. The proposed rule contemplates that NRC will be reviewing environmental assessments in the light of the NRC/D0E procedural agreement. The review would not be of the process by which DOE screened sites and compared alternatives; some State representatives have suggested that this will not suffice to meet the Comission's NEPA responsibilities.

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

Recommendations: That the Comission:

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

2. Certify that the revised rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. This certification is necessary in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(a).

3. Note:

a) Under the exemption set out in 10 CFR 51.5(d)(3),

no environmental assessment is being prepared in connection with this action.

U V The Comissioners 5 b) Sections 60.62 and 60.63 of this proposed rule amend information collection requirements that l are subject to the Paperwork Reduction Act of 1980 (44. U.S.C. 3501 et seq.). This rule will be submitted to the Office of Management and Budget for review and approval of the information collection requirements.

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

d) The Subcommittee on Energy and the Environment of the House Interior and Insular Affairs Comittee, the Subcomittee on Nuclear Regulation of the Senate Committee on the Environment and Public Works, the Subcomittee on Energy, Nuclear Proliferation and Federal Services of the Senate s Comittee on Government Affairs, and the Subcomittee on Energy and Power of the House Interstate and Foreign Commerce Comittee will be informed by a letter similar to Enclosure D.

e) The Office of Public Affairs has determined that '

it is not necessary to issue a public announcement for the proposed amendments.

However, a copy of this Comission paper package is being placed in the Public Document Room.

f) A regulatory analysis is contained in Enclosure E.

g) A copy of the NRC/ DOE Procedural Agreement referenced in Enclosure A is attached as j Enclosure F.

h) If approved, this notice of proposed rulemaking would be published in the Federal Register allowing 60 days for receipt of public comment. j i) The proposed amendments involve matters related to the DOE siting guidelines. Both are concerned  !

with the site selection process mandated by the Waste Policy Act and the roles of DOE, NRC, and the States and affected Indian tribes.

j) The Commission has recently approved proposed amendments to 10 CFR Part 60 technical criteria, related to disposal in the unsaturated zone (SECY-83-444). The Comission will also be l

The Commissioners 6 l

receiving shortly an Advance Notice of Proposed Rulemaking related to the definition of HLW. It is not necessary that the Commission defer consideration of 10 CFR Part 60 amendments until the latter package is received.

k) A comparative text of the proposed amendments is included.

Y

! /

z N 7 11 mjd. Dircks' Executive Director for Operations

Enclosures:

As stated Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, July 13, 1984.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, July 6, 1984, with an infor-mation copy to the Office of the Secretary. If thc. paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION:

Commissioners OGC OPE OI OCA OIA OPA REGIONAL OFFICES EDO ELD ACRS ASLBP ASLAP SECY I

. - .,w.-Q , . .. . -m ..

& E ENCLOSURE A k

i

[7590-01]

NUCLEAR REGULATORY COMMISSION 10 CFR PART 60 DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTE IN GEOLOGIC REPOSITORIES:

AMENDMENTS TO LICENSING PROCEDURES AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is proposing revisions to procedures with respect to NRC reviews of license applications for disposal of high-level radioactive waste in geologic repositories. For the most part, the revisions reflect the provisions of the Nuclear Waste Policy Act-of 1982, particularly as they relate to site characterization and the participation of States and Indian tribes in the process of siting, licensing, and development of disposal facilities.

DATES: Comment period expires (insert date 60 days from date of Federal Register publication). Comments received after (insert date 60 days after publication in the Federal Register) will be considered'if it is practical to do so, but assurance of consideration cannot be given except as to comments filed on or before that date.

ADDRESSES: Submit written conments and suggestions to: Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Copies of comments received 04/25/84 1 Enclosure A

[7590-01]

may be examined at the Comission's Public Document Room,1717 H Street NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Patricia A. Comella, Deputy Director, Division of Health, Siting and Waste Management, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)427-4616.

SUPPLEMENTARY INFORMATION: The Nuclear Regulatory Comission (Comission or NRC) in 1981 promulgated procedures for licensing Department of Energy (DOE) facilities for disposal of high-level radioactive wastes in geologic repositories (46 FR 13971, February 25,1981). More recently, Congress has established.a definite Federal policy for such disposal.

Nuclear Waste Policy Act. of 1982, Pub. L.97-425, 42 U.S.C.10101 (Waste Policy Act). Section 121 of the Waste Policy Act directs the Commission, not later than January 1,1984, to promulgate technical requirements and criteria that it will apply in approving or disapproving license appli-cations with respect to geologic repositories. The Comission has complied with this requirement by publishing final technical criteria (48 FR 28914, June 21, 1983). The Comission is now turning to a review of its previously adopted procedures. One objective is to reflect the provisions of the Waste Policy Act. In addition, however, the Commission is taking this opportunity to clarify its\ procedures in the light of experience gained over the past three years in consultations on the SCA reviews of DOE siting projects and in light of the extensive prelicensing interaction process now underway between NRC, the states, and D0E.

The principal aspects of the licensing precedures that the Commission has under review concern (1) the role of NRC during site screening and site characterization activities, (2) State, tribal, and public partici-pation in NRC activities with respect to geologic repositories, (3) NRC responsibilities under the National Environmental Policy Act (NEPA), (4) procedures and standards for identifying categories of material as high-level radioactive wastes, and (5) changes, especially with respect to content of the license application, needed to conform the licensing l

04/27/84 2 Enclosure A

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l 1

procedures to the technical criteria.1 The present rulemaking proposal l deals with the first two of these topics; because the two are so inter- l twined they will be treated together.

Background

In 1974, when the Atomic Energy Commission's functions were divided between the Energy Research and Development Administration (ERDA) and the Nuclear Regulatory Commission, Congress provided generally that ERDA high-level waste disposal facilities were to be subject to NRC's regula-tory and licensing authority (42 U.S.C. 5842). NRC's role with respect to such facilities remained unchanged when the functions of ERDA were transferred in 1977 to the new Department of Energy (00E) (42 U.S.C. 7151).

Although the Atomic Energy Act recognizes the interest of the States in the peaceful uses of atomic energy and the need for coopera-tion with the States with respect to the control of radiation hazards, the Federal government was authorized to regulate the disposal of high-level radioactive waste to protect public health and safety (42 U.S.C. 2021(c), 10 CFR 150.15). Nevertheless, the Act recognizes the need for cooperation with the States, 42 U.S.C. 2021(a), and it is

' Issues pertaining to NEPA will require modifications to 10 CFR Part 51. Amendments to 10 CFR Part 51 to reflect the Waste Policy Act will be the subject of a subsequent rulemaking. However, actions which the Commission may take relative to environmental assessments required by the Waste Policy Act are discussed later in this statement. Considera-tion of the definition of HLW is reserved, and the Commission anticipates publication of an advance notice of proposed rulemaking on this topic in coming months. The content of application section will be reviewed after issuance of DOE siting guidelines under the Waste Policy Act to take such guidelines into account if and as appropriate. The Commission would welcome suggestions from interested persons with respect to other changes that may be needed to reflect provisions of the Waste Policy Act. .

04/25/84 3 Enclosure A

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Commission practice to consult with State and local governments on matters of common interest.2  ;

Recognizing that further legislative guidance would help to define appropriate forms of consultation and cooperation, Congress in 1978 directed the Commission to prepare a report on means for improving the

~

opportunities for State participation in the process for siting, licen-sing, and developing nuclear waste storage or disposal facilities. NRC Authorization Act for Fiscal Year 1979, Pub. L.95-601, Sec.14(b).

After consultation with the States, the Commission submitted its report to Congress in 1979. Means for Improving State Participation in the Siting, Licensing and Development of Federal Nuclear Waste Facilities, NUREG-0539, reprinted in Nuclear Waste Isolation pilot Plant (WIPP):

Oversight Hearings Before the Subcommittee on Oversight and Investiga-tions of the House Comm. on Interior and Insular Affairs, 96th Cong.,

1st Sess. 514-601 (1979) (the NRC Report). The NRC Report, " based on the premise that State involvement in any national nuclear waste manage-ment program is a critical element in making the program work," included several procedural and substantive recommendations.

The value of such State involvement - .for the Commission as well as for the States -- was emphasized as the NRC developed a framework for licensing geologic repositories for high-level radioactive waste (10 CFR Part 60). The first step in this process was the Commission's publication of a Proposed General Statement of Policy (43 FR 53869, November 17, 1978). This document contemplated that the Commission would make licensing determinations before DOE commenced construction of a repository shaft.

DOE would be encouraged, however, to consult informally in advance with NRC staff. At this early stage, NRC would point out aspects of a location selected by DOE which might require special attention or present special 242 U.S.C. 2021 is a codification of a 1959 statute which added a new Section 274 to the Atomic Energy Act of 1954. Section 274 established procedures and criteria for discontinuance of Federal regulatory responsibilities.with respect to byproduct, source, and special nuclear materials and the assumption thereof by the States.

However, under Section 274, the regulation of high-level waste disposal for safety reasons remained a Federal responsibility. e e S_e Pacific Gas & Electric Co. v. Energy Commission, _ U.S. , 75 L.Ed.2d 752, 774 (1983).

04/25/84 4 Eaclosure A

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problems and NRC would help to define the kinds of information needed for licensing decisions. As noted, repository construction (including sinking of the main repository shaft) would require licensing action.

Site characterization would continue during repository construction, with the data to be reviewed before issuance of a license authorizing i receipt of radioactive material. Upon commencement of NRC's informal review, NRC would publish a notice in the Federal Register, send copies

! of information submitted by DOE to State and local officials, and offer to meet with those officials to provide information and explore possibil-4 ities of their participation in the licensing process.

i After soliciting and considering views, the Commission next proceeded to issue a proposed rule. One significant difference from the policy

statement was that DOE would be permitted to sink shafts and engage in site characterization activities at depth before formal licensing pro-f ceedings were commenced. DOE's site characterization plans would never-theless be reviewed in considerable detail in advance, with opportunity for public comment on an NRC draft site characterization analysis. The proposed rule incorporated detailed provisions to ensure extensive opportunities for State and public participation. These procedures were

" designed to allow affected States to participate to the fullest extent l

possible within the limits of the Commission's authority and the State's own des' ires and capabilities." The Commission observed, however, that

" provisions for State participation would be reviewed in the light of I

l any pertinent statutory changes that may be enacted." Moreover, it noted I

that the extent of State participation may be affected by legislative action on the matters discussed in the NRC Report (44 FR 7.0408, December 6,

1979).

The final rule added provisions with respect to notice to and i participation by Indian tribes. However, inasmuch as public comments on l the proposed rule pointed out no serious deficiencies in the opportuni-ties for State and public participation, the provisions that had been proposed were adopted without material change (46 FR 13971, hbruary 25, 1981).

Both the proposed rule and final rule contemplated that DOE would r,haracterize several sites at depth, primarily so as to enable the

, i

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Commission to discharge its NEPA responsibilities with respect to evalu-ation of alternatives. With this in mind, DOE would have been required, 1 as discussed below, to include information concerning its site selection process in its site characterization report to NRC.

The Existing Regulations The principal aspects of the existing licensing procedures that are of present interest relate to (1) submission of DOE's site characteriza-tion report, (2) public notice of receipt of the site characterization report, (3) the preparation of a site characterization analysis by NRC, (4) consultation between NRC and States and Indian tribes, (5) partici-pation in NRC reviews, and (6) procedures for the formal hearing process.

It will be useful to review the present language of 10 CFR Part 60 with respect to these items before turning to the changes that we propose to adopt.

1. Site characterization report (S 60.11).

NRC requires that DOE submit a site characterization report "as early as possible after commencement of planning for a particular geologic

, repository operations area, and prior to site characterization." Both 2 the timing and required content of this report reflect the statutory J directive in Section 14(a) of the NRC Authorization Act for 1980, Pub.

L.95-601, which provides

Sec. 14(a) Any person, agency, or other entity proposing to develop a storage or disposal facility, including a test disposal facility, for high-level radioactive wastes, or

irradiated nuclear reactor fuel, shall notify the Commission as early as possible after the commencement of planning for a i particular proposed facility. The Commission shall in turn notify the Governor and the State legislature of the State of proposed situs whenever the Commission has knowledge of such proposal.

1 The Commission, in proposing its licensing procedures, made specific l reference to this statute and explained that its rule would " ensure that the notice from the Department will, in fact, initiate a meaningful, substantive review" (44 FR 70409). The site characterization report, 4

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together with the NRC staff assessment thereof and meetings between NRC staff and State officials and other interested persons, " assures an early opportunity for other Federal and State agencies and the public to become involved in the decision making process" with respect to DOE's site characterization and site selection programs. Ibid. The review process would provide NRC an opportunity to identify and consider a broad range of public concerns; this would assist NRC in the preparation of a comprehensive and reasoned analysis.

The site characterization report would include more than a descrip-tion of the site and the program to be undertaken to characterize the f ability of the site to achieve waste isolation. It would also discuss "the method by which the site was selected for site characterization...

and... a description of the decision process by which the site was J

selected for characterization, including the means used to obtain public, Indian tribal and State views during selection." Alternative media and sites at which DOE intends to carry out site characterization would be

[ identified. DOE's report on these topics would enable the Commission to consider whether additional information might be needed by the Commission in discharging its NEPA responsibilites (46 FR 13972).

i

! 2. Notice and publication (S 60.11).

As directed by Section 14(a) of the 1980 NRC Authorization Act, NRC rules provide for notice to the Governor and the State legislature of i the State of proposed situs whenever a site characterization report is received. Although not required to do so by law, NRC would also (1)

transmit copies of the site characterization report to these addressees,

(2) provide similar notice to local officials, tribal organizations, and Governors of contiguous States, and (3) publish in the Federal Register notice of receipt of the site characterization report which, among other things, will advise that governmental and Tribal officials may request I consultation with NRC staff.

3. Site characterization analysis ($ 60.11).

The rules provide that NRC will review the site characterization report and prepare a draft site characterization analysis which dis-cusses the information submitted by DOE, and that a request for public 4

04/25/84 7 Enclosure A i

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l comment on the draft site characterization analysis is to be published l in the Federal Register; copies are to be transmitted to the State and local officials and Tribal organizations who had previously received notice under the rule. It was anticipated that NRC would hold local public meetings in the immediate area of the site to be characterized, both to disseminate information and to obtain public input, but this is l not an explicit requirement under the rule. After a comment period of l at least 90 days, NRC would transmit a final site characterization analysis to 00E. As noted above, these procedures were designed to solicit comments that would assist NRC to prepare a comprehensive and reasoned analysis.

4. Consultation (S 60.61, S 60.64(a)).

Under Part 60, NRC staff would consult with State government and Tribal officials, on written request, to keep them informed of NRC views on the progress of site characterization and to notify them of NRC meetings and consultations with 00E. NRC would respond to written questions or comments from these officials and transmit such responses to DOE. Consultation would not be limited to site characterization, but could include a review of NRC licensing procedures and the type and scope of State and Tribal activities in the license review permitted by law as well.

5. Proposals for State participation (SS 60.62-60.64).

The NRC Report (at 18-24,27-28) distinguished between improvement of State participation in the NRC review process on the one hand and, on the other, the carrying out of an " independent State review" of'a proposal to store or dispose of nuclear waste. The Report identified several avenues for State participation in NRC reviews that could be implemented under existing law. These included support from NRC in the form of educational or information services, exchange of personnel under the Intergovernmental Personnel Act, and contracts for technical services needed by the Commission. Besides the activities that could be carried out under existing law, the Report (at 28) recommended that the Congress

" establish a grant program to allow the States to participate more fully in the Federal waste management program."

04/25/84 8 Enclosure A

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[7590-01] l Part 60 provides for State participation in the review of a site characterization report and/or license application. A proposal initiated by the State would describe how the State wishes to participate in the review and how it plans to facilitate local government and citizen participation, and it would include funding estimates of work to be done under contract with the NRC. Subject to the availability of funds and legal constraints, NRC would approve State proposals that it finds will enhance communications with the State and contribute productively to NRC's license review.

Under the State participation provisions, proposals can be submitted by any State "potentially affected" by the siting of a repository, even if the prospective repository site is in a different State. By the same token, Indian tribes "potentially affected" by the siting of a repository may submit proposals for participation in the same manner as the States.

6. Formal licensing procedures.

The NRC rules provide that notice of specified events (docketing, hearing, proposed issuance of license, issuance of license) will be published in the Federal Register; there are additional specific require-ments for notice to State and local officials (and to Tribal organizations if a repository is to be' located within an Indian reservation). 10 CFR

$$ 2.101-2.106. Affected States and Indian tribes desiring to participate as a party to a licensing proceeding may petition for leave to inter-vene; and they may also participate in a more limited capacity as provided by the regulation. 10 CFR SS 2.714, 2.715.

j The Needed Revisions One of the purposes of the Waste Policy Act is to define the rela-tionship between the Federal government and the State governments, and between the respective Federal agencies, with respect to the disposal of high-level radioactive waste. The Act prescribes in great detail proce-dures for 00E to consult and cooperate with the States (and affected Indian tribes) with respect to determining the suitability of an area for a repository and with respect to other issues arising in connection with the planning, siting, development, construction, operation, or closure of such a facility (Sec. 117, 42 U.S.C. 10137). DOE is directed 04/25/84 9 Enclosure A

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to make initial grants to States with potentially acceptable sites for a repository and, subsequently, to provide further grants to any State in which there is a site approved for characterization (Sec. 116(c),

42 U.S.C. 10136). The latter grants are to enable the States, among other things, to review potential impacts of the repository upon the State and its residents and to provide information to such residents regarding the activities of DOE or the Commission with respect to the site. DOE is also directed to provide financial and technical assis-tance to a State in which a repository is to be located, after NRC has issued a construction authorization, in order to mitigate the

^

impacts of development of the repository. Ibid. The Waste Policy Act 4

also contains requirements that DOE hold public hearings at several

, stages of site selection and characterization [Sec. 112(b)(2),

42 U.S.C. 10132 (nomination); Sec. 113(b)(2), 42 U.S.C. 10133 (charac-terization); Sec.114(a)(1), 42 U.S.C.10134 (recommendation for development)]. The designation of a site as suitable for application for a construction authorization will not be effective over State objections except pursuant to a Congressional resolution which there-after becomes law (Sec. 115, 42 U.S.C. 10135).

The Waste Policy Act reconfirms the authority and responsibility of the Commission to review a specific repository proposal, pursuant to the Atomic Energy Act, in order to protect the public health and safety. The Waste Policy Act provides for Commission review prior to site characteri-zation, as well as in a formal licensing proceeding, and for a Commission determination as to whether a repository of a particular design at a specified site will provide adequate isolation of radioactive waste. The Waste Policy Act makes no specific provision for the Commission to engage in, or independently review, the processes of site screening and selection. The Commission's only prescribed participation in this selection process comes in NRC's review and concurrence in guidelines for the recommendation of sites for repositories (Sec. 112(a), 42 U.S.C.

10132). However, the Commission will review DOE's draf t environmental 4

h 9

04/25/84 10 Enclosure A

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assessments as it would review any other information on site investigation and site characterization, in order to allow early identification of potential licensing issues for timely resolution. Reviews will be carried out in accord with the procedural agreement between NRC and DOE for interface during site investigation and site characterization.3 While the Waste Policy Act establishes new procedures for the high-level waste management program, the Consnission remains entirely free to consult with the States and Indian tribes, at its own initiative or theirs, with respect to any matter pertaining to NRC's regulatory role. Although specific channels are established for States and Indian tribes to engage in consultation and cooperation with DOE, these cannot-substitute for direct interaction with NRC with respect to this agency's functions. Nevertheless, an examination of the details of the Waste Policy Act highlights differences from Part 60 which need to be taken into account. In addition, there are some changes -- particularly with respect to funding of State participation -- that would have been desir-able even in the absence of the new legislation. The need for revisions can be analyzed using the same headings as before.

1. Site characterization report.

As is the case under the existing regulations, it is appropriate that the submission of infonnation about a site and plans for characterization of the site should be the occasion for commencing NRC's initial substantive review. However, the Waste Policy Act specifies a number of actions DOE must take before such information is required to be submitted to NRC. Further, the Waste Policy Act calls for NRC to review information of narrower scope than that which, under 10 CFR Part 60, was to be included in the DOE site characterization report.

3 Procedural Agreement between the U.S. Nuclear Regulatory Consnission and the U.S. Department of Energy identifying guiding principles for interface during site investigation and site characterization.

48 FR 38701, August 25, 1983. The Procedural Agreement is designed to assure that an information flow is maintained to facilitate each agency's accomplishment of its responsibilities relative to site investigation and characterization. The Procedural Agreement also provides that DOE is to notify potential host States and affected Indian tribes of technical meetings between DOE and NRC technical staff and that DOE is to invite those States and tribes to attend. These technical meetings will be open meetings, with members of the public being permitted to attend as observers.

04/27/84 11 ' Enclosure A

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Under i 60.11, the site characterization report.was to be furnished to NRC "as early as possible after commencement of planning" for a particular repository. In contrast, the Waste Policy Act requires that DOE first nominate several' sites (after holding public hearings and consulting with the governors of affected States) and that particular locations would then be recommended as candidate sites which, if approved by the President, would be eligible for site characterization.

The new law marks this time -- before DOE proceeds to sink shafts --

i as the point when the site characterization plan is submitted. When the i Commission reviews this plan, the site to be characterized will already l

, have been the subject of extensive scrutiny. It will have been described in an environmental assessment in which the siting guidelines are applied and will have been discussed at public meetings at which public comments will have been solicited and received. It also will have been reviewed by both DOE and the President in the course of the nomination approval process. Extensive data gathering programs may have been carried out in conjunction with these activities.

DOE may very well need to make choices and commitments in the course of such data gathering that could have a significant bearing upon the safety and licensability of a repository. The drilling of boreholes for testing purposes, for example, could affect the integrity of a

! repository that might be constructed at the site. Close coordination l' between 00E and NRC is therefore needed prior to submission of the site characterization report so as to facilitate the early identification of issues of potential safety significance and so as to afford an oppor-

tunity for NRC to provide DOE with timely views.

Under the Waste Policy Act, the information which is to be submitted .

q to the Commission for ' review and comment prior to site characterization is similar to existing i 60.11. Both Part 60 and the statute call for DOE to describe the site, the proposed site characterization activities, a conceptual repository design, and certain information with respect to ,

waste form or packaging. However, several categories of infonnation which were previously listed in i 60.11 are omitted under the Waste i Policy Act from the required submission to NRC -- notably, the method by which the site was selected for site characterization, the identification and location of alternative media and sites at which DOE intends to

04/27/84 12 Enclosure A l

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[7590-01]

1 conduct site characterization, and a description of the decision process

by which the site was selected for characterization (including the means  !

j used to obtain public, Indian tribal and State views during selection).

The Waste Policy Act still requires a discussion of the omitted j items, but in a separate document called an environmental assessment l (Sec. 112(b)(1), 42 U.S.C. 10132). The preparation of an environmental

! assessment is to be preceded by public hearings held by DOE and consul-i tation by DOE with governors of affected States. Ibid. Although not

required to do so by the Waste Policy Act, DOE intends to make environ-  !

mental assessments in draft form available for public coment. All this j occurs in connection with the nomination of a site prior to Presidential l i review and approval of a candidate site for site characterization.

The Waste Policy Act makes no provision for the Comission to comment to DOE on its environmental assessments or otherwise to par-ticipate in the nomination process. It is nevertheless the intention of j the Commission to review and comment on the environmental assessments, j as well as other technical documents being prepared by DOE, in order to j assess on a continuing basis the information collected to date and the l program for the development of additional infonnation for a potential license application. However, the NRC staff would not comment upon the methodology used by DOE to compare sites or upon the relative merits of l one site against another. Such a review by NRC is not necessary to fulfill f any of its statutory responsibilities. Moreover DOE will be selecting sites l using guidelines in which the NRC will have already concurred. We regard I it as appropriate, however, and fully consistent with the objectives of l the Waste Policy Act, for the NRC staff to provide to DOE current expres-sions of its views on the quality of the data available and the potential, licensing issues that may be anticipated and that may need to be addressed i in DOE's site investigation and site characterization activities.

l In view of the foregoing considerations, 9 60.11 needs to be revised to I change both the timing and content of the DOE site characterization report to i

conform to the Waste Policy Act. Despite these changes, however, the Comission plans to be involved at earlier stages in reviewing data collected by DOE as ,

well as its programs for gathering additional data. The instrument for accom- l l plishing this -- namely, the Procedural Agreement referred to above -- is l already in place and is being implemented routinely.

i l' -

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2. Notice and publication.

The Waste Policy Act provides that: "Before nominating a site, the  !

Secretary [of Energy] shall notify the Governor and legislature of the State in which such site is located, or the governing body of the affected Indian tribe where such site is located, as the case may be, of such ,

nomination and the basis for such nomination" (Sec. 112(b)(1)(H),

42 U.S.C. 10132). Later, after public hearings and a prescribed review process involving Presidential approval, DOE must submit site charac-terization plans to those same officials, for review and comment; con-currently, DOE is required to submit such plans to NRC (Sec.113(b)(1),

42 U.S.C. 10133). Although publication of notice in the Federal Register is not required expressly, DOE must make both the environmental assess-ment and the site characterization plan "available to the public"

[ Secs. 112(b)(1)(G), 113(b)(2)(A), 42 U.S.C. 10132-33]. The Commission anticipates that DOE will give notice in the Federal Register as the means for assuring adequate public availability of these documents.

Since DOE is required to make its site characterization plan avail-able to State and tribal officals and to the public, duplicative pro-visions may be removed from Part 60. Even so, however, it makes sense for the Commission to-publicly acknowledge receipt of DOE's submission so as to provide notice of the opportunity for consultation thereon with the NRC staff.

3. Site characterization analysis.

The Waste Policy Act requires, before DOE proceeds to sink shafts at a candidate site, that DOE submit its site characterization plans to NRC (as well as State and tribal officials) for review and comment (Sec. 113(b), 42 U.S.C. 10133). The Commission believes that Congress intended that DOE should provide the plans sufficiently far in advance so that comments may be developed and submitted back to DOE early enough to be considered when shaft sinking occurs, and at all times thereafter.

As explained .bove, this implies an ongoing working relationship with DOE to assure that its data'and assessments are made available to NRC as they are developed. As already mentioned, NRC and DOE have, in fact, developed a Procedural Agreement under which NRC is to have access to 04/25/84 14 Enclosure A

[7590-01]

information as it is generated and, equally important, NRC is to comment regularly to DOE with respect to this information.

Thus, the Commission expects that the principal means of evaluation will be the interagency process that begins early in DOE's consideration i of a site. When investigations have progressed far enough to warrant sink-i ing of shafts, it is our expectation that NRC will already be adequately l informed with respect to data generated to date and that NRC's concerns would already have been focused and brought to the attention of DOE.

(. Assuming this to be the case, NRC should be in a position to complete its i review and provide comments to DOE, as required by the Waste Policy Act, j in a prompt fashion. The site characterization analysis would be a i continuing dynamic process, better suited for ongoing public input and -

NRC review, rather than " freezing" the comment and review process at one arbitrary point in time.

An ongoing public review process would also facilitate DOE's ability

! to obtain comments on its site characterization plan from the States and i

l Indian tribes as well. The Waste Policy Act affords an opportunity for f these entities to enter into written agreements with DOE specifying

procedures for consultation and cooperation that could include early l review. Moreover, the NRC/ DOE Procedural Agreement assures that States >

{ and Indian tribes will have an opportunity to be informed routinely 1

concerning the information made available to NRC and NRC's comments i thereon and to attend NRC/ DOE technical meetings.

Under existing 10 CFR Part 60, DOE's submission of site character-ization plans was to occur, as already noted, "as early as possible after f

! commencement of planning" for a particular repository. There was no I assurance that either NRC or other interested parties would have had f prior information about the site or any opportunity to make concerns j known to DOE. It was in this context that the Commission determined that

NRC would prepare a draft site characterization analysis for public review and comment before developing a statement of the agency's views

! for consideration by DOE.

Under the Waste Policy Act, however, DOE's submission comes after an extensive period of interaction between DOE and the States', affected Indian tribes, and the public, and after Presidential review and approval t

l 04/25/84 15 s Enclosure A i

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of the sites recommended for characterization. By the time a site characterization plan is to be submitted for review and comment, there should have been ample opportunity for NRC to have become acquainted with both DOE's programs and the public's concerns. Since technical meetings under the Procedural Agreement will be open, interested parties will have an opportunity to follow the course of NRC activities and to bring their concerns to the attention of NRC. Further opportunities for public involvement are provided by law, since DOE must also seek the comments of the States and tribes, and hold public hearings in the vicinity of the site. For these reasons, together with the scheduling mandates of the Waste Policy Act, the Commission believes it is no longer necessary to prepare a draft site characterization analysis on which public comment is sought. The Commission particularly asks for views on this proposed change.

It should be emphasized, however, that NRC will have been engaged in an ongoing review of DOE's activities even before submission of a site characterization plan and that the comments of interested parties may be submitted at any time for consideration as a part of that review process.

4. Consultation.

Under the Waste Policy Act, the Commission is directed to provide

" timely and complete information regarding determinations or plans made with respect to site characterization, siting, development, design,

, licensing, construction, operation, regulation, or decommissioning" of a repository, Sec. 117, 42 U.S.C. 10137, but this affords no rights to States and Indian tribes beyond those already provided in law. H.R.

Rep.97-785, Part I at 74. The proposed amendments contain conforming language implementing this requirement. The Waste Policy Act charges DOE with the responsibility to " consult and cooperate" with the State > and Indian tribes in an effort to resolve their concerns about the safety, environmental, and economic impacts of a repository. States may make comments and recommendations to 00E regarding any activities taken under this subtitle," and this may be funded by grants from DOE (Sec.116(c)

(1)(B)(v), 42 U.S.C. 10136). 00E is directed to take State and Indian concerns into account "to the maximum extent feasible" (Sec. 117(b),

04/25/84 16 Enclosure A

[7590-01]

42 U.S.C. 10137). Accordingly, in expectation that States and tribes will communicate directly with 00E with respect to its site characterization plans, the provision that the Director will respond to questions and comments of the States and tribes on DOE's plans has been deleted.

