ML23156A038

PRM-060-001 - 48FR48473 - States of Texas, Wisconsin, Minnesota, Nevada and Utah

ML23156A038
Person / Time
Issue date:	10/19/1983
From:	Chilk S NRC/SECY
To:
References
PRM-060-001, 48FR48473
Download: ML23156A038 (1)

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{{#Wiki_filter:DOCUMENT DATE: TITLE: CASE

REFERENCE:

KEYWORD: ADAMS Template: SECY-067 10/19/1983 PRM-060-001 - 48FR48473 - STATES OF TEXAS, WISCONSIN, MINNESOTA, NEVADA AND UTAH PRM-060-001 48FR48473 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NUMBER PC~?nt:,;;;~r-@ SCOTT M. M.i..THESOX ST.ATE OF l~TAH OrrlCE OF THE ::;c*.1 E~NOR SALT L.Al'\E c 1-y 14 P.11 :42 GOVERNOR 84114 November 6, 1984 The Honorable Nunzio J. Palladino Chairman .9 U

• tory Commission W

17i7 H Street, N.W~ r r Washington, o.c. 20555

Dear Chairman *Palladino:

After reviewing the Nuclear Regulatory Commission's. proposed changes in 10 CFR Part 60, the state of Utah joins Texas and Nevada in expressing its opposition to several asp~cts of these proposed amendments. If adopted, the amendments could seriously undermine state participation in the site selection and repository licensing processes.

Moreover, the* proposed amendments unnecessarily curtail the Commission's regulatory oversight of the critical, early stages of repository planning and development.

According to the staff materials accompanying the proposed .* amendments, the changes in 10 CFR Part 60 are neces*sary to bring the

• :ttn"s'" *11.~ing procedures into conformity with - the Nuclear Waste Policy Act. of 1982.

Although the state of Utah agrees.that some changes in the licensing procedures may be required to better reflect the congressional mandate contained in the Nuclear Waste Policy Act, the state finds the Commission's proposed changes far more extensive than are necessary to eliminate conflicts with the Act. Underlying tne Commission's proposed changes is an implicit assumption that Congress intended a lesser role in nuclear waste management for the N:.Jclear Regulatory Co1TTI1ission when it gave the Department of Energy substantial responsibilities in this area under the Nuclear Wast~ Policy Act. In view of the extreme importance of the decisions

involved in *high-level : nuclear waste disposal, the sta~e believes there is substantial justification for formal involvement of the Convnission in all aspects of repository siting and development.

Any resulting duplication of effort should be more than offset by the anticipated *. benefits from having access to the Nuclear: Regulatory Co1TTI1ission' s expert;ise during the vitally important early stages of repository develol)Glent

• lO/l4... To EDO to Prepare respo~se for Chainnan 1s signature and Commission review

... Date due Corrm: 11/26,.. RF, Docket... 84-1079.

U. S. NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE BRANCH t

r The Honorable Nunzio J. Palladino November 6, 1984 Page In addition to its general concerns about tne scope of the proposed amendments to 10 CFR Part 60, the state has several specific objections to tne proposed changes. First, tne state is deeply concerned about the elimination of Section 60.11 and the addition of proposed Section 60.16, which togetner would eliminate Nuclear Regulation Commission review of the site selection process. Under this proposed change in procedures, the Commission will review less information about proposed repositories, and it will do so at a later point in time. The elimination of Section 60.11 also entails the elimination of one opportunity for affected states to comnent on the information contained in the site characterization report. Tne staff material accompanying tne proposed amendments assumes that the public review process set forth in the Nuclear Waste Policy Act will provide an adequate opportunity for state comment. As indicated above, the state does not agree that the Nuclear Waste Policy Act implicitly preempted the Commission's regulations relating to repository licensing. Accordingly, the state finds it desirable to have an opportunity to comment on the draft site characterization report required by current Section 60.11 as well as participating in the public review process provided by the Nuclear Waste Policy Act. In this way, the state can be. assured of an ongoing role in the repository siting and development process as well as a continual relationship with both the Department of Energy and the Corrmission. The state's second specific concern is closely related to the first. The proposed amendments to Subpart C of 10 CFR Part 60 substantially reduce opportunities for affected states to interact and consult with the Commission. In explanation of this proposed change, the Commission has stated: Since the concern of the states and affected Indian Tribes will be dealt with primarily under the statutory consultation and cooperation procedures (of NWPA), the Commission has eliminated reference to any consultation and activities by NRC that are more appropriately and directly carried out by DOE under those procedures. NRC Proposed Rule, Enclosur~ A at 26. The state has been frustrated time and again in its efforts to obtain information and other cooperation from the Department of Energy. In view of the Department of Energy's failure to comply with its obligations under the

• ' Nuclear Waste Policy Act, the premise for the Commission's deletions from
  • subpart C is faulty. If the Commission reduces opportunities to interact with it in the,, licensing process because it is operating under the mistaken assumption that the Department of Energy is already providing full cooperation to affected

states, the states may be effectively foreclosed f.rom participating in decisions concerning the repository.

The state's final objection to the proposed amendments relates to funding for state involvement in repository planning. The proposed amenctnents would eliminate the provision of the current Section 60.62(c) for funding by

~ ihe Honorable Nunzio J. Palladino November 6, 1984 Page the Nuclear Regulatory Commission of state work in s~pport of license review. Once again, this action is based on the Commission's.*. belief

• that the Department of Energy is responsible for this aspect of, cooperation with affected states.

See Nuclear Regulatory Commission Proposed'Rule, Enclosure A at 28. The Commission's intention of removing its :fi;.,nding for state involvement in the licensing process is not supported by the state's experience in attempting to obtain funds from the Department of Energy. If the state of Utah's experience with tne Department of Energy is representative, there appears to be suos tantial doubt about the Department's commitment to providing adequate funding for state involvement in repository planning. In conclusion, the Nuclear Regulatory Coflll1ission's proposed amendments to the licensing procedures contained in 10 CFR Part 60 are based on an overly restricted view of the Commission's role in the planning and _ development of a high-level nuclear waste repository. The amendments also 9

• reflect unrealistic assumptions about the adequacy of the Department of Energy's performance of its obligations under the Nuclear Waste Policy Act.

To ensure adequate participation by the Commission, the Department of Energy, and affected states, the Commission sho:;1uld therefore, reevaluate and curtail the extent of its proposed changes. .r* , / -;_,r,-* Sincer y, ~& ~~---~~~-- SMM:ML:jh .. cc: Donald Hodel, Secretary of Energy r

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U. $. NUCLEAR REGULATORY COMMISSION DOCKET NG & SERvlCE BRl'NCH Offll.. E OF THE ::.E.CREl.,f o.- T,*:E co:,1i,,i..,..,l~,I

DEPARTMENT OF ENERGY & TRANSPORTATION Watkins Building, 510 George Street Jackson, Mississippi 39202-3096 601/961 -4 733 Secretary of the Comnission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 00C:K£TEf, USNRC -S3 DEC 22 AlO :Q9 ATTENTION: Docketing and Service Branch Gentlemen: Re: PRM-60-1 Oral Presentations I have reviewed your order of December 12, 1983, regarding P.L. 97-425, Proposed 10 CFR Part 960 as pertaining to the subject matter.. In the order is a listing of the participants in the oral testimony to be pre-sented before the Commission on Wednesday, January 11, 1984. It is with serious concern that I note the State of Mississippi was not among the list of those participants. Through this correspondence, I wou1d l ike to respectfully request that the State of Mississippi be a11owed to participate in the aforementioned proceeding. I would appreciate your immediate response to this request. Thank you for your cooperation. Very truly yours, w~, ~ Wi1bur G. Ba11 E.xecuti ve Di rector.* WGB:RF:br cy: The Honorable John C. Stennis The Honorable Thad Cochran The Honorable Trent Lott The Honorable G. V. Montgomery

T~* 0 c :iCHRAN COMMITTEE ON AGRICUI.. TURE, NUTRITION. MISSISSIPPI WASHINGTON, D.C. 2.0510 December i6, 1983 ANO FORESTRY COMMITTEE ON DOCKETED APPROPRIATIONS USNRC COMMITTEE ON GOVERNMENTAi.. AFFAIRS

• a3 DEC 21 pl :36 Mr. Nunzio ~. Palladino Chairman DOCKET NUMBER PETIT1.:N RULE PRM -{d)-1 U.S. Nuclear Regulatory Commission Washington, D.C.

20555

Dear Mr. Palladino:

('f8 t=R ~BL.i'lB) Enclosed is a copy of correspondence I have received f~om Mr. Wilbur G. Ball. I hope that you will offer this request for changes in the proposed amendment to iO CFR 60 your full consideration and advise me of your reply. Thank you very much for your assistance. TC/jw Enclosure Sincerely, r:U ~ COCHRAN United States Senator

I u. s. NUCLEAR REGULATORY COMMISSION 00-.K I ER IC~ L ,,1-H 0, . T f Ur l

OO(;KETEO USNRC ,-~ nFC 21 P 1 :36 DEPARTMENT OF EJ\ERGY & TRAi~S'P01rtATION Watkins Building, 510 George Street J ackson, Mississippi 39202.36fcf lCf t?~G S{~E~T:1r:1. 60l/96Hi33 UOCK BR,._NCH November 1, 1983 Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch Gentlemen: Re: PRM-60-1 Rulemaking Petition. On September 13, 1983, the State of Mississfppi notified the -Commission of its intent to join the States of Texas, Wisconsin, Minnesota, Nevada and Utah in the rulemaking petition regarding 10.1/2FR 60. Enclosed is a copy of that correspondence. The State of Mississippi, through this correspon-dence, does hereby notify the Commission of our endorsement of the proposed amendment to 10 CFR 60 and urges the Commission to rule favorably on the pe~ition and adopt the propose~ amendment to the rule. Further, the State of Mississippi requests consideration by the Commission

• of two changes in the text.of paragraph (d) of the proposed rule.

The changes are as follows: (1) delete the first sentence from paragraph (d) and substitute therefor the following: "A period of not less than sixty (60) days shall be allowed for comment on the draft guideline ana lysis after which sixty (60) days, the Commission shall hold a public hearing or hearings to receive oral comments on the draft guidelines analysis. The Director shal l cause to be published in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty (30) days prior to t he date of the hearing. "

socretary of_ the Commi ssion N~vernber l, 1983 page T\IJO (2) delete the last sentence of paragraph (d). I appreciate your consideration of this matter and look forward.to your response. Very truly yours, lJ~-~ WGB:fpf cy: Governor Wi ll iam Winter Attorney General William Allain Senator John Stennis vSenator Thad Cochran, Representative Jamie Whitten Wilbur G. Ball Executive Director ~ Representative G. V. Montgomery Representative Trent Lott Representative Wayne Dowdy Representative Webb Franklin

• Members, Nuclear Waste Policy Advisory Counci l Members, Nuclear Waste Technical Re*,* 1ew Committee

I I . I... I I DEPARDIE:",T OF £:","ERGY & TRAJ',SPORTATION \*iatkins Building, 510 George Street J acksc:i, ?--1 ississippi 39202-3096 601/961-4i33 September 13, 1983 U. S. Nuclear Regulatory Commissio*n 1717 H Street, N. W. Washington, D. C. 20555 Gentlemen: Re: Notice of intent to join the State of Texas as a co-petitioner in the matter of the Petition of the State of Texas for the adoption of a new regulation for concurrence in siting quidelines under the Nuclear Waste Policy Act of 1982, P.L. 97-425 The State of Mississippi, through the Mississippi Energy and Transportation Board, does hereby notify the Nuclear Regulatory Commission (the Commission), of its intent to join the State of Texas as a co-petitioner in the subject matter. In joining the State of Texas, the State of _Mississippi respectfull y requests the following change in the wording of the first sentence of the fourth paragraph of the proposed text: (d) A period of not less than sixty (60) days shall be allowed for comment on the draft guidelines analysis after ~hich sixty (60) days, the Com-mission shall hold a public hearing or hearings to receive oral comments on the draft guidelines analysis. The Director shall cause to be pub-lished in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty (30) days prior to the date of the hearing. This request is submitted for and on behalf of the State of Mississippi by the Mississippi Energy and Transportation Board. If the petition is denied by the Commission, the State of Mississippi reserves all rights to support or decline to participate with Texas or any other co-petitioner in any judicial review of the denial. This action by the State of Mississippi does not indicate, nor should it be construed in any way, tacit support for the disposal of high-level nuclear waste in the State of Mississippi. WGB: fnp Very truly yours, W~-~o-1-L Wilbur G. Ball Executive Director cy: Governor William F. Winter, Mississippi Attorney General Bill Allain, Mississippi Office of General Counsel, Texas NE #0351 -83

I.LI ~ Telegram 1 western union ~1F~3e( 1157)( 1-~"'Ell71i1A35e') PD 12/16/8~ 1156 I'.:S IP~1,ur-1,rc WSH ~3121 12-16 115 lA f:'ST res rp-..,,,.,~e-4-01386.d S-35 e 12/1/1:"3 185 IP~9NGZ CS? ,ss3 oEc \ s ** l2t1Eb 116 P 4 ,.05 6014421671 TD::N NATCHEZ ¥.S 126 12-16 1117A EST ~S V'IT~J STATES NUCLEAR REGULAT3RY COMMISSION ATTN HONORABLE NJ PALLADINO CHAI~~AN, DLR, CLR 1717 HST WAS~INCTON DC 2?555 'i.'S PROTi;-ST rpi;_: ARBITRARY AND L'NF'AIR ORDERS OF THE COM'1ISSION IN JOCKIT #PRM62-1 AND DOCKET PRM, ~ISC. WHICH FORECLOSE PARTICIPATION PY STATl;"S, PU9LIC OFFICIALS AND INTERESTED CITIZENS IN PUBLIC \.ARI 1cs REVIEWING DO~ PROPOSED FINAL NUCLEAR 1AIASTES SITING GUIDi:::LI"FS. W.U. 1201 -SF IR5-69) THF' cor..,,ISSION s APgITRARY AND UN~~ASONABLE ESTAELISHMFNT OF A OJT-OFF' JATF' FORSCLOSING PARTICIPATIOK Tl~O 11!EEKS EEF'ORE THE FINAL G~IDl;"LI~'f:'S ~"::RE ~ACE PUPLIC OR SUBMITTED TO THE CC..,,~ISSIO~ IS A D~NIAL OF PROCE9URAL DUE PROCESS. THE C~~ISSION S ORDER LI~ITING PARTICIPATION ONLY TO THOSE ~HO FILED 0J'1~fl'ffS WITH THi;: :)Qi;- ON DRAFT GUIDELINES IS ALSO AR31TRARY At\D U\':lEASO~A BLE. l-JF D~~A~D THAT THE H~ARING PROCESS SE OPB-iED UP AND THAT THE (X)'f'1ISSION P.F'l;)UJRl;" THt: NRC STAFF TO MAKE ITS CCl1MENTS OK THE PROPOSED GUIJELI~S PVELIC 8EFORF ANY HEARING IS HELD. REq:>~CTFULLY Sl.JOMITT~D W.U. 1201-SF (RS-69)

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JO ',OLD F. X. F!l ~, MANAGING DIRECTOR, GEOTHERMAL ~NERGY INSTITUTE 1138 E

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f[l11,vl I\ -'-- {#(Fil JffJf'Jg DOC::T December 13, 1983 PEliil,J l\,J:_:: PRM-f\;~~ (_lff Fil 5lJ4Jij-Nuclear Regulatory Commission Washington, D. c. 20555 Attention: Hon. Nunzio J. Palladino, Chairman RE: NRC Dkt No. PRM-1, Denial of Petition dated Dec. 9, 1983

Dear Commissioner Palladino:

Will you advise us as the meaning of the undocumented phrase "the opportunity for oral presentation" (Denial,

p. 2, para. 3, Lines 3-4), when that opportunity was afforaed, tc whom it was afforded, when it will be afforded, and whether the.State of Mississippi will be afforded that opportunity?

Will you also please advise us of the availability of any NRC staff review or analysis of the DOE's proposed Guidleines for nuclear waste repository siting? May we also take this opportunity to comment on the Commission!s expressed views in its Denial concerning its role under NWPA *** We find it ironic* and somewhat mystifying that the Commission finds a clear Congressional intent for it to expeditiously complete the Guidelines and denies affected States a formal review of them, while the DOE publically proclaims that the siting program schedule as laid out in NWPA is unrealistic, *that the DOE will not compromise its technical program to meet that schedule, that the DOE will begin receiving nuclear wastes in 1998 into temporary storage whether or not there is a mined repository by that time, and state that the NWPA schedule will simply have to be changed. May we also comment that notices of rulemaking, hearings and comment periods made in the Federal Register are not made in a fashion which will bring them to the general attention of local communities and officials. The Register is not generally available in public libraries or local offices, its character and publication are not aimed at the general public or local communities or officials. We suggest the Commission find other appropriate and effective ways of informing communities, officals and citizens of matters directly relating to nuclear facilities which may affect them. Public confidence in the Commission as well as the Adminisfration is at stake. ~ Sincerely yours, ~~-x~ CC: Hon~ Wayne Dowdy, M.C. Donald F. X. Finn, Box 1623, Natchez MS 39120

s

Malachy R. Murphy James H. Davenport Mr. Samuel J. Chilk '.JCCl(ET ~!UMBER MURPHY&DAVENPORT PET:*::~:: ;:U!...E PRM -1&£J-/ Attorneys at Law t( \ Evergreen Plaza Building oornEi -Ji (4,tf t::£, #-'f-7~/ 711 Capitol Way LJSNR,., 1 ___________ Olympia, Washington 98501 \. (206) 754-6001 December 6, 1983 -SJ DEC -9 P 3 :04 OFFiC f Gr SECF.t:_J., __ ; !'lOC!-<.ETING & SE11\II' *' BRANCH Robert F. Hauth of Counsel DOC:(~T NU:*,~BER ~ .PErrr1... N RULE PRM-Ursc. 4f. ( 1/6 ~A:..-5ois~ Secretary, United States Nuclear Regulatory Commission 1717 - H Street NW Washington D.C. 20555 RE: Petition to Institute Rulemaking; Docket No. PRM 60-1

Dear Mr. Chilk:

This letter is to inform you that the State of Nevada, by whom this firm has been retained to assist it in presenting its position to the Commission with respect to PRM 60-1 and further to represent it in other aspects of the potential siting of a high-level nuclear waste repository, desires to participate in the oral presentation on the merits of NRC concurrence with DOE guidelines for siting of nuclear waste repositories, through appearance of counsel and technical personnel. This notice of the intention of the State of Nevada to address the Commission on the Department of Energy's general guidelines for recommendation of sites for nuclear waste repositories is made pursuant to your request for such notices by order of the NRC dated October 26, 1983, and published in the federal register on November 1, 1983. JHD:pef cc Sheldon Trubash Jim Smith Sincerely, MU PHY & DAVENPORT

l - 1;;/&ff 'R.405, fu+le_ 1 roJn+Ji

Malachy R. Murphy James H. Davenport Mr. Samuel J. Chill< MURPHY & DAVENPORT Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001 December 5, 1983 Secretary, United States Nuclear Regulatory Commission 1717 - H Street NW Washington D.C. 20555 RE: Petition to Institute Rulemaking; Docket No. PRM 60- 1

Dear Mr. Chill<:

DOCK (;,,..uETEn .,,.,Re This office has been retained by the State of Nevada to assist it in presenting its position to the Commission with respect to the Petition to Institute Rulemaking governing siting guidelines concurrence under Section 112(a) of the Nuclear Waste Policy Act of 1982, docket no. PRM 60-1. We enclose a Notice of Association of Counsel to that effect, and request that all further notices, papers or other communication with respect to that docket number be directed to this office, as well as to the Attorney General's office in Carson City. We appreciate your assistance in this matter. MRM:pef enclosure cc Jim Smith General Counsel's office Yours very truly, MURPHY & DAVENPORT ~"°"-°--.<:i * "'- ,. ~~ - J~y States of Texas, Wisconsin, Minnesota and Utah Department of Energy, Office of Civilian Radioactive Waste Management

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

• 17 18 19 20 l

21 22 23 24 25 26 NUCLEAR REGULATORY COMMISSION Before the Commissioners IN THE MATTER OF THE PETITION ) OF THE STATES OF TEXAS, WISCONSIN,. ) MINNESOTA, NEV ADA, and UTAH ) FOR THE ADOPTION OF A NEW ) REGULATION FOR CONCURRENCE IN ) DOCKET NO. PRM 60-1 NOTICE OF ASSOCIATION OF COUNSEL SITING GUIDELINES UNDER THE ) NUCLEAR WASTE POLICY ACT OF 1982 ) P.L. 97-425 ) TO: THE NUCLEAR REGULATORY COMMISSION; AND TO: THE SECRETARY OF THE COMMISSION; AND TO: THE STATES OF TEXAS, WISCONSIN, MINNESOTA AND UTAH TOU AND EACH of you please take notice that Malachy R. Murphy and James H. Davenport, and the firm of Murphy & Davenport, have associated as counsel for the State of Nevada with the Honorable Brian McKay, Attorney General, and James C. Smith, Deputy Attorney General, and hereby enter their appearance in the above entitled Petition to Institute Rulemaking, and that service of all subsequent notice, papers and pleadings, except process, shall be made upon said attorneys at their office address stated below. Dated thi£_ day of December, 1983. MURPHY & DAVENPORT NOTICE OF ASSOCIATION OF COUNSEL Attorneys at Law MURPIIYANDDAVENPORT Attorneys at Law Evergreen Plaza Building 711 Capitol Way Olympia, Washington 98501 (206) 754-6001

DOCKETED USNRC NUCLEAR REGULATORY COMMI~orPEC -9 f'i2 :35 States of Texas, Wiscons1n, Minnesota, Nevada and Utah; Denial*of Petition for Rul emaki ng... AGENCY: Nuclear Regulatory Commission. [7590-01] ACTION: Denial of Petition for Rulemaking.

