ML20247C779

NEPA Review Procedures for Geologic Repositories for High Level Waste, 10CFR2,51 & 60 Final Rules.Rules Adopt Procedures for Implementation of NEPA W/Respect to Geologic Repositories for High Level Radwaste

ML20247C779
Person / Time
Issue date:	06/28/1989
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-53FR16131, RULE-PR-2, RULE-PR-51, RULE-PR-60 NUDOCS 8907240451
Download: ML20247C779 (37)

Text

__ ___ ,. _- _ _ .

_ [.

'T DOCKET NUMBERg MI;Ih

.? P;ROPOSED RULE c -

(MM/h/ .

[7500f

'+- > C NUCLEAR REGULATORY COMMISSION y gg

'10 CFR Parts 2, 51,.and 60'

~ DFC !CE G t t . k RIN: 3150-AC04 00CK m .: 4 'O v M r A:wi t

NEPA Review Procedures for Geologic Repositories for.High-Level Waste

, AGENCY: . Nuclear Regulatory Comission.

ACTION: Final rule. .

y -

SUMMARY

- lThe Nuclear Regulatory Comission is adopting procedures for implementation of. the National Environmental Policy Act with. respect to geolohicrepositoriesforhigh-levelradioactivewaste. In accordance with-

~

the. Nuclear Waste Policy Act of 1982, as amended,. the Comission will adopt, to the extent practicable, the final environmental'. impact statement prepared by the Department of' Energy'that accompanies a recommendation to the President'for repository development. The rule recognizes that the primary

. responsibility for evaluating environmental impacts lies with the Department of Energy; and, consistent with this view, it sets out the standards and .

procedures that would be us2d in determining whether adoption of the Department's final environmental impact statement is practicable.

EFFECTIVE DATE: (30daysafterpublication)

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

g plpbeh En g72g451890628 fg g n 9- 3-D

' 2.53FR16131 PDR -

t S'sfe CWI emm #-.m--_ _ _ _. ~ . . - . -

l .

l .g-SUPPLEMENTARY INFORMATION:

Under applicable law, the Nuclear Regulatory Comission exercises 1

regulatory authority with respect to the development, operation, and permanent 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 1

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 iin fulfilling its NEPA responsibilities are addressed by the Nuclear Waste Policy Act of 1982, as amended (NWPA). This statute directs the Comission 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 Comission has been engaged in rulemaking to implement this statutory framework.

The Comission accordingly undertook a careful review of the text and l 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 summarized 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. i

.) e (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 with 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 Comission received nine letters of comment in response to its i notice of proposed rulemaking. The commenters were the State of Nevada >

(Nuclear Waste Project' 0ffice), the U.S. Department of Enery, 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).

1 es Gesem em>gW e w < *eng ew e

p s

• l l

i After reviewing and giving careful consideration to all the commen.s i 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.

actions of the Depr.rtrr.ent 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 00E, and such questions should not be reopened in proceedings before NRC, STATE OF 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 quest' ion." 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, Nevada 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 i_._U.____________-_________.__--- - - . _ - - - -- --

- 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 customary 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 urgest .i.e., with an assumption that the Comission's NEPA responsibilities are not modified by NWPA - then the regulatory ; language suggested in its comment letter would have merit. -

But the Commission firmly believes that the law was intended to have all n.atters associated with the environmental impacts of repository development considered and decided, to the fullest 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 review procedures built into the statutory structure and by the accompanying legislative history. The Commission believes that the result '

is sensible. Concerns arising under NEPA -- if not resolved through the 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 information 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 4

i J f .

p . the health and safety of the public. The resolution of issues in this manner 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 licensing proceedings.1

- 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 the 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 "equire the NRC to perform a second cost-benefit analysis. The Court found the legislative history, as well'as the statutory bnguage, to be ambiguous on the question; as such, it upheld the NRC construction. Here, given the identity of ti.4 actions being I The State took exception to the standard for completeness of information in a license application -- viz. the " reasonably available" stancard 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 persuasion under 60.31. ,

D

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 Quivira 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 thousanos of years.- supplies practical support for our interpretation.

