ML20244E104

10CFR2 Final Rule, Rule on Submission & Mgt of Records & Documents Re Licensing of Geologic Repository for Disposal of High Level Radwaste. Rev Establishes Basic Procedures for Licensing Proceeding,Including Use of Licensing Sys

ML20244E104
Person / Time
Issue date:	04/07/1989
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-53FR44411, RULE-PR-2 NUDOCS 8904240298
Download: ML20244E104 (139)

Text

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J RIN: 3150-AC44 RULE-ON THE SUBMISSION AND VANAGEMENT OF PECORDS AND DOCUMENTS RELATED TO THE LICENSING OF.A GE0 LOGIC REPOSITORY FOR THE DISPOSAL OF HICH-LEVEL PADI0 ACTIVE WASTE ,

AGENCY: Nuclear Regulatory Commission.

ACTION: _ Final'rulemaking.

SUMMARY

The Nuclear Regulatory Commission is amending the Commission's i l Rules of Practice in 10 CFR Part 2 for the adjudicatory proceeding on the application for a . license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to 10 CFR Part 60. The revisions establish the basic procedures for the licensing proceeding, f I

including procedures for the use of the Licensing Support System, an j 1

electronic information management system, in the proceeding. The revisions )

1 0 are based on the deliberations of the Commission's High-Level Waste Licensing 1 Support System Advisory Committee. The Advisory Committee was composed of organizations representing the major interests likely to be affected by the 1

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.rulemaking, and was estcblishea by the Commission pursuant to the Feocral

. Advisory Cctmittee Act, 5 U.S.C. App. 1, in September 1987.

EFFECTIVE DATE: [ INSERT CATE 30 DAYSAFTERPUBLICATION].

FOR FURTHER INFORMATION CONTACT:

Francis X. Cameron, Office of the General Counsel, U.S. Nuclear Reguistory Commission, Washington D.C. 20555, Telephone:

301-492-1623..

-SUPPLEMENTARY INFORMATION:

Backgrcund On August 5, 1987, the Commission announced (52 FR 29024) the formation of the High-level Waste Licer. sing Support System Aavisory Committee

(" negotiating committee") to develop recommendations for revising the Commission's Rules of Practice in 10 CFR Part 2 for the adjudicatory proceeding on the application for a license to receive and possess high-level radioactive waste ("HLW") at a geologic repository operations area ("HLW I

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The negotiating committee sought consensus on i

che procedures that would govern the HLlI licensing procee' ding, focusing primarily. en the use of an electronic information management system kncwn as

'the-Licensing Support System ("LSS"), in the HLW licensing proceedinp. The objective of the negctiated rulemaking was to develop the essential features of the. procedural rules for effective Ccmmission review of the U.S.

Department of Energy (DOE) license application within the three-year time period required.by Section 114(d) of the Nuclear Waste Policy Act of 1982, as amended ("NWPA"). The negotiating committee completed its deliberations in July 1988. Based on the committee deliberations, the Commission approved a proposed rule that would revise 10 CFR Part 2 to establish the procedures for the HLW proceeding. The proposed rule was published on November 3, 1988.

The comment period closed on December 5, 1988. After consideration of the public comments, the Commission is promt.lgating this final rule.

The LSS is intended to provide for the entry of, and access to, potentially relevant licensing information as early as practicable before DCE submits the license application for the repository to the Commission. The LSS would contain the documentary material generated by DOE, NRC and other parties to the licensing proceeding, which are relevant to licensing of the repository.

All parties would then have access to this system well before the proceeding

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I 1/ See Agreement in Principle Between the Department of Energy (DOE) and I. the Nuclear Regulatory Commission (NRC) on the Development of a l Licensing Support Systems (LSS), February 27, 1987.

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begins. Access to these documents will te provided through electronic full

' t' ext search capebility. This provides the flexibility of searching on any word or, word combinations within a document ard thus facilitates the rapid identification of relevant documents and issues. Because the relevant

[informationwouldbereadilyavailablethroughaccesstotheLSS,theinitial time-ccnsuming discovery process, including the physical production and on-site' review of documents by parties to the HLW licensing proceeding, will

.be substantially reduced.

The use of the LSS in the HLW licensing proceeding is to provide for timely review of the DOE license application by --

• eliminating the most burdensome and time-consuming aspect of the current system-of document discovery ---i.e., the physical production of documents after the license application has been filed -- because the LSS will protide for the identification and submission of discoverable documents before the license application is submitted; eliminating the equally burdensene and numerous F0IA requests for the same information that both DOE and the NRC will surely receive before and after the application is filed if the LSS does not become a reality; enabling the comprehensive and early technical review of the millions ,

of pages of relevant licensing material by the DOE and NRC staff, I through the provision of electronic full text search capability which will allow the quick identification of relevant documents and issues;

• enabling the comprehensive and early review of the millions of pages of  ;

relevant licensing material by the potential parties to the proceeding, so as to permit the earlier submission of better focused contentions i resulting in a substantial saving of time during the proceeding; providing for the electronic transmission of all filings during the hearing, thereby eliminating a significant amount of delay. J The Negotiating Conmittee. The Ccmmission used the process of negotiated rulemaking to develop the prcposed rule. In negotiated rulemaking, the i

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. representatives of parties who may be uffected by a proposeo rule, including 1

l the Commission, convene as a grcup over a' period of time to attempt to reach .

coi:sensus on. the proposed rule.

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L .The first meeting of the negotiating committee was held in September 1987.

l The negotiating conmittee completed its deliberations in July.1988.

'The members ~ of the negotiating committee.are -- l

• DOE

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• State of Nevada

• a coalition'of Nevada local governments

• ~a' coal.ition of. industry groups (Edison Electric Institete'/ Utility Nuclear Waste'

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t'anagement Group /U.S. Council for Energy

-Awareness)

• National Congress of American Indians

• a coalition of national environmental groups (Environmental Defense Fund / Sierra

-Club / Friends of the Earth).

All members of the negotiating committee, with the exception of the industry coalition, agreed to the draft text of the proposed rule that was oiscussed by the committec at its final meeting (" final negotiating text"). Under the t

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'- t committee protocols, the dissenting vote by the industry precludec committee consensus on the proposed rule. EI ,

Those participants who approved the final negotiating text are 00E, the State of Nevada, the coalition of Nevada local governments, the hational Congress l of American Indians, the coalition of national environmental groups, and the NRC staff. The final negotiating text was carefully drafted with the full participation of people with strong experience and background in NRC practice. It reflected the concerns of the major interests affected by the rulemaking. In fact, the industry coalition, although dissenting on the final negotiating text, fully participated in the drafting of the final text, and hac considerable influence on' the wor ~ ding of the final text. 5I The pecposed rule was issued for a thirty-day comment period. The participants on the negotiating committee who approved the final negotiating I

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2/ In the August 5, 1987, Federal Reaister Notice that initiated the r.egotiated rulemaking, the Commission ~learly indicated that the LSS was caly one of the mechanisms that the Commission was considering to streamline the licensing process. However, all participants on the negotiating committee, including the industry, initially agreed that a significant contributed to licensing delay was document discovery and motions practice -- issues that the LSS was intended to address. In this regard, the industry, later stated that the LSS would result in little change in the length of the licensing proceeding without further procedural changes. l

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3/ The Commission notes that the industry ccalition's dissent on the final  ;

negotiating text was based on the same rationale -- the cost of the LSS l -- that it had set forth at the initial meeting of the negotiating committee some ten months earlier.

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h Li text agreed to refrain from ccmmenting negatively cn the final negotiating text,-if that text was published by the Commission es a proposed rule. The industry coalition, as.well as any nonparticipents in the negotiation, were free to comment critically on any aspect of the proposed rule, including cost

-aspects of'the LSS.' Consistent with the negotiating committee's function to advise the Commission on the LSS rulemaking, the staff submitted the comments on the proposed rule to the negotiating committee for review and comment.

'The public ccmments on the proposed rule, and any comments frcm the negotiating ccmmittee (the Conmission received comments from the State of Nevada, the National Congress of American Indians, and Lincoln County, Nevada), are summarized below.

The comment period on the prcposed LSS rule closed en December 5, 1988. The Commission received nine comments. Seven of these ccmments were from various segments of the nuclear industry, one was from DOE expressing suppurt for the LSS rulemaking'and recommending several clarifications, and one was from formal trial counsel in the Commission's Office of the General Ccunsel, now with the firm of Hopkins, Sutter, Hamel & Park. Most of the industry comments consisted of an endorsement of the recommendations contained in the ccmment letter submitted by the Edison Electric Institute and the Utility Nuclea'r Waste Management Group ("EEI/UNWMG"). As noted earlier, EEI/UNWMG, along with the U.S. Council on Energy Awareness, represented the industry on the HLW LSS Advisory Committee. The industry comments will be discussed in the context of the EEI/UtlWMG comments, except where there is a significant cifference in an individual comment letter. The discussion of the public i

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comments will fccus on the-issues of cost-benefit, the topical guidelines for the submission cf documents to the LSS, and the non-LSS aspects of the rule.

c Benefit-cost. The industry argues that the LSS is a " gigantic, highly complicated,andextEaordinarilyexpensivesystem"thatwillnot significantly assist Commission decision-making on the construction authorization for the repository within the NWPA timeframe. Rather.than leading to a reduction of the time for licensing, the industry believes that

-the LSS would lead to an. extension of the licensing time. Therefore, the industry does not believe that the benefits of the LSS justify the costs (estimated by DOE to be $200 million over a ten year period), and

. consequently, does not support ths LSS.

i The industry argument against the LSS has twc basic components: (1) the LSS would not enable the Commission to meet the three-year schedule for the .

issuance of the construction authorization mandeted by the NWPA; and (2) the costs of the LSS have been underestimated. As an alternative to the LSS, the industry has proposed a microfiche-based system in which relevant documents would be stored on microfiche but would not be captured in electronic searchable full text. However, the indexes to the documents and the bibliographic headers for the documents would be " computerized", presumably in electronic searchable full text. Pcrties could request a copy of a document from the LSS Administrator, and receive it by overnight mail. ,

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9 According to the industry, the LSS would lengthen the licensing process for the following reasons: -

The industry argues that the LSS will create new procedural issues over which litigation is likely -- for example, the LSS Administrator's certification that DOE is in substantial and timely compliance with the document subn.ission requirements in the rule. In response, the Commission notes that, although the LSS rule dces establish some new procedural requirements, these requirements are necessary tc ensure that the parties subject to the rule are in substantial and timely compliance with its provisions, and thereby facilitate compliance with the NWPA's three-year time frame. .In particular, the certification of DOE ccmpliance is necessary to assure that relevant documents are in the LSS as soon as possible, so as to allow for early, pre-license application discovery. Any disputes ever complience with the rule will be resolved by the Pre-License Application Licensing Board established in section 2.1010 before the license application is submitted.

C The industry argues that the actual performance of the LSS is unlikely to live up to the expectations of the parties because documents that should be in the data base will be missed entirely, and that.scme of the documents captured could easily be incomplete in their electronic forn.

This will lead to attacks cn the accuracy and con'pleteness of the data base. The Commission notes that the final rule contains several provisfor.s 16te'nded to minimize ano correct inaccuracies and i incompleteness. Section 2.1009 requires each party to establish procedures to capture the required documents. This section also .

establishes an early and continuous certification process, in which a l party's designated official must certify that the party is in compliance with document submission requirements of the rule. Section 2.1003(h)(2)(i) requires the LSS Administrator to begin nonitoring 00E compliance with the document submission requirements well before the license application is submitted. Section 2.1004 provides a mechanism for amenaments and additions to be made to the data base. Ir addition, the LSS will be operational before the license application is submitted.

allowing time for any errors or omissions to be corrected. Furthermore, an image of all documents will be available as a backup for the electronic text. Finally, as noted above, the rule establishes a Pre-License Application Licensing Board to rescive any disputes over accuracy and completeness of documents before the license applicaticr. is submitted.  ;

The industry argues that the vast quantities of data available in electronic full text will provide parties with the opportunity to j generate even greater amounts of discovery. The Conmission notes that i the LSS rule establishes requirements for the submission of relevant j occuments in advance of the license application. Because of the I substantial amount of information that will be provioed, the j I

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Commission does not anticipate continual discovery requests for large amcunts of additional documents. Furthermore, the Hearing Licensing Board is authorized to limit discovery, specifically taking into account

.the early availability of information provided'by the LSS, and compliance with the NHPA's three-year schedule. See sections 2.1018(c),

2.1021(a)(5),2.1022(a)(6).

The industry argues that disputes over the use of written interrogatories are certain to " plague the licensing board and discovery master." Section 2.1018(a)(2) provides for the use of written interrogatories only if authorized by the discovery master or Pearing Licensing Board upon a. showing that informal discovery, which, as indicated below, is limited to such matters as the names of witnesses, has failed. Furthermore, in ruling upon a motion to authori:e written interrogatories, the discovery master, or the Hearinc Licensing Board may consider whether the request creates the potential for unreasonably interfering with meeting the three-year schedule in the NWPA. For these reasons, the Commission does not believe that disputes over written interrogatories will " plague" the boards, cr lengthen the licensing process.

The industry argues that system failures will trigger action to bring the entire licensing process to a hcit. The Commission does not anticipate that the LSS will be unavailable for critical periods or lengths of time. DOE will design and develop the LSS well in advance of the license application. This period aisc includes development of a prototype system, as well as testing of the LSS before it becomes operational. Furthermore, the DOE design, development, and testing program will be conducted with input from NRC and other affected parties. The Commission believes that the design, testing, and development process will eliminate the major causes of system failure

.before the hearing process begins.

In summary, the Commission does not agree with the industry opinion that the LSS would add time to the licensing process. The staff continues to believe that the LSS is the best alternative for providing a high quality and efficient review of the DOE license application within the schedule mandated by the hWPA. As noted above, this will be accomplished through --

eliminating the most burdensome and time-consuming aspect of the current system of document discovery -- i.e., the physical procuction of documents after the license application has been filed -- because the LSS will provide for the identification and submission of discoverable documents before the license application is submitted; l

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• - eliminating the equally burdensome and numerous FCIA requests'for the same information that both DOE and the NRC will surely receive before end.af ter the application is' filed if the LSS does nct become a reality; enabling the comprehensive and early_ technical review of the millions of pages of relevant licensing material by the DOE eno NRC staff, through the provision of electronic full text search capabliity, which will allow the quick identification of relevant documents and issues; enabling the comprehensive and early review of the millions' of pages of relevant licensing material by-the potentiel parties to the proceeding, so as to permit the earlier submission of better focused contentions, resulting in a substantial saving of time during the proceeding;  !

'provioing for the electronic trans'missier cf all filings during the hearing, thereby eliminating a significant amount of delay.

The_Commissien believes that any document management systen for the HLK proceeding must meet all of these objectives in order for the Commission to mee't the NWPA schedule, while still providing_for a high cuality review of the license application.

No other alternative, including the industry microfiche proposal, will accomplish this.

As stated by the National Congress of American Indians (NCAI) in its review

_of the benefits of the LSS --

The LSS benefit which is vitally important to potential interveners--and of no interest to the industry--is its potential to facilitate the thoroughness of program reviews. Unlike the nuclear industry, Indian tribes,-states and other potential interveners view the hRC licensing for a repository to be more than a troublesome procedural hoop through which DOE must jump on its way to repository waste acceptance.

Indian tribes, states, local governments and citizens' organizations that might become interveners in that process have a responsibility to their respective constituents to see that the resolution of those questions is done as meaningfully and correctly as possible. In other words, these entities' primary interest in this entire program--one which is manifestly censistent with the general public interest--is to make'sure that the Commission's final determinations in this matter are as nearly correct as possible.

To discharge this responsibility, which is also mandated by the Nuclear Waste Policy Act ("NWPA") with respect to the host state and any

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-affected Indian tribe, they must be= intimately involved in the review of the program. To effectively participate in program reviews, the.

prospective ir.tervenors must have excellent access to the information ,

base the program is usino. ~They do not now have even marginally adequate eccess to that information. The LSS--even a flaweo, incomplete LSS--promises to vastly improve thet access.

NCAT concluded'that.--

the proposed LSS passes the cost / benefit aticlysis because the key benefit of improved access to program information will certainly be served by the LSS and the costs of the LSS are not a significant

fraction of the overall waste program costs. We also support DOE's end NRC's conclusion that the LSS would shorten the licensing period for a repository:and, in that respect, would be likely to reduce overall program costs,rather than increase them.

One public commenter, the former NRC trial counsel, endorses the benefits of

.the LSS and agrees-with the staff belief that "the LSS will facil1 tate orcatly the objective of realiting an initial decision within 2 years of the filing cf the application." This commenter goes on to state that "the PLW license hearings will be delayed substantially" without the LSS. This is due to the fact that the LSS rulemaking will remove document disccvery as er cbstacle to timely completion of the HLU proceeding by providing relevant documents well in advance of the license application. As further stateo by this commenter --

Potential parties will have access to the LSS well in advance of the time.for submitting requests for a hearing. Thus, the time needed for prospective parties to digest pertinent information will not become a critical path matter because it should be largely completed before the prehearing process begins. Moreover, all hearing requesters shculd be better informed with respect to the subject matter, and they shculd be able to frame meaningful and material issues for litigation....

Finally, the establishment of the Pre-License Application Licensing Beard to hear and rule on dccument production controversies should assure that the delay attendant to legal posturing over document

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production will not_ impact the hearing schedule. In sum, the proposed regulations , culd ... remuve one of the' greatest causes of delay from L the NRC.ad,iudicatory hehring process.

1The DOE benefit-cost analysis indicates that apprt+1mately $200 millier. vculd.

be saved for each year of licensing delay eliminated due to the LSS. The (final. rule establishes precedures for the HLW, including a model hearing schedule, that will. allow the Corr. mission to reach a decision on the

. construction authorization within the timeframe specified in section 114(d) of.the NWPA. However, even if the process were to-take up to one-third longer

.than the final rule envisions, the LSS would'still result in eliminating

-substantial time from current licer. sing practice. Under these circumstances, the benefits of. the final . rule woul.d exceed 'the costs of implementing the LSS. 'Moreover, the Commission is pursuing still other methocs for

. streamlining the Ticensing precess, such es using rulemaking to resolve substantive licensing issues before the license application is submitted.

The second part of the industry comments on the costs and benefits of the LSS nis the adequacy of the DOE benefit-cost analysis. The inaustry decs not believe that' the DOE analysis is adequate for a number of reasons, primarily because the DOE analysis dio not consider alternatives to the LSS such as the industry microfiche system. In addition, the industry notes that the estimated $200 million cost is only projected over a ten yeer period, and that' cost.is only presented in 1988 dollars. Finally, the industry claims that the size, complexity, and " revolutionary" nature of the LSS will significantly escalate the costs of the system.

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, 'In response, the Commist. ion notes that the scope of the DOE benefit-cest

. analysis was cetermined in reference to the objectives of the LSS identified earlier '--- facilitating the discovery and review of relevant documents. The staff, DOE, and other participants on the negotiating committee did net believe that any alternative.other than an electronic full text search system could satisfy these objectives, and thereby allow the Commission to meet the -

HWPA' schedule, while still providing for a high c,uality review of the relevant licensing information. Therefore, the DOE did not evaluate the

benefits anc cost of alternatives that did not incluce an electronic full text search capability of the documents in the system.

4 Although the industry microfiche alternative might provide for the collection of relevant documents in advance of licensing, it does not provide for the electronic full text search within these documents, such as the 7000-page 51te Characterization Plan. The Commission does not believe that the mere availability of documents in hard copy or microfiche without electronic full text search capability will parmit an adequate substantive review of the docurrents in the HLW proceeding by the staff itself or any other party, nor will it permit the hearing to be completed within the NHPA timeframe. For e'xample, in the 18-month period following submission of the license application, the current schedule calls for the NRC staff to review the application, to prepare its Safety Evaluation Report, and to evaluate ana l l

respond to contentions proffered by the parties in the hearing. The LSS furnishes an important tool for the staff to use te ensure that its review is both timely and comprehensive, and will enable the Staff to ccmplete its

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review of both contested and uncontested. issues wittlout having an impact on

, the schtcule of the adjudication.

l NCAI, commenting on the full text search capability cf the LSS, stated --

L l The most important aspect cf that access is the proposed full-text i, search capability of the LSS. That is where the nuclear industry's L . alternative, a microfiche-based system, falls far-shcrt of what is needed. The nuclear industry would implement an electronic index only to the relevant information, which would be stored and provided in microfiche form. Unfortunately, the usefulness of such systems is far too sensitive to the quality of the indexing. Particularly with respect to subject descriptors or abstracts, there needs to be near-perfect correspondence between the thougnt prccesses of the indexer and those of the subsequent searcher in order for the latter to find materidis in en index-only system.

Full-text search, on the other hand, provides much greater power and flexibility in accessing relevant information. Surveys cited by the f$C staff in support of the LSS rulemaking consistently showed greater accuracy and efficiency of searching in full-text plus he?. der systems--such as is envisioned for the.LSS--relative to other alternatives. '

As noted by the State of Nevada in its review of the industry proposci, the system the industry recommends --

would not more greatly assist the Commission in meeting its  ;

congressional time gocls, and would not provide the parties with effective and efficient document discovery. I!ost importantly, it would not give the Commission the commensurate higher level of confidence that all issues have been fully explored and that the public health and safety will be protected before the Commission arrives at its construction authorization decision.

~Furthermore, the State of Nevada believes that the industry microfiche alternative "fai1[s] to take into account the fact that any other system, either hard copy or the microfiche based system which they [the industry]

espouse, wculo be as labor intensive, potentially more time consuming,

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1 probably unwieldy, and more likely than nc$t would involve as much cost as the ]

proposed.LSS." For example, a microfiche data base would have to be dupli-cated for each potential party as well as for each public accument room. The latter, in pcrticular, would require substantial additional physical space and personnel to oversee the microfiche library.

