ML23156A116

PR-002, 051, 060 53FR16131 - NEPA Review Procedures for Geologic Repositories for High-Level Waste

ML23156A116
Person / Time
Issue date:	05/05/1988
From:	Chilk S NRC/SECY
To:
References
PR-002, PR-051, PR-060, 53FR16131
Download: ML23156A116 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 05/05/1988 TITLE: PR-002,051,060 - 53FR16131 - NEPA REVIEW PROCEDURES FOR GEOLOGIC REPOSITORIES FOR HIGH-LEVEL WASTE CASE

REFERENCE:

PR-002,051,060 53FR16131 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-002,051,060 RULE NAME: NEPA REVIEW PROCEDURES FOR GEOLOGIC REPOSITORIES F OR HIGH-LEVEL WASTE PROPOSED RULE FED REG CITE: 53FR16131 PROPOSED RULE PUBLICATION DATE: 05/05/88 NUMBER OF COMMENTS: 9 ORIGINAL DATE FOR COMMENTS: 08/03/88 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 54FR27864 FINAL RULE PUBLICATION DATE: 07/03/89 OTES ON COMMISSION APPROVED FINAL RULE BY A 5-0 VOTE {SRM-M890608).

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OF RULE FILE LOCATED ON Pl.

TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002,051,060 RULE TITLE: NEPA REVIEW PROCEDURES FOR GEOLOGIC REPOSITORIES F OR HIGH-LEVEL WASTE PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 88-060 SRM DATE: 04/07/88 SIGNED BY SECRETARY: 04/29/88 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 89-140 SRM DATE: 06/14/89 SIGNED BY SECRETARY: 06/28/89 STAFF CONTACTS ON THE RULE CONTACTl: JAMES R. WOLF, OGC MAIL STOP: 15-B-18 PHONE: 492-1641 CONTACT2: MAIL STOP: PHONE:

DOCKET NO. PR-002,051,060 (53FR16131)

In the Matter of NEPA REVIEW PROCEDURES FOR GEOLOGIC REPOSITORIES F OR HIGH-LEVEL WASTE DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 05/02/88 04/29/88 FEDERAL REGISTER NOTICE - PROPOSED RULE 08/01/88 07/26/88 COMMENT OF NEVADA NUCLEAR WASTE TASK FORCE, INC.

(JUDY TREICHEL, EXECUTIVE DIR.) ( 1) 08/02/88 08/01/88 COMMENT OF STATE OF NEVADA (ROBERT R. LOUX, EXECUTIVE DIR.) ( 2) 08/03/88 08/02/88 COMMENT OF ENVIRONMENTAL DEFENSE FUND (MELINDA KASSEN) ( 3) 08/04/88 08/01/88 COMMENT OF SOUTHWEST RESEARCH & INFORMATION CENTER (DON HANCOCK, DIRECTOR) ( 4) 08/04/88 08/04/88 COMMENT OF EDISON ELECTRIC INSTITUTE (JOHN J. KEARNEY) ( 5) 08/04/88 08/03/88 COMMENT OF U.S. ENVIRONMENTAL PROTECTION AGENCY (RICHARD E. SANDERSON, DIRECTOR) ( 6) 08/08/88 08/02/88 COMMENT OF SIERRA CLUB (BROOKS B. YEAGER) ( 7) 08/31/88 08/24/88 COMMENT OF DEPARTMENT OF ENERGY (CHARLES E. KAY, ACTING DIRECTOR) ( 8) 09/26/88 09/30/88 COMMENT OF EXECUTIVE OFFICE OF THE PRESIDENT (LUCINDA LOW SWARTZ) ( 9) 06/30/89 06/28/89 FEDERAL REGISTER NOTICE - FINAL RULE

NUCLEAR REGULATORY COMMISSION 89 JUN 30 P4 :14 0

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

RIN: 3150-AC04 DUC K NEPA Review Procedures for Geologic Repositories for High-Level Waste AGENCY: Nuclear Regulatory Commission.

SUMMARY

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

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

EFFECTIVE DATE: (30 days after publication)

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

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SUPPLEMENTARY INFORMATION:

Under applicable law, the Nuclear Regulatory Commission exercises regulatory authority with respect to the development, operation, and permanent closure of one or more geologic repositories for high-level radioactive waste and spent nuclear fuel. In connection with the exercise of this authority, the Commission is required by the National Environmental Policy Act of 1969 (NEPA), to give appropriate consideration to the environmental impacts of its actions. The scope of such consideration and the procedure to be followed by the Commission in fulfilling its NEPA responsib-ilities are addressed by the Nuclear Waste Policy Act of 1982, as amended (NWPA). This statute directs the CoRITlission to adopt the environmental impact statement (EIS) prepared by the Department of Energy (the applicant for the NRC license with respect to the repository) "to the extent practicable," with the further proviso that adoption of DOE's EIS shall be deemed to satisfy the Co1T1T1ission s NEPA responsibilities "and no 1

further consideration shall be required." The Commission has been engaged in rulemaking to implement this statutory framework.

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

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SUPPLEMENTARY INFORMATION:

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

The Commission accordingly undertook a careful review of the text and l I

• statutory history *of the pertinent provisions of the Nuclear Waste Policy Act. The results of this review were presented in the notice of proposed rulemaking published in the Federal Register on May 5, 1988, 53 FR 16131.

As summarized therein:

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

(2) If requested by _Congress pursuant to the NWPA, the Commission will provide comments on DOE s EIS to the Congress with respect to a State 1

or Tribal notice of disapproval of a designated site.

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

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

(4) The DOE EIS will accompany the application through the Commission's review process, but will be subject to litigation in NRC s licensing 1

proceeding only where factors 3(a) or 3(b) are present.

In accordance with NWPA, the primary responsibility for evaluating

• environmental impacts lies with DOE, and DOE would therefore be required to supplement the EIS, whenever necessary, to consider changes in its proposed activities or any significant new information.

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

After rev~ewing and giving careful consideration to all the comments received, the Commission now adopts, in substantial part, the position set forth in ,ts earlier notice. In particular, the Commission continues to emphasize its view that its role under NWPA is oriented toward health and safety issues and that, in general, nonradiological environmental issues are intended to be resolved in advance of NRC licensing decisions through the actions of the Department of Energy, subject to Congressional and judicial review in accordance with NWPA and other applicable law. The Commission anticipates that many environmental questions wou.ld have been, or at least could have been, adjudicated in connection with an environmental impact statement prepared by DOE, and such questions should not be reopened in proceedings before NRC.

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

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

whether the statutory requirements have been satisfied. NRC is not relieved from the responsibility o.f making such an *independent determination, according to the State, because it ~ould still be able to carry out its licensing responsibilities in a manner consistent with law. NRC, which is directed by NWPA to adopt the DOE environmental impact statement 11 to the extent practicable," need only do so to the extent that it i~ otherwise within the customary practice of the agency.

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

But the Commission firmly believes that the law was intended to have all matters associated with the environmental impacts of repository development considered and decided, to the fullest extent practicable, apart from NRC licensing proceedings. As explained when the proposed rule was published, this interpretation is supported both by the specific legislative and judicial review procedures built into the statutory structure and by the accompanying legislative history. The Commission believes that the result is sensible. Concerns arising under NEPA -- if not resolved through the negotiation procedures established by NWPA -- would be adjudicated early, with finality, and with every reasonable argument being capable of being advanced to the oversight of Congress and the courts. From that point on, in the absence of substantial new information or other new considerations, it would be proper to inquire only whether the specific detailed proposal of the Department of Energy could be implemented in a manner consistent with

the health and safety of the public. The resolution of issues in this manner for purposes of NEPA would in no event affect the framing or decision of health and safety issues, under the Atomic Energy Act, in NRC licensing proceedings. 1 Although quite different statutory schemes are involved, we perceive a parallel with issues raised in Quivira Mining Company v. NRC, 866 F.2d 1246 (10th Cir. 1989). That case concerned regulations adopted by NRC pursuant to the Uranium Mill Tailings Radiation Control Act of 1978. It considered, among other things, the extent to which NRC, in giving the "due consideration to economic costs 11 required by the statute, could rely upon a cost-benefit study previously carried out by the Environmental Protection Agency to support EPA 1 s rulemaking responsibilities. The Commission concluded that since the agencies* actions coincided in material respects, all statutory language would retain significant force and effect, and the time period allowed for the issuance of its regulations was inadequate for an independent study, Congress did not wish to require the NRC to perform a second cost-benefit analysis. The Court found the legislative history, as well as the statutory language, to be ambiguous on the question; as such, it upheld the NRC construction. Here, given the identity of the actions being 1The State took exception to the standard for completeness of information in a license application -- viz. the "reasonably available" standard of 10 CFR 60.24. Although the matter is not strictly at issue in this rulemaking, the Commission regards the State's concern in this regard to be overdrawn. While information may be sufficient to meet the requirements of 60.24, this in no way implies that such information will prove to be sufficient to meet the applicant's burden of

• persuasion under 60.31.

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

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

Once DOE's EIS has been adopted, the statute expressly relieves the Commission from further consideration of the environmental concerns addressed in the statement. Congressional review of a State 1 s resolution of disapproval - should such a resolution be passed - would permit (and, most likely, virtually ensure) that issues other than those to be adjudicated under the Atomic Energy Act would have been considered and weighed. Under these circumstances, it would do no violence to national environmental policy to proscribe further examination in administrative proceedings.

COUNCIL ON ENVIRONMENTAL QUALITY COMMENTS The Conunission invited the Council on Environmental Quality to comment on the proposed rule. The conclusion of CEQ was similar to that of the

State of Nevada. In particular, CEQ read the phrase "to the extent practicable" to mean that NRC should make an independent evaluation of the DOE environmental impact statement, adopting some or all of it as appropriate so as to avoid unnecessary duplication. From the Commission s 1

perspective, though, the position does not fully take into account the detailed scheme for environmental review established by NWPA. Neither the related provisions of the statute (including, for example, those dealing with legislative and judicial review and establishing time frames for Commission decisionmaking) are analyzed, nor is there any examination of the legislative history which, as described in the preamble to the proposed rule, supports our point of view. We continue to believe that it is clear -

at least in the debates of the House of Representatives with respect to the bill which, with amendments, was enacted into law - that the Commission role was intentionally to be directed to health and safety issues to the

• exclusion, absent new information or new considerations, of issues arising under NEPA.

It is worth noting, though, that CEQ recognizes that the Commission might "defer" to a court finding that the DOE environmental impact statement is adequate. This is certainly close, if not identical to, the Commission s 1

position that a judicial finding of adequacy would preclude further litigation of the matter in NRC licensing proceedings.

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

In addition, however, a number of comments of somewhat narrower scope were submitted by environmental or.ganizations (as well as by the State of Nevada) and are addressed here.

One matter that particularly concerned the private Nevada Nuclear Waste Task Force involved the relationship between the judicial process and the Commission's administrative process. The Task Force cautioned that NRC should not rely on there having been a court ruling with regard to the adequacy of DOE's environmental 1mpact statement in advance of. the Commission's licensing decision (when a judicial finding of inadequacy, affecting much or little of the EIS, could *be treated as a new consideration). In fact, such reliance is not essential. It is our expectation that, under NWPA, a petition for review of the EIS would need to have been filed roughly contemporaneously with DOE's submission of a license application to NRC, and that judgment might have been entered within the three years envisaged for Commission licensing. Whether or not this proves to be the case is not controlling, for the standard for adoption does not

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rest upon collateral .estoppel principles. Similarly, we find it beside the point to speculate regarding the possibility that a reviewing court might delay its decision on the adequacy until it sees the NRC conclusions in the licensing proceeding. Such delay would not stand in the way of the Commission's taking final action.

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

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

The Commission's position that failure to challenge DOE's environmental impact statement promptly in the courts bars subsequent challenge to that EIS in NRC proceedings was also criticized. Co1TR11enters suggested, instead, that affected parties may decide for reasons of litigative strategy or otherwise to contest questions regarding the repository in NRC licensing proceedings rather than by going to court about the DOE environmental impact statement. But such a unilateral decision on their part cannot operate as a means to circumvent the clear policy of the NWPA requiring prompt adjudication of the issues raised by the EIS. When there has been a full and fair opportunity to raise the challenge, a party's failure to avail itself should in our view be regarded as an abandonment of its right to do so many years later. See Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 847 (9th Cir. 1987).

There is force to a commenter's suggestion that our proposed rules failed to take account of an EIS having been prepared i~ connection with a Negotiator-selected site, in which case the Commission review would be governed by Section 407 of NWPA, as amended, 42 USC 10247, instead of Section 114, 42 USC 10134. One difference, as pointed out by the comment, is that for a Negotiator-selected site DOE makes no formal recommendation to the President and the President makes no decision with respect to approval of the site. This difference alone would not affect the approach we take to discharging our NEPA responsibilities, in part because we would expect early judicial review to be available even in the absence of a Presidential decision. In this regard, NWPA authorizes a civil action to review any EIS prepared with respect to 11 any action" under the applicable subpart and, I

I

given our perspective on the intenaed allocation of functions between DOE and NRC, 11 any action 11 could include the Secretary of Energy 1 s submission of an application to the Commission. We think the intent of Congress, as evidenced by the considerable parallelism of the language employed, was generally to establish the same sort of role for the Commission with respect to any site - whether at Yucca Mountain or at a Negotiator-selected location. We recognize that it is our obligation 11 to consider the Yucca Mountain site as an alternate to [the Negotiator-selected site] in the preparation of 11 an EIS. This obligation will be discharged, though, to the extent of our adoption of the DOE environmental impact statement, provided that the alternative sites were addressed therein.

One aspect of the flegotiator-selected site provisions does have to be taken into account, however. For a Negotiator-selected site, a Commission decision to adopt the environmental impact statement must be made 11 in accordance with section 1506.3 of title 40, Code of Federal Regulations, 11 a limitation that we found not to apply to the EIS submitted under Section 114 of NWPA. Under the cited section of the CEQ regulations, the Commission may only adopt the DOE statement if it is 11 adequate. 11 While a judicial decision on the point would be controlling, we would otherwise need to make an independent judgment in accordance with established practice. The final regulations reflect this possibility. In passing, though, we observe that we find nothing anomalous in having this responsibility in the case of a Negotiator-selected site but not in the case of the Congressionally-designated site at Yucca Mountain, for in the latter case there are

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

We are not persuaded by the comment that took exception to our requirement that needed supplements to the EIS would, as a general rule, have to be prepared by DOE - and that DOE's failure to comply with this*

requirement might be grounds for denial of a construction authorization. It seems to us that such supplementation by DOE would ordinarily be appropriate whenever, in the light of new information or new considerations, its proposed action may give rise to significant environmental impacts that were not addressed in its original EIS.

We were urged to reconsider our position with respect to the imposition of license conditions directed at mitigation of adverse environmental impacts. We had suggested that DOE could itself be held accountable f6r compliance with the mitigation measures described in its EIS, so that there was no need for them to be subject to litigation in NRC proceedings. The basis for our positipn is that the departure from planned mitigation measures may well be a major Federal action having significant environmental impacts, which would necessitate the preparation of an environmental impact statement for a project that was otherwise determined to be without significant impact. But, in any event, we see no basis for employing our regulatory authority in this instance to police DOE's compliance with its mitigation plans; it will be subject to no more and no less oversight from interested persons than would be the case for*many other developmental projects carried out, after preparation of appropriate environmental

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

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

An argument was made that amended Section 114(f)(6) -- which provides that 11 the Commission 11 need not consider enumerated factors in any EIS prepared with respect to a repository -- indicates that Congress intended for NRC to issue its own EIS. The language in question appears to have been designed as an editorial measure, lacking substantive effect. The legislative history, cited with the proposed rule, demonstrates that no important change was being made in NRC's NEPA responsibilities, which under the 1982 statute were limited in the manner we have described. The statutory language is not surplusage, for NRC may have an obligation to prepare a supplem~ntal EIS where there are new considerations or new information.

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

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

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

We believe we can also satisfy DOE's concern with respect to our mention, at 53 FR 16132, that there may be a need for multiple EIS's.

11 11 The point being made was not that NRC might need to prepare its own EIS when DOE had already done so, but that the licensing process may involve more than one major federal action (for example, the construction of the repository on the one hand and the emplacement of waste on the other)_ that could necessitate the preparation of a supplemental EIS if not an entirely new one, if the impacts of such actions are not evaluated or properly encompassed in the initial EIS.

The responsibility for supplementation was another point of contention.

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

16 -

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

However, in support of its position, DOE suggested that NRC adoption under the NWPA provisions was related specifically to the EIS "submitted as part of the Department 1 s recommendation to the President. 11 But the language of Section 114(f) quite clearly applies to 11 any environmental impact state-ment prepared in connection with a repository proposed to be constructed 11 by -

DOE under NWPA.

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

The principal remaining issue raised by DOE 1 s comments concerns the appropriate role of NRC* in DOE s NEPA activities~ DOE suggests that NRC 1

should be a cooperating agency, 11 11 a role that *the Council on Environmental Quality has recognized as being appropriate in the licensor-licensee context. We are not pe_rsuaded. The present situation is unique because. -

unlike the customary licensor-licensee situation - the particular statute guiding our approach (i.e., NWPA) removes the balancing of environmental considerations from our independent judgment. Under these circumstances, it strikes us as particularly out of place for NRC to undertake the kind of critical evaluation that a cooperating agency should perform in the 11 11 preparation of an EIS. The Commission, nevertheless, has jurisdiction and expertise that it can, and will, bring to DOE 1 s attention as a commenting agency through the entire DOE NEPA process. We shall not hesitate, in

particular, to raise concerns that might subsequently also require adjudication, under the standards of the Atomic Energy Act, in our licensing proceedings. Other issu_es, of course, can be identified in our comments as well. In other words, NRC as a commenting agency can and will play an important constructive role all the while from the scoping stage through preparation of the environmental impact statement; but as the sole responsibility for weighing the environmental impacts in support of a recommendation to the President is vested in DOE, DOE properly should be the agency with formal sponsorship of the EIS as well.

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

INDUSTRY COMMENTS

-Comments received from Edison Electric Institute generally supported the Commission's view that its essential responsibility under NWPA is to

address radiological safety issues ~nder the Atomic Energy Act, and that the requirements of NEPA were substantively modified as they apply to the high-level nu~lear waste program.

We decline to follow EEI s suggestion that issues related to adoption 1

of DOE 1 s environmental impact statement be made prior to the hearing process and outside the adjudicatory arena. As we have noted before, the impact statement does not simply 11 accompany 11 an agency recommendation for action in the sense of having some independent significance in isolation from the deliberative process. Rather the impact statement is an integral part of the Commission 1 s decision. It forms as much a vital part of the NRC 1 s decisional record as anything else. Public Service Company of Oklahoma (Black Fox Station, Uni-ts 1 and 2), CLI-80-31, 12 NRC 264, 275 (1980). Even though the range of issues to be considered in the hearing may be limited, the formal function of the environmental impact statement as an element of the licensing decision remains.

However, we find merit in EEI s proposal to fix an early schedule for 1

the NRC staff to present its position on the practicability of adoption and for other parties to file contentions with respect to the practicability of adoption. Accordingly, the final rule requires the NRC staff to present its position on adoption at the time that the notice of hearing is published in the Federal Register. Any contentions filed by any other party to the proceeding must be filed within thirty days after the notice of hearing is published. In the event that 11 substantial new considerations or new information 11 subsequently arises, contentions concerning the practicability of adopting DOE's EIS that are filed after the 30-day deadline established

in the rule must be accompaniea by a demonstration of compliance with the late filing criteria in 10 CFR 2.1014.