! Congress 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 proposed, 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 fu'rther examination in administrative proceedings.

i COUNCIL ON ENVIRONMENTAL QUALITY COMMENTS The Commiss's invited the Council on Environmental Quality to comment on the proposed rule. The conclusion of CEQ was similar to that of the i l

==__-?_-=_____-_----.

1 I

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 some or all of.it as appropriate so as to avoid unnecessary duplication. From the Comission'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 for Comission 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 Comission 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 Comission might " defer" to a court finding that the DOE environmental impact statement is adequate. This is certainly close, if not identical to, the Comission's position that a judicial finding of adequacy would preclude further litigation of the matter in NRC licensing proceedings.

9

• +

.g.

COMMENTS OF ENVIRONMENTAL ORGANIZATIONS l

The environmental organizations' coments included a number of I arguments similar to those of the State of Nevada with respect to the Comission's customary NEPA responsibilities. As alreaoy indicated, it is .  ;

our view that Congress intended, under NWPA, for NRC to accept the DOE EIS in the absence of substantial new considerations or new information. We reject the suggestion made by the Sierra Club that the approach we have outlined amouiits to an abdication of any Comission responsibility. -

In addition, however, a number of coments of somewhat narrower scope were submitted by environmental or.ganizations (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 Comission'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 Comission's licensing decision (when a judicial finding of inadequacy, affecting much or little of the EIS, could be treated as a new consideration). In fact, such reliance is not essential. It is our expe::tation that, under NWPA, a petition for review of the EIS would need to have been filed roughly contemporaneously with DOE's submission of a license application to NRC, and that judgment might have been entered within the -

three years envisaged for Comission licensing. Whether or not this proves to be the case is not controlling, for the standard for adoption does not

m i-

• 1 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 reiterate 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 Consnission 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 fron! 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 .ssue 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.

O

__m_________ _

l 8-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 some 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 for Comission 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 Comission 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 Comission might " defer" to a court finding that the DOE environmental impact statement is adequate. This is certainly close, if not identical to, the Comission's position that a judicial finding of adequacy would preclude further litigation of the matter in NRC licensing proceedings.

l L_ __ _ _

l_4 t

.. l

- The Conunission's position that failure to challenge DOE's environmental' impact statement promptly. in the courts bars subsequent challenge to that EIS in NRC proceedings was 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 Oregon 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 j-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 formal recommendation to the President and the President makes no decision with respect to approval ef 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,

9 l

given our perspective o., the intenced allocation of functions between 00E and NRC, "any action" could include the Secretary of Energy's submission of an application to the Commission. We think the intent of Congress, as.

evidenced by the considerable parallelism of the language employed, was generally to establish the same sort of role for the Commission 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 Yucca Mountain site as an alternate to [the Negotiator-selected site) in the preparation of" an EIS. This obligation will be discharged, thoh f , 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-selected site provisions does have to be taken into account, however. For a Negotiator-selected site, a Comission 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. Under the cited section of the CEQ regulations, the Comission

~

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 we find nothing anomalous in having this responsibility in the case of a Negotiator-selected site but not in the case of the Congressionally-designated site at Yucca Mountain, for in the latter case there are 9 *9 k __ -.--_--.-.----.---_-..._-a.--___---_..--

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 I of license conditions directed at mitigation of adverse environmental impacts. We had suggested that DOE 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 positipn 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 projec't that was otherwise determined to be without significant impact. But, in any event, we see no basis for empicying our regulatory authority in this instance to police DOE's compliance with its l

l 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 1

projects carried out, after preparation of appropriate environmental

• __e __:_Mr . AQQ ?'.r_99. % e m-A-m___--- m m--a * - ~ ~ ~ - "

l1 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 ,

forums. -

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 en 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 e w 0

>04 4 6

• y

~

" 1 NWPA bars later challenge. The other DOE comments call for some j

clarification of the Commission's intentions, but do not prompt any 1

fundamental change of the position that had previously been outlined. I For example, we can put to rest DOE's concern that NRC might defer its 1 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 adopteo, the acceptance review applies only to the completeness of "the application," not "the application or environmental report"asunderexisting10CFR2.101(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 1

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, if the impacts of such actions are not evaluated or properly

~

encompassed in the initial EIS. '

l The responsibility for supplementation was another point of contention.

