ML20235K271
| ML20235K271 | |
| Person / Time | |
|---|---|
| Issue date: | 02/07/1989 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8902270049 | |
| Download: ML20235K271 (144) | |
Text
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O*.
BRIEFING ON FINAL RULE REGARDING THE HIGH LEVEL WASTE MANAGEMENT LICENSING SUPPORT SYSTEM LOCatiOD:
ROCxvILLE, MARYLAND Date:
rEsRUARr 7, 1989 1
l Pages:
120 RAGES 1
NhLR.GROSSANDC0.,INC.
COURT REPORTERS AND TRANSCRIBERS 1323 Rhode Island Avenue, Northwest Washington, D.C.
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DISCLAIMER
..i This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on February 7, 1989 in the commission's office at one White Flint North, Rockville, Maryland.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determination or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of, or addressed to, any statement or argument contained herein, except as the Commission may authorize.
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' UNITED STATES OF AMERICA
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2 NUCLEAR REGULATORY COMMISSION
'3 4
BRIEFING ON FINAL RULE REGARDING-THE HIGH LEVEL 5
WASTE MANAGEMENT-LICENSING SUPPORT SYSTEM 6-7 PUBLIC MEETING 8
9 truclear Regulatory Commission 10 One White Flint North 11 Rockville, Maryland 12
))
13 Tuesday, February 7, 1989 v
14 15 The Commission met in open session, pursuant 16 to notice, at 2:00 p.m.,
the Honorable LANDO W.
- ZECH, 17 JR.,
Chairman of the Commission, presiding.
12 19 COMMISSIONERS PRESENT:
20 LANDO W.
- ZECH, JR.,
Chairman of the Commission 21 THOMAS H.
ROBERTS, Member of the Commission
.22 KENNETH M.
CARR, Member of the Commission 23 KENNETH C.
ROGEP,S, Member of the Commission 24 JAMES R.
CURTISS, Member of the Commission 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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STAFF ~AND PRESENTERS SEATED AT. THE COMMISSION TABLE
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2 SAMUEL J.
CHILK, Secretary 3
WILLIAM C.
PARLER, General Counsel 4
WILLIAM J. OLMSTEAD, NRC Negotiating Representative 5
FRANCIS X.
CAMERON, OGC 6
FOR U.S.
DEPARTMENT OF ENERGY 7
JEROME SALTZMAN, Deputy Associate Director for 8
Siting and Development, Office of Civilian 9
Radioactive Waste Management 10 BARBARA CERNY, Director of Information Resources 11-'
Management Division, Office of Programs 12 Administration and Resources Management, OCRWM 4, '.}
13 FOR INDUSTRY COALITION (EDISON ELECTRIC INSTITUTE, 14 UTILITY NUCLEAR WASTE MANAGEMENT GROUP, U.S.
COUNCIL 15 ON ENERGY AWARENESS) 16 STEVEN P.
KRAFT, Director of Nuclear Waste and 17 Transportation Activities, Edison Electric 18 Institute 19 JAY SILBERG, Shaw, Pittman, Potts and Trowbridge 20 FELIX M.
- KILLAR, JR.,
Project Manager, Nuclear Fuel 21 Cycle, USCEA i
22 FOR THE STATE OF NEVADA i
23 JAMES DAVENPORT 24 MAL MURPHY O
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1 COALITION OF NEVADA LOCAL GOVERNMENTS (NYE, CLARK, i
i N,
2 LINCOLN COUNTIES) 3 DENNIS BECHTEL 1
4 NATIONAL' CONGRESS OF AMERICAN INDIANS 5
DEAN R.
TOUSLEY 6
OTHER ATTENDEES 7-HOWARD S.
BELLMAN, Facilitatory
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14 15 16 17 18 19 20 21 22 23 1
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2 (2:00 p.m.)
3 CHAIRMAN ZECH:
Good afternoon, ladies and'
)
4 gentlemen.
5 Today the Commission is going to be briefed by 6
the NRC staff and a number of other presentations, also, i
7 on our negotiated rulemaking for the High-Level Waste 8
Repository Licensing Proceedings.
We-will hear from 9
other members of the Negotiating Committee, as well.
10 I welcome all of you here today, and commend 11 each.of you for your hard work and careful thought you 12 have given to this rulemaking.
This is an information
'}
13 briefing.
The Commission will not be voting this 14 afternoon.
15 The Waste Policy Act of 1982, as amended, 16 allows three years for the Nuclear Regulatory Commission 17 to review the Department of Energy's license application 18 to construct a high-level waste repository.
In August 19 of 1987, the Commission recognized that if we are to 20 meet this very tight schedule, we must, among other 21 things, streamline our licensing process.
Accordingly, 22 the Commission established a Negotiating Committee to 23 develop a rulemaking to achieve this objective.
24 Using the product of the committee's O
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1 on November-the 3rd,-_1988.
After considering the public q
, m.
2 comments, a proposed final' rule has been prepared which 3
is now before the commission.
This rule is contained in 4
a Commission paper, SECY-89-027, which is available by 5-the entry doors to the meeting room this afternoon.
6 The key component of this rulemaking is an 7
electronic information system known as the Licensing 8
Support System.
This system is intended to permit the 9
entry of and access to potentially relevant licensing 10 information as early as possible, before DOE submits its 11 repository application to the Commission.
12 Among the expected benefits of such a system.
. T 13 are, first, the initial tirne-consuming discovery process
..)
14 will be substantially reduced; second, that the DOE and 15 NRC staffs will be able to quickly identify relevant 16 documents and issues from among millions of pages of 17 licensing materials; and, third, that potential parties 18 to the proceeding will submit earlier and better focused 19 contentions which, in turn, will save substantial time 20 during the proceeding.
21 Another part of the rulemaking would revise i
22 certain of the Commission's rules of practice that are 23 not directly related to the Licensing Support System.
24 These changes involve modifications to our rules for 10 25 discovery, admission of contentions, petitions to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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1 intervene, and 'other procedur'al changes designed to 2
f acilitate. completion of.ths repository license review.
3 within the mandatory three-year period.
4 After each presentation by a member of the-5 Negotiating Committee, I will ask if my fellow 6
Commissioners have any questions before we hear from the 7
next presenter.
8 Commissioner Curtiss has asked -- has a number 9
of question that he would like to pose to the ' group, 10 after all of the presentations have been made.
- And, 11 therefore, I will ask that a person f rom each 12 organization represented here today come to the table l'
13 after the last presentation, to respond to commissioner
> +j 14 Curtiss's questions and, also, to any questions that any 15 other Commissioners may have at that time.
16 Do any of my fellow Commissioners have any 17 opening remarks, before we begin?
I 18 (No response)
{
19 CHAIRMAN ZECH:
If not, Mr. Olmstead, you may 20 proceed.
21 MR.
OLMSTEAD:
Thank you, Mr.
- Chairman, 22 members of the Commission, and ladies and gentlemen.
1 23 At the outset I would like to take a moment of j
24 personal privilege to say thank you to the Commission 25 because, over the past seven years, in the time that we NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBER 5
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.have been working on procedural rules and changes - to 73 h 1/
2 streamline the process to meet the statutory three-year 3'
licensing period that is provided in the Waste Policy 4
Act, I have felt that your support has been with me.
5 It has been in the interest of the country and 6
the nation at-large that we have undertaken this.
And I 7
have appreciated the fact that in spite of all of the 8
controversy and acrimony associated with this program, 9
that we have all shared the common concern of doing 10
.those things that would make it likely that we could 11 solve this serious problem as expeditiously and as 12 reasonably as possible, and I appreciate your support, 13 and I wanted to say thanks.
14 CHAIRMAN ZECH:
Thank you for those remarks.
15 MR. OLMSTEAD:
Today -- if I could have slide we are discussing the final 16 number one -- (slide) 17 rule that deals with revision of procedures dealing with 18 discovery, principally, commonly referred to as the 19 Licensing Support System, and associated rule changes 20 related to time in conducting adjudicatory proceedings.
21 On slide number two -- (slide) -- I show the 22 subjects I would like to cover with you today.
I want 23 to cover the purpose of the rule and the charge that you 24 gave to the Advisory Committee, give you a little 25 background of the negotiations and some of the issues i
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l' that the negotiating team both, within the NRC, covered-l 2-and-the Advisory Committee, in negotiations, - covered,
3 that-discuss some key chara,cteristics of the Licensing 4
Support Systems; discuss some-changes to the procedural 5
rules that are proposed as a part of'this package, and 6
then react to some of the public comments that have been 7
received as a result of'the proposed rulemaking.
8 If we could go to slide number three.
9 (Slide')
I don't think the statutory 10 background requires me to go into great detail about how 11 we got where we are.
Essentially, after the Nuclear 12 Waste Policy Act of 1982 was passed, in January of 1983,
)
13 John Davis, then Director of NMSS, and I met with Mr.
14 Morgan, at DOE, who was then the Acting Director of 15 Civilian Radioactive Waste Management, and there were a 16 number of things that became abundantly clear'to us at 17 that time.
18 One was that we could expect a great deal of l
19 attrition in the government over the course of time that 20 we were talking about. That prophecy certainly has 21 proved to be true.
We have had three directors of that 22 office in DOE, we have had three directors of MMSS here.
23 We have had a change of three Commissioners on the 24 Nuclear Regulatory Commission.
We have had two division
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1 counted up all of the different branch chiefs we've had, 2
both in DOE and at NRC..
L 3
And one'of the concerns that we had at that 4
time was that what happens to the documentation of the 5
decision process and the issues that have been cleared?'
l 6
Are we going to constantly go back and reinvent the 7
wheel?
8 And, so, one of the things that was abundantly 9
clesr was, we needed to have a method of managing issues 10.
so that people could tell what the issues were, what 11 decisions had been made, how they were documented, and 12 whether they were, indeed, closed, or not.
'D 13 The other thing that was clear was that the
-)
14 adjudicatory processes at the NRC in the reactor 15 licensing cases had been running three to five years in 16 length, and they were not consistent with the three-year 17 licensing process that was outlined in the Nuclear Waste 18 Policy Act, even if you took account of the additional 19 fourth year that was allowed if the Commission went back 20 to the Congress.
So, we needed a mechanism to 21 streamline the process.
22 At about that same time, we had a meeting at 23 which Commissioner Zech said something -- Commissioner 24 then, Chairman now -- that struck me.
He said, "I don't O
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can do it".
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- And, so, the guiding principle to me 3
throughout all of this time has been to devise a system 4
that would work, or at least had a chance of working.
5 I am well aware that. there are plenty-of 6
things that you can say won't work. And it does take the 7
dedication on the part of the leadership of this agency, 8
and the leadership of DOE to make this system work.
9
- Well, a DOE /NRC Memorandum of Understanding l
10 was executed by Ben Rusche and John Davis, which set 11 forth the mechanism for having this negotiated
]
12 rulemaking. The Commission approved that, and the-things
- )
13 that we set out to do in that rulemaking were to look at l
v 14 Part 60, Part 2,
and QA/QC requirements and see if we 15 could come up with a licensing support system that would 16 serve as the central point for data depository, to meet 17 the needs of those three aspects of our rules, and that i
18 was what we undertook.
19 And if you turn to slide four -- (slide) -- we 20 will see that the purpose of the rule was and this 21 was set out in the Commission's notice that constituted 22 the Advisory Committee and established this process--
23 to facilitate discovery by comprehensive and easy access 24 to relevant licensing information.
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1 licensing-proceeding before the submission of the lr l
2 application.
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Three, to facilitate review by all parties, to 4
the extent practicable,_with full text capability -- and 5
I will' speak about the full text a little bit later--
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6 and to reduce the time associated'with the submission of 7
motions and other documents.
This latter point was 8
very important because motion practice in NRC 1
I 9
-proceedings ~today, if you don't do something to expedite 10 it, allows five days for mail every time a motion is i
l 11 filed; five days for mail every time somebody responds, l
12 and five days for mail every time the Board serves its 13 decision.
14 So, every time one piece of paper is filed in 15 a proceeding, you lose 15 days.
One of the things we 16 wanted to do was knock that time out, and this rule does 17 that.
18 If I can go to slide number five.
19 (Slide)
Following the recommendations of the 20 Administrative Conference of the United States in 1982, 21 regarding the use of negotiated rulemaking by agencies, 22 we established an advisory committee, a federal advisory 23 committee, headed with a contract to the Conservation 24 Foundation and with Howard Bellman as the G
25 Convener / Negotiator.
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The committee originally-had far more members Q1/
2 than I have listed there, but-in the middle of our 3
negotiations the 1987 amendments to the Nuclear Waste 4
Policy-Act were passed, and eliminated three' of the 5
states that were then going to be used f or site 6
characterization.
7 Incidentally, this caused a problem in the 8
negotiations just beyond reconstituting the advisory 9
committee because Part 60, as you know, is based on the 10 supposition that you would have site characterization 11 data from three sites. So, there was some confusion on 12 everybody's part.as to how to go forward in terms of
(
~
13 developing the comparative data necessary to evaluate 14 the adequacy of the site in Nevada.
15 That is now on a separate track.
And Bob 16 Browning's people are working on those technical 17 problems.
18 At any rate, we reconstituted in February, 19 with NRC
- staff, DOE,
- Nevada, the Nevada local 20 governments, the National Congress on American Indians, 21 the Environmental Coalition, which represented Sierra 22 Club and the Environmental Defense Fund, MRDC and some 23 other environmental groups; the Industry Coalition, 24 which represented the major utilities and contributors O
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negotiations-in July of 1988, which led to the proposed 2
rule that we have before us.
3 And on slide six ---(slide) -- I.have outlined-
'4 some of the key issues'that we spent a lot of time on in 5
.the negotiations.
One of the things that you hear--
6 and it is an over-simplification, but it'is certainly 7
easy-to talk about and horrify people is, 10 ' million 8
documents.
Nobody can read 10 million documents.
That 9
is certainly true, nobody can.
Nobody can manage 10 10 million documents if it is not done in a systematic way, 11 either.
12 And the fact that our discovery rules apply a 13 legal standard which says that you have to produce all 14 documents that have relevant information in them,- and 15 relevant information is that information which can lead 16
.to the discovery of relevant information.
And what is 17 relevant information?
It is that information that tends 18 to make material information namely, that that you 19 need to decide the issue -- more or less likely.
20 So, that broad definition that courts use 21 tends, in a nuclear waste policy program, to give you a 1
22 large volume of documents because there are literally 23 thousands of people out there working on the waste 24-isolation issue, each of them has thousands of documents O
25 in their files, and those are all subject to discovery.
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14 1 --
If'you'give.a party to the proceeding time to read all
,(Q.
t9 2
'of those documents, you will be here_ another hundred 43 years, while everybody tries to dissimilate that..
4 What the Licensing Support System is designed 5
to do is to provide a mechanism for compartmentalizing 6.
and narrowing those down for each party, so.that they 7
are dealing with that thousand or so documents that are 8
most critical to the presentation of their case.
9' And, secondly, to avoid the charge that "I am 10 surprised by this new piece of information I never saw 11 before".
- Because, if you have full text retrieval 12 capability of that information and you can find it, then 13 you can't say this new document just came to light, that 14 I never had an opportunity to review or see before.
15 The system has been very carefully designed to.
16 allow that kind of compartmentalization, so that each 17 party can take that total database and break it down 18 into those documents that-it thinks is key to its case, 19 and yet, at the same time, avoid surprise to any other 20 party, that that party is going to rely on information 21 that they didn't know about.
22 The other thing, time can it be done in 23 three years?
We think it can be done in three years.
24 We are not so naive as to believe that it will be done G..
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the proceeding by the administrative law judge, or by
,c, 2
the chair o'f the board or panel that the Commission 3
might choose to hear the case.
4 Access became another important problem 5
because even if you put a lot of documents in a system 6
and you say to people "We have given you the strongest 7
search software program that we can to access this 8
information", one of the key issues becomes "How long do 9
I have to prepare?"
10 And the time is not critical in this 11 proceeding until the staff's review work is done. Giving 12 people access to this information 18 to 24 months in 13 advance of the time they are actually going to need it, 14 doesn't penalize anybody.
It doesn't cost any time.
15 Once the SER comes out, however, time becomes 16 extremely critical, and you don't want a lot of charges 17 in the proceeding that "I
need more time to review the 18 documentation".
19 So, one of the things in the negotiations that I
20 was very key was getting access early to as much 21 documentation as possible, to take away the element of 22 surprise, to the extent practicable.
23 Cost.
Is the cost excessive, when compared to 24 expected time savings?
I have heard a lot of people
,b 25 say this is an awfully expensive system.
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Well, one
~ hing I think you should keep in t
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mind when you look at the cost analysis is that three-l L
3 quarters of the cost predicted by the Department of 4
Energy is labor, manpower.
That cost is associated with 5
document handling and production, no matter which 6
alternative you look at.
So the hardware / software costs 7
are really not driving the total costs of document 8
handling and management in this proceeding.
9 Anybody who undertakes to manage 10 million 10 documents, no matter what system they have, is going to 11 be faced with incurring a lot of person-manyear costs in 12 just managing the documents, bringing them from here to 13 there; microfiching them, photographing them, scanning 14 them, whatever you do with them technologically, you've 15 still got to have these people that you use to manage 16 the documents.
17 So, one of the things to' keep in mind when you 19 look at a cost analysis is what portion of it is really 19 hardware / software, and what' portion of it is manpower.
20
- Well, we resolved those issues to the 21 satisfaction of the people who were at the negotiating 22 table, and brought a proposed rule to the Commission, 23 which you promulgated in accordance with the original 24 agreement, with the Advisory Committee on November the
,e 25 3rd, 1988.
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If I could go to slide seven.
j i
2 (Slide)
That proposal had the following 3
attributes of the Licensing Support System:
The 4
Licensing Support System contains the relevant documents 5
of all parties -- and I am going to have something to 6
'say about the topical guidelines because they go beyond 7
relevance, in some particulars, in a little bit later.