However, the Commission has consistently expressed its intention to maintain a dialogue with the States, Indian tribes, and members of the public. This intention is unchanged. The scope of such dialogue may appropriately extend to any issue which must be considered and resolved by NRC in the discharge of its licensing responsibilities.

5. Proposals for State participation.

Subpart C of 10 CFR Part 60 provides for the filing of proposals by States and Indian tribes for participation in reviews of site characteri-zation reports and license applications. In response to such proposals, NRC would consider providing certain educational or information services and funding work that the State proposes to perform for the Commission, under contract, in support of the review.

With enactment of the Waste Policy Act, authority to fund a broad variety of State activities, including grants to enable a State "to review activities...for purposes of determining any potential economic, social, public health and safety, and environmental impacts" of a reposi-tory has been vested in DOE. Sec. 116(c)(1)(B)(i), 42 U.S.C. 10136; see also Sec. 118(b)(2)(A)(1) (pertaining to affected Indian tribes). The scope of NRC assistance available may be limited by this statutory direc-tion. However, other elements of Commission support would not be affected as explained in greater detail in the section-by-section analysis below.

6. Formal licensing procedures.

The Waste Policy Act incorporates the basic licensing structure which had been described in the Commission's regulations. It expressly provides for consideration of a DOE application, subject to certain deadlines, "in accordance with the laws applicable to such applications" 04/25/84 17 Enclosure A

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(Sec. 114(d), 42 U.S.C. 10134). Affected States and Indian tribes will be entitled to participate in the licensing proceedings.

The new requirement that DOE and NRC provide timely and complete information to the States and tribes, Sec. 117(a), 42 U.S.C. 10137, would apply to significant milestones in the formal adjudicatory process. The rule presently reflects this, and the Commission finds no need to modify the formal regulatory structure for licensing activities at geologic repositories.

Section-By-Section Analysis In light of the foregoing considerations, the Commission is proposing to revise its licensing procedures with respect to disposal of high-level waste in geologic repositories. The following

! section-by-section analysis provides additional explanatory information.

] All references are to Title 10, Chapter I, of the Code of Federal l Regulations. Other revisions, including changes that may be needed to conform with the Waste Policy Act's provisions for environmental reviews, will be the subject of separate rulemaking.

10 CFR part 60, Subpart A

$ 60.2 Definitions.

The terms " Indian Tribe" and " Tribal organization" would no longer appear in Part 60 and the definitions of the terms have therefore been deleted. The term "affected Indian tribe," as defined in the Waste Policy Act, is the proper designation for those entities that are entitled to notice and other recognition under the rule. The proposed rule incorporates the statutory definition of "affected Indian tribe."

10 CFR Part 60, Subpart B The sections in this subpart have been renumbered so as to allow for insertion of additional general provisions, if needed, at a future date.

j $ 60.15 [formerly 6 60.10] Site characterization.

! No change.

04/25/84 18 Enclosure A

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$ 60.16-18 [formerly 6 60.11].

> The'former section S 60.11, captioned " Site characterization report," has been revised to conform to the Waste Policy Act. It has i

been divided into three sections in order to provide a clearer editorial structure.

The " site characterization report" has been changed to a " site i

characterization plan." Note that this includes more than DOE's " general a

plan for site characterization activities;" conforming to Sec. 113(b),

42 U.S.C. 10133, it must also incorporate information on waste form and f packaging as well as a conceptual repository design. The change from i " report" to " plan" better conveys the sense that DCE is describing a program to obtain information which can be used later to evaluate a site, as opposed to a pre'sentation of data which would allow a preliminary judgmentastositeaccEptability. The NRC review process at this stage

! is not directed to advibing DOE whether or not the site is or is not satisfactory, but rather whether or not the characterization program (1) will generate data needed for arriving at subsequent licensing determinations and (2) will adversely and significantly affect the

! ability of the geologic repositcry to achieve the prescribed performance 9

objectives, j l; .

\

S 60.16 Site characterization plan required.

The requirement for ' DOE to submit a site characterization report i appeared in S 60.11(a). As before, the document (now a " plan") is to be submitted to the Director of NRC's Office of Nuclear Material Safety and Safeguards. The purpose of the submission ("for review and comment") is

! derived from the Waste Policy Act. Similarly, the timing of the submis-

sion ("before proceeding to sink shafts") reflects the new statutory  ?

, direction.

] The regulation refers to characterization at any area which has been

! approved by the President for site characterization. Such an area would i be a " candidate site" as de' fined in the Waste Policy Act. The regulation avoids that term, however, because it already defines " site" in a j different way, i

J i

i e 04/25/84 19 Enclosure A t

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

. . . , w. . . w. .

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t

$ 60.17 Contents of site characterization plan.

This section restates, with minor changes, the information which the j Waste-Policy Act requires to be submitted to the Commission for review i

and comment.

j Because Part 60 defines high-level radioactive waste to include spent nuclear fuel, the latter category of material is not referred to in S 60.17.

I Consistent with other provisions of Part 60, the term " geologic a

j repository operations area" (rather than " geologic repository" or

[ " repository") is employed when the context pertains to the area in which j waste handling activities are conducted.

Part 60 defines " host rock" as "the geologic medium in which the 1

waste is emplaced." Accordingly, the rule refers to the waste-host rock relationship instead of the relationship of the waste form or packaging l

j and the geologic medium. The statute's reference to the " packaging" for

• ~

the waste corresponds to Part 60's " waste package," and the proposed rule retains the latter term for purposes of consistency, i The Waste Policy Act requires 00E to include in its general plan for

)

l ,

site characterization activities "any other information required by the Commission." The Commission has so far identified only one such item --

namely information with respect to quality assurance. Other information

may hereafter be found to be needed to enable the Commission to determine

[ whether the proposed site characterization activities are appropriate; if i so, the Commission would establish its requirement either by rule

. (particularly if the information would be valuable on a generic basis) or j by order in a particular case. Although the Commission's obligations to observe the statutory schedule must be heeded, there is no reason in i principle why the submission of other information could not be ordered f even after the site characterization plan had been filed, if required for the Commission to discharge its review and comment responsibilities l

j effectively.

The Waste Policy Act's reference to plans to control any adverse,

" safety-related" impacts from site characterization activities can be ,

j traced to former 5 60.11(a)(6)(tii). The Commission's concern originally l was that DOE address those aspects of site characterization that (1) 4 l

l 04/25/84 20 Enclosure A 1

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could be significant with respect to radiological safety prior to permanent closure or (2) could affect the ability of the repository to satisfy the performance objectives pertaining to waste isolation. The proposed rule contains language that reflects this construction of the statute.

The Commission recognizes that the requested level of detail is not spelled out precisely. Such items as "a description of the area" and "a conceptual design for the geologic repository operations area that takes into account likely site-specific requirements" must not be read in I isolation. They must be understood to require sufficient detail for the Commission and other statutory reviewers to be able to comment in an informed manner. So construed, the Commission believes that they are sufficiently clear; should additional information be needed, the Commis-

sion would retain the option, by order, to require further submissions.

, As noted, the Commission has included an explicit statement that the site characterization plans should spell out DOE's quality assurance programs. Existing S 60.11 includes such language, but it was not included in the counterpart provision of the Waste Policy Act. However, since a principal aim of site characterization is to develop data that have been obtained and documented in a fashion which will support

licensing findings, the NRC review should be concerned with the approach which DOE is taking to data collection, recording, and retention as well as'to the content of the information which DOE seeks to assemble.

Because of the importance it attaches to this item, the Commission considers an explicit requirement for submission of information on quality assurance programs to be necessary.

We have also incorporated the statutory requirement that DOE is to include in its general plan.a statement of the criteria to be used to determine suitability of the site for the location of a repository.

Because site characterization will be a prerequisite for application of some guidelines, see Sec. 112(b)(1)(E)(11), 42 U.S.C. 10132, we anticipate that the site characterization plan will also include a description of how DOE will use the information gathered during site characterization to determine if the site suitability guidelines are met.

1 04/25/84 21 Enclosure A

- . _ _ _ _ - . , -_ _ . _ - ___ _ _ . , _ n_, __ _ . _ ,, - , , _ - , n , .,., -, ., -

u o

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The Waste Policy Act applies only with respect to geologic repositories that are used, at least in part, for the disposal of wastes from civilian nuclear activities. Sec. 8, 42 U.S.C. 10108. If DOE were to develop a facility exclusively for wastes from atomic energy defense activities, it would nevertheless be subject to licensing by NRC under the Energy Reorganization Act. The Commission has considered whether the changes proposed herein, which are largely responsive to the Waste Policy l

Act, would be appropriate with respect to such defense facilities. It appears that the Comission, acting under amended Part 60, could still effectively discharge its health and safety responsibilities for such defense waste facilities. But, in this section, the provisions that 1

prescribe the contents of the site characterization plan need to recognize that defense-only facilities would not have any applicable siting criteria " developed pursuant to Section 112(a) of the Nuclear Waste Policy Act"; instead, in that case, the rule requires that the site characterization plan set out the siting criteria actually used by D0E.

On environmental matters, the situation is more complex. The Waste Policy Act limitations with respect to the scope of the Comission's environmental responsibilities under NEPA -- which we would implement in the modified procedures at the site characterization stage -- would not apply to a repository used solely for defense wastes. Accordingly, the Comission would expect to require that DOE submit, with its site charac-terization plan for a defense facility, those items of infonnation with respect to site screening and selection that appear in existing 6 60.11(a) but which are not included in this proposed rule. Because the information relates to implementation of NEPA, it would be incorporated in revised 10 CFR Part 51 rather than Part 60.

Q 60.18 Review of site characterization activities.

Asunderexisting660.11(b),theCommissionwillpublishnoticeof receipt of DOE's site characterization plan. Although this may duplicate information published by 00E, it will serve to identify, to anyone interested, appropriate points of contact within the NRC staff. Since alternative areas are not required to be identified in the site charac-terization plan, the proposed rule omits any reference to such areas.

04/27/84 22 Enclosure A

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Language pertaining to consultation has been revised to conform with proposed Subpart C.

Similarly, notwithstanding duplication of notice by DOE, the Comission will give direct notice to State and tribal officials concerning receipt of DOE's site characterization plan. Under the proposed rule, this information would be furnished to the officials entitled to timely and complete information under the Waste Policy Act.

Because such officials would already have received copies of the site characterization plans from DOE, the notice from the Comission would not be accompanied by additional copies thereof. However, a copy of the site characterization plan would be placed in the Public Document Room.

(Existing i 60.11 would require local officials, and also the governors of contiguous States, to be afforded notice from NRC. This requirement has been deleted in the light of the new statutory provisions.)

l For the reasons set out in the discussion above, the proposed rule onits the mandatory draft site characterization analysis described in existing 5 60.11. However, the proposed rule does provide that the Director may invite and consider coments on DOE's site characterization plan and that he may also review and consider the comments made in connection with the public hearings which DOE is required to hold.

Moreover, the Director will publish a notice of availability of a site characterization analysis and will invite host States, affected Indian tribes and all other interested persons to review and coment thereon.

Coments received in response to such invitation will be reviewed by the Director; and where the Director detemines that there are substantial new grounds for making recomendations or stating objections to DOE's site characterization program, these concerns will be expressed to DOE.

The Director's review of the site characterization plan is substan-tially equivalent to the final site characterization analysis prescribed by existing 9 60.11. The reference to the Director's " comments" reflects the Waste Policy Act provision that the information is submitted to the Comission for " review and coment." The proposed rule refers to a

" statement" of objections by the Director, instead of a Director's

" opinion"; the latter term was unnecessarily equivocal. It is intended that the objections would be directed at the nature of the site charac-l 04/27/84 23 Enclosure A l

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l terization activities being proposed and not to the suitability of the i site as such; of course, if it appeared that a particular site exhibited such a profound deficiency that it could not be compensated for adequately in the light of data from any site characterization program, the Director could object to the program in its entirety, but the Commission regards this as highly improbable given the procedures prior to submission of a site characterization plan to NRC specified in the Waste Policy Act.

The inclusion of a finding with respect to the necessity of using radioactive material implements the specific direction in Section 113(c)

(2)(A), 42 U.S.C. 10133; the Commission has previously concluded that the use of source, special nuclear, and byproduct material for purposes of site characterization does not require a license, 10 CFR S 60.7(a), and there is no reason to believe that the Waste Policy Act was intended to change this view.

Since DOE is not required to prepare an environmental impact state-ment with respect to site characterization, see Sec. 113(d),

42 U.S.C. 10133, the references in existing S 60.11 to such statement have been omitted. A footnote to the text of the rule points out, however, that DOE's environmental assessments will be reviewed -- as other DOE documents will be - for the purpose of early identification of potential licensing issues for timely resoulution.

The Waste Policy Act requires that DOE report to the Commission (and to State and tribal authorities) at least semiannually on the nature and extent of site characterization activities and the information developed from such activities. The same concerns were addressed in existing S 60.11(g). The Commission believes the two formulations are essentially the same, but that the more detailed version in the NRC regulation provides a clearer statement of the information that is needed.

Accordingly, the proposed rule conforms closely to the Commission's earlier rule. The most significant change, reflecting the adoption of a statutory directive to DOE, is that the provisions are now expressed in mandatory ("shall") terms. Also, the existing rule includes a provision for submission of additional reports on any topic, if requested by the Director; as modified, such other topics must still be covered as requested by the Director, but the information may be included in the 04/25/84 24 Enclosure A

l.....

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i semiannual reports instead of " additional" ones. The Director will review the semiannual reports and, where appropriate on the bas'is of new information contained therein, the Director will make recommendations or state objections with respect to DOE's site characterization program.

The proposed rule provides for the Director to transmit to State and tribal officials copies of all comments made to DOE under S 60.18. This includes not only the site characterization analysis and comments on the site characterization plan, but also any other comments which the Director chooses to make by way of " expressing current views." Other correspondence between NRC and DOE will be placed in the Public Document Room, but will not routinely be distributed to the designated officials.

The omission of the requirement that the Director consider comments received from States in accordance with 5 60.61 conforms to the changes in Subpart C. Such comments may, however, be solicited and reviewed as appropriate in individual cases and, as noted, comments on the site characterization analysis will be invited and will be reviewed, and such review may be the basis for the Director to express to DOE additional recommendations or objections.

Except for some editorial changes, other provisions of 5 60.18 are the same as existing regulations.

10 CFR Part 60, Subpart C This subpart deals with participation by State governments and Indian tribes in the Commission's licensing and pre-licensing activities.

The role of the States and tribes in repository siting and development is addressed in great detail by several provisions in the Nuclear Waste Policy Act. While the Commission finds that some changes in Subpart C are needed in light of those provisions, it remains our intention to encourage close working relations with the States and tribes. The revisions are designed to clarify the means by which this can be accom-plished in a manner conforming to the new law.

S 60.61 Provision of information.

This section implements the requirement in the Waste Policy Act, Sec. 117(a), 42 U.S.C. 10137, that NRC furnish timely and complete information to host States and affected Indian tribes regarding its 04/25/84 25 Enclosure A

[7590-01]

determinations or plans. It applies, insofar as Commission responsi-bilities are concerned, from the time a site characterization proposal is submitted throughout the entire life of the repository through

" decommissioning." Consistent with other usage in Part 60, the phrase

" permanent closure, or decontamination and dismantlement of surface facilities" is used instead of the statutory term " decommissioning."

Some of the most significant communications may consist of deter-minations made in the course of licensing proceedings. Under our rules of practice, parties on the service list in such proceedings are required to be served with notice of all relevant pleadings, decisions, orders, etc. Accordingly, the Commission will use this established procedure as the means for providing information regarding licer. sing actions.

S 60.62 Site review.

The Waste Policy Act establishes a structure for the involvement of States and affected Indian tribes. The proposed rule therefore provides explicitly for consultation with States and affected Indian tribes but omits mention of local governments. (However, the Commission anticipates, in light of the Waste Policy Act, see Sec.116(c)(1)(B)(iv),

42 U.S.C. 10136, that the States would establish appropriate procedures to address local government and citizen concerns.)

Since the concerns of the States and affected Indian tribes will be dealt with primarily under the statutory consultation and cooperation procedures, the Commission has eliminated reference to any consultation activities by NRC that are more appropriately and directly carried out by DOE under those procedures. Thus, consistent with the Waste Policy Act, questions concerning DOE's site characterization submissions should be directed to DOE for its consideration and response, and notification concerning NRC meetings or consultations with DOE should be provided by DOE. Notwithstanding these changes, however, it remains the policy of the Commission that consultation with interested parties with respect to site characterization should be encouraged. As now, information would be available routinely with respect to NRC's views on the progress of site characterization, on NRC procedures, and on the development of proposals for participation in license reviews.

O 04/25/84 26 Enclosure A

-,m - n -

. .. i , .

l [7590-01]

Although the Waste Policy Act does not provide formally for NRC i

activity prior to Presidential approval of an area for site characteri-zation, and this is noted in revised S 60.62, there will be coordination during the earlier stages of site screening and site characterization in accordance with the Procedural Agreement between NRC and 00E; special provisions have been made in that agreement for States and Indian tribes to receive notice and to attend NRC/00E meetings so as to enable them to engage knowledgeably, on an early and ongoing basis, in site character-ization reviews.

The opportunity to request that the Director consult with respect to the NRC review of site characterization activities is not limited to prospective host States. The extent to which a State may be affected by the prospective location would, of course, be a factor for the Director to consider in determining the staff resources that would be made avail-jt able for purposes of such consultation, l

l l $ 60.63 Particioation in license reviews.

This section is a substitute for the earlier SS 60.62-60.65.

Section 60.63 acknowledges, first of all, that State and local governments and affected Indian tribes may participate in license reviews as provided in the Commission's rules of practice. Local governments are mentioned in this context because they may have standing, apart from the State in which they are located, to participate in a licensing proceeding as a party or participate in a more limited capacity. See 10 CFR SS 2.714, 2.715(c).

The regulation retains a provision for a State or affected Indian tribe to submit a proposal to facilitate its participation in the review of a site characterization plan and/or license application. The existing I

requirement that proposals be submitted no later than 120 days after docketing of a license application has been eliminated; although early submissions are desirable, we can readily conceive of cases in which proposals submitted after review of a license application could be implemented in the mutual interests of the proposing entity and the Commission. The types of services or activities that NRC might consider 04/25/84 27 Enclosure A

..- - __. - - rri- c- e -_----e.-= =m--e-r---

[7590-01]

providing would include those educational or information services and related actions that are set out in existing S 60.62(d).

The Commission has omitted those portions of existing 9 60.62(c) that contemplate Commission funding of State work in support of the license review. In light of the Waste Policy Act, funding of such work to improve the State's capacity to review a license application is a responsibility of DOE and it is to be financed out of the Nuclear Waste Fund. We do not rule out the possibility that the NRC may contract with State governments on occasion for particular services that we may require in order to be able to discharge our statutory responsibilities effectively. The execution of such contracts would be carried out under established procurement procedures and would be subject to applicable limitations with respect to competitive bidding a'nd avoidance of conflicts of interest. See 41 CFR Chapter I (Federal Procurement Regulations). A further reason for handling such contracts under the general procurement regulations rather than Part 60 is that the criteria for approval of proposals (existing S 60.63, proposed S 60.62(d)) would be inappropriate when the Commission's purpose is to acquire services which it needs in discharging its own reviewing functions.

Considering this limitation of the scope of NRC activities under Subpart C, the requirement for gubernatorial approval of a State proposal has been eliminated as being unnecessary. The information required to be included in the proposal has also been modified to conform to the limitation of scope. The Waste Policy Act may have further limited the opportunities for states to receive funding from the NRC, the Commission is of the view that Congress intended that DOE should assume the Federal responsibility for activities of the types described in Sections 116 and 118 and that such activities should be financed out of the Nuclear Waste Fund rather than out of NRC appropriations.

Existing S 60.64, pertaining to participation of Indian tribes, has l

been incorporated in the substantive provisions applicable to States. '

The change has been made for editorial reasons and is not intended to 1

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affect the right of affected Indian tribes to participate like the States in the activities described in Subpart C.

Existing 5 60.65, dealing with coordination of multiple proposals, has been deleted. The Commission deems it unlikely that multiple proposals of the kinds considered eligible for acceptance under Subpart C would present any undue administrative difficulties; the criteria for approval of proposals (especially the finding of a " productive contribution" to the license review) would afford the Director adequate discretion to take into account the desirability of avoiding duplication.

S 60.64 Notice to States.

The Commission encourages the Governor and legislature of a State to jointly designate a single point of contact to receive notice and information from the Commission. This section provides for notice to such jointly designated nominees.

S 60.65 Representation.

Under the present rule, the signature of the Governor would serve to document the authority pursuant to which proposals were being submitted to the Commission. Submissions by Indian tribes were to be accompanied by documentation of the eligibility of the tribe and the authority of its representatives. Tnis section is designed to retain the principle of assuring that representatives are properly identified. With respect to States, a change is needed to reflect the fact that proposals will no longer need to be signed by the Governor. In the case of Indian tribes, the determination by the Secretary of the Interior that it is "affected" eliminates the need .for the Commission to be concerned with its eligibility.

ENVIRONMENTAL IMPACT This proposed rule is insignificant and nonsubtantive from the standpoint of environmental impact. Therefore, under the exemption set out in 10 CFR 51.5(d)(3), neither ar, environmental impact statement nor l

l I

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an environmental impact appraisal and negative declaration is required for this proposed regulation.

PAPERWORK REDUCTION ACT STATEMENT 1

Sections 60.62 and 60.63 of this proposed rule amend information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This rule will be submitted to the Office of Management and Budget for review and approval of the information collection requirements.

REGULATORY FLEXIBILITY ACT CERTIFICATION 4

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

605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule relates to the licensing of only one entity, the U.S. Department of Energy, which does not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act.

LIST OF SUBJECTS IN 10 CFR PART 60 High-level waste, Nuclear power plants and reactors, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Waste treatment and disposal.

i ISSUANCE For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, the Nuclear Waste Policy Act of 1982, and 5 U.S.C.

553, the Nuclear Regulatory Commission proposes to adopt the following amendments to 10 CFR Part 60.

04/25/84 30 Enclosure A

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PART 60 - DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTES IN GEOLOGIC REPOSITORIES

1. The authority citation for Part 60 continues to read as follows:

AUTHORITY: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs.10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); sec. 121, Pub. L.97-425, 96 Stat. 2228  ;

(42 U.S.C. 10141).

For the purposes of Sec. 223, 68 Stat. 958, as amended (42 U.S.C 2273), SS 60.71 to 60.75 are issued under Sec. 161, 68 Stat. 950, as amended (42 U.S.C. 2201).

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

S 60.2 Definitions.

As used in this Part --

"Affected Indian tribe" means an affected Indian tribe as defined in the Nuclear Waste Policy Act of 1982.

3. Section 60.10 [ Redesignated] $ 60.15.

4. Section 60.11 [ Removed].

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

$ 60.16 Site characterization plan required.

04/25/84 31 Enclosure A

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

S 60.17 Contents of site characterization plan.

The site characterization plan shall contain --

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

(1) A description of such area, including information on quality assurance programs that have been applied to the collection, recording, and retention of information used in preparing such description. I (2) A description of such site characterization activities, including the following --

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

(3) Plans for the decontamination and decommissioning of such area, and for the mitigation of any significant adverse environmental impacts caused by site characterization activities, if such area is determined unsuitable for application for a construction authorization for a geologic repository operations area; (4) Criteria, developed pursuant to section 112(a) of the Nuclear Waste Policy Act of 1982 (or in the case of a geologic repository that is not subject to the Waste Policy Act, such other siting criteria 04/25/84 32 Enclosure A

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l as may have been used by DOE), to be used to determine the suitability of such area for the location of a geologic repository; and (5) Any other information which the Commission, by rule or order, requires.

(b) A description of the possible waste form or waste package for the high-level radioactive waste to be emplaced in such geologic reposi-tory, a description (to the extent practicable) of the relationship between such waste form or waste package and the host rock at such area, and a description of the activities being conducted by DOE with respect to such possible waste form or waste package or their relationship; and (c) A conceptual design for the geologic repository operations area that takes into account likely site-specific requirements.

S 60.18 Review of site characterization activities.*

(a) The Director shall cause to be published in the Federal Register a notice that a site characterization plan has been received from DOE and that a staff review of such plan has begun. The notice shall identify the area to be characterized and the NRC staff members to be consulted for further information.

(b) The Director shall make a copy of the site characterization plan available at the Public Document Room. The Director shall also transmit copies of the published notice of receipt to the Governor and legislature of the State in which the area to be characterized is located and to the governing body of any affected Indian tribe. In addition, the Director shall make NRC staff available to consult with States and affected Indian tribes as provided in Subpart C of this Part.

-In addition to the review of site characterization activities specified in this section, the Commission contemplates an ongoing review of other information on site investigation and site characterization, in order to allow early identification of potential licensing issues for timely resolution. This activity will include, for example, a review of the environmental assessments prepared by DOE at the time of site nomination.

A procedural agreement covering NRC-DOE interface during site investiga- >

tion and site characterization has been published in the Federal Register. l 48 FR 38701, August 25, 1983.  !

04/25/84 33 Enclosure A 1

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(c) The Director shall review the site characterization plan and prepare a site characterization analysis with respect to such plan. In the preparation of such site characterization analysis, the Director may invite and consider the views of interested persons on DOE's site characterization plan and may review and consider comments made in connection with public hearings held by DDE.

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

These comments shall include either a statement that the Director has no objection to the DOE's site characterization program, if such a statement is appropriate, or specific objections with respect to DOE's program for characterization of the area concerned. In addition, the Director may make specific recommendations pertinent to DOE's site characterization program.

(e) If DOE's planned site characterization activities include onsite testing with radioactive material, the Director's comments shall include a determination, if appropriate, that the Commission concurs that the proposed use of such radioactive material is necessary to provide data for the preparation of the environmental reports required by law and for an application to be submitted under S 60.22 of this part.

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

(g) During the conduct of site characterization activities, DOE shall report not less than once every six months to the Commission on the nature and extent of such activities and the information that has been developed and on the progress of waste form and waste package research and development. The semiannual reports shall include the results of site characterization studies, the identification of new issues, plans for additional studies to resolve new issues, elimination of planned studies no longer necessary, identification of decision points reached and modifications to schedules where appropriate. DOE shall also report its progress in developing the design of a geologic repository operations 04/25/84 34 Enclosure A

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l area appropriate for the area being characterized, noting when key design parameters or features which depend upon the results of site characterization will be established. Other topics related to site characterization shall also be covered if requested by the Director.

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

(i) The Director may comment at any time in writing to DOE, expressing current views on any aspect of site characterization. In particular, such comments shall be made whenever the Director, upon review of comments invited on the site characterization analysis or upon review of DOE's semiannual reports, determines that there are substantial new grounds for making recommendations or stating objections to DOE's site characterization program.

(j) The Director shall transmit copies of the site characterization analysis and all comments to DOE made by him under this section to the Governor and legislature of the State in which the area to be characterized is located and to the governing body of any affected Indian tribe. When transmitting the site characterization analysis under this paragraph, the Director shall invite the addressees to review and comment thereon.

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

(1) The activities described in paragraphs (a) through (k) above constitute informal conference between a prospective applicant and the staff, as described in S 2.101(a)(1) of this chapter, and are not part of a proceeding under the Atomic Energy Act of 1954, as amended. Accord-ingly, neither the issuance of a site characterization analysis nor any other comments of the Director made under this section constitute a commitment to issue any authorization or license or in any way affect the authority of the Commission, the Atomic Safety and Licensing Appeal Board, Atomic Safety and Licensing Boards, other presiding officers, or the Director, in any such proceeding.

04/25/84 35 Enclosure A

• L.~ .> k~' ..

[7590-01]

6. Subpart C is revised to read as follows:

SUBPART C - PARTICIPATION BY STATE GOVERNMENTS AND INDIAN TRIBES S 60.61 Provision of information.

(a) The Director shall provide to the Governor and legislature of any State in which a geologic repository operations area is or may be located, and to the governing body of any affected Indian tribe, timely and complete information regarding determinations or plans made by the Commission with respect to the site characterization, siting, develop-ment, design, licensing, construction, operation, regulation, permanent closure, or decontamination and dismantlement of surface facilities, of' such geologic repository operations area.

(b) For purposes of this section, a geologic repository operations area shall be considered to be one which "may be located" in a State if the location thereof in such State has been described in a site characterization plan submitted to the Commission under this part.

(c) Notwithstanding paragraph (a), the Director is not required to distribute any document to any entity if, with respect to such document, that entity or its counsel is included on a service list prepared pursuant to Part 2 of this chapter.

(d) Copies of all communications by the Director under this section shall be placed in the Public Document Room, and copies thereof shall be furnished to 00E.

S 60.62 Site review.

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

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

(c) Consultation under this section may include:

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

04/25/84 36 Enclosure A

~m v - --+

[7590-01]

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

(3) Cooperation in development of proposals for State partici-pation in license reviews.

S 60.63 Participation in license reviews.

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

(b) In addition, whenever an area has been approved by the President for site characterization, a State or an affected Indian tribe may submit to the Director a proposal to facilitate its participation in the review of a site characterization plan and/or license application.

The proposal may be submitted at any time and shall contain a description and schedule of how the State or affected Indian tribe wishes to partici-pate in the review, of what services or activities the State or affected Indian tribe wishes NRC to carry out, and how the services or activities proposed to be carried out by NRC would contribute to such participation.

The proposal may include educational or information services (seminars, public meetings) or other actions on the part of NRC, such as establishing additional public document rooms or employment or exchange of State personnel under the Intergovernmental Personnel Act.

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

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

(1) The proposed activities are suitable in light of the type and magnitude of impacts which the State or affected Indian tribe may j bear; 04/25/84 37 Enclosure A

[7590-01]

(2) The proposed activities (i) will enhance communications between NRC and the State or affected Indian tribe, (ii) will make a productive and timely contribution to the review, and (iii) are authorized by law.

