ML20207L545
| ML20207L545 | |
| Person / Time | |
|---|---|
| Issue date: | 12/12/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-51FR45338, RULE-PR-2 PR-861212, NUDOCS 8701120224 | |
| Download: ML20207L545 (20) | |
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DOCKETED NUCLEAR REGULATORY COhSTISSION UTC 10 CFR PART 2 86 CEC 17 NO:45 RULE ON THE SUBMISSION AND MANAGEMENT OF RECORDS AND DOCUMENTS RELATED TO THE LICENSING OF A GEOLOGIC' REPOSITORY FOR THE DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTE; INTENT TO FORM AN ADVISORY COMMITTEE FOR NEGOTIATED RULEMAKING AGENCY:
Nuclear Regulatory Commission.
ACTION:
Notice of intent to form an advisory committee to negotiate a proposed rule.
SUMMARY
The Nuclear Regulatory Commission is considering forma-tion of an advisory committee under the Federal Advisory Committee Act, to develop recommendations for revision of the Commission's discovery rules, and selected other rules of practice in 10 CFR Part 2, related to the adjudicatory proceeding for the issuance of a license for a geologic repository for the disposal of high-level waste (HLW). Specifically, the committee would attempt to negotiate a consensus on proposed revisions related to the submission and management of records and documents for the HLW licensing proceeding. The committee would be composed of organizations representing the major interests affected by the rule.
This notice provides a preliminary identification of interests that may be represented on the l
committee, and the issues that the committee may consider. The notice also l
invites public comment on potential participation on the committee and on the t
rulemaking issues identified for negotiation.
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5 DN gli 224 861212 2 51FR45338 PDR
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DATE:
Submit comments by February 17, 1987.
Comments received after this date will be considered only if it is practical to do so.
ADDRESSES:
Send comments to the Secretary, U.S.
Nuclear Regulatory Commission, Washington D.C. 20555, Attn: Docketing and Service Branch.
FOR FURTHER INFORMATION CONTACT:
Francis X. Cameron, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington D.C.
20555 Telephone: 301-492-8689.
Kenneth L.
- Kalman, Office of Nuclear Material Safety and Safeguards, U.S.
Nuclear Regulatory Commission, Washington D.C.
20555 Telephone: 301-427-4071.
SUPPT.EA!ENTARY INFORAfATION:
Background
Under Section 114(d)(2) of the NWPA, the NRC is required to issue a final decision approving or disapproving issuance of a construction authorization for the high-level waste repository no later than three years after the date of submittal of the DOE license application, with a possible extension of twelve months for good cause.
If the NRC is to meet the statutory deadline 1
for making its decision on construction authorization, specific measures must be taken to streamline the NRC review process.
One such measure is the development of an electronic information management system to provide
4 parties to the licensing proceeding with ready access to all relevant documents.
One of the most significant contributors to the length of licensing review has been the time associated with sending, receiving, and handling of information and data.
This is true for docketed correspondence between receivers and applicants, for discovery by the production of documents and by interrogatories, and service of documents during adjudication.
Current technology for electronic storage, retrieval, and mail could substantially reduce the time needed for information processing.
If the Commission is to reach its construction authorization decision within the allotted timeframe, it will be necessary to facilitate the discovery process, as well as to reduce the delay normally associated with the physical service of documents. Hence, the information and data supporting a DOE application should he made available to all interested parties before the application is submitted and formal NRC review begins.
This would entail DOE development of a licensing information system that would provide ready access to all pertinent documents.
The system would not involve the generation of new data, but rather, would capture in electronic form, all the data that would normally be generated relevant to the licensing decision.
As such, it would serve as a means for efficient management of the information to be used in the licensing decision.
. Ideally, all parties to the licensing prcceeding would provide access to all relevant data within their control by making it available in a standard electronic format for easy incorporation into a centralized computer data base in the licensing information system.
Appropriate safeguards would have to be provided and a "no access" file for privileged data would have to be created.
All parties, as well as interested State, local, and tribal governments would then have open access to the licensing information system, with the exception of data in the privileged file.
