ML20214S515
| ML20214S515 | |
| Person / Time | |
|---|---|
| Issue date: | 08/07/1986 |
| From: | Olmstead W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| REF-WM-1 NUDOCS 8612080311 | |
| Download: ML20214S515 (9) | |
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NRC RULES AND DECISIONS GOVERNING COLLECTION 6 NTS AND DATA FOR USE IN LICENSING PROCEEDINGS GOVERNING HIGH LEVEL NUCLEAR WASTE GE0 LOGIC REPOSITORIES William J. Olmstead Assistant General Counsel for Rulemaking and Fuel Cycle Office of the General Counsel U.S. Nuclear Regulatory Commission ABSTRACT The Nuclear Waste Policy Act of 1982 (NWPA) -42 U.S.C.
%$ 10101-10226, requires the Department of Energy to obtain a license from the Nuclear Regulatory Comission authorizing the construction of a repository for deep geologic disposal of high-level radioactive waste and spent nuclear fuel. The Act contemplates a Comission decision on i
DOE's application within threa years of the date of submission. The regulatory framework for licensing the repository includes both substantive and procedural rules governing the collection and control of data and documents. A number of rulemaking initiatives are being undertaken to better define these rules for repository licensing.
These rules will provide the regulatory context in which a repository application will be considered.
BACKGROUND The regulatory context in which the Nuclear Regulatory Comission will consider an application from the Department of Energy for approval to coamence construction of a permanent deep high-level radioactive waste repository is established by four principal statutes: The Atomic Energy Act of 1954, as amended, 42 U.S.C $6 2011-2259; The Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5% 5801-5891; The National Environmental Policy Act of 1969, as amended, 42 U.S.C.
65 4321-4346; and The Nuclear Waste Policy Act of 1982, 42 U.S.C.
59 10101-10226. There are, of course, other state and federal statutes which govern various aspects of a repository licensing deci-sion. A compendium of the many rules and statutes applicable can be found in section 10 of DOE's draft project decision schedule issued in July 1985.
(The final document did not include this compendium.) For purposes of this discussion, however, the focus will be on the regulatory issues associated with implementing the principal statutes governing NRC's and DOE's repository licensing activities.
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T THIRTEENTH ANNUAL NATIONAL ENERGY DIVISION CONFERENCE The Atomic Energy Act provides the statutory basis for the Comission's exercise of licensing and regulatory authority over byproduct, source, and special nuclear material. The Act also governs the procedure by which the public at large can participate in licensing decisions. The Comission's rules governing the licensing of a repository application reference the AE Act and assume the use of hearing procedures which are consistent with 9189 of the Act.
The Energy Reorganization Act abolished the Atomic Energy Comission and established two agencies, NRC and now DOE, to perform the functions assigned by the Atomic Energy Act.
In the reorganization, the NRC was given licensing authority over DOE for four specific activities:
Demonstration Liquid Metal Fast Breeder reactors, other demonstration nuclear reactors not in existence on the date the Act was passed, facilities used primarily for the. receipt and storage of high-level radioactive wastes resulting from licensed activities, and retrievable surface facilities authorized for long-term storage of DOE's high-level radioactive waste.
The National Environmental Policy Act applies to all federal agencies who propose major federal actions.
It requires the preparation of an environmental impact statement in draft which is circulated to other involved federal agencies and to the public for coment. Upon receipt of comments, a final statement is prepared to accompany the existing agency review process.
The Council on Environmental Quality is charged with responsibility for advising the President on the adequacy of the federal programs in achieving the policies of NEPA. CEQ has published guidelines for federal agencies to follow in implementing their environmental regulations.
Both NRC and DOE have regulations which implement the CEQ guidelines on the impact statement process.
The Nuclear Waste Policy Act specifically modifies some of the procedural requirements previously applicable under the AEA, the Reorganization Act, and NEPA. NWPA, however, is primarily directed at establishing schedules and timetables for accomplishing activities leading to the selection, authorization, construction, and operation of a repository. While it is a land-mark piece of legislation, it gives little new authority to the Commission. NWPA's legal significance is the schedule and process established which is designed to reach a decision on the most suitable design and location for a high-level radioactive waste deep geologic repository (hereinafter repository).
