ML20217E029

Notation Vote Approving W/Comments SECY-97-154, Resolution of LSS Issues & Draft Proposed Rule,10CFR2,Subpart J

ML20217E029
Person / Time
Issue date:	08/20/1997
From:	Mcgaffigan E NRC COMMISSION (OCM)
To:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20217D961	List: ML20217D958 ML20217D976 ML20217E000 ML20217E017 ML20217E029
References
FRN-61FR60789 AF88-1, AF88-1-036, AF88-1-36, SECY-97-154-C, NUDOCS 9710060259
Download: ML20217E029 (17)

Text

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't N OT ATIO N VOTE RESPONSE SHEET t TO: John C. Hoyle, Secretary FROM: COMMISSIONER MCGAFFIGAN

SUBJECT:

SECY-97154 - RESOLUTION OF LICENSING SUPPORT  :

SYSTEM (LSS) ISSUES AND DRAFT PROPOSED RULE,10 C.F.R. PART 2, SUBPART J  ;.

Approved % Disapproved Abstain Not Participating Request Discussion COMMENTS:

See the attached comments.

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SIGNATURE l%LL (UDh Release Vote / K / h /'I 2 DATE Withhold Vote /- /

Entered on "AS" Yes Y No 774 88 Ts 'n?8?

CORRESPONDENCE PDR

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o 1997 JUl. 23 All 9: 35 DEFINITION OF VOTES This constitutes agreement with the recommendations

1. Approved.

contained in the applicable Commission paper or memorandum.

This constitutes disagreement with the recommendations

2. Disapproved.

contained in the applicable Commission paper or memorandum.

This is a statement ofintent rut to take part in the

3. Not Participating.

decision taken on the applicable Commission paper or memorandum. As such, the vote will not be counted in either determinmg the action of the Commission or the presence of a quorum.

Tnis is a statement ofintent not to participate in the

4. Abstain. decision taken on the applicable Commission paper or memorandum, but indicates a willingness to participate for the purpose of establishing "a quorum required for Commission action," if needed. As such it will be counted for quorum purposes only. If not needed for quorum purposes, the vote will be considered and treated the same as a vote of not participating. That is to say, it will not be counted for eithe: quorum or action purposes.

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t Commissioner McGaffican' Comments on SECY-97-154 I commend the Senior Management Team for its well-conceived (but long-overdue) approach to pre-application discovery in the HLW repository licensing proceeding and I approve the Team's proposed Option 4 to resolve Licensing Support System (LSS) issues, subject to the following --

1. I do not object to the proposal to retain an advisory body (similar to the LSSARP) to formally advise SECY and the Commission on the technical, administrative and document standardization requirements that would be appropriate for the proposed internet-based discovery system, but I also would be open to the informal users group alternative and suggest that we seek comments on this in the proposed draft rule by discussing both alternatives. In particular, I would be interested in the degree to which potential parties to the HLW repository licensing proceeding would support the informal users group alternative.

2. To address the Atomic Safety and Licensing Board Panel's (ASLBP's) concern about the definition of " documentary material" to be included in the system, I suggest that the proposed definition should be modified by adding the following at the end of the first sentence in the definition in Section 2.1001:

and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant or party, including all related " circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party.

The essence of this provision was proposed by the ASLBP in its Memorandum to the Commission dated August 8, 1997.

In all other respects I found the ASLBP Memorandum unpersuasive. In particular, doing yet another systems / cost-benefit analysis to determine whether a centralized system could be carried out as cheaply as the internet-based proposal would amount to throwing good money after bad.

3. I suggest a number of edits to the Notice of Proposed Rulemaking, as noted on the attached marked-up pages, for clarity and to incorporate the proposed change in the definition of " documentary materials".

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t ATTACHMcNT 1 NUCLEAR REGULATORY COMMISSION 10 C.F.R. PART 2 RIN P'ocedures Applicable to Proceedings for the issuance of Licenses for t'ie Receipt of High-Level Radioactive Waste at a Geologic Repository AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed Rule.

SUMMARY

The Nuclear Regulatory Commission is proposing to amend its Rules of Practice for the licensing proceeding on the disposal of high-level radioactive waste at a geologic repository (HLW proceeding). The proposed revisions are intended to allow application of technological developments that have occurred since the original rule was adopted in 1989, while achieving the original goals of facilitating the Commission's ability to comply with the schedule for the Commission's decision on the construction authorization for the repository contained in Section 114(d) of the Nuclear Waste Policy Act, providing for a thorough technical review of the license application, and providing for equitable access to information for the parties to the hearing.

DATES: Submit comments by (75 DAYS AFTER PUBLICATION). Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.