8 All parties would have full text access, which 9
means that they have a LEXIS/ NEXUS type search 10 capability, where they can use key words to organize the 11 database in the way that they wish.
12 The sys'rm would be available before the D
13 license application was filed.
It has the capability of t.)
14 allowing electronic filing of motions, which means you 15 eliminate that 15 days for mail and service time that 16 was in existing Part 2.
17 And it provides for quality assurance / quality 18 control of data management, and that is a very important 19 aspect of this.
This is a piece of the pie that hasn't 20 been emphasized too much in our negotiations because it 21 was on the technical side of the house, and we were 22 dealing with the procedural side of the house, but you 23 do have to have a QA/QC documentation trail, and the LSS 24 provides the capability to do that.
n 25 If I could have slide eight.
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1 (Slide)
You will notice that this matches the (s
(j 2
' objectives that were in the Notice of the Commission's-3 original rulemaking that I showed.you, a little bit 4
further.
We think the Licensing Support System will 5
facilitate discovery.
It will provide an adequate 6
information base for the licensing proceeding, prior to 7
the application.
It will tacilitate review by all 8
parties, with full text capability.
It will reduce the 9
time associated with motions practice.
And it allows 10
- you, as managers of the program, to early identify 11 issues that are causing problems and establish a means 12 for managing them to resolution.
(]
13 If I could go to slide nine.
.14 (Slide)
There are some other changes to Part
~
15 2 that are important to point out.
We had a great deal 16 of discussion in the negotiations about these.
One is 17 there is change to interrogatory practice.
18 Interrogatories by document discovery would all but be 19 abolished here, on the grounds that the system provides 20 that document production.
21 Interrogatories for purposes of admissions 22 would still be allowed. Deposition discovery would still 23 be allowed, but we think we have taken a two-year 24 process and condensed it into a process that can be G
25 accomplished in approximately 90 days.
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It also puts, a very high threshold for p
2 contentions, higher than any threshold that has ever I
3 been proposed by the Commission before, at the point at 4
which the SER is issued.
We could not get agreement in 5
the committee to put it at an earlier point, although 6
the industry representative pushed for putting it in an 7
earlier point.
And-several of the participants did not l
l 8
want it at. all, but it is placed in the rule at the 9
point in time at which time becomes critical, namely, at 10 the time the SER comes out, you want to be able to 11 conduct this proceeding in 18 months and get it done.
12 You don't want lots of new issues coming into 13 the proceeding at that point in time, that are not 14 manageable, and they would extend the process.
That 15 high threshold is in this rule.
16 It does provide for a change in the immediate 17 effectiveness review, which you pay want to look at 18 carefully because it impacts your decision, and it does 19 provide for a different type of appeal procedure.
20 And I would make one final note, and that is 21 that all of these changes are related to time.
We 22 didn't make other changes to Part 2.
In fact, the 23 Commission noted in its original rulemaking, that it 24 would continue to consider other change
- to Part 2,
to 25 make improvements in the process, and it ought to do i
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that.
Nothing in this rulemaking prejudices your right
.R I L,)
2
.to'do that.
You can even change these rules, at some 3
future time, if it becomes necessary to do it.
All of 4
those options have been preserved.
5 What are some major issues?
6 (Slide)-
I have listed two here.
One is are 7
time reductions in the final rule worth the LSS costs?
8 If you do it just in terms of delay, I think 9
almost everybody says if you, in fact, yet this.
10 proceeding done in three years, the cost is worth it-.
11 If you look at it by taking the labor costs out and just
.12 look at the hardware cost comparison, I think you will
'7) 13 find. that the cost is even smaller than it first 14 appears.
15 The topical guidelines is an issue that people 16 have raised because they are afraid that the topical 17 guidelines will dictate the issues that are relevant to 18 NRC licensing.
19 And I wanted to point out that we had some 20 concern about puttihig the topical guidelines in, as NRC 21 staff.
We really didn't think it was necessary, but 22 there are people using the LSS before it gets to the 23 NRC, for purposes of commenting on DOE's environmental 24 impact s'tatement, for purposes of reacting to data that
)
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21 1-of purposes unrelated to our licensing process, and the-d-
.j'
-2
' topical guidelinen were an effort to define the universe 3
of documents, so that the data automation people at DOE 4
could do what they call " size the system".
How much 5
hardware did they need to buy?
How big did the search 6
engine have to be?
7 And because there were these other things that 8
needed to be in the LSS, the feeling at the negotiations 9
were that those things ought to be delineated in 10 something like the topical guidelines.
11 We have made it clear from the outset that we 12 would not use those to define admissibility in the NRC
)
13 proceeding, and I think that is clear in the proposed 14 rule.
15 Well, the last thing that I wish to cover for 16 just a minute I think I have covered most of the 17 concerns that have been raised, but there were some 18 comments that we got from people that did not 19 participate in the rulemaking.
20 (Slide)
And one set of comments that I would 21 commend to you, that I think were very thoughtful, were l.
22 those filed by Joe Gallo, who *'ormerly had the chief l
23 hearing position in the NRC.
AtJ1 I do agree with his 24 points, where he points out that this does go to the 7-25 major time inhibitors in NRC licensing, but that there NEAL R. GROSS i
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22 1
are other changes in Part 2 that you might want to
,,,)-
2 consider, which would further improve the process.
3 I won't.go through and repeat. the other 4
advisory committee responses, since they are here today.
5 And I think I will be. able to respond, in terms of 6
- analysis, at the end of today's briefing to the 7
commissioners.
8 CHAIRMAN ZECH:
Thank you very much.
9 Questions my fellow Commissioners?
10 Commissioner Roberts?
11 COMMISSIONER ROBERTS:
No.
12 CHAIRMAN ZECH:. Commissioner Carr?
(
13 COMMISSIONER CARR:
No.
14 CHAIRMAN ZECH:
Commissioner Rogers?
15 COMMISSIONER ROGERS:
No, I don't.
16 CHAIRMAN ZECH:
Commissioner Curtiss, would 17 you like --
18 COMMISSIONER CURTISS:
I have just two or 19 three quick questions.
20 Bill, you mentioned that the threshold for 21 contentions that you've established for the admission of 22 contentions after the filing of the SER, goes beyond 23 what we have today in the current practice.
24 The question I have, given the nature of the O-25 system and the benefits that it provides to the party--
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23 c
1 S200 million worth of' document retrieval and 2
distribution at a point considerably in advance of when 3-the proceeding will actually get geared up -- is there a 4
basis for us to consider, at the outset of the hearing 5
as opposed: to the point in time when.the SER is filed, 6
demanding more in terms of the statement in support of 7
the contention, and then demanding that an affirmative 8
case be made in the hearing itself,'given the benefit 9
that the parties have from all of the information that 10 is available?
11 Traditionally, as you know, we would permit--
12 have permitted interveners to make the case on cross-f 13 examination.
Part of the argument.for that is that the 14 information is not readily accessible and not as easily 15 as it would be here, first.
16 And, secondly, I must say, in my own view, I 17 guess the threshold for contentions that applies today 18 at the outset -- and I guess you can argue whether it is 19 stringent enough or not -- but the question is, do you 20 achieve sufficient benefit from this system to be able 21 to say that that threshold ought to be elevated?
22 MR. OLMSTEAD:
In my opinion, you can elevate 23 the threshold, and I certainly don't object to that l
24 argument.
O' 25 We did change the contention rule, even at NEAL R. GROSS COURY REPORTERS AND TRANSCRIBERS 1323 rho 0E 15 LAND AVENUE, N.W.
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E 1
that stage, with regard to requiring a party to 2
designate the rule or rules that they felt was not met.
3 The problem that I had is that if you move 4
'that threshold we now have at the SER stage, up to the 5
- front, we would not have had consensus among the 6
environmental groups and some of the other participants 7
-at the negotiating table, and they would have clearly 8
challenged this rule when it was promulgated.
9 Since the time-sensitive point at which those 10 contentions have to that threshold has to be there 11 was at the point of the SER, that is where it affects 12 the length of the proceeding.
I thought we were better 13 of f ' taking what we could get than to not address the 14 issue, but I would certainly agree with you that you can 15 raise the threshold and you can put it earlier.
And you 16 can justify that on the grounds that there is a high 17 quality of information available, but I think you do 18 that in full recognition of the risks that you take in 19 subsequent litigation on that rule.
20 COMMISSIONER CURTISS:
Okay.
21 MR. CLMSTEAD:
The advantage of this rule is 22 that you have people saying that they support you in the 23 rule and they are not going to litigate it.
24 COMMISSIONER CURTISS:
One other quick O
25 question, just on the mechanics of how the pre-licensing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1 25 1
phase works.
If a party wants to seek access to the LSS
/G-
\\y
.2 system just'a hypothetical party comes in the door t.
3 and petitions the pre-licensing board for access.to the-4 system
- and, in that
- petition, in addition to I
l 5
~ establishing the standing.that that party has to -- the 6
interest that that party has in the proceeding, the l
7 party also references one or more topical guidelines as 8
the basis for the issue and interest, at that point when 9
the pre-licensing board makes the determination on the 10 petition to participate in the LSS, is a judgment 11 rendered as to whether the topic that is referenced is 12.
relevant to the decicions that will arise in the high-ij 13 level waste proceeding?
.,_.?
14 MR. OLMSTEAD:
It was not our intent to do it 15 at that point.
You certainly could do it at that point.
16 And it might become necessary to do it at that point, if 17 you had a high number of petitions, and you had to 18 consider consolidation under the rules.
19 It would not be my recommendation that you let and the rules provide for 20 a hundred parties in 21 consolidating parties and interests -- but I think you 22 make that judgment based on when is it time-sensitive.
23 COMMISSIONER CURTISS:
Well, I guess what I am how you envision the rule 24 wondering is how the rule f@
25 working as it is drafted now.
Would the pre-licensing l
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26 l
l 1-board make a judgment on relevancy at-the time that' a i
%/-
2
. party comes in to participate in the LSS, or would that 3
determination be made by the licensing board on the 4
hearing itself?
5 MR. OLMSTEAD:
They would have to make that--
l 6
once the application was docketed, the decision on 1
7 whether one had a valid contention would have to be 8
made.
And there 'is no presumption that their 9
participation in the pre-licensing phase no 10 presumption attaches that would allow them-into the 11 proceeding.
They still have to be admitted to the 12 proceeding on the basis of Part 60 standing.
13 C: NISSIONER CURTISS:
But you do take into 14 account when you make that decision, the fact that a 15 party was participating -- allowed to participate in the 16 LSS.
Under 10147 --
17 MR. OLMSTEAD:
No.
one of the factors
'i 18 COMMISSIONER CURTISS:
19 that you look at is whether the party can participate.
20 MR. OLMSTEAD:
Well, yes.
That is one of the factirs that one might look at, I would agree with that, 21 t
22 but I do not think that that carries a presumption.
23 Standing is one thing, contentions is the second thing, 24 and they have got to have the valid contention to get
.g.
- q. e 25 in.
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l' If they had standing to be admitted to the f)y 2
pre-licensing phase, they should still have standing 3
when they come. in.to file-their petition for 4'
intervention, but they must at that point'also have.a 5'
valid interest, as demonstrated by their contention.
6 And the contention -- the valid contention.is the thing 7
that excludes parties far more. frequently than the 8
standing issue.
9 COMMISSIONER CURTISS:
Just one final quick 10 question.
Can you explain, under the rule, how the sua 11 sponte authority works, and a little bit of detail on 12
- the immediate effectiveness?
I am not quite sure I
%.Dll G
13 understood what the change was from the status quo on b
14 that.
Does the hearing board have sua sponte authority?
15 MR. OLMSTEAD:
I don't believe we changed the 16 sua sponte rule.
I think that that is the same as 17 existing practice.
18 MR. CAMERON:
Tnat's right.
That may change 19 the immediate effectiveness.
20 COMMISSIONER CURTISS:
Right.
All right.
l 21 MR.
OLMSTEAD:
In the immedIate 22 effectiveness, we went back to the provision that the
\\
23 Commission had in the rules before the latest change.
24 COMMISSIONER CURTISS:
- Okay, that's all I j
1 25 have.
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28 1
CHAIRMAN ZECH:
Thank you very much.
Thank ry 2
you very much for_an excellent presentation.
i
.f 3
We will call on the Department of Energy, Mr.
4~
Saltzman and Ms. Cerny, is that correct?
5 Welcome, and you may proceed.
6 MR. SALTZMAN:
Good afternoon, Chairman Zech 7
and members-of the commission.
8 I would like to thank you for inviting DOE to 9
make this presentation to you today.
I am Jerry 10
- Saltzman, the Deputy Associate Director for Facility 11 Siting and Development, of the Office. of Civilian 12 Radioactive Waste Management.
(@
13 Joining me today is Barbara Cerny, who is the w.'
14 Director of Information Management Resources 15 Management Division of the Office of Program 16 Administration and Resources Management for OCRWM.
17 Also with me today is Stan Eckles, from the 18 DOE's Office of General Counsel.
19 The three of us constituted the negotiating 20 team for the Department of Energy.
21 The purpose of my presentation today is to 22 describe the development of the LSS and DOE's role in 23 the negotiations, leading to the Notice of Proposed i
24 Rulemaking published in the Federal Register on November 25 3rd, 1988, to amend 10.CFR Part 2.
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~29 1
As you know, negotiated rulemaking resulted in f
Kf' 2
proposed revisions to the Commission's Rules of Practice 3
in 10 CFR Part 2 for the adjudicatory proceeding on 4
repository license applications.
5 DOE fully supports the. consensus that was 6
reached among most of the parties to the negotiation, as 7
represented in the proposed rulemaking.
While DOE, as 8
well as other parties to the consensus, would have 9
preferred different courses in some respects than those 10 finally taken in the proposed rulemaking, it believes 11 that the consensus reached by most parties is a 12 reasonable accommodation of all views.
[')
13 D'O E places considerable weight en the 14 statement of the Commission that it is optimistic that
)
15 the effective implementation of the LSS rule will allow 16 the Commission to meet the schedule set forth in Section 17 114(d) of the Nuclear Waste Policy Act.
18 For a number of years, DOE has been proceeding 19 with the development of a computerized system to i
20
- collect, store and retrieve information needed to 21 support the licensing of a repository.
It was l
22 recognized that DOE would need rapid access to all 23 information affecting basic program decisions on health 24 and safety and protection of the environment, including O
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.[
1 were based.
A.
2 To avoid critical path delays in the hearing 3
process, DOE also recognized that NRC must be given 4
access to the DOE system, not just for information 5
retrieval, but for input as well.
6 DOE was considering options that included 7
access by it alone, by DCC'and federal / state regulatory 8
- agencies, access by all parties to the licensing 9
hearings, access by the public at-large, and suboptions 10 for selected access among different parties.
11 We were considering full text storage of a 12 large number of documents, combined with rapid search, h'j 13 access from diverse geographic locations, and hard-copy 14 production on terminal locations.
15 DOE and NRC had been participating on an 16 interagency coordinating committee that met several 17 times to provide a preliminary evaluation of the major 18 issues related to the development and implementation of 19 the LSS.
States and Indian tribes participated in these 20 sessions, which were open to the public.
21 In December 1986, NRC proposed the formation 22 of a negotiating committee to develop the proposed rule 23
- and, in August 1987, the Commission announced the 24 formation of the High-Level Waste Licensing Support O,.
25 System Advisory Committee, which we call the LSS NEAL R. GROSS COURT REPORTERS AND TRANbtRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1 Advisory Committee.
j
'].'
2 The Commission identified 14 parties that i
j
./
3 could participate,. including first and second repository 4
states and Indian tribes,- local governments, 5
environmental groups, utility representatives', DOE and 6
the NRC.
7 In commenting on the NRC proposal, DOE 8
supported the purpose of the negotiation, and was in 9
general agreement with the preliminary identification of 10 interests and issues.
It called attention to the fact 11 that it was already well underway in its procurement j
i 12 action for the. LSS design and implementation, and that 13 it would continue the process in parallel with the 14 proposed negotiation.
f 15 It said that it was committed to coordinating 16
.the LSS design with the negotiating proceedings, and to 17 make any changes that may be required to bring the LSS 18 into compliance with the final rulemaking.
19 In February 1987, DOE and NRC established an 20 agreement in principle on the development of the LSS.
21 This was alluded to by Mr. Olmstead.
The agencies 22 committed to the prompt development of the LSS, with the 23 objective being to allow NRC to reach a decision on the 24 construction authorization within the time period 25 specified by Section 114(d) of tF-NWPA.
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\\
1 The agreement-supported.the NRC. negotiated
,s 2
rulemaking, an'd the DOE responsibility for designing and 3
funding the LSS.
l 4
All parties in the licensing proceedings would 5
participate fully in the use of the LSS, in the 6
licensing process.
7 In its opening statement in September 1987, at 8
the first meeting of the LSS. Advisory Committee, DOE 9
expressed its optimism ~ that a consensus could be 10 achieved on many, if not all, of the main issues, but 11 cautioned the.comnit tee to be realistic about the 12 capabilities of the LSS.
()
13 In response (t o questions from the State.of f;J 14 Nevada, DOE said that from its perspective, all issues 15 were negotiable, and that it was not locked into any 16 position on any issue, including the question of who 17 would administer the system.
DOE stated that nothing in 18 the LSS procurement precluded the DOE system from 19 meeting the requirements or guidelines that might be 20 imposed through the rulemaking, and it restated its 21 commitment to abide by the results of the rulemaking in 22 designing the LSS.
23 The LSS Advisory Committee established l
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33 1
consensus, and stated that a consensus would.be reached 2
only if there'was no dissent by any member.
3 It was agreed early in negotiations that 4
docume'nts to be entered into the LSS would be those that J
5 would have been discoverable through the traditional 6
discovery processes, including documents that may be I
7 relevant and documents likely to lead to the discovery 8
of other relevant documents.
By making all information 9
related to the repository available to participants 10 through the LSS, it was anticipated that the time needed i
11 to complete the initial time-consuming discovery process
)
12 would be substantially reduced.
