ML20246C989

Requests Commission Approval for Publication of Final Rule in Fr

ML20246C989
Person / Time
Issue date:	04/27/1989
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
TASK-RIA, TASK-SE SECY-89-140, NUDOCS 8905100087
Download: ML20246C989 (150)

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s April 27, 1989 140 (Affirmation)

-For: The Commissioners 1 From: William C. Parler General Counsel

Subject:

NEPA REVIEW PROCEDURES FOR GEOLOGIC REPOSITORIES FOR HIGH-LEVEL WASTE

-Purpose: To obtain Comission approval for publication of a final rule in the Federal Register.

Sumary: The Nuclear Waste Policy Act, as amended, provides direction to the Comission with respect to the implementation of NEPA in the course of repository licensing proceedings. Pursuant to this direction, the Comission last year approved a proposed rule which, among other things, would limit its own independent review of NEPA issues to situations involving significant new information or new considerations. The staff has reviewed the nine comment letters received in ' response to publication of the proposed rule. The coments, though in some cases quite critical, present no new policy or legal considerations. Accordingly, with certain minor refinements, the staff is now recommending pr6mulgation of a final rule along the lines of the one previously l proposed.

Background:

The proposed rule was presented to the Comission for its consideration, on March 2, 1988, in SECY-88-60.

Publication in the Federal Register occurred on May 5,1988 (53 FR 16131). (See also SEGY-86-51, February 12, 1986; l SECY-86-51-A, April 22, 1986; SECY-86-518 June 27, 1986).

Discussion: Section 114(f) of the Nuclear Waste Policy Act, as amended, i captioned " Environmental Impact Statement," specifically addresses the manner in which toth the Department of Energy (DOE) and the Comission are to dischstge their re:;pective responsibilities Act under the of 196P. (Section National 114(f) is setEnvironmental Policy out in Attachment A. )

An importas.t element of this provision is that any DOE environmental impact statement prepared in connection with ,

a repository proposed to be constructed at the Yucca Mountain site "shall, to the extent practicable, be adopted by the Comission1n-connection with the issuance by the

Contact:

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i l Comission of a construction authorization and license for such repository." Further, "to the extent such statement is adopted by the Comission, such adoption shall be deemed to also satisfy the responsibilities of the Commission

[under NEPA) and no further consideration shall be required When the Comission addressed these provisions in the rule proposed last year, it reviewed both the language and the legislative history of the statute and concluded that Congress intended for NRC to undertake an independent review and weighing of environmental costs and benefits only where there were significant new considerations or new information that had not been taken into account by DOE.

In support of this construction, the Commission relied upon a number of factors - remarks in comittee reports and floor debate (particularly in the House of ,

Representatives), the opportunities for assessment of environmental concerns afforded by the State's right to issue a notice of disapproval (followed by mandatory Congressional consideration thereof), the requirement that judicial challenges to DOE's environmental impact statement be filed promptly, and the rather stringent timetable for NRC review of a license application. The Comission further suggested that a focus upon radiological concerns would serve to enhance the effectiveness of its license review. . .

The comments submitted in response to the notice of proposed rulemaking tended, iq this regard, either to support without qualification the Comission's reading of the statute or, alternatively, to object to it with similar conviction. In the latter case, as the State of Nevada put it, NRC's major underlying premise "is wrong because it poses, analyzes and answers the wrong question" - viz., how '

NRC should review the adequacy of DOE's EIS rather than, as Nevada would state it, how NRC should perform its own, independent, NEPA responsibilities. The coments from the Council on Environmental Quality reflect a similar perspective.

The staff has reviewed with care the arguments advanced by the State and others of a similar mind. While disagreement with the Commission's conclusions is evident, there is little if any debate with the reasonableness and relevance of the considerations advanced by the Commission in support of its point of view. Rather than examine the particular meaning and context of the NWPA, the emphasis in these c'>mments was placed upon precedents dealing with agency responsibilities under NEPA generally.

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. 3 Turning 'now to the Department of Energy, we consider first its concern about the role of the Comission in connection with DOE's preparation of an EIS. The Comission had taken the position that NRC should function as a commenting agency, but not as a " cooperating agency" as defined in CEQ regulations. A cooperating agency, it had been noted, participates in EIS preparation - at the request of the lead agency - by developing information and preparing environmental analyses including portions of the EIS concerning which the cooperating agency has special expertise. The staff continues to believe that NWPA contemplates no such involvement by NRC in the NEPA review for a geologic repository. On the other hand, it does seem proper to comment on the DOE draft EIS, so that NRC concerns and suggestions can be taken into account. The proposed rule, as explained by the Commission, would allow for NRC to act in a commenting capacity. The preamble to the recomended final rule would point out that NRC's involvement would begin with DOE's scoping process, thereby assuring DOE that this agency would not stand mute while important decisions were being made.

DOE also took exception to the Commission's emphasis upon the Department's continuing obligation to supplement its EIS, but the staff regards the position of the proposed rule with respect to this issue to be sound. As a general rule, it will fall to DOE to do an environmental assessment, and supplement its EIS as needed, whenever there are substantial changes in its proposed actions or there are significant new circumstances or information relevant to environmental concerns and bearing upon the proposed action or its impacts. In principle, there may also be situations in which NRC may need to prepare its own supplemental EIS; and the proposed rule gave recognition to this possible eventuality. The proper procedure must await analysis in the context of the facts that arise in the course of adjudication; for the present, it suffices to note that the rule provides the flexibility and guidance that will accomodate a decision and course of action that is in accordance with law.

The only substantive revision being recommended by the staff concerns the procedure for a site that may be proposed by a Negotiator, pursuant to Title IV of NWPA, as amended. In this situation, the statute specifically provides for adoption under the standard set out in CEQ regulations. A conforming change is needed to ensure that this standard is implemented. .

Copies of all coments received, along with a coment analysis by the staff, are included in the enclosures to this staff paper,

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Commission resource needs to implement the provisions of NWPA have been reflected in programmatic budget requests.

Thus, rio significant new resource expenditures will be required by issuance of the amendments.

Coordination: The Executive Director for Operations concurs in the recommendations of this paper.

Recommendation: That the Commission:

1. Approve for publication in the Federal Reoister the amendments to Parts 2, 51, and 60 enclosed here (Enclosure A) which provide for tne implementation of NEPA in the licensing of DGE activities with respect to a geologic repository for high-level radioactive waste.

2. Certify that this rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. This certification is necessary in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(a).

3. Deny in part the petition for rulemaking (PRM-60-2A) filed by the States of Nevada and Minnesota.

4. Note:

a. This regulation is the type of action described in categorical exclusions 10 CFR 51.22(c)(1) and (3). Therefore, neither an environmental impact statement not an environmental assessment has been prepared for this regulation.

b. The Chief Counsel for Advocacy of the Small Business Administration will be informed by the Division of Rules and Records of the certifica-tion regarding economic impact on small entities.

c. The Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House Interior and Insular Affairs Committee, and the Subcommittee on Energy and Power of the House Energy and Commerce Committee will be informed by a letter similar to Enclosure B.

d. This rule contains no new or amended record-keeping, reporting, or application requirement, or any other type of information collection requirement, subject to the Paperwork Reduction Act (Pub. L.96-511).

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e. The Office of Governmental and Public Affairs has-determined that it is necessary to issue a public announcement similar. to' Enclosure C in connection, with these amendments.

f. The recommended changes from the proposed rule are provided in comparative text as Enclosure D.

g.. Public comments on the proposed rule are provided as Enclosure E.

h. A staff analysis of the public coments is provided as Enclosure F.

i. Enclosure G contains the Comission's notice of receipt of the rulemaking petition (PRM-60-2A) from the States of Nevada and Minnesota. A brief notice of the Commission's action with respect to the petition will be published in the Federal Register; it will state that the petition is denied in part and will refer to the present rulemaking (Enclosure A) for further infomation.

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+/z7 William C. Parler General Counsel

Attachment:

NWPA, as amended, Section 114(f).

Enclosures:

A. Federal Register Notice with final amendments to 10 CFR Parts 2, 51, 60.

B. Draft Congressional Letter.

C. Public Announcement.

D. Comparative Text.

E. Public Comment Letters.

F. Public Comment Analysis.

G. Notice of Receipt of PRM-60-2A.

6 Commissioners' comments or consent should be provided directly

-to SECY by c.o.b. Monday, May 15, 1989.

Commission staff office comments, if any, should be submitted to the Commissioners NLT Monday, May 8, 1989,.with an information copy to SECY.- If thepaper is of such a nature that it requires additional time'for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively scheduled for affirmation at an open meeting during the week of May 8, 1989. Please refer to the appropriate Week 3y Commission Schedule, when published, for a specific date and time.

DISTRIBUTION:

Commissioners OGC IG GPA REGIONAL OFFICES EDO ACRS ACNW ASLBP ASLAP SECY l

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I ATTACWENT A i l

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Section 114(f) of The Nuclear Waste Policy Act of 1982, as amended i (f) ENVIRONMENTAL IMPACT STATrutwr.-(l) Any recommenda-tion made by the Secretary under this section shall be considered a major Federal action significantly affecting the quality of the human environment for purposes of the National Environmental Policy Act of 1969 (42 U.S C. 4321 et seq.). A final environmental impact statement prepared by the Secretary under suen Act shall accompany any recommendation to the President to approve a site for a repository.

"(2) With respect to the requirements imposed by the National Environmental Policy Act of 1969 (42 U.S C. 4321 et seq.), compli-anee with the procedures and requirements of this Act shall be deemed adecuate consideration of the need for a repository,the time of the initial availability of a repository, and all alte. natives to the isolation of high level radioactive waste and spent nuclear fuel in a re sitory.

(3) For purposes of complying with the requirements of the National Environmental Pohey Act of 1969 (42 U.S C. 4321 et seq.)

and this section, the Secretary need not consider alternate sitas to the Yucca Mountain site .~or the repository to be developed under this subtitle.

"(4) Any environmental impact statement prepared in connbtion with a repository proposed to be constructed by the Secretary under this subtitle shall, to the extent practicable, be adopted by the

. Commission in connection with the issus. nee by the Commission of a construction authorization and license for auch repository. To the extent such statement is adopted by the Commission, such adoption shall be deemed to also satisfy the responsibilities of the Commission under the National Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.) and no further consideration shall be required, except that nothing in this subsection shell affect any independent respon-sibilities of the Commission to protect the public health and safety under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

(5) Nothing in this A:t shall be construed to amend or otherwise detract from the licensing requirements of the Nuclear Regulatory Commission established in title !! of the Energy Reorganization Act of 1974 (42 U.S C. 5841 et seq.).

(6)In any such statement prepared with respect to the repository to be constructed under this subtitle, the Nuclear Regulatory Commission need not consider the need for a reporitory, the time of initial availability of a repository, alternate sites to the Yucca h1ountain, site, or nongeologic alternatives to such site.

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I ENCLOSURE A O

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2, 51 and 60

.NEPA Review Procedures for Geologic Repositories for High-Level' Waste AGENCY: Nuclear Regulatory Comission.

ACTION: hnal rule.

SUMMARY

The Nuclear Regulatory Commission is adopting procedures for implementation of the National Environmental Policy Act with respect to geologic repositories for high-level radioactive waste. In accordance with the Nuclear Waste Policy Act of 1982, as amended, the Commission will adopt, to the extent practicable, the final environmental impact statement prepared

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by the Department of Energy'that accompanies a recommendation to the.

President for repository development. The rule recognizes that the primary I responsibility for evaluating environmental impacts lies with the Department of Energy; and, consistent with this view, it sets out the standards and l procedures that would be used in determining whether adoption of the Department's final environmental impact statement is practicable.

EFFECTIVE DATE:

1 FOR FURTHER INFORMATION CONTACT: James R. Wolf, Office of the General l Counsel, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, Telephone (301) 492-1641.

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. SUPPLEMENTARY INFORMATION:

Under applicable law the Nuclear Regulatory Comission exercises regulatory authority with respect to the development, operation, and pomanent closure of one or more geologic repositories for high-level radioactive waste and spent nuclear fuel. In connection with the exercise of this authority, the Comission is required by the National Environmental Policy Act of 1969 (NEPA),. to give appropriate consideration to the environmental impacts of its actions. The scope of such consideration and the procedure to be followed by the Comission in fulfilling its NEPA responsibilities are addressed by the Nuclear Waste Policy Act of 1982, as amended (NWPA). This statute directs the Commission to adopt the environmental impact statement (EIS) prepared by the Department of Energy (the applicant for the NRC license with respect to the repository) "to the extent practicable," with the further proviso that adoption of DOE's EIS shall be deemed to satisfy the Commission's NEPA responsibilities "and no further consideration shall be required." The Commission has been engaged in rulemaking to implement this statutory framework.

The Comission accordingly undertook a careful review of the text and statutory history of the pertinent provisions of the Nuclear Waste Policy Act. The results of this review were presented in the notice of proposed rulemaking published in the Federal Register on May 5, 1988, 53 FR 16131. ,

As sumarized therein:

(1) The Comission will conduct a thorough review of DOE's draft EIS and will provide comments to DOE regarding the adequacy of the statement.

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(2) If requested by Congress pursuant to the NWPA, the Comission will' provide' coments-on DOE's EIS to the Congress with respect to a State or Tribal notice of disapproval of a designated site.

(3) The NRC will find it practicable to adopt DOE's EIS (or any DOE supplemental EIS) unless:

(a) The action proposed to be taken by the' NRC differs in an environmentally significant way from the action described in DOE's license application, or (b) Significant and substantial new information or new considerations render the DOE EIS inadequate.

(4) The DOE EIS will accompany the application through the Comission's review process, but will be subject to litigation in NRC's licensing proceeding only where factors 3(a) or 3(b) are present. -

In accordance wnh NWPA, the primary responsibility for evaluating environmental impacts lies with DOE, and DOE would therefore be required to supplement the EIS, whenever necessary, to consider changes in its proposed activities or any significant new information.

The Commission received nine letters of coment in response to its notice of proposed rulemaking. The commenters were the State of Nevada (Nuclear Waste Project Office), the U.S. Department of Energy, the Council on Environmental Quality, the U.S. Environmental Protection Agency, and several private organizations (the Nevada Nuclear Waste Task Force, the Environmental Defense Fund, the Southwest Research and Information Center, the Sierra Club, and the Edison Electric Institute).

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After reviewing and'giving careful consideration to ell the comments:

received, the Commission now adopts, in substantial part, the position set forth in its earlier notice. In particular, the Commission continues to emphasize its view that its role under NWPA is oriented toward health and safety issues and that, in general, nonradiological environmental issues are intended to be resolved in advance of NRC licensing decisions.through the

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actions of the Department of Energy, subject to Congressional and judicial review in accordance with NWPA and other applicable law. The Commission anticipates that many environmental questions would have been, or at least.

could have been, adjudicated in connection with an environmental impact statement prepared by DOE, and such questions should not be reopened in proceedings before NRC.

STATE.0F NEVADA COMMENTS We begin with the comments presented by the State of Nevada not only because of its important sovereign interests, but because of the fundamental nature of the issues that are raised. In Nevada's view, NRC " poses, analyzes and answers the wrong question." According to Nevada, the question is how NRC should perform its own, independent, NEPA responsibilities and not how NRC should review and approve the adequacy of DOE's EIS.

Having posed the question in terms of responsibilities under NEPA, Favada reviews the many cases that hold that where a major federal action involves two or more federal agencies, each agency must evaluate the environmental consequences of the entire project and determine independently PT51FINL3 - 4/20/89

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whether the statutory requirements have been satisfied. NRC is not relieved from the responsibility of making such an independent determination, according to the State, because it would still be able to carry out its licensing responsibilities in a manner consistent with law. NRC, which is directed by NWPA to adopt the DOE environmental impact statement "to the extent practicable," need only do so to the extent that it is otherwise within the custemary practice of the agency.

The views of the State bring the question into sharp focus. If the issue were properly to be posed as Nevada urges - i.e., with an assumption that the Commission's NEPA responsibilities are not modified by NWPA - then the regulatory language suggested in its comment letter would have merit.

But the Commission fimly believes that the law was intended to have all matters associated with the environmental impacts of repository development considered and decided, to the fulles't' extent practicable, apart from NRC licensing proceedings. As explained when the proposed rule was published, this interpretation is supported both by the specific legislative and judicial myiew procedures built into the statutory structure and by the accompanying legislative history. The Commission believes that the result 1 l is sensible. Concerns arising under NEPA -- if not resolved through the  ;

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negotiation procedures established by NWPA -- would be adjudicated early, with finality, and with every reasonable argument being capable of being advanced to the oversight of Congress and the courts. From that point on, in the absence of substantial new infomation or other new considerations, it would be proper to inquire only whether the specific detailed proposal of the Department of Energy could be implemented in a manner consistent with PT51FINL3 - 4/20/89 l.

l the health and safety of the public. The resolution of issues in this n.anner for purposes of NEPA would in no event affect the framing or decision of health and safety issues, under the Atomic Energy Act in NRC lir.ensing proceedings.I Although quite different statutory schemes are involved, we perceive a parallel with issues raised in Quivira Mining Company v. NRC, 866 F.2d 1246 (10th Cir. 1989). That case concerned regulations adopted by NRC pursuant to the Uranium Mill Tailings Radiation Control Act of 1978. It considered, among other things, the extent to which NRC, in giving the "due consideration to economic costs" required by tne statute, could rely upon a cost-benefit study previously carried out by the Environmental Protection Agency to support EPA's rulemaking responsibilities. The Commission concluded that since the agencies' actions coincided in material respects, all statutory language would retain significant force and effect, and the time period allowed for the issuance of its regulations was inadequate for an independent study Congress did not wish to require,the NRC to perform a second cost-benefit analysis. The Court found the legislative history, as well as the statutory language, to be ambiguous on the question; as such, it upheld the NRC construction. Here, given the identity of the actions being I The State took exception to the standard for completeness of information in a license application -- viz. the " reasonably available" standard of 10 CFR 60.24. Although the matter is not strictly at issue in this rulemaking, the Commission regards the State's concern in this regard to be overdrawn. While information may be sufficient to meet the requirements of 60.24, this in no way implies that such information will prove to be sufficient to meet the applicant's burden of 4 persuasion under 60.31.

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considered by the two agencies (DOE and NRC), we believe it to be a fair reading of Congressional intent that NRC can adequately exercise its NEPA decisionmaking responsibility with respect to a repository by relying upon DOE's environmental impact statement. As in Ouivira Mining, the timing requirement - under NWPA, a three-year licensing process for a unique facility, involving standards of exceptional complexity, requiring disputatious predictions of future human activity and natural processes for thousands of years - supplies practical support for our interpretation.

Congiess did not speak to the precise question of the standard to be used in deciding whether adoption of DOE's environmental impact statement is practicable; and if our construction is not the only one that might be propose 6, it seems to us to be, at a minimum, " permissible."

Once DOE's EIS has been adopted, the statute expressly relieves the Commission from further consideration of the environmental concerns addressed in the statement. Congressional review of a State's resolution of disapproval - should such a resolution be passed - would permit (and, most likely, virtually ensure) that issues other than those to be adjudicated under the Atomic Energy Act would have been considered and weighed. Under these circumstances, it would do no violence to national environmental policy to proscribe further examination in administrative proceedings.

l COUNCIL ON ENVIRONMENTAL QUALITY COMMENTS The Commission invited the Council on Environmental Quality to comment on the proposed rule. The conclusion of CEQ was similar to that of the PT51FINL3 - 4/20/89

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State of Nevada. In particular, CEQ read the phrase "to the extent practicable" to mean that NRC should make an independent evaluation of the DOE environmental impact statement, adopting sone or all of it as appropriate so as to avoid unnecessary duplication. From the Commission's perspective, though, the position does not fully take into account the detailed scheme for environmental review established by NWPA. Neither the related provisions of the statute (including, for example, those dealing with legislative and judicial review and establishing time frames fcr Commission decisionmaking) are analyzed, nor is there any examination of the legislative history which, as described in the preamble to the proposed rule, supports our point of view. We continue to believe that it is clear -

at least in the debates of the House of Representatives with respect to the bill which, with amendments, was enacted into law - that the Commission role was intentionally to be directed to health and safety issues to the exclusion, absent new information or new considerations, of issues arising under NEPA.

It is worth noting, though, that CEQ recognizes that the Commission might " defer" to a court finding that the DOE environmental impact statement is adequate. This is certainly close, if not identical to, the Commission's position that a judicial finding of adequacy would preclude further litigation of the matter in NRC licensing proceedings.

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COMMENTS OF ENVIRONMENTAL ORGANIZATIONS The environmental organizations' comments included a number of arguments similar to those of the State of Nevada with respect to the Commission's customary NEPA responsibilities. As already indic6ted, it is our view that Congress intended, under NWPA, for NRC to accept the DOE EIS l in the absence of substantial new considerations or new information. We l reject the suggestion made by the Sierra Club that the approach we have l outlined amounts to an abdication of any Commission responsibility.

l In addition, however, a number of comments of somewhat narrower scope l

l were submitted by environmental organizations (as well as by the State of Nevada) and are addressed here. ,

One matter that particularly concerned the private Nevada Nuclear Waste Task Force involved the relationship between the judicial process and the

. Commission's administrative process. The Task Force cautioned that NRC should not rely on there having been a court ruling with regard to the

, adequacy of DOE's environmental impact statement in advance of the l

Commission's licensing decision (when a judicial finding of inadequacy, I affecting much or little of the EIS, could be treated as a new consideration). In fact, such reliance is not essential. It is our expectation that, under NWPA, a petition for review of the EIS would need to have been filed roughly contemporaneous 1y with DOE's submission of a license application to NRC, and that judgment might have been entered within the three years envisaged for Commission licensing. Whether or not this proves to be the case is not controlling, for the standard for adoption does not l

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rest upon collateral estoppel principles. Similarly, we find it beside the

. point to speculate regarding the possibility that a reviewing court might delay its decision on the adequacy until it sees the NRC conclusions in the licensing proceeding. .Such delay would not stand in the way of the Commission's taking final action.

Although we thus do not rest our position upon the availability of a prior judgment of a court, we reiterata our view, as described in the preamble to the proposed rule, that such a judgment, if entered, would be controlling on the question of the adequacy of the EIS; and if the EIS were found to be adequate, it would be practicable for the Commission to adopt it.

We were criticized for suggesting that members of the public might be precluded from raising issues anew on the grounds that they had been represented by State officials in prior judicial proceedings. This position was claimed to be inconsistent with NRC intervention rules which, it is correctly argued, traditionally consider the interests of the state in which a facility is located as being distinguishable from the interests of particular members of the public who may be affected by the issuance of a license. Our first response is that our case law with respect to standing for purposes of intervention does not necessarily apply in the context of collateral estoppel or issue preclusion, where the policies of repose come into play. But, in addition, we would reach the same result even if informed members of the public were not constrained by the putative prior judgment against the state; for in that event their failure to pursue their claims within the 180 days specified by Section 119 of NWPA would operate as a bar.

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l The Commission's position that failure to challenge DOE's e' environmental impact statement promptly in the courts bars subsequent challenge to that EIS in NRC proceedings w e also criticized. Commenters suggested, instead, that affected parties may decide for reasons of litigative strategy or otherwise to contest questions regarding the repository in NRC licensing proceedings rather than by going to court about the DOE environmental impact statement. But such a unilateral decision on their part cannot operate as a means to circumvent the clear policy of the NWPA requiring prompt adjudication of the issues raised by the EIS. When there has been a full and fair opportunity to raise the challenge, a party's failure to avail itself should in our view be regarded as an abandonment of its right to do so many years later. See Orecon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 847 (9th Cir.1987).

There is force to a commenter's suggestion that our. proposed rules failed to take account of an EIS having been prepared in connection with a Negotiator-selected site, in which case the Commission review would be governed by Section 407 of NWPA, as amended, 42 USC 10247, instead of Section 114, 42 USC 10134. One difference., as pointed out by the comment, is that for a Negotiator-selected site DOE makes no fomal recommendation to the President and the President makes no decision with respect to approval of the site. This difference alone would not affect the approach we take to discharging our NEPA responsibilities, in part because we would expect early judicial review to be available even in the absence of a Presidential decision. In this regard, NWPA authorizes a civil action to review any EIS prepared with respect to "any action" under the applicable subpart and, PT51FINL3 - 4/20/89

e 4 given our perspective on the intended allocation of functions between DOE and NRC, "any action" could include the Secretary of Energy's submission of an application to the Comission. We think the intent of Congress, as evidenced by the considerG ie parallelism cf the language employed, was generally to est.Wish the same sort of role for the Connission with respect to any site - whether at Yucca Mountain or at a Negotiator-selected location. We recognize that it is our obligation "to consider the YF a Mountain site as an alternate to [the Negotiator-selected site] in tne preparation of" an EIS. This obligation will be discharged, though, to the extent of our adoption of the DOE environmental impact statement, provided that the alternative sites were addressed therein.

One aspect of the Negotiator-selectef' site provisions does have to be taken into account, however. For a Negotiator-selected site, a Commission decision to adopt the environmental impact statement must be made "in accordance with section 1506.3 of title 40, Code of Federal Regulations," -

a limitation that we found not to apply to the EIS submitted under Section 114 of NWPA. Un6er the cited section of the CEQ regulations, the Commission may only adopt the DOE statement if it is " adequate." While a judicial decision on the point would be controlling, we would otherwise need to make an independent judgment in accordance with established practice. The final regulations reflect this possibility. In passing, though, we observe that I

we find nothing anomalous in having this responsibility in the case of a I Negotiater-selected site but not in the case of the Congressionally- ]

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opportunities for State disapproval and Congressional consideration that serve to provide a forum outside the Department for the evaluation of environmental concerns.

We are not persuaded by the comment that took exception to our requirement that needed supplements to the EIS would, as a general rule, have to be prepared by DOE - and that DOE's failure to comply with this requirement might be grounds for denial of a construction authorization. It seems to us that such supplementation by DOE would ordinarily be appropriate whenever, in the light of new information or new considerations, its proposed action may give rise to significant environmental impacts that were not addressed in its original EIS.

We were urged to reconsider our position with respect to the imposition of license conditions directed at mitigation of adverse environmental impacts. We had suggested that'D0E could itself be held' accountable for compliance with the mitigation measures described in its EIS, so that there was no need for them to be subject to litigation in NRC proceedings. The basis for our position is that the departure from planned mitigation measures may well be a major Federal action having significant environmental impacts, which would necessitate' the preparation of an environmental impact statement for a project that was otherwise determined to be without significant impact. But, in any event, we see no basis for employing our regulatory authority in this instance to police DOE's compliance with its mitigation plans; it will be subject to no more and no less oversight from l interested persons than would be the case for many other developmental i l

projects carried out, after preparation of appropriate environmental i

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documentation, by Federal departments and agencies. To permit the mitigation measures to be litigated in NRC administrative proceedings -

legitimate as this may be in other contexts - would run counter to the-direction of the NWPA. It would bring in through the back door at least some of the contentions which, in our view, were to be settled in other i

forums.

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An argument .was made that amended Section 114(f)(6) -- which provides that "the Commission" need not consider enumerated factors in any EIS prepared with respect to a repository -- indicates that Congress intended for NRC to issue its own EIS. The language in question appears to have been designed as an editorial measure, lacking substantive effect. The legislative history, cited with the proposed rule, demonstrates that no important change ,

was being made in NRC's NEPA responsibilities, which under the 1982 statute were limited in the manner we have described. The statutory language is not surplusage, for NRC may have an obligation to prepare a supplemental EIS where there are new considerations or new information.

DEPARTMENT OF ENERGY COMMENTS The Department of Energy, which is the prospective applicant affected by the proposed rules, agreed that NWPA counsels against wide-ranging independent examination by NRC of environmental concerns during the course of the licensing proceedings. DOE also concurred with NRC's view that a judicial determination of adequacy of an EIS precludes further litigation of that issue and that failure to raise an issue within the time set out in PT51FINL3 - 4/20/89

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NWPA bars later chall'enge. The other DOE comments call for some clarification of the Commission's intentions, but do not prompt any fundamental change'of the position that had previously been outlined.

For example, we can put to rest DOE's concern that NRC might defer its acceptance review of the license application until the entire judicial review process on the EIS had run its course. Under the amendments, both as proposed and as adopted, the acceptance review applies only to the completeness of "the application," not "the application or environmental report" as under existing 10 CFR 2.101(f)(2).

We believe we can also satisfy DOE's concern with respect to our mention, at 53 FR 16132, that there may be a need for " multiple EIS's." The point being made was not that NRC might need to prepare its own EIS when DOE had already done so, but that the licensing process may involve more than -

one major federal action (for example, the construction of the repository on the one hand and the emplacement of waste on the other) that could necessitate the preparation of a supplemental EIS if not an entirely new one.

The responsibility for supplementation was another point of contention.

DOE - along with some of the other comenters - argued that it would be inappropriate for it to be obliged to supplement its completed EIS in order to satisfy any independent NEPA responsibilities of the Commission. We agree with this statement. But, as DOE itself acknowledger" it might need to supplement the EIS if it were to make a substantial change in the proposed action or if significant new circumstances or information were to PT51FINL3 - 4/20/89

become available. That is all that is required by the regulatory language (10 CFR 60.24(c))..

However, in support of its position, DOE suggested that NRC adoption under the NWPA provisions was related specifically to the EIS " submitted as part of the Department's recommendation to the President." But the language of Section 114(f) quite clearly applies to "any environmental impact state-ment prepared in connection with a repository proposed to be constructed" by DOE under NWPA. ,

DOE is correct in pointing out that a supplemental EIS would not necessarily be required in the event of a substantial change in the proposed action, where the change and the impacts thereof had previously been considered in the original statement.

The principal remaining issue raised by DOE's comments concerns the appropriate role of NRC in DOE's NEPA activities. DOE suggests.that NRC should be a " cooperating agency," a role that the Council on Environmental Quality has recognized as being appropriate in the licensor-licensee context. We are not persuaded. The present situation is unique because -

unlike the customary licensor-licensee situation - the particular statute guiding our approach (i.e., NWPA) removes the balancing of environmental considerations from our independent judgment. Under these circumstances, it strikes us as particularly out of place for NRC to undertake the kind of critical evaluation that a " cooperating agency" should perform in the preparation of an EIS. The Commissitn, nevertheless, has jurisdiction and expertise that it can, and will, bring to DOE's attention as a comenting agency through the entire DOE NEPA process. We shall not hesitate, in PT51FINL3 - 4/20/89 l

particular, to raise concerns that might subsequently also require adjudication, under the standards of the Atomic Energy Act, in our licensing proceedings. Other issues, of course, can be identified in our coments as well. In other words, NRC as a commenting agency can and will play an important constructive role all the while from the scoping stage through preparation of the environmental impact statement; but as the sole responsibility for weighing the environmental impacts in support of a -

recommendation to the president is vested in DOE, DOE properly should be the agency with formal sponsorship of the EIS as well.

We respond, finally, to DOE's claim that the requirement for DOE to inform the Commission of the status of legal action on the repository is

. unnecessary, since this information is a matter of public record. As a general rule, the applicant has the burden of placing on the record those factual matters upon which NRC decisions may be predicated. Although we have not placed sole reliance upon principles of issue preclusion (collateral estoppel), it remains our position that a final judgment of a reviewing court with respect to the adequacy of the DOE final environmental impact statement would be controlling and would support our adoption of such FEIS. Accordingly, it is appropriate for DOE to report on the status thereof.

INDUSTRY COMMENTS Coments received from Edison Electric Institute generally supported the Commission's view that its essential responsibility under NWPA is to PT51FINL3 - 4/20/89

l address radiological safety issues under the Atomic Energy Act, and that the requirements of NEPA were substantively modified as they apply to the high-level nuclear waste program.

We decline to follow EEI's suggestion that issues related to adoption of DOE's environmental impact statement be made prior to the hearing process and outside the adjudicatory arena. As we have noted before, the impact statement does not simply " accompany" an agency recommendation for action in the sense of having some independent significance in isolation from the deliberative process. Rather the impact statement is an integral part of the Commission's decision. It forms as much a vital part of the NRC's decisional record as anything else. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31,12 NRC 264, 275 (1980). Even thou:) the range of issues to be considered in the hearing may be limited, the formal function of the environmental impact statement as an element of the licensing decision remains.

