ML20244D437

Forwards Questions Re Final Rule Proposed in SECY-89-027, Final Rulemaking on Licensing Support Sys for High Level Waste Licensing Proceeding

ML20244D437
Person / Time
Issue date:	02/21/1989
From:	Curtiss NRC COMMISSION (OCM)
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20244D410	List: ML20244D407 ML20244D437
References
FRN-53FR44411, RULE-PR-2 NUDOCS 8904210340
Download: ML20244D437 (10)

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/ 'o UNITED STATES

! m ~,j NUCLEAR REGULATORY COMMISSION

-E WASHINGTON. D.C. 20555 0  %*[ e

,,,.. February 21, 1989 OFFICE OF THE COMMISSIONER R MEMOP.ANDUM FOR: Samuel J. Chilk, Secretarv i FROM: Commissioner Curtiss h,

SUBJECT:

LICENSING SUPPORT SYSTEM As a result of the February 7,1989 Comission briefing by the Negotiating Comittee on the High-level Waste Management Licensing Support System. I have a number of ouestions about the final rule proposed in SECY-89-027. " Final Rulemaking on the Licensing Support System for the High-Level Waste Licensing Proceeding." The questions are attached.

I would ask that you forward these questions to the members of the Negotiating Comittee for their response. Please clearly indicate that I would like the views of the Comittee as a whole, where consensus exists, and views of individual members where there is no consensus.

These questions involve what'I consider to be many of the key procedural issues in the final rule proposed by the Negotiating Comittee. Accordingly, I would like to have the answers before casting my vote on SECY-89-027.

Attachment:

As stated cc: Chairman Zech Commissioner Roberts Commissioner Carr Commissioner Rogers OGC 8904210340 890224 1 1 hDgyy44gg PDR;

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_00ESTIONS FOR TPE NEGOTIATING COMMITTFE 1.

There appears to 'Je some disagreement amona the parties regarding the purpose of the topical guidelines. Mr. Olmstead, for example, stated that the topical guidelines are intended.to define the universe of documents, so that the Department of Energy can " size the_ system" ud thereby determine the type of hardware to procure. The topical guidelines would not, however, according to Mr. Olmstead, have any bearing on the issues to be litigated in the NRC proceeding (February 7 Transcript, pp. 20-21).

Mr. Davenport, on the other hand, seemed to suagest that the. list of topical guidelines reflected, at least in part, a judgment by the Comittee as to the issues that would be relevant in.the licensing proceedino (February 7 Transcript, p. 83). In this regard,-he went on to describe a " functional test" of relevance that would be applied to determine which dow ments would be admitted to the LSS (February 7 Transcript, p. 83). In-view of these comments, please address the following:

a. What is the purpose of the topical guidelines? Are they strictly for the purpose of " sizing" the computer system or do they serve some other purpose?

b. Do the topical guidelines define in any way the issues to be addressed by the Department cf Nergy (DOE) in its e application?

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c. . Do the topical guidelines define in any way the issues to be addressed by the NRC in its HLW licensing proceeding?

d. Explain the role of the topical guidelines in detemining whether a potential party should be granted access to the Licensing Support System.

e. Section 2.1008(b) provides that a potential party seeking access to the LSS must first set forth his or her interest in paining access, with particular reference to the factors set out in 2.1014(c)(1)-(3), "as detemined in reference to the topical cuidelines . : .

What does the phrase "as detemined in reference to the topical guidelines" mean and how will this determination be made? Would it be sufficient for a potential party merely to refer to a topical guideline in which that party has an interest in order to establish standing, with no other showing of relevancy, or does the Pre-License Application Licensing Board at this stage make a determination as to whether the particular topic referenced by the petitioner is relevant to the decision to be rendered by the Comission in the HLW licensing proceeding? If the latter, what is the relevancy standard? Is this the stage at which the " functional test" to which Mr. Davenport referred would be applied? If a determination of relevane" is made at this point, does the Comittee agree with Mr* ,

Saltzman's fomulation of the relevancy standard (i.e., that l

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there must be a " nexus" between the topical guideline and the suitability of the Yucca Pountain site as.a repository under 10 CFR Part 60)? If so, who makes that determination and when?

f. If the Pre-License Application Licensing Board is to render a determination with regard to relevancy, what opportunity does the Commission have at that point to review the determination?

?. If a party is granted access to the Licensing Support System, does this have any bearing on his or her right to participate in the subsequent hearing on DOE's application for a construction authorization? In this regard, please explain the role of the topical guidelines in determining whether an interested person should be granted standing as a party in the HLW liceising proceeding.

