ML20206P842

Procedural Amend Comments:Comment Summary & Staff Analysis

ML20206P842
Person / Time
Issue date:	08/20/1986
From:	NRC
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RULE-PR-60-MISC NUDOCS 8608270355
Download: ML20206P842 (48)

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ENCLOSURE ,

PROCEDURAL AMENDMENT COMMENTS COMMEN7

SUMMARY

AND STAFF ANALYSIS e

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8608270355 860820 PDR PR 60 PDR

PROCEDURAL AMENDMENT COMMENTS COMMENT

SUMMARY

AND STAFF ANALYSIS COMMENT NO. 1 Comment Summary There were several comments about the deletion of the draf t site characteriza-tion analysis. Under the rule as proposed to be amended NRC will issue a single, final set of comments on DOE's SCP and will invite public comment on its comments but will not issue both a draft and a final set of comments. Some commenters agree with the elimination of the draft comments. Most commenters requested that NRC continue to issue its comments in both a draft and final form. Commenting States believe that they have substantial expertise which NRC should consider in preparing its comments. Some States wanted to see NRC's draft comments to have the benefit of NRC's expertise while preparing their comments. Some commenters emphasized a belief that any schedule delays result-ing from issuing draft comments would not be important. Some commenters believe that the opportunities and procedures for public and State involvement in the repository siting and development process under the NWPA a're not substantially different from those contemplated when the previous regulations were promul-gated. From this they conclude that there is no reason for NRC to change its procedures by eliminating the draft comments on DOE's SCP's.

Response

The Commission understands the concerns of the States and public that their views be heard and considered. The Commission intends to be fully aware of State and public views before, during, and after the site characterization plan review. The States will be routinely informed of the inf'ormation made avail-able to NRC and NRC's comments thereon. The States are able to attend NRC/C3i tecnnical meetings. As is now being done, the NRC staff will continue to hose discussions with State representatives and will respond to any written submis-sions from the States. The NRC will also follow closely the NWPA mandated opportunities for State and public interaction with DOE to be aware of the concerns which are expressed by the States in these forums.

We note that no commenter has suggested that the NRC has any statutory duty to publish its comments on the site characterization plans in draft for public comment. The NRC believes that the NWPA has assured enough additional oppor-tunities for State and public involvement and changed the timing of the SCP's such that the NRC can be adequately inforned of State and public views without publishing its commer.ts in draft and thus the expenditure of NRC resources l required to publish draft comments is no longer warranted. It is important to j note that there will still be an opportunity to comment on NRC's comments on the SCP. The rule as amended requires the solicitation of such comments.

2 Further, this single NRC issuance of comments will occur at approximately the same point in time as the issuar.ce of a draft would have occurred. Thus, to the extent that States want to rely on NRC expertise, NRC's comments will be available to them at the same time as they would have had a draf t been issued.

Ef fectively the only dif ference will be that NRC will not republish its comments.

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

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

and affected Indian Tribes for the site to present their views on the DOE SCP and to review and discuss planned NRC comments on the SCP.

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3 COMMENT NO. 2 Comment Summary:

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

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

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

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

Response

The pri'or rule required submission in the SCP of information concerning the criteria used to arrive at the candidate area, the method by which the site was selected for characterization, and the decision process by which the site was selected for characterization. The site characterization analysis was to contain a discussion of the items of information requested and an opinion by the Director that he has no objection to the DOE's site characterization ,

program, if such an option is appropriate, or specific objections to DOE's proceeding with characterization of the named site. The NRC was to examine DOE's site selection process bearing in mind that each site selected for characterization should have no obvious deficiency relative to meeting the technical criteria of 10 CFR Part 60. (44 FR 70409) .

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

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

4 SCPs. With information on the site selection process no longer required in the SCP's, NRC's review of the site selection process takes place in its concurrence in the siting guidelines and review of DOE's draft environmental assessments . DOE's general process for site selection is now specified by the NWPA. The criteria for selection of sites and details of the selection process are contained in the siting guidelines in which NRC has concurred. However, it should be noted that the guidelines were not used in the screening process to arrive at the nine "potentially acceptable" sites which DOE identified. The procedure of starting the site selection process for the first repository with the nine sites which DOE had choosen from the site investigations conducted prior to the NWPA was incorporated into the screening procedures specified in the guidelines. The Commission accepted this procedure in the guideline concurrence action. Thus the guideline screening procedures were applied only to selection of five of the nine sites for nomination. The schedule of events set forth in the NWPA required DOE to identify "potentially acceptable" sites before the guidelines had been developed. These sites were required to be identified within 90 days of the passage of the Act before the guidelines were to be developed. In reviewing and concurring in the guidelines the Commission did not review the screening process by which DOE arrived at the nine "potentially acceptable" sites. Information about this screening process would have been included in the SCP's but, under the proposed revision, is no longer provided to NRC in the SCPs. Although the NWPA makes no provisions for NRC review of DOE's identification of "potentially acceptable" sites for the first repository, some commenters believe that NRC should continue to require this screening information in the SCP's.