ADDRESSES: Comments may be sent to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff. Hand deliver comments to 11545 Rockville Pike, Rockville, Maryland, between 7:45 a.m. and 4:15 p.m. on Federal workdays.

Single copies of this proposed rulemaking may be obtained by written request to Distribution and Services Section, Printing, Graphics and Mail Services Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, or by telefax to (301) 415-2260. For information on submitting comments electronically see the discussion under Electronic Access in the Supplementary Information section. Certain documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room,2120 L Street NW. (Lower Level), Washington, DC. These same documents also may be viewed and downloaded electronically via the Electronic Bulletin Board established by NRC for this rulemaking as indicated in the discussion under Electronic Access.

FOR FURTHER INFORMATION CONTACT: Kathryn L Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)415-1641, e-mail KLW@nrc. gov.

SUPPLEMENTARf INFORMATION:

1. Background

The existing procedures for licenses to receive high-level radioactive waste at a geologic repository were developed to address the Nuclear Regulatory Commission's concern regarding how best to review the DOE license application for a first-of-a-kind high-level radioactive waste l

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2 (HLW) repository during the 3 year time period dictated by Section 114(d) of the Nuclear Waste Policy Act. The Commission believed it necessary to reduce the time normally spent on the Jiscovery process at the start of a licensing proceeding and the time-consumi.1g service of documents during the proceeding if the Commission were to reach its decision within the allotted time. The Licensing Support System (LSS) concept, an electronic information management system, was created to achieve this time reduction by making the information and data supporting a DOE application available, simultaneously in a centralized database to all interested parties before the application is submitted and formal NRC review begins. Emerging information management technolog;es for issue identification, electronic storage and retrieval, and electronic mail were recommended for these functions to help achieve the objectives of more effective and efficient review.

The Commission employed the technique of negotiated rulemaking to develop the regulations goveming the development and use of the LSS. Negotiated rulemaking is the process by which the agency and the interests affected by a rulemaking meet to attempt to reach a consensus on a draft proposed rule if a consensus is reached, the agency publishes the negotiated rule as the agency's proposed rule. The Commission selected the negotiated ralemaking approach to address the LSS issue for several reasons, in 1987, the idea of use of an electronic information management system in a Commission adjudicatory proceeding was novel, not only for the Commission, but in general. Therefore, the development of the rules for the use of such a system would benefit from discussion and joint problem solving by those who might ultimately use the system and had experience with the Commission's traditional adjudicatory process. Furthermore, the potential uters of the LSS possessed unique information that would be important to the design of the system, such as their computer capability and the amount and types of relevant documents that they might generate, in addition, the potential for consensus was enhanc by th that the LSS rule focused on procedures for conducting the licensing proces , a might benefit all parties, rhther than a focusing on substantive technical criteria for a ensing process. Finally, the success of the LSS concept depended upon potential parties voluntarily complying with the licensing process for document identification and submission in the period before the DOE licensa application was submitted. Therefore, the involvement of interested carties in the development of the provisions to govern the use of the LSS was essential.

4 The Commission initiated the negotiated rulerr.aking in August 1987, and the negotiating committee--composed of State, local, and tribal govemments, industry representatives, NRC, DOE, and environmental groups-completed its work in July 1988. All the parties on the negotiating committee, except the industry coalition, agreed on the text and supplementary information of a draft proposed rule. However, even the one dissenting party, the industry representative, had been a full and active participant in the drafting of the regulatory text and supporting information. Industry did not join the final consensus at the end of the process based on its belief that the use of a new technology in the licensing process would not prove cost-beneficial. At that time, tne cost of the LSS was estimated by DOE to be in the $200 million range. The Commission, recognizing the agreement among the other parties on the negotiating committee, decided to publish the negotiated draft proposed rule as the Commission's propor.ed rule in November 1988. Because of this effort, the final LSS rule (10 C.F.R. Part 2, Subpart 1), " Procedures Applicable to Proceeding for the issuance of Licenses for the Receipt of High-t evel Radioactive Waste at a Geologic Repository" was promulgated on April 24,1989 (54 Fed. Reg.14925).

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A The LSS rule assigned the LSS Administrator (LSSA) function to NRC which wo 1d be responsible for the management, administration, operation and maintenance of the LSS[gave DOE responsibility for the design, development, and implementation of the LSS; and /

established the charter of the LSS Advisory Review Panel (LSSARP) to provide consensus guidance on the design and development of the LSS to both NRC and DOE. The LSS was intended to provide a central, shared, federally funded database of licensing information F beginning in 1995, the year in which DOE was expected to submit its application for a construction permit for the repository. The Commission adopted minor amendments further clarifying these procedures in a final rule published on February 26,1991 (56 Fed. Reg. 7787),

The Ucensing Support System Administrator (LSSA) was appointed in January 1989.