Nor do we consider it desirable to dictate firm deadlines for either the NRC staff to present its position on practicability of adoption or for the filing of contentions with respect to the practicability of adoption.

On the contrary, we cannot predict when the conditions that potentially could necessitate supplementation of the EIS "new" considerations or "new" information - might arise. It is our intention that the NRC staff should present its position at the outset of the proceeding. Other parties seeking to litigate the matter would be well advised to file contentions promptly, as nontimely filings will only be entertained under the conditions described in 10 CFR 2.714(a)(1).

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L l

L:

CHANGES FROM THE PROPOSED RULE

~

Section 51.67. Environmental information concerning geologic repositories.

This section is revised to provide for the submission of environmental impact statements, pursuant to Title IV of NWPA, as amended, with respect to a Negotiator-selected site. A further change reflects DOE's comment that supplement would not be required where a modification to its plans had been previously addressed by its EIS.

Section 51.109. Public hearings in proceedings for issuance of materials license with respect to a geologic repository.

Paragraph (c) is revised so that the special criterion for adoption, as discussed herein, will apply only with respect to the geologic repository at the Yucca Mountain site. Any EIS for a Negotiator-selected site would be excluded from the application of this paragraph. A confonning change appears in paragraph (d).

Paragraph (e) is modified to emphasize that the Commission's customary policies will be observed except for adoption of an EIS prepared under Section 114. This is achieved by the insertion of the cross-reference

("in accordance with paragraph (c)") in the introductory clause. As the language has been modified, it permits the adoption of other DOE environmental impact statements with respect to a Negotiator-selected site in accordance with generally applicable law. This includes observance of the procedures outlined in 40 CFR 1506.3. This is addressed adequately in PT51FINL3 - 4/20/89

7 I . .

1 Appendix A to 10 CFR Part 51, Subpart A, and requires no further elaboration in the text of the rule.

PETITION FOR RULEMAKING The Commission's earlier notice invited comments upon the related portions of a petition for rulemaking submitted by the States of Nevada and Minnesota, PRM-60-2A, 50 FR 51701, December 19, 1985. None of the coments received by the Commission in response to the notice addressed the petition as such. (The State of Nevada referred to the petition, recognized that some of the considerations therein have been mooted, and urged the other actions discussed herein.) However, the issues identified by the petition ,

regarding the criteria and procedures for adoption of DOE's EIS have been considered in this proceeding. Since the language being promulgated differs from that proposed by the petitioners, the section of the petition pertaining to adoption of DOE's EIS (i.e.,Section IV.3) is denied. The Commission nevertheless observes that although it does not employ the language proposed by the petitioners, it is in full agreement with the petitioners' argument that adoption of DOE's EIS must not compromise the independent responsibilities of NRC to protect the public health and safety under the Atomic Energy Act of 1954. Our rulemaking approach is in fact designed to enhance our ability to address these health and safety issues as effectively and objectively as possible.

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l l ENVIRONMENTAL-IMPACT: CATEGORICAL EXCLUSION The NRC has determined that this regulation is the type of action described in categorical exclusions 10 CFR 51.22(c)(1) and (3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation.

PAPERWORK REDUCTION ACT STATEMENT The rule contains no information collection requirements and therefore is not. subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). ,

REGULATORY FLEXIBILITY CERTIFICATION In accordance with the Regulatory Flexibility Act of 1980 (5 USC 605(b)),

the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. The only entity subject to regulation under this amended rule is the U.S. Department of Energy.

LIST OF SUBJECTS IN 10 CFR PART 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

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LIST OF SUBJECTS IN 10 CFR PART 51 Administrative practice and procedure, Environmental impact statement, Nuclear materials, Nuclear power plants and reactors, Reporting and record keeping requirements.

LIST OF SUBJECTS IN 10 CFR PART 60 High-level waste, Nuclear power plants and reactors, Nuclear materials, Penalty, Reporting and record keeping requirements, Waste treatment and t disposal.

ISSUANCE For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, the National Environmental Policy Act of 1969, as amended, the Nuclear Waste Policy Act of 1982, as amended, and 5 U.S.C. 553, the NRC adopts the following amendments to 10 CFR Part 51, and related conforming amendments to 10 CFR Parts 2 and 60.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for Part 2 is revised to read as follows:

Sees. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec.

PT51FINL3 - 4/20/89 u - - - - - _ - - - _ - - - _ _ _ - - _ - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - _ - _ _

191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105c 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sec-tions 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 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, 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, 83 Stat. 853, as amended (42 U.S.C.4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.

Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557. 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, as amended (42 U.S.C. 2039). Subpart K also issued under sec.

189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134 Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec.10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

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2. In section 2.101, paragraphs (f)(1), (2), (4), (5), and (7) are revised to read as follows:

% 2.101 Filing of application.

(f)(1) Each 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 any environmental impact statement required in connection therewith pursuant to Subpart A of Part 51 of this chapter shall be processed in accordance with the provisions of this paragraph.

(2) To allow a determination as to whether the application is complete and acceptable for docketing, it will be initially treated as a tendered document, and a copy will be available for public inspection in the Commis-sion's Public Documant Room. Twenty copies shall be filed to enable this determination to be made.

(4)[ Reserved]

(5) If a tendered document is acceptable for docketing, the applicant will be requested to (1) submit to the Director of Nuclear Material Safety and Safeguards such additior al copies of the appifcation and environmental impact statement as the regulations in Part 60 and Subpart A of Part 51 of this chapter require, (ii) serve a copy of such application and environmental impact statement on the chief executive of the municipality in which the geologic repository operations area is to be located, or if the geologic repository operations area is not to be located within a munic-ipality, on the chief executive of the county (or to the Tribal organiza-PT51FINL3 - 4/20/89

4 tion, if it is to be located within an Indian reservation), and (iii) make direct distribution of additional copies to Federal, State, Indian Tribe, and local officials in accordance with the requirements of this chapter and-written instructions from the Director of Nuclear Material Safety and Safeguards. All such copies shall be completely assembled documents, identified by docket number. Subsequently distributed amendments to the application, however, may include revised pages to previous submittals and, in such cases, the recipients will be responsible for inserting the revised pages.

(7) Amendments to the application and supplements to the environmental impact statement shall be filed and distributed and a written statement shall be furnished to the Director of Nuclear Material Safety and Safeguards in the same manner as for the initial application and environmental impact statement.

PART 51 - ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC LICENSING AND RELATED REGULATORY FUNCTIONS

3. The authority citation for Part 51 is revised to read as follows:

Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); secs. 201, as amended.

202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 5842).

l Subpart A also issued under National Environmental Policy Act of 1969, secs. 10E, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, l 4

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- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _b

._ .c 4335); and Pub.L.95-604, Title II, 92 Stat. 3033-3041. Section 51.22 also issued under sec.~274, 73 Stat. 688, as amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act of 1982, sec.121, 96 Stat.

2228 (42 U.S.C. '10141). Secs.51.43,. 51.67, and 51.109 also issued under Nuclear Waste Policy Act of 1982, sec. 114(f), 96 Stat. 2216, as amended (42 U.S.C. 10134(f)).

4. - In i 51.20, existing paragraph (b)(13) is redesignated as paragraph-(b)(14) and a new paragraph (b)(13) is added to read as'follows:

6 51.20 Criteria for and identification of licensing and regulatory actions requiring environmental impact statements.

(b) .

(13) Issuance of a construction authorization and license pursuant to Part 60 of this chapter.

5. Section 51.21 is revised to read as follows:

6 51.21 Criteria for and identification of licensing and regulatory actions requiring environmental assessments.

All licensing and regulatory actions subject to this subpart require an environmental assessment except those identified in 5 51.20(b) as requiring an environmental impact statement, those identified in 5 51.22(c) as categorical exclusions, and those identified in 651.22(d) as other actions not requiring environmental review. As provided in i 51.22(b), the PT51FINL3 - 4/20/89

1 I

1 Commission may, in special circumstances, prepare an environmental assessment on an action covered by a categorical exclusion.

6. Section 51.22 is arended, by revising the heading and adding a new paragraph (d), to read as follows:

6 51.22 Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical exclusion or otherwise not requiring environmental review.

(d) In accordance with section 121 of the 0; clear Waste Policy Act of 1982 (42 U.S.C. 10141), the promulgation of technical requirements and criteria that the Commission will apply in approving or disapproving ap-plications under Part 60 of this chapter shall not require an environmental impact statement, an environmental assessment, or any environmental review under subparagraph (E) or (F) of section 102(2) of NEPA.

7. In i 51.26, paragraph (a) is revised and a new paragraph (c) is added, to read as follows:

6 51.26 Requirement to publish notice of intent and conduct scoping l

process.

(a) Whenever the appropriate NRC staff director determines that an environmental impact statement will be prepared by NRC in connection with a proposed action, a notice of intent will be prepared as provided in 6 51.27, and will be published in the Federal Register as provided in 5 51.116, and an appropriate scoping process (see 66 51.27, 51.28 and 51.29) will be conducted.

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(c) Upon receipt of an application and accompanying environmental impact statement under i 60.22 of this chapter (pertaining to geologic

. repositories for high-level radioactive waste), the' appropriate NRC staff director will include in the notice of docketing required to be published by

! 2.101(f)(8)_of this chapter a statement of Commission intention to adopt the environmental impact statement to the extent practicable. However, if the appropriate NRC staff director determines, at the time of such

. publication or at any time thereafter, that NRC should prepare a supplemental environmental impact statement in connection with the Commission's action on the license application, the procedures set out in paragraph (a) of this section shall be followed.

8. A new $ 51.67 is added to read as follows:

6 51.67 Environmental information concerning geologic repositories.

(a) In lieu of an environmental report, the Department of Energy, as an applicant for a license or license amendment pursuant to Part 60 of this chapter, shall submit to the Commission any final environmental impact statement which the Department prepares in connection with any' geologic repository developed under Subtitle A of Title I, or under Title IV, of the Nuclear Waste Policy Act of 1982, as amended. (See i 60.22 of this chapter as to required time and manner of submission.) The statement shall include, among the alternatives under consideration, denial of a license or construction authorization by the Commission. ')

(b) Under applicable provisions of law, the Department of Energy may be required to supplement its final environmental impact statement if it makes PT51FINL3 - 4/20/89

v .

a substantial change in its proposed action that is relevant to j environmental concerns or determines that there are significant new j circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The Department shall submit any i supplement to its final environmental impact statement to the Comission.

(See i 60.22 of this chapter as to required time and manner of submission.)

(c) Whenever the Department of Energy submits a final environmental impact statement, or a final supplement to an environmental impact statement, to the Commission pursuant to this section, it shall also inform the Commission of the status of any civil action for judicial review initiated pursuant to section 119 of the Nuclear Waste Policy Act of 1982.

This status report, which the Department shall update from time to time to '

reflect changes in status, shall:

(1) State whether the environmental impact statement has been found by the courts of the United States to be adequate or inadequate; and (2) Identify any issues relating to the adequacy of the environmental impact statement that may remain subject to judicial review.

9. A new 5 51.109 is added to read as follows:

6 51.109 Public hearings in proceedings for issuance of materials license with respect to a geologic repository.

(a) (1) In a proceeding for the issuance of a license to receive and possess source, special nuclear, and byproduct material at a geologic repository operations area, the NRC staff shall present its position on l

whether it is practicable to adopt, without further supplementation, the environmental impact statement (including ary supplement thereto) prepared PT51FINL3 - 4/20/89

_ _ - i

by the Secretary of Energy. If the position of the staff is that supplementation of the environmental impact statement by NRC is required, it shall file its final supplemental enviror. mental impact statement with the Environmental Protection Agency, furnish that statement to commenting agencies, and make it available to the public, before presenting its position. In discharging its responsibilities under this paragraph, the staff shall be guided by the principles set forth in parag.raphs (c) and (d) of this section.

(2) Any other party to the proceeding who contends that it is not practicable to adopt the DOE environmental impact statement, as it may have been supplemented, shall file a contention to that effect in accordance with 9 2.714(b) of this chapter. Such contention must be accompanied by one or more affidavits which set forth factual and/or technical bases for the claim that, under the principles set forth in paragraphs (c) and (d) of this section, it is not practicable to adopt the DOE environmental impact statement, as it may have been supplemented. The presiding officer shall resolve disputes concerning adoption of the DOE environmental impact statement by using, to the extent possible, the criteria and procedures that are followed in ruling on motions to reopen under 5 2.734 of this chapter.

(b) In any such proceeding, the presiding officer will determine those matters in controversy among the parties within the scope of NEPA and this subpart, specifically including whether, and to what extent, it is j l

i practicable to adopt the environmental impact statement prepared by the J' l

Secretary of Energy in connection with the issuance of a construction authorization and license for such repository.

i l

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(c) The presiding officer will find that it is practicable to adopt any environmental impact statement' prepared by the Secretary of Energy in connection with a geologic repository proposed to be constructed under  ;

Title I of the Nuclear Waste Policy Act of 1982, as amended, unless: l 1

(1)(1) The action proposed to be taken by the Commission differs from the action proposed in the license application submitted by the Secretary of Energy; and (ii) The difference may significantly affect the quality of the human environment; or (2) Significant and substantial new information or new considerations render such environmental impact statement inadequate.

(d) To the extent that the presiding officer determines it to be practicable, in accordance wi.h paragraph (c), te adopt the environmental impact statement prepared by the Secretary of Energy, such adoption shall be deemed to satisfy all responsibilities of the Commission under NEPA and no further consideration under NEPA or this subpart shall be required.

(e) To the extent that it is not practicable, in accordance with paragraph (c), to adopt the environmental impact statement prepared by the Secretary of Energy, the presiding officer will:

(1) Determine whether the requirements of section 102(2)(A), (C), and l (E) of NEPA and the regulations in this subpart have been met; (2) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the e

appropriate action to be taken; PT51FINL3 - 4/20/89

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(3) Determine..after weighing the environmental, economic, technical and other benefits against environmental and other costs, whether the construction authorization or license should be issued, denied, or appropriately conditioned to protect environmental values; (4) Determine, in an uncontested proceeding, whether the NEPA review conducted by the NRC staff has been adequate; and (5) Determine, in a contested proceeding, whether in accordance with the regulations in this subpart, the construction authorization or license should be issued as proposed.

(f) In making the determinations described in paragraph (e), the environmental impact statement will be deemed modified to the extent that findings and conclusions differ from those in the final statement prepared by the Secretary of Energy, as it may have been supplemented. The initial decision will be distributed to'any persons not otherwise entitled to receive it who responded to the request in the notice of docketing, as described in s 51.26(c). If the Comission or the Atomic Safety and Licensing Appeal Board reaches conclusions different from those of the presiding officer with respect to such matters, the final environmental impact statement will be deemed modified to that extent and the decision will be similarly distributed.  ;

(g) The provisions of this section shall be followed, in place of those set out in 5 51.104, in any proceedings for the issuance of a license to receive and possess source, special nuclear, and byproduct material at a geologic repository operations area.

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10..In i 51.118, the existing. text is redesignated as-paragraph (a) an'd a new paragraph .(b) is added, to read as follows:-

1 51.118 Final environmental impact statement - Notice of availability.

t (a)

(b)' Upon adoption of a final. environmental impact statement or any sup-plement to a final environmental. impact statement prepared by the Department of Energy with respect to a geologic repository that is subject to the Nuclear Waste Policy Act of 1982, the appropriate NRC staff director'shall follow the procedures set out-in paragraph (a).

PART 60 - DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTES IN GEOLOGIC REPOSITORIES

11. The authority citation for Part 60 is revised to read as follows:

Secs. 51, 53, 62, 63, 65, 81,161,182,183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat.1244,1246 (42 4J.S.C.

5842, 5846); secs. 10 and 14, Pub. L.95-601, 92 Stat. 2P51 (42 U.S.C. 2021a and5851);sec.102, Pub.L.91-190,83 Stat.853(42U.i.C.4332); secs.

114, 121, Pub. L.97-425, 96 Stat. 2213, 2228, as amended (42 U.S.C. 10134, 10141).

For the purposes of section 223, 68 Stat. 958, as amended (42 U.S.C.

2273), il 60.10, 60.71 to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

12. In i 60.15, paragraph (c) is removed and paragraph (d) is redesignated as paragraph (c).

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13. In 5 60.21, paragraph (a) is revised to read as follows:

9 60.21 Content of application.

(a) An application shall ' consist of general information and a Safety Analysis Report. An environmental impact statement shall be prepared in ac-cordance with the Nuclear Waste Policy Act of 1982, as amended, and shall accompany the application. Any Restricted Data or National Security Information sha.11 be separated from unclassified information.

14. Section 60.22 is revised to read as follows:

5 60.22 Filing and distribution of application.

(a) An application for a license to receive and possess source, special nuclear, or byproduct material at a geologic repository operations area at a site which has been characterized, and any amendments thereto, and an accompanying environmental impact statement and any supplements, shall be signed by the Secretary of Energy or the Secretary's authorized representative and shall be filed in triplicate with the Director.

(b) Each portion of such application and any amendments, and each environmental impact statement and any supplements, shall be accompanied by 30 additional copies. Another 120 copies shall be retained by DOE for distribution in accordance with written instructions from the Director or the Director's designee.

(c) DOE shall, upon notification of the appointment of an Atomic Safety and Licensing Board, update the application, eliminating all superseded infonnation, and supplement the environmental impact statement if necessary, PT51FINL3 - 4/20/89

l l

and ',erve the updated application and environmental impact statement (as it may have been supplemented) as directed by the Board. At that time DOE shall also serve one such copy of the application and environmental impact statement on the Atomic Safety and Licensing Appeal Panel. Any subsequent amendments to the application or supplements to the environmental impact statement shall be served in the sa;ne manner.

(d) At the time of filing of an application and any amendments thereto, one copy shall be made available in an appropriate location near the proposed geologic repository operations area (which shall be a public document room, if one has been established) for inspection by the public and updated as amendments to the application are made. The environmental impact statement and any supplements thereto shall be made available in the same manner. An updated copy of the application, and the environmental impact statement and supplements, shall be produced at any public hearing held by the Commission on the application, for use by any party to the proceeding.

(e) The DOE shall certify that the updated copies of the application, and the environmental impact statement as it may have been supplemented, as referred to in paragraphs (c) and (d) of this section, contain the current l

contents of such documents submitted in accordance with the requirements of l this part.

15. In 6 60.24, the section heading and paragraphs (a) and (c) are revised to read as follows:

% 60.24 Updating of application and environmental impact statement.

(a) The application shall be at complete as possible in the light of information that is reasonably available at the time of docketing.

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E I

s (c) The DOE shall supplement its environmental impact statement in a timely manner so as to take into account the environmental impacts of any I substantici changes in its proposed actions or any significant new l

circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

l 16. In i 60.31, the introductory paragraph is revised to read as l

l follows:

1 6 60.31 Construction authorization.

Upon review and consideration of an application and environmental impact statement submitted under this part, the Commission may authorize

! construction if it determines:

17. 'n 5 60.51, the introductory portion of paragraph (a), and paragraph (b), are revised to read as follows:

l J 60.51 License amendment for permanent closure.

(a) DOE shall submit an application to amend the license prior to permanent closure. The submission shall consist of an update of the license application submitted under il 60.21 and 60.22, including:

(b) If necessary, sa as to take into accour.t the environmental impact of any substantial changes in the permanent closure activities proposed to l

l be carried out or any significant new information regarding the 1

environmental impacts of such closure, DOE shall also supplenent its l

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!~ environmental impact statement and submit such statement, as supplemented, with the application for license amendment.

Dated at Rockville Maryland this day of 1989.

i For the Nuclear Regulatory Commission.

5amuel J. Chilk, Secretary of the Commission.

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,g-g, 4

b l

k i

(.

e i

ENCLOSURE B

I' l.,

1 The Honorable Morris K. Udall, Chairman

' Subcommittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of-Representatives-

. Washington,'D.C. 20515

Dear Mr. Chairman:

Enclosed for the information of the Subcommittee are copies of a public announcement and e proposed amendment to Title 10 of the Code of Federal Regulations which is to be published in the Federal Register.

The Nuclear. Regulatory Commission is providing, by this amendrent, the standards and procedures it will follow in satisfying its responsibilities under the National Environmental Policy Act with respect to a. geologic repository. The action addresses, in particular, the provision in Section 114(f) of the Nuclear Wsste Policy Act of 1982, as amended, which directs the Consission to adopt, to the extent practicable, the final environmental impact statement prepared by the Department of Energy. This final rule conforms, in large part, to the provisions of the proposed rule that was .

published in the Federal Reaister in May 1988 and furnished to you'at that tine.

Sincerely, William C. Parler General Counsel cc: Rep. Don Young

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ )

, h e

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l ENCLOSURE C

--. --.m.m_________---.__ - _ _ - _ _ _ . . _ -___m.-.. _ _ _m_-m.-_.-_-_. -.-

um i .

] d l NRC ISSUES REGULATIONS ON ENVIRONMENTAL IMPACT STATEMENTS FOR HIGH-LEVEL'RADI0 ACTIVE WASTE REPOSIT0;._~

i l..

l The Nuclear Regulatory Commission is amending its regulations to establish procedures for environmental reviews of applications from the Department of Energy to construct and operate high-level radioactive waste repositories.

Under the Nuclear Weste Policy Act of 1982, DOE is responsible for the construction rnd operation of geologic repositories for the disposal of high-level radioactive waste. DOE is required by the Act to obtain construction authorizations and licenses for the repositories from the Commission.

The National Environmental Policy Act requires agencies to prepare an environmental impact statement for any major federal action that significantly affects the quality of the human environment. The licensing of DOE to receive and possess high-level radioactive waste at a geologic repository would involve a federal action significantly affecting the environment. Therefore the Commission is required to have an environmental impact statement when it considers a license application from DOE.

i However, the Huclear Waste Policy Act (NWPA) directs the Commission--in  ;

reviewing DOE's construction authorization or license application--to adopt to the extent practicable any environmental statement prepared by DOE. The new NRC rule sets out the standards and procedures that would be used in 4

determining whether adepting DOE's statement is practicable.

The rule states'that the NRC would find it practicable to adopt DOE's environment impact statement unless:

(1) Actions that the NRC proposes to require DOE to take differ in an environmentally signifi. cant way from the actions proposed in DOE's license-application or (2) Significant and substantial new information or new considerations make DOE's environmental impact statement inadequate.

Althcugh there might-be situations in which the NRC itself must prepare a supplementary environmental impact statement, the Commission expects as a general rule, that DOE will supplement the statement as needed and that this will resolve any new circumstances or information that might arise.

In public hearings on whether an authorization to construct a repository i

should be issued, parties to the licensing proceeding, including the NRC staff, will have an opportunity to indicate whether they consider it practicable to 1

adopt DOE's statement without supplementing it. The presiding officer in the hearing (a license board) would then determine the extent to which adoption of l- the DOE environmental impact statement is practicable.

A proposed rule on this subject was published in the Federal Register for l: public comment on May 5, 1988. In response to the comments, a change was made 1

to deal with a site other than the Yucca Mountain, Nev., site that has been designated by Congress. Under NWPA provisions relating to a Negotiator-selected site, the existing regulations of the Council on i i

_____ __ -_ -_--_-_ -_-_ .___-__----___----__________-__---_____-___--____-_-____-_-______-____-_---_______-__----____----__._____Q

, , DRAFT _ .

Environmental Quality would be applied in determining whether to adopt the DOE environmental impact statement under such circumstances.

1 l

1

6 e y ENCLOSURE D e

Enclosure D COMPARATIVE TEXT (Final vs. Proposed Rule) 6 51.67 Environmental information concerning geologic repositories.

(a) In lieu of an environmental report, the Department of Energy, as an applicant for a license or license amendment pursuant to Part 60 of this chapter, shall submit to the Commission any final environmental impact statement 5-and-any-supplement-therete, which the Department prepares in connection with any geologic repository developed under Subtitle A of Title I

, or under Title IV, of the Nuclear Waste Policy Act of 1982, aa ame ided.

(b)-The-f4nal-env4remmentai-impaet-statement-whfeh-aeeempanies-the-Department-ef-Energy-s-reeemmendatien-te-the-president-te-appreve-a-site-for-a geelegfe-repesitery-shall-be-submitted-te-the-Gemmissien-at-the-time-and-in .

the-manner-deser4 bed-in-i-69,22-ef-this-ehapter,--Sveh-statement-shall-be-prepared-in-aeeerdanee-with-the-prev 4siens-ef-seet4en-il4ff4-ef-the-Nuelear-Waste-pelfey-Aet-of-1982. (See 560.22 of this chapter as to required time and manner of submission.) The statement shall include, among the alternatives under consideration, denial of a license or construction authorization by the Commission.

(b) (e) Under applicable provisions of law, the Department of Energy is may be required to supplement its final environmental impact statement if it makes a substantial change in its proposed action that is relevant to environmental concerns or determines that there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The Department shall submit any supplement to its

-. ~

final environmental impact statement to the Commission at-the-time-and-in the-manner-deser4 bed-4n-i 69,32-of-this-ehapter. (See 660.22 of this chapter as to required time and manner of submission.)

(c) fd) Whenever the Department of Energy submits a final environmental impact statement, or a final supplement to an environmental impact statement, to the Commission pursuant to this section, it shall also infom the Comission of the status of any civil action for judicial review initiated pursuant to section.119 of the Nuclear Waste Policy Act of 1982. This status report, which the Department shall update from time to time to reflect changes in status, shalli (1) State whether the environmental impact statement has been found by the courts of the linited States to be adequate or inadequate; and (2) Identify any issues relating to the adequacy of the environmental impact statement that may remain subject to judicial review.

6 51.109 Public hearings in proceedings for issuance of materials license with respect to a geologic repository.

(a) (1) In a proceeding for the issuance of a license to receive and posess source, special nuclear, and byproduct material at a geologic L repository operations area, the NRC staff shall present its position on whether it is practicable to adopt, without further supplementation, the environmental impact statement (including any supplement thereto) prepared by l the Secretary of Energy. If the position of the staff is that supplementation of the environmental impact statement by NRC is required, it shall file its

l final supplemental environmental impact statement with the Environmental 1

Protection Agency, furnish that statement to commenting agencies, and make it available to the public, before presenting its position. In discharging its responsibilities under this paragraph, the staff shall be guided by the principles set forth in paragraphs (c) and (d) of this section.

(2) Any other party to the proceeding who contends that it is not practicable to adopt the DOE environmental impact statement, as it may have been supplemented, shall file a contention to that effect in accordance with

$2.714(b) of this chapter. Such contention must be accompanied by one or more affidavits which set forth factual and/or technical bases for the claim that, under the principles set forth in paragraphs (c) and (d) of this section, it is not practicable to adopt the DOE environmental impact statement, as it may have been supplemented. The presiding officer shall resolve disputes concerning adoption of the DOE environmental impact statement by using, to the extent possible, the criteria and procedures that are followed in ruling on motions to reopen under 62.734 of this chapter.

(b) In any such proceeding, the presiding officer will determine those matters in controversy among the perties within the scope of NEPA and this subpart, specifically including whether, and to what extent, it is practicable to adopt the environmental impact statement prepared by the Secretary of Energy in connection with the issuance of a construction authorization and license for such repository.  ;

l (c) The presiding officer will find that it is practicable to adopt the ay environmental impact statement prepared by the Secretary of Energy I

- _ _ _ _ - _ _ . - _ _ _ _ _ _ . _ _ _ _ - - - - _ _ _ _ _ _ _ - . - _ - _ _ _ - _ _ _ _ _ .------- U

m 4-in connection with a geologic repository proposed to be constructed under Title I of the Nuclear Waste Policy Act of 1982, as amended, unless:

(1)(i) The action proposed to be taken by the Commission differs from the l action proposed in the license application submitted by the Secretary of Energy; and (ii) The difference may significantly affect the quality of the human environment; or (2) Significant and substantial new information or new considerations render the environmental impact statement inadequate. New-4nfermatien-er-new-eensiderations-shall-net-be-deemed-te-render-the-env4penmental-4mpaet-statement-4nadequates-fer-purpeses-ef-this-paragraphi-4f-the-new-4nfermatien-er-new-eens4 derat 4 ens-have-been-addressed-4n-a-supplemental-env4renmental-4mpaet-statement-that-the-Seeretary-ef-Energy-has-submitted-te-the-Gemmissfen-4n-aeeerdanee-with-the-prev 4sfens-of-this-ehapter.

(d) To the extent that the presiding officer determines it to be practi-cable, in accordance with paragraph (c), to adopt the environmental impact statement prepared by the Secret 6ry of Energy, such adoption shall be deemed to satisfy all responsibilities of the Comission under NEPA and no further consideration under NEPA or this subpart shall be required.

(e) To the extent that it is not practicable, in accordance with paragraph (ci, to adopt the environmental impact statement prepared by the Secretary of Energy, the presiding officer will:

(1) Determine whether the requirements of section 102(2)(A), (C), and (E) of NEPA and the regulations in this subpart have been met;

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ --_ a

.. o (2) Independently consider the final balance among conflicting factors.

contained in the record of the proceeding with a view to determining the appropriate action to be taken; (3) Determine, after weighing the environmental, economic, technical and other benefits against environmental and other costs, whether the construction authorization or license should be issued, denied, or appropriately conditioned to protect environmental values; (4) Determine, in an uncontested proceeding, whether the NEPA review conducted by the NRC staff has been adequate; and (5) Determine, in a contested proceeding, whether in accordance with the regulations in this subpart, the construction authorization or license should be issued as proposed.

(f) In making the determinations described in paragraph (e), the environmental impact statement Will be deemed modified to the extent that findings and conclusions differ from those in the final statement prepared by the Secretary of Energy, as it may have been supplemented. The initial decision will be distributed to any persons not otherwise entitled to receive it who responded to the request in the notice of docketing, as described in 551.26(c). If the Commission or the Atomic Safety and Licensing Appeal Board reaches conclusions different from those of the presiding officer with respect to such matters, the final environmental impact statement will be deemed modified to that extent and the decision will be similarly distributed.

(g) The provisions of this section shall be followed, in place of those set out in 651.104, in any proceedings for the issuance of a license to

1 l

receive and possess' source, special nuclear, and byproduct material at a l-geologic repository operations area.

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F.

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?:(

ENCLOSURE E e

• O

- - 3 gypyz j g,3 ,y .

NEVADA NUCLEAR WASTE TASK FDRCE, INC kHDRATED Alamo Maza 4sso w. o key sivd. h pr y ,I A252 Suite 111 Lcs V:; gas. NV 89102 '

7024751885 h..-[.

• tax 7024764832 July 26,' 1988 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atten: Docketing and Service Branch

Dear Mr. Secretary:

We enclose our comment on the NRC's proposed rule for NEPA review 51, and 60.

procedures for geologic repositories - 10CRF Parts 2, Enclosed is a copy of our brochure which describes'the nature and purpose of our organization.

A functioning State Advisory Board is in place to assist in our endeavor.

The response that we receive clearly indicates that the vast majority of the residents of Nevada vant to be~able'to participate in the licensing proceedings. They want their issues and concerns addressed. This includes the transportation issue which under NEPA requires draft and final EIS's.

Some people feel that the DOE is rushing the process. NRC rules must be designed to assure (1) a system of checks and balances, and (2) a fully open process which allows ample opportunity for public participation.

Sincerely, j b m udy eichel Executive Director FC/ mm

. s eL '%

CD%NTS ON THE N7C'S P70 POSED RLE FDR NEPA REV11M PEYm1RES FOR GEDLDGIC REPOSITORIES

}_0, 0 CFR Parts Q1. Q Q While the. Task Pbrce has several concerns about the proposed rule, we will discuss only. two najor cuerriding concerns. First, we believe that the basic assmpticn that underlies the rule is, at best, based n an incmplete understanding of possible scenarios for the context of the Camission's -

consideraticm of the DCE FTIS. At worst, the assm ption is erroneously based upon a vary narrcw view of the Camission's required detailed consideration of a FEIS on the Yucca Pbuntain site. Second,' we beliwe that the proposed rule is-inadequate because is inappropriately prejudices effective citir.an participation in the licensing proceeding.