The DOE benefit-cost analysis was only projected over a ten year period because thbt period corresponds to the period where the major costs of system design and development, and document entry, as well as the benefits of the LSS, will be realized, i.e., from the pre-license application phase to the decision on the construction authorization. Although, the projected costs were expressed in 1988 dollars, so were the exkcted benefits. Therefore, the conclusions of the analysis would be the same whether in constant or adjusted dollars. Finally, the Commission does not agree with the industry statement that the the LSS is a " revolutionary" system. There are many successful commercial information management systems such as Dialog, LEXIS, and Westlaw that provide full text search and retrieval of millions of pages.

The U.S. Congress also has a data base (SCORPIO) that contains substantial legislative material in searchable full text.

Seventy percent of the $200 million cost for the LSS is for the labor associated with assembling and organizing the documents, converting them to electronic format, and preparing bibliographic headers. However, much of the cost associated with these activities will be incurred, in any event, as part of the records management function for the repository, including the costs

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ifor. checking the document conversion for. completeness ar.d accuracy. '

Therefore, the Commission does not believe that the $200 mil'.1on cost accurately represents the incremental cost attributable to the full text search capability of the LSS. Rather, the $200 million includes costs that would be incurred in'any system of records selected by the agency for sturing and retrieving documents pertinent to the HLW proceeding.'

I In addition, the LSS cost projections are sensitive to the actual volurre of information to be entered and to the processing costs per page. Significant cost: reductions may be achieved through competitive procurement of data entry services. Cost reductions may also be realhea by scaling down the universe ofdocumentstdbeenteredintotheLSS,asdiscussedbelow. In light of the

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fact that the elimination of even one ye6r of licensing delay by.use of the, LSS would result in a savirgs of approximately $200 million, the cost of the

LSS is reasonable.. In addition, the projected $200 million cost over ten

years is less than three percent of the total annuc1 DOE budget for the Nigh-level waste program.

Topical Guidelines. Several of the comments, explicitly or implicitly, addressed the size of the data base that would result from the use of the topical guidelines for determining what documents must go into the LSS. One commenter, the former NRC trial counsel, recommended that reasonable limits be established on the scope of document production, for example, excluding documents concerning alternative sites or limiting the documents to those produced after the 1982 enactment of the NWpA, or to an earlier oate when the

primary.research and development work being relieo on by DCE was completed.

Accorcing to this corrc: enter, meaningful limits on document production shoulo reduce the cost of, and the potential for delay in the use of, the LSS; and

.such limits m6y well provide the type of citernative sought by Commissioner Roberts. Limitation of the topical guidelines to the Yucca Mountain site was 1 also recomendeo by another industry commenter.' This commenter also recomended that the scope of documents should be further limited to the documents supporting a license application.

The topical guidelines were partially rtodeled after the Environmental Assessments prepared in ccnnection with the DOE site selection process. The topical guidelines are necessarily broad, reflecting a concern by several participants on the , negotiating committee that documents relcted to potential licensing issues not be excluded from the LSS until the Commission determined what would be the permissible scope of substantive licensing issues. As noted by the Commission in the Supplementary Information to the proposed rule, the topical guidelines will not be used for the purpcse of determining the scope of contentions that can be offered in the HLW proceeoing under i section 2.1014. Participants on the negotiating committee fully agreed with i

this statement. As noted, their concern was to ensure that documents on i

potential licensing issues were not prematurely excluded. j 1 !

The Commission is sympathetic to the need for excluding material that is nct ]

relevant to the licensing of the likely candidate site for the repository.

Inasmuch as the existing scope of the topical guidelines (many of which are i I

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specifically limited to the Yucca Mountain site) was developed as part of the

' consensus process on the entire rulemaking, the staff believes that a  !

reduction in scope should tse discussed by the negotiating conmittee or its  !

successor. The Topical Guidelines are not cast in stone. They ure to be set forth as a Regulatory' Guide developed by the NRC staff, rather than as part of the regulations themselves, and thus are to be accorded lesser status and legal effect. The Topical Guidelines set forth later in this Supplement 6ry Information are interim guidelines to be used until a nore precise set is issued in an NRC Regulatory Guide. In either case, the Condssion would again emphasize that the topical guidelines will not be used for determining the scope of admissible contentions in the HLW licensing proceeding.

Foreover, there are other possibilities for ensuring that the document production requireme'nts do not become unwieldy. The rulemaking on the Com.ission's NEPA responsitfiities will specify many of the areas that will be outsioe the scope of the hearing. After this rulemaking is finalized, the Ccomission could amend the topical guidelines accordingly. Until these issues aro resolved, the identification and loccing of selected categcries of

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documents could be postponed. In effect, priority would be given to the identification and loading of documents directly relevant to the Yucca Mountain site, DOE contractor reports, or documents generated after DOE began investigations at Yucca Mountain. The Supplementary Information to the proposed LSS rule stated that the LSS Advisory Review Panel may develop recommendations to the Commission on whether particular categories of documentary material (e.g., those limited by date or subject) should still be

included within the topical guidelines'. The NRC LSS Interr.a1 Steerir.g

- Committee will oevelop a list of priorities, as well as potential amendtrents to the topical guidelines, in preparation for discussion with the other affected participants.

On a final point, the Comission disagrees with the cummenter that recomended limiting the data base to only documents supporting the license application. This would eliminate many of the documents available through the' existing discovery process, thereby depriving parties of documents that they would normally have access to under the Commission's current rules.

More important, it would deny DOE and the NRC staff comparable electronic access to the expected numerous technical documents prepareo by Nevada's contractorsonwh1;ch,thestatewillbaseitscase.

Non-LSS Provisions. In addition to the provisions in the proposed rule that concerned the development and implementation of the LSS, the final rule also contains several revisions to the rules of proctice that are not directly related to the LSS, but which should also provide for a more streamlined licensing process than the current licensing procedures. However, the Commission is comitted to do everything it can zo streamline its licensing process and at the same time conduct a thorough safety review cf the Department of Energy's application to construct a high-level waste repository. The negetlators to this rulemaking have made a number of improvements to our existing procedures. However, more improvements m6y be necessary if the Comission is to meet the tight licensing deadline

~.

established by the Nuclear Waste Policy Act of 1982, as amended. By publishing this rule, the Ccmmission is not ruling out further changes to its rules cf practice, including further ch6nges to the rules contained in the negotiated rulemaking.

The industry cominents on the proposed rule contained seversi additional recommendations in this area. These same recommendations were also included in a memorandum that the industry originally presented to the negotiating comittee .on the LSS rule. Many of these recommeno6tions were addressed by the negotiating committee and incorporated into the propcsed LSS rule, although not always in the exact form proposec by the industry. The revisions to the rules of practice proposed in the industry comments on the LSS rule are those revisions thut tyere not fully adopted by the negotiating committee. The industry recommendations are as follows --

Establish a new threshold for contentions. According to the inoustry

, "NRC adjudicatory decisions have allowed the admission of contentions with no foundation 6nd no semblance of factuti support." Accordingly, the industry recommends that the NRC require that a party demonstrate that there is a genuine and substantial issue of disputed fact requiring a hearing for its resolution. This issue received extensive l consideration by the negotiating ccmmittee. Many of the participants en i the committee did not agree that the industry position reflected NRC l practice since 1980, nor dio they believe that a higher standard fcr l contentions was necessary to exclude " frivolous issues," particularly in light of the early availability of information through the LSS.

I Furthermore, althcugh the final LSS rule does not include the standard proposed by the industry, the final rule does require that the petition for intervention include a party's contentions, which must refer with particularity to the specific documentary material or absence thereof that provides the basis for the contention, and the specific regulatory or statutory requirement to which the contention is elevant. This provides a basis on which to reject clearly frivolous contentions.

Moreover, contentions which rely on incorrect facts can be tested through existing summary disposition procedures at the outset of the hearing.

1 l

1 As part of its efforts on regulatory reform, the Ccanission issutd a -l

j. prnposed. rule en July 3, 1986, that wculd ameno certain provisions of j L lts rules of practice, 51 Fed. Rec. 24365. The draft final rule on j

regulatory reform addresses standards for the admission of contentions, i the elimination of unnecessary discovery against the NRC staff, the use of cross-examination plans, and the timing of motions for summary disposition. Section 2.1000 of the LSS rule cross-references any sections of general applicability in subpart G of Part 2 that will continue to apply to the HLW licensing proceeding. As such, all but one of the provisions in the draft final regulatory reform rule (Section 2.714, which requires contentions to show that a genuine dispute exists on an issue cf law, fact, or policy), if adopted, will automatically apply to the HLW proceedino. The LSS rule contains a new provision on contentions, Section 2.1014, and consequently Secticn 2.714 would no longer apply to the HLW proceeding. The Consnission intends to further evaluate the need to extend the " genuine issue of fact" standard to the HLW proceeding ofter its review of this provision in the draft final regulatory reform rule.

Late contentions. The industry :omments state that current NRC l practice is " overly liberal in ecmitting contentions filed after the i period for initial definition of contentions." The industry recommends that a new standard be established which would require an evidentiary showing that: (1) there is significant new information which would require a modification in facility design / construction to protect the public healtn ind safety; and (2) such modification would substantially enhance such protection by improving overall safety.

The industry fails to substantiate its charge that the adjudicatory boards are too liberal in admitting late contentions. A review of all such decisions since 1980 reveals that less then 25 percent of late contentions have been admitted. Of those, the great majority were tased on very special circumstances and thus understandably admitted (e.g.,

new TMI-accident-related regulatory requirements, prior unavailability of emergency plans, discovery of potentially serious safety and quality dssurance problems 4) Thus, the industry's premise is unsupported.

Nonetheless, the negotiating committee deliberations en this issue resulted in new stancards for certain types of late contentions. Any petitions to amend or add contentions made more than forty days after the issuance of the NRC Staff Safety Evaluation Report (SER) must include, in addition to the usual factors for late-filed contentions, a showing that the contention involves a significant safety or environmental issue or raises a material issue related to the performance evaluation anticipated by 10 CFR 60.112 or 60.113.

Discovery. Citing as'an example the local rules of only cne federal district court (out of 101) the industry proposed that limitations be placed on the number of depositions and the time period during which these depositions may be taken. Section 2.1018 of the final rule, and

- 23 '

L

.the model schedule in the Supplementary Information of the final rule already limit deposition oiscovery to approximately 21-months. The Board is also autherized by the rules to-prevent abuse of the discovery process. Further restrictions on dcposition discovery were given extensive consideration auring the negotiation. The magnitude of this proceeding and the need for meaningful public review of heelth ano safety issues, however, mLke arbitrary limits on depositions, imposed by rule, inappropriate and unwarranted.

The industry also states that the informal discovery provisions contained in section 2.1018(a)(1) of the final rule will enable a party to " deluge DOE with informal requests for information not avcilable in the LSS." The informal discovery procedures represent'a method to allow parties to the hearing to obtain the type of information normally gathered through interrogatories (names of witnesses, nature of testimony, etc.) through a less onerous and less time-consuming method than the use of written interrogatories. As such, it will be cunfineo tu a narrower band of information than implied in the industry comment.

Abuse of.the inforsal discovery process can also be prevented by the Pre-License Application Licensing Board or the Hearing Licensing Board under section 2.1018(c) of the final rule. However, in order to minimize the- potential for abuse cf the informal discovery process, section 2.1018(a)(1) has been revised to include examples cf the type of material that will be available through informal discovery.

Intervention: 'According to the industry, the Commission "has allowea its licensing boards to grant intervention status to parties that failed to meet judicial standing requirements." According to the industry this

" discretionary intervention" tends to " add additional parties to the proceeding, does not serve the public interest, complicates pre-hearing procedures, and should be removed." The Commission does not agree that discretionary intervention "coes not serve the public interest" or

" complicates pre-hearing procedures," and recommends against removing 4

-such discretion from the licensing boards. The Commission's licensing boards do follow judicial standaros for intervention. Hcwever, the Commission does allow discretionary intervention uncer certain circumstances, ano has established specific factors to guide a licensing board's determination on whether discretionary intervention should b-permitted. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976). Since Pcbble Sprinas, discretionary intervention has been authorized only four times, and in one of those instances, the grant of intervention was later vacated as moot. It is also worth noting that, because the industry's interest in the HLW proceeding is econcmic, it may not satisfy the Commission's traditional, judicial test for standing and thus might well have to rely on the Pebble Springs doctrine to participate in the proceeding. i l

Affirmative case on contentions. The industry recommends that the l Commission require that a party sponsuring a contention present an l

1

e affirmative evidentiary case for that contention. . Under NRC case law, an intervenor does have the burden of going forward, but may do so by-

- either direct evidence or by cross-examination, as to the issues raised by the intervenor's' cont'entions. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAS-202,1 NRC If5 T71 (1975).

The Commission believes that this more substantive' proposal, which is

'beyond-the scope of the instant rulemaking, warrants further

' consideration later, Et the same-time the Commission adoresses the related issue of.whether the threshold of contentions shoulo be raised.

Seriatim hearings. The industry recommends that the Commission direct the licensing board to resolve contentions en an ongoing basis and that internal agency appeals for these decisions need not await resolution of the last group of issues. As noted above, the proposed LS5 rule already dramatically alters existing practice by reouiring (rather than prohibiting) appeals-from certain types of interlocutory orders, such as rulings on the admissibility and amendment of contentions and motions for summary disposition, to be filed within ten days (rather than at the conclusion of.the proceeding) See section 2.1015. Further, under long established agency precedent, rulings disposing of a nefor segment of a case are immediately appealable.

Negotiating Committee Review. The State of Nevada, the National Congress of American Indians,'acd Lincoln Ccunty, Nevada submitted written comments on the public comment letters. The State of Nevada supports the LSS rule as

~

propostd. According to the State, "[t]he rule is the prcduct of a very

. successful negotiation process, during which all major interests, except the utilities, engaged in significant compromises. The give and take rest.1ted in  !

a proposed electronic discovery and motions practice system which will enhance the parties' ability to fully inform the hearing panel, and thus the Commission, on the difficult issues involved in licensing a repository. It will therefore assist in meeting the Commission's ultimate health and safety l responsibility." Furthermore, the State is convinceo that the proposed rule  !

will provide a greater possibility that the Commission can meet its congressional time goals, or at least reduce the time which wculd be

~4

. g5 nicessary to reach a construction authorization decision than by using either-traditional hard-copy discovery, or the industry's prcposed microfiche based systerr. The State also emphasizeo that it had " agreed to relinquish

' traditional hard copy discovery rights, and in' return received what we are confident is a vehicle which will allow for a more enhanced use of discovery, and thus a more effective means of participating in the licensing process, and assisting the Commission in fulfilling it[s] ultimate responsibility; -

that is, e construction authorization decision based on a full and complete airing of all of the complex and novel technical issues....".

The National Congress of American Indians continues to support the LSS, because the benefits to be derived--primarily in the form of improvec access

'to prcgram information-- will greatly facilitate effective participation in the program on the part of Indian tribes and other potential interveners.

The cost of the system, while high, is justified by the benefits anc is an insignificant fraction of overall nuclear waste program costs. NCAI suppcrts the conclusion of the Department of Energy and the NPC Staff that the LSS will significantly shorten the time reouireo to license a repository.

Furthermore, NCAI --

reaffint.ed its commendation of the Commission for undertaking this rulemaking by negotiation and for including hcl,I to represent national l

Indian interests in that negotiation. The result of the lengthy l negotiation process necessarily represents a great deal of compromise on l the part of all the parties, k'e do not like every aspect of the draft rule, but we certainly understand the rule and its derivation infinitely better than we would had we not been able to participate so thoroughly in its initial drafting. All those representing intervenor interests yielded on many points in the negotiations to accommodate the positions .l l

I

, . 1

t of the nuclear industry. He would not have done so in cny case if.we had known that the' industry ultimately would not yield to accorrmodate the LSS concept as a whole.

, The same considerations which led the Commission to undertake this

' rulemaking- by, negotiation--that the results of recre thorouch .

' participation would yield a better and more acceptable draft rule--should similarly lead the Ccmmission tc reject the nuclear industry?s position in promulgating the final rule. The proposed system is admittedly elaborate and costly, but it promises to lead to more efficient and effective management of the vast quantity of information required for repository licensing and more meaningful participation in this.important government process. The Commission should not be overly reluctant to' engage in e bit of information age picneering, as this is unquestionably the direction in which information management in complex government regulation and litigation is going. The costs are rict out >f line relative to overall program costs.

Lincoln County, one of the members of the Nevada local government coalition on the negotiating committee noted that --

The: utilities appeur to be reouesting rulemaking and other administrative relief to expedite licensing in a manner which may jeopardize tRe-full and effective participating rights of. potentially affected parties. The'NWPA provision calling for a three-year licensing period was enough of a time concession for the utilities. Any further concessions for the sake of expediency may cause harm to the balance of affected parties.

' Coordination. On January 11, 1989, the Commission voted to establish an independent Of fice of the LSS Acministrater reporting to the Commission for policy direction, and to the Chairman for day-to-day management supervision.

In addition, the Commission renamed the current NRC LSS Negotiating Team as the NRC LSS Internal Steering Committee effective immediately. The Steering i Committee is to serve as the focal point within the Commission to identify, )

develop, and ccordinate internal requirements and procedures, and to represent NRC's interests in the LSS. In order to carry out these responsibilities, and to prepare for coordination with DOE on the design and 1

1

w .

'n 27 development of the LSS, the Steering Committee has begun the preparation of a

.' draft LSS implementation plan. The plan will-address the following --

identification and prioritiration of the LSS design ano development issues ~that need to be addressed with DOE; identification and prioritization of the issues that need to be addressed for implementation of the LSS within the NRC, including a delineation of the role of the LSS Administrator vis-a-vis the Steering Committce and'the'affected NRC Offices;

= preparation of a draft Memcrandum of Understanding between NRC and DOE

.that would delineate the responsibilities of the' respective agencies in

-regard to the LSS; preparation of a draft charter for the LSS Advisory Ccemittee; a schedule for implementation of the plan; j

proposed amendments to the tcpical guidelines.

' l The Ccmmission wculd emphasize that, in crder to acccmplish the LSS l objectives, DOE m0st have the LSS operational as far in advance of the isubmission of the' license application as feasible. The Commission is somewhat cencerned over the DOE statement in its comment on the proposeo rule

'that --

The January 1991 date cited for availability of the Licensing Support System ... is no longer a realistic date. Based on the findings of the preliminary design effort to date and on the best available estimates of an anticipated schedule of procurement for system hardware and software components, elements of the system will be available in late 1992, with comprehensive capabilities now estimated to be available in early 1993.

The Commission realizes that the schedule for submission of the DOE license application may also be delayed beyond the 1995 date now anticipated by DDE.

However, until such a schedule adjustment is an actuality, DOE, with the assistance of NRC and the other affected parties, must make their best

efforts to see that the LSS is operational as scen as practicable before the l license application is submitted. In this regard, DOE, NRC, and other parties sub;ect to the rule must ncw begin preparation for ccmpliance with i the document submission requirements in Secticn 2.1003. Furthermore, the LSS l

Administrator's evaluation of DOE compliance, pursuant to Section i 2.1000(h)(2),beginssixmonthsafterhisorherappointment.

I 1

ADDITIONAL VIEWS E COMMISSIONER CURTISS i

For a number of reasons, discussed in more detail below, I have significant j reservations about proceeding at this point with the so-called "non-LSS" ]

portion of this rule, wherein the Negoti6 ting Committee has recommended extensive changes to our Part 2 proceoures, as those procedures will apply to the Department of Energy's application for a construction authorization for the high-level waste repository. ,

First, it does not appear to me that the original charge to the Negotiating l Committee envisioned that the Committee would address, in a wide-ranging i manner, the so-called Part 2 procedu,ral provisions that will govern the l high-level waste proceeding, except to the extent that changes in these provisions proved to be necessary for the purpose of implementing the Licensing Support System (LSS). The rule before us includes a number of provisions that are necessary to implement the LSS; but it also includes a number of "non-LSS" provisions that are unrelated to the LSS and that, in my ,

juogment, go far beyond the scope of the Committee's charge, l l

Seconc, we hue not had a sufficient opportunity to reflect upon the l "non-LSS" procedural changes that have been proposed -- to ensur e that the i precedures are clear and ambiguous and to reach a decision as tc whether, as a matter of policy, the approach reflected in the proposea procedures should be endorsed. My own view is that there is considerable ambiguity, reflected in part by the apparent lack of consensus on key issues that emerged in the )

February 7, 1989 Commission meeting, about the meaning of certain importent l provisions. '

Third, my concerns in this regard have been heightened by the responses that we recently received from the Negotiating Committee members to the ouestions that I posed cn February 24, 1989. In short, with the exception of the ,

Industry Coalition, the Negotiating Committee members and the lead convenor  !

and facilitatory have individually declined to answer the questions, suggesting that ir.cuiries about the purpose and intent of this rule somehow

s

s. .

threaten the' integrity'of the negotiating process and will lead to the collapse of whatever consensus has been achieved.

l In posing these questions, it was not rey intent to plow new ground or raise new issues that go beyono the topics that are accressed ir. the proposed rule recommended by the Negotiating Ccmnittee in SECY-89-027. Indeed, in every instance, the questions concern the purpose, the intent, and the meaning of

('

.the procedural provisions contained within the four corners of this rulemakino package and involve matters that, in my judgment, need to be clarified if our objective here is to have a rational, well-understood set of procedures to govern the high-level waste adjudicatory proceecing. If these

, matters were discussed and addressea by the Negotiating Committee -- and a consensus achieved -- then the response should require no further negotiation. A simple reference to the text of the rule or to the minutes of the negotiations would suffice. On the other hand, if these matters did not receive the attention of the Negotiating Committee -- or a consensus aces not exist -- then in my judgment that should give us pause about proceeding with changes that are net clearly understood. If we have any hope of meeting the three-year statutory schedule for the high-level waste proceeding, I think we should clear up these ambiguities now.