Several of these comments express the opinion that the Commission should play an important role in DOE's site screening and selection process. In fact, the Commission has been.doing just that, and it will continue to do so. Each of.

the sites under coasideration for nomination and selection for the first repository has been the subject of continuous scrutiny by NRC staff. Public meetings have been held to inform NRC with respect to relevant issues at these sites, NRC onsite representatives follow developments at the respective sites closely, pertinent literature and data are examined on a regular basis, and site-specific documents such as the environmental assessments are the subject of detailed scrutiny and comraent. All of these NRC activities are designed to identify potential licensing issues at the earliest possible stage. By communicating concerns in this fashion, it is hoped that DOE will thereby be able to make its screening and selection decisions in a more informed manner.

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

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

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

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

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

The Commission's duty, under the first statute cited by the commenters, the Atomic Energy Act, is to protect health. It has long been the Commission's '

position that the process of multiple site characterization provides a workable mechanism by which DOE will be able to develop a slate of candidate sites that are among the best that can reasonably be found and from which DOE will select its preferred site. The provisions of NWPA now require that DOE adhere to such a process. It is not the role or responsibility of the Commission to oversee the co:npliance of DOE with its statutory obligations. Rather, consistent with its customary practice, the Commission would consider only whether a license application meets prescribed criteria. In the case of a geologic repository, i this will include an examination, among other things, of the isolation characteristics of the site. The application will not be granted unless these characteristics enable the Commission to make the findings, with respect to health and safety, that are required by Part 60. If the site in question does ,t measure up to the standards established by rule, issuance of a construction authorization or license, as the case may be, would be in order. The same  :

issue arose in connection with the Ccmmission's original licensing pr'ocedures, '

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

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

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

Under NEPA, the Commission does have a responsibility, of course, to consider alternatives to a proposed action. But the Nuclear Waste Policy Act largely defines the alternatives that are to be considered - namely, the sites which have been characterized and as to which the Secretary of Energy has made a preliminary determination of their suitability for the development of a repository. Although the Commission is directed to adopt the environmental impact statement prepared by DOE "to the extent practicable," it will not be able to do so unless that EIS is an adequate statement to satisfy NEPA. (On the other hand, the Commission can make the environ:aental findings specified in 1G' CFR Part 60 if the EIS, together with any needed supplements, is adequate.)

Accordingly, NRC included in its review of the environmental assessments for the first repository a consideration of any issues arising under NEPA which were likely to result in the DOE's EIS being determined judicially not to be adequate. Moreover, NRC will comment on the d aft EIS to be prepared by DOE with respect to a site recommended for development to the President. The focus of NRC comments is upon the reasonableness of DOE's statements and conclusions, -

for DOE's EIS can only be found to be adequate if it satisfies the so-called

" rule of reason." It is anticipated that amendments to 10 CFR Part 51 (pertaining to implementation of NEPA), currently in preparation, will specifically provide for NRC comment upon the 00E draft EIS. Although tha scope of the review need not, and will not, be as comprehensive as the commenters consider to be desirable, it will be consistent with the statutory framework as understood by the Commission. Further consideration o.f the issue will be in order when proposed amendments to Part 51 are issued for pt.blic comment.

Whatever the ultimate resolution of the scope of NRC review of NEPA issues may be, it is largely beside the point at this time. The present rulemaking deals with the contents of site characterization plans. It is clear to the Commission that the site selection issues previously dealt with in Part 60 were to be separated from the site characterization plans and dealt with, instead, in the environmental assessments. The proposed amendments are designed to conform to NWPA. Accordingly, it is entirely proper to amend former section 60.11 to bring it into line with NWPA. While it is true that the Commission may require submission by DOE of "any other information," this is not an unlimited grant of authority. Such other information, under the introductory clause of section ll3(b)(1)(A), must be germane to "a general plan for site characterization activities to be conducted at such candidate site." The physical attributes of the site, as they may be understood, are of course essential to a review of the site characterization activit~ies to be carried -

out. But it is difficult to conclude that the manner in which a particular site was selected, in preference to others, is relevant to an analysis of the proposed program to characterize it. Under the NWPA; this information belongs in the environmental assessment and not the site characterization plan. The

7 Commission will therefore retain its original position, as set out in the rule

previously proposed. ,

It is not necessary to speculate upon the effect of any " assurance requirements" that may be issued by the Environmental Protection Agency. The EPA Standard

! has now been issued, and the assurance requirements contained therein do not apply to facilities subject to NRC licensing.