CHANGES FROM THE PROPOSED RULE Section 51.67. Environmental information concerning geologic repositories.

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

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

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

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

Paragraph (e) is modified to emphasize that the Commission's customary policies will be observed except for adoption of an EIS prepared under Section 114. This is achieved by the insertion of the cross-reference ( 11 in accordance with paragraph (c) 11 ) in the introductory clause. As the language has been modified, it permits the adoption of other DOE environmental impact statements with respect to a Negotiator-selected site in accordance with generally applicable law. This includes observance of the procedures outlined in 40 CFR 1506.3. This is addressed adequately in Appendix A to IO CFR Part 51s Subpart A, and requires no further elaboration in the text of the rule.

PETITION FOR RULEMAKING The_ Commission's earlier notice invited comments upon the related portions of a petition for rulemaking submitted by the States -Of Nevada and Minnesota~ PRM-60-2A, 50 FR 51701, December 19, 1985. With the exception of the State of Nevada, none of the comments received by the Commission in response to the notice addressed the petition as such. The State of Nevada referred to the petition, recognized that some of the considerations therein have been mooted, and urged that alternative language be considered in the proposed rule, in place of that which they had recommended in the petition.

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

language being promulgated differs from that proposed by the petitioners, the Commission is in full agreement with the petitioners' argument that adoption of DOE's EIS must not compromise the independent responsibilities of NRC to protect the public health and safety under the Atomic Energy Act of 1954.

Our rulemaking approach is in fact designed to enhance our ability to address these health and safety issues as effectively and objectively as possible.

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

PAPERWORK REDUCTION ACT STATEMENT This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget approval numbers 3150-0021 and 0127.

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

the Commission certifies that this rule will not have a significant economic

~ 22 -

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

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

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

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

ISSUANCE For the reasons set out in the preamble and under the authority of the Atom1c Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, the National Environmental Policy Act of 1969, as amended, the Nuclear Waste Policy Act of 1982, as amended, and 5 u*.s.c. 553, the NRC adopts the following amendments to 10 CFR Part 51, and related conforming amendments to 10 CFR Parts 2 and 60.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

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

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

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

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

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

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

2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C.

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

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

Section 2.764 and Table IA of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 u.s.c.* 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. S~ctions 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec.

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

2. In §2.101, paragraphs (f)(l), (2), (5), and (7) are revised and (f)

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

§ 2.101 Filing of application.

(f)(l) Each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to Part 60 of this chapter and any environmental impact statement required in connection therewith pursuant to Subpart A of Part 51 of this chapter shall be processed in accordance with the provisions of this paragraph.

(2) To allow a determination as to whether the application is complete and acceptable for docketing, it will be initially treated as a tendered document, and a copy will be available for public inspection in the Commis-

sion s Public Document Room.

1 Twenty copies shall be filed to enable this determination to be made.

(4) [Reserved]

(5) If a tendered document is acceptable for docketing, the applicant will be requested to (i) submit to the Director of Nuclear Material Safety and Safeguards such additional copies of the application and environmental impact statement as the regulations in Part 60 and Subpart A of Part 51 of this chapter require,_ (ii) serve a copy of such application and environmental impact statement on the chief executive of the municipality in which the geologic repository operations area is to be located, or if the geologic repository operations area is not to be located within a munic-ipality, on the chief executive of the county (or to the Tribal organiza-tion, if it is to be located within an Indian reservation), and (iii) make direct distribution of additional copies to Federal, State, Indian Tribe, and local officials in accordance with the requirements of this chapter and written instructions from the Director of Nuclear Material Safety and Safeguards. All such copies shall be completely assembled documents, identified by docket number. Subsequently distributed amendments to the application, however, may include revised pages to previous submittals and, in such cases, the recipients will be responsible for inserting the revised pages.

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

shall be furnished to the Director of Nuclear Material Safety and Safeguards in the same manner as for the in1tial application and environmental impact statement.

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

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

AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 5842).

Subpart A also issued under National Environmental Policy Act of 1969 9 secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334,

.4335); and Pub.L. 95~604, Title 11, 92 Stat. 3033-3041. Sections 51.20, 51.30, 51.60, 51.61, 51.80, and 51.97 also _issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act of 1982, sec. 121, 96 Stat.

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

4. In§ 51.20, existing paragraph (b)(13) is redesignated as paragraph (b)(l4) and a new paragraph (b)(13) is added to read as follows:

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

( b) ***

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

5. Sectio~ 51.21 is revised to read as follows:

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

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

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

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

(d) In accordance with section 121 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10141), the promulgation of technical requirements and criteria that the Commission will apply in approving or disapproving ap-plications under Part 60 of this chapter shall not require an environmental

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

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

§ 51.26 Requirement to publish notice of intent and conduct scoping process.

(a) Whenever the appropriate NRC staff director determines that an environmental impact statement will be prepared by NRC in connection with a proposed action, a notice of intent will be prepared as provided in§ 51.27, and will be published in the Federal Register as provided in§ 51.116, and an appropriate scop1.ng process (see§§ 51.27, 51.28 and 51.29) will be conducted.

(c) Upon receipt of an application and accompanying environmental impact statement under§ 60.22 of this chapter (pertaining to geologic repositories for high-level radioactive waste), the ijppropriate NRC staff director will include in the notice of docketing. required to be published by

§ 2.10l(f)(8) of this chapter a statement of Commission intention to adopt the environmental impact statement to the extent practicable. However, if the appropriate NRC staff director determines, at the time of such publication or at any time thereafter, that NRC should prepare a supplemental environmental impact statement in connection with the Commission's action on the license application, the procedures set out in paragraph (a) of this section shall be followed.

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

§ 51.67 Environmental information concerning geologic repositories.

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

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

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

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

This status report, which the Department shall update from time to time to retl~ct changes in status, shall:

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

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

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

(a) (1) In a proceeding for the issuance of a license to receive and possess source, special nuclear, and byproduct material at a geologic repository operations area, the NRC staff shall, upon the publication of the notice of hearing in the Federal Register, present its position on whether it is prgcticable to adopt, without further supplementation, the environmental impact statement (including any supplement thereto) prepared by the Secretary of Energy. If the position of the staff is that supplementation of the environmental impact statement by ~RC is required, it shall file its final supplemental environmental impact statement with the Environmental Protection Agency, furnish that statement to commenting agencies, and make it available to the public, before presenting its position, or as soon thereafter as may be practicable. In discharging its responsibilities under this paragraph, the staff shall be guided by the principles set forth in paragraphs (c) and (d) of this section.

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

) .

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

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

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

(c) The pres~ding officer will find that it is practicable to adopt any environmental impact statement prepared by the Secretary of Energy in connection with a geologic repository proposed to be constructed under Title I of the Nuclear Waste Policy Act of 1982, as amended, unless:

(l)(i) The action proposed to be taken by the Commission differs from the action proposed in the license application submitted by the Secretary of Energy; and (ii) The difference may significantly *affect the qua 1ity of the human environment; or

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

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

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

(1) Determine whether the requirements of section 102(2)(A), (C), and (E) of NEPA and the regulations in this subpart have been met; (2) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken; (3) Determine, after weighing the environmental, economic, technical and ot~er benefits against environmental and other costs, whether the construction authorization or license should be issued, denied, or appropriately conditioned to protect environmental values; (4) Determine, in an uncontested proceeding, whether the NEPA review conducted by the NRC staff has been adequate; and (5) Determine,* in a contested proceeding, whether in accordance with the regulations in this subpart, the construction authorization or license should be issued as proposed.

(f) In making the determinations described in paragraph (e), the environmental impact statement will be deemed modified to the extent that find1ngs and conclusions differ from those in the final statement prepared by the Secretary of Energy, as it may have been supplemented. The initial decision will be distributea to any persons not otherwise entitled to receive it who responded to the request in the notice of docketing, as described in§ 51.26(c). If the Commission or the Atomic Safety and Licensing Appeal Board reaches conclusions different from those of the presiding officer with respect to such matters, the final environmental impact statement will be deemed modified to that extent and the decision will be similarly distributed.

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

10. In§ 51.118, the existing text is redesignated as paragraph (a) and a new paragraph (b) is added, to read as follows:

§ 51.118 Final environmental impact statement - Notice of availability.

(a) ***

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

PART 60 - DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES

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

AUTHORITY: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C.

4332); secs. 114, 121, Pub. L.97-425, 96 Stat. 2213 9 2228, as amended (42 u.s.c. 10134, 10141).

For the purposes of sec. 223, 68 Stat. 958, as a~ended (42 U.S.C.

2273), §§ 60.10, 60.71 *to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

§60.15 [Amended]

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

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

§ 60.21 Content of application.

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

14. Section 60.22 is revised to read as follows:

§ 60.22 Filing and distribution of application.

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

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

(c) DOE shall, upon notification of the appointment of an *Atomic Safety and Licensing Board, update the application, eliminating all superseded informat~on, and supplement the environmental impact statement if necessary, and serve the updated application and envir~nmental impact statement (as it may have been supplemented) as directed by the Board. At that time DOE shall also serve one such copy of the application and environmental impact statement on the Atomic Safety and Licensing Appeal Panel. Any subsequent amendments to the application or supplements to the environmental impact statement shall be served in the same manner.

(d) At the time of filing of an application and any amendments thereto, one copy shall be made available in an appropriate location near the proposed geologic repository operations area (which shall be a public document room, if one has been established) for inspection by the public and updated as amendments to the application are made. The environmental impact

statement and any supplements thereto shall be made available in the same mannero An updated copy of the application, and the environmental impact statement and supplements, shall be produced at any public hearing held by the Commission on the application, for use by any party to the proceedingo (e) The DOE shall certify that the updated copies of the application, and the environmental impact statement as it may have been supplemented, as referred to in paragraphs (c) and (d) of this section, contain the current contents of such documents submitted in accordance with the requirements of this part.

150 In§ 60.24s the section heading and paragraphs (a) and (c) are revised to read as follows:

§ 60.24 Updating of application and environmental impact statement.

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

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

16. In§ 60.31, the introductory paragraph is revised to read as fol lows:

§ 60.31 Construction authorization.

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

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

§ 60.51 License amendment for permanent closure.

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

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

Dated at Rockville, Maryland this ~-h._._ day of -June, 1989.

For the Nuclear Regulatory Com mission.

Secretary of the *com mission.

r I

EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL QUALITY DOC [TED U5 "RC 722 JACKSON PLACE, NW.

WASHINGTON, DC 20503

'88 SEP 26 mo :42 September 20, 1988 James R. Wolf, Esq.

Office of the General Counsel DOCKET NUMBER PR Nuclear Regulatory Commission Washington, D.C. 20555 PROPOSED RULE .5.3 Fi 'fi, 3 1D

Dear Mr. Wolf:

The proposed regulations developed by the Nuclear Regulatory Commission (NRC) concerning review procedures under the National Environmental Policy Act (NEPA) for geologic repositories for h'gh-level waste were referred to me for evaluation. As a preliminary matter, I want to apologize for responding late in the process and to express my appreciation for your efforts to seek out the Council's comments. Those efforts demonstrate the value which you and the Commission place on protecting the quality of the environment.

The regulations proposed by NRC set forth how it perceives its NEPA responsibilities in connection with a license application submitted by the Department of Energy (DOE) for a high-level waste repository in accordance with the Nuclear Waste Policy Act, as amended (NWPA). As I mentioned when we met in August, my primary concern with the proposed regulations is the scope of NRC's review of the environmental impact statement (EIS) submitted by DOE for the repository.

The NWPA requires DOE to recommend to the President one site for a nuclear waste repository. The recommendation must be accompanied by a final EIS. If the President and Congress concur in the recommendation, DOE must submit to the NRC an application for a construction authorization for the repository. 42 USC§ 10134(a) and (b).

Any EIS prepared in connection with a repository proposed to be constructed by DOE "shall, to the extent practicable, be adopted by the [NRC] in connection with the issuance by the [NRC] of a construction authorization and license for such repository." To the extent that an EIS is adopted by NRC, "such adoption shall be deemed to also satisfy the responsibilities of the [NRC] under the National Environmental Policy Act *.* and no further consideration shall be required .... " 42 USC§ 10134(f).

The judicial review provision of the NWPA gives exclusive jurisdiction to the United States Courts of Appeals over any civil action for review of "any environmental impact *s tatement prepared pursuant to the National Environmental Policy Act ...* "

SEP 2 1 1988 cknowtcdged by card . ......... ~ *..,. ...,.

a. S. NUCLfAll ltEGUL4TOltY CO OOCICnlNG & S IW!CE SE<..

omc:E o, n. secRET M, OF THE COMMl~!>ION Po1tm1rk Date _ _ j-/, 2;>.

C: lee be I J /

Add' I C:eplu RI! ,~1.1, 3 D.S.

I,) .....,__,~ ----

James R. Wolf, Esq.

September 20, 1988 Page 2 42 use§ 10139(a)(l)(D). Such an action must be brought within 180 days of "the decision or action involved **.. " 42 USC§ 10139(b).

NRC's proposed regulations address the standards and procedures to be used in adopting a DOE EIS. NRC states that it will conduct a "thorough" review of DOE's draft EIS and will provide comments on its adequacy. The agency also states that it will "find it practicable to adopt DOEts EIS {and any DOE --

supplemental EIS)" unless (a) NRC's action differs in an environmentally significant way from the action described in DOE's license application, or {b) significant and substantial new information or new considerations render DOE's EIS inadequate.

Proposed Rules at 2.

While NRC recognizes its ability to adopt DOE's EIS, it views the NWPA as limiting the scope of its review of that EIS.

Specifically, NRC cites the NWPA's directive to adopt OOE's EIS "to the extent practicable" and interprets this as requiring it to give substantial weight to DOE's findings. Proposed Rules at 20-21. Further, the agency notes that its adoption of a OOE EIS is deemed to satisfy its NEPA responsibilities and that "no further consideration shall be required;" NRC concludes that this "appears to counsel against the wide-ranging independent examination of environmental concerns that is customary in NRC licensing proceedings." Id. at 21.

The NWPA's judicial review provision is also said to limit NRC's consideration of NEPA issues. NRC states that review of DOE's EIS must be sought, if at all, within 180 days after DOE makes its recommendation to the President. If the EIS is judged to be adequate for purposes of the site recommendation made by DOE, further litigation of the issues in NRC adjudications would be precluded. Moreover, if an issue bearing on the adequacy of the EIS could have been raised, but was not raised in a timely manner, the judicial review provision operates as a bar ta a challenge at a later date in NRC proceedings. Proposed Rules at 22.

Thus, NRC regards the scope of its NEPA review to be narrowly constrained, with those issues which are ripe far consideration after issuance of DOE's EIS being excluded from an independent examination by NRC. Proposed Rules at 22. The agency takes the position "that the NWPA and the principles of res judicata obviate the need for an entirely independent adjudication of the adequacy of the EIS" prior to adoption by NRC. Id. at 30.

According ta NRC, "[t]he factors discussed above make it entirely

• J James R. Wolf, Esq.

September 20, 1988 Page 3 reasonable for the Commission not to reopen issues that have been, or could previously have been, brought before the courts for resolution." Id. at 32. "The consequence of this approach is that the Commission would carry out a licensing review to assure that a repository could be operated safely -- but that it would, in general, treat as settled those other issues arising under NEPA. 11 Id. at 34.

These proposed regulations appear to allow NRC to adopt the final EIS issued by DOE without the independent analysis required under the CEQ regulations for the adoption of another agency ' s EIS. See 40 CFR § 1506.3; see also "CEQ Guidance Regarding NEPA Regulations," 48 Fed. Reg. 3426~4265 (1983). NRC's rationale for this is that the EIS should be deemed adequate unless a court says it is inadequate. The reliance on judicial action is based upon the NWPA's provisions for adoption "to the extent practicable" and for judicial review.

I disagree with this interpretation of the NWPA, and read the phrase "to the extent practicable" to mean just that: after looking at DOE's EIS and evaluating it, NRC should adopt some or all of it in order to avoid unnecessary duplica ion. In addition, I do not read the judicial review provision as requiring someone to challenge the adequacy of an EIS for the waste repository within 180 days of its issuance BY DOE.

Clearly, if a court deems DOE's EIS adequate, NRC is in no position to reject that finding (although that does not automatically mean that the EIS is acceptable for NRC's purposes). The absence of any litigation on DOE's EIS, however, should not allow NRC to adopt the EIS without its own evaluation.

The absence of litigation, for whatever reason, offers no authoritative conclusion as to the adequacy of the EIS. Further, there is an excellent chance that any litigation brought challenging DOE's EIS will not be completed by the time NRC needs to make its licensing determination.

A better approach would be for NRC- to do an independent evaluation of DOE ' s EIS, taking any court decisions into account, and determine on the basis of that evaluation whether to adopt the document. At the NRC licensing proceeding, intervenors could raise as an issue the propriety of NRC's adoption decision,

~ , that the EIS was not adequate for NRC's purposes for whatever reasons. If the intervenors raised issues which had been raised in litigation, NRC could defer to the court, although this would delay an NRC decision.

James R. Wolf, Esq.

September 20, 1988 Page 4 In this way, issues relating to the adequacy of DOE's EIS would be litigated only once, and NRC would fulfill its obligation under NEPA and the CEQ regulations to independently evaluate an EIS before adopting it.

I hope these cormnents have been useful to you. Please do not hesitate to call me if you have any questions.

Sincerely, Lucinda Low Swartz Deputy General Counsel

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Dear Sir:

The Department of Energy (Department} has reviewed the proposed amendment to 10 CFR Part 51, published on May 5, 1988, concerning Nuclear Regulatory Commission (NRC} review procedures for geologic repositories under the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA). With respect to most topics covered by this proposed rule, the Department is in agreement with NRC statements and interpretations of requirements under the NEPA and the NWPA. The Department appreciates the efforts made by the NRC to help clarify this area of the regulations.

In its review, the Department identified certain concerns with a number of aspects of the proposed rule. The Department's concerns focus on five areas: first, the NRC position on cooperating versus commenting agency status with respect to the Department ' s environmental impact statement (EIS} covering the geologic repos i tory; second, the requirement that the Department supplement the final EIS to satisfy NRC obligations under NEPA; third, the indication that multiple EISs may be necessary; fou~th, potential confusion in the interpretation of NRC's ability to take action on a license application during litigation on the Department ' s EIS; and fifth, preservation of the distinction that a construction authorization is not a license under the Atomic Energy Act. Our specific comments are included in the enclosure to this letter.

We appreciate the opportunity to comment on these proposed revisions. Please feel free to contact Ms. Linda Desell (586-1464} of my staff or Mr. Steven Frank (586-1979} of the Office of NEPA Project Assistance about any questions.

Sincerely,

~ - ~ Y ~ % n g Director Office of Civilian Radioactive Waste Management Enclosure

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ENCLOSURE DEPARTMENT OF ENERGY COMMENTS ON PART 51

1. COOPERATING AGENCY The Department of Energy (Department or DOE) believes that the NRC can maintain its independent role and most effectively contribute to the process under the National Environmental Policy Act (NEPA) by becoming a cooperating agency. DOE recognizes that the NRC has an important independent review and licensing authority in the siting of a repository, and that this independence must be maintained.

DOE nevertheless believes that it is appropriate under section 1501.6 of the Council on Environmental Quality (CEO) regulations to suggest that the NRC, which has licensing authority pursuant to the Atomic Energy Act (AEA) and Nuclear Waste Policy Act (NWPA), become a cooperating agency in the preparation of the Department's repository EIS. The cooperating role described in section 1501.6(b) is not inconsistent with the NRC's independent authority, and the clarification in the "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations" (46 FR 18026) recognizes the role of licensor and licensee and provides for such independence with respect to scope, level of detail, and adequacy in meeting the needs of the cooperating agency with jurisdiction by law.