The LSSARP was formed, holding Ks first meeting in December 1989. Also in December 1989, well before any serious development work could be started on the LSS, the Department of Energy revised its repository p,ogram schedule to extend its anticipated license application date from 1995 to 2001.The LSS development schedule was consequently extended as well,

11. Discussion The development of the LSS that was devised in the original procedural rules in 10 C.F.R. Part 2, Subpart J, has not been accomplished during the time that has passed since adoption of the rule. Many delays and changes in personnel and program structure have plagued the Department of Energy's efforts to develop the LSS. Budgetary shortfalls and the unanticipated length of time that it has taken to develop the licensing applicabon for the repository not only delayed the development of the LSS, but also resulted in several additional years' accumulation of potentiallicensing information.

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Because of the length of timiinvolved, however, and the narrowing of the repository development program, much of the early material which was thought at the time of the rule

, , development to be relevant may no longer be relevant to the actual licensing proceeding which may not begin until about 2002. Also because of the extended penod of time it has taken to

' develop the LSS for DOE's use as a document management system, it appears that all accumulated documents may not have been identified and maintained property for tracking of important repository development decisions. In addition, since document espture may now involve much larger backlogtti en originally contemplated, the risk of failing to capture all the material originally required to be placed in the LSS is substantially larger than originally assumed in order for the current Subpart J rules to apply, the LSSA must certify that the DOE has complied with the requirement to enter all relevant documents in the LSS. Therefore, all of these factors combine to produce the high likelihood that the current rule cannot be implememed as originally envisioned if not, then 10 C.F.R. Part 2, Subpart J, will no longer apply. Instead, Subpart G, the generally applicable procedures for licer. sing proceedings, will apply, and there will be no pre-license application access to documents at all.

While the development of the LS6 t, .:: :emained stalled, the state of technology in document automation and retrieval has overtaken the technology of 1986 on which the original LSS was to be based. The use of computers to generate and maintain the complex documents of a party in litigation is widespread and commonplace. The Intemet is universally availability to tie disparate and geographically dispersed systems together. Readily available commercial software applications can perform the document management functions of the LSS. Therefore, the centralized LSS envisioned at the time the LSS rule was developed has become obsolete,

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4 and the enormous expense of designing and naintaining a stand alone system as required by the current rules appears to be an unjustified expense, especially when it appears unlikely that the rule will be able to be implemented successfully even ? the LSS is created.

Consequently, the Commission is proposing to amend its rules to allow more flexibility to incorporate the advantages of new information management technologies in the procedural rules for the licensing of the geologic repository, eliminating the LSS as a uniquely designed stend-alone system, while still maintaining the primary functions of the LSS: 1) a mechanism for u the discovery of documents before the license application is filed; 2) electronic transmission of filings by the parties during the proceeding; 3) electronic transmission of orders and decisions related to the proceeding; and 4) access to an electronic version of the' docket. The f

Commission believes that the proposed rule will continue to support the model timeline schedule for conducting the licensing proceeding within the 3 year statutory period that was \

published in the Statement of Considerations for the original 10 C.F.R. Part 2, Subpart J rule, f) s published on April 14,1989 (54 Fed. Reg.14925,14939).

The proposed rule eliminates the current prescriptive requirement in 10 C.F.R. Part 2, Subpart J for a centralized " Licensing Support System" administered by the NRC and therefore also eliminates the requirement for an LSS Administrator to assure the viability of the central '

database. To replace these features of the existing rule, the proposed rule requires that all '

potential parties, including the NRC and DOE, must make their documentary material available in electronic fonn to all other participants beginning in thr; pre-license application phaa. This 3N '

requirement is stated without unduly restrictive technological specifications, in order to .

accommodate flexible implementation consistent with current or future technologicalJ W m clu$1sf A developments. n. The Comtr!ssion intends that a potential party, party, or interested gevammental participant might offer electronic access to its documentary materialin a number of dCuent ways, including by providing its documents either to the NRC or to the DOE, to have the NRC or the DOE maintain the documents for electronic access. Although the draft rule requires that documentary material be made available electronically beginning on the date of the President's site recommendation to the Congress, the Commission would encourage the earliet ' feasible availability of documentary materialin order to enhance the future smooth operation of the licensing proceeding. The subsections relating to evaluations and certifications by the LSS Administrator are being removed because the LSS (and LSSA) concept is being removed. Section 2.1010 states that the Pre-License Application Presiding Officer will resolve any disputes relating to electronic accMs to documents in the pre-license application phase. Accordingly, the subsections which stated that the application would have to be docketed under subpart G if the LSS A d!d not certify compliance are removed, and subpart J (including specifically refu enced sections of subpart G) now unconditionally embodies the rules of procedure for the HLW licensing proceedin .