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COMMENT NO. 3 Comment Summary:

The procedures of existing 10 CFR Part 60 should be retained for the licensing of repositories for defense high level waste. The NWPA based changes being proposed should be applied only to commercial high level waste repositories.

Response: ,

lhe primary reason for amending 10 CFR Part 60 at this time is to conform the provisions of Commission regulations to current law. To emphasize this point, section 60.1 is being revised to provide that Part 60 applies to the licensing of.00E to receive and possess source, special nuclear, and byproduct material at a geologic repository operations area " sited, constructed, or operated in accordance with the Nuclear Waste Policy Act of 1982." Under this language, a repository used exclusively for wastes generated by defense activities of 00E would not be covered by P4rt 60 - since the procedures prescribed by NWPA do not apply to such defen,e facilities. Sec. 8(c), 42 U.S.C. 10107(c).

The commenter is correct in noting that the proposed amendments would eliminate the existing rules for a defense-waste facility without providing an alternative structure. Furthermore, in the commenter's view, since NWPA does not apply to such a facility, it does not necessitate any change in the Commission's licensing procedures with respect thereto. However, in accordance with the procedures set out in Sec. 8(b) of NWPA, the President has now determined that the development of a repository for the disposal of high-level radioactive waste resulting from atomic energy defense activities only is not '

required. As provided by law, the Secretary of Energy will now proceed to arrange for the use of a repository that is subject to 10 CFR Part 60 for the disposal of such waste. There is thus no longer any need for regulations dealing specifically with a defense-waste-only repository.

One element of the commenter's concern relates to defense high-level wastes that would be disposed of in some fdcility.other than a geologic repository.

Both before and subsequent to enactment of NWPA, such a facility would be licensable by NRC under Section 202(4) of the Energy Reorganization Act.

Licensing would not have been undertaken under Part 60, however, since those regulations apply, by.their terms, exclusively to systems " intended to be used for, or may be used for, the disposal of radioactive wastes in excavated geologic media." The changes being made therefore have no bearing upon the issues of concern to the commenter with respect to such other facilities.

9 COMMENT NO. 4 Comment Summary:

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

Response

f The Commission agrees with the commenters who regard NWPA as requiring that DOE defer the sinking of shafts at least until such time as there has been an opportunity for Commission comments to have been solicited and considered by DOE. As stated in the preamble to the proposed rule, "The Commission believes that Congress intended that DOE should provide the plans sufficiently far in advance so that comments may be developed and submitted back to DOE early enough to be considered when shaft sinking occurs, and at all timcs thereafter."

The question, therefore, is not whether the Commission agrees with the objective of those commenters, but rather whether it should be incorporated into the Commission's rules. What is involved is essentially a construction of the obligations of DOE, as a matter of statutory construction, under section 113(b) i of NWPA. After further consideration of public comments on the matter, the Commission has concluded that it should incorporate a provision into the rule requiring that DOE defer the sinking of such shafts until such time as there has been an opportunity for Commission comments thereon to have been solicited and considered by DOE.

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10 COMMENT NO. 5 s Comment Summary:

The terms " Indian Tribe" and " Tribal organization" which are currently defined and used in the rule should not be replaced with the term "affected Indian Tribes" which is defined and used in the NWPA. The proposed change would limit participation by Indians and preclude participation by Tribes not currently designated as "affected".

Response

The Commission has incorporated into the final rule a definition of "affected Indian Tribe" which reads:

"The ter'm "affected Indian Tribe" means any Indian Tribe (1) within whose reservation boundaries a repository for high-level radioactive waste or spent fuel is proposed to be located; o- (2) whose federally defined possessory or usage rights to other lands outside of the reservation's boundaries arising out of congressionally ratified treaties or other federal law may be substantially and adversely affected by the locating of such a facility; Provided, that the Secretary of the Interior finds, upon the petition of the appropriate governmental officials of the Tribe, that such effects are both substantial and adverse to the Tribe."

This is a broader definition of "affected Indian Tribe" than appeared in the proposed rule. The final rule places all Indian Tribes on the same footing so long as their rights arise under Federal law' irrespective of the legal form in which such rights may have been documented.