I herefore, we request that the rule be reissued in a nuch different and more emplete format that addresses those concems so that we can have a further opportunity to cx:rtment.

'~

I. INAPP7CPRIATE UNDER:.YING ASSUMPTICH he proposec rule seems to assume that the mly likely possibility of tne Ccrnissicn receiving a DCE FEIS is as part of a repository license application afters Yucca ebuntain is characterized and then is recomnanded by the President to Congress: the State of Nevada files suit challenging the adequacy of the FEIS (and presumably files its notice of disapproval, which is werridden by Congress): the Court of 4;==1s finds the FEIS is rot inadequate: and the only subst.antive issues before the N!C in the licensing proceeding relate to radiological safety issues at Yucca >buntain. While that scenario 3 possible, it is not the cnly scenario, and perhaps not even the nest likely one. mus, it is inappropriate for the Ccmnission to base so such of its proposed rule - consciously or unconsciously - cm that assumption.

Fbr exa.ple, the proposai rule.doesn't display any uncierstanding of the screwhat different role for an EIS arising from a Negotiator-selected site.

Until the passaoe of the Nuclear Waste Policy Act Amendnents of 1907 (NWPAA),

IDE's FEIS would have two purposes. First, the FEIS provides NEPA documentation for the Secretary's rec <rmendation of a site to the President I,g and for the President's decision. Second, the FEIS would accapany the IDE license application to the N7C and prcvide necessary environmental documentation for the N7C's licensing decision. It: wever, under the requirements of the NWPAA for a Negotiator-chosen site (42 U.S.C 10247), the FEIS wuld not be for site selection, but would only serve the surpose of prcviding necessary NEPA documentation for the license application. An environmental assessment, not a FEIS, is specifically required by Section 403(d)(1)) as part of the submission to Congress for its apprcval of the agreement made the the affected state or Indian tribe and the IDE. '!he preanble shcws no recognition of this Negotiator possibility since it only I describes the FEIS as having the two purposes (p.16139). g .,

Se proposed rule does not consider the likelihood that a court will find I

that the FEIS is, in part, inadequate. We Cbnmission would then have to p".

review the decision and the FEIS to determine the inpact of such a ruling en the license application, including the adequacy of the safety Analysis Peport. _.

It is also possible that a court might not decide an EIS challenge before ~

the Ctrmission reached its licensing determination - a situation in which the Conmission should definitely review environmental issues, not just [.J radiological safety issues. Since the ccrmission might make a licensing decision within three years of the date of the application (as DOE expects,

.___m._ . _ __ _ _ . _ _ _ _ _ _ _ . .

....i

7 ,

according to its Mission Plan and Project Decision Schedule), it is certainly -

I'3 pasible that a court might not have trake a final decisicn cn a NLPA challenge in that tireframe. (0.a11enges to~ the IDE's guidelinos have been before the -

, 9th Circuit _ Court of Appals since Decenbar 1964. ) It is also possible that a' court might delay its decision on the adequacy of a FIIS until it sees the Cardssion's firdings in a licensing decision. In either case, erwironmental g

issues -aM not be pre-erpted, nor would res judicata occur. ,

II. Prejudice to citizen parties in ~

a licensino proceedire he preamoTe of the proposed rule states:

he preclusive effect of a prior judgpent sustaining -

DOE's erwironrantal inpact statement woald nce, necessarily be limited to the petitioner of record in that proceeding. It can be argued that those who were represental by that petiticnar would also be barred from litigating the icsue in a subsequent action. (p.16139) he acurpanying footnote further indicatas that "manbers of the public" who had'been represented by stata of ficials "might be precludes, to tne same extent, from raising the issues anw." (Jd.,)

hose stata,ents are not consistant with the Ccmrdssicn's rules for intervention and they are reflect an inappropriate and prejudicial attitude /d tcwand citizan participation in the licensing proceedirq. % e State of Nevada alnost certainly could not effectively represent all of the diverse interests-of all the citizens of the state, including members of the Task Fbros. hus, the Task Force could raise similar issues but in response to different interesta. U,rvder the ccrmission's rules for intervention (10 CFR 2.714),

individual citizans or groups .can be legitimate intervanors, . including in cases where state officials are also parties. The Ccnsnission's rule and the preamble inust ret reflect a prejudice against such citizan intervention and should not preclude their rights to raise issues, including related to the FEIS, in the licensing prWMg. -

Another posible scenario is that a state or citizen group might decide that the basic issues regarding the adequacy of the repository should be litigated in the Ctredssion licensing proceedings, rather than an a NWA challenge to the FEIS. Such a position is both practically ard legally allcund undar the WPA, since the judicial review regLirements of the WPA j.g ,

allow for judicial review of final decisions of the Carussion - including j its adopting the IDE Fels. 42 U.S.C.10139(a)(1)(A). ,

In summary, the propsed rule seens to treat the adoption of DT.'s FEIS  ;

as a largely pro forma exercise, Which fo11cws exhaustive judicial review. It is not appropriate for the NBC to take that positicn. Each an assurpticn is even less terable given the various circumstances When the FEIS might not be litigated. he Nevada Nuclear Waste Task Ibroe believes that the proposed rule is fundamentally flawed and that it must be substantially revised ard re-promulgated.

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'88 AUG '-2 All :14 AGENCY FOR NUCLEAR PROJECTS NUCLEAR WASTE PROJECT OFFICE cc: ,

,i Capitof Complex 'l OUCr L ', , '.

car. n ciev. Neved. s,710 "-'~

(792)885 3744 l

i

/

August 1,1988 Secretary of the Commission U.S. Nuclear Regulatory Commission

' Attn: ' Docketing and Service Branch 1717 H Street, N.W.

Washington, DC 20555

Dear Mr. Secretary:

Enclosed you will find the comments of the State of Nevada regarding the Proposed Rule: NEPA Review Procedures for Geoloeic Recesitories for Hich-Level Weste, amending 10 C.F.R. Parts 2, 51 and 60, published in Federal Register, Vol. 53, No. 87, 5 May 1988.

We app'r ecib te the opportunity to provide comment on '

this Proposed Rule. .

Sincerely, AGENCY FOR NUCLEAR PROJECTS /

NUCLEAR WASTE PROJECT OFFICE

,. f Bh: I# ' #

Robert R. Lourx Executive Di' rector RRL*jm Encl.

i e

1 1

'O+ 3 ens L_ _ - - - _ _ - - _-- - - - --__-- -- --- - -- --_---- ----- -_--- ---

NEVADA'S COMMENTS ON NRC'S PROPOSED "NEPA REVIEW PROCEDURES'FOR GEOLOGIC REPOSITORIES

.. FOR HIGH-LEVEL WASTE" A. Comments Recardine the Sueolementary Information l

'1. : The Premise of the Proposed " Review Procedures."

The major underlying premise contained within the Supple-

' menta ry. Inf ormation, of fered by NRC staf f- to justify the proposed' rule, is wrong.1 It is wrong because it poses, onalyzes and answers the wrong question.- Throughout,.it discusses the question how NRC should review and approve the adequacy of DOE's EIS; (See e.g. 53 Fed. Reg.16138, col. 2, 16144, col. 1.). The correct question is how NRC should

'perf orm its own, independent, NEPA responsibilities. This fundamental error in NRC analysis leads to an unnecessary discussion about res judicata, collateral estoppel and bar, subjects wholly irrelevant to NRC's ~ correct performance of its l

NEPA obligati'ons.- The real. question, and the one answered by

.the rule Nevada proposes herein, is how the NRC can " adopt" the valuable portions of DOE's EIS to .its (NRC 's ) own advan-1 tage in performing its own responsibilities.

l

2. The NRC's Independent NEPA Responsibilities.

l 1

Because of this, Nevada's comments do not include line by line criticism of NRC's proposed rule. Rather, we have submitted an alternative proposal which is included in these comments.

COMMEtCS 1

e 4

, . Prior 1to- passage of.-th National Environmental Policy Act, 42-U.S.C. 4310, et seq.', the Commission's authority was con-U fined to radiological health and safety matters. NEPA expand-

. ed Ethat authority to guarding the environment from the adverse environmental ef fects of nuclear plants - even from their non

radiological' consequences. Where necessary the Commission may.

impose license conditions to minimize those inpacts. Th'is.

' basic NRC law has been' espoused by the Commission, Kansas Gas

- and Electric Companv (Wolf Creek , Unit No.1) , CL1-77-1, 5 NRC 1 (1977); by the court of appeals, Public Service Co. v. NRC, 582 F.2d'77 (1st Cir.1978); Culeeooer Leacue v. NRC, 574 F.2d 633 (D.C. Cir. 1978); Cal ve r t Clif fs ' Coord. Comm. v. AEC, 449 T.2d 1109 (D.C. Cir.1971); and by the Supreme Court, Vermont Yankee Nuclear Power Corp. v . N RDf , 4 35 U.S . 519 (1978);

Eleece v. Sierra Club, 427 U.S. 390 (1979). Those cases are stated in terms of the non-radiological environmental impacts of nuclear plants. The NRC, of course, also has authority to control the use and possession of nuclear materials in a more generic sense than just at a nuclear power plant. See SS 51-92 of the Atomic Energy Act, 4 2 U.S. C. 2 071-212 2. That authority is recognized in 5114(d) of the Nuclear Waste Policy Act, 42 U.S.C.10134 (d): "The Commission shall consider an application for a construction authorization for all or any part of a repository in accordance with the laws neolicable to such acclications. . . . Those applicable laws are, obvious-ly, the Atomic Energy Act and NEPA.

COMMENTS 2

.. . u The confusion of the- supplementary information regarding. i g Lthe proper issue to analyze is, we think, caused by the fact 1

~t hat: more than one federal agency is involved in the major federal' action of siting, licensing and developing a high-lev-

ol. nuclear waste repository. (The . Commission staf f wrongly perceives that "[w]hile the action being- taken by DOE is the recommendation to the President of a site for repository.

development 'and the action being taken by the Commission is

.the issuance of~a construction authorization for a repository, the relevant considerations in the two situations are identi-cal." 53 Fed. Reg. 16139, col. 3.)

i' The law, both in the courts and at the Commission, is that, where a major federal action involves two or more federal agencies, each agency mast evaluate the environmental l .

consequences of the entire . project and determine independentiv whether NEPA has been- satisfied. Tennessee va11ev Authority l (Phipps Bend Nuclear Plant, Units 1 and 2), ACAB-506, 8 NRC 533, 547 (1978) (cited for this same proposition by NRC at 53 Fed. Reg. 16138, col. 3); Silentman v. PPC, 566 F.2d 237 (D.C. Cir. 1875) . And, of course, each agency involved in a I

multi agency major federal action must independently apply its

- unique statutory jurisdiction and authority. Here the NRC's duty to enforce the Atomic Energy Act and the DOE's duty to COMMENTS 3 l.

cSrry out the Nuclear Waste Policy Act are not the ccme, though each has its part in the same major federal action.2 .

There are exceptions to the general rule stated above regarding multiple agency action under NEPA. An agency's NEPA responsibilities may be compromised when the responsible agency is itself forbidden to act as NEPA might otherwise d2 mand.3 U.S. v. S.C.R.A.P., 412 U.S. 669 (1973). Likewise NEPA may be compromised where NEPA procedures would directly 2' f rustrate the responsible agency's ability to carry out its specific' statutory duties. Plint Ridee Development Co. v.

Scenic Rive rs, 4 26 U.S. 77 6 (1976). See Tennessee Vallev Authoritv, supra, p. 546. Neither of these conditions pertain to the exercise of the NRC's NEPA responsibilities.

a. Cc-promise of the NRC's other statutorv duties. ~

Prior to the Nuclear Waste Amendments Act of 1987, Pub.

Q-3 L. 100-203, Congress had not limited the Commission's 2

It is clear that the Commission and the Congress know what NRC's independent responsibilities are. The Commission staff's repeated reference to legislative reports include numerous statements of " independent responsibilities of the Commission." See 53 Feg . Reg. 16137, col . 1, 2. But the text of the supplementary information suggests that the quoted language means ' independent" of NEPA when it clearly means

• independent" of DOE's responsibilities. .

3 The discussion in the supplementary information implies that this exception applies when any other agency involved in the multi agency major federal action is ~ forbidden to act as NEPA might otherwise demand. ,,

l COMMENTS 4

L L.ind.;p2ndant NEPA rcspensibilities et all. The NWPA,.as amended, now provides .thac - the Commission "needinet consider Lthe. need for a repository', the time of' initial availability of a? repository, ' alternate sites to the Yucca Mountain site, or non geologic alternatives to a cite"- in the Commission's own EIS. This limitation is not even preclusive of NRC's consideration of these matters as NRC mag but 'need not*

consider them. And this new limitation only makes sense if NRC has an otherwise complete and independent responsibility under NEPA to prepare its own EIS. There are, certainly, other environmental matters which NRC must consider which DOE perhaps won't, as, for instance, 1) comparative design or operational practices and their environmental effects at the repository; 2) comparative methods for demonstration of compliance with'NRC's performance objectives and their environmental ef fects; 3) comparative methods of verification of compliance with isolation standards and their environmental effects; and, 4) as the NRC acknowledges, the environmental offects of NRC denial of DOE's application. 53 Fed. Reg.

16141, col. 4.

The Commission's supplementary information does not base its proposed rule on what the Nuclear Waste Policy Act says Obout its NEPA duties. In fact the NWPA says only that any EIS' prepared by the Secretary of DOE *shall, to the extent -

practicable, be adopted by the Commission in con"a: tion with the issuance by the Commission of a construction s. theorization COMMENTS 5

_ _ _ - - _ _ _ _ _______ _______ -_-_ - _ _ _- -_- A

l

~

m cnd licensa 'for such- rcpository.: To tho extent such statement

'is adotted by the Commission, such adoption shall satisfy the responsibilities l of the Commission' under. [NEPA]' and no further consideration shall be required, except that nothing in this l

subsection shall- af fect any- independent responsibilities' of the Commission to protect the public health and safety under the Atomic Energy Act of 1954". 5114 (f) as amended, 42 U.S.C.

. 1013 4 (f) (4 ) . .

l l

This is nothing more than a' restatement of the law 1

earlier set forth in T.V.A., S.C.R. A.P. , and Flint Ridee, all supra. The strained analysis of the supplementary information pushes this obvious restatement of the law into authority for the unwarranted proposition that finality on the legal virtues of DOE's EIS forecloses NRC consideration' of any environmental ,

issues it so ' chooses, including those listed in 5114 (f) (6),

and limits NRC's independent NEPA responsibilities.

It may help to present the obvious analysis which the supplements ry inf ormation ove rlooks. "[T]o the extent practi-cable" means to the extent that it is otherwise within the l customary practice of the NRC. See Webster's New Internation-l L al Dictionary, unabridged 3rd Edition,1961, p.1780, where it provides:

Practicable

1. Possible to practice or perform: capable of being put into practice, done or accomplished:

FEASIBLE (a practicable method) (a practicable aim) .

COMMENTS 6 1

2. a: capable of being used: usable (a practicable weapon) b of a theatrical erooertv Practice-

1. e The usual mode or method of doing s ome thing e.f. also, Black's Law Dictiontry 1055, Random House College Dictiona ry 1040.

" Practicability" is, after all, a matter of fact and circumstances. It involves the reasoned evaluation whether the square peg will fit in the round hole. (NRC's ef fort to give the term a legal meaning in anticipation of its applica-tion is a bit mystifying, particularly when in doing so the Commission proposes to abandon some of its discretionary power.)4 The word practicable has been analyzed in numerous contexts, all of which indicate that practicability is a question of comparing how something fits within some indepen-dent alternative structure.- Se e r e.g. C.P.C. Inte rn. Inc. v.

Train, 540 F.2d 1329-1341 (8th Cir.1976) ("not wholly out of proportion to"); oxman v. WLS-TV, 59 5 T.Supp. 557 (N.D. Ill, 1984) ("as soon as practicable", a ' practicable" time varies from case to case); Newman v. Villace of Minsdale 592 F.Supp.

1307 (N.D. Ill, 19 8 4) (' practicable" defined and distinguished 4

Not only would we expect the Commission to be jealous of 8ts discretionary power, but we would be surprised if the l Commission really wanted to threaten the exercise of that I

discretion by statements of prejudgment like 'the Commission does not anticipate imposition of license conditions with significant environmental impacts" 53 Fed. Reg. . That determination certainly c3n't be based on the exercise of -

l sound discretion and judgment when no specific proposal has yet even been submitted to the Commission.

COMMENTS 7

s . -

frcm

• practical')r' Frev v. Securftv Insurance' concany ef-Eartf erd , 331 F.Supp. 14 0-143 (W.D.. Penn, 1971) (practica-ble' neans feasible in the ci:cumstances"): Youno v. Travelerr

~

~

Insur ance Co. ,119 F.2d 877-880 (5th Cir.1941) (cited and quoted with favor in Transarerica Insurance Co. v. Parrot, 531 S.W.2d 306. at 312 as follows :- 'It]he words 'as soon as p ' practicable' are not words of precise and definite impact.

They are roomy words. They provide for more or less free play. They are in their nature ambulatory and subject under the guiding rule, to the impact of particular facts on partic-ular cases'); Selinoer v. Gove rnor of Ma ryland, 266 Md. 431, A.2d B17, 819 (1972) (' practicable

• means 'of a relative and dependent character, to be controlled more or less by the circumstances of the case').

The conc &pt of practicability in this case should be even better informed as the concept is used in NEPA itself. 42 U.S.C. 4331(b) provides that 'it is the continuing responsi-bility of the Federal Government to use gli practicable mtgag' ote. to accomplish environmental objectives. That phrase has been much' litigated and is the very basis of the exception, L . stated in S.C.R.A.P. supra, that NEPA fits within, i.e. does not- require compromise of, an agency's more specific statutory responsibilities. Judge Wright in Calvert Clif fs', supra p.

1112. opined that the NEPA phrt.se 'all practicable means' was o' ' flexible" phrase leaving the " reasonable room for the

, oxercise of discretion.

COMMENTS, B

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a l

The balance of the language of 5114(f) (4) as amended, 42 U.S.C. 10134 (f ) (4 ) , . is also helpful. Congress, recognizing NRC's independent NEPA responsibilities, contemplated that it may be practicable only to adopt portions of DOE's EIS. And, i of course, even though NRC's adoption (in whole or part) of DOE's EIS would " satisfy the responsibilities of the Commis-cion" under NEPA,5 the performance of those responsibilities would be open to legal challenge for failure of the adoption to have been " practicable". Judicial review of NRC's issuance of its own EIS is permitted under $119 (a) (1) (D), 42 U.S.C.

10139 (al tl) (D), which permits review of gar EIS prepared under A3 NEPA with respect to Commission licensure of a repository, or o action taken "under this subtitle." -

b. NEPA procedures would f rustrate the responsible acenev's ability to ca r ry out its sta tutorv duties, JL-k y

The second exception to NRC's precedent and the general rule that each agency has an independent duty to evaluate the -

environmental consequences of the entire project in a multi-agency major federal action is the Flint Ridee excep-tion. In order for this exception to apply, NEPA procedures S

Nevada takes significant exception to the proposition that this language "counse1[s] against the wide ranging independent examination of environmental concerns that is customary in licensing proceedings' 53 Fed. Reg.16136, col.  !

1. If anything, NRC's " customary" proceedings dictate the  !

• practicability" of adopting DOE's environ. mental findings.

And if " counsel" is actually required, the Commission would batter look to the mandates of NEPA, 42 U.S.C. 4332, "to the fullest extent possible".

COMMENTS 9

must. dirsetly ' f rustrate the responsible agency's cbility to carry out its specific statutory duties. Assuming, but reserving, that the Commission has a specific statutory duty l to . issue a construction authorization within three (or four) years after application therefore, see S114(d), 42 U.S.C.

1013 4 (d ) , do NEPA procedures frustrate that duty? This, of course is alquestion of fact which can not be answered except in retrospect. Certainly, from today's pe rspective, NEPA procedures do .not frustrate that duty as DOE's EIS can serve as NRC's draf t EIS 'and the litigated licensing proceeding can serve'as', or simultaneously with, the comment and republica-tion process. The Flint Ridee exception arises from the 'to the fullest extent pos sible" language of NEPA, 42 U.S.C. 4332, which the opinion in Flint Ridee explains was not intended to ,

minimize NEPA but rather to assure greater compliance with NEPA's directives.

Taking this substantive NWPA and NEPA law into account, the NRC has proposed the wrong kind of rule. The, rule should be positively stated, leaving open the question of which portions of DOE's EIS are practicable to adopt under the I circumstances and standards then existing. The standard of practicability should be the acceptability of adoption given i the constants of the NRC's then current practices and the ^

Commission's primary responsibility under the Atomic Energy y.g Act, the Nuclear Waste Policy Act and NEPA.

COMMENTS 10 l

l- . .-

3.. Correction of the holdine in "Calvert Cli f fs ' .

One primary error in ' the analysis 1ME the supplementary information is the assumption that the NRC's responsibilities under NEPA generally are limited to the publication of an environmental impact statement and that if such a statement is produced that the Commission has no other duty to consider environmental issues. To the contrary, an environmental impact statement is a disclosure document and in normal NRC practice, environmental issues are litigable in the licensing proceeding notwithstanding the EIS process. The Commission

'otaff would have it that the short phrase 'and no further consideration shall be required.", which appears in 5114 (f) (4),- means that adoption of DOE's EIS by NRC would remove all environmental issues from litigation in the licens-ing proceeding. That interpretation is contrary to the clear direction of NEPA and puts the Commission at' much risk of violating NEPA on the basis of a strained interpretation of

. 5114 (f ) (4 ) .

This error is really peculiar because the supplementary information first cites Calvert Clif fs', supra, for its clear holding that the NRC's ' duty to consider environmental issues oxtends through all stage? of the Commission's review process-os, including proceedings before hearing boards" and then states that the Commission adoption of DOE's EIS "without independent analysis' would square with Calvert Clif fs '. We can find no way to explain this remarkable contortion of legal l

COMMENTS 11

reasoning. Perhcps it would help to remind the Commission what Judge Wright said in Ca3 vert Clif fs ' case.

"We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act. What possible purpose could there be in the Section 102(2) (C) r equirement (that the " detailed-statement" accompany proposals through agency review processes) if " accompany" means no more than physical proximity - mandating no more than the physical act of passing certain folders and papers, unopened, to reviewing officials along with other folders and papers? What possible purpose could there be in requiring the " detailed statement" to be before hearing boards, if the boards are free to ignore entirely the contents of the statement? NEPA was meant to do more than regulate the flow of papers in the federal bureaucracy. The word " accompany" in Section 10 2'(2) (C ) must not be read so narrowly as to make the Act ludicrous. It must, rather, be read to indicate a congressional intent that environmen-tal factors, as compiled in the " detailed state-ment," be con sidered through agency review processes.

"Beyond Section 102(2) (C), NEPA requires that agencies consider the environmental impact ,

of their actions "to the fullest extent possi-ble." The Act is addressed to agencies as a whole, not only to their professional staffs.

Compliance to the " fullest" possible extent would seem to demand that environmental issues be considered at every important stage in the decision making process concerning a particular action - at every stage where an overall balanc-ing of environmental and non-environmental factors is appropriate and where alterations might be made in the proposed action to minimize environmental costs. Of course, consideration which is entirely duplicative is not necessarily required. But independent review of staff proposals by hearing boards is hardly a duplicative function. A truly independent review provides a crucial check on the staff's recommendations. The Commission's hearing boards automatically consider non-environmental factors, even though they have been previously studied by the staff. Clea rly, the review process is an appropriate stage at which to balance conflicting f actors against on anothe r. And, just as clearly, it provides an important opportunity to reject or significantly modify the staf f's COMMENTS 12

recommended action.

Env i ronme nt al f act ors ,

therefore, should not be sincled out and-excluded, at this stace, from the croper balance

[4 of values envisioned bv NEPA.

J.

"The Commission's regulations provided that in an uncontested proceeding the hearing board shall on- its own " determine whether the applica-

, tion and the record of the proceeding contain suf ficient information, and the review of the

application by. the Commission's regulatory staff has been adequate, to support affirmative find-ings on" various non-environmental factors. NEPA requires at least as much automatic consideration

- of environmental f actors. In uncontested hearings, the board need not necessarily go over .

the same ground covered in the ' detailed state-ment." But it must. at least examine the state-ment carefully to determine whether "the review *

• by the Commission's regulatory staff has been.

adequate.". And it must ' independently consider the final balance among conflicting factors that is struck in the staf f's recommendation.

. . . ' . NEPA establishes environmental protection as an integral part of the Atomic Energy Commission's basic mandate. The primary responsibility for fulfilling that mandate lies with the-Commission. Its responsibility is'not simply to sit back, like an umpire, and solve adversary contentions at the hearing stage.

Rather, 'it must itself take. the initiative of considering environmental values at every dis-tinctive and comprehensive stage of the process beyond the staff's evaluation and recommenda-tion." Calvert Clif fs ' Coord. 'Com. v. U.S. A. E.

Com'n, 449 F.2d 1109, 1117-1119 (1st Cir.1971) .

The AEC's proposed regulations overturned in Calvert Clif fs ' had essentially the same ef fect on agency environmen-tal considerations as those proposed here. We would expect a AI ,

similar judicial determination if the matter were relitigated.

Another aspect of Calvert Clif fs', the AEC's contention i that it could rely on the environmental certifications of N COMMENTS 13

Othor agancios in lieu of its own consideration of environman-tal matters, is surprisingly similar to the supposition of this proposed rule. But - the court totally dismissed that contention.

" Certification by another agency that its own environmental standards are satisfied in-volves an entirely dif ferent kind of judgment.

Such agencies, without overall responsibility for the particular federal action in question, attend only to one aspect of the problem: the magnitude of certain environmental costs. They simply determine whether those costs exceed an allowable amount. Their certification does not mean that they found no environmental damage whatever. In L fact, there may be significant environmental damage (e.g. , water pollution), but not quite enough to violate applicable -(e.g. , water quali-ty) standards. Certifying agencies do not attempt to weigh that damage against the opposing benefits. Thus the balancing analysis remains to be done. It may be that the environmental costs, though passing prescribed standards, are nonethe-less great enough to outweigh the particular economic and technical benefits involved in the planned action. The only agency in a position to make such a judgment is the agency with overall responsibility' for the proposed federal action -

the agency to which NE.PA is .specifically direct-ed.

"The Atomic Energy Commission, abditating entirely to other agencies' certifications, neglects the mandated balancing analysis.

Concerned members of the public are thereby precluded from raising a wide range of environ-mental issues in order to af fect particular Commission decisions. And the special purposes "

of NEPA is subverted." Calvert Cliffs' Coord.

Com. v. U.S. A. E. Com'n, 449 F.2d 1109, 1123 l-G (1st Cir. 1971).

4. The Preclusive Ef feet of Section 119.

The Commission staf f, in the supplementary information, 53 Fed. Reg. 16139, 16140, argues that 5119 of the NWPA, 42 U.S.C. 10139, permits the Commission to " carry out a licensing COMMENTS 14

i review" whichLwould " treat as settled ' those other issues j arising under NEPA."- We disagree.

First, fl19 (a) (1) (D) permits judicial review of AnZ EIS with respect to action under the subtitle. 42 U.S.C.

10139 (a ) (1) (D) . - That section says nothina that would bar review of NRC's refusal to issue its own EIS nor certainly its y,7 refusal to consider the environmental merits or impacts of DOE's proposed action. $114 (f) ( 6) as amended does, of course, permit NRC to avoid some of the issues of environmental merit, if the Commission so chooses. But that is by virtue of statutory language, not res judicata or collateral estoppel.

Second, the bar to which the supplemental information refers is the bar to relitigation of the legal adequacy of DOE's action,'not NRC's. Because the two agencies' actions 1T ore independent, a different legal and factual question is posed in each instance. Certainly NRC is entitled to rely on the conclusions reached by DOE in its EIS, its NEPA and AEA discretion yet to be exercised,6 but the Commission may not rely on the finality of challenge to DOE's EIS as a bar to its 6

This .is in accord with the proper statement of the law, at 53 Fed. Reg. 16136, that the Commission may give substantial weight to the findings. .of other bodies. Eght Serv. Comm. of N.M. (Seabrook Statio'n, Unit s 1 and 2. ),

CL1-77-8, 5 NRC 503 (1977). .,

COMMENTS 15

oxorcise of that discretion or as a bar to judicial rcview of the failure to exercise that discretion properly. 13 Even if res judicata did work the way Commission staff believes'it does, and it does not, the suggested approach, eliminating environmental issues from the licensing proceed-ing, is contrary to the directive of NEPA that "to the fullest oxtent possible . . the public laws of the United States g.g shall be interpreted and administered in accordance with

'[NEPA]" 42 U.S.C. 4332. That is the exact same provision upon which the' TVA relied when attempting to preclude environmental issues frem hearing simply because it had already done an EIS.

IZA, supra. _l Third, as we have commented above, the res judicata ~

~

analys'is presented is based on an analysis of the wrong question,12 wil how to review DOE's EIS for legal adequacy.

See e.g. 53 Fed. Reg'. 16138, col. 2, 16144, col. 1. The right

- question is how to perform NRC's NEPA responsibility. NRC does not have a duty to review DOE's EIS for its legal adequa- 1 ~'

l cy Egr 11 And of course, if it did, a prior iudicial ruling I I

on that issue would be res judicata. Moreover, it would be law of the case. Res judicata analysis is just plain inapposite to the correct question.

~

Fourth, the analysis is based on a spu;

• ius rationale ,,g that " [t]he NWPA proced ur es re ally ref.1.:ct '

o different kinds COMMENTS 16

Lof review. " 53 Fed. Reg. 16139, col. 1. This rationale disparges' the statutory responsibilities of both the NRC and the State. .The first leg of this rationale disavows the' clear case law that the NRC has a duty to evaluate the radiological consequences of a proposed action under the Atomic Energy Act And a second duty, where not compromising to the first, to y ,,3 ovaluate the other environmental consequences of the proposal.

- The second leg of this rationale makes a statement which Alice wouldn't recognize, that the " State and Tribal provisions of the Act" were to provide the process by which alternatives were to have been considered. The State of Nevada heartily declines to accept the proposition that it had any duty-to help DOE evaluate its alternatives. DOE certainly never offered any' opportunity to do so and Congress has made that all quite academic anyway. .s Last, the res judicata analysis puts potential EIS challengers on the horns of a dilemma. See discussion at 53 Fed. Reg. 1614 0, col . 1. That dilemma is inconsistent with the solubrious purposes of NEPA. The Commission staff would

~

hope to bar judicial review of NRC environmental review by l

delay past the statute of limitations, imposed by 5119(c), 42 l 0.5.C.10139 (c), which began to turn when DOE published its EIS. Challengers would then have to choose whether to let the statate run on DOE's earlier, perhaps more limited, EIS, or challenge it as its only opportunity te raise the COMMENTS 17

l onviro nmental -is sues . The Commission staff's patent strategy l is effensive to NEPA.- ,

5. Completeness s of Aeolication.

The Commission staff notes in Note 1 to the' supplementary jldh information, 53 Fed. Reg.16134, col.1, that "the Commission regulations call for the [ DOE) application [for a construction authorization) to be as complete as possible in the light of information that is reasonably available at the time of docketing - i.e. prior to commencement of construction. 10 C.F.R. 60.24(a)." The proposed rule, 53 Fed. Reg.16147, col.