Section 2.1004 has been revised to provide procedures for providing access to a ,

document that has not previously been provided in electronic form, deleting previous references

to the LSS and the LSSA.

Section 2.1005 has bee 1 revised to delete reference to the LSS and to add an exclusion of readily available references, such as journal articles or proceedings, which may be subject to copyright.

Section 2.1000 has been revised to refer to providing a document in electronic form and to delete references to the LSS and the LSSA.

Section 2.1007 has been revised to refer to providing systems for access to integrated electronic information rather than providing terminals for access to the LSS. These systems must be maintained by DOE and NRC at the locations specified in the current versiu of the rule (except for the Uranium Recovery Field Office which no longer exists), beginning in the pre-license application phase.

Section ?.1008 is being revised to allow electronic access to the integrated electronic information to any person who complies with the requirements of subpart J, including the requirement in 9 2.1003 to make documentary material available, and who agrees to comply with the orders of the Pre license Application Presidhg Officer. The previous requirement to petition to the Pre-license App'ication Presiding Officer is being removed.

Section 2.1009 is being revised to delete references to the LSS and the LSSA, and to refer instead to the responsibility to provide electronic files. The responsible official for each potential party must certify to the Pro-License Presiding Officer that procedures to comply with 9 2.1003 have been implemented and that its documentary material has been made electronically available. There is a new requirement to update the certification at the request c,f the presiding officer, which replaces a previous requirement to provide this certification at 6 inonth intervals.

Section 2.1010 is being revised to delete references to the LSS and the LSSA and to refer instead to electronic access. The reference to petitions for access has been removed to conform to removal of this requirement.

N eflect the fact that the electronic availability of Section 2.1011 has been revis documentary material that is specified in his rule no longer requires special equipment. The name and functions of the LSS Advisory Review Panel have been amended to delete reference to the LSS and substitute the purpose of arriving at standards and procedures to facilitate the electronic access to material and to the electronic docket. Because of the broad and non-prescriptive requirements regarding providing electronic files in this rule, the Advisory Review Panel will be very useful in discussing standards and procedures to ensure that all participants are able to access the electronic information.

Section 2.1012(a) has been revised to allow the Director of NMSS to determine that the application is not acceptable if is not able to be accessed through the electronic docket.

Sections 2.1012(b)(1) has been revised to substitute ' integrated electronic information" for

' Licensing Support System'so that a person who has had access to the integrated ele-tronic information shall not be granted party status in the licensing proceeding if it cannot demonstrate compliance with the requirements of 9 2.1003. Section 2.1012 (d) has been revised to

, substitute " pre-license application electronic docket or electronic docket" for

• Licensing Support System' to indicate that access to either the pre-license application electronic docket or the E - _ _ - _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ _ _ _ _ - - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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electronic docket may be suspenoeo or terminated for f ailure to comply with the orders of the Pre License Application Presiding Officer or the Presiding Officer.

Section 2.1013 has been revised to delete references to the LSS and LSSA and r to the provision of information in electronic form. The requirement in S 2.1013(c)(5) to file one signed paper copy of each filing with the Secretary of the NRC has been removed because the electronic docket will not require signed paper copies.

Section 2.1014(c)(4) deletes a reference to the LSS and makes the f ailure of a petitioner to participate in the pre-license application phase a enterion in considering whether to grant a petition to intervene.

Section 2.1017 uses the unavailability of the " electronic docket"instead of the LSS as a justification for extending the computation of time in the proceeding.

Sections 2.1018 and 2.1019 are revised to delete teferences to the LSS and instea refer to providing documents electronically.

Electronic Access Comments may be submitted electronically, in either ASCll text or Wordperfect format (version 5.1 or later), by calling the NRC Electronic Bulletin Board (BBS) on FedWorld or connecting to the NRC interactive rulemaking web site,"Rulemaking Forum." The bulletin board may be accessed using a personal computer, a modem, and one of the commonly available communications software packages, or directly via internet. Background documents on the rulemaking are also availabte, as practical, for downloading and viewing on the bulletin board.

If using a personal computer and modem, the NRC rulemaking subsystem on FedWorld Communication can be accessed directly by dialing the toll free number (800) 303-9672.

software indicators chould be set as follows: parity to none, data bits to 8, and stop bits to 1 (N,8,1). Using ANSI or VT 100 terminal emulation, the NRC rulemaking subsystem can then accessed by selecting the " Rales Menu" option from the "NRC Main Menu." Users will find the "FedWorld Online User's Gudes" partcubrly helpful. Many NRC subsystems and data bases also have a

• Help /luformation Center" option that is tailored to the particular subsystem.