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1 11 COMMENT NO. 6 Comment Summary:

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

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

Response: -

. The Commission does not believe it is advisable' to codify the timetables for these reviews. We ' interpret the timeframes in the NWPA to be directory

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, than mandatory. NRC estimates that the review of an SCP of high quality and completeness will require 5 months. While NRC will endeavor to' complete reviews of the SCPs and license application as promptly as is consistent with a thorough review, the time required for review is highly dependent on the quality and completeness of the DOE submittals.

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

We recognize that many potential licensing questions related to shaft ,

construction (a critical path activity) must be addressed well before the start of shaft construction and, in some instances, even before SCP iscuance. The ,

NRC's ability to provide timely comments and guidance to DOE on shaft-related activities is contingent on DOE scheduling effective interchange with NRC before commitments and decisions are made on these activities, so that DOE can consider and develop satisfactory resolution of any NRC comment in a manner not to delay DOE's schedule.

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

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12 COMMENT NO. 7 Comment ^ Summary:

The re'gulation should include the provisions of NWPA 5112 (f) which provide an exception under certain conditions to the requirement that DOE submit a site characterization plan before proceeding to sink shafts at an area.

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

Response

The NRC does' not believe it-is necessary to include this provision in-the regulation. It was never ascertained whether this provision would have been adequate to permit DOE to continue characterization activities at'BWIP. In any event, DOE has chosen to discontinue characterization activities there until after an SCP has been submitted. The siting guidelines which DOE has promulgated as regulations would probably now foreclose the Ose of this exemption.

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13 COMMENT NO. 8 Comment Summary:

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

Response

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

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prohibit DOE's use of radioactive materials in site characterization.

The Nuclear Waste Policy Act does conf.er new authority upon NRC t

.but.it is limited in scope. This is the authority to concur that DOE's use of radio-active material "is necessary to provide data for the preparation of the required environmental reports and an application for a construction authoriza-tion for a repository at such candidate site." Sec. 113(c)(2)(A), 42 U.S.C.

10133. The language of the rule appropriately implements this provision.

The final rule further requires that the site characterization plan identify any plans DOE may have involving the use of radioactive tracer materials. Sec.

60.17(a)(2)(ii). Any tracer tests described in the site characterization plan would be subject to the review and concurrence procedure specified in S 60.18(e).

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14 COMMENT NO. 9 Comment Summary: -

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

Response

In response to the comments received, the final rule assures that host States and affected Indian Tribes'will be permitted to intervene. This has been accomplished by amending 10 CFR S2.714(d). A conforming change is also incor-porated in S60.63(a). .

It will not be necessary for such a party to demonstrate its standing, as would' otherwise be the case, by a showir.g of its right under the Atomic Energy Act to be made a party, the nature and extent of_its property, financial, or other interest in the proceeding, and the possible effect of any order which may be entered in the proceeding on its interest. Under the amended rule,' States and Tribes would have unquestionable legal right to full party status which includes, with respect to all matters affecting its interest, the rights to introduce evidence, put on witnesses, cross examination, full notice and service of all pleadings, full rights of discovery, and standing to appeal. It should also be noted that non-host States may also participate in licensing proceedings as parties to the extent they meet the customary tests of standing, or as interested States.

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15 COMMENT NO. 10 Comment Summary:

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

Response

r We agree that all site investigations need not necessarily allow for precise licensing issue identification. But, we do not believe that this is implied by the footnote. The commenter may have misinterpreted the intent of the footnote. The footnote was merely intended to provide additional information ,

with respect to NRC involvement in reviewing DOE prelicensing activities, using the review of DOE's environmental assessments as an example.

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, COMMENT NO. 11 Comment Summary:

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

Response

In the current Part 60, there is a requirement that a State / Tribe proposal must be submitted at any time prior to docketing of an application or up to-120 days thereafter. The change to "at any time" in the proposed amendments is in recognition of the possibility of productive and timely proposals being submitted outside such a time frame.

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

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

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17 COMMENT NO. 12 Comment Summary:

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

Information to be provided by NRC under 60.61 is triggered by the submission of the SCP. Consultation in site review is triggered by the Presidential approval of a site for characterization. By this time, NRC and DOE will have conducted technical meetings and the EA's will have been developed by DOE and reviewed by NRC. Part 60 should contain provisions to allow formal State / Tribe interaction with NRC to begin earlier.

Response

NRC policy is to encourage interaction with States / Tribes to tne maximum extent ,

possible within the limits of the Commission's authority. NRC actions taken so -

far in the process of site selectica--inviting State / Tribe participation.in the concurrence on the siting guidelines, for example--bear this out. There is no basis to the assertion that NRC is withholding information. The proposed amendments reflect changes in the schedule for activities made by the NWPA.