DOE - along with some of the other cc,. a nters - 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 acknowledges, 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 l

v become available. That is all that is required by the regulatory language (10CFR60.24(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 supp'lemental EIS would not necessarily be required in the event of a subst'antial change in the proposed action, where the change and the impacts thereof had previously been considered in the origi'nal statement.

The principal remaining issue raised by DOE's comments concerns the appropriate rcle 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 Commission, nevertheless, has jurisdiction and expertise that it can, and will, bring to DOE's attention as a commenting agency through the entire DOE NEPA. process. We shall not hesitate, in

.- l 1

]

particular, to raise _ concerns that might subsequently also require

. adjudication, under the standards of the Atomic Energy Act, in our licensing

i. proceedings. Other issues, of course, can be identified in our coments as welt. In other words, NRC as a comenting 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 weill. -

We respond, finally, to DOE's claim that the requirement for DOE to inform the Comission of the status of legal action on the repository is unne/ssary, since this information is i, matter of public record. As a g9neral rule, the applicant has the burden of placing on che record those factual matts..*s upon which NRC decisions may be predicated. 'elthough we du e 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 f mal 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 Comments received from Edison Electric Institute generally supported the Comission's view that its essential responsibility under NWPA is to

l .-

> I

~ '

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 nuc. lear waste program.

'We decline to follow EEI's suggestion that issues related to adoption

' ~

of DOE's environmental igact statement be made prior to the' hearing process ,

and outside the adjudicatory arena. As we have noted before, the impact statement does not simply "3ccompany" an agency _ recommendation for action in the sense of having some independent significance in isolation from the

' deliberative process. Rather the impact statem6nt:is an integral part of -

the Cocaission'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 204, 275 (1980).

Even though 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.

However, we find merit in EEI's proposal to fix an early schedule for the NRC staff to present its position on the practicability of adoption and for~other partief to file contentions With respect to the practicability of adoption. Accordingly, the final rule requires the NRC staff to present 16s position on adoption a't the time that the notice of hearing is published in the Federal Register. Any contentions filed by any other party to the proceeding must be filed within thirty days after the notice of hearing is publishes. In the event that " substantial new considerations or new information" subsequently arises, contentions concerning the practicability of adopting DOE's EIS that are filed after the 30-day deadline established u

l 4 .,

I ,_ __ _ ___ _

~

'in the rule must.be accompanied by a demonstration of compliance with the late filing criteria in 10 CFR 2.1014 CHANGES FROM THE PROPOSED RULE Section 51.67. Environmental information concern.ing geologic repositories.

This section is rev' sed _to provide for the submission of environmental impact statements, pursuant to Title IV of NWPAg as amended, with respect to I a Negotiator-selected svte. A further change reflects DOE's coment that supplement would net 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.

In the final rule, paragraph (a) incorporates a schedule for the staff to present its position on the practicability of adoption of the DOE environmental impact statement, ano for the filing of contentions with respect thereto. Consistent with the recently-completed LSS (Licensing Support System) rulemaking, a period of thirty days after notice of hearing is provirk for the submission of contentions.

Paragraph (c) is revised so that the special criterion for zioption, 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 conforming change appears in paragraph (d).

s.

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 (nsertion 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 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. With the exception of the State of Nevada. none of the corment.; received by the Commission in response to the notice addressed tht petition as such. The State of Nevada referred to the petition, recognized \ hat some of the considerations therein have been mooted, and urged that alternat.'o language be considered in the proposed rule, in place of that which they had recommended in the petition.