The NRC subsystem on FedWorid can also be accessed by a direct dial phone number for the main FedWorld BBS, (703) 321 3339, or by using Telnet via Internet: fedworld. gov, if using (703) 321 3339 to contact FrcWorld, the NRC subsystem will be accessed from the m FedWorld menu by selecting the Hegulatory, Government Administration and State Systems,"

then selecting " Regulatory information Mall." At that point, o menu will be displayed that has an option "U.S. Nuclear Regulatoty Commission" that will take you line. If you access NRC from FedWorld's main menu, you may return to FedWorld by selectin the " Return to FedWorld" option from the NRC Online Main Menu. However,if you access NRC at FedWorld by using NRC's toll-fnn number, you will have full access to all NRC systems, but you will not have access to the marn FedWorld system.

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9 If you contact FedWorld using Telnet, you will see the NRC area and menus, including the Rules Menu. Although you will be able to download documents and leave messages, you will not be able to wnte comments or upload files (comments). If you contact FedWorld using FTP, all files can be accessed and downloaded but uploads are not allowed; all ya will see is a list of files without descriptions (normal Gopher look). An index file listing all files within a subdirectory, with descriptions, is available. There is a 15 minute time limit for FTP access.

Although FedWorld also can be accessed through the World Wide Web,like FTP, that mode only provides access for downloading files and does not display the NRC Rules Menu.

You may also access the NRC's interactive rulemaking web site through the NRC home page (http1/www.nre. gov). This site provides the name access as the FedWorld bulletin board, including the facility to upload comments as files (any format), if your web browser supports that function.

For more information on NRC bulletin boards call Mr. Arthur Davis, Systems Integration and Developrnent Branch, NRC, Washington, DC 20555 0001, telephone (301) 415-5780; e-mail AXD3@nte gov. For information about the interactive ru.emaking site, contact Ms. Carol Gallagher, (301) 415 5905; e mail CAG@nte. gov.

EnvironmentalImpact: Categorical Exclusion The NRC has determined that this proposed regulation is the type of action described in categorical exclusion 10 C.F.R. 51.22(c)(1). Therefore neither an environmentalimpact statement not an environmental assessment has been prepared for this proposed regulation.

Paperwork Reduction Act Statement This proposed rule contains no information collection requirements and, therefore,is not subject to the requirements of the Paperwork Reduction Act of 1989 (44 U.S.C. 3501 et seq.).

Regulatory Analysis The Commission has prepared a draft regulatory analysis on this proposed regulation.

The analysis examines the costs and benefits of the alternatives considered by the commission.

The draft analysis is available for inspection in the NRC Public Document Room,2120 L Street NW. (Lower Level), Washington, DC. Single copies of the analysis may be obtained from Kathryn L. Winsberg, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone: (301)415 1641.

The Commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the Addresses heading.

Regulatory Flexibility Certification This proposed rule will not have a significant economic impact upon a substantial l

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10 number of small entities. The amendments modify the Commission's rules of practice and procedures. The license applicant for the HLW repository will be the Department of Energy, which would not fall within the definition of small businesses found in section 34 of the Business Act,15 U.S.C. 632, in the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 C.F.R. Part 121, or in the NRC's size standards i

pub!:shed December 9,1985 (50 Fed. Reg. 50241). Although a few of the intervenors in the l HLW proceeding are likely to fall within the pertinen' Small Business Act definition, the impact on intervenors or potential intervenors will not be significant. The rule is being amended to allow more widely available electronic access to information before the license application is filed. Participants will be required to make their own documentary material available electronically, but that requirement is stated in a manner that allows flexibility in implementation.

Thus, in accordance with the Regulatory Flexibility Act,5 U.S.C. 605(b), the NRC hereby certifies that this proposed rule will not have a significant economic impact upon a substantial number of small entities.

Backfit Analysis The NRC has determined that the backfit rules in 10 C.F.R. Chapter 1, $9 50.109,72.62, and 76.76, do not apply to this rule, and therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in those rules.

List of Subjects in 10 C.F.R. Part 2 Aoministrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

I For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 C.F.R. Part 2.

jdMP PART 2 RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS ISSUANCE OF ORDERS

1. The Authority citation for Part 2 continues to read as follows:

AUTHORITY: Sees.161,181,68 Stat. 948,953, as amended (42 U.S.C. 2201,2231); sec. 191, as amended, Pub. L.87-615,76 Stat. 409 (42 U.S.C. 2241); sec. 201,88 Stat.1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs,53,62,63,81,103,104,105,68 Stat. 930,932, 933,935,936,937,938, as amended (42 U.S.C. 2073,2092,2093,2111,2133,2134,2135);

sec.114(f), Pub. L. 97 425,96 Stat. 2213, as amended (42 U.S.C.10134(f)); sec.102, Pub. L.