It is the schedule and procedure which keeps steady pressure on DOE and NRC to identify regulatory issues and set in motion prncesses designed to resolve them. Most of the legal difficulties presented in such 1
issues, however, arise under the other three statutory schemes.
There are myriad issues which need to be resolved.
This paper will address only those which are related to document and data
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l THIRTEENTH ANNUAL NATIONAL ENERGY DIVISION CONFERENCE e
e production and control.
In particular, this paper will focus on the need to modify licensing procedures and practices caused primarily by the large number of years over which data will be gathered and the short time periods allowed for licensing under the NWPA.
LICENSING PROCEDURES AND PRACTICES The NWPA does not contain provisions which specifically alter the procedures which the NRC is required to follow under the Atomic Energy Act.
Consequently, Section 189 of the AEA which provides for adjudicatory hearings on licensing applications when requested by interested persons is applicable to DOE's application for construction approval. The NWPA, however, does have three significant provisions which substantially affect the NRC's traditional licensing practices.
First, NWPA provides for a three year period for NRC licensing with provisions for a fourth if NRC seeks Congressional approval.
- Second, States and Indian Tribes are given a special role. Third, the NEPA review process is specially tailored to require only one impact statement to be prepared by DOE and adopted by NRC.
The three year licensing period allowed for NRC decision is the outside time frame contemplated in DOE's current project decision schedule. The 1985 draft schedule shows only 27 months for NRC review and approval.
Significantly, ra contested reactor licensing review which follows the same adjudicatory model which DOE must follod has been accomplished in three years. The three year period must allow for staff review, followed by hearings, followed by Commission review and decision. Staff currently estimates that its technical review of a complete application will require 14 months.
The Comission, if it receives views of participants, has been requiring four to six months to reach a decision. Thus, an adjudicatory hearing has to be started and completed in 18 months or under to meet and three year schedule.
For a 27-month schedule, the hearing must be accomplished in less than a year. This has never been done in a heavily contested nuclear proceeding.
The significance of this schedule can only be understood if one refers to the Commission's Rules of Practice in 10 CFR Part 2 which provide the procedures applicable to contested adjudicatory hearings.
A time line established from the issuance of a Notice of Hearing to an J
Initial Decision by a Licensing Board reveals a minimum time under i
current rules of 410 days.
If appeals to the Commission are included another 120 days are required.
Thus,17 months is the absolute minimum time under existing practice to perform all required procedural steps.
Twenty-three months is required to complete the hearings and appellate reviews. That leaves only three months of DOE's proposed 27 month schedule to perfect a Notice of Hearing upon filing of the application even if the hearing is allowed to overlap the staff review.
Overlapping the staff review is not particularly advisable since the
THIRTEENTH kNNUAL NATIONAL ENERGY DIVISION CONFERENCE
@l staff's review can result in changes in assumptions or technical analyses which can substantially affect issues in the proceeding causing the parties to retrace certain steps thus prolonging the schedule.
hEGOTIATED RULEMAKING Several rulemaking strategies are being considered to address the issues presented by the statutory schedule.
Under current rules service of process through the mails requires 15 days each time a motion or other related document is filed.
Five days are allowed for all parties to receive a document.
Responses are allowed with five days allowed for board and parties to receive them. The Board's decision is mailed and five days are allowed for receipt.
Electronic Mail could eliminated these times if all parties had access to compatible protocols and equipment.
This could eliminate three months of the time required to conduct contested proceedings.
Discovery rules, particularly those devoted to document production, are another source of time intensive effort. Under existing rules a document production request in a large case (the HLW proceeding will be massive) can require 12-18 months of manual effort.
Large file rooms have to be established by each party anc time has to be provided to manually sort and select records at the site of production. With multiple well-financed parties this means extensive travel, scheduling, review, and motion practice.