13 The universe of discoverable documents would 14 be guided by topical guidelines that would-be published 15 in a supplementary information portion of the Federal 16 Register pertaining to the rule, and in an NRC 17 regulatory guide.
18 It was always understood, although not 19 explicitly stated in the topical guidelines, that any 20 materials to be entered into the LSS within the scope of I
21 the topical guidelines, would have to bear a nexus to 22 the repository that was subject to the licensing 23 proceeding.
It would be useful to future users of the 24 topical guidelines, including the pre-license 25 application board and the hearing licensing board, if NEAL R. GROSS COURT REPORTERS A>80 TRANSCRIBER $
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34 ll l
1 this nexus was made clear in a supplementary information
[pij
'2 for the effective rule, and in regulatory guide.
3 The question of who would administer the LSS 4
was answered relatively early.
While DOE expressed its 5
view that it should and could administer the LSS, it was 6
clear that many of the other parties to the negotiation 7
-- for
- example, the
- states, the
- tribes, the 8
environmental coalition, the NRC -- did not believe that 9
the applicant, DOE, should administer a system made up 10 of documents from all of the parties, nor should DOE be 11 relied on to assure that all of its material had been 12 submitted.
[Q Y
13 DOE agreed to the proposal that NRC be the 14 administrator.
However, it was stipulated that the LSS 15 administrator should not be in the line management 16 function pertaining to the licensing and regulation of 17 the repository.
18 In March of
- 1988, the Edison Electric 19 Institute and the Utility Nuclear Waste Management Group 20 provided a letter to all parties of the LSS Advisory
'21 Committee that suggested a number of changes to the 22 Commission's procedures for the repository licensing 23 process that would enable the Commission to meet the 24 statutory time table for repository licensing.
O 25 During the March negotiation, NRC commented HEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RH006 ISLAND AVENUE, N.W.
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'35 1
that some of these suggested changes had major policy 2
implications, and therefore, were outside the range of 1
3 the negotiations.
This position was strongly supported l
4 by Nevada and the environmental coalition 5
representatives.
6 DOE stated that more'important than changes to 7
the Commission's procedures would be a rigorous 8
application of NRC's present procedures for licensing.
9.
The LSS Advisory Committee held several 10 discussions throughout the Spring and Summer of 1988, 11 concerning these and other proposed changes to the 12 Commission's licensing procedures.
)
13 In Sam Russo's presentation to the Commission, 14 in December, and in DOE's comments in support. of the 15 proposed LSS rule, we pointed out that parties had made 16 a number of suggested changes to 10 CFR Part 2,
that 17 could assist in streamlining the licensing process, but 18 that were deferred from the negotiations.
19 DOE continues to support the discussion 20 outside of this negotiated rulemaking, of those issues 21 raised during the negotiations that were deemed to be 22 out of the scope of the negotiations.
23 At this time, I would like to turn to Barbara 24
- Cerny, to make her presentation to the Commission on 5.
25 matters of cost, schedule and feasibility of the LSS.
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CHAIRMAN ZECH:
Thank you very much.
y
,y i
2 You may proceed.
i 3
MS. CERNY:
Thank you.
4 I will mainly focus on the schedule, the 5
implementation schedule of the LSS as we see it now.
6 If I could really start with the second slide, 7
because the first was on cost, and I think Mr. 01.mstead 8
covered that quite thoroughly.
I have little to add at 9
this point.
If we could go on to the next.
10 (Slide)
The next -- (slide)
Thank you.
11 We have passed a major milestone.
The LSS was 12 on President Reagan's List of Presidential Priority e
)
13 Systems, and these were 17 systems so named because of 14 their size, their technical complexity and their 15 national importance, but they were also systems that the 16 Administration felt needed very close scrutiny in order 17 to get them properly launched.
18 In President Reagan's Farewell Address on 19 management issues, he named four systems that had been 20 graduated from the list, and the Licensing Support 21 System was one of them.
22 In talking to OMB about this, the Office of 23 Information and Regulatory Affairs, with whom I have 24 been working for a year and a half, they said this 25 represents a vote of confidence on their part, that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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s 37 1
system is technically feasible, it.is cost-justifiable, f'd-2 and that the management is in place to implement.
3 The next. slide, please.
4 (Slide)
The schedule for the LSS -- I will go 5
very quickly through this.
We awarded a contract in 6
October 1987, for design and implementation, to Science 7
Applications International.
Its initial value was about 8
$5.5 million.
9 1988 was what I describe as the information 10 engineering phase of the LSS, when we did our needs and 11 requirements analysis, sized the system, did our 12 conceptual design, our cost-benefit, specified a
~( T 13 prototype that we are putting in place, and it was this w/
14 work that led to us graduating from the Presidential 15 Priority List.
16 In 1989 -- if I could have the next -- (slide)
-- we are beginning the design and initial procurement l
l 18 phase of this work.
We are looking at a prototype l
19 implementation of 200,000 pages of relevant information,
{
20 to give us a test set and to answer some questions we 21 need for technical reasons, and we are specifying the 22 first module of the procurement, which is the capture l
23 systems that will begin to capture all of the I
i j...
24 information from DOE, and then NRC, and the other pgc 25 parties.
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38 1
We expect to install the first capture station i
N. s 2
and begin with our own backlog, to get~some experience, 3'
but then, very importantly, begin our work with NRC and 4
other ' parties, so that we can standardize our capture 5
procedures and coordinate the LSS capabilities within 6
the existing environments of the parties.
7 Next, please, i
8 (Slide) 1990 continues procurement.and 9
administration.
We will procure a database management 10 and the remaining capture systems, do our specifications i
11 for the big engine, the search and image system that 12 will be located in at the University of Nevada, Las j
.s!)
13 Vegas -- those two parts that will be there -- and then-14 go through a component review and acceptance by DOE and 15 NRC, and the other parties.
16 Next, please.
17 (Slide) continuing in 1991 with the 18 procurement, installation and integration, we see the l'
19 large system ' installed in Nevada, all of the software 20 complete, the telecommunications installed and terminals l
21 installed remotely, where they are necessary.
22 Upon acceptance then, in 1992, we will see the 23 final system integration, loading of the 4 million pages i'n 24 of text, and then LSS will be available to outside
]
e.
25 users.
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1 COMMISSIONER CURTISS:
Is that cumulative, the
]>
2
.4 million?
3 MS.
CERNY: Cumulative that is what~ is-4 specified in the SAIC contract that will'Jomprise the 5
test for acceptance of'the LSS.
That is not the number j
6 we expect to have by then.
7 COMMISSIONER CURTISS:
Okay.
8 MS. CERNY:
Next, please.
9 (Slide)
By 1993, we expe't to have the c
10 majority of-backlog data loaded by all of the parties or 11 potential parties who have applied for standing and, by 12
- 1994, certification by NRC, that the LSS -is l
13 "substantially loaded", in.the words of the -- wording 14' of the rule.
15 CHAIRMAN ZECH:
Thank you very much.
16 Questions, Commissioner Roberts?
17 COMMISSIONER ROBERTS:
No.
18 CHAIRMAN ZECH:
Commissioner Carr?
l l
19 COMMISSIONER CARR:
No.
20 CIIAIRMAN ZECH:
Commissioner Rogers?
21 COMMISSIONER ROGERS:
Well, just -- how is=
22 this supposed to work with respect to documents that are 23 not -- that can't be fed in, that have some parts -- the
.24 graphics and things of that sort, materials?
How--
25 when will the software be available for installation or NEAL R. GROSS CGURT REPORTERS AND TRANSCRIBER $
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1 40 I
1 introduction of those documents into the system and l 'if 2
qualifications of that part of the system'run?
What is l
3 the timing for that?
4 MS. CERNY:
By 1992, the software for handling 5
such documents will be available because that is when we 6
intend to have it -- antibipate having it up.
7 As for the documents themselves and how they
(
8 will be handled, it will be either of two ways: that 9
information which we can scan in-and put the image of 10 the information, such as data capture sheets, will be 11 out on optical disks and images but, when you go to 1
12
- search, you will just see a header saying "Such I
i 13 information is available" and you can get the image.
14 In the case of information such as magnetic 15 tapes, very large graphs, core samples, there will be 16 headers in the system naming the location of these i
17 materials, people to contact for
- them, and the 18 procedures as to how to go about getting them.
19 COMMISSIONER ROGERS:
Well, what, precisely is 20 the software development that is going to be completed 21 in 1991?
What parts of the software are those?
22 MS. CERNY:
You will be able -- in 1992, when 23 the system is available. you will be able to sit down at 24 your terminal and call the LSS, and do full text search 25 over remote telecommunications lines, call up images for NEAL R. GROSS l
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41 1
browsing at your terminal, if you have such, request g) 1;;
2
. overnight production of documents to be mailed out to 3
you. Essentially, it will be the completed system at 4
that point.
5 COMMISSIONER ROGERS:
%311, when is the 6
prototype first' looked at?
7 MS. CERNY:
The prototype, by summer we will 8
have the prototype system up and available.
And we will 9
be asking. people within the NRC and other parties this 10 summer --
11' COMMISSIONER ROGERS:
This summer?
12 MS. CERNY:
Yes, the 200,000 at least we l'
13 will have 100,000 pages up by then.
14 COMMISSIONER ROGERS:
All right.
Thank you.
15 CHAIRMAN ZECH:
Commissioner Curtiss?
16 COMMISSIONER CURTISS:
Your comment letter on 17 the rule announces a two-year delay in the full access 18 to the system, the point at which the parties to our 19 proceeding will have full access to the system.
20 Two questions.
Number one, does that affect 21 the extent to which you can backload the -- load the 22 backlog documents, or do you intend to load those on the 23 same pace and have those in the system by 1993 or
'4, 24 whatever the date was?
-25
- And, two, in your
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availability of the system in 1993, have any bearing on 2
the hearing whatsoever?
]
3 MS. CERNY:
The first question, on loading the 4
documents.
The first procurement we are going out with 5
now is for the capture station.
So, as soon as we get 6
screening procedures in place, we will be able and 7
the capture station installed at the end of the year, we 8
will be able to start scanning documents.
the operation of the system, that 9
The 1992 10 assumes we have the whole search engine, the computer at 11 Las Vegas in, but, no, that procurement is separate from 12 the capture stations, and that's why we are doing it
(
-)
13 like that, so that we don't jeopardize the timing.
14 The two-year delay is simply because when the 15 original RFP was written that SAIC responded to, the 16 problem just simply wasn't that well understood. That is 17 part of the answer.
The other is this is an ADP 18 procurement and, when we really sit down to look at the 19 time involved in ADP procurement, that's what we come
~
20 out to.
21 As far as your other question, no, this -- we 22 believe we can have it loaded by 1994.
23 COMMISSIONER CURTISS:
What do you understand 24 the term "substantially loaded" to mean?
What would 25 that require of you?
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MS. CERNY:
That will be as you people --
2 MR.
SALTZMAN:
Let me say that we hav'e 3
received from the State ^of Nevada, and would be willing 4
to receive from any of the parties, a list of their 5
priorities,- as to how they would like the. material--
6 the backlog material to be loaded.
And we will follow 7
those priorities, so that we presume this helps them in 8
preparing. for their case, and it would put the least 9
important subjects to be loaded last.-
So we think it 10 should not affect the proceeding at all.
11 COMMISSIONER CURTISS:
So "substantially 12 loaded" doesn't refer to a percentage of the documents.
I )
13-It may refer to a priority of the issues, as the parties 14 see them arising in the hearing, so that if ground water 15 travel time were an early issue in the proceeding, or 16 the construction of the surface handling facilities, you 17 would view "substantially loaded" to mean you have all all of the documents, or a large 18 of the documents 19 percentage of them, in the system for those issues that 20 will be litigated early?
21 MR. SALTZMAN:
Well, the issues -- the matters 22 that are produced in the course of the work will be 23 loaded on real-time basis.
What we are talking about i
l 4
24 here is the backlog.
,j 25 So, yes, we will go we will work through NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBER $
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-our. backlog on the basis of the priorities, and the 1
i
(. j' 2
. priorities will be given to us by the other parties.
j 1
3 MS. CERNY:
But we believe we will have the j
.l 4
backlog loaded, under the present schedule, by 1994, and S
be dealing.with the current --
6 COMMISSIONER CURTISS:
So you will have gone 7
through all the documents, high and low priority?
8 MS. CERNY:
Yes, by then.
9 COMMISSIONER CURTISS:
All right.
My question 10 goes to the six-month cer;ification that comes just 11 prior to the filing of the application where, unless you 12 have "substantially loaded" the system, the whole
/[
13 proceeding gets considered under Subpart G, rather 'han
'O 14 the~Subpart J proceeding.
15 MR. SALTZMAN:
Well, it becomes a choice.
It 16 becomes a choice for the DOE as to whether - the whole 17 proceeding is under the other subpart, or whether we 18 want to delay the application until such time as we can 19 meet that six-month pocket.
20 COMMISSIONER CURTISS:
Right.
But what do you i
21 understand the term "substantially loaded" to mean at 22 that fei-e?
What would you envision to be 23 "substantially loaded", 90 percent, or 100 percent?
24 MS. CERNY:
Yes.
By that point, we expect to
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basis with, the. current material, under the current p) t, 2
schedule.
3 The "substantially loaded", to me, has to do 4'
with how we define the screening criteria for materials 5
that will go into the LSS, based on the topical 6
guidelines that we are to' use.
And that is an issue-7 that we have already started to work with the staff here 8
on, on what materials -- since.the administrator will 9
have to certify - the loading, we want to work with him 10 from the beginning.-- well, with NRC from the beginning, 11 on how we define the material.
12 COMMISSIONER CURTISS:
Just one other quick
/3 13 question.
' J' 14 Jerry, you mentioned that the rule should 15 explain somewhere in the supplementary information, the 16 list of topical guidelines is understood to mean topics 17 that have a nexus.to Yucca Mountain.
18 MR. SALTZMAN:
That's correct.
l 19 COMMISSIONER ' CURTISS :
Is that sufficiently 20 clear in the rule today, as it is written, or in the 21 supplementary --
22 MR.
SALTZMAN:
I don't believe it is.
I 23 believe that we understood it that way but, when I go 24 back through the words, and even through the Minutes, I g3y 25 can read the Minutes to say that's what is in there, but HEAL R. GROSS COURT REPORTERS AND TRANSCRIBER 5 1323 RHODE ISLAND AVENUE, N.W.
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it is because I expect it to be in there.
(J.yb 2
I' think - that it could use a little more.
3.
clarification in the supplementary information, and 4
certainly in - the regulatory guide, so that anyone can 5
. read it that way from now on, and know that when a 6-subject is there in the topical. guidelines,
to be 7'
- captured, it is because it has a nexus to the 8
repository, if it is in Nevada, the repository in 9
Nevada.
10 COMMISSIONER CURTISS:
Stated differently 11 then, topical guidelines documents that are entered 12 under topical guidelines would have to have a nexus to
[
13
. Nevada, or the issue would have to be relevant to the 14 licensing of Yucca Mountain under Part 60?
15 MR. SALTZMAN:
That's right.
16 COMMISSIONER CURTISS:
That's all I have.
17 CHAIRMAN ZECH:
Thank you very much.
18 We will call on the industry group.
l 19 Representing Edison Electric Institute, Utility Nuclear 20 Waste Management Group, and the U.S.
Council on Energy 21 Awareness, Mr. Kraft and Mr. Silberg.
l 22 MR. KRAFT:
And Mr. Killar, from USCEA.
23 CHAIRMAN ZECH:
Fine.
Thank you.
24 MR. KRAFT:
You are welcome.
L0 25 CHAIRMAN ZECH:
You may proceed.
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MR. KRAFT:
Thank you.
A)
(
2 Mr.
- Chairman, Commissioners, ladies and 3
gentlemen, good afternoon.
My name is Steven Kraft, and 4
I have the privilege of serving' as the Director. of 5
Nuclear Waste and Transportation Activities for the 6
Edison Electric Institute.
7 With me today are Felix Killar, on my far 8
left, Project Manager, Nuclear Fuel Cycle for the U.S.
9 Council for Energy Awareness and, on mr immediate left, 10 Jay Silberg, of the law firm of Shaw, Pittman and Potts 11 and Trowbridge.
12 The three of us represented the Coalition of 13 industry groups in the negotiated rulemaking proceeding 14 on the Licensing Support System.
We greatly appreciate 15 the opportunity to present our views on this important 16 rulemaking.
17 After actively and in good
- faith, 18 participating in the negotiated rulemaking that led up 19 to the proposed rule before you today, the Industry 20 Coalition reluctantly concluded that we could not 21 support the negotiations' final product.
22 As a result, despite what you have heard so 23 far today, there was no consensus on the proposed rule, 24 in accordance with the rules that the negotiating j
25 committee had established.
Our negative vote on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER 5 1323 RHODE ISLAND AVENUL N.W.
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48 l\\,L*
1 proposed rule does not mean that we disagree with the Q
2 philosophy --
3 CHAIRMAN ZECH:
Did you not at anytime agree?'
4.
MR. KRAFT:
I think the best way to say it, 5
Mr.. Chairman, is that at the very beginning we agreed 6
with the purpose of the negotiation.
And every party to 7
the negotiation held open their option throughout the.
8 course of the negotiation to make a final judgment.
And 9
in the protocols of the committee, there was a statement 10 that we all agreed to, that allowed us to come to -- I 11 think it was called " tentative consensus", to permit the 12 process to go forward, so we could attempt to write the 13 best rule that we could write.
14 And then at the very end, everyone was 15 permitted to review the rule in toto, and render onc 16 final judgment.
17 CHAIRMAN ZECH:
So you came to tentative 18 agreement?
19 MR. KRAFT:
Yes, we did, throughout the course 20 of the negotiations.
21 CHAIRMAN ZECH:
All right, but you didn't come 1
22 to final agreement, is that what you are saying?
23 MR. KRAFT:
Yes, sir, correct.