SUPPLEMENTAL EIS DOE is concerned with the proposed requirement in the rule to have DOE "supplement" its final EIS (FEIS) in order to satisfy NRC's NEPA obligations. Any recommendation to the President made by DOE under section 114 of the NWPA is a major Federal action and such recommendation is to be accompanied by an EIS. If, following completion of the EIS, DOE decides to revise the recommendation by making a substantial change in the proposed action that is relevant to environmental concerns, or if significant new circumstances or information relevant to environmental concerns bearing on the proposed action or its impacts becomes available, then DOE would prepare any requisite supplement in accordance with applicable CEQ regulations implementing NEPA.

However, subsequent to the President's decision, the NRC has a separate responsibility under NEPA relative to its decision whether to grant or deny the Department's application for a license to receive and emplace high-level waste. In developing its EIS the NRC is to adopt, to the maximum extent practicable, the DOE EIS submitted as part of the Department's recommendation to the President. DOE believes that it is inappropriate and contrary to the CEQ scheme of

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2 agency assignment of responsibilities for DOE to undertake the supplementation of its completed EIS in order to satisfy NRC's separate NEPA responsibilities. DOE also believes that, just as it is appropriate for NRC to be a cooperating agency in the preparation of DOE's EIS, it would be equally appropriate for DOE to be a cooperating agency in the preparation of any NRC EIS or any later supplements required for the NRC to meet its NEPA obligations.

3. MULTIPLE EISs In the preamble, at 53 FR 16132, the NRC indicates that multiple EISs may be necessary in considering the license application from DOE involving high-level waste disposal.

The DOE does not agree that multiple EISs will be needed because DOE will scope the EIS, with public and other agency participation, to assure that all reasonable alternatives relative to the siting, construction, operation and decommissioning of the proposed repository will be contained in the EIS. NRC's participation as a cooperating agency would greatly facilitate this objective. It is the Department's position that the NEPA, the NWPA and the CEQ regulations call for a single EIS and the Department does not believe that any multiple EISs are necessary.

JUDICIAL REVIEW In the preamble discussion, at 53 FR 16142, the NRC states that " **. no action will be taken by the Commission until necessary documents have been filed **. with the Environmental Protection Agency. NRC will not take action concerning the proposal which would have an adverse environmental impact until a record of decision is issued." The preamble further states, at 53 FR 16144, that "Because the EIS must conform to statutory requirements, and because its completeness would have been subject to challenge in court prior to filing with the NRC, a completeness determination by NRC at the time of docketing is unnecessary **. One reading of these statements I V is that the NRC is proposing to suspend work on the license application until the entire judicial review process is complete. This would be decidedly inefficient, and would potentially cause major delays without providing additional environmental protection beyond the normal process. It would be consistent with normal operating procedures and far preferable from a programmatic perspective for the NRC to make a prima facie decision that, absent a reversal by the Court of Appeals, the EIS is judged to be adequate, and to process the license application. There is no need for the NRC's acceptance review of the Department's EIS to be on the licensing critical path. Clarification on NRC processing plans and expectations would be useful.

3 S. CONSTRUCTION AUTHORIZATION NOT A LICENSE Footnote 1 - at 53 FR 16134. DOE recognizes the statutory language of the NWPA reference to a construction authorization and NRC's own interpretation in the text of this document that a construction authorization under the NWPA is not a license under the AEA. DOE affirms this interpretation which is reflected in the AEA, and opposes any erosion of this distinction by the NRC. Historically, the NRC and its predecessor, the AEC, has affirmed that a construction authorization, unlike a construction permit, is not a license under the AEA. DOE will continue to interpret the term "construction authorization" accordingly.

6. Sections 51.67(c), 51.109(c}, and 60.24(c) should be amended to add a qualifier to reflect that a supplement may be required if DOE makes a substantial change, not previously considered in its EIS, that is relevant to environmental concerns, etc.

7. Proposed section 51.67(d) requires the Department to inform the NRC of the status of any legal action taken against the repository EIS and to submit periodic updates. This requirement seems unnecessary since NRC will already have this information available to it through the normal contact of its own General Counsel with the Department of Justice.

Further, such information is normally readily available in weekly trade publications. This requirement should be deleted.

8. The Department also notes that section 113 of the NWPA was inadvertently misquoted at the bottom of column 1, 53 FR 16135. The phrase "to the maximum extent practicable" was omitted in describing the manner in which DOE must conduct site characterization to minimize significant adverse environmental effects.

9. At 53 FR 16139, Column 3, NRC points out that the DOE action is the recommendation to the President of the Yucca Mountain site for repository development. As mandated by NWPA section 114(£), and also expressed in CEQ regulations 10 CFR section 1502.5, this recommendation must include an FEIS prepared by DOE.

NWPA Section 114(f) also mandates that NRC shall (to the extent practicable) adopt this EIS in connection with the issuance of a construction authorization for the repository.

Thus, the use of the same EIS for the two agency actions (to the extent practicable) is the clear intent of the law. The DOE concurs in this position.

4

10. The NRC concluded, at 53 FR 16136 that the NWPA "provides that adoption of the EIS shall be deemed to satisfy the NRC's NEPA responsibilities 'and that no further consideration shall be required.'" NRC also notes that this provision "appears to counsel against the wide-ranging independent examination of environmental concerns that is customary in NRC licensing proceedings." This is consistent with the Department's reading of the NWPA. Specifically, this concept is included in section 51.67 of the proposed rules, which state that the FEIS shall be submitted in lieu /

of an environmental report.

11. At 53 FR 16136 the NRC states that, if the DOE EIS is judged to be adequate, "further litigation would be precluded under the doctrine of collateral estoppel. 11 Also, the NRC states that "if an issue bearing upon the adequacy of the EIS could have been raised in a timely manner, but was not, the deadline for commencing action set out in section 119 operates to bar a challenge at a later date in NRC licensing proceedings." The DOE agrees with this interpretation.

12. At 53 FR 16138, the NRC states the position that "The approach being taken by the Commission *** is that the NWPA and the principle of res judicata obviate the need for an entirely independent adjudication of the adequacy of the EIS by this Agency." This is elaborated upon at 53 FR 16139.

The DOE agrees with this interpretation.

13. The Department agrees with NRC that adoption of the DOE EIS should not compromise the NRC's independent responsibilities under the Atomic Energy Act.

14. The Department is in agreement with the NRC with respect to several statements concerning the content of the EIS and the role of NRC:

"that the Commission's role should focus upon radiological safety, with an independent review only if there is significant and substantial new information or new consideration *** ;" (53 FR 16137)

"that the EIS must address the environmental impacts of construction and those of performance **. " (53 FR 16141):

and In addition, NRC's requirement in the proposed new Section 51.67(b) that the FEIS must "include, among the alternatives under consideration, denial of a license or construction authorizat'on" by NRC follows directly from CEO Section 1502.14(d}, which states "Include the alternative of no

I 5 action." The Department concurs with this requirement and has already planned to include the no action alternative within the scope of the EIS.

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Samuel Chilk OOCKE! IN,, l t t I{ I Secretary SRANLI--

U.S. Nuclear Regulatory Commission*

Washington, D.C. 20555 Attn: Docketing and Sevice Branch Re: Proposed changes to 10 CFR Parts 2, 51, and 60, NEPA Review Procedures for Geologic Repositories for High-Level Waste.

To Whom it May Concern, This letter contains the comments of the Sierra Club on the Commission's proposal to change its procedural requirements and obligations in regard to the preparation of NEPA documentation in connection with the design, development, construction, and permitting and licensing of the nation's first geological repository for commercial and defense high-level radioactive waste.

The Sierra Club is a national cons ~rvation organization representing more than 450,000 members . We have been directly involved with the federal effort to institute a system for the storage and disposal of nuclear waste materials for over 15 years . We participated extensively in the legislative debates which led to the enactment of the Nuclear Waste Policy Act of 1982 (NWPA), and the subsequent amendments to that Act. We have also participated at various levels of the implementation of the Act, including our recent participation in the Commission's negotiated rulemaking on the subject of the Licensing Information Support System for a HLW repository.

After reviewing the Commission's proposed changes, we must express our concern that they amount, in total, to a radical abdication of the Commission's traditional and necessary responsibility to assure the safety of the public and the protection of the human environment in the process of determining the licensability of the nation's first HLW repository. We believe that this abdication is both unwise and contrary to Congressional intent, and that, if carried through as proposed, it will result in a severe lo ss of credibility for the Commission in its key role as the ultimate licensing authority for this unprecedented project.

We have also reviewed the letter of comment submitted to the Commission on this issue by the Environmental Defense Fund (dated 8/2/88), and we endorse and wish to be associated with the conclusions reached in the EDF letter, including each of the seven numbered specific criticisms made of the Commission proposal.

We urge the Commission to reconsider this effort to relieve itself of its NEPA obligations, to withdraw the proposed rulemaking, and to propose a more

'When we try to pick out anything by itself, we find it hitched to everything else in the universe.' John M iAlJ G 1 0 l9Sa National Headquarters: 730 Polk Street, San Francisco, califomia 94~~11~f>e~cH-l} card . ..."' ...,.,.. ... _ __..,

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j modest set of procedural amendments which will conform the Commission's procedures as necessary to the dictates of the NWPA as amended, without overthrowing its responsibilities to accomplish a NEPA review of the full scope of DOE's proposed action and the impacts associated with it as a basis for the Commission's licensing review.

As the Federal agency with the responsibility to make the ultimate determination of the licensability of the facility proposed to be developed by the Department of Energy (DOE), the Commission is clearly responsible for framing the issues for which elaboration and decision is necessary to form an adequate basis on which to grant or reject DOE's application for a

• materials license (and by implication, for a construction authorization).

The drift of the Commission's proposal, unfortunately, runs in exactly the opposite direction. That is, under these changes, *and under the dubious theory that the Congress has implicitly crowned DOE as "the lead agency" for all parts of the HLW repository development and licensing effort, the Commission would unilaterally charge DOE with the responsibility to frame the issues in advance of, and as a basis for, the Commission's own licensing proceeding. This includes an extraordinary invitation (53 FR 16141, "Submission of Environmental Information," proposal at 10 CFR 51.67), for DOE to present evidence and argument to the Commission as to the consequences of license denial. Although the Commission must certainly consider the consequences of license denial in making its final determination, and although DOE may very well provide its views and pertinent information to the Commission, it is hardly the proper role of the applicant agency to provide the analytical basis on which the Commission bases its consideration. Nor is it proper for the Commission to place exclusive reliance on an applicant's analysis of such issues. This is particularly true where Congress has limited the Commission's consideration of alternatives to the proposed action.

It would be extremely unfortunate if the Commission were to be diverted, in its decision making process, from its legally required duty to provide for the public health and safety and the protection of the environment in specific regard to the proposed action. and instead to implicitly embrace a decision process in which the real standard is not radiological safety at all, but rather whether, on the balance of evidence presented in an environmental document prepared entirely by the applicant, the permitting and licensing of the proposed action is somehow "better" than the status quo ante.

Although the Commission cloaks its proposed changes in a detailed and rather contorted reading of the legislative history of the NWPA, the actual bases for the proposal are reducible to three: the specific restrictions on the scope of the EIS, and particularly its discussion of alternatives, stipulated in the NWPA, Congress' general injunction to the Commission to adopt the DOE EIS "as far as practicable," and the Commission's ad hoc (and presumably) clairvoyant judgments about the course of an essentially unprecedented environmental review and licensing proceeding.

There is no question that Congress did specifically imit the consideration of alternatives in the DOE EIS. NWPA section 114(f) declares, essentially, that certain issues are outside the scope of Commission review, not because

they would not normally fall within the Commmission's jurisdiction, but because they have been decided by the Congress itself. These issues are 1) the need for a repository; 2) alternatives to deep geologic storage; 3) the timing of initial availability of the repository; and 4) alternatives to the Nevada site, if that site is recommended by DOE.

Unfortunately, beyond this most basic point, the Commission's tortured reading of Congressional intent has led it to propose a narrowing of its environmental review and protection responsibilities way out of line with common sense and the language of the Act. Congress' direction to adopt the DOE EIS "to the extent practicable" was clearly intended to avoid the unnecessary duplication of effort of preparing two entirely separate environmental statements on the same facility. By no reasonable reading can it be interpreted to relieve the Commission of its fundamental responsibility to pass on the environmental adequacy of DOE's proposed action.

The Commission's proposal ignores this fact, assumes in advance the adequacy of DOE's EIS, creates an arbitrary and unwise presumption in favor of adopting DOE's EIS, and raises unnecessary hurdles in the face of any party which seeks to challenge the adoption of part or all of the document.

Perhaps the most glaring defect in the proposed rule is the standard it erects for the presiding officer in making the determination of the practicability of adopting DOE's EIS (proposal at 10 CFR 51.109 (c)).

Nowhere here is there any indication that the presiding officer may decline to adopt the EIS if it, or any part of it, is inadequate, incomplete, in error, or otherwise deficient. The presiding officer may not, under this proposal, decline to adopt the DOE EIS, even if it has been found legally insufficient, unless "the action proposed to be taken by the Commission differs" from the action proposed by DOE, and unless this difference "significantly impacts the human environment."

Aside from the problem of what is meant by a "difference" between the applicant's proposed action and that of the Commission, this standard seems to erect an impossibly high hurdle for rejecting DOE's EIS, and, concomitantly, drastically and unacceptably abdicates the Commission's authority and obligation to assure the protection of the public health, safety, and the environment in discharging its licensing responsibilities.

The Commission would be better off withdrawing this proposal and proposing a rule which reflects the changes in procedure necessary under the NWPA without giving away the basic authorities and obligations on which its licensing role is founded.

Sincerely,

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Washington Repr

United States External Affairs (A-100AE )

DOCKET NUMBEP r Environmental Protection Washington DC 20460 PROPO$EaJ RULE Agency Federal Activities

&EPA "88 ME -4 P5 :30 AlS g I008 Mr. Samuel Chilk Secretary

• of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch

Dear Mr. Chilk:

In accordance with Section 309 of the Clean Air Act, the U.S.

Environmental Protection Agency (EPA) has reviewed the U.S. Nuclear Regulatory Commission ' s proposed rule for NEPA Review Procedures for Geologic Repositories for the High-level Waste (53 FR 16131). EPA believes that the proposed rule reflects the appropriate requirements under the Nuclear Waste Policy Act, as amended. We do not have any further comments to offer.

If you have any questions, please contact Dr. W. Alexander Williams (382-5909) of my staff.

Sincerely, f, R ~ ( S~

Director Office of Federal Activities AUG 1 O 1988

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Tel: (202) 778-6400 August 4, 1988 Mr. Samuel J. Chilk Secretary DOCKET NUMBER ~

U.S. Nuclear Regulatory Commission PROPOSED RULE -2,c.,5'/t~O..

Washington, D.C. 20555 S3F'R.h13)

Attention : Docketing and Service Branch

Subject:

Proposed Rule on NEPA Review Procedures for Geologic Repositories for High-Level Waste {53 Fed . Reg.

16131)

Dear Mr. Chilk:

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

The Edison Electric Institute (EEI) and the Utility Nuclear Waste Management Group (UNWMG) appreciate the opportunity to submit comments on the proposed rule. EEI is the association of the nation's investor-owned electric utilities. UNWMG is a group of forty-five electric utilities providing active oversight of the implementation of the federal statutes and the regulations related to radioactive waste management. Together, EEI/UNWMG represent the majority of the holders of contracts with DOE for disposal of spent nuclear fuel under the NWPA. To date, electric utilities have paid over $3.3 billion into the NWPA Nuclear Waste Fund. These funds are collected from electricity consumers. It is extremely important to electric utilities and their customers that the repository licensing be carried out in an efficient and cost-effective manner.

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

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

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

• We appreciate this opportunity to respond to the Commission's notice of proposed rulemaking. We would be pleased to respond to any questions or otherwise be of assistance to the Commission as it addresses this matter.

Sincerely yours, ear::7 JJK/mlf Enclosure

Enclosure EDISON ELECTRIC INSTITUTE and UTILITY NUCLEAR WASTE MANAGEMENT GROUP Additional Comments on Proposed Rule on NEPA Review Procedures for Geologic Repositories for High-Level Waste (53 Fed. Reg. 16131)

EEI/UNWMG agree with the NRC that Congress, in passing the NWPA, substantively modified the requirements of NEPA as. they apply to the high-level nuclear waste program. Although EEI/UNWMG sqpport the general approach taken by the NRC in the proposed rule, we strongly urge the NRC to incorporate the following comments when it issues the final rule.

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

I i

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

0 Timing of Practicability Determination Proposed section 51.109 contemplates that the NRC staff would not present its position on* whether it is practicable to adopt DOE's EIS until there is a proceeding. The proposed rule also contemplates that the final determination on adoption would not occur until after parties to the proceeding had been admitted. The statutory framework of the NWPA does not require that the adoption determination await the commencement of the adjudicatory hearing. Indeed, NRC will best be able to achieve the three-year timetable for issuing its final decision on the

issuance of a construction authorization, NWPA section 114(d), if the adoption determination is made prior to the hearing process (and outside the adjudicatory arena).. It would be unreasonable to wait until parties have been admitted to the proceeding before learning whether NRC would have to prepare its own EIS. The NWPA schedule should allow adequate time for NRC to make its determination before the ~tart of the hearing.

Under NWPA section 114 ( a) , DOE must make the final EIS available at the same time as it recommends approval of the repository site to the President. The dr.aft EIS will have been available well before that time. The President must then submit the recommendation to Congress (ref. NWPA (as amended) section 114(a)(2) (A)). A minimum of sixty days would then elapse before the recommendation becomes effective (ref. NWPA section 115(b)).

And an additional period of time, not to exceed ninety days, would then occur before DOE submits the application to the NRC.

Several more months would likely elapse before the parties to the proceeding have been admitted. Thus, from the time that DOE ' s draft EIS is formally transmitted to NRC until the adjudicatory proceeding gets underway, the NRC would probably have six months or more to decide whether, and to what extent, it is practicable to adopt the DOE EIS.,

There is no justification to delay the decision pending the start of the adjudicatory hearing. Nor would NRC lose the ability to obtain public input on its determination by making that determination promptly. At the time that DOE. issues its draft and final EISs, NRC can solicit comments from interested parties on the practicability of NRC's adoption of the DOE EIS.

NRC would thus be able to provide the state and public participation generally contemplated by NWPA. section 111 (a) (6),

and at the same time avoid needless delay and unnecessary complexity.

o Judicial Review NWPA specifies the time period and manner in which challenges to DOE' s implementation of NWPA must be filed. The NRC licensing process should not provide an independent avenue for a legal challenge with respect to the same issues. The NRC's evaluation of the preclusive effect of Section 119 of the NWPA comprehensively and appropriately addresses that issue. However, some statements in the supplementary information to the proposed rule could be read to imply that the NRC might allow its decision on adopting DOE's EIS to be stalled during the pendency of litigation on the EIS, or even during the 180 day period provided by the NWPA for filing legal challenges to DOE's issuance of the EIS. Such delay would make it difficult, if not impossible, for the NRC to satisfy the mandate established by the

u. s. Congress for the NRC to complete the licensing of the repository within a three-year period.