If a central document on-line data base were available containing all discoverable document information, this time-consuming activity could be reduced substantially.
If the data base were available well in advance of the start of the proceeding, document discovery procedures could be reduced to a few months.
The Commission has urged DOE to consider these time consuming processes in connection with its efforts to establish a well documented QA/QC program.
DOE has agreed to study the feasibility of setting up a computerized document data base which would have the capability of producing all relevant documentation associated with its repository application.
To realize the potential time saving such an approach can offer, the Commission's Rules of Practice will require modification.
Particular attention needs to be paid to procedural rules governing the requirements for document preparation and service of process.
For example, the Rules currently specify typed, doubic-spaced, single-sided, 81 X 11 white paper with one-inch margins.
If electronic dissemination were implemented a standard might include ASCII text, 80 characters per line, carriage returns and line feeds, Asynchronous transmission with XModem protocols. Of course, standards of electronic transmission are much more uncertain at present.
Consequently, the Commission is considering a negotiated rulemaking which would invite
4 THIRTEENTH ANNUAL NATIONAL ENERGY DIVISION CONFERENCE persons most likely to be affected to participate in developing the standards which would be put in place.
" Negotiated rulemaking" is a process in which 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.
States, affected Indian Tribes, DOE, and the interested public groups already extensively involved with HLW issues would be asked to participate.
A second issue, more difficult to negotiate but critical to reducing time considerations in the prehearing phase of an adjudicatory proceeding, is the document data base.
It is fairly evident to those who have participated in a complex litigation involving millions of documents that significant time and professional resources are required to properly prepare a position when dealing with a massive document data base.
Consequently, efforts are underway at NRC and DOE to develop a strategy which would be a part of the negotiated rulemaking to develop a database management system which would be on-line and available to all parties to the HLW proceeding.
Document discovery would take place within the system.
If feasible, the system would be the only document discovery available and all documents would be produced electronically through it.
Obviously, significant details would have to be negotiated and parties would have to have confidence in the database.
Given the massive document database which is expected to be available at the time of licensing, this effort must be accomplished on an extraordinarily tight schedule to be effective.
Ideally, all parties to the licensing proceeding 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.
Conmission requirements for system performance are that ready access to the system would be available at minimal cost to the user. The Consission 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 licensirg information data base for discovery purposes.
This type of process would eliminate the traditional filing of first round discovery requests and thus would eliminate 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 substantially reduce rectuests for extensions of
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THIRTEENTH ANNUAL NATIONAL ENERGY DIVISION CONFERENCE time in the proceeding because documents were not provided or because adequate search time was not available.
Furthemore, it will ensure, to the extent practicable, the availability of data at the earliest possible time, thereby facilitating the early resolution of licensing j
- issues, j
l To insure that the information and data are readily available to all participants, the DOE license application and all records in support of the application should be submitted in a standardized electronic format. The standardized electronic fomat will ensure compatibility of information 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).
NRC is currently carrying 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 expediting 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 information developed by the ICC will be useful to the negotiating committee in developing the final recommendations on the use of the LSS in the Commission's HLW licensing process.
States and Indian Tribes have also sought changes to the Commission's Rules of Practice which would recognize them as parties to the waste proceeding. Current Commission practice is to allow government entities, such as States and Indian Tribes, to participate in adjudicatory proceedings in two alternative ways. They are able to
" intervene" by setting forth specific statements of position under 10 C.F.R. 9 2.714 know as " contentions". Alternatively, they can seek to participate as " interested states" under 10 C.F.R. 9 2.715.
In this latter case they are not required to set forth contentions nor to take any position on the issues in the proceeding. However, if any party in the proceeding drops out, the State or Indian Tribe carnot pick up the leaving party's position without meetir.g the late-filed can'.ention requirements. Some States have argued that this process lacks the cer-tainty that they would like to have about their party status and have urged the Commission to formally codify their party status in the Part
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THIRTEENTH ANNUAL NATIONAL ENERGY DIVISION CONFERENCE 60 procedural change. This issue will also most likely become a part of the negotiated rulemaking procedure.