1 24 CHAIRMAN ZECH:
All right, thank you.
e-(}
25 Proceed.
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1 MR.: KRAFT:
ThankJyou.
2 This negative vote - on. the proposed crule did y
3' not mean-that-wel disagreed.with 'the philosophy 4'
u n d~e r l y i n g = t h e p r o p o s a l '--.that is, the-early 5-av'ailability.of'all'information concerninglthe proposed'
.6 geologic repository in lieu of? judicial type discovery.
.1
'7-
- Indeed, the industry has been -publicly urging this-8 codrse of action for.more.than five years.
'9
-our concern is that the method being. proposed 10 will be counter-productive.
Apart.from costing electric 11 consumers an exorbitant amount of money, the LSS is 11 2 likely~ to make -the repository hearing longer,- more-
'([.'d 13 complicated and more controversial.
%)
14 Contrary to s tatements :-in. the.SECY paper.
15 before you today, which I greatly appreciate being 16 permitted to view early, our: opposition'to the proposed 17 rule was not based solely on cost considerations.
18 Since the start _of the rulemaking process, we 19 have been pointing out that the system being proposed is
~
l 20 without precedent in judicial and administrativeLagency-an estimated.40 million pages of documents 21' history 22 instantaneously retrievable in full text and image form.
23 No litigation support system, or licensing support 24 system that we have discovered, has attempted anything p,q Vf 25 approaching the scope of the proposed LSS.
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1 Unfortunately, none of the lawyers f or the
%)
2 staff and DOE involved in the.LSS project.have had, to 3
our knowledge, any first-hand experience with a full-4 scale litigation support system, or with discovery on 5.
the scale contemplated for the repository licensing 6
proceeding.
7 We believe that this lack of experience has 8.
allowed them to be seduced by the prospect of a high-9 tech solution.
10 We have recently been able to uncover 11 spec.fics of some of the recent major litigation support 12 systems.
This has confirmed our fears that the LSS is
/
13 stepping off into a new dimension.
14 The Washington Public Power Supply System bond 15 default case, involving the largest municipal bond 16 default in history, was one of the truly big cases, 17 involving more than 600 defendants, five years, legal 18 fees and expenses for plaintiffs alone exceeding $150 19 million, and ultimately, being settled for $700 million.
20 According to a published estimate, more than 21 200 million pages were produced during discovery, but 22 less than one-half of one percent, a very tiny fraction 23 of these documents, was entered into any kind of 24 computerized database.
None were in full text.
About O.
25 300,000 documents were entered in the database, none of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1 them in full text, but used a series of descriptors--
)
'p t,
2 the bibliographic headings that are referred to in'the-
]
3 LSS rule.
4 When we-asked the attorneys involved in.that 5
litigation why more documents were not entered in full 6
text, the answer we got was that' full text slowed down 7
the research.
An interesting observation by one of the 8
crial lawyers was that the only common denominator for 9
these computerized support systems, is that someone will 10 make a lot of money. And in this case, the source of the 11 money is the electric consumer.
12
.The supply system litigation is not unique.
[-[)
13 The AT&T case involved 250 million pages of discovery 14 documents, none were entered into the litigation system 15 in full text.
16 The South Texas litigation involved 65 million 17 pages, none entered in full text.
18 Even in the IBM anti-trust case, one of the 19 most complicated court cases in history, discovery 20 documents are entered into the litigation support system 21 only by descriptors.
22 The asbestos litigation was conducted in the 23 same manner.
24 It is true that computerized databases exist 25 that are comparable in size to the predicted LSS, or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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52 1
even larger, but such systems as JURIS and LEXIS bear no hc/.
2' resemblance. to' the LSS, if only because the LSS will 3
include an extraordinarily wide range of document types.
4 Commissioner Rogers just asked a question 5
about that, and it is worth - noting that the documents 6_
will include scientific reports, field data, maps, 7
charts, contracts, letters, legal documents a whole 8
panoply of different formats.
JURIS, LEXIS and similar 9
systems have a highly uniform database that makes both 10 document entry and retrieval relatively straightforward.
11 The delays that DOE has already been forced to 12 acknowledge in the creation of the LSS are testimony to
(.]
13 the complexity of the system, and the likelihood that it s.,y 14 will suffer further delays and problems.
15 The three-to four-year window established by 16 Congress for licensing a repository, creates a very 17 difficult dilemma for the Commission.
The Federal 18 Register Notice accompanying the proposed rule states 19 that, "The proposed rule, if implemented, sets in place i
20 a procedure for hearings that will allow the Commission 21 to reach a decision on the construction authorization",
I 22 for the repository within the statutory period.
23 Unfortunately, we are unable to agree with i
24 this rosy prediction.
And it is no more than a 25 prediction.
Neither DOE nor NRC have analyzed whether NEAL R. GROSS COURT REPORTEk$ AND TRANSCRIBERS 1323 RHoOE ISLAND AVENUE, N.W.
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53 1
the LSS will actually result in a three-to four-year (3
Y..) -
2 licensing period.
We are afraid that the glamor of a
-3 high-tech fix has clouded the vision of the LSS 4
proponents.
5 I urge that you seriously consider the 6
alternative to the LSS, which we proposed during the 7
negotiated rulemaking and in our comment on the proposed 8-rule.
A centralized document repository with a 9
computerized index of the documents and overnight 10 delivery of documents to participants is much closer to 11 the litigation system used in every large-scale 12 litigation, than is the LSS.
l' N 13 Instead of gambling with going beyond the
)
N../
14 state-of-the-art, all parties NRC, DOE, state and 15 local governments, environmental groups, utilities and 16-their consumers -- would be much better served by a 17 system with a track record -- with a known track record.
18 Having a sophisticated computerized toy paid i
19 for by utility consumers is simply not necessary for the 20 conduct of repository licensing, anymore than it was a 21 prerequisite for the conduct of the IBM, AT&T, or supply 22 system lawsuits.
23 We would urge the Commission not endorse an i
24 untried, unproven and costly system, especially since 25 that system will likely impose further delay in an NEAL R. GROSS COURT REPORTERS AND TRANSCR18ERS 1323 RHOOE ISLAND AVINUE, N.W.
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i 1
overly delayed program.
2 If the Commission desires to come as close as 3
possible to conducting the repository hearings in three 4
to four years -- and it is our judgment that those time 5
frames are probably not achievable in an adjudicatory.
6 proceeding -- two things, we believe, must be done.
7-
-First, the NRC must resolve many of the 8
complex technical issues through generic rulemaking.
9 Complex issues or methodology are not unique to the 10 repository program.
NRC has frequently dealt with such 11 issues in the reactor context on a generic basis.
12 Issues such as ECCS, design, transportation impacts, 13 fire protection, and station blackout come to mind.
A 14 great many matters can be dealt with in a notice and 15 comment rulemaking, off the critical path.
16 Dy promulgating rules covering such issues, 17 all interested persons can participate, challenge the 18
,results in court should they so desire, and the issue
~
19 can be settled well in advance of the adjudicatory 20 hearing.
Those issues are therefore settled by the time 21 that the licensing hearing starts.
22 We understand that the staff is initiatirg 23 efforts along these lines, and we encourage this effort 24 to continue.
25 The second set of actions that are necersary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1 if the repository proceeding is'to approach the three-LM
.../
2 to four-year statutory period, involve changes ~ to the 3
Commission's Rules of' Practice, 10 CFR Part 2.
4 At the very first meeting of the negotiating 5
committee, we raised the question of changes to Part 2.
6 The NRC staff said that everything was on the table.
We 7
took the staff at its word, and sought to incorporate 8
the kind of improvements that would help the NRC achieve 9
the statutory time table.
10 Because these improvements are absent from the 11 proposed-rule before you today, we urge that you take 12 the necessary steps to assure that the final rule will
'13 include these measures.
~?
14 NRC hearings have traditionally been 15 characterized by a very informal, and some might say,
\\
16 undisciplined approach.
Licensing boards have often 17 gone down their own path, rather than that provided by 18 Part 2.
The Commission must assure that the licensing I
19 boards and appeal board, if one is used, for the 20 repository licensing proceeding, adhere to the NRC's l
21 procedural rules, a statement just made by Mr. Saltzman, l
22 from DOE.
23 Discovery requirements must be modified beyond 1
24 those reflected in the proposed rule if an appropriate D
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by the LS3 and the other discovery mechanisms to remain 2
- in the proposed rule.
3 Uhere parties have had access 'to all the 4
significant records concerning the repository program,
'he very broad discovery rights included in the proposed' 5
c 6
rule do not represent an appropriate quid pro quo.
7 Unlimited depositions and a novel concept of informal 8
discovery which, under the proposed rule, could easily 9
ripen into formal discovery, would seriously undercut 10 whatever efficiencies the LSS would achieve.
11-While the proposed rule allo'ws the licensing 12 board to establish some limits on non-LSS discovery,
.[7) 13.
past experience with licensing boards does not provide u.;
14 much confidence to us, that they will exercise their 15 discretion to control discovery.
16 The Commission should also establish more 17 sensible. standards for the threshold on admitting 18 contentions, especially late filed ones.
NRC practice 19 has historically been overly generous in admitting 20 contentions.
21 The recent Ninth Circuit decision demonstrates l
22 the need for better standards, particularly with the 23 fish bowl approach to information in which the 24 repository program will function.
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1 those.used by other agencies, such as the FCC.
'.gf 2
Mr. Chairman, Commissioners, thank you for the 3
opportunity to present our views on this important 4
issue.
We would be pleased to answer any questions you 5
might have.
~6 CHAIRMAN ZECH:
Thank you very much.
7 Questions. Commissioner Roberts?
8 COMMl?$1 FER ROBERTS:
No.
9 CHAIRMAN 2dCH:
Commissioner Carr?
10 COMMISSIONER CARR:
Do you have any data on 11-the cost of those other litigations that you mentioned 12 there, on how much it cost them to take care of their
'O 13 records?
14 MR. SILBERG:
Well, we do know in the Supply 15 System litigation that the total expenses for all the 16 plaintiffs was
$54 million.
That would include 17 everything.
I don't have the precise costs on the 18 database itself, but it must be some small fraction of 19 that number.
i 20 Whenever I have mentioned the cost of the 21 system to the numbers of consultants and lawyers who 22 have been involved in these big cases, they, frankly, 23 have been shocked at the 200 million number.
It is 24 beyond anything that I have heard of from existing O
25 experience.
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MR. KRAFT:
If I could respond a moment on the 2
cost.
We are, as the industry, in general, and our rate 3
regulators, are appalled at the cost of the entire waste 4
program.
The $200 million in 1988 dollars that are 5
being proposed for the LSS, exceeds the cost some I
6 utilities paid for the entire nuclear power plants in 7
the early 1970s.
These are remarkably high numbers.
8 COMMISSIONER CARR:
But you don't have any 9
dat~a on -- that's comparable to the $200 million --
10 MR. SILBERG:
No.
I have some breakdown.
.I 11 was told, for instance -- I don't have the data here, I 12 have it back at our --
(
13 COMMISSIONER CARR:
Could you get us a set of G
14 data that would be comparable A to A, and B to B?
15 MR. SILBERG:
We can try..The data that I got i
16 was that in one -- in the Supply System litigation, one 17 of the parties was renting their computer equipment for 18
-- I believe the figure was $13,000 a month.
They had 19 had to make a one-time payment for software of 70-odd 20 thousand dollars.
And they were using 15 to 20 people 21 at about a cost of $15 an hour, for their indexing and 22 sorters.
I 23 COMMISSIONER CARR:
And did they have access i
24 to all of the documents?
-3
,:.;. 1 25 MR. SILBERG:
This was the system that had no l
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1 documents -- none ofLthese systems had'any documents in.
b, -
q.
2 full text, but they were all being entered into the 3
computer system by indexing, by head notes.
4 COMMIS SIONER; C ARR:
I say, did they _ have 5
access to all of the documents?
6 MR. SILBERG:
Yes.
7 COMMISSIONER CARR:
And how long did it take 8
i_a N get the access?
9 MR.
SILBERG:
Oh, that particular working 10 group?
11 COMMISSIONER CARR:
Yes.
l t
12 MR.
SILBERG:
I don't know, I haven't asked fl) 13 that question, but they were trained to find those v
14 documents and get them out to the parties.
I would 15 suspect it didn't take them more than a day.
16 COMMISSIONER CARR:
Well, I would appreciate 17 if you could find an equal comparison, wWe would like 18 those numbers.
19 CHAIRMAN ZECH:
Commissioner Rogers?
20 COMMISSIONER ROGERS:
I think that is very 21 important.
You've quoted a $54 million figure, and 22
- also, 200 million documents.
I don't know what is a 23 reasonable number for handling these documents, but it i
24 would seem to me there ought to be some rough measure of
.d,,
25 cost of handling a document, in some way.
People are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
b
j 60 1
paid to mail these. things back and forth, to search them
]
/Dj 2,
out of files, to do things with them and so on and so 3
forth.
'And I.think that it is very important that we 1
4 understand what is a reasonable cost for dealing with 40 5
million documents in anyway whatsoever.
d l
6 Do'you have a cost for your estimate of your.
j 7
microfiche system that you are proposing --
8 MR. KRAFT:
No, sir, we --
9 COMMISSIONER ROGERS:
-- and I am talking I mean, of actual handling 10 about the total cost now 11 of there documents,. which is what is the cost that is l
12 involved with the $200 million figure, 70 percent of (D;
13 which is labor, and that is really document handling, to 4,y 14 a very large extent -- putting it in and getting it out, 15 I take it.
16 And, so, one has to make a cost comparison on 17 some reasonably comparable basis that includes the labor, 18_
of handling those documents and dealing with them.
And 19' I don't have any particular feeling about that, but the 20
$40 million and the $140 million over a 10-year period 21 for the labor, comes out to a little more than $3 a 22 document.
23 Now, I don't know whether that is high or not, 24 but I know it costs you about $3 to write a letter.
25 And, so, you know, what is a reasonable number here?
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^MR.
SILBERG:
Well, we do' know tha t. - in-the
. (/..
s 1.:
2 Supply System, that they were able~to handle all of.the 3
expenses for litigation that went on for five years, 4
involved parties all around the country, of which, 5
obviously, discovery was only one portion.
And that 6
total cost was one-fourth of what we are now looking at, 7
just for documents here.
8 COMMISSIONER ROGERS:
- Well, I guess my 9
question is whether that really was the full cost --
10 MR. KRAFT:
Those were full costs --
11 COMMISSIONER ROGERS:
-- or whether there were 12-other costs that were borne in another way, that didn't 13 appear in that $54 million.
If you are talking about 14 200 million documents, and anybody is doing anything 15 with any of them, it's got to cost some money.
I 16 MR. SILBERG:
Well, one of the things that we i
17 learned in talking to people who have handled these vast 18 numbers of documents, is that in any big case, when you 19 are dealing with large numbers of documents, the great 20 majority of them are of little value in the liti gation.
l 21 And you can screen them out.
And a very important point 22 that I am afraid has been missed by this system, is any 23 attempt to screen out documents that are unimportant in 24 the long run.
c'0 25 One of the comments that was referred to--
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1 thdt is. included in Mr. Gallo's comment letter, but>not' 7
/
2 referred to in the SECY papers analysis of that' comment, 3
is the need'to reduce the number of documents you are 4
putting into the system.
l 5
If you screen the documents carefully, you can 6
get down to a few hundred thousand that really have some 7
value in the proceeding.
If you don't, and you put 8
every document-in there, you are going to have a system 9
that won't work because, when you do a key word search, 10 and even if you make.that key word phrase very n r. ? r o w,
11 if you've got 200 million pages, or 40 million pages,
. 12 you are going to get back so many positives.that you (3) 13 will be totally at-sea, s.
14 And that's why in a lot of these cases, the 15 lawyers, even when they had computerized systems, found 1
16 that the system that they had just wasn't helping them.
17 They were getting garbage out because they had put j
~
18 garbage in.
And that's one of the things that we are 19 very afraid of with this system.
20 COMMISSIONER ROGERS:
Well, but with these big 21
-- large numbers of documents, someone has to make a 22 decision at some point, whether it is relevant or not, 23 on every document, to just not use them.
24 MR. SILBERG:
The way this system is set up,
,ph 25 every document is going to go into the system.
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.)--
1 CHAIRMAN ZECH:
But the documents that you ere fm 2
' talking about, a smaller - number, maybe that satisfies
-s 3
you,-but.would it satisfy others that are going to be 4
parties to this issue?
Would they all agree with you, 5
that you just need this many documents, or would they.
6 want part of those, and maybe some others?
7 MR. SILBERG:
All I can say is that in every 8
other litigation, where people have to bear their. own 9
expenses, people make a decision.
And you don't look at 10 every document to the same degree.
You make a:
11 reasonable cut at eliminating those documents which are 12 unlikely to=be worth anything.
You take those documents 13 that are important, and you work on those documents.
14 If you are having a system that, in essence, 15 is an open checkbook -- if someone else is going to pay 16 for all of the work -- well, certainly, I want to put 17 more into the system. And that, unfortunately, the only 18 party that has to pay for this system are the utilities 19 and their customers.
20 Nevada won't have to pay for the system.
NRC j
21 won't have to pay for the system.
DOE won't have to pay i
I 22 for the system.
So, the incentives -- there are no 3
23 incentives to reduce the scope.
1 24 CHAIRMAN ZECH:
Well, we all are customers, 9
25 aren't we, one way or another?
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MR. SILBERG:
One way or another.
And we are 7
I J
2 in the position of representing all of the customers.
3 CHAIRMAN ZECH:
No, we are, too.
And your 4
point is an important one,-but, also, we are involved in 5
an issue that there are other views, than yours.
And it 6
would seem to me that those views should be considered, 7
just as your views are considered.
8 MR.
SILBERG:
And we would hope that the 9
Commission would do that.
10 CHAIRMAN ZECH:
Well, we certainly intend to.