The section of the petition which provides language pertaining to the adoption of DOE's EIS (i.e.,Section IV.3) is denied. However, the issues identified by the petition regarding the criteria and procedures for adoption of DOE's EIS have been considered in this proceeding. Although the

4 I

language being promulgated differs from that proposed by the petitioners, the Commission is in full agreement with the petitioners' argument that adoption -!

^1 of DOE's EIS must.not compromise the independent responsibilities of NRC to 4 f

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 aasress these health and safety issues as effectively and objectively as possible.

l ENVIRONMENTAL IMPACT: CATEGORICAL EXCLUSION '!

t l

The NRC has determined that this regulation is the type of ection described in categorical exclusions 10 CFR 51.22(c)(1) and (3). Therefore, neitner an 4 environmental impact statement nor an environmental assessment has been prepared for this regulation. 1

. \

PAPERWORK REDUCTION ACT STATEMENT

]

This final rule does not contain a new or amended information coiMetion l

\

requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et

• l seq.). ' Existing requirements were approved by the Office of Management and j Budget approval numbers 3150-0021 and 0127.  !

REGUL/JORY FLEXIBILITY CERTIFICATION In accordance with the Regulatory Flexibility Act of 1980 (5 USC 605(b)).

l the Comission certifies that this rule will not have a significant economic 1

_ _ . . _ . _ _ _ _ . _ . _ _ _ _ . _ _ _ . . _ _ _ _ _ _ _ . _ _ _ _ _ m___

]

i 22 -

impact on a substantial number of small entities. The only entity subject j to regulation under this amended rule is the U.S. Department of Energy.

LIST OF SUBJECTS IN 10 CFR PART S 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.

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 rt:crd keeping requirements, Waste treatment and disposal.

4 9

i*

b

___ _=-.__e m = ? cm * ? * < ** ~ * * ~ ~ ~ ~ ~~- ' - - ~

l ISSUANCE-For the reasons set out in the preamble and under the authority of the Atomic E.ergy Act of 1954, as amended, the Energy Reorganization Act of i

1974, as amended, the National Environmental Policy Act of 1969, as amended, ,

the Nuclear Waste Policy Act of 1982, as amended, and 5 V'.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.

f t

• PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

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

AUTHORITYr. Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.  ;

2201, 2231); ,ec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.

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

Section 2.101 also issued under secs.'53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 93.1, 935, 536, 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 amenced (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, asamended(42U.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.

e

.--,--,--_--._-a._ - - - _ - - - - - - _ _ _ - - . _ - - - - - _ - - - - . - - . - - ----

b .

's .

1

\

')

2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued unaer sec. 102, Pub. L.91-190, 83 Stat. 853, as amendec (42 U.S.C. 4332). Sections 2.700s, 2.719 also issued under 5 U.S.C. 554.

Sections 2.754, 2.760,' 2.770, 2.780 also issued under 5 U.S.C. 557.

Section 2.764 and Table 1A of Appendix C also issued unoer secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C.'10155, 10161). Section 2.790 also issued under sec.103, 68 Stat. 936, as amended (42 U.S.C. 2133) and .

5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2,809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 -

t Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under sec.189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 l Stat. 147 (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.).

2. In 92.101, paragraphs (f)(1), (2), (5), and (7) are revised and (f)

(4) is removed and reserved to read as follows:

0 2.101 Filing of application.

(f)(1) Each application for a license to receive and possess high-level radfuactive 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-l

^

sion's Public Document 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 Nu~citir Material Safety and Safeguards such additional copies of the application and environmental impact statement as the regulations in Part 60 and Subrart 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-tion, if it is to be located within an India'n 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 ar,d Safeguards. All such copies shall be completely assembled documents, identified by docket number. Subsequently distributed amendments to the application, however, nmy include revised pages to previous submittals and, in such cases, the recipients will be responsible for inserting the revised l pages.