3. Section 2.1014(c)(4) directs the Licensing Board, in ruling on l

petitions to intervene in the HLW proceeding, to consider, among other things, whether the petitioner participated as a potential party under section 2.1008(c). Is this provision intended to be limited tn the situation where a potential party could. put does e \

not, participate under 2.1008(c)? If so, where is this .

explained? If not (i.e., if this prov'ision applies to parties who gained access to the LSS pursuant to 2.1008(c)), and in view

h of the fact that participation under 2.1008(c) is to be "detemined in reference to the topical guidelines," wouldn't the topical guidelines indeed have an impact on the scope cf issues to be litigated in the HLW proceeding?

4 According to SECY-89-027, the topical guidelines were taken almost verbatim from the Environmental Assessments, which in turn were prepared at a time when multiple sites were still being considered for characterization. In view of the 1987 amendments to the MWPA, which limited site characterization to the Yucca Mountain site and eliminated the need to consider alternative sites (together with the provision in the 1982 NWPA that eliminated the need to consider alternative means of disposal),

what is the relevance to the Yucca Mountain licensing decision cf topical guidelines associated with alternative sites, alternative disposal technologies, and national transportation issues, such as population density along specific routes from specific reactors?

5. Who is responsible for preparing the Regulatory Guide that will '

set forth the Topical Guidelines?

6. SECY-89-027 points out that the topical guidelines were " developed as part of the consensus process on the entire rulemakino fand) a redor. tion in scope should he discus.ed by the negotiating ,

conmittee or its successor." Should this be interpreted to mean ,

that any change in the topical guidelines must be concurred in hv the Negotiating Comittee or could the Commission amend the nn ~mam - - i

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[ 7. With regard to the requirement of section P.1003fh) that the LSS L

Administrator certify, six months before submittal of the application, that " DOE has substantially complied with its obligations under this section," what is the standard for

j. determining substantial compliance and wnat criteria will be used i to make this determination? Will the criteria be based on quantitative or qualitative considerations?

8. If, following certification by the Administrator that DOE has substantially complied with its obligations, a party seeks to challenge the Administrator's determination, what procedures will govern the Pre-License Application Licensing Board's consideration of this challenge? Would full-blown adjudicatory procedures apply to this proceeding?

9. Mr. Olmstead indicated durino the February 7 meeting that the Negotiating Committee did not intend to change the sua soonte rules, as currently set forth in Subpart G of the Rules of Practice. Under proposed section 2.1000, however, it appears that the sua sponte provisions of Subpart G [2.760 a) would be superseded by the proposed LSS rule. Since subpart J is silent on this subject, what authority would the Licensing Board have to raise issues sua sponte in the HLW licensing prceeedirp'.

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STRAWAN RESPONSE TO QUESTIONS POSED BY COMMISSIONER CURTISS l (Preparea by the NRC Staff) j 1.- Topical Guidelines a) The purpose'of the topical guidelines is to provide guidance to LSS ,

participants on what documentary material should.be submitted for entry  !

into the LSS. As such, they also provide some parameters for estimating the size of the system. The topical guidelines are also relevant for l l_ determining who gains access to the LSS during the pre-license L application phase under 2.1008. See draft Federal Register Notice (draft FRN) at pages 12, 20, and 26.

9) The topical guidelines do not in any way define the issues to be addressed by DOE in its license application. The scope of the license application will be defined by the Commission's regulations in 10 CFR Part 60 and 51.

c) The topical guidelines do not in any way define the issues to be addressed in its HLW proceeding. See page 20 of the draft FRN.

d) Under section 2.1008, the Pre-License Application Licensing Board (PALB) established under section 2.1010, will apply the criteria in section 2.1014(c) or section 2.715 to determine who will have access to the LSS during the pre-license application phase. However, solely for the purposes of determining pre-license application access to the LSS, the application of the 2.1014(c) or 2.715 criteria will be evaluated in reference to the topical guidelines.

e) The phrase " evaluated in reference to the topical guidelines" means that the PALB will look to the topics listed in the topical guidelines in evaluating whether the petitioner meets the criteria in section 2.1014(c) er section 2.715. It would be sufficient for a person seeking access to the LSS in the pre-license application stage to refer to'a topical guideline to demonstrate its interest in order to establish the right to access to the LSS during the pre-license application phase.

At this stage, the PALB does not make a determination as to whether the petitioner has standing in the future hearing or whether the particular topic referenced by the petitioner is relevant to the decision to be ultimately rendered by the Commission on DOE's license application.

Access carries with it the responsibility to comply with the requirements of the LSS rule, including the document submission requirements and complying with all licensing board orders. See section 2.1008(d).

On a totally different issue than access to the LSS please! note tat in determining which documents must be placed in the LSS by a'LSS -

participant, the document must fall within the definition of

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" documentary material .in section 2.1002, i.e., it must be relevant to, or likely to lead to information that is relevant to, the licensing of the likely candidate site for a geologic repository. Therefore, a document must not only fall within the topical guidelines, but also have a nexus to a geologic repository.' The determination of whether a document falls within the definit J on of " documentary material" would be decided by the PALB if a dispute arises over any particular document.