2, adopts that same basic standa rd. However that standard is insufficient. The problem with Section 60.24, either in its current form or as proposed, is that it'does not place upon ,

the Department of Energy the requirement that its application be supported by sufficient information. If, for instance, the Dapartment of Energy should fail to characterize Yucca Moun-tain completely but nevertheless submit its application to the NRC, perhaps under political duress to do so, then it might be construed that the information then developed, even though inadequate, was all that was " reasonably available." This problem is one that has been identified repeatedly by the State of Nevada in the committee meetings of the High-Level Nuclear Waste Licensing Support System Advisory Committee which has recently proposed amendments to 10 C.F.R. Part 2 -

Subpart J. NRC representatives in that advisory committee agreed, at the commit tee's July 19, 1988 meeting, that

. COMMENTS 18

ref erence to the 10 C.F.R. 60 24(a) standard would be deleted from the supplementary information for that proposed rule in i

order to leave open the question of the appropriate standard.

In the supplementary information for the 10 C.F.R. Part 2

- Subpart J rules, the Commission will express the opinion that. "the information it needs in order to be able to consider the issuance of a construction authorization is generally the  !

same as will be needed prior to issuance of a license to-receive and possess high-level waste (HLW) . " This, of course,

. overlooks the fact that during the course of construction at a repository site the Department of Ene rgy will gain much new information about the site which will better inform the Commission in whether to grant a license to receive and posses high-level waste. Therefore the " time of docketing" the application for construction authorization ha rdly seems the appropriate time to determine the amount of information which .

is " reasonably available". The rule which we propose and submit herewith makes no amendment to Section 60.24(a),

leaving that matter for further discussion of the appropriate 2dS standard. .

6. The Nuclea r Waste Policy Amendments Act of 1987.

The supplementary information discusses the changes made by Congress in the " licensing process" by the Nuclear Waste

~

Policy Amendments Act of 19 87, Title V, Subtitle A, Omnibus Budget Reconciliation Act of 19 87, Pub. L. 100-203. The COMMENTS 19

_____________ _ __ _ __ _ - - __ D

Commission staff incorrectly states what Congress did. Indeed]

Congress made significant changes to the process by which DOE would recommend sites to'the President, but the only changes which the Congress made to the ' licensing process" of the Commission were adding of the language in 5114(f) (6) .(permit-ting NRC to exclude certain considerations from its EIS) and deleting;the date by which the Commission was to have issued a final decision approving or disapproving the issuance of a 2 . p]

construction. authorization. See Pub. L. 100-203, 55011(j ) .

Where Congress made a specific limited alteration to the Commission's anticipated licensing practice, it is wrong to characterize Congress's change in DOE's statutory responsibil-ities as an intention to change the NRC's statutory responsi-

.bilities. <

7. Petition For Rulemakine.

The supplementary information to the proposed rule requests that any person desiring to comment on the rulemaking petition filed by the States of Nevada and Minnesota, docketed as - PRM 6 0-2A on Octobe r 3, 198 5, do so now.

l The State of Nevada is not satisfied that the Nuclear Regulatory Commission has responded to its petition for J rulemaking in a timely way. It should not take nearly three years to respond to a proposal. And the mere inclusion of opportunity for comment in the context of this rule regarding }

NEPA is an inadequate response. The supplementary information is correct that the petition for rulemaking 60-2A proposed an COMMENTS 20 f

E_-__2 -

cmendment to 10 C.F.R. 60.24 which would have required the Cemmission to " evaluate' the environmental inipact statement required'by 42 U.S.C. 10134 (f ) and 10 C.F.R. 60.21(a) to

' determine-whether its adoption by the Commission would not compromise the independent responsibilities of the Commission to' protect the public health and safety under the Atomic.

Energy Act of 1954 (4 2 U.S.C. 2 011, e t . s eq . ) " . The proposed rule' then went on to specify the considerations which the Ccmmission should take into account in making such a determi-

~

nation. A number, though not all, of the considerations suggested were mooted by the Nuclear Waste Policy Amendments Act of-1987. We have, therefore, rewritten and included the

. proposal contained in PRM60-2A in the proposed rule which we submit with these comments. Nevada continues to believe that a straightforward, substantive standard which may be applied 2,/8 objectively is, the best course by which the NRC can guarantee the performance of its own NEPA responsibilities and preserve its own discretion. We have also attempted to create a procedure which. resembles familiar practice under NEPA, rather than creating a new and unf amiliar course, the monies of which may require subsequent administrative judicial interpretation. .

B. Nevada's Proposed Rules.

Nevada has submitted, as part of these comments, a rodrafted version of the proposal published at 53 Fed. Reg.

16144. We have attempted to 1) integrate the NRC proposed COMMENTS 21

. . t i

environmental impact statement submission process within the other amendments to 10 C.F.R. Part 2 of which we are aware by reason of Nevada's participation in the High-Level Waste Licensing Support Syste.m Advisory Committee; 2) establish a ,

system by which the Commission can retain its discretion to ,

consider and act upon environmental issues in licensing of a repository; and 3) at the same time adopt DOE's EIS *to the .%.

oxtent practicable.' We have adopted as much of the NRC proposal as possible so as to minimize the differences between the two proposals. The proposed rules follow.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for Part 2 is revised to read as folicws: Sees. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (4 2 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (4 2 U.S.C. 58 41); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 93 0, 932, 93 3, 935, 936, 937, 938, as cmended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135);

see. 114 (f) , Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S . C. 1013 4 (f ) ) ; sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (4 2 U.S.C. 433 2); 'sec. 301, 8 8 Stat.124 8 (4 2 U.S.C.

5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued l 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, COMMENTS 22

V .: . . .

I 2233, 2239). Section 2.105 also issued ' under Pub. L.97-415,

'96 Stat. 2073 (4 2 U.S.C. 2239) . Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as.

amended (42 U.S.C. 2236, 2282); sec. 206. 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also ,ssued under sec.

102, Pub.'L.91-190, 83 Stat. 853, as amenced (4 2 U.S.C.

4332). ' Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.

Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557.

Section-2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 213 3) and 5 U.S.C. 552. Sections 2.800 and 2.808 also. issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (4 2 U.S.C. 2039). Subpart K also issued under sec.-189, 68 Stat. 955 (4 2 U.S.C. 2239); sec. 134, Pub.

L.97-425, 96 Stat. 2230 (4 2 U. S.C. 10154). Appendix A also

• issued under sec. 6, Pub. L.91-560, 8 4 Stat.1473 (4 2 U.S.C.

2135). Appendix B also issued under sec.10, Pub. L.99-240, 99 Stat. 1842 (4 2 U.S.C. 2021b et , seq. ) .

2. In section 2.101, paragraphs (f ) (1) , (2), (4), (5),

and (7) are revised to read as follows:

! 2.101 Filinc of acD11 cation.

(f) (1) Each 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 any environmental impact statement required in connection ,

COMMENTS 23

.- s, enerewith-pursuant to Subpart A-of Part 51 of this chapter shall be processed in accordance with the provisions of this -

paragraph.

(2) To allow a determination as to whether the applica-tion is complete' and acceptable for docketing, it will be

~ initially treated as a tendered document, and a copy.will be ovailable for-public inspection in the Commission's Public Document Room. Twenty copies shall be filed to enable enis

-determination to be made.

(5) If a tendered document is complete and acceptable for docketing, the applicant will be requested to (i) submit to the Director of Nuclear Material Safety and Safeguards such odditional copies of the application and environmental irpact statement as the regulations in Part 60 and Subpart A of Part 51 of this chapter require, (ii) serve a copy of such applica-tion and environmental impact statement on parties and poten-tial parties as defined by 2.1001 and (iii) make direct

. distribution of additional copies to Federal, State, Indian Tribe, and local officials in accordance with the requirements of this chapter and written instructions from the Director of Nuclear Material Safety and Safeguards. All such copies shall be completely assembled documents, identified by docket number. Subsequently distributed amendments to the applica-tion, however, may include revised pages to previous submit-tais and, in such cases, the recipients will be responsible for inserting the revised pages.

COMMENTS , 24

L .. .

i i

(7) Amendments to the application and supplements to the 1 l environmental impact statement shall be filed and distributed i

cnd a written statement shall be furnished to the Director of l Nuclear Material Safety and Safeguards in the same manner as for the initial application and environmental impact state-ment.

• e *

• PART 51 - ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC LICENSING AND RELATED REGULATORY FUNCTIONS

3. The authority citation for Part 51 is revised to read as follows: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (4 2 U.S.C. 5841, 5842).

Subpart -A also issued -under National Environmental Policy Act of 1969, secs.102, 104, 105, 83 Stat. 853-854, as amended (4 2 U.S.C. 4332,, 4334, 4335); and Pub. L.95-504, Title II, 92 Stat. 3033-3041. Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 Stat. 3036-3038 (4 2 U.S.C. 2021) cnd under Nuclear Waste Policy Act of 1982, sec.121, 96 Stat.

2228 (4 2 U.S.C. 10141) . Sees. 51.43 and 51.109 also issued under Nuclear Waste Policy Act of 1982, sec. 114(f), 96 Stat.

2216, as amended (4 2 U.S.C. 1013 4 (f) ) .

4. In S 51.20, existing paragraph (b) (13) is redesignated as paragraph (b) (14 ) and a new paragraph (b) (13) is added to read as follows: S 51.20 Criteria for and COMMENTS 25

4- e.

identification of licensinc and reculatorv actions reouf rino environmental'imcact statements.

(b) *** -

s s

• e e n (13) Issuance of a construction authorization and license pursuant to Part 60 of this chapter.

5. Section 51.21 is revised to read as follows:

5 51.21 Criteria for and identification of licensino and treplaterv actions recui rine envi ronment al assessments.

All licensing and regulatory actions subject to this subpart require an environmental assessment except those identified in 5 51.20(b) as requiring an environmental impact statement, those identified in S 51.22(c) as categorical, oxclusions, and those identified in S 51.22(d) as other actions not requiring environmental review.- As provided in 551.22(b), the Commission may, in special circumstances, prepare- an environmental assessment on an action covered by a categorical exclusion.

6. Section 51.22 is amended, by revising the heading and adding a new paragraph (d), to read as follows:

5 51.22 Criterion for categorical exclu sion; identification of licensino and reculatory actions elicible for categorical exclusion or otherwise not recuirina envi ronmental review.

l * * *

• e l

l CoxMENTs  : 26 l 1 L__________-________.______________---------.____.____--_-- i

l

-(d) .Infeccordance with section 121 of ths Nuc10ar Waste H

L Poli c-f Act,of 1982 (4 2 U. S.C. 10141) , the promulgation of

technical requirements and criteria' that .the Commission will l

'opply in approving or disapproving applications under Part 60 of this chapter shall not require an environmental impact 1

statement, an environmental assessment, or any environmental review under- subparagraph (E) or (F) of section 102(2) of NEPA.

7. In 5 51.26, paragraph (a) is revised and a new paragraph (c) is added, to read as follows:

5 51.26 Recuirerent to eublish' notice of intent and conduct scorine crocess.

(a) Whenever the appropriate NRC staff director deter-mines that an environmental impact statement will be prepared by NRC in connection with a proposed' action, a notice of intent will by prepared as provided in S 51.27, and will be published in the Federal Register as provided in S 51.116, and an appropriate scoping process (see SS 51.27, 51.28 and 51.29)

' will be conducted.

(c) Upon receipt of an application and accompanying environmental impact statement under 560.22 of this chapter (pertaining to geologic repositories for high-level radioac-tive waste), the appropriate NRC staff director will include in the notice of docketing required to be published by

$2.101(f) (8) of this chapter a statemen:: that the Commission will, in accordance with 551.109, consider whether to adopt COMMENTS 7

oil or portions of the environmental impset stotcmant. If tho appropriate NRC staf f director determines, at the time of such publication or at any time thereafter, that NRC should prepare an environmental impact statement in connection with the Commission's action on the license application, the procedures set out in paragraph (a) of this chapter shall be followed. .

8. A new 5 51.67 is added to read as follows:

't 51. 67 Envi ronment al information concernine oeoloeic reoosi-tories.

(a) In lieu of an environmental report, the Department of Energy, as an applicant for a license or license amendment pursuant to Part 60 of this chapter, shall submit to the Commission any final environmental impact statement, and any supplement thereto, which the Department prepares in connec-tion with any geologic repository developed under Subtitle A of Title I of the Nuclear Waste Policy Act of 1982.

(b) The final environmental impact statement which accompanies the Department of Energy's recommendation to the President to approve a site for a geologic repository shall be submitted to the Commission at the time and in the manner described in S 60.22 of this chapter. Such statement shall be prepared in accordance with the provisions of section 114(f) of the Nuclear Waste Policy Act of 1982. The statement shall include, among the alternatives under consideration, denial of a license or construction authorization by the Commission.

(c) Under applicable provisions of law, the Department of Energy is required to supplement its final environmental COMMENTS 28 l

\ _ - _

Impact-statcmant whon:vor the D0partment mnkes a substantial change in its proposed action that i-s relevant to environmen-tal concerns or determines that there are significant new circumstances or information relevant to environmental con-corns and bearing on the proposed action or its impacts. The Dapartment shall submit any final supplement to its final environmental impact statement to the Commission at the time and in the manner described in $ 60.22 of this chapter.

(d) Whenever the Department of Energy submits a final environmental impact statement, or a final supplement to an environmental impact statement, to the Commission pursuant to this section, it shall also inform the Commission of the status of any civil action for judicial review initiated pursuant to section 119 of the Nuclear Waste Policy Act of 1982. This status report, which the Department shall update from time to time to reflect changes in status, shall: -

(1) State whether the. environmental impact. statement has been found by the cocrts of the United States to be adequate or inadequate; and (2) Identify any issues relating to the adequacy of the l environmental impact statement that may remain subject to l

l judicial review.

1

9. A new S 51.109 is added to read as follows:

5 51.109 Public hearinos in proceedings for issuance of materials license with respect to a ceolocic reDository.

(a ) (1) In a proceeding for the issuance of a lic'ense to roceive and possess source, special nuclear, and by-product COMMENTS 29

l material at a geologic repository operations area, the NRC staff shall present its position whether it is practicable or not to adopt, without further supplementation, the environmen-tal impact statement (including any supplement thereto) prepared by the Secretary of Energy. In discharging its responsibilities under this paragraph, the staff shall be l guided by the principles set forth in paragraphs (c) and (d) of this section.

(2) Any other party to the proceeding who contends that it is not practicable to adopt the DOE environmental impact statement, as it may have been supplemented, shall file a contention to that effect in accordance with $2.714 (b) or 52.1014 of this chapter.