(7) Amendments to the application and supplements to the environmental mpact statement shall be filed and, distributed and a written statement r

I

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:

AUTHORITY: Sec.161, 68 Stat. 948, as amended (42 U.S.C. 2201); secs. 201, as amended 202, 68 Stat.1242, as amended, 1244 (42 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 (42 U.S.C. 4332, 4334, x

.4335); and Pub.L.95-604, Title 11, 92 Stat. 3033-3041. Sections 51.20, 51.30, 51.60, 51.61, 51.80, and 51.97 also. issued under secs. 135, 141

-Pub. L.97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section 51.22 also issued under sec. 274, 73 Stat. 683, as amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act of 1982, sec.121, 96 Stat.

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

4. In 6 51.20, existing paragraph (b)(13) is redesignated as paragraph (b)(14) and a new paragraph (b)(13) is added to read as follows:

5 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 action; requiring environmental assessments.

All licensing and regulatory actions subject to this subpart require an -

environmental assessment except those identifieo in i 51.20(b) as requiring on envircamental impact statement, those identified in 5 51.22(c) as categorical exclusions, and those identified in 951.22(d) as other actions not requiring environmental review. As provided in 9 51.22(b), the Commission rey, in special circumstances, prepare an environmental asse>> ment on an action covered by a categorical exclusion.

6. Section 51.22 is amended, by revising the heading and hdding a .1ew .

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 recuiring environmental review.

(d) In accordance with section 121 of the Nuclear Waste Policy Act of

.1982 (42 U.S.C. 19141), 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 e

__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - - - - - - - - - - ^ " - - -

impact statement..an environmental assessment, or any environmental review undersubparagraph(E)or(F)ofsection102(2)ofNEPA.

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

i 51.26 Requirement to publish notice of intent ar.d conduct scoping .

proce'ss. -

(a) Whenever i a appropriate NRC staff director determinec that an environmental impact statement will be preparea by NRC in connection with a proposed action,'a-notice of intent will be prepared as provided in 5 51.27, -

l and will be published in the Federal Register as provided in i 51.116, and

a. appropriate scoping process (see 96 51.27, 51.28 and 51.29) will be conducted. -

(c) Upon receipt of an application and accompanying environmental impact statement under 6 60.7,2 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 I 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 statenent in connection with the 1'

Commission's action on the license application, the procedures set out in paragraph (a) of this section shall be followed.

c -

l..

L_______-_______________ _ _ - - - -

2g -

8. A new 6 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 6 60.22 of this chapter as to required time and manner of submission.) sThe 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 a s<Sstantial 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.

(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.

9

=

w ma_.-----,---- - - - - - - - - - - - -  %. - - - -

. +

l .

i l 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 i 51.109 is added to read as follows:

9 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 a'rea, the NRC staff shall, upon the publication of the notice of hearing in the Federal Register, present its position on whether it is pr4cticable to adopt, without further supplementation, the environmental impact statement (including any supplement thereto) prepared 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 environmental impact statement with the Environmental Protection Agenef, furnish that statement to commenting agencies, and make it availelle to the public, before presenting its positton, or as soon thers;fter as way be practicable. 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.

1 (2) Any other party to the proceeding who contends that it is not i practicable to adopt the DOE environmental impact statement, as it may have Q%

___m_ _ . _ _ . _ _ . _ _ _ __ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _

e

+.

i been supplemented, shall file a contention to that effect within thirty days after the publication of the notice of hearing in the Federal Register.

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 umy 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 i 2.734 of this chapter.

(b) In any such proceeding, the presiding officer will determine those ratters 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) 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:

(1)(1) The action proposed to be taken by the Commission differs from the action proposed in the license application subnitted by the Secretary of Energy; and -

(ii) The difference nay significantly affect the quality of the human environment; or I

0

___.,_n ,- - - - - - - - - - - - -

1 1

t 1'

l

.(2) Significant and substantial new information or new considerations render such environmental impact. statement. inadequate. )

l (d) To the extent that the presidinj officer determines it to be practicable, in accordance with paragraph (c),'to adopt the environmental f 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)Determinewhethertherequirementsofsection102(2)(A),(C),and (E) of NEPA.ar.d 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, economic, technical _

end.other benefits against environmental and other costs, whether the construction authorization or license should be issued, denied, or appropriately conditioned to protect environrantal 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.