11 COMMISSIONER ROGERS:
Do you believe that your 12 microfiche system that you proposed would be able ' to
)
13 result in meeting the three-year licensing period?
14 MR. KRAFT:
No LSS system will do that, in and 15 of itself, Commissioner Rogers.
That's why we focused 16 on the need for changes to Part 2 procedures.
17 COMMISSIONER ROGERS:
All right.
18 CHAIRMAN ZECH:
Is there any system designed 19 that could assist in perhaps our responsibility to try 20 to meet this three-year licensing process?
You are 21 saying there isn't anything that we could do to meet the 22 deadline?
23 MR. KRAFT:
No.
What I said was unless I 24
- misspoke, Mr.
Chairman, what I said was that no LSS and I believe the question was by itself.
25 system NEAL R. GROSS COURT REPORTERS ANO TRANSCRIBERS 1323 RHoDE ISLAND AVENUE, N.W.
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65 1
Certainly, there are systems that could'be designed that
- (~T-
"if 2
will aid the Commission in meeting the statutory 3.
requirement.
4 Our view is that the LSS contemplated by the 5
rule, would raise so many other questions and issues, by 6
the nature of its own operation and its own uniqueness, 7'
as to extend the process.
We believe a microfiche-f 8
- based, warehouse-type system, which is what we are 9
fundamentally talking about, is low-tech enough that the 10 issues that could be raised about its operation are 11 fairly minor, and it would serve the same purpose, in 12 our view.
And I grant you, that are many other views.
)
13 COMMISSIONER CARR:
That's an opinion.
You l
r l
14 don't really have data to support either side of that.
15 MR. SILBERG:
Well, we have the data, in that 16 that is the type of system which every other litigation 17
-- big case litigation has used.
18 COMMISSIONER CARR:
But before we used 19 computers at all, we had a different type of system, I l
20 assume.
21 MR. SILBERG:
And no one ever used --
22 COMMISSIONER CARR:
You wouldn't propose to go 23 back to that, whatever it was?
4 24 MR.
SILBERG:
No, but before you had 25 computers, no one ever tried to do discovery involving HEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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theynumbers of documents you have, that:we have doneTin l, y ;~S L.; C /.
2 cases in the past ten years, but there obviously are 3
. things the Commission can do, and those are the changes 4
to Part 2,
and the substantive rulemaking proceedings 5
that we have talked about.
L 6
CHAIRMAN ZECH:
Mr. Rogers, anything else?
7 COMMISSIONER ROGERS:
Well, just it seems to 8
me, there are two separate issues here, that you are 9
talking about.
One is the cost itself, and the other is 10 a system which will deliver the results within the 11 three-year, or maximum four-year period.
i 12 And I think we have to keep those separate,
~'
/T 13 and look at them separately because I don't think we
%)
14 have the data -- we would like to see it -- on cost.
If 15 you are going - to make an argument-on the cost alone, l
16 with -- still dealing with the same number of documents, 17
$40 million -- I don't know,'I haven't heard anything 18 yet that says that there is a much less costly' approach 19 to handling 40 million documents.
i e
20 What you are saying is that that number itself i
21 should be reduced, and then the cost would be lower, but 22 that's a separate consideration.
23 If you grant that there are 40 million 24 documents that have to be dealt with, then
-- so far, I 25 haven't heard anything that you have said that pins the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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'I 1
cost down,-as-outrageous -- maybe it is, but I don't see s.4 Ql 2
any reference to tie it to that if you are going to 3
deal with 40 million -
. if we have to deal with 40 l
4 million documents, whether it i s w i't h a microfiche 5
system or some'other system, there still is going to be 6
cost per d:acument.
And my guess is that that is going 7
to be-a couple of dollars.
8 So, then the cost is whatever the cost is in 9
handling 40 million documents.
You are. saying that 10 should be cutback to a smaller number of documents, but 11 that is a separate consideration.
12 So, the cost itself, I-
- think, we have to
(~}
13 compare cost -- if you are going to talk about cost,.we
-s 14 have to compare the same kinds of entities, 40 million 15 documents that have to be dealt with. And then if the 16 number of documents is reduced, then everything is 17 reduced.
Then the cost will be reduced for the i
18 electronic system, as well as for the manual system.
19 MR. KRAFT:
It also depends upon the manner in 20 which you are going to handle the documents, whether or 21 not you have full text retrieval and image production 22 capability on a remote screen versus just being able to 23 produce a searchable header, and then have the document 1
24 delivered, you know, in the overnight mail, which is the 25 concept you were talking about.
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1 on costs, too.
And I believe that it also has the
[
'k. /
2 effect on the most uncertain part of the cost.
3 I believe DOE probably knows with greater 4~
certainty the $3-$4 a page cost that you are mentioning, i
5 which is the document capture, verification,.QA --
j 6
COMMISSIONER ROGERS:
I'm talking about 7
document, not page, but go ahead.
And we are talking 8
about 40 million documents.
9 MR. KRAFT:
Pages.
10 COMMISSIONER ROGERS:
Pages?
11 MR. KRAFT:
Pages.
12 COMMISSIONER ROGERS:
Well, okay.
I don't
/ '":s 13 know.
..)
14 MR. KRAFT:
That's been a confusion of ours 15 for quite sometimes.
1 16 COMMISSIONER ROGERS:
I'm not sure. I think
'17 that's documents that we are talking about, isn't it?
18 MR. OLMSTEAD:
It is pages.
19 MS. CERNY:
It is pages.
20 COMMISSIONER ROGERS:
All right, let's be 21 clear that it is pages then, not documents.
j 3
22 MR.
KRAFT:
But the point is that the
-f 23 uncertainty in the cost estimate lies in the development 24 of the hardware and software to do the full text and the l'
25 image production, and things like that.
I think DOE HEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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1 probably knows with greater certainty what it-costs per p~g 1.u/
2' page to take the'page, do what they hav'e to do to enter 3
lit, and verify it was entered correctly, and all. of 4
that.
That is, I think, fairly -- those are fairly well.
5 known..So, the uncertainty lies, perhaps, in the-costs
.6' that go beyond the initial several dollars per page.
7 COMMISSIONER CARR:
But it seems to me that 8
your curiosity would be more aroused by an index and I
9 headline retrieval system, than it would be to scan the 10 document when you see it, and then be able to say "I
11 don't need that one".
12 And if you are going to send these things by f) 13 overnight mail, my experience -- overnight mail is kind 14 of expensive.
15 MR.
KRAFT:
I don't know what the total 16 capitalized worth of Federal Express is anymore, but at l
17 one point you could have bought it for 200 million.
18 (Laughter) 19 COMMISSIONER CARR:
Well, maybe I should have.
20 (Laughter) 21 COMMISSIONER CARR:
But they still charge $4 22 or $5 --
23 MR. KRAFT:
Oh, they charge quite a bit more 24 than that, but that concept is still workable.
One of G
25 the concerns that we have regarding the system is that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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as Mr.
Silberg pointed out, with the full text
\\q g
._ /
2 retrievability of all the documents and the machinery 3
that has to reside at, now we know at the UNLV, to 4
support, to scan for a set of key words in all these j
5 millions of pages of documents, will produce so many l
6 documents, so many positive hits, that you would want to 1
7 sit there and look at all these different documents.
8 It just becomes -- maybe it's untenable in all 9
cases, Commissioner.
Maybe it's untenable no matter 10 which way you look at it.
11 COMMISSIONER CARR:
But seeing the title 12 without the document raises my curiosity a lot more than O) 13 knowing I don't need it and throwing it out immediately.
(
...i f
14 That seems to me like it's a --
15 MR.
SILBERG:
- Well, the indexing system 16 involves more than just a title.
It also involves a set 17 of descriptors that presumably will tell you what's in 18 it.
19 MR. KRAFT:
Key words.
20 COMMISSIONER ROGERS:
But that's included in 21 the proposed electronics system header, with this kind 22 of information that would be the basis on which most 23 people would access the system, is it not?
So, isn't 24 there a commonality there between what you are proposing f,
(.. h, 25
-- you are proposing some kind of an electronic system
~
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71 1
for storing the information basically in'the header --
2
. MR. KRAFT:
Right.
3 COMMISSIONER ROGERS:
so, that's the same.-
4 It's the retrievability of the full text electronically, 5
that --
6 MR. KRAFT:
It's the full text word search.
7 It's sitting at your computer and being able to type in, 8
from a remote location, every time the word "significant 9
concern" appears in any document, for example.
Now, how 10 many times is that going to arise in this proceeding?
11 Millions of times?
How many different documents ' are 12 going to flush up on your screen?
(]
13 The whole thing strikes me as someone who--
q,j 14 I'm, you know, a complete novice when it comes to 15 computers, but the whole thing strikes me as untenable.
l 16 You're not going to be able to make it work.
Maybe it 17 won't work either way.
Maybe we need to search for 18 other ways to streamline the process, such as document 19 screening.
Maybe that's a better answer to the entire 20 situation than what's been proposed either way.
21 COMMISSIONER CARR:
We'll know this summer, 22 right, when we try the prototype out.
23 MR. KRAFT:
Yes.
24 MR.
SILBERG:
- Well, that will have a very 25 small number of documents.
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72 1-MR. KRAFT:
Two hundred thousand pages.
fq
(,3/
2 MR.
SILBERG:
I don't think that's going to 3
tell you very much.
4 COMMISSIONER ROGERS:
That won't deal with 5
this particular issue --
6 MR.
SILBERG:
It would.tell you whether the 7
system architecture would work, I think.
8 COMMISSIONER ROGERS:
-- of the hits on 10,000 I
9 documents that it can dump on you when you make a 10 request.
11 CHAIRMAN ZECH:
Commissioner Curtiss?
12 COMMISSIONER CURTISS:
I'm surprised that you
(
13 are opposed to discretionary intervention, since that's 14 the only way that you may get into the proceeding.
15 MR.
SILBERG:
- Well, I don't think that's 16 nece.arily correct.
i 17 COMMISSIONER CURTISS:
You disagree with what 18 the staff. has said?
)
19 MR. KRAFT:
Yes.
I 20 MR. SILBERG:
Yes, and we told them so.
21 COMMISSIONER CURTISS:
Just in a nutshell, 22 what is your standing argument?
23 MR. SILBERG:
I think there are a number of l
24 standing arguments, and we have done some legal l
l 25 research.
I don't really think that this is the right HEAL R. GROSS COURT REPORTERS AND TRAN$CR18ER$
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time to get into that --
D.
I (,/
2 COMMISSIONER CURTISS:
Okay.
All right.
3 MR. SILBERG.:
-- especially before a body that 4
ultimately may be making that decision.
l 5
COMMISSIONER CURTISS:
Just.a quick question.
6 If all the Part 2 changes that you have proposed were l
1 7
adopted, would that tip the balance, in your judgment, 1
8 on the LSS?
9 MR.
KRAFT:
I think you would find the 10 industry more readily open to these expenditures of 11 funds, Commissioner.
12 CHAIRMAN ZECH:
Well, just a comment.
I think 13 you've told us that although you had tentative 14 agreement, apparently, during the course of events, that 15 you end up disagreeing.
You --
16 MR. SILBERG:
Can I expand on that a little?
17 CHAIRMAN ZECH:
Yes, please do.
18 MR. SILBERG:
The way the process worked, we 19 were taking the provisions of the Proposed Rule -- there 20 was a " stalking horse" rule that the staff proposed--
l 21 and going at them one provision, one section at a time, 22 and the parties would negotiate and, sooner or later, 23 eventually, you would reach a stopping point, and either 24 people were not willing to go any further or everyone O
25 agreed that it was the best possible result.
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74 l'
I think' i t-' s really not an accurate (3
t '.l) 2
- characterization to say that we had agreed, in all 3
cases, to the end result of what's in.the Proposed Rule.
4 In a lot of cases, we just agreed to disagree, and we 5
went on to the next topic, rather than exercising --
6 CHAIRMAN ZECH:
But you didn't agree to a
~
7 certain -- up to a certain level, and then disagree?
8 MR. SILBERG:
No.
9 CHAIRMAN ZECH:
You didn't agree with 10 anything.
11 MR.
SILBERG:
There were tentative consensus 12 positions, and tentative stopping places.
The rule said l
r 13 nothing is final until everything is final.
14 CHAIRMAN ZECH:
Right.
15 MR.
SILBERG:
And in some cases, we simply 16 negotiated as best we can, and then we went on to the 17 next section.
l 18 CHAIRMAN ZECH:
I see.
19 MR. SILBERG:
So, I don't think it's fair to 20 say that we agreed on everything in the rule because we 21 didn't.
22 CHAIRMAN ZECH:
Well, I -- but I thought there 23 was tentative agreement.
As I understood earlier, there 24 was tentative agreement as you went along, but that's O
25 not true, you say.
l l
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1 r
1-MR. KRAFT:
Well, had we not put together as a
'_/
2 group, under Mr. Be11 man's tutelage, the process that j
1 3
Mr. Silberg just described, we would never have gotten 4
beyond the first day, and that was not what we were 5'
there to do.
We were there to try to get the rule -.a 6
rule written.
And I have to say that we probably earned 7
the enmity of most of the other parties because every 8
time we went through the rule in draft, which I don't 9
know how many times Chip had to rewrite this thing, but 10
-- and he should win an award for'that alone -- but we
'11 forced the committee to stop at every issue we wanted to 12 revisit, and renegotiated, and we just kept on ' trying 13
~and trying and trying to get the rule into a condition 14 that we' could ultimately accept because we wanted to 15 ultimately accept something but, at the very'end, when 16 we read the thing in its entirety and considered the 17 costs, we decided as an industry that we could not 18 support the final --
19 MR. SILBERG:
As an example, y6u talked about 20 the threshold for contentions.
We tried very hard 21 during the negotiation, to raise that threshold.
We 22 failed.
We stopped at a provision as it now appears in 23 the proposed rule because no one else would agree with 24 us.
We stopped.
We didn't agree with it.
Our position 25 on that, for instance, is as we said in our comments and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1313 RHODE ISLAND AVENUE, N.W.
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76 1
as we said here today.
7 2
CHAIRMAN ZECH:
Well, I think you've made 3
yo'urself very clear.
Mr.
- Kraft, I think, in his said that he I took a couple notes 4
comments 5
thought the group was " seduced by high technology",
6 thought it was, you know, the glamour of the high tech 7
system.
I think you referred to a computerized toy, and 8
a novel approach of informal discovery, and the fishbowl 9
approach.
So, I think we've got your message.
I think 10 11 MR. KRAFT:
I said all those things, yes.
12 (Laughter) 13 CHAIRMAN ZECH:
So, we recognize that you were 14 a participant, but you had problems with it, but I guess 15 the only thing I'd say, before we ask the next group to 16 come forward, is that it seems clear to most of us that 17 this is a.very unique undertaking and, if we are going 18 to do our job properly and do it the way that we. expect 19 it should be done, that we need a better system for 20 getting together and being able to gather all this 21 information on this very unique undertaking.
22 So, it looks like we need some kind of a 23
- system, and I think that the group, with your 24 participation, too, has at least attempted to come up O
25 with some kind of a licensing support system that will HEAL R. GROSS COURT REPORTERS AND TRANSCRf0ERS 1323 RHODE ISLAND AVENUE, N.W.
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- 77 1
help us do our job.in the three years, or four years,,or f%
L) 2 whatever it would take to get the job done.
We do feel 3-we need some kind of a system.
4 All right,.let's call the next group.
We 5
thank you very much.
6 MR. KRAFT:
Thank you.
l 7
CHAIRMAN ZECH:
State of Nevada, Mr. Murphy 8
and Mr.' Davenport, I believe.
l 9
Welcome.
You may proceed.
10
-MR. DAVENPORT:
Thank you very much.
11 Mr.
- Chairman, members of the Commission, 12 ladies and gentlemen, I'm Jim Davenport.
I have with me J
13 today Mal Murphy.
We are Special Deputy Attorney
. (y 14 Generals to the State of Nevada.
Also participating for 15 the State of Nevada in the Negotiating Committee was 16 Harry Swingston, Deputy Attorney General.
He is in
~17 Carson City today.
18 As an initial statement, we want to make it 19 quite clear that Nevada supports the rule as negotiated.
20 Now, like the previous witnesses, we got to issues in 21 the negotiation which we didn't like, and we had to stop 22 also.
23 We didn't get everything in the rule that we 24 wanted.
We made compromises, but we are prepared to O
t l
25 support the rule because we believe that the NEAL R. GROSS l
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78 e
1-participants in the process engaged in that process in
- ; f..
2 good faith, negotiated in earnest, comproihised, made 3
agreements, and that that was a proper and right system 4
to go forwardEon this issue and, because of that 5
outcome, we want to continue to live with what we agreed 6
to live by.
7 Now, if the Commission feels for any reason, 8
that all or part of the rule should be rejected, our 9
commitment to this rule is, of course, undermined.
It 10-is the rule in total which we are supporting.
11 If the Commission were to choose to take the 12 rule apart and begin over again, I think that we would Dj 13 want.to go back and revisit some of the issues which we
, 9;3 14 gave away, in arriving at the ultimate conclusion.
We 15 would hope that the Commission would not do that.
I 16 think that would probably.be a waste of time, if that 17' were to happen.
18 I'd like to make some observations about the j
19 process of negotiated rulemaking, as we have used it in 20 this issue.
You, of course, all know that the matter of 21 high-level waste has been a very contentious issue.
The 22 State of Nevada has not suffered the system readily.
23 There have been disputes between Nevada and 24 the Commission.
There have been disputes between Nevada 0
1 25 and the Department of Energy.
Here we have a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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l 79 1
circumstance in which the parties got together and O,
._ e 2
actually agreed to agree, actually agre ed to negotiate 3
things and, when we got to the end, agreed to abide by 4
what we agreed to.
I-5 I think that the tenor that comes out of that 1
6 agreement is much more positive to this process, in 7
getting a licensing proceeding that will happen in three 8
- years, than any of the specific recommendations for 9.
procedural change which the utilities have.