(e) The Director will advise the State or affected Indian tribe whether its proposal has been accepted or denied, and if all or any part of proposal is denied, the Director shall state the reason for the denial.

(f) Proposals submitted under this section, and responses thereto, shall be made available at the Public Document Room.

S 60.64 Notice to States.

If the Governor and legislature of a State have jointly designated on their behalf a single person or entity to receive notice and information from the Commission under this part, the Commission will provide such notice and information to the jointly designated person or entity instead of the Governor and legislature separately.

S 60.65 Representation. -

Any person who acts under this subpart as a representative for a State (or for the Governor or legislature thereof) or for an affected Indian tribe shall include in his request or other submission, or at the request of the Commission, a statement of the basis of his authority to act in such representative capacity.

Dated at Washington, D.C., this day of , 1984.

For the Nuclear Regulatory Commission.

Samuel J. Chilk Secretary of the Commission 04/25/84 38 Enclosure A

M -

0 4 ENCLOSURE B 1

e

1_c, 4

Staff Efforts to Obtain States' Views on the Proposed Revisions to 10 CFR Part 60 l

t On August 19, 1983, a meeting was held between the NRC staff and the representatives of first and second tier potential host States for high-level waste geologic repositories. At this meeting, an earlier draft of the

proposed revisions to 10 CFR Part 60 dealing with site characterization and the participation of States and Indian tribes was distributed. In introducing the proposed revisions, the NRC Staff explained that the guiding principles a behind the revisions.were

a) there should be no substantial change in the principle of NRC relations with the States and Indian tribes; b) the revisions should reflect those changes which the Waste Policy Act calls upon NRC to make, and c) credibility demands that the regulations conform to the Waste Policy Act. An alternative approach, which proposed only minimal changes to 10 CFR

Part 60 to bring definitions of terms into conformity with the Waste Policy Act,

) was also presented. States were asked to review the approaches and forward

! coments to NRC as soon as possible.

i While State representatives had not had enough tine for substantial con'sidera-tien of the approaches, some initial reactions were expressed: States indicated i a strong preference for fomally established means for participation; they were concerned about any reduction in specificity and greater reliance on informal procedures; they expressed belief that informal procedures are subject to unilateral changes through personnel and policy shifts, and that State oppor-tunities for interaction with NRC could be reduced thereby. In connection with i

this belief, States felt that not being able to coment formally on an NRC draft site characterization analysis would reduce the extent of State participation.

, The NRC staff's response to these points was to urge States to identify to NRC those opportunities for participation which States felt would be lost as a result of the revisions. In reference to the draft site characterizaticn analysis, the staff pointed out that there were other, more effective, means i

1 ENCLOSURE B

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

by which States could influence the site characterization process than by formal comments on an NRC draft site characterization analysis.

As a result of the meeting, the staff made changes to the proposed revisions to accommodate State concerns where possible. The staff worked through the National Governor's Association to encourage detailed coments from the States.

Letters have been received from Texas and Nevada transmitting coments. The Texas letter included specific proposed changes; an analysis of the Texas proposals, and the Staff's response, is contained in this enclosure. The letter from Nevada characterizes the earlier draft as an attempt to relegate the states' formal role in the license review and the site characterization plan analysis to the discretion of the Director; the subsequent revisions are also responsive to these Nevada concerns.

Copies of the letters from Texas and Nevada are also included in this enclosure.

[ Analysis of Texas proposal on procedural amendments]

1. Site characterization analysis Original proposal: Director reviews the site characterization plan and prepares a site characterization analysis. He "may invite and consider the views of interested persons and he may review and consider coments made in connection with public hearings held by DOE."

Texas recomendation: Director reviews the site characterization plan and prepares a site characterization analysis. In preparing the site characterization analysis, the Director will solicit coments; and he will review and consider coments received in response to such solicita-tion as well as coments and questions submitted to DOE (and DOE responses thereto) in the public hearings on the site characterization plan. The Director's response to coments would be included in the site characterization analysis. [Similarily, Nevada recomended that the 2 ENCLOSURE B

O .

Director should formally request cements on the Site Characterizaticn Plan directly from the states and public and should formally consider coments received.]

Revised proposal: The procedure contained in the original proposal is retained. In addition, the Director would invite States and tribes to coment on the site characterization analysis and the Director shall express further current views to DOE, upon review of coments received, if he determines that there are substantial new grounds for making recomendations or stating objections to DOE's site characterization program.

Rationale: The staff views the NRC review process as an ongoing one in which information is provided to NRC, and NRC coments are made to DOE, under the provision of the NRC/ DOE Procedural Agreement, at the earliest practical occasion. There will be ample opportunity for the States to participate in this review process and to make their concerns known both to DOE and NRC. By the time a site characterization pian is submitted, it is expected that relevant issues would largely have been identified, and that the States would have been able to express views or questions on matters of particular concern. NRC has a responsibility then to make a timely response to the site characterization plan. Initiating a formal comment process is unnecessary because of the opportunity for States to have raised issues all along. Further, it would be undesirable because delays might result that could make the site characterization analysis outdated before it was even published because of the generation of new data during the review process.

States may find a site characterization analysis to have been inadequately responsive to their concerns. To deal with this, the staff now proposes that the Director will invite and consider coments, and will make his views known to DOE in the light of such coments; but that the solicita-tion of comments would be made at the time the site characterization analysis is published rather than in advance.

3 ENCLOSURE B

2. Consultation Original proposal: Director shall endeavor, to the extent appropriate and practicable, to fulfill any written request for consultation with respect to any aspect of NRC's review of site characterization activities.

Texas recommendation: Director shall make staff available to keep States and tribes informed of his views on the progress of site characterization and notify them of further NRC meetings with DOE. Consultation will include review of NRC procedures and cooperation in developing proposals for State participations on license reviews. NRC will include response to State concerns in the site characterization analysis.

Revised proposal: Director shall make staff available for consultation including: (1) keeping parties informed of Director's views on progress of site characterization, (2) review of NRC regulations, and (3) cooperation in development of proposals for participation in license reviews.

Rationale: The staff believes that some flexibility needs to be reserved so as to assure that NRC's censultation activities are compatible with the statutory consultation and cooperation process. The original proposal accomplished this, but it failed to express adequately the intention to maintain good communications. To correct this deficiency, the revised proposal largely adopts the Texas recommendation. The principal substantive differences are the omission of the reference to the site characterization analysis (for the reasons already discussed) and the omission of the provision regarding notification of meetings with DOE (more appropriately a DOE responsibility under the Waste Policy Act).

3. Proposals for State / Indian participation Original proposal: Proposals may be submitted for NRC to provide services, or take other action, for the purpose of enhancing its communications with States / tribes and contributing productively to the 4 ENCLOSURE B

license review. NRC will respond, with an explanation for any proposal (or part thereof) which has been denied.

Texas recommendation: Proposals may be submitted for State participation in the review of DOE submissions. Proposals will describe issues which State wishes to review and information which State plans to submit to NRC.

Proposals will be approved, if not prohibited by law, if they will enhance comunications between NRC and the States [or tribes] and contribute productively to the NRC review. NRC will provide explanation for any pro-posal (or part thereof) that is rejected, with the party aggrieved by such rejection afforded a right of appeal to the Comission. [Nevadaurged retention of the fomal role for States in the license review process as described in existing Part 60.]

Revised proposal: Proposals may be submitted to facilitate State / tribal participation in the review of DOE submissions. Preposals will describe how the State / tribe wishes to participate, what services or activities the State / tribe wishes NRC to carry out, and how the NRC services,or activities would contribute to State / tribal participation. Proposals will be approved, if authorized by law, if the proposed activities are suitable in light of impacts on the State / tribe, are not eligible for DOE assistance under the Waste Policy Act, will enhance comunications between NRC and the State / tribe, and will contribute productively to the license

> review. NRC will provide an explanation for any proposal (or part 4

thereof) that is rejected.

Rationale: The Texas recomendation would retain more of existing Subpart C than the original staff proposal would have. The revised proposal largely accomodates the Texas approach. However, one qualifi-cation which the staff has added, taking the new law into account, is that the eligibility for DOE assistance under the Waste Policy Act would be a i factor bearing upon the availability of assistance from NRC under Subpart C. Also, the staff declined to include an' express right of appeal to the Comission in case a State / tribal proposal is rejected; the staff proposal is consistent, in this regard, with existing Subpart C.

l

! 5 ENCLOSURE B I

a

'WM DOCKET CONTROL

~ CENTER i

OFFICE OF THE GOVERNOR gggg@

MARK WHITE . STATE CAPITOL sovensson AUSTIN, TEXAS 78711

- September 9,1983..J.1 .. Rccord File WM Fro lcc!

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1. A 'Dockat tio.-

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- Mr. Robert Browning "

Distrib; tion: ped Nuclear Regulatory Comission scg O TT BM Washington, D.C.

. ,gg g 20555 ,

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(ha to WM. G23 $3) to Me o. c RE: Procedural Amendments to Nuclear Regulatory Comission 10 CFR 60,

] Disposal of High-Level Radioactive Wastes in Geologic Repositories

Dear Mr. Browning:

j We have reviewed the draft materials distributed to state representatives 1 at the meeting on August 19, 1983, at Dallas, and evaluated the various pro-posals relative to our interests in participating in Nuclear Regulatory Com-j mission activities and decisions as they relate to disposal of high-level nuclear wastes in geologic repositories. We have also reviewed the existing appropriate sections of 10 CFR 60 to detemine whether amendments are needed to have the rule conform to provisions of the Nuclear Waste Policy Act of 1982. We have determined that, while some minimal level of amendment to procedure is needed to achieve conformity with the Act, further amendment may be appropriate to enhance the efficiency and maintain the substance of an assured opportunity for interaction between an interested state and NRC.

We have chosen as a fomat for a response to your request for coment, a revision, in rule form, of the appropriate sections of 10 CFR 60. You i

will find this draft revision attached. Much of it will be familiar to J

you, as we have drawn heavily from sections of the existing 10 CFR 60, as well as from the two draft proposals presented in the Dallas meeting. Our focus was largely on Section 60.11 and Subpart C of the rule, as was yours,

~

but you will note some major conceptual variation from your 8/17/83 Draft.

I think you will find the proposal, overall, to be supportive of sqy state-

ment in the Dallas meeting to the effect that we and other states are 3

,. seeking an assured access to NRC activities and decisions that affect us as potential host states for a high-level nuclear waste repository. We also want that access to be one that does not result in an unnecessary burden

! on the NRC or the' states, yet will result in a full and constructive rela-tionship between the parties.

't i

e

_ _ _ _ __ , _ . . . . _ _ _ . _ _ _ , , _ _ _ _ _ _ _ , , _ _ _ , _ _ _ , . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _.,._-_-...,...._.,,.._____-.__m._, _ . _

g .

Mr. Robert Browning September 9, 1983 .

Page 2 You will note in the attached proposed rule amendments that we have developed a procedure- that removes the existing requirement for NRC to write and submit for public review a Draft Site Characterization Analysis.

While we prefer the' draft SCA process now standing in 10 CFR 60, we also recognTze th.e advisory ~ nature of the SCA and the need to expedite its transmittal to DOE. Thus we view our proposal to contain an acceptable alternative process by which substantially the same results can be achieved by NRC and the states, but in a manner that is lest consumptive of time and resources on the part of all parties.

Our pr posed chan'ges to Subpart C, we think, preserve the opportunity for formal interaction between parties, while establishing a more permissive means of achieving that interaction. In addition, we have attempted to include only those provisions of the existing Subpart C that seem appro-priate in light of the provisions of the Nuclear Waste Policy Act. ,

We appreciate the opportunity to respond to your draft proposals regarding NRC Rule 10 CFR 60. If you have questions or comments regarding our proposal please do not hesitate to contact me. I will be happy to discuss this matter further with you and your staff, at your convenience.

Sincerely, M/

Steve Frishman, Director Nuclear Waste Programs Office SF:dz -

Enclosure cc: Mr. Holmes Brown, National Governor's Association l

h

State of (exas, duelear Waste Programs Office - S;ptember 9,1983 ,

10 CFR PART 60 - DISPOSAL OF HIGH-LEVEL WASTES IN GEOLOGIC REPOSITORIES l

1. The Authority citat3cn for Part 60 continues to read as follows: l AUTHORITY: Secs. 51, 53, 62, 63, 65, 81,161,182,183, 68 Stat. 929, 93b,932,933,935,948,953,954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, .206, 88 Stat.

~

1244, 1246 (42 U.S.C 5842, 5$46); secs. 10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec.102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); sec.121, Pub. L.97-425, 96 Stat.

2228 (42 U.S.C. 10141).

2. Section 60.2 is revised by inserting, in the appropriate alphabetical location, a definition of the term "affected Indian tribe."

As revised, 560.2 reads:

60.2 Definitions.

As used in this part --

"Affected Indian tribe'" means an affected Indian tribe as defined in the Nuclear Waste Policy Act of 1982.

3. Section 60.2 is further amended by deleting the definitions of " Indian tribe" and " Tribal organization." -

4. Section 60.10 is redesignated as 960.15.

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5. Section 60.11 is deleted. . .. . ,

6. Sections 60.16 through 60.18 ar,e added to read as follows:

560.16 Site characte'rization plan required.

Before proceeding to sink shaf ts at any area which has been approved by the Presidentforsitecharacterization,DOEshallsubmittotheDirector,for review and comment, a site characterization plan for such area.

$60.17 Contents of site characterization plan.

The site characterization plan shall contain:

4 (a) A general plan for site characterization activities to be conducted at the area to be characteri. zed, which general plan shall include:

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

(2) A description of such site characterization activities.

including the following:

)

(i) The extent of planned excavations; (ii) Plans for any onsite testing with radioactive or l nonradioactive material; (iii) Plans for any investigation activities that may affect the capability of such area to isolate -

high-level radioactive waste; (iv) Plans to control any adverse impacts from such site characterization activities that are 1 important to safety or that are important to wasta (en1s*(na* and

. .. . . ~ _ .

(v) Plans to apply quality assurance to data .. .

collection, recording, and retention. -

(3) Plans for the permanent closure, decontamination, and disman - i tiement of surface facilities and for the mitigation of any -

~ ~ .. significant adverse environmental impacts caused by site characterization activities, if such area is determined unsuitable for application for a construction authorization for a geologic repository operations area; (4) Criteria, developed pursuant to section ll2(a) of the Nuclear Waste Policy Act of 1982, to be used to determine the su'i ta-bility of such area for the location of a geologic repository; and (5) Any other information which the Comission, by rule or order, ,

i requires.

(b) A description of the possible waste form or waste package for the high-level radioactive waste to be emplaced in such geologic repository, a description (to the extent practicable) of the relationship between such waste form or waste package and the host rock at such area, and a description of the activities t

being conducted by DOE with respect to such possible waste form or waste package or such relationship; and (c) A conceptual design for the geologic repository operations area that takes into account likely site-specific requirements.

$60.18 Review of site characterization activities .

(a) The Director shall cause to be published in the Federal Register a notice that a site characterization plan has been received from DOE and that a staff review of such plan has begun. The notice

4 ,

b . .,

shall identify the area to be characterized and the NRC staff members to be consulted for further information.

ib) ,,The Director shall make a copy of the site characterization plan available at the Public Document Room. The Director shall also

, transmit copies of the published notice of receipt to the Governor and legislature of the State in which the area to be characterized is located and to the governing body of any affected Indian tribe.

1 (c) (1) The Director shall review the site characterization plan and prepare a site cha'racterization analysis with respect to such i

plan. '

(2) The Director shall, in the Federal Register notice provided for in Section 60.18(a), request comment from affected states, Indian tribes, and interested persons which he will review and consider in preparing the site characterization analysis and additional comments and recomendations.

(3) The Director shall also review and consider coments and questions submitted in the DOE public hearings held according to Section 113(b)(2)(8) of the Nuclear Waste Policy Act of

1982, and the Director shall review and consider DOE responses to such questions and coments in his preparation of the site characterization analysis and additional coments and recom-mendations. .

4 (d) The Director shall provide to DOE his site characterization analysis, together with a sumary of coments received under Section 60.18(c)(2) and his response to those coments, and such additional comments as

may be warranted. Such comments shall include either a st&tement

3 thwit the Director has no objection to the DOE's site characteri-zation program, if such a statem*ent is appropriate, or specific ' -

objections with respect to DOE's program for characterization of the area concerned.

~ ' In addition, the Director may make specific I

\

recommendations pertinent to DOE's site characterization program.

(e) If DOE's planned site characterization activitie,s include onsite testing with radioactive material, the Director's comments shall include a determination, if appropriate, that the Commission concurs that the proposed use of su'ch radioactive material is .

necessary to provide data for the preparation of the environmental reports required by law and for an application to be submitted )

under560.22ofthispart. -

(NOTE: 60.22 appears to need revision to support Subsection (e))

(f) The comments of the Director' under this section shall not consti-tute a comitment to issue any authorization or license or in any way affect the authority of the Commission, the Atomic Safety and i Licensing Appeal Board, Atomic Safety and Licensing Boards, other presiding officers, or the Director, in any proceeding under Subpart G of Part 2 of this chapter. '

(g) During the conduct of site characterization activities, DOE shall report not less than once every six months to the Commission on .

.the nature and extent of such activities and the information that has been developed and on the progress of waste form and waste -

package research and development. The semlannual reports shall include the results of site characterization studies, the iden-tification of new issues, plans for additional studies to resolve

a .

new issues, elimination of planded studies no longer necessary', '

identification of decision points reached and modifications to schedules. where appropriate. DOE shall also report its progress in developing the design of a geologic repository operations

- area. appropriate for the area being characterized, noting when key design parameters or features which depend upon the results of site characterization will be established. Other topics related to site characterization shall also be covered if requested by the Director. ,

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

(i) The Director may comment at any time in writing to DOE, expressing current views on any aspect of site characterization. Comments received in accordance with this Section and Section 60.64 shall be considered by the Director in formulating his views.

(j) The Director shall transmit copies of the site characterization analysis including the comment summary and response required under Section 60.18(d), all comments to DOE made by him under

,this section to the Governor and legislature of the State

~

in which the area to be characterized is located and to the governing body of any affected Indian tribe.

. ~7-(k) All correspondence between DOE and the NRC under this section, . .

including the reports described in paragraph (g), shall be placed in the Public Document Room. -

l l

D) .The activities described in paragraphs (a).through (k) above constitute informal conference between a prospective applicant and the staff, as described in 52.101(a)(1) of this chapter, and are not part of a proceeding under the Atomic Energy Act of 1954, as amended.

9 0

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10CFR60 SUBPART C-PARTICIPATION BY STATE' GOVERNMENTS AND IN Section 60.61. Provision of Infonnation (a) The Director.shall provide to the Governor and Legislature of any State containing a site which has been approved for site characterization, and to the governing body of any affected Indian tribe, timely and complete information regarding determinations or plans made by the conunission with respect to the site characterization, siting, development, design, licens-ing construction, operation, regulation, permanent closure,, decontamination, and dismantlement of surface facilities of any proposed repository at l

such site.

(b) Notwithstanding paragraph (a), the Director is not required to distribute any document to any entity if, with respect to such document, that entity or its counsel is included on a service list prepared pursuant to part 2 of this chapter.

(c) Copies of all comunications by the Director under this section shall be placed in the Public Document Room and copies thereof shall be furnished to D0E.

Section 60.62 Site Review (a) Upon, approval of a site for site characterization and upon request of a state, or Indian tribe, the director shall make available NRC staff to ~

consult with representatives of states and Indian tribes to keep them informed of the Director's view on the progress of site characterization en

~

i

-- r-,,, .- , , - - . - , - - - - -

_g.

and to notify them of any subsequent meetings or further consultations s

with the Department of Energy.

(b) Requests for consultation shat 1 be made in writing to the Director.

(c) Should the State, Indian tribe, or other interested person direct l ,

. questions or comments in accordance with section 60.18(c)(2) to NRC concerning the preparation of the site characterization analysis, the 3 ,

Director shall review and consider such coments and questions in the preparation of the site chara'cterization analysis. In addition, he shall sumarize and respond to such coments and questions and provide such sumary and response to DOE in accordance with Section 60.18(d). .

(d) Consultation under this section may include, among other things, a review of applicable NRC regulations, licensing procedures, protential schedules, and the type and scope of State activities in the license review and site characterization plan review. In addition, staff shall be made available to cooperate with the State in developing proposals for participation by the State.

Section 60.63 Filing of proposals for State Participation (a) State and local governments and affected Indian tribes may participate in license reviews as provided in Subpart G of Part 2 of this chapter.

(b) States in which sites have been approved for site characterization may i

submit to the Director a proposal for State participation in the review of the site characterization activity reports and/or license application.

A state's proposal to participate may be submitted at any time prior to docketing of an application or up to 120 days thereafter.

(c) Proposals for-participation under this Subpart shall be made in writing l

l

.and signed by the Governor of the State or the official designated by

~

State law or by joint designation of the governor and legislature.

~

(d) Items which may be presented for consideration, in whole or in part, subject to revision by the State, in a proposal for State participation include but are not limited to: .

(1) A general description of how the State wishes to participate in the review and a preliminary identification of issues which it wishes to revie'.

w (2) A preliminary description of material and information which the State plans to submit to the NRC staff for consideration in the review.

(3) Services or actions which the State may request.such as seminars, public meetings, additional Public Document Rooms, or employment or exchange of State personnel under the Intergovernmental Personnel Act.

Section 60.64 - Approval of Proposals (a) The Director and a representative of the State shall jointly arrange for meetings between the representatives of the State ar.d the NRC staff to l

9

discuss any proposal submitted under Section 60.63(b), with the primary .

goal of identifying any modifications that may contribute to the effective participation by the State.

(b) The Director shall approve all or any part of a proonsal as it may

.be modified through the meetings described above if it is determined that the proposed activities:

(1) will enhance communications between NRC and the State, (2) will contribute productively to the license review and/or site characterization activity report reviews, and (3) are not prohibited by law.

(c) The decision of the Director shall be transmitted in writing to the Governor or designated official of the originating State. A copy of the decision shall be made available at the Public Document Room. If e all or any part of a proposal is rejected, the decision shall state the reason for the rejection.

(d) The State originating the proposal may appeal the rejection of all or any part of a proposal to the Commission.

(e) A cop'y of all proposals received shall be made available at the Public Document Room.

e .,

Section 60.65 Participation by Indian Tribes (N0 CHANGES SUGGESTED IN THIS SECTION)

Section 60.66 N'otice to States. If the Governor and Legislature of a State have jointly designated on their behalf a single person or entity to receive notice and information from the Commission under this part, the Commission will provide such notice and information to the jointly designated person or entity instead

. of the Governor and Legislature separately.

Section 60.67 Coordination i

The Director may take into account the desirability of avoiding duplication of effort in taking action on multiple proposals submitted pursuant to the provisions of this Subpart to the extent this can be ' accomplished without substantial

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prejudice to the parties concerned.

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I wM 00glHTlROL h 83 SEP 22 P2: 9 DEPARTMENT OF MINERALS 400 W. King Street. Suite 100 Carson City. Nevada 89710 (702) 885-5050 l September 14, 1983 n'M ncord File W.1 Troicct Mr. Robert Browning, Acting Director / C S. 2. Doch! W.

Division of Waste Management FOR Nuclear Regulatory Commission LPOR MS-623-FS DistriStica: M #

Washington, D.C. 20535 gg - j ys HM N#

geten te M1. d3.SS) WMeer Ci

Dear Mr. Browning:

I am writing to express concern on behalf of the State of Nevada regarding the consideration of the Commission to re-open rulemaking on 10 CFR 60. While the State recognized tliat some semantical revi-sions may be necessary to conform to the language of the Nuclear Waste -

Policy Act of 1982, the draft proposed rule that was discussed at our

, meeting in Dallas, Texas causes concern in two areas.

First, the State would be concerned with efforts by the Commission that attempt to diminish the formal role for states in the license re-view process as described in the current rule. It would seem that the Commission's intent in the draft proposed rule is to relegate the states' roles in this process to a discretionary status rather than the more formalized role that-exists currently.

~

Secondly, the State would be concerned should the Commission elimi-nate r.he opportunity for the states and public to formally submit comments to the Commission on DOE's site characterization plan, and to have those comments formally considered. Although the Act provides for public comment to DOE on the aforementioned site characterization plan and associated public hearing, the State of Nevada believes that the Director should formally solicit comments directly from the states and public, independent of the DOE process.

In summary, the State of Nevada would be quite concerned with the elements of the draft proposed rule that would relegate State partici-pation in the license review process and in the site characterization plan analysis'to a role that is left to the Director's discretion.

While the discussion in the draft proposed rule focuses upon areas where a duplicative effort with DOE might cccur, I believe that the uncertain-ties inherent in geologic waste disposal warrant the risk and cost of such duplication should it occur.

. . . .x - -

s tir. Robart Browning Pegs Two

, - September 14, 1983 l

I want to thank you for providing the State of Nevada the oppor- )

tunity to comment on this draft proposed rule and hope that you have '

found my comments useful.

Should you haire any questions, please do not hesitate to contact me.

cerely,

/sWCRobert R. Loux Nuclear Waste Evaluation Program RRL:sk l 9

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&4 " w Op 4 6 9 4 ENCLOSURE C

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Staff Efforts to Obtain Views of Public Interest Groups on the Proposed Revisions to 10 CFR Part 60 One informal comment letter was received from David Berick of the Environ-mental Policy Institute, following the meeting in Dallas with State representa-tives (copy attached). On September 29, 1983, a meeting was held with Mr.

Serick, B. Yaeger, Sierra Club, and B. Finamore, NRDC, to discuss the concerns of the Public Interest Groups regarding the proposed revisions to Part 60 that were discussed in the Dallas briefing.

In the discussions, the concerns of the Public Interest Groups (Groups) centered primarily around the proposed del'etion of required infomation about the site selection process from the content of the Site Characterization Plan. (Under the Waste Policy Act, this type of infomation now appears in the Environmental Assessments (EAs) required by the statute at the time sites are nominated.)

The Groups saw the review of the site selection process in the Site Character-ization Plan as'an opportunity to examine how DOE selected the three sites to be characterized. The NRC staff explained that it believed reviewing these matters in the Site Characterization Plan (SCP) was too late in the process, since EAs would have been written, public meetings to discuss site selection would have been held, and the recommendation of sites to be characterizated would be reviewed and approved by the President prior to submittal of the SCP to NRC. The staff described its intent to review and comment on the draft EAs so that its views on the quality of the data available and identification of the potential licensing issues would be known early enough in the site selection process so that they could be considered when siting decisions were made by DOE and the President. The staff explained that these earlier steps specified in the Waste Policy Act were what it had in mind when it stated that the SCP was submitted at a later point in the schedule.

As a result of these discussions a footnote has been added to the rule which states that NRC will review the environmental assessments prepared by DOE.

Amendments to 10 CFR 51 dealing with NEPA issues will be proposed in the near  ;

future and will consider issues raised in the Berick letter.

i 1 ENCLOSURE C l

r Environmental Policy Institute 317 finnsylvania Ave. S.E. Washington. D.C. 20003 202/544 2600 September 21, 1983

Dear Bob,

Sorry for the delay in getting this over to you and for some of the strong language, but I have gone

. over the proposed revision several times and think that there are some very serious problems with what- .

has been proposed and the way it has been proposed.

Sincerely, .  ;

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, To: Interested Parties .

From: David Berick, Environmental Policy Institute '

Re: Comments on Draf t NRC Revisions to NRC High-Level Waste Li. censing Regulations (10 CFR Part 60)(8/17/ 83 NRC Draf t) l A charitable interpretation of the 8/17/83 draf t of revisions

to Part 60 would be that the staff has greatly exaggerated the

. . differences between the Nuclear Waste Policy Act(NWPA) and the current version of Part 60 and has proposed changes that do not accurately reflect either the intent of the Nuclear Waste Policy Act or the conduct of the federal nuclear waste program in practice. The proposed changes could also be read to suggest a *

, deliberate and drastic effort to limit the scope and independence of NRC's authority and review of the DOE HLW program. Although the draft suggests that the revisions are based on the past three years of history with the federal waste program, one might conclude that there are some in the NRC staff who have a distinctly revisionist view of that history and wish to i circumvent the type of solid, independent review conducted by the NRC staff of the DOE's program notably of the' Hanford SCR.

Issue 1) Exclusion 2f E]2A Considerations The draf t revisions propose to e.xclude, and def er until a later procedure, the incorporation of NEPA considerations. Taken on its face, this is a serious flaw. Part 60, as now constructed, strongly reflects the need by the Commission for information on site suitability and on alternative sites to carry out its NEPA responsibilities. In promulgating Part 60, the

' Commission recognized that its ability to make a NEPA determination would rely heavily on the suitability of DOE's

! candidate sites. The Commission also recognized that consideration of alternatives and the suitability of DOE's sites "might indeed be appropriate, where necessary or desirable to protect health."(46 FR 13 97 2, 2/25/ 81) . Those responsibilities are not diminished, in any way, by the Nuclear Waste Policy Act (NWPA) . Among other considerations, Section 114(f) of the NWPA reaffirms NRC's NEPA and health and safety responsibilities under both the Atomic Energy Act and the Energy Reorganization Act.

It is also important to note, that under the NWPA, compliance with NEPA constitutes a limitation for site characterization activities. Section 113(c) clearly restricts DOE from carrying out any activities during characterization not required "for evaluation of the suitability of such candidate site for an application to be submitted to the Co m m i s s i o n . . .a n'd for compliance with the National Environmental Policy Act of 1969(42 1

- . _ _ - _ _ - _ . _ . ___L__-_,.___.,.-...,-- , , _ _ _ _ _ _ .

i . .

U.S.C. 43 21 et seq.)" NRC must review this issue in the site characterization plan and it must also be certain that the DOE program leading to application addresses the Commission's need to I

fulfill NEPA. The Commission must also concur in the use

, radioactive materials as part of those activities. It is not .

j possible, in my view, to separate these NEPA-related aspects of i

site characterization .directly aimed at fulfulling DOE's NEPA and NWPA responsibilities from the NRC's own NWPA and NEPA review

authorities.