Whether a consensus was achieved or not, we are nevertheless entitled to a response from the Negotiating Committee about the purpose and intent of the rule that has been proposed for our consideration. We are ill-served by the Negotiating Comittee's inability cr unwillingness to respond to reascndJe questions about the' meaning and purpose of key provisions in this rule. J-Fourth'and finally, there are a number of procedural changes that So beyond, or involve changes in, what the Negotiating Committee has proposed that warrant consideration (see. e.o., Memorandum from Christir.e N. Kohl to llilliam C. Parler, January 19,19C?; SECY-89-023, " Consideration of Revisions to the Comission's Rules of Practice in Order to Further Streamline the High-Level Waste Licensing Process", January 26,1989). I am pleased that thase additional changes will be coming to the Commission shortly for our consideration and I hope that we can move foniard expeditiously with our .

deliberations on these additional changes. But it seems to me that it would  !

be far preferable to make these changes all at one time and in a single package, where we can consider the policy tretters related to our HLW procedures in a comprehensive and coordinated way, rather than through the bifurcated approach that we are now taking.

1/ Indeed, the position taken by the Negotiating Committee in response to the ouestions that have been posed about the purpose and intent of the rule leads me to question the wisdom of relying on the negotiated rulemaking process for future rulemaking initiatives.

~For the forcroing reasons, I would disapprove 'the "non-LSS" previsiers of the rule (sectior.s 2.1014-2.1023, 2.714, 2.722, 2.743, and 2.764, as well as the topical guidelines acd the model'timeline). I would approve those previsions

~ of.the rule that are directly related tc implementation _of the LSS

.(2.1000-2.1013)..

The Final Rule. The final rule adds a new Subpart J to 10 CFP. Part 2 setting forth'the procedures that govern the Commission's HLW licensing proceeding, including the-use of the LSS for the submission and management of documents in the proceeding. -The final rule applies only to the HLW proceeding, and

'does not apply to licensing proceedings involving any other type of facility or activity licensed by the Commission. The rule will be applicable to all parties to.the HLW licensing proceeding regardless of whether a particciar party wes a member of the negotiating committee. No substantive changes have

'bren made to the rul,e as proposed. ,

2.1000 Scope of subpart.

J The final rule establishes a new Subpart J in 10 CFR Part 2 setting forth the )

1 procedures that govern the Commission's HLW licensing proceeding, including the use of the LSS for the submission and management of documents in the proceeoing. Generally, the procedures in the new Subpart take precedence over the provisions of general applicability in 10 CFR Subpart G. However, i

Section 2.1000 cross-references any sections of general applicability in f Subpart G'that will continue to apply to the HLW licensing proceeding. The Lfinal rule applies only' to the HLW proceeding, and dces not apply to )

licensing proceedings for any cther type of facility or activity licensed by

I e 3:

r l the Connission.- The rule will-be applicable to all parties-to the HLW licensing proceeding regardless-of whether a particular party was a member of the negotiating conclittee.

l 2.1001 Definitioris.

Section 2.1001 sets forth the definitions of terms used throughout Subpart J.

'These definitions will be discussed with the relevant sections of the final rul'e .  ;

i 2.1002 High-level Weste Licensing Support System.

Section 2.1002 describes the purpose and scope of the LSS. The LSS is intended to provide full text search capability of, or easy access to, the

" documentary material" of DOE, NRC, other parties to the HLW licensing proceeding; government entities participating in the HLW proceeding as

" interested governmental participants" under 10 CFR 2.715(c); persons who qualify as " potential parties" unoer section 2.1008; and their contractors j

(" parties " " interested governmental participants," and " potential parties," {

will be collectively referred to hereinafter as "LSS participants"). LSS participants must ensure that their contractors, consultants, grantees, or )

)

other agents, comply with the applicable requirements of Subpart J. J I

q For the purposes of the information that will be in the LSS, " documentary a I

material" means any material or other information gerierated by or in the I

i j

l .

l possession of an LSS participant that is relevant to, or likely to lead to l the discovery of information that is relevant to, the licensing of the likely candid 3te site for a geologic repository. .The identification. cf material that is within the universe of " relevant to, or likely to ' lead to the discovery of information that is relevant to, the licensing of the likely candidate site for a geologic repository" will be determined by the topical guidelines set.forth later in this Supplementary Information. In determining

'which cocuments must be placed in the LSS by a LSS participant, the document must fall within the definition of " documentary material" in Section 2.1002, i.e., it must be relevant to, or likely te lead to information that is relevant to, the licensing of the likely candidate site for a

, geologic repository. Therefure, a document must not cnly fall within the topical ' guidelines,,but also have a nexus to a geologic repository. It is also the Commission's intent to issue these topical guidelines as an NRC

. Regulatory Guide.. The topical guidelines set forth later in this supplementary information are interim guidelines to be used uritil a more precise set is issucd in an NRC regulatory guide. The Commission expects all LSS participants to make a good faith effort to identify the documentary material within the scope of section 2.1003. However, a rule of reason must be applied to an LSS participant's oblightion to identify all documentary material within the scope of the topical guidelines. For example, DOE will .

not be expected to make an exhaustive search of its archival material that conceivably might be within the topical guidelines but has not been r,eviewed or censulted in any way in connection with DOE's work on its license application. It is also anticipated that the LSS Advisory Review Panel

_~

t i established pursuant to section 2.1011(e), in evaluating the implementation

'i

!of;the.LSS, may make occasional recummenoaticns to the Ccmmission or whether

-pSrticular categories.of documentary material (e.g., those limited by de .e or subject) shculd still be included within the topical guidelines.

Although the topical guidelines will guide the selection of relevant information for entry into the LSS, they will not be used for the purpose of determining the' scope of contentions that can be offered in the HLW proceeding under proposed section 2.1014. The scope of contentions will be governed by the Commission's authcrity under relevant statutes and regulations.

Section 2.1002(d), specifies that Subpart J is not intended to affect any i

independent right of a potential party, interested governmental participant, or party to receive information or documents. These independent rights consist of statutory rights under such statutes as the Freedom of Information Act (F0IA), or the Nuclear Waste Policy Act, as amended, cr rights derived frem grant requirements such as those between DOE and the State of Nevada.

2.1003 Submission of material to the LSS.

Section 2.1003 sets forth the requirements for the submission of documentary material by LSS participants to the LSS Administrator for entry into the LSS.

LSS participants, excluding DOE and NRC, must submit an ASCII file, a bibliographic header, and an image for all documents generated by the LSS

W~ Q 34

- participant or its contractor _ after the LSS participant gains access to the

- LSS pursuant to either section 2.1000 or secticn 2.1014. Sutmission of these

- documents rust be made reasonably contemporaneous with their creation. For documents generated or acquired before the LSS participant gains access to the LSS, the LSS participant need only submit a hecder and an image for each document. The LSS Administrator will be responsible for entering these documents into the LSS'in searchable full text. DOE and flRC, the generators of the largest volumes of documentary material, will be responsible for submitting to the LSS Administrator ASCII files, bibliographic headers and images of documents within the scope of the topical guidelines. The fortnat

- criteria for the submission and acceptance of ASCII, images, and headers will be: initially established by DOE in concert with the LSS Advisory Committee established pursugnt to proposed section 2.1011(e)(2), to be later supplemented as necessary by the LSS Administrator in concert with the LSS Advisory Review Panel. .

The submission requirements of section 2.1003 generally apply only to final documents, e.g., a document bearing the signature of an empluyee of an LSS participant or its contractors. Hcwever, paragraphs (a) ano (b) of section 2.1003 also require the submission of " circulated drafts" for entry into the LSS. A " circulated draft" means a nonfinal document circulated for supervisory concurrence or signature and in which the original author or others in the concurrence process have non-concurred. The intent of this exception to the general rule on final documents is to capture those documents to which there has been an unresolved objection by the author er

35 -

1

~ other p'erson in the internal management review process (the concurrence process) of an LSS participant or its contractor. In effect, the Commission and the other government agencies who are LSS participants are waivir.E their deliberative process privilege for these circulated drafts. The objection or non-concurrence must be unresolved. Any draft documents to which such a formal, unresolved objection exists must be submitted for entry intc the LSS.

Although many of the LSS participants or their contractors do not have the same type of concurrence process as DOE at:d NRC, the Ccram1ssion expects all LSS' participants to make a good faith effort to apply the intent of this provision to their document approval process.

This requirement applies regardless of whether any final cocument ultimatefy emerges from the LSS participant's decision-making process.

A determination nct to issue a final document, or allowing a substantial period of time to elapse with r.o action being taken to issue a final document, shcil be deemec to be the ccmpletion of the decision-making process. If a decision is made not to finalize a document to which there hcs been an objection, the draft of that document must be entered into the.LSS after the cecision-making procetu on the dccument has been completed, i.e., the requiren4ents of section 2.100S do not require a LSS participant to submit a circulcted draft to the LSS while the internal decision-making process is ongoing. In addition, under section 2.1006(c), circulated drafts that are subject to withholding under a privilege or exception other than the deliberative pretsit privilege (e.g.,

attorney work product), are not reouired to be submitted for entry in searchable full text to the LSS under section 2.100S.

4 l - 'l' l

As a general rule, all documentary material is to.be in the LSS in searchable full: text. However, the rule prcvides for exceptions to this general rule.

Section 2.1003(c) addresses graphic-oriented documentary muterial that is not appropriate for entry into the Licensing Support System in searchable full text. Graphic-oriented documentary material is material that is printed, scripted, handwritten, or otherwise displayed in hard copy form, and is capable.of being captured in electronic image by a digitti scanning device.

Graphic-oriented material includes raw data, computer runs, computer programs and ccdes, field notes, laboratory notes, maps, and photographs which have

.been printed, scripted, handwritten or otherwise displayea in any hard copy form and which,.while capable of being captured in electronic image by a digital scanning device,.may be captured ano submitted to the LSS Administra-tur in any form of image, along with a bibliographic header. Section 2.1003(c) 'also addresses documentary material that is not suitable for entry into the Licensing Support System in either image or searchable full text.

Such material shall be described in the Licensing Support System by a sufficiently descriptive bibliographic header. The timeframe for entry of graphic-oriented material, or material that is not suitable for entry in either image or searchable full text, will be established pursuant tc the access protccols in section 2.1011(d)(10). In addition, submission of images will be determined by the protocols on digitizing equipment established by the LSS Advisory Review Panel. However, in any case, this type of documen-tary material must be entered into the LSS after the principal investigator decides that the data are in a usable form, including the completion of quality assurance procedures. The access protocol should ensure that any

L '. . .

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collection or " package"'of documentary material, as the term is used in

.section 2.1003(c)(3), which relates to a study, shculd be submitted

-rzasonably. contemporaneous with the completion of such a " package," including Lany quality assurance that may be required.

.Ssction 2.1005 sets forth categories of documents that are to be completely excluded from the LSS, and section 2.1006 sets forth the cateoories of

'ocuments d that may be withheld frcm entry into the.LSS on the basis of a

! privilege or exception.- The details of these provisions will be discussed below.

To ensure that progress is made in designing, developing anc loading the LSS, section 2.1003(h) provides fer evaluations of DOE ccmpliance with the requirements of section.2.1003 at six month intervals. The DOE li ense application cannot' be docketed under Subpart J, thus losing the benefits of

Subpart J, unless the LSS Administrator certifies at least six months before the license application.is submitted that DOE is in substantial compliance with the provisions of the Subpart. Although section 2.1003(h)(1) requires the certification decision six months before submission of the DOE license application, the Commission anticipates that the LSS participants will have Jaccess.to the LSS well before the license application is submitted. The LSS i Administrator's decision on DOE compliance may be reviewed by the Pre-License E Application Licensing Board established pursuant to section 2.1010, if the ,

Boerd receives a properly filed petition. Under sections 2.1003(a)(2) and (b)(2), LSS participants are required to submit any documentary material i 1 >

I

. I l

l cenerated or acquired before the LSS participant is given access to.the LSS  :

(" backlog"), no. later than six months before the license applicaticr: for the repository is submitted. However, the Ccmmission encourages LSS participcots to submit this material for entry as soon as possible after they have been given access to the.LSS.

In the event that the LSS Administrator cannot certify DOE 'compl.cnce with

.Subpart.J DOE may 'either postpone the filing of the application until compliance is certified, or can file the license application for docketing under 10 CFR Part 2, Subpart G. In the latter event, the Commission would-note that it will be unlikely to meet the three year NWPA timeframe for a decision on the issuance of a construction authorization, in the event of a contested adjudicatory proceeding. Althcugh DOE may ultimately come into compliance with the provisions of Subpart J at scme point after the licer.se application has been docketed under Subpart G, the Consission may still not be able to. certify that the statutory timeframe will be met. However,

.section 2.1003(h)(3)(ii) does authorize the Commission to specify the extent to which Subpart J will apply if DOE later comes into compliance. The Commission is cptimistic that the effective implementation of the rule i

proposed in this notice will allow the Commissicn to meet the schedule set forth in Section 114(d) of the NWPA.

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2.1004 Amenoments and additions.

This section provides for the addition to, ar.d amendment of, records submitted by the LSS participants. The submitter has sixty duys to verify whether~a document has been enterea correctly in the pre-license application phase, and five days to verify correct entry after the license application has been submitted. Any errors in entry discovered during the sixty crc five day periods may be corrected by the submitter. After the time period for verification has run, any errors may not be corrected by revising-the original document. Rather, the st.tnitter must submit a corrected version to the LSS Administrator, with a separate bibliugrcphic header. Both the bibliographic ht.uder for the reviseo occument and the original cocument must i

note that two vert ans of the document are in the LSS.

Section 2.1004 also addresses the issue of updates of documents that are hiready in the-LSS. Updated pages must be submitteo to the LSS Administri. tor for entry as a separate document with a separate bibliographic header. The bibliographic header of the original document must specify that an update is available. All the pages in a particular update will be entered as a single l document.

Section 2.1004 addresses amendments and additions to the documentary material in the LSS. This section does not preclude the LSS Administrator from making 1 revisions to headers necessary to maintain and enhance the usefulness of the header information. Such revisions would include the following --

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'~ updating assigned subject index terms as the~ thesaurus is enhanced anc

, expanded, ,

• where a field containing pointers to cross-reference related documents subsequently added o the database must be updated, 1

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where the ebility to annotate a document record tu show later use(s) as exhibits to depositions and testimony may be required ct a later t.me.

Section2.1004(e)requiresthatanydccumentthathasbeenincorrectly excluded from the LSS must be submitted to the LSS Administrator for. entry within two days of its identification by the LSS participant who is responsible for the submission of the document.

2.1005 Exclusions.

.Section 2.1005 estab,lishes several categories of documents that do not have sto be entered.into the LSS, either under the requirements of section 2.1003 or under the derivative discovery requirements of section 2.1019. These exclusions includeLdocuments typically referreo to es officiel notice material; reference books and text books; soministrative meterials such as general distribution cover memoranda, budget, finance, personnel, and procurement materials; press clippings and press releases; junk mail; and classified material. The scope of work on a procurement related to repository siting, construction, or operation, or the transportation of spent nuclear fuel or high-level waste is not within the sccpe of these exclusions.

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j- 2.1006 Privilege.

l The submission of documents to the LSS is subject to the traditional privileges from discovery recognized in NRC adjudicatory proceedings, as well as all the exceptions from disclosure contained in 10 CFR 2.790 of the l

i Commission's regulations. These privileges and exceptiens include the attorney-client privilege, the attorney work product privilege, the goverr. ment's deliberative process exemptien, protcction for privileged or ,

confidential ccmrrercial or financial information, and the protection of j safeguards information. The Pre-License Application Licensing Boarc,

. pursuant'to section 2.1010(b), will rule on any claims of withholding based on these privileges or exceptions. As in any NRC adjudicatory proceeding, the Board may rule that the release of privileged or excepted ecterial is necessary to a proper decision in the proceeding, or may order the disclosure of a document under a protective orcer. Section 2.1006(a) extends the deliberative process privilege' normally available to federal goverr. ment agencies to state and local governments and Indian Tribes. Sofeguards information is to be protected under the provisicns of 10 CFR 73.21. Sut.part I of 10 CFR Part 2 will gevern the protection and cisclosure of any Restricted Data and National Security Information during the proceeoing. The existence of any material of this type should be identified to the Licensing Board and the parties pursuant to 10 CFR 2.907 and is not subject to the requirerrents of section 2.1003. Accordingly, no. headers need be submitted for Subpart I information.

- 2.100~/ Access.  !

i Section 2.1007 establishes the provisions for access to the LSS by the public and by LSS participants. In terms of public access, the NRC and CCE will provide public access terminals at their respective Public Document Rooms at headquarters in Washington D.C., at NRC regional offices, and at various locations in the vicinity of the likely candidi's site for the repositcry.

In the pre-license application phase, access to the LSS through these public access terminals will ccnsist of full text search capability of the full headers for documents in the LSS. The NRC and DOE Public Document Rooms will provide access, consistent with current practice, to the paper copy or microfiche of the documents of that agency before access to the LSS is available (currently projected for January 1992). Once the LSS is operational, public access to the LSS headers will be available within the same timeframe that the headers and LSS documents are available to LSS participants. In addition, copies of specific DOE or NRC dccuments may be requested under the procedures of the agencies' Public Document Rooms and the FOIA regulations of the NRC, 10 CFR Part 9, or DOE, 10 CFR Part 1004. These regulations providt. for a ten day response time to requests, 10 CFit 9.25(e) and 10 CFR 1004.5(d)(1), and the waiver of copying fees to qualified persons, 10 CFR 9.39 and 10 CFR 1004.9(a). Public access to the full text of all documents in the LSS, except for documents withheld from disclosure under section 2.1006, shall be provided after the notice of hearing is issued for the HLW licensing proceeding. DOE and NRC will ensure that acequete terminal access facilities are provided at the public document rocms.

Remote access to the LSS from individual computer facilities will be available to LS3 participants both curing the pre-license application phase and after.the notice cf hearing has been issued. The cost cf the computer facility and the telephune connect charge rust be borne by the LSS participant. However, they will not be assessed a cent ~al processing unit (CPU) charge for access to.the LSS. LSS participants will be able to file an electronic request for paper copies of LSS dccuments from their individual computer facilities, and also will be able to file an electronic request for a fee waiver when requesting paper copies of documents in the LSS. This waiver is currently available to qualified persons or groups seeking a fee waiver for copies of MRC documents who submit a written reauest to the Commission under the Commission's Freedom of Information Act (FOIA) l regulations in 10,CFR Part 9.

The criteria in 10 CFR 9.39 would be used to determine if the requestor should be granted a fee waiver. Sectico 2.1007(c)(4) would authorize the Commission to grant a generic fee waiver to a qualifying LSS participant after the initial request for a fee waiver has '

been made.

Documents in the LSS will not be considered NRC agency records solely by virtue of the NRC being the LSS Administrator. Hcwever, any of those documents that were generated by or submitted to the NRC as part of the NRC's licensing responsibility for the repository will be NRC agency records. As noted above, documents considered agency records may be requested under a FOIA request to the NRC. Similarly, DOE recorcs may be reouested from DOE under a F0IA request, and the records of any other governmental entity that

1 .

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may be obligated to provide documents by virtue of a freedom of information )

statute (e.g., a State acency) may be rec;uested. It is anticipated that the public availability of headers fur LSS documents will facilitate freedom of information reauests and responses.

2.1008 Potential parties.

Section 2.1008 establishes the procedures for a person becoming a potential party during the pre-license application phase, thereby gaining access to the LSS during this period. Upon a petition frcm an interested person, the Pre-License Application Licensing Board, established pursuant te sect ~.an 2.1010, will cetermine in accordance with section 2.1008(c) if the person meets the criteria in section 2.1008(b). These criteria consist of the factors for determining intervention status under section 2.1014(c) or the criteria in 10 CFR 2.715 f or interested governmental participation, both as ,

evaluated in reference to the topical gu?delines set forth below.

A grant of access to the LSS pursuant to section 2.1008 before ar, application is filed dces not carry a presumption that a potential party will be admitted as a party after an application is filed under section 2.1014 or as an interested governmental participant under 10 CFR 2.715. Although

~

Section 2.1014(c)(4) of the proposed rule provided that the Hearir.g Licensing Board would consider pre-license application access to the LSS as one factor in ruling on petitions for intervention, this provision hos been deleted.

Under Section 2.1014(c), the Ecard must still consider the nature of the

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A petitioner's right under the Atom'ic Energy Act; the nature and Lstent of the petitioner's property, financicl, or. other interest in the proceeding; and 4

the possible effect of a'ny order that may be entered in the proceeding on the i petitioner's. interest. Therefore, the Commissicn did not believe that pre-license applicat' ion access would have any meaningful effect on the Board's determination on intervention petitions. It should be emphesized 1*

that a' petitioner must also satisfy section 2.1014(a)(2).in regard to an l

' admissible contention in order to p6rticipate in the proceeding.

. An LSS participant's access to the LSS' obligates it to comply with the regulations in Subpart J, including compliance with all oroers of the Pre-License Application Licensing Board.

2.1009- Procedures.

Section 2.1009 specifies the procedures each LSS participant must follow to ensure implementation of the requiren. ants in Subpart J, including establishing.. procedures to ensure that documentary material is identified and submitted for entry.into the LSS. Each LSS participant must identify a specific individual as the LSS point-of-contact. This individual must certify, at six month intervals, that all documentary material for which the LSS participant is responsible under this subpart has been identified and

' submitted to the LSS.