10 If we can go into a licensing proceeding with 11 the contentiousness removed, if we can go through the 12 resolution of these early issues by the kind of process 13 that we used here, we're going to stand a much better 14 chance of you realizing your objective of issuing a 15 license in a three or four-year time period.
16 So, we feel quite good about the process that 17 was used.
One of the reasons that the negotiated 18 rulemaking worked as well as it did, you saw here today 19 as Mr. Saltzman was reporting the process from his point 20 of view.
21
- DOE, in this proceeding, acted in a
22 responsible, uncolored way.
They attempted to represent l
23 their interest in an open and above-board way.
We were 1
4 24 able to identify where differences were and compromise 3
25 them.
That kind of process is much better than NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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litigation, to resolve disputes.
bG 2
Now, we will be into a litigation and, as you 3
know, we believe that there are issues in the proceeding 4
which can't be resolved any other way than litigation, 5
and we will be dealing with those in the end but, before 6-we get there, let's use systems like this, which were 7
able to produce compromise.
8 As we went into the proceeding, the basic 9
posture of the parties was, at least with respect to 10
- Nevada, that we were prepared to discuss a discovery 11 system -- and' that was the only thing that we saw 12 noticed in the Commission's Notice about what this 13 negotiation was going to be about -- that we were
+
14 prepared to discuss that if it resulted in a discovery-15 enhancing system -- enhancing, meaning it made it easier 16 to do, easier on all the parties -- not that it made.a 17 greater scope or that you would end up with more 18 documents or anything like that, but that it would be an 19 easier process for the parties to engage in.
20 All of the parties declared that they would 21 negotiate in good faith and that they would be prepared 22 to compromise, and I think a great deal of compromise, 23 even on the part of the utilities, took place in that 24 proceeding.
25 The justification for the process was the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1 three-year time-period, and our position on that is that-
_ c, j
2 that is a legitimate justification, but we want to 3
remind the Commission that the Commission has a higher 4
duty than to merely meet the three-year time period, and 5
this needs to be taken into consideration,- in
~
6 considering the utility's position, that this system may 7
not get you there.
8 The more important duty which you have -- and 9
I apologize for reminding you about something which you 10 know all so well -- is'to protect the public health and 11 safety from radiological risks and, if it takes a longer 12 proceeding to do that, we feel that it is incumbent upon 91 13 the Commission to see that that interest is performed--
\\ y 14 that interest is protected, even though the three-year 15 time period wasn't legalistically met.
16 Now, we hope -- we recognize that you do have 17 a duty to attempt to meet that time period.
We feel it 18 was a legitimate justification for this rule.
19 The process almost worked.
In fact, I think 20 it's fair to say that it did work.
It didn't -- it 21 wasn't technically complete in that we had ono party who 22 wouldn't agree but, in fact, it worked in that it showed 23 the ability to compromise and resolve issues in this 24 highly contentious area, if the parties get down to it 25 and declare their willingness to agree to compromises.
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______________-__________m_____-_______________________-______m_.-_-__m__-_m
- _. _ - _ _ ~ _ _ _ _ _ _ _ _ _.
- -. ___ =__- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
82 1
There is one other. legal matter that relates
'2 to the ' process. that we have defined here, and that is 3
the right of the public to participate in this 4
proceeding.
The Nuclear Waste ' Policy. Act,
section 5
111(a)(6) says that " State and public participation is 6
important in the planning. of repositories, to. garner 7
public confidence in what you're doing".
8 That suggests that a system like this, even if 9
it brings in documents which you wouldn't ordinarily-10 bring in, and provides them and makes them available.to
-l 11 the public, let's assume even causes more parties to be 12 brought into the proceeding, is a valuable goal even if 13 it costs more time.
14 So, I think that you need to remember that 15 there are objectives of this that are realized by this 16 kind of a system,- which may be worthwhile even if the 17 three-year time period is brought into question because 18 of this rule.
And that is not to say that we agree with 19 the utilities.that this system will cost more time.
I 20 think that's really only going to be open to experience.
21 We'll be able to look back and know that but, at this i
22 p iac ture, to look forward and say it will cost more or 23 less time, I think, is difficult.
f 24 Next I want to address the issue of scope of G
25 discovery.
It's something that commissioner Curtiss NEAL R. GROSS court REPORTER $ AND TRANSCRIBER $
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asked about earlier and about which I.know he is W) -
2 interested, that all of you are interested.
j 3
The way these guidelines, topical guidelines 4
and the relevant ~ scope of discovery work is this.
You 5
have'a rule, a functional test, which is included in the
'6 definition of documentary material.
That's the 7
functional test, it has to be relevant or lead'to the 8
discovery of relevant information.
9 Then it refers over - to this list of topical 10 guidelines.
That list was developed primarily by Nevada 11 and the Environmental Coalition to present to the 12 Department of Energy, as a way of showing them what we
'('l 13 felt could be the universe from which relevant or
'; y 14 potentially relevant documents could'be discovered but, 15 if it's on the list but it doesn't pass the functional 16 test, it does not have to be admitted to the LSS.
17 So, just to look at the list and see the 18 breadth of the list doesn't answer how broad the system 19 is.
It's the functional test which really declares how 20 broad this system will be.
21 Now, we agree with Mr. Silberg and Mr. Kraft, 22 that there are documents in the system which, if which could be screened out, that the 23 screened out 24 system is probably not as large, the number of documents O
25 is not as great as the system has been sized.
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And one of the reasons that we agree'on that 2
is that Mr. Murphy and I participated in some digeovery 3
in the Ninth Circuit litigation against Department of 4
Energy a couple of years ago, in which we actually were 5
permitted to do discovery in the Department of Energy 6
documents in Las Vegas and here in Washington and, in 7
that process, we found a great deal of duplication.
We 8
found a great number of documents -- we had a list of 9
the subjects that were in the documents which we went 10 through.
We found a
lot of them were mere 11 correspondence on that topic, which wasn't really very 12 relevant.
There's a lot of fluff in those documents, l
/-
13 and I think a good screening system would screen some of 14 that out.
15 We did, early in --
16 COMMISSIONER CARR:
But you had to look at 17 each one of those to decide that.
18 MR. DAVENPORT:
An entire waste of time.
19 COMMISSIONER CARR:
But you had to look.
20 MR. DAVENPORT:
But we had to do it, yes, and 21 we would have been much better off, we could have saved 22 a great deal of time had we had some screening mechanism 23 to bring documents up on a screen and say, "Oh, that's 24 just a cover letter, correspondence that has the word in O
25 it that I'm looking for.
Throw that away".
So, this HEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RHoDE ISLAND AVENUE, N.W.
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kind of a system would have saved us quite a bit of. time (g
' (, )
2 in that process.
3 Another matter that.I'd like to talk about is 4
the question that-Commissioner.Curtiss raised, about if 5
you once get into this system as a potential party i
6 participating in the process, do you somehow bootstrap 7
your right your standing?
You get standing by 8
participating in the discovery system.
9 It was never the intention of the parties to 10 accomplish that.
I-think the rule specifically provides 11 otherwise, and I think you've heard that from other 12 witnesses here today.
.)
13 COMMISSIONER CURTISS:
Well, the section that 14 I was citing was the one that goes to intervention in 15 the proceeding, itself.
I understand that the statement 16 of considerations on the rules says that list of topical 17 guidelines should not guide is not relevant for 18 purposes of determining which contentions are admissible 19 but, if you look at the standing requirements and what 20 is required to be established at two phases in this 21 proceeding, I
think the rule itself effectively 22 accomplishes that.
23 Under 1008, for intervention in the LSS 24
- system, the pre-licensing phase, you are required to G
25 cite a topical guideline.
Well, that's the basis for NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RHopf ISLAND AVENUE, N.W.
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determining whether you.have standing to intervene.
- p 2
If an intervenor comes in and says "My topical 3
guideline" -
I'm' looking at 1008 (b) (1) 4 MR. DAVNNPORT:
Yes, I am, too.
5 COMMISSIONER CURTISS:
-- as determined in 6
reference to the topical guidelines.
I take that to 7
mean that the petitioning party has to say, "Here's the 8
topic chat I'm interested in".
So, just to take one, he 9
or she says, "I'm interested in population density along 10 any of all of the projected routes of travel, that's my 11 only topical. guideline that I'm interested in".
~
12
- Now, I
take it that P.h e purpose of the
( ']
13 language in 'the statement of considerations is to say, 14 even though we permit a party to participate in the pre-
-15 licensing LSS phase and to enter documents during this 16 entire phase, that fact. is not dispositive -- in fact, 17 it's irrelevant for purposes of determining his or her 18 standing in the proceeding itself.
19 And I
guess the provision that I had 20 difficulty reconciling that with is over in the 21 intervention section 1014 (c) (4), where the Board itself l
22 is directed to consider, in addition to the three 23 conventional tests for standing, number four, whether 24 the petitioner participated in the pre-licensing phase O
25 under 2.1008.
And it looks to me like that's a relevant HEAL R. GROSS COURT REPORTER $ AND TRAN5 Cal 8ER$
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['...
I.
87 f..'
~ of' tilts the L
-1 relevant factor to consider, and kind 2
balance or gives the person a leg up on intervention in 3
the proceeding, if he or she participated --
4 MR.
DAVENPORT:
That specific language was 5
added to avoid the opposite problem where parties laid 6
out of the discovery, only to come-in as a late 7
intervenor.
8 The purpose of that was to make sure -that 9
- parties, if they want to raise contentions down the-10 line, come'in early and participate and contribute their 11 documents into the records system.
I 12 Now, I agree with you that it's capable of
-13 being read, as you have, that it could be used as.a
-.~y 14 basis to bootstrap someone in who had merely been in the 15 earlier process,.but that was not the intention of the 16 negotiating parties.
17 COMMISSIONER CURTISS:
I don't want to get off 18 on a
tangent but, as I
read the Statement of 19 Consideration on that section, it seemed to me to say I think it cuts either way if a 20 that if a party 21 party cites a topical guideline and participates in the 22 pre-licensing phase let's
- say, national that's the only issue that the 23 transportation issues 24 Governor of, say, Vermont is interested in, and that's O
25 the one that's cited in the pre-licensing phase and NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RHOOE 1$ LAND AVENUE, N.W.
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j
+
1 standing is granted' I think that provision cuts in 2
favor of saying that the Board, the Hearing Board 3
constituted when the application comes in, should 4
consider that as a factor, and I read that to say if you 5
participated in the pre-licensing phase, that's a factor 6
in determining whether you have standing.
It's not 7
entirely neutral on that question.
8 MR. DAVENPORT:
It was intended to mean that 9
if. he failed to appear early, that that would work 10 against him later on.
11 COMMISSIONER CURTISS:
Okay.
I'll-go back and 12 look at it.
i f.l..
1'
""- "^'""" "':
3" * '" * ' "
s 14 testimony that you heard immediately prior, I think it's 15 a little risky to compare what we have here against what 16 exists in other litigation systems.
17 One problem is that in a number of those 18 instances which-were cited, you had settlement of those 19 cases.
It may have been that the parties -~ the lawyers 20
'in those cases decided they didn't want to go forward in 21 that litigation because the document base was so bad 22 they wouldn't know how to handle the case.
I'm not 23 suggesting that, in fact, happened, but the other 24 thing is, because those litigations involved document O
25 systems which developed out of discovery as opposed to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N.W.
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89 1
developed into discovery, they're really O
(,,/
2 distinguishable.
3 Those were documents which lawyers found in 4
hard copy and said, "We think they need to be in the 5
system, we'll put them into the document management 6-system".
Here, what we are trying to do is define the 7
universo of documents so the documents can actually be 8
found readily, and thereby join the issues for a 9
potential litigation.
So, I think it's -- it may be 10 apples and oranges, to try to compare other litigation 11 systems.
12 I guess that's all I have except to say thank f]
13 you for letting us express our point of view.
Mr.
%/
14 Murphy, who was present during all of the negotiation 15 and who is very rarely inclined to sit on his hands and 16 say nothing --
17 (Laughter.)
18 COMMISSIONER ROBERTS:
He's not a potted 19 plant?
20 MR. DAVENPORT:
-- I'm sure would like to say 21 a few words.
22 MR. MURPHY:
I have nothing to add to --
23 (Laughter) 24 CHAIRMAN ZECH:
Mr. Murphy is an old friend, O
25 Mr. Davenport; he's been here many times, and we agree NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 rho 0E 15 LAND AVENUE, N.W.
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with you, though.
He would-speak up if he wanted to,
\\,.,
2 I'm sure.
3-MR. DAVENPORT:
I know that all too well.
4 CHAIRMAN ZECH:
So do we.
I 5
(Laughter) 6 CHAIRMAN ZECH:
Commissioner Roberts, do you 7
have anything else?
8 COMMISSIONER ROBERTS:
No.
9 CHAIRMAN ZECH:
Commissioner Carr?
10 COMMISSIONER'CARR:
No.
17 CHAIRMAN ZECH:
Commissioner Curtiss, anythir-12 else?
(
)
13 COMMISSIONER CURTISS:
Just one quick, final 14 question.
In the previous presentations, it sounded to 15 me like there were two schools of thought on the topical 16 guidelines.
Bill indicated that in certain respects, I
17 they went beyond material that is relevant to the 18 proceeding, or might be relevant, and the purpose for 19 that was to be overly-inclusive for the sizing of the 20 DOE system. In other words, we need to know how many 21 topics we've got for internal agency management 22 purposes, and independent beyond relevancy purposes, so 23 that DOE can go out and size the system, find out how 24 big of a computer we need.
1 0
25 I guess the other school of thought maybe NEAL R. GROSS couaT afroaTras AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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-91 1
reflected by Mr..Saltzman is that the topical, guidelines
\\C 2
really do have more to do with relevance, but with the 3
caveat that we need to state that there has to be a 4
specific nexus between the topical guideline and the
'5 suitability of Yucca Mountain under Part 60.
6 Do you come down on either side of that and, 7
with respect to Mr. Saltzman's point, would you agree 8
that you need a nexus or, in your judgment, do the 9
topical guidelines define the topics that have to be 10 addressed in DOE's application?
11 MR. DAVENPORT:
Well, let me say preparatory 12 to answering your question, that the way this kind of a 13 list gets developed if you were in normal discovery, if l
14 you're writing interrogatories or a request for l
{
15.
production of documents, whatever you were doing, you 16 would attempt to define questions which were 17 dragnetting, that went out and got whole masses of 18 subject matter categories of documents and brought them 19 in so that you could look at them and distinguish which 20 ones you didn't need.
21 There is some of that logic in the way these 22 lists were developed.
DOE asked us to make a list which 23 could -- what we thought would be all-encompassing of 24 potentially discoverable documents.
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1 relevant or could lead to the development of relevant p
/
2 information, but it's possible that within that list, i.
)~
\\
L 3
any one of them might, in-fact, have some documents in 4
it which would meet the-test.
5 Now, as to the question of whether there must 6
be a nexus,'yes, there must be a nexus, but that nexus 7
is relevancy, at the point of determining what is the i
8 record base.
9 Now, when you get into the actual proof of 10 evidence, you get tighter tests than that, but at the 11 discovery point you are looking at the standard Federal 12 Rules test, which we tried to incorporate into this 13 rule.
14 The nexus, though -- and this is a point that
- 15 I don't want to fully - discuss because it's something 16 that we need to do in a different setting -- the nexus 17 is not to whether Yucca Mountain meets 10 CFR 60 18 requirements.
In our opinion, Nevada's opinion, the 19
. question is whether it's relevant to the Commission's 20 duty to find out whether this system, including this 21 repository, is going to work in such a way that it 22 protects the public health and safety, which gets us 23 into the system licensing question, which is, I think, 9
24 perhaps bigger than just the 10 CFR 60 question.
In O
25 other words, I want to answer the question consistent HEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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with Mr. Saltzman, except to distinguish that we look at
.e~. '
l
.g -}'
/-
2 the overall question as somewhat bigger.
3 COMMISSIONER CURTISS:
So, you really do l
4 envision the-topical guidelines as substantively
]
5 important.
The topical guidelines establish the topics 6
that have to be addressed in the application'(a) and (b) 1 7
that are contestable in the proceeding.
i 8
Take a specific example.
Mr.
Saltzman said 9
that there ought to 'be a nexus that says that the 10 topical guideline -- all the topical guidelines have to 11 relate to the suitability of Yucca Mountain under Part i
12 60.
And.I gather at an early point in the' discussions,
.i 9
13 that actual formulation was discussed, but the reference-
~
J 14 to Part 60 was dropped, which leaves the question in my 15 mind as to whether -- let's say, transportation issues, 16 where we clearly consider those issues in the. DOT 17 context, with DOT, but they are not Part 60 issues.
18 What I'm trying to get a feel for is whether 19 you envision these topical guidelines kind of setting 20 the framework for a systems approach where, in the I
21 repository proceeding, you all would like to see us 22 address not just the suitability of Yucca Mountain under 23 Part 60, but the transportation issues, the MRS-related 24 issues, the spent fuel burnup rate issues, cask design, O
25 routing --
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MR. DAVENPORT:
Well, Commissioner Curtiss, it
_m Ir 2
at least leaves that option open to you.
It doesn't 3
foreclose your ability to choose a systems approach.
If 4
you start today, knocking items out of the topical 5
guidelines on the basis that
.e would never want to w
6 consider this, you are cutting your options.
7 We would suggest, at this point, if you are 8
defining the support for your decisionmaking, that you 9
define it in a way which is encompassing enough that 10 your options remain' open until you decide really what 11 issues you want to litigate, what issues are relevant 12 for you to evaluate.
.}
13 We think -- we are always going to be 14 recommending to you that you look at the broadest 15 possible question because of our client's interest, but l
16 that question you can leave open to yourself if you have 17 your discovery mechanism be broad.
18 COMMISSIONER CURTISS:
But for some of those 19 issues, it's not the Commission that would foreclose the 20 litigation of those issues by striking them from the 21 list of topical guidelines, it's the Congress that has 22 said, for example, that you don't consider alternatives 23 to Yucca Mountain, and you don't consider alternatives 24 to geologic disposal, yet both of those topics show up O'
25 on the topical guidelines.