, As a result, I am lead to conclude that th'e NRC proposal to

, exclude NEPA considerations from a revised Part 60 is an improper

, and inappropriate procedure. I must also point-out that the exclusion of NEPA related issues, such as site suitability and 4

alternative sites, is used to justify a proposed limitation of i the scope of the site characterization plan and the Commission's

! review of DOE site characterization activities. The proposal sets

up a Catch-22 situation wherein NEPA issues cannot be considered ,

! because they are deferred to a, future rulemaking while at the

, same time the Commission does " consider" such issues and deletes '

them altogether from the Commission's Part 60 licensing regulations; a decision that cannot be addressed.

As el.aborated below, the exclusion of NEPA considerations at i the site characterization stage, coupled with a decidedly I i erroneous enn:1usion that the NWPA requires submission of the

site cbsracterization plan at a later time in the repository i sitir.g schedule than the current version of Part 60, leads to a j

drastic limitation of NRC's independent review of DOE's program at the site characterization stage. The proposed revision would

drastically reduce the scope of th'e site characterization plan

and NRC review specifically in the area of site suitability and i alternatives issues.

i

! (Note: It is ironic that the authors of the proposed revision have constructed an extensive, if somewhat questionable, argument for the revision of Part 60 based on the statutcry interpretation I

of the NWPA and "futher understanding and experience gained over I the past three years" (pp. 2-3), yet overlook a statutory l requirement which would require possible revision of Part 60 to conform to general environmental standards to be promulgated by EPA (Section 121 of NWPA).

Issue 2) Contention That HLEA Recuires Site characterization Revieg g; a Later Point in ihm Schedula .

' The proposed revision repeatedly contends that the NWPA requires DOE to submit its site characterization plan to the NRC at a later point in time than the current version of Part 60.

The argument and presentation of this contention in the proposal  ;

can at best be characterized as misleading and, at worst, as deceitful. The proposal constructs an elaborate and pervasive i argument that the current version of Part 60 requires submission t of DOE's site characterization report "as early as possible af ter the commencement of planning" whereas the NWPA requires such 2

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submission " prior to sinking a shaft" for characterization.

Unf ortunately, this argument is based on a persistent, and one must conclude deliberate, misrepresentation of both Part 60 and the NWPA.

First, and perhaps most egregious in this regard, the text of the proposal misrepresents the current version of Part 60 throughout,.And without exception. At no time, including on page 8 of the text where the current version of Part 60 is described on t h e .i.s s u e of timing, does the proposal accurately and completely quote Part 60. Without exception the first sentence of Section 60.11 of Part 60, which is central to this issue, is cited and quoted incompletely and without inclusion of the operative phrase " prior to site characterization." With the exception of the text on page 8, the proposal also fails to cite the language of Section 60.11 to the effect that such " planning" is "far A particular geologic repository coerations area" invariably implying that " planning" f or site selection is the trigger for submission of the site characterization report.

- Nothing could be tarther from the truth and a straightforward-reading of Section 60.11 makes this clear.

Rather than the case portrayed in the proposed revision in which the NWPA has a dramatically different submission date from Part 60, the only distinction that genuinely exists between the two is language stating that submission takes place " prior to sinking a shaf t"(for characterization)(NWPA) and " prior to site characterization"(Part 60). Any eff ective diff erence, small as it may be, between these two operative phrases is further limited by the definitions and substance of the appropriate provisions of the NWPA and Part 60, as discussed below.

Although Part 60 includes a rangt of activities, other than

" sinking a shaf t", that might be conscrued to trigger submission of DOE's characterization materials by an overly anxious reader, the definition of " site characterization" in Part 60 clearly excludes '" preliminary borings and ge: physical testing needed to decide wnether site characterization should be undertaken."(sec.

60.2(p)). This limitation is significant. Despite the suggestion in the proposed revision that Part 60 requires submission at a preliminary planning stage, Part 60 does not require submission, in any event, prior n conduct n.f activities M identify a site int sharacterization. The contention in the proposal that the NUPA creates a new procedure wherein DOE will have already

, selected sites for characterization before the initiation of

) DOE's characterization paperwork is erroneous. The definitions of site characterization in the NWPA and Part 60,.and the exclusion of activities "needed to decide whether site characterization should be undertaken," are virtually identical. Part 60 also predicates site selection of a "particular geologic operations area"; a specific location within a site comparable to the location of characterization area.

Furthermore, little practical distinction, if any,*can be made between the NWPAiand Part 60 as to when the DOE would 3

• • e nn

actually have- to initiate its site characterization report or plan and when the NRC would need to receive such a submission. l As the NRC proposal acknowledges on page 19, the site characterization plan must be submitted to the NRC

...sufficiently far in advance so that comments may be developed .

and submitted back to DOE early enough to be considered when shaf t sinking occurs...." If anything, the schedule in the NWPA

- which requires identification of sites to be characterized by

January 1, 1985 and completion of site selection in 1987 or i 1988(obviously including preparation of the site characterization plan and NRC's timely review and comment)would suggest that delaying DOE's submission to a point in time just prior to sinking the shaft would present'neither DOE nor NRC with l . sufficient time to complete the paperwork and review.

t The statement in the proposed revision on page 19 concerning the need for DOE's timely submission borders on the hypocritical given the lengths to which the authors have gone to argue against 1

timely submission proposed in the revision--t as required.heindeletion Part 60. The scheduling of the "fix" draft site characterization assessment because of the " scheduling mandates ,

of the Waste Policy Act" pleaded on page 21 of the draft--

i revision has a decidedly hollow ring.

Additional concerns over the proposed restriction of NRC's site characterization review are discussed below, but it is worth noting here that under the NRC's current Part 60 review procedures the issuance of a draf t staff assessment ^would add three to four months at mcJi1 to the review period. The value of an independent NRC staff assessment with opportunity for public comment f ar outweighs this minor schedule delay; a position taken i by the NRC when Part 60 was promulgated. The proposed revision effectively repudiates the Commission's earlier finding that the provision of an opportunity for public comment alleviated, in

part, the need for a formal licensing action at this early stage

! while providing "

...early Commission, State and public

invclvement without undue schedule delays."(44 FR 70409, December 6, 1979).

In developing the current Part 60 requirement for a draf t assessment- with public comment the Commission , considered conducting this preliminary licensing step under its Early Site

~

Review (ESR) regulations (10 CFR Part 2 Subpart F) with the objective of resolving siting issues. The Commission recognizec

, that the unique circumstances of siting of a geologic repository i precluded resolution of such issues at this early stage.

i However, the Commission did find that while the site characterization stage did not constitute an appropriate point to conduct a formal ajudicatory licensing proceeding, this stage did i represent an critical first step in the licensing process for j geologic repositories. By removing the opportunity for public j comment of the draf t assessment, the proposed revision alters the

basic role of the NRC as independent regulator balancing the i views of DOE and interested parties. Instead, the NRC assessment I that emerges from the proposed revision appears inescapably to be 4

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i little more than a negotiated agreement between the NRC and the DOE staff (see additional comments below).

l Issue 3) HE.C Role in Site Screening gui Selection ,

The draft revision argues that the NWPA'"...makes no specific l provision. for the Commission to engage in, or independently t review, the politically sensitive processes of site screening and

site selection."(page 14 of draf t). Once again, the proposal l

1eans on selective interpretation to extend support for the authors' policy predilections where none exists. The proposal draws an entirely artificial distinction between those "politi-cally sensitive" aspects of the site selection process which preceed submission of the site characterization plan and those i that follow. The NWPA makes no such distinction and in f act the site selection process for the second repository must necessarily j include two sites already characterized (and not selected)for. the first repository, thereby guaranteeing prior NRC " involvement" in j

this " politically sensitive" stage (see Sec. 114 (f)) . .

What the NWPA does suggest is that the entire process of identifying potential sites to final site selection after charac-terization and state concurrence or " veto" is part of a single i site selection process leading the submission of a repository i construction permit application to the Commission. There is nothing about the selection of a final aire, a decision that the

! Commission is party to, that suggests that it is any less "sensi-tive". The concern here, of course, is not whether or not the Commission engage in politically controversial issues, but whet-her it has a basis for withdrawing itself from the review and I

I oversight of DOE's process for selecting sites for nomination and i characterization. The argument drawn by implication that certain l

site selection activities are more or less " political" and not

! appropriate for Commission involvement does not hold water.

) Sim'ilarly, the argument that no specific role is given to the i NRC in the NWPA until the site selection plan is submitted is refuted by the Commission's own action in entering a memorandum-

! of-understanding with DOE covering this specific period in time--

the so-called " Procedural Agr eement"(4 8 FR 3 87 01, August 25,

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t 1983). It is worth noting that the Procedural Agreement cites, as justification, conformance with the NWPA for this "early"

' NRC/ DOE interaction and oversight process. The NRC'cannot, in my j view, interpret the NWPA both ways; as limiting the early initiation of NRC oversight as suggested in the proposed revision of Part 60, and authorizing such early inter.vention as spelled t

out in the Procedural Agreement. The Commission, in f act, has long recognized the need to be involved as early as possible in the oversight of the DOE program; a fact underscored by the procedural agreement and articulated in Part 60. Early

' involvement is virtually essential given the largeenormous site selection program mandated by the NWPA and not contemplated by i Part 60; -the siting of two repositories from pools of five ,

l nominated sites.

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A corollary issue to oorly NRC review is the proposal to

defer the issue of Commission comment on the DOE's environmental assessments at the site nomination until a future proceeding concerning NEPA issues. As noted earlier, consideration of NEPA related issues should not be deferred nor should deferral serve as an excuse for adopting a policy, de facto, that the Commission will not enegage in oversight and review of key site selection

issues such as the nomination of site and the preparation of

, Environmental Assessments.

i

Issue 4)- scope s.f. HEC Review i

j The proposed revision of Part 60 dramatically limits the scope of the NRC review of the DOE's site characterization activities notably limiting the information and issues to be 1 included in the site characterization plan. The proposal states l

that the NWPA neglects to include "the method by which the site was selected for characterization, the indentification and location of alternative media and sites at which DOE intends to conduct site characterization, .and a description of the decision  !

i process by which the site was selected for characterization."

l These characterization plan components, the proposal concludes,

should therefore be excluded.

, ' As in many other cases in this proposal, the authors rely i upon a questionable argument to make their case, i.e. these

! factors are spelled out in detail in an NRC rule (Part 60) and are

[ not spelled out in equal detail in statute (the NWPA), theref ore .

1 they are to be excluded. In the process, the proposal makes what l l can only be described as a gratuitous interpretation of the statutory language authorizing the inclusion of these very l factors, i.e. Section 113 (b)(1) (A)(iv) which includes, in the

contents of the site characterization plan, " criteria to be used l to determine the suitability of such candidate site for the j

i location of a repository, developed pursuant to section 112(a)."

j The proposal not only choses to ignore this requirement and i

the clear opportunity to incorporate the " questionable" site  !

l selection factors under this category, but on page 30 of the text l the authors make the gratuitous statement that complying with t i this section would entail "merely stating the criteria, which are l the DOE siting guidelines described in Section ll2(a) of the  !

Waste Policy Act" and this "might appear to have little purpose.

There is no statutory language to support the interpretation l

] in the proposed revision of Part 60 and it is highly  :

questionable that incorporation of criteria used to determine the  !

! suitability of a site to be characterized would merely be the j

! reiteration of the DOE's site selection guidelines. Neither ,

l Section 112(a) nor Section 113 of NWPA equate " criteria" with the  !

" general guidelines" authorized in that Section. A more  :

i practical reading of this provision would be as a requirement to  !

i elaborate how the DOE selected the specific site in question and

! how the DOE guidelines were applied in that process.

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4 As the NRC staff is well aware, DOE has rapaatedly balked at establishing a site-specific methodology for applying the section 112 guidelines to say nothing of incorporating such methodology i in the guidelines. This has been a major point of controversy regarding the DOE guidelines. Equally important, DOE has not proposed a definitive process for selecting the three sites to be characterized from the pool of five nominat9d sites nor assurance

! that such a decision.will be subject to adequate independent

! review. The.NRC identified these same problems, the application of site selection quidelines to specific site selection decisions

including the selection of the three sites to be charactarized,

in its comments to the DOE (Letter of April 7, 1983 f rom R.E. ,

Browning to R.L. Morgan and NRC Staf f Comments dated April 1, l l 1983)

In view of the controversy surrounding this issue and the

NRC's own comments to DOE, one is left with a sense of disbelief i at the authors' feigned ignorance, expressed on page 30, as to

the purpose of Subsection (iv) and their failure to give that I i statutory language its full weight. As if to add insult to j .

injury, the proposal makes light of the inclusion of Subsection (v) requiring the DOE to include in the site

characterization plan "any other information required by the ,

commission." The inclusion of Subsection (v) demonstrates that list of factors in Section 113(b) to be included in the site characterization plan is not all inclusive as suggested in the

, proposed revision and certainly Section 113 (b) does not require l the exclusion of information or f actors nnt elaborated upon in detail in Section 113(b). Section 113(b) clearly allows, if not l 1 requires under. Subsection (iv), the inclusion of the types of site selection information determined in the proposed revision to be

} ripe for exclusion and Subsection (v) clearly authorizes the NRC to require such information.

Issue 5) EEC Independence and Public Participation

! As noted in my remarks above under Issue 2, the proposed j revision alters the Commission's independent relationship to the l DOE waste program. The most obvious case is the deletion of the i

draf t assessment of the site characterization report. Whereas i Part 60 now considers the submission and review of the site characterization report a means for all interested parties l including states and the public to review the adequacy of the l'

NRC staff assessment, the proposed revision creates a situation wherein the NRC review and assessment is no longer the subject of

! comment by " interested parties".

The proposed revision, with no direction in the NWPA to support it, has terminated the preliminary licensing review represented by the NRC assessment process in Part 60 in favor of l l the preparation of a document which would merely summarize j

! NRC/ DOE agreements on a very narrow range of issues involving

prospective site characterization activities. The principal justification for this proposal is drawn not from the NWPA but from the existence of the recently negotiated Procedural 1

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I _ _ _ __ __ _ ,_ _ _ _ _ _ _ _ _ _ _ . _ _ . ._ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _

Agreement and from " scheduling" considarations discussed above.

The purpose of the Procedural Agreement was not to protect the procedural rights of interested parties but to " assure that an information flow is maintained between the two agencies". The proposal erroneously suggests, on pages 21 and 22, that the rights of interested parties and the public granted under Part.60 are protected by the. Agreement; a protection that merely allows.

" members.of. the public being permitted to attend as observers."

(48 FR 3 8702, August 25, 1983).

The rights of interested parties and the public in general, especially concerning early site review and developed in formal

. agency rulemaking in Part 60, are n21 equivalent to, nor compara-ble to, those provided under the proposed revision which relies upon an interagency agreement developed in informal interagency discussions. Attendance at technical meetings, especially considering the requirements of time, personnel, and resources to j attend the lengthy series of such meetings, cannot possibly provide an adequate or equivalent opportunity for public participation envisioned in either Part 60 or the NWPA.

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S ENCLOSURE D I

l

DRAFT CONGRESSIONAL LETTER

Dear Mr. Chairman:

Enclosed for ycur information is a copy of a notice of proposed rulemaking to be published in the Federal Register.

On February 25, 1981 the Comission promulgated final procedures to -

implement its statutory authority to license and regulate the disposal of high-level radioactive wastes in geologic repositories (46 FR 13971).

The enactment of the Nuclear Waste Policy Act of 1982--Public Law 97-425 (Nuclear Waste Policy Act) led the Comission to reexamine some of the procedures given in the final rule,10 CFR Part 60 for conformity with those contained in the statute. As a result of this review, the Comission believes that certain revisions to the procedures in 10 CFR Part 60 are necessary. In addition, the Comission is taking this opportunity to clarify its procedures in light of further understanding and experience gained since the promulgation of the procedural rule. The enclosed proposed amendments make certain revisions to the procedures for site characterization and the participation of States and Indian tribes in the process of siting, licensing, i

and development of a geologic repository for high-level nuclear waste. The proposed amendments affect the means and timing of State and Indian tribe participation. However, the Comission believes that the proposed amendments do not significantly alter the basic principle of providing for the fullest and most complete participation of States and Indian tribes possible within the limits of the Comission's authority.

Sincerely, Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

As stated

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ENCLOSURE D

4 9 ENCLOSURE E

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Pegulatory Analysis 10 CFR Part 60

1. Statement of the Problem The final rule 10 CFR Part 60, " Disposal of High-level Radioactive Wastes in Geologic Repos1 tories," as currently written (46 FR 13971), contains proce-dures for site characterization and the participation of States and Indian tribes in the siting, licensing, and development of high-level radioactive waste repositories. The Nuclear Waste Policy Act of 1982, Public Law 97-425 (Nuclear Waste Policy Act), establishes in considerable detail the procedures to be followed in the process of siting and licensing a geologic repository.

The Nuclear Waste Policy Act contains specific provisions for site characteriza-tion and State and Indian tribe participation in the process of siting, licensing, and development of high-level radioactive waste repositories.

Revisions to the procedures given in the final rule 10 CFR Part 60 for site characterization and the participation of States and Indian tribes are being proposed. For the most part, the revisions are needed in order to reflect the provisions of the Nuclear Waste Policy Act of 1982, particularly as they relate to site characterization and the participation of States and Indian tribes in the process of siting, licensing, and development of disposal facil-ities. In addition, however, the Commission is taking this opportunity to clarify its procedures in the light of further understanding and experience gained since the promulgation of the procedural rule.

2. Objective The objective of the proposed regulatory action is to make certain changes in 10 CFR Part 60 to reflect procedures for site characterization and for State and Indian tribe participation in the process of siting, licensing, and developing of high-level radioactive waste repositories established by the Nuclear Waste Policy Act, and to clarify the Commission's procedures in light of the 11/30/83 1 10 CFR 60 ENCL E

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experience gained since the promulgation of the procedural rule 10 CFR Part 60 several years ago.

3. Alternatives (a) Leave the final provisions of 10 CFR Part 60 (46 FP 13971) intact.

(b) Delete reference to State and Indian tribe participation in the process of siting, licensing, and development of a repository in 10 CFR Part 60, and publish procedures for State and Indian tribe participation as a regulatory guide.

4. Consequences (a) Proposed Action: Publish proposed changes in 10 CFR Part 60 to bring procedures for site characterization and State and Indian tribe participation in the siting, licensing, and development of high-level radioactive waste repositories in accordance with the Nuclear Waste Policy Act, and to clarify .

the procedures in light of recent experience.

The proposed revisions in 10 CFR Part 60 would bring the final rule in conformity with the Nuclear Waste Policy Act. They would clarify the proce-dures for site characterization and State and Indian tribe interaction with the Nuclear Regulatory Commission in light of recently enacted legislation and the experience gained over the last several years. The clarification of these procedures would benefit States and Indian tribes by giving them accurate,.

realistic information about opportunities available to States and Indian tribes to participate in consultations with the Nuclear Regulatory Commission. This would in turn make the process of siting, licensing, and development of high-level radioactive waste geologic repositories more efficient.

The most effective way of promulgating the revised procedures would be as revisions to 10 CFR Part 60. The promulgation of the revised procedures in this format would accomplish the objective with no unnecessary delay in making the revisions public.

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11/30/83 2 10 CFR 60 ENCL E l

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(b) . Alternative 1: Leave the provisions of the firal rule,10 CFR Part 60, intact.

This alternative would be inadequate because it would result in inconsistencies between the final rule,10 CFR Part 60 and the Nuclear Waste Policy Act. These inconsistencies would leave uncertain the opportunities for participation of States and Indian tribes in the NRC activities related to siting, licensing, and developeent of a high-level radioactive waste geologic repository, and could lead to costly and time-consuming inefficiencies in the process.

The staff also considered a variation of this alternative where only minor changes would be made to conform terminology in 10 CFR Part 60 to the Waste Act, as an administrative rulemaking, without opportunity for public comment. This variation would result in the same uncertainties and inefficiencies in the licensing process.

(c) Alternative 2: Delete reference to State and Indian tribe participa-tion in 10 CFR Part 60 and publish procedures for State and Indian tribe participation as a regulatory guide.

If this alternative were adopted, participation of States and Indian tribes would not be governed by the regulations of 10 CFR Part 60. Publishing proce-dures for State and Indian tribe participation as a regulatory guide would give only suggested guidance. States and I'ndian tribes have indicated strong preference for formal procedures. The' regulatory guide, approach would not be 4

suitable for this reason. *

\

5. Decision Rationale 4

i The NRC staff has evaluated the proposed action and two alternative courses of action. The procedures for site characterization and State and Indian tribe participation in the siting, licensing, and development of high-level radioactive waste geologic repositories must be revised to bring then in accordance with ,

l the Nuclear Waste Policy Act, and to clarify the procedures in light of recent experience. Revising the procedures for State and Indian tribe participation by means of revising the final rule,10 CFR Part 60, is the most effective method of accomplishing this. l 11/30/83 3 10 CFR 60 ENCL E i

I

4 _a --3 p v s ENCLOSURE F e

M.

..._...w~.-.---..-.. --- - - - - - - - - ^ - - ' - - - - -- ~

j ' t. ..

1 PROCEDURAL AGREEMENT BETW'EEN THE U.S. NUCLEAR REGULATORY COPNISSION .

AND THE U.S. DEPARTMENT OF ENERGY IDENTIFYING GUIDING PRINCIPLES FOR -

INTERFACE DURINf, SITE INVESTIGATION AND SITE CHARACTERIZATION This Procedural Agreement outlines procedures for consultation and i exchange of information which the Comission (NRC) and the Department (00E) will observe in connection with the characterization of sites for a i geologic repository under the Nuclear Waste Policy Act of 1982. The -

l purpose of these procedures is to assure that an information flow is 1

maintained between the two agencies which will facilitate the accomplishment by each agency of its responsibilites relative to site investigation and characterization under the National Waste Policy Act C (NWPA). The agreement is to assure that NRC receives adequate information on a timely basis to enable NRC to review, evaluate, and

comment on those DOE activities of regulatory interest in accordan(.e with i DOE's project decision schedule and thereby facilitate early identification of potential licensing issues for timely staff resolution. The agreement is to assure that DOE has prompt access to NRC for discussions and

explanations relative to the intent, meaning and purpose of NRC comments

and evaluations on DOE activities and so that DOE can be aware, on a q current basis, of the status of NRC actions relative to DOE activities.

This Procedural Agreement shall be subject to the provisions of any project decision schedule that may hereafter be established by DOE, and any regulations that may hereafter be adopted by NRC, pursuant to law.

In particular, nothing herein shall be construed to limit the authority of the Comission to require the submission of information as part of a general plan for site characterization activities to be conducted at a j

{ candidate site or the submission of reports on the nature and extent of site characterization activities at a candidate site and the infonnation developed from such activities.

1. NRC On-Site Representatives As early as practicable, following area phase field work, NRC on-site representatives will be stationed at each site undergoing investigation principally to serve as a point of prompt informational exchange and consultation and to preliminarily identify concerns about such q investigations relating to potential licensing issues.

2. Meetings.

l From the time this agreement is entered into, and for so long as site characterization activities are being planned or are in i 1 1

J ENCLOSURE F

-. L. -

l progress, DOE and NRC will schedule and hold meetings periodically --

as provided in this section. A written report agreed to by both DOE and NRC will be prepared for each meeting including agreements reached.

a. Technical meetings will be held between t)0E and NRC technical staff to: review and consult on interpretations of data; identify potential licensing issues; agree upon the sufficiency of available information and data; and agree upon methods and '

approaches for the acquisition of additional information and data as needed to facilitate NRC reviews and evaluations and for staff resolution of such potential licensing issues,

b. Periodic management meetings will be held at the site-specific

( project level whenever necessary, but at least quarterly, to review the sumary results of the technical meetings; to review the status of outstanding concerns and issues; discuss plans for resolutun of outstanding items and issues; to update the schedule of technical meetings and other actions needed for staff resolution of open items regarding site characterization programs; and to consult on what generic guidance is advisable and necessary for NRC to prepare. Unresolved management issues will be promptly elevated to upper management for resolution.

c. Early technical meetings will be scheduled to discuss written NRC comments on DOE documents such as Site Characterization Plans, DOE's semi-annual progress reports, and technical reports to foster a mutual understanding of comments and the information or activities needed for staff resolution of the coments.

d. In formulating plans for activities which DOE will undertake to C develop information needed for staff resolution of potential licensing issues, DOE will meet with NRC to provide an overview of the plans so that NRC can consnent on their sufficiency.

These discussions will be held sufficiently early so that any changes that NRC cements may entail can be duly considered by DOE in a manner not to delay DOE activities,

e. Schedules of activities pertaining to technical meetings will be made publicly available. Potential host States and affected Indian tribes will be notified and invited to attend technical meetings covered in this section (Section 2 Meetings). The notification will be given on a timely basis by the DOE. These technical meetings will be open meetings with members of the public being l l

permitted to attend as observers.