SUMMARY

The Nuclear Regulatory Commission ( 11 NRC 11 or 11Commission 11 ) denies a petition for rulemaking filed by the States of Texas, Wis~onsin, Minnesota, Nevada and Utah ( 11 Petitioners 11 ). The Petitioners requested that the Commission amend 10 C.F.R. Part 60 to adopt certain procedures for NRC concurrence in siting guidelines for high-level radioactive waste repositories proposed by the Department of Energy ( 11 DOE 11 ) pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982 ( 11 NWPA 11 ). The Commission finds that the proposed procedures are not required by either the NWPA or the Administrative Procedure Act ( 11APA 11 ). The Commission believes that the petitioners* concerns regard-ing public participation in the Commission's concurrence process will be adequately addressed by the previously announced opportunity to publicly address the Commission on DOE 1 s proposed guidelines. 48 Fed. Reg. 39536 (August 31, 1983). ADDRESSES: Copies of correspondence and documents cited below are available for public inspection at the Commission's Public Document Room at 1717 H Street, NW., Was~ington, DC. c, Lf-2 FR.. s<;;?tfJ~

)

2/.1<

2 [7590-01] FOR FURTHER INFORMATION CONTACT: Mr. Sheldon L. Trubatch, Office of the General Counsel, U.S. Nuclear Regulatory Commission, 1717 H Street, NW., Washington, DC, 20555, (202)-634-3224. SUPPLEMENTARY INFORMATION: On September 2, 1983, Mr. Ken Cross, an Assistant Attorney General for the State of Te~as, on behalf of the States of Texas, Wisconsin, Minnesota, Nevada and Utah (Petitioners"), petitioned the Commission to adopt a proposed rule that would have established procedures for public participation in the Commission's concurrence in DOE's siting guidelines for high-level radioactive waste repositories. The Commission is mindful of the importance of its role to concur in the DOE siting guidelines and recognizes the petitioners' interest in the guidelines. However, the Commission believes that the opportunity for oral presentation to the Commission will provide an adequate oppor~ tunity for petitioners to express their concerns and for the Commission to understand those concerns. The benefits of oral presentation include the discipline imposed on the participants to focus their concerns and the opportunity for give-and-take between the participants and the Commissioners. Additional opportunity for written comment as petitioners propose might enlarge the body of information before the Commission; however, this fact must be weighed against the time it would take to complete the procedures in this case because the NWPA objectives include timeltness. On the basis .of its experience with rulemakings, the Commission believes that the procedures could not be completed in less than 9-12 months.

3 [7590-01] Therefore, given the opportunity for oral and written presentation to the Commission, the record of public participation before DOE, and the interest in a timely (and fair) concurrence process, the Commission denies the petition. The Petition

• I The text of Petitioners* proposed rule appears at 48 Fed. Reg.

48473-74 (October 19, 1983).1 Essentially, Petitioners proposed that the Commission adopt the following steps in its process for concurring in DOE 1s siting guidelines: 1Attached to the comment submitted by the Department of Energy and Transportation of the State of Mississippi is a copy of a letter to the Commission dated September 13, 1983 giving notice of that State's intent to join the State of Texas as a co-petitioner and suggesting a modification to the proposed rule to add a public hearing on any NRC draft analysis of DOE 1 s guidelines. The Commission has no record of receiving that letter before it received Mississippi's comment (dated November 1, 1983). Thus, the Commission received Mississippi's proposal too late to treat it as part of the petition. Moreover, the State of Mississippi did not inform the Commission that the NRC's October 19, 1983 notice of receipt of the Petitioners' petition for rulemaking made no mention of the State of Mississippi's September 13, 1983 letter. In any event, the Commission believes that publication of the State of Mississippi's proposal would not have significantly affected the comments received._ Indeed, the Southwest Research Information Council, Serious Texans Against Nuclear Dumping and People Opposed to Wasted Energy Repository commented.on the State of Mississippi's proposal. In considering these comments, the Commission treated Mississippi's proposal as a comment on the petition. The Commission's decision to deny the petitioners' petition does not depend on the fine-tuning of procedural proposals. Rather, it is based on the Commission's determination that the proposed procedures are not legally required and would result in delay contrary to the public interest. Under these circumstances, the Commission determined that Mississippi's suggestion could be addressed without publication, especially in light of the Commission's having the benefit of comments supporting that suggestion. [Footnote Continued]

4 [7590-01]

1.

A DOE request for NRC concurrence on proposed guidelines would be supported by: (a) a description of the technical ratio-nale behind the guideline objectives; (b) a full description of DOE's decision process; and (c) a list of issues for which DOE wishes Commission review.

2.

NRC would publish *notice _of r~ceipt of DOE's request along with an NRC staff review of that reqti~;t *. Copies would also be provided to affected States and Indian tribes.

3.

Subsequently, the NRC staff would publish for comment a draft analysis of the proposed guidelines. Affected States and Indian tribes would also be asked to comment.

4.

After a comment period of at least 60 days, the NRC staff would publish a final analysis of the guideljnes and provide copies directly to the affected States and Indian tribes. The Commission could then offer a discretionary public hearing on the staff's final analysis.

5.

The Commission would then decide on whether or not to concur in DOE's proposed guidelines. These procedures would also apply to any DOE proposals to revise the siting guidelines. [Footnote Continued] _Because the State of Mississippi's proposal would have added even more procedures to the NRC's concurrence process, those additional procedures must also be rejected for the same reasons.

5 [7590-01] Bases for Request DOE has notified three of the petitioners, the States of Texas, Nevada and Utah, that they have within their borders one or more poten-tially acceptable sites for the first high-level radioactive waste repository. These States believe that this circumstance provides them with an. interest in a formalized mechanism by which they can participate in the NRC concurrence process. DOE has informed the other two peti-tioners, the States of Wisconsin and Minnesota, that they are potential candidates for a second waste repository. Accordingly, these States are also interested in participating in the NRC's concurrence in DOE's guidelines and in any proposed amendments to those guidelines. Petitioners discussed three reasons supporting their belief that the NRC should adopt the proposed formalized concurrence procedure: (1) the procedures will promote NRC's distinctive role under the NWPA; (2) NRC concurrence is rulemaking or its equivalent; and (3) the procedures are familiar and useful.

1.

The Procedures Will Promote NRC's Role Under NWPA. Peti-tioners contend that the NRC's concurrence role under the NWPA indicates a congressional intent to attach special significance to NRC's concur-rence in DOE's siting guidelines. Petitioners believe that their proposed rule will promote that congressional intent. Petitioners also contend that their proposed rule is a necessary and desirable means for promoting the NRC's distinctive role in developing the guidelines. They argue that by providing for public participation in the concurrence process, the proposed rule will help to ensure that the siting

6 [7590-01] guidelines reflect NRC policies because the public will have an opportunity to point out inconsistencies between the guidelines and NRC 1s technical licensing regulations.

2.

NRC Concurrence is Rulemaking or its Equivalent. "Petitioners contend that the act of concurrence or non-concurrence is an act of rulemaking subject to the notice and comment procedures of the APA. In Petitioners' view, NRC's concurrence is an act *a'f adoption of DOE's guidelines sufficient to make them an NRC rule. Accordingly, Peti-tioners believe that their proposed rulemaking procedures would satisfy the NRC 1s obligations under the APA to conduct a rulemaking on concurrence.

3.

The Procedures are Familiar and Useful. Petitioners believe that their procedures closely resemble those in 10 C.F.R. 60.11 for NRC oversight of DOE site characterization of high-level waste repositories. Petitioners also believe that their proposed procedures would be useful because they would apply also to any proposed amendments to the siting guidelines. Comments on the Petition On October 19, 1983 the Commission published the text of the petition and a request for comments on it in the Federal Register. 48 Fed. Reg. 48473. Although the comment period closed on November 2, 1983, the notice provided that late comments would be considered if it was practical to do so. The Commission received 17 _letters of comment

7 [7590-01] in response to the notice, including one late comment that it was able t .d 2 o cons, er. Seven commenters opposed the proposed rule: the American Nuclear Energy Counsel ( 11ANEC 11 ); the Atomic Industrial Forum's Subcommittee on High-Level Radioactive Waste ( 11 AIF 11 ); the Edison Electric Institute joined by the Utility Nuclear Waste Management Group ( 11 EEI/UNWMG 11 ); Duke Power Company ( 11 Duke 11 ); the U.S. Department of Energy ( 11 DOEi1 ); Middle South Services, Inc. ( 11 MSS 11 ); and Carolina Power and Light Company ( 11 CP&L 11 ). ANEC, the AIF and MSS contended that the NWPA does not require or support the proposed procedures. MSS stated its belief that ~f Congress had wanted formal rulemaking procedures for NRC concurrence it would have required such procedures. Because Congress did not so provide, MSS and ANEC concluded that such procedures would contradict Congress' intent that the guidelines be established expeditiously only 180 days after enactment of the NWPA. EEI/UNWMG and CP&L believe that the publ1c meeting which the Commission has stated it will hold prior to a decision on concurrence serves to promote the NRC's distinctive role under the NWPA as well as the Petitioners' need to present their views directly to the Commission. 2The Commission also received 3 mailgrams from private citizens in Mississippi who stated their support for the petition submitted by the Department of Energy and Transportation of the State of Mississippi. As noted above, the Commission is denying that petition as well because it requested procedures beyond those that the Commission has already determined are unnecessary and contrary to the public interest.

8 [7590-01] Most commenters opposing the petition noted that the Commission, in response to a similar petition filed by the Yakima Indian Nation, had already rejected the contention that concurrence was rulemaking for the purposes of the APA. They also contended that a separate N~C rulemaking on concurrence would be redundant, time-consuming and wasteful of resources. DOE noted that its extensive public comment process on the guidelines has already aired the issues which the'Commission will consider in determining whether to concur in those guidelines. And Duke noted that DOE has provided all those public comments to the Commission. Accordingly, these commenters concluded that Petitioners' proposed procedures were neither necessary nor desirable because they were redundant. 3 Ten commenters supported the proposed rule: the Yakima Indian Nation; the State of Mississippi Department of Energy and Transporta-tion; the Natural Resources Defense Council ("NRDC"); Hector & Associates representing Serious Texans Against Nuclear Dumping and People Opposed to Waste Energy Repository ("STAND/POWER"); POWER; the Southwest Research and Information Center ("SRIC"); the Nebraska Energy Office; Citizen Alert; the State of Wisconsin Department of Justice; and 3DOE also stated that NRC concurrence is required by the end of 1983 if DOE is to meet the *statutory deadline of January 1, 1985 for recommending three sites to the President for characterization. While the Commission recognizes DOE's legitimate desires to conform to time schedules in the NWPA, DOE's position is not properly included in the bases for the Commission's decision. The Commission's decision here cannot be based on the assumption that it will concur in DOE's guidelines by any particular time.

\

9 [7590-01] the Texas House-Senate Joint Study Committee on Hazardous Waste Dis-posal. Several of these commenters contended that concurrence is rulemaking.4 They also stated that the proposed procedures would provide a better procedural framework than a public hearing for inform-ing the Commission of the public's concerns. 5 This is especially so because* they believe that DOE has made numerous material changes to the proposed guidelines since the last opportunity for public comment to DOE. NRDC believes that DOE's most recent changes to the guidelines warrant an opportunity to provide written comments to the Commission. Some commenters believe that the proposed procedures would promote NRC's 4The State of Wisconsin Department of Justice took the position that unlike the petition by the Yakima Indian Nation, adoption of the procedures proposed by this petition does not depend on the conclusion that the Commission's concurrence is rulemaking. Rather, Wisconsin stated that this petition is premised on the State's belief that

• formalized procedures are necessary to ensure public participation in the NRC's concurrence process.

As discussed in this decision, such formalized procedures are not legally necessary, are not required in light of the Commission's previous decision to permit public participation in the concurrence process, and are not desirable because they would unnecessarily delay the concurrence process. 5sRIC and STAND/POWER also suggested that the Commission distribute directly to interested members of the public any NRC staff analysis of DOE's guidelines, and Citizen Alert suggested that the NRC hold public hearings in DOE target States. As discussed above at note 2, the. Commission's decision does not depend on fine-tuned procedural proposals. Rather, the Commission has found contrary to the public interest any elaborate procedures that would unduly delay its decision on whether to concur in DOE's guidelines. Moreover, the Commission has recently requested prospective participants in the public meeting on the guidelines to identify their representatives. 48 Fed. Reg. 50432 (November 1, 1983). Any persons who will not be able to attend that meeting will still have an*opportunity to express their views by submitting them to those representatives.

I I 10 [7590-01] distinctive concurrence role under the NWPA, and would guarantee public participation in that concurrence. STAND/POWER, SRIC, and the State of Wisconsin Department of Justice urged that the establishment of these procedures now would provide a consistent procedure for the,Commission's consideration of modifications to the guidelines. These commenters believe that such modifications will be necessary after EPA promulgates final repository standards under Sect ion 112 ( a )vof the NWPA and before the guidelines can be applied to the second repository. Commission Decision For the following reasons, the Commission denies the Petitioners' request for rulemaking.

1.

NRC's Role Under NWPA There is no doubt that Congress' upgrading the NRC's role from consultation to concurring in the guidelines indicates a congressional intent to create a special role for the NRC in the promulgation of DOE's siting guidelines. However, Petitioners have failed to identify any basis for their belief that their proposed rule will promote that congressional intent. If Congress had wanted the concurrenGe process to be a public rulemaking, it could have easily so required. 6 Rather, Congress gave DOE 180 days to develop siting guidelines *and to obtain 6see, for exampl*e, Section 404 of the Department of Energy Organization Act of 1977, 42 U.S.C. § 7174.

11 [7590-01] the NRC's concurrence in them. This schedule expresses a clear congres-sional intent that the guidelines were to be completed expeditiously. Since concurrence is only the final stage of the lengthier process of developing the guidelines, Congress could not have intended the NRC's concurrence process to be a lengthy*public proceeding. Th~ Petitioners also a~pear to believe that thei~ request for fonnal procedures is supported by the special role of potential host States under the NWPA. That Act does give potential host States special consideration in specific steps of the repository development process. But nothing in the NWPA suggests that these States have a special role in the NRC concurrence process that would mandate the use of formal procedures. Petitioners further suggest that their proposed procedures will help to ensure that the guidelines reflect NRC policies and are con-sistent with NRC rules. The Commission believes that the primary purpose of public comments is to help the NRC formulate its policy rather than to determine consistency of the guidelines with NRC regu-lations. However, as discussed below, at the public meeting the Commis-sion will also entertain comments on the consistency of DOE's siting guidelines with the NRC's requirements in 10 C.F.R. Part 60. Because both of these purposes can be accommodated at the public meeting, there is no need for the lengthier, more formal concurrence procedures pro-posed in the petition. For these reasons, the Commission finds that nothing-in NWPA supports Petitioners' proposal.

12 [7590-01]

2.

NRC Concurrence As Rulemaking. The NRC has already considered and rejected this proposition in its response to the petition by the Yakima Indian Nation. 48 Fed. Reg: 39536 (August 31, 1983). Neither the Petitioners nor any commenter has provided any additional support for this proposition. Accordingly, the Commission finds no basis for reconsidering its previous decision rejecting ihis proposition as unfounded.

3.

Familiarity and Usefulness of the Procedures. Petitioners' contention that the proposed procedures are familiar does not support the adoption of those procedures in the absence of a showing of neces-sity or utility. 7 These procedures are not the only means for public participation in the concurrence process; other less time-consuming and less complex procedures, such as the established public meeting, provide adequate opportunity for public participation. As for utility, Peti-tioners* argument is that these procedures could be applied to any proposed amendments to the siting guidelines. The Commission believes it would be premature to establish procedures now for NRC concurrence in any amendments to the guidelines. Before doing so, the Commission would 7P~titioners 1 proposal is also undesirable because it would interfere with the staff 1 s role as advisor to the Commission by requesting third-party comment on its recommendations. But the staff has the principal expertise to evaluate D0E's proposals and the Commission intends to use the staff's evaluation as a basis for its decision. Thus, the Commission believes that the st~ff should remain an integral part of the agency decisionmaking team and should particpate

• directly in advising the Commission on whether to concur.

13 [7590-01] want to evaluate the effectiveness of the procedures used in determining whether to concur in the guidelines. If and when DOE proposes amend-ments to the guidelines, the Commission will then determine what proce-dures may be appropriate for its concurrence process. Finally, th'e Commission believes that the forthcoming public meeting* on the proposed guidelines and written comment period on the Commission's proposed concurrence decision will provide an adequate forum for public participation in the Commission's concurrence process. Neither the Petitioners nor the commenters have provided any basis for reaching a contrary conclusion. Even if, as some commenters claim, DOE has materially changed the guidelines since last soliciting public comment, the participants in the Commission's meeting will have time to study DOE's final proposed guidelines before meeting with the Commis-sion. In addition, the NRC, Jn a companion Federal Register notice setting the schedule for the public meeting with the Commission, has identified the issues that the NRC staff believes are important to the Commission's decision. For the most part, these issues are familiar to the participants in DOE's rulemaking proceeding because the NRC has raised them before in its comments. Of course, participants may also raise any other issues they believe that the Commission should consider. Moreover, the Commission has agreed to issue for public comment its proposed decision regarding concurrence in the DOE guidelines. Thus, the public will have ample opportunity to bring to the Commission's attention any perceived problems with DOE's final version of the

14 [7590-01] guidelines and to address the issues uniquely of concern to the Commis-sion in its concurrence role. Denial After carefully considering the petition and comments on it, the Commission, for the reasons stated above, hereby denies the petition for rulemaking in Docket No. PRM 60-1. The Commission believes that it can best implement Congress' intent for the expeditious promulgation of siting guidelines and provide for public participation by providing the informal public meeting announced in response to the Yakima Petition. A copy of the petition for rulemaking and copies of the letters of comment and of the Commission's letter of denial are available for public inspection at the Commission's Public Document Room at 1717 H Street, NW., Washington, DC. Although Commissioner Asselstine agrees with the denial of the petition, he would have preferred a somewhat different approach for obtaining public comments than that adopted by the Commission. Commis-sioner Asselstine would have required the NRC staff to prepare and make available for public comment the staff's evaluation of the DOE guide-lines and its recommendation on the Commission's concurrence decision before the Commission's public meeting. He believes that this approach would have provided a more focused basis for comments by the partici-pants in the public meeting and would have provided a more meaningful opportunity for public participation in the NRC concurrence process.