91 190,83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,88 Stat.1248 (42 U.S.C. 5871),

Sections 2.102,2.103,2.104,2.105,2.721 also issued under secs. 102,103,104,105,183, 189,68 Stat 936,937,938,954,955, as amended (42 U.S.C. 2132,2133,2134,2135,2233,

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11 2239). Section 2.105 also issued under Pub. L.97-415,96 Stat. 2073 (42 U.S.C. 2239).

Sections 2.200-2.206 also issued under secs.161b, l, o,182,186,234,68 Stat. 048 951,955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o),2236,2282); sec. 206,88 Stat 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec.102, Pub. L. 91 190,83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a,2.719 also issued under 5 U.S.C. 554.

Sections 2.754,2.760,2.770,2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 1 A of Appendix C also issued under secs. 135,141, Pub. L.97-425,96 Stat. 2232,2241 (42 U.S.C.10155,10161). Section 2.700 also issued under sec.103,68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under 5 U.S.C. 553 and sec. 29 Pub. L. 85 256,71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec.189,68 Stat. 955 (42 U.S.C.

2239); sec.134, Pub. L.97-425,96 Stat. 2230 (42 U.S.C.10154). Subpart L also issued under sec.189,68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91560, 84 Stat.1473 (42 U.S.C. 2135). Appendix 0 also issued under sec.10 Pub. L. 99 240,99 Stat.

1842 (42 U.S.C. 2021b et seq.).

2. SecUon 2.1000 is revised to read as iollows:

$ 2.1001 Scope of subpart The rules in this subpart govem the procedure for applications for a license to reJ /e

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and possess high level radioactive waste at a geologic repository operations area noticed pursuant to $ 2.101(f)(8) or 5 2.105(a)(5) of this part. The procedures i this subpart take precedence over the 10 C.F j R. Part 2, subpart Gples f general a icabili except for the follo#ng pro 9isior}s' $5 2,702, S&D3, 2#04, ?A07, 2 iv2.743,2# 5,2 ,A.717/2.718, I

2.T2,0, 22 $1, 2.722, 2.732, 2033' 2J34, 2 J42( 2J Q, 3#59, 2J61, 2L7 2.754, USB, S7,2s758 2 J66, 2]d 2J96. , 2J59, 2.7,60, 2J61, 2.J63, 2(7/0, 2pi , 2J72, 2J 0, 2JB 1,

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3. Section 2.1001 is amended by removing the definitions of ASCll File and LSS Administrator, adding definitions of electronic docket and integrated electronic information, and revising the definitions of documentary material, potential party, and pre-license application phase to read as follows:

$ 2.1001 Definitions.

..... U Documentary material means any material or other informati upon which a party, potential party, or interested governmental participant intends to rel to cite in support of its position in the proceeding for a license to receive and possess hig - eyjelradioactive waste at a geologic repository operations area pursuant to part 60 of this chap r puf)tny material or other informati n which is relevant to, but does not support, that material i o(mation or that party's positio pThe scope of documentary material shall be guided by the topical guidelines in the 7

appli le NRC Regulatory Guide.

Electronic docket means the NRC i ormation rec i es distri utes.mstgchJ f ,vom */7

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12 and retrieves the Commission's adjudicatory docket materials.

Integrated electronic information means the material that is made available electronically to parties, potential parties, and interested governmental participants to the proceeding for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter, as part of the electronic docket or electronic access to documentary material, beginning in the pre-licerise application phase.

Party for the purpose of this subpart means the DOE, the NRC staff, the host State, any affected unit of local government as defined in section 2 of the Nuclear Waste Policy Act of '

1982, as amended (42 U.S.C.10101), any affected Indian Tribe as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.10101), and a person admitted under 911014 of this subpart to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to part 60 of this chapter; provided that a host State, affected unit of local govemment, or affected Indian Tribe shall file a list of contentions in accordance with the provisions of $ 2.1014(a)(2)

(ii) and (iii) of this subpart.

Potential party means any person who, during the period before the issuance of the first pre heanng conhrence order under S 2.1021(d) of this subpart,is given access to the integrated electronic information and who consents to comply with the regulations set forth in i subpart J of this part, including the authority of the Pre License Application Presiding Officer designated pursuant to 9 2,1010 of this subpart.