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2.1010 Prt:-License Application Licensing Board.

l Section 2.1010 establishes an NRC Pre-License Application Licensing Doerd to rule on requests for access to the LSS during the pre-license application

\

phase, and to resolve disputes over the entry of docunients and the development and implementation of the LSS by 00E and the LSS Administrator.

The'Ecard will'be~ appointed six months before access to the LSS is scheduled to become available. The Board possesses the same general powers as other NRC Licensing Boards possess under 10 CFR 2.718 and 10 CFR 2.721(d). In

.'orcer to gain access to the LSS during the pre-license application phase, an LSS participant must agree to comply with all orders of the Pre-License

' Application Licensing Board, and all LSS regulations. Practice before the PALB is essential]y.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 new the case), depending on the nature of the dispute. See, for example, Sections 2.1010(d) and (e), Section 2.1015, and Section 2.1016.

2.1011 LSS management and administration.

Section 2.1011' establishes an LSS Administrator who will be responsible for

~

managing, operating, and maintaining the LSS. Because the LSS will centain in electronic form, the documentary material constituting the Commission's ,

docket and official record for the repository licensing proceeding, and

47 -

because use of the LSS will be an integral part of the Commission's adjudicatory hearing on the license application, the NRC will serve as the LSS Administrator. In order tc avoid any conflict-cf-interest problems, the LSS Administrator cannot be any person or organizational unit that either represents the U.S. Nuclear Regulatory Commission staff as a party to the high-level waste licensing proceeding or a part of the management chain reporting to the Director of the Office of Nuclear Material Safety and

. Safeguards. The Commission has decided to establish an independent Office of the LSS Administrator reporting to the. Commission for policy directicn and to the Chairman for day-to-day management supervision. The LSS Administrator (like other Commission-level offices) will report to the Commission for overall policy direction en all LSS matters except the certification of DOE ccmpliance requirgd,by ! 2.1003(h)(1). The LSS Administrator will make that determination on his/her own, subject to formal adjudicatory review (upon request) by the Pre . License Application Licensing Board ($ 2.1010(a)(1)), the Appeal Board (s 2.1015(b)(1)), and, finally, the Commission itself (52.1015(e)).

l l On a related issue, with the exception of the Conmission in its role as LSS Administrator (see the definition of "LSS Administrator in section'2.1001),

1 the LSS cannot reside in any computer system that is controlled by any LSS i participant, including its contractors, and cannot be physically located on l

l the premises of any LSS participant or its contractors.

1 i

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - _ _ _ _ _ - J

'The LSS 1s to be designed and developed by DOE censistent with the requirements in Subpart J. This responsibility includes ell procureraent of hardware and softwere. However, the design cr:d development of the LSS by DOE must be undertaken in consultation with the LSS Administrator. After the LSS has been designed and becomes operational, all redesign and procurement by DOE must be with the concurrence of the LSS Administrator.

.Section 2.1011(e) provides for the establishment of an LSS Advisory Review Panel, which will'be chartered under the Federal Aavisory Committee Act, to eovise DOE on the design and development of the LSS, and to advise the LSS

-Administrator on the implementation of the LSS. The LSS Administrator ippoints the members of the Advisory Review Panel from members of the Licensing Support,Svstem Advisory Committee established pursuant to section 2.1011(e)(2) within sixty days ofter the LSS Administrator has been designated. The Licensing Support System Advisory Committee will be composed of the State of Nevada, the coalition of affected units of local government in Hevada that served on the negotiating committee, DOE, NRC, the National Congress of American Indians, the coalition of national environmental grcups that served on the negotiating committee, and other members as the Comission may designate pursuant to the balanceo membership requirements of FACA.

Because DOE is now in the process of designing the LSS, the Advisory Review Panel is not yet available to provide advice and recommendations to DOE. In the interim period between publication of the final rule and appointment of the Advisory Review Panel by the LSS Administrator, the LSS Advisory

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Committee will perform the functicns of the Advisory Review Panel set forth

.in s'ection 2.1011(e).

l

'It is the Commission's intent that, after the commencement of the hearing, th2 prir.ary focus ch the Advisory Review Panel will be on broad, long-term, technical issues. Any immediate problems with the functioning of the LSS during the hearing will be addressed by the LSS Administrator or the Hearing -

Licensing Board.

It is anticipated that the DOE and NRC will enter into a Memorandum of Linderstanding (MCU), consistent with the requirements of the rule, on the

. design and development of the LSS.

~.

Section 2.1011(d) sets forth the responsibilities of the LSS Administrator including providing the necessary personnel, materials, and services for the operation and maintenance of the LSS, and entering the documentary material submitted pursuant to section 2.1003 in searchable full text, as appropriate.

2.1012 Compliance.

.Section 2.1012 establishes provisions to ensure compliance with the l requirements of Subpart J, particularly the document submission requirements of section 2.1003. DOE may not submit the license application for docketing

'under Subpart J unless the LSS Administrator certifies that DOE is in ,

substantial and timely compliance with section 2.1003. In addition, under l

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section 2.1012(b)(1), no person may be granted party or interested governmental participant status in the hearing if it is not in substantial ~

'and: timely compliance with the requirements of section 2.1003. A person who is not in substantial and timely compliance at the time specifiec for the submission of petitions to intervene or to become an interested governmental participant, may later come into compliance and be admitted to the hearing, assuming they meet.all the other requirements in-section 2.1014 or 10 C'FR

~2.715(c)-foradmission. However, persons admitted to the hearing under this provision must take the proceeding as they find it. The Hearing Licensing Board will not entertain any requests from such a person to delay the proceeding in crder for that person to compensate for time missed in the hearing. Section 2.1012(d) prcvides for the termination or suspension of en LSS participant's, access rights if it is in noncompliance with ar.y applicable order of the Pre-License Application Licensing Board or the Hearing Licensing Bcard. However, any loss of access under this section does not relieve an LSS participant of its responsibilities in ccr.nection with the service of pleadings under section 2.1013 of this subpart.

2.1013 Use of LSS during adjudicatory proceeding.

Section 2.1013 establishes procedures for the electronic submission of pleadings during the hearing, or during the pre-license application phase for prcctice before the Pre-License Application Licensing Board under secticn 2.1010, for the electronic transmission of Board and Commission issuances and orders, as well as for on-line access to the LSS during the hearing. Under

t I

section 2.1D13(a) the Secretary of the Commission maintains the official docket pursuant to the requirements of 10 CFR 2.702. In this regard, each potential party, party, or interested governmental participant must submit a signed paper copy of each electronic adjudicatory filing ;.0 the Secretary.

The staff would emph'asize that section 2.1003 also applies to the submission of pleadings during the hearing. Therefore, an ASC II file, a header, and an image of_the pleading must also be sub'mitted to the LSS Administrator. The final rule gives the Secretary the flexibility to establish the official

. docket in either hard copy or electronic form depending on the details of LSS design and the records management requirements of the Federal Archives.

Absent good cause, all exhibits tendered during the hearing must have already been entered into the LSS prior to the commencement of th6t portion cf the hearing where the, exhibit is to be offered.

2.1014 Intervention.

Section 2.1014 establishes the standards for intervention in the HLW proceeding. Section 2.1014 incorporates several of the provisicns currently in the 10 CFR 2.714 ceneral stancards for intervention. Accordingly, any provisions of section 2.1014 that remain unchanged from the 10 CFR 2.714 provisions are to be interpreted according to the existing practice. Section 2.1014(a) requires petitions for intervention and proposed contentions to be filed at the same time, as well as petitions to participate unoer secticn 2.715(c) -- both within thirty days after the notice the hearing. In addition,to the factors new in 10 CFR 2.714(a)(2), section 2.1014(a)(2)

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r'eo.uires the petition to reference with particularity the specific document 6ry material, or absence thereof, that provides the basis for the contention, and the. specific regulatory or statutory requirement to which the contention is relevant. .This codifies existing Commission practice in regard

-to contentions.

i

- Section 2.1014(a)(4) allows the adding or amending of contentions, including contentions based on the NRC Staff Safety Evaluation Report (SER).

Contentions added or amended before the issuance of the SER will be evaluated according to the factors for ncntimely f111ngs in section 2.1014(a)(1).

' Contentions based on information or issues' raised in the SER must be made within forty' days after the issuance of the SER and will be evaluated according to the , factors in 2.1014(a)(1). The SER is to be issued within eighteen months after the license application is docketed. Any petitions to amend or add contentions made more than forty days after the issuance of the SER, ir, eddition to the factors for nontimely filing in section 2.1014(a)(1),

must include a showing that the contention involves a significant safety or environmental issue or raises a material issue related to the performance evaluation anticipated by 10 CFR 60,112 or 10 CFR 60.113. In this context,

" material" may involve items that are material to demonstrating compliance with sections 60.112 or 113 but which in and of themselves may not constitute a significant safety or environmental issue.

Although section 2.1014(a)(4) places some adoed restrictions on the amending l or adding of contentions compared to 10 CFR 2.714, the Conmission believes l

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y

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' that the early availability of documents through access to the LSS will facilitate the. preparation of timely and better b6:ed' contentions at the outset of the proceecing, as compared to the traditional NP.C licensirig

- proceeding where contentions must be prepared without the benefit of prior i.

discovery.

Section 2.1014(c) establishes the standards for permitting intervention in -

i the HLW proceeding. Intervention is permitted as a matter of right by an affected unit of local government as defined in section 2(31). cf the NWPA or

' by any affected' Indian Tribe as defined in 10'CFR Part 60 of the Commission's regulations. The State of Nevada like DOE or the NRC, is autcmatichily a partytotheHLi4 proceeding,assumingthataNevadasiteisthesubjectof the DOE license application. All other petitions to intervene will be [

l evaluated according to the factors in section 2.1014(c)(1) through (3). ,

2.1015 Appeals. 1 i

Section 2.1015 sets forth the procedures for 6ppealing decisions of the Pre-License: Application Licensing Board or of the Hearing Licensing Board.

Unlike the existing appeals process, appeals from certain types of interlocutory orders, such as rulings on the admissibility of contentions, must be' filed within ten days, rather than at the conclusion of the proceeding.

4 2.1C16 Motions Section 2.1016 establishes the procedures'for motions practice ir, the HLW proceeding. The final rule does not contain a provision similiar to 10 CFR 2.730(d) in regard to oral arguments on motions. However, this omission is not intended to change existing practice, i.e., requests for oral argument on substantive motions are liberally grented. It is within the discretion of the Board to allow arguments on motions under 10 CFR 2.755.

2.1017 Computation of time.

Section 2.1017 specifies the computation cf time for an act or an event for the HLW licensing, proceeding. Because of the availability of the electronic transmission of pleadings through the LSS, one day instead of five days is allcwed for the transmission of documents in response to the service of a notice er other document. This will save substantial time curing the hearing. The use of electronic transmission is addressed in section 2.1013.

If the LSS is unavailable for more than fcur access hours of any day that would nc.mally be counted in the computation of the time for filing, that day teill not be counted in the computation of time. Hcwever, this would not include periods of LSS unavailability due to a malfunction of the LSS participant's eouipment or to the operation of that equipmerit.

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2.10181 Discovery.

. Sectio'n 2.1018 specifies the scope and timing cf discovery in the HLli licensing ' proceeding.:-The LSS provides the document discuvery in the PLl!

__licansing proceeding', supplemented by the derivative discovery in section 2.1019. ' Discovery is limited to access to the documentary material in the LSS; entry upon land for inspection and access to raw data; oral depositions; requests for admissions;'and. informal requests tur information. These infomal requests would be for the type of information normally gathered through~ the' use of written interrogatories, such as the names of all party's witnesses and the subjects they will aooress. Therefore, the final rule does

.not generally provide for the use of written interrogatories or depositions upon written ques,tions. However, if the informal discovery process does not satisfy a request for information, 2.1018(a)(2) provides a mechanism for the use of written interrogatories or depositions upon written questions, by

. order of a Discovery Master appointed under section 2.1018(g). If no Discovery Master has been appointcd, the Hearing Licensing Board itself may consider these petitions. Although informal discovery may begin in the i

pre-license application phase, an order compelling discovery through written interrogatories or through depositions on written questions can be issued by the Discovery Master or the Hearing Licensing Board only after the license application has been docketed.

The required showing of substantial need in regard to discovery for an LSS participant's " representatives" in section 2.1018(b)(2) does not include

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" consultants" to a LSS participant, unless the censultant's responsibilities are to assist in preparation for litigation.

Section 2.1018(c) empwers the Board to issue an order to protect a party from abuse of thel discovery process. As noted earlier, the objective of the negotiated rulemaking is to provide for the effective review of and hearing on the DOE license application within the three year time period specified in Section 114(d)'of the NWPA. Consistent.with this objective, section 2.1018(c) includes criteria to prevent abuse of the discovery process from frustrating this objective. In ruling.cn motions to protect a party from a particular discovery' request, the Board may consider any " undue delay" that would result from the discovery request, as well as the failure to respond to a discovery request. Under this criterion, the Board will review any motion for a protective order frcm a particular discovery request, including a request for a written deposition, to determine whether the request creates the potential for unreasonably interfering with meeting the three year

. schedule. When'a party or an interested governmental participant reasonably believes that the Board has not ruled in accordance with this rule and its underlying policy, it may seek review pursuant to directed certification  ;

undar section 2.718(i) of this part. The Commission itself may entertain such requests and will apply the criteria for granting directed certification liberally. The Hearing Licensing Board or Discovery Master may also consider undue delay as a basis for granting a petition for the use of written interrogatories or depositions on written questions under section 2.1018(a)(2).

L l C in addition, sections 2.1021 and 2.1022, on the first and second pre-hearing conferences respectively, provide for the establishment of discovery schedules by the Board. In establishing these discovery schedules, the Scard must consider the objective of meeting the three-year schedule specified in the NWPA, as well as the early availability of information made possible by the Licensing Support System. Furthermore, the Board should exercise all due l

' diligence to ensure that discovery is completed within two years of the notice of hearing. However, this would not prevent the Board from establishing a sched' ale that provided for less than a continuous two-year period of discovery, or determining whether any disccvery is necessary after the second pre-hearing conference.

Section 2.1018(f) anticipates the application of the traditional sanctions by the Licensing Board for failure to respond to a discovery request, including the issuance of an order for a response or enswer to a discovery request.

2.1019 Depositions.

Section 2.1019 provides for discovery through the taking of depositions.

Section 2.1019 basically follows the content of the general deposition rule in 10 CFR 2.740a. However, section 2.1019(i) provides for the derivetive discovery of documents during the deposition. This prevision establishes requirements for the disclosure, and entry into the LSS, of material in a ceponent's possession that would not be requireo to be initially entered inte the LSS under section 2.1003. This includes personal rccords, travel

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. vouchers,' speeches, preliminary drafts, and marginalia. " Preliminary drafts"

.means'any nonfinal document that is not a circulated draft..i.e., on which no-formal, unres0lved cbjection or nonconcurrence has been made. " Marginalia"-

means handwritten, printed, or other types.of notations added.to a document, excluding underlining and highlighting.

2.1020 Entry upon. land for inspection.

Section 2.1020 establishes'the procedures for parties to gain access to the

. land:or property in the pessession or control of another party or its contractor for the purpose of inspection and access to raw data. However.

this-provision should not be construed as expanding any of the rights contained in Section 116 or Section 118 of the fiWPA, or any other applicable statutory or regulatory restrictions, releted to site investigation.

2.1021 First prehearing conference.

Section 2.1021 establishes a first pre-heering conference in the HLW proceeding. The first pre-hearing conference will ioentify the key issues in the pr'ceeding, o and consider petitions for intervention.

-2.1022 Second prehearing conference.

Section 2.1022 establishes a second pre-hearing conference in the HLW licensing proceeding. The second pre-hearing conference is to be held not

2

.,*i later than seventy days after the MRC staff Safety Evaluation Report is issued. The second pre-hearing conference will censider new or. amended contentions, stipulations 'and admissions of fact, identification of witnesses,'and the' setting of a hearing schedule.

2.1023 -Immediate' effectiveness.

Section 2.1023.provides for an immediate effectiveness review of the LicensikgBoard'sinitialdecisionontheissuanceofaconstruction authorization. -The Ccmmission's' existing regulations in 10.CFR 2.764 do not provide for an'immediate effectiveness review. Rather 10 CFR 2.764 recuites a Commission decision on the substantive merits of the Licensing Board decision before a; construction authorization decision can be final. Section 2.1023 would' authorize the Director of the NRC Office of Nuclear Material Safety;and Safeguards to allcw. DOE to proceed with construction, assuming a .

-favorable Licensing Board decision, .if the Commission did not suspena the Licensing Board decision after its supervisory immediate effectiveness Lreview, or the Appeal Board did not stay the effectiveness of the initial decision unoer 10 CFR 2.788. The Appeal Board and the Commission would then undertake a review of the substantive merits of the initial Licensing Board

. decision. Issuance of the construction authorization under these circumstances would be'the event that tolls the time period for determining

.whether the NWPA three year time frame for the decision on the construction authorization had been satisfied.

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Schedule

.In order to assist tho Fearing Licerising Board in establishing a schedule for the HLW proceeding that will facilitate meeting the timeframe specified in the NWPA for'a. Commission decision on construction authorization, the

.Ccmmission has prepared the following model timeline. This timeline is

' intended for general guidance only, and is not intended to suggest any predisposition by the Ccmmission on the merits ef D0E's future license application.

Day Reaulation- Action 0- 10 CFR 2.101(f)(8) . Fed. Reg. Notice of Hearing 2.105(a)(5) 30 2.1014(a)(1) Pet. to intervene / request for hearing, w/ contentions 2.715(c) Pet for status as interested govt. participant (IGP) ,

50 2.1014(b) Answers to intervention & IGP petitions 70 2.1021 1st Prehearing Conference 100 1st Prehearing Conference Order: identifies participants in proceeding, adraits contentions, and sets discovery and other schedules 2.1018(b)(1) Deposition discovery begins 2.1019 110 2.1015(b) Appeals from ist Prehearing Conference Order, w/ briefs ,

120 2.1015(b) Briefs in opposition tc appeals

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.a ' *

[..

'150 AC crder ruling on appeals from ist Prchearing Conference Orcer

.548 NRC staft issues'SER 588. 2.1014(a)(4) Fetitions to amend contentions

.' based on SER CCS 2.1014(b) . Answers to petitions to amend SER-related contentions 618 2.1022 2nd Prehearing Conference .

648 2nd Prehearing Conference

. Order: rules on amendeo contentions, sets any further discovery schedule, and sets schedule for prefiled testimony and hearing 658 '2.1015(b)- Appeals from 2nd Prehearing Conference Order, w/ briefs -

668 2.1015(b)- Briefs in.cpposition to appeals 698 AB order ruling on appeals from 2nd Prehearing Conference Orcer 700 2.749 (set by LB) Final Motions for summary disposition 720 2.749 Replies to final motions for summary disposition 730 Supp. Info. Discovery complete 740 LB order on final motions for sumary disposition 750 2.1015(b) Appeals from final summary disposition , order, w/ briefs 760 Evidentiary hearing begins 2.1015(b) Briefs in opposition to appeals from final summary disposition orders

- - _ _ _ _ - _ _ - . l

, r ,

l 0

t 790 AB order on appeale, from final sumery disposition orders G50 Evidentiary hearing ends 880' 2.754(a)(3) Applicant's= proposed findings 890 2.754,(a)(2) Other parties' (except NRC staff's) proposed findings

'900 2.754(a)(2) NRC staff's proposed findings 905 2.754(a)(3) Applicant's reply to proposed

. findings 995 2.760 -

Initial Decision 2005- 2.788(a). Stay motions to AB 2.762(a) Notices of Appeal 2.1015(c) 1015 2.788(d). Replies to stay motic,ns 2035 AB ruling on stay motion 2.,762(b) Appellant's briefs L .3045 2.788(a) Stay motions to Commission 1055 2.788(d) Replies to stay motions 1065 2.762(c) Appellee's brief 1075 2.762(c) NRC staff brief 1095 2.1023 Ccmpletion of HMSS and Supp. Info. Comission supervisory review; Conrr.ission ruling on any stay motions;. issuance of construction authorization; NkPA 3-year period tolled 1105 2.763 Or.al argument on appeals 1165 Appeal Board decision 1180 2.1015(e) Petitions for Commission review 2.786(b)(1) 1190 2.786(b)(3) Replies to petitions

1250 Commission decision Topical Guidelines The following topical guidelines are to be used for identifying the documentary material that should be submitted by LSS participants fcr entry into the LSS under section 2.1003. The topical guidelines will also be used by the Pre-License Application Licensing Board for eva.luating petitions for access to the LSS during the pre-license application phase under secticn 2.1008.

I. CATEGORIES OF DOCUMENTS

- Technical reports End analyses including those developed by contractors

- QA/QC records including qualification and training records

- External correspondence Internal memoranda Meeting minutes, including DOE /NRC meetings, Commission meetings Drafts (i.e., those submitted for decision beyond the first level of management or similar criterion)

Congressional Q's & A's

" Regulatory" documents related to llLW site selection and licensing, such as:

Draft and final environmental assessments Site characterization Plans

- Site characterization study plans

- Site characterization progress reports

- Issue resolution reports Rulemakings

- Public and agency comments on documents

- Response to public comments

- Environmental Impact Statement, Comment Response Document, and related references

- License Application (LA), LA data base, and related references

l J

l

- Topical reports, data, and data analysis )

- Recommendation Report to President

- Notice of Disapproval, if submitted TI. GENERAL TOPICS

1. Any document pertaining to the location and potential of valuable natural resources, hydrology, geophysics, tectonics (including volcanism),

geomorphology, seismic activity, atomic Energy defense activities, proximity to water supplies, proximity to populations, the effect upon the rights of users of water, proximity to components of the National Park System, the National Wildlife Refuge System, the National Wildlife and Scenic River 5,ystem, the National Wilderness Preservation System, or t'ational Forest Lands, proximity to sites where high-level radioactive waste and spent nuclear fuel is generated or temporarily stdred, spent fuel and nuclear waste transportation, safety factors involved in moving spent fuel or nuclear waste to a repository, the cost and impact of transporting spent fuel and nuclear waste to a repository site, the advantages of regional distribution in siting of repositories, anc various geologic media in which sites for repositories ruay be located.