2

Moreover, there is no reason for the NRC to delay its process. From a legal standpoint the NWPA imposes no obligation on the NRC to stay its licensing proceedings pending review of DOE's EIS. It does not even require the President or Congress to defer action on a Secretary's recommendation of site approval in the event of a legal challenge to the EIS. If the site designation is permitted to take effect, the Secretary is required to submit an application for construction authority to the NRC within 90 days. Again, there is no provision for a stay of the orderly process set forth in the NWPA in the event that the EIS becomes subject to litigation. From a practical standpoint the NRC itself has stated that"* .

• a final judgment of radiological safety can only be made at the conclusion of the adjudicatory licensing process." The mere fact that the DOE EIS has not emerged from judicial scrutiny at any particular point in the process is no grounds for the NRC to halt that process pending final resolution of legal challenges to the DOE EIS. The hearing process itself will not entail "any irreversible and irretrievable commitment of resources" under NEPA so as to warrant a halt of the process.

The NRC should, therefore, add language to the final rule explicitly stating that the licensing proceeding, including the determination of practicability, need not await the outcome of any litigation as to the adequacy of DOE's EIS. Should a court subsequently rule that the EIS is deficient, the NRC can appropriately revisit its practicability determination or take such other actions as may be necessary.

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l o Satisfaction of NEPA Requirements Congress, in enacting the NWPA and NWPAA, significantly modified what would have been the nature of DOE' s and NRC' s responsibilities under NEPA as they apply to the licensing of a high-level nuclear waste repository. NRC's health and safety responsibilities under the Atomic Energy Act remain unchanged.

NWPA expressly provides that to the extent the NRC adopts the DOE EIS "no further consideration" by the NRC is required under NEPA.

j The NWPA unequivocally makes DOE the lead agency to satisfy NEPA requirements pertaining to the high-level waste repository. NRC correctly concludes that "[t]he Nuclear Waste Policy Act of 1982 reflects a judgment that the Commission is to concern itself primarily with issues of health and safety rather than the other kinds of issues that are ordinarily considered in the context or reviews under NEPA." The final rule and accompanying supplemental information should be modified to re-emphasize that the NRC's responsibility to address and resolve radiological safety issues in the licensing hearing is not to be burdened with continued analysis of and challenge on NEPA-related matters.

\ 3

/

o Discipline of the Licensing Process It is in the interest of the parties to the licensing proceeding (i.e., DOE, NRC and. the public) for the NRC to adopt, consistent with its formal rules, appropriate protocols and management discipline in the licensing proceeding to ensure that issues are properly evaluated and a timely decision rendered.

To provide necessary administrative controls over the licensing process for the NRC to meet the three-year licensing schedule, the NRC should modify Section 51.109 to provide a time period within which the NRC staff must present its position on the practicability of adopting the DOE EIS and the filing _of any necessary

• supplemental information, for example, 90 days after publication of the EIS. In the event that the NRC fails to adopt our comment to remove the practicability determination from the adjudicatory hearing, the rule should include a similar provision with respect to the time by which contentions regarding the practicality of the DOE EIS must be filed, for-example, the date on which initial contentions are due or 90 days after EIS issuance, whichever is later.

o Practicality of Adoption by NRC of the DOE EIS As the NRC explained in its supplemental information to the proposed rule, "[t]he adoption of the statement does not necessarily mean that NRC would independently have arrived at the same conclusions on matters of fact or policy." (53 Fed. Reg. at 16142). Rather, the NRC recognizes that it should defer to DOE's judgments on matters not related to safety findings that the Commission must make under 10 CFR Part 60. It would be appropriate for that important concept to be embodied in the rule itself.

To eliminate any possible misunderstanding, the NRC shou_ld clarify in its final rule that the criteria to be used in evaluating the extent to which it is practicable for the NRC to adopt the DOE EIS are those provided in NEPA and subsequent judicial interpretations. The NRC should clarify that it intends to make its own NEPA-mandated findings, including an independent balancing of relevant factors, only to the extent that it does not adopt the DOE EIS (i.e., because of new information or new considerations) . Such findings would apply only when the NRC itself must prepare an EIS or a supplemental EIS.

4

'88 l\UG -4 p 2 :26 SOUTHWEST RESEARCH AND INFORMATION CENTER August 1, 1988 DOCKET NUMBERJR PROPOSED RULE ~ S:.~~"';\

Secretary of the Corrnnission 53 F~ /C,/3!)

U.S. Nuclear Regulatory Canmission Washington, D.C. 20555 Attention: I:bcketing and Service Branch

Dear People,

Enclosed are the cnmments of Southwest Research and Information Center (SRIC) on the NIC's propose:1 rule for changing 10 CFR Parts 2, 51 and 60 as noticed in the Federal Register of May 5, 1988.

SRIC is a private nonprofit organization which has been intensively involved in nuclear waste management and disposal issues for more than a decade. We have been active participants in the Department of Energy's high-level waste program.

As the comments describe in more detail, we believe that the proposed rule is fundamentally flawed. We would therefore request that the propose:1 rule be substantially revised and reissued for public comment.

• We would appreciate your careful consideration of these carrments.

a,r,,~J(__

Yours truly, Don Hancock Director Nuclear Waste Safety Project *

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SOUTHWEST RESEARCH AND INFORMATION CENTER ClM4ml'S ON THE lNIIC 1 S PIDPOSED RIJLE FOR NEPA REVIEW PIUCEOORES :FOR GIDIOOIC REPOSI'IDRIES 10 CFR Parts 2, 5!., and 60 August 1, 1988 SUl::mitterl by Don Hancock Director, Nuclear Waste Safety Project P.O. BOX 4524 ALBUQUERQUE NEW MEXICO 87106 sos - 262-1862

I. 9.JMMARY The Nuclear Regulatory Cormnission's (NRC) proJX)sed rule for NEPA.review procedures for Geologic ReJX)sitories for High-Level Waste (10 CFR Parts 2, 51 and 60, 53 Federal Register 16131) is inadequate because it does not meet the legal requirements of NEPA and the Nuclear Waste Policy Act (NWPA) , it does not address the two rrost imminent actions facing the Cormnission, and it does not adequately consider the range of alternative scenarios that relate to the Cormnission's adopting IDE's final environmental impact statement (FEIS).

The proJX)sed rule seems to assume that the only likely JX)ssibility of the Carrrrnission receiving a IDE FEIS is as part of a reJX)sitory license application after: Yucca M:mntain is characterized and then is recornmendai by the President to Congress; the state of Nevada files suit challenging the adequacy of the FEIS (and presumably files its notice of disapproval, which is overridden by Congress); the Court of Appeals finds the FEIS is not inadequate; and the only substantive issues before the NRC in the licensing proceeding relate to radiological safety issues at Yucca Mountain. While that scenario is JX)ssible, it is not the only scenario, and perhaps not even the rrost likely one. Moreover, it is inappropriate for the Carrrrnission to base so much of its proJX)sed rule -- consciously or unconsciously -- an that assumption.

Because of those inadequacies, the proJX)sed rule should be substantially revised and reissued for additional comment before final promulgation.

II. LEGAL REQUIREMENTS FDR THE COMMISSION'S LICENSING REVI:E.W The NWPA's language in section 114(f) UJX)n which the Ccmmission relies so heavily in the proJX)sed rule was intended to expedite the NRC's review of the license application -- which Congress hoped could be done in 3 years or a maximum of 4 years (Section 114(d)(2)). The Commission is erroneously reading 1

the statute to limit the NEPA and licensing issues that the NRC can address.

On the contrary, the NWPA explicitly allows NOC to disapprove a construction application and does not limit to "radiological safety" the issues that could lead to such a rejection (Section 116(c) (4) (A) (iii) and Section 118(b){S)(iii)).

J.l.'.breover, Congress is aware that the NRC often places conditions on its licensees, but it did not prohibit the Ccmmission from imposing conditions, including those related to environmental issues. In such cases, a supplement to the FEIS would be necessary.

The Commission's self-imposed limits on the scope of its NEPA review and its licensing authority are not consistent with protecting public health and safety and the Commission's normal licensing procedures. The Commission should re-propose a rule which provides for full NEPA review, not limited to artificial distinctions of "radiological safety" and environmental concerns.

In fact, in many cases those distinctions may be impossible to make since many issues will intertwine environmental and radiological concerns.

III. ACTIONS NEEDING NRC ATI'ENTION The proposed rule does not focus on tl1e actions that are most imminent and on those actions where OOE, states and tribes, and the public rrost need guidance from the Commission. Those actions are NRC's role in IDE's scoping process and the Commission's procedures for dealing with the new Office of Negotiator established as Title IV of the NWPA by the Nuclear Waste Policy Act Amendments of 1987 (NWPAA).

A. Scoping process for Yucca Mountain While the Commission's consideration of OOE's FEIS in a licensing proceeding for Yucca Mountain will not cormnence until 1995 at the earliest, according to OOE's Draft 1988 Mission Plan Amendment (p. 51), OOE's scoping 2

process should begin within a year. In 1986, the Commission affinned that it would "review and canment on OOE's scoping documents and activities for implementing NEPA. " ( 51 Federal Register 27159)

• The Commission should be describing how it will be involved in the scoping process. Instead, the proposed rule totally ignores that 1986 Commission position on involvement in the scoping process and says (p. 16131) that the Commission's review begins with the DEIS.

Since OOE has not yet adequately defined its NEPA process, the Comnission should be providing guidance to DOE as to how the scoping process should proceed -- including when and how the scoping process should be initiated, how the affected states and tribes and the public should be involved, and discussing the form of NRC's participation. During that scoping process, the Canmission should be an active participant and should participate in scoping hearings. 'lhe NRC should also make suggestions as to hO\rJ' OOE can best consider a disposal system which includes both an MRS and a reposi tm.y. 1 The proposed rule should incorporate a full understanding of the Ccmrnission's role throughout the NEPA process, including in the scoping process. 'lhe lack of such a complete understanding is a major deficiency in the proposed rule. The proposed rule should be corrected in a reissued proposed rule.

B. Nuclear Waste Negotiator In its preamble, the proposed rule recognizes that a new Title IV of the N"WPA has been created, but neither in the preamble nor in the propose:1 rule does the Commission describe the substantial new requirements that the Commission may have as a result of the activities of the'Negotiator. Since the Negotiator is required to finish his/her work by January 1993 (pursuant to 3

Section 410), the Commission's activities under that Title will be accc:xnplished before OOE even sul::inits its draft environmental impact statement for Yucca Mountain, which is not scheduled until 1993 according to the Draft 1988 Mission Plan Amendment (p. 51)

• The new Title establishes new requirements on the Commission. Section 403(c) allows the Negotiator to solicit and consider canments from the NRC: on the suitability of any site _for site characterization. 'Ihe Negotiator will alrrost certainly request infonnation and assistance from the Commission.

While the statute is silent on NRC's role in reviewing an environmental assessment (EA.) developed for a site proposed by the Negotiator, clearly the NRC should review such an EA. in at least as much detail as it reviewed the previous draft and final FAs produced by DOE for potential repository sites.

The Commission should expressly acknowledge this role.

Moreover, the new Title also changes the role of the EIS for a Negotiator-chosen site. For such a site, the FEIS would not be for the site selection decision of the Secretary of Energy and the President, but rather would only serve the purpose of providing necessary NEPA document~tion for the license application. An environmental assessment, not a FEIS, is specifically required by Section 403(d)(l) as part of the submission to Congress for its approval of the agreement made the the affected state or Indian tribe and the OOE. The preamble for the proposed rule shows no recognition of this possibility since it describes the FEIS as being for both the recanmendation and for the license application (p. 16139).

With a negotiator-selected site, it is quite likely that there will be no NEPA challenge since the affected state will not oppose the designation before Congress, the courts, or the Carunission. (Of course, the pericd of judicial 4

review for the FEIS an the negotiator-selected site is also different, since the 18O-day time period nay well not begin until the FEIS is filed with the license application.)

In addition to its impacts on the NEPA process, the Office of Negotiator will be a new agency with which NOC will interact. The Carnnissian should begin immediately defining its role in relation to the Negotiator.

IV. THE COMMISSION'S NEPA IDLE A. NRC participation in IDE' s NEPA process NEPA is first and foremost a public participatian statute. Public

- participation means that full participation by the public and by state and federal agencies witl, responsibilities related to the propose:i action. In relation to nuclear waste disposal, the EIS process must include participation from the public and by the many affected states and by federal agencies, especially the NRC, at all stages of the process: Scoping, DEIS, FEIS, and any necessary supplements.

It is important to note that IOE's EIS process is related to, but distinct from the NOC licensing process. 42 u.s.c 1O134(f) requires that, consistent with NEPA, OOE must prepare a FEIS to "accanpany any recaranendation to the President to approve a site for a repository." 'Ihat provision was not changed by the Nuclear Waste Policy Act Amendments of 1987 (NWPAA). 'Ihus, under the NWPA, the first purpose of the FEIS is to pro,ide necessary infonnation to the decisionmakers -- the Secretary of Energy and the President

-- regarding final selection of the repository site. 'Ihose Camu.ssion comments, required by 42 u.s.c. 1O134(A)(l)(D), should build upon previous Carmission camnents during the scoping process and oo the DEIS. Under the NWPA -- and the provision was not changed by the :NWPAA - the FEIS might not 5

be used in a licensing proceeding, since either the President or the Congress could decide not to approve the Secretary's recanmendation, in which case the site would not be submitted to the NRC for licensing.

'lhe preamble states (p. 16138) that the NRC will be a canmenting agency, but the proposed rule does not adequately describe that role as an active, involved canmentor. On the contrary, as described in the proposed rule, the Carmission would effectively not be a ccmmenting agency at all times in the NEPA process, because it would "merely *** provide its comments, from time to time, with respect to environmental impacts failling [sic] within its jurisdiction or areas of expertise" (Id.) The :NWPA expands the roles of states and Indian tribes in order to "prcmote public confidence in the safety of disposal of such -wa.ste and spent fuel"

• 42 U. s. c. 10131 ( a) ( 6)

• But in addition to the expanded role for affected states and tribes and public involvement, the Commission should also fulfill its role of providing expert analysis of public health and safety issues throughout DOE's NEPA process.

All parties expect that the Commission should use its expertise throughout the NEPA process.

The Commission should also develop a mechanism to directly receive ccmments from interested par:ties throughout the NEPA process as well as have a method to review comments received by OOE on NEPA issues.

As mentioned above, the Commission should be an active participant in the scoping process, in commenting exhaustively on the DEIS, and in reviewing the FEIS. The NRC' s views en the FEIS will certainly be requested by Congress should a notice of disapproval be filed by the affected state or tribe and will also necessarily be a part of the licensing proceeding. M:)reover, such views will undoubtedly be reviewed by the court of appeals should a challenge to the adequacy of the FEIS be filed.

6

B. NRC' s review of COE' s FEIS along with the license application OOE's FEIS is required to be part of the license application. In addition to reviewing the FEIS and the Safety Analysis Report (SAR), the NRC should canpare the SAR to the FEIS to ensure that the t\\G documents are not inconsistent. Differences in the documents could require revisions to the SAR or supplementation of the FEIS.

While it is true that twl'PA has modified the NEPA requirements for geologic repositories, neither the NWPA, nor the NWPAA, require that Yucca Mountain be licensed. And, with the significant limitations noted in the preamble, the NWPAA assumes thorough NEPA review and compliance and full licensing consideration of all relevant issues, primarily, but not exclusively, radiological safety issues.

Additionally, Congress is now considering a multi-million dollar Licensing Support System (LSS), which, as we understand it, will contain many documents related to 1:::oth environmental and radiological safety issues. If Congress really intended to severely limit the NIC's licensing review, it would have specifically said so and would not be appropriating substantial sums to ensure that all applicable documents are included in an LSS.

C. Scenarios for NEPA review not considered in the proposed rule Perhaps because of the exceptions on the nonnal requirements for a FEIS, the proposed rule seems to assume that the proposed rule will be used only for a FEIS subnitted with the Yucca Mountain license application. 'Ihe rule presumes that the adequacy of the FEIS will be challenged in Court and so that all issues except radiological safety will be decided. by the Court, not the Commission. Ibwever, there are several scenarios that \\GUld bring about a different situation regarding adoption of the FEIS, which seem not to have been considered in the proposed rule.

7

1) The only adjudication of the adequacy of the EIS is by the Commission. 'lhis situation could arise for a site chosen by a Negotiator, since there might not be any judicial review of that FEIS because the affected state or tribe would be precluded from challenging the EIS. Since the EIS would be prepared for the Cormnission's licensing, it could not have been challenged prior to its submittal to the Cormnission.

2) There is no legal challenge to the FEIS, but rather parties litigate all such issues during the licensing proceeding. Tne Cormnission must then review the FEIS in detail because its final decision on adopting the FEIS is also subject to judicial review, pursuant to 42 u.s.c. 10139(a)(l)(A).

3) Both environmental and radiological safety issues could be included in judicial review of the FEIS. In the prearrble (p. 16139) the proposed rule argues that radiological safety "is entrusted solely to the Caamission," but a party to NEPA litigation may -well contest radiological safety issues especially since the FEIS must include performance assessment issues. SO a court could make findings about environmental and radiological safety issues.

4) A Court concludes that a FEIS is inadequate on any of a number of grounds. 'lhe Cormnission could not then adopt that FEIS and would have to require a supplement. In such a case, the Cormnission would have to fully evaluate all issues decided by the Court to determine the irrpacts of the decision on the validity of the license application.

5) A Court decides to delay its decision on the adequacy of the FEIS pending the Ccmmission's findings as to its adequacy in the licensing proceeding. In cases v.m.ere parties challenge the adequacy of the FEIS, a court might decide to delay its final decision until it reviews the Commission's decision so as to take full advantage of the Cormnission's expertise.

8

6) A Court does not make its decision before the Commission makes its licensing decision. Since the IDE expects the Corrrrnission to take no nore than three years to grant the construction license (as stated in the Mission Plan, Project Decision Schedule, and Draft 1988 Mission Plan Amendment), it is quite possible that a Court would not have issued its final order. For example, the 9th Circuit Court of Appeals has had challenges to the IDE's siting guidelines since December 1984. 'Ihe preamble assumes that the Court will make its decision before the Corrrrnission acts.

'Ihe proposed rule should be revised to reflect the various alternative scenarios that have not been adequately included in the proposed rule. 'Ihe varius scenarios require a more flexible approach to reviewing and adopting the FEIS than the one conterrplated in the proposed rule.

D. Prejudice to intervenor parties

'Ihe preamble of the proposed rule states:

'Ihe preclusive effect of a prior judgment sustaining DOE' s environmental impact statement would not necessarily be limited to the petitioner of record in that proceeding. It can be argued that those who were represented by that petitioner would also be barred fran litigating the issue in a subsequent action. (p. 16139)

'Ihe accanpanying footnote further indicates that "members of the public" who had been represented by state officials "might be precluded, to the same extent, fran raising the issues anew." (Id.)

'Ihe Commission should not now be limiting the issues that a party can raise in the licensing proceeding. The Corrrrnission cannot finally determine wham all the parties will be at this time. And it is certainly inappropriate to prematurely limit what issues parties can raise. It should be noted, however, that the Commission's rules for intervention (10 CFR 2. 714) do not preclude individual citizens or citizens groups fran becoming parties in the 9

licensing proceeding, even though the affected State petitioning for intervention will be a party.

The comment and footnote related to limitations on issues should~

striken from the preamble because it is inappropriate and premature to make such judgments at this time.