Pre license application electronic docket means the NRC's electronic informt.fion system that receives, distributes, stores, and maintains NRC pre-license application docket materials during the pre-license application phase.

Pre-license application phase means the time period before the license application to receive and possess high-level radioactive waste at a geologic repository operations area is docketed under section 2.101(f)(3) of this part. For the purpose of this subpart, this period begins on the date that the President submits the site recommendation to the Congress pursuant to section 114(a)(2)(A) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.10134(a)(2)(A)). .

Searchable full text means the electronic indexed entry of a document that allows the identification of specific words or groups of words within a text file.

Topical Guidelines means the set of topics set forth in Regulatory Guide 3.69, Topical Guidelines for the Licensing Support System, which are intended to guide the scope of

" documentary material *.

t

/

7 17 M necessary to a proper dep., ion in the proceeding; (6) Wh er the matenal should be disclosed unde a protective order containing such protective terms nd conditions (including affidavits of nondis losure) as may be necessary and appr . riate to limit the disclosure to potential partici nts, interested govemmental partic ants and parties in the proceeding, or to their q alified witnesses and counsel. When Saf guards Information protected from disclosure un er section 147 of the Atomic Energy Acj , as amended,is received and possessed by a pote tial party, interested govemmental pafticipant, or party, other than the Commission staff,it s all also be protected according to the requirements of 9 73.21 of this chapter. The Pre Licens Application Presiding Officer may also presenbe such additional procedures as will effectively feguard and prevent disclosure of Safeguards Information to unauthorized persons with minim m impairment of the procedural nghts which would be available if Safeguards information wer not involved, in addition to any other sanction that may be imposed by the Pre License Application Presiding Officer for violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act, as amendedjkmay be subject to a civil penalty imposed pursuant to $ 2.205. For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed an order issued under section 161b of the Atomic Energy Act.

(c) Upon a final determination that the material is relevant, and not privileged, exempt from disclosure, or otherwise exempt from production under 9 2.1005 of this subpart, the potential party, interested governmental participant, or party who asserted the claim of withholding must make the document available in accordance with the provisions of this subpart within two days .

(d) The service of all pleadings and answers, orders, and decisions during the pre-license application phase shall be made according to the procedures specified in 6 2.1013(c) of this subpart and entered into the pre-license application electronic docket.

(e) The Pre License Application Presiding Officer shall possess all the general powers specified in $$ 2.721(c) and 2.718.

(f) The Commission, in designating the Pre-License Application Presiding Officer in accordance with paragraphs (a) (1) and (2) of this section, shall specify the jurisdiction of the Officer.

13. Section 2.1011 is revised to read as follows:

9 2.1011 Management of Electronic Information .

(a) Electronic document production and the electronic docket will be subject to the provisions of this subpart.

(b) The NRC, DOE, parties, and potential parties participating in accordance with the provisions of this subpart shall be responsible for obtaining the computer system necessary to comply with the requirements for electronic document production and service.

(c) (1) The Secretary of the Commission shall establish an Advisory Review Panel composed of the Advisory Committee members identified in paragraph (c)(2) of this section who wish to serve. The Secretary shall have the authority to appoint additional representatives to the Advisory Review Panel consistent with the requirements of the Federal Advisory Committee Act,5 U.S.C. app. I, giving particular consideration to potential parties, parties, and

. _ _ _ _ - - . - _ - _ m

S t

18 interested governmental participants who were not members of the NRC HLW Licensing Support System Advisory Committee. '.

(2) The Advisory Committee membership willinitially include the State of Nevada, a coalition of affected units of local government in Nevada who were on the NRC High Level Waste Licensing Support System Advisory Committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental groups who were on the NRC High Level Waste Licensing Support System Advisory Committee and such other members as the Commission may from time to time designate to perform the responsibilities in paragraph (d) of this s%2 ion.

(d) (1) The Advisory Review Panel shall provide advice to-(i) NRC on the fundamentalissues of the computer system necessary to use the integrated electronic information effectively under paragraph (b) of this section; and (ii) The Secretary of the Commission on the operation and maintenance of the electronic docket under the Commission's Rules of Practice (10 C.F.R. Part 2).

(2) The responsibilities of the Advisory Review Panel shallinclude advice on-(i) Format standards for providing electronic access to documentary material to the parties, interested governmental participants, or potential parties; (ii) The procedures and standards for the electronic transmission of filings, orders, and decisions during both the pre-license application phase and the high level waste licensing proceeding; (iii) Other duties as specified in this subpart or as directed by the Secretary of the Commission.

14. Subsections 2.1012(a), (b)(1), and (d) have been revised to read as follows:

9 2.1012 Compliance.