2. Any document reltted to repository design, siting, construction, or operation, ur the transportation of spent nuclear fuel anc high-level nuclaar waste, not categorized as an "excluced document", generated by or in the possession of any contractor of the Department of Energy, the Nuclear Regulatory Commission, or any other party to the HLW licensing proceeding.

3. All documents related to the physical attribute:: cf the Basin and Range Province of the continental United States.

4. Any document listing and/cr considering any site or locaticn other than Yucca Mountain as a possible location .for a high level nuclear waste repository, or any alternative technology to deep geologic dispcsal.

5. Any document analyzing the effect of the development of a repository at Yucca Mountain on the rights of users of water in the Armagosa ground-water basin in Nevada.

6. Any document analyzing the health and safety implications to the people and environment of the transportation of spent fuel between locations where spent fuel is generated or stored and Yucca Mcuntsin, Nevada, or any ,

other site nominated for repository characterization on May 28, 1980, including, but not limited to:

a. Any analysis of possible human error in the manufacture of spent fuel casks;

b. Any analysis of the actual populction den:iity along all of any specific projectec routes of travel;

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c. Any analysis of releases from any actual radioactive material transportation incidents;

d. Any analysis of the emergency response time in any actual radioactive materials transportation incident;

e. Any actual accident data on any specific projected rcutes of travel; .

f. Any calculations or projections of the probabilities of

' accidents en any specific projected routes of travel;

g. Any data on the physical properties or containment capabilities of spent fuel casks which have been used or which are projected to be used at any hypothetical or actual projected repositury;

h. Any analysis of modeling of the containment capabilities of spent fuel casks under a stress scenario;

i. Any analysis or comparison of spent fuel casks projected to be used against the spent fuel cask certification standards of the Nuclear Regulatory Commission;

j. Any analysis of the containment capabilities of spcnt fuel casks containing spent fuel which has been burned up over an extended period.

7. Any document analyzing or comparing Yucca Mountain, Nevada, with any other site in the same gechydrologic setting.

8. Any document relating to potential interference or incompatibility between a Yucc; Mountain, Nevada, high-level nuclear waste repository and atcmic energy defense activities at the Nevada Test Site and Nellis Airforce base.

9. Any document related to the land status, use or ownership of Yucca }

Mountain, Nevada.

10. Any document considering or analyzing the attributes or detriments of any engineered barrier upon the radionuclides isolation capability of Yucca flountain, Nevada, or any other site censidered.

11. Any document evaluating the effect of extended fuel burn-up on Yucca Mountain, Nevada's adeouacy as a repository site for disposal of spent fuel or upon the design of any such theoretical repository.

12. Any document analyzing or investigating the potential for discharge of radionuclides into the Death Valley National Menument.

13. Any document analyzing the recharge of the underlying saturated zone or the hydroconductivitiy of the unsaturated zone at Yucca Mountain.

14. Any document containing any dath or analysis cf volcanism in the geologic setting of which Yucca P.cuntain is a part.

15. Any document containing any data or analysis cf tectonic events at Yucca Mountain, or pertaining to the tectunic framework of the Yucca Mour.tain area or any document containing any data or anclysis of f aults with cr without surface expression in the area of Yucca Mountain.

16. Any document containing instructions or other limitations on the scope of work to be performed by Department of Energy personnel or contractors' personnel.

17. Any document pertaining to preventien or control of human intrusion at the Yucca Mountain site. .

III. SPECIFIC TOPICS

1. The Site A. LOCATION, GENERAL APPEARANCE AND TEF. RAIN, AND PRESENT USE B. GE0 LOGIC CONDITIONS

1. Stratigraphy and volcanic history of the Yucca Mountain crea

a. Caldera evolution and genesis of ash flows

b. . Timber Mountain Tuff c.' Paintbrush Tuff

d. Tuffaceous beds of Calico Hills

e. Crater Flat Tuff

f. Older tuffs _

g. Sedimentary units

h. Basalts

2. Structure l 3. Seismicity

4. Energy and mineral resourcos

a. Energy resources

b. Metals

c. Nonmetals

5. Paleontology

6. Mineralology

7. Geomorphology

8. Tectonics

a. Faulting

b. Stress

c. Uplift / subsidence

d. Volc6nism C. HYDROLOGIC CONDITIONS

n c.

1. Surface water.

2. Ground water

a. Ground water movement lb. Ground water quality

3. Present and projected water use in the area

4. Groundwater resources

5. Climatolgy

6. Meter, ology D.- GEOCHEMISTRY

1. Rock chemistry of the overlying and underlying host units

2. Water chemistry of unsaturated or saturated zones  ;

3. Alteration '

t. . Retardation and transport E. ENVIRONMENTAL SETTING

1. Land use

a. Federal use

b. Agricultural

1. Grazing land

11. Croplana

c. Mining

d. Recreation

e. Private and commercial development

, 2. Terrestrial and aquatic ecosystems

6. Terrestrial vegetation

1. Larrea-Ambrosia ii. Larrea-Ephedra or Lurrea-Lycium iii. Coleogyne iv. Mixed transition

v. Grassland-burn site

b. Terrestrial wildlife

1. Mammals

11. Birds iii. Reptiles

c. Special-interest species

d. Aquatic ecosystems

3. Air quality and weather conditions: Air qual'ity

4. Noise

5. Aesthetic resources

6. Archaeological, cultural, and historical rescurces

7. Radiological background

a. Monitoring program

b. Dose assessment F. TRANSPORTATION

1. Highway infrastructure and current use

2. Railroad infrastructure and current use

.b-

.G. SOCI0ECONCf11C CONDITIONS

l. Economic conditions

a. Nye' County

b. Clark County.

c. Lincoln County d; . Methodology- .

2. Population density and distribution a.. Populations of'the State of Nevada b.' Population of Nye County-

c. . Population of Clark County

-d. Population of Lincoln County

-3.  : Community services

a. Housing

b. Education'

.c . Water supply

-d. Weste-water treatment

e. Solid waste.

f. Energy utilities

, g;. Public safety services

h. ' Medical and social services

1. Library. facilities

.j. Parks and recreation

4. Social conditions

a. Existing social organization and social structure

i. Rural social organization and structure.

ii. Sccial organization and structure in urban Clark County b.. Culture and lifestyle

1. Rural culture ii .- Urban culture c.. Community attributes

d. . Attitudes and perceptions toward the repository

. 5 .- Fiscal and. governmental structure

2. Expected Effects of the Site Characterization Activities

.A. SITE CHARACTERIZATION ACTIVITIES

1. Field studies

a. Exploratory drilling

b. Geophysical surveys

.c. Geologic mapping

d. Standard operating practices for reclamation of areas disturbed by field studies e.. trenching

2. Exploratory shaf t facility ,

a. Surface facilities

b. Exploratory shaft and underground workings

c. Secondary egress shaft 1

d. Exploratory shaft testing program

e. Final disposition

f. Standara operating practices that woulo minimize potential environmental damage

3. Other studies

6. Geodetic surveys

b. Horizontal core drilling

c. Studies of past hydrologic conditions

d. Studies of tectonics, seismicity, and volchnism

e. Studies of seismicity induced by weapons testing

f. Field experiments in G-Tunnel facilities

g. Laboratory studies

h. Weste package design, testing, and analysis B. . EXPECTED EFFECTS OF SITE CHARACTERIZATI0h

1. Expected effects on the environment

a. Geology, hyorology, land use and surface soils

1. Geology

11. Hydrology iii. Land use iv. Surface soils

b. Ecosystems

c. Air quality

d. Noise

e. Aesthetics f.' ' Archaeological, cultural, and historical resources

[ 2. Socioeconomic and transportation conditions j a. Economic conditions Employment i.

ii. Miterials

b. Population density and distribution

c. Community services

d. Social conditions

e. Fiscal and governmental structure

f. Transportation

3. Worker safety

4. Irreversible and irretrievable commitment of resources C. ALTERNATIVE SITE CHARACTERIZATION ACTIVITIES

3. Regional and Local Effects of Locating a Repository at the Site A. THE REPOSITORY

1. Construction

a. The surface facilities

b. Access to the subsurface

c. The subsurface facilities j

d. Other construction j

1. ' Access' route ii. Railroad iii. Mined rock handling and storage facilities iv. Shafts and oth'er facilities e.- litilities

2. Operations a.- Emplacement phase

1. Waste receipt

11. - Waste emplacement

b. Caretaker phase

3. Retrievability 4.- Decommissioning and closure

5. Schedule and labor force

'6. Material and resource requirements B. EXPECTED EFFECTS ON THE PHYSICAL ENVIRONMENT

1. Geologic impacts

2. . Hydrologic impacts

3. Land use

4. Ecosystems

5. Air quality-a .. Ambient air-qtality regulations

b. Construction

c. Operations d., . Decommissioning and closure

6. Noise a.- Construction

b. ' Operations c.. Decorrissioning and closure ~

7. Aesthetic resources

8. Archaeological, cultural, and historical resources

9. Radiological effects

a. Construction

b. Operation

1. Worker exposure during normal operation

11. Public exposure during normal operation iii. Accidental exposure during operation C. EXPECTED EFFECTS OF TRANSPORTATION ACTIVITIES

1. Transportation of pen;ie and materiais

a. Highway impact'

i. Constructh -

11. Operations iii. Decommissioning

b. Railroad impacts

2. Transportation of nuclear wastes

a. Shipment and routing nuclear w>ste shipments

1. flational shipment and routing ,

t

11. Regional shipment and rcuting

b. Radiological impects

i. National impacts

11. Regional impacts iii. Maximally expcsed individual impacts

c. Nonradiological impacts

i. National impacts

,11. Regional impacts

d. Risk summary

i. National risk summary ii. Regional risk summary

e. Costs of nuclear waste transportation

f. Emergency response D. EXPECTED EFFECTS ON SOCIOECONOMIC CONDITIONS

1. Economic conditions

a. Labor

b. Materials ar:d resources

c. Cost

d. Income

e. Land use

f. Tourism

2. Population density ano distribution

3. Ccamunity services s

a., . Housing

b. Education

c. Water supply

d. Waste-water treatment

e. Public safety services

f. Medicel services

g. Transportation

4. Social conditions

a. Social structure ano social organization

1. Standard effects on sociti structure and social organization ii. Special effects on social structure and social organization

b. Culture ano lifestyle

c. Attitudes and perceptions

5. Fiscal conditions and government structure

4. Suitability of the Yucca Mountain Site for Site Characteri:ation and for Development as a Repository A. . SUITABILITY OF THE YUCCA MOUNTAIN SITE FOR DEVELOPMENT AS A REPOSITORY: EVALUATION AGAINST THE GUIDELINES THAT DO NOT REQUIRE SITE CHARACTERIZATION

1. Technical guidelines

9 O

a. Postclosure site ownership and control

1. Data relevant to the evaluation

11. Favorable condition iii. Potentially adverse condition iv. Evalu6 tion and ccnclusion for the qualifying condition on the postclosure site ownership end control guidelines

b. Population density and distribution

1. Data relevant to the evaluation

11. Favorable conditions.

iii. Potentially adverse conditions iv. Disqualifying condition

v. Evaluation and conclusion for the' qualifying condition on the population censity and distribution guideline

c. Preclosure site ownership and control

1. Data relevant to the evaluation ii. Favorable condition iii. Potentially adverse condition iv. Evaluatica and conclusion for the qualifyir;p condition on the preclosure site ownership and control guiceline ,

d. Meteorology

1. Data relevant to thi evaluation ii. Favorable condition j

' 'iii. Potentially adverse condition 1 iv. Evaluation and conclusion for the cualifying condition on.the meteorology guideline l

e. Offsite installations and operations

1. Data relevant to the evaluatien ii. Favorable conditions iii. Potentially adverse conditions iv. Disqualifying conoition

v. Evaluation and conclusion for the cualifyir.g I

condition on the offsite installations operations l guideline

f. Environmental quality

i. Data relevant to the evaluation ii. Favorable conditions

iii. Potentially adverse conditions L iv. Disqualifying conditions 1 v.. Evaluation and conclusion for the qualifying condition en the environmental quality guidelines 9 Socioeconomic impacts

1. Data relevant to the evaluation

11. Favorable conditions iii. Potentially adverse conditions iv. Disqualifying condition

ay ',

l .i_ 4N l

.g

v. -Evaluation and conclusion for the qualifying condition en'the socioeconomic guideline

h. . Transportation 1 Data relevant'.to the evaluation

11. . Favorable conditions iii.:Potentially adverse conditions iv.. Evaluation and conclusion for the cualifying condition on the transportation guideline

2. Preclosure System

a. Preclosure system: radiological safety

'i. Data relevant to the evaluation' ii. Evaluation of the Yucca Mountain site iii. Conclusion for the qualifying cordition on the

. . preclosure system guioeline radiological safety

'b. .Preclosure system: environment, socioeconomic, and transportation

i. Data relevant to the evaluation ii. Evaluation of the Yucca Mountain site 111. Conclusion for the qualifying condition on the preclosure system guideline: environment, socio-economics, and transportation

3. Postc1csure technical

a. Geohydrology

1. Data relevant to the evaluation

11. Favorable conditions

-iii. Potentially adverse conditions iv. Disqual1fying condition

v. Evaluation and conclusion for the qualifying condition on the postclosure geohydrology guideline

.b. Geochemistry

1. Data relevant to th~e evaluaticn ii. Favorable ccnditions iii. Ectentially adverse conditions iv. Evaluation and ccnclusion for the qualifying condition on the postclosure geochemistry guideline

v. Plans for site characterization

c. Rock characteristics

1. Data relevant to the evaluation

11. Faverable conditions iii. Potentially adverse conditions iv. Evaluation and conclusion for the qualifying condition on the postclosure rock characteristics guideline

d. Climatic changes

1. Data relevant to the evaluatiun

11. Favorable conditicns iii. Potentially adverse conditions iv. Evaluation and conclusion for the climate changes qualifying condition

-_ . .__ . - _ - _ _ .- l

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e. Erosion

1. Data relevant to the evaluation ii. Favorable conditions iii. Potentially adverse conditions iv. Disqualifying ccndition

v. Qualifyirit condition

f. Dissolution

i. Data relevant to the evaluation ii. Favorable condition iii. Potentially adverse condition iv. Disqualifying condition

v. Evaluation and conclusion for the qualifying condition on the postclosure and dissolution guideline

g. Tectonics '

i. Data relevant to the evaluation

11. Favorable condition iii. Potentially adverse condition iv. Disqualifying condition

v. Evaluation and conclusion for the qualifying conditicn on the postclosure tectonics guideline

h. Human interference: natural resources and site ownership and control

i. Data relevant to the evaluation

, ,11. Favorable conditions iii. Potentially adverse conditions iv. Disqualifying conditions

v. Evaluation and conclusion for the qualifyir,s condition on the postclosura human interference and natural resources technical guideline

4. Postclcsure system

a. Evaluation of the Yucca Mountain Site

1. Quantitative analyses ,

ii. Qualitative analysis

b. Sunoary and conclusion for the qualifying condition on the postclosure system guideline '

5. Preclosure technical

a. Surface characteristics

1. Data relevant to the evaluation ii. Favorable conditions iii. Potentially adverse conditions iv. Evaluation and conclusion for the qualifying condition on the preclosure surface characteristics guideline

b. Rock characteristics

1. Data relevant to the evaluation ii. Favorable conditions iii. Potentially adverse conditions

t a

iv. Disqualifying condition

v. Evaluation and conclusien for the qualifying condition on the preclosure rock characteristics guideline

c. Hydrology

1. Data relevant to the evaluation

11. Favorable conditions

.iii. Potentially adverse condition iv. Disqualifying condition

v. Evaluation and conclusion for the qualifying condition on the preclosure hydrology guideline

d. Tectonics

1. Data relevant to the evaluation

11. Favorable condition iii. Potentially adverse conditions iv. Disqualifying condition

v. Evaluation and conclusion for the qualifying condition on the preclosure tectonics guideline

6. Ease and cost of siting, construction, operatinn, and closure

a. Data relevant to the evaluation

b. Evaluation

c. Conclusions for the qualifying condition on the ease and cost of siting, construction, operation, and closure guideline

7. Conclusion regarding suitability of the Yucca Mountain Site for site characterization B. PERFORMANCE ANALYSES

1. Preclosure rediclogical safety assessments

a. Preclosure radiation protection standards

b. Methods for preclosure radiological assessment

i. Radiological assessment of construction activities ii. Radiological assessment of normal operations iii. Radiological assessment of accidental releases

2. Preliminary analysis of postclosure performt.nce

a. Subsystem descriptions

1. Engineered barrier subsystem ii. The natural barrier subsystem

b. Preliminary performance analyses of the major components of the system

1. The waste package lifetime

11. Release rate from the engineered barrier subsystem

c. Preliminary system performance description and analysis

d. Comparisons with regulatory performance objectives

e. Preliminary evaluation of disruptive events: disruptive natural processes

f. Conclusions

5. Transportation

~

I

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i

-A.- REGULATIONS PELATED TO SAFEGUARDS 3

1. Safeguards Conclusion

' J

2. ,

v B.- PACKAGINGS 1., Packaging design, testing,'and analysis

2. . Types of packaging

a. Spent fuel t, . Casks for defense high-level waste and West Valley 1 high-level waste

c. Casks for use from an MRS to the repository

3. Possible future developments

a. Mode-specific regulations

b. Ovenleight. truck casks

c. Rod' consolidation

d. Advanced handling concepts

e. Combination storage / shipping casks C. POTENTIAL HAZARDS OF TRANSPORTATION

1. Potential consequences to an individual exposed to a maxin:Lm extent

a. Normal transport

b. Accident.s .

2. Potential consequences to a large pcpulation frem very severe

. transportation accidents 3.- Risk assessment e a.' -Outline of method for estimating population risks

b. Computational models and methods for population risks

c. Changes to the analytical models and nethocs for population risks l d. Transportation scenarios evaluated for risk analysis

e. Assumption about wastes

f. Operational considerations for use in risk analysis

g. Values for factors needed to calculate population risks

h. Results of population risk analyses

1. Uncertainties

4. Risks associated with cefective cask construction, lack of quality assurance, inadequate maintenance and human error

.D. COST ANALYSIS

3. Outline method

2. Assumptions

3. Models

4. Cost estimates

5. Limitations of results E. BARGE TRANSPORT TO REPOSITORIES F. EFFECT OF A MONITORED RETRIEVABLE STORAGE FACILITY ON

. TRANSPORTATION ESTIMATES

l k

G. EFFECT OF AT-REACTOR R0D CONSOLIDATION ON TRANSPORTATION ESTIf/ATES H. CRITERIA FOR APPLYING TRANSPORTATION GUIDELINE I. DOE RESPONSIBILITIES FOR TRANSPORTATI0t: SAFETY

1. Prenotification

2. Emergency response

3. Insurance coverage for transportation accidents J. MODAL MIX

1. Train shipments

a. Ordina ry

b. Dedicated train

2. Truck shipments

a. Legal weight

b. Overweight Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of, action described in categorical exclusicn 10 CFR 51.22(c)(1). Thcrefore, neither an environmental impact statement nor an environmental assessraent has been prepared for this final rule.

Paperwork Reduction Act Statement This rule does not centain information collection requirements that are subject to the P6perwork Reduction Act of 1980 (44 U.S.C 3501 et seq.).

Regulatory Analysis The DOE analysis of the costs and benefits of the LSS (U.S. Departnent cf Energy, " Licensing Support System Benefit-Cost Analysis" July, 1988) ano companion DOE reports (" Preliminary Needs Anal Analysis;" and " Conceptual Design Analysis;") areysis;" " Preliminary available Data Scope for inspection in the NRC Public Document Rocm, 2120 L Street NU, Washington, DC. Single copies may be obtained from Francis X. Cameron, Office of General Counsel, U.S. Nuclear Regulatory Consnission, Washington DC, 20555; Telephone:

(301)-492-1623.

Regulatory Flexibility Analysis In accordance with the Regulatory Flexibility Act of 1980, (5 U.S.C. 605(b)),

the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The final rule affects participants in the Commission's HLW licensing proceeding.

The substantial majority of these participants do not fall within the scope

1 l

1

)

i of the definition of "small cr.tities" set forth in the Regulatory Flexibility Act er the Small Business Size Standarcs set out in regulatioris issued by the Small Business Administration at 13 CFR Fart 121.

Ba_ckfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, dces not apply to this rule a'd,n therefore, that a backfit analysis is not required for this rule because these amendments do not involve any provisions which vmuld impose backtits as defined in 10 CFR 50.109(a)(1).

List of Subjects in 10 CFR Part 2 Administrative practice and procedLre, Antitrust, Byproouct material, Classifieo information, Envircr. mental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatrcent and disposal.

For the reasor.s set out in the preambie ard under the authority cf the Atomic Energy Act of 1954, as amenced, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amencments to 10 CFR Part 2. .

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authbrity citation for Part 2 ccntinues to read as follows:

AUTH0 PITY: Secs, 161, 181, 68 Stat. 948, S53, as amended (42 U.S.C.