Commission requirements for system performance are that ready access to the system would be available at minimal cost to the user. The Commission proposes to implement this process through a rulemaking which would require all parties to the high-level waste licensing proceeding to place all of their relevant documents in the data base and to use the licensing information data base as the sole information base for discovery purposes.
Because all relevant licensing information would already be available through access to the information management system, this type of process would eliminate the traditional filing of first round discovery requests and accompanying search times by the party from whom the records were requested.
It would also eliminate the mailing time associated with the request and the response, and would eliminate or reduce requests for extensions of time because documents were not provided or because adequate search time was not available.
Furthermore, it will ensure, to the extent practicable, the availability of data et the earliest possible time, thereby facilitating the early resolution of licensing issues.
. To ensure that the information and data are readily available to all partici-pants, NRC staff believes that the DOE license application and all records relevant to the application should be submitted in a standardized electronic format. The standardized electronic format will ensure compatibility of infor-mation and data submitted by parties to the licensing hearing.
It would also eliminate the need to re-key information and data into an NRC-accessible system.
The compatible information and data would then be accessible to all interested parties (States, Tribes, and others).
In agreement with DOE, NRC will carry out a pilot project to demonstrate document storage and retrieval capabilities and to develop processes that could lead to an interim system for use within the NRC (and possibly by others) until the DOE's full information management system, formally known as the Licensing Support System (LSS) is implemented.
The experience gained from the pilot project will be made available to DOE for use in expe-diting the definition of requirements for the LSS.
In addition, NRC is participating with DOE on an Interagency Coordinating Committee (ICC) whose purpose is to provide a preliminary evaluation of the major issues related to the development and implementation of the LSS. The ICC has met several times, with the assistance and participation of States, Indian Tribes, and the public.
Much of the planning and background infor-mation developed by the ICC will be useful to the negotiating committee in developing the final recommendations on the use of the LSS in the Commis-sion's HLW Ifeensing process.
However, the Commission emphasizes that the
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, use of the LSS in the Commission's licensing proceeding, and any related design issues, will ultimately be dictated by the Commission's rulemaking on this issue, whether the rule is developed through the negotiated rulemaking process or by the Commission on its own initiative. Although the ICC, with the participation of the States and Tribes, will allow DOE to begin planning the development of the system in the period during which the neFotiating committee is being constituted, the ultimate decision on the nature of the system and its use will be made within the context of the Commission's rulemaking, with the negotiated rulemaking as the first step in that process.
The Negotiated Rulemaking Process The Commission intends to use the process of " negotiated rulemaking" to develop the proposed rule that would revise the Commission's discovery procedures and motion practice in 10 CFR Part 2 for the high-level waste licensing proceeding.
In negotiated rulemaking, the representatives of parties who may be affected by a rulemaking, including the agency, convene as a group over a period of time to try to achieve consensus on the rulemaking issues.
The agency represents one essential party in the negotiation, with the same rights and responsibilities as any other party. If the negotiating committee does reach a consensus, the committee prepares a report to the agency containing the proposed rule.
The agency would then use the consensus report as a basis for a notice of proposed rulemaking.
The consensus is the basis for the proposed rule published for public comment, not the final rule. The agency retains the responsibility to develop i
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the final rule on the basis of notice and comment procedures. If the negotiating committee cannot reach consensus, the Commission will proceed to develop the rule on its own.
Negotiated rulemaking offers an opportunity for comprehensive treatment of the issues and creative solutions because all those with ideas on how to solve the problem are present at the discussions and can react directly to each others concerns and positions.
It will be particularly important in this rulemaking for all affected parties to communicate directly on a set of uni-form and compatible system requirements because of the diverse information systems now in use by these parties.
In addition, because the intervenors j
in the HLW licensing proceeding may possess substantial research data, it is important that they participate fully in the licensing information management system.
The Commission believes that negotiated rulemaking will encourage this participation.
Participation by affected interests in the development of the proposed rule will be important in terms of the credibility of the information management
- system, i.e., the belief that all relevant documents have been entered and l
that the system is secure from tampering.
In this respect, negotiated rule-making should increase the acceptability and enforceability of the rule.