l 2

I w - .

~~~ --

O 1

3. Timely Release of Information .

a. Data collected during site investigations will be made available to NRC on a current, continuing basis after the DOE (or DOE contractor) quality assurance checks that are inherent in determining that the data has been obtained and documented properly.

b. DOE's analyses and evaluations of data will be made available -

to NRC in a timely manner.

4. Site Specific Samples Consistent with mutually agreed on procedures, DOE will provide NRC

( with site specific samples to be used by NRC for independent analysis and evaluation. .

5. Agency Use of In' formation It is understood that information made avail'able to either Agency under this agreement may be used at that Agency's option in carrying out its responsibilities.

6. Project Specific Agreements Project specific agreements to implement the above principles will be negotiated within 120 days of the time this agreement is entered into. These project specific agreements will be tailored to the specific projects to reflect the differences in sites and project organizations.

( 7. Nothing in this agreement shall be construed as limiting forms of informal consultation not mentioned in this agreement (for example, telephone conversation or exchanges of reports). These other consultations will be documented in a timely manner.

b Robert L. Morgan, Pro fct Director John G. Davis,' Director Nuclear Waste Policy Act [ Office of Nuclear Material Project Office Safety and Safeguards U.S. Department of Energy U.S. Nuclear Regulatory Commission Date: [C!$7/b Date: Sk7/P3

/ /

3 l

)

e e ENCLOSURE G 1

9 m

[7590-01]

PART DISPOSAL 0F HIGH-LEVEL RADI0 ACTIVE WASTES IN GE0 LOGIC REPOSITORIES 9 60.2 Definitions As used in this part:

(a) "Affected Indian tribe" means an affected Indian tribe as defined in the Nuclear Waste Policy Act of 1982.*

[fi)" Indian-Tribe"-meaRs-an-Indian-tribe-as-def4med-4n-the-Ind4&n Self-Determinatien-and-Edweatien-Assistanee-Aet-(Pwbl4e-baw-(93-638},]

[(q)" Tribal-erganizatien"-means-a-Tribal-erganfratien-as-defined in-the-Indian-Self-90 term 4Ratien-and-Edweat4en-Assistanee-Aet-(publie-baw 93-638),]

Subpart B - Licenses Preapplication Review

[$-69,19]60.15 Site characterization.

(a) Prior to submittal of an application for a license to be issued under this part the DOE shall conduct a program of site characterization with respect to the site to be described in such application.

(b) Unless the Commission detemines with respect to the site described in the application that it is not necessary, site characteriza-tion shall include a program of in situ exploration and testing at the depths that wastes would be emplaced.

(c) As provided in 9 51.40 of this chapter, DOE is also required to conduct a program of site characerization, including in situ testing at depth, with respect to alternative sites.

• Comparative text - Additions to existing regulations are underlined and ,

deletions are dashed through and enclosed in brackets. 1 1 Enclosure G l

. ^ .'

[7590-01]

[5-6Bril--Site-sharaeterizatien-repert, fa)--As-early-as-pessible-after-eemmeneement-ef-planning-fer-a partieWlar-geelegie-repes4tery-speratiens-areat-and-prier-te-site skaraeterizat4emy-99E-shall-submit-te-the-94 Fee %er-a-Site-6haraeter4za-tien-Repert --The-repert-shall-inelude-fi)-A-deseviptien-ef-the-site-te be-s h a ra e te riz ed t-(2)-the-e rite ria-w sed-te-a rrive-a t-the-sa n dida t e-a rea t (3)-the-methed-by-whieh-the-site-was-seleeted-fer-site-sharaeterizatient (4)-identifieatien-and-leeatien-ef-alternative-medie-ard-sites-at-wk4eh 90E-4ptends-te-eendwet-site-eharaeter4zatien-and-fer-wh4eh-90E-ant 4ei-4 pates-swbmitting-subsequent-S4te-Gharaeterizatien-Repertst-(E)-a-deserip-tien-of-the-dee4s4en-presess-by-wh4eh-the-site-was-seleeted-fer-ehar-asterizatien,-ineluding-the-means-used-te-ebtain-publisy-indian-tribal and-State-views-during-selectient-(6)-a-deseriptien-of-the-site-shar-aeterizatien-pregram-ineluding+--(4)-The-extent-ef-planned-exeavatien and-plans-fer-in-sitw-testing,-(44)-a-seneeptual-design-ef-a-geelegie repes4tery-eperatiens-area-apprepriate-te-the-named-site-4n-suffielent i de ta il-t e-all ew-a s s e s sme n t -e f- the - s i t e-s h a ra e t e r i z a t i e n -p re g ram 3 -W i th respeet-te-4RVes%4ga%4en-aet4vities-wh4eh-address-the-ability-ef-the site-te-hest-a-geelegie-repes4tery-and-4selate-radieast4ve-wastes -er wh4eh-may-affeet-sweh-ability,-and-f 444)-prev 4siens-te-eentrel-any L adverse 3-safety-related-effeets-frem-site-sharaeterizatien,-4neluding apprepr48te-qWality-pregramst-k7)-8-deseriptien-ef-the-qWality-assWranee pregram-te-be-applied-te-data-selleetient-and-(8)-any-issues-related-te site-selestien,-alternative-eandidate-areasy-er-ether-s4 test-er-design e f- t h e- ge e le g i e -re p e s 4 te ry -s p e ra tien s -a re a -wh 4 e h -t he-90E-wi s he s -th e Gemmissien-te-rev4ew,--Alse-4neluded-shall-be-a-deseriptien-ef-the researek-and-develeppent-aetivities-being-eendweted-by-BGE-wh4eh-deal ,

with-the-waste-ferm-and-paekaging-whieh-may-be-eensidered-apprepF4 ate  ;

fer-the-site-te-be-eharaeter4med,-ineluding-researeh-planned-er-under- ,

I way-te-evalwate-the-performanee-ef-sweh-waste-ferms-and-paskagingr 2 Enclosure G

f7590-01]

(b)--The-94reeter-shall-eawse-te-be-published-in-the-Federal-Aeqister a-met 4et49at-the-4Rfermatien-subP44%ed-Wader-paragraph-fa)-ef-%A4s s e s t ie n -h a s - b ee n - re se 4 Ved-a R d -t h a t-a - s % 8 f f- re v iew-e f- t h a t -i n fe rma t i e R -

h a s-b e g w a r --Th e -m e t 4 e e- s k a ll- 4 de n t i fy- t h e - s i t e- s el ee t e d- f e r- s i te-s h a wa e -

t e ri z a t ie n -a n d -a l te r n a t e -a rea s -b e i n g - e e n s id e re d -by-90 E-a R d - s h a ll- a d v i s e that-sensultatien-may-be-reqWested-by-State-and-leeal-geverRReRts-and Tr4bal-ergas4aatiens-in-aeserdanee-with-Subpart-G-ef-this-part, fe)--The-94Feeter-shall-make-available-a-sepy-ef-the-abeve infermatien-at-the-Publ4e-Deewment-Reem,--The-94reeter-alse-shall-trans-mi t-sep4e s-and-the-publi shed-n e tie e-e f-re ceip t-th e ree f- te-th e-Geve rn e r end-legislature-ef-the-State-and-te-the-ehfef-exeewtive-ef-the-munie4-pality-in-wh4eh-a-site-te-be-eharaeteri2ed-4s-lesated-(er-4f-44-is-met leeated-within-a-munie4 pal 4ty,-then-te-the-eh4ef-exeewt4Ve-ef-the eewntyy-er-te-the-Tribal-ergan4Eatien-4f-44-4s-te-be-leeated-w4 thin-an Indian-reservat4eR)-and-te-the-GeVerners-ef-aRy-eent4gwebs-Statest (d)--The-94reeter-shall-prepare-a-draft-s4te-sharaeter4Eatien a na ly s i s-wh 4 e h - s ha ll-d i s c u s s - t h e- 4 t ems -e 4 te d -i n -p a ra g ra ph - { a )-e f- t h i s seetient--Ihe-94Feeter-shall-publ4sh-8-netiee-ef-availability-Of-the draft-site-sharaeter4zatien-analysis-and-a-request-fer-eemment-4n-the Federal-Resister,--Gep4es-shall-be-made-available-at-the-Pwbl4e-9eewment Reeme--The-94reeter-shall-alse-transmit-sep4es-te-the-Geverner-and legislature-ef-the-State-and-the-ehief-exeewtive-ef-the-munie4pa14ty-4n whieh-a-site-te-be-sharaeterized-4s-leeated-fer-4f-44-4s-net-leeated within-a-mwnie4palityr-then-te-the-shief-exeewtive-ef-the-eewsty,-er-te the-Tribal-ergaR429tien-4f-it-4s-te-be-lesated-within-an-Indian reservat4en)-and-te-the-Geverners-ef-aRy-eent4 weWs-Statest 9 (e)--A-reasenable-per4edy-met-less-than-90-daysy-shall-be-allewed fer-seme R% -en-the-d ra f t-s ite-s h a rae te r4 E a tien-a na ly s is r--The-94 ree ter shall-then-prepare-a-final-site-eharaeter428tien-analysis,--The-94reeter shall-then-prepare-a-final-site-sharaeterifatien-analysis-Whfeh-shall t a k e-i n t e-a e s ew n t-s eme n t s - re e e i v e d-a n d -a ny-a d d i t ie m a l-i n fe rma t i e n aequired-dwring-the-eemment-peried,--Ineluded-4n-the-final-site j ekaraeterizatien-analysis-shall-be-either-an-ep4 mien-by-the-94reeter that-he-has-ne-ebjeetien-te-the-90E-s-site-sharaeterizat4en-pregram,-4f sweh-a n-epin ien-is-a pprepriatey-e r-spee f f 4e-ebjee tiers-ef-the-94 reeter 3 Enclosure G l

l

l

[7590-01]

1 te-90Els-pFeeeed4Rg-with-ehaFasteF428 tier-es-the-Raped-siter-IR-additient the-94FeeteF-m&y-make-spee4fie-FeeemRendatieRs-te-96E-eR-the-RatteFs peFt4RORt-te-this-seetieRr--A-eepy-ef-the-fiRal-site-shaFasteF428 tier aRalysis-ame-the-94FeeteFi s-ep4RieR-W444-be-tFaRspitied-te-90Er (f)--NeitheF-isswanee-ef-a-54Ral-site-shaFaeteFzatien-analysis-neF i the-epin4en-by-the-94PeeteF-shall-eeRstitute-a-semmitment-te-4sswe-aRy autheF4 rat 4eR-eF-14eeRse-eF-4R-any-Way-affeet-the-autheFity-ef-the GemmissieR,-the-Atemie-Safety-and-biseRsing-Appeal-BeaFd,-Atemie-Safety a Rd-b 4 e en sin g-Bea Fd s,-e the F-p Fe s id 4Rg-e f f 4e e Fsi-e F-4.he-94 Fes te F,-4 R-a Ry preeeeding-undeF-SubpaFt-G-ef-PaFt-2-ef-this-ehapteFr--if-90E-pFepaFes an-ERv4Femmental-Impaet-StatemeRt-with-respest-te-site-shaFasteF428 tier, aetiv444es-pFepesed-fer-a-part4eular-site shewid-sens4deF-NRCis-s4te s

chaFasteF4zatieR-analyses-befeFe-publ4shiRg-4ts-final-ERv4Femmental Impaet-Statement-with-Fespeet-te-site-sharaeterizatieR-ast4vities-PFepesed fer-that-partiewlaF-siter (g)--9W Fin g-s 44.e-s h a Fae te Fif a t.ieR y-99E-shall-4 m feFm-the-94 Fee te F-by semiannWal-repeFt-aRd-by-ether-FepeFts-eR-aRy-tSpie-Felated-te-site sharaeteF4zatieR-if-requested-by-the-94FesteFT-ef-the-pFegress-ef-the s i te-s h a ra e te F428 t ieR -a R d-wa s t e-fe rm-a n d -p a c k a g 4 R g - re s e a Fe h -a Rd-de v ele p -

me R % r --Ih e- s em ia R R w al- Fep e F t s- s h ew id -4 R e lu de - th e - Fe s u l t s -e f- s i t e-e h a Fa e -

terizatieR-studies,-the-4 dent 4ficatieR-ef-new-4ssues,-plans-feF-addit 4enal studies-te-reselve-new-4ssuest-eliminatieR-ef-plaRned-studies-ne-lengeF necessary,-4dentificatien-ef-dee4 ster-peints-reaehed-and-medifieatiem-te sehedwies-weFe-appFepF4ater--Alse-repeFted-shewid-be-the-90Els-pFegFess 4R-develep4Rg-the-des 4gn-ef-a-geelegie-Fepes4teFy-epeFatiens-area-appFe-pF4 ate-feF-the-site-be4Rg-sharaeteF4Eed -neting-wheR-key-des T 49R-paFaReteFs er-features-whieh-depeRd-wpeR-the-Fesults-ef-site-sharaeteF4Eatien-Will b e-e s t a bli s he d r --9 s Fi n g -t h i s - t 4me r -N A G- s t a f f- s h all-be-pe Fmi t t ed -t e-v i s 44 and-4Rspeet-the-site-and-ebserve-eMeavatieRsT-ber4Rgst-aRd-4R-sitw-tests as-they-are-dener

( h t--The-94 Fee t e F-Ray-e emme R t-a t-a ny- % 4 me-in -w r i t 4 M g-t e-99 E y-e M p Fe s s 4 R g e u r FeR t -v i ew s-e n -a Ry -a s pe e t-e f- s i t e-s h a Fa e t e F 42 a t ie R r--G emme R t s - re s e 4 v ed fFem-States-4a-aeseFdaRee-with-K-69761-shall-be-eeRsidered-by-the-94FesteF 4R-fermulat4Rg-his-views,--All-eerrespeRdence-betweeR-90E-and-the-NRG l 4 Enclosure G

[7590-01]

4 Re lbd 4 R g-the- F0pe Ft s-e i t e d - 4 R-pa Fa g Fa ph-(g )- s hall-be-pla e e d-iR- t he Publie-9eewmeRt-Reemr (4)--The-aetivities-desepibed-4R-paFagFaphs-kah-thFeWgh-(h)-abeve eeRstitute-4RfeFmal-seRfeFORee-betWeeR-a-pFespeetive-applisaRt-haRd-the staff,-as-deseF4 bed-4R-K-2r191(a)(1)-ef-this-ehapteF-aRd-aFe-Ret-paFt T ef-a-pFeeeed4Rg-WRdeF-the-Atemie-EReFgy-Aet-ef-1954-as-ameRdedr] 3 i 60.16 Site characterization plan required.

Before prcceeding to sink shafts at any area which has been approved by the President for site characterization, 00E shall submit to the Director, for review and comment, a site characterization plan for such area.

9 60.17 Contents of site characterization plan.

The site characterization plan shall contain --

(a) A general plan for site characterization activities to be conducted at the area to be characterized, which general plan must include --

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

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

(i) The extent of plar.ned excavations; (ii) Plans for any onsite testing with radioactive or nonradioactive material; (iii) Plans for any investigation activities that may affect the capability of such area to isolate high-level radioactive waste; l (iv) Plans to control any adverse impacts from such site characterization activities that are important to safety or that are important to waste isolation; and 5 Enclosure G I

1

[7590-01]

(v) Plans to apply quality assurance to data collection, recording, and retention.

(3) Plans for the decontamination and decommissioning of such area, and for the mitigation of any significant adverse environmental impacts caused by site characterization activities, if such area is determined unsuitable for application for a construction authorization for a geologic repository operations area; (4) Criteria, developed pursuant to section 112(a) of the Nuclear Waste Policy Act of 1982 (or in the case of a geologic repository that is not subject to the Waste Policy Act, such other siting criteria as may have been used by DOE), to be used to determine the suitability of such area for the location of a geologic repository; and

)

(5) Any other information which the Commission, by rule or order, reouires.

(b) A description of the possible waste form or waste package for the high-level radioactive waste to be emplaced in such geologic repository, a description (to the extent practicable) of the relationship between such waste form or waste package and the host rock at such area, and a description of the activities being conducted by DOE with respect to such possible waste form or waste package or their relationship; and (c) A conceptual design for the geologic repository operations

< area that takes into account likely site-specific require-ments.

l l

6 Enclosure G

, 7

[7590-01]

9 60.18 Review of site characterization activities.* j (a) The Director shall cause to be published in the Federal Register

! a notice that a site characterization plan has been received from DOE and 4 that a staff review of such plan has begun. The notice must identify the

. area to be characterized and the NRC staff members to be consulted for further information.

(b) The Director shall make a copy of the site characterization plan i available at the Public Document Room. The Director shall also transmit i copies of the published notice of receipt to the Governor and legislature of the State in which the area to be characterized is located and to the governing body of any affected Indian tribe. In addition, the Director shall make NRC staff available to consult with States and affected Indian

. tribes as provided in Subpart C of this part.

(c) The Director shall review the site characterization plan and prepare a site characterization analysis with respect to such plan.

In the preparation of such site characterization analysis, the Director )

may invite and consider the views of interested persons on DOE's site l

characterization plan and may review and consider comments made in connection with public hearings held by D0E.

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

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

is appropriate, or specific objectiors with respect to DOE's program for i characterization of the area concerned. In addition, the Director may make specific recommendations pertinent to DOE's site characterization program.

• In addition to the review of site characterization activities specified in this section, the Commission contemplates an ongoing review of other information on site investigation and site characterization, in order .

to allow early identification of potential licensing-issues for timely l resolution. This activity will include, for example, a review of the I

i environmental assessments prepared by DOE at the time of site nomination.

A procedural agreement covering NRC-DOE interface during site investiga tion and site characterization has been published in the Federal Register.

48 FR 38701, August 25, 1983.

7 Enclosure t 1

[7590-01]

(e) If DOE's planned site characterization activities include onsite testing with radioactive material, the Director's comments shall include a detemination, if appropriate, that the Commission concurs that the pro-posed use of such radioactive material is necessary to provide data for the preparation of the environmental reports required by law and for an application to be submitted under 6 60.22 of this part.

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

(g) During the conduct of site characterization activities, DOE shall report not less than once every six months to the CenW , ion on the nature and extent of such activities and the information Inat has been developed and on the progress of waste fom and waste package research and development. The semiannual reports must include the results of site characterization studies, the identification of new issues, plans for additional studies to resolve new issues, elini-nation of planned studies no longer necessary, identification of decision points reached and modifications to schedules where appro priate. DOE shall also report its progress in developing the design of a geologic repository operations area appropriate for the area being characterized, noting when key design paraceters or features which depend upon the results of site characterization will be estab-lished. Other topics related to site characterization must also be covered if requested by the Director.

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

(1) The Director may comment at any time in writing to DOE, expressing current views on any aspect of site characterization. In l particular, such comments shall be made whenever the Director, upon review of comments invited on the site characterization analysis or 8 Enclosure G

[7590-01]

1 upon review of DOE's semiannual reports, detemines that there are substantial new grounds for making recomendations or stating objec-tions to DOE's site characterization program.

(j) The Director shall transmit copies of the site characterization analysis and all coments to DOE made by him under this section to the Governor and legislature of the State in which the area to be characterized is located and to the governing body of any affected Indian tribe. When j transmitting the site characterization analysis under this paragraph, the

Director shall invite the addresses to review and coment thereon.

(k) All correspondence between DOE and the NRC under this section, including the reports described in paragraph (g), must be placed in the' Public Document Room.

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

constitute informal conference between a prospective applicant and the staff, as described in i 2.101(a)(1) of this chapter, and are not part i of a proceeding under the Atomic Energy Act of 1954, as amended.

Accordingly, neither the issuance of a site characterization analysis nor j any other comments of the Director made under this section constitute a comitment to issue any authorization or license or in any way affect l

the authority of the Comission, the Atomic Safety and Licensing Appeal

Board, Atomic Safety and Licensing Boards, other presiding officars, or the Dirctor, in any such proceeding Subpart C--Participation by State Governments and Indian Tribes l 6 60.61 Provision of information.

(a) The Director shall provide to the Governor and legislature of I any State in which a geologic repository operations area is or may be located, and y the governing body of any affected Indian tribe, timely and complete informtion regarding determinations or plans made by the Comission with respect to the site characterization, siting, development, design, licensing, construction, operatien, regulation, permanent closure, or decontamination and dismantlement of surface facilities, of such geologic repository operations area.

^

9 Enclosure G J

[7590-01]

(b) For purposes of this section, a geologic repository operations area shall be considered to be one which "may be located" in a State if the location thereof in such State has been described in a site character-ization proposal submitted to the Commission under this part.

(c) Notwithstanding paragraph (a), the Director is not required to distribute any document to any entity if, with respect to such document, that entity or its counsel is included on a service list prepared pursuant to Part 2 of this chapter.

(d) Copies of all communications by the Director under this section shall be place'd in the Public Document Room, and copies thereof shall be furnished to D0E.

El-69,61--Site-review.

(a)--Wpen-publ4eatieR-in-the-Federal-Register-ef-a-met 4ee-that-the 99E-has-seleeted-a-site-fer-site-sharaeter42atient-in-Seeerdanee-with 5-69til(bli-and-wpen-the-request-ef-a-Statei-the-94reeter-shall-make available-NRG-staff-te-eensult-with-representatives-ef-State 3-Indian-tribal and-leeal-gevernments-te-keep-them-infermed-ef-the-94reeter-s-view-en-the pregresS-ef-site-sharaeter42atieR-and-te-setify-them-ef-any-subseqWent meetings-er-fWrther-sensultatiens-with-the-99Er]

6 60.62 Site review.

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

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

[ (s )--Th e -94 re e t e r-a l s e - s h a ll- re s p e n d -t e -W r i t t e n - q u e s t i e n s -e r-s emme R e s frem-the-Stater-Indian-tribal-and-lesal-gevernmePts-as-apprepriates-eR-the infermatien-submitted-by-the-99E-4n-aseerdanee-with-i-69,41-ef-this-part, Gep4es-ef-sweh-questiens-er-eemments-and-their-respenses-shall-be-made available-in-the-Pwhlie-9eewment-Reem-and-shall-be-transmitted-te-the-99Ev]

l 10 Enclosure G l

1 I

s.

l

[7590-01] l l

(c) Consultation under this section may include:

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

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

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

[5-60,62--Filing-ef-prepesais-fer-State-partie4patien (a)--Gensultatien-wnder-$-60r61-may-4nelude,-ameng-ether-things,-a review-ef-appl 4eable-NRG-regulatiens,-lisensing-preeedwres,-petential sehedules,-and-the-type-and-seepe-ef-State-aetivities-in-the-lisense-rev4ew permitted-by-lawr--la-additien,-staff-shall-be-made-available-te-eseperate with-the-State-in-develeping-prepesais-fer-partiespatien-by-the-Stater I

( b )--S t a te s - pe t e n t ia lly-a f fe e t e d -by- s i t i n g -e f-a -g e e l eg i e- re p e s i t e ry speratiens-area-at-a-site-that-has-been-seleeted-fer-sharaeteriaatien-may submit-te-the-94reeter-a-prepesal-fer-State-partie4patien-4n-the-reivew-ef th e-S i te-Gha ra e te ri a a t ien -Re p e rt -and/e r-liee n s e-a ppliea t ie n ,--A-S ta tels prepesal-te-partie4 pale-may-be-submitted-at-any-time-Prier-te-desketing-ef an-applicatien-er-up-te-120-days-thereafterr (e)--prepesais-fer-participatien-4R-the-review-shall-be-signed-by-the Geverner-ef-the-State-subRitting-the-prepesal-and-shall-at-a-minimum-sentain the-fellewing-4Rfermatien+

(1)--A-general-deser$ptien-ef-hew-the-State-wishes-te-partie4pate-in th e - rev i ew,- s pe s i fi c a lly,- 4 d e n t i fy i n g -t h e s e -i s s u e s -wh i e h - 4 t-wi s h e s - t e revieWr  ;

(2)--A-deseriptien-ef-material-and-4mfermatien-whieh-the-State plans-te-submit-te-the-NRG-staff-fer-eensideratien-in-the-reivew,--A tentative-sehedwie-referessing-steps-4n-the-review-and-ealendar-dates fer-planned-submittals-shewid-be-4neludedr .

(3)--A-deseriptien-4neluding-funding-estimates-ef-any-werk-that-the S ta t e - p re p e s e s - t e - p e rf e rm-f e r- th e -G enmii s s i e n ,- u n d e r-s en t ra e t ,-i n -s u p p e r t ef-the-reviewr 11 Enclosure G

[7590-01]

(4)--A-deseriptien-ef-State-plans-te-faeilitate-lesal-gevernment aRd-eit4ZeR-partie4 patient (6)--A-preliminary-estimate-ef-the-types-and-extent-ef-impaets wh i e h - t h e- S t a t e -e x p e s t s - s h e w id -a - g e el e g i e - re p e s i t e ry-b e -l e e a t e d- a t - t h e site-4R-quest 4ent (d)--If-the-State-desires-edweat4enal-er-infermat498-serviees (seminars,-publie-meetings)-er-ether-aetiens-eR-the-part-ef-NRG,-sweh-as establishing-additienal-publie-deewment-reems-er-empleyment-er-exehange ef-State-persennel-wnder-the-Entergevernmental-Persennel-Aety-these shall-be-ineladed-with-the-prepesair r

E-69,63--Appreval-ef-prepesals,

-fa)--The-94reeter-skall-arrange-fer-a-meeting-between-the-representa t i ve s -e f- t h e -S t a t e -a n d - th e-N R G - s t a f f- t e -d i s e w s s -a ny- p re p e s a l- s u bmi t t e d u nd e r- $ - 69762 ( b ),-wi th-a -v i ew- te-id e n t i fy i n g -a ny-me d i fi e a t i e n s - t h a t -may eentribute-te-the-effeetive-partfeipatieR-by-the-Stater (b)--Sebjeet-te-the-availability-ef-fundsi-the-94reeter-shall appreve-all-er-any-part-ef-a-prepesaly-as-it-may-be-medified-threugh-the meeting-deseribed-abevet-if-it-is-determined-thatt (1)--The-prepesed-aetivities-are-suitable-in-light-ef-the-type-and magnitude-ef-4mpaets-whieh-the-State-may-bears -and (2}--The-prepesed-aetivities-(i)-will-enhanee-eepwnisatiens-between NRG-and-the-State s -(44)-will-sentribute-predwetively-te-the-lisense reviewi-and-fiii)-are-awtherized-by-lawr (e)--The-deeisien-ef-the-94reeter-shall-be-transmitted-in-writing te - th e -Ge v e rn e r- e f- t h e -e ri g i n a t i n g-S ta t e r -- A-e epy-e f- th e-de e i s ie n - s k a ll be-made-available-at-the-Publ4e-Deewment-Reemr--if-all-er-any-part-ef-a prepesal-is-rejeeteds-the-desisien-shall-state-the-reasen-fer-the-rejeetient (d}--A-espy-ef-all-prepesais-received-shall-be-made-available-at the-Publie-9eewment-Reemr]

i 60.63 Participation in license reviews.

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

12 Enclosure G

~~

[7590-01]

(b) In addition, whenever an area has been approved by the President for site characterization, a State or an affected Indian tribe may submit to the Director a proposal to facilitate its participation in the review of a site characterization plan and/or license application. The proposal may be submitted at any time and shall contain a description and schedule of how the State or affected Indian tribe wishes to pcrticipate in the review, of what services or activities the State or affected Indian tribe wishes NRC to carry out, and how the services or activities proposed to be carried out by NRC would contribute to such participation. The pro-posal may include educational or information services (seminars, public meetings) or other actions on the part of NRC, such as establishing addi-tional public document rooms or employment or exchange of State personnel under the Intergovernmental Personnel Act.

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

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

(1) The proposed activities are suitable in light of the type and magnitude of inpacts which the State or affected Indian tribe may bear; (2) The proposed activities (1) will enhance communications between NRC and the State or affected Indian tribe, (ii) will make a productive and timely contribution to the license review, and (iii) are authorized by law.

(e) The Director will advise the State or affected Indian tribe whether its proposal has been accepted or denied, and if all or any part of proposal is denied, the Director shall state the reason for the denial.

t 13 Enclosure G l

[7590-01]

(f) Proposals submitted under this section, and response thereto, shall be made available at the Public Document Room.

[{-69,64--Partisipatien-by-indian-%ribest (a )-- Any-in d ia n - t ri b e-wh i e h -i s - p e t e n t ia lly-a f fe e t e d-by-s i t i n g -e f-a g e e l e g i e - re pe s i te ry-e pe ra t i e n s - a re a - a t -a- s i t e - th a t - h a s -b e e n - s e l e e t ed - fe r sharaeterizatien-may+

fl)--Request-sensultaties,-as-previded-With-respeet-le-States-Wnder 6-69,61r (2)--Swbmit-prepesals-for-partieipation,-as-previded-with-respeet te-States-under-5-69,62,-exeept-that-sweh-prepesais-shall-be-signed-by -

the-Tribal-erganizatient (b)--The-94reeter-shall-respend-te-sweh-requests-er-prepesais-in the-manner-previded-in-this-subparty-exeept-that-deeisiens-wF,:<-5-69763 shall-be-transmitted-in-writing-te-the-shief-exeewtive-(er-etPer-spesi-f4eally-awtherized-representative)-ef-the-Tribal-erganizatien, f e l-- Any- reg we s t -e r-p re pe s a l-u p de r- th i s -s es t i e n -s h a ll- b e -a s e emp a n i e d by-sweh-desumentatien-as-may-be-needed-te-determine-the-eligibility-ef the-Indian-tribe-er-the-spesifie-awtherity-ef-its-representativesr]

6 60.64 Notice to States.

If the Governor and legislature of a State have jointly designated on their behalf a single person or entity to receive notice and information from the Commission under this part, the Commission will provide such notice and information to the jointly designated person or entity instead of the Governor and legislature separately.

[5-69765--Geerdinatient The-94 rester-may-take-inte-aseewat-the-desirability-ef-aveiding duplieatien-ef-effert-in-taking-aetieR-en-multiple-prepesals-submitted pursuant-te-the-previsiens-ef-this-Swbpart-te-the-extent-this-ean-be aseemplisked-witheut-substantial-prejudiee-te-the-parties-eeneernedr]

14 Enclosure G

November 8, 1984 SECY-84-263A For: The Comissioners From: William J. Dircks Executive Director of Operations

Subject:

10 CFR PART 60 -- DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTE IN GEOLOGIC REPOSITORIES: AMENDMENTS TO LICENSING PROCEDURES

Purpose:

To transmit recently received coments on the subject amendments from the States of Minnesota, Nevada, and Texas, and the Environmental Policy Institute Discussion: Proposed amendments to 10 CFR Part 60 initiated in response to the Nuclear Waste Policy Act dealing with site characterization and the participation of States and Indian tribes, dated June 26, 1984, were submitted to the Comission (SECY-84-263) for approval to publish in the Federal Register for comment. Included in that Commission paper package is information on coments previously received from States and

public interest groups.

As noted in SECY-84-263, the Commission paper has been placed in the public document room. It was also discussed at a meeting of the National Governors' Association due to the high interest of States and affected Indian tribes. Additional coments on the proposed amendments have been received from the States of Minnesota, Nevada, and Texas, and the Environmental Policy Institute (Enclosures A thru D). All of the significant coments in these letters concern four issues; 1) NRC review of DOE's site screening and selection process,

2) the decoupling of Part 60 and part 51 revisions which are needed to reflect the Nuclear Waste Policy Act 3) the elimination of the draft site characterization analysis, and 4) concern about the basis for standing of States and tribes in a licensing hearing. All but the last of these issues are discussed in SECY 84-263. However, the staff believes the recent coments on issues 1), 2), and 3) above warrant additional analysis and discussion (Enclosure E). Analysis of all of the issues is contained in Enclosure E. As a result of this analysis, the staff has concluded that these additional comments do not provide any new infonnation which would lead it to change its recomendation to the Commission contained in SECY-84-263.

J. R. Wolf, ELD 49-28694 E. Regnier, NMSS 42-74781 C. Prichard, RES 42-74586

The Commissioners 2 The comment letters and the staff. analysis / discussion are hereby provided to the Commission for use in its consideration of the proposed amendments. Other, less significant comments are also contained in the letters. The staff proposes to address these along with comments received during the public comment period.

/

~

William J. Dircks, Executive Director of Operations

Enclosures:

A. Ltr from Minnesota Environmental Quality Board dtd. 8/1/84 B. Ltr from Nevada Nuclear Waste Project Office Office of the Governor dtd. 8/17/84 C. Ltr. from Texas, Office of the Governor dtd. 9/19/84 D. Ltr. from Environmental Policy Institute dtd. 8/3/84 E. Staff Analysis of Comments DISTRIBUTION:

Cormnissioners OGC OPE OI ACRS SECY

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STATE OF MINNESOTA COMMENTS ON THE PROPOSED AMENDMENTS TO 10 C.F.R. PART 60 The State of Minnesota has reviewed a draf t, dated June 26, 1984, of amendments to 10 C.F.R. Part 60, " Disposal of High-Level Radioactive Waste in Geologic Reposittories," which has been transmitted to the Commissioners of the U.S.

Nuclear Regulatory Commission (hereinaf ter "NRC") for their review. These amendments were a part of a memorandum from William J. Dircks, Executive Director for Operations, to the Commissioners (hereinaf ter " Staff Memo"). .

Minnesota wishes to comment on aspects of the proposed amendments relating to the participation of States and affected Indian tribes in site characterization analysis and licensing reviews.

1) Minnesota strongly disagrees with the NRC staff regarding the contents of the site characterization plan. Because the guidelines lack any provisions requiring DOE to set forth its method for selection of sites for charac-terization or describe its decision process, we believe that the NRC should -

request that such information be provided in the site characterization plan.

Requiring such information by the NRC does not conflict with NWPA or dupli-cate information already provided by DOE. Page 2 of the June 26 Staff Memo notes that:

The Waste Policy Act specifies that 00E will prepare an environmental assessment for each site nominated for characterization. The content of these environmental assessments is specified and includes the type of site selection information previously required by 10 CFR 60 in the site characterization report.

However, it fails to note that the site selection information pertains only to the selection of the five nominated sites, and not to the selection of the three candidate sites; it is not duplicative of information previously required.

Enclosure A offers justification of the staff position by relying on a narrow and specific interpretation of NWPA (page 10) and the NRC's own i statutory responsibilities (page 13). There is no provision precluding the NRC from considering site selection information; instead, Section 13(b)(1)(A)(v) of NWPA authorizes the NRC to request "Any other information required" for its review of a general plan for site characterization. f Because the site selection information for the three candidates sites is not i available elsewhere, and because the NRC does have the authority to request such information, we believe it should be included in the site charac-terization plan.

We are troubled by the reluctance of DOE to provide the method and decision process used in the selection of the three candidate sites and the reluc-tance of the NRC staff to review and comment on such information. While we would like to believe that the selection would be based on technical con- I siderations and the desire to produce three viable alternatives, this reluc- l tance leads us to the conclusion that other considerations will enter into l l

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_ .. __ _ - - .- . . - . .__\

the decision. This should not be a concern of the States alone, but also 1

should be shired by the NRC and the staff. The willingness to look at the quality of the data available (page 13) but not its application, compartmen-talizes staff review activities to an unreasonable and unnecessary extent.

Taking this " blind" position is also inconsistent with the NRC's past efforts to develop a participatory role in the process as early as possible.