2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 400 (42 U.S.C.

2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amer:deo (42 U.S.C. 2073, 2090, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239). Section 2.105 also issued under Pub. L. 97 415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.?06 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. d44, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 63 Stat. 853, as amended (42 U.S.C. 4332).

Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, es amended (42 U.S.C. 2039). Subpart K also issueo under sec. 189, 68 Stat. 955 (42 U.S.C.

4 79 -

-2239); sec.134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C.10154). Appendix A also issued-under sec.-6, Pub. L.01-560, 84 Stat. 1473 (42 U.S.C. 2135).

L Appendix B also issued under.sec. Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

2. 'Section 2.700 is revised to read as follows:

92.700 Scope of sub'part.

The general rules of this subpart govern procedure in all adjudications initiated by the' issuance of an order to show cause, an order pursuant to section 2.205(e), a notice of hearing, a notice of proposed action pursuant to section 2.105, or a notice issued pursuant to section 2.102(d)(3). The procedure applicable to the proceeding on an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area are set forth in Subpart J.

3. A new paragraph (i) is added to section 2.714 te read as folicws:

$2.714 Intervention.

(1)'The provision 1 tf this section do net apply to license applications docketed under subpart J of this part.

4. In section 2.722, paragraph (a)(4) is added to read as follows:

l 92.722 'Special assistants to the presid1ng officer.

(a)* * *

'(4) Discovery Master to rule on the matters specified in section 2.1018(o)(2) of this part.

• r * * *

5. In section 2.743, paragraph (f) is revised to read as follows:

52.74: Evidence.

(f) Exhibits. A written exhibit will not be received in evidence unless the uriginal and_two copies are offered and a copy is furnished to each party, or the parties have been previously furnished with copies or the presiding

officer airects otherwise. The presiding officer may permit a party tc replace with a true copy an original cccument admitted in evidence. Exhibits in the proceeaing qn an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area are gcverned by section 2.1013 of this part.

E2.764 [ Amended]

6. Insection2.764, paragraph (d)isremoved.

7. In Part 2, a new Subpart J is added to read as follows:

SUBPART J - PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUAt:CE OF LICEtlSES FOR THE RECEIPT OF HIGH-LEVEL RADI0 ACTIVE WASTE AT A CE0 LOGIC REPOSITORY Sec.

2.1000 Scope of subpart.

2.1001 Definitions.

2.1002 High-level Waste Licensing Support System.

2.1002 Submission of material to the LSS.

2.1004 Amendments and additions.

2.1005 Exclusions.

2.1006 Privile 2.1007 Access.ge.-

2.1008 Potential parties.

2.1009 Procedures.

2.1010 Pre-License Application Licensing Boaro. -

2.:911 LSS management and administration.

2.1012 Compliance.

2.1013 Use of LSS during adjudicatory proceeding.

2.1014 Intervention.

2.1015 Appeals.

2.1016 Mctions 2.1017 Computation of time.

2.1018 Discovery.

2.1019 Depositions.

2.1020 Entry upon land for inspection.

2.1021 First prehearing conference.

2.1022 Second prehearing conference.

2.1023 Immediate effectiveness.

SUBPART J - PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUANCE OF LICENSES 1

1 FOR THE RECEIPT OF HIGH-LEVEL RADI0 ACTIVE WASTE AT A GE0 LOGIC REPOSITORY L__--_--------- - l

,-- -(-

J ,' ... .

L2,1000. Scope of:Subpart.

LThe rules in'this subpart govern'the procedure for applicatforis for a license

~

-to receive and possess high-level radioactive waste at.a geologic repository

-operations' area noticed pursuant to.section 2.101(f)(8):or section 2.105(a)(5) of Lthis part. The procedure: in this subpart take precedence over the 10 CFR Subpart G, rules of general appit. ability, except for the

following provisions:- 2.702, 2.703, 2.704, 2.707, 2,709, 2.711, 2.713, 2.715, 2.715a, 2.717, 2.718, 2.720, 2.721, 2.722, 2.732, 2.733, 2.734, 2.742, 2.743, 2.749, 2.750, 2.751, 2.753, 2.754, 2.755, 2.756, 2.757, 2.758, 2.759, 2.760, 2.761', 2.762, 2.763, 2.770, 2.771, 2.772, 2.780, 2.701, 2.785, 2.786, 2.767, 2.788, and-2.790.

2.1001- Definitions.

" ASCII File" means a computerized text file conforming to the American Standard Code for Information Interchange which represent characters and symbols.

" Bibliographic header" means the minimum series of descriptive fields that a

potential party, interested governmental participant, or party must submit Lwith a document or other material. The bibliographic header fields are a subset of the fields in the full header. ,

--mmm._--m_-_.2_.mu_u__.m_.2__mm_ _ _-m. ._- .. _.____._._______.,-

1:

" Circulated draft" means a nonfinal document circulated for supervisory l

concurrence or signature in which the origin 61 author er others in the concurrence process have non-concurred. A " circulated draft" meeting the above criterion includes a draft of a document that eventually becomes a finaldocument,'andbdraftofadocumentthatdoesnotbecomeafinal l

document due to either a. decision not to finalize the document or the passage of a substantial period of time in which no action has been taken on the document.  ;

I

" Document" means any written, printed, recorded, magnetic, grcphic matter, or l nther documentary material, regardless of torm or characteristic.

" Documentary material" means any material or cther information that is relevant to, or likely'to lead to the discovery of information that is relevant to, the licensing of the likely candidate site for a geologic repository. The scope of documentary material shall be guided by the topical guidelines in Regulatory Guide (T0 BE INSERTED AT A FUTURE DATE).

" DOE" means the U.S. Department of Energy or its duly authorized representatives.

" Full header" means the series of descriptive fields and subject terms given to a document or other material.

L L -

' Imagt" means a visut1 likeness of a document, presented on a paper copy,

micrcform, or a bit-map on-optical or magnetic media.

" Interested governmental participant" means any person admittea under section l2.715(c) of'this part to the proceeding on an application for a license te

, receive and possess high-level radioactive waste at a geologic repository

. operations area pursuant tu Part 60 of this chapter.

7 "LSS Administrator" mecns the person within the U.S. Nuclear Regulatory Commission responsible for administration, management, and operation of the

Licensing. Support System. The LSS Administrator shall not be in any organizational unit.that either represents the U.S. Nuclear Regulatory Commission staff as a party to the high-level waste licensing proceeoing or is a part of the management chain reporting to the Director of the Office of

. Nuclear Material Safety and Safeguards. ,

For purposes of this subpart the organizational unit within the NRC selectea to be the LSS Administrator chall.

n .not be considered to be a party to the proceeding.

" Marginalia" means handwritten, printed, or other types of notations added to a occument excluding underlining and highlighting.

"NRC" means the U.S. Nuclear Regulatory Commission or its duly authorized representatives.

__11___ _ _ 1______ _ _ . _ _ _ . - _ _ _ _ _ _

I

" Party" icr purposes of this subpart means the DOE, the NRC staff, the host State and any affected Indian Tribe in accordance with section.60.63(a).of this' chapter, and a person admitted unoer section 2.1014 of this subpart to the proceeding on an application for a license to receive and possess hiph-level radioactive waste at a geologic repository operaticns area

- pursuant to Part 60 of this chapter; provided that a host State or affected Indian Tribe shall. file a list of contentions in accordance with the provisions of secticns 2.1014(a)(2)(ii), (iii), and (iv) of this subpart.

" Personal reccro" means a document in the possession of an inoivicual associated with a party, interested governmental participant, or potentiul party.that was not required to be created cr retained by the party,

-interested governmental participant, or potential party, end can be retained or discarded at the possessor's sole discretion, or documents of a personal nature that are not associated with ar.y business of the party, interested governmental participant, or potential party.

" Potential party" means any person who, during the period before the issuance of the first pre-hearing conference order under section 2.1021(d) of this subpart, is granted access to the Licensing Support System and who consents to comply with the regulations set forth in Subpart J of this part, including i

the authority of the Pre-License Application Licensing Board established pursuant to Section 2.1010 of this subpart.

\

.l -i; .

c. ,

s

.f .

-f -

" Pre-license application phase" means the time period before the license application to receive and possess high-level radioactive vaste at a geclogic repository operations area is dor.keted under section 2.101(f)(3) of this part.

" Preliminary draft" means any nonfinal dccument that is not a circulated draft.

" Searchable full text" means the electronic indexed entry of a document in ASCII inte the Licensing Support System that allows the identification of specific words or groups of words within a text file.

2.1002 High-Level Waste Licensing Support System.

(a) The Licensing Support System is an electronic information management

' system containing the documentary material of the DOE and its contractors, and the documentary material of all other parties, interested governmental participants and potential parties and their contractors. Access to the Licensing Support System by the parties, interested' governmental participants, and potential parties provides the document discovery in the proceeding. The Licensing Support System provides for the electronic transmission of filings by the parties during the high-level waste proceeding, and orders and decisions of the Commission and Commission adjudicatory boards related to the proceeding.

1:

[ ,

i f(b) The Licensing Support System shall include documentary material not

.privileg'ed under section 2.1006 or excluded under section 2.1005 of this subpart.

(c) The participation of the host State in the Licensing Support System during-the pre-license application phase shall not have any affect on the State's exercise of its disapproval rights under Section 116(b)(2) of the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10136(b)(2).

(d) This subpart shall not affect any independent right of a potential party,.

interested governmental participant or party to receive information.

2.1003 Submission of naterial to the LSS.

(a) Subject to. the exclusions in section 2.1005 of this subpart and

. paragraphs (c) and (d) of this section, each potential party, interested governmental participant or party, with the exception of the DOE and the NRC, shall submit to the LSS Administrator--

(1) subject to paragraph (a)(3) of this section, an ASCII file, an image, and a bibliographic header, reasonably contemporaneous with its creation or acquisition, for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant, or party after the date on which such potential party, interested

governmental participant or party is given access to the Licensi5p Support Systec.

(2) an image, a bibliographic header, and, if available, an ASCII file, no later than six .aonths before the license application is submitted under section 60.22 of this chapter, for all' documentary material (including circulated drafts but excluding preliminary drafts), generated by, or at the direction of, or acquired by, a potential party, interester' governmental participant, er party, cn or before the date on which such potential party, interested governmental participant, or party was given access to the Licensing Suppcrt System.

(3) an image,and bibliographic header for documentary material included under paragraphs (a)(1) of this section that were acquired frcm a person that is not a potential party, party, or interested governmental participant.

(b) Subject to the exclusions in section 2.1005 of this subpart, end subject to paragraphs (c) and (d) of this section, the DOE and the NRC shall submit to the LSS Administrator--

l (1) an ASCII file, an image, and a bibliographic header, reasonably contemporaneous with its creation or acquis;ticn, for all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, the DOE or the NRC l

4 l ,

1: l; .

1

! .after the date on which the Licensing Suppurt System is available for access.

I (2) an' ASCII file, an image, and a. bibliographic header no later than six months'before the license application is submitted under section 60.22 of this chapter for all documentary material (includir:g circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, the DOE or the NRC on or before the date on which the Licensing Support System is available for access.

(c)(1) Each potential . party, interested governmental participant, or party shall submit.. subject to the claims of privilege in secticn 2.1006, an imege ar.d a bibliographic. header, in a time frame to be established by the access protocols under section 2.1011(d)(10) of this subpart, for all graphic oriented documentary material. Graphic-oriented documentary material includes, raw data, computer runs, computer programs and codes, field notes, laboratory notes, maps, diagrams and photographs which have been printed, scripted, hand written or otherwise displayed in any hard ccpy form and which, while capable of being captured in electronic image by a digital scanning device, may be captured and submitted to the LSS Administrator ir, any form of image. Text embedded within these accuments need not be separately entered in searchable full text. Such graphic-oriented documents may include: Calibration procedures, logs, guidelines, data ano discrepancies; Gauge, meter and computer settings; Probe locations; Logging intervals ar.6 rates; Data logs in whatever form captured; Test cata sheets;

[b Equations and sampling rates; Sensor data and' procedures; Data Descriptions; I

' Field and laboratory notebooks; Analog computer, meter' or other device

- print-outs; Digital computer print-outs; Photographs; Graphs, plots, strip charts, sketches; Descriptive material related to the information above.

-(2) Each potential party, interested governmental participar.t. o'r

_ party, in a time frame to be established by the access protocols under section 2.1011(d)(10) of this subpart, shall submit, subject to the claims of privilege in section 2.1006, only a bibliographic header for each item of documentary material that is not suitable for entry into the Licensing Support System in-image or searchable full text. The header shall include

~ '

- all requ1 red fieids ard shall sufficiently describe the information and references to related information and access protocols. Whenever any .

- documentary material is transferred to some other media, a new hecoer shall be supplied. Any documentary material for which a header only has been supplied to the system shall be made available to any other party, potential party or interested governmental participant through the access protocols determined by the LSS Administrator under section 2.1011(d)(10) or through entry upen' land for inspection and other purposes pursuant to section 2.1020.

(3) Whenever documentary material described in paragraphs (c)(1) or

' (c)(2) of-this section has been collected or used in conjunction with other such information to analyze, critique, support or justify any particular technical or scientific conclusion, or relates to other documentary material as part of the same scope of technical work or investigation, then an

o appropriate bibliographic header shall be.subniitted for a table of contents

' describing.that package of information, and documentary mhterial contained within that package shall be named dna identified.

(d) Each potential party, interested governmental participant, er party

.shall submit a bibliographic header for each documentary material--

(1) for which a claim of privilege is asserted; or ,

(2) which constitutes confidential financial or commercial information; or (3) which constitutes safeguards information under section 73.21 of this Chapter.

(e) In addition to the submission of documentary material under paragraphs (6) and (b) of this section, potential parties, interested governmental participants, or parties may request that another potential party's, interested governmental participant's, party's, or third party's documentary material be entered into the Licensing Support System in seerchable full text if they or the other potential party, interested governmental phrticiper.t, or perty intend .to rely on such documentary material during the licensir.g proceeding.

L .,

L(f) Submission of ASCI1' files, images, and bibliographic headers shall be in accordance with established criteria.

-(g) Basic licensing documents generated by DOE, such as the Site Characterization Plan, the Environmental Impact Statement, and the license

", application, or by NRC such as the Site Characterization Analysis, and the

. Safety Evaluation Report, shall be submitted to the LSS Administrator by the respective agency that generated the document.

'(h)(3)Docketingoftheapplicationforalicensetoreceiveandpossess high-level radioactive waste at a geologic repository operations area stall not be permitted uncer subpart J of this part unless the LSS Administrator has' certified, at,least six months in advance of the submission of the license application, that the DOE has substantially complied with its obligations under this section.

(2)(1) The LSS Administrator shall evaluate the extent of the DOE's compliance with the provisions of this section at six month intervels beginning six months after his or her appointment under secticn 2.1011 of this subpart.

(ii) The LSS Administrator shall issue a written report of his or her evaluation of DOE compliance under paragraph (h)(1) of this sect 1on. The report'shall include recommendations to the DOE on any actions necessary to achieve substantial con:pliance pursuant to paragraph (h)(1) of this section.

.- 92

..(iii) P'otential parties may submit comments on the report prepared

'p'ursuant to p6ragraph (h)(2)(ii) to the LSS Administrator.

(3)(1)In.the.eventthattheLSSAdministraterdoesnotcertify substantial compliance under paragraph (h)(1) of this section, the proceeding on the application for a license to receive and possess high-level radioactive waste at a geologic repository operations area shall be governed by subpart G of this part.

(ii) If, subsequent to the. submission of such application under subpart.G of-this part, the LSS Administrator issues the certification described in paragra'ph (h)(1) of this section, the Commission may, upon request by any party or interested governmental participant to the proceeding, specify the extent to which the previsions of subpart J of this part may be used in the proceeding.

2.1004 Amendments and additions.

(a) Within sixty days after a document has been entered into the Licensing Support System by the LSS Administrator during the pre-license application phase, and'within five days after a document has been entered into the Licensing Support System by the LSS Administrator after the license application has been docketed, the submitter shall make' reasonable efforts to verify that the document hes been entered correctly, and shall notify the LSS Administrator of any errors in entry.

s. .

(b) After the time peried specified for verification 1n paragraph (a).ci this.section has expired, e submitter who desirt.s to amend an incorrect occument shall--

(1) submit the corrected version to the LSS Administrator for entry as a separate document; and (2) submit a bibliographic header for the corrected version that

. identifies all revisions to the corrected version.

(3) the LSS Administrator shall ensure that the bibliographic header for

~

the original document specifies that a corrected version is also in the Licensing Support System. .

(c)(1) A submitter shali-submit any revised pages of a document in the Licensing Support System to the LSS Administrator for entry into the Licensing Support System as a separate document.

(2) The LSS Administrator shall ensure that the bibliographic header for l the original document specifies that revisions have been entered into the Licensing Support System.

(d) Any document that has been incorrectly excluded from the Licensing Support System must be submitted to the LSS Administrator by the potential party,-interested governmental participant, or party responsible for the L__________-__-__-____

L .

]

J

ubmission of the' document within twe days after its exclusien has been c 1oentified unless some other time is approved by the Pre-License Application 1 Licensing Board or the Licensing Board established for the high-level waste proceeding, hereinafter the " Hearing Licensing Board"; provided, however, <

'that.the time for su'bmittal under this paragraph will be stayed pending Board dCtion on -a motion ^ to extend the time' of submittal .

2.1005 Exclusions.

The following material is excluded from entry into the Licer. sing Support System, either through initial entry pursuant to section 2.1003 of this

~

subpart, or through derivative discovery pursuant to section 2.1019(1) of this-subpart--

(a) official notice materials; (b) reference books and text Locks; (c) material pertaining exclusively to administration, such as material related to budgets, financial management, perscr.nel, office space, general distribution memoranda, or procurement, except for the scope of work on a procurement related to repository sitirig, construction, or opErdtion, or to the transportation of spent nuclear fuel or a______________-----_--_ . _ - _ _ _ _ - _ _ _ _

[ , .

95 high level' waste; (d) press clippings and press releases;

-(e) junk mail;.

(f), references cited in contractor reports that are readily available; (g) classified material subject to Subpart I of this Part.

2.1006 Privilege.

'(a) Subject to the requirements in section 2.1003(d) of this subpart, the traditional discovery privileges recognized in NRC adjuoichtory proceedings and the exceptions from disclosure in section 2.790 of this part may te asserted by potential parties, interested governmental participants, and parties. In addition to Federal agencies, the deliberative process privilege may also be asserted by State and local governmer.t entities and Indian Tribes.

(b) Any document for which a claim of privilege is asserted but is denied in whole or in part by the Pre-license Application Licensing Board or the Hearing Licensing Board shall be submitted by the party, interested governmental participant, or potential party that asserted the claim to--

(1) the LSS Administrator for entry into the Licensing Support System into an open' access file; or

(2) to the LSS Administretc.r or to the Coard, for entry into a Frctective Order file, if the Buerd so directs under section 2.1010(b) or section

~

2.1018(c) of this subpart.

(c)~ Notwithstanding bny availability of the deliberative process privilege under paragraph -(a) af this section, circulated drafts not otherwise privileged shall be submitted for entry into the Licensing Support System pursuant to sections 2.1003(a) and 2.1003(b) of this subpart.

2.1007 Access.

(a)(1) Terminals for access to full headers for al. dccuments in the Licensing Support, System during the pre-license application phase, and images of the non-privileged documents of DOE, shall be provided at the headquarters

,cf DOE, and et all DOE Local Public Document Rooms established in the 1

i vicinity of the likely candidate site for a geologic repository.

(2) Terminals for access to full headers for all documents in the Licensing SCpport System during the pre-license application phase, and images l i of the non-privileged documents of NRC, shall be provided at the headquarters Public Document Recm of NRC, and at all NRC Local Public Document Recms established in the vicinity of the likely c6ndidate site for a geologic repository, and at the NRC Regional Offices, including the Uranium Fecovery Field Office in Denver, Colorado.

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- 9' -

r.

^ TheIccess'terminalsspecifiedinparagraph's(a)(1)ard(a)(2)of (3) l

,4 thislsection shall include' terminals at Las Vegas,_ Nevada; Rer.o, Nevada;

Carson. City, Nevada; Hye County, Nevada; and Lincoln Ccunty, Nevada.

(4) The headers specified in paragraphs (6)(1) and (a)(2) of this section shall be available at the same time that those headers are made

- availabl.e to the potential parties, parties, and interested governmental

- participants.

(5) Public access to the searchable full text and images of all the documents.in the Licensing Support System, net privileged under section 2.1006, shall. be provided by the LSS Administrator at all the locations specified.in paraorgphs (a)(1) and (a)(2) of this section af ter a notice of

' hearing has been issued pursuant to section 2.101(f)(8) or section 2.105(a)(5) on.an application for a license to receive and possess high-level radioactive waste at a geologic repository operations area.

(b) Public availability of paper copies of the records specified in, paragraph (a) of this section, as well as duplication fees, and fee waiver for those records, will be governed by the Freedom of Information Act regulations of the respective agencies.

(c) Access to the Licensing Support System for pctential parties, interested governmental participants, and parties will be provided in the follcwing manner--

1 <

(1) full text search capability through dial-up access from remote locations et the requestor.'s expense;

-(2) image access at remote locations at the requestor's expense; (3) the capability to electronically request a paper copy of a document

'at the time of search; (4) generic fee waiver for the paper copy requested under paragraph (c)(3) of this section for rec,uestors who meet the criteria in section 9.41

-of this chapter.

(d) Documents submitted to the LSS Administrator for entry into the Licensing Support System shall not be consicered as agency records of the LSS

. Administrator for purposes of the Freedom of Information Act (F0IA), 5 U.S.C.