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< ~ ' ~
1 And I guess the question that I have is, if
'[v 2
it's for the system as an internal document management 3
system, I can understand the need to say.that, but if 4
the list of topical guidelines has much more significant 5
litigative significance, then the list.--
6 MR.
DAVENPORT:
The topical guidelines will 7
not be asserted, could not be asserted, as a basis to 8
raise issues into the proceeding which were not proper I
9 to be there, by virtue of the issue. which is under i
10 adjudication.
You can't' expand the scope of the 11 proceeding just because it's on the topical guideline i
12 list.
13' You have to be able to prove that it's 14 relevant to the question at issue in the proceeding in j
15 order to put documents into the system or present them 16 in. evidence later on.
And the scope of that proceeding 17 is defined, of course, by this body.
I 18 COMMISSIONER CURTISS:
I guess one final 19 comment, not a question, really.
The difficulty that 20 I've had with the topical guidelines -- and they really J
21 do consist of two lists; the list that you all prepared 22 which is introduced by,
- really, almost a verbatim 23 reference to Section 112 in the guidelines, and the list 24 that EDF prepared which is pretty much the table of 25 contents from the environmental assessments.
Both of NEAL R. GROSS l
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those references, the EAs and the 112 guidelines,- it 2
seemed to me, were relevant and significant. for the 3
decision that was taking place at the time.
4 Take the EAs and the table of contents.
There 5
are a number of topical guidelines there that go to the l
6 comparison of nine sites that were under consideration l
7
- and, for purposes of the EA, it would be wholly
)
8 appropriate to say "We're going to look at alternative 9
sites".
-In fact, the Congress, at that time, had l
l 10 directed the Commission to look at alternate sites, but l
l 11 since the EAs were prepared, and those EAs are 12 referenced here, Congress passed the
'87 statute that 13-
-said you don't consider alternative sites.
14 So, I guess that the trouble that I've been 15 having is the topical guidelines refer back to a 16 document that preceded the Congressional decision 17 selecting Yucca Mountain.
I guess I wonder how relevant 18 a lot of those questions are, given the 1987 action.
\\
19 MR.
DAVENPORT:
- Well, let me try to just 20 approach it quic':ly and make two points, Commissioner 21 Curtiss.
I think we can't get away from focusing on 22 what the topical guidelines were drafted for originally.
23 They were drafted at DOE's request, virtually, to help you know, I like to say the young kids who are 24 the O
25 loading this system, to give them some key in dealing NEAL R. GROSS COURT REPORTER $ AND TRANGCRISER$
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.]
1' with this so-called 40-million universe of documents--
2 and we don' t agree that 40 million is the correct' 3
figures,. we think 'it 's smaller than that but if we-4 are to take 40 million pag'es of documents, the DOE asked 5
for categories of documents which would assist the 6
people who are loading the system, in making the first 7
cut at whether or not a document was to go in or go out 8
of the system.
9
'If.you look at the document and it doesn't fit
~
10 anywhere within the topical guidelines, it's out.
Put 11 it over to the left-hand side.
If it fits somewhere 12 within the-topical guidelines, you put it on this side, 13 the right side, and then look at it and, if, even though 14 it fits within a topical guideline, it discusses the 15 impact of beta radiation on swamp grass in Louisi.ana, 16 it's out.
It goes back over to the left because it is 17 obviously not relevant to either a Part 60 suitability 18 determination with respect to Yucca Mountain, or the 19 larger system licensing approach that we at an 20 appropriate time, the State of Nevada at an appropriate 21 time, will urge the Commission's consideration of, but 22 take one other consideration.
23 If, at some point in time, someone -- either 24 your successors, as Commissioners, or an Atomic Safety will establish the 25 and Licensing Board panel NEAL R. GROSS Covet mEpoaTEa5 AND TRANSCRIBERS 1323 nHo0E ISLAM 0 AVENUE, N.W.
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1-parameters, the relevancy parameters of a licensing i) '
2 proceeding will determine what issues will be 3
' litigated and which will not be litigated.
4'
- _If, at that point in time, a panel or a future 5
Commission decides that a systems licensing approach, 6
for example, is. appropriate, and may even be called for 7
under the Nuclear Waste Policy Act, and you have not 8
loaded the system with the documents necessary to manage l
9 such a
licensing proceeding, you have rendered 10 absolutely hopeless any chance. of ever meeting the 11 three-or four-year Congressionally mandated deadline.
12 I f., on the other hand, you have loaded the
-13 system with some documents which may then, at. the
. O 14 licensing stage, prove to be either irrelevant or fail 15 to meet the more stringent test of admissibility, you've 16 spent a little extra money, we grant you that, and 17 you've taken a little more time, which there is plexity 18 of in this process right now, but you have given 19 yourself more confidence that your staff, Nevada staff, 20 Department of Energy staff, potential interveners, have 21 had a chance to look at everything produced in this 22 process, and you have a system in front of you which at 23 least makes it possible to achieve the three-or four-24 year deadline.
Without such a system, in our judgment 1 ('
i 25 at least, it's absolutely hopeless.
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,~.
1 CHAIRMAN ZECH:
Thank you very much,
-(,)
2 gentlemen, appreciate it.
3 MR. DAVENPORT:
Thank you very much.
4 CHAIRMAN ZECH:
We'll cal.1 on the Coalition of 5
Nevada Local Governments, Mr. Bechtel, please.
6 MR.
BECHTEL:
Thank you very much, Mr.
7 Chairman and members of the Commission.
My name is 8
Dennis Bechtel.
For the record, I'm a Planning 9
Coordinator with the Department of Comprehensive 10 Planning in Las Vegas,
- Nevada, and I,
along with i
11 representatives from Nye and Lincoln Counties, 12 participated on the committee considering this ruling.
13 I'd like to take this opportunity, on' behalf
{
14 of the Coalition of Local Nevada Governments, to commend 15 the Nuclear Regulatory Commission and staff, for its 16' initiation of the negotiated rulemaking process designed 17 to develop procedures to govern the high-level waste 18 licensing proceeding, including the use and development 19 of an electronic information management system, which 20 has been designated as a licensing support system.
21 I'd also like to commend the Conservation 22 Foundation for conducting the negotiated rulemaking 23 sessions.
I think they did an excellent job.
24 As representatives from a coalition of units I
25 of Nevada governments, we have appreciated the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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8 1
opportunity to. participate in the negotiated rulemaking I
i (w, 2
process.
t 1
i 3
As you are ' aware,
the Nuclear - Waste Policy 4
Amendments' Act of 1987 provided a stronger role for 5
local governments within the Nuclear Waste Policy Act.
6 The site county, which is Nye County, and adjacent i
7 counties, which are Clark and Lincoln Counties, have 8
been designated as affected local governments.
9 The ability to obtain direct funding from 10 Department of Energy to conduct independent-studies 11 determined potential impacts on the proposed repository 12 at Yucca Mountain on our respective communities.
These
("or'i 13 communities, of course, are adjacent to the repository m2 14 site.
15 The ' Coalition of Nevada Local Governments 16 believe that the negotisted rulemaking process has been 17 extremely productive.
Although a consensus was not 18 reached, negotiations were entered into in good faith by 19 all parties, and it is important to note that all but 20 one of the parties, including groups of widely divergent 21 ~
views and interests, were able to substantially agree on 22 provisions of the proposed rule.
23 There was also almost a consensus concerning 24 the ability of the licensing support system to~ assist S9 25 potential participating parties in obtaining sufficient HEAL R. GROSS court REPORTERS AND TRANSCRIBERS 1323 rho 0E ISLAND AVENUE, N.W.
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101 11 inf ormation. to meet the. health,. safety and other 3
2' concerns of all participants'-respec'4.ve constituencies.
3 We also feel that this, as well, will meet the-i 4
three-or ' f our-year time-f rame. of the licensing, as 5.
specified in the Nuclear Waste Policy Act.
I 6-The Coalition of Nevada Local Governments have 7
agreed, through consensus, that the proposed rule in LSS 8
would offer a vehicle to begin to meet the requirements 9
of~our constituents and the provisions of the Act.
And
-10 we, ' therefore, with the majority of the negotiating 11 committee, agree to the draft text of the proposed rule.
12-We are, of course, sensitive to the concerns
~
(
13 of the Coalition of Industrial Groups on the negotiating 14 team.
There is no doubt that the costs and a timely 15 adherence to the requirements of the Nuclear Waste 16 Policy Act, as amended, to resolve what is becoming an 17 increasingly significant national issue, are important.
18 Ratepayers that, of course, are providing the 19 funding for the waste disposal program should be assured 20 that their funds are being employed prudently to resolve 21 the complex problems associated with the determination 22 of whether the Yucca Mountain site is suitable as a 23 repository for the permanent storage of high level
'24 radioactive waste and spent fuel.
O 25
- Likewise, the extremely tight time frame i
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I 102
- I. *
.1 available to resolve licensing issues necessitate the
)
2 ability to access and analyze considerable amounts of 3
information in an expeditious manner.
4 The three-or four-year time frame is, indeed, 5
ambitious, in light of the highly unknown nature of many 6
of the issues associated with the storage of spent fuel 7
and high-level waste.
8 The time frame allotted may be especially 9
ambitious, since the licensing nuclear power plants in 10 what is generally acknowledged as a known technology, 11 has taken years longer.
12 With these potential-shortcomings 13 acknowledged, however, the Coalition of Nevada Local
- s_.-
-14 Governments support the draft rule being considered by 15 the Commission today, for the following reasons.
16 The LSS provides the opportunity for all 17 potential parties to have access to the complete text of 18 information relative to the health and safety concerns 19 of their respective constituents.
This, we feel, is 20' superior to indexed information, perhaps indexed by 21 other parties who may or may not be able to abstract or 22 synthesize the information sufficiently to meet 23 anticipated and unanticipated queries of all parties.
24 The LSS, as envisioned, will make data 0
25 available, a complete forum that will permit all HEAL R. GROSS COURT REPORTER $ AND TRAM 5CRISERS 1323 RHOOE ISLAND AVENUE, N.W.
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1 potential users to have a complete record of site r%-
61 2
characterization activities.
3 Having. a system-developed and with relevant 4
inf ormation. input before the licensing ~ application 5
process begins, provides the early opportunity for 6
interested parties to obtain information end thereby 7
determine the relevance of issues in a manner to meet 8
.their respective needs and concerns.
9-We view this as being. consistent with 10 achieving the requirements of the Nuclear Waste Policy 11 Act,'
which were formulated to ensure the expeditious 12 but -- I'd like to emphasize -- safe siting of a nuclear 13 waste repository.
14 The cost issue as posed by the nuclear 15 industry, as I indicated before, is important.
There 16 will undoubtedly be substantial costs in any system that 17 is required to manage the extremely large quantity of 18 information necessary to evaluate the issues associated 1
19 with the long-term storage of nuclear waste.
Any such 20 effort will be labor-intensive and costly.
21 Likewise,.since the issues involved can be j'
22 characterized as primarily health and safety concerns, i
1 23 considerations of cost-benefits should go beyond mere j
24 accounting analyses and should enable a full airing of l
25 the complex and list currently unknown questions of l
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104 4
1 siting-of high-level. waste over an almost 2
incomprehensible time period.
To the residents of an 3
area that may have to live with the results of a 4
repository.with potential problems, this is significant.
5 The-technical questions surrounding the 6
establishment of the LSS will no doubt be challenging.
7 Unless Congress decides to relax the time requirements 8
of the licensing process, which they should,
- indeed, 9
consider given the uncertainties of the task at hand as 10 well the need to ensure that the job is performed 11 properly -- which, by example, they have done for other 12 problems, such as the Clean Water Act, and was generally 13 acknowledged as known technology, the alleviation of 14 water pollution control -- there will be a need to make 15
-available large amounts of often highly technical 16 information in a timely manner.
17 Because the most important time is needed for 18 analysis of the complete record, time should not be 19 wasted in actually trying to obtain the information.
20 Information should be obtained in a complete form as 21 quickly as possible.
The LSS, we feel, offers this 22 capability.
23 In addition, I would like to speak to the 24 general topic section.
The Coalition of Nevada Local 25 Governments also supports the issues defined within the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHoDE ISLAND AVENUE, N.W.
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105 e
1 topical guideline section, as relevant material that b
N../
2 should be submitted and considered by LSS participants.
3 The characterization of a repository, through 4
respect to EIS preparation and other issues associated 5
with the site characterization, would be required to 6
evaluate a host of other issues that are important as 7
the analysis of the site.
8 Consideration of transportation of the waste 9
as well as the effect on communities are all deserving 10 of consideration as part of the total system of 11 repository development.
12 To summarize, the Nevada Coalition of Local h
13 Governments believes that the LSS system offers the N... -
14 opportunity to meet the no doubt challenging needs of 15 achieving licensing within the three-or four-year time 16 frame defined in the Nuclear Waste Policy Act.
17 There is no doubt that there will be technical 18 challenges of development of such a system.
The 19 complexity of the system as well as the large quantities 20 of information will provide that challenge under any 21
- system, 7
f 22 The important question, though, is that all 23 the necessary data to properly evaluate the Yucca 24 Mountain site be available.
There should be no O
25 shortcuts taken on this important licensing question.
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e 106 1-With' that, I would like to conclude my
-1 i d,-
2 comments, and appreciate the opportunity to express
]
~
3 these views.
4 CHAIRMAN ZECH:
Thank you very much.
5
-Questions?
Commissioner Roberts?]
6 COMMISSIONER ROBERTS:
No.
7 CHAIRMAN ZECH:
Commissioner Carr?
8 COMMISSIONER CARR:
No.
9 CHAIRMAN ZECH:
Commissioner Rogers?
l 10 COMMISSIONER ROGERS:
No.
11 CHAIRMAN ZECH:
Commissioner Curtiss?
12 COMMISSIONER CURTISS:
No.
(
13 CHAIRMAN ZECH:
Thank you very much.
We 14 appreciate it.
15 MR. BECHTEL:
Thank you, i
16 CHAIRMAN ZECH:
We will call on the National 17 Congress of American Indians, Mr.
Tousley and Ms.
18 Chehak.
Is she with you?
19 MR. TOUSLEY:
No, she's not.
20 CHAIRMAN ZECH:
This is Mr. Tousley, right?
21 MR. TOUSLEY:
Yes.
22 CHAIRMAN ZECH:
Thank you.
You may proceed.
23 MR. TOUSLEY:
Mr. Chairman, Commi ssioners, my 24 name is Dean Tousley.
I'm an attorney with the law firm 25
- Harmon, Kern and Tousley, here in Washington.
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l 1
pleased to have this-' opportunity to address 'you on 2
behalf of the National Congress of American Indians, i
3
- about the~. proposed-LSS rule.
I apologize that my i
4 colleague, Gail Chehak, was unable to be with us. She 5'
was.taken ill.
6 I was privilege to represent, initially, - the 7
Yakima Indian Nation and, later, the National Congress-8 of American Indians, as a member of the Commission's LSS 9
Advisory Committee.
10 I'd like to express to you NCAI's appreciation 11 for being included in the negotiated rulemaking process 12 for this proposed rule.
We sincerely.believe that-the 13 process was productive and ultimately successful, s
14 notwithstanding the absence. of consensus due to the 15 nuclear industry's.non-acquiesence in the outcome.
16 We can think of no greater testament to the 17 success of the negotiated rulemaking process than 'che 18 fact that interest ranging from the license applicant to 19 the project's most vociferous likely opponents and, 20
. including the Commission staff, stand before you today 21 in support of the proposed rule.
22 I believe you would be hard-pressed to 23 identify another incidence of such broad support for any
~
24 Commission undertaking.
25 The lone exception to the consensus which the NEAL R. GROSS covet nepoetens AND TRANSCRIBERS 1323 RHoDE ISLAND AVENUE, N.W.
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1 negotiated rulemaking sought to achieve, is the position f
X-2 of the nuclear industry.
They have decided to oppose 3
the proposed LSS rule on the basis of cost and the 4
absence of' additional constraints on the rules of 5
practice.
6' The utilities argued that the-LSS will 7
probably cost much more than the $200 million estimated 8
by DOE.
It would be foolhardy to rule out the 9
possibility of cost over-runs on such a large project, 10 however, these costs must be considered in relation to b
11 the overall cost of
',he waste program, in which context 12 they are relatively insignificant -- about 1 percent,
(
)
13 based on an overall program cost estimate of S20 14 billion, which may now be low.
15 It is on the benefit side of the analysis that 16 we most differ with the position of the utilities.
S 17 Whereas the utilities perceive that achievement of the 18 three-year licensing period is the only conceivable 19 benefit of an LSS system, potential interveners believe 20 that an arbitrary limitation on the Commission's 21 licensing review was ill-advised.
22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 rho 0E ISLAND AVENUE, N.W.
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109
_ j.*
)
1 Public confidence. in the government's D.
d 2
repository program would be hard-won under even the most.
3 ideal circumstances.
Requiring the Commission to make 4
this unprecedented complex and contentious determination 5
in such a short time unnecessarily undercuts both the 6
reliability of-the Commission's license review and 7
public confidence in that review.
8 That is too high a price for the couple. _of 9
years that might be saved in getting a repository-
-10 licensed.
In short, we believe that achieving an 11 acceptable, technically-successf ul repository is 12 infinitely more important than having a repository by:
13 some arbitrary, near-term date.
However, we recognize 14
-that the three-year requirement is law, which - the 15 Commission must try to comply with, and we support the 16 proposed LSS as a legitimate effort in that direction.
17 Like DOE and the NRC staff, we believe that a 18 competently implemented and managed LSS definitely will E
19 shorten the repository licensing period, by reducing the 20 need for traditional time-consuming discevery and 21 speeding communications.
22 If DOE is correct in its projection that each
)
1 23 year of delay in the repository licensing adds about 24
$200 million to the cost of the program, the system need O
25 only save ene year in order to be cost-effective.