It is difficult to understand why the staff finds it inappropriate to com-ment on site selection information, particularly if sites are selected that will raise potential licensing issues. There is no way to avoid the politi-cally sensitive aspects of site selection; they are present at each stage of the process.

Rather than be a party to procedures that promote an aura of secrecy, the Commission, in the interest of ensuring that sites selected for characterization are the best among the five nominated, should be pursuing a course more characteristic of an independent regulator than a 00E facilita-

. tor.

We wish we could share the staff's confidence that these 00E decisions will lead to a licensible site; however, the general nature of the guidelines and

• DOE's position on past issues, such as the preliminary determination of suitability, have not been reassuring. We hope the NRC will retain the methodology and decision process in the contents required for the site characterization plan, thereby providing other parties, if not the NRC, with the opportunity to review and comment on those issues.

l

2) Minnesota favors the current language in 10 CFR 60.11 that provides for i public comment on a draf t site characterization analysis prepared by NRC staff. The staff, in Appendix A, page 14-17, assumes that ongoing con-sultation and contact between the NRC, 00E, and the states and affected par-ties eliminates the need for any formal public interaction with the NRC. The staff, however, should not assume that the States or other

' interested parties will have the resources to participate in a manner similar to that of NRC and DOE. This was apparent when similar assumptions were made about the DOE /NRC staff concurrence meetings. Even if States and ,

interested parties are to participate at that level, they lack some of the technical expertise needed to carefully and fully follow and understand the progress of this program in all its complexity.

The States and affected parties would find it extremely helpful to have a document, prepared by individuals with that technical expertise, that analy-l zes and identifies key issues associated with various aspects of the site characterization program. Many of the Stater and parties involved would depend on the NRC to provide this analysis before they submitted their com-i ments to D0E. This is a critical point in the repository siting program and i

every effort should be made by NRC staff to enhance, rather than restrict, i public comment and participation.

The desire to maintain an on-going, DOE /NRC interagency process is commend-able and should be encouraged; however it should not be considered a

. substitute for formal public <eview of the site characterization analysis. I If, as indicated on page 16 of Appendix A, scheduling mandates are to be l

emphasized, then we suggest that this interaction be depended on to reduce  !

the amount of time needed by staff to prepare the analysis and compensate for the time required for public review of that analysis. .

2

- m

3) We note that the current rules (10 CFR 60,11(c)) require that local govern-ments and contiguous States, as well as affected States and Indian tribes, be notified at key decision points. The proposed amendments (10 CFR 60.18(b) and (j)), while still retaining some of the notification provi-sions, no longer require NRC notification of local governments and con-tiguous states.

We request that NRC reconsider inclusion of these entities. County and/or municipal governments are the most directly af fected and should receive notice of receipt. Potential repository sites way be located near State 4 boundaries; in such cases, adjoining states will have a strong interest in site characterization activities and related matters that are to be addressed in the site characterization plan. (See S taf f Memo, page 27. )

The local governments and contiguous States wording should be added to the list of those notified in proposed 10 CFR 60.18(b) and (j).

4) The proposed amendments, if adopted, would change 10 CFR 60.63(a) to read as follows:

' State and local governments and affected Indian tribes may participate ~

in license reviews as provided in Subpart G of Part 2 of this chapter.

l (Emphasis added.) Subpart 6 of 10 CFR 2 is entitled " Rules of General Application." The scope of those rules is stated in 10 CFR 2.700:

The general rules in this subpart govern procedure in all adjudications, initiated by the issuance of an order to show cause, an order pursuant to 2.205(e) [a hearing on a notice of violation], a notice of hearing, a notice of proposed action issued pursuant to 2.105 [ including noti-ces of proposed licensing actions for which no hearing is required] or a notice pursuant to 2.102(d)(3) [ notice concerning the construction or operating permit for a utilization or production facility].

(Emphasis added.) Page 18 of the Staff Memo states: "Affected States and Indian tribes will be entitled to participate in the licensing proceedings." (Emphasis added.) However, the proposed rule amendment s do not create such entitlement. The proposed amendments provide that State and local governments and Indian tribes "may participate" (as opposed to "shall be allowed to participate") in licensing reviews. Since that portion of the sentence does not create an entitlement to participate in hearings, one must i

look to the phrase "as provided in 10 C.F.R.Part 2" to determine whether those entities will be allowed to participate.

I under Subpart G of 10 CFR 2, States, local governments, and Indian tribes do l

not have an absolute right to participation in adjudications conducted by the NRC. Pursuant to 10 CFR 2.714, any petitioner must be affirmatively admitted as a party by the Atomic Safety and Licensing Board before that petitioner is entitled to participate.

The fact that this proposed rule is nothing more than a reminder to States, local governments, and affected Indian tribes of the existence of 10 CFR 2 is confirmed by the following statement at page 27 of the Staff Memo:

e Section 60.63 acknowledges, first of all, that State and local govern-ments and affected Indian tribes may participate in license reviews as provided in the commission's rules of practice. Local governments are mentioned in this context because they may have standing, apart from the State in which they are located, to particpate in a licensing pro-ceeding as a party or partici pate in a more limited capacity. See 10 CFR 2.714, 2.715.

The proposed amendment 10 CFR 60.63(d)(2) also adds a qualifying term that could be used to further limit state participation in the review of a site characterization plan and/or a license application. The current wording of 10 CFR 60.63(b)(2) lacks the word " timely" in its description of the type of state contribution that would be looked upon favorably by the NRC. While we recognize the need to conduct the proposed activities in a manner that does not unduly delay license reviews, we also recognize that the States do not always have the expertise and personnel immediately available to address the complex issues that will be considered by the Commission.

Based on our experience to date with the repository program, as well as our .

expectations regarding the pressures exerted on decisionmakers as the program progresses, we are concerned that the word " timely" will become the focal paint of this qualification, despite the benefits that might accompany state particpation. The key word is " productive" and, if a state can make a productive contribution to the license review, the NRC should be willing to accommcdate reasonable needs of the states in providing that contribution.

Minnesota believes that the proposed rule amendment should be changed t)

' provide an absolute -ight of participation in NRC hearings on licensing a high-level radioactive waste repository to those State, local and tribal governments which are affected by the proposed repository. The decision The being made in such a proceeding will profoundly affect those entities.

possibility that these entities could be excluded from participation should be renedied.

Minnesota's position on this matter is prompted not only by the importance of the repository licensing matter, but also by the recent efforts of the NRC s.taff to " reform" the NRC's rules of practice so that States, local r governments, and affected Indian tribes could be prevented from effectively participating in NRC licensing hearings of any kind. The staff's suggestions for " improving" the licensing process were pubitshed on April 12, 1984 (49 Fed. Reg. 14698). In a letter dated May 25, 1984, Minnesota strongly objected to those suggestions. A copy of that letter is attached.

Minnesota continues to believe that those suggestions would adversely affect all future intervenors and would reduce the public's confidence in the NRC l

as a licensing body.

Minnesota urges the NRC to change the proposed language of 10 CFR 60.63 to read as follows:

Upon request, the government of any State, county, municipality, or Indian tribe affected by the location of the proposed repository shall be granted party status in any hearing conducted by the Commission on the license application held pursuant to Subpart G of Part 2 of this chapter.

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STATE OF MINNESOTA ADDRES5 RI Pt ) TO

= OrrtCE OF TGK A TTie n % I:V G B:% Est M.

ATTOR NL) (.L%I R u 's os y ga ST. PAI.*L 33133 t tt i orc .

HUBERT H. HU.\tPHREY. lli RO5I\HII,sts Mui ATTORSEY GESERAL May 25, 1984 rutrunL ,u: .s,.. n:

- Secretary U. S. Nuclear Regulatory Commission Washington D.C. 20555 Re: Request for public comments on suggestions for procedural changes in nuclear power plant licensing process, 40 Fed.

Reg. 14698 (April 12, 1984)

Dear Sir:

On April 12, 1984, the Commission published a request for public comments on suggestions for procedural changes in the l nuclear power plant licensing process. (49 Fed. Reg. 14698.)

The State of Minnesota, by its Attorney General and its Minnesota Pollution Control Agency, (hereinafter " Minnesota") has reviewed the suggestions published in the Federal Register and wishes to comment on five aspects of the suggestions, as discussed below.

1. Creation of a Screening Atomic Safety and Licensina Board. It has been suggested that 10 C.F.R. Section 2.721 be revised to authorize the establishment of one or more Screening Atomic Safety and Licensing Boards. The screening boards would rule on requests for hearing, petitions for leave to intervene, and admissibility of contentions in all initial licensing proceedings.

Minnesota supports the adoption of this suggestion. The creation of screening boards should result in more consistency and predictability with respect to the rulings made by the  ;

Boards. Under the present system, an individual Atomic Safety and Licensing Board is appointed each time a request for hearing l is received, and that individual Board makes its own j determinations on requests for hearing, petitions for leave to intervene, and the admissibility of contentions. Because each l Board is not necessarily aware of what is being done by other l Boards or what other Boards have done in the past, there is potential for conflicting Minnesota rulings on similar believes that requests, improving petitions, consistency and contentions.

and predictability as to these rulings by creating screening boards would benefit all parties.

.._-....-----,......,......,,veo

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2. Applying Judicial Standards of Standing. It has been suggested that 10 C.F.R. Section 2.714 be amended so that no I person would be able to initiate a hearing on a nuclear power plant or intervene in a hearing on a nuclear power plant unless that person can meet judicial standards of standing.

Specifically, 10 C.F.R. Section 2.714(f) is proposed to be amended as follows:

i (f) Ruling on request for hearing or petition to intervene. The Commission or the presiding officer designated to rule on the intervention petition or request for hearing shall, in ruling on the request or petition shall [ sic] consider the following factors, among other things:

4 (1) The nature of the requestor's or petitioner's right under the Act to be made a party to the ~

proceeding.

(2) The nature and extent of the requestor's or ~

petitioner's property, financial, or other interest in the proceeding.

(3) The possible effect of any order which may be entered in the proceeding on the requestor's or petitioner's interest. No request for hearing or petition to intervene may be granted unless the t

Commission or the presidinc officer designated to rule on the request or petition determines that the requestor or the petitioner meets judicial standards for standing.

i Minnesota strongly objects to the suggestion because it is contrary to express provisions of the Atomic Energy Act ('Act).

Section 189 of the Act provides, in relevant part:

In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control,

. . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

(Emphasis supplied.) Under the Act, any person "whose interest may be affected" has standing to request a hearing or to intervene in a hearing and the Commission is required by the Act to grant such a hearing request or admit any such. person as a party. The suggested amendment would require a person's request

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

or petition to be denied if the person could not meet the more stringent test that must be met to establish judicial standards for standing.

Judicial standards for standing are discussed in the leading case of Association of Data Processine Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

In that case the United States Supreme Court announced a two-part test for standing. Standing exists if "the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise," and if "the interest sought to be protected by the complainant is arguably within the zone of interest to be protected or regulated by the statute or .

constitutional guarantee in question." 397 U.S. at 152-153, 90 S.Ct. at 829-830.

The suggested amendment goes beyond the requirements of the Act and is thus 'eyond the Commission's statutory authority.

Therefore the Co. mission cannot adopt the suggested amendment.

3. Changing the Requirements Relatina to Contentions. It has been suggested that 10 C.F.R. Section 2.714 be amended to change the requirements relating to contentions. These changes, as discussed below, are significant, and Minnesota objects to these changes.

First, the suggested amendments would change the time for filing of contentions. The existing 10 C.F.R. Section 2.714(b) allows the person who requests a hearing or petitions to intervene to file his or her contentions "not later than fifteen (15) days prior to the holding of the special prehearing Section 2.714(g) conference." The suggested amended 10 C.F.R.

requires the contentions and supporting information to be submitted "at the time the petition or request is filed."

Second, the suggested amendments would greatly increase the .

burden on the person who requests a hearing or petitions to The intervene to provide information supporting the contentions.

present regulation, 10 C.F.R. Section 2.714(b) only requires the

" bases for each contention set forth with reasonable specificity." The suggested amended regulation 10 C.F.R. 52.714(g)(1) would require submission of the following:

(i) A brief explanation of the bases of the contention.

(ii) A concise statement of the alleged facts or expert l opinion which support the contention and which at the time of the filing the requestor or petitioner intends  ;

to rely upon in proving its contentions at the hearing,  !

) '

l 1

_4 together with references to the specific sources and documents which will be relied upon to establish such facts or expert opinion.

(iii) Sufficient information (which may included information pursuant to 52.714(g)(1)(i) and (111) to show that a genuine dispute exists with the applicant _1/

on an issue of law, fact or policy. This showing must include references to the specific portions of the application (including the applicant's environmental and safety report) which the requestor or petitioner disputes and the supporting reasons for each such dispute, or, if the requestor or petitioner believes that the application fails to contain certain information on a relevant matter as required by law, the identification each such failure and the supporting reasons for the requestor's or petitioner's belief. On issues arising under NEPA, a petitioner shall file -

contentions based on the applicant's environmental report. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement or appraisal that differ significantly from the data or conclusions in the applicant's document. Amended or new contentions based on NRC environmental documents shall be filed and ruled upon in initial licensing proceedings in accordance with paragraph (j) of this section.

(Emphasis supplied.)  :

The suggested amendments relating to contentions create an impossible situation for intervenors. Ordinarily, in accordance with the provisions of 10 C.F.R. $2.lO5(d), the Commission informs the public, in the Federal Register, about a proposed license or license amendment thirty days before the due date for the filing of requests for hearing or petitions to intervene.

This has, in most cases, been just barely enough time for a potential intervenor to make a decision that it is interested in filing a request for hearing or a petition to intervene and to file the request or petition. Additional time is essential to

, allow for the drafting of contentions. Under the suggested i amendments, potential intervenors will have a maximum of thirty i

_1/ History has shown that intervenors in Commission licensing proceedings are just as likely to have a genuine dispute with the Commission staff on issues of law, fact, or policy as with the applicant. If this suggested amendment is intended to limit litigation of disputes only to those between the applicant and the intervenor, this suggested amendment is not -

reasonable.

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

. ~ .

days to obtain a copy of the license application and supporting information, review that information, note all problems, develop a case-in-chief, put it in writing, and submit it within the deadline.

The requirement that intervenors must submit, along with their contentions, all of the information set forth in the suggested amendments to 10 C.F.R. Section 2.714(g)(1) amounts to a requirement that intervenors have ready their case-in-chief at the time of filing the request for hearing or petition to intervene, prior to the opportunity to conduct discovery. This requirement is much too onerous at the point in the proceeding where the only decision to be made is whether a particular contention is admissible. It is more onerous than the requirements in any judicial proceeding. Minnesota recognizes that this information must eventually be developed in order to have a meaningful presentation of the issues. However, this .

i information should not be required at such a preliminary stage.

Under the suggested amendments, the only persons who have a hope of submitting an admissible contention are those who have been privileged to have received a copy of the license amendment as the same time as the Commission staff received it, who have followed the Commission staff review and the drafting of the proposed license or license amendment, and who have been preparing their case in chief prior to the publication of notice in the Federal Register of the existence of the license application. In a state such as Minnesota, which is a non-agreement state, it is doubtful that anyone, including the State and its agencies, could submit a successful request for hearing or petition to intervene.

In Minnesota's experience, the present rule allowing contentions to be filed just prior to the special prehearing conference has allowed sufficient time to prepare meaningful contentions and the statement of bases required by the present rule has provided sufficient information to allow the Licensing Boards to rule on their admissibility. Therefore the present rule should be retained. The suggested amendments are unreasonable and should be rejected by the Commission.

4. Requiring a Demonstration of Soecial Need for Cross Examination. It has been suggested that 10 C.F.R. Section 3.733 and 2.743 be revised to permit cross examination only upon the request of a party filed within 10 days after service of the written testimony concerning a particular issue and limiting cross examination only to those parties who have submitted an admissible contention on the issue. A motion to cross examine 4

-e f

must include a detailed cross examination plan and a statement as to why written testimony could not establish the same points.

Minnesota regards this suggestion as entirely unacceptable.

The major purpose of a Commission licensing hearing is to adiudicate disputed facts. Trial-type procedures are not only appropriate but essential to develop a full and complete hearing record. The right of parties to cross examine witnesses in an adversarial proceeding is a fundamental characteristic of the adversarial process arising from basic constitutional principles of due process. There would have to be an extraordinarily good reason to remove that constitutional right entirely from persons who did not happen to file a contention on a given issue. Such a good reason is not comonstrated by the discussion of this suggestion. In fact, no reason is offered by the discussion of this issue. .

There are perfectly legitimate reasons why an intervenor may wish to, and should have a right to, cross examine witnesses on I issues raised by another party. Many intervenors, including states, have limited resources to devote to Commission licensing proceedings. They be forced by this fact to coordinate their efforts with other intervenors and to divide up the workThus with two respect to issue in which they have a common interest.

intervenors may, to avoid duplication of effort, agree between themselves to assert different contentions but to support each other with respect to the presentation of evidence and the cross examination of adverse witnesses concerning these contentions.

In addition, given the complexity of the subject matter, an intervenor may discover that it is vitally interested in an issue which it did not initially identify. The Commission has no valid reason to cut off the rights of parties to fully participate in

- all issues which are the subject of the hearings.

Even where the suggested amendment allsws a party an ooportuaity to make a motion for the right to cross examine witnesses, the terms of the suggested amendment is a de facto removal of the right to cross examination. It is totally unreasonable and unrealistic to expect a party who has been served with potentially voluminous testimoay and exhibits to accomplish, within ten days, the tasks of reading and digesting  :

the material, preparing a detailed cross examination plan, and preparing and submitting a written motion to the presiding l officer. No person who has ever been a party to a Commission j

licensing proceeding could seriously suggest that ten days would  !

)

be sufficient to accomplish all of this. .

The time schedule established by this suggested amendment f

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contains serious potential for abuse by parties with substantial financial resources. For example, an applicant who wishes to ensure that its witnesses will not be cross examined has the opportunity to present the intervenors with thousands of pages of testimony and exhibits which would be clearly beyond the capability of the intervenor to review in time to file a motion for cross examination.

Minnesota emphatically objects to the suggested amendments regarding cross examination and urges the Commission not to consider them any further. .

5. Limitations on Filinq Prooosed Findinos of Fact, Conclusions of Law, and Exceotions. It has been suggested that 10 C.F.R. Sections 2.754 and 2.762 be amended to limit the filing of proposed findings of fact, conclusions of law, and exceptions on a given issue only to those parties who raised the issue in a contention. Applicants and Commission staff, however, would not be subject to this limitation.

Minnesota strenuously objects to this suggestion, as it will not further the Commission's interest in better decision-making and it will severely limit the full participation by intervenors.

As discussed above, intervenors may have a significant interest in contentions raised by other parties. There is nothing inherently unfair about a party submitting its views as to the state of the record on an issue which has been duly raised in an adversarial proceeding. The filing of proposed findings of fact and conclusions of law does no harm; on the contrary, it could be of help to the decision-makers. The filing of valid exceptions by persons other than those who put an issue in controversy is likewise no threat to sound decision-making. This suggestion is not supported by any valid rationale and should not be adopted by the Commission.

Minnesota appreciates the opportunity to comment on the suggested amendments, which, if adopted, would have a profound impact on the ability of Minnesota to participate in any future t

Commission licensing proceedings. In general, the suggestions l

,are inimical to intervenors and to the public. The suggestion

'that these amendments would " improve" the hearing process is F

l

ironic. The ' improvement

• would consist of the elimination of all hearings other than those requested by applicants.

Very truly yours, HUBERT H. HUMPHREY, III Attorney General By ML -

KELYp' F. OLSON M c_^ D ^- t

' MAR ENE E. SENECHAL Special Assis nt Attorneys General e

_ _ . . _ _ . _ , _ . . _ . , . , . _ , ._ , __.m, -

%# ed

)

ENCLOSURE B

~:

%N Minnesota Environmental Quality Board bN oNE POR /

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LPOR / j 100 Capitol Square Buitding Mi@c --</epj m 1 550 Cedar Street HM =L A o /s & cd J n St. Paul, Minnesota 55101 MMg. h/ C. -Mg

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August 1, 1984 ed

^ $

es Mr. Robert Browning =. n8 Director, Division of Waste Management is 04 '

Office of Nuclear Material Safety and Safeguards "

U.S. Nuclear Regulatory Commission EU3 3  :

1717 H. Street =

20555 71 Washington, D.C.

if 5

Dear Mr. Browning:

Thank you for distributing copies of the proposed licensing procedures amendments to 10 CFR 60 and associated documents.

Minnesota appreciates the NRC efforts to solicit comments from the states in advance of Commission action on the draft proposed amendments.

We agree with the Commission staff that some of the licensing provisions of 10 CFR 60 require amendment following passage of the Nuclear Waste Policy Act. Like the states of Texas and Nevada, however, we are unwilling to endorse changes in the process that will limit the breadth of state participation. We are most comfortable with a process structured on formal rules rather than good intentions. Given the length of the repository programs, as well as the enormous complexities and uncertainties associated with siting and licensing a repository, the Commission should be willing to err on the side of caution, despite the possibility of some duplication and added cost.

These amendments follow the recent release of proposed re f.sions in the Rules of Practice for Domestic Licensing Proceedings L0 CFR 2),

which Minnesota has already commented on, and compound o.. concern over the Commission's commitment to state participation. <f these combined changes are adopted by the Commission, they will significantly restrict state involvement in matters in which states cocid be greatly affected.

In the case of the amendments to 10 CFR 60, the staff has proceeded to alter more than was necessary to eliminate the real conflicts between the current rules and the Nuclear Waste Policy Act. In addition, we disagree with the status the staff ascribes to the DOE /NRC Procedural Agreement, as set forth in the June 26 Staff Memo the Commissioners. We do not view the Agreement, a document that assigns to members of the public an observer role, as our guarantee of state participation. Nor do we view the Agreement as a substitute for the NRC's regulatory responsibilities.

ENCLOSURE A AN EQUAL OPPORTUNITY EMPLOYER

Mr. Robert Browing August 1, 1984 Page Two Our desire to maiIntain more than a single avenue for state participation is due, in part, to our past interaction with the NRC.

This interaction has been positive because the Commission has demonstrated a willingness to listen and respond to state concerns.

The desire also is based on our belief that formal, constructive state participation is beneficial. We believe that both DOE and the NRC can identify specific areas where state participation has already contributed to significant improvements in the program, and we want to ensure that this interaction continues.

j With this approach guiding over review of the proposed amendments, we offer the attached comments for your consideration. Please contact us if you have any questions or if we can be of further assistance.

Sincerely, 3 i A

Q \. r-  ?.

Tom Kalitowski, Chair Governor's Task Force on High-Level j Radioactive Waste TK/pb cc: NRC Commissioners Congressional Delegation First and Second Repository States Jim Duchaine, Minnesota Washington Office Holms Brown, NGA T

i

• R CHAR 3 H. BRYAN STATE OF NEVADA ff )e #

I WN DOCKET CCNTROL CENTE?

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NUCl. EAR WASTE PROJECT OFFIdd Alf? 22 A!0:59 OFFICE OF THE GOVERNOR Capital Counples Ca, son City. Nevada 89710 I

'(702) 885 3744 -- -

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Aug'ust ' 17, 1984 IU

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C:dct No, __

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PDR. /

Mr. Robert Browning, Director LPDR _ /

Distribution-Division of Waste Management ~6 ,., --

U. S. Nuclear Regulatory Commission

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Washington, D.C. ~ 20555 (Return to WM,65j.52)

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g 2 Dear Mr. Browning [ [ ~ "

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Thank you ~ f6r providing Nevada the oppportunity to comme'nt on changes contemplated in 10'CFR Part 60, " Disposal of High '

Level Radioactive Waste in Geologic Repositories".

~

We have the following . comments to offer with regard .tq the

.. proposed amendments to licensing procedures, SECY-84-263:

~

1) The ~ suggested " changes to! la CFR' Part 60 appear to unnecessarily limit NRCs ' WEP A responsibiliti~es as they relate to site screening. We believe that the Commission has a broad responsibility . in this . regard.

This responsibility require.-s intimate' involvement in the site. screening process in order to provide an adequate basis for reviewing'and a d o p ti ng

• DO E',s Environmental Impact. Statement later'on. ~

T . . . .~ . . l ' . T ~ /. ' '. . . . ~.~ ." .

The -prociasslb?. 6thich' DOE screens 'and ' selects a site ca nno t "'bi- 'se pa h a te d fr'om'the ' eventual' licensing process. NRC's responsibility to assure a safe and

acceptable .. site . extends logically 'to a review of the_,

mechanism by ' which ' s,uch a site was selected. [IfNRC'sthe

. screening' and. selection process is faulty,

~

responsibility to. assure safety may be impaired and its , -

.- ~

~

~

li c e n s ing ' 7d e c:i s io n , ba's e d on,less th an ..co m pl e t e- -

in f o rm a tionr' tons eque ntly; we woula~ encourage the Commission"to clearly affirm its role in site screening  ;

I and site selection..in-10 CFR Part 60.

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l, . ENCLOSURE B l .

Mr. Robert Browning August 17, 1984 Page Two

2) The proposed rules ~ governing the site characterization Plan should provide for the same level of information, the same process requirements, and the same level of analysis for ' socioeconomic, transportation, environmental, and institutional aspects as they do for the technica~1- elements involved in site characterization. These non-technical sections of the SCP should.also be updated by DOE and submitted for

'. review by NRC and the states every six months. The director should require, as provided for in le CFR Part 68 and in NWPA,'. that DOE include .these elements. in the .

Site' 'Characterication ~ Plan'."

' ~ ~

3) We ' believe that NRC should promulgate all new or changed . rules deemed necessary. as a. result of.the -

passage of the Nuclear Waste Policy Act in one rulemaking .in order to assure that a comprehensive and - .

~integ rat'ed *ap'proach' is 't'aken and' that any confusion i

regarding .N.WPA and, NEPA , requirements is eliminated. ~

The Commission's proposal' to address NEPA issues in a separate.rulemaking at some time in the future may . , .

cause unnecessary fragmentation of NRC's requirements and even its authority .. '.--__-,.-.;.;... , _ -,: , .

The -State-'of" Nevada suggests that the responsibilities 4) and "perog~ati'v' es"'of ~~the Nuclear' ' Regulatory Commission, i as they were' originally expressed in Is CFR Part 60, .

remain essentially unchanged by ' the Policy Act.....,s ... .

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• Nuclear Waste

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The NWPA clarified and ' focused the NRC role.vis-a-vis the siti5g, #charac'teri2ing~, ' licensing [' constructing,- ~ '

i operating, . closing .and decommissioning .'o f - a . .

radioactiv'e' waste ~ repository. ' Howeve r, 'it does not'

appear to have been the intent.of the-.Act,to,11mit.... . . . ~ '

N RC's Yo l~e ais "$ PiYn 5Yf O e r's e e r ~5 f ' h'e a l t h" a n'd~ s'a f e t p '

concerns as provided in.19.CFR.Part.68 and 19.'CFR Part.;,..; -

2;. . . ..a . . u.. ..: : ...;,.. .

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Wh-ile -NRC 'maY nee'd tio

• reirin ' ce r t a'in "elem e n t s ' o f '

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exis ting 'r eg ula tio.ns .i n . o r ca r to mo re . clo sely , _. ~ ~

'synchronizenitsProle. wi'th"tihe' pr6 isio'ns' of the 'NWPA,.[f '

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- it should 'in no' way. 'f eel oblig a t ed. ..to r e d u c e . i t s ;f -e.. ,- -

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' 'cinf1'uencTf 'r~'iYivofviime~nf o by "de~f e rring ' t@ DOE ' impo rtant ' ' '

'i

~~' responsibilities such as assuring involvement of. states . .,

" i

and affected Indian tribes at key s'tages of th's I respository development process. The mere fact that j the Act imp'osed upon DOE the requirement to so involve l states and. tribes does not, in our view, preclude NRC ' '

.f r o m a separate . responsibility for providing for -