Af-fected interests will be less likely to resist its enforcement, lobby against its implementation, or challenge it in court.
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Negotiated rulemaking has been used successfully by other agencies, and the Commission believes that it is appropriate to use this technique to develop the rulemaking on the HLW licensing information system.
This particular rulemaking involves the resolution of many issues, such as what data should be entered into the system, how to ensure that all relevant documents are
- entered, what types of data will be privileged, security and access issues, sanctions for withholding data, and appmpriate modification of the discovery rules.
These issues must be resolved to the satisfaction of all affected interests to ensure that the benefits of the rulemaking are achieved.
The likelihood of developing a consensus in this area is high because of the mutual benefits that could be realized by all parties.
This would be the Commission's first experience with negotiated rulemaking.
Its
- use, in appropriate situations, has been encouraged by the Administrative Conference of the United States (ACUS).
See ACUS
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(+7 FR tie @f; 03-tr-93)
(so FR 52393; 42-2 3-?d 3
p-oi Recommendation 82-4 and 85-g. The Environmental Protection Agency (EPA),
j and the Federal Aviation Administration (FAA) have completed successful negotiated rulemaldngs.
The ACUS has reviewed these attempts and concluded t?lat its endorsement of negotiated rulemaking was sound.
1.
Feasibility The NRC ntaff has had preliminary discussions on the development and use of an electronic information management system in the IILW licensing pro-i ceeding, and on the possibility of using negotiated rulemaking to institute
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, this system, with many of the parties that would be potentially affected by the rulemaking. This has included DOE and those having special interests under the NWPA -- the States and Tribes. Public interest groups have also been approached.
The professional mediators that the Commissfort has engaged to conduct the negotiated rulemaking will make further inquiries among a broad range of parties to determine (1) whether representatives of essential parties would agree to participate in the negotiated rulemaking process, (2) the specific individuals who might represent those parties, (3) the preliminary scope of the issues to be addressed, and (4) the timetable for the negotiating process.
On the basis of preliminary analysis and inquiries, the Commission believes negotiated rulemaking is a feasible mechanism for developing the proposed rule. However, the professional mediators will be further evaluating the feasibility of using the negotiated rulemaking process, and their report, as well as any comments submitted in response to this Notice, will be considered before the Commission proceeds with the negotiated rulemaking.
2.
Convenor/Facilitators i
I Under the umbrella of the Council on Environmental Quality contract for t
negotiated rulemaking services, the Commission plans to employ the Conservation Foundation of Washington, D. C., to oversee the negotiated rulemaking process. Gail Bingham, Senior Associate of the Foundation will act as Project Manager for the negotiation. The Conservation Foundation l
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. negotiating team has had extensive experience in multi-party dispute resolution, including experience in negotiated rulemaking. The Conservation Foundation negotiating team has not had any prior involvement with the substantive content of this particular rulemaking.
As noted above, the Conservation Foundation, in the exercise of its responsibilities as convenor, will be contacting potential participants on the negotiating committee, and will prepare a feasibility analysis of the negotiation for the Commission's consideration. The facilitator from the Conservation Foundation will chair the negotiating sessions, assist individual parties in forming and presenting their positions, and offer suggestions and alternatives that would help the negotiating committee reach consensus.
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- 3. Participants The Commission has identified several interests that may be affected by this particular rulemaking. These interests include--
the NRC as the sponsoring agency the Department of Energy l
States potentially affected by the siting of the repository l
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j Indian Tribes potentially affected by the siting of the repository l
1 a local governments potentially affected by the siting of the repository 3
o national environmental public interest groups potentially affected 4
by the siting of the repository national energy development public interest groups potentially affected by the siting of the repository or local environmental public interest groups potentially affected by the alting of the repository y.
local energy development public interest groups potentially affected t
by' the siting of the repository
- States, Tribal governments, and local governments potentially affected by the transportation of HLW ratepayers, represented by the National Association of Regulatory Utility Commissioners, or a similar association i
utilities, represented by the Utility Nuclear Waste Management Group, or a similar ascociation
. 1 Although not all of these parties may actually participate in the Commission's HLW licensing proceeding, they all have an interest in the efficiency and adequacy of the process that the Commission uses to ultimately arrive at a final decision on the DOE license application.