15 [7590-01] Commissioner Gilinsky concurs in the result and agrees with Commis-sioner Asselstine 1s comment. Dated at Washington,D. C., this 9th day of December, 1983. . S. NUCLEAR REGULATORY COMMISSION ~~---- ~ J. CHILK Secretary o the Commission

The following persons were sent a copy of the Denial of the States of Texas, Wisconsin, Minnesota, Nevada and Utah 1 s Petition for Rulemaking: Malachy R. Murphy, Esq. James H. Davenport, Esq. Murphy and Davenport Evergreen Plaza Building 711 Capitol Way Olymphia, Washington 98501 Ken Cross, Esq. Assistant Attorney General Environmental Protection Division State of Texas P. 0. Box 12548 Austin, Texas 78711 Jocelyn F. Olson, Esq. Special Assistant Attorney General State of Minnesota 1935 West County Road B2 Roseville, Minnesota 55113 Paul Tinker, Esq. Assistant Attorney General State of Utah Room 236, Capitol Building Salt Lake City, Utah 84114 Thomas Kalitowksi, Chairman Minnesota Environmental Quality Board 100 Capitol Square Building 550 Cedar Street St. Paul, Minnesota 55101 David Berick Environmental Policy Institute 317 Pennsylvania Avenue, S.E. Washington, D. C. 20003 Mr. Steve Frishman Mr. Danny Smith The Office of the State-Federal Relations P. 0. Box 13005 Austin, Texas 78711 Mr. Wilbur G. Ball Executive Director Department of Energy and Transportation Watkins Building 510 George Street Jackson, Mississippi 29202 Carl A. Sinderbrand, Esq. Assistant Attorney General State of Wisconsin P. O.Box 7857 Madison, Wisconsin 53707 James C. Smith, Esq. Deputy Attorney General State of Nevada Heroes Memorial Building Carson City, Nevada 89710 William J. Lockhart P. 0. Box 8672 Salt Lake City, UT 84108 Dean R. Tousley, Esq. Harmon and Weiss 1725 I Street, N. W. Suite 506 Washington, D. C. 20006 Barbara A. Finamore, Esq. Natural Resources Defense Council, Inc. 1725 I Street, N. W. Suite 600 Washington, D. C. 20006 Don Hancock Information Coordinator Southwest Research and Information Center P. 0. Box 4524 Albuquerque, N. M. 87106

Alice Hector, Esq. Hector and Associates 910 Fruit Northwest Alburquerque, N.M. 87102 Robert R. Loux Nuclear Waste Evaluation Program Department of Minerals 400 W. King Street Suite 100 Carson City, Nevada 89710

\ \ WAYNE DOWDY DISTRICT OFFICES: P.O. BOX 589, ROOM 222. 4TH OISTRl~ISSISSIPPI POST OFFICE BUILDING JACKSON, MISSISSIPPI 39205 2 14 CA~t'ON HO'.,SE OFFICE BUILDING WAS('ll~GTON. O.C. 2051 S OOCKETEf: 18011969-3300 (202) 225-5865 u 13 t~ RC THE COMMERCE BUILDING 521 MA.IN STREET SUITT C-1 NATCHEZ. MISSISSIPPI 39120 WILLIAM WRIGHT ADMINISTRATIVE ASSISTANT COMMITTEES: "83 DEC - 2 p J~~~ 628 ENERGY ANO COMMERCE VITTRANS AFFAIRS (tongrr.s.s of the ~nitrd ~tatrs i~on.sc of Rqlrtsrntatine.s ~ashington, B.~. 20515 November 21, 1983 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch OFF I Cl~ OF SE t~Ht:: Ti\:.. : OOCI\EilNG & SERVIC* BRANCH

DOCKET NUMBER ___ *-.,.

PETITION RU!_E PRM -*c,-~-/ c+r Fil 4'11-/-13) Re: PRM-60-1 Rulemaking Petition

Dear Gentlemen:

Enclosed you will find a copy of the Mississippi Department of Energy and Transportation's endorsement of the proposed amend-ment to 10 CFR 60. I appreciate your consideration on this matter. If I, or my staff, can be of any assistance, please don't hesitate to contact us. With kind regards, Sincerely, 0ffJ?:::::! WD:tdc Enclosure 12/1.. To EDO for Appropriate Action.. Cpys to: Docket, OCA to Ack I 83-2551

1Add 1 l Cn,:*i ~Special Dis1r;~*,;,;';:*,:*,

I I I DEPARTitENT OF E!'<i'ERGY & TRANSPORTATION Watkins Building, 510 George Street . Jackson, Mississippi 39202-3096 601/961-4733 September 13, 1983 U. S. Nuclear Regulatory Commission 1717 H Street, N. W. Washington, O. C. 20555 Gentlemen: Re: Notice of intent to join the State of Texas as a co-petitioner in the matter of the* Petition of the State of Texas for the adoption of. a new regulation for concurrence.. in siting---0;.-:1.. \..:_,_<:~ quidel ines under the Nuclear Waste * -~-

• t}-~.: ~

Policy Act of 1982, P.L. 97-425 The State of Mississippi, -through the Mississippi Energy and Transportation Board, does hereby notify the Nuclear Regulatory Commission (the Commission), of its intent to join the State of Texas as a co-petitioner in the subject matter. In joining the State of Texas, the State of Mississippi respectfully requests the following change in the wording.of the first sentence of the fourth paragraph of the p~oposed text: (d) A period of not less than sixty (60) days shall be allowed for comment on the draft guidelines analrsis after which sixty (60) days, the Com-mission shall hold a public hearing or hearings to receive ora1 comments on the draft guidelines analysis. The Director shall cause to be pub-lished in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty {30) days prior to the date of the hearing. This request is submitted for and on behalf of the State of Mississippi by the Mississippi Energy and Transportation Board. If the petition is denied

• by the Commission, the State of Mississippi reserves all rights to support or decline to participate with Texas or any other co-petitioner in any

,,.-.. '('-"i*:;:-.:.:~.A.~~-tcia1_. ".',ey1ew of __ the denial._ __., __,.. _: ~-.. -....,,,.,4f,}-~:<:£,...~~:::_.... ~~~i!.?ii:~7..-;;r;-;,.,";i ~ -~- f

• _~;-

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This action by the State of Mississippi does not indicate, nor should:"it be*.. :--' :**_.

• construed in any way, tacit support for the disposal of high-level nuclear waste in the State of Mississippi.

WGB: fnp Very truly yours, lJ~./GdL Wilbur G. Ball Executive Director cy: Governor William F. Winter, Mississippi Attorney General Bill Allain, Mississippi Office of General Counsel, Texas NE #0351-83

DOCl,ET NUMBER ~ PETITION RULE PRM - M1~ ~04c3;i> Nov 9 - 83 -:I from the pen of EMERY NEMETHY, seacn:-:KElJD ... '>NR1., ECOLOGY/ ALER'f ~ BOX 621 13 NOV 15 p. BLOOMSBURG 178151 *

• 1,45 To : NRC Commissioners Samuel J Chilk, NRC Sec ' y Gentlemen -

would like to point out an inequity in your Notices of Rulemaking proeedures. The most recent example (one of many) was the Federal Regis t er notice, dated Wed, Oct 19-concernin0 a petition for rulemaking filed by the states of Texas, Utah, Wisconsin, Minnesota a nd Nevada. The comment period expired N OV ij. We didn ' t receive the notice until Mon, Nov 7. (I had checked the PO Box Fri, Nov 4 and the notice hadn ' t been rec ' d by then) Th e notice s a} s a copy of the petition may be obtained by writing to the Div of Rules and rtec ords - which would probably take a week to 10 days, minimum. Therefore, may we su gge s t y ou allow a t lea st 4 to 6 weeks fr om the publication of a rule - making notice to tne expiration of t t1e comment period? Very tr uly,

f U. s. NUCLEAR REGULATORY COMMISSION p C d ~p Do... , CH ~.......

WASHINGTON OFP'ICE: 0ISTIUCT 0FFlc:£S: 2114 RAYRUIIH HOUSE 0FP'IC:E BUILD,NG WASHINGTON, D.C, 20515 G. V. "SONNY" MONTGOMERY 3RD 0USTl'llc:T, M ISSIS$1PPI FEDCRAI. BUILDINll MERIDIAN, MISSISSIPPI 39301 (601) 693-6681 (202.) US-5031 COMMITTEES: VETERANS' AFFAIRS C:HAIRMAN QCongrt55 of tbt Wnittb $tatef0u\KNEilcrn 11,ou,e of l\tpresentatibe.s GOLDEN TRIAt<GU: AIRPOR*T COLUMBUS, MISSUISll"PI 39701 (601) 3l7-Z7&6 ARMED SERVICES ADMINISTIIATIYE ASSISTANT1 ANDRE CLEMANDOT mtasbington, ;D.<lt. 20515 13 tllV 17 FEDERAL BulLDINll A10 :1 1 l.AUREL. MISSISSIPPI 39440 (601) 149-1231 November 10, 1983 Mr. Scott Stuky, Chief Docketing and Services Branch Room 1123 OFFICE OF SEC.Re TAI< -r OOCKETI G SEIWll:F. BRANCH rfJJ Nuclear Regulatory Commission Matomic Building DOCKET NUMBER PETITION RULE PRM f 1717 H Street, N. w. Washington, D. C. 20555

Dear Mr. Stuky:

Re: PRM-60-1 Rulemaking Petition I am writing pursuant to the Mississippi Department of Energy and Transportation's letter to you of November 1, endorsing the proposed amendment to 10 CFR 60. The State of Mississippi also recommended changes in paragraph (d) of the proposed rule,

• which are detailed in that correspondence, I would appreciate your giving utmost consideration to the proposed amendment and urge that the Commission adopt the modifications to the text of the rule suggested by the State of Mississippi.

Thank you fo~ your attentibn to this matter. Sincerely,

11. ~'

~~SPIE Member of Congress GVM:nm

HIGH PLAINS UNDERGROUND WATER CONSERVATION DISTRICT NO. 1 2930 Avenue Q LUBBOCK, TEXAS 79405 AC/806 762-0181 BOARD OF DIRECTORS JAMES MITCHELL MACK HICKS WEBB GOBER JIM CONKWRIGHT GILBERT FAWVER A. WAYNE WYATT President Vice President D~KfitWasurer Ui:-Np,_,Member

• )

1 *, r._. Member Manager 13 MW 15 P2 :37 November 8, 1983 Secretary of the Commission Attention: Docketing and Service Branch U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Gentlemen: DOCf(ET nur.'- '.JER Pr -r *-n -- i\ l

• ULE PRM

/ CJ- ( C. 11:~,.. \ ~

c. J/-f t=£ 4r J./ 7~

The High Plains Water District, an independent state authority within Texas, wishes to join with the State of Texas, et al to petition on assigned Docket No. PRM-60-1. We respectfully request that the Commission ammend its regulations in 10 CFR Part 60 to adopt a procedural mechanism to govern current and future concurrence by the Commission in Department of Energy siting guidelines issued for high level nuclear waste repositories pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982. We believe it was the intent of Congress, in passage of the Nuclear Waste Policy Act, that NRC have an active involvement and participation throughout the entire site selection process. Such participation is essential to assure the licensability of repository sites recommended by DOE. Also, NRC has the regulatory responsibility to protect the public health and environmental safety. Adoption of the proposed rule will be helpful in developing a more open process for site selection guideline and provide input for NRC expertise and responsibility. It will also be helpful in quieting public unrest over the possible stigma of DOE developed guidelines which were arrived at after site investigation. There is great public concern that such guidelines might be tailored to fit the site rather than the reverse. Without laboring the point, we concur with the justification provided in the petition PRM-60-1, and urge the Commission to adopt the needed rule for use in connection with guidelines concurrence. A. Wayne Wyatt Manager AWW:kr

J I '1 tJ, I:. r ~ 9\ t... () J\'* "~- ~c \J_, :... 1 *. ~...,, 1:;:L.O u NC'i.L).:lS ?,...,!,\~j~ 'J ~XS:!L~DO0 NOIS5i';{, v.J,,'....'--~'</,f.:.n.j

• ,...,r~N *s *n

DOCl(ET NUMBER

• PETiT'
• J r." *I t:" PRM- {,() -(

C4FF=fi.;;.,~ff: ooiKETEO V USNRC November 1, 1983 Sec. of Commission -&3 tllV -7 P4 :oa Commission U. S. Nuclear Regulatory Washington, D. C. 20555 OFFICE OF SE. - . t. OOCKETI G S V'lU Docketing and Servi ce Br an ANCH Attention: The organization of P. O. W. E.R. (People Opposed to Wasted Energy Repositories) strongly support the Petiti on of the States of Texas, Wisconsin, Minnesota, Nevada, and Utah for the Adoption of a new regulation for concurrence in Siting Guidelines under the Nuclear Waste Policy Act of 1982. As a group of citizens concerned about the proper implementa-tion of the guidelines as well as the choice of the best geologic site for a nuclear waste repository, we believe the NRC should take every opportunity given them by the Nuclear Was t e Policy Act to see that the guidelines fullfill their purpose, and serve as an adequate basi s for the siting of the geologic repository. Adoption of a rule establishing a procedural framwork that promotes NRC ' s distinctive role in compliance with the Nuclear Waste Policy Act, is expected by those of us who are greatly concerned with the careful! fullfilment of the Act. Congress has given NRC power of involvement throught the Nuclear Waste Policy Act. We feel that is imcombent upon NRC to preform according to Congress ' expectations. Adoption of the proposed rule is requisite to the performance of the given task. Sincerely, ~~ Tonya Kleuskens P. O. W. E.R. Chairperson Rt. 1 Hereford, TX 79045 , kftowle 0 e* by c 1

• 1.,JJ/t.l..f JL

Sp I

JAMES M. DAVIS, JR. Senior Vice President Operations Support Secretary of the Commission DOCf<ET NUMBER PETi-i":~N l ULE PRM-{d)-/ C ~ P/!, Jr-t?7P7V- _Ca_ rol_i_n_a_Po_ we_ r -. -Li-_g_h_t_C_o_m_pa_ n_y 0ittJl:En P.O. Box 1551

• Raleigh, N. C. 27602 November 2, 1983

'83 tlJY -7 P4 :01 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch NOTICE OF RECEIPT OF PETITIONS FOR RULEMAKING FROM THE STATES OF TEXAS, WISCONSIN, MINNESOTA, NEVADA, AND UTAH DOCKET NUMBER PRM-60-1 (48 FED. REG. 48,473)

Dear Sir:

Carolina Power & Light Company supports the November 1, 1983, comments provided by the Edison Electr.ic Institute and the Utility Nuclear Waste Management Group regarding the subject identified above. While State involvement in the development of nuclear waste repository siting guidelines is certainly appropriate, the formal procedures sought by the petitioners are neither necessary nor desirable. The petitioners are expected to take an active role in the Department of Energy (DOE) rulemaking and may also appear at the public hearing already planned by the Nuclear Regulatory Commission. The petitioners thus have adequate opportunity to participate in the development of the siting guidelines and present their views to the NRC without a separate rulemaking on the Commission's concurrence in the DOE guidelines. The additional formalized rulemaking procedures requested by the petitioners are redundant and wasteful. Carolina Power & Light Company believes that the petition should be denied. Yours very truly, LHM/ppl 124

u. s. Ni..J<~1J: P. Rr.t... i' i,,.....,, ro~Ml ss10N DOCK\:Tl, 'G r. ~-;:r!Ct r'C110N C

Cfexas House of Representatives OOU(ETEfJ U',NRC P.O. Box 29!0 Au.,tin, Texas 78769-29!0 (512) 475-4192 Rm..300-C, Capitol l l O South 5th Street Brownfidd, Texas 79316 (806) 637-7616 November 4, 1983 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Secretary:

Sf A TE REPRESENTATIVE CjimCJJ. CJ?.ydd tlJV -7 Al1 :09 DOCJ<ET NUM t PET, i" *.,1J f.ULE PRM -~0-( (# PR-.lfFt./ 73) As chairman of the House-Senate Joint Study Committee on Hazardous Waste Disposal, a special committee created by

• the Texas Legislature to study the issues of hazardous-waste and nuclear-waste disposal, I would like to express the committee's support for the rulemaking petition filed by Texas and four other states, as cited in the Federal Register of October 19, 1983.

The choice of a nuclear-waste repository is a decision that could have profound and lasting impact on the State of Texas. Consequently, speaking for myself and the other members of the committee, I would urge that the commission's concurrence be a matter for careful deliberation, according to a legally articulated set of review procedures similar to, if not identical to, that suggested by the peti-tioners. The committee is the primary legislative body addressing this issue during the current legislative interim, and thus its sentiments can be accepted as reflecting the sentiments of the legislative branch as a whole. nsini)e~~ r:im D. Rudd Chairman JDR:dw

I' NC, NOISSl\'11 )

ST ATE OF N E Botl&ErA S K A USNRC ROBERT KERREY *GOVERNOR* KANDRA HAHN* DIRECTOR Secretary of the Connnission Attn: Docketing and Service Branch U. S. Nuclear Regulatory Connnission Washington, DC 20555

Dear Sir or Madam:

133 NOV -4 A11 :57 October 31, 1983 r C"ET U1,BE~ / d / P- , *1 C PRM -(6 - ._I I (:.~i'Prt ~,~1,) I am writing in support of the petition for rulemaking filed by Texas, Wisconsin, Minnesota, Nevada and Utah, Docket Number PRM-60-1, on concurrence for the high level nuclear waste repository guidelines pursuant to the Nuclear Waste Policy Act. The opportunity for public comment on your agency's evaluation of the proposed final guidelines would serve both the purposes of the Act and the NRC's distinctive role in it. The fundamental part the guidelines will play in later stages of the repository siting process suggest that a little time invested now may well save time over the long run. I urge you to consider this proposal favorably. Yours truly, KH:pg NEBRASKA ENERGY OFFICE, BOX 95085, LINCOLN, NEBRASKA 68509-5085 PHONE (402) 471-2867 AN EQUAL OPPORTUNITY/ AFFIRMATIVE ACTION EMPWYER M/F/H

p C I.

r Citizen c5lllert AN INDEPENDENT INFORMATION SOURCE FOR NEVADANS P.O. BOX 5391 i~[1~{ifr~G Si ts}~ ~-.,f,'.0. BOX 1681 BOARD OF DIRECTORS STEPHEN BLOOMFIELD Reno, Nevada JO ANNE GARRETT Baker, Nevada JOSEPHINE GONZALES Elko, Nevada DEBRA HARRY .Nixon, Nevada KIT MILLER Carson City, Nevada SUSAN ORR Washoe Valley, Nevada BILL ROSSE Austin, Nevada DON SPRINGMEYER Gardnerville, Nevada JUDY TREICHEL Las Vegas, Nevada JON WELLINGHOFF Reno, Nevada STAFF ABBY JOHNSON Reno Office ARLA PAINTER Reno Office BILL VINCENT Las Vegas Office RENO, NEVADA 89513 °8RA:CH_t{\ ' LAS VEGAS, NEVADA 89101 (702) 786~4220 (702) 382-5077 Secretary of the Commi ssion U.S. Nuclear Regulatory Commission ~ashington, L.C. 20555 attn: ~ocket and Service Branch nee.r Sir: P. 0. Box 5391 Reno, NV 89513 November 1, 1983 Citizen Alert is a statewide, non-profit public education and citizen action ort!anization in Nevada. The issue of nuclear waste dis 1:,osal is a. to-p priority for our groun. We are writing in support of the petition of the states of Texas, '*:is cons in, :-.,~innesota, Nevada, and Utah for the adoption of a new regulation for concurrence in siting guidelines under the :~uc lee.r ','iaste i'olicy Act of 1982 PL 97-425. We believe tha t it is essential ih this complex process tha t NRC be as fully involved as possible in review ©f the Department of Energy's (DOE) guidelines. Ttis is especially imuortant because the guidelines will serve as a foundation for the remainder of the siting rrocess and will set precedents for future documents and procedures. This is a crucial tine for NRC concurrence to begin. We also applaud the netitioners' call for public co~~ ent on NRC's draft and final guideline analysis. However, we respectfully urge the Com~ission to revise the rule to include broad er public r,artici p8.tion, including re~uiredpublic hearings in DOE target states. From our persnective as citizen activists, full public nartici pation is an es '":ential part of the ;;rocess, and one that neither DOE nor NRC should minimize, for it is nublic confidence in DOE's and NRC's actions thRt may ultimately vindicate their efforts. To conclude, \*:e support the s tr,: tes' petition, and urge that ful : er public~rticinRti on, inc l u~ing public he arings, be incorporated into the rule. Than~ you for c onsideration of our views. A,, SincerelJ, ~~~J Abby Johnson Executive Lirector Full citizen participation for democratic decisions on issues that affect our lives. Nonprofit - tax deductible.

u s., ' 'T'O J C"

MIDDLE SOUTH SERVICES, INC.I BOX 61OOO/NEW ORLEANS, LA.701"8BI /(f1Nl~4S~:2f-62 J DEL. PATTERS N MANAGER, ENVIRONMENTAL AFFAIRS November 1, 1983 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Subject:

MSUS Comments on the Petition for Rulemaking filed by the States of Texas et al. concern-ing amendments to 10 CFR Part

60.