state / tribe involvement via i ts own procedural *

... g . : . . . . . < . w.~ n., ~ - ..~..

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. . - , . . ,- , - - - . - , , , - - - - , , - .--,--y - - - . - - - . - ----w-,----w---- , -----..--v,-,,e-, - - . - , , , , - , - - - . , - - - - , - . - - - - , - , - - .w-.-- , . , - - - ,u -, - - -

Mr. Robart Browning

, August 17, 1984 Page Three rulemaking. In fact, given the widely varying mission of DOE and NRC with regard to the overall respository process, state and tribal participation in NRC's deliberations and actions vis-a-vis DOE would appear to be crucial for NRC to provide adequate licensing oversight and control.

5) NRC, through its regulations, should provide full

, standing for states and affected tribes in the licensing process. Any state or tribe which contains a potentially acceptable site for the construction of'a repository should . be . declared a full' party in the licensing proceeding 'and such status should be stipulated in 16 CFR Part 69.

6) We believe that there must be adequate opportunity for states to co' ament on the Site Characterization Plan during both DOE's and NRC's involvement. The. mere fact that DOE is' required to hold public hearings and to consult with states and affected tribes is no -

guarantee that state and tribal. concerns will be )

heeded. Therefore, NRC should request public comment '

on its Site Characterization Analysis.

A requirement- in 10 CFR Parf 60 for a draf t SCA subject to public comment would allow NRC to assure that the 4 spirit - not just the letter - of the NWPA is being ,

addressed at this crucial stage .in respository: .

planning'.

Nevada believes tihat th'e Commission is charged with the ,

7) 1 responsibility. to .make an independent determination as

to- whether o r no t' ' the use of radioactive material is l necessary to provide. adequate environmental data for a respository bon'struction authorization. .I t Is

~

important that 18 CFR Part 60 clearly specify NRC's j responsibility. and' regulations .in this regard.-- . -

.. . ... ~ . . .

~

Enclosed please ' ' find '.a': more detailed discussion regarding i these aforementioned comments.. Should..you. have any questions, or -

l wish to discuss these issues-further, please do.not hesitate.to

.. contact me. ,,,,,4,. ,,,__,,g-llj q g, _, . , , , , , , .,.

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Robert R. Loux .

' Director . .

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Encl. ,.

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COMMENTS OF THE STATE OF NEVADA REGARDING AMENDMENTS 'It) 10 CFR PART 60-DISPOSAL OF HIGH-LEVEL

. RADIOACTIVE WASTE IN GEOLOGIC REPOSITORIES:

Amendments to Licensing Procedures, l

- - . . . . .- ;L . .,. .SECY-84-263 . ..a.. .. .s . -

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The State of. Nevada submits.these Comments in response to the July 2,1984 c -

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request by Catherine F.- Russell, State / Tribal Coordinator, NNWSI, Division of

. r. .. . .. . . . . .

Waste Management, Office of Nuclear Material Safety and Safeguards, United '

- : . .? -l3.:s". .- -T .Ws. . G '". e7 rl s- .y % .r M . . .h States Nuclear Regulatory . Commission. ? These Comments are made with the

.. . - -. ~ .. .. : ::. . . .. . .; .

understanding that staff is proposing a rulemaking,' amending 510 CFR Part 60.

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The State of Nevada does not waive or relinquish the right to participate in and 1 .. . .,.. ...c ,

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comment freely'in that rulemaking by the submission of these informal comments

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

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Basulatory Amendment r' _ ---- : of Passere of the Nuclear Waste Policy Act.'

9-... . . . .. .

- Earlier this year the Commission sought comments on proposed regulatory

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. reforms concerning its general rules of practice contained in 10 CPR Part 2, some

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of which changes were necessary as a consequence-of the passage of the Nuclear ,

Waste Polley Act. In the proposal to which these comments are addressed the staff

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proposes an.iaiidments to the IIcensing ' procedures of 10 CPRg-.Part .-

60 as a... :

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j consequence of the passage of, the Nuclear Wast,e Policy Act. The Nuclear Waste r.. '

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s NMilities for th's Nuclinar Regulatdry Commission and ~~

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-) - - a v, e m .u-new rights and responsibilities for affected states. In order that the Commission

, ... . . . , .,., .r. u m. r. .: . :u . . - .

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

a way which provides the stHes and other interested parties with their full rights under the Act, the' Commission should promulgate all new rules reflecting the

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

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State Rights to NRC Information-Consultation. )

I At page 16 of Enclosure A to SECY-84-263, the staff states as follows:

- . . . . . . . . . . . . )

. "Under the Waste Policy Act, the Commission is directed 'to  !'

provide ' timely and complete information regarding determinations or i plans made with respect to site characterization, siting, development, design, licensing, construction, operation, regulation, or decommission- -

ing' of a repository, Sec.117,42 U.S.C.10137, but this affords no rights to States and Indian tribes beyond those already in law. H.R. Rep. 97- -

l 785, Part I at 74." ..- - . = -

This basic assumption is, incorrect. It is based upon an incomplete reading of l

. l i the authority on which it relles. Under 5 Il7(aXI) of the Nuclear Waste Policy Act, 42 U.S.C.10137(aX1), a state containing a potentially acceptable site is entitled to complete. information from the NRC, as well as from DOE and "other agencies involved., , Section 117 does provide new rights to the states which .

did not exist before.the enactment of the Nuclear Waste Policy Act.

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The. authority won which the staff relies is found at page 74 of the Report of

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

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the y _ - q:;d ._

language now foun.d in 5117 of the Act ,as passed. 'The complete relevant tart is as e .y y **y.--

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. " Consultation With States and Indian Tribes '

Section ll7(a)(1) directs the Secretary, 'the Commission and all

. other involved agencies to provide the governor and the state legisla-ture 'and,'where appropriate, the governing body of any Indian tribe affected, timely and complete information regarding determinations or i

plans made with respect to the siting, design, construction, operation or regulation of a repository. While it is expected that the appropriate i

state and Indian officials wiu be informed of pending decisions in time

! 2 i

_ _ _ . . _ _ _ , . - - - - - - - - . - - - - - - - - . - - - - - - - - - - , - - , .._--- - - - . , -. - ..---.. - ,-,-,..,...---..-, - .- -. - I

.. .. 1

. 1 1

for these officials to provide their comments and be afforded 'the opportunity to have their views heard prior to the time when a decision becomes final, it is not intended that this provision give the appropriate .

state and Indian officials any additional rights to information beyond j those.already provided in law to parties and the states regarding the licensing decisions of the Nuclear Regulatory Commission prior to the l public announcement of such decisions. It is expected that the

Commission will provide the appropriate state and Indian officials with

_ timely.. access _.to..information regar. ding determinations or plans avail-able to the Commission with respect to an application to construct or -

operate' a Nepositorp. 6This" provision does -not'=vait' these~ state and "-M .

Indian officials with any new statutory cause of action against the.

. Commission regarding the internal deliberations of-the licensirig board, . -

the appeals board or the Commissioners regarding matters which are under consideration or which are in dispute, or impose any requirement

• that the Commission and its hearing boards must consult with the' appropriate state or Indian officals prior to deciding an issue which is ; e;-

within the licensing authority of the Commission." , ,

-w ~~ n-

. . . . z . =. . . ;.; H.; .- . v; . .

. =:,::..; ..

..R

. It is clear from a complete reading of the relevant report language that "

the "a

~ -

! +15-. :e :. . .r. . %. . w n .- - . : .

-- . ? . . m..

- -.~,

s Committee on Energy and Commerce intended that the rights granted to states 3 . .t . . O . - - ^--.--

• ~

. .. eari .

under 5117(aX1) be limited only to the extent that they do not grant to states access to the deliberations of a 11 censing board, appeals ' board~ or the Commission.

. . . . . , 4 a.: p. .p . . . . . - n . . . . . . . -: 5 :' . ~ 1, c - _ . . . ,-

) "Dinformation regarding determinations or plans made with respect.to site char-

) - 9 . =. a-i :-P:;t h* h. *b?gICy- :t- M .. ? M '. e <.: % .% -:*. . L -'. p . -- py: Q,,v seterization, siting, develop, ment, design, licensing, construction, operation, regu-

, .. 5 :. .cg . .1'a-T I."LM_ .-: 7 ". .. . . *d .

m- ,

e,* .

i 2 ' . ;, r

lation, or decommissioning" may at times be within the internal deliberatiors of 4

. -Lp .--,- %2 : .:-2. ; - " -j . . . v -_.--. .. .,j. . _ , , , , . . c

~

such boards or the Commission but' generally speaking and certainly a,t this early l

-- . ., - . .a s = r;,, . u,. . ..; ,

. b ..: . .-3 n x:  :

stage, would not be. _ . . .

. I l

. rc te.. r... %a..d. 42,twn-M.. . ..#Srw.-*WS. ah. t...d,coure..&.diaee..w../.-@t .trc -

3.. ._ . .. .

<: . s : mh--y k;; & .*y&.i. - -. , .

w i.n : . 4 n % .-3;= ., b~hF '

The State..of_ Nevada is concerned that<- it be entitled, not only to receive r, ; y

• i yr-4 ,_ r,; .

f$ . . .Y. .".'9,1r,p a,.s L. %  ?

.g. j,.f , . , ,, ,,

complete Information,, but to comment upon that inf,ormation within an NRC , , ,

~

. . . : .w:; .: : -

is,ee,Mral framework which allows the consideration of and action upon that-

~

5.r.9-p 4 2:Whn t. c~.Y-+ ?4. .' . c::.Sc.V Y W m . @.093_'F "

comment. Unless such a framework exists, the statutory grant of a right. to'- .

. a :-::.tx36 u. w

-

, - .. . - . . . . . - .. :p :- ..:; _:

l .

! complete and timely information becomes meaninglesa.

l .a...,

.. ~ . . . - , - - . . ' -

,. .. * -h

.- y:-~.

n- , t.3 c. .--"--  ;.3 . . _-~ . --.; ., - .. . . . . - .,

- A relevant case in point is the proposed amendment to 10 CPR Part 60

( .. . .. .w_. . . . . . . :i v . . m .a_. .

l deleting the requirement that the Site Characterization Report (plan) be made .

..w ..

j

. 3 l .. .

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

- the statutory requirement that the Department of Energy do the same. See discussion at page 14, Enclosure A, SECY-84-263. Though Nevada would certainly agree that current 10 CFR S 60.11(c) is,duplicative of the statutory requirement, S 60.ll(d), and (e) are not. Section 60.11(e), in particular, requires not only at least a 90 day comment period, but that the " Director's final site _ characterization analysis ".take into ..account comments received and anys additional information acquired during the comment period." The State of Nevada is concerned that the i Commission not forego its role of listening to the states and heeding their comment, in defference to ,..the Department of' Energy. As the State of Nevada became so completely aware in the process of NRC concurrence in DOE Siting I Guidelines, the Commission has a. capability of listening to states and consideri their comment which. the Department of Energy may not have because of its mission orientation with respect to repository development. ..

~ - .p y . ;_  : .. :- :: c.y- c........

)- .. . .. . ,, - . . , . . . ,, . . .

j The M h n. . . ... ... ..._

Relevant Statute and Rules. .

.,It is basic .t$at..the NRC's grant of a license to construct a high-level nuclear

s. . : . .j + . . .  :::;-:,c -: .: . . . .:: <

,;e . . -.;; .

waste' repository .. ,

is e,ontrolled by 5114(d) of the Nuclear Waste Pulicy Act, 42 USC -

10134, and -2.

b.y..

".t.he. laws applicable to such applications,"

1.e., the Atomic Energy

.. ~

Act and the Energy Reorga..nization Act, of 1974. Though it does not now

. -...~..e. .

,,e . . t .. . . . . . . . . _ . . . . u. . .  ;,.... . , . . . . . . . .

. ~-. . ~ . . ..

. . specifically so p*rovide, one would assume that.10 CPR Part 2, .-subpart G, .Rules of . .

. ., a. .

.- -",p ,w m- s ~ . -  :-:: . :. -

,i .;; . :.:-

General Applicability, would apply to repository.lleensing proceedings. Of course,

! 10 CPR Part 60 would apply, and prior NRC decisions and case law construing both j

j -- - -

are relevant. - _- ,, - - . _g .,;:.: .

. . . . e ; . . 4. .'. . . v + .".C a .v}..- - -

i 4

l .

)

i ,

Assuming this to be the complete body of law describing how NRC repository l

) licensing would occur, numerous questions now exist about a host state's role in the .

~

licensing process.

7 ._. _ . - . .. . .. .. .. ., ..

1 Host State as a Party in License Proceeding. '

. 1

. Neither 10 CFR Part 60, in its current or proposed form, nor'10 CFR Part 2, ,

subpart G. declare, overtly. that a state .within wil .

,i ch a nulcear waste repository is

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

~

proposed to be. p.l.a.ced. w.ill.b.e. a full party to the license 'proceedmg. ~Because the Nuclear.W. a.ste .P..o.li.c.y.'.A.~ct' de.s.c. r.i.be,s the signifi.canc.e of state part.icipation in waste, facility l.i.ce.n..s.ing,.:a.b.o.s.t e.

statapould.certainly .m.e.e. t. ju..d.ici.a.l standards of standing. .

i and would.be an,,eligable.in,tervening party ,asAt., concept;is. utilized in 10 CFRc S 2.714(f).as, proposed.in,49.F.R.14698 earlier this year.,,10 CFR Part 2, subpart G. ,

would controlytandards.for (state participation.;in IIc_ense proceedings under.the;.

Proposal containedjt;ppgd2,,, Enclosure, SSECT-84-263...This, proposal is not,.

[

howe.ver., adequ..ata.in..th.e s,. . e.ye.s o.f t.h,.e Stat.e. of.. N..ev.a}da., . Any stat.e which. c.ontains.a.

r 3 ..

Potentially;accep, tabla,sita,fori.the construe, tion of a.re'pository should be declared a;.

full party in th.e...fut.u. re l.ic.e.ns.e. MM by ru.l.e.. 'As such a; party, not. a merip ,

intervener., , t.ha .=*ata.[s,hould, bk. entitled. to. equivalent procedural _4,rightsf and,.

am,en.i. tie.s. a..s. t.h.e.a..ap.ar.,tm..ent c o..f e E.n.x.rg.. .,.T..h..i.s,wo..u.l.d. ,;,o. .f.c.o. ur.se, ,in.,.cl.ude

.. . .u .- 7 ... .

.. . . . . . . .t,he r, igh.t, Introduce .ev.id.e.n.c.e., pu.t.or.g..w. i.tn.e.s.s.es., cros.a.examina. tion, full notice and service. of.u.

u Jjall pleadings,.fullfights of discovery,;and standing to appeal. . ...,,.,_;, .

. 33,.,,.;.q;g,, _77

. .. . ~ . .

.a.... . . . w. : .,t -g...  : ., .... . .

a . . ., _ ; . ; , . -. n. . .

-y

.,w;- e p.9

. a-

... L.; ,; 2.9simr;$ie: r " -~': -

. n.1.T. , :.: .  ;

' - > . . , - .-.n..-

. At:page .18, Enclosure;A< SECT-84-263, the.' .

• proposal  :. states that "Affected~; ;'-~

- - .. ... . .n.......:.- . . . .

states and Indian tribe.s w!!I be.. entitled to participete in the licensing proceedings."'.

It would seem..th..at. t.he Jtaff, agrees ,with the obvious conclusion that states are i entitled to be.ful,l o.arties.?

r m-

.Yet * : n . -r the" proposed rule' lea'v es a state's party. status ~'to'* --- --

v. ,, . ,

! later deter.mination. .)That .deteemination should ,be ' made, now, a party status, i guai anteed by rule. -

5~

~e ,w , - - -~~ - - - -, , ---ev-,--., .w- w.,, . ,,w v------ ----,--, ._~ ,--.--. ---

,,,,n - ---

,,+,.,,.,,,w,---

O One problem with the deferral of the determination of host state party status is the exclusion of a potential host state from meaningful interaction with the l . Department of Energy and Nuclear Regulatory Commission in prelicensing matters. 1 For instance,1.tha.NRC/ DOE Procedural Agreement, Enclosure 7, SECY-84-263,  !

. l provides for. a significant amount of interaction between the license applicant, - !

DOE, and the licensiing agency," WRC 'l~.The' ~only ? mle allowed states in - this -

NRC/ DOE interaction is the ability to attend technical'. meetings under paragraph .

i .

2.e. If a potential host state is to become prepared to adequately protect its

~ ~

interest in a repository IIcensing procedding it must stand on an equal footing with' the applicant, as a party with full right to participate in the prelleensing process along with the applicant and the licensing agency. _

l'

• ~.;:l': .:

Site Characterization Plan. ~ " ,. . ... .

1 - . .

- . . As discussed at page 23, Enclosure A, SECY-84-263, "the proposed rule omits _.

the mandatory draft site characterization analysis described in exsting 5 60.11.

I However, the proposed rule does provide that the Director may invite and consider'.

~

comments on the DOE site characterization plan and that he may also review and 1 .

~

consider the comments made in connection with the public hearings which DOE is required tEhold?. Proposed 5 60.18(c) in fact requires the I)iretor to review the

~

site characteriziation plan and prepar's a site characterization analysis. Though the 1

Director is required to publish a notice that the ar.alysis is available and allow 90 . ...- -

, -- - ~ -

days for comments, there is no requirement that co,mments received from states or . .

.. ~

I ,

- ' other inferest'ad'perties so the site characterisation" analysis receilve. any substan '

l

'tive weight. Unless such a proviaion is included, a state cannot be assured that its .

~

l i comments will be heeded. While the Nuclear Regulatory Commission may be

\ ...- . . . .

l worthy of a state's trust that it will heed state comment, this requirement should

• l . be reduced to rule to insure state. involvement. .

. 1

~

I _ .

1

The State of Nevada agrees with the statement, at page 14, Enclosure A, t

SECY-84-263, that " Congress intended that DOE should provide the [ site charae-terization). plans sufficiently far in advance so that comments may be developed I

1 and submitted back to DOE early enough to be considered when shaft sinking l occurs, and"at E11 times thereafter."

3 3.u=* r MM t- thg;:.r.c.'p:dr.' ir 5.;-pr:;rinte .. ,r.. .

t .

i .

l  :

. . x 4 <r= eer.n :=1. :9 $. >: n : ".c nme *se -

i

. . Use of Radioactive Materialin Characterization.

, .. n

7. . . . .a.. ;v 1.ie: .-- .c . .: ;e- - ? ..

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

... , . g.v gg s: :.,z;uM vg&t W..a x an 1.5. 2.:ic:i.urc ... .-

that the Department of Energy "may 'not use any radioactive material at a candidate site unless'the Commission concurs that such use is necessary to provide

.-.s., .m..;W. .. .. . . . .

i data foi He preparation of the required environmental reports and an application 1 -

rw sahw.nsw. -as :::sh -r#w mt grant :;mer.tial -:e -c,u ... ,.

j for a construction authorization for a repository at such candidate site;". The j . n..::.1. Ib;r.:inger,r prrt rf.*w.:.i cc wi'rwir.g activity. Se . ..i. s . .- n -

discussion at page 24, Enclosure A, SECY-84-263, and the amendatory proposal at ,

--r -

1  : r;;e. -

l ,

proposed S 60.18(e), page 8, Enclosure G, SECY-84-263, do not correctly apply the l - -

statutory requirement.' The discussion at page 24, Enclosure A, suggests that the J .

.n.23% .

statutdryTanguage only confirms that DOE does not need a IIcense to engage in

W Cctr<nissma cart utF t" r a totel :nt .e >--e scar:!.- . > - . . .-

~. site characterization ~using radioactive material. Though a full license, as that i ~ .T %.*CnrM*1t.1 af - t**e 'pr. : .. tS th*? 'k"4' 4

• C -di 2 .- . . . * . r: . .

i term is ordinarily used, may not be required, the NRC must " concur" with the

..r.-:4 ahs1 wies 'should .n s. . .

g Department of Energy tbroWde f.or full [ar.11ci a:;m uy affed ;t the use of ra 1

~  %~

' iN 5 EUS a6 finrtith ln ehy 4DStr.Mth*or. GUth' .'i *.X *.iCr. Q: M 's - " * :.'. v - . *

' ^

data for preparation of the required environmental reports. Note that the same '

I . ... o er -o:..me pr.elicensing .ac4.eiec. .n a f A. < z. . .1 ite ./a .  :.e + .. . .:

1

- verb, " concur," is used in this contert and in 5112(a), NRC statutory responsibility --

e. '< 4 % -)Topottd '$%G.ar.3%.ef .tS Wts a uM *. , < 4.'t..W1 ' L e i. .~ . . . .+.:. ; -

j

~ '

[ .~-

with g ggj h.. - - , . sua.

r.. ~. .. .. . . . . .

K GM;;:,hW;a.g;k.,3.,; .RC% s,L._;;.:,g ;,', .ij .; _.

. -Q s,. r%qngi 1 -1; pc;inni.Maa.-

. . ;. , m ' 7 *, 7. " ' y: ~  ; ..

.,~ _ '~' O.rt.'cM.)W.YThintn;Mrdi d.bf f. Wt'. WW *w b/ f:r W-

~

--m-*- '7-

. . Proposed 5 60.18(e) suggests"that either the Commission's concurrence will be

.. - . . . . . e . pa, ,~:s . .. . .= - .,.. . .. ,. . . ,

granted "If appropriate", or another reading, that the Commission will concur if the

.',- .we .us g :.g., ;p.- n..a . ec_.. . a _ _.:. . m . , . 7 ,. . _.. . . ,

site characterization plan includes the use of radioactive material Either reading

--.-.e...., . ~ . . . .

is inconsistent with the requirements of the statute. The NRC is charged with an i .

2 -

l

. . .T 7

. , - . - - - - - - - . . - - - , , . . . - .. ...---,y . - . - - . , , - , , - . - - . - . .--,--..---.,------,..e._ .,.-,,-.--,-c--.-- ,,.,,-,.--...-,--e-v.-,,-%,,,,,w--.. -,

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

..y. -

J . . .

Comments Regarding n-:--n -j Test. ,-

. - -- .. , .. .. . . - - . ~ .: ;. . . . . . .

Section 60.17(a).

e = 4.? ' " . . . ch> 7 : e: . J. - * .

. The term " area._-to -be characterized"~has been 1 substituted for the statutory -

term " candidate site.* ,Though: Nevada is sensitive'.to the justification fir this

. ..,_ . . . . . . c.u

. n .-m. .

change, stated at page 19, Enclosure .A, SECY-84-263, the introduction of this new

.2 term can only create c6ntroversy arid uncertainty ~over its'. meaning. Weiuggest. *

. . ~ - . .. .

.. . s ..... . .

returning to the statutory language.9 '. r '-.~ . 7.,.. .:... . ' ' . .

, , s.

s. . e -

.1 ... . . . ..

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

Section 60.l?(aX2Xiv').~ - "N ~~.. .." ~ " . .

' ~ - ~ - -' -

. p. ..

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

. ant to safety" has been substituted for the statutory phrase "any adverse, safety ,. ,

related impactsirom such site characterization activities . . . ? ThoughEls Tiot ." .

~

,..- , y, . n ;- .

clear at the outset what..is the . difference between these two phrases, less B '

~

-confusion will be caused 1f Estatutory phrase Is used. ':M:--$ Yy 4.-g

, . . . ..- ...s'...

_e.-...'.

C.

s.

....3

... . m .....~.v.; . -.

a ,: ; Ww.. -a. . .r. .+..n

.. . ..y-.,..:... .

Section 60.18(e).- . p.s : -. ., , .m. . -wr

. m. . . -- . .. ~

.- .. . y :.. . i ; -

r

. .; , .. _. .~w.. .. .

. . -. r- -.. .:e.w_.v. ~

s._,...-.v. --.--

See' discussion"above atjages 7 .and 8'C~'$ N- *. -

'T 7 -

w .....v.- u .:.:. y:+ .. m .

,. . , :e i.

= ..w . s ..... . :... .... ~

-...u.

=. .:.w. ,:.. . . . . . - . ...,.s.. a ., . . . . .s... .. .

. .. -?

M . . .

s .

t .an. .mys . .' A- A,

=#.e. fr.*.; e . . . b. r.*. . a 4. - ..

...a v.__ . 8 an. d. 7 . .7 ,.._. . ,.'., , , w. .. .. ...

. ~s . .

.o . . 4 . , 6 4 . .

. : . . ~ .-.,.. . .See. discussion,.a, .ovaat b. . .

4.c .;- .. .. . c.._. .

.. g m .-c.nw. .:;.a ~...

. ._ g r. - ... ,.. ...:.. . ...

,, e. ,. .

,.a. . , . _ ..

4

..i  :..... .:. ...

.. u. ...r...

. . .s.-., . . .

Section 60.18(g). ...:: . - -- "

t

......._'". ...~. .

. The term "semidual f.p. *

• L" is incorrect as the statute and proposed rule

require that the. Secretary .. report to the Commission and the governor or j . . . . . . . , . . . . . . . . . . . .

1

' -* . ..- ,.] ; =. .Q , . , .- * .

. .;.-. . . g .

l

. n. .e . .

. , - . , - .p.. y -.- -- . - - . . - . - ,,.rn,w--i.,. . , . , . . .-.--r., . . . . - - - . - - - . - . - - ,,.m-. +--%.-w. .,--w-- -~.---e.-, ....--,-.,.-ww-

l .. ..

L .

1egislature "not less than once every 6 months." It is inappropriate that the l

l Commission waive its expectation for more than the minimum reporting from the Department of Energy.

! Section 60.18(1). -

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

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

- s. .

l i

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

Section 60.63(a). . . . ..

~

i The subsection as drafted does not grant potential host states full ~ party j status in licensing or proceedings or prelicensing activity. See discussion at pages . ,

l 5 and 6 above. "* ' - -

t . .

j . .... . . .;;;;z . , ; . _ .

8 u - ' i '.5, - -

Conclusion. - J- i The CommissiorI should utiltize a totalintegrated approach to the enactment -

of rules consequent of the' passage of the Nuclear Waste ' Policy Act. Those integrated rules 'should provide for full participation by affected states, defining- . ~ -

their status as parties in any construction authorization proceeding at the outset.--- ;

As part of the prelleensing activity, an affected state should be entitled to.,,

' - comment on proposed NRC action with the expectation that comments will be ~

j . . . . . . . . . . . . .

-heard, and when meritorious heeded. For instance, the NRC's site characterization 4

. :y .-- -

?

. .y -

4 analysis should be finalized only after the opportunity for state comment.' When - -

-e i

regulations are adopted, new concepts should not be introduced by tariance from statutory language, except where necessary to more greatly define statutory i requirements.-~ '- ~ ~ ~ ' - ' ' - ~ -

j .

9

_.m4 .- .. . _ . , _ . -

g 5 e j

l I,

-i e

i l

I d

ENCLOSURE C I,

i i

I l

1 F

I i

b

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y d sce e cus,~2 D: N' 55 Si m.

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• 82./)

{ .

OFFICE OF THE GOVEFINg /A ret MARK WHITE STATE CAPITOL j W.'.1 Prcrect--

GovER8 EOR AUSTIN, TEXAS 78711 00Citt No._

PDR - /

September 19, 1984 4 LPOR- /

MWsh_ _/

KWi'l? Jf3 Mr. Robert Browning, Director Division of Waste Management W / Jg5 , _,, . Q g. ,p,.q .,

",p ..[y

@eju[,n 'o_ W}l,.,623 SS)

U. S. Nuclear Regulatory Comission Washington, D.C. 20555 p;,f--

Dear Mr. Browning:

We appreciate the opportunity for continued consultation with you and your staff on the draft revision of 10 CFR 60 - " Disposal of High-Level Radioactive Wastes in Geologic Repositories". While we find no objection to most of the proposed modifications, there are several key points on which we are compelled to comment: (1) opportunity for state coment on the NRC site characterization analysis prior to its submission to the Department of Energy, (2) irrevocable comitment by NRC to explicitly respond to the affected state coment on site characterization analyses, and (3) a defined mechanism for appeal to the Comission of state participation decisions by the Director of the NRC Office of Nuclear Material Safety and Safeguards (NMSS). Section references below apply to the July,1984 draft revision to 10 CFR 60 (Document 7590-01).

Items (1) ard (2) above concerns subpart B, sections 60.15 through 60.18 addressing site characterization. In order to offer explicit coments on these sections, knowledge of the mechanics and schedule of interactions between NRC and 00E in the site characterization process is necessary. The Nuclear Waste policy Act provides broad guidance on this portion of the high-level waste disposal program. The Act also provides in section 117 that the Comission shall provide timely and complete information for, among other things, site characterization plans. Consistent with these provisions of the Act, we recomend that one or more meetings be held for DOE, NRC, potential host states, and affected Indian tribes to develop the mechanics of the interactions surrounding the site characterization plan, site character-ization analysis, coments of the affected states and Indian tribes, and the initiation of site characterization activities. Until this process is ade-quately defined we cannot prepare comprehensive comments on the portions of 10 CFR 60 addressing participation in the site characterization planning process.

In spite of the uncertainty presented by the lack of detail for the site characterization planning process, we have prepared coments on the current draft revision of 10 CFR 60 based on assumptions regarding details of that process. The three key assumptions are: (a) the DOE will not commence site ENCLOSURE C

- _ - - __ ______._______ _- m -._ _ ______-

l Mr. R:bart Brt.wning. Director Division of Waste Management i September 19, 1984  ;

Page 2 ,

characterization until the final site characterization analysis has been submitted to them and addressed. (b) the NRC will be allocated sufficient time to complete a comprehensive process for assessment of the DOE site characterization plan, and (c) the DOE site characterization plan will be modified to address the issues presented in the site characterization analysis before site characterization begins. As noted above, final comments on 10 CFR 60 cannot be prepared until these key issues are definitively addressed.

s With respect to the opportunity for state input, the revised rule i contains two relevant provisions. At subsection 60.18(c) the Director of NMSS is permitted (but not required) to " invite and consider the views L of interested persons on DOE's site characterization plan". This mechanism t could allow some affected state input but only at the discretion of the Director, and the comments would not be based on a draft site characterization analysis, in view of the removal of this provision in the draft revision. l The other relevant provision (subsection 60.18(f)) of the draft revision instructs the Director of NMSS to request public coment on the site char-acterization analysis, but it is our understanding that the opportunity for comment will occur after the site characterization analysis is submitted to the DOE and further that the comments will then simply be filed in the NRC  :

Public Document Room.

We submit that offices and agencies of each potential host state are uniquely qualified, because of extensive familiarity with geotechnical and other factors regarding the potential sites and vicinities, to identify relevant issues to be addressed in the site characterization plans and the analyses of those plans. For example, in Texas, we have obtained data from the Texas Department of Water Resources on quality and availability of water from a water-bearing unit that had not been considered by DOE. This recog-nition of unique state perspective was, in fact, noted by the NRC in NUREG-0539 "Means for Improving State Participation in the Siting, Licensing, and Develop-ment of Federal Nuclear Waste Facilities."

! The need for greater state input in the licensing process was clearly l articulated in one of the key waste management studies of recent years, the l " Report of the President by the Interagency Review Group on Nuclear Waste

Management (TID-29442,pp.95-96). Although, the Nuclear Waste Policy Act l requires that hearings be held in the vicinity of sites to be characterized,

! our experience suggests that DOE responses to these coments will not be adequate. The critical licensing role played by NRC should enhance the likelihood of DOE attention a concerns identified by the states if the NRC i finds merit in those concerns and passes them on to DOE in the site charac-1 terization analysis.

! With respect to our concern that the NRC respond directly to coments of l

.. affected states, the key role of these states in the high-level waste manage-ment issue is clearly articulated in the Nuclear Waste Policy Act. State ,

leadership of the affected states is identified as the focal point for inter-action between the federal government and affected parties. Because of that

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Mr. Robert Browning, Direct'or .

Division of Waste Management -

September 19, 1984 -

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j responsibility, it is essential that the state receive direct responses to concerns submitted to federal authorities on key program documents -- such I

as the site characterization analysis. We, therefore, reconnend alteration of 10 CFR 60 to include an irrevocable connitment for direct NRC response to state connents on that document. Congress recognized the states' critical need for full information and, furthennore, grants specific authority to j obtain that infonnation in section 117 of the Nuclear Waste Policy Act.

Finally, item (3) above concerns the provision in subpart C, subsection 60.63(e) which states that the Director of NMSS will accept or deny state participation proposals. In view of the relatively subjective determination l 4

required to make such a decision based on the specified criteria (subsection 60.63(d)), we are concerned that a mechanism be defined for appeal of unfavor-able decisions to the Commission. Based on discussions with you and your staff on July 27, 1984 and August 9,1984, we understand that staff decisions can always be appealed to the Commission itself and explicit statement of that i

option in 10 CFR 60 is not required.- This understanding, if correct, sufficiently addresses our concern about this provisions. We strongly support your suggestion j that language noting this opportunity for appeal to the Connission be included i

in the Statement of Consideration for this rule.

We appreciate your providing a copy of your draft revision of 10 CFR 60 for review. I hope these comments are helpful in this revision of the high-level radioactive waste disposel regulations.

4 Yours truly, l

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Dan Smith, Assistant Director

! Nuclear Waste Programs Office DS:dp cc: Steve Frishman, Director, Nuclear Waste Programs Office i

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ENCLOSURE D I

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ENVIRONMENTAL POLICY INSTITUTE August 3, 1984 W,',1 Ra"'d Cif

• V/'.I h0jict Mr. Bob Browning o g , -],

CCCkelNo.

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Director, Division of Waste Management pgg U.S. Nuclear Regulatory Commission SF 623 DMWon: __

20555 Washington, D.C.

R fB }m -78 toe

1. 1. # *M-

Dear Mr. Browninc,

[Rj:qn_to Wf.1. 623 55) Ly Enclosed are the Environmental Policy Institute's comments on "10 CFR Part 60--

Disposal of High Level Radioactive Waste in Geologic Repositories: Amendments to Licensing Procedures, SECY-84-263. These ccsimants come in response to Donna Mattson's letter of July 2, 1994.