IV. OONCLUSION The proposed rule is seriously flawed in its understanding of the

_Conmission' s NEPA obligations and in seriously reducing the number of scenarios being considered for adopting the FEIS. That range does not include all of the possibilities expressly authorized by the NWPM, nor does it reflect a realistic range of likely scenarios for action leading up to the NFC's decisions. The rule should be revised to take into consideration these issues and then reissued for public comment. ~reover, the proposed rule should also be expanded to describe the Camnission's NEPA role prior to the submittal of the FEIS in the licensing proceeding.

10

DOCKET NUMBER PR PROPOSED RULE 2 --

(5 I= '31 ENVIRONMENTAL DEFENSE FUN 1405 Arapahoe Avenue Boulder, CO 80302 (303) 440-4901

• aa AU, -3 PJ :46 August 2, 1988 fJ:"fC vr /J.

BY EXPRESS MAIL DOCIHilN,. '"'1/!.f.

RANCI*

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

Dear Mr. Chilk,

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

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

Through legislative, administrative, and court action, EDF has participated in the debate over this nation's long term strategy for nuclear waste disposal. For example, EDF took part in the High Level Waste Licensing Support System negotiated rulemaking conducted by the Nuclear Regulatory Commission ("NRC", "the Commission").

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

1616 P Street, NW EDF urges the Commission to abandon the dramatic Washington, DC 20036 diminution of its licensing authority which (202) 387-3500 these proposed changes would effect. Instead, EDF would urge the Commission to withdraw thi s 5655 College Avenue proposal and prepare and publish a new set of Oakland, CA 94618 (415) 658-8008 amendments to its existing rules which conform them as necessary to the clear process 1108 East Main Street variations required by NWPA, but do not Richmond, VA 23219 illegally reduce the scope of NRC's . repository (804) 780-1297 licensing review.

128 East Hargett Street

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Samuel Chilk, NRC Secretary August 2, 1988 Page 2 From our review, EDF would support the proposed changes to the following sections of NRC's rules in 10 C.F.R. as primarily or entirely noncontroversial: Part 2, section 101; Part 51, sections 20, 21, 22, 26(a), 67(a), 67(b), 67(d), 109(a) (1),

109(b), 109(e), 109(g), and 118; and Part 60, sections 22, 31 and 51(a). We believe that NRC could adopt these sections, following this public comment and review period, with appropriate modifications to conform to the rule which will be produced as a result of the recently completed negotiated rulemaking (that will add an new subpart to 10 C.F.R. Part 2 to allow for the use of an enhanced "Licensing Support System" during the Commission's consideration of the repository).

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

Samuel Chilk, NRC Secretary August 2, 1988 Page 3 is to include in these shorthand phrases the NRC construction authorization and process for issuing such authorization, too.)

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

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

Samuel Chilk, NRC Secretary August 2, 1988 Page 4 NRC must exercise its NEPA duties for the repository. NRC can take an active role in the development of DOE's EIS and thereby attempt to ensure that such EIS adequately addresses all issues which it is proper for DOE to address in carrying out its responsibilities under the NWPA. Were NRC to participate actively, commenting at all phases in DOE's progress including the scoping process and the draft EIS, NRC might be able to adopt more of DOE's EIS than it would be able to adopt absent vigorous participation. However, even if NRC does take an active, early role in the development of DOE's EIS, NRC must still carry out its own NEPA responsibilities for the repository, including the preparation and issuance of its own EIS. Although parts of that EIS may in fact be adopted from DOE's NEPA compliance documents, NRC must also fill in the gaps which will result because of NRC's independent duties under NWPA which Congress explicitly recognized. Because these proposed rules would thwart NRC's NWPA responsibilities, NRC must redraft, republish and rethink the regulatory amendments it needs to adopt to fulfil its statutory obligations for licensing a high level nuclear waste repository.

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

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

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

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

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

process. Moreover, the few limits which Congress imposed on NRC's NEPA inquiries in section 114 do not allow NRC to avoid all other NEPA considerations in its licensing. Although the Commission states that its authority under the Atomic Energy Act, as amended is limited to the protection of public health and safety, this is not quite correct. As amended, the Atomic Energy Act directs NRC to comply with NEPA; so, NRC's authority also includes the consideration of impacts to the human environment.

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

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

Samuel Chilk, NRC Secretary August 2, 1988 Page 6 proceeding, and EDF would have agreed with this conclusion. But instead,. NRC proposes through these rules to limit its own NEPA duties and the scope of its licensing inquiry far beyond the four above-described limitations which Congress imposed in NWPA section 114. These four specific congressional limits on the scope of DOE's and NRC's NEPA duties have no relevance whatsoever to any further narrowing either of the scope of NRC's licensing inquiry or of the extent of NRC's adoption or rejection of DOE's EIS. The former is controlled by the provisions of 10 C.F.R.

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

of its licensing proceeding.

In fact, the very legislative history which NRC quotes regarding the Commission's independent duties vis-a-vis the repository support the principle that NRC is not allowed to forego its NEPA duties and rely entirely on DOE's NEPA compliance. In addition to the legislative history, there is the language of NWPA itself which indicates that Congress intended for NRC to issue its own EIS. Thus, section 114(f) (6) provides:

"In any [EIS] prepared with respect to the repository to be

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

As EDF explains below, the interplay between federal agencies, each with distinct programmatic and NEPA responsibilities, is not one which would allow the Commission to abdicate its role simply because DOE, its sister agency, complies with the laws, including NEPA, which apply to the Department.

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

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

NWPA section 114(f) tells NRC to adopt DOE's EIS "to the extent practicable," from which NRC reasons that it must give the EIS "substantial weight" where relevant to Commission decisions.

Although the Commission concedes both that a "rule of reason" still applies regarding its evaluation of DOE's discussions, and that DOE might not necessarily address in its EIS all of the issues which NRC must address, the Commission translates the Congressional directive to adopt if practicable into a virtual directive to adopt. See, proposed section 51.67(c). Further, NRC suggests that, because NWPA section 114(f) allows NRC's adoption of the EIS to "satisfy" NRC's NEPA duties such that "no further consideration is required," the NWPA as a whole (or at

Samuel Chilk, NRC Secretary August 2, 1988 Page 8 least in its directive in section 114(d) to NRC to issue a construction authorization for the repository) should be read as 11 counsel[ing] against the wide ranging independent examination of environmental concerns customary to NRC's licensing proceedings."

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

Samuel Chilk, NRC Secretary August 2, 1988 Page 9

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

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

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

Samuel Chilk, NRC Secretary August 2, 1988 Page 10 still conduct an independent analysis -- even of those portions of DOE's EIS which the Commission wants to adopt -- to determine whether those portions which it adopts satisfy its own NEPA responsibilities. Finally, if NRC were to adopt parts of DOE's EIS, even to the extent that NRC were then bound by a court decision which found such parts in compliance with NEPA, that scenario obviously contemplates that NRC would have to wait for such court decision, which could be years after the issuance of DOE's EIS and long after such decision could be meaningful during the Commission's expedited licensing proceeding.

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

Citing the statutory provision that allows NRC to adopt parts of DOE's EIS and various Congressional committee reports, NRC argues that the legislative history of NWPA directs the Commission to focus on health and safety issues, to the exclusion of the environmental issues ordinarily raised in the NEPA process. The Commission bases this argument on several factors, including that Congress removed NRC review of DOE'S decisions on site screening and selection, that one Senate bill had included the word "environmental" which was not included in the final version of the 1982 NWPA, and that except for its review of the Guidelines, NRC's role is statutorily limited to addressing health and safety issues. NRC also cites committee reports for the proposition that NRC should not duplicate DOE's work,

Samuel Chilk, NRC Secretary August 2, 1988 Page 11 although NRC admits that one such report, the Conference Report on H.R. 6598, H. Rep.97-785, part 1, p. 69, specifically reserves NRC's independent NEPA and licensing responsibilities and recognizing NRC's duty to supplement DOE's EIS as necessary.

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

Finally, NRC points to the sections of NWPA which make DOE actions on the repository subject to legislative and judicial review to argue that DOE's EIS does not also need NRC review.

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

As to the Commission's argument that it has responsibility for health and safety issues but not protection of the human

Samuel Chilk, NRC Secretary August 2, 1988 Page 12 environment, such position is contrary to (1) the Commission's NEPA duties as a federal agency undertaking a major federal action, (2) .what the Commission itself saw as its responsibilities when it adopted 10 C.F.R. 60 which contemplates NRC review of at least some environmental issues, and (3) the implications of NWPA section 121 which directs EPA to adopt environmental standards and NRC to promulgate technical criteria which "shall not be inconsistent with any comparable standards promulgated by the [EPA] Administrator." Section 121 then directs NRC to revise its criteria if issued before EPA's standards and if after EPA's standards are issued it turns out that the NRC criteria are inconsistent with the EPA standards.

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

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

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

Reg. 16143, col. 3.

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

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

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

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

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

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

NRC argues that for the repository, DOE is the "lead agency" for NEPA purposes and the Commission is merely a commenting

Samuel Chilk, NRC Secretary August 2, 1988 Page 15 agency. See, 40 C.F.R. 1506. As such, the Commission asserts that right to adopt DOE's EIS if that statement is adequate and without doing an independent evaluation of the issues that DOE addresses in its EIS prior to such adoption. Even though NEPA would usually require the licensing agency to do an independent review, because of NWPA's limits on NEPA compliance and judicial review provisions, NRC claims it may defer to DOE's work here because DOE is the agency with the ultimate responsibility for the repository so NRC may defer to DOE's views.

EDF is appalled that NRC would attempt to cast DOE as the federal agency with the ultimate authority over the repository when it is NRC with the power to grant or deny a repository license. Because NRC is the agency with the ultimate authority to declare whether the repository is ever built, this situation is no different from the cases NRC cites that direct NRC, as the licensing agency, to do an independent evaluation of the health, safety and environmental impacts of a proposed project. In fact, the cases which NRC cites represent a bar to NRC's adoption of DOE's EIS absent the Commission's performing an independent review.

7. NRC cannot deny DOE'S application to avoid having to supplement the EIS.

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

Samuel Chilk, NRC Secretary August 2, 1988 Page 16 reason for the language, "[i]n any such statement prepared with respect to the repository to be constructed under this subtitle, the NRC" need not consider certain issues. For NRC to use this rulemaking to announce its intention that either DOE will prepare supplements to the EIS that NRC deems necessary or NRC will deny DOE's application is simply preposterous. It is also without legal basis. NRC cannot force DOE to perform the Commission's own responsibilities through the threat of license denial. EDF urges the Commission to rethink such juvenile behavior.

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

\

l

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

Sincerely, m~~~,:)

Melinda Kassen Staff Attorney Rocky Mountain Regional Office

RICHARD H. BRYAN STATE OF NEVADA

-~~~~3~~u:3tf{_ r c--- rr, 1 _5./ ~6 tJ JQL/"'2,I J ROBERT R. Loux Governor ., 1 r f <.. Executive Direc tor

[IOCKEiU tJ i*C

• aa AUG -2 All :14 AGENCY FOR NUCLEAR PROJECTS NUCLEAR WASTE PROJECT OFFICE Capitol Complex Carson City, Nevada 89710 (702) 885-3744 August 1, 1988 Secretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Service Branch 1717 H Street, N.W.

Washington, DC 20555

Dear Mr. Secretary:

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

We appreci t te the opportunity to provide comment on this Proposed Rule.

Sincerely, AGENCY FOR NUCLEAR PROJECTS /

NUCLEAR WASTE PROJECT OFFICE By: ~::s:::iz.~::::..::::.~:___...'--~------------------==--*-

Robert R. Lo Executive I RRL*jm Encl.

I AUG 1 0 1988 Acknowledeea (0)*3965

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NEVADA'S COMMENTS ON NRC'S PROPOSED "NEPA REVIEW PROCEDURES FOR GEOLOGIC REPOSITORIES FOR HIGH-LEVEL WASTE" A. Comments Regarding the Supplementary Information

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

The major underlying premise contained within the Supple-mentary Information, offered by NRC staff to justify the proposed rule, is wrong. 1 It is wrong because it poses, analyzes and answers the wrong question. Throughout, it discusses the question how NRC should review and approve the adequacy of DOE's EIS; (See e.g. 53 Fed. Reg. 16138, col. 2, 16144, col. 1.). The correct question is how NRC should perform its own, independent, NEPA responsibilities. This fundamental error in NRC analysis leads to an unnecessary discussion about res judicata, collateral estoppel and bar, subjects wholly irrelevant to NRC's correct performance of its NEPA obligations. The real question, and the one answered by the rule Nevada proposes herein, is how the NRC can "adopt" the valuable portions of OOE's EIS to its (NRC's) own advan-tage in performing its own responsibilities.

2. The NRC's Independent NEPA Responsibilities.

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

COMMENTS 1

__J

Prior to passage of th National Environmental Policy Act, 42 u.s.c. 4310, et seq., the Commission's authority was con-fined to radiological health and safety matters. NEPA expand-ed that authority to guarding the environment from the adverse environmental effects of nuclear plants - even from their non radiological consequences. Where necessary the Commission may impose license conditions to minimize those impacts. This basic NRC law has been espoused by the Commission, Kansas Gas and Electric Company (Wolf Creek, Unit No. 1), CLl-77-1, 5 NRC 1 (1977); by the court of appeals, Public Service Co. v. NRC, 582 F.2d 77 (1st Cir. 1978); Culpepper League v. NRC, 574 F.2d 633 (D.C. Cir. 1978); Calvert Cliffs' Coord. Comm. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971); and by the Supreme Court, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978);

Kleppe v. Sierra Club, 427 U.S. 390 (1979). Those cases are stated in terms of the non-radiological environmental impacts of nuclear plants. The NRC, of course, also has authority to control the use and possession of nuclear materials in a more generic sense than just at a nuclear power plant. See§§ 51-92 of the Atomic Energy Act, .42 U.S.C. 2071-2122. That authority is recognized in §114(d) of the Nuclear Waste Policy Act, 42 u.s.c. 10134 (d): "The Commission shall consider an application for a construction authorization for all or any part of a repository in accordance with the laws applicable to such applications * * * * " Those applicable laws are, obvious-ly, the Atomic Energy Act and NEPA.

COMMENTS 2

The confusion of the supplementary information regarding the proper issue to analyze is, we think, caused by the fact that more than one federal agency is involved in the major federal action of siting, licensing and developing a high-lev-el nuclear waste repository. (The Commission staff wrongly perceives that "[w]hile the action being taken by DOE is the recommendation to the President of a site for repository development and the action being taken by the Commission is the issuance of a construction authorization for a repository, the relevant considerations in the two situations are identi-cal." 53 Fed. Reg. 16139, col. 3.)

The law, both in the courts and at the Commission, is that, where a major federal action involves two or more federal agencies, each agency must evaluate the environmental consequences of the entire project and determine independently whether NEPA has been satisfied. Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ACAB-506, 8 NRC

- 533, 547 (1978} (cited for this same proposition by NRC at 53 Fed. Reg. 16138, col. 3}; Silentman v. FPC, 566 F.2d 237 (D.C. Cir. 1875). And, of course, each agency involved in a multi agency major federal action must independently apply its unique statutory jurisdiction and authority. Here the NRC's duty to enforce the Atomic Energy Act and the DOE's duty to COMMENTS 3

carry out the Nuclear Waste Policy Act are not the same, though each has its part in the same major federal action. 2 There are exceptions to the general rule stated above regarding multiple agency action under NEPA. An agency's NEPA responsibilities may be compromised when the responsible agency is itself forbidden to act as NEPA might otherwise demand. 3 U.S. v. S.C.R.A.P., 412 U.S. 669 (1973). Likewise NEPA may be compromised where NEPA procedures would directly frustrate the responsible agency's ability to carry out its specific statutory duties. Flint Ridge Development Co. v.

Scenic Rivers, 426 U.S. 776 (1976). See Tennessee Valley Authority, supra, p. 546. Neither of these conditions *pertain to the exercise of the NRC's NEPA responsibilities.

a. Compromise of the NRC's other statutory duties.

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

L. 100-203, Congress had not limited the Commission's 2 rt is clear that the Commission and the Congress know what NRC's independent responsibilities are. The Commission staff's repeated reference to legislative reports include numerous statements of "independent responsibilities of the Commission." See 53 Feg. Reg. 16137, col. 1, 2. But the text of the supplementary information suggests that the quoted language means "independent" of NEPA when it clearly means "independent" of OOE's responsibilities.

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

COMMENTS 4

independent NEPA responsibilities at all.- The NWPA, as amended, now provides that the Commission "need not consider the need for a repository, the time of initial avaiiability of a repository, alternate sites to the Yucca Mountain site, 6r

.non geologic alternatives to a site" in the Commission's own EIS. This limitation is not even preclusive of NRC's consideration of these matters as NRC may but "need not" consider them. And this new limitation only makes sense if NRC has an otherwise complete and independent responsibility under NEPA to prepare its own EIS. There are, certainly, other environmental matters which NRC must consider which DOE perhaps won't, as, for instance, 1) comparative design or operational practices and their environmental effects at the repository; 2) comparative methods _for demonstration of compliance with NRC's performance objectives and their environmental effects; 3) comparative methods of verification of compliance with isolation standarc;ls and their environmental ef:j:ects; and, 4} as the NRC acknowledges, the environmental

- effects of NRC denial of DOE's application. 53 Fed. Reg.

16141, col. 4.

The Commission's supplementary information does not base its proposed rule on what the Nuclear Waste Policy Act says about its NEPA duties. In fact the NWPA says only that any EIS prepared by the Secretary of DOE "shall, to the extent practicable, be adopted by the. Commission in connection with the issuance by the Commission of a construction authorization COMMENTS 5

and license for such repository. To the extent such statement is adopted by the Commission, such adoption shall satisfy the responsibilities of the Commission under [NEPA] and no further consideration shall be required, except that nothing in this subsection shall affect any independent responsibilities of the Commission to protect the public health and safety under the Atomic Energy Act of 1954". §114(f) as amended, 42 u.s.c.

10134 (f) (4).

This is nothing more than a restatement of the law earlier set forth in T.V.A., s.C.R.A.P., and Flint Ridge, all supra. The strained analysis of the supplementary information pushes this obvious restatement of the law into authority for the unwarranted proposition that finality on the legal virtues of DOE's EIS forecloses NRC consideration of any environmental issues it so chooses, including those listed in §114(f) (6),

and limits NRC's independent NEPA responsibilities.

It may help to present the obvious analysis which the supplementary information overlooks. "[T]o the extent practi;...

cable" means to the extent that it is otherwise within the customary practice of the NRC. See Webster's New Internation-al Dictionary, unabridged 3rd Edition, 1961, p. 1780, where it provides:

Practicable

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

FEASIBLE (a practicable method) (a practicable aim)

COMMENTS 6

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

1. c The usual mode or method of doing something c.f. also, Black's Law Dictionary 1055, Random House College Dictionary 1040.

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

Train, 540 F. 2d 1329-1341 (8th Cir. 1976) ( "not wholly out of proportion to"); Oxman v. WLS-TV, 595 F.Supp. 557 (N.D. Ill, 1984) ("as. soon as practicable", a "practicable" time varies from case to case); Newman v. Village of Hinsdale 592 F.Supp.

1307 (N.D. Ill, 1984) ("practicable" defined and distinguished 4Not only would we expect the Commission to be jealous of its discretionary power, but we would be surprised if the Commission really wanted to threaten the exercise of that discretion by statements of prejudgment like "the Commission does not anticipate imposition of license conditions with significant environmental impacts" 53 Fed. Reg. ____

• That determination certainly can't be based on the exercise of sound discretion and judgment when no specific proposal has yet even been submitted to the Commission.