Docket No. PRM-60-1. Middle South Services, Inc. (MSS) is a technical service and support company functioning on behalf of the Middle South Utilities System which serves the electrical requirements of approximately 1,600,000 customers in portions of Arkansas, Louisiana, Mississippi and Missouri. The following comments express our disagreement with the petition for rulemaking filed with the Commission by the States of Texas, Wisconsin, Minnesota, Nevada and Utah (Docket No. PRM-60-1). The petitioners have requested the Nuclear Regulatory Commission to amend 10 CFR Part 60 in order to adopt a procedural mechanism to govern current and future concurrence in high level nuclear waste repository siting guide-lines which are issued by the Department of Energy pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982 (NWPA). MSS does not believe that a formal procedural framework for NRC's concurrence with the Siting Guidelines is mandated by the NWPA. The Act does require NRC's concurrence with the final DOE Siting Guideline, but it does not require that a separate rule-making and opportunity for public comments be provided. The major result of this petition would clearly be to delay the siting of high-level waste repositories. The public has already been given two opportunities for written commentonDOE's proposed siting guidelines, as well as opportunities to comment at public hearings sponsored by DOE. NRC has also held public hearings for interested individuals and organizations to present their views to the Commission concerning NRC's concurrence or nonconcurrence with the proposed guidel ines. r' SERVING

• MIDDLE SOUTH UTILITIES. INC.
• ARKANSAS POWER & LIGHT COMPANY
• LOUISIANA POWER

.S. LIGHT COMPANY

• MISSISSIPPI POWER & LIGHT COMPANY
• NEW ORLEANS PUBLIC SERVICE INC.

r ~\I StO er l N y

Secretary of the Commission November 1, 1983 2 - In a Federal Register notice published on August 31, 1983 (48 FR 39536), the Commission stated in its response to a similar petition from the Yakima Indian Nation that, " *.* its concurrence role under Section 112(a) of the NWPA does not constitute a rulemaking action under either the Atomic Energy Act of 1954, as amended or the Administrative Procedures Act. Accordingly, the Commission finds that there is no legal obligation to provide an opportunity for notice and comment on the NRC ' s concurrence or noncurrence in DOE ' s Siting Guidelines." The NRC continued on to explain their reasoning behind this statement. All of those reasons are applicable to the State of Texas, et al. current petition for rulemaking. The Department of Energy is the clear rulemaker in the statute, not NRC. It is obvious from reviewing the NWPA that Congress did not intend to provide for two rulemakings in the development of Siting Guidelines for high-level waste repositories. The opposite is more likely since the pur-pose of the act is to provide for the permanent disposal of high-level waste expeditiously. If Congress had wanted the same rulemaking procedures for guideline concurrence, it would have clearly stated so. Thank you for this oppotunity to comment on this petition for rulemaking. Sincerely, J. . Patterson JDP:LMW :kal

Carl A. Sinderbrand Assistant Attorney General (608) 266-3936 123 West Washington Avenue Mailing Address: P.O. Box 7857 Madison, Wisconsin 53707 DOCKET NUMBER /4') PETITION RULE PRM_:Cotl-/{Jjj m~e jtate of ~isronsinl# Pe444-73) 'I) "ll DOCKETED cveparlment of ~ushre usNRC

• a3 NOV -3 All :14 Bronson C. La Follette November 1, 1983 Attorney General OFF ICE: OF SE d,t T f-OOCKETING & ~£~~fl Sensenbrenner, Jr.

BRANCH Deputy Attorney General Mr. Samuel J. Chilk, Secretary United States Nuclear Regulatory Commission 1717 H Street, N.W. Washington, D.C. 20555 Re: Comments on Petition to Institute Rulemaking (Docket No. PRM-60-1)

Dear Mr. Chilk:

On September 2,

1983, the States of Texas, Wisconsin, Minnesota, Nevada and Utah

("States") petitioned the Nuclear Regulatory Commission ("NRC"} to adopt a regulation governing its siting guidelines concurrence responsibilities under section 112(a} of the Nuclear Waste Policy Act of 1982 (NWPA}, 42 u.s.c. sec. 10132(a}. Prior to the filing of that petition, the Yakima Indian Nation ("Yakima"} petitioned the NRC to institute a rulemaking proceeding with respect to the siting guidelines developed by the Department of Energy ("DOE")

• On August 24,

1983, the NRC issued a

decision which rejected the Yakima petition but which agreed to provide an opportunity to comment on the guidelines prior to any NRC action on the guidelines. 48 Fed. Reg. 39546, dated August 31, 1983. There are obvious similarities between the two referenced petitions, in that they both relate to the process by which NRC will act on the DOE siting guidelines and fulfill its responsi-bilities under sec. 112(a}. In light of the recent action on the Yakima petition, however, we feel that it is important to clarify the purpose of the States' petition and to distinguish both its underlying rationale and effect from the Yakima petition. These clarifications are being submitted on behalf of the petitioning States, pursuant to the NRC' s request for written comments, 48 Fed. Reg. 48473, dated October 19, 1983.

U.S. NW~... DOC!~~ ( Postm"* Copi Add Special Di. 1;1~1,1;~ 1 11/, /Y3 I

Mr. Samuel J. Chilk, Secretary Page 2 Both the Yakima petition and the NRC decision thereon are premised on the legal characterization of "concurrence" as a rule requiring conformance with the procedural requirements of the Administrative Procedure Act (APA). The Yakimas characterize the guidelines as "a jointly issued rule for which each agency must meet the rulemaking requirements of the APA." (Yakima Petition at 3.) The Yakimas go on to suggest that the NRC concurrence requirement in this instance reflects the congressional intent that the NRC make an independent decision on the propriety of the guidelines, that the guidelines directly impact NRC's regulatory responsibilities, and that there is no justification for dispensing with normal rulemaking procedures. The NRC decision is premised on the legal conclusion that its "concurrence responsibility is not rulemak ing and does not require notice and opportunity for public comment." 48 Fed. Reg. 39536. It concludes, however, that regardless of minimum legal requirements, the NRC recognizes the significance of those guidelines and the propriety of soliciting further comment prior to exercising its concurrence responsibilities. 48 Fed. Reg. 39537. Accordingly, it offers an opportunity for formal, oral presentations by the various interested parties. Although the petitoners believe that the NRC' s concurrence responsibilities should be treated as rulemaking, the request to adopt a procedural rule does not rely on the proposition that the NRC's responsibilities under sec. 112(a) constitute rulemaking. Rather, the States, like the NRC, recognize the importance of the guidelines as the primary standards which will direct the early stages of the repository siting process. We further agree with the NRC that, because of the importance of the guidelines, the NRC should have the benefit of maximum public input prior to issuing its decision on concurrence. The States' petition is premised on the need for a formalized procedure to ensure that public participation is guaranteed. As indicated in the petition, the NRC's concurrence responsibility under sec. 112(a) reflects the importance with which Congress viewed NRC's oversight, as well as the importance of NRC' s action on the guidelines vis-a-vis other NRC responsibilities under the NWPA (Petition to Institute Rulemaking, at 6-9). Equally importantly, the States recognize that the siting guidelines are being developed in the context of very limited actual, hands-on experience with site characterization. As the DOE pursues its first round of site selection, it will undoubtedly develop a greater understanding of the factors which

1 Mr. Samuel J. Chilk, Secretary Page 3 Accordingly, are a living refinement and recognizes and enhance or detract from the viability of a site. the States believe that the siting guidelines document, one which will likely be subject to change.

Indeed, section 112 (a) expressly contemplates that the guidelines may be revised.

In proferring this procedural rule, the petitioners are looking to the future, to the time when DOE will have to consider a second series of potential repository sites. In order to protect the integrity of the siting process, petitioners urge that a process should be established now which will ensure that the guidelines, as they exist down the road, will fully reflect the inevitable advances in knowledge and technology. The best way to make these assurances is to provide for full public scrutiny of any revised guidelines, as both DOE and NRC recognize is necessary and appropriate for the initial guidelines. The rule proposed by petitioners is a procedural rule, which only establishes a process by which NRC will exercize its concurrence responsibilities. Unlike the Yakima Petition, it does not require NRC to promulgate the guidelines as rules. It does not impose any substantive mandate. Rather, it is offered as a mechanism to promote public scrutiny and acceptance and to advance the ultimate objective of developing the best guidelines possible. CAS:aag Sincerely, BRONSON C. LA FOLLETTE Attorney General Carl A. Sinderbrand Assistant Attorney General

DEPARTMENT OF ENERGY & TRANSPORTATION Watkins Building, 510 George Street Jackson, Mississippi 39202-3096 601/961-4733 November l, 1983 Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch

• a3 NOV -2 All :56 OFF,t,:: OF S *~l~t ;.;

DOC i< E. TING & SE.r'VIL 3RANCH Re: PRM-60-1 Rulemaking Petition Gentlemen: On September 13, 1983, the State of Mississippi notified the Commission of its intent to join the States of Texas, Wisconsin, Minnesota, Nevada and Utah in the rulemaking petition regarding 10 CFR 60. Enclosed is a copy of that correspondence. The State of Mississippi, through this correspon-dence, does hereby notify the Commission of our endorsement of the proposed amendment to 10 CFR 60 and urges the Commission to rule favorably on the petition and adopt the proposed amendment to the rule. Further, the State of Mississippi requests consideration by the Commission of two changes in the text of paragraph (d) of the proposed rule. The changes are as follows: (l) delete the first sentence from paragraph (d) and substitute therefor the following: "A period of not less than sixty (60) days shall be allowed for comment on the draft guideline analysis after which sixty (60) days, the Commission shall hold a public hearing or hearings to receive oral comments on the draft guidelines analysis. The Director shall cause to be published in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty (30) days prior to the date of the hearing."

C'. ' I l J

, (j

.c...l..) vj

Secretary of the Commission November l, 1983 Page Two (2) delete the last sentence of paragraph (d). I appreciate your consideration of this matter and look forward to your response. WGB:fpf cy: Governor William Winter Attorney General William Allain Senator John Stennis Senator Thad Cochran Representative Jamie Whitten Representative G. V. Montgomery Representative Trent Lott Representative Wayne Dowdy Representative Webb Franklin Very truly yours, Wilbur G. Ball Executive Director Members, Nuclear Waste Policy Advisory Council Members, Nuclear Waste Technical Review Committee

C, I D R DC I ""'

• PRM PE.TITICN RULE_

D 't<E ED USNRC

• a3 NOV -2 n :56 DEPARTMENT OF ENERGY & TRANSPORTATION Watkins Building, 510 George Street Jackson, Mississippi 39202-3096 601/961-4733 September 13, 1983 U. S. Nuclear Regulatory Commission 1717 H Street, N. W.

Washington, D. C. 20555 Gentlemen: Re: Notice of intent to join the State of Texas as a co-petitioner in the matter of the Petition of the State of Texas for the adoption of a new regulation for concurrence in siting quidelines under the Nuclear Waste Policy Act of 1982, P.L. 97-425 The State of Mississippi, *through the Mississippi Energy and Transportation Board, does hereby notify the Nuclear Regulatory Commission (the Commission), of its intent to join the State of Texas as a co-petitioner in the subject matter. In joining the State of Texas, the State of Mississippi respectfully requests the following change in the wording of the first sentence of the fourth paragraph of the proposed text: (d) A period of not less than sixty (60) days shall be allowed for comment on the draft guidelines analysis after which sixty (60) days, the Com-mission shall hold a public hearing or hearings to receive oral comments on the draft guidelines analysis. The Director shall cause to be pub-lished in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty (30) days prior to the date of the hearing. This request is submitted for and on behalf of the State of Mississippi by the Mississippi Energy and Transportation Board. If the petition is denied by the Commission, the State of Mississippi reserves all rights to support or decline to participate with Texas or any other co-petitioner in any judicial review of the denial. This action by the State of Mississippi does not indicate, nor should it be construed in any way, tacit support for the disposal of high-level nuc1ear waste in the State of Mississippi. Very truly yours, lJ~.JG,~ Wi 1 bur G. Ba 11 WGB:fnp Executive Director / J.t~ ~ cy: Governor Wil 1 i am F. Winter, Miss i ss i pp i Acknowledied by card.Jf ~ * * * * * * * ***.-..... Attorney General Bill Allain, Mississippi Office of General Counsel, Texas NE #0351-83

U.S. NUCLE.<',...,.., DOCKET!,.. - omc r OF, - Postmark D lo Copies Ile Add' I Cor* Special Di.

• 1 J 1. cr s

OOC:KE ED USNRC Department of Energy Washington, D.C. 20585 NOV 2 1983 i3 HOV -J; P4 :15 Honorable Samuel J. Chilk Secretary of the Commission u.s. Nuclear Regulatory Commission Washington, D. c. 20555

Dear Secretary Chilk:

This is in response to your request for comment (48 FR 48473, October 19, 1983) on the petition for rulemaking made by the States of Texas, Wisconsin, Minnesota, Nevada, and Utah (Docket No. PRM-60-1). The Department of Energy (DOE) believes the petitioners' request would serve only to introduce redundant procedural requirements into a technical determination by the Commission on whether or not to concur in the Guidelines being developed by DOE pursuant to Section 112{a) of the Nuclear Waste Policy Act of 1982 (the Act). DOE is developing the Guidelines through a rulemaking process which will conclude after the Commission's concurrence. The petitioners would have Nuclear Regulatory Commission institute a parallel rulemaking on the same subject matter. This would result in an unacceptable delay in issuing final guidelines and make it virtually impossible for the Department to meet the statutory date of January 1, 1985 to recommend 3 sites for detailed characteri-zation. The issues which the Commission would necessarily consider as part of its concurrence determination have already been aired through extensive public comment on the record. The DOE has developed the Guidelines under a notice and comment procedure with two periods of public comment {the first being 60 days duration and the second being 30 days} and four additional opportunities for consultation with, or comment by, the States. Five regional public hearings were held by DOE during the first public comment period. In order to optimize public participation, DOE supplemented the public comment Federal Register notices on both occasions with a direct mailing of relevant documents to over 5,000 addressees that directly invited public participation in the process. DOE has provided Commission staff with copies of all of the comments elicited by this process. The staff, therefore, should be in possession of all appropriate input from which to independently evaluate the issues at hand. In addition, it should be noted that the Commission issued its final rule on 10 CFR 60 Technical Criteria (48 FR 28194) in June 1983, including criteria by which the Commission will judge the repository sites to be proposed in DOE license applications. The Commission rulemaking on

C:

l.

2 technical criteria considered the same technical questions with respect to repository sites as the Commission must now consider in deciding the question of concurrence on the Guidelines. That two-year rulemaking also offered ample opportunity for public comments to influence the develop-ment of Commission policies in this area. The Congress, in writing the Act, anticipated that the Guidelines could be issued within 180 days of enactment. we are now approximately 120 days beyond the deadline established in the Act, due to the extensive allowances for consultation and comment described above. The Congress has thus far been tolerant of the delay in Guidelines development, perhaps hoping, as we do, that the extra effort will have *paved the road* for the program to proceed to its next major milestones. The Act requires that no less than three sites are to be recommended to the President for characterization by January 1, 1985. The January 1, 1985, date itself places great burdens on the pace of site character-ization if subsequent dates in the Act are to be met. Before the Secretary of Energy can make candidate site recommendations, five sites must be nominated and a statutory environmental assessment prepared for each. All of these actions await completion of the Guidelines, and there are only 14 months remaining. This requires that DOE have final asses-sments and nominations completed during the summer of 1984. NRC concurrence in the Guidelines is required by the end of 1983 for this schedule to be met. We believe that the Congress will watch closely our compliance with the January 1, 1985, milestone. A protracted concurrence review by the Commission will almost certainly cause us to miss that deadline and raise the question whether each increment of time along the path has served some constructive and necessary purpose. Neither the rulemaking to amend 10 CFR 60 as requested by the petitioners nor their recommendation for concurrence review, particularly when viewed in the context of the current rulemaking, would appear to serve such a purpose. On behalf of the DOE, I thank you for providing us the opportunity to comment on the petition and appreciate your consideration of our views. Sincerely, L. Morgan Acting Director Office of Civilian Radioactive Waste Management

Natural Resources Defense Council, Inc. 1725 I STR EET, N.W. DOC.KETED USNRC SUITE 600 WASHINGTON, D.C. 20006 New York Office 122 EAST 42ND STREET NEW YORK, N.Y. 10168 2 12 949-0049 November 2, 1983 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch 13 NOV -2 Pl :51 Re: Notice of Receipt of Petitions for Rulemaking from the States of Texas, Wisconsin, Minnesota, Nevada and Utah: Docket No. PRM-60-1

==Dear Mr

• Chi lk :==

'11he Natural Resources Defense Council, Inc., the Environmental Policy Center, and the Sierra Club hereby support the September 6, 1983 petition of the States of Texas, Wisconsin, Minnesota, Nevada and Utah to institute rulemaking governing Commission siting guidelines concurrence under Section 112{a) of the Nuclear Waste Policy Act of 1982. {See 48 Fed. Reg. 48473, October 19, 1983). In our view, it is essential to a reasoned decision on concurrence that the Commission give full consideration to the views of interested States, affected Indian tribes and members of the public regarding the DOE proposed high-level nuclear waste repository guidelines. '11he State petition sets out a streamlined procedure for the Commission to solicit, receive, and consider these views. By making available both the proposed final guidelines and th~ draft NRC Staff guidelines analysis, this process would enable participants to focus their comments on issues of most importance to the Commission: namely, whether the proposed DOE guidelines are inconsistent with, or fail to support fully, the commission's licensing and regulatory responsibilities for high-level nuclear waste. The limited public hearing originally proposed by the Commission in response to a petition of the Yakima Indian Nation (48 Fed. Reg. 39536, Aug. 31, 1983) is an insufficient mechanism for dealing with the complex issues raised by the proposed DOE guidelines. Rather, the opportunity for written comment is 100% Recycled Paper New England Office: 16 PRESCOTT STREET

• WELLESLEY HILLS, MA. 02181
• 617 237-0472 Public Lands Institute: 1720 RACE STREET
• DENVER, co. 80206
• 303 377-9740

~ /,,,/ Acknowfcd~;,t-d 1.;y ~a. J. ((/?f.'f..~... f./?,.~

Postm rk Copies Add' I c.., Spew.I ~ I

Mr. Samuel J. Chilk November 2, 1983 Page Two essential for an in-depth analysis of the guidelines and their relationship to 10 CFR Part 60. The Commission was incorrect in stating that "there is nothing more that could be said to the NRC over and above the views presented to the DOE and known to the NRC *** to influence the concurrence decision" ( Id. at 39537). To the contrary, DOE has radically altered the content of those guidelines since the close of the public comment period. Although we submitted detailed comments on the May 27, 1983 draft DOE guidelines, this draft was greatly revised on August 2, 1983. Members of the public other than the State and Indian tribes, however, were not permitted to comment on these revisions. Even greater revisions were made on the September 23, 1983, "Proposed Final" version of the guidelines, which were again insulated from public notice and comment. These revisions include changes in the site selection process, weakening of technical. site disqualifying factors, and a reduction in the overall "defense-in-depth" conservatism that the site selection process is intended to provide. There is simply no way that the Commission will already have had the "benefit of our views" on the matter, because we have to date been given no opportunity to express those views. The State petition would permit all interested members of the public to submit full written comments on the version of the guidelines actually presented to the Commission. '11he process would further enable members of the public who have been deeply involved in the issues, but who, for reasons of distance and limited resources, would be unable to attend a public hearing in Washington, D.C., to aid the Commission to the fullest extent possible in making its concurrence decision. Finally, including this process in 10 CFR Part 60 would serve to facilitate later NRC concurrence decisions regarding proposed revisions in the Section 112(a} guidelines. We appreciate the opportunity to present our views to the Commission on this matter, and hope to be able to participate further in the concurrence process through the mechanism set out in the State petition.