552, and shall remain under the custody and control of the agency or organization that submitted the documents to the LSS Administrator. Reques:s for access pursuant to the F0IA to cocuments submitted by a Federal agency

-shall be transmitted to that Federal agency.

2.1008 Potential parties.

(a) A person may petition the Pre-License Application Licensing Board established pursuant to section 2.1010 of this subpart for access to the Licensing Support System.

l l

(b) A petition must set forth with particularity the interest of the petitioner in gaining access to the Licensing Suppert System with particulcr reference to --

(1) the factors' set out in section 2.1014(c)(1),-(2), and (3) of this subpart as determined in reference to the topical guidelines in Regulatory Guide (T0 BE IffSERTED AT A FUTURE DATE); or (2) the criteria in section 2.715(c) of this part as determined in reference to the topical guidelines in Regulatory Guide (T0 BE Il4SERTED AT A FUTURE DATE).

(c) The Pre-License Application Licensing Ecard shall, in ruling en a petition for access, consider the factors set forth in paragraph (b) of this section.

(d) Any person whose petition for access is approved pursuant tu paragraph (c) of this section shall comply with the regulations set forth in this subpart, including section 2.1003, and agree to comply with the orders of the Pre-License Application Licensing Beard established pursuant to section 2.1010 cf this subpart.

I 2.1009 Procedures.

(a) Each potential party, interested governmental participant, or party shall--

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.- 100 -

(1) cesignate an official who will be responsible for administration of its. Licensing Support System responsib111 tics; (2) establish procedured to implement the requirements in section 2.1003 of this subpart;

.(3) provide triining so its staft on the procedures for implementation of Licensing Support ~ System responsibilities; (4) ensure that all documents' carry the submitter's unique identification number; (5) cooperate with the advisory review-process established by the LSS-Administrator pursuant to section 2.1011(e) of this subpart.

(b) The responsible. official designated pursuant to paragraph (a)(1) ct this sscticn shall certify to the LSS Administrator, at six mc> nth intervals designated by the LSS Administrator, that the procedures specified in paragraph (a)(2) of this section have been implemented, and that to the best

.of his or her knowledge, the documentary material specified in section 2.1003 of this subpart has been identified and submitted to the Licensing Support System.

2.1010 Pre-License Application Licensing Board.

(a)(1) A Pre-License Application Licensing Board designated by the Commission shall rule on all petitiuns for access to the Licensing Suppurt System submitted under section 2.1008 of this subpart; disputes over the entry of documents during the pre-license application phase, including disputes

- 101 -

reitting to relevance ano privilege; disputes relating to the LSS Administrator's decision on substantial compliance pursuant to section

'2.1003(h) of this subpart; discovery disputes; disputes reitting to access tc the Licensing Support System; oisputes relating to the design and development of the Licensing Support System by DOE or the operttion of the Licensing Support System by the LSS Administrator under section 2.1011 of this subpart, including disputes relating to the implementation of the recommendations cf the LSS Advisory Review Panel established under section 2.1011(e) of this subpart.

(2) The Pre-License Application Licensing Board shall be designated six months before access to the Licensing Support System is scheduled to be available, ,

(b) The Board shall rule on any claim of occument withholding to determine--

, (1) whether it is documentary material within the scope of this subpart; (2) whether the material 1s excluded from entry into the Licensing Support System under section 2.1005 of this subpart; (3) whether the material is privileged or othurwise excepted from disclo:ure under section 2.1006 of this subpart; (4) if privileged, whether it is an absolute or qualified privilege;

- 102 -

l .

'(5) it qualified, whether the dccument shoulc be disclosed because it is nt:cessary to a proper decision' in the prcceeding; (6)' whether the material should be disclosed under a protective orcer containing such prot'ective terms and conditions (including affidavits of non-disclosure) as may be necessary and appropriate to limit the disclosure to potential participants, interested governmental participants and parties in the proceeding, or to their qualified witnesses and counsel. When Safeguards Information pretected from disclosure under section 147 of the Atomic Energy Act, as amended, is received and possessed by a potential party, interested governmental participant, or party, other than the

. Commission staff, it shall also be protected according to the requirements of section 73.21 of ,this chapter. The Board may also prescribe such additional procedures as' will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of the procedural rights which would be availcDe if Safeguards Information were not involved.

In addition to any other sanction that may be imposed by the Board for violation of an order issued pursuant to this paragraph, violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under section 147 of the Atomic Energy Act, as amended, may be subject to a civil penalty imposed pursuant to section 2.205 of this part.

For the purpose of imposing the criminal penalties contained in section 223 of the Atomic Energy Act, as amended, any order issued pursuant to this paragraph with respect to Safeguards Information shall be deemed an order issued under section 161b of the Atomic Energy Act.

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• i l(c)~Uponafinaldeterminationthatthematerialisrelevant,andnot privileged, exempt from disclosure, or otherwise exempt from entry into the 1

Licer. sing Suppert System under section 2.2005 of this subpart, the potenti61 i l

party, interestec governmental participant, or party who asserted the claim of withholding must submit the document to the LSS Administrator within two days for_ entry into the Licensing Support System.

(d) The service of'all pleadings, discovery requests and answers, orcers, and decisions during the pre-license application phase shall be made according to.the pr0Cedures specified in section 2.1013(c) of this subpart.

(e) The Pre-License Application Licensing Board shcIl possess all the general powers speci,fied in sections 2.721(d) and 2.718 of this part.

2.1011 LSS Management and Administration.

(a) The Licensing Support System shall be administered by the LSS

' Administrator who will be designated within sixty days after the effective date of the rule.

(b)(1) Consistent with the requirements in this subpart, and in consultation with- the LSS Administrator, DOE shall be responsible for the des ign 6nd development of the computer system necessary to implement the Licensing

. Support System, including the procurement of computer hardware and software, and, with the concurrence of the LSS Administr6ter, the folicw-on redesign

- 104 -

and procurement of equipeent necessary to maintain the Licensing Support System.

I (2) Kith respect to the procurement undertaken pursuant to paragraph (b)(1) of this section, a representative of the LSS Administrator shall participate as a member of the Source Evalauation Panel for such procurement.

1 -(3) DOE shall implement consensus aovice from the LSS Advisory P.eview Panel under paragraph (f)(1) cf this section that is consistent with the requirements of this subpart.

(c)(1) The Licensing Support System, described in section 2.1002, shall not be part of any computer system that is controlled by any party, interested governmental participant, or potential party, including CCE ar.o its contractors, or that is physically located on the preraises of any party, interested governmental participant, or potential party, ir:cluding DOE and that of its contractors.

(2) Nothing in this subpart shall preclude DOE, NP,C, or any other party, potential party, or interested governmental participant, from using the Licensing Support System computer facility for a records mensgement system for documentary material independent of the Licensing Support System.

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I (d).. The LSS-Administrator shall be responsible for the canagement anc administration of the Licensing Support System, including the responsibility

.to--

1 i (1) implement the consensus advice of the LSS Advisory Review Panel under paragraph (f) of this section that.is consistent with the requirements-cf:this subpart; (2) provide the necessary personnel, materials, and services for operation and maintenance of the Licensing Support System;

-(3) identify and recommend to DOE any redesigt or procurcrient actions necessary.to ensure that the design and cperation of the Licensing Support System meets the objectives of this subpart; (4) make a concurrence cecision, within thirty days of a reouest frorn 00E, on any redesign and related procurement performed by DOE under parcgraph (b) of this section; (5) consult with CCE cn the design and development of the Licensing Support System under paragraph (b) of this section; (6) evaluate and certify compliance with the requirements of this subpart under section 2.1003(h);

(7) ensure LSS availability and the integrity of the LSS dath base; (8) receive and enter the documentary material specified in section 2.1003 of this subpart into the Licensing Support System in the appropriate format; (9) maintain security for the Licensing Support System data tase, including assigning user passworc security codes;

- _ - _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ _ l

d

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_'(10) establish access proteccis for raw data, field notes, and other items covered by section 2.1003(c) of this subpart; (11) maintain the thesaurus and authority tebles for the Licensing l Support System;:

(12) establish and implement a training program for Licensing Support System users; (13) provide support staff to assist users of the Licensine Support System; (14) cther duties as specified in this subpart or necessary for Licer. sing Support System operation and maintenance.

(e)(1) The LSS Administrator shall establish an LSS Advisory Review Panel composed of the L,SS, Advisory Ccuraittee members identified in paragraph (e)(?)

of this section who wish to serve within sixty days efter designation of the LSSAdministratorpursuanttopar4 graph (a}ofthissection. The LSS Administrator shall have the authority to appoint additional representatives to the Advisory Review Penel consistent with the requiren.ents of the Federal Advisory Cormittee Act, 5 U.S.C. App. I, giving particular considt: ration to potential parties, parties, and interested governmental participants who were not members of the the NRC HLW Licensing Support System Advisory Corsittee.

(2).Pending the establishment of the LSS Advisory Review Panel under paragraph (e)(1) of this section, the NRC will establish a Licensing Support System Advisory Conr11ttee whoso membership will initially include the State of Nevaca, a coalition of af fected units of local gevernment in Nevada whc

(

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I I wore on the NRC High-Level Waste Licensing SLpport Syr, tem Advisory Committee, DOE, NRC, the National Ccngress of American Indians, the coalition of national environmental groups who were on the'NRC High-Level Waste Licensing Support System Advisory Committee and such other members as the Commission ,

-may from time to time designate to perform the responsibilities in paragraph

..(f) of this section.

(f)(1) The 'LSS Advisory Review Penel shall provide advice to--

(i) DOE on the fundamental issues of the design and developmer t of the computer system necessary to implement the Licensing Support System under l paragraph (b) of this sectior,; and (ii) the LSS Administrator on the operation and maintenance of the Licensing Support System under paragraph (d) of this section.

(2) The responsibilities of the LSS Advisory Review Pur,el shall include -

advice on--

(i) format standaros for the submission of documentary materici to the Licensing Support System by the parties, interested governmental participants, or potential parties, such as ASCII files, bibliographic headers, and images;

L ,

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g (ii) the procedures and stancards for the electronic transmission of filinas, orders, and decisiols during both the pre-license application-phasc and the.high-level waste licensing proceeding; (iii) access protocols for raw data, field notes, and cther items covered by section 2.1003(c) of this subpart; (iv) a thesaurus and authority tables; (v) reasonable requirements'for headers, the control of duplication, retrieval, . display, imuge delivery, query response, and " user friencly" design; (vi) other duties as specified in this subpart or as directea by the LSS Admir.istra tor.

2.1012 Compliance.

(a)- In addition to the requirements of section 2.101(f) of this part, the Director of the NPC Office of Nuclear Materials Safety and Safeguards may

' determine that the tendered application is not acceptable for docketing under this subpart, if the LSS Administrator has not issued the certification describcd in section 2.1003(h)(1) of this part. -

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(b)'(1) A perscr., including a potential party granted access to the Licensing Support System under section 2.1008 of this subpart, shall not be '

granted part, status under section 2.1014 of this part, or status as an l Interested governmental xrticipant under secticn 2.715(c) of this part, if ,

l -l' it cannet demonstrate substantial and timely compliance with the requirements of.section 2.1003 of this subpart at the time it requests participation in the high-level waste licensing proceeding under either section 2.1014 or section 2.715(c) of this part.

(2) A persen denied party status or interested governmental participant status under paragraph (b)(1) of this section may request party status or interested governmental participant st6tus upon a showing of subsequent

- compliance with the requirements of section 2.1003 of this subpart.

Admission of such a party or interested governmental participant under I section 2.1014 cf this subpart or section 2.715(c) of this part, respectively, shall be conditioned on accepting the status of the prcceeding at the time of admission.

i (c) The Hearing Licensing Board shall not make a finding of substantial cnd timely compliance pursuant to paragraph (b) of this subpart for any person who is not in compliance with ali applicable orders of the Pre-License Application Licensing Board established pursuant to section 2.1010 of this subpart.

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(d) Access to the Licensing Support System may be susperded ur terniinated by )

the Pre-license' Application Licensing Board or the Hearing Licensing Board for any pctential party, interested governmental participant or party who is in noncompliance with any applicable crder of the Pre-license Application Licensing Board or the Hearing Licensing Board or the requirements of this subpart.

2 1013 LSS use during the adjudicatory proceecing.

.(a)(1) Pursuant to section 2.702, the Secretary of the NRC will maintain the efficial docket of the proceeding en the application for a license to receive and possess waste at a geologic repository operations area.

(2) Commencing with the docketing of the license application to receive and possess high-level radioactive waste at a geologic repositcry operations area pursuant tu Part 60 of this chapter, the LSS Administrator shall establish a file within the Licensing Support System to contain the official record materials of the high-level radioactive waste licensing proceeding in searchable full text, or for material that is not suitable for entry in searchable full text, by header and image, as appropriate.

(b) Absent 9000 cause, all exhibits tendered during the hearing must have i been entered into the Licensing Support System before the commencement of l

l  ?, hat portion of the hearing in rhich the exhibit will be offered. The official record file in the Licensing Support System will contain a list of

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all exhibits, showing where in the transcript each was rarked fur ic'entifica-tien and where it was received into evidence or rejected. Transcripts will be entered into the Licensing b rport System by the LS5 Act:.inistretcr en a daily basis in order to provide next-dcy availability at the hei. ring.

(c)(1) All filings in the adjudicatory proceeding on the license application to receive and possess high-level radioactive wesic at a geologic repository operations area pursuant to Part 60 of this chapter shall be transmitted electronically _by the submitter to the board (s), parties, the LSS Administrator, and the Secretary, according to established format requirements. Parties and interested governmental participants wili be required to use a password security code for the electronic transmission of these documents. , .

(2) Filings reouired to be served shall be servea upon either the parties and interested governmental participants, or their desigr.ated representatives. When a party or interested governmental participant has 4ppeared by attorney, service must be made upon the attorney of record.

(3) Service upon a party or interested governmental participant is complete when the sender receives electronic acknowledgment ("deiivery receipt") that the electronic submission has been placed in the recipient's electronic mailbox.

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4 (4) Prcoffof service, stating the name and address of the person or whom served and the manner and date of serv 1ce, shall be shown for each

-cccument filed, by--

(1) electronic acknowledgment (" delivery receipt"); or (ii) the affidavit of the persen making the service; or (iii) the certificate of counsel.

(5). One signed paper copy of each filing shall be served promptly on the Secretary by regular mail pursuant to the requiren.ents of sections 2.70E

.and 2.701 of this part.

(6) All Board and Commission issuances and orders will be transmitted electronically to the parties, interested governmental participants, and the LSS Administrator.

(d) Online access to the Licensing Support System, including a Protective Order F11e if authorized by a Board, shall be provided to the bo6rd(s), the representatives of the parties and interested governmental participants, cr.d the witnesses while testifying, for use during the hearing. Use of paper copy and other ima5es will also be permitted at the hearing.

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2.1014 Intervention.

l (a)(1) Any person whose interest may be affected by 6 proceecing en the application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to Part 60 of this chapter and who desires to participate as a party shall file a writter. petition for

.lcave to intervene.- In a. preceeding noticed pursuant to section 2.105 of this part, any person whose interest may.be affected may also request a ,

. hearing. The petition and/or request, and any reouest to participate ur. der secticn 2.715(c) of this part, shall be filed within thirty oays ufter the publication of the notice of heering in the Federal Reoister. Nontimely

' filings will not be entertained 6bsent a determination by the Consission, or the Hearing Licensing Board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors, in addition to satisfying those set out in paragraphs (a)(2) and (c) of this section:

(i) good cause, if any, for failure to file on time; (ii) the availability of other means whereby the petitioner's interest

-will be prctected; (iii) the extent to which the petitioner's participation may reasonably be expected to assist in develuping a sound record;

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h

'(iv)'the extent'to which the petitioner's interest will be represented by-i existing parties;~

(v) th'e extent to.which the petitioner's participation will. broaden the issuesorfdelaythe' proceeding.

(2) The petition shall. set forth with particularity--

(1)' the interest of. the petitioner in the proceeding, and how that'

-interest may be affected by the results of the proceeding, including the-reasons.why petitioner should be permitteo to intervene, with particular reference to the factors in paragraph (c) of this section; (ii)' a list of. the contentions that petitioner seeks to have litigated in the matter, ar.d the bases for each contention set forth with reasonable specificity;

.(iii) reference to the specific documentary atterial, or the absence thsreof, that provides a basis for each contention; and (iv) as to each contention, the specific regulttory or statutory

. requirement to which the contention is relevant.

.- a------_ ---_a__.m_.-.___ ___-.._

.y 115 -

r (3) Any petitioner who fails to satisfy paragraphs (a)(2)(ii), (iii),

tnd (iv) ot this section with respect to at least one content 1cn shall not be permitted to participate as a' party.

(4) - Any party inay amend its contentions specified in paragraph (a)(2)(ii) of this section. The Hearing L1 censing Board shall rule en any petition to amend such contentions based on the balancing of the factors specified in paragraph-(a)(1) of this section. Petitions-to amend that cre based on information cr issues raised in the Safety Evaluation Report (SER) 1ssued by the NRC staff shall be made no later than fcrty days after the

. issuance of the SER. Any petition to amend contentions that is filed cfter this time shall include, in addition to the factors specified in paragraph

.(a)(1) of this section, a showing that a significant safety or environmental issue-is involved or that the amended contention raises a materici issue related to the performance evaluation anticipated by sections 60.112 and 60.113 of this chapter.

(b) Any party or interested governmental participant may file an answer to a petition for leave to intervene or a petition to amend contentions vnthin twenty days after service of the petition.

(c) Subject to paragraph (a)(3) of this section, the Commission, or the Hearing Licensing Board designated to rule on petitions to intervene and/or requests for hearing shall permit intervention, in any hearing on an j application for a license to receive and possess high-level radicective waste i

)

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at a geclogic repository operations area, by an affecteo unit of local government as defined in section 2(31) of the Nuclear k'uste Policy Act of 1982, as amended, 47 U.S.C. 10101. In all other circumstances, the

.Cemmission or Board shall, in ruling cn a petition for leave tc. intervene, consider _ the- following. factors, among other things:

(1) The nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding; (2) The nature and extent of the petitiorier's property, financial, or other interest in the proceeding;

.(3) The pcssible effect of any. order that may be entered in the proceeding on the petitioner's interest; (d) An order permitting intervention and/or directing a hearing may be

-conditioned on such terms as the Commission, er the designated Hearing Licensing Board'may direct in the interests of:

' (3) restricting irrelevant, duplicative, or repetitive evidence and hrgument, (2) having common interests represented by a spokesman, and

_m____ . _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ . _ _ .

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'(3) retaining authority to determine pricrities anc control the compass of 1 l

the hearing.

1 (e) In any case in which, cfter consideration of the factors set forth in

. ' paragraph-(c) of this section, the Commission or the liearing Licensing Bo6rd finds that the petitioner's interest is limited to one or more of the 1ssues 1

-involved in the proceeding, any order allowing intervention shtil' limit the petitioner's particip' ation acccraingly.

(f) A persen permitted to intervene becomes a party to the proceeding, subject to any-limitations imposed pursuant to paragraph (e) of.this section.

(g) Unless otherwise expressly provided in the order ellcwing

intervention, the granting of a petition for leave to intervene does not change or enlarge the issues specified in the notice of hearing.

-2.1015 Appeals.

(a) No appeals from any board order or decision issued under this subpart are permitted, except as prescribed in paragraphs (b), (c), (d), and (e) of this section.

(b) A notice of appeal from (1) a Pre-License Application Licensing Board order issued pursuant to section 2.1010 of this subpart, (2) a Hearing Licensing Board First or Second Prehearing Cor'erence Orcer issued pursuant

- IIS -

to section 2.1021 cr 2.1022 of this subpart, (3) a Hearing Licensing Board order granting or denying a n;ction for summary disposition issued in accordance with section 2.749 of this part, or (4) a Hecring Licensing Boaro order granting or denying a petition to amend one or more contentions pursuant to section 2.1014(e)(4) of this subpart, shall be filed with the-Atomic Safety and Licensing Appeal Board r$o later than ten (10) days after service of the order. A supporting brief shall accompany the notice of appeal. Any other party, interested governmental participant, or potential party may file a brief in opposition to the appeal no later than ten days after service of the appeal.

(c) Appeals frem a Hearing Licensing Board initici cecision or partial initial decision shall be filed and briefed before the Atomic Safety und Licensing Appeal Board in accordance with the requirements of section 2.762 of this part.

(d) k' hen, in the judgment of a Board, prompt appellcte review of an crder not immediately appealable under paragraph (b) of this section is necessary to prevent detriment to the public interest or unusual delay or expense, the Board may refer the ruling promptly to the Appeal Board or Commission, as appropriate, and shall provide notice of this referral to the parties, interested governmental participants, or potential porties. The parties, interested governmental participants, or potential parties may also reouest that the Board certify, pursuant to section 2.718(i) of this part, rulings not immediately appealable under paragraph (b) of this section.

1 i

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119 -- {

.=

{

l (e) A party, interested Governmental participant, or potential party may seek Commission review of any. Appeal Board decisien or order issued unoer this section in accordance with the precedures in section 2.786(b) of this part.

'(f) Unless otherwise ordered, the filing cf an appeal, petition for review,' referral, or request for certification of a ruling shall not stay the

. proceeding or extend the tir.ie for the per'formance of any act.

2.1016 Motions.

(a) All motions shall be adoressed to the Comission or, when a proceeding is pending'before a. Board, to the Board. All motions, unless made orally on  !

the record, shall be filed according to the provisions cf section :'.1013(c) of this subpart.