The law sets the point at which formal interaction between NRC and States / Tribes begins at the site characterization stage. The proposed amendments do not represent a major change from the schedule for State / Tribe participation under the current Part 60.

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18 COMMENT NO. 13 Coment 'Sumary:

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

Response

In amending 10 CFR 60, " Tribes" will be written with a Capital "T".

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19 COMMENT NO. 14 Comment Summary:

The Director's invitation for State / Tribe comment on the SCP should not be discretionary, but mandatory. Section 60.18 (c) of the rule should state that the Director "shall" request comment.

Response

The proposed amendments provide that the Director's invitation to comment on the SCP by States and Tribes be on a discretionary basis. The Commission believes that this should be retained. The Director should have the discretion ,

to determine, in a particular instan?e, whether it would be advantageous to, solicit and consider public comments on DOE's site characterization plan before

- ' issuance of a site characterization analysis. 'The extent to which early reviews '

have afforded an opportunity fo'r interested persoqs to identify issues of concern, the need for additional expertise that might not be fully available at NRC, and the impact upon achievement of the scheduling directives of NWPA, are some of the factors that might be considered.

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d 20 COMMENT NO. 15 Comment Summary:

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

Response

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

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i 21 COMMENT NO. 16 Comment Summary:

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

Response: .

TheCommissionacknowledgesState(Tribe)dIncernsthattheNWPAschedulefor activities could create these pressures and place a strain.on State and Tribe resources. NRC presently is making every effort to keep States and affected -

Indian Tribes well-informed on activities so as to allow States and affected Indian Tribes time to plan for the types of participation which they may desire. -

However, the Commission must also acknowledge that there is a schedule for repository licensing, and that the timeliness of proposals has to be a factor in NRC consideration of them. '

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22 COMMENT NO. 17 Comment Summary:

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

Responsei The Commission agrees that the reference to S 51.40, which has heretofore been removed from the regulations, is no longer correct. It has accordingly been deleted from the final rule. The correct citation for the requirement that DOE is required to conduct a program of characterization with respect to alternative ' '

sites is NWPA itself (in particular, S 113,-4? U.S.C. 10133). In response to the comment, therefore, the final rule refers to the NWPA rather than to the ,

superseded regulation. ,

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23 COMMENT NO. 18 Comment Summary: .,

Mine safety considerations might require more shafts than are strictly

. necessary for site characterization, and the existing limitation in Section

, 60.15 (d) (2) on the number of exploratory boreholes and shafts should be revised to accommodate this need.

Response

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

_ limited to the extent practical -- ." (emphasis supplied) i i,

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I 24 COMMENT NO. 19 Comment Summary:

In Sections 60.15 and 60.17 the term " area to be characterized" has been used "

instead of the statutory term " candidate site." Both NRC and 00E should adhere to the stitutory terminology to the greatest extent possible, in order to avoid the confusion that would result from the use of different names for identical concepts.

Response

The term " site" is used in 10 CFR Part 60 to refer to the location of the -

con, trolled area - a very definite area with limits related to_ the isolation characteristics of a particular geologic Tepository. " Candidate site," as ~

define'd in the NWPA refers to a region of considerably greater' extent. NRC believes that the introduction of the term " candidate site" into Part 60 would increasc, rather than reduce, the likelihood of confusion, since in that event the word " site" would be applied both to the small and definite location of the

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

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25 COMMENT NO. 20 Comment Summary:

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

Response

It might be argued that the, statutory provision (NWPA S 113(c)(2)(A)) was intended to apply only to the emplacement of discrete packages, for testing purposes, into. excavated locations in the repository. However, in view of the unqualified language that "the Secretary may not use any radioactive material at a candidate site unless the Commission concurs that such use is necessary" (emphasis supplied), the regulation has been modified to state expressly that -

the site characterization plan must also identify any plans DOE may have involving the use of radioactive tracer materials. See S 60.17(a)(2)(ii).

Any trecer tests described in the site characterization plans would be subject to the review and concurrence procedure specified in'S 60.18(e).

The Nuclear Waste Policy Act does confer new authority upon NRC, but it is limited in scope. This is the authority to concur that DOE's use of radio-active raaterial "is necessary to provide data for the preparation of the required environmental reports and an application for e construction authoriza-ion for a repository at such candidate site." Sec. 113(c)(2)(A), 42 U.S.C. 10133.