(b) In any such proceeding, the presiding officer will determine those matters in controversy among the parties within the scope of NEPA and this subpart, specifically including whether, and to what extent, it is practicable to adopt the environmental impact statement prepared by the Secretary of Energy in connection with the issuance of a construction authorization and license for such repository.

~~~

(c) It shall be practicable for the Commission to adopt the environmental impact statement prepared by the Secretary of Energy if:

(1) The action proposed to be taken by the Commission is 2 /6 sufficiently similar to the action proposed in the license application submitted by the Secretary of Energy so that any q COMMENTS 30

7 difference between the two actions will not significantly affect the quality of the human environment.

(2) Information or considerations unavailable to the Secretary do not render the environmental impact statement inadequate to perform the Commission's independent NEPA responsibilities. Information or considerations shall be deemed available to the Secretary if the information or considerations have been addressed in a supplemental environ-mental impact statement that the Secretary has submitted to the Commission in accordance with the provisions of this chapter.

(3 ) Adoption of the Secretary's environmental impact statement, or any portion thereof, would not compromise the independent responsibility of the Commission to protect the public health and safety under the Atomic Energy Act of 1954.

(4) Ado'ption of the Secretary's environmental impact statement will fit within the administrative structure by l which the Commission considers the environmental implications of proposed major federal actions.

L (5) The considerations established by (1), (2), (3), and l (4) shall be applied in such a manner to utilize all those portions of the Secretary's environmental impact statement l

l upon which it is permissible, under NEPA, for the Commission to independently rely.

l (d) To the extent that the presiding of ficer determines l

l it to be practicable to adopt all or any part of the environ-mental impact statement prepared by the Secretary of Energy, COMMENTS 31

such. adoption shall be dacmod to catisfy all responsibilities of the Commission under Section 102(2) (c) of NEPA, 42 U.S.C.

43 3 2 (2) (c) . Such satisf action shall not foreclose considera-u tion cf environmental issues by the Commission for which contentions have been filed p2rsuant to 2.501(a)(2) or which 1h have been otherwise identified by the Commission. ,

(e) To the extent that it is not practicable to adopt the environmental impact statement prepared by the Secretary of Energy, the presiding of ficer will:

(1)- Determine whether the requirements of section -

102 (2) (A) , (C), and (E) of NEPA and the regulations in this subpart have been met; (2) Independently consider the final balance among conflicting factors contained in the record of the proceeding with .a view to determining the appropriate action to be taken; (3) Determine, after weighing the environmental, econom-ic, technica1 and other benefits against environmental and other costs, whether the construction authorization or license should be issued, denied, or appropriately conditioned to protect environmental values; -

l l

(4) Determine, in an uncontested proceeding, whether the NEPA review conducted by the NRC staff has been adequate; and (5) Determine, in a contested proceeding, whether in cecordance with the regulations in this subpart, the construc-tion authorization or license should be issued as proposed.

(f) 'ihe determinations described in paragraphs (b) through (e), and the similar review determinations of the COMMENTS 32 .

Atomic Safety and Liconsing Appeal Board and tho Commission,

'shall be incorporated- in the Commission's final environmental L impact statement which shall be published by the Commission in accordance with $51.118. That final environmental impact statement shall not be " final" action for purposes of judicial review until the Commission's action approving or disapproving the construction authorization is similarly ' final" under the Administrative Procedures Act.

PART 60 - DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOG-IC REPOSITORIES

10. The authority citation for Part 60 is revised to read as follows: Sees. 51, 53, 62, 63, 65, 81, 161, 182, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2 071, 2 073, 2 09 2, 2 093, 209 5, 2111, 2201, 223 2, 223 3);

socs. 202, 206, 88 Stat. 1244, 1246 (4 2 U.S.C 5842, 5846);

socs.10 and 14, Pub. L. 9 5-601, 92 Stat. 2951 (42 U.S.C.

2021a and 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L.97-425, 96 Stat. 2213, 2228, as amended (4 2 U.S.C. 10134, 10141).

For the purposes of section 223, 68 Stat. 958, as amended (4 2 U.S.C. 2273) , SS 60.10, 60.71 to 60.75 are issued under 1

sac.161o, 68 Stat. 950, as amended (4 2 U.S.C. 2201(o) ) .

11. In 5 60.15, paragraph (c) is removed and paragraph (d) is redesignated as paragraph (c).

J l

COMMENTS 33 1_______________ _ _ _ _ _ _ _ _ . _ - -  !

12. -In 5' 60.21, paragraph (a) is revised to read as follows:

C 60.21 Content of soolication.

(a) An application shall consist of general information cnd a Safety Analysis Report. An environmental impact state-L ment shall be prepared in accordance with the Nuclear Waste l

Policy Act of 1982, as amended, and shall accompany the application. Any Restricted Data or National Security Infor- .

cation shall be separated from unclassified information.

i 13.* Section 60.22 is revised to read as follows:

C 60.22 Filine and distribution of application.

(a) An application for a license to receive and possess source, special nuclear, or by-product material at a geologic l

L repository operations area at a site which has been character-l ized, and any amendments thereto, and an accompanying. environ-mental impact statement and any final supplements thereto shall be signed by the Secretary of Energy or the Secretary's L authorized representative and shall be filed in triplicate l with the Director.

1

! (b) Each portion of such application and any amendments, l and each environmental impact statement and any final l supplements thereto, shall be accompanied by 30 additional copies. Another 120 copies shall be retained by DOE for distribution in accordance with written instructions from the Director or the Director's designee.

1 COMMENTS 34 I

~;. ,

l.

(c) DOE. shall, upon notification of the appointment of ,

on. Atomic Safety and Licensing Board, update the application',

eliminating all superseded information,- and supplement the environmental impact statement if necessary, and serve the updated application anu environmental impact statement (as it

.may have been supplemented) as directed by the Board. At that time DOE shall also serve one such copy of the application and environmental impact statement on the Atomic safety and Licensing Appeal Panel. Any subsequent amendments to the application or final supplements to the environmental impact statement . shall be se rved in the same manner.

(d) At the time of filing of an application and any amendments thereto, one copy shall be made available in an appropriate location near the proposed geologic repository '

operations area (which shall be a public document room, if one has been established) for inspection by the public and updated-os amendments to the application are made. The environmental impact statement and any final supplements thereto shall be made available in the same manner. An updated copy of the application, and the environmental impact statement and final supplements, shall be produced at any public hearing held by the Commission on the application, for use by any party to the proceeding.

(e) The DOE shall certify that the updated copies of the application, and the environmental impact statenent as it may have been supplemented, as referred to in paragraphs (c) and (d) of this section, contain the current contents of such COMMFSTS 35

4 ,e documents submitted in .accordance with the requirements of

- this'part.

14. In s'60.24, the'section heading and paragraph (c)-is revised to read as follows:

E 60.24 Updatino of application and environmental imoact statement.

n (c) The DOE shall supplement its environmental-impact statement in a timely manner so as to take into account'the environmental impacts. cf any substantial changes in its proposed actions or any significant new circumstances or information relevant Lto environmental concerns and bearing on the proposed action or:its impacts.

. 15. In S '60.31, the introductory paragraph is revised to read as follows:

? 60.31 Const ruction authorization.

Upon rev'iew and consideration of an application and environmental impact statement submitted under this part, the Commission may authorize construction if it determines:

16. In S 60.51, the introductory portion of paragraph (a), and paragraph (b), are revised to read as foll'ows:

E 60.51 License amendment for oermanent closure.

l (a) DOE shall submit an application to amend the license prior to permanent closure. The submission shall consist of any update of the license application submitted under $$ 60.21 and 60.22, including:

COMMENTS 36 1

L- _ _ _ - _ . . i

(b) If necessary, so as to take into account. the envi-ron= ental impact of any substantial changes in the permanent closure activities proposed to be carried out or any signifi-l cant new information rega rding the environmental impacts of i

such closure, DOE shall also supplement its environmental impact statement and submit such statement, as supplemented, with the application for license amendment.

C. Comrarison of the Practical Tmolerenta tion s of NRC's and Nevada's Procosed Rules.

1. The Problems With Implementation of the NRC's Procosed Rule.

The NRC's proposed rule anticipated only a single repository site having been recom ended by DOE in its finsi

. environmental impact statement. This overlooks the possibility that the Negotiator, established by Title IV of the NWPA as amended, 5 5 041, Title V. Pub. L. 100-203 recommends a dif ferent site. The procedures and environmental

l -l ,I issues important to the NRC in that event are not anticipated l by NRC's proposed rule. For instance, in a negotiated site case, the host state will have foregone its right to litigate i

the DOE's EIS altogether. But that state won't have relinquished its right to expect full consideration of environmental issues by the Commission.

1 -

l The proposed rule does not adequately address the ,7 g l practical problem that litigation over DOE's EIS could be COMMENTS 37

protracted, perhaps longer than the NRC licensing process and certainly longer than the date when, under the proposed, NRC staff must. advise the Board regarding its decision to adopt the-EIS. This could put.the Commission in a position where it could not move. ~

l

2. The Advantace of Nevada's Proposed Ru11 l

Nevada's proposed rule retains the Commission's I discretion and establishes a process which could be utilized l in any DOE or Negotiator proposed action.

l Nevada's proposal protects against early litigation  !

Ogainst NRC for failure to comply with NEPA. NRC's proposal does:not.

l Nevada's proposal introduces no time delays in the  ;

oxercise of NRC's licensing jurisdiction. l Nevada's proposal takes into account the other changes anticipated to 10 CFR 2. NRC's proposal does not. l D.. Recommended Action i

l The Commission should make major changes in its proposed  !

l rule and submit them again for comment. In the alternative, I 1

I 1

COMMENTS 38 l

_--_.-__----__-------N

jp. . i. : . .. c

? 'g 1

i-

.. the." Commission should establish some other mechanism by which.

to. incorporate Nevada 's concerns'.into the , rule.

9 5

4 9 3

A 1

I

)

COMMENTS 39 l

i UU'Jnti NUMbtM DD i f3 PROPOSED Rul.E (r n 2 -5/v 6

. E~SVIROSMENTAL DEFENSE FESDo..  ;; Ai.*

1405 Ara;:ahoe Avenue Boulder, CO 80302 3 g ,,3 g 3 (303) 440 0 3)

August 2, 1988 -

BY EXPRESS MAIL $rs 06?On y:s,,,,',-$

Samuel Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch RE: Proposed changes to 10 C.F.R. Parts 2, 51 and 60

Dear Mr. Chilk,

The Environmental Defense Fund ("EDF") is a non-profit organization with over 60,000 members nationwide. Our members include attorneys, scientists, economists, educators and other professionals and concerned citizens who are interested in preserving and creating the best possible national and global environment.

Towards that goal, EDF advocates minimizing the uses of hazardous materials and selecting the most prudent management systems for existing

- hazardous. wastes, including nuclear. waste.

Through legislative, administrative, and court action, EDF has participated in the debate over this nation's long term strategy for nuclear j waste disposal. For example, EDF took part in j the High Level Waste Licensing Support System  !

x negotiated rulemaking conducted by the Nuclear Regulatory Commission ("NRC", "the Commission").

We have reviewed the proposed changes to National Headquarters NRC's rules for compliance with the National 257 Park Asenue South Environmental Policy Act ("NEPA") in the context New York, NY 10010 of the Nuclear Waste Policy Act of 1982 and the (212) 505 2100 1987 amendments thereto (collectively "NWPA").

1616 P Street NW EDF urges the, Commission to abandon the dramatic diminution of its licensing authority which Washington, DC 20036 (202) 367-3500 these proposed changes would effect. Instead, EDF would urge the Commission to withdraw this 5655 College Avenue I d A' proposal and prepare and publish a new set of

)T3g'jg08 amendments to its existing rules which conform ,

them as necessary to the cliar process ,

1108 East Main Street variations required by NWPA; but do not chmo

,) ,

V 23219 illegally reduce the scope of NE's. repository licensing review.

128 East Hargett Street Raleigh, NC 27601 l (919) 821 7793 j

_ e _. ,. . )

I

g-p %( .i Samuel Chilk, NRC Secretary August 2, 1988 Page 2 ,

i

Trom our review, EDT would support the proposed changes to the following sections of NRC's rules in 10 C.F.R. as primarily or entirely noncontroversial: Part 2, section 101; Part 51, cections 20, 21, 22, 2 6 (a) , ' 67 (a) , 67 (b) , 67 (d) , 109 (a) (1) ,

109(b), 109(e), 109(g), and 118; and Part 60, sections 22, 31 and 01(a). We believe that NRC could adopt these sections, following this public comment and review period, with appropriate modifications to conform to the rule which will be produced as a result of the recently completed negotiated rulemaking (that will odd an new-subpart to 10 C.F.R. Part 2 to allow for the use of an onhanced " Licensing Support System" during the Commission's '

consideration of the repository). .

Interpreting the NWPA, NRC argues generally that the Commission's NEPA responsibilities are limited under the NWPA, that the Commission is entitled to adopt the Environmental Impact Statement ("EIS") that the Department of Energy (" DOE") will prepare pursuant to NWPA section 114, that the Commission need not do any independent analysis of the environmental issues which DOE covers in its EIS nor consider such issues in the licensing process, and that,_with regard to environmental mitigation measures presented in DOE's EIS, NRC has no duty to include such measures as conditions in its repository license. (EDT refers through to an NRC " license" and " licensing process." Our intent

r __ __ __

Samuel chilk, NRC Secretary August 2, 1988 Page 3

. is to include in these shorthand phrases the NRC construction authorization and process for issuing such authorization, too.)

This attempt by the Commission to limit its duties is simply appalling. NRC is the sole federal agency with the power to grant or deny a license to DOE for this nation's first, and potentially only, high level nuclear waste repository. Given its role as licensor, the Commission is also the federal agency with the ultimate responsibility for the fate, and with the final say as to what must be done to ensure the public and environmental safety, of such repository. The commission simply cannot -- by rule -- shirk the awesome responsibility which Congress gave to it -- by law.'

EDF finds it ironic that the commission, which just invested

~

nine months worth of two day meetings to draft a rule which would govern discovery and procedural matters for the licensing, clearly a sign that the Com=ission recognizes the serious nature of its licensing responsibility, would now so blatantly attempt to lighten its burden, especially knowing that no other federal agency or law will operate as a backstop for those deficiencies which NRC would hereby refuse to catch. Despite the fact that Congress directed DOE to prepare an EIS to support its choice of a repository site, Congress put NRC in the position of umpire, with the final authority to call fair or foul.

I L Samuel Chilk, NRC Secretary August 2, 1968 q

i Page 4 NRC must exercise its NEPA duties for the repository. NRC can take an active role in the development of DOE's EIS and thereby attempt to ensure that such EIS adequately addresses all issues which it is proper for DOE to address in carrying out its responsibilities under the NWPA. Were NRC to participate actively, commenting at all phases in DOE's progress including the scoping process and the draft EIS, NRC might be able to adopt more of DOE's EIS than it would be able to adopt absent vigorous participation. However, even if NRC does take an active, early role in'the development of DOE's EIS, NRC must still carry out its own NEPA responsibilities for the repository, including the preparation and issuance of its own EIS. Although parts of that EIS may in fact be adopted from DOE's NEPA compliance documents, NRC must also fill in the gaps which will result because of NRC's independent duties under NWPA which Congress explicitly recognized. Because these proposed rules would thwart NRIC's NW.A responsibilities, NRC must redraft, republish and rethink the regulatory amendments it needs to adopt to fulfil its statutory obligations for licensing a high level nuclear waste repository.

~

1. The NWPA's limitations on NEPA compliance do not affect NRC as broadly as the Commission argues.

NRC argues that Congress significantly narrowed the scope of the Commission's NEPA compliance in the NWPA, primarily through 3-l section 114 (f) . The four changes to the scope of the EIS which NWPA makes are that neither DOE, as a result of section 9/

. Samuel Chilk, NRC Secretary August 2, 1988 Page 5 114 (a) (1) (D), nor NRC, pursuant to section 114 (f) need consider:

(1) the need for a repository; (2) alternatives to deep geologic storage; (3) time of initial availability.of repository; and (4) alternatives to the Nevada site, if that is the site that DOE recom= ends.

EDF appreciates that NRC faces a daunting task, which Congress has made all the more difficult by' imposing on the Commission a three year statutory derdline for issuing its construction authorization. However, the Commission may not arbitrarily remove from its licensing inquiry topics which rightfully belong there in a crass attempt to cut time out of the process. Moreover, the few limits which Congress imposed on

-NRC's NEPA inquiries in section 114 do not allow NRC to avoid all

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other NEPA considerations in its licensing. Although the Commission states that its authority under the Atomic Energy Act, as amended is limited to the protection of public health and safety, this is not quite correct. .As amended, the Atomic Energy Act directs NRC to comply with NEPA; so, NRC's authority also includes the consideration of impacts to the human environment.

Nothing in the NWPA changes NRC's authority, except to the limited extent set out in section 114 (f) .

NRC could have properly concluded that Congress, in narrowing the scope of NEPA compliance, meant to narrow in tha 1 sars way the issues for NRC to consider in its licensing l

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~ Samuel Chilk, NRC Secretary August 2, 1988 Page 6 proceeding, and EDF would have agreed with this conclusion. But ,

instead, NRC proposes through these rules to limit its own NEPA duties and the scope of its licensing inquiry far beyond the four above-described limitations which Congress imposed in NWPA section 114. These four specific congressional limits on the scope of doe's and NRC's NEPA duties have no relevance whatsoever to any further narrowing either of the scope of NRC's licensing inquiry or of the extent of NRC's adoption or rejection of doe's EIS. The former is controlled by the provisions of 10 C.F.R.

Part 60 and the EPA standards for high level waste repositories, 40 C.F.R. Part 121. The latter is controlled by other language in section 114 (f) . NRC cannot use the Congressional elimination 3-l of the four topics listed above to support an attempt to narrow far beyond those topics NRC's NEPA responsibilities or the scope of its licensing ptoceeding. .

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In fact, the very legislative history which NRC quotes regarding the Commission's independent duties vis-a-vis the 3,7 repository support the principle that NRC is n21 allowed to forego its NEPA duties and rely entirely on DOE's NEPA .

compliance. In addition to the legislative history, there is the language of NWPA itself which indicates that Congress intended 33 for NRC to issue its own EIS. Thus, section 114 (f) (6) provides:

"In any (EIS) prepared with respect to the repository to be

Samuel Chilk, NRC Secretary August 2, 1988 l Page 7 constructed under this subtitle, thg Commission need not ),3 consider [the four above-listed factors)." Emphasis added. ,,

As EDF explains below, the interplay between federal ogencies, each with distinct programmatic and NEPA .

responsibilities, is not one which would allow the Commission to abdicate its role sirply because DOE, its sister agency, complies ,

with the laws, including NEPA, which apply to the Department.

. 33 '

Calvert Cliffs Coordinating Committee v2 UAE2 Atomic Enerev Commission, 449 F.2d 1109 (D.C. Cir. 1971). The Commission even cites this case, 53 Fed. Reg. 16138, col. 3, yet dismisses its relevance. ,

.a

2. " Adoption to the Extent Practicable" is a flexible standard which preserves NRC's discretion.

NWPA section 114(f) tells NRC to adopt DOE's EIS "to the extent practicable," from which NRC reasons that it must give the 3-5 EIS " substantial weight" where relevant to Commission decisions. 'f Although the Commission concedes both that a " rule of reason" still applies regarding its evaluation of DOE's discussions, and that DOE might not necessarily address in its EIS all of the issues which NRC must address, the Commission translates the Congressional directive to adopt if cractiethlt into a virtual ,

directive to adopt. Egg, proposed section 51.67(c). Further, NRC suggests that, because NWPA section 114(f) allows NRC's adoption of the EIS to " satisfy" NRC's NEPA duties such that "no Eurther consideration is required," the NWPA as a whole (or at

Sa=uel Chilk, NRC Secretary August 2, 1988 Page 8 i

least in its directive in section 114(d) to NRC to issue a construction authorization for the repository) should be read as

" counsel (ing) against the wide ranging independent examination of environmental concerns customary to NRC's licensing proceedings."

With regard to the standard - 'that NRC may adopt "to the extent practicable" -- only to the extent that DOE's EIS does satisfy NRC's need for information in making its licensing determination would it " practicable" for NRC to adopt DOE's EIS and not consider further the matters addressed in the EIS. As NRC has long recogni cd, the standard "to the extent practicable" gives the Com=ission " flexibility" to " exercise (its) judgment" independently as to whether or not to take the action conte = plated. Eget 3232, 50 Fed. Reg. 41853, col. 2 and 41856, col. 1 (Oct. 16, 1985) (an NRC discussion of "to the extent practicable" in the context of its uranium mill tailings regulations and the interplay between NRC's rules and EPA's standards). Therefore, NRC cannot, as proposed in these draft rules, notice an " intent" to adopt a sister agency's EIS prior even to examining that EIS and regardless of whether such EIS adequately addresses the issues which EE2, as opposed to DOE, must address to carry out its duty - the grant or denial of a repository license. This is especially true, as explained above, given that Congress intended NRC to comply with NEPA 3-5 independently from DOE. --

- - - - - _ - _ _ _ - - _ _ = - _ _ _ - _ _ - _ _ - _ _ _ _ -

I Sa=uel Chilk, NRC Secretary August 2, 1988 Page 9

3. NWPA's provisions for judicial review of any EIsas do not relieve NRC of its independent NEPA responsibilities. -

NRC makes a series of arguments on the binding nature of judicial review of DOE's EIS as a basis for the Commission's positions that it will be bound by DOE's EIS and that NRC will not rehash the environmental issues covered by DOE's EIS in the licensing proceeding. NWPA section 119, which provides for judicial review of "any" repository EIS certainly mea'ns that a court holding on the adequacy of DOE's EIS, if such ruling were  ; $,k final by the ti=e of NRC's licensing proceedings, would bind the Com=ission's decisions 12 tha extent 21 thg holdinc. However, in making this argument, NRC appears to be desperately holding blinders on its face. Nothing about the Commission's premise allows for the leaps it makes towards its conclusions.

In fact, section 119 of the NWpA, just like section 114, would appear to conte = plate the issuance of more than one EIS on 1 the repository; in section 119, that is evidenced by the use of word "any" to modify repository EIS. If Congress had intended there to be only one EIS, it could have so stated. Moreover, NRC cannot use a potential court ruling that DOE's EIS is adequate for DOE's compliance with HIE & as the basis for an NRC decision to rely on the DOE EIS. As EDF noted above, DOE's NEpA responsibilities are separate and distinct from NRC's. That DOE's EIS complies with NEPA in satisfying DOE's duties under that law has limit.d 9:elevance for NRC. The Commission must

I Sa=uel Chilk, NRC Secretary August 2, 1988 Page 10 still conduct an independent analysis -- even of those portions

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of DOE's EIS which the Commission wants to adopt -- to determine 3,/

whether those portions which it adopts satisfy its own NEPA responsibilities. Finally, if NRC were to adopt parts of DOE's ..

EIS, even to the extent that NRC were then bound by a court decision which found such parts in compliance with NEPA, that scenario obviously contemplates that NRC would have to wait for 3,]

such court decision, which could be years after the issuance of DOE's EIS and long after such decision could be meaningful during the Com=ission's expedited licensing proceeding. .

4. NRC may not exclude from its licensing proceeding the consideration of environmental issues.

. n Citing the statutory provision that allows NRC to adopt parts of DOE's EIS and various Congressional committee reports, NRC argues that the legislative history of NWPA directs the Commission to focus on health and safety issues, to the exclusion ,

jg of the environmental issues ordinarily raised in the NEPA process. The Commission bases this argument on several factors, including that Congress removed NRC review of DOE's decisions on site screening and selection, that one Senate bill had included the word " environmental" which was not included in the final version of the 1982 NWPA, and that except for its review of the l Guidelines, NRC's role is statutorily limited to addressing health and safety issues. NRC also cites committee reports for the proposition that NRC should not duplicate DOE's work,

I Sa=uel Chilk, NRC Secretary August 2, 1988 Page 11 i

although NRC admits that one such report, the Conference Report on H.R. 6598, H. Rep.97-785, part 1, p. 69, specifically reserves NRC's independent NEPA and licensing responsibilities and recognizing NRC's duty to supplement DOE's EIS as necessary.

NRC also concedes that, at least in the Senate, the bill's pri=ary authors expected that NRC's NEPA analysis would be broad.

Finally, NRC points to the sections of NWPA which make DOE actions on the repository subject to legislative and judicial 3,$

review to argue that DOE's EIS does not also need NRC review.

Essentially, NRC attempts to distinguish between the Congressional intent to limit the Commission's NEPA duties but not its licensing authority. The simple response is that no such duality exists. In fact, for NRC to perform its licensing function adequately, it must produce a competent EIS which addresses all of the issues encompassed by NRC's NEPA, Atomic Energy Act and NWPA authorities add it must allow for all such issues to be subject to argument on their scrits in the licensing proceeding. It is to ensure that NRC can carry out these functions that Congress expressly provided NRC with the authority to adopt DOE's EIS in whole, in part, or not at all, and to supplement that whole or partial E,IS as necessary to comply with its own duties. ,, J As to the Commission's argument "

that it has responsibility 3.g for health and safety issues but not protection of the human

I Samuel Chilk, NRC Secretary. ,

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August 2, 1988 -

Page 12 environment, such position is contrary to (1) the Commission's

.NEPA: duties as a federal agency undertaking a major federal cetion, (2) what the Commission itself saw as its responsibilities when it adopted 10 C.F.R. 60 which contemplates NRC review of at least some environmental issues, and (3) the

. implications of NWPA section 121 which directs EPA to adopt

)O

. environmental standards and NRC to promulgate technical criteria which "shall not be inconsistent with any comparable standards promulgated by the (EPA) Administrator." Section 121 then directs NRC to revise its criteria if issued before EPA's standards and if after EPA's standards are issued it turns out that'the NRC' criteria are inconsistent with the EPA standards.

5. There is no basis for NRC to prejudge the nature of l the license conditions which it will impose. - -

NRC claims that it does not anticipate the imposition of license conditions with significant environmental impacts. 53 3 -1o Fed. Reg. 16142, col. 3. The Commission comes to this amazing if conclusion without identifying a basis for such a dramatic l limitation on its licensing duties and without the benefit of any specific information regarding the nature of the repository's environmental impacts. NRC's only authority for this attempted divestiture of its licensing authority is that, in its view, " DOE has the primary responsibility for considymtion of environmental matters." Ibid. NRC makes this argument ' notwithstanding its recognition that its own regulations, at 10 C.F.R. Part 60.32(a)

I

.. . . 8 Sa=uel Chilk, NRC Secretary August 2, 1988 Page 13 require the Commission to address the " protection of environmental values." NRC purports to explain its new position by arguing that, if significant changes occur or new information becomes available after DOE files its original license application, then NRC would expect DOE to supplement the EIS and amend its application. Moreover, NRC explains that "affected parties (could) seek redress against DOE in the courts" for the enforcement of environmental mitigation measures identified either in the initial EIS and any supplements thereto. 53 Fed.

Reg. 16143, col. 3.

This is truly an extraordinary attempt at abdication of NRC's licensing role. First of all, there is no justification for NRC to be declaring today that it will-not. impose environ =entally significant (or any type of) licensing conditions for the repository when the licensing proceeding is unlikely to begin for at least five years. This is simply irresponsible agency behavior.

Second, although DOE can attempt to describe the environmental impacts of the repository and how it plans to comply with EPA standards and NRC criteria, NRC as the licensing agency clearly has an independent duty and the ultimate responsibility to review the application and decide what license conditions are necessary to ensure compliance with EPA's standards and the Commission criteria. DOE may have, at least

Samuel chilk, NRC Secretary -

August 2,- 1988 Page 14 initially, the primary authority for protection of_the human environment-in the context of designing and constructing a repository, but NRC cannot avoid its position as ultimate guarantor of the safety of the repository, including the protection of the human environment from adverse impacts associated with the repository. As a result of its duty to license the facility, and as-the sole such licensor, NRC must 3-/ D place-all necessary conditions into its license.

Third, under NEPA, which is a law to ensure that federal agencies make their decisions on the basis of adequate information that fleshes out the environmental impacts of a proposed federal action, "affected parties" have no claim for 3 -ll redress on the basis of mitigation promised in an EIS if such l mitigation measures are not included as a permit / license l condition or otherwise required by law. NRC, in fact, cites no authority for its claim that such proposed mitigation measures l

are independently enforceable. Given that no such authority exists, NRC must include such conditions in its license.

Therefore, NRC must allow such conditions to be subjected to the scrutiny which its licensing process affords. _

6. NRC adoption of all or part of DOE's EIS does not mean that NRC can avoid considering environmental issues at its '

licensing proceedings.

NRC argues that for the repository, DOE is the " lead agency 3-j y for NEPA purposes and the Commission is merely a commenting i

' Samuel Chilk, NRC Secretary August 2, 3988 Page 15 agency. E11, 40 C.F.R. 1506. As such, the Commission asserts that right to adopt DOE's EIS if that statement is adequate and without doing an independent evaluation of the issues that DOE addresses in its EIS prior to such adoption. Even though NEPA would usually require the licensing agency to do an independent review, because of NWPA's limits on NEPA compliance and judicial i i

review provisions, NRC claims it may defer to DOE's work here because DOE is the agency with the ultimate responsibility for the repository so NRC may defer to DOE's views. 3,i >

EDF is appalled that NRC would attempt to cast DOE as the federal agency with the ultimate authority over the repository l i

when it is NRC with the power to grant or deny a repository I i

' license. Because NRC is the agency with the ul'timate authority I tc declare whether the repository is ever built, this situation is no different from the cases NRC cites that direct NRC, as the licensing agency, to do an independent evaluation of the health, safety and environmental impacts of a proposed project. In fact, the cases which NRC cites represent a bar to NRC's adoption of DOE's EIS absent the Commission's performing an independent review. ,

7. NRC cannot deny DOE's application to avoid having to

, supplement the EIS. e Section 114(f)(6) of NWPA appears to assume that NRC will 3/ 3 issue some NEPA compliance documents, either portions of an EIS or an EIS supplement of its own. Otherwise, there would be no

Samuel Chilk, NRC Secretary August 2, 1988 Page 16 reason for the language, "[ijn any such statement prepared with  !

respect to the repository to be constructed under this subtitle, ,

the NRC" need not consider certain issues. For NRC to use this rulemaking to announce its intention that either DOE will prepare cupple=ents to the EIS that NRC deems necessary or NRC will deny +j.;3 DOE's application is simply preposterous. It is also without legal basis. NRC cannot force DOE to perform the Commission's own responsibilities through the threat of license denial. EDF urges the Commission to rethink such juvenile behavior. ,

For the foregoing reasons, EDF suggests that the Commission reconsider its proposal ~here and redraft proposed rules which would incorporate those changes that ensure that the Commission take advantage of the Congressional invitation to adopt, where practicable, the DOE EIS, while at the same time preserving the Commission's full responsibilities as the licensing agency for the repository. NRC must consider environmental issues in its licensing process. To guarantee the best possible consideration l of all issues, NRC should participate in the early development of DOE's EIS and reserve its ability to supplement and change that EIS as necessary to comply with NEPA and NWPA. The proposed rules do not accomplish these goals. EDF urges NRC first to give careful consideration of the alternatives proposed by the State

r .. ..___

I.

Strual Chilk, NRC SOcrGtery.

August 2, 1988 Page 17 of Nevada and the Southwest Research and Information Center and then to publish a second set of proposed draft amendments.

Sincerely, i ^

-Y&=>

Melinda Kassen Staff Attorney Rocky Mountain Regional office I

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38 P2 26 SOUTHWEST RESEARCH AND INFORMATION CENTER 0 August 1,1M

. DOCKET NUMBER i ) 2 El e/.o Secretary of the Ctr.Tnission PROPOSED RULE (83'F U.S. Nuclear Regulatory Ccr:missicn Washington, D.C. 20555 Attention: Docketing aM Service Branch

Dear People,

Ihclosed are the coments of Southwest Research and Information Center (SRIC) cn the NIC's preposed rule for chaging 10 CFR Parts 2, 51 and 60 as noticed in the Federal Register of May 5,1988.

SRIC is a private ncnprofit organir,ation which has been intensively involved in nuclear waste managerent and disposal issues for nere than a decade. We have been active participants in the Departmer?. of Energy's high-lwel waste prcgram.

As the cx:rrents describe in nere detail, we believe that the proposed rule is fundamentally flawed. We would therefore request that the proposed rule be substantially rwised ard reissued for public coment.

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We would appreciate your careful'ecnsideraticn of these ecments.

Yours truly, bb Don Hancock Director Nuclear Waste Safety Project

.O. BOX 4524 ALBUQUERQUE NEV; .XICO 87106 505 - 262-1862

45E SOUTHWEST RESEARCH AND INFORMATION CENTER CDtfXPS CN ME IGC'S PK) POSED RIE FOR NEPA RENIS PECEDJRES FOR GEDIIX3IC RCFOSI'IORIES 10 CPR Parts 2, 51, arx1 60 August 1, 1988 ,