An LSS participant has the responsibility to screen its documents to ensure that " documentary material" is submitted to the LSS Administrator. See page 20 of the draft FRN on a LSS participant's

" good faith efforts and the rule of reason" in identifying documentary material.

f) Following Appeal Board review, a party may seek Comission review of decisions on relevancy. See section 2.1015(b)(1) and section 2.1015(e).

2. [Under section ?.101a(c)(4), access to the LSS in the pre-license application phase is just one of the several factors that the llearing i Licensing Board considers under section 2.1014(c) in determining the i right of a petitioner to participate in the subsequent hearing on the construction authorization. However, the Board must still consider the nature of the petitioner's right under the Atomic Energy Act; the nature and extent of the petitioner's property, financial, or other interest;in the proceeding; and the possible effect of any order that may be entered lin the proceeding on the petitioner's interest. It should be emphasized that a petitioner must also satisfy section 2.1014(a)(2) in regard to an As l indicated admissibleearlier, contention in order the topical to participate guidelines in the will not be proceeding.

used for purposes 1of determining the scope of contentions that can be offered in the HLW' lproceedingundersection2.1014. See pages 12 and 20 of the draft FRN.

3. iSection 2.1014(c)(4) is not intended to be limited to the situation where a potential party could, but does not, participate under section 2.1008(c). The fact that Section 2.1014(c)(4) identifies pre-license application access to the LSS as one factor that the Hearing Licensing Board considers in ruling on petitions to intervene does not mean that the topical guidelines would determine the scope of issues to be litigated in the proceeding. As also satisfy section 2.1014(a)(2)previously in regard to noted, a petitioner an admissible must contention in order to participate in the proceeding.

4. SECY-89-027 states that the topical guidelines were "modeled" on the DOE Environmental Assessments (EAs). See page 12 draft FRN. It should be noted that only the second part of the topical guidelines was modeled on the EAs. See, for example, page 39 et seq. of the draft FRN. The first two sections of the topical guidelines were developed independently of any previous "models" such as the EAs, Similar to the normal discovery process for NRC proceedings, " documentary material," in section 2.1002, -

is defined as material relevant to, or likely to lead to the discovery

l l of information that is relevant to, the licensing of.the likely I candidate site for the repository. As noted above, there must be a nexus between a document and the repository in order for the document to fall within the definition of " documentary material." It .s possible ,

that some of the material cited in Commissioner Curtiss's Question #4 '

may demonstrate such a nexus and have relevance or potential relevance to the repository licensing decision. Thus, such material should not be categorically excluded from the LSS at the outset, well before the license application is even submitted. As is always the case in litigation, discovery encompasses much more information than is ultimately used by the parties, ruled admissible, and relied on by the decision-maker.

5. The NRC staff is responsible for preparing the Regulatory Guide on the topical guidelines.

6. Asnotedonpage12ofthedraftFRN,"[t]hetopicalguidelinesarenot cast in stone. They are to be set forth as a Regulatory Guide, rather than as part of the regulations themselves, and thus are to be accorded less status and legal effect." The Negotiator did not stete, or mean to imply, that any Commission changes in the topical guidelines must be concurred in by the negotiating comittee. Rather, the Negotiator only recommended that a reduction in the scope of the guidelines, for purposes of making the size of the LSS more manageable, be done in concert with the participants on the LSS Advisory Review Panel.

7. The determination of " substantial compliance" will be determi..ed according to the criteria in section 2.1003. As such, the evaluation will include both qualitative ano quantitative criteria. Implementation of the evaluation of DOE compliance with section 2.1003 will be developed in more detail by the LSS Administrator.

8. Practice before the PALB is essentially a motions practice, akin to that during the normal discovery, pre-hearing phase in a Part 50 proceeding before a licensing board. Oral presentations are not precluded, but rather will be left to the discretion of the board (as-is now the case),

depending on the nature of the dispute. See, for example, sections 2.1010(d)and(e),section2.1015,andsection2.1016.

9. The Negotiating Committee did not directly discuss the sua sponte issue because, by definition, it does not involve outside parties or contested issues. The NRC staff, in preparing the draft negotiating text, did not include an analogue to section 2.760a. because the staff did not believe such a provision would be necessary for the HLW proceeding where a hearing is_ required on the construction authorization, and where the interveners will be well-prepared. No participant on the negotiating committee, in the extensive discussions on 3 comprehensive procedural frar.ework for the HLW proceeding, raised the issue of the need for a sua '

sponte provision. In any event, shou M a board attempt to raise an

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I issue sua sponte, existing agency policy requires the board to notify the Commission before addressing the matter. Thus, the Comission can.

- decide at that time if the matter warrants sua spente adjudicatory review.

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