(a) In addition to the requirements of 5 2.101(f) of this part, the Director of the NRC Office of Nuclear Materials Safety and Safeguards may determine that the tendered application is not acceptable for docketing under this subpart, if the Secretary of the Commission determines that it can not be effectively accessed through the Commission's electronic docket.

(b) (1) A person, including a potential party given access to the integrated electronic information under this subpart, shall not be granted party status under 6 2.1014 of this part, or status as an interested govemmental participant under 9 2.715(c) of this part, if it cannot demonstrate substantial and timely compliance with the requirements of 9 2.1003 of this subpart at the time it requests participation in the high level waste licensing proceeding under either 9 2.1014 or 6 2.715(c) of this part.

(d) Access to the pre-license application electronic docket or electronic docket may be suspended or terminated by the Pre-License Application Presiding Officer or the Presiding Officer for any potential party, interested govemmental participant or party who is in noncompliance with any applicable order of the Pre License Application Presiding Officer or the Presiding Officer or the requirements of this subpart.

g \'4 UNITED STATE S ON NUCLE AR REGULATORY COMMISSION

'3  ?>

n. -l msmootos o c mn o001

.L7'

\

/ September 23, 1997

~

omct of THE st ent t Anv j ,

d (L MEMORANDUM TO: John T. Greeves, LSS Senior Management Team Arnold E. (Moe) Levin, LS3 Senior Management Team WilhanpJ . Olmstead, LSS Senior Management Team Joh C.

( M Hoyl /.

ylg% Secretary FROM:

( RESOLUTIO!1

SUBJECT:

STAFF REQUIREMENTS - SECY-97-154 -

OF LICENSING SUPPORT SYSTEM (LSS) ISSUES AND DRAFT PROPOSED RULE, 'O CFR PART 2, SUBPART J The Commission has approved Option 4 subject to the comments provided below. The LSS Senior Management Team (SMT) should incorporate these comments and submit the proposed rule for publication in the Egderal Register and puMic comment.

(SMT) (SECY Suspense: 10/31/97)

The Commission preliminarily supports the proposal to introduce an informal users group as an alternative to a modified LSS Advisory Review Panel (LSSARP). The informal users group should make use of current LSSARP members with knowledge and experience of the LSS process, if feasible and appropriate. Public comments should be sought on these alternatives, including specific response from potential parties to the HLW repository licensing proceeding on their interest and support for the informal users group alternative. The Commission reserves final judgment on this proposal until after review of the comments on the proposed rule.

The definition of " documentary material" to be included in the system should be modified by adding the following at the end of the first sentence in the definition in Section 2.1001 (page 11):

and all reports and studies, prepared by or on behalf of the potential party, interested governmental participant or party, including all related " circulated drafts," relevant to the issues set forth in the Topical Guidelines in Regulatory Guide 3.69, regardless of whether they will be relied upon and/or cited by a party.

SECY NOTE: THIS SRM, SECY-97-154, AND THE COMMISSION VOTING RECORD CONTAINING THE VGTE SHEETS OF ALL COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE 5 WORKING DAYS FROM THE DATE OF THIS SRM.

h Wl

q -_--__- - _ _________

l 9

The same addition should be made to the paragraphs discussing documentary material on page 4 (third full paragraph) and on page 5 (third full paragraph).

In addition, the following editorial changes chould be incorporated in the Federal Begister notice.

1. On page 2, first full paragraph, line 15, delete the comma after ' process.'

On page 3, paragraph 1, line 2, insert ' pursuant to its 2.

agreement' after the semicolon.

3. On page 4, third full paragraph, line 2, replace 'and' with a comma.

4. On page 5, third full paragraph, line 2, replace 'and' with 'and/or.' In line 3, replace 'and' with a comma.

5. On page 7, in the paragraph on Section 2.1011, line 1, insert 'to' after ' revised.' In the paragraph on Section 2.1012(a), insert 'it' after 'if.'

On page 10, in the heading for Part 2, replace 'UD' 6.

with 'AND.'

7. On page 11, in the paragraph under ' Definitions,' line In line 4, replace 2, replace ' and' with 'and/or.'

'and' with a comma.

8. On page 17, item (6), line 6, insert 'of 1954' after

'Act.' In line 14, insert 'tl.a entity in violation' .

before 'may.'

After receipt and analysis of public comments, the SMT should is submit the proposed final rule for Commission review before it finalized.

(SMT) (SECY Suspense: 5/15/98) cc: Chairman Jackson Commissioner Dicus Commissioner Dia:

Commissioner McGaffigan EDO OGC CIO CFO OCA OIG Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)

PDR DCS

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