Mr. Samuel Chilk November 2, 1 983 Page Three Respectfully submitted, arbara A. Finamore Natural Resources Defense Council Y~,#'~ David Berick Environmental Policy Center ..__Broas a~~~ sierra Clu~

. t HECTOR & ASSOCIATES

• PA November 1, 1983 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch

Dear Secretary:

DOCKETED USHRC ~3 NOV -2 Ai1 :55 0Ff 1cE

- sEcr OOCKE.TING & SEi*'.J, BRANCH Serious Texans Against Nuclear Dumping (STAND) and People Opposed to Wasted Energy Repository (POWER) hereby submit their comments on the need for NRC rulemaking related to its concurrence on the Department of Energy's final repository guidelines, as requested in the NRC ' s notice (48 Fed. Reg. 48473)

• STAND is a non-profit corporation consisting of citizens who reside in Swisher County, Texas.

The organization was formed for the purpose of obtaining for and providing to the citizens of Swisher County and surrounding counties information related to the potential siting of a high-level nuclear waste repository in the Texas Panhandle. STAND is particularly concerned about preserving present agricultural land and the protection of groundwater in that region. POWER is a non-profit organization consisting of citizens who reside in Deaf Smith County, Texas. The organization was formed for the purpose of obtaining for and providing to the citizens of Deaf Smith County and surrounding counties information related to the potential siting of a high-level nuclear waste repository in the Texas Panhandle. POWER is also concerned with preserving agricultural land and protecting groundwater in that region. STAND has been actively involved in gathering and disseminating information on the DOE program for almost two years. Among its activities have been sending two people to the December 1982 NWTS meeting, commenting on OOE's draft guidelines of February 7 and on the revised guidelines of May 27, and participating actively in UOE 1 s public hearings in Tulia and Austin, Texas in May related to issues that should be considered in the Environmental Assessment related to site nominations, as required by the Nuclear Waste Policy Act, Public Law 97-425, Section 112(b)(E) and (H)(2). POWER has been actively involved in gathering information and disseminating it to the public for the past seven months. The organization has sponsored numerous public forums and an information fair, commented on OOE's February 7 proposed guidelines, and participated actively in the DOE public hearings in Hereford and Tulia, Texas in May. STAND and POWER strongly support the need for rulemaking by the NRC on its concurrence in DOE's high level waste siting guidelines. Therefore, we urge the staff to propose a draft rule for public comment pursuant to Section 553(b) and (c) of the Administrative Procedure Act. A LICE G HECTOR Lawyer 910 FRUIT NORTHWEST-ALBUQUERQUE

• NEW MEXICO 87102 TELEPHONE 505
• 242-7600

U.S. NUCLFAR t?CG /'/.. f'.' COdMISSIOij DOCK~T !~ *:; ~- S~~- 'IC SZCTION omc~ o: THI.: ~i:CHT ARY OF TH: C'Olv',/,\1='.:-:.:0N Postmark Dale Copios l'l,:,ccive] / Add' I C.,;1 ~ P.r--.r.. -d Specid D1 d611ti~,!1

Secretary of the Commission November 1, 1983 Page 2 With some additions to insure adequate public participation, we can, in fact, support the rule as proposed by the five states in their petition dated September 2, 1983. Attached are some more detailed comments on the need for rulemaking and the importance of public participation in the process. Thank you for your consideration. ~Al.~fv-Jl_ Alice Hector Attorney for STAND and POWER fl~ Don Hancock Consultant for STAND

COMMENTS ON NRC's NOTICE OF RECtIPT OF PETITIONS FUR RULEMAKING FROM THE STATES OF TEXAS, "1l1SCONSIN, ""'ffiNNESOTA, NITAUA, AND UTAti In addition to being quite familiar with the February 7, May l7, and September 23 versions of DOE's proposed repository guidelines, we have read the entire petition of September 2 as submitted by Texas, Wisconsin, Minnesota, Nevada, and Utah to the NRC, as well as the Notice of Intent from the State of Mississippi, through the Mississippi Energy and Transportation Board, dated September 13, 1983, notifying the Commission of its intent to be a co-petitioner *

1. The position of the states that NRC rulemaking on the concurrence requirement is both necess~and desireable is well founded.

As correctly described in the petition from the states, the clear language and legislative intent of the Nuclear Waste Policy Act was that the NRC concurrence be an independent action of NRG. Such a NRC decision must be based on careful consideration and not be an automatic affirmation of UOE's proposal. Indeed, the courts have stated that concurrence means obtaining an affirmative vote for any proposal rather than allowing silent submission or mere aquiescence. Uavis !:.. City of Willoughby, 182 N.t::. 2nd 552, 556, 173 Ohio St. 338; Dillon!:_ Scofield, 9 N.W. 554, 555, 11 Neb. 419; ~tat~!_* Pierce, 27 P.2d 1083, 175 Wash. 461; Blakemore v. Brown, 219 S.W. 311, 14l Ark. 293. The change from a requirement for "consul tation 11 to 11concurrence 11 of the Commission on the DOE guidelines in the Senate version of NWPA, and the adoption of the House of that requirement, clearly indicates the congressional intent for a strong role for the NRC prior to promulgation of the guidelines. Such an important decision of the NRC should be taken only after careful consideration by the Commission of the views of DOE, other federal agencies, 1

affected states and Indian tribes, the public, as well as those of the NRC staff. In orcter to assure consideration of these views there should be a process, defined in advance, for the Commission to circulate drafts, obtain comments, and vote, while allowing sufficient time for each portion of the process. The guidelines are an essential part of the entire site selection process and therefore of the entire repository program. Indeed, Congress required the promulgation of final guidelines as a first step without which no other site selection action could be taken. Thus, in addition to providing the requirements that DOE must follow in its site selection, the yuidelines are also an essential time for NRC involvement early in the site selection process. The NRC must, therefore, carefully consider the impact of the guidelines on NRC's statutory authority and its licensing requirements and, on that basis, concur or not concur with the UOE proposed guidelines.

2.

NRC's concurrence~ rulemaking or its equivalent. We agree with all aspects of the argument of the state petitioners that NRC's concurrence or nonconcurrence amounts to an act of rulemaking, as stated on pages 11 and 12 of the petition. In our comments to DOE on the draft guidelines, we have pointed out that the Commission's concurrence role must be recognized in the process of developing the guidelines. Since UOE has not clearly recognized this authority and since only NRC can define how its concurrence will be effectuated, a rulemaking process is required, as established by the APA. An opportunity for public comment on the proposed rule is the only appropriate means available to the Commission to establish its concurrence procedures. 2

Additionally, the guidelines will clearly have to be revised in the future, as allowed by Section 112(a} of the Nuclear Waste Policy Act. We believe, for example, that the guidelines must be modified to conform to the final tPA standards, when promulgated. With the experience of utilizing the guidelines for the site selection of the first repository, the guidelines will almost certainly again be modified before being applied to the site selection for the second repository. Thus, a clear definition of the procedure that both DOE and NRG will use in considering and adopting such revisions is necessary now so that a consistent procedure is used throughout the process *

3. Clear opportunity for public participation must be included.!!!_ NRC 1 s concurrence on DOE 1 s guidelines.

We recommend a change in the language of the proposed rule to ensure notice to and participation by the interested public. As proposed, the text of the rule requires Federal Register notices when NRG receives DUE 1 s proposed final guidelines (part b}, when the Director has prepared the draft guidelines analysis (part c}, and when the Commission issues its order of concurrence or nonconcurrence (part e}. These are the only notices to the general public regarding NRC 1 s concurrence on the guidelines. On the other hand, in addition to the Federal Register notices, "the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a po ten ti ally affected site" would be transmitted copies of each of the documents requiring the Federal Register notices and would receive copies of the final guidelines analysis (part d}, for which there is no Federal Register notice or other distribution required.

We support the requirements for direct distribution of all of these documents to officials of the states and affected tribes. However, we also believe that interested members of the public should be included in the direct distribution upon prior written request. Other members of the public would still be able to obtain copies by writing after the Federal Register notice; however, the timeframes for public response are frequently too short to adequately comment on such highly technical information without receipt of the material in the same timeframe as the publication of the Federal Register notice. While the states, tribes, and the l~RC all have responsioilities for protecting public health and safety, the public's input in the exercising of these responsibilities is both essential and desireable. Such involvement is essential because individual citizens or their organizations are most familiar with their needs and can therefore provide important input to the Commission which would otherwise probably not be available. Furthermore, because of the intense public interest in, and strong skepticism about, the federal government's ability to safely manage radioactive wastes, an open process including direct public involvement at all important points is desireable to encourage public acceptance of important decisions that will have far reaching impacts on their lives. Thus, we would suggest that the proposed rule be amended in parts b, c, and din the requirements for distribution of documents as follows: "copies [of the documents shall be transmitted] to the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a potentially affected site and to any other person making a prior written re guest for such cop, e's."11 Finally, we support the proposed amendment to the first sentence of part d of the text, as submitted by the State of Mississippi, as follows: 4

(d} A period of not less than sixty (60) days shall be allowed for comment on the draft guidelines analysis after which sixty (oO} days, the Commission shall hold a public hearing or hearings to receive oral comments on the draft guidelines analysis. The Director shall cause to be published in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty (30) days prior to the date of the hearing. This addition would serve the dual function of requiring a public hearing on the final proposed guidelines, for which neither UOE nor NRG has currently required, and to allow oral public comment on the Uirector 1 s draft guidelines analysis

• 5

SOUTHWEST RESEARCH AND INFORMATION CENTER Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, U.C. 20555 Attn: uocketing and Service Branch

Dear Secretary:

-SJ NOV -2 All :54 Southwest Research and Information Center (SRIC) herein submits its comments on the petition for rulemaking on the Commission's concurrence on OOt's final general nuclear waste repository guidelines, pursuant to t he notice of October 19, 1983 (48 Federal Register 48473). SRIC is a nonprofit, educational and scientific organization founded in 1971 and involved researching, providing infonnation to the public, and participating directly in various energy and environmental issues. For the past 7 years the Center has actively studied nuclear waste management issues. While recognizing that there are many unresolved technical issues regarding site selection, repository engineering, and waste transportation, our experience strongly indicates that none of these issues can be resolved nor can required public acceptance of any high-leve1 nuclear waste repository be achieved without substantial public involvement throughout the entire process. The public's concern and skepticism about the federal government's efforts at managing nuclear wastes has been accentuated by the manner in which uOE has mishandled the general repository guidelines. While this organization, various states, and others strongly urged DOE to re-publish its original guidelines, it chose only to notify the public of a Task Force redraft, which was apparently not a formal departmental proposal. Further, the September 23 draft guidelines are considerably different than either the February 7 or May 27 versions, and yet have not been issued for comment from anyone other than various states. Because UOE has not allowed for needed public comment, only the NRG can ensure that such comments are received and considered. A further reason that NRG should have a ru1emaking process, including significant notice to the public, is to maintain the r~RC's independent role in the repository selection and licensing process. Because of the public's skepticism about DOE's activities, people are closely watching this first clear indication of how the NRG will excercise its authority regarding repository site development. For the NRG to give pro-forma approval to the DOE draft guidelines and do so without substantial public comment would not be in compliance with the intent of the Nuclear Waste Policy Act (NWPA) and would raise substantial questions regarding the NRC's role in protectiny public health and safety throughout the selection and licensing process. Acknowff' qrd i-y card 1,/4/1.~..... ~ P.O. BOX 4524 ALBUQUERQUE NEW MEXICO 87106 sos - 262-1862

U.S. NU('! F "GL'l.A.,..1, COMMISSIO. DOCKETING l', smv,c-SECTION OFFl:E O'" TX ~C:"' ET RY Or P 1~ CO, ISSION D C....,t "., t IC$ Postmark Dato _tt//f.._3 __ _ Copies RecorYod Add' I Copi s r.'.(i-r Special Distribution I ..... J

Secretary of the Commission November 1, 1983 Page 2 Thus, we strongly believe that there are sound legal requirements for the NRG to engage in a formal rulemaking process on its concurrence role, as requested in the states* petition. However, even if NKC maintains its position that rulemaking is not legally required, as expressed in its August 24 order on another rulemaking petition (48 Federal Register 39537), SRIC urges the Commission to use its discretion to consider the states' petition and what we believe to be substantial interest in such a rulemaking process by the puolic (and despite a very short period for the public to express its interest) by proceeding with rulemaking. Such a process would enhance a public view that the NRC is, indeed, going to carefully review all UOE actions and strive to protect public health and safety throughout the repository selection and licensing process. Attached are more detailed comments on the states' petition. Thank you for your careful consideration of these views. Sincerely, Don Hancock Information Coordinator

COMMENTS ON NRC's NOTICE OF RECEIPT OF PETITIONS FUR RULEMAKING FRUM THE STATES OF TEXAS, WISCONSIN, MINNESOTA, l'JEVAUA, ANU UTAH In addition to oeing quite familiar with the February 7, May 27, and September 23 versions of DOE's proposed repository guidelines, SRIC has reviewed the entire petition of September 2 as submitted by Texas, Wisconsin, Minnesota, Nevada, and Utah to the NRC, as well as the Notice of Intent from the State of Mississippi, through the Mississippi t:ner!:Jy and Transportation Board, dated September 13, 198J, notifying the Commission of its intent to be a co-petitioner

• We believe that there are various strong reasons that the states' petition should be favorably considered by the NRC and that a rulemaking on the concurrence process should be initiated.

1. The position of the states that NRC rulemaking on the concurrence requirement 1s both necessaryand desireable is well founded.

As correctly described in the petition fro111 the states, the clear language and legislative intent of the Nuclear Waste Policy Act was that the NRC's concurrence on the general repository guidelines be an independent action of NRC. Such N~C concurrence must be based on careful consideration of the draft guidelines and not be an automatic affirmation of UUE's proposal. The change during Senate consideration of the waste policy Dill, adopted by the House, from a "consultation" to "concurrence" role for the Commission on the DUE guidelines clearly indicates the congressional intent for a strong role for the NRC prior to promulgation of the guidelines. Any such important decision of the NRG should be taken only after careful consideration by the Commission of the views of UUE, other federal agencies, affected states and Indian tribes, and the general public. 1

The guidelines are an essential part of the entire site selection process and therefore of the entire repository program. Indeed, Congress required the promulgation of final guidelines as a first step without which no other site selection action could be taken. Thus, in addition to providing the requirements that DOE must follow in its site selection, the guidelines are also an essential time for NRC involvement early in the site selection process. NRC must, therefore carefully consider the impact of the guidelines on NRC 1 s statutory authority and its licensing requirements and concur or not concur with the DOE proposed guidelines.

2.

NRC 1 s concurrence is rulemaking or its equivalent. SRIC agrees with all aspects of the argument of the state petitioners that NRC 1 s concurrence or nonconcurrence amounts to an act of rulemaking, as stated on pages 11 and 12 of the states* petition. In our comments to DOE on the draft guidelines, we pointed out that the Commission's concurrence role must be recognized in the process of developing the guidelines. DOE has not clearly recognized this authority in its final draft guidelines. However, in any case, only the NRC can define how its concurrence will be effectuated. Therefore, to properly establish its concurrence role, a rulemaking process is required, as provided by the APA. An opportunity for public comment on the proposed rule is a necessary means for the Commission to establish its concurrence procedures. Additionally, the guidelines clearly must be revised in the future, as allowed by Section 112(a) of the Nuclear Waste Policy Act. SRIC believes, for example, that the guidelines must be modified to conform to the final EPA standards, when promulgated. With the experience of utilizing the guidelines for the site selection of the first repository, the guidelines will almost

certainly again be modified before being applied to the site selection process for the second repository. Thus, a clear definition of the procedure that both DOE and NRG will use in considering and adopting such revisions is necessary now so that a consistent procedure is used t hroughout the process.

3. Clear opportunity for public participation must be included in NRC's concurrence~ DOt's guidelines.

One area of changes that should be included in the text of the proposed rule is to ensure notice to and participation by the interested public in the NRG concurrence process. As proposed, the text of the rule requires Federal Register notices when NRG receives DOE's proposed final guidelines (part b), when the Director has prepared the draft guidelines analysis (part c), and when the Commission issues its order of concurrence or nonconcurrence (part e). These are the only notices to the general public regarding NRC's concurrence on the guidelines. On the other hand, in addition to the Federal Register notices, 11 the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a potentially affected site" would be transmitted copies of each of the documents requiring the Federal Register notices and would receive copies of the final guidelines analysis (part d), for which there is no Federal Register notice or other distribution required. We support the requirements for direct distribution of all of these documents to officials of the states and affected tribes. However, we also believe that interested members of the public should be included in the distribution upon written request. While the states, tribes, and the NRC all have responsibilities for protecting public health and safety, public input into the exercising of these responsibilities is essential and desireable. 3

Such involvement is essential because individual citizens or their organizations are most familiar with specific needs and can therefore provide important input to the Commission which would otherwise probably not be available. Furthermore, because of the intense public interest in, and strong skepticism about, the federal government's ability to safely manage radioactive wastes, an open process including direct public involvement at all important points is desireable to encourage public acceptance of important decisions that will have far reaching impacts on their lives. Thus, SRIC suggests that the proposed rule be amended in parts b, c, ano din the requirements for distribution of documents as follows: "copies [of the documents shall be transmitted] to the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a potentially affected site and to any other person making a written request for such copies:-"" - Finally, we support the proposed amendment to the first sentence of part d of the text, as submitted by the State of lv1ississippi, as follows: (d) A period of not less than sixty (60) days shall be allowed for comment on the draft guidelines analysis after which sixty (6U) days, the Commission shall hold a public hearing or hearinys to receive oral comments on the draft guidelines analysis. The Director shall cause to be published in the Federal Register a notice of public hearings on the draft guidelines analysis at least thirty (30) aays prior to the date of the hearing. This addition would serve the dual function of requiring a public hearing on the final proposed guidelines, for which neither Uut nor NKC has currently required, and to allow oral public comment on the Uirector's draft guidelines analysis. Since the Commission has itself already stated that "in the past the Commission has found that oral presentations are sometimes helpful in crystallizing the central issues important to various interested groups (48 4

Federal Register 39537), such oral public comment shou1d be required. Given the 1arge amount of public interest in the guidelines and what will surely be substantial interest in the Director' s draft guidelines, such hearings should be useful to the Commission is sorting through what will likely be voluminous and substantial public comments

• 5

HAL B. TUCKER VICE PRESIDENT NUCLEAR PRODUCTION October 31, 1~83NOV -2 All :53 Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch oFr CE or :u.:F't - 1* OOC KE. i !NG & SH\ It. BRANCH {f) TELEPHONE (704) 373-4:531

Subject:

Notice of Receipt of Petitions for Rulemaking from the States of Texas, Wisconsin, Minnesota, Nevada, and Utah (48 Fed. Reg. 48,473).

Dear Sir:

This letter is to offer Duke Power Company's comments on the subject petition for rulemaking. Duke Power, both through membership in various industry groups and through its independent activities has long demonstrated its interest in the expedi-tious development of safe, economical, and environmentally acceptable Federal faci-lities for the disposal of spent fuel and high level radioactive waste. We hope the Commission will find the following comments helpful in its consideration of this petition. Basically, we understand the petitioners have requested the Commission to elevate its process of concurrence in DOE's repository siting guidelines, as called for in Sec. 112 of the Nuclear Waste Policy Act of 1982, to a full rulemaking action re-plete with notice and public comment. Apparently the petitioners believe the adop-tion of their request will serve to enhance the involvement of NRC in the siting process and to make that process more open and thorough. Further, they argue that, since the adoption of the siting guidelines by DOE is being treated as a rulemaking, NRC should treat the concurrence process in the same manner. While Duke Power fully supports the meaningful involvement of state and local govern-ment, and indeed the public at large, in repository siting decisions, we cannot sup-port the subject petition. In our view, granting the petitioners request would only add delay to the already protracted process of adopting guidelines vital to the pro-gress of the terminal waste storage program, without a corresponding increase in the quality of the guidelines themselves. This petition, very similar to a Yakima In-dian petition of June 21, 1983 which was later denied by the Commission (48 Fed. Reg. 39536; August 31, 1983), should be rejected. It is difficult to understand how the process followed thus far in developing the DOE siting guidelines could have been more open and thorough. Indeed, as NRC has attested, DOE has bent over backward to fully consider public input. Further, DOE has agreed to provide all public comments on the guidelines to the Commission, and, as explained in NRC's denial of the Yakima petition, other contacts between DOE and NRC over the past months have had the effect of providing NRC complete access to DOE's public comment procedures.