These interests could be represented by several parties acting in their individual capacities, or by a single party representing several groups in a particular class.
The Commission will make a final determination on the identity of the parties that will participate in the negotiated rulemaking based on the convenor's report and the comments received in response to this notice.
The Commission will consider parties for membership on the basis of (1) their direct, immediate, and substantial stake in the rulemaking, (2) whether I
they may be adequately repreented by another party on the committee, and I
i (3) whether their participation is essential to a successful negotiation.
However, the Commission does not believe that every individual or group actually or potentially affected by this rulemaking must have its own member
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on the committee. Rather it is sufficient if each major interest affected by the rule is adequately represented on the committee. The Commission also
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anticipates that particular groups or individuals may choose not to participate because they believe that the effects of the rulemaking on their b
interests are limited or speculative, or because they are already adequately represented on the negotiating committee. For example, with the DOE deferral of the site-specific aspects of the second repository program, many "se%nd round" States and Indian Tribes may feel that their interests on the negotiating committee are adequately represented by participation of the
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. "first round" States and Indian Tribes. In addition, to keep the negotiating committee at a manageable size, the Commission may need to consolidate the participation of "second round" States and Indian Tribes in light of the DOE deferral of a site-specific second repository program.
- However, the Commission welcomes expressions of interest from all potentially affected groups, including those whose stake in the rulemaking may only be speculative at this point.
Requests for representation must be made in writing by the date appearing in the notice, it is important that the negotiating committee be kept to a manageable size in order to maximize the efficient operation of the committee and the chances for success. The ACUS has recommended 15 members as an optimum sise, but negotiated rulemakings have also been successfully conducted with as many as 25 committee members. The Commission anticipates proceeding with
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the negotiation if a substantial number of essential interests are willing to participate.
The Commission will encourage the consolidation of groups / persons with like interests in order to reduce the number of participants in the negotiations.
l Furthermore, the Commission will use the selection criteria set forth above to exclude interested parties only as a last resort. The Commission itself will make the determination on who will be permitted to participate, if such a decision must be made.
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. Any individual or group not sitting as a member of the committee, and the public generally, will be provided with an opportunity to comment on any proposed rule developed as a result of the negotiating process. In addition, non-parties will also have an opportunity to attend the meetings of the negotiating committee, and to submit information to the negotiating committee, under the Federal Advisory Committee Act.
4.
Qualifications of Representatives Participants on the negotiating committee must be willing to negotiate in good faith. In this regard, it is important that senior individuals within each party participating in the negotiation, including the NRC, be designated to represent that party. The Commission has designated William J.
- Olmstead, Assistant General Counsel for P.ulemaking and Fuel
- Cycle, as its representative. Although the individual representative will not be required to
" bind" the party he or she represents in terms of making an "on the spot" commitment or. any issue that may arise at a particular negotiating session, the representative must have sufficient seniority and delegated responsibility to authoritatively represent the views of the party.
5.
Federal Advisory Committee Act In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., and the Commission's regulations in 10 CFR Part 7, the Commission is, by this notice, indicating its intent to charter the negotiating
h_ _. _ _ _.
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. committee as an advisory committee.
The draft charter will be submitted to the General Services Administration (GSA) for its review under 41 CPR Part 101-6.
In line with the GSA guideline that it is the responsibility of each agency to make a good faith effort to meet its advisory committee membership require-ments on a noncompensated basis, 41 CFR 8101-6.1033, the Commission is not providing my direct funding to the individual members on the negotiating committee. The Commission anticipates that the parties to the negotiation will either be able to cover expenses through funds provided by DOE under the NWPA or will be financially capable of covering their own expenses. In exceptional cases, where an essential group will be unable to participate due to the lack of funds, the Commission will have the convenor for the negotiation attempt to arrange funding through a nonprofit organization.
The Commission is providing ccmplete support for the operation of the com-mittee, including funding for a professional convenor/facilitator to assist the negotiating committee in reaching consensus, funding for the training of particpants on the principles of negotiation, provision of background information to the negotiating committee on the technical and legal aspects of f.
the rulemaking, provision of all logistical and administrative support fbr committee operations, and provision of Commission legal and technical staff to assist the committee.