COMMENTS 7

from "practical"}; Frey v. Security Insurance Company of Hartford, 331 F.Supp. 140-143 (W.D. Penn, 1971} ("'practica-ble' means feasible in the circumstances"} Young v. Travelers Insurance Co., 119 F.2d 877-880 (5th Cir. 1941} (cited and quoted with favor in Transamerica Insurance Co. v. Parrot, 531 S.W.2d 306 at 312 as follows: "[t]he words 'as soon as practicable' are not words of precise and definite impact.

They are roomy words. They provide for more or less free play. They are in their nature ambulatory and subject under the guiding rule, to the impact of particular facts on partic-ular cases"}; Selinger v. Governor of Maryland, 266 Md. 431, A. 2d 817, 819 (1972} ("practicable" means "of a relative and dependent character, to be controlled more or less by the circumstances of the case"}.

The concept of practicability in this case should be even better informed as the concept *is used in NEPA itself. 42 u.s.c. 433l(b} provides that "it is the continuing responsi-

- bility of the Federal Government to use all practicable means" etc. to accomplish environmental objectives. That phrase has been much litigated and is the very basis of the exception, stated in S.C.R.A.P. supra, that NEPA fits within, i.e. does not require compromise of, an agency's more specific statutory responsibilities. Judge Wright in Calvert Cliffs', supra p.

1112. opined that the NEPA phrase "all practicable means" was a "flexible" phrase leaving the "reasonable room for the exercise of discretion.

COMMENTS 8

The balance of the language of §114(f) (4) as amended, 42 u.s.c. 10134 (f) (4), is also helpful. Congress, recognizing NRC's independent NEPA responsibilities, contemplated that it may be practicable only to adopt portions of DOE's EIS. And, of course, even though NRC's adoption (in whole or part) of DOE's EIS would "satisfy the responsibilities of the Commis-sion" under NEPA, 5 the performance of those responsibilities would be open to legal challenge for failure of the adoption to have been "practicable". Judicial review of NRC 's issuance of its own EIS is permitted under §119 (a) (1) (D), 42 u.s.c.

10139(a) (1) (D), which permits review of any EIS prepared under NEPA with respect to Commission licensure of a repository, or action taken "under this subtitle."

b. NEPA procedures* would frustrate the responsible agency's ability to carry out its statutory duties.

The second exception to NRC's precedent and the general rule that each agency has an independent duty to evaluate the environmental consequences of the entire project in a multi-agency major federal action is the Flint Ridge excep-tion. In order for this exception to apply, NEPA procedures 5Nevada takes significant exception to the proposition that this language "counsel[s] against the wide ranging independent examination of environmental concerns that is customary in licensing proceedings" 53 Fed. Reg. 16136, col.

1. If anything, NRC 's "customary" proceedings dictate the "practicability" of adopting DOE's environmental findings.

And if "counsel" is actually required, the Commission would better look to the mandates of NEPA, 42 u.s.c. 4332, "to the fullest extent possible".

COMMENTS 9

must directly frustrate the responsible agency's ability to carry out its specific statutory duties. Asswning, but.

reserving, that the Commission has a specific statutory duty to issue a construction authorization within three (or four) years after application therefore, see §114(d), 42 u.s.c.

10134(d), do NEPA procedures frustrate that duty? Thisi of course is a question of fact which can not be answered except in retrospect. Certainly, from today's perspective, NEPA procedures do not frustrate that duty as DOE's EIS can serve as NRC's draft EIS and the litigated licensing proceeding can serve as, or simultaneously with, the comment and republica-tion process. The Flint Ridge exception arises from the "to the fullest extent possible" language of NEPA, 42 u.s.c. 4332, which the opinion in Flint Ridge explains was not intended to minimize NEPA but rather to assure greater compliance with NEPA's directives.

Taking this substantive NWPA and NEPA law into account,

- the NRC has proposed the wrong kind of rule. The rule should be positively stated, leaving open the question of which portions of DOE's EIS are practicable to adopt under the circumstances and standards then existing. The standard of practicability should be the acceptability of adoption given the constants of the NRC's then current practices and the Commission's primary responsibility under the Atomic Energy Act, the Nuclear Waste Policy Act and NEPA.

COMMENTS 10

3. Corruption of the holding in "Calvert Cliffs'.

One primary error in the analysis of the supplementary information is the assumption that the NRC's responsibilities under NEPA generally are limited to the publication of an environmental impact statement and that if such a statement is produced that the Commission has no other duty to consider environmental issues. To the contrary, an environmental impact statement is a disclosure .document and in normal NRC practice, environmental issues are litigable in the licensing proceeding notwithstanding the EIS process. The Commission staff would have it that the short phrase "and no further consideration shall be required.", which appears in

§114(f) (4), means that adoption of DOE'S EIS by NRC would remove all environmental issues from litigation in the licens-ing proceeding. That interpretation is contrary to the clear direction of NEPA and puts the Commission at much risk of viol~ting NEPA on the basis of a strained interpretation of

§114(f)(4).

This error is really peculiar because the supplementary information first cites Calvert Cliffs', supra, for its clear holding that the NRC's "duty to consider environmental issues extends through all stages of the Commission's review process-es, including proceedings before hearing boards" and then states that the Commission adoption of DOE' s EIS "without independent analysis" would square w.1th Calvert Cliffs'. We can find no way to explain this remarkable contortion of legal COMMENTS 11

reasoning. Perhaps it would help to remind the Commission what Judge Wright said in Calvert Cliffs' case.

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

"Beyond Section 102(2) (C), NEPA requires that agencies consider the environmental impact of their actions "to the fullest extent possi-ble." The Act is addressed to agencies as a whole, not only to their professional staffs.

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

recommended action. Environmental factors, therefore, should not be singled out and excluded, at this stage, from the proper balance of values envisioned by NEPA.

"The Commission's regulations provided that in an uncontested proceeding the hearing board shall on its own "determine whether the applica-tion and the record of the proceeding contain sufficient information,~and the review of the application by the Commission's regulatory staff has been adequate, to support affirmative find-ings on" various non-environmental factors. NEPA requires at least as much automatic consideration of environmental factors. In uncontested hearings, the board need not necessarily go over the same ground covered in the "detailed state-ment." But it must at least examine the state-ment carefully to determine whether "the review *

• • by the Commission's regulatory staff has been adequate." And it must independently consider the final balance among conflicting factors that is struck in the staff's recommendation.

". * *

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

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

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

The AEC's proposed regulations overturned in Calvert Cliffs' had essentially.the same effect on agency environmen-tal considerations as those proposed here. We would expect a similar judicial determination if the matter were relitigated.

Another aspect of Calvert Cliffs', the AEC's contention that it could rely on the environmental certifications of COMMENTS 13

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

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

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

the agency to which NEPA is specifically direct-ed.

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

Concerned members of the public are thereby precluded from raising a wide range of environ-mental issues in order to affect particular Commission decisions. And the special purposes of NEPA is subverted." Calvert Cliffs' Coord.

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

4. The Preclusive Effect of Section 119.

The Commission staff, in the supplementary information, 53 Fed. Reg. 16139, 16140, argues that §119 of the NWPA, 42 u.s.c. 10139, permits the Commission to "carry out a licensing COMMENTS 14

review" which would "treat as settled those other issues arising under NEPA." We disagree.

First, §119 (a) (1) (D) permits judicial review of any EIS with respect to action under the subtitle. 42 u.s.c.

10139(a) (1) (D). That section says nothing that would bar review of NRC's refusal to issue its own EIS nor certainly its refusal to consider the environmental merits or impacts of DOE's proposed action. §114(f) (6) as amended does, of course, permit NRC to avoid some of the issues of environmental merit, if the Commission so chooses. But that is by virtue of statutory language, not res judicata or collateral estoppel.

Second, the bar to which the supplemental information refers is the bar to relitigation of the legal adequacy of DOE's action, not NRC's. Because the two agencies' actions are independent, a different legal and factual question is posed in each instance. Certainly NRC is entitled to rely on e the conclusions reached by DOE in its EIS, its NEPA and AEA discretion yet to be exercised, 6 but the Commission may not rely on the finality of challenge to DOE's EIS as a bar to its 6This is in accord with the proper statement of the law, at 53 Fed. Reg. 16136, that the Commission may give substantial weight to the findings of other .bodies. Pub.

Serv. Comm. of N.H. (Seabrook Station, Units 1 and 2.),

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

COMMENTS 15

exercise of that discretion or as a bar to judicial review of the failure to exercise that discretion properly.

Even if res judicata did work the way Commission staff believes it does, and it does not, the suggested approach, eliminating environmental issues from the licensing proceed-ing, is contrary to the directive of NEPA that "to the fullest extent possible * *

• the public laws of the United States shall be interpreted and administered in accordance with

[NEPA]" 42 u.s.c. 4332. That is the exact same provision upon which the TVA relied when attempting to preclude environmental issues from hearing simply because it had already done an EIS.

TVA, supra.

Third, as we have commented above, the res judicata analysis presented is based on an analysis of the wrong question, to wit how to review DOE's EIS for legal adequacy.

See e.g. 53 Fed. Reg. 16138, col. 2, 16144, col. 1. The right question is how to perform NRC's NEPA responsibility. NRC does not have a duty to review DOE's EIS for its legal adequa-cy .2fil:. se. And of course, if it did, a prior judicial ruling on that issue would be res judicata. Moreover, it would be law of the case. Res judicata analysis is just plain inapposite to the correct question.

Fourth, the analysis is based on a spurious rationale that "[t]he NWPA procedures really reflect two different kinds COMMENTS 16

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

The second leg of this rationale makes a statement which Alice wouldn't recognize, that the "State and Tribal provisions of the Act" were to provide the process by which alternatives were to have been considered. The State of Nevada heartily declines to accept the proposition that it had any duty to help DOE evaluate its alternatives. DOE certainly never offered any opportunity to do so and Congress has made that all quite academic anyway.

Last, the res judicata analysis puts potential EIS challengers on the horns of a dilemma. See discussion at 53 Fed. Reg. 16140, col. 1. That dilemma is inconsistent with the salubrious purposes of NEPA. The Commission staff would hope to bar judicial review of NRC environmental review by delay past the statute of limitations, imposed by §119(c), 42 U.S.C. 10139(c), which began to turn when DOE published its EIS. Challengers would then have to choose whether to let the statute run on DOE's earlier, perhaps more limited, EIS, or challenge it as its only opportunity to raise the COMMENTS 17

env ironrnental is sues. The Commission staff's pa t.ent strategy is offensive to NEPA.

5. Completeness of Application.

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

2, adopts that same basic standard. However that standard is insufficient. The problem with Section 60.24, either in its current form o_r as proposed, is that it does not place upon the Department of Energy the requirement that its application be supported by sufficient information. If, for instance, the Department of Energy should fail to characterize Yucca Moun-tain completely but nevertheless submit its application to the 9 NRC, perhaps under political duress to do so, then it might be construed that the information then developed, even though inadequa;e, was all that was "reasonably available." This problem is one that has been identified repeatedly by the State of Nevada in the committee meetings of the High-Level Nuclear Waste Licensing Support System Advisory Committee which has recently proposed amendments to 10 C.F.R. Patt 2 -

Subpart J. NRC representatives in that advisory committee agreed, at the committee's July 19, 1988 meeting, that COMMENTS 18

reference to the 10 C.F.R. 60.24(a) standard would be deleted from the supplementary information for that proposed rule in order to leave open the question of the appropriate standard.

In the supplementary information for the 10 C.F.R. Part 2 Subpart J rules, the Commission will express the opinion that "the information it needs in order to be able to consider the issuance of a construction authorization is generally the same as will be needed prior to issuance of a license to receive and possess high-level waste (HLW)." This, of course, overlooks the fact that during the course of construction at a repository site the Department of Energy will gain much new information about the site which will better inform the Commission in whether to grant a license to receive and posses high-level waste. Therefore the "time of docketing" the application for construction authorization hardly seems the appropriate time to determine the amount of information which is "reasonably available" *. The rule which we propose and submit herewith makes no amendment to Section 60.24(a),

leaving that matter for further discussion of the appropriate standard.

6. The Nuclear Waste Policy Amendments Act of 1987.

The supplementary information discusses the changes made by Congress in the "licensing process" by the Nuclear Waste Policy Amendments Act of 1987, Title v, Subtitle A, Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203. The COMMENTS 19

Commission staff incorrectly states what Congress did. Indeed Congress made significant changes to the process by which DOE would recommend sites to the President, but the only changes which the Congress made to the "licensing process" of the Commission were adding of the language in §114 (f) (6) (permit-ting NRC to exclude certain considerations from its EIS) and deleting the date by which the Commission was to have issued a final decision approving or disapproving the issuance of a construction authorization. See Pub. L. 100-203, §50ll(j).

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

7. Petition For Rulemaking.

The supplementary information to.the proposed rule requests that any person desiring to comment on the rulemaking petition filed by the States of Nevada and Minnesota, docketed

- as PRM 60-2A on October 3, 1985, do so now.

The State of Nevada is not satisfied that the Nuclear Regulatory Commission has responded to its petition for rulemaking in a timely way. It should not take nearly three years to respond to a proposal. And the mere inclusion of opportunity for comment in the context of this rule regarding NEPA is an inadequate response. The supplementary information is correct that the petition for rulemaking 60-2A proposed an COMMENTS 20

V amendment to 10 C.F.R. 60.24 which would have required the Commission. to "evaluate the environmental impact statement required by 42 u.s.c. 10134(f) and 10 C.F.R. 60.21(a) to determine whether its adoption by the Commission would not compromise the independent responsibilities of the Commission to protect the public health and safety under the Atomic Energy Act of 1954 (42 u.s.c. 2011, et. seq.)". The proposed*

rule then went on to specify the considerations which the Commission should take into account in making such a determi-nation. A number, though not all, of the considerations suggested were mooted*by the Nuclear Waste Policy Amendments Act of 1987. We have, therefore, rewritten and included the proposal contained in PRM60-2A in the proposed rule which we submit with these comments. Nevada continues to believe that a straightforward, substantive standard which may be applied

• objectively. is the best course by which the NRC can' guarantee the performance of its own NEPA responsibilities and preserve its own discretion. We have also attempted to create a e procedure which resembles familiar practice under NEPA, rather than creating a new and unfamiliar course, the monies of which may require subsequent administrative judicial interpretation.

B. Nevada's Proposed Rules.

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

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

environmental impact statement submission process within the other amendments to 10 C.F.R. Part 2 of which we are aware by reason of Nevada's participation in the High-Level Waste Licensing Support System Advisory Committee; 2) establish a system by which the Commission can retain its discretion to consider and act upon environmental issues in licensing of a repository; ijnd 3) at the same time adopt DOE's EIS "to the extent practicable." We have adopted as much of the NRC proposal as possible so as to minimize the differences between the two proposals. The proposed rules follow.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for Part 2 is revised to read as follows: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191,*as amended, Pub. :L.87-615, 76 Stat. 409 (42 u.s.c. 2241); sec. 201, 88 Stat. 1242, as amended (42 u.s.c. 5841); 5 u.s.c. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 u.s.c. 2073, 2092, 2093, 2111, 2133, 2134, 2135);

sec. 114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 u.s.c. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 u.s.c. 4332); sec. 301, .88 Stat. 1248 (42 u.s.c.

5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189~ 68 Stat. 936, 937, 938, 954, 955, as amended (42 u.s.c. 2132, 2133, 2134, 2135, COMMENTS 22

2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 u.s.c. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 u.s.c. 2236, 2282); sec. 206, 88 Stat. 1246 (42 u.s.c. 5846). Sections 2~600-2.606 also issued under sec.

102, Pub. L.91-190, 83 Stat. 853, as amended (42 u.s.c *.

4332). Sections 2.700a, 2~719 also issued under 5 u.s.c. 554.

Sections 2.754, 2.760, 2.770 also issued under 5 u.s.c. 557.

Section 2.790 also iss~ed under sec. 103, 68 Stat. 936, as amended (42 u.s.c. 2133) and 5 u.s.c. 552. Sections 2.800 and 2.808 also issued under 5 u.s.c. 553. Section 2~809 also issued under 5 *u.s.c. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 u.s.c. 2039) .* Subpart K also issued under sec. 189, 68 Stat. 955 (42 u.s.c. 2239); sec. 134, Pub.

L.97-425, 96 Stat. 2230 (42 u.s.c. 10154). Appendix A also issued. under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 u.s.c.

2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 u.s.c. 2021b et seq.).

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

and (7) are revised to read as follows:

§ 2.101 Filing of application.

(f) (1) Each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to Part 60 of this chapter and any environmental impact statement required in connection COMMENTS 23

therewith pursuant to Subpart A of Part 51 of this chapter shall be processed in accordance with the provisions of this paragraph.

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

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

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

COMMENTS 24

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

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

3. The authority citation for Part 51 is revised to read as follows: Sec. 161, 68 Stat. 948, as amended (42 D.s.c. 2201); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 124~ (42 u.s.c. 5841, 5842).

Subpart A also issued under National Environmental Policy Act of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 43l5); and Pub. L.95-604, Title II, 92

- Stat. 3033-3041. Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 Stat. 3036-3038 (42 u.s.c. 2021) and under Nuclear Waste Policy Act of 1982, sec. 121, 96 Stat.

2228 (42 u.s.c. 10141). Secs. 51.43 and 51.109 also issued under Nuclear Waste Policy Act of 1982, sec. 114(f), 96 Stat.

2216, as amended (42 u.s.c. 10134(f)) ~

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

identification of licensing and regulatory actions requiring environmental impact statements.

(b) ***

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

5. Section 51.21 is revised to read as follows:

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

All licensing and regulatory actions subject to this subpart require an environmental assessment except those identified in§ 51.20(b) as requiring an environmental impact statement, those identified in§ 51.22(c) as categorical exclusions, and those identified in§ 51.22(d) as other actions not requiring environmental review. As provided in

§51.22(b), the Commission may, in special circumstances, prepare an environmental assessment on an action covered by a categorical exclusion.

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

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

COMMENTS 26

(d}

• In accordance with section 121 of the Nuclear Waste Policy Act of 1982 (42 u.s~C~ 10141), the. promulgation of technical requirements and crit~ria that the Commission will apply in approving or disapproving applications under Part 60 of this chapter shall not require an environmental impact statement, an environmental assessment, or any environmental review under subparagraph ('E) or (F) of section 102(2) of NEPA.

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

§ 51.26 Requirement to publish notice of intent and conduct scoping Process.

(a) Whenever the appropriate NRC staff director deter-mines that an environmental impact statement will be prepared by NRC in connection with a proposed action, a notice of intent will be *prepared as provided in § 51. 27, and will be published in .the Federal Register as provided in § 51.116, and an appropriate scoping process (see§§ 51.27, 51.28 and 51.29)

-* will be conducted.

(c) Upon receipt of an application and accompanying environmental impact* statement unde_r §6 0. 22 of this chapter (pertaining to geologic repositories for high-level radioac-tive waste), the appropriate NRC staff director will include in the notice of docketing required to be published by

§2.101 (f) (8) of this chapter a stateme_nt that the Commission will, in accordance with §51.109, consider whether to adopt COMMENTS 27

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

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

§ 51.67 Environmental information concerning geologic reposi-tories.

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

(b) The final environmental impact statement which accompanies the Department of Energy's recommendation to the

- President to approve a site for a geologic repository shall be submitted to the Commission at the time and in the manner described in§ 60.22 of this chapter. Such statement shall be prepared in accordance with the provisions of section 114(f) of the Nuclear Waste Policy Act of 1982. The statement shall include, among the alternatives under consideration, denial of a license or construction authorization by the Commission.