A number of other issues appropriate for consideration in the negotiated rulemaking have been identified. The views of potential parties on additional issues that may be appropriate for discussion will also be solicited. The following is a preliminary list of issues which the Commission may decide to include in future rulemaking activity but it is not intended to reflect an exhaustive list.
What categories of information will be relevant to the HLW licensing decision, and therefore should be placed in the LSS ?
What timeframe should be used for the identification of relevant documents ?
How should drafts, handwritten notes, and handwritten annotations be handled?
What procedures should be established to ensure that all relevant documents are entered into the LSS ?
What rules should apply to privileged information, i.e. what documents are privileged and at what point in time should they be placed in the LSS?
What procedures will apply to any documents that are incorrectly excluded from the LSS ?
What measures, including sanctions, will be used to ensure that all relevant documents are entered into the LSS ?
At what time will parties, or potential parties, to the licensing proceeding be required to enter documents into the LSS ?
How will the authentication of documents be handled?
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
?
Should all documents be entered in full text?
Where will system access terminals be located and what types of assistance will be available on using the system y How will the electronic submission of documents be handled?
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THIRTEENTH NNUAL NATIONAL ENERGY DIVISION CONFERENCE CONCLUSION The ultimate ability of NRC to accomplish the licensing review of DOE's application for a deep geological high level waste repository will depend upon the quality and completeness of the application and the success of efforts to streamline the adjudicatory process so that the tremendous quantity of data and documents can be efficiently reviewed. An early indicator of the feasibility of meeting licensing schedules will be the success of the negotiated rulemaking effort which the NRC will soon undertake.
If the participants in that rulemaking find many points of agreement concerning how to manage and address the data base, then major efficiencies in the process may be realized, i
1 i
- ,w-THIRTEENTH ANNUAL NATIONAL ENERGY DIVISION CONFERENCE SPEAKER'S FACT SHEET 1.
William J. Olmstead (301)492-7203 1717 H Street N.W.
Washington, D.C. 20555 2.
U.S. Nuclear Regulatory Commission 1717 H Street N.W.
Washington, D.C. 20555 3.
Assistant General Counsel for Rulemaking and Fuel Cycle Office of the General Counsel 4.
NRC RULES AND DECISIONS GOVERNING COLLECTION OF DOCUMENTS AND DATA FOR USE IN LICENSING PROCEEDINGS GOVERNING HIGH LEVEL NUCLEAR WASTE GE0 LOGIC REPOSITORIES 5.
The regulatory framework for licensing the repository includes both substantive and procedural rules governing the collection and control of data and documents. A number of rulemaking initiatives are being undertaken to better define these rules for repository licensing. These rules will provide the regulatory context in which a repository application will be considered.
6.
Director and Chief Counsel Regulations Division, Office of the Executive Legal Director, U.S. Nuclear Regulatory Comission 1982-1986; 1981-82 Deputy Chief Hearing Counsel, Hearing Division, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission; 1980-1981 Assistant Chief Hearing Counsel, Hearing Division, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission; 1977-80 Deputy Assistant Chief Hearing Counsel, Hearing Division, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission; 1975-77 Senior Enforcement Counsel, Rulemaking and Enforcement Division, Office of the Executive Legal Director,U.S. Nuclear Regulatory Commission; 1974-75 Rulemaking and Enforcement Division, Office of the General Counsel, Atomic Energy Commission; 1973-74 Director of Federal Grants Project on Affirmative Action, Washburn University, Topeka, Kansas; 1966-1971 Captain, USAF, Electronic Warfare Of ficer B-52H, 449th Bombardment Wing (H).
J.D. - Washburn University, Topeka, Kansas 1974 B. A. - Southwestern College, Winfield, Kansas 1966 1986 Recipient of Presidential Award of Meritorious Executive.
SES Bonus Award for Performance 1984, 1985.
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