We thank you very much for the oppertunity to ccernent.

Sincerely, k

David Berick k 3 o

o m en D EN cN mn To 7

6 2 o c: F ENCLOSURE D 218 D Street. S.E. W.nhmgton D.C. 2tN x0. (202) 544-2Nai

6 8 8 DRAFT COMMENTS OF THE ENVIRONMENTAL POLICY INSTITUTE ON SECY-84-263--10 CFR PART 60 AMENDMENTS TO LICENSING PROCEDURES July 31, 1984 Significant improvements have been made in the NRC's proposed changes to 10 CFR Part 60 in SECY-84-263 over versions which were circulated to state of ficials and other interested parties last year. For example, SECY-84-2(3 reestablishes an NRC role in reviewing the DOE site selectiod process, notably by incorporating NRC review of the DOE envi 0)nmental assessments These comments should be read in that ligat. <

My primary concern is that in making changes to Part 60, that NRC develop and include in the rule a solid foundation defining its purpose and authority. I believe that this is lacking in several key areas, most notably in a reliance upon the DOE /NRC Procedural Agreement as a source of Commission authority rather than upon independent statutory authority for early site review.

General Comments The proposed rule fails to establish a common, strong rationale for its various recommendationa. For example, the proposed rule identifies 5 " principal aspects" of NRC repository licensing procedures and rather arbitrarily decides to address only 2. Whether or not we would agree with the justification, one ought to be given.

As we stated last year, we do not believe that the Part 60

! revisions should be split apart into separate rulemakings, especially the NEPA revisions. A year ago, the argument was made that Part 60 NEPA revisions would be made after Part 51 was revised. Part 51 has been revised as of March 12, 1984(49 FR 9352). If Part 60 is to be modified it should be done as a cohesive package, which may, of course, be present in the Staff's minds, but the apparent piecemeal revision leaves those outside the Commission with a fragmented rule and rulemaking process.

It. is not clear whether the Commission believes that the NWPA actually alters its authority to license, thereby requiring modification to Part 60, or whether the Commission is simply modifying its procedures to reflect the new schedules and procedures imposed an DQX by the NWPA. I would argue that the latter is the case, and that the Commission should make absolutely clear that its licensing authority is not constrained or restricted by the NWPA. This is not clear f rom a reading of I the proposed rule and should be stated.

Likewise, the proposed rule also f ails to establish a clear and cohesive articulation of the Commission's authority and purpose for the changes that AIR proposed. 'The most serious problem here seems to be a reliance upon the DOE /NRC Procedural Agreement for its early site review without reference to any 1

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statutory authority; even the statutory authority used to support the Procedural Agreement originally (see pp 10-11 of the proposed rule, Attachment A, SECY 84-263) . I do not believe that relying solely on the Procedural Agreement gives the Commission the kind of solid f oundation to carry out early site review activities that it needs or that it has under the Atomic Energy Act.

. As we stated in our comments a year ago, we believe that the Commission has " health and safety" and NEPA authority to require early site review; authority referenced in the preamble to Part 60 wherein the Commission stated that its requirement for site characterization extended beyond a concern for compliance with NEPA to protection of public health (see 46 FR 13 972, Pebruary 25, 1981). If the Commission originally, in promulgating Part 60, had authority to review site selection activities, it has no less authority today as a result of passage of the NWPA. .

The basis for the Procedural Agreement, now a central part of NRC's role in regulating DOE waste repositories, should be incorporated into Part 60 rather than basing Part 60 on the Procedural Agreement.

We commend the proposal for continued NRC attention to early site review including review of the DOE's environmental

assessments to accompany nomination. Our primary concern, again, is that rather than conforming the current Part 60 requirements '

for early site review, which embody both NEPA and health and saf ety concerns, to the new DOE procedures, the rule appears to cast doubt on the Commission's authority and purpose for future site review by relying upon " fulfillment" of the Procedural Agreement.

Section-By-Section Comments SECY-84-263 page 4) SECY paper states at top of page that NRC is "not required by law or regulation to review the EA." While it is true that the NWPA does not specifically require NRC to review the EA, a case can be made that NRC is required to oversee site selection activities, under NEPA and AEA. As noted above, the language of this paragraph casts a cloud over the Commission's authority to conduct the activities it subsequently recommends.

page 4) SECY paper proposes to defer NEPA issues related to Part 60 to a future rulemaking specifically on Part 51. We continue to believe that this aspect of the rulemaking, which constituted a central part and underpining of the current version of Part 60, should not be separated. Because so much of Part 60 now rests on NEPA authority, f ailure to include NEPA once again casts something of a cloud over the Commission's view of its authority to carry out early site review.(It may also skew the scope of EA review by precluding review of alternatives and comparative analysis; a central part of the EA's--see below).

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page 4) SECY paper proposes to require NRC review of the DOE EA's which are to accompany site nomination. The rationale for this is explahed as being "in the light of the NRC/ DOE Procedural Agreement" and the paper goes on to say to suggest that NRC review "would not be of the process by which DOE screened sites and compared alternatives."

On the one hand, the Commission argues that the EA is now the document that incorporates the DOE site selection / screening aspects of the DOE program required to be reviewed by NRC under Part 60. It then appears to turn around and state it will review

EA's, but not the site selection / screening aspects. As the' Commission knows, a description of the siting process and a comparative evaluation of sites are central parts of the EA's(Sec. 112 (b) of NW PA) . The decision to ignore the site selection / screening aspects of the EA may stem from the earlier decision to defer NEPA issues; this was argued in the NRC's

previous proposal. NRC does not adequately explain its decision to defer NEPA issues. Because site selection and comparative evaluation of sites are central to the EA's and to early site review, these should not be excluded from NRC review.

Proposed Rule (Attachment A)

p. 2) Proposed rule identifies 5 pending issues aff ecting NRC licensing rules for repositories and singles out 2 for revision now. As stated above, we believe that the Part 60 revision should not be done in a piecemeal f ashion and that at a minimum I the NEPA issues should be incorporated,

p. 3) As noted above, NRC would exclude NEPA issues f rom this rulemaking. We do not believe that this exclusion is helpf ul to the Commission's review of siting activities since it appears to limit the scope of some reviews (such as the EA review) and creates a piecemeal process of rule and application of Part 60.

pp. 9-11) As noted earlier, this section discusses the need for revisions to Part 60, but f ails to establish a clear rationale

, for those changes. Review of the EA's are predicated on the existence of the Precedural Agreement rather than specific statutory authority and purpose. Here and on page 12 NRC develops an argument that early site review is needed to provide "early detection" of potential licensing problems. We have no argument with this policy but it seems an inadequate basis for future interpretation of Part 60.

p. 13) NRC states that it will review the EA's but will not i review the methodology used to compare sites nor the relative merits of one site over another. NRC states that this is not necessary to to " fulfill any of its statutory responsibilities."

The latter statement is entirely at odds with the role the Commission has taken in its concurrence of the DOE site selection guidelines (noted in the following sentence in the text) where NRC actively shapes DO E's site selection process. It also l 3 l

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presumes an interpretation of the Commission's NEPA )

responsibilities (contrary to that currently embodied in Part 60) to the ef fect that NRC NEPA responsibility does not depend upon DOE's site selection determinations. The decision to defer NEPA issues f rom this revision of Part 60 may merely highlight this

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) presumption, but I believe that NRC is overly restricting its i authority, its role in reviewing DOE siting activities, and its l NEEA authority.

pp. 14-15 As noted earlier, NRC rests much of its early site l review on the existence of the DOE /NRC Procedural Agreement. '

i This may be an appropriate way for NRC and DOE t.2 fulfill Eart g,0, l licensina reaulations bgt thg Agreemant cannot substitute inn '

i those reaulations. Part 60 should be revised, if needed, to explicitly require DOE to provideinformation, access to sites,

< etc. at early site selection stages, which can h.g fulfilled J

through an 50,0 pp. 14-15 NRC proposed to drop the Draf t Site Characterization i Assessment f rom Part 60. We continue to believe that this is

< unnecessary and unproductive. We believe that it important, I prior to the commencement of characterization, to identify what j

issues the NRC and DOE have reached agreement on and what issues  !

remain unresolved over the many months of pre-characterization activities. Once issues are identified and their status determined, interested parties should be allowed to comment on the adequacy of the Commission's interpretation of that 1 information and DOE's characterization plan and to raise any new l issues. This should occur prior to the commencement of )

characterization. The NRC proposal would allow characterization activities to proceed prior to an opportunity for commentto NRC.

We do not believe that submission of a draft site characterization plan would " freeze" the review process since DOE is required by the NWPA, and by NRC, to submit periodic updates on its characterization activities. NRC, ironically, does not describe this " post-approval" aspect of its " dynamic" review process here nor how it will assess these periodic updates nor address public comments.

Lastly, the assurances contained in the Procedural Agreement that states and Indian tribes will be given notice of DOE /NRC meetings and right of attendance should, at a minimum extend to other interested parties and the public. Substitution of the Procedural Agreement notification scheme for an open public comment period on the Draft SCA is not, as suggested by the Commission, congruent. NRC should include a statement assuring public participation beyond the Procedural Agreement lest it be interpreted as a limitation on such participation.

1 pp.16-17 ) The Commission may want to point out that Congress in the NWPA has now required DOE to provide states and Indian tribes with full rights of consultation and cooperation and consequently the Commission's original concerns, expressed in Part 60, have been largely alleviated. What is not stated here, and should be, 4

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i I I is that the Commission's own authority to consult with state governments and Indian tribes is substantially unaltered by the NWPA. For example, Sec.117 c) which authorizes DOE to enter into written agreements cont (ains a specific caveat that they shall not affect the authority of the Commission.

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p. 27) As noted above, reliance upon the Procedural Agreement notification scheme to assure participation in the site review process (Sec. 60.62) does not adequately address the needs of other interested parties and the public. NRC should include a statement of intent to provide for public participation beyond the Procedural Agreement scheme.

p. 3 4) As noted earlier the deletion of the Draf t SCA removes an important opportunity for public comment on both DOE and NRC i site characterization activities. At a minimum, the Director '

should be recuired to solicit and consider comments on the DOE site characterization report. While many relevent comments may l be transmitted by DOE's comment process, NRC should, at a minimum, be required to solicit any relevent comments. The discretion to solicit comments should be made mandatory,

p. 3 4) NRC suggests that its review and concurrence in DOE's use of radioactive materials in site characterization is optional.

NRC uses the phrase "as appropriate" in subsection (e). NRC's agreement in DOE's use of radioactive material is n.Q1 optional under Sec. 113(c) of the NWPA.

l p. 34-35) NRC should establish a notice and comment process for

! the semiannual site characterization repo r ts (subsection (g))

j along the lines of the comments allowed on the SCA. This would i provide all parties with an opportunity to bring issues to the f Commission's attention involving ongoing site characterization

- activities at the same time the Commission was conducting its review.

pp. 36-38 The participation provisions of Subpart C appear to be l' triggered at different points in the site selection process.

Information, to be provided under Sec. 60.61, is triggered by the submission of a site characterization plan. Consultation in site review is triggered by Presidential approval of a site for characterization under Sec. 60.61. In both cases, it appears to l us that the Commission is withholding information and Thonsultation until a fairly late stage of the site selection process. By the time the SCP is submitted, DOE will have

. conducted lengthy site selection activities, will have completed d

EA's on the sites and nominated them. Because the amount of time which elapses between nomination and submission of the SCP is expected to be only a matter of months, it would seem realistic to allow states to begin formal information exchanges and consultation at least at the point of nomination. We think that this should in fact occur even earlier at the point when a state is notified that it is a "potentially acceptable site" under Sec. 116.

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ENCLOSURE E r

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STAFF ANALYSIS OF COMMENTS

1) NRC REVIEW 0F DOE'S SITE SCREENING AND SELECTION PROCESS Comment: Nevada, Minnesota, and the Environmental Policy Institute j connented that the Connission has a broad responsibility to

! review the site screening and selection process. They believe

! that the NRC is being overly restrictive in its interpretation ,

of its responsibility by neglecting the site screening and

selection process. They urged the Connission to clearly affirm its role in site screening and selection in 10 CFR 60.

Staff Response:

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i The Nuclear Waste Policy Act (NWPA) sets out a detailed procedure for site screening and selection. NRC is given a specific role in this process--

concurrence in the guidelines for site selection which the NWPA requires j DOE to develop. By concurring in the DOE siting guidelines, the

Commission has essentially approved the site selection process that will

be used by the Secretary to reconnend sites for repositories. When the

] guidelines are in place, DOE has the responsibility to apply them. No other NRC role in site selection is indicated.

Site screening and selection information will be contained in the environmental assessments (EA's) which DOE must prepare. While the NWPA j makes no provisions for the Commission to review the EA, the staff has taken the position that the NRC may properly review and comment on the EA.

The bases for reviewing the EA are as follows:

(1) Potential Safety Issues

! Review of the EA may result in the early identification of potential j safety issues that could affect the Connission's later licensing i responsibilities. The staff will review the EA to identify such potential licensing issues.

(2) Application of Siting Guidelines j The staff will review the EA to ascertain if there has been:

! (a) a clear failure on the part of DOE to follow the procedures I

established for application of the siting guidelines; or i

i (b) any manifestly unreasonable conclusion with respect to the j consistency of the site with the siting guidelines.

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(3) Special Expertise By reviewing and commenting on an EA - as it would any sister agency's draft EIS - the staff can provide 00E with the benefit of NRC's special expertise in matters related to the siting and operation of nuclear facilities.

The staff regards the Procedural Agreement with DOE as the appropriate vehicle for assuring early informal interaction between the two agencies, including interaction with respect to environmental assessments. Because this interaction on the EA is not mandated by the NWPA, there is no need to provide for it in the regulations. It would be preferable instead to.

explain the policy, as the statement of considerations does, so that all interested persons are aware of the course that NRC proposes to take.

The comenters also suggested that inasmuch as the NWPA states that the site characterization plans are to include "any other information required by the Comission," NRC should provide for submission by DOE of information on its site screening process. However, the infomation that may be required under this provision of the NWPA is only that which falls within the scope of "a general plan for site characterization activities."

NRC will need to know the infomation about the site that DOE has developed in the course of its site selection, and this infomation is specifically called for. Although site selection information is required to be submitted under existing Part 60, Congress elected to delete it from the site characterization plan. Therefore, NRC will not require information about the screening and selection process employed by DOE and the comparative analyses that led to the recommendation of particular sites. A review of the characterization program can be carried out for a site described in a site characterization plan without a review of the process by which the site was selected.

With respect to comments on NRC's NEPA role, NRC's statutory responsibility under the NWPA is to adopt. "to the extent practicable,"

the DOE environmental impact statement. The EIS will present as alternatives, three sites which have been characterized and as to which the Secretary has made a preliminary determination of suitability for development consistent with the guidelines which were concurred in by the Comission. As discussed above, the process used by the Secretary to compare potentially acceptable or nominated sites and the relative merits of the sites that led them to be selected for characterization are not statutorily of concern to the Comission -- because the EIS is to deal with the sites that actually have been characterized and not with those that were not characterized.

2. DECOUPLING OF PART 60 AND PART 51 REVISIONS WHICH ARE NEEDED TO REFLECT THE NUCLEAR WASTE POLICY ACT Comment: Nevada and the Environmental Policy Institute (EPI) believe that all revisions to Part 60 and Part 51 to conform them to the NWPA should be promulgated simultaneously. In particular, they <

believe that the revisions concerning NEPA requirements should l accompany the revisions currently being proposed. They believe 2

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this would assure that a comprehensive and integrated approach is taken and that any confusion regarding NWPA and NEPA ,

, requirements is eliminated. EPI contends that much of Part 60 l t

now rests on NEPA authority so that failure to include NEPA in ,

L the currently proposed revision casts a cloud over the '

Commission's view of its authority to carry out early site reviews. EPI believes it may also skew the scope of environmental assessment review by precluding reviews of alternatives and comparative analysis.

fitaff Response:

i The staff has not put off considering the responsibilities of the Comission under NEPA as modified by the NWPA. In developing these proposed regulation changes, the staff has specifically evaluated whether it was necessary for the Conunission to take any steps during the site screening stages to assure meeting its ultimate NEPA responsibilities.

The staff concludes, as explained above, that NRC pre-licensing review

should not be exhaustive, and in this regard it differs from the comenters. In light of the staff's understanding with respect to NRC's j responsibilities, it would be important and appropriate to proceed 4

with the present action without awaiting other changes that will be proposed in the light of the NWPA. In view of the need to publish those changes related to the site characterization plans prior to the rapidly approaching time when DOE prepares those plans, it was necessary to

consider these changes first and separately. These issues are separable i from other NWPA-mandated matters, including NEPA concerns. The NEPA related amendments to NRC rules (1) will define the alternatives that must i

be discussed in an environmental impact statement, (2) will exempt the promulgation of NRC licensing requirements and criteria from environmental review under NEPA, and (3) will set out the procedures that will be

' followed by the Comission in determining whether or not to adopt the EIS.

(There may also need to be some special provisions if DOE were to develo -

a facility exclusively for waste from atomic energy defense activities.)p j The alternatives are, in principal part, defined by NWPA. The exemption

for environmental review of the promulgation of licensing rules is also I

explicitly stated by that Act. The procedures for adoption of the DOE environmental impact statement are mandated generally by NWPA and i

regulations of the Council on Environmental Quality. All of these matters are readily separable from the proposed amendments. Furthennore, the I

i staff does not anticipate that the 10 CFR Part 51 amendments will address  !

the comenters' concerns over the pre-licensing review of the DOE site i

selection process. Therefore, publication of the proposed rule need not  :

I be deferred.

3. ELIMINATION OF THE DRAFT SITE CHARACTERIZATION ANALYSIS Comment: Nevada, Minnesota, and the Environmental Policy Institute comented that the deletion of the provision for a draft site i j characterization analysis removes an important opportunity for i

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{ public comment on DOE and NRC site characterization activities.

They believe that the provision for a draft site characteri-zation analysis with mandatory public comment should be

, retained. If the draft site characterization analysis is to be dropped, the Environmental Policy Institute thinks that at a j minimum NRC should be required to solicit and consider comments i

on the DOE site characterization plan instead of leaving the

, solicitation and consideration of public comments at the i discretion of NRC. Texas believes that NRC should be required l to solicit, consider, and respond to State comments on the site characterization analysis prior to it being .ient to DOE.

Staff Response

j The rule was promulgated with provision for a draft site characterization j analysis when there were no other provisions for State or public 1 involvement in the site characterization plan process. Retaining the

! provision for a draft site characterization analysis with a public comment

! period is unnecessary because of the opportunities now provided under both i the NWPA and the NRC/ DOE Procedural Agreement for host States and affected

! Indian tribes to raise issues previously and comment on DOE's site 4

characterization plan. Given these opportunities, the staff believes that a requirement or a fixed policy of soliciting casunents before issuing its i analysis could result in unnecessary and unproductive delay in the process i' of publication of the final site characterization analysis. We will follow the DOE hearings and be aware of the consnents which are given to i

DOE by the public. We will also solicit comments on the site characterization analysis following its issuance.The staff believes that

! (as provided in the proposed rule) NRC should have the discretion to

! determine, in each particular instance, whether it would be advantageous l to solicit and consider public comments on DOE's site characterization

! plan before issuance of its site characterization analysis. The extent to

! which early reviews have afforded an opportunity for interested persons to l identify issues of concern, the need for additional expertise that might i not be fully available at NRC, and the impact upon achievement of the j scheduling directives of NWPA, are some of the factors that might be j considered.

l' 4) CONCERN ABOUT THE BASIS FOR STANDING OF STATES AND TRIBES'IN A LICENSING HEARING i'

Comment: Minnesota and Nevada believe that States should not be governed by the 10 CFR Part 2 Rules of Practice concerning standing in a licensing hearing. They want full party status to be stipulated l by Part 60 for the host State and affected Indian tribes. '

! Nevada wants full party status for any State or tribe which j contains a potentially acceptable site for a repository. (Note:

i to date DOE has identified 6 States with potentially acceptable i sites for the first repository and is considering identifying i such sites in 17 other states for second repository.) Nevada i believes that such designation would accord them greater i procedural rights. They want to " stand on an equal footing" with DOE during the prelicensing process instead of having the 4

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I more limited participation provided in the NRC/ DOE Procedural l Agreement. They believe that designation as a party in Part 60-l would give them rights to participation in the prelicensing

process equal to those of NRC and DOE. Minnesota expresses I

concern that currently proposed revisions to 10 CFR Part 2, April 12,1984 (49 FR 14698) prevent States, local governments j and Indian tribes from effectively participating in NRC l l

licensing hearings of any kind.

i Staff Response:

i Rights of participation in licensing proceedings are, as noted, defined in Part 2. The tests of standing as set out by 5 2.714 are clearly met for j host State participation (and presumably for affected Indian tribes as i well). However, a host State or affected Indian tribe would need to 4

formalize its intention to participate in licensing proceedings and set i forth the contentions which it seeks to have litigated. 5 2.714 i explains how this is to be done. Once the State / tribe is admitted as an i intervenor it would enjoy the full rights of a party. These include, with i respect to all matters affecting its interest, the rights to introduce l' evidence, put on witnesses, cross examination, full notice and service of all pleadings, full rights of discovery, and standing to appeal. For '

f non-host States designated as having potentially acceptable sites, it is appropriate that their participation in licensing proceedings be j detemined by the tests of standing set out in 10 CFR Part 2.

! In addition, 10 CFR 2.715(c) of the Commission's regulations provide for j the participation of an interested State (as well as counties and

! municipalities) in NRC proceedings even if it chooses not to litigate

} particular contentions in the proceeding. In this role the State has an j opportunity to introduce evidence, interrogate witnesses, and advise the j Comission without taking a position on any issue; it may also file 1 ' proposed findings and petition for Commission review of a Licensing Board decision. 10 CFR 2.715(c) extends this opportunity to participate as an i interested State not only to the State in which a facility will be j located, but also to those other States that can demonstrate an interest l cognizable under Section 2.715(c).

t l In regard to the commenter's concern with the April 12, 1984 Federal Register Notice related to the Commission's Rules of Practice, this

'was not a notice of proposad rulemaking. Rather it was a compilation of  :

various suggestions for improvement in the licensing process which have i been brought to the Commissio1's attention. As noted in the Federal 4

Register Notice, if, and when, the Comission decides that any of these suggestions warrant adoption through rulemaking, a notice of proposed I

rulemaking will be issued. This will provide the concerned States and others with an opportunity to coment on a particular proposal.

Furthermore, since a State can meet the requirements of standing to l l participate as a party in an NRC licensing proceeding, and has available I i to it the more liberal participation provisions of 10 CFR 2.715(c), the  !

i suggestions contained in the Federal Register Notice--even if ultimately i proposed by the Comission--would not prevent States, local governments, l

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and Indian tribes from effectively participating in NRC licensing proceedings. F As to the comment concerning the extent of participation in technical meetings between NRC and DOE provided for in the NRC/00E Procedural Agreement, the staff does not agree that the host States and affected Indian tribes "must stand on an equal footing" with DOE. The meetings are designed as a means to facilitate information exchange between DOE and NRC, and it is appropriate that the two agencies be designated the principals at these meetings. The States and affected Indian tribes are assured of full opportunities to take up issues with DOE directly under the consultation and cooperation provisions of NWPA and have also been assured of their opportunities to discuss with NRC staff, matters pertaining to NRC's regulatory responsibilities.

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• SECRETARY SAMUEL J. CHILK 12/27/84 12/31/84 RES-84-2824 km . ..m 1. or .+

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De BCasFThose m.use e. hfedf mgFEmRED TO DATE RECtevIL e. DATE SECY-84-263- 10 CFR PART 60 DISPOSAL OF HIGH LEVEL RADI0 ACTIVE WA3TE IN Goller 12/31

- GEOLOGIC REPOSITORIES: AMEN 0MENTS TO LICENSING PROCEDURES ENCL 0swata m INFO CY: Nein Minogue Ross

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• p# Davis December 27, 1984 Kerr, SP OFFICE OF THE SECRETARY GCunninaham Qgnton DeYounn Regions I-V Wolf, ELD MEMORANDUM FOR: William J. Dircks, Executive Director Felton for Operations e Philips P s Besaw FROM: Samuel J. Chilk, Secretar

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SUBJECT:

SECY-84-263 - 10 CFR PART ) -- DISPOSAL OF HIGH-LEVEL RADIOACTIVt WASTE IN GEOLOGIC l

REPOSITORIES: AMENDMENTS TO LICENSING PROCEDURES This is to advise you that the Commission (with all Commissioners agreeing) has approved publication of the proposed amendment to i the licensing procedures of 10 CFR Part 60, subject to modifying section 60.18(e) to strike the words "if appropriate, that" and substitute "regarding whether or not." .i The Commission also notes that if the procedural and assurance agreements with EPA are ready for inclusion then they'should be included in this package; but if not this action should go

• forward.

You should revise the proposed amendments as indicated and forward them for signature and publication in the Federal Regis-ter with Commissioner Asselstine's additional views.

(EDO) (SECY SUSPENSE: 1/4/85)

Individual Commissioner comments and proposed modifications (to l' which a majority did not agree) were provided to you on their vote sheets.

Attachment:

Commissioner Asselstine's Additional Views cc Chairman Palladino .

l Commissioner Roberts ,,7***' . . , ,.,g)

- . ,[,go'a Commissioner Asselstine ' '

.{'j**** ***** /,,3 Commissioner Bernthal " * " "

i Commissioner Zech OGC OPE 842824

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, .- SECY-84-263 Commissioner Asselstine's Additional Views:

Commissioner Asselstine would retain the present requirement in 10 CFR Part 60.11 for NRC review of the site screening and selection process which DOE must now include in the environmental assessments.

He would cite as the Commission's authority to review the draft environmental assessments the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, the National Environmental Policy Act of 1969, as amended, and the Nuclear Waste

Policy Act of 1982, and not just the NRC/ DOE Procedural Agreement.

commissioner Asselstine would also retain the present requirement in 10 CFR Part 60.11 for NRC issuance of the draft site characterization 4

analyses for public comment.

J Commissioner Asselstine would appreciate comment on whether these two l elements should be retained in the Commission's regulations.

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USER OFFICE CONCURRENCE

l FEB 281985 1

MEMORANDUM FOR: Robert E. Browning, Director Division of Waste Management, NMSS FROM: Karl R. Goller, Director Division of Radiation Programs and Earth Sciences RES

SUBJECT:

DRAFT RECOMENDATION TO ED0 CONCERNING WHETHER AND HOW TO CONTINUE WITH ONGOING RULEMAKING SPONSORED BY RES--PROPOSED PROCEDURAL AMENDMENTS TO PART 60 DEALING WITH SITE CHARACTERIZATION AND THE PARTICIPATION OF STATES AND INDIAN TRIBES Enclosed for your consideration are draft recommendations supported by a draft office review concerning whether and how to continue with an ongoing rulemaking sponsored by RES for which your office is identified as the user office.

This memorandum constitutes my concurrence in the enclosed draft recommendations. I plan to dispatch this memorandum with the enclosed draft recorrnendations to the Director, RES within two weeks from the above date.

Please acknowledge receipt by returning this me. orandum along with the enclosed form.

/s//Mi.1NJD Karl R. Goller, Director i

Division of Radiation Programs l and Earth Sciences, RES

Enclosure:

As stated DISTPIBUTION. m F. 1 (4 A.4 Lt)

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DATE:2/p....../85 :2/Jf/85 :2/$/85  :  :  :  :

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Receipt acknowledged. No Conenent.

Receipt acknowledged. Consnent as follows:

Y-T<E h 3A /95 Robert E. Browning, Director Division of Waste Management Office of Nuclear Materials Safety and Safeguards O

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