While NI:C concurrence may be a legal prerequisite to DOE's use of radioactive material -in characterization, this limitation is derived from the statute itself and not from any regulatory action, such as licensing, on the part of the Commission. The Commission merely makes a finding of necessity. Thus, it is not appropriate for NRC to specify residual quantities of radioactive material which would be " allowed".

f 26 I COMMENT NO. 21 Comment Summary:

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

Response

Th2 cited paragra,oh is a restatement of language contained in existing 10 CFR S 60.11(g), with editorial changes only. The Nuclear Waste Policy Act did not alter the relationship between the Commission and DOE during site characterization. Accordingly, it is appropriate to retain the regulatory language that had previously been approved. Moreover, the Procedural Agreement is merely a mechanism for implementing NWPA and not an independent source of regulatory authority. An explicit reference to the Procedural Agreement in the text of 6 60.18 could be misunderstood as inplying that that instrument was a 2

basis for the regulation.

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27 COMMENT NO. 22 ,

Comrcent Summary:

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

Response

The Commission believes that any information which it requires, other than the items specifically called for under S 113(b)(1)(A)(1-iv), should be pertinent .

to its review of ." site characterization" activities at the site in question.

The term " site characterization," as defined in Sec. 2(21) of NWPA, refers to ,

activities " undertaken to establish the geologic condition and the ranges of the parameters of a candidate site relevant to the location of a repository, including borings, surface excavations, excavations of exploratory shafts, limited subsurface lateral excavations and borings, and in situ testing needed to evaluate the suitability of a candidate site for the location of a repository, but not including preliminary borings and geophysical testing needed to assess whether site characterization shoJ1d be undertaken." This definition is so closely patterned after the earlier definition in 10 CFR Part 60 as to imply that the Commission's usage was being adopted. There is no statement in the reports on the draft legislation to indicate the contrary.

In using the term " site characterization," the Comn.ission has consistently focused Lpon those tests that must be undertaken to provide the kinds of geologic information which will be needed in order for DOE to be able to

, prepare a license application, and for the Commission to make licensing findings with respect thereto with reasonable assurance. Since the act.ivities

, that are the subject of the instant comment are not " site characterization" within the established meaning of that term, the Commission must decline to require their submission in the site characterization plans.

The Commission doe.; not mean to imply that the information is not important.

However, under the NWPA, that information is required to be obtained and circulated under a variety of mechanisms other than the site characterization plan. These include the environmental assesstents for the several candidate sites, the environmental impact statement that is prepared after site characterization has been completed, and the information that is developed by DOE under the cooperatlve arrangements entered into with the States and affected Indian Tribes.

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

However, ur. der CEQ regulations, DOE is already required to engage in an early and open scoping process for determining the scope of the issues to be addressed

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related to a proposed action. This process, coupled with the consultation provisions of Section 117 the of NWPA, addresses the concerns of the commenter.

It is neither necessary nor appropriate for the Commission to assert its regulatory authority so as to require DOE to fulfill its duties under these other provisions of law.

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29 COMMENT NO. 23 Comment Summary:

All revisions to Part 60 and Part 51 to conform them to the NWPA should be promulgated simultaneously. In particular, the revisions concerning NEPA requirements should accompany the revisions currently being proposed. This would assure that a comprehensive and integrated approach is taken and that any confusion regarding NWPA and NEPA requirements is eliminated. Much of Part 60 now rests on NEPA authority so that failure to include NEPA in the currently proposed revision casts a cloud over the Commission's view of its authority to carry out early site reviews. It may also skew the scope of environmental assessment review by precluding reviews of alternatives and comparative '

analysis.

Response

The Commission has not put off considering the responsibilities of the Commission under NEPA as modified by the NWPA. In developing these proposed regulation changes, the Commission has specifically evaluated whether it was necessary for the Commission to take any steps during the site screening stages to assure meeting its ultimate NEPA responsibilities. The Commission concludes that NRC pre-licensing review should not be exhaustive, and in this regard it differs frem the commenters. In light of the Commission's understanding with respect to NRC's responsibilities, it would be important and appropriate to proceed with the present action without awaiting other changes that will be proposed in the light of the NWPA. In view of the need to publish those changes related to the site characterization plans prior to the rapidly approaching time when DOE prepares those plans, it was_necesqary to consider these changes first and separately. These issues are separable from other NWPA mandated matters, including NEPA concerns. The NEPA related amendments to NRC rules (1) will define the alternatives that must be discussed in an environmental impact statement, (2) will exempt the promulgation of NRC licensing requirements and criteria from environmental review under NEPA, and (3) will set out the procedures that will be followed by the Commission in determining whether or not to adopt the DOE EIS. The alternatives are, in principal part, defined by NWPA. The exemption for environmental review of the promulgation of licensing rules is also explicitly stated by that Act. The procedures for adcption of the DOE environmental impact statement are mandated generally by NWPA and regulat.ons of the Council on Environmental Quality. All of these matters are readily separable from the proposed amendments.