O 4 9

- a.

.. +

(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 i 51.26(c).. If the Cousiission or the Atomic Safety and Licensing Appeal Board reaches conclusions different from those of the presiding officer with respect to such matters,tthe final environs; ental -

impact statement will'be deemed modified to that extent and the decision ,

will be similarly distributed.

(g) The provisions of t'his section shall be followed, in place of those set out in i 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.

l

10. In 5 51.118, the existing text is redesignated as paragraph (a) ano ,

a new paragraph (b) is added, to read as follows:

~

9 51.118 Final environmental impact statement - Notice of availability.

]

(a) ***

(b) Upon adoption' of a final environmental impact statement or any sup-plemenc to a final environmental impact statement prepared by the Department p 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 .

I follow the procedures set out in paragraph (a).

9 4 -

- --- - --._----__ -_-._n --- . - - _ _ _ . _ _ - - - _ . . _ - - - . - _ . . . _ . - - ___ _ - - - _ _ - - _ - _ - . _ _ _ . _ . _ _ _ - - - . _ _ - . _ _ - _ -

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

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

AUTHORITY: 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, i 2093, 2095, 2111,-2201, 2232, 2233); secs. 202, 206 88 Stat. 1244, 1246 (42 U.S.C. 5842 ~5846); secs. 10 and 14, Pub. L.-95-601, 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.t2213, 2228, as amended (42 U.S.C. 10134, 10141).

For the purposes of sec. '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)).

660.15 [ Amended)

12. In i 60,15, paragraph (c) is removed and paragraph (d) is redesignatedasparagraph(c).

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

9 60.21 Content of application.

(a)AnapplicationshallconsistofgeneralinformationandaSafety Analysis Report. An e' 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 shall be separated from unclassified information.

14. Section 60.22 is revised to read as follows:

6 60.22 Filing and distribution of application.

9 *e .

• ' ~

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

8 s

(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 cm lication and any amendments, and each environmental impact statement anc any supplements, shall be accompanied by 30 additional copies. Another 120 copies shall'be retained by 00E 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 information, and supplenent the environmental impact statement if necessary, and serve 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 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 proposeo 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 e

i n ..

statement and any supplements theretn shall be made available in the same manner. An updated copy of the application, and the environiaental impact j i

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

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

5 60.24 updating of application and environmental impact statement.

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

• * * * *

• 1 (c) The DOE shall supplement its environmental impact statement in a timely manner so as to take into account the environmental impacts of any substantial changes in its proposed actions or any significant new circumstances o* information relevant to environmental concerns and bearing on the proposed action or its impacts.

16. In 9 60.31, the introductory paragraph is revised to read as follows:

i 60.31 Construction authorization.

L

m ,

c w-

,7.' Y- E '

, 37 ,

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

i- * * * * * *

17. In s 60.51, the introductory portion of paragraph (c), and ,

paragraph (b), are revised to read as follows: e i 60.51 License amendment for permanent closure. -

(a) DOE shall submit an application to amend the license prior to permanent closure. The submission shal' consist of an update of the licens" -

application submitted under il 60.21 and 60.22, including:

(b) If necessary, so as to take into account the environmental impact of any substantial changes in the permanent closure activities proposed to be carried out or any significant new information regarding the environmental impacts of such closure, DOE shall clso topplement its environmental impact statement and tubmit such statement, as supplemented, a with the application for license amendment.

Dated at Rockville, Haryland this 28th. day of June, 198g.

For the N uclear Regulatory Com mission.

d%) N (kLR i Samuel J. 4hilk,  %

Secretary of the ' Commission.

O ese = e

• ee4 *. +- =