Sutritted by

. Ibn Fhncock Director,' Nuclear Waste Safety Project I

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.O. BOX 4524 Al.BUQUERQUE NEW MEXICO 87106 505 - 262-1862

1. SLWeM The !belaar Fegulatory Ctrrission's (N7C) propsed rule for NEPA review procedures for Geologic Repositories for High-lavel Waste (10 CFR Parts 2, 51 l

and 60, 53 Federal Re:ister 16131) is inadegaate because it does ret meet the legal regairerents of NEPA aM the !belear Waste Policy Act (! EPA), it does net address the tw rest inrrinent actions facing the Cortrdssion, and it does not adegaately consider the range of alternative scenarios that relate to the Cbr:rrdssion's adopting IDE's final envirornental inpact statement (TEIS).

The proposed rule seems to assme that the only likely possibility of the Cervidssion receiving a IDE IIIS is as part of a repository license application ofter: Yo:ca tbuntain is characterized aM then is raccrreMai by the President to Congress; the State of Nevada files suit challenging the adequacy of the IIIS (and presmably files its rotioe of disapproval, which is overridden 1:y Congress); the Court of Appeals fiMs the FEIS is ret inadequate; and the only substantive issues before the NFC in the licensing proceeding relate to radiological safety issues at Yucca Mountain. hhile that scenario _is, s possible, it is not the only scenario, arxi perhaps not even the nost likely one. Moreo/er, it is inappropriate for the Ccrardssion to base so nuch of its proposed rule - consciously or unconsciously - cn that assumption.

Because of those inadequacies, the proposed rule should be substantially rwised arxi reissued for additional ocr: rent before final prcm21gation.

II. LZnAL REDUIRDNS FOR THE CDW.ISSION'S LICDiSI14 REVIDi

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7he 1MPA's language in section 114(f) upon which the Ccnmissicn relies so heavily in the proposed rule was intende$ to expedite the NRC's rwiew of the q,[

license application - which Congress hoped could be dcne in 3 years or a j maxirm of 4 years (Section 114(d)(2)). The Cm mission is erroneously reading l

1 e

1 e-_-_ - _ - _ -- -

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i the stotute to limit the NEPA and licensing issues that the !GC can address.

Ch the contrary, the 1 EPA explicit.ly allows NIC to disapprcve a construction application aM cbes not lirdt to " radiological safety" the issues that could d./

lead to such a rejection (Secticn 116(c)(4)(A)(iii) aM Section 118(b)(5)(iii)). ,

bre:wer, Cbngress is aware that the IGC often places conditions en its '

licer. sees, but it did not prohibit the Corn.issicn frcrn inposing conditions, ) 1 including those related to amircrr, ental issues. In such cases, a supplement to the FEIS would be necessary.

'Ihe Cermission's self-inposed limits on the scope of its NEPA rwiew and its licensing authority are ret consistant with protecting public health and safety and the Ctrrdssion's nonral licensing procedures. 'Ihe 0:rrission chould re-propose a rule which prcnides for full NEPA rwiew, rot lindtad to artificial distinctions of " radiological safety" ard environmental cmcerns.

In fact, in rey cases those distinctions nay be irpassible to nake since cany issues will intertwine envircrnental and radiological concerns.

III. ACTIOt;S NEEDING NFC A'ITDCIOti '

'Ibe proposed rule does rot fcc.:s on the actions that are nest arrinent aM on those actions where DDE, states and tribes, and the public nest need guidance from the Ctrrrdssion. 'Ihose actions are NIC's role in DOE's scoping FOc+.ss and the Ccmrdssion's proca$ures for dealing with t.he new office of Negotiator established as Title IV of the 1MPA by the Nuclear Waste Policy Act Amendments of 1987 (!MPAA).

A. Scopino process for Yucca Mountain While the Ccr:rrdssion's c:nsideration of D3 's FEIS in a licensing

' '3 proceeding for Yucca Mountain will ret ccramence until 1995 at t!w earliest, according to DDE's Draft 1938 Missicn Plan AmeMment (p. 51), DOE's scoping 2

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. process chould begin within o year. In 1986, the Cbmrission affirmed that it wculd "rwisw and ccrrent on DOE's scoping docwants and . activities for irnplementing NEPA." (51 Federal Recister 27159). We Cbmnission should be describing hcw it will be involved in the scoping process. Instead, the proposed rule totally ignores that 1986 Cbrrrission position cri involvement in the scoping process and says (p.16131) that the 0:mnission's review begins with the DEIS.

Since DDE has rot yet m$equately defined its NEPA process, the Chaission ,

chculd be prcuidirg guidance to DOE as to hcw the scoping process should

$-O proceed - including een and hcw the scoping process should be initiated, how the affected states and tribes and the public should be involved, ard discussing the form of hT's pmicipation. D.tring that scoping process, the Ccrirdssion should be an active participant and should participate in scoping hearings. We hT should also make suggestions as to hcw IDE can best conside a dis;csal system which includes both an MJts and a repository.

D e proposed rule should incorporate a full understand.tng of the Ccmnission's role thrcughout the NEPA process, including in the scoping process. De lack of such a ccrplete understanding is a major deficiency in the proIosed rule. W e proposed rule should be corrected in a reissued proposed rule.

S. Nuclear Waste Neoctiater In its preamble, the proposed rule recognizes that a new Title IV of the ~

E*PA has been created, but neithe in the preamble nor in the pvM rule does the Ctratission describe the substantial nos requirements that the Ccmnission may have as a result of the eetivitias of the Negotiator. Since the Negotiator is rapirm$ to finish his/her work by Jenuary 1993 (pursuant to 3

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secNion 410),'the ccrmission's tetivities md:r that Titio will be j cecerplished before ME even suhr.its its draft erwirorrental inpact statement for Yucca M:untain, *.ich is not scheduled until 1993 according to the Draft 1988 Missien Plan Amer &ent (p. 51).

The new Title establishes' new requirernants ces the Canission. Section .

403(c) allcus the Negcriator to solicit ard consider carents frcrn the NIC cn the suitability of any site for site maracterization. 1he Negotiator will H

l- alnost certainly request infomaticri ard assistance frcm the ocmmissicn.

While the statute is silent on NRC's role in rwiewing an WWim..nud assessment (m) dweloped 'for a sita propsai by the Nogotiator, clearly the -

NE should rwiew such an EA iis at least as noch detail as it reviewed the previous draft and final EAs produced by DOE for potential repository sites.

The Conr.ission sh:cid expressly ackncviedge this role. ,

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terecver, the new Title also charges the role of the EIS for a Negotiator-chosen site. Fcr sud a site, the FEIS would not be for the site calectiers decisicn of the Secretary of Diergy and the President, but rather would crdy serve the purpose of prcviding necessary NEPA docunantation for the license application. An erwircrraental assessment, not a FEIS, is specifically required by Section 403(d)(1) as part of the subnission.to Congress for its apprcual of the agreement made the the affected state or Indian tribe ard the DOE. . The preamble for the proposed rule shcws no r widtion of this sensibility since it describes the FEIS as being for both the raccnrardaticr2 and for the license application (p. 16139).

With a negotiator-selected site, it is quita likely that there will be rc

. NEPA cha11erge since the affected state will rot oppse the designation before ~

Congress, the courts, or the Ccmnissicri. (of course, the pericd of judicial 4

l rwies fcr the FEIS cn the negotiator-solected cite is also diff rent, Cince j the IEE-day time period r:ey well ret begin intil the TEIS is filed with the ih lice.nse application.) -

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In addition to its impauts on the tEFA process, tne Office of Negotiator l will be a new agen f with which NIC will interact. The Ctrrissicn should begin imediately definire its role in relation to the Negotiator. _

IV. TFE CDW.ISSIOtJ'S NEPA 7012 A. NFC participatico in IDE's 1EFA prccess NEPA is first and forer:ost a public participation statute. Public d-k V

participation rneans that full participation bf the public end bf state and federal agencies with respsibilities related to the proposed acticn. In relation to reelear waste disposal, the EIS process raast include participation frczn the public ard by the many affmed states and by federal agercies, esoecially the h~rC, at all stages of the prccess: Scoping, DEIS, FLIS, and any ne essa:y supplements.

It is irgertant to rete that IEE's EIS process is releted to, but distinrt frcra the NIC licensing process. 42 U.S.C 10134(f) requires that, consistent with 1 EPA, IDE nest prepare a FEIS to "a ccmpany any reccmendation to the President to apprcue a site for a repository." That prcuisicn was rot changed by the Ibelear Waste Policy Act A endnents of 1987 (NnTAA). 'Ihus ,

under the th7A, the first purpose of the TEIS is to previde necessary infonnation to the decisiorrakers - the Secretary of Energy and the President

- regardirs final selci:n of the repository site. 'Ihose Ccr:rrissicn ccments, regaired by 42 U.S.C.10134(A)(1)(D), siculd build upon previous Ccrv.issicn ecments during the scoping rwess and en the DEIS. Under the 2kTA - and the prcvision was ret charged by the th7AA - the FEIS might ret 5

f .: .

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be used in o licensing proceeding, since either the Pre 2ident or the Congress J oculd decide not to apprcve the Secretary's raccrrendation, in Weh case the 1

cite would not be subnitted to the Nr for licensing.

1 l 'Ibe proa-ble states (p.16138) that the NRC will be a comenting agexy, l but the pro;osed rule does not adequately describe that role as an active, l'

l involved ccreentor. Ch the cent.rary, as described in the prW rule, the Cerrnission would effectively not be a ocr:rnenting agerry at all times in the NEPA precess, because it w:cid "merely ... prcwide its arrants, frcn tine to tine, with respm to erviromental inpacts failling [ sic'J within its jurisdiction or areas of expertise" (Id. ) 'Ibe !MPA expanis the roles of ctates and Indian tribes in order to "prcrete public ecnfidence in the safety of disposal of such wste and spent fuel". 42 U.S.C.10131(a)(6). Ext in additicn to the expande$ role for affected states and tribes and p211c involvement, the Cerr.ission should also fulfill its role of prcuading expert analysis of public health and safety assues throughout DOE's NEPA process.

. ^

l All parties expect that the Ctrrnission should use it.s expertise throughout the q.S 102A process. ,

The Ctrrnission should also develop a nochanism to directly receive coments frcn interested parties thrcughout the NEPA process as well as have a method to re/les coments received by IDE on NEPA issues.

As mentione$ ah:ve, the Ccurnissicn should be an active participant in the ccoping process, in crxrenting exhaustively on the DEIS, and in reviesing the EIS. 'Ihe NE's views en the EIS will certainly be requeste$ by Congress thould a retice of disapprcual be filed by the affected state or tribe and will also necessarily be a part of the licensing proceeding. Derper, such views will undoubtedly be re/leed by the court of appeals shld a challenge to the adequacy of the FEIS be filed.

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m__..- __-__-_-..___m.-_aa m____._ __ A__ _ . _ _ _ - _ _ _ . _ . _ _ _ _ _

B. hic's review of IDE* s EIS alone with th2 licenso application D~E's FEIS is required to be part of the license application. In addition to reviewing the FEIS and the Safety Analysis Report (SML), the NBC should ccrpare the SUL to the FEIS to ensure that the two docme.nts are rot inconsistent. Differences in the docments could require revisions to the 54R or supplementatie ;f the FEIS. ,

Mtile it, is true that !kTA has m:dified the NEPA requirerants for geolcgic repositories, neither the thTA, nor the WPAA, require that Yucca M:entain be licensed. AM, with the significant limitations roted in the prearble, the thTAA assurnes thorough NEPA review aM ccrpliance and full licensing consideration of all relevant issues, primarily, but rot exclusively, radiological safety issues.

~

Additionally, Cbrgress is now considering a multi-million dollar Licensing Support System (LSS), which, as we urderstand it, will ecntain many documents related to both envirconental and radiological safety issues. If N'b Corgress really inteMed to severely limit the NIC's licensing review, it wocid have specifically said so and would not be appropriating substantial sums to ensure that all applicable documents are ircluded in an LSS. _

C. Scenarios for NEPA review rot considezad ,p3 the proposed rule Perhaps because of the excepticns cn the rcrmal requirements for a FEIS, the proposed rule seems to assume that the proposed rule will be used cnly for a FEIS subnitted with the Yucca Mxsntain license application. 'Ihe rule prestrnes that the adequacy of the FEIS will be challenged in Court and so that all issues except radiological safety will be decided by the Cburt, rot the Ccanission. M: wever, there are several scentrios that would bring about a different situaticn regarding adopticn of the FEIS, Wich seem rot to have been considered in the proposed rule.

7

W

1) De only ad',udictticn of tha adequacy of the EIS is by the Ctrrission. 'Ihis situation could arise for a site chosen bl/ a Neg:riator,

~

cince there might not be any judicial re/lew of that FEIS because the affected state or tribe would be precluded frcrn challenging the EIS. Since the EIS would be prepared for the Ccranission's licensing, it could nce have been challenged prior to its sdrnittal to the Ctranission. .

2) 2ere is rc legal challenge to the EIS, but rather parties litigate '

all such issues during the licensing proceeding. me Cormnission nust then 4-13 review the FEIS in detail because its final decision cn adopting the FEIS is also subject to judicial review, pursuant to 42 U.S.C.10139(a)(1)(A).

3) B:th envircrriental ad radiological safety issues could be included in judicial re/iew of the FEIS. In the preamble (p. 16139) the propcrsed rule argues that radiological safety "ic entrusted solely to the Caanissicn," but a O' party to NEPA litigation rey well contest radiological safety issues cspecially since the FEIS must include performance assessment issues. Sb a court cceld reke-findings abcut environmental and radiological safety issues. _

4) A Court concludes that a FEIS is inadequate cn any of a ntraber of grounds. he Ctrrnission could not then asics* that FEIS and would have to require a supplernent. In such a case, the Ccranission would have to fully h-l[

evcluate all issues decided by the Court to determine the inpacts of the decision an the validity of the license application.

5) A Cburt decides to delay its decision cn the adegaacy of the FEIS pending the Ccranissicn's findings as to its adequacy in the licensing proceeding. In cases Where parties challenge the adequacy of the FEIS, a k _,/g court might decide to delay its final decisicn until it reciews the -

Cannission's decision es as to take full advantage of the Ccraniss' ion's i Cxpertise. -

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1

.6): ' A Court does not naka its decisicn before the Q:mrdesion maked its' licensing decision. Since the IDE expects the Cturdssion to taka re nore than three years to grant the construction license (as stated in the Mission Plan, Project Decision Schedule, and Draft 1988 Mission Plan Amendment), it is gaite h-/1

. possible that a Oxrt would not have issued its final order. Fbr exanple, the-9th Circuit Cburt of Appeals has had challenges to the DOE's siting guidelines cince Decereber 1984. Se praa.tle assumes that the Cburt will make its decision before the Cbruidssion acts.

E.c proposed rule should be revised to reflect the various alternative scenarios that have not ken adequately included in the proposed rule. Se varius scenarios reqaire a nere flexible approach to reviewing and adopting the IIIS than the cne ecnterplated in the proposed rule.

D. . Prejudice g intervenor ImMes w h e prea.tle cf the proposed rule states:

The preclusive effect of a prior judgment sustaining DOE's enviremental impact statement would not necessarily be limited to the petitioner of racerd in that proceeding. It can be argued that those who were represented by that petitioner would also be barred frcrn litigating the . issue in a subsequent action. (p. 16139) he acecrnpanying footnote further indicates that " members of the public" Wo had been represented by state officials "might be precluded, to the same ii d 15 extent, from raising the issues anew." (Id.)

he Cbrar.issicn shocid not rcw be limiting the issues that a party can I

raise in the licensing proceeding. he Ormission cannot finally determine l Wern all the parties will be at this time. And it is certainly inappropriate to prematurely limit What issues parties can raise. It should be noted, howwer, that the Ctrardssicn's rules for intervention (10 CFR 2.714) do rot preclude individual citizens or citizens groups from beccredng parties in the .

9

licensing proceeding, even though the effected Stata petitioning for intervention will be a party.

2e cement and focr.:x:te related to limitations on issues should be -/ h ctriken frczn the preamble because it is inappropriate ard premature to reake cuch jtdgments at this time. ,

IV. CrtC.USIot; 2 e proposed rule is seriously flawed in its understanding of the 1 Ccrmissicn's NEPA cbligaticns and in seriously reducirs the nts:bar of scenarios being considered for adopting the FEIS. hat range does not include all of the possibilities expressly atrJorized by the tMPAA, nor does it reflee a realistic rarge of likely scenarios for action leading up to the NIC's decisicns. Be rule should be revised to take into ocnsideraticn these issues and then reissued for p.:blic cxxrent. Wrecuer, the presosed rule chould also be exparded to descrite the Ccrrissicn's NEPA role prior to the cub-ittal cf the IIIS in the licensing proceeding.

e e

e 10 l

l

JOHN J. KEARNEY $" nor %ce Prescent 00(WETED U5MC EDISON ELECTRIC l

mneates I U T E '"' =' ' ' =i= as s -4 ess2 111119 n Street N W wunnnn D 0 20c36-3691 F ~ ~

Tot (202) 7764430 August 4, 1988 Mr. Samuel J. Chilk

~

u ear Regulatory Commission DOCKET NUMBER ykMhk PROPOSED RULE Nushington, D.C. 20555 53FAXol.3)J Attention: Docketing and Service Branch

Subject:

Proposed Rule on NEPA Review Procedures for Geologic Repositories for Hich-Level Waste (53 Fed. Rec.

161311 Daar Mr. Chilk:

On May 5, 1988, the U.S. Nuclear Regulatory Commission (NRC) published in the Federal Recister a proposed rule to codify the NRC's responsibilities under the National Environmental Policy Act of 1969 (NEPA) in connection with the licensing of the geologic rapository for high-level radioactive waste. Section 114 (f) of the Nuclear Waste Policy Act of 1982 (NWPA), as amended by the Nuclear Waste Policy Amendments Act of 1987 (NWPAA), provides that the NRC, in connection with the issuance of a construction authorization and license for the geologic repository, shall adopt, to the extent practicable, the Environmental Impact Statement. (EIS) prepared by the Department of Energy (DOE). Section 114 (f) further provides that the adoption "shall be deemed to also satisfy the rosponsibilites of the Commission under the National Environmental Policy Act and no further consideration shall be required, except that nothing in this subsection shall affect any independent responsibilities of the Commisssion to protect the public health and safety under the Atomic Energy Act of 1954."

The Edison Electric Institute (EEI) and the Utility Nuclear Waste Management Group (UNWMG) appreciate the opportunity to submit ,

i comments on the proposed rule. EEI is the association of the l nation's investor-owned electric utilities. UNWMG is a group of forty-five electric utilities providing active oversight of the implementation of the federal statutes and the regulations related I to radioactive vaste management. Together, EEI/UNWMG represent the anjority of the holders of contracts with DOE for disposal of spent nuclear fuel under the NWPA. To date, electric utilities have paid over $3. 3 billion into the NWPA Nuclear Waste Fund. These funds are collected from electricity consumers. It is extremely important to electric utilities and their customers that the repository licensing be carried out in an efficient and cost-offective manner.

l _ --__--_----___---___---o

Mr. Samuel J. Chilk August 4, 1988 Page 2 In general, EEI/UNWMG support the approach taken by the NRC in its proposed rule. We agree that, as stated in the supplementary information acco=panying the rule, the NWPA " reflects a judgment that the Commission is to concern itself primarily with issues of hoalth and safety rather than the other kinds of issues that are ordinarily considered in the context of reviews under NEPA."

congress intended, through passage of NWPA, to amend substantively the requirements of NEPA as they apply to the high-level nuclear waste program. The NWPA legislative history is clear that Congress intended to limit the scope of the NEPA review for the high-level hf waste repository by excluding issues such as the need for the repository, its timing, alternatives to geologic disposal, .and alternate sites and also to avoid NRC's duplication of the NEPA revimws carried out by DOE. The NRC's responsibility under NWPA is to address and resolve radiological safety issues in the repository licensing pursuant to the NRC's mandate under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, as amended. .

Notwithstanding EEI/UNWMG's general support for the NRC's overall approach, we have a number of concerns that are delineated in *n enclosure to this letter that we would urge the Commission to consider. As a general principle, we believe that regulations should be stated as clearly and unambiguously as possible so that all parties affected by the regulatory process (i.e., licensees, NRC staff and the public) will be able to understand better the intent and effect of the regulations and comport their actions accordingly. The comments in the enclosure are provided with that goal in mind.

We appreciate this opportunity to respond to the Commission's notice of proposed rulemaking. We would be pleased to respond to any questions or otherwise be of assistance to the Commission as it addresses this matter, sincerely yours, J J ,earney JJK/mif .

Enclosure

. . a .

Enclosure EDISON ELECTRIC INSTITUTE and UTILITY NUCLEAR WASTE MANAGEMENT GROUP l

Additional Comments on Proposed Rule on NEPA Review Procedures for Geologic Repositories for Hich-Level Waste (53 Fed. Rec. 16131)

EEI/UNWMG agree with the.NRC that Congress, in passing the

-NWPA, substantively modified the requirements of NEPA as they apply o the high-level -nuclear waste program. Although EEI/UNWMG support the general approach taken by the NRC in the proposed rule, we. strongly urge the NRC to incorporate the following com=ents when it issues the final rule.

~

O Procedure to Determine the Practicability of EIS Adoption Proposed section 51.109 establishes a mechanism to determine whether it is practicable for the NRC to adopt DOE's EIS. The proposal would have the NRC Staff present.its position on the practicability of adoption in the licensing hearing. Any other party to the proceeding could then submit contentions orguing that adoption was not practicable, which contentions would then be decided by the presiding officer, i.e., the Atomic, Safety .and Licensing Board designated to the hearing proceeding.

g,y Our major concern is that these practicability issues, as ,

contentions-in the repository hearing, will~ inevitably interfere with the primary focus of the proceeding, which is to address issues affecting public health and safety. These practicability issues should be resolved by the commission, outside the adjudicatory arena. There is no requirement that these issues be handled as part of the adjudicatory hearing process, either in NEPA, NWPA, NWPAA, the Atomic Energy Act, or the Energy Reorganization Act. To add another level of unnecessary administrative procedure would be inconsistent with the schedule constraints that Congress has imposed on the repository licensing process. s

~

o Timine of Practicability Determination Proposed section 51.109 contemplates that the NRC Staff I

would not present its position on whether it is practicable to odopt DOE's EIS until there is a proceeding. The proposed rule g'2/

olso contemplates that the final determination on adoption would not occur until after parties to the proceeding had been odmitted. The statutory framework of the NWPA does not require that the adoption determination avait the commencement of the adjudicatory hearing. Indeed, NRC will best be able to achieve the three-year timetable for issuing its final decision on the

issuance of a construction authorization, NWPA section 114(d), if the adoption determination is made prior to the hearing process (and outside the adjudicatory arena) . It would be unreasonable to wait until parties have been admitted to the proceeding before loarning whether NRC would have to prepare its own EIS. The NWPA ochedule should allow adequate time for NRC to make its determination before the start of the hearing.

Under NWPA section 114 (a) , DOE must make the final EIS l cvailable at the same time as it recommends approval of the g repository site to the President. The draft EIS will have been i ovailable well before that time. The president must then submit j the recommendation to Congress (ref. NWPA (as amended) section 114 (a) (2) ( A) ) . Aminimumofsixtydayswouldthenelapsebeforel, the recommendation becomes effective (ref. NWPA section 115(b)). l g.S And an additional period of time, not to exceed ninety days, would then occur before DOE submits the application to the NRC. ll Several more months would likely elapse before the parties to the 3 proceeding have been admitted. Thus, from the time that DOE's ;

draft EIS is formally transmitted to NRC until the adjudicatory !

proceeding gets underway, the NRC would probably have six months:

or more to decide whether, and to what extent, it is practicable to adopt the DOE EIS. i >

i There is no justification to delay the decision pending the4 Otart of the adjudicatory hearing. Nor would NRC lose the ability to obtain public input on its determination by making jl that determination promptly. At the time that DOE issues itse draft and final EISs, NRC can solicit comments from interested!

parties on the practicability of NRC's adoption of the DOE EIS. 5 NRC would thus be able to provide the state and publicI participation generally contemplated by NWPA section 111 (a) ( 6) ,

and at the same time avoid needless delay and unnecessary {

complexity. .

o Judicial Review 1 NWPA specifies the time period and manner in which challenges to DOE's implementation of NWPA must be filed. The NRC licensing process should not provide an independent avenue for a legal challenge with respect to the same issues. The NRC's ovaluation of the preclusive effect of Section 119 of the NWPA comprehensively and appropriately addresses that issue. However, come statements in the supplementary information to the proposed rule could be read to imply that the NRC might allow its fd docision on adopting DOE's EIS to be stalled during the pendency of litigation on the EIS, or even during the 180 day period provided by the NWPA for filing legal challenges to DOE's 10suance of the EIS. Such delay would make it difficult, if not impossible, for the NRC to satisfy the mandate established by the U.S. Congress for the NRC to complete the licensing of the repository within a three-year period. .

2

Moreover, there is no reason for the NRC to delay its I ,

process. Fro = a legal standpoint the NWPA imposes no obligation (

cn the NRC to stay its licensing proceedings pending review of DOE's EIS. It does not even require the President or Congress to defer action on a Secretary's recommendation of site approval in  !

the event of a legal challenge to the EIS. If the. site >

designation is permitted to take effect, the Secretary is recruired to submit an application for construction authority to the NRC within 90 days. Again, there is no provision for a stay '

of the orderly process set forth in the NWPA in the event that the EIS becomes subject to litigation. From a practical standpoint the NRC itself has stated that ". . . a final judgment i of radiological safety can only be made at the conclusion of the adjudicatory licensing process." The mere fact that the DOE EIS has not emerged from judicial scrutiny at any particular point in the process is no grounds for the NRC to halt that process pending final resolution of legal challenges to the DOE EIS. The hearing process itself will not entail "any irreversible and 5-i irretrievable com=itment of resources" under NEPA so as to warrant a halt of the process.

The NRC should, therefore, add language to the final rule explicitly stating that the licensing proceeding, including the determination of practicability, need not avait the outcome of any litigation as to the adequacy of DOE's EIS. Should a court subsequently rule that the EIS is deficient, the NRC can appropriately revisit its practicability determination or take auch other actions as may be necessary. ,

o Satisfaction of NEPA Requirements T Congress, in enacting the NWPA and NWPAA, significantly modified what would have been the nature of DOE's and NRC's responsibilities under NEPA as they apply to the licensing of a high-level nuclear waste repository. NRC's health and safety responsibilities under the Atomic Energy Act remain unchanged.

NWPA expressly provides that to the extent the NRC adopts the DOE EIS "no further consideration" by the NRC is required under NEPA.

The NWPA unequivocally makes DOE the lead agency to satisfy NEPA requirements pertaining to the high-level waste repository. NRC correctly concludes that "[t]he Nuclear Waste Policy Act of 1982 reflects a judgment that the Commission is to concern itself primarily with issues of health and safety rather than the other kinds of issues that are ordinarily considered in the context or e roviews under NEPA." The final rule and accompanying 55 supplemental information should be modified to re-emphasize that the NRC's responsibility to address and resolve radiological cafety issues in the licensing hearing is not to be burdened with continued analysis of and challenge on NEPA-related matters.

3

y ]

[ . .

. ..o. Discieline of the Licensint:r Process ,

L It is - in the interest of the parties to the licensing proceeding (i.e. , DOE, NRC' and the public) for the NRC to adopt, )

consistent with. its formal rules, appropriate protocols and management-discipline in the licensing proceeding to ensure that

'losues are properly _ evaluated and a timely decision rendered.

To provide necessary administrative cm.trols over the licensing process for the NRC to meet the three-year licensing schedule, the-NRC should modify Section 51.109 to provide a time period 3 .[,

within. which the NRC staff must present its position on the practicability of adopting the DOE EIS and the filing of any nocessary supplemental information, for example, 90 days after, publication of the EIS. In the event that the NRC fails to adopt our comment to remove the practicability determination from the adjudicatory hearing, the-rule should include a similar provision with respect to the time by which contentions regarding the 5]

practicality of the DOE EIS must be filed, for example, the date on which initial contentions are due or 90 days after EIS iosuance, whichever is later. ,

o Practicality of Adoetion by NRC of the' DOE EIS ,

As the NRC explained in its supplemental information to the proposed rule, "[t]he adoption of the statement does not necessarily mean that NRC would independently have arrived at the Pg came conclusions on matters of fact or policy." (53 Fed. Reg. at 16142). Rather, the NRC recognizes that it should defer to DOE's j udgr.ents on matters not related to safety findings that the '

Commission must make under 10 CFR Part 60. It would be appropriate for that important concept to be embodied in the rule itself. --

To eliminate any possible misunderstanding, the NRC should" clarify in its final rule that the criteria to be used in ovaluating the extent to which it is practicable for the NRC to cdopt the DOE EIS are. those provided in NEPA and subsequent judicial- interpretations. The NRC should clarify that it gi intends to make its own NEPA-mandated findings, including an independent balancing of relevant factors, SalX to the extent that it does not adopt the DOE EIS (i.e., because of new information or new considerations) . Such findings would apply only when the NRC itself must prepare an EIS or.a supplemental EIS. ,

e e e * *

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gg 1E ALE -4 P5:30 Yo'cOddi.n'h!

MW" Mr. Samuel Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 .

Attn: Docketing and Service Branch

Dear Mr. Chilk:

In accordance with Section 309 of the Clean Air Act, the U.S. -

Environmental Protection Agency (EPA) has reviewed the U.S. Nuclear Regulatory Commission's proposed rule for NEPA Review Procedures for g)

Geologic Repositories for the High-level Waste (53 FR 16131). EPA believes that the proposed rule reflects the appropriate requirements under the Nuclear Haste Policy Act, as amended. We do not have any further corments to offer.

If you have any questions, please contact Dr. W. Alexander Williams (382-5909) of my staff.

Sincerely,

.  %// J' R chard E. Sanderson Director Of fice of Federal Activities b

O e

l

CLUB 4BF 30 Pennsylvania Avenue, S.E.. Washington, D 3

9  :

'88 E -8 All *12 August 2, 1988;

• f ty. . s ,

Samuel Chilk U0di"Ou. t i il :

'Sscretary- .

BTdN.'

11.5. Nuclear Regulatory Commission' Vashington, D.C. .20555 Attn: Docketing and Sevice Branch Ro: Proposed changes to.10 CFR Parts 2, 51, and 60, NEPA Review Procedures

-for Geolorie Repositories for Hith-I.avel Vaste.

To Whom it May Concern, This letter contains the comments of the Sierra Club on the Commission's proposal to change its procedural requirements and obligations in regard to the preparation of NEPA documentation in connection with the design, development, construction, and permittin5 and licensing of the. nation's first geological repository for commercial and defense high-level radioactive vaste.

The. Sierra Club.is a national conservation organization representing more than 450,000 members. We have been directly involved with the federal effort to institute a system for the storage and disposal'of nuclear waste materials for over 15 years. We participated extensively in the legislative d: bates which led to the enactment of the Nucletr Vaste Policy Act of 1982

'(hvPA), and the subsequent amendments to that Act. Ve have also ,

participated at various levels of the implementation of the Act. including I cur recent participation in the Commission's negotiated rulemaking on the subject of the 1.icensing Information Support System for a H1.V repository.

After reviewing the Commissio'n's proposed changes, we must express our. s concern that they amount, in total, to a radical abdication of the l Csamission's traditional and necessary responsibility to assure the safety of the public and the protection of the human environment in the process of determining the licensability of the nation's first HLV repository. Ve }/I

bslieve that this abdication is both unwise and contrary to Congressional L

intent, and that, if carried through as proposed, it will result in a severe loss of credibility for the Commission in its key role as the ultimate licensing authority for this unprecedented project.

We have also reviewed the letter of comment submitted to the Commission on -

this issue by the Environmental Defense. Fund (dated 8/2/88), and we endorse cnd wish to be associated with the conclusions reached in the EDF letter,. b 2.

including each of the seven numbered specific criticisms made of the Csamission proposal.

Vo urge the commission to reconsider this effort to relieve itself of its  :

NEPA obligations, to withdraw the proposed rulemaking, and to propose a more l

l

'When we try to pick out anything by itself, we find it hitched to eve g else in the universe?]ohn Mw f National Headquaners 730 Polk Street. San Francuco.  ; ornia 94109 (415) 776 2231

.-. - -____-_-_--__-__1

P

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j

. . l o . modast cot of preesdural amanda2nts whish will ecnform ths. Csamicsion'o l 1

-proceduras es nacossery to.tha dictates'of.the NVPA as amended, without

. overthrowing its responsibilities to accomplish a.NEPA' review of the full i ecope of DOE's proposed action and the impacts. associated with it as a basis

'for-the Commission's. licensing review.

As the Federal agency with the. responsibility to make the ultimate

'd2 termination of the licensability.of the facility proposed to be-developed L by.the. Department of Energy.(DOE), the Commission is clearly responsible for

framing.the issues ~for which~ elaboration and decision is necessary to form icn adequate basis on which to grant or reject DOE's application. for a-caterials' license (and by implication, for a construction authorization).

The drift of the commis= ion's proposal, unfortunately, runs in' exactly the

~

.epposite direction'. That is, under these changes,*and under the dubious theory that the. Congress has implicitly crowned DOE as 'the lead agency" for c11 parts of the.MLV repository ' development and licensing effort, the Ccamission would unilaterally charge DOE with the responsibility to frame the issues in advance.of, and as,a basis for, the Commission's own licensing

proceeding. .This includes an extraordinary invitation (53 FR 16141,.

• Subsission~of Environmental ~Information,' proposal at 10 CFR 51.67), for DOE to present evidence and argument to the Commission as to the g. 3

-consequences of license denial. Although the Commission'eust certainly Lconsider the. consequences of license. denial in making its' final