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

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COMMENT NO. 24 Comment Summary:

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

Response: .

The responsibilities of NRC as expressed by 10 CFR Part 60 are indeed 3 essentially unchanged by the NWPA. The specific proposed changes to 10 CFR 60 l are not explicitly required by the NWPA, but are what the Commission considers are necessary to make its regulations consistent with NWPA requirements and provisions.

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COMMENT NO. 25 Comment Summary:

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

j Resoonse:

i The Commission agrees that Section 117 of the NWPA establishes new rights for the States to receive information, comment nn such information, and have such comments considered. Since the proposed regulation incorporates the language *

, of Section 117, the States are assured that NRC's regulatory program will accomraodate any such rights notwithstanding the discussion of Section 117 in the statement of considerations.

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COMMENT NO. 26 4

Comment Summary:

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

Response: .

The comment only quotes a portion of the phrase that was substituted. Omitted were the words "or that are important to waste isolation". The statement of 4 considerations explains that the change was made to clarify our interpretation of the NWPA which is that DOE should address both those aspects of the site that could (1) be significant with respect to radiological safety prior to permanent closure or (2) affect the ability of the repository to satisfy the performance objectives pertaining to waste isolation. 10 CFR Part 60 contains a definition of the words "important to safety". To meet the intent of the statute the term "important to safety" is the appropriate term which must be used. We note that this comment was made on an advance draft and was not repeated in the comments on the proposed rule which was accompanied by the

-statement of conside' rations explanation.

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j COPEENT NO. 2/

Comment Sunnary:

The term " semi-annual reports" in Section 60.18 (g) is incorrect as the NWPA .

and the proposed rule require reports "not be.less than once every 6 months".

It is inappropriate that the Commission waive its expectation for more than the.

minimum reporting from DOE.

Response

1 As the comments noted, the rule does require that " DOE shall re' port not less than once every six months" as required by the NWPA. Referring to such reports

as semi annual does not prevent DOE from making aore frequent submissions if appropriate. */

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34 COMMENT NO. 28 Comment Summary:

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

Part 60 should not be based upon the Procedural Agreement.

Response

NRC does not rely upon the Procedural Agreement as its authori.ty to. perform >

early site review activities. The authority is the Atomic Energy Act, the -

Energy Reorganization Act, and the Nuclear Waste Policy Act. The Procedural

, Agreement is merely the mechanism that has been developed to implement these statutes. Par,t 60 is not based on the Procedural Agreement, but upon the statutes cited above. See Authority citation. In response to the comment, however, the Commission has deleted the one reference to the Procedural Agreement from the proposeo rule. See the revised footnote to $60.18.

It is important in this regard to observe carefully the procedural framework tnat is laid out in NWPA. While there are some opportunities for early NRC participation, notably in connection with its concurrence in the DOE siting guidelines, the NWPA does not otherwise provide for NRC review until DOE has i proceeded to the site characterization stage. It is at that point that the law 4

calls for NRC to carry out its first site-specific review. In developing regulations, NRC should adhere as closely to NWPA as possible. It is therefore preferable to require submissions from DOE only at the times indicated by that law. See also response to Comment no. 2.

35 COMMENT NO. 29 Comment Summary:

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

Response

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

! as NRC, and States and Tribes may comment directly to DOE on them. A notice

• and public comment procedure would be too cumbersome and creat9 the potential for unproductive delays. However, the rule does provide for public comment on the NRC responses to DOE by having the Director invite comments. ,

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COMMENT NO. 30 Comment Summary:

NRC should retain in Part 60 provisions requiring NRC notification to local governments.

Response

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

activities of the State, DOE, or NRC with raspect to the site (Section 116(c)1(b)iv).

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In light of the procedures established by the NWPA, the proposed amendaents to 1

Part 60 which would limit NRC notification to host Statec and affected Indian 1

Tribes are entirely proper. -

The NWPA calls for cotification of " Governors, State legislatures, and Tribal -

councils." The noti'ication procedures for Part 60 should conform to this. No change is needed.

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37 COMMENT NO. 31 Comment Summary:

To offer explicit, comprehensive comments on S 60.15 throug5 60.18, knowledge of the mechanics and schedule of interaction between NRC and 00E in the site characterization process is necessary. One or more NRC/006/ State / Indian meetings should be held to develop the mechanics of the SCP interactions.

Response

There is no reason why explicit, comprehensive comments cannot be offered at this time on these proposed rule sections. The NWPA and this rule. define the

. general process for interaction. Distribution of preliminary drafts of the proposed rule, prior geetings with .the States and Indian. Tribes, and the comments on these proposed rules have given the interested. parties opportunity 4

for input into developing this general process.