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

impact statement whenever the Department makes a substantial change in its proposed action that is relevant to environmen-tal concerns or determines that there are significant new circumstances or information relevant to environmental con-cerns and bearing on the proposed action or its impacts. The Department shall submit any final supplement to its final environmental impact statement to the Commission at the time and in the.manner described in§ 60.22 of this chapter.

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

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

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

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

(a) (1) In a proceeding for the issuance of a license to receive and possess source, special nuclear, and by-product COMMENTS 29

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

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

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

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

( 5) The considerations established by (1) , (2) , (3) , and (4) shall be applied in such a manner to utilize all those portions of the Secretary's environmental impact statement upon which it is permissible, under NEPA, for the Commission to independently rely.

(d) To the extent that the presiding officer determines it to be practicable to adopt all or any part of the environ-mental impact statement prepared by the Secretary of Energy, COMMENTS 31

7 such adoption shall be deemed to satisfy all responsibilities of the Commission under Section 102(2) (c) of NEPA, 42 u.s.c.

4332(2) (c). Such satisfaction shall not foreclose considera-tion of environmental issues by the Commission for which contentions have been filed pursuant to 2.501(a) (2) or which have been otherwise identified by the Commission.

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

(1) Determine whether the requirements of section 102(2) (A), (C), and (E) of NEPA and the regulations in this subpart have been met; (2) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken; (3) Determine, after weighing the environmental, econom-ic, technical and other benefits against environmental and other costs, whether the construction authorization or license should be issued, denied, or appropriately conditioned to protect environmental values; (4) Determine, in an uncontested proceeding, whether the NEPA review conducted by the NRC staff has been adequate; and (5) Determine, in a contested proceeding, whether in accordance with the regulations in this subpart, the construc-tion authorization or license should be issued as proposed.

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

Atomic Safety and Licensing Appeal Board and the Commission, shall be incorporated in the Commission's final environmental impact statement which shall be published by the Commission in accordance with §51.118. That final environmental impact statement shall not be "final" action for purposes of judicial review until the Commission's action approving or disapproving the construction authorization is similarly "final" under the Administrative Procedures Act.

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

10. The authority citation for Part 60 is revised to read as follows: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 u.s.c. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233);

secs. 202, 206, 88 Stat. 1244, 1246 (42 u.s.c 5842, 5846);

secs. 10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 u.s.c.

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

For the purposes of section 223, 68 Stat. 958, as amended (42 u.s.c. 2273), §§. 60.10, 60.71 to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 u.s.c. 2201(0)).

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

COMMENTS 33

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

§ 60.21 Content of application.

(a) An application shall consist of general information and a Safety Analysis Report. An environmental impact state-ment shall be prepared in accordance with the Nuclear Waste Policy Act of 1982, as amended, and shall accompany the application. Any Restricted Data or National Security Infor-mation shall be separated from unclassified information.

13. Section 60.22 is revised to read as follows:

§ 60.22 Filing and distribution of application.

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

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

COMMENTS 34

(c) DOE shall, upon notification of the appointment of an Atomic Safety and Licensing Board, update the application, eliminating all superseded information, and supplement the environmental impact statement if necessary, and serve the updated application and environmental impact statement (as it may have been supplemented) as directed by the Board. At that time DOE shall also serve one such copy of the application and environmental impact statement on the Atomic Safety and Licensing Appeal Panel. Any subsequent amendments to the application or final supplements to the environmental impact statement shall be served in the same manner.

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

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

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

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

§2.1014 of this chapter.

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

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

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

documents submitted in accordance with the requirements of this part.

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

§ 60.24 Updating of application and environmental impact statement.

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

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

§ 60.31 Construction authorization.

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

16. In§ 60.51, the introductory portion of paragraph (a), and paragraph (b), are revised to read as follows:

§ 60.51 License amendment for permanent closure.

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

COMMENTS 36

(b) If necessary, so as to take into account the envi-ronmental impact of any substantial changes in the permanent closure activities proposed to be carried out or any signifi-cant new information regarding the environmental impacts of such closure, DOE shall also supplement its environmental impact statement and submit such statement, as supplemented, with the application for license amendment.

C. Comparison of the Practical Implementations of NRC's and Nevada's Proposed Rules.

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

The NRC's proposed rule anticipated only a single repository site having been recommended by OOE in its final environmental impact statement. This overlooks the possibility that the Negotiator, established by Title IV of the NWPA as amended, § 5041, Title V. Pub. L. 100-203 recommends a different site. The procedures and environmental issues important to the NRC in that event are not anticipated by NRC's proposed rule. For instance, in a negotiated site case, the host state will have foregone its right to litigate the DOE's EIS altogether. But that state won't have relinquished its right to expect full consideration of environmental issues by the Commission.

The proposed rule does not adequately address the practical problem that litigation over OOE's EIS could be COMMENTS 37

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

2. The Advantage of Nevada's Proposed Rule Nevada's proposed rule retains the Commission's discretion and establishes a process which could be utilized in any DOE or Negotiator proposed action.

Nevada's proposal protects against early litigation against NRC for failure to comply with NEPA. NRC's proposal does not.

Nevada's proposal introduces no time delays in the exercise of NRC's licensing jurisdiction.

Nevada's proposal takes into account the other changes anticipated to 10 CFR 2. NRC's proposal does not.

D. Recommended Action The Commission should make major changes in its proposed rule and submit them again for comment. In the alternative, COMMENTS 38

the Commission should establish some other mechanism by which to incorporate Nevada's concerns into the rule.

COMMENTS 39

• r

,;OCKET NUMBER (I)

{1 ~.)?0SEO RULE

• KJEVADA NUCLEAR WASTE TASK FORCE, INCO~Jf[!)RATED Al amo Plaza 4550 W. Oakey Blvd. ~~ AUG -1 P12 :42 Suite 111 Las Vegas, NV 89102 702-878-1885 FAX 702-878-0832 July 26, 1988 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C . 20555 Atten: Docketing and Service Branch

Dear Mr. Secretary :

We enclose our comment on the NRC ' s proposed rule for NEPA review procedures for geologic repositories - lOCRF Parts 2, 51, and 60.

Enclosed is a copy of our brochure which describes the nature and purpose of our organization.

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

The response that we receive clearly indicates that the vast majority of the residents of Nevada want to be able to participate in the licensing proceedings. They want their issues and concerns addressed. This includes the transpor t ation issue which under NEPA requires draft and final EIS ' s.

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

Sincerely ,

0--,, ,,~ .._, ), __ L---._

~~ichel Executive Director FC/ mm

~UG 1 0 ,998 by card **. ,*.-***** ... ...-

~cknowledged

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• CXM-1E.NTS ON THE NIC'S PIDPOSED R.JLE FOR NEPA -------

REVIEW PRX:EOORES FOR GIDiiX,IC ---

REPOSI'IORIES

-- -- 10 CFR Parts 2, 51, and 60 While the Task Force has several concerns al:out the proposed rule, we will discuss only two major Oiferriding ooncerns. First, we believe that the basic assLmpt.ian that underlies the rule is, at best, based en an incacplete understanding of possible scenarios for the context of the camri.ssion's consideration of the DOE FEIS. At w::>rst, the assumpticn is errcneously based upon a very narrON view of the camdssion's required detailed consideration of a FEIS on the Yucca r-buntain site. Second, we believe that the proposed rule is inadequate because is inappropriately prejudices effective citizen participaticn in the licensing proceeding.

'Iherefore, we request that the rule be reissued in a much different arxi nore catplete format that addresses those concerns so that we can have a further opportunity to cx:mnent.

I. INAPPIDPRIATE UNDERLYING ASSUMPTION

'Ihe proposed rule seems to assume that the coly likely possibility of the Comri.ssicn receiving a IXE FEIS is as part of a repository license applicaticn after: Yucca r-buntain is characterized and then is recamerxied by the President to Congress; the State of Nevada files suit chall~ing the adequacy of the FEIS (and presumably files its notice of disapprOifal, which is overridden by Congress); the Court of Appeals fin:is the FEIS is oot inadequate; and the cnly substantive issues before the NIC in the licensing proceeding relate to radiological safety issues at Yucca r-buntain. While that scenario is possible, it is not the cnly scenario, and perhaps not even the nost likely one. 'Ihus, it is inappropriate for the camdssicn to base so nuch of its proposed rule -- consciously or unconsciously -- en that assumption.

For exanple, the proposa:l rule doesn't display any und.erstanding of the sanewhat different role for an EIS arising from a Negotiator-selected s i te.

Until the passage of the Nuclear Waste Policy Act Anerx:hrents of 19ti7 (NWPAA),

OOE' s FEIS would have two purposes. First, the FEIS provides NEPA documentation for the Secretary's recarrrerxiatioo of a site to the President and for the President' s decision. Secorrl, the FEIS would accanpany the LOE license applicaticn to the NIC arxi provide necessary enviromental documentation for the NOC's licensing decision. Ibwever, under the requirements of the JWJPM for a Negotiator-coosen site (42 u.s.c 10247), the FEIS 'WOUld not be for site selection, but w::>uld cnly serve the p.rrpose of pr0i1iding necessary NEPA documentation for the license application. An environmental assessment, oot a FEIS, is specifically re;auira:l by Section 403(d){l)) as part of the subm.ssioo to Cor)3ress for its apprOllal of the agreement made the the affected state or Indian tribe arxi the LOE. 'lhe prearrt>le sho.vs oo recognition of this Negotiator possibility since it only describes the FEIS as having the two purposes (p. 16139).

'Ihe proposed rule does oot coosider the likelihood that a court will find that the FEIS is, in part, inadequate. 'Ihe camdssion w::>uld then have to review the decisicn and the FEIS to detennine the impact of such a ruling on the license application, including the adequacy of the S:lfety Analysis Report.

It is also possible that a court might oot decide an EIS challenge before the Ccmnission reached its licensing determination -- a situation in which the Cannission soould definitely review environmental issues, not just radiological safety issues. Since the Comu.ssion might make a l icensi ng decision within three years of the date of the applicati on (as OOE expects,

acoording to its Mission Plan and Project Decision Schedule), it is certainly possible that a oourt might not have make a final decisiCXl en a NEPA challeo.:Je in that timeframe. (Olallenges to the OOE's guidelines have been before the 9th Circuit Court of Appeals since December 1984.) It is also fX)Ssible that a CX>Urt might delay its decision on the adequacy of a FEIS until it sees the Camdssion's fimings in a licensing decision. In either case, environmental issues would oot be pre-empted, nor would res judicata occur.

II. Prejudice to citizen parties in~ licensil!J proceeding

'lhe prearrble of the proposed rule states:

'!he preclusive ef feet of a prior judgnent sustaining OOE' s envirammtal impact statement would oot necessarily be limited to the petitiooer of record in that proceeding. It can be argued that those who were representai by that petitiCX1er w::>uld also be barred fran litigating the issue in a subsequent action. (p. 16139)

'lhe accx:rcpmying f(X)tnote further indicates that "members of the plblic" who had been representai by state officials "might be precluded, to the same extent, £ran raising the issues anew."(~_)

'loose statements are oot consistent with the carmission's rules for intervention and they are reflect an inappropriate and prejudicial attitude toward citizen participatioo in the licensing proceeding. 'lhe State of Nevada al.nDst Certainly could not effectively represent all of the diverse interests of all the citizens of the state, including nenbers of the Task Force. 'lhus, the Task Force could raise similar issues but in response to different interests. Under the Camdssion's rules for intervention (10 CFR 2. 714},

individual citizens or groups can be legitimate intexvenors, including in cases where state officials are also parties. 'lhe Ccmnission' s rule and the preamble must not reflect a prejudice against such citizen intervention and should oot preclude their rights to raise issues, including related to the FEIS, in the licensing proceeding.

Another possible scenario is that a state or citizen group might decide that the basic issues regarding the adequacy of the repository soould be litigated in the O:nmission licensing proceedings, rather than in a NfilJA challeD:Je to the FEIS. SUch a positim is oot:h practically am legally allowed under the twJPA, since the judicial review requirements of the lWJPA allOotl for judicial review of final decisioo.s of the Cannission - including its adopting the OOE FEIS. 42 U. S.C. 10139(a)(l )(A).

In sumiary, the proposai rule seellti to treat the adopticn of IXE's FEIS as a largely pro forna exercise, \\hich follows exhaustive judicial review. It is not appropriate for the NIC to take that position. &lch an assumpticn is even less tenable given the various circll11Stances \\hen the FEIS might not be litigated. 'Ihe Nevada Nuclear Waste Task Force believes that the proposed rule is fundamentally flawed and that it must be substantially revised and re-pranulgated.

The Problem. ome Concernse What is my role? N.N.W.T.F.

The Nuclear Waste Policy Amend-

• Is the Yucca Mountain Site safe? There is a clear need to inform 'NEVADA NUCLEAR WASTE TASK FORCE, INC.

ments Act of 1987 designated ourselves and become actively The Nevada Nuclear Waste Task Yucca Mountain, evada-85

• What are the risks to our air, involved in this national issue Force is a non-profit organization, miles northwest of Las Vegas-as water and land? which affects us individually throughout the State of Nevada. serving the State of Nevada by the only location for further study developing and implementing a

• Are there risks to people and for a potential high-level nuclear As citizens of Nevada we must be program which promotes public wildlife?

waste reposi ory. responsible for determining what participation in the U.S. Depart-

• Transportation: is important for our lives and ment of Energy's high-level nuclear our future. waste program in Nevada.

-What roads or railroads?

Forty-two years go high-level radioactive v. st were virtually -What about accidents? Beniem.ber... NNWTF believes this can be best non-existent. accomplished by organizations and

- Who pays for protection? "Our difficulty has never been in In the 1950's and early 1960's these individuals joining together to learn

-Who pays for training? doing things; it has been in choos-wastes were present in compara- and assist in the dissemination of ing what to do."

tively small quantities measured in factual information and resources.

• Are there alternatives to a "The democratic faith is based not ounces or pounds repository? Organizations can join the as much upon the assumption of Today, however, ith about 100 Task Force.

leadership by the few, as upon nuclear reactors g nerating 15% of

• Is other research being done? the wisdom and conscience of the nation's I c rical supply, the the many." Individuals can join the Task Force.

magnitude of va te produced is

• Who pays for waste management "Democracy is the only political There are no membership charges measured in metric tons. This as a whole?

philosophy that entitles and en- or fees.

waste must be is I( te l for at least 10,000 years

• What are the socio/economic ables the individual to say "NO" The basic purpose of the Task The capadt of th Yue a Moun- impacts? to the government."

Force is to promote an informed tai Lt is to be 70,000 metric Democracy says "NO" to the citizenry.

• Is it advisable to put tons of high-t . the most toxic elem n to government that would invade the level radiation in one location? Every Nevadan should be inter-ntombed is plutonium which has natural rights of the individual or a half life of over 24,000 years. the group." ested, involved and prepared to Quotes from Norman Cousins "Human Options" 1981 influence important decisions.

.Action Plan lVIem.bership

• Form a State Advisory Board to

• Complete and mail to:

advise and advance the public involvement program. Nevada Nuclear Waste Task Force 4550 W. Oakey Blvd., Suite 111

• Provide for individual participa- Las Vegas, Nevada 89102 tion in the Federal and State nuclear waste programs. Phone: (702) 878-1885 Support 'o C:

• Readable information and sum- C:

maries prepared by qualified -~0 experts. -~

C:

• Workshops 6

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• Debates E

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• Lectures with emphasis on C:

question and answer sessions.

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-~C: High-Level

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• Direct mail information. 0 Ql E

l\Tuclear Waste

• NNWTF will serve as a public i.9 Disposal information center and clearing- u house under the sanction of the State of Nevada.

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32 C:

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in l\TEVADA?

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• Provide adm inistrative support to [

"' Citizen Involvement the State Advisory Board. iii

.s in the Federal

• ~

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Decision Process

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§ LU Ql NEVADA NUCLEAR WASTE TASK FORCE, INC.

I .s 1- 0 z ~  ! A Non-profit coalition of 0 C: Citizen and Public Interest z"' -"'

Organizations in Nevada

t l DOC:KETE[,

IJ')NRC NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2, 51 and 60 -aa HAY -2 AS :40 NEPA Review Procedures for Geologic Repositories for High-Level ~~~-

• 1 1 OOCK [ * [ v1r,r AGENCY: Nuclear Regulatory Commission.

ACTION : ~r-oposed rule.

SUMMARY

The Nuclear Regulatory Commission is proposing to revise Its procedures for Implementation of the National Environmental Polley Act (NEPA).

The proposed rule would address the Commission's role under NEPA in connection with a license application submitted by the Department of Energy with respect to a geologic repository for high-level radioactive waste (HLW).

The changes are needed in order to reflect the provisions of the Nuclear Waste Policy Act of 198:"' (NWPA), as amended. Under that Act, the Commission is requirer! to adopt the Department's environmental impact statement (EIS) to the extent practicable. The proposed rule, among other things, sets out the standards and procedures that would be used in determining whether such adoption is practicable.

In summary, under the proposed rule:

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

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

(3) The N RC will find it practicable to adopt DO E's EIS (and any DOE supplemental EIS) unless:

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

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

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

DATES: Comment period expires August 3, 1988 Comments received after August 3, 1988 will be considered if it is practical to do so, but assurance of consideration is given only for comments filed on or before that date.

1 ADDRESSES: Submit written comments and suggestions to: Secretary of the CofTlmission, U.S. Nuclear Regulatory Commission, Washington, D.C., 20555, Attention: Docketing and Service Branch. Copies of comments received may be examined at the NRC Public Document Room, 1717 H Street, N.W.,

Washington, D.C.

FOR FURTHER INFORMATION CONTACT: James R. Wolf, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C.

20555, Telephone (301) 492-1641.

SUPPLEMENTARY I NFORMATIOM:

TABLE OF CONTENTS I ntroductic,n The Pre-NWPA Licensing Framework The Nuclear V.'aste Policy Act of 1982 Site Selection under the Nuclear Waste Policy Act NRC NEPA Responsibilities in Light of NWPA Legislative History "Adoption" and the Nuclear Waste Policy Act The Preclusive Effect of Section 119 The Nuclear Waste Policy Amendments Act of 1987 The Proposed Rules Actions Requiring Preparation of Environmental Document

f Submission of Environmental Information Preparation of Environmental Impact Statements NEPA Procedure and Administrative. Action Public Information Commenting Responsible Official Conforming Amendments Petition for Rulemaking Environmental Impact: Categorical Exclusion Paperwork Reductior, Act Stateme:nt Regulatory Flexibility Certification List of Subjects in 1 O CFR Part 2 List of Subjects in 10 CFP. Part 51 List of Subjects in 10 CFR. Part 60 Issuance INTRODUCTION All agencies of the Federal Government are charged with the duty to interpret and administer the laws of the United States, to the fullest extent possible, in accordance with the policies set forth in the National Environmental Policy Act of 1969, as amended (NEPA). 42 U.S.C. 4321 et seq. Under NEPA, the Nuclear Regulatory Commission is required to prepare an environmental impact statement (EIS) with respect to any major Federal action in which it is engaged that might significantly affect the quality of the human environment. The EIS contains a detailed statement of the

"{

environmental impacts of a proposed action, including adverse unavoidable effects resulting from its implementation, as well as an identification and environmental evaluation of alternatives to the proposed action.