~ determination,;and.although DOE may very well provide'its views and-partinent information to the Commission, it is hardly the proper role of the applicant' agency:to provide the analytical basis on which the Commission

' bases its-consideration. Nor is it proper for the Commission to place exclusive reliance on an applicant's analysis of such issues. This is particularly true where Con 5ress;has limited the Commission's consideration of alternatives to the proposed action.  ;

lt would be extremely unfortunate if the Commission were to be diverted, in its decision making process, from its legally required duty to provide.for the public health ~and safety and the protection of the environner.: AD seecifie rerard to the erenosed action, and instead to implicitly embrace a pq

.dscision process in which the real standard is not radiological safety at all -but rather whether, on the balance of evidence presented in an environmental document prepared entirely by the applicant, the permitting and licensing of the proposed action is somehow "better" than the status auo I AnLn. .,

Although the Commission cloaks its proposed changes in a detailed and rather contorted reading of the legislative history of the NVPA, the actual bases

.for the proposal are reducible to three: the specific restrictions on the scopec oflthe: EIS, and particularly its discussion of alternatives, stipulated in the NVPA, Congress' general injunction to the Commission to cdopt'the' DOE EIS 'as'far as practicable,' and the Commission's ad hoe (and presumably) clairvoyant judgments about the course of an essentially -

unprecedented environmental review and licensing proceeding.

There'is no question that Congress did specifically limit the consideration

'of alternatives in the DOE EIS. NVPA section 114(f) declares, essentially.

-that' certain issues are outside the scope of Commission review, not because

they would not normally fall within the Commmission's jurisdiction, but b:cause they have been decided by the Congress itself. These issues are 1) the need for a repository; 2) alternatives to deep geologic storage; 3) the timing of initial availability of the repository; and 4) alternatives to the Navada site, if that site is recommended by DOE.

~

Unfortunately, beyond this most basic point, the Commission's tortured rocding of Congressional intent has led it to propose a narrowing of its environmental review and protection responsibilities way out of line with common sense and the language of the Act. Congress' direction to adopt the DOE EIS *to the extent practicable" was clearly intended to avoid the -

unnecessary duplication of effort of preparing two entirely separate 7-b environmental statements on the same facility. By no reasonable reading can it be interpreted to relieve the commission of its fundamental responsibility to pass on the environmental adequacy of DOE's proposed action.

~

Tha Commission's proposal ignores this fact, assumes in advance the adequacy of DOE's EIS, creates an arbitrary and unwise presumption in favor of cdopting DOE's EIS, and raises unnecessary hurdles in the face of any party which seeks to challenge the adoption of part or all of the document.

Perhaps the most glaring defect in the proposed rule is the standard it erocts for the presiding officer in making the determination of the practicability of adopting DOE's EIS (proposal at 10 CFR 51.109 (c)).

Nowhere here is there any indication that the presiding officer may decline to adopt the EIS if it, or any part of it, is inadequate, incomplete, in arror, or otherwise deficient. The presiding officer may not, under this ,

preposal, decline to adopt the DOE EIS, even if it has been found legally insufficient, unless "the action proposed to be taken by the Commission differs" from the action proposed by DOE, and unless this difference lg

'significantly impacts the human environment." ,

Aside from the problem of what is meant by a " difference" between the opplicant's proposed action and that of the Commission, this standard seems to erect an impossibly high hurdle- for rejecting DOE's EIS, and, concomitantly, drastically and unacceptably abdicates the Commission's cuthority and obligation to assure the protection of the public health, safety, and the environment in discharging its licensing responsibilities.

Ths Commission would be better off withdrawing this proposal and proposing a rule which reflects the changes in procedure necessary under the NVPA without giving away the basic authorities and obligations on which its licensing role is founded.

Sincerely,

? -

(I M T r &

Brooks B. Yeage Washington Represen stive l . .

l . .

DOCKEi fiULiBER r?0 POSED RULE E .2 M o S

d m-Department of Energy FR.n Gb [

P Wasmngton. DC 20585 pop-[iED V ,

cent s AUG 2 4 1988 1,8 Am 31 P4 :13 Sacretary U.S. Nuclear Regulatory Commission v" F,5 .if, k' '. y .,','

Washington, D.C. 20555 RCm .y. ., ,7 ~

"'"~

Attention: Docketing and Service Branch Dear Sir The Department of Energy (Department) has reviewed the proposed

-omendment to 10 CFR Part 51,. published on May 5, 1988, concerning Nuclear Regulatory Commission (NRC) review procedures for -

geologic repositories under the National Environmental, Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA). With respect to most topics covered by this proposed rule, the Department is in agreement with NRC statements and interpretations of requirements under_the NEPA and the NWPA. The Department appreciates the offorts made by the NRC to help clarify this area of the

-regulations.

In its review, the Department identified certain concerns with a number of aspects of the proposed rule. The Department's concerns focus on five areas: first, the NRC position on cooperating versus commenting agency status with respect to the Department's environmental impact statement (EIS). covering the geologic repository; second; the requirement that the Department supplement the final IIS to satisfy NRC obligations under NEPA:

third, the indication that multiple EISs may be necessary; fourth, potential confusion in the interpretation of HRC's obility to take action on a license application during litigation on-the Department's EIS: and fifth, preservation of the distinction that a construction authorization is not a license under the Atomic Energy Act. Our specific comments are included in the enclosure to this letter.

We appreciate the opportunity to comment on these proposed revisions. please feel free to contact Ms. Linda Desell (586-1464) of my staff or Mr. Steven Frank (586-1979) of the Office of NEPA Project Assistance about any questions.

Sincerely,

/

db= As,f l

Charles E. Kay, g'e ting Director office of Civilian Radioactive Waste Management Enclosure M .S /. 0 ,

8009130273 890824 fM R .R C3 -- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___

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l ENCLOSURI DEPARTMENT OF ENERGY COMMENTS ON PART 51 J l

1. COOPERATING AGENCY ,

The Department of Energy (Department or DOE) believes that the NRC can maintain its independent role and most effectively contribute to the process under the National Environmental Policy Act (NEPA) by becoming a cooperating agency. DOE recognizes that the NRC has an important independent review and licensing authority in the siting of a repository, and that this independence must be. maintained. l DOE nevertheless believes that it is appropriate under section 1501.6 of the Council on Environmental Quality (CEQ) regulations to suggest that the NRC, which has licensing ;g I authority pursuant to the Atomic Energy Act (AEA) and Nuclear ib'i Waste Policy Act (NWPA), become a cooperating agency in the i preparation of the Department's repository EIS. The i cooperating role described in section 1501.6(b) is not l '

inconsistent with the NRC's independent authority, and the ,

clarification in the " Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations" (46 FR 18026) recognizes the role of licensor and licensee and provides for such independence with respect to scope, level of detail, and adequacy in meeting the needs of the cooperating agency with- jurisdiction by law.-

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2. SUPPLEMENTAL EIS

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DOE is concerned with the proposed requirement in the rule to ,

have DOE " supplement" its final EIS (FEIS) in order to satisfy NRC's NEPA obligations. Any recommendation to the President made by DOE under section 114 of the NWPA is a major Federal action and such recommendation is to be accompanied by an EIS. If, following completion of the EIS, DOE decides to revise the recommendation by making a substantial change in the proposed action that is relevant to environmental concerns, or if significant new circumstances or information relevant to environmental concerns bearing on the proposed action or its impacts becomes available, then DOE would prepare any requisite supplement in accordance with applicable CEQ regulations implementing NEPA. h[L However, subsequent to the President's decision, the NRC has a separate responsibility under NEPA relative to its decision I whether to grant or deny the Department's applicat. ion for a l license to receive and emplace high-level waste. In '

developing its EIS the NRC is to adopt, to the maximum extent

~

practicable, the DOE EIS submitted as part of the i Department's recommendation to the President. DOE believes that it is inappropriate and contrary to the CEQ scheme of

1 4 2

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agency assignment of responsibilities for DOE to undertake the supplementation of its completed EIS in order to satisfy NRC's separate NEPA responsibilities. DOE also believes that, just as it is appropriate for NRC to be a cooperating f - 7, agency in the preparation of DOE's EIS, it would be equally appropriate for DOE to be a cooperating agency in the preparation of any NRC EIS or any later supplements required for the NRC to meet its NEPA obligations.

3. MULTIPLE EISs In the preamble,.at 53 FR 16132, the NRC indicates that multiple EISs may be necessary in considering the license application from DOE involving high-level waste disposal.

The DOE does not agree that multiple EISs will be needed because DOE will scope the EIS, with public and other agency participation, to assure that all reasonable alternatives relative to the siting, construction, operation and 3

decom=issioning of the proposed repository will be contained in the EIS. NRC's participation as a cooperating agency would greatly facilitate this objective. It is the Department's position that the NEPA, the NWPA and the CEQ regulations call for a single EIS and the Departme'nt does not believe that any multiple EISs are necessary.

4. JUDICIAL REVIEW .

In the preamble discussion, at 53 FR 16142, the NRC state) that "...no action will be taken by the Commission until necessary documents have been filed... with the Environmental Protection Agency. NRC will not take action concerning the proposal which would have an adverse environmental impact until a record of decision is issued." The preamble further states, at 53 FR 16144, that "Because the EIS must conform to statutory requirements, and because its completeness would have been subject to challenge in court prior to filing with the NRC, a completeness determination by NRC at the time of f L]

docketing is unnecessary..." One reading of these statements is that the NRC is proposing to suspend work on the license application until the entire judicial review process is complete. This would be decidedly inefficient, and would potentially cause major delays without providing additional environmental protection beyond the normal process. It would be consistent with normal operating procedures and far preferable from a programmatic perspective for the NRC to make a prima facie decision that, absent a reversal by the Court of Appeals, the EIS is judged to be adequate, and to process the license application. There is no need for the NRC's acceptance review of the Department's EIS to be on the

((gegsjggg((g{ga}o path. Clarification on NRC processing

1 3

5. CONSTRUCTION AUTHORIZATION NOT A LICENSE

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Footnote 1 - at 53 FR 16134. DOE recognizes the statutory 1anguage of the NWPA reference to a construction authorization and NRC's own interpretation in the text of this document that a construction authorization under the NWPA is not a license under the AEA. DOE affirms this interpretation which is reflected in the AIA, and opposes Q{

3-any erosion of this distinction by the NRC. Historically, the NRC and its predecessor, the AEC, has affirmed that a construction authorization, unlike a construction permit, is -

not a license under the AEA. DOE will continue to interpret the term " construction authorization" accordingly.

6. Sections 51.67(c), 51.109(c), and 60.24(c) should be amended to add a qualifier to reflect that a supplement may be required if DOE makes a substantial change, not previously gg,v considered in its EIS, that is relevant to environmental concerns, etc.

7. Proposed section 51.67(d) requires the Department to inform the NRC of the status of a: ; 'egal action taken against the repository EIS and to submit c<riodic updates. This requirement see=s unnecessary since NRC will already have this information available to it through the normal contact of its own General Counsel with the Departmen~t of Justice. ].}

Further, such information is normally readily available in weekly trade publications. This requirement should be deleted.

L B. The Department also notes that section 113 of the NWPA was -

inadvertently misquoted at the bottom of column 1, 53 FR gy 16135. The phrase "to the maximum extent practicable" was b-0 omitted in describing the manner in which DOE must conduct site characterization to minimize significant adverse environmental effects.

9. At 53 FR 16139, Column 3, NRC points out that the DOE action is the recommendation to the President of the Yucca Mountain site for repository development. As mandated by NWPA I section 114(f), and also expressed in CEQ regulations 10 CFR section 1502.5, this recommendation must include an FEIS gg prepared by DOE. 3- I NWPA Section 114(f) also mandates that NRC shall (to the extent practicable) adopt this EIS in connection with the issuance of a construction authorization for the repository.

Thus, the use of the same EIS for the two agency actions (to the extent practicable) is the clear intent of the law. The DOE concurs in this position. ,

4

10. The NRC concluded, at 53 FR 16136 that the NWPA "provides that adoption of the EIS shall be deemed to satisfy the NRC's NEPA responsibilities 'and that no further consideration shall be required.'" NRC also notes that this provision " appears to counsel against the wide-ranging {,jo independent examination of environmental concerns that is customary in NRC licensing proceedings." This is consistent with the Department's reading of the NWPA. Speci fically, this concept is included in section 51.67 of the proposed rules, which state that the FEIS shall be submitted in lieu .

of an environmental report.

11. At 53 FR 16136 the NRC states that, if the DOE EIS is judged ~,-

to be adequate, "further litigation would be precluded under the doctrine of collateral estoppel." Also, the NRC states that "if an issue bearing upon the adequacy of the EIS could have been raised in a timely manner, but was not, the

}f, y deadline for commencing action set out in section 119 operates to bar a challenge at a later date in NRC licensing proceedings." The DOE agrees with this interpretation. -

12. At 53 FR 16138, the NRC states the position that "The approach being taken by the Com=icsion...is that the NWPA and the principle of res judicata obviate the need for an g~ I 2-entirely independent adjudication of the adequacy of the EIS by this Agency." This is elaborated upon at 53 FR 16139.

The DOE agrees with this interpretation.

13. The Department agrees with NRC that adoption of the DOE EJS -

should not compromise the NRC's independent responsibilities I under the Atomic Energy Act. $f.: 3

14. The Department is in agreement with the NRC with respect to . .

several statements concerning the content of the EIS and the j role of NRC:

"that the Commission's role should focus upon radiological safety, with an independent review only if there is significant and substantial new information or new consideration...;" (53 FR 16137) {gg i

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"that the EIS must address the environmental impacts of construction and those of performance..." (53 FR 16141);

and In addition, NRC's requirement in the proposed new Section l 51.67(b) that the FEIS must " include, among the alternatives .

under consideration, denial of a license or construction authorization" by NRC follows directly from CEO Section 1502.14(d), which states " Include the alternative of no

j. o .-

i 5-action." .The Department concurs.with this requirement and has already pinnned to.i'nclude the no action alternative within the secpe of the EIS. .

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EXECUTIVE OFFICE'OF THE PRESIDENT . . . , . . . . .

COUNCIL ON ENVIRONMENTAL QUAUTY * *j .

722 JACMSON PLACE. NW WA&MINGTON. DC 20SC3 E SEP 26 20:42 1 September 20, 1988 ;T* .. -

uGDv. . .. ,j .

l James R. Wolf, Esq.

Office of the: General Counsel 00GETiTuM ER Nuclear Regulatory Commission Washington, D.C. 20555 'DROPOSED ElRE g

bD *feo jg3[

Dear Mr. Wolf:

The proposed regulations developed by the Nuclear Regulatory Commission (NRC) concerning review procedures under the National Environmental. Policy Act (NEPA) for geologic repositories for high-level waste were referred to me for evaluation. As-a preliminary matter, I want to apologize for. responding-late in the process and to express my appreciation for your efforts to seek out the Council's comments. Those-efforts demonstrate the value which you and the Commission place on protecting the quality.of the environment.

The regulations proposed by NRC set forth how it perceives.its NEPA responsibilities in connection with a license application submitted.by the-Department of Energy (DOE) for a high-level

-weste repository in accordance with the Nuclear Waste Policy Act, as amended (NWPA). As I mentioned when we mot in August, my

-primary concern with the proposed. regulations is.the scope of NRC's review of the environmental impact statement (EIS)

-submitted by DOE for the repository.

The NWPA requires DOE to recommend to the President one site for- ~

a nuclear waste repository. The recommendation must be accompanied by a final EIS. If the President and Congress concur in the recommendation, DOE must submit to the NRC an application for a construction authorization for the repository. 42 USC S 10134(a) and (b).

Any EIS prepared in connection with a repository proposed to be constructed by DOE "shall, to the extent practicable, be adopted by the (NRC) in connection with the issuance by the [NRC) of a construction authorization and license for such repository." To the extent that an~EIS is adopted by NRC, "such adoption shall be

, ' daemed to also satisfy the responsibilities of the (NRC) under the National Environmental Policy Act...and no further consideration shall be required...." 42 USC S 10134(f).

The judicial review provision of the NWPA gives exclusive

. jurisdiction to the United States Courts of Appeals over any civil-action for review of "any environmental impact statement prepared pursuant to the National Environmental Policy Act...."

N esoacL PDR PR aRR22G

.2 53FR16131 PDR 3 3, ,

Jeman R. Wolf, Esq.

September 20, 1988 1

Page 2 i

42 USC 5 10139(a)(1)(D). Such an action must be brought within 180 days of "the decision or action involved...." 42 USC S 10139(b).

NRC's proposed regulations address the standards and procedures to be used in adopting a DCT:nEIS. NRC states that it will I conduct a " thorough" review of DOE's draft EIS and will provide comments on its adequacy. The agency also states that it will

" find it practicable to adopt DOE's EIS (and any DOE supplemental EIS)" unless (a) NRC's action differs in an  ;

environmentally significant way from the action described in i DOE's license application, or (b) si~gnificant and substantial new information or new. considerations render DOE's EIS inadequate.

Proposed Rules at 2.

While NRC recognizes its ability to adopt DOE's EIS, it views the NWPA as limiting the scope of its review of that EIS.

Specifically, NRC cites the NWPA's directive to. adopt DOE's EIS "to the extent practicable" and interprets this as requiring it to give substantial weight to DOE's findings. Proposed Rules at 20-21. Further, the agency notes that its adoption of a DOE EIS is deemed to satisfy its NEPA responsibilities and that "no further consideration shall be required;" NRC concludes that this

" appears to counsel against the wide-ranging independent examination of environmental' concerns that is customary in NRC licensing proceedings." Id. at 21.

The NWPA's judicial review provision is also said to limit NRC's consideration of NEPA issues. NRC states that review of DOE's EIS must be sought, if at all, within 180 days after DOE makes

'its recommendation to the President. If the EIS is judged to be adequate for purposes of the site recommendation made by DOE, further litigation of the issues in NRC adjudications would be precluded. Moreover, if an issue bearing on the adequacy of the EIS could have been raised, but was not raised in a timely manner, the judicial review provision operates as a bar to a challenge at a later date in NRC proceedings. Proposed Rules at 22.

Thus, NRC regards the scope of its NEPA review to be narrowly constrained, with those issues which are ripe for consideration after issuance of DOE's EIS being excluded from an independent examination by NRC. Proposed Rules at 22. The agency takes the position "that the NWPA and the principles of res judicata obviate the need for an entirely independent adjudication of the .

cdequacy of the EIS" prior to adoption by NRC. Id. at 30.

According to NRC, "[t]he factors discussed above make it entirely

gy

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James R.L Wolf, Esq. .

September 20, 1988 Page 3 reasonable for the Commission not to reopen issues that have been, or could previously have been, brought before the courts

'for-resolution.". Id. at 32. "The consequence of this approach is that-the commission would carry out a licensing review to

'cssure that a repository could be operated safely -- but that it would, in general, treat as settled those other issues arising under NEPA." Id. at 34.

These proposed regulations appear to allow NRC to adopt the

-final EIS issued by DOE.without the independent analysis required-under the CEQ regulations for the adoption of another agency's EIS.: .See 40 CFR S-1506.3; see also "CEQ Guidance Regarding NEPA Regulations," 48 Fed. Reg. 34263, 34265 (1983). NRC's rationale for this is that the EIS should be' deemed adequate unless a court says it is inadequate. The reliance on judicial action is based upon the NWPA's provisions for adoption "to the extent

- practicable" L and f or judicial review.

I disagree with this interpretation of the-NWPA, and read the phrase "to the extent practicable" to mean just that: After looking at DOE's EIS and evaluating it, NRC should adopt some or ].l all of it in order to avoid unnecessary duplication. In oddition, I do'not read the judicial review provision as requiring someone to challenge the adequacy of an EIS for the waste repository within 180 days of its issuance by DOE.

Clearly, if a court deems DOE's EIS adequate, NRC is in no. ~ )-

position to reject that finding (although that does not automatically mean that the EIS is acceptable for NRC's purposes). The absence of any litigation on DOE's EIS, however, should not allow NRC to adopt the EIS without its own evaluation.

.The absence of litigation, for whatever reason, offers no authoritative conclusion as to the adequacy of the EIS. Further, there is an excellent chance that any litigation brought challenging DOE's EIS will not be completed by the time NRC needs to make its licensing determination.

A better approach would be for NRC to do an independent  ;

Svaluation of DOE's EIS, taking any court decisions into account,  !

and determine on the basis of that evaluation whether to adopt the document. At the NRC licensing proceeding, interveners i could raise as an issue the propriety of NRC's adoption decision, n.c., that the EIS was not adequate for NRC's purposes for p) whatever reasons. If the interveners raised issues which had j baen raised in litigation, NRC could defer to the court, although this would delay an NRC decision.

I

.)

I- James-R. Wolf, Esq.

Septem'cer 20, 1988

Page 4- .

In this way, issues relating to the adequacy of DOE's EIS would be litigated only once, and NRC would fulfill its obligation k-3

' under.NEPA and the CEQ regulations to independently evaluate an EIS before adopting it.

I hope these comments have been useful to you.

hesitate to call me if you have any questions. Please do not Sincerely, bo /Mt [Q Lucinda Low Swartz -

Deputy General Counsel '-

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ENCLOSURE F a

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Fi!! Cctrilance for Eis lettriteries - C:stert Atalreir C:ltt:t ie!T0tte sa pe;3:3 b legy egg e 73gt it;;e

:e it:roced nh deerit disthy aderstancing of the ite final rule tr:vides fer lifil revier vitt retten r:le cf ;r:v1:ng Fill do::rettatiet in heette u a lieg tatn-selected c:te i felics cuticiary a;;..:stut. t:* rite teieni:: it tte unen cf at I!ntice.

II." Iritng i!:I a .h s:tuc! !t.e:ted fi*e.

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.  : h- ;r:;ned n:e d:et nn tets der the likelitood A .tudicial finding ef inadquacy ci 10E r !!!. it rart nn a mrt s:1; f ad de fi!5 in rar* Itadegnie, it er it tete, sould be tes information or a tes sino ene the Ceninnet nuid tave to revies the corrideratiet tecesritat ng independe:t Fit revies.

dent ut ud fi!! tc detersine irra:t en the lieecte ~

n;.inti:n. itchditt adequnt ef the Sli.

5 ite it:p: sed rule does not ::nsider situatiet in stiet iTrierjudicialdecisiceisactaprerequisiteteFiC a ecort night tn de:ide 115 culinge befcre !!C ak ttics cf the E i 115.

renter itr lite:sur detenuatin, it ni:t care FFC stnld revies etr uca n a l u rves 1 4 he ;r:;: red rule her : ectu:er tne r:ttitility It is unlikely the c ur; s uld defer its rulitg. rine uit a cart alget delar in dentin a the adequatr tre ireces sculd be rire and no special hic errettue ei a II:3 at;; 1*. teet ne Cettistin : finditts it a is teede3. E: sever, in ite eve:t of deferral. E li:nsng duisitt seuleaderttheilsfahenttte:tterfaners rpecified in the nle t

$ Ice suggetti:t ttat serbut Of 1:e inIn st: tad teu failure te raise ite istues ti rersen si n Itos hire re;rernte: by state cffica!! n prnt judi:ial and n interett so91d renlt it teen tent *:te

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ceetittt sigtt te trenchi it:t rannt arvet hrred even th; sere net est:rred by vinue ci *:e.r nes a ite:tsittet,sitt Nf n'erve: tut rcles and represettatien tr 5tne efficials.

refluttprejuci:evs.citi:eninrticitatic:.

! i he it:r: red rule everhets tce retsnility tht a NWFA requires that challettes to ite !!! te htirnes tarty sign duide tc litigne heir istuer regardi:t pns;tir.111tengt lii: s fiul deitin s:uid ie acquni ef tte repetiterr it liii hee:titt subjen to judicial rev2es. its idertic: utder ne prxeedirge (nd ttu n mcru ntter un it a NIH stanh rds cf the rule souid te in sen rh n e sita h6 chlie:ge te tte ili5 and hen:e n;teld en the serits.

• • State :f Fe n da IF;: lear Waste Fro;ect Officel 2 1 Althourn FF: and Ki ent hs its part it tne sare hder FWii. Cetgress intends fer Fit to ahrt the !!!

njer fental actin, eut ageny out evaluate it tte abren:e ci setstattial tes infenati:t er ner entire: rental enrequenes cf entire project and certideratiets.

cetettite itderendenlr sheder Fill has teet satisfied.

2 2 ite statutcry previsiets sitt reriect to adertien fte FEC vies is tht FsFA su intended to take a serelf rettate trier las, etarrcsis ug iederendert sutetutive eture in ne ins.

revier u ly stere the restaritle ageter is h rbiddet te ut n FIH sight ettenise deind er its ability tc arn at its hties nald be frustuted.

2 3 he intored nh snartliet ite enn;t cf At indiened tr the diteurricn of ite int: ed rule.

• rrnunt:hty.' HH itself requires ne :f all Cettreer intented HC te sert tte El Eli if n al; tra:tientle uns to atenilist uvirette:tal persitie i.e atteet tes infenation er tes ct;ettiter n: dit he en requre cer;nsite cf n ectodentica. fte State's citatitte ce not suhte arner's ::re tre:ifn statuuri tert:tntilitier. a ciffere t vies.

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Fill CCtiliaMe fcr Es fe;0!itori2r - Cciten! Atal? fit I:It-t! itt;0tte

a *:e ;erf:nane :: Fi!! dunes :7 FiC se:.: ut he ettett te sn:t a it::eeditt sould be enened n i "n n e :e ::!:ntut e aniity tc cury en its trenlative To sue degree. the attilty to feet ut m:.:! nn/:n :;uer. neluditg ite nicat:e :if utentle :cule te Je:rardned.

l  : tes:re sun:. s rf a enntnun uu:ri:niet n .n: a *nte a f: r > ren peri:L l

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• un to ferner ennstratict The in.. s1H a:::t;ny tre a;;licatiet !!roct: ut I

in D te re: n red" after ah tutt h es tct retete ettire refles ;tecess. The fenal nettlet slii et i ttf !0n t ual irti,e! it:t litigatitri. fitte utter part cf the de MeiO2 tade sitt! the hearitt it l !alve n Cliffs hi: 1:!! : tnder the ili an teteluded.

ervir:tter.ta; f a:nre !ncttt ageny revies ;te etter.

2 i U:jer :alvert Cl:ffs, Fi' tay att abdicate a cther UnderFW!A,EfCsur ta'e t a talat:ing judstett crdi at ege n:et' ceru fnati:tt. ic 2:!t t!!e a talet: ng tetetrary to c:ttlier tes cetsideratic:t or nts 1 3:gren itself itfereation.

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stutt sai te tre nt: as cetded" inattu:: at fit e EfC atticipater that a de:itict rurr u tt to tre ru e re bral 1: I!!;e 1t: estIISortoentiderthe sould l'e fcund to te in acecratet sitt a;;lnule uvi :rtena: n;an ef E! s n .n :s setze:t te las.

y :al re:ies

t ':21r etal ett:;;ei ::tr n tate ne effe:t a!!erted iett agencies are c:teerted sitt the gate a:tict:

!? *te ;r:reted ide te:nte 1:e tsc afet:1e!~ actiott c:sttructiet and cretaticn of a srecif1: re; nteri.

art inde;etten a:d ;:te : ifere:t legal att facical Ecder ttese cirectstantes, it setli te iro;er fcr Fi:

tt!!!ct!. to cettlude ttat if the IIS it aceccate i

t Mi's 4: tics, it is adequate fct HM i as sell

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H 1 fital judicia! dgre:t is in;;csite te:nse FiC Sitte CICt standard fcr adopticn is the 'ade;c c i cf tar t: cny u reties M i's ih fer lit legal the [15. tte ittee cater FiiA is ne ! dea n y of tit adequa:y. Ite usue ir :ct stetter Mi e 115 is 115.

legally ade; n te, tu. n:s F K 1r to ierfert itt Osn Fii! rert n!!!;.1:!.

I. M FIi! Iticles to duti ui n States and Triber t: te!; FsiA provides tr.e c;;crtunity fcr ectsultatitt sitt Ki etainte altercativts nier HiiL rer ta! Mi regard to the entirettettal it; acts of a rep:sitori effered aty 0;;ert n ity te de to. and acccrdirgli the and cettenplates effcrit to rescite state and trits.

estatlitted eletty restneitilities to ccaricer ctjecticttthroughtegetlatiet.ietainiticoncert!

altertativet retait it fcli force ar.d effe:1. could tn addretted under ite reto ;r: visions.

1: Ihe in; ted rule ! ind :n.rt ttat felhre te Under FWIL Cettress intended istues cencertier Ri t challette Ei's 11! ::rn reedt a a ;:te:tial [15totesettledearly. Ite tite tar is tecessary n

u H e rer's te nt *:te i n re: fnt n ititt irsces in reflect ttir relin.

l FiC ;tectedng! :t effeu.te " hiil

u h e erit u g id e n nd et f:t c:t;letetest cf Mi~s ite challerged lattute resuter the erittitg rule, innte er;;nat:u n usdfnien, te: acte it deer atd the eenent hen:e it beretc the ;ntett l  : n Il ne c;:t H i P.e re; ntern t tu t its ruletalitg. Feierthelets, fd: ectricers ite statdard 3;;! :nc te tdti u: ty rdfinen iti:nat:n te te sent here it n: it;1ieni:t Mil ectiliant sut (LM atreur f avenile Fi: 11:nsitt EMn.

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n :." r ter;:: sin lnier c: der ite Hill at at Casitun tnd it sculd fdlcs ne rare ;recedurer

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. :ts:.rt F $ nn."ty res;; trit:litie! thn n sod d tave had ite etttirerIt J.:' ttt t+tt

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.n- I p uti:* !: n ietat::t tatt ret: 1:.cted by feilts itt substantive stancard ;rtM!ed ty ut !! ate bi! !. na hi: retn tre !! ita:e;':ne Fi; tiedd ofNevada. NiC belleret it stould ed:;t ice I6s fil!

3::p a ntrict:tt tie: dan fer perfortete cf Fiil it the atretee of rigtficatt tes infortatiet er tes retuttitintit!. ;tetert:rg itt dit:rettet. centideratitts.

( Fi: sttuld Itt;e relet ::titrtitg it latt: age Seeret;ctie10;teceditgcettent.

suitetted by Fetada, utter stitt adt; tic: ' sill fit sittu tte att;ntirnite str;:ure ty sti:h the cctt:ssun ett!1 cert trF..l nstes, stilizitt ;;rtitt!

-: tte X i III :* st: n E utter Fli!. tay rely.

2 I hitit t t;fietted rule s:c.3 ;teterv*. i t a itefitalruleallestlitigatiotoffif!1stoetitra teitt:sted tite state. dc;l ntt:deration ci tegettated tite it act:rdane with curictu ;rnine er.1;rntent: :enet by F eve: tt:ugt the affe:ted n ne sil: :tve f:rerne .it rig:t 1: lit:fne10!':

i:.altgether

. !! 5ttlit! ;r Uted rde ei:tnates ttt ;ctnt:nty itet ite ;endet:y cf litigatict sili : t ;retett it:e F F t!rn te utable tc t:ve re:aute ;rcita:'.ed naff it:t beitt able tc take s retitiet a ut lingstin rater it it; tent:e f r H: ruff te late a irt:ti:stility of ad:;tict of ne IQi Ei!

? tit;o

03 ue ;ta:D :atility cf as:; tion cf the E:s 11!

88 i:v!rtueMal Iefette i:n 1 ha Q bi! :!rics: H : nty 15 nt!!:er need Etterbil.tnisdutiaritesitereiterear+m altertatire teirt.S :Fle! 3:.d sitet, atd tite ci c:triceratic: cr ter itferratict. Ite tesis u r : ::

ava:!alility. H : M ill tar duty c.ct! !!! to c:t;;f ;ctitiet sat ex;laited it centeniet s nt 15stit:e O!

sitt Fife and utsider it; ant et b;ts: etvit:ttent the ;rti:ted rule. E dtes tet rely seit;f et n e statutoryctargettothes:cieofiteI!!.

3 2 ite legislative tisnry cf DIA s:;pris tre ;rit:irie 0:theccttrary,FWilsasintettedtoeliti:ste that F is te all:ted to feren ne hi!! duties and inderendett fliA revies by FEC, absett Les itferratiet J

ertescctsideratiets.

re;y entirely ct KI's Fif! Oct;!iatte.

\

3 3 it: tin 114;f h6! Of FWil provides that "tte Cetgress sade it clear that Hill sas tot intenced to C:Itit!!tt' teed tot ensider e:Utented fe:ters it ctarge ite FiC role thich, it it clear, required to  !

• aty il5 ;terated sith res;e:t to the re;csitory. itis FECIIS. Itanyevett,thecitedatendedlattunge itticates it n Cettress intended fcr Fi; it irete it! con!dbea;pliedittheirliteralternesithretteet er: I:3. to any et;;1etettal il5 Trerated by liii )

l 3 4 Fi: say tct ardicate it! ! O utter FiiA tir;17 FE0 doet tct tbdicate any statutcry rde. Itsill 1 t'e:aute Mi tat n e;.iti si'i he less, !:clc:itt direta!ft its Fi!! tetptribliniet in the satter )

Fiil,a;;1i:alletotheIe;antetticitittCalvert cettet;.!ated by Dil. 1 N ifft. the rt;evat:e of vr.i: sat dittisted ty FiC]  !

1 I

l i

'l>

w 'A.

~

, [ide7 Qj y _

y '

Fill Centlian;e fer 9 repositeriet - Cessent !taly:Is Ceste:1A iespor,se a

? iIth; tre J;ra:ticable' statdard. UC retaits it construitt its duties urder AIA Neh bett ne fle!!'eia*f't: tser;itt itiertedent bdttent as H C parpereandgrattaticalstructureofttelasperscaded te: tit;:ed.it ne. centext ti.nranius till 13: lings EfC that 11 re h ed independent judstett so at to be' l terJlatift!

• ette iallt sine C: gress ittended F able to grant a variante fret lii stathrig. Skis . l

'* ;urpeseandlanguageindleateothersite.

c:t;1findepende:tlywithSiil.  !

.)-tAlthe]ghajGdicialdeci!!:ttntheIdtquRTef Mi ! IorpurTetescfthedoctriteofl't!Deritelutito. 'l I!! binds Hite tte extett cf the teleitg HC scuid there is an idettitf of f:ctual and legal inues. ine  !

e t be relieved cf its. independent Hil majorfederalactioninvolvedisthec:nstructietand l operatienoftherepositerr,andanIlithatisfcuti res;ensibilitiessin:ethereareseparateanddistitet <

fice MI's rettensibilities.

• adequate" for M i it

• adequate' for F M j i 2 7 If FK sere to assit a ceurt ce: islet et ite adeque:r HCsillnotnecessarilyavaitacourtdecisionetice f cf Mi's I!!, this could te lean af ter issuance ef adequact of MI's !!!. In'ue attence of substutial Mil 115 and leet siter sah dreielen could be and significant ses inferention er tes censidenticit.

" team.gful durf tg de Ocst:trica's enedited li:ensitt it sculd a krt the WI ils scetter or met a judgrett Trueeditg. hadbeenentered 1

2 5 107 NiC tt perft!! it! lictt!!tt function adetuately, HCtelievesthatthestatutoryscreettelb0diedit itearttr::neaettreteitli!andalicaissuettobe WH A contentiates that the nonsafety 1:n et m id 23; i rud e: u arguten in the liee: sing proceeditg. To be subje:t te argusent in liceteing treeteditts ener: j etture ttis,. C:tgres! ;revided 90 sith autherity to stere itere are substantial er signficant nes l ectsiderationsortesinformation.

aktt,isst:le,rart,ert:tatall ]

3 i 9 0 res:titt it ect m r,te fil its Hi!A duties, (2) ThepositicaettfertstoFWFAastodiserarreofFi!A i liCi? 4;r:vieler nate:Flatitt U C revier ef at duties 19 Cil H referen:e t(ni!Aaretrocednal.

leastscueenvir:tantalistces,and(3)i:Flicatien netsubstantive. The FWie 121 direcuot te liA

fFni!121 dire

tic7 teliAtoadeptenviruterial tertainstoitsauthnity,enderexistinglas,to standards'eith stich H C en t cetiert. establishradiologicalstuhrdsunderteeAIA.

3 M HTt staterett tnat it does tot anticipate lf Mi's fili call! for titigative etasures to be et.virttrettal li use cencitlett is unjustified and incorporated into Ine licente, H C exietts le 0 s:-

Irreer:tricle. F C is ultimate guarattnr ci safety, Othersite,incurt,trelitititionofpote:,tlal it:luding ; rete:tien cf huat envirotetnt, ud rust envirottentallicenseconditiottvouldasarulet't

. Place all nece!!ary cethtient itto t'.e t licette. eentrarytoFHA~sobjectivesasc:nstrueibyNiC.

'311 His clait that titigatien seatcres preposed in an Eitigationeceditietsareenferceableteicesate