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

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COMMENT NO. 32

• Comment Summary:

The Statement of Considerations should state that staff decisions (such as the denial of a State. participation proposal) can always be appealed to the Commission.

Response

It is appropriate to leave the procedures for seeking Commission review infor-mal, as is the case for most administrative actions that have been delegated to

, staff. Should the staff decision prove to be unsatisfactory, the aggrieved State could elect to try to persuade the Commission to review the action.

Alternatively, it would have the option of seeking judicial review without having first to exhaust other remedies. (Adoption of the commenter's proposal could result in an aggrieved party's being reauired to appeal to the Commission whether it wished to do so on not.)

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39 COMMENT NO. 33 Comment Summary:

Since DOE is not fully cooperating with States, the Commission's reduction of opportunities for interaction may foreclose effective State participation in decisions.concerning the repository. Thus, NRC should not reduce opportunities for State consultation

Response

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

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

i 40 COMMENT NO. 34 Comment Summary:

NRC should fund State involvement in repository planning because States have had difficulty obtaining funds from D0E.

Response

'The Commission expitined, in the preamble to the proposed rule, that it believed Congress intended that DOE should assume the Federal responsibility for funding State involvement in repository planning. The commenter does not take issue with this view. If, as appears to be agreed, NWPA vests DOE with this responsibility, the appropriate action for the Commission is to eliminate any inconsistent or contrary provisions from its regulation. The concern of the State appears to be its lack of confidence in DOE's exercise of its funding authority. As in the case of other comments of this nature, discussed above, this is a matter for the affected States to work out with 00E; it is not something which the Commission is authorized to resolve or remedy. It remains true that the Commission may, in appropriate circumstances, turn to a State for particular services required by NRC in order to be able to carry out its own licensing functions effectively. But, as was explained at the time tha proposed rule was issued, this is best characterized as a standard procurement activity rather than as part of the regulatory scheme for implementation of NWPA.

The Commission also takes note of the decision in State of Nevada v. Herrington, 777 F.2d 529 (9 Cir. 1985), in which the funding responsibilities of the Depart-ment of Energy were clarified. Under the principles set forth in that decision, the opportunities for States to receive needed funding are suustantially enhanced.

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COMMENT N0. 35 Comment Summary:

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

Response

This rule is not an appropriate vehicle to provide a role for the Department of Interior in the site screening and selection process. The DOE has the primary responsibility for executing the site screening and selection process. If the Department of Interior tiished to become involved in this process, they should discuss this involvement directly with DOE. This amendment to the licensing procedures is being undertaken to reflect the requirements of the NWPA. A procedural agreement between DOE and DOI would also, of course, have to be 1

negotiated directly with DOE.

42 COMMEi4T NO. 36 Comment Summary:

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

Response

The Commission recognizes that the level of detail called for in the SCP is not defined precisely in the regulations. There must be sufficient detail for the Commission and other statutory reviewers to be able to comment in an informed manner. The Commission believes that requiring more detail in the rule would not be practical given the different types of sites. See, also, the discussion in the preamble to the proposed rule (50 FR 2565).

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

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43 CGMMENT NO. 37 Comment Summary:

Since NWPA Section 113(c)(4) requires the reclamation of a site determined to be unsuitable for a repository, NRC should require DOE to plan for such reclamation.

Response

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

" reclamation" and " decontamination and decommissioning." Accordingly, it is to 2

be expected that DOE would in fact describe its plans for site reclamation as part of its site characterization plan. The Commission would not need this information, however, since the site concerned would not be one subject to NRC licensing authority (since, by definition, it had been determined not to be suitable for a repository). The proposed rule is thus consistent with NWPA and appropriate to serve NRC regulatory needs, and it will not be changed.

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, Comment Summary:

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

Response

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

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

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COMMENT NO. 39 Comment Summary:

The rule should require 00E to submit site characterization plans before large-scale disturbances occur. Only " preliminary activities," which should be defined, should be exempt from the site characterization plan review.

Response

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

46 COMMENT NO. 40 Comment Summary:

States and Tribes should be notified of meetings between NRC and DOE held under the procedural agreement between NRC and 00E in accordance with the spirit of Section 117(a) of the NWPA.

Respcnse:

NRC agrees with the desirability of notifying host States and affected Tribes of meetings between NRC and DOE and has been providing such notification. NRC will continue to provide notification of such meetings, of the subjects to be discussed, and of the opportunity to participate at an appropriate level. No change in 10 CFR 60 is necessary.

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