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Secretary of the Commission October 31, 1983 Page Two Were the above arguments insufficient, it should be pointed out NRC has already stat-ed, also in response to the Yakima petition, that it intends to "hold a public meet-ing at which those organizations and individuals which have previously commented on the DOE Draft Siting Guidelines may present their views to the Commission concerning NRC's concurrence or nonconcurrence in those guidelines, and on the guidelines them-selves" (48 Fed. Reg. 39537). As to the argument that NRC's concurrence or nonconcurrence in the siting guidelines amounts to an act of rulemaking, since DOE is treating its adoption of the guidelines as such, the Commission has already explained very aptly in its response to the Yaki-ma petition that "[a] review of other statutes providing for one agency's concurrence in another agency's actions shows that such concurrence has never been considered rulemaking" (48 Fed. Reg. 39536). In addition to that historical perspective, the Commission went on to present more substantive arguments to the effect that that which is of real interest to the public is the underlying substantive rule, not the act of concurrence. Further the Commission appropriately observed "the interpreta-tion of concurrence responsibility as a separate rulemaking requiring another round of public notice and comment would be redundant and wasteful of limited resources" (48 Fed. Reg. 39537). For the above reasons, it is our view that the subject petition should be denied. Very truly yours, C~/J~~~ I Hal B. Tucker RGS:dyh

fr L DIANA HILL LIOS WILLIAMS AVE MATTIESBURG MS JqLI01 01PM Ll*Ob1305S305 11/01/83 ICS PMBNGZ ~SP WSM~- b01545334q MGM TOBN HATTI SBURG MS 31 11:n:Jt tflY~ at.lT.30 SECRETARV OF COMMISSION U. S NUCLEAR REGULATORY COMMISSION WASHINGTON DC 20555 Off U:. Of Sh.ht:. DOCKET I~ G SEfNlt BRANCH DOCKET NUMBER~ PFTIT"'"I r:,r..,.. po,,. _(it)-{ lJff t:IZ 4f473) ATTN OOC~ETING ANO SERVICE BRANCH PLEASE SUPPORT MISSIS IPPI PETITION TO INSTITUTE RUL[ MAKING: DIANA HILL i.aOS WILLIAMS AVE HATTIESBURG MS 3q401 2213b EST MGMCOMP TO REPLY BY MAILGRAM MESSAGE, SEE REVERSE SIDE FOR WESTERN UNION'S TOLL-FREE PHONE NUMBERS I

• .j

TO REPLY BY MAILGRAM MESSAGE, PHONE WESTERN UNION ANYTIME. DAY OR NIGHT; FOR YOUR LOCAL NUMBER, SEE THE WHITE PAGES OF YOUR LOCAL TELEPHONE DIRECTORY OR DIAL (TOLL-FREE) 800 257 2241 OR DIAL WESTERN UNION'S COMPUTER DIRECTLY: FROM TELEX I........... .. 6161 FROM TELEX II (TWX )......... 910-420-1212

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MRS~ AL l CI A FERGUSON 110 I-IOLLV DR P~TAL MS 3q~&S 01PM 4~0613SqSJ05 11/01/83 ICS IPMBNGZ CSP WSHB 60158218q2 MGM TDBN PETAL MS 21 11*0198Bl'l~ *t2nA1\:31 NUCLEAR ~EGULATORY COMMISSION, UNITED STATES ATTN SECRETARY WA MINGTON DC 20555 PLEASE SUPPORT MI SISSIPPI PETITION TO INSTITUTE RUL~ MAKING: MR, ALICIA FERGUSON 110 HOLLY OR PETAL MS 3Qt465 22138 EST GMCOMP TO REPLY BY MAI LG RAM MESSAGE. SEE REVERSE SIDE FOR WESTERN UNION'S TOLL

• FREE PHONE NUMBERS

TO REPLY BY MAILGRAM MESSAGE, PHONE WESTERN UNION ANYTIME, DAY OR NIGHT: FOR YOUR LOCAL NUMBER, SEE THE WHITE PAGES OF YOUR LOCAL TELEPHONE DIRECTORY OR DIAL (TOLL FREEi soo-2i:;1 2241 OR DIAL WESTERN UNION'S COMPUTER DIRECTLY* FROM TELEX I ********** _ *** 6161 FROM TELEX II (TWX ). _. _. _... 910-420-1212

PATRICIA KEENAN N Cl) ~- 1700 W SE'VF."JTH T HATTIESBURG MS 3q401 01PM 4* 0b1SQ2S305 11/01/83 ICS IPMBNGZ CSP WS~B b01'S443lS7 MGM TDBN HATTIESBURG MS 48 11*01 1045 3E V-2 All :31 SECRETARY OF THE COMMISSION UNITED STATES NUCLEAR REGULATORY COMMISSION ATTN DOCKETING AND SfRVICE BRANCH WASHINGTON DC 20555 Off l' nf OOCKE ING 3RA PLEASE ACT ON THE STATE OF MISSISSI PP PF.TtTICN TO INSTITUTE 1 ROL! MAKING WITH REGARD TO THE MATTER OF NUC~~AR WAST DUMP SITES~ PATRICIA KEENAN, 1700 WEST SEVENTH STREET, HA TIESRURG MS,~aot 22145 EST MGM OMP TO REPLY BY MAILGRAM MESSAGE, SEE REVERSE SIDE FOR WESTERN UNION'S TOLL - FREE PHONE NUMBERS

TCl REPLY BY MAILGRAM MESSAGE, PHONE WESTERN UNION ANYTIME, DAY OR NIGHT FOR YOUR LOCAL NUMBER, SEE THE WHITE PAGES OF YOUR LOCAL TELEPHONE DIRECTORY OR DIAL (TOLL-FREE) 800-257-2241 OR DIAL WESTERN UNION'S COMPUTER DIRECTLY: FROM TELEX I........... .. 6161 FROM TELEX II (TWX )......... 910-420-1212

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 SEP 2 7 1983 "83 NOV -2 P2 :40 MEMORANDUM FOR: J. M. Felton, Director Division of Rules and Records Office of Administration FROM:

SUBJECT:

Robert E. Browning, Acting Director Division of Waste Management Office of Nuclear Material Safety and Safeguards Off I(,£ Of 5E l,f.' A. DOCKETING & SEt<\I r BRANCH DOCKET NUMBERPRM ~()-I pcr:;.r 11w 4m PETITION FOR RULEMAKING (PRM-6O-1) FILED BY THE STATES OF TEXAS, WISCONSIN, MINNESOTA, NEVADA, AND UTAH This is in response to your memorandum dated September 15, 1983 in which you requested a determination on how to handle the subject petition. It is recommended that the petition be published for public comment. The proposed Federal Register notice which was attached to your September 15 memorandum is acceptable for this purpose. Regis Boyle, WMHL (x74127), is designated as the task leader for this act ion in NMSS. ~ i r t' r ~ -.\.., I( I °3*\JCl.l **,f..*. ~J. ~ RcO Robert E. Browning, Acting D Division of Waste Management

DOC:'ET N!.J~'.BER ~ PEl*i*

• 11 E PRM lotJ-/

. I I 1 1 '"' -

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--=---- JOHN J. KEARNEY. Senior Vice President l 4?~.If? 4? 3 EDISON ELECTRIC 00tft,JRlE0 INSTITUTE The association of electric companies '83 NOV -1 AlO :45 111119th Street, N.W. Washington, D.C. 20036 Tel: (202) 828-7400 November,*-r r:1c-l Bfp-.. v n ~..J Vn.- Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch 00 "l Tl.G & s*~,,.,, BRANCH Re: Notice of Receipt of Petitions for Rulemaking from the States of Texas, Wisconsin, Minnesota, Nevada and Utah; Docket No. PRM-60-1 (48 Fed

• Reg. 4 8, 4 7 3)

Dear Sir:

These comments are submitted on behalf of the Edison Electric Institute and the Utility Nuclear Waste Management Group (UNWMG) in connection with the above referenced matter. EEI is the association of the nation's investor-owned electric utilities. Its members serve 99.6 percent of all ultimate customers served by the investor-owned segment of the industry, generate more than 77 percent of all of the electricity in the country and service more than 77 percent of all ultimate electricity customers. The UNWMG is a specific activity administered by EEI and financially sup-ported by 43 utilities, both investor and publicly owned, whose primary objective is aiding in achieving solutions to the nation's nuclear waste problems

• Specifically, our comments address a Petition requesting that the Commission amend its regulations in 10 CFR Part 60 to adopt a formal, procedural mechanism governing NRC concurrence in high level nuclear waste repository siting guidelines issued by the Department of Energy (DOE).

As discussed below, EEI and UNWMG are of the view that adoption by rule of the formalized procedures described in the Petition to govern the concurrence process for DOE's repository siting guidelines is neither necessary nor desirable. Accordingly, the Petition should be denied. Basically, petitioners request that the Commission adopt a rule prescribing a formalized process for concurring in DOE siting guidelines developed pursuant to Section 112 (a) of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.A. § 10132(a). Peti-tioners maintain that the requested procedures -- which, among other things, call for public "notice and comment on the staff's concurrence analysis" -- are consistent "with minimum requirements

U.S. NUClFIR n DOCKETlt-',.., ~ OFF!CC Postmnrk Cop, :; Ad 'I Sp c1al O'" T r _QMMI SSIOlf

Secretary of the Commission Docket No. PRM-60-1 November 1, 1983 Page 2 of administrative procedure governing rulemaking" and necessary because "the act of NRC concurrence or non-concurrence in the... guidelines amounts to an act of rulemaking." [Petition, pp. 10-11] As the Commission has recently pointed out in rejecting a very similar petition filed by the Yakima Indian Nation, however, NRC concurrence in a rule being adopted by another agency is not, in itself, a rulemaking for which notice and an opportunity for comment must be provided. [See NRC Concurrence in High-Level Waste Repository Safety Guidelines Under the Nuclear Waste Policy Act of 1982 (Pub. L. 97-425); Memorandum and Order, 48 Fed. Reg. 39,536.] The NWPA does not specify rulemaking procedures for Commission concurrence in the DOE siting guidelines, nor are such procedures otherwise required. As the Commission has clearly explained, where -- as here -- one agency is engaged in concurring in another agency's action, it is not the act of concurrence but the underlying substantive rule that is of interest. When the agency promulgating the substantive rule has provided for public notice and comment, that agency naturally obtains the benefit of public views in formulating a final rule. In addition, the agency with concurrence responsibility receives the benefit of such views since the comments are a matter of public record.*/ Accordingly, interpretation of concurrence responsibility as requiring a separate rulemaking, including another round of public notice and

comment, would be redundant, time consuming and wasteful of resources.

[48 Fed. Reg. 39,536-37] Finally, the Commission has already recognized the high level of interest in the siting guidelines and announced that it will provide an opportunity for representatives of various groups to address the Commission. Specifically, a public hearing will be held at which organizations and individuals that have previously commented on the draft DOE siting guidelines may present their views concerning the NRC's concurrence or non-concurrence in such ~/ As specifically noted by the Commission -- and putting aside the question of whether or not rulemaking is required even for the development of the substantive guidelines, themselves DOE has provided hybrid procedures that go considerably beyond the notice and comment provisions of Section 4 of the Administrative Procedure Act, 42 U.S.C.A. § 553. [See 48 Fed. Reg. 39,536.] And the NRC, of course, has been closely involved in the process since shortly after DOE first pub-lished the siting guidelines last February. [See id.]

Secretary of the Commission Docket No. PRM-60-1 November 1, 1983 Page 3 guidelines, and on the guidelines themselves. [48 Fed. Reg. 39,537-38.] This action should serve to both promote "the NRC's distinctive role under the Nuclear Waste Policy Act" in the development of the guidelines [Petition, p. 6], and to satisfy what the petitioners apparently perceive as a need to communicate directly with the Commission. For the foregoing reasons, EEI and the UNWMG believe that the subject petition should be denied. Respectfully submitted, JJK:rn

Atomic Industrial Forum, Inc. 7101 Wisconsin Avenue Bethesda, Maryland 20814 Telephone: (301) 654-9260 TWX 7108249602 ATOMIC FOR DC CarlWalske President October 28, 1983 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 DOCKET NUMBER CJ) PETIT, N RU LE PRM ~-/ C#FIZ. 4?473. DJU<EiED USNRC "83 OCT 31 Pl2 :12 OFf l~c: O.:::t-rt OOCKETI. G S£i?Vft* BRANCH Attention: Docketing and Service Branch Re: 10 CFR Part 60, Petition for Rulemaking-Docket No. PRM-60-1, Federal Register, October 19, 1983, pages 48473-74 *

Dear Sir:

The Atomic Industrial Forum's Subcommittee on High-Level Radio-active Waste has reviewed the above referenced petition for rulemaking filed by the states of Texas, Wisconsin, Minnesota, Nevada and Utah relating to NRC concurrence in DOE siting guidelines. The Subcommittee recommends that this petition be denied on the basis that its adoption would result in redundant proceedings and unwarranted delay. In the Summary of the notice, it is stated that the petitioners request that the Commission amend its regulations in 10 CFR Part 60 to adopt a formal procedure for NRC concurrence in DOE siting guidelines. The petitioners reference section 112(a) of NWPA in support of their position. Section 112(a) of NWPA does not call for such action. In the Federal Register notice of August 31, 1983, pages 39536-37 entitled, "NRC Concurrence in High-level Waste Repos-itory Safety Guidelines Under the Nuclear Waste Policy Act of 1982 (Pub. L. 97-425): Memorandum and Order" the NRC denied a similar petition setting forth the reasons for such denial. We believe the same reasons apply to the subject petition. NRC's concurrence process followed closely DOE's public procedures in issuing these guidelines. The Commission stated that NRC's "concurrence responsibility is not rulemaking and does not require notice and opportunity for public comment." We, therefore, recommend that this petition for rulemaking be denied. Sincerely, CW:gch Acknowledged by card. // /r/£§.... !#.. ~

"'i_Tl")RY COM 1S5108 " """"l':i: ~1:CTION "TARY ,0, I,

ESTABLISHED BY THE TREATY OF JUNE 9, 1855 CENTENNIAL JUNE 9, 1955 CONFEDERATED TRIBES AND BANDS Valdma lndian Nation OOCKE ED US~RC GENERAL COUNCIL TRIBAL COUNCIL POST OFFICE BOX 151 TOPPENISH, WASHINGTON 98948 October 27, 1983 Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Service Branch -S3 OCT 31 A11 :43 Re: State of Texas, et al., Petition for Rulemaking, 48 Fed. Reg. 48473

Dear Mr. Chilk:

On October 19, 1983, the Commission published and solicited comments on "Notice of Receipt of Petitions for Rulemaking from the States of Texas, Wisconsin, Minnesota, Nevada and Utah" in the Federal Register, 48 Fed. Reg. 48473. The petitions request the Commission to establish a formal pro-cedural framework for NRC concurrence in the Department of Energy's repository siting guidelines under the Nuclear Waste Policy Act. The Yakima Indian Nation has submitted, and the Commission has acted upon, a Petition to Institute Notice and Comment Procedures with respect to the same guidelines concurrence. The Yakima Indian Nation hereby indicates its strong support for the instant petitions as consistent with the purposes sought to be achieved by our own petition, and as a better means of achieving those purposes than the public meeting mechanism which has been prescribed by the Commission in response to the Yakima petition. We hereby reaffirm our own petition's numerous legal and policy arguments for extensive public participation in the NRC's guidelines concurrence. In addition, we note that numerous material changes have been made to the proposed guidelines since the public has had any formal opportunity to comment to DOE. This circumstance greatly magnifies the need for an opportunity to present detailed comments to the Commission. The states' proposal for NRC Staff draft and final guidelines analysis--which was not included in our own petition--is a salutary one which the Yakima Indian Nation supports. As we Acknov edt, d by carJ.11/t Ir d_.

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Samuel J. Chilk, Secretary U. S. Nuclear Regulatory Commission October 27, 1983 Page Two argued in our petition, the Commission must justify its decision in this rulemaking as required by the Administrative Procedure Act. The proposed Staff analysis, with opportunity for public comments on a draft, is a superior way to achieve that objective. The Yakima Indian Nation urges the Commission to act favorably on these rulemaking petitions. Sincerely yours, cJ:'2 ~~-v,_D UOHNSON MENINICK, Chairman Yakima Tribal Council JM: ls cc: Mr. James B. Hovis Harmon & Weiss

DOCKET NUMBER AMERICAN NUCLEAR ENERGY PETIT:._i RULE PRM {pt;-/ coWcfif=£.L/-r4 7 ~ (j) 410 FIRST STREET, SE

• WASHINGTON, DC 20003 DOCKETED USNRC (202) 484-2670 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 October 28, 1983 Attention:

Docketing and Service Branch

• a3 OCT 31 All :40 OFFI Ct. 0~ Sc: Ckt 1, OOCf, ETING & SE fNif.

BRANCH RE: Notice of Receipt of Petitions for Rulemaking from the States of Texas, Wisconsin, Minnesota, Nevada and Utah; Docket No. PRM-60-1 (48 Fed. Reg. 48,473)

Dear Sir:

These comments are submitted on behalf of the American Nuclear Energy Council (ANEC) in connection with the above referenced matter. ANEC is a trade association representing over 100 firms in the nuclear industry, including both public and privately-owned utility companies, NSSS vendors, architect/engineering

firms, and numerous service and consulting firms.

Specifically, our comments address a petition requesting that the Commission amend its regulations in 10 CFR Part 60 to adopt a formal, pro-cedural mechanism governing the NRC concurrence in high-level nuclear waste repository siting guidelines issued by the Department of Energy (DOE). As discussed below, ANEC is of the view that adoption of the formalized proce-dures proposed by the petitioners to govern the concurrence process for DOE's repository siting guidelines is neither necessary nor desirable. Accord-ingly, the petition should be denied. The petitioners request that the Commission adopt a rule prescribing a formalized process for concurring in DOE siting guidelines developed pursuant to Section 112(a) of the Nuclear Waste Policy Act (NWPA), Public Law 97-425. The petitioners maintain that the proposed rule promotes NRC' s distinctive role under the NWPA. The petitioners state further that the requested pro-cedures are consistent "with the minimum requirements of administrative procedure governing rulemaking" and necessary because the act of NRC con-currence or non-concurrence amounts to an act of rulemaking. The NWPA does not require, nor did Congress envision, that NRC' s con-currence in DOE' s site guidelines be established through agency rulemaking procedures. Under Section 112 of the NWPA, such guidelines are required to be established within 180 days after the date of enactment. President Reagan signed the NWPA on January 7, 1983, and under the requirements of Section 112 the guidelines were required to be established by July 7, 1983. The guide-lines, therefore, are already several months late. In setting the 180 day period to establish the guidelines, Congress clearly intended that the guidelines be expeditiously established. Any pro-cedure that unnecessarily delays the guidelines would be inconsistent with the intent of Congress.