IIS are independut!r enfn

catle is not supported tr extent as artlies to other nemlicetsee safer fedeni att cited authwrity. Giventhatnosuchauttority actions. Deviation ceuid recess: tate preparatico ci a exists,NiC::stalicssucheenditietstobesubjected surplesenal !!!.

tos:rutity'Inthelicensingprocess.

312 HC adetties ef all er part cf Mi s 115 does tot seat F96doessakeaehngeinsubstattivelar. Under I W that HC can avoid censideritt ettirneental issues at its licenritt proceedings. itis is no different free HiA, an %eper est evaluation is cettenplated caly for signilitan .es inforestiet er mes consideratiers.

caser cited ty H C it stich an independent evaluation ses required.  ;

313 6E cunct derr Mi's ar;11:stien t: avoid hning to there vould be no sven du ial unless M i'had failed to surrietenttheIIS HC can:ct for:e Mi to perfer carrieutitscandutieruncerFi?Atosu;plerentas the Ccnissiet t ev ret;nsibilititer through the 115 - not e M e rt;rletettatien ses an F ttret: eflicettecuin! EH urges ite Cenistiet te respnritility.

retritk cut hvetile innvier-g

4 lf $ d 1 'e y b e n'ai. _ _

Fi?! Ccs;11ance fer ii;W fererit

rie ECosent Atalreis Ccatent festetse

C:ctsert fertar:: and hf trratan Center

~ .i n !! httbage 1 ster.ded te erre n te FiC retles of ite 4 .HCbel!everthatCottreerintendediclimititt

,1cettea;;1::stietdetsI:tlitittneFiinissuerFiC indetencent ectsideration ef Hi! issces ordert itere car adreer. 911 her tot .init to radiclegical are mes ceuideratiet: cr teu nierratin Air tafet; de istuer un could lead te rejectiet cf an standardsforFICreviesdonctcorefrcsie:ticnr!!6 arra:stin and115ofFHAcitedby5510.]

4 2 Fil deer net ;r nitit M C fret impesing conditiers, ifitispracticabletoadepttheIli,nosup;1eeent

, inchdir.g th:re related to entirernettel issues, en voeldbenecessary.

itslictnteet. Itruencases,aso;plesenttothe ill5rouldterecessary.

4 3 he prerered rule stict sair HC revier berits with UCsillretlesandccomettocDOE'sscering E I's MI5. ign:rer n e H Tr 1! H statement that it doeunents,asacessentingagener sculd revies and ceteera et Mi's se:Tittdoestetts ud a:tivitier f:r is;letentitg H!A. HCshouldbe at a:tive ;artic;;ar.t in s:ering hearitts.

4 4 H C should ex;!essly'a:rt: sledge its role it rettering TheFiCroleistreteritedtrteeriatute,ascitet.

at entiretsenta! !!!estren develc;ed fcri site se if requested by the Fegotiater. the (cstiriits pt ;; sed by ite Feget!ater, especially to it ties of sculdcettententhesultatilittoftit!1efor ie:tiet 403te), salet alless the Negotiner to reli:it ctar:cteri:stien. If requested br X I, HC veuls ati cetrider Fi ectsent! : a rite. cestettetthe11astosatter!initsjurisdiction.

4 ! fer a segotiater cheset rite. the fil5 provides Ile:itedtextdis:steesissueprei;sittittte te:estarr hill doe::tectatin etir for tre license cettextofaIIISforteerecessendatien:I41$ en:in application, met fer' site tele niet, fte picpesed rule ttelicenterevier(FiC). foraFegotistcr-:tortt sacarcereecititietofthis,butdescribestheilli site,eiththe!!!suppertitttheartlicatlet, ice atbeingferb:th, argutentsculdactualirbestrceger.

4t iiithaFer:tiater-selectedsite,itisquitelikely Fi:cottiderstte'affe:tedstate'sobligatiettoseet th n there vill te no HiA challenge sin:t the pretp* judicial reties of MI's il$ to te arplitable affectedstatevillnotcppesethedesignatienbefore to a Fegotiator relected site. The reties perica 8:ci:

Cettrers, the count er the Costissiet. Also,the start later, though, and under the fatal rule HC e IH dar review peried sill start later, ade;tionstandardsculdbesodified.

. 4 7 H C should tegit definitg its rele in relatiet to the Ine presett rulending starts to constru:t a fratescri Fegetiater,storeOfficevillbeatesagencysith forsuchinteraction.

stict HC will interact.

4 5 The prep sed rule does tot adtuatelt describe H C's Consistent with the availability of resources. H0 roleasatactive,intelted,ccetettitgagency. The sill provide (as a cestettiti agener sith expertise Cessissienthouldfulfillitsroleofpreviditgexpert andjurisdiction)expertanalrsisoftealteandsafety Italt 1r of public health and safety issues througtout issuesthroughouttheDOIFH1 process.

D0i'sFIFApro:ess.

4 9 H C should develer a sectatire to directly receite .HCbelievesithasscfficient'accesstoinferaation l- cettettsfreeinterested;artiesassellashavea needed to carrr cut its responsibilities under FliA as setted te retles :ettett! reeived br M! en Hi! a cettetting agener. Of cecise as to Atesic inergy ist <r. Actissuespubliccencernssillteventilatedterough bothinformalandforeniprocedures.

L se n ,

i y~,,

j. Fli! Cer;liane for E U Fer:titeries - Cettent Analytic C:rtm letrotse a W si:c;d :r; ne tre ili tc ite ii:5 to etene ite If HC e findings of fa:t are different it:t fatt m n iettr ne u t ite:trictert. I>ifferet:etc::!d cetricered in M*!'s ills, ud say give nte te re:nn rent::u u ne 5!! :t s:r;1etutauen cf ite significant envir:ttettal n; nts m:t ensiderei it fi:: theili,scrtletectatietrigttbene:errary.

4o :f C: tire!! nier.ded i: limit Nf ?'s litetting revles, Ihere is nothitt trott sith Daring the 1.55 sette n *:. : in te at;r:; rating restutial !:rt te dau-cellectiet retureeetts that ne net strictly

re ttat ett:rcratrial at ve:1 at ncieltfi:al taterialteFitlicetringdecirtets.Inattevett, niety dentens ne it:!u:ed n the 1.!ceuitt su;p:rt since an 115 found to be inadequate sala preven fynet licetritg.enviroteettaldatavouldberelevatt.

4 :: *u ;r:;: rec ri.e ever1cers tte ;ersitility that only The fiul rule prevides a differett sincud for Fiii.

tre FF: 5i11abdi:cetheadequa:rofthe115- review tr NiC sith respect to a Ferenater-ehnen e.g., n the are cf a Fet:tiatcr-cheret site, stere site.

tte affened sute :r trite secH be pre:!uded free caller:.tgtheI:5 41 *t+ ric; red re:e nerlects the pasitiiny ttat there Ctallettet te the ill! s aid be tite-tarred, a least

e t: lega;:alle:getoitei!IS,butrather;nues at to affected persons havitg tnesledge nere:f, inigne all 53:t :st;e d: ring the licettiti sheuldttercheetenetteseetjudicialrev:et

r

ee:. t F e;n the revies tee Fi:5 it deuil.

414 Tu tr:reted rule erretentir ugues ttat nilclegical Celi NiC takes radiological rafety f:ndngt nier ue radeti "1! ettt;tte: 1:lelftotheC:ttitti:L In Attricinergylet.

fa:t n:t Issues c:uli te nited by ;nties tc Ni?!

'. .gsu:a ed ad: rested i: a c:nf s nues.

41' ice ;r r: red n!e evirlects tte situatiet nere a Sh::Id the ill! te fcund ita: equate. NiC agreet tu t Cent c:tchtet ihn at II:5 it inadeqate et att cf a itsnidtavetoevaintetheissuesdecidedtythe nate ef grende HC snld ther have t: evaluate Cecrt to detettite the decisien e isp nt The ah ;rnes de: iced by tte Cecrt t: deten ne the decisiet scuid constitute ter infonauen er ter densitt : ;an a ne licette at;heatiet. ccesiderations and treated u suet etder the rule.

4 M !!e trcresed rM e :verle:ks the persibility of a Such a deby is tot anticipated, either et grends cf Cart's dehyng ne de:iriet et tte adequer cf ne riretersertrinartjurisdi:tien. It att even,

!!!! petditt the Certistien's finditte as to its herever, it the ateence of tes infermatiet er ter adegn:7 :t ne heettitt trueeditt - e go teentle e:uideraticer.FICvaldstilladerttheFil5.

tte Cent it take adinage ef Nic exterure.

4 17 ite stepeted everlects the situation there a Ceurt As indicated atore, ttis sculd net preven Ei" fr:

dres ni ute ne decisnt tef:re the Ocstation sakes arrivitg at a fin } decisien.

Itsli:etntgde:isi:t.

4 15 he latguage related te lieitatiets et issuet that it is desirable to articulare as clenh as portitle partier can raire it NBC hearings (i.e. pertainitg to the principles by shi:t the Cestission intetds its itsten Of tte p;the re;resetted by stater n proceedings to be goverted. Ite htertentien rules judicialtreettdirgr)ispretatneanditappretriate, are not necessarily centrollitt with respect to istue ruticulnit r ries of Fi: utervertiet nles. preelesien (c:llaten! etterpel matters t

r ._.

L .% r eo Fifl C:n;11ance fer D sepesiterles Certen 1:aly:is Cr t t e r.1 se!P0fte 88 Idif ;* [it i; 1r.5t * *.;* e

'.* :tret:+r agree :ta: Cettress. it rassitt 9 11 b rettette required.

Int:st:Itely !?d: fled the re;citeterdt of Fli! as w a;;;y :te ::g: level :c: lear satte ;r:grar.

Si: i ter;-:ts.:...ty it it address radicitgical raiety 1scer crder !.t:t:- inergy Act.

8

.Ittat!itt:!:itttoite;ra:t:catllityofade;;ictcf The dicitien :tri re!;e:t t:. 8!il tutt te ta:e !! a tre E i 115 tt:n.: te regelved curide cf r.eari:gt, part cf the Certissien's final decitiet et the lite:re stere :t sculd inevitably itterfere vitt tte Tritary at;lication. setolutionoutsidethetearittssould f: ;r cf the itectedirge. 122. israe! affe: itt public therefere not te apprettiste.

tealtt ard refety.

5 3 Ite deternita;..: ste tr.e it it tracticatie to ah rt The suggestiet should act be accepted net cr.ly t:e El II3 et: !d te ande pr2cr to tte hearirg because tifs enters into the final decitien, but it: ert (and entire ite ad' cheat:ty arena). FM cat becausetes:nferratietattercc:sideratitt!co;!:

!:li::t c:ttet.: ste: M ! !!sce! its !15 alleving arire later.

.

;arb

I;at:

• slterc: retdiet: delay.

' 4 F rnet:: er;.:c .ly sta.e that .it de:iri::r. Itis is ccrrect and statetente t: taiseffe::s:li

!;:ltg :eter:1:a;.:: Oftra:t;;abi!Iyofadertiet at:t;anyputlicatietofthefLalrule.

Of Ei's i!E teed te' asa!; e nerse Of litigatiet at tctteadequacyOftheII: Ifac:urtlaterrules113 dtht ett. NK :!: tte: a:t as te:essary.

' iltai rule th: !d rees;ra!.*e that fiC res;;: tit 11::7 iu:t er; tat:s it ;r:vided, to tre exten ::tterpla:e:

teresciterad1:1:g:alcafety1stue!itlicett:g by FIA.

hear:rg is n:' to te'turdered sit: cett::cedanalytit cfa:dchalle:ge::Fi!!-relatedta:ters f f 70 ;r: tide centrol! tc tee'. the 3-year licetting The la:guage of 51. S c), sti:h provides for lec. si:t schehlt.NiCthouldprevideatire;eri;csith:t inthenot;;eofdocietingcfastateter.1cfit:ent:tr.

sti:tNi:staffact: present its psitlet en to t h ;t. it; lies a least a tettatlte staff ju gre:t.

Tra:ti:stil :7cfade;tletofili-et.sittitis it pr: vices a;;ropriately for s ;plerettat;:n. iter. cr daysafter;;ilicatic Oftre!~5 later,ifdeeredrecessary.

t 7 If h M det! I:: ret:re the pra::!cability ite Cettitrict c::siders tLat j:s rulet of practice deternicati:n ft:t the adjc h es:Ory tearitg, the rule pr: vide vertable guides to decide vtether or t:1 stecidprovidea1:seperiedfcrfilittecntettiets cettettlets sith respect to the practicability of sittres;e:ttottepracticatilityofade;tiet-e.g. aceptica have been filed in a titely santer.

ca:e en stich initial ec:tettiert are due 5 5 fte cen:e;t that a h;tiet of ME's 115 does not Theconceptisalreadyclearlyethodiedittherule necessarilymeanthatFi.:sculdindependentlyhave itself.

arrivedatthesafeecc:lusictsettatterscifa:t97 policy thecid be est: died in the rule itself.

5 5 Ni: thealdclarifyintherulethatthecriteriafor lhit it itcorrect. The standard fer a k;tien is evalca:ingtheexte:: to stich it is practitatie te derived it large part free the structure, tur; tes.

a::it the ili are it:re provided in EEil and and legislative his: cry of Dit settettet;judi:ial::ter;retatiert.

! age 6: i 4' (gQ*>*.

! Fill Centlinee for il,W itteritories Cctnett Analfrir

gret iespette 5 U F stot]d e!!r:fy it ite rule that it ittetet to sate Icetecetsiderattertserestatedclearlyinthe a:eretdet FiH find:tgs it:lud:rg ade; u dert tr:ptsedruleanddonotrequirechnge.

tain:ltg cf reletut fatters, caly to enett FM -

tte'f nrt ;te;!re at !!! cr !U;;letettal !!$

• e:atft Of Ies :tf r111101 or les c nfideratlett).

88 13 fi.Vt Mttrdal ircle:tiet liet:y I l Ifl !!!!tVes that tte trCioted rule refle:t! the so response required.

airr0iriate rt pirettet! under the Euclear intie i lity 1::, n aretted.

88 SierraClut 7 1 fte preposal asounts to abdication of FE's FFC belleres that its interpretation of HiA reflec u rettote tility te assare safety and protect the the intent of Cctgrest and s111 ettan:e its acility to ettiretten vtn dvtertititt 11cetsatility cf a EU assuresafety.

re;critory. ItIn it ur,sise and ::ttruy to Cetgressical inte t and sill renlt it lost cf NE cred t'lity

~ : 'r.e !!erra Cich erd:tre. att sister to be anscelated See rerpenses te letter tut:1tted by !H.

sitt the cerclunts rented it tre letter of catent rented in the !ttier sutt:tted by the invitettectal Itfenefund 3 Uldt! the dutica! the:ry tut Octgress crested Xi as licthitt done t'y L0i in fulfilling its Fii!

lead agency, liiC ndd targe Mi sitt res;;tsibility restensibilities sill affe:t tre fruitt or de:::::t te fratt irices it atin :e ef, and at basis. fer SIC's of radiological safety issues in M C licettiti

st proceeditt es;., tte invitatiet for Ri to ptcetedings.

pretettc;tttute:escfli:ettedenia!

4 B C n0uld tc* itplicit'y ettre e a precets stere the IneCertitrict'sdecisionsllladcrestradidegical real rte dard it stetter licensing the pt:;esed actiet safety it specific reg nd to the pretesec aetlet -

is better ttu the statur que atte. Ite real standard a ntg etter thitis, applyltg ne li! t g uerei aust te rad: clerical refety in sie:1!:t regar: to the ervlrettentalstald!!d.

trerered ut.:t 7 ! U C's tertured readitt la eut cf lite. fte directiet M C teliever inat its intertretatice cf Fil ref;ects te a::;t tne 115 sar lenly ntelded to avoid tre intent of Centress. Avoicateeofutte:estery stre:etrary de;11:stict of eff nt u preparitg duplication ef effert was a consideratiet. but tot ite re;! rate s u tetuts - tet te relieve H C of eclyconsideratiet.

fa utettal ferretsibility te rass en envirottental ad uny.

? 6 The stardud ef truticability fer edertiet of the 115 there is to abdicatiet of U C rerpensibility. Ice efects e it;ctribly high turdle in rejectitt ME's abilitytoassuretretectionoftenthandsafetyit II5 ed abdicate: Fi? :thinics to assure prctection enhan:ed, cet diritisted, ty tre cercettutien ei ef public health att refety atd the envirouett. iten effortinthatcirectien.Ajudgiertofitsuffi:let:y legt! n n fficin :7 c U d te ignered. seuli be a tev :etsideratiet revint! rev:es.

._ - - - _ _ - _ _ _ - _ _ _ - - _ - - - - - _ . _ _ _ . - - - _ _ a

^& iate h 9/

04/i' H Nii! Cettlian:e fer il,li Repositories - Ocssent Analysis

~

Ctttent -  ; lettette 88 Le;t of hergy i 'l';!!T;!:;riateunderClireg]lattenstosugges FM belittet that a ccetettitt agency role is t re that SU te:CataCccieratit[agtt:yitpre;aratittcf appropriate,be:auseDOEunderFWilsheciddeveierthe Mi't 113. Fif s itde;tedttie sitt respe: te reties requiredinfctsationandenvirottentalataly!es.!!a a!dli:ttsiti082tesair,taltedasacocierating c:ttenting agency, herefer, 6 K sill still participant agtt:7 Inccepitiandotherearlyactivitie!.

I i !1thetta Mi 187 be required to tuppletent the 115 if D0iiscorrect. Ict as it acknesledges, it sigtt

.* Base!asctstattialchatteititsre:estetdationto need to sciplement if it vere to tale a schstattui thefresidettertendataisavailable.DOEshouldnot chatte er if there sere ner infernation er nev-s:;;1erettthe115terelytosatisfyNKsterarate considerations _ Thatisallthat60.24:ctrequirer.

.Fli! res; tsicilitiet.

B 3 L?E disagrees sitt lii:'s irdicatice that tuhi;!e il$s FK did tct seat to imply that saltiple Elis souM be ray be te:essary it, c tsideritg Mi's license required then it sas considering the isseance of a a;;iitatiet,sinceallpertitecttattersvillbe- cctstructionauthori:stien. itatter,itisittre addresseditat115thattasfeet6:cre:itaccordance entireadjedicateryproces!..it:luditgcretatiet, v;ttCliregulaticts. clesure, etc., that ten ilir tar be needed.

B 4 Certut hi: statetent c: tid he interpreted as testi:g lafacttheruleelitir.atesanacceptateereviesfor that'itsculd3:!;etsscrietthelicensea;plicatiet tteil5,therebyresovingitfrotthecrnienipath, uttiltteentirejudiialretiestrocessisc:ritte. AsD01 suggests,tne11580u16bepresteedtote fla:itt liiC teceptat:ereviewcftheilietthe adequate absent contrary judicial action, ati H C

.'!!cetringcrit::1patt. couldproceedtoconsidertheapplicatiet.

i i Mi re:citi:es the FWil reference te ectstructiet Fi:isinaccordsiththeccstett. Trediscussictof autherizatietandFifsinter;retaticettata this issue cited by Ni (53 fii 16134, c.1) dees tot cetstru:tietauthorizatietisnotalicetseunderthe reflectanycentraryposition.

iteticitergyAct.DDI:pperesanyeterietofthis dittin: tion.

i 6 Tecte it:visi :t of the regulatiets that require Ki HCagreesthatthelanguageneedstobequalified!c tosu;;lesenttheIli.ifittakesasubstantialchatte astorequiresuppletettaticeonlyitsituatlett it the proposed a tica theald be taalified se as refer cetered by lii?A and Cik regulatiet!.

etlytochatterthatserecettreticuelyectridered2n Kis!!!.

B-iThepreferedrequiretentthatD0!infortNicofthe Asageneralrule,thearplicanthastheburietci statuseflegalactienetthereperitory115ir placitt en the recerd those factual tatte n upon shien unnecessary. sitee this itiertation is a tatter of HCcecisietstarbepredi:ated. Sitee liiis ceelsi:n publicreccid. regardittadertionofthe!!Ssaydependupnjudicial actien, Mi should report accordingly.

i. 6 8 K i notes that the referen:e te Sectica 113 cf FWIA N E regrets the esission of the phrate in questien.

l esitted toe phrase 'to tne sarinut extent pra:ticable* the ciscursion sas infertaticnal, however, and the in der:ribitt the satter in sti:t K! tast conduct caissiet is not saterial to tne issues being i

site characternati:n te titisi:e rigtificant adverse considsredinthisrulesakitg.

I ennrettental effects.

L 6 C MI cene:rs sith SK ! vies that the use of the sete lie terpense required.

[15 fer Ri's rec:tiet:atiet of a site and li K s issuance of c:tstic:ti:t a:thernatien (to the extent TracticaIlti !! !!t Clear it.itnt cf N il.

a_ _ _ _ _ _ _ _ _ - _ _ _ - _ - - -_ . _ - - _ _ _ _ -

g-ib M M l- a p .:

Niff Ccarl:ts:e ict H'd ierctiteries - Cctsent italysis Cettent fer;cnte iFH $ L: t tr.at 9?! !stici Trevides that th;ti: h respotte required.

re :!!:tt F sil.4 res;;ttiti':tiet) coutsel!

!g!:::: vi:t-rt:i::g itterendet! exstienti0t ::

er.:r:ttt tt. ::titrts it !!:etring ;tetetdatg! :

00t!:$tett Witt S I's rtaditg cf tit }!s.

8 M F i ! gree thatajudicialdetettitatietcfAdequa:7 $crespntrerequired.

-prera:etfurther3:tigaticaetttatitsce,andttat fa:!uretoraisea:issuesitbit'tetisesetoutin 911tarslateretalletge.

5 12 N i agrees that Fil a:d trancipler of res judicata No resretse requireo.

ctriate the need for an entirelf inde;encent adjudi:atict cf the adequa:r cf the III tr H C.

3 D LE! agrees that !dopt:0c cf *he LO! ili Inculd Det h responte required.

ect;r: tire the H : s 1:de; ender. rer;ctrit:lities under :te Atesi: Itergi 1: .

" 14 Ei agreet sith state:ette pertalting to HC s foe::s b resp nse requ!!ed.

ct!!!ici:(1:e!tafe:r,0:sideratict:fenvirttrental trra:t! Of ret! r::: .:t atd perfortat:e it the ili, a:dtreatte:toflice:tedeti!!ier,nea:Li:t]asan sittrnative.

88 Cou: il :r !trirettental belity

^

i i I tend the ttrate *t3theestetttra:ticatle'tosean The ccatent does not take into acce::tt Ite ecttext cf inat H should loca at L0i's II5 a:d evaluate it, tne pia as a snele, rei:n itpl:ee ttat H C tr.ould ad:; rg scee or all af it in crder to arcid adept I'0i's Fili attent tes infestation er vtce:errary curlicatien ectrideraticts.

9 21detctreadtrejudicialrevierprevitietas HC telities that lisil challettes sete intende: to te requirings:rectetoctallengetheadequacyof35115 d:tpenedofpret;tly,andthatpartiessn: tit::t til f:rthesatterepcsitcrysithis160daftofits et their rights should be tise-barred free raising istuance bi M ! Ihe atten:e of litigatica dces not theslater.

establith adequa:7 er alles H te avcid evaluatict, i ! !is: shculd take an independent evalcatien, though to H:.alse.censidersthatajudicialdetertitatienof the extett ttat 1:terveters raired issues in theadequaerofD0!'silsshculdberegardedas litigatiet. HC could defer to the court, although cettrolling. In HC's vies, thcugh, inderetoent ttis :uld hier at H: de:isiet. evaluatien is ecly required, rursuant to H FA, if significantteninferratienercensideratietsexist

_ _ _ _ _ -- .___-___-____ _ A

l4 C. =

l'

['

i-ENCLOSURE G

'i ;g

~

h I

> So F R 61701 Pubhshed 12/18/85 Comment ereod empnes 2/tt/86 10 CFR Part 60 (Decast see. PAN 1A1 States of Nevada and Minnesota;FWng of Petition for Rulemaking ass =cy: Nuclear Regulatory Commission.

acticas: Notice of Receipt of Amended .

Petition for Rulemakmg from the States of Nessde and Mmnesota.

svuuany:The Nucleer Regulatory Comminion is pubhshing for pubhc comm.nt this notice of receipt of a petition for rulemakmg that amends an earher petition for rulemakms [PRM 2) fded with the Cornmission on January 21,1965 This amended petition, filed by the States of Nevede and Mirmesota, and dated September 30,1985,was docketed by the Commission on October 3.1985. and assigned Docket No PRM-SS4A The petitioner requests the Commission to amend its repository beensing regulations to incorporate the equivalent substance of the assurance requirements es issued in the final Environmental Protection Agency (EPA)

Standards, pats: Comment period expires February 18.1986 Comments received after this date will be considered if it preetical to do so. but assurance of consideration cannot be given except as to comments received ori or before this date.

anosissets: All persons who desire to submit wntien comments concernmg the petition for rulemaking should send their comments to the Secretary of the Commission. U.S. Nuclear Reguiston Commission.Washmaton DC 20555.

Attention Docketmg and Service Branch.

Smgle copies of the petition may be ,

obtamed free b3 wntmg to the Dmsion

PART 60 o PETITIONS FOR RULEMAKING cf Rules and Records Office of enviroraent from offsite releases from sneans (1) permanent roarkers placed at Administranon.US Nuclear Replato > radioactne estenalin repositories The a site. (2) pubhc records and archives.

i

! Comm4sion % ashmg'on. DC 20555- Petitioner hopes to secornphsh two (3) gesemment ownership and The petition cepies of comments. erd obrectnes in th.s amendment (1)To regulations regardmg land or resource ,

accornpanymg documents to the pebben p ace before the Commission the use and (4) other methods of preservang rne) be inspected and cop.es for a fee at substance of the assurance knowledge about the location. design, requ;rements.so terms of amendments and the contents of a geologic the NRC Pubhc Document Room.1717 H Street. NW . % ashmgion. DC. to 10 CFR Pari 80. which the EPA e repositcry.

recently pubhshed standards failed to 2 Add I 60.21(c)" Content of[heense]

• Ja rvetata imecavanom coarTAct: make apphcable to NRC bcensees ie- appbcation" and renumber rememitig John Pnnips Chief. Rules and Department of Emergy fDOE) b:gh level sechone:

w sete repositones. (2) to propose to the (0) A general description of the Procedures and Records Office Branch.Divisien of Admm:stration of Rule' .

Commission require =ents and prog am for post permanent closure U.S Nuclest Replatory Commissien cens.deratons for the process of monitoring of the geologic repository.

Wash:ngton DC 20555 Telephone 301- adeptmg the DOE Environmental!mpact 3. Add a new i 00A(c). (d) and 422-706c or Toll Free 604M6-M42 Statement. reletter the rernairuhg subsection as (e)-

su>es.ewger Ame sweomasanow: (c)The Ccmmission aba!! evaluate the l M NPW d dy environmentalimpact statement B:ckground ne peinoner statn that dunns the required by 42 US C 101H;f) and 10 1 Storetrent of Crounds endfr c. est pendency of the EPA rulemakms CFR eo 21(a) to detertrane whether its e.gn:f. cant eteraction occurred between adoption by the Commission would not The 5:ste of Neuda f, led this Comm:ssien and EPA staff regardmg compromise the independent arnended rulemak:ng petioon as s ,$iste which wn the proper agency to adopt responsibility es of the Commission to l netafied passant to the Nuclear % aste rules in the r.ature of assurance protect the pubhc bealth and asfety Pohty Act (NWTA) that a potentially requ;rements" that would apply to under the Atomic EnerTY Act of t#M (42 eccep'ab!e site for a repos;to > has been Cerrasagn hcensees toinsure agamet U.S C. 2011. et seg ) In making such e idennf ed withm the sta'e The S' ate of the inherent uncertaintsee in selectag determination. the Comminion shall Neuds asers that it rna) beccme des F ung and beans.r.g waste disposal considen effected fo pu posn of parncipat.cr m sy stems thet must be ser) e!!ecove for (1) Whether the Department of Energy s,te charac'eraanen. prs;. ant te i 113 rnere than 10 000 > ears Tte Petitioner has cornphed wtth the procedures and of the NWPA md. cates that the tw o agencies agreed requirements of the Nuclest Waste The State of M.nnesete iems this info-ma!!). and the EFA standard sa Pohey Act (42 US C.101Di ei seg )-

emended petitien as a state ef:- ed final!) issaed providu. thn assurance (2) Whether the themative sites that it is be:ng censide ed for sde req.arements are en a;prepnate proposed in the environmentalimpact charactensshen for a second repesite") rechanism te better g,,arantee that statement are bona fide attemative The State of Mmnesets asers that it numental standards wi!! be reslaed. sites. that site characteraation under 42 rr.a> be dirert!> affected b) the that the STC wa the rnere appropriate U S C 10133 has beer. completed at such s.;bstance of standards fer the agent) to adept such standards as the) sites and that the Secretary, after alte deseloprner.t of repos:teries app!3to NTC bcensees and that the characterasten is complete, or The Statn of Nesada and Enreseta NTC approach wodd be to integ ste the substants!!y complete. et such sites. has g ound this pentien en their res;ectae essence cf EFA's eather preposed rules scade a preluninary determmation that anierest m. and the pres sihng into the repes:to > bcensmg provisions such s!!es are suitable for development respons'biht) fer the pretectien of the of1: CTR Fart fc Further, the Petit ener as repositories consistent with the future health and safety of tre.t citaens states that smce evidence used b) DOE guidehnes promulgated pursuant to 42 I b 'h"" '"' "

11 hsves Roised a PRM4M crd 60- **

• f P of) O' ana.3::s *'I Prepository espected U(3) b Whethe C 10132'r the consideration of the

1. 4 performance to assess the likehhood of shemative sites considered in the PRM-604 democatratmg coc ; Lance with the EPA environmentalianpset statement standard, the rule propond hmin mun included consideration of the natural The petiboner fued the er.g:nal petition (FEM-60-2) with the be m plan in ordu est ME ruy properbes that are expected to provide des Fn its site c.haractera4t on plan in a better ise!stion of the wastes f om the Commission on Janca 3 211965 The petitioner requested the Comrussien to mar.ner censistent with the siens accessible envirorunent for 1m000 ears adopt a regulsuen geseming the smdehnn De Pehtenn propan est after disposah sad whetho the sna ysn irnplernentation of certain the Comm:ssion rnake fmdmts used by the De;artment of Ecerg3 to a ccordes') . compare the espebihties of chfierent environmental standards which ha d situ to isolete wutes were based upon been proposed by the Envirer. rental IV The Prtitioner Propcars the PoNcorg Amendmenu so # CTR Port de foHowmg' Protection Agene) The h1C pubbshed a notice of the petition for rulemalms m gy (i) Only the undisturbed performance the Federal Res;ste.t on April 30.1965 (50 ' bE" "

d definitions to I ta2 considered, " '#8 FR 1ME?) and requested ccmments 7t.e 1 Ad..Acuve matitutional control..(ii)The performance of the weste g) comrcent pened cJue d oc JJ) 1.1965 rneans any rnessure other than a passive Sin comrtents were receard at response packages and waste forms planned for msuutional control performed to (1) to the notice. the disposal system was assumed to be Cottrol a ccus to a site. (2) perforen nsmienance operations or remed.al the same from site to site and assumed PRM.ao4A to be et leest an order of snagnitude less schens at a site. (3) control or cJean up ne pettiener states that this effecun than the pulormance required telenus from a site or (4) monitor by 10 CFR 60.113. and amendment to PRM-65-2 is based on pararne:ers relared te geo!cg>c the interveni schon of the repositor performance and comphance (hi) No credit was taken for other Envircnmenta Protection Agency IDA) with nandards Lmitmg releases of eng.neenng controls miended to correct on September 19.1985150 FF 3meiin red,ncovit) to me accessible Free'ustmg natural flaws sn the Feologic which the EFA issued f.r.a1 standstds g rnedia (e 3. g outng of f.ssures shah not f

for protecnon of the gene al be assumed. but effecove seshng of the g )..Passae instit6t;onal control"

_______-_-______-_-__________m

• PART S0 e PETITIONS FOR RULEMAKING shaf:s nerded tc constn.ct the repositor 3 perfo mance objectne set cut at i C4112 U.S C.1M32. does n:t require DOE to do shan be assuest; for mere than 200) ears after disposal. so Petitioner beheves the rule proposed (4) Whether t.6e d.s; css! s) stems Fomeser.the effects of passise here would parantee that bona fide censdered se:ected or des Fned min ir statutionalcontrols me) be considered alternatives were evaluated by the NRC.

Arep reirases te the eccessMe in asussing the hhehhood and if not also DOE The " low as reasonably I eturer. ment as lom as reasonabh consequences of processes and events schiewable" releases concept be also achies at!e. takiy mic account affecting the geoloFic setting been remtroduced m this context. The techca'. soc;al and econorr c e Add a new I 60122(c)(ta) and bases for DOE a consideration of natural considerations renarnber la ter sections: properties expected to prende better (d)If the Cemrr ss.on determnes that [18) W pnsence of significan isolshon have also been introduced.

ed:pt,on of the ennronmenta: arn;act concentrations of an) natura% The Petitioner states that in adopting statement would cornpror:nse the occumng matenal that is not w d) the language of section 114 0 of the mde;,endent respons.bihties of the as aMe imm othu sou[,ces NWPA. Cor4rress did not change the .

Com n:ssien then trie Commissien tha!: 9 Add a riem i 60164 Post. requirement for consideration of bons consider fully the enuronments! arrpact Femanent Cksee Monitonns,,: fade s!ternatives in an E!S It merely of the selecton of the proposed site as A preg?am of p a pumanent closun enonitermg shal: be conducted and sha!!

narrowed the universe of allaltematives required b) c U S C 432L et seg which DOE must consider in the final 4 Renee iic 51(a);1) % cense "" ' "" "#"#I f * ! "E 'i'" E!S. from all sites reasonably available charactenstics which can nasonably}e to only those three sites which has been i

amendtnent for permanent closure" as l g rapecied to proude substantive

c. characterized and for which the confirmatory) information regardm8 Secretary had made a prehminary (1) A detailed desenttien of the geng. term repos. tory performance.

preram for post.per r.anem elesur' determination as to site suitabihty.The preuded that the sneens for conductmg Petitioner beheses that a site which the meniterms of the geciogic repeanor) m such mondones will mot degrade cecordance w th ( 60164 As e, Secreter) has determined to be l repositor) performance. This program unsuitable for development as a enmimum th.: desenption sha" sha!? be contmoed unto termitiation of a repository.or convervly at which the

( A)!dentif> those parame:ers that m!,, bcense which sta!!not occur untd the be rnonitored. Secreter) w as unable to make e Commissien is cor:smeed that there is prehmmary determination of suitabihty.

(B) Indicate hem each paraceter wd no :gmficant concem which could be be wed to esa!uate the expected is simply not an attematne.The addressed b) further monitonng Petitioner beheves the Secretary's perfonna.nce of the repcsite*). responsibihties, under either the NWPA (C)Desenbe t.how moni:orma deuces E S(clem'AI3r S/PPCM or NEPA. to consider attemative sites. is which wJ: micate the behhood tt;at Tre Petitioner sistes that the rules simply not met by the consideration of standards !=tmg releases of p :pesed here are substantne!) three sites one or two of which were rad <cactvity le tte access.b;e equisalem to the EPA assurance determmed at any time to be unsuitable snuronment Isa) riot be ::et requirements f which. by their tenns. do for deseloptnent as repositones The (D)D.setse the lengd of tene over not app!) to NRC bcensees). with one Petitioner states further that neither whach each parameter should te ser) notable enception proposed to would the Cornmission's responsibihties snenitored to adequately cen!4m the CG 60 24:c). Trie Petitioner pomts out be carned out in such a case, and thus expected performance of the reposite > that this prnposed riem section re:stes to such a result would severely jeopardite (E)Ind.cate hem the res.dts of pesi- NRC review and adoption of DOE o permanent clowe r-onitones wn! be the Ccemission's abiht). under section enuronmentalirnpact statement (DS). a 114!O to adopt the Secretarfs fmal US shared mth of'ected State. Ind.rt tnba document developed m DOE's selection in order to meet the Commission's legal end loca! ges emments- of a reposito > site EPA's proposed 40 obhgations under NEPA.

5 Add e ren swbsection to l 6C 52.c) CFF 1M 14le) dealt eth site selection.

"Te mmation of beense' and renumber as NBC staff recognized m comments W Notic' Refenhrg RelesedActions cerem I 60 52:cim as 60 52f c M4) pubbshed b) EPA m "Bachground Papen The Commission presently has W Trat the tesuMs asadat!e frem the Potential Changes m 10 Cm 80 to underway rulemakmg actions which, resspermanent clesce rnonstonns Feplace Assurance Requirements in 40 p ef'am connrm the expectation teat when finslaed. will addren the Cm in. March 21.1965". NRC staff. concems expressed by the petitioner.

the repesitor m di comp!) w:th the homeser. found that DOE's site selection performance)obiectnes set out at The Commission is now prepanns to gwdehnes to CFR 900.3-1-5. adequately Sections 60112 and 60123 pubbsh proposed amendments to to CFR address this issue. hevada and t Modify i K113 by addmg Mmnesota are concerned. and the Part 80 to ehmmate inconsistencies (d)In any es ent hemeser, an,, . Petitioner beheses that the Commission between the EPA standard and the rule wwithstand.rg the prensions of(b) should s!se be. that DOE o site selection (su unifiedAgendo ofredem/

abose the geolcg c reposite-) shall process rna) not produce bona fide Argulations. Current and Projected ince porate a s> stern eirnultiple ehematnes for consideration in DOE's Rulemaking-Ehmination of bamers. both eng:neered and natural. EIS because of DOE s current inconsistences between NRC es:t des Fned or selected so that it interpretation of section114lf). 42 U.S C. Replations and EPA standards- CMB cor plements the others and can sinh;f) Petitioner asserts if st does not, Regulation idenufier Number 3166-s FmficanQ corrpensa'e for NRC s " independent responsibihties . . . AC03. SC m 44992. October 29.1965).

uncertainnes about the perfor nance of to protect the pubhc heshh and safety The Commission anticipates that the one or more of the other barriers under the Atomic Energy Act ofIBM" proposed rule would incorporate the

$ amer' means an) material or structure (section 114:0 42 U.S C 101MIT)) wd! be EPA

• assurance requirements"in Part tr.at presents c4 substantially de?sp irnpbcated The Nations!Enytronmental 60. to the entent appropnete, sabsfying I

tr.osement of meter ot radionuchdes Pohen Act. 42 U.S C. 4321. et set. thet aspect of the peuuener'a request.

7. Add a riem i 60114 "InsStutienal together with the Atomic Eneyy Act of The remaining aspect of the petiboner's Controls" teu as amended 42 U.S C.2011.etseg. ,, quest. addmg a pronsion to Part 60 Neither setne not pass 4e requi e the Commission to consider relating to NRC review and adoption of erst.tutional controls shal! be deemed to bona fide attemaines even if section DOE's ennronmentalimpact statement, assse comphance with the overall 112 of the Nuclear %an't Pohey Act.42 fe!Is within the scope of a separate.

7 . _ -

b PART 80 e . PETITIONS FOR RULEMAKING

engoms rLiemakmg which would amend Port 51 le corJorm to provisions cf the .

Nelear Weste Pohe) Act concerr r.g erworunental review in Hl.W peologic sepositor) hc'enoms procedures (see Limfied Agendo of federolRegulations.

Cunent and Protected Rulemakt.g-fart '

31 C nformms Amendments-CMS Rerdstion Ident#ier Number 3150-

". ACDs. 50 7% Hn:. October 2s 1965):

1 Acconhrg), cornmenters are advised Cat hinher consideration of the issues reised by the pet;tioner will be defened for consideration m the rulemakmg cetions referred to above The present schedzle calls for the pubhcation of these rm o proposed rulea within nine sconths. Any comments received m response to th:s notice would, m that C4ent. be incorpora ted m the

' adtnmistrative record for those proceedmas.

Dated et Bethesda Me7l arid this 16$ de) cf Deceenber.la64 fit the Nuclest Fero:sion Commies,on Samust l Chilk.

Swewn ofshe Commasson

... x

,t 5 )

! e. The Office of Governmental and Public Affairs has determined that it is necessary_ to issue a public l announcement similar to Enclosure C in connection with these amendments.

f. The recommended changes from the propose'd rule are provided in comparative text as Enclosure D.

g. Public comments on the proposed rule are provided as Enclosure E.

h. A staff analysis of the-public comments is -

. provided as Enclosure F.

1. Enclosure G contains the Comission's notice of receipt of the rulemaking petition (PRM.60 2A) from the States of Nevada and Minnesota. A brief notice of the-Commission's action with respect to the petition will be published in the Federal Recister; it will. state that the petition is denied in part and will refer to the present rulemaking(EnclosureA)forfurtherinformation.

William C. Parler

. General Counsel

Attachment:

NWPA, as amended,

< Section 114(f).

Enclosures:

A.- Federal Register Notice with final amendments to 10 CFR Parts 2, 51, 60.

B. Draft Congressional Letter.

i C. Public Announcement.

i D. Comparative Text.

E. Public Comment Letters.

F. Public Comment-Analysis.

G. Notice of Receipt of PRM.60 2A.

sbwM - e

NM55 :NM55 ) :DE V  :  :

i .0FC......:...N'b.g .q y/

k_.....___::ED NAME :RBrowning :RBerne o' :HT ompson  : V S e l l16[. .. . . : ... ... . ... . .. .

l - DATE :4//%/89 :4/74/89 :4/71/89 -e4/7)/89 A  :  :

/ \' ' / / /,

- 0FC :R&FC/0GC :D/R&fC/0GC :DGC/ "  :  :

NAME :JWol f STreby . Malsch . r er  :  :

.......:.....%..Jd.......::

' DATE :4/ 9 /89 :4/ ' ~/89 :4/ /89 :4  :  :

r 1 - - - -_ -- - -