(b) A motion shall state with particularity the grounds end the relief sought, and shall be accompanied by any affidavits or other evidence relieo j

-on, and, as appropriate, a proposed form of order. '

(c) Within ten days after service of a motion a party, potential party, or interested governmental participant may file an answer in support of or in opposition to the motion, accompanied by affidavits or other evidence. The moving party shall have no right to reply, except as permitted by the Board l or' the Secretary cr the Assistant Secretary.

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(d) The Board may dispose of motions oither by order or by ruling orally I during the ccurse of a prehearing conference or hecring.

(e) Where the motion in questien is a motion to compel oiscovery uncer section 2.720(h)(2) of this part or section 2.1018(f) of this subpart, parties, potential parties, and interested governmental participants may file answers to the motion pursuant to paragraph (c) of this section. The Board in its discretion, may order that the answer be given orally curing a telephcne conference or other prehearing conference, rather than filed i electronically. If responses are given over the telephone the Boarc shell issue a written order on the motion 'vhich summarizes the views presented by the parties, potential parties, and interested governmental participants unless the conference has been transcribed. This dces not precluce the Board from issuing a pricr oral ruling on the matter which is effective at the time of its issuance, provided that the terms of the ruling are incorporated in the subsequent written order.

2.1017 Computation cf time.

In computing eny period of time, the day of the act, event, or default after which the designated period of time be0i ns to run is not included. The last day of the period so computed is included unless it is a Saturday, Sundey, or legal holiday et the place where the action or event is to occur, in which event the period runs until the enc of the next day which is neither a Saturday, Sunday, nor holiday. Whenever a party, potential party, or

i

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interested governmental participant, has the right or is requireu tc do some act within a prescribed period after the service cf a notice or other document upon it, one day shall be added tc the prescribed perico. If the l Licens1ng Support System is Unavailable for more then four access hours of

}

any day that would be counted in the computation of time, that day will nct be counted in the computation of time.

2.1018 Discovery.

(a)(1) Parties, potential parties, and interested governmental participants in the high-level waste licensing proceeding may obtain discovery by one or Ecre of the. fcllowing methods: access to the documentary m&terial in the Licensing Support, System submitted pursuant to section 2.1003 of this subpart; entry upon lano for inspection, access to raw data, or other purposes pursuant to section 2.1020 of this subpart; access to, or the prcduction of, copies of documentary material for which bibliographic lieucers only have been submitted pursuant to section 2.1003(c) and section 2.1003(d) of this subpart; depositions upon cral examination pursucnt to section 2.1019 of this subpart; requests for admission pursuant to section 2.742 of this part; informal requests for information not available in the Licensing Support System, such as the names of witnesses and the subjects they plan to address; and interrogatories and depositions upon written questions, as provided in paragraph (a)(2) of this section.

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(2) Interrogatories and depositions upon' written questions may be cbthorized by croer of the discovery m6 ster appointed under paragraph (g) of this section, or if no discovery master hcs been appoir.ted, by order of the Hearing Licensing Board, in the event that the parties are unable, after informal good faith efforts, to resolve a dispute in a timely fashion concerning the production of information.

(b)(1) Parties, potential parties, and interested governmental participants, pursuant to the methods set forth in paragraph (c) of this section, may obtain discovery regaroing any matter, not privileged, which is relevant to the licensing of the likely candidate sitt for a geologic repository, whether it relates to the claim or defense of the person seeking l

l discovery or to t,he, claim or cefense of any other person. Except for

. discovery. pursuant to section 2.101S(a)(2) and section 2.1019 of this subpart, 611 other discovery shall begin during the pre-ilcense application phase. Discovery pursuant to section 2.1018(a)(2) and section 2.1019 of this subpart shall begin after the issuance of the first pre-hearing cor.ference order under section 2.1021 of this subpart, and shall be limited to the l issues defined in that order or subsequent amendments to the urder. It is not ground for cbjection that the information sought will be inac'missible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) A party, potential party, or interested governmental participant may obtain discovery of documentary material otherwise discoverable under i

paragraph (b)(1) of this'section end prepared in anticipation of, or for the hearing by, or for another party's, potential party's, or interested governmental participant's representative (including its attorney, surety, indemnitor, insurer, or similiar agent) crly upon a showing that the party, potential party, or interested governmental participant seekinc discovery has substantial need of the materials in the. preparation of its case and that it is unable without undue hardship to obtiin the substantial equivalent of the materials-by other means. In crdering discovery of these materials when the required showing has been made, the Board shall protect against disclosure vf the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party, potential party, or interested governmental participant concerning the proceeding.

(c) Upon motion by a party, potential party, interested governmental participant, or the person from whom discovery is scught, and for good cause shown, the Board may make any order that justice requires to protect a party, potential party, interested governmental participant, or other person frem annoyance, embarrassment, oppression, or undue burden, delay, or expense, incluoing one or more of the following: (1) that the discovery not be had; l (2) that the discovery may be had only on specified terms and ccnditiors, including a designation cf the time or place; (3) that the discovery may be had only by a method of oiscovery other than that selected by the party, potential party, or interested governmental participant seeking discovery; (4) that certain matters not be inquired into, or that the sccpe of discovery be limited to certain matters; (5) that discovery be conducted with nc cne

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4 l

present except persons designated by the Board; (C) that, subject to the ]

1 provisions of section 2.7f0 of this pr.rt, a trade secret or other j confider.tial resetrch,; development, or commercial iriformation rct be  !

disclosed or be disclosed only in a designated way; (7) that studies and evaluations not be prepared. If the motion for a protective order is denied i in whole or in part, the Board may, on such terms and conditions as are just, order that any party, potential party, interested governmental participant'or other person provide or permit discovery.

(d) Except as provideo' in paragraph (b) of this section, and unless the Board upon motion, for the convenience of parties, potential parties, interested governmental participants, and witnesses ar.d in the interest of fustice, orders o,therwise, methods of discovery may be used in any sequence, and the fact that a party, potential party, or interested governmental participant is cor. ducting discovery, whether by dercsition or otherwise.

shall not operate to delay any other party's, potential party's, or interested governmental participant's ciscovery.

(e) A party, potential party, or interested governmental participant who has included all documentary material relevant to any discovery request in the Licensing Support !;' stem or who has responded to a request for ciscovery with a response that was complete when made is under no duty to supplement its response to includa information thereafter acquired, except as follows:

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(1) To the extent that written interrogatories are authorized pursuant to piragraph (a)(2) of this section, a party or interested governrrental participant is urder a duty to seasonably supplement itt response tc any question directly addressed to (i) the identity anc location of persons having knowledge of discoverable matters, and (ii) the identity cf each person expected to be called as an expert witness at the hearing, the subject matter on which the witness is expected to testify, and the substance of the witness's testimony.

(2) A party, potential party, or interested severnmental participar.t is under a duty seasor, ably to amend a prior respense if it obtains inforrration upon the' basis of' which (1) it knows that the response was incorrect when made,or(ii) it,kr.cws that the response though correct when made is no longer true and the circumstances are such that a failt.re to amend the response is in substance a knowing concealment.

(3) A duty to supplement responses may be imposed by order of the Board or agreement of the parties, potential parties, and interested governmental participants.

(f)(1) If a ceponent or a party, pcter.tial party, or interested governmental participant upon whcm a request for discovery is served fails to respond or objects to the request, or any part thereof, the party, potential party, er interested governmental participant submitting the request or taking the deposition may move the Board, within five days r.fter the date of the

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response or after. tailure to respond tc the request, for an crder compelling e response'in 6ccordance with the request. The moticr shall set furth the nature of the questions or tho. request, the response or objection of the party, potential party, interested governmental participant, or other person Lpon whom the request was served, and arguments in support of the motior..

For purposes of this paragraph, an evasive or incomplete answer or response

~

shall be treated as a f ailure to answer or respond. Failure to anst.er or respond shall not be excused on the ground that the ciscovery sought is objectionable unless the person, party, pctential party, or interested goverrcental participant failing to answer or respond has applied fcr a protective order pursuant to paragraph (c) of this section.

(2) In ruling on.a motion made pursuant to this section, the Board may make such a protective order os. it is authorized to make on a motion made pursuant Ic paraoraph (c) of this section.

(3) An independent request for issucnce of a subpoena may be c'irectea to a nonparty for production of documents. This section does not apply to reouests for the testimor.y of the NRC regulatory staff pursuant to secticn l

2.720(h)(2)(1) of this part.

l (g) The Hearing Licensing Board pursuant to section 2.722 of this part inay l

6ppoint a discovery master to resolve disputes between partics concernir.g ,

informL1 requests for information as provided in paragraphs (a)(1) ano (a)(2) of this section.

]

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2.1019 Depositions upon oral examiriation and upon written questions'.

-(a) Any party cr interested governmental participant desiring to take the

. testimony of any per' son by deposition on oral examination shall, without

' leave cf the Commission or the Hearing Licensing Board, give reascnable notice in writing to every other party end interested governrr. ental participant, to the person to be examined, and to the Hearir.g Licensing Board of the propcsed time and place of taking the deposition; the name and andress ct each person to be examined, if known,-or if the name is not kncwn, a -

general: description sufficient to identify him or her or the class or Srnup E to which he or she belongs; the matters upon which each person will be l

examine'd and the name or descriptive title and ecdress of the officer beicre whom the deposition is to be taken.

(b)'Within the United. States, a deposition may be taken before any officer authorized tc acminister oaths by the laws of the United States or of the

. place where the examination is held. Outside of the United States, a

' deposition may be taken before a secretary of an embassy or legation, a

-consul general, vice consul or consular agent of the United Stetes, or a

' person authorized to administer oaths designated by the Commission.

Depositicas n'ay be conducted by telephone or by video teleconference at the

. option of the party or interested governmental participant taking the deposition.

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'c) The deponent shall be sworn or stall affirm before any questions are put Eto him or her. Examination and cross-examination shall proceed as at a hearing. Each cuestion propounded shall be recorded and the enswer taken down in the words.of the witness. Objections on questions of evidence shall be noted in short forn without the argumentr,. The officer hall not decide on the competency, materiality, or relevancy of evidence but shall record the evidence subject to objection. Objections on questions of evidence not made before the officer shall not be deemed whived unless the ground of the objection is one which might have been obviated or removed if presented at

..that time.

(d) When the testimony is fully transcribed, the depcsition shall be submitted to the deponent for examination and signature unless the deponent is-ill or cannot be found or refuses to sign. The officer shall certify the deposition or, if the deposition is not signed by the ceponent, shall certify the reasons for the failure to sign, and shall promptly transmit the.

deposition to the LSS Administrator for submission into the Licensing Support System.

l (e) Where the deposition is to be taken on written questions as authorized under section 2.1018(a)(2) of this subpart, the party or interested governmental participant taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on l overy other party and interested governmental participant with a notice stating the name and address of the person who is to answer them, and the )

.;l 129 -

9 name. descriptico, title, and address of the officer before whtm they are tc

~

Within ten days after serv. ice, any other party or interested

-be asked. ,

governmental participant may serve crnss-questions. The questions, cross-questions, and answers shall be recorded and sigr.ed, and the deposition certified, returned, ano transmitted to the LSS Aoniinistrator as in the case of a deposition on crel examination.

(f) A deposition will not become a part of the evidentiary record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party or interested governmental participar.t. any other party or -interested governmental participant may introduce any other parts.

A party or interested governmental participant shall not be deen =d to make a

person its cwn witness for any purpcse by taking his or her depcsition.

(g) A deponent whose deposition is taken and the efficer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party or interested governmental participant at whose instance the deposition is taken.

i (h) The deponent may be accompanied, represented, and advised by legal counsel.

(1)(1) After receiving written notice of the deposition under paragraph (a) or paragraph (e) of this section, and ten days before the scheduled date of the deposition, the deponent shall submit an index of all docurer.ts in his or E___--_-_----___---__

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! her possession ~, relevant to the subject matter of the depositior.. including the categories of documents set forth,in paragraph (i)(2) of this section, to all; parties'and interested scvernmenta'. participtrts. The irdex shall-i

. identify those records. which have already been entered into the Licensing Support System. All' documents that are not identical to documents alretdy in the Licensing Support System, whether by reason of subsequent modification or by'the addition of notations, shall be treated as separate documents.

(2) Tho following material is excluded from initial entry into the Licensing SupportLSystem, but is subject.to derivative discovery under paragraph (i)(1) of this section--

(i) personal records; (ii) travel vouchers; (iii) speeches; (iv) preliminary drafts; (v) marginalia.

(2) Subject to paragraph (i)(6) of this section, any' party or

. interested governmental participant may reauest from the deponent a paper copy of any or all of the documents on the index that have not already been entered into the Licensing Support System.

I' (4) Subject to paragraph (i)(6) of this section, the deponent shall

. bring a paper copy of all documents on the index that the deposing party or

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interested governmental participant recuests that have not already beer i entered into the Licensing Support System tc an orsi deposition corducted .

1 pursuant to paragraph (a) of this section, or in the case of a depositicn i

taken on written cuestions pursuant to paragraph (e) of this section, shall  ;

submit such documents with the certified deposition.

(5) Subject to paragraph (i)(6) of this section, a party or interested governmer;tcl participant may request that any or all documents on the incex that have not'already been entered into the Licensing Support System, and on which it intends to rely at hearing, be entered into the LSS by the deperent.

(6) The deposing party or interested governmental participant shall assume the responsibility.for the obligations set forth in paragraphs (i)(1),

(1)(3),'(1)(4), and (t)(5) of this section when deposing someone other then a party or interested governmental participant. ,

(j) In a proceeding in which the NRC is a party, the PRC staff will make available one or more witnesses designated by the Executive Director for Operations, fcr oral examination at the hearing or on deposition regarding any matter, not privileged, which is relevant to the issues in the proceeding. The attendance and testimory of the Commissioners and named NRC personnel at a hearing or on deposition moy not be required by the Board, by subpoena or otherwise: Provided, That the Board may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC empicyee has direct personal knowledge of a material fact not known to the

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e witnesses made availtble by th:i Executive Director for Operations, require the ottendance and testimony of named fiRC perscrnel.

Section 2.1020 Entry upon land for inspection and other purposes.

(a) Any party, potential party, or interested governmental participant may serve on any other party, pctential party, or interested governmental participant a request to permit entry upon designated lat;d or other property in the possession or ccr. trol of the party, potential party, or interested governmental participant upon whom the request is served for the purpcLe of access to raw data, inspection and measuring, surveying, photographing, testing, or sampl,1ng the property or ery cesignated cbject or operation thereon, within the scope of section 2.1018 of this subpart.

(b) The request may be served on any party, potential party, or interestec governmental participant without leave of the Ccmmission or the Buaro.

(c) The request shall describe with reasonable particularity the lano or other prcperty to be inspected either by individual item or by categcry. The reouest shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

(d) The party, pctential party, or interested governmental participant upon whom the request is served shall serve en the party, potential party, or

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e.

interested governmental participant submitting the request a written respor.se r within' ten days after the~ service of the request. The response shall state, l -with' respect to each item;or category, that inspectien and related activities will be permitted as requested, unless the request is objected to, in which

! -case the reasons for objection shall be stated. If objection is made to port

~o f an item cr' category, the part shall be specified.

l 2.1021 First Prehearing conference.

(a) Ir. any prcceeding involving an application for a license to receive and possess high-level radioactive waste at a geologic repository operations aree pursuant to Part 60 of this chapter the Consission or the Hearing Licensing Board will direct the parties, interested governmental participants and any petitioners for intervention, or'their counsel, tc appear at a specified t1me and place, within seventy days 6fter the nctice of hearing is publisheo, or such other tine as the Commission or the He6 ring Licensing Boara may deem appropriate, for a conference to:

(1) permit identification of the key issues in the proceeding; (2) take any steps necessary for further identification of the issues; (3) consider all intervention petitions to allow the Hearing Licensing Board to make such preliminary or final determination as to the parties anc interested governmental participants, as may be appropriate;

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(4) establish a schedule for further actions in the proceeding; and i (5) establish a discovery schedule for the proceeding takir g into account the' objective of meeting the three year time schedule specified in section 114(d) of the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C.

10134(d).

-(b) The Board may order any further formal and informal confe' nces weng the parties and interested governmental p6rticipants including teleconferences, to the extent that it considers that such a conference woula expedite the proceeding.

(c) A prehearing', conference held pursuent to this section shall be stenographically reported.

(d) The Board shall enter an order which recites the action taken at the conference, the schedule for further actions in the proceeding, and any agreenents by the parties, and which identifies the key issues in the 4

proceeding, nakes a preliminary or final determination 6s to the parties and

,'nterested governmental participants in the proceeding, and provides for the submission of status reports on discovery.

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e' 2.1022 Secor.c Prehearing Ccnference.

'(a)'The' Conaission or. the Hearing L'icensing Board .in a proceeding on er

, application for a' license to receive and possess high-level radioactive waste at a geologic repository operations crea shall direct the parties, interested governmental participants, or their' counsel te appear at a specified time and place not later than seventy days after the Safety Evaluation Report is

-issued by the NRC staff for a conference to consider: .

(1) any amended contentions submitted under section 2.1014(a)(4) of this

, subpart; (2) simplification,-clarification, ar.d specification of the issues;

~(3) the obtaining of stipulations and admissions of fact and of the i

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contents and~ authenticity of documents to avoid unnecessary proof; (4) identification of witnesses and the limitation of the number of expvrt witntsses, and other steps tc e/pedite the presentation of evidence; (5) the setting cf a hearing schedule; (6) establishing a discovery schedule for the proceeding taking into account the objective of meeting the three year time schedule specified in

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s:cticn 114(d) of the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C.

10134(d); and (7) such other natters as may aio in the crderly disposition of the proceeding. .

(b) A prehearing conference held pursuant to this section shall be stenographically reporteo. -

(c) Tbc Board shall enter an order which recites the action taken at the conference and the agreements by the parties, limits the issues or defines the matte s in controversy to be determined in the proceeding, sets a discovery schedule, and sets the hearing schedule.

2.1023 Immediate effectiveness of initial decision.

(a) Pending review anc final decision by the Commission, an initial oecision resolving all issues before the Hearing Licenting Board in favor of issunce or amend.aent cf a construction authorizcMon pursuant to section 60.31 of this chapter or a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to section 60.41 of this chapter, will be immediately effective upon issuance except --

(1) as provided in any order issued in accordance with section 2.788 of this part that stays the effectiveness of an initial decision; or i

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t:

(2) as otherwise provided by the Ccemission in special circumstances.

(b) The Director of Fuclear Material Safety end Safeguards, notwithstanding the filing or pendency of an appeal or a petition for review pursuant to section 2.1015 of this subpart, promptly shall issue a construction authorization or a license to receive and possess high-level radioactive waste at a geologic repository operations area, or amendments thereto, following an initial decision resolvinc all issues before the Hearing Licensing Board in favor of the licensing action, upon makina the appropriate licensing findings , except--

(1) as provided in paragraph (c) of this section; or .

(2) as provided in any order issued in accordance with secticn 2.788 of this part that stays the effectiveness of an initial decision; or .

l (3) as otherwise provided by the Ccmmission in special circumstances, (c)(1) Before the Director of Nuclear Material Safety and Safegueros may issue a construction autberization or a license to receive and possess waste at a geologic repository operations area in accordance with paragraph (b) of this section, the Commission, in the exercise of its supervisory authority over agency proceedings, shall undertake and complete a supervisory exaniination of those issues contested in the proceeding before the Hearing Licensing Board to consider whether there is any significant basis for

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. doubting thet the facility will be cccstructed cr operated with adequate protection of the public health an'd safety, and whether the Commission should take action to suspend or tc ctherwise condition the effectiveness of a Hearing Licensing F ord decisicn that resolves contested issues in a proceeding in favor of issuing a construction authorization cr a license to receive and possess high-level radioactive waste at a geologic repository operations area. This supervisory examination is not part of the adjudicatory proceeding. The Ccmmission shall notify the Director in writing -

when its supervisory examination conducted in acccrdance with this paragraph has been completed.

(2) Before the Director of Nuclear Itateriel Safety and Safuguards issues a construction authcr12ation or a license to receive and possess high-level racicactive waste at a geologic repository operations area, the Commission shcIl review those issues that have not been contested in the preceeding before the Hearing Licensing Doard but about which the Director cust make appropriate findings prior to the issuance of such a license. The Director shall issue a construction authorization or a license to receive and possess high-level radioactive waste at a teologic repository operations drea only after written notification from the Commission cf its completion of its review under this paragraph and of its determination that it is appropriate

~

for the Director to issue such a construction authorization or license. This Consissicn review of uncontested issues is not part of the adjudicatory proceeding.

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'(3).I;c suspension of the effectiveness of a Hearing Licensing Boerd's initialfdecision or. postponement of the Director's issuance of a construction l l

' authorization or license that results from a Ccemissicn supervisory examinatier.'of contested; issues uncer_ paragraph (c)(1) of_this section or a )

review of. uncontested issues under paragraph (c)(2) of this section will be

entered except in writing with a statement of the reasons. Such suspension e or postponement will'be limited to such period as is necessary for the Cownission to resolve' the matters at issue. If the supervisory examination results in e suspension of-the effectiveness of the Hearing Licensino Board's initial decision under paragraph (c)(1) of-this section, the Commission will take review of the decision sua spente and further proceedings relative to the. contested matters at issue will be in accordance with procedures for

/ participation by thg DOE,.the NRC staff, or other parties and interested

.. governmental participants to the Hearing Licensing. Board proceeding established by the Commission in its written statement of reasons. If 6 l postponement results from a review under paragrcph (c)(E) cf this section, comments on the uncontested matters at issue may be filed by the DOE within ten days of service of the Comission's written statement.

Dated at Rockville, MD this 7 day of / O ., 1980 For the Nuclear Reg *ulatory Commisciun.

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rD\ ,NC L Sainuel J { Th41k, N Secretary of the Commission.

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