U.S. NUCLE DOCK( OFF Y COMMISSloN E SECTION y _,4 D:,* Postmark 0"11' Copies Rec 1~1~q/f3 I Add' I Copi.s L Special DistribLlion

Secretary of the Commission October 28, 1983 Page 2 As the Commission has recently pointed out in rejecting a very similar petition filed by the Yakima Indian Nation, NRC concurrence in a rule being adopted by another agency is not, in itself, a rulemaking for which notice and an opportunity for comment must be provided. [See NRC Concurrence in High-Level Waste Repository Safety Guidelines Under the Nuclear Waste Policy Act of 1982; Memorandum and Order, 48 Fed. Reg. 39,536.] Since the NWPA does not specify rulemaking procedures for Commission concurrence in the DOE siting guidelines, nor are such procedures otherwise required, the requirement that NRC' s concurrence of the DOE guidelines be subject to a separate rulemaking would be redundant, time-consuming and wasteful of resources. [48 Fed. Reg. 39,536-37] Accordingly, ANEC believes that the subject petition should be denied. Respectfully submitted, ~~ Edward M. Davis Senior Vice President

r Federal Register- / Vol. 48, No. 203 / Wednesday, October 19, 1983 / Proposed Rules 48473 improvements in software and hardware design. This revision of Form 522 addresses these new advances in technology and will provide the means for making them available to REA borrowers when they purchase this type of equipment. These new advanced technologies will reduce operating costs and add revenue-producing features to the borrowers' systems. This action, which will impact all borrowers and manufacturers of this equipment, will enable REA borrowers to more efficiently and cost effectively provide telephone service to rural America. In view of the above, the Administrator is proposing to issue revised REA Bulletin 384-3, Central Office Equipment Contracts and Specifications. As required by 1 CFR 18.20, the following are the indexed terms and list of subjects fo this regulation: List of Subjects in 7 CFR Part 1701 Loan programs-communications, telecommunications, t!c!lephone. * . Dated: July 21, 1983. Harold V. Hunter, Administrator. (FR Doc. 83-28494 Fned t~tB-al; 8:45 am( IIILUNG COOE 3410-15-M NUCLEAR REGULATORY COMMISSION 10 CFR Part 60 pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982. DATE: Comment period expires

• November 2, 1983. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: A copy of the petition for rulemaking is available for public inspection in the Commission's Public Document Room, 1717 H Street NW., Washington, DC. A copy of the petition may be obtained by writing to the Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory

• Commission. Washington, DC.20555.

All persons who desire to submit written comments concerning the petition for rulemaking should send their comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. FOR FURTHER INFORMATION CONTACT: John PhiliEs, Chief, Rules and Procedures.Branch, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone 301-492-7086 or Toll Free: 800-368--5642. SUPPLEMENTARY INFORMATION: The petitioner state that a rulemaking is needed to establish a procedural framework for the Nuclear Regulatory Commission to implement the concurrence requirement of Section v'[Docket No. PRM-60-1 ) States of Texas, Wisconsin, Minnesota, Nevada, and Utah; Allng of Petition for Rulemaklng 112(a) of the Nuclear Waste Policy Act. _ Section 112(a) of the Act requires the AGENC:Y: Nuclear Regulatory Commission. ACTION: Notice of Receipt of Petitions for Rulemaking from the States of Texas, Wisconsin, Minnesota. Nevada, and Utah.

SUMMARY

The Nuclear Regulatory Commission is publishing for public comment this notice of receipt of a petition for rulemaking dated September 2, 1983, which was filed with the Commission by the Stales of Texas, Wisconsin, Minnesota, Nevada. and Utah. The petition was docketed by the Commission on September 6, 1983 and has been assigned Docket No. PRM-60--

1. The petitioners request that the Commission amend its regulations in 10 CFR Part 60 to adopt a procedural mechanism to govern current and future concurrence in high level nuclear waste repository siting guidelines which are issued by the Department of Energy

• Department of Energy to issue guidelines that govern the recommendation of repository sites for the permanent storage of high-level radioactive waste. The Act further requires that the guidelines receive the concurrence of NRC.

The petitioners propose that the text of the proposed rule read as follows:* Siting Guidelines Concurrence (a) As soon as possible following the issuance by the DOE of the proposed final guidelines for the recommendation of sites for nuclear waste repositories pursuant to Section 112(a), Nuclear Waste Policy Act of 1982, the Secretary of Energy shall submit to the Director [ of the Nuclear Regulatory Commission's Office of Nuclear Material Safety and Safeguards] a request for concurrence which includes: (1) A request that the

• Commission concur in the form and substance of the proposed final guidelines; (2) a description of the technical rationale behind the objectives ejitablished in the proposed final guidelines: (3) a full description of the entire decision process by which the guidelines were drafted; and (4) a list of any issues related to repository recommendation which the DOE desires the Commission to review in connection with the proposed final guidelines.

(b) The Director shall cause to be published in the Federal Register a notice that (1) a DOE request for concurrence has been received, (2) a staff review of the request and the proposed final guidelines has been initiated, and (3) copies of the request and proposed final guidelines are available upon request. Additionally, the Director shall transmit copies of ~e request and proposed final guidelines to the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a potentially affected site. (c) The Director shall prepare a draft guidelines analysis which (1) evaluates the proposed final guidelines with reference to all applicable Commission policies and requirements, (2) recommends which such guidelines should receive concurrence and which should not, and (3) sets forth the rationale for each concurrence of nonconcurrence. The Director shall cause to be published in the Federal Register a notice of availability of the draft guidelines analysis along with a request for public comment. Copies of the draft guidelines analysis shall be transmitted to the governor, the state legislature. and the tribal council of any affected Indian tribe for each state with a potentially affected site. (d) A period of not less than 60 days shall be aJlowed for comment on-the draft guidelines analysis. The Director shall then prepare a final guidelines analysis which shall take into account comments received and any additional information acquired during the comment period. The final guidelines analysis shall complete the evaluation, recommendation, and rationale components of the draft analysis. and shall include a response to the public comments received. Thereupon. the Director shall transmit the final guidelines analysis to the Commission for consideration. Copies of the final guidelines analysis shall be transmitted to the governor, the state legislature. and the tribal council of any affected Indian tribe for each state with a potentially affected site. The Commission in its discretion may conduct a public hearing to receive public comment relative to Commission consideration of the final guidelines analysis.

I, 48474 Federal Register / Vol. 48, No. 203 / Wednesday, October 19, 1983 / Proposed Rules (e) On the basis of the Director's final guidelines analysis. the public comment, and any other pertinent information in the administrative record. the Commission shall decide by a vote of its members to concur or to withhold concurrence with the DOE proposed final guidelines. The Commission shall cause to be published in the Federal Register the text of its order of concurrence or nonconcurrence. (f) The procedures described in paragraphs (a} through (e) of this Section pertaining to the Commission's concurrenr.P. on DOE proposed final guidelines shall apply equally to any subsequent revisions proposed by DOE regarding such guidelines. The petitioners state that the adoption of the formalized concurrence mechanism to carry out the statutory requirement is necessary for the following reasons: . The proposed rule promotes NRC's tinctive role under the Nuclear aste P..olicy Act: The Act 42. U.S.C. 10101 et seq., reveals that Congress intended NRC involvement and participation throughout the entire site selection process for a high level nuclear waste repository. The underlying purposes for NRC's involvement in the site selection process are (a} to enhance the licensability of the repository sites recommended by DOE and (b} to fulfill NRC's regulatory responsibility for the close resemblance to the existing NRC rule 10 CFR 60.11 pertaining to NRC oversight of DOE site characterization for high level waste repositories. Thus

• the petitioners merely propose that a **

familiar procedure in a closely related matter be adopted for use in connection with guidelines concurrence. In the petition (which consists of a 13-page brief), the petitioner provides additional justification and support for the requested proposed rule not included in the Federal Register notice. Members of the public interested in *

• filing comments on PRM~l can obtain a copy of the petition by writing to the address noted above.

Dated at Washington, DC, this 14th day of October 1983. For the Nuclear Regulatory Commission. Samuel J. Chilk, Secretary of the Commission. lfR Ooc. 83-23492 Filed 10--1~: 8:45 amt BILLING COOE 7590-01-M . 10 CFR Part 140 Financial Protection Requirements and Indemnity Agreements; Facility Form Polley AGENCY: Nuclear Regulatory Commission. ACTION: Proposal rule. protection of the public health and

SUMMARY

The Nuclear Regulatory safety and the environment.

Commission is proposing to add

2. The proposed rule is a necessary statements to its regulations that would and desirable means to promote NRC's indicate that the text of the Facility distinctive role in guidelines Form policy, including any codified development. The proposed rule will amendatory endorsement or change to establish a thorough and open process the policy, is an example of a contract whereby the NRC can bring its expertise that has been "accepted" as evidence of d responsibility to bear on the siting financial protection but that other idelines. By calling for notice'and variations on the text would be mment on the staffs concurrence considered by the Commission. This analysis, the proposed rule provides the action is intended to remove the

• interested public the opportunity to offer misimpression that the Commissiop recommendations which will ensure that requires the exact language presented in the final version of the guidelines the text of the Facility Form policy.

reflects NRC policies as well as those of DATE: Submit comments_ by November DOE.

18. 1983. Comments received after this

3. NRG concurrence is rulemaking or date will be considered if it is practical its equivalent. The Act of NRC's to do so, but assurance of consideration concurrence or nonconcurrence in the t b t

t t canno e given excep as o commen s Section 112(a} guidelines amounts to an received on or before this date. act of rulemaking. Adoption of the guidelines by DOE is being treated as ADDRESS: Send comments-to: Secretary, rulemaking. The guidelines fit the U.S. Nuclear Regulatory Commission, Federal Administrative Procedure Act Washington, DC 20555, Attn: Docketing definition of a rule found at 5 U.S.C. 551 and Services Branch. (4). Accordingly, an equivalent FOR FURTHER INFORMATION CONTACT: rulemaking process should attend NRC Ira Dinitz, Office of State Programs, U.S. concurrence in the guidelines. Nuclear Regulatory Commission, Finally, the petitioners states that the Washington, DC 20555, telephone (301) proposed concurrence rule injects no 492-9884. newfangled scheme into NRC SUPPLEMENTARY INFORMATION: On administrative procedures and bears February i8, 1981, the Commission published a Notice of Proposed Rulemaking in the Federal Register (46

• FR 12750) seeking public comment on whether to continue publishing in 10 CFR 140.91, Appendix A. the entire Facility Form of nuclear liability insurance policy furnished by certain licensees as evidence of financial protection or, alternatively, to publish only those provisions of the policy relating to NRC responsibilities for protection of the public.

Two comments were received in resp.onse to the notice, and both opposed the Commission's proposed modification. The first comment, submitted by Baltimore Gas and Electric Company, stated in part that if the Commission does not want to appear to give its approval to contractual matters between the insured and the insurers

• that do not affect the protection of the public, specific provisions of the policy could be disclaimed. The second commenter, American Nuclear Insurers (ANI}, expressed its difficulty in *

. identifying those parts of an insurance

• -policy that would not affect financial protection. ANI suggested that in order to retain the present system of publishing the Facility Form in the regulations while still addressing the.

Commission's concerns, an introductory statement be added to the regulations that would make clear that the text of the Facility Form policy or amendatory endorsements are merely examples of contracts which the Commission would consider acceptable as proof of financial protection, but that other variations on the text would be considered by the Commission. The Commission. after eVilluating _the two comments, decided instead to _ remove Appendix, A, the Facility Form - policy and the other Appendices, B through H, from 10 CFR Part 140, and publish them in a Regulatory Guide. (Appendices B through H, except for, Appendix F, are standard form indemnity contracts executed by the Commission and its licensees. Appendix Fis not a form of indemnity agreement but a determination by the Commission of what the boundaries of indemnity locations should encompass when multiple reactors exist as part of a single operating station.) A Notice cif Proposal Rulemaking was published in the Federal Register on March 4, 1983 (48 FR 9284)*that sought public comment on amendments to 10 CFR Part 140 which would delete Appendices A through H. Eighteen comments were received on the notice. Commenters included a public interest group, a nuclear supplier, trade organizations, the nuclear-insurance pools, utilities and*faw firms -

DOC!<ET NUMBER PETITl-.1N RU~E PRM -(oD-I (_,4-i I=~.t/147-V-0(, E EO

s. I C 133 SEP 15 P3 :24 DEPARTMENT OF ENERGY & TRANSPORTATION Watkins Building, 510 George Street OFFICE OF SECl<t At-J ackson, Mississippi 39202-3096 601/961-4733 September 13, 1983 OOCKE-TING SERVICi.

BRANCH U.S. Nuclear Regulatory Commission 1717 H Street, N. W. Washington, D. C. 20555 Gentlemen : Re: Notice of intent to join the State of Texas as a co-petitioner in the matter of the Petition of the State of Texas for the adoption of a new regulation for concurrence in siting quidelines under the Nuclear Waste Policy Act of 1982, P.L. 97-425 The State of Mississippi, through the Mississippi Energy and Transportation Board, does hereby notify the Nucl ear Regulatory Commission (the Commission), of its intent to join the State of Texas as a co-petitioner in the subject matter. In joining the State of Texas, the State of Mississippi respectfully requests the following change in the wording of the first sentence of the fourth paragraph of the proposed text: (d) A period of not less than sixty (60) days shall be allowed for comment on the draft guideli.nes analysis after which sixty (60) days, the Com-mission shall hold a public hearing or hearings to receive oral comments on the draft guideli nes analysis. The Director' shall cause to be pub-lished in the Federal Register a notice of public hearings on the draft gu idelines analysis at least thirty (30) days prior to the date of the hearing. This request is submitted for and on-behalf of the State of Mississippi by the Mississippi Energy and Transportation Board. If the petition is denied by the Commission, the State of Mississippi reserves all rights to support or decline to participate with Texas or any other co-petitioner in any judicial review of the denial. This action by the State of Mississ ippi does not indicate, nor should it be construed in any way, tacit support for the disposal of high-level nuclear waste in the State of Mississippi. Very truly yours, LJ~.13:,a-U_ WGB:fnp Wilbur G. Ball Executive Director cy: Governor William F. Winter, Mississippi Attorney General Bil l Allain, Mississippi Office of General Counsel, Texas by NE #0351-83 I q/1q/($ f] I

!ON u s " p

JIM MATTOX Attorney General Supreme Court Building P. 0. Box 12548 Austin, TX. 78711-2548 512/475-2501 Telex 910/874-1367 Telecopier 512/475-0266 Main St., Suite 1400 Dallas, TX. 75201-4709 214/7 42-8944 4824 Alberta Ave., Suite 160 El Paso, TX. 79905-2793 915/533-3484 1220 Dallas Ave., Suite 202 Houston, TX. 77002-6986 71 3/650-0666 806 Broadway, Suite 312 Lubbock, TX. 79401-3479 806/7 4 7-5238 .9 N. Tenth, Suite B McAllen, TX. 78501-1685 512/682-454 7 200 Main Plaza, Suite 400 San Antonio, TX. 78205-2797 512/225-4191 An Equal Opportunity/ Affirmative Action Employer DCC!<E:T NU:*/3::::R PETITFJ:\'. RULE ~R:1i- _~C-/ noc.-1<.rn:n J St-;'{C The Attorney General of T~ aJP-6 p4 :29 September 2, 1983 OFFICE OF :tt.,,{t 11..* DOCKETING & SERVILf BRANCH Commissioner Nunzio J. Palladino, Chairman Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Frederick Bernthal Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Thomas M. Roberts Nuclear Regulatory commission Washington, D.C. 20555 Commissioner Victor Gilinsky Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner James K. Asselstine Nuclear Regulatory O.omrnission Washington, D.C. 20555 Re: Petition for rulemaking: repository guidelines concurrence

Dear Commissioner:

Enclosed please find a Petition to Insitute Rule-making. This petition requests the Commission to adopt a procedural mechanism to govern current and future concurrence in high level nuclear waste repository siting guidelines being issued by the Department of Energy pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982. This petition is hereby submitted for Commission consideration by the States of Texas, Wisconsin, Minnesota, Nevada, and Utah, which are states potentially

. f u. s. NUCLEAR REGULn o.,, L.}. t,.. _.,;,,uN DOCKETil~,3 & - ::.., " ._ L,. ~.-1 Off lCE. O! T.,,,,,,.n f OF 7 ti i.... (A,.., ',:~d 1...,

Commissioners Nuclear Regulatory Commission September 2, 1983 Page 2 affected by the siting of a geologic repository within the meaning of the Nuclear Waste Policy Act and Commission regulations. KC:td cc: Samuel Chilk Sheldon Trubatch Carl Sinderbrand Jocelyn F. Olson James C. Smith Paul Tinker Sin7nely ~ Ke~ s Assistant Attorney General Environmental Protection Division P.O. Box 12548 Austin, Texas 78711 (512) 4 7 5-414 3

DOCKET NLJr,18ER P~TITIQN RULE PRM loO-I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commissioners IN THE MATTER OF THE PETITION ) OF THE STATES OF TEXAS, WISCONSIN,) MINNESOTA, NEVADA, and UTAH ) FOR THE ADOPTION OF A NEW ) REGULATION FOR CONCURRENCE IN ) SITING GUIDELINES UNDER THE ) NUCLEAR WASTE POLICY ACT OF 1982 ) P. L. 97-425 ) PETITION TO INSTITUTE RULEMAKING Cl<ETED USN C 3 StP -6 P4 :29 The States of Texas, Wisconsin, Minnesota, Nevada, and Utah, ( "Petitioners") hereby respectfully request and petition the Nuclear Regulatory Commission ("NRC " ), pursuant to 5 U.S. C. §553 and 10 C. F. R. §§2. 800-2. 804, to e xercise its rulernaking authority and adopt a regulation governing si t ing guidelines concurrence under Section 112(a) of the Nuclear Waste Policy Act of 1982, 42 U. S. C. §10132(a). In support of this petition, the Petitioners would show as follows : I. Text of Proposed Rule Siting guidelines concurrence (a) As soon as possible following the issuance by the DOE of proposed final guidelines for the recommendation of sites for nuclear waste repositories pursuant to Section

112 ( a), Nuclear Waste Pol icy Act of 1982, the Secretary of Energy shall submit to the Director [of the Nuclear Regula-tory Commission ' s Office of Nuclear Material Safety and Safe-guards] a request for concurrence which includes: ( 1) a request that the Commission concur i n the form and substance of the proposed final guidelines; ( 2) a description of the technical rationale behind the objectives established in the proposed final guidelines ; ( 3) a ful 1 -description of the en-ti re decision process by wh i ch. the guidelines were drafted; and (4) a list of any issues related to repository recommen-dation which the DOE desires the Commission to review 1.n connection with the proposed final guidelines. ( b) The Di rector shall cause to be published in the Federal Register a notice t hat ( 1 ) a DOE re quest for conc ur - rence has been received, ( 2) a staff review of the request and the proposed fi nal guidelines has been initiated, and (3) copies of the request and proposed final guidelines are available upon request. Additionally, the Director shall transmit copies of the request and proposed final g uidelines to the governor, the state legislature, and t he t ribal coun-cil of any affected I ndian tribe for each state with a poten-tially affected site. (c) The Di r ector shall prepar e a draft g uidelines analy - sis which ( 1 ) evaluates the proposed final guidelines with reference t o all applicable Commission policies and require-men ts, ( 2) recommends which such guidelines should receive concurrence and wh i c h should not, and ( 3) sets forth t he rationale for each concur r ence or nonconcurrence. The .Director shall cause to be published in the Federal Register a notice of availability of the draft guidelines analysis along with a request for public commen t. Copies of the draft g uidelines analysis shall be transmitted to the governor, the state legislature, a nd the t ribal co unci l of any a f fected Indian tribe for each state with a potentially affected site. ( d) A period of not less *than 6 0 days shall be allowed for comment on the draft guidelines analysis. The Di rector shall then prepare a final guide! ines analysis which shall take into account comments received and any addi t ional infor - mation acquired dur i ng the comment period. The final guide-lines analysis shall complete the evaluation, recommendation, and rationale components of t he draft analysis, and shall include a response to the public comments received. There - upon, the Director shall transm i t the final guidelines analy-sis to the Commission for consideration. Copies of the final gu i delines analysis shal l be transmitted to the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a potentially affected site. The Commission in its discretion may conduct a public hearing to receive public comment relative to Commission consideration of the final guidelines analysis. (e) On the basis of the Director's final guidelines ana-lysis, the public comment, and any other pertinent informa-tion in the administrative record, the Commission shall decide by a vote of its members to concur or to withhold con-currence with the DOE proposed final guidelines. The Commis-sion shall cause to be published in the Federal Register the text of its order of concurrence or nonconcurrence. (f) The procedures described in paragraphs (a) through ( e) of th is Section pertaining to the Commission's concur-rence on DOE proposed final guidelines shall apply equally to any subsequent revisions proposed by DOE regarding such guidelines. II. Grounds and Interest Petitioners file this rulemaking petition as affected states under the Nuclear Waste Policy Act of 1982. The States of Texas, Nevada and Utah have been notified, pur-suant to Section 116(a) of the Act, that they have within their borders one or more potentially acceptable sites for a first high level nuclear waste repository. Accordingly, these states may become potentially affected for purposes of participation in site characterization pursuant to NRC rule 10 C.F.R. §60.62. Pursuant to Section 112(a) of the Act, the Department of Energy ("DOE") is required to issue guidelines to govern the recommendation of re-pository sites. The Act further* requires that the guide! ines receive the concurrence of the NRC. The final guidelines will greatly influence the recommendation of any site in these states for characterization as a candidate repository site. The States of Texas, Nevada and Utah have an interest in formalized mechanism by which each state has an monitor and provide input into the concurrence NRC. there being a opportunity to process of the The interest of the States of Wisconsin and Minnesota is that of potential host states for a second high level waste repository. Under Section 112 ( b) ( 1 ) ( C) of the Nuclear Waste Pol icy Act, the DOE must select at least three sites for characterization for a second repository by no later than July 1, 1989. The States of Wisconsin and Minnesota have been informed by DOE that, due to the presence of crystalline rock within their borders, they are being considered for site characterization for a second repository. As potentially affected states for purposes of site characterization, the States of Wisconsin and Minnesota are directly affected by the DOE siting guidelines and the degree of NRC participation in the promulgation of those guidelines and _ amendments thereto. III. Statement in Support The Petitioners request the Commission to adopt a rule estab-lishing a procedural framework to implement the concurrence requirement of Section 11 2(a) of the Nuclear Waste Policy Act. Adoption of a formalized concurrence mechanism to carry out this statutory requirement is necessary and desirable for the following reasons: 1e strong support for an expanded role for the NRC throughout the site selection process. While not specifically addressing NRC's role in the siting guidelines, the thrust of the test imony was to enlarge the NRC role in review and oversight of DOE' s activities at all stages of the high level waste program. [Se e g enerally: Nuclear Waste Disposal Legislation: Joint Hearings on S. 1662 and S. 637 Before the Senate Committee on Energy and Natural Resources and the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, 97th Congress, 1st Session (Octo-ber 5-6, 1981).] Several hearing participants recommended increased NRC oversight to provide the NRC with adequate informa-tion to make final licensing determinations and to guarantee that the suitability of the final proposed sites would no t be compro-mised at any point during the site selection process. The commit-tee response to such testimony with regard to th e repository siting guidelines was to upgrade NRC involvement from consultation to concurrence. (Senate Rpt. 97-282, 97th Cong., 1st Sess. (November 30, 1981), p. 33.) This increased NRC oversight was supported on t he floor of the Senate by Senator Simpson, then chairman of the Environment and Public Works Subcommittee on Nuclear Regulation, who explained in connection with S.B. 1662 that "only those sites t hat can meet EPA standards and the DOE and NRC site selection guidelines may be selected for characterization. (emphasis added). 128 Cong. Rec. S4158 As it emerged from Congress and was signed by the President,

1.