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110 j
1 The LSS benefit which is vitally'important to-2 potential. interveners and of no interest to ~ the 3
- industry, is its potential to facilitate the 4
thoroughness of prtgram reviews.
5 We view the NRC licensing-for a repository to 6
be more than a procedural hoop through which DOE must 7
jump on its way to repository waste acceptance.
Indian 8
- tribes, states, local governments, and citizens' 9
organizations that might become interveners in this 10
- process, have a responsibility to their respective 11 constituents to ensure that the resolution of serious 12 questions about the suitability of the proposed
(
13 repository site is achieved as meaningfully and 14 correctly as possible.
15 In other words, our primary interest in this 16 entire program, one which is manifestly consistent with 17 the public
- interest, is to make sure that the 18 Commission's final determinations are as nearly correct 4
19 3 as possible.
20 To discharge this responsibility, you must be 21 intimately involved in the review of the program.
To 22 effectively participate in program reviews, perspective 23 interveners must have excellent early access to the i
24 program's information base.
They do not now have even 25 marginally adequate access to that information.
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h 111
. J. -
1 The LSS, even a flawed, incomple te : LS S,
2 promises to vastly improve that access.
The most L
3 important aspect of that access improvement '. is the 4
proposed full text search capability of the LSS.
That 5
is where the utilities' alternative electronically 6
indexed microfiche system falls far short of what is 7
needed.
8 Unfortunately, the usefulness of such systems I
9 is far too sensitive to the quality of the indexing.
10 There needs to be close correspondence between the 11 thought processes of the indexer and those of the 12 subsequent searcher, for the latter to find the IT'.'*j 13 materials he seeks in an index-only system.
14 And I would ask you to consult your own Office 15 of General Counsel on that issue, and ask them whether
+
16 they prefer doing research on your own decisions, using 17 the indexes which are published, or using LEXUS, and I
-18 think most of them will tell you that they would much 19 rather use LEXUS, which provides them the. capability to 20 search the full text of all those decisions.
21 Full text search provides much greater power 22 and flexibility in accessing relevant information.
- And, 23 indeed, the NRC staff provided information in support of 24 that conclusion, in support of the rule.
25 We-conclude that the proposed LSS passes cost-NEAL R GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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s
.: o 112 1-benefit analysis. because the ' key benefit of ' improved 2
access to programmed information would certainly be 3~
served, and the costs of the LSS are not a significant 4
fraction of the overall waste program costs.
5 We also support the conclusion that the LSS' 6
would shorten the' licensing period for a repository.
7 Key-aspects of the waste
- program, in 8
particular planning for and ' implementation of site 9
characterization, are taking place now.
Because the 10 foundation for a repository license application. is 11 already being laid, the benefits of the LSS are sorely 12 needed by the perspective parties, including DOE and the (3
13 NRC staff, as soon as possible.
Q.)
14 In light of this, the assertion by DOE in its 15 written clarifications and again today, that it does not 16 now foresee LSS availability until late 1992 or early l
17
'93, is very troubling.
We do not believe that you j
18 require four years for initial implementation of this 19
- system, particularly since the whole licensing 20 proceeding is supposed to be completed in less time than 21 that.
22 The major premise of this whole system is that 23 the parties will be in essential command of the 24 program's information base, by the time the application O
25 is docketed.
Obviously, an LSS which is available only NEAL R. GROSS court REPORTER $ AND TRANSCRIBERS 1323 RHoDE ISLAND AVENUE, N.W.
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113 1-a few months prior to. docketing cannot possibly achieve 2
^that objective.
1 3
Industry recommends numerous other licensing
{
4 reforms beyond the scope of the LSS, which they claim 5
are necessary to achieve the three-to four-year 6
licensing.
These are the.same reforms which the 7
industry has been seeking in NRC licensing procedures i'
8 generally, for the past decade or more, which would have 9
the effect of making public participation in NRC 10 licensing an exercise in utter futility.
11 The industry acknowledges that the proposed 12 LSS rule already places several. new restrictions on M
13 intervention, and those have been highlighted today by
.w 14 Mr. Olmstead.
In large part, they are there because of 15 the industry's insistence in the negotiated rulemaking 16 process.
NCAI and other part'ies reluctantly agreed to 17 these additional restrictions, in light of the 18 availability of the LSS and the countervailing benefits 19 it would provide.
20 We vigorously oppose any further restrictions 21 along the lines suggested by the industry.
Indeed, as 22 was pointed out by the State of Nevada, we agreed to the l
23 proposed rule as a whole package.
We dealt with 24 restrictions on intervention as part of the
-25 negotiations.
We fought hard to limit restrictions on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHoOE ISLAND AVENUE, N.W.
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things like threshold 'for contentions, threshold for-f.
2 admitted additional' contentions -- amending' contentions,
. y 1
3 rather -- the scope of discovery.
Those were-some of 4
the things that were the most important to us, and we 5
agreed to the way they were resolved in the proposed 6
rule, and would feel that we have not been well dealt 7
with if the Commission decides to take those aspects out 8
of this rulemaking and deal with them separately.
9 We believe meaningful participation in the 10 Commission's licensing activities enhances public 11 acceptance of the Commission's discharge of its 12 responsibilities to protect public health and safety.
13 Ultimately, we are convinced that this J.
14 enhanced acceptance is more valuable to the proponents 15 of the repository, than would be a couple of years they 16 might save by unduly curtailing participation.
17 To conclude, the same considerations which led 18 the Commission to undertake this rulemaking by 19 negotiation -- that is, that the resultant more thorough 20 participation would result in a better and more should similarly lead the 21 acceptable draft rule 22 Commission to reject the nuclear industry's position in 23 promulgating the final rule.
24 The proposed system promises to lead to more O
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______.___________________________.___}
o 115
~1 process,- as well as more' efficient-and ef f ective
~
.a.
' C.,Y.
-2_
. management of the vast quantity of information required 3
.for repository licensing, by all parties.
4 NCAI. urges the ' Commission to ' stick. with the 5
result 'of the rulemaking negotiations,.and promulgate 6
the final rule as proposed.
That proposal is acceptable 7
to DOE, the agency with primary waste. program-8 responsibility, and the license applicant, and the'NRC 9
staff, which is most familiar with the needs of the 10 Commission's licensing process.
That strongly suggests 11 that the' industry's coacerns do not merit rejection of 12 the LSS as proposed.
(~)-
13 CHAIRMAN ZECH:
All right.
Thank you very 14 much.
Any questions?
Commissioner Roberts?
15 COMMISSIONER ROBERTS:
No.
16 CHAIRMAN ZECH:
Commissioner Carr?
17 COMMISSIONER CARR:
No.
18 CHAIRMAN ZECH:
Commissioner Rogers?
19 COMMISSIONER ROGERS:
No.
l 20 CHAIRMAN ZECH:
Commissioner Curtiss?
21 COMMISSIONER CURTISS:
No.
22 MR. TOUSLEY:
May I add something?
23 CHAIRMAN ZECH:
Yes, certainly, go ahead.
24 MR. TOUSLEY:
In response to a comment by the 25 representatives from the nuclear industry, they NEAL R. GROSS court REPORTER $ AND TRANSCRIBERS 1323 RHoOE ISLAND AVENUE, N.W.
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suggested a possible unwieldiness from a full text
,mV 2
search system of the' scope being~ contemplated here, and j
3 the idea was laid out that you put in a search term and 4
you get back 20,000 hits-and'then you have to go look l
5 through all of -- the full text of.all those documents.
j 6
And I'd just like to explain that that's not 7
really how it would work.
You put in a search term.
8 You get back 20,000 hits.
You add an additional 9
restriction.
You say "and between these states", and 10 you see how many hits that gets.
Say, that knocks it 11 down to 8,000.
That's still too many.
You say "and",
12 add another subject heading.
That knocks it down to 13 1200.
Then you say "and authored by one of these 14 parties".
That knocks it down to 250.
15 All right.
At this point, it's worth looking 16 at the headers of those documents.
You can look at the 17 headers on the screen.
Look at the ones that look 18 relevant to you.
You might decide, well, a lot of these 19 still don't look relevant, but I can't tell from the 20 header.
Let's look at the key words in context.
Then 21 you say, "Show me these 250, or some lesser number, of 22 documents, with the key words I've searched for in 23 context in the full text".
That shows you a paragraph 24 or two on either side of your search terme, and you can O
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you're getting something that's relevant to you.
j 2
All of these are things that are available 3
today on LEXIS.
It makes doing legal research an 4
entirely different ball game more efficient, more 5
effective than it was before.
I don't think any lawyer 6
who has taken the time to learn and use LEXIS, would 7
choose to go back to the system where they had to rely 8
on headnotes in the USCA or the Federal Practice Digest, 9
and not ever use LEXIS.
10 People who know LEXIS use it, and that is the 11 kind of functional capability that we're looking. f or 12 here, that will make it possible to save time in this 13 proceeding, that will make it possible for your staff to
]
14 do what they have to do in the short amount of time they 15
- have, and will make it possible for states, Indian 16 tribes, and other affected parties, to feel that they 17 are meaningfully participating in this proceeding.
18 CHAIRMAN ZECH:
Thank you.
19 Commissioner Curtiss, did you want to ask any 20 other questions from the assembled group, or have you 21 have a chance --
22 COMMISSIONER CURTISS:
- Well, I do have a 23 number more questions to cover, but due to the lateness 24 of the d a y.,
I do want to say that I thought the g
M 25 presentations were all stimulating and -- certainly, for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER 5 1323 RHODE ISLAND AVENUE, N.W.
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.r 1
me.
I really enjoyed the presentations.
I want to i
')
2 thank Mr. Bellman, for the effort that he's contributed q
v 3
to this process.
It's the first time that I've been 4
involved in a negotiated rulemaking with the Commission, i
5 and I must say I've found it most stimulating, very 6
helpful.
I l
7 CHAIRMAN ZECH:
- Then, if there's no other' 8
comments from the presenters, I,
too, Mr. Bellman, would 9
like to thank you very much for your participation as
[
10 Facilitatory.
Would you care to make any brief comments 11 while you're here with us today?
i 12 MR. BELLMAN:
Thank you for the opportunity.
i 13 CHAIRMAN ZECH:
Thank you v'ery much.
14 Let me thank all of you who participated on 15 the negotiating team, as members, not only for your work 16 on the team, but also for being here today and 17 presenting us your views.
I can assure you the 18 Commission appreciates the work all of you have done in 19 this negotiated rulemaking.
20 I mentioned at the outset of the meeting that l
21 this rulemaking was but one of the measures the i
22 Commission must take if we are to complete the 23 repository license review in the time that's been given 24 us, but we are also considering a number of other future
.,s 25 rulemakings that will be designed to resolve significant NEAL R. GROSS court REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C.
20005 (202) 232-6600 i
119 l
1 technical issues. ir. advance of receiving DOE's license (fp.
t/.
2 application.
3 I'd also _ expect that the commission will be 4
considering further changes to our rules of practice, to-5
'further streamline'the licensing process, while meeting 6
our primary. responsibilities which is to conduct, in 7
this case, a thorough safety review of the repository 8
-license application.
9
- Now, the Commission is well aware of our 10 public health and safety responsibilities.
This,.I'm 11 sure
--.and future Commissions, too will always be of the special trust and 12 keenly aware of and f' '.
13 confidence that's placed in us by the American people, d'
14 for their_public health and safety.
j l
15 We intend to keep that in mind as we go 16 through this process, as well.as we do all of our other 17 processes that come to us on a daily basis.
Public 18 health and safety is our primary responsibility.
We 19 intend to do the job, and we intend to do it right.
I'm 20 sure future' commissions have the same will have the 21 same views, but I do feel that this negotiated 1
f 22 rulemaking has been a very important process.
23 We have tried to bring people together.
You 24 have gotten together.
You have worked together.
You've j
25 tried hard to work out the differences.
You have worked NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C.
20005 (202) 232-6800 i
1
,c.; :,
120 c,
1 out~ differences in most cases, it would appear.
And the
- fy (f
2 fact that-it wasn't entirely satisfactory to the 3
industry and utility group is well presented here today, 4
but we will take into consideration all we've heard and, 5
hopefully, be able to move forward with some kind of a 6
licensing support system that will', indeed, allow us to 7
exercise those responsibilities
- that, again, the 8
American people place in us, with that special trust and 9
responsibility.
10 Are there any other comments from m'y fellow
.11 Commissioners',
12
-(No response.)
N
)
13 If not, we stand adjourned.
We thank you very 14 much for your fine presentations.
15 (Whereupon, at 4:25 p.m.,
the meeting was 16 adjourned.)
17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE 15 LAND AVENUE, N.W.
(202) 234-4433 WASHINGTON, D.C.
20005 (202) 232-6600
[-
(
CERTIFICATE OF TRANSCRIBER j..~ s.3 This is to certify that the attached events of a meeting of the United States Nuclear Regulatory Commission entitled:
TITLE OF MEETING:
BRIEFING ON FINAL RULE REGARDING THE HIGH LEVEL WASTE MANAGEMENT LICENSING SUPPORT PLACE OF MEETING:
SYSTEM ROCKVILLE, MARYLAND DATE OF MEETING:
FEBRUARY 7, 1989 were transcribed by me. I further certify that said transcription is accurate and complete, to the best of my ability, and that the transcript is a true and accurate record of the foregoing events.
h
/
U y
y Reporter's name:
)
(if other than transcriber)
';h i
sM l
NEAL R. GROSS CouaT napoaTEas AND TRANSCRIBERS 1323 AMo0E R$LAMO AVENUE, N.W.
(20s) 2M 433 wAsMINGToN, D.C.
20005 (202) 232-6600
2/7/89 f
SCHEDULING NOTES-TITLE:
' BRIEFING ON FINAL RULE REGARDING THE HIGH LEVEL WASTE MANAGEMENT LICENSING SUPPORT SYSTEM SCHEDULED:
2:00 P.M., TUESDAY, FEBRUARY 7, 1989 (OPEN)
DURATION: -
' APPROX 2 HRS PARTICIPANTS:'
NRC STAFF 20 MINS
- WILLIAM J. OLMSTEAD
- FRANCIS X. CAMERON US DOE 10 MINS
- J'EROME SALTZMAN
- BARBARA CERNY INDUSTRY C0ALITION 10 MINS l
-(EDISON ELECTRIC INSTITUTE UTILITY NUCLEAR WASTE MANAGEMENT GROUP U.S. COUNCIL ON ENERGY AWARENESS)
- STEVEN P. KRAFT
- JAY SILBERG' STATE OF NEVADA 10 MINS
- MAL MURPHY
- JAMES DAVENPORT COALITION OF NEVADA LOCAL 10 MINS GOVERNMENTS (NYE, CLARK, LINCOLN COUNTIES)
- DENNIS BECHTEL NATIONAL CONGRESS OF AMERICAN 10 MINS i
INDIANS
- DEAN R. TOUSLEY
- GAIL CHEHAK OTHER ATTENDEES I
CONSERVATION FOUNDATION t
- HOWARD S. BELLMAN, FACILITATORY i
a&
)
U.S. Nuclear Regulatory Commission February 7,1989 SECY-89-027 Rulemaking ) issue (Affirmation FINAL RULE - PART 2 LICENSING SUPPORT SYSTEM 1
l l
I-1
SUBJECTS COVERED IN BRIEFING Purpose of Rule / Advisory Committee Negotiations Licensing Support System Part 2 Changes Public Comments Analysis 2
l
--_.-____________-__-___.-______.m-__.__.
j STATUTORY BACKGROUND NWPA - 1982: Established Three Year Licensing Goal DOE /NRC Memorandum of Understanding 1987 Amendments RULEMAKING BACKGROUND Part 60 Part 2 QA/QC Licensing Support System (LSS) Negotiations 3
1 i
i PURPOSE OF RULE Facilitate Discovery by Comprehensive & Easy Access to Relevant Licensing Information Establish the Information Base for the Licensing Proceeding Before Submission of Application i
Facilitate Review by All Parties to extent practicable with full text capability Reduce Time Associated with Submission of Motions & Other Documents 4
NEGOTIATED RULEMAKING - AUGUST 5,1987 CONVENOR: Conservation Foundation, H. Bellman COMMITTEE:
NRC DOE Nevada, Nevada Local Governments, NCAI, Environmental Coalition, Industry Coalition TIME:
September 1987 to July 1988 5
t i
_. - - - - - -, - - - - - - - -, - - - _ - _ - - - _ - ~ - -. - - _ _ _ _ _ _ _ _ _ _ _
l I
I KEY NEGOTIATED ISSUES LSS -Volume of Documents TIME - Can it be done in three years?
ACCESS - How long before docketing will parties have access?
l COST-is the cost excessive when compared to expected time savings?
~
PROPOSED RULE 11/3/88 t
6
LSS ATTRIBUTES Contains RELEVANT Documents of All Parties All Parties have FULL TEXT Access System is Available before License Application Motions can be filed Electronically QA/,QC Data Management 7
1 1
4 L
1
1 LSS OBJECTIVES d
Facilitate Discovery Establish the Information Base for HLW Proceeding Prior to Application Facilitate Tech'nical Review of ALL Parties with FullText Capability Reduce Time Associated with Motions Practice Provide for Early issues ID/ Management 8
5
-_-_-_a-.--._--____---_--
(:...
OTHER PART 2 CHANGES Discovery-Interrogatory practice Intervention / Contentions Immediate Effectiveness i
. Appeals NOTE: A!! Changes to Part 2 are related to Time 9
I
MAJOR ISSUES Are Time Reductions in Final Rule Worth LSS Costs?
Are Topical Guidelines Clearly Excluded from NRC's Contention Practice?-
10 I
COMMENTS Concerns Raised Advisory Committee Member Responses Analysis 11 i
i I
_--__--_m_..___m___
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Attached are copies of a Commission meeting transcript and related meeting l
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placement in the Public Docuruent Room. No other distribution is requested or
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