I In accordance with the Commission's regulations in 10 CFIl Part 7, advance notice of negotiating committee meetings will be provided in the Federal g-ister, the meetings of the full negotiating committee will generally be open to the public, members of the public will be allowed to submit written state-i ments to the committee, and detailed minutes of each meeting will be record-ed and available for public review and copying.
6.
Committee Procedures and Meetings Under the general guidance of the convenor/facilitator, the committee will establish detailed procedures for conducting committee meetings. To assist the committee, the convenor/facilitator is preparing draft procedures for committee review. These draft procedures address such issues as the defini-tion of consensus and the use of working groups and caucuses.
l The Commission anticipates that approximately nine two-day meetings will be required to fully implement the negotiating process for this rulemaking. This series of meetings will take place over a period of nine months beginning in early 1987.
Approximately one-half of the meetings will be held in Washington, D.C.,
and the remaining meetings will be held at regional locations.
The first meeting of the negotiating committee will be organizational in nature, focusing on dates, times, locations, and procedures for future meetings. The Commission also intends to sponsor a one day training session on the principles of negotiation for the committee a's part of this first meeting. Negotiating sessions would begin appmximately one month
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. 1 after the initial organfrational meeting and continue monthly thereafter. The Commission in prepared to provide detailed information to the negotiating committee on the legal and technical aspects of the rulemaking during the initial sessions.
7.
Notice of Proposed Rulemaking The negotiating committee's specif!c objective will be to reach consensus on the terms of a notice of proposed rulemaking. To the extent that the negotiations are successful, the committee will prepare a report describing the factual basis on which the committee developed its proposals.
The Commission will provide drafting assistance to the committee in this regard.
If consensus is not reached on some issues, the report should identify the areas of consensus, the areas in which consensus could not be reached, and the reasons for non-agreement.
The Commisalon agrees to issue for comment any proposed rule prepared by the negotiatfr.g committee unless the Commisalon finds that the proposed rule is inconsistetit with its statutory authority or is not appropriately justified.
In that ever t, the Commission would explain the reasons for its decision.
Adoption of nny final rule will be based on consideration of any comments received on the proposed rule and other materials constituting the 4
rulemaking r. word.
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O 8.
Failure to Reach Consensus The Commission plans to dissolve the negotiating committee if the participants do not reach consensus within eight months after the first committee meeting. The Commission retains the discretion to dissolve the committee at 1
an earlier time if the Commission determines that the committee's act'vities are not being carried out in the public interest. If the negotiating committee is unable to reach consensus on any of the issues raised for discussion, the committee will prepare a report identifying the reasons for failure to achieve consensus. In the absence of consensus, the Commission has directed the NRC Staff to develop a proposed rule on an expedited basis.
4 9.
Issues for Negotiation The Commission has identified a number of issues appropriate for considera-tion by the committee. The convenor/facilitators wfIl also be soliciting the views of potential parties on additional lasues that may be appropriate for discussion. In addition, the Commission invites any interested person to sug-gest issues relevant to this rulemaking.
The Commission anticipates that additional issues will be considered by the committee as they arise.
The following is a preliminary Ifst of issues and is not intended to be a rigid agenda for the committee's deliberations--
What categories of information will be relevant to the IILW licensing decision, and therefore should be placed in the LSS ?
t What security measures are necessary to protect the information in the LSS?
What format should be used for the entry of documents into the LSS?
a Should all documents be entered in full text?
Where will system access terminals be located and what types of i
assistance will be available on using the system?
How will the electronic submission of documents be handled?
FINAL NOTICE After evaluating the comments on this announcement, including requests for representation on the committee, the Commission will make a determination on whether to establish a negotiating committee under the Federal Advisory Committee Act. If the Commission decides that a committee should be formed, j
the Commission will announce its decision in the Federal Register.
Dated at Washington, D.C. this [2 day of 1t/1986.
For th Muclear 1 vlatory Commission.
i h.t_b.
Samuel J. Chilk, Secretary of the Commission, r
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