The proposed rule promotes NRC's distinctive role under the Nuclear Waste Policy Act. (a) Legislative history evidences a distinctive role for NRC in guidelines development. Even a cursory review of the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§10101 et seq., reveals that Congress intended NRC in-volvement and participation throughout the entire site selection process for a high level nuclear waste repository. The purposes underlying NRC's involvement in the site selection process are (1) to enhance the 1 icensab il i ty of the repository sites eventually recommended by DOE and (2) to fulfill NRC's regulatory responsibi-1 i ty for the protection of the public heal th and safety and the environment. The NRC's participation in site sel~ction ranges in intensity from its nonbinding review and comment on DOE site characterization plans to the independent agency action of actual licensing of the proposed sites. The legislative history of the Nuclear Waste Pol icy Act indicates that Congress expanded NRC 's role in the site selection process where the purposes of licensa-bility and protection of public health and safety are of particu-lar

concern, including the development of ini tial siting guidelines pursuant to Section 112(a).

The origin of the statutory requirement for NRC concurrence in the Section 112(a) guidelines can be traced to the final ver-sion of Senate Bill

1662, as passed on April 29, 1982.

As originally introduced, S. 1662 proposed only that the DOE "con-sult" with NRC on the siting guidelines. However, hearings on the bill before the Senate Committee on Energy & Natural Resources and the Senate Commit tee on Environment and Public Wor ks evidenced.

the Nuclear Waste Policy Act provisions reflected this Congres-sional concern for independent action by the NRC, particularly when the agency ' s public heal th, safety, and environmental responsibilities are invoked. Accordingly, the Act mandates NRC concurrence at critical junctures of high level waste process : when DOE issues §112(a) siting guidelines, §112(a); 42 u.s. c. 10 132(a). when DOE desires to use radioactive materials at candidate repository sites in conducting site characterization acti-vities, § 113(c)(2)(A); 42 U. S. C. § 10 133(c)(2)(A). when DOE desires to decontaminate and de commission a test and evaluation facility located away from a repository site, §217(h)( 1 ); 42 U.S. C. §10197(h)(1). when the DOE determines that a test and evaluation facility is unsuitable for continued operation, §217(h)(4) ; 42 U. S. C. §10197(h) (4). when DOE waives requirements for the removal of radioactive wastes from an "unsuitable" test and evaluation faci 1 i ty based on the finding that these materials will not endanger the public health and safety, §217(h)(4); 42

u. s.c.

§10197(h) (4). By contrast, while other provisions of the Act also require NRC involvement, Congress stopped short of rigorous concurrence. For example, Section 2 13( a), wh ich provides for DOE promulgation of a separate set of siting guidelines pertaining to a test and evaluation facility, requires consultation as opposed to concur-rence between DOE and NRC. The apparent rationale is that a test.

and evaluation facility is not required to be licensed by the NRC and the NRC has no public health, safety, or environmental over-sight regarding such DOE research facilities. Similarly, since DOE activities involving away-from-reactor storage facilities invoke questions of available capacity more so than public health and safety, Congress declined to require NRC concurrence when authorizing such activities in Sections 131 through 137 of the Act. [See : Nuclear Waste Disposal Legislation: Joint Hearings on S.B. 1662 and S.B. 637 Before the Senate Comm. on Energy and Natural Resources and the Subcommittee on Nuclear Regulation of the Senate Comm. on the Environment and Public Works, 97th Con-

gress, 1st Session 25 3

( October 5-6, 1981) ( response of NRC Chairman Palladino to questions by Senator Simpson).} It is apparent, therefore, that Congress intended a special significance to attach to NRC concurrence in DOE actions under the Act, including the formulation of siting criteria. The procedural mechanism proposed by Petitioners promotes this Congressional intent. (b) The proposed rule is a necessary and desirable means to promote NRC 's distinctive role in guidelines development. The Section 112(a) siting guidelines are a fundamentally important part of the high level waste repository process. These siting guidelines will comprise the initial yardstick for qualify-ing and disqualifying candidate sites for characterization. Because DOE's siting guidelines are important, NRC concurrence is important. As indicated above, Congress intended to enhance the utility of the guidelines by involving the NRC early on, so that essential health, safety and environmental considerations wi ll become properly fused with the initial siting activities of DOE. The proposed rule will establish a thorough and open process whereby the NRC can bring its expertise and responsibility to bear on the siting guidelines. By calling for notice and comment on the staff's concurrence analysis, the proposed rule prov ides the interested public with the opportunity to offer recommendat i ons that will ensure the final version of the guidelines reflects NRC policies as well as those of DOE. Such public input is especially desirable considering the recent amendment by NRC of its high level waste repository technical criteria found at 10 C.F.R. Part

60.

These amended regulations will serve as the primary backdrop against which site characterization and licensing will proceed. Interested persons should be allowed an opportunity to point out any perceived inconsistencies, or places where consistency could be improved, regarding these new technical licensing regulations and DOE ' s new siting criteria

• This interested public should be allowed opportunity to direct such commentary to that agency with the greater expertise (and, ultimately, the final authority) in such licensing matters:

the NRC. Understandably, the NRC, more so than the DOE, can be expected to promote incorporation of NRC goals and requirements into the final siting guidelines. The DOE, and through it the American public, will become the natural beneficiaries of the procedural rule proposed by Peti-tioners. The interested public can be expected t o take f ull advantage of such an opportunity to pinpoint sources of conflict between DOE siting criteria and NRC licensing criteria. To the extent such conflicts can be resolved and divergent vie ws satis-fied at this early stage, the ultimate licensing of a recommended high level waste repository wil 1 be that much more e fficient. This result was the intent of Congress in adopting the Nuclear Waste Policy Act and is the effect of the rule proposed above.

2.

NRC concurrence is rulemaking, or its equivalent

• In all respects the act of NRC concurrence or nonconcurr e nce in the Section 112(a) guidelines amounts to an act of rulemaking.

The procedure proposed by Petitioners comports with minimum requirements of administrative procedure governing rulemaking. Adoption of the guidelines by DOE is being treated by t h at ag ency as rulemaking, and with good reason: the guidelines fi t the f e de-ral Administrative Procedure Act definition of a rule found at 5 u.s.c. §551(4)

• The guidelines will have general applicability to all potential locations of high level waste repository sites and will implement the Nuclear Waste Policy Act by prescribing law and policy under which siting choices will be made.

Accordingly, DOE has undertaken customary APA rulemaking procedures, pursuant to 5 u.s.c. §553, and has thus far given public notice and soli-cited public comment on a set of proposed draft gui d e lines ( 48 Fed.Reg. 5670, February 7, 1983) and a redraft of th e proposed guidelines (48 Fed.Reg.

26441, June 7,

1983). Through this process DOE proposes to incorporate the guidelines into the body of DOE regulations as a new Part 960 to Title 10 of th e Code of Federal Regulations. An equivalent rulemaking process should attend NRC concur-rence 1n the guidelines. DOE' s proposed final guidelines must remain just that--proposed--until NRC concurrence is obtained. And, as set out above, th is requisite concurrence is in tended by Congress as a quite independent, distinctive act of approval by the NRC--essentially an act of adoption, of making the guidelines the agency's own. Thus the NRC decisionmaking process on guide-1 ines finalization should be made as visible and as acco untable as DOE's. By providing a public notice and comment mechanism which parallels APA requirements, the proposed procedural r ule accom-plishes this end.

3.

The proposed rule is familiar and useful. The concurrence rule proposed by Petitioners injec ts no new-fangled scheme into NRC administrative procedure. In fact, the procedure should be familiar to the agency; it bears c lose resem-blance to the existing NRC rule 10 C.F.R. §60.11, per taining to NRC oversight of DOE site characterization for high level waste repositories. Thus Petitioners merely propose that a familiar procedure in a closely related matter be adapted for use in con-nection with guidelines concurrence. Additionally, the new concurrence mechanism would be reusable. Section 112(a) of the Nuclear Waste Policy Act autho-rizes the Secretary of the DOE to "revise such g uidelines from time to time, consistent with the provisions of thi s subsection." It is almost certain that DOE will find it necessary to revise the siting criteria as additional knowledge and experience is gained in the Federal Government's high level waste reposi tory program. Such revision may be further necessitated to reflec t finalization of Environmental Protection Agency standards currently under development pursuant to Se ct ion 121 (a) of the Act. Thus again wi 11 the NRC be cal led upon to concur in the g uid e lines, as revised. With the proposed concurrence mechanism i n place, such revisions will be facilitated. IV. Prayer Based on the argument and authorities presented above, Peti-tioners respectfully request the Commission to set this petition for hearing or to arrange for Federal Register publication, as deemed appropriate pursuant to 10 C.F.R. §§2.802, 2.803, and to thereupon adopt the rule proposed in Section I. above. Respectfully submitted, JIM MATTOX Attorney General of Texas KEN~~- Assistant Attorney Ge neral Environmental Protection Division STATE OF TEXAS P. 0

• Bo X 1 2 5 4 8 Austin, Texas 7871 1 (512) 475-4143 Bronson C. LaFollette Attorney General of Wisconsin Carl A. Sinderbrand Assistant Attorney General STATE OF WISCONSIN P. O. Box 7857 Madison, Wisconsin

( 608) 266-3936 53707 Hubert H. Humphrey, III Attorney General of Minnesota Jocelyn F. Olson Special Assistant Attorney General STATE OF MINNESOTA 1935 West County Road B2 Roseville, Minnesota 55113 (612) 296-7343 Brian McKay Attorney Genera l of Nevada James C. Smith Deputy Attorney General STATE OF NEVADA Heroes Memorial Building Carson City, Nevada 89710 (702) 885-4 17 4 David Wilkinson Attorney General of Utah Paul Tinker Assistant Attorney General STATE OF UTAH Room 236, Capitol Building Salt Lake City, Utah 84114 (801) 533-7661 Nuclear Regulatory Commission 10 CFR Part 60 States of Texas, Wisconsin, Minnesota, Nevada, and Utah Filing of Petition for Rulemaking Docket No. PRM-60-1 AGENCY:.Nuclear Regulatory Commission. 7590-01 DOCKETED USNRC '83 OCT 14 P 3 :32 OFFI E Of' SECt"t t< DOCKETIN *& ER VICi. BRANCH ACTION: Notice of Receipt of Petitions for Rulemaking from the States of

• Texas, Wisconsin, Minnesota, Nevada, and Utah.

SUMMARY

The Nuclear Regulatory Commission is publishing for public comment this notice of receipt of a petition for rulemaking dated September 2, 1983, which was filed with the Commission by the States of Texas, Wisconsin, Minnesota, Nevada, and Utah. The petition was docketed by the Commission on September 6, 1983 and has been assigned Docket No. PRM-60-1. The petitioners request that the Commission amend its regulations i n 10 CFR Part 60 to adopt a procedural mechanism to govern current and future concurrence i n high level nuclear waste repository siting guidelines which are issued by the Department of Energy pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982. DATE: Comment period expires ttOV 2. 1 1983 Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: A copy of the*petition-for _rulemaking is available for public inspection in the Commission's Public*oocument Room, 1717 H Street, NW., Washington, DC. A copy of:tee ~petition.may be.obtained by writing to the Division of Rules and Records, Office of -Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. All persons who desire to submit~written comments concerning the petition for rulemaking should send their comments to the Secretary of the Commission, U.S. :Nuc1ear*Regu1atory* Co!)'IITlission j Washington, DC 20555, Attention: Docketing and Service Branch. ....,:.- *~*-- . FOR FURTHER. INFORMATION. CONTACT: =:John -Phj lips, Chief, Rules and Procedures Branch, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory-Commission, Washington, DC 20555, Telephone 301-492-7086 or Toll Free~ 800-368-5642; ~ : SUPPLEMENTARY INFORMATION: The petitioners state that a rulemaking is needed to establish a procedural framework for the Nuclear Regulatory Commission to implement the concurrence requirement of Section 112(a) of the Nuclear Waste Policy Act. Section 112(a) of the Act requires the Department of Energy to issue guidelines that govern the recommendation of repository sites for the permanent storage of high-leveJ _radioactive waste. The Act further requires that the guidelines receive the concurrence of NRC. The petitioners propose that the text of the proposed rule read as follows: Siting guidelines concurrence (a) As soon as possible following the issuance by the DOE of the proposed final guidelines for the recommendation of sites for nuclear waste repositories pursuant to Section 112(a), Nuclear Waste Policy Act of 1982, the Secretary of Energy shall submit to the Director [of the Nuclear Regula-tory Commission's Office of Nuclear Material Safety and Safeguards] a request for concurrence which includes: (1) a request that the Commission concur in the form and substance of the proposed final guidelines; (2) a description of the technJcal rationale behind the objectives established in the proposed final guidelines; (3) a full description of the entire decision process by which the guidelines were drafted; and (4) a list of any issues related to

• repository recommendation which the DOE desires the Commission to review in connection with the proposed final guidelines.

(b) The Director shall cause to be published in the Federal Register a notice that (1) a DOE request for concurrence has been received, (2) a staff review of the request and the proposed final guidelines has been initiated, and (3) copies of the request and proposed final guidelines are available upon request. Additionally, the Director shall transmit copies of the request and proposed final guidelines to the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a potentially affected site. (c) The Director shall prepare a draft guidelines analysis which (1) evaluates the proposed final guidelines with reference to all appl icab1e Commission policies and requirements, (2) recommends which such guidelines ' should receive concurrence and which should not, and (3) sets forth the rationale for each concurrence or nonconcurrence. The Director shall cause to__b_e_Jlllbli~hed i!l_the.Federal Register a notice of availability of the draft guidelines analysis along with a request for.public comment. Copies of the draft guidelines analysis shall -be *transmitted to the governor, the state legislature, and the tribal council of any affected Indian tribe for each state with a_pot~ntia)ly affected site. ~(d} A~peri-0d of not Jess than 6P day~_shall be allowed for comment on th'e craft-gui~:illl!S:ilmrlysi:s.:

• Jh_e_ pjrec-t.p-r ~_haJ l then pr_epare a :inal guid._e-

. *lines-analy.s*i s whkh s-haU take_ i ntQ. ac-c-ount: c_omments r~ceived and any additional information acqui reel :duri-_ng the comment period. The fi na 1 guide 1 i nes analysis shall complet-e the ~eval-ua\ion,.recommendation, and rationale comp*onents

• • of the draft -anatysis; _and -shal1 tn~l~de ~a -r~~pon~e to.the publi c ~omments received: :Thereupon; the _Oi~ector:sh~ll :trans~it the final guidelines analysis to the Commission for consideration.

Copies of the final guidel i nes analysis shall be transmitted to. the governor, th~ ~tate legislature, and the tribal council of any affe*cted. Ind.:ian t-ribe for each state with a potentially affected site. The Commission in its discretion may conduct a public hearing to receive public comment relative to Commission consideration of the final guidel ines analysis. (e) On the basis of the Director's final guidelines analysis, the publ ic comment, and any other pertinent information i n the administrative record, the Commission shall decide by a vote of its members to concur or to withhold concurrence with the DOE proposed final guidelines. The Commission shal l cause to be published in the Federal Register the text of its order of concurrence or nonconcurrence. (f) The procedures described in paragraphs (a) through (e) of this Section pertaining to the Commission's concurrence on DOE proposed final guidelines shall apply equally to any subsequent revisions proposed by DOE regarding such guidelines. The petitioners state that the adoption of the formalized concurrence me~h~nism to carry out the statutory requirement is necessary for the following reasons:

1.

The proposed rule promotes NRC 1s distinctive role under the Nuclear Waste Policy Act: The Act 42. U.S.C. §10101 et seq., reveals that Congress

• intended NRC involvement and participation throughout the entire site selection process for a high level nuclear waste repository.

The underlying purposes for NRC's involvement in the site selection process are (a) to enhance the licensability of the repository sites recommended by DOE and (b) to fulfill NRC's regulatory responsibility for the protection of the public health and safety and the environment.

2.

The proposed rule is a necessary and desirable means to promote NRC 1s distinctive role in guidelines development. The proposed ru1e will establish a thorough and open process whereby the NRC can bring its expertise and responsibility to bear on the siting guidelines. By calling for notice and comment on the staff's concurrence analysis, the proposed rule provides the interested public the opportunity to off er recommendations which wi 11 ensure that the final version of the guidelines reflects NRC policies as well as those of DOE.

3.

NRC concurrence.is rulemaking or its equivalent. The Act of NRC's concurrence or nonconcurrence in the Section 112(a) guidelines amounts to an act of rulemaking. Adoption of the guidelines by DOE is being treated as rulemaking. The guidelines fit the Federal Administrative Procedure Act definition of a rule found at 5 u~s.c. §551 (4). Accordingly, an equivalent rulem~king process shoula attend NRC concurrence in the guidelines. Finally, ~he petitioners state that the proposed concurrence rule i njects no newfa~q}_ed scheme into NRC-admin1strative-.p.J?.0Cedu-re~ and bears cl ose resemblance to -the existtng NRC rule 10 CFR *G0.11 pertaining to NRC oversight of D_OE _site *character-tz.aticm :for-high *level waste repositories. Thus the petitioners 111er~ly propose tnat *a f aniil-iar procedure in a closely related matter be adopted for use i-n connecti on with guide 1 i nes concurrence. In the petition (which-consists of* a 13-page brief), the petitioner provi des additional justificatiori and support for the requested proposed rule not included in this Federal Register notice. Members of the public interested i n filing comments.~n-~~M-6__Q~l can obtain a copy -Of. the petition by writing to the Dated at Washington, DC, this fir;_ day of --~-- --_- _________ fvv/ ______, ____ 1983. Samuel J. Chilk Secretary of t he Commissi on. }}