The Commission is responsible for the licensing and regulation of activi-ties involving the possession of nuclear materials. Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq. The Department of Energy (DOE) must obtain a license from NRC before disposing of high-level radioactive waste (H LW) in geologic repositories. Sec. 202, Energy* Reorganization Act of 1974, 42 ll.S.C. 5842. The licensing of DCE to receive and possess HLW at a geologic repository involves one or more major Federal actions which might significantly affect the quality of the human environment. Accordingly, NEPA requires the Commission to have an EIS (or multiple EIS's if more than one major Federal action by NRC is involved) tc accompany_ its decision process when it considers a license application from DOE involving HLW disposal.

Further direction regarding NRC's NEPA responsibilities is provided by the Nuclear Waste Policy Act of 1982 ( f\.1WPA), as amenaed, 42 U.S. C. 10101 et seq.

The Commission in 1984 promulgated revised regulations ( 10 CFR Part 51) to implement Section 102(2) of NEPA, the section which, among other things, calls for the preparation of an EIS. 49 FR 9352, March 12, 1984, and 49 FR 24512, June 14, 1984. In issuing these regulations, the Commission noted that it had initiated a review of the licensing procedures applicable to geologic repositories in the light of the Nuclear Waste Policy Act and that the Commission would determine, as part of that review, whether further changes to 10 CFR Part 51 are needed. On July 30, 1986, the Commission promulgated certain amendments to 10 CFR Part 60. 51 FR 27158. Those amendments deal

with (1) the role of NRC during site screening and site characterization activities and (2) State, tribal, and public participation In NRC activities with respect to geologic repositories. In proposing those rules, the Commission had noted that issues pertainin9 to NRC responsibilities under NEPA will require modifications to 10 CFR Part 51 and that such amendments would be the subject of a subsequent rulemaking. SO FR 2579, Jan. 17, 1985. The statement of considerations accompanying the final amendments advised that Part 51 "will need to be changed - specifically to ( 1) define the alternatives that must be discussed in an environmental impact statement, (2) exempt the promulgation of NRC licensing requirements and criteria from environmental review under NEPA, and (3) set out procedures that will be followed by the Commission in determining whether or not to adopt the DOE EIS."

As contemplated by its prior statements, the Commission now proposes amendments de-aling with NRC implementation of NEPA in connection with Department of Energy geologic repositories. A full appreciation of these amendments requires an understanding of NEPA itself and the Commission's original plans for meeting its NEPA responsibilities; an analysis of the text and legislative history of NWPA, and of the recent amendments thereto, with particular regard to the policies and procedures established by that law for the resolution of environmental issues; and, finally, the specific regulations the Commission would promulgate in order to implement the NWPA policies and procedures. These matters are examined in the following discussion.

THE PRE-NWPA LICENSING FRAMEWORK The Commission believes it will be helpful to outline the repository licensing procedure that it had approved before enactment of NWPA. As appears below, that procedure Included a customary NEPA review of DOE's license application. With that intention in mind, the Commission required DOE to characterize at least three sites and to provide certain timely information to the Commission regardin9 its site selection process. The Commission's requirements had been promulgated before the passage of NWPA, and they were familiar to Congress. In some respects the new law tracked the Commission rules closely; in other cases, however, there were marked differences, and from these differences a modification of policy can be inferred. A review of the pre-NWPA framework is therefore essential.

To begin this review with fundamental considerations, it is first noted that the A.tomic Energy Act of 1954 charges the Commission with several types of licensing responsibility

• One class of Commission action is materials licens-

.!!!.9_. Under its statutory authority, the Commission prescribes such rules as it finds to be needed to assure that persons possess and use tht:: regulated materials in a manner that protects public health and safety and is not inimical to the common defense and security. DO E's disposa I of HLW at a geologic repository is subject to this materials licensing authority of the Commission.

The Commission several years ago determined that it would be necessary, to protect health and safety, to review DOE's plans with respect to a geologic repository before commencement of construction. 46 FR 13971, Feb. 25, 1981 (final licensing procedures). Accordingly, DOE may not commence construction of a geologic repository unless It has first filed a license application and

obtained the Commission's construction authorization. 10 CFR §60.3(b). A construction authorization is not itself a license, since it does not authorize possession or use of nuclear materials, but DO E's failure to comply with the requirement to apply for and to obtain construction authorization constitutes grounds for denial of the license that DOE would later need in order to receive high-level waste at the repository. Moreover, thE: Commission may, if necessary, issue orders to secure compliance with construction authorization conditions and to protect the integrity of the repository. 46 FR 13971.

In the pre-NWPA licensing framework, the Commission specified that an environmental report prepared in accordance with 10 CFR Part 51 was to accompany the license application. 10 CFR §60.21 (a). The environmental report was to discuss relevant NEPA considerations. In particular, as pro-vided by this regulation, 10 CFR § 51. 40 ( d j ( 1983):

The discussion of alternatives shall include site characterization data for a number of sites in appropriate geologic media so as to aid the Commission in making a comparative evaluation as a basis for arriving at a reasoned decision under NEPA. Sucl1 characterization data shall include results of appropriate in situ testing at repository depth unless the Commission finds with respect to a particular site that such testing is not required.

The Commission considers the characterization of three sites representing two geologic media at least one of which is not salt to be the minimum necessary to satisfy the requirements of NEPA.

(However, in light of the significance of the decision selecting a site for a repository, the Commission fully expects the DOE to submit a wider range of alternatives than the minimum required here.)

Failure to provide the specified site characterization data would constitute grounds for denial of a license application. 10 CFR §2.101(f)(4). If DOE had prepared its own EIS, that document could be submitted so long as it contained the information called for by the regulation; the Commission noted,

however, that it could not be bound to accept judgments arrived at by DOE in its EIS. 46 FR 13973.

MRC was to publish notices of the availability of the environmental report and of its intent to prepare an environmental impact statement. 10 CFR

§51.SO(a),'(b)(1983}. An environmental impact statement would be required be-fore issuance* of a construction authorization, 1O C FR § 51

• 5 (a) ( 11 } ( 1983) ; and an EIS might also be determined to be necessary for Issuance of the .license to 9 possess high-level wasts at a repository, id. at §51.S(b)(11), or to terminate such license. id. at §51 .S(b} (10). The EIS prepared before construction would be supplemented prior to issuance of a license to take account of any substantial changes in the activities proposed to be carried out or significant new information regarding the environmental impacts of the proposed activities, id. at §51 .41.

Whenever an EIS was required, it was first to be distributed as a draft and, after receipt of comments, NRC would then prepare a final EIS which would respond to any responsible opposing view not adequately discussed in the draft. The draft and fine::! statements, and comments received, were to accompany the application through the Commission's review processes. Ibid.

(reference to §§51.22-51.26). In an adjudicatory hearing, as is required before issuance of construction authorization for a repository, the NRC staff was to offer thf:: final EIS in evidence. Any party to the proceeding cou_ld have taken a position and offered evidence or. NEPA issues. As a result of the hearing, the Commission could have arrived at findings and conclusions different from those in the final EIS prepared by the staff, and the final EIS would have been deemed modified to that extent. Id. at §51 .52(b).

Upon review and consideration of an application and environmental report, a construction authorization could have been issued if the following environmental standard was met:

That, after weighing the environmental, economic, technical and other benefits against environmental costs and considering available alternatives, the action called for is issuance of the construction authorization, with any appropriate conditions to protect environmental values. 10 CFR § 60. 31 (c).

While the Commission's formal NEPA determination would thus have been made in the course of licensing proceedings, the regulations provided further for NRC involvement at an even earlit:r stage - namely, at the time of site characterization. Site characterization is a program of exploration and testing that includes specified activities "to determine the suitability of the site for a geologic repository." 10 CFR § 60.2(p) (1983). It is needed not only to determine whether defects are present, but also to determine specific proper-tie:s such as homogeneity, porosity, the extent of frc1cturing and jointing, and thermal response of the rock. Site characterization data are needed so as to provide a satisfactory basis for arriving, with confidence, at the technical judgments underlying the Commission's initial licensing decision. 44 FR 7041 O, Dec. 6, 1979 (proposed licensing procedures). The Commission noted its belief that it would be necessary for DOE to carry out site characterization at three or more sites in two (or more) geologic media, at least one of which is not salt. Such a program of multiple site characterization would provide the only effective means by which NRC could make a comparative evaluation of alternatives as a basis for arriving at a reasoned decision under NEPA. It was estimated that $30,000,000 represented the upper limit for the "at depth" portion of site characterization in soft rock, with a limit of up to about

$40,000,000 in hard rock. 46 FR 13972-73.

The Commission regulations called upon DOE to submit, in advance of site characterization, a Site Characterization Report, which would have been reviewed informally by NRC. In addition to describing the site to be characterized and the proposed site characterization program, the report would have included several items of information pertaining to site selection, specifically:

0 The criteria used to arrive at the candidate area.

0 The method by which the site was selected for site characterization.

0 Identification and location of alternative media and sites at which site characterization is contemplate.d.

0 A description of the decision process by which the site was selected for characterization, including the means used to obtain public, In-dian tribal and State views during selection.

10 CFR § 60.11 (1983). The Commission found the inclusion of plans for considering alternative sites to be necessary so that NRC could call to the attention of DOE, in a timely manner, additional information that might be needed by the Commission in reviewing i:i license application in accordance with NEPA. 46 FR 13972. (Also, in the preamble to the proposed licensing procedures, the Commission had discussed the requirement that DOE describe the site selection process, and State involvement therein. The Commission noted its belief, in this connection, that many issues, "including the NEPA questions related to alternatives and alternative sites, 11 would be more easily resolved if State concerns were identified and addressed at the earliest possible time. 44 FR 70412.)

THE NUCLEAR WASTE POLICY ACT OF 1982

[ Note: Under this heading, the Commission reviews its NEPA responsibilities under the Nuclear Waste Policy Act, as originally enacted; that is, this discussion does not reflect the 1987 amendments. The 1987 changes, which will be analyzed below (under the heading "Nuclear Waste Policy Amendments Act of 1987"), were nc,t intended to alter the duties of the Commission with respect to NEPA; and it is therefore in order to review the pre-1987 situation in order to understand the Commission's role. All citations in this part of this notice are to NWPA as codified as of January 1, 1987. ~

Congress established Federal policy for civilian radioactive waste disposal in the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10131 et seq.). The Commission's responsibilities for radiological safety, under prior law, were recognized and confirmed - most clearly in the express provision in Section 114( f) that "Nothing in this Act shall be construed to amend or otherwise de-tract from the licensing requirements of the Nucler [sic] Regulatory Commission as established in title II of the Energy Reorganization Act of 1974 (Public Law 93-438)." 42 U.S.C. 10134(f).

The statute provides for a licensing process that conforms closely to the preexisting framework of 10 CFR Part 60. NWPA thus requires DOE to carry out a program of site characterization, after first submitting to NRC a general plan for site characterization activities (along with certain information regarding waste form or packaging as well as a conceptual repository design).

Sec. 113(b)(1), 42 U.S.C. 10133(b)(1). This corresponds closely to the Site Characterization Report provision of Part 60, 10 CFR §60 .11 (a) ( 1982);

notably, however, the NEPA-related requirement of the regulation that DOE

include site screening and selection information in its submission was omitted.

(As discussed below, the site screening and selection information must be identified in a separate document - the environmental assessment - which does not require NRC review.)

As provided earlier in Part 60, an application is to be submitted in ad-vance of construction. This is to be followed by Commission review in accor-dance with the laws applicable to such applications and a decision approving or

- disapproving the issuance of a -coristruction authorization. Sec. 114( b), (d), 42 U.S.C. 10134(b),(d). In addition to its action on applications for construction authorization, the Commission would review, and approve or disapprove, applications for licenses to receive and possess the waste (and spent fuel) in a repository and applications for closure and decommissioning. See Sec. 121 (b),

l!2 L;.S.C. 1Cl141(b). For the corresponding provisions of NRC regulations, see 10 CFR §§60.31 (construction authorization), 60.41 (license to receive and possess), and 60.51 (license amendment for permanent closure). 1_/

1i One difference between the language of NWPA and Part 60 is worthy of note: that the statute differentiates between an application for construction authorization and an application for a license, whereas the regulation had referred, and continues to refer, solely to an application I I for a license to receive and possess waste (to be filed prior to construction). The Commission considers this differentiation to lack any substantive significance. In the view to the Commission, the information it needs in order to be able to consider the issuance of a construction authorization is generally the same as will be needed prior to issuance of the license to receive and possess HLW. For this reason, the Commission regulations call for the application to be as complete as possible in the light of information that is reasonably available at the time of docketing -

i.e. prior to commencement of construction. 10 CFR §60.24(a).

Accordingly, the Commission intends to retain its requirement of a unitary application; it is not required to, and it does not propose to, modify its rules to provide separately for applications for construction authorization on the one hand and a license to receive waste on the other.

The Nuclear Waste Policy Act also confirmed the Commission's most important stated position with respect to compliance with NEPA. In its regulations, cited above. the Commission had construed NEPA 1s direction to consider reasonable alternatives as constituting a mandate to characterize at least three sites, in at least two geologic media. Although establishing new procedures, NWPA followed precisely the same substantive approach.

Site Selection Under the Nuclear Waste Policy Act The Nuclear Waste Policy Act directed the development of two geologic re-positories. This section will describe the process leading to the selection of a site for the first repository. The process for a second repository was generally the same, except that the statutory dates for particular actions were several years later.

The site selection process, as carried out by DOE, began with the identification of States with "potentially acceptable sites" -- sites at which DOE, after geologic studies and field mapping, was to undertake preliminary drilling and geophysical testing for the definition of site location. DOE was required to notify States involved, and affected Indian tribes, of the Identi-fication of such sites. Sec. 116(a), 42 U.S.C. 10136(a). DOE identified nine potentially acceptable sites for the first repository and provided notice to the six states in which such sites were located.

Before the selection process could move any further, DOE had to issue "general guidelines for the recommendation of sites for repositories." NWPA provided that, under the guidelines, DOE would need to consider the various geologic media in which sites may be located and, to the extent practicable, to

recommend sites in different geologic media. The guidelines were to specify factors that qualify or disqualify a site from development as a repository; among the factors specified by the law were certain nonradiological environmental concerns as well as considerations related to the isolation of the radionuclides in the waste. NWPA required DOE, prior to issuance of the guidelines, to consult with the Council on Environmental Quality, the Environmental Protection Agency, the Geological Survey, and interested Governors. DOE was also required to obtain the concurrence of the Commission in the guidelines. Sec. 112(a), 42 U.S.C. 10132(a). Guidelines have been issued by DOE. 49 FR 47714, Dec. 6, 1984. The concurrence of the Commission in the guidelines was published in the Federal Register on July 10, 1984. 49 FP. 28130.

DOE was directed, following issuance of the guidelines and consultation with the governors of affected States, to nominate at least 5 sitt!s determined to be suitable for site characterization. Sec. 112(b)(1)(A), 42 U.S.C.

10132(b){1)(A). Nomination had to be preceded by public hearings near the site, on which occasions residents of the area would be solicited with respect to issues that should be addressed by DOE in its environmental assessment and site characterization plan. Sec. 112(b)(2), 42 U.S.C. 10132(b)(2). Also, before nomination DOE was required to notify the States or affected Indian tribes of its intent to nominate a site and of the basis for such nomination.

Sec. 112(b)(1)(H), 42 U.S.C. 10132(b)(1)(H). The nomination itself needed to be accompanied by an environmental assessment, which set out the basis for nomination and which discussed the probable impacts of site characterization activities. The environmental assessment, to be made public, would contain an evaluation of the suitability of the site for site characterization under the

general guidelines, an evaluation of the suitability of the site for development as a repository under each guideline that does not require site characterization as a prerequisite for application, an evaluation of the effects of site characterization on the public health and safety and the environment, a comparative evaluation with other sites that have been considered, a description of the decision process by which the site was recommended, and an assessment of the regional and local impacts of locating the repository at the site. The sufficiency of an environmental assessment with respect to thest!

matters was subject to the judicial review provisions of the statute, which generally require petitions for review to be filed within 180 days after the action involved. Sec. 112(b)(1)(E through G}, 119; 42 U.S.C. 10132(b}(1}(E through G}, 10139. On May 28, 1986, DOE relE;ased final environmental assessments on five potential repository sites (at Yucca Mountain, Nevada; Deaf Smith County, Texas; the Hanford Reservation, Washington; Richton Dome, Mississippi; and Davis Canyon, Utah). (The NRC staff had previously reviewed and commented on the draft environmental assessments for these sites.)

Subsequent to site nomination, DOE was required to recommend to the President three of the nominated sites for characterization as candidate sites.

Sec. 112(b)(1) (8), 42 U.S.C. 10132(b}(l)(B). Upon approval of the candidate sites, the States and affected Indian tribes were to be notified.

Sec. 112(c), 42 U.S.C. 10132(c). On May 28, 1986, the Secretary of Energy formally recommended the sites in Nevada, Texas, and Washington, and these recommendations were approved by the President.

Before sinking shafts at an approved site, DOE is to submit to the States and affected Indian tribes - and, in this instance to the Commission as well -

for their review and comment, a general plan for site characterization activi-ties, a description of the possible form or packaging of the waste, and a con-ceptual repository design. The general plan is to describe the site, the proposed site characterization activities, plans for decommissioning a site that is determined to be unsuitable (and plans for investigation of significant adverse environmental impacts of site characterization), the criteria to be used to determine site suitability (i.e., the siting guidelines), and other information related to site characterization activities required by the Commission. Sec. 113(b), 42 U.S.C. 10133(b). Congress has declared that site characterization activities shall not require the preparation of an environmental impact statE:me:rit, or other environmental review under NEPA. Sec. 113(d), 42 U.S. C. 10133 (d). However, DOE is to hold public hearings near a site, and to receive comments of residents of the area with respect to the site character-ization plan. Sec. 113(b)(2), 42 U.S.C. 10133(b)(2). And those comments, as well as those received on the environmental assessments, are to be considered by DOE. DOE, in consultation with the States and affected Indian tribes (but not specifically the Commission), is to conduct site characterization activities in a manner that minimizes significant adverse environmental impacts identified in the comments. Sec. 113(a), 42 U.S.C. 10133(a). DOE is to report periodically to the Commission and to States and affected Indian tribes on the progress of site characterization and the Information developed to date.

Sec. 113(b)(3), 42 U.S.C. 10133(b)(3).

Under NWPA, the selection process was to continue with the identification of one site for development of a repository. DOE was required to hold hearings near that site, and it was also required to complete site characterization not only for that site but for at least two other sites as wel I.

DOE might recommend to the President that he approve the site where hearings were held. The recommendation, notice of which would be given to States and affected Indian tribes, was to be accompanied by a description of the propo&ed repository and waste form or packaging; a discussion of data, obtained in site characterization activities, relating to the safety of the site; a final environmental impact statement, together with comments made concerning such statement by the Commission and others; preliminary Commissicn comments regarding the sufficiency of* data for inclusion in a license application; comments of States and affected Indian tribes, with DOE's response; and an impact report prepared by States or affected Indian tribes requesting financial or technical assistance to mitigate impacts. Sec. 114(a)(1), 42 U.S.C.

10134(a) (1). Subject to a good cause exception, the EIS might only be reviewed by the courts if a petition is filed within 180 days after the date of the decision concerned (i.e., presumably, the recommendation to the President). Sec. 119(a)(1)(D), 42 U.S.C. 10139 (a)(l)(D). The alternative sites to be considered in the EIS would consist of three sites at which characterization has been completed and DOE has made a preliminary determination of their suitability for development as repositories under the guidelines issued earlier. Sec. 114(f), 42 U.S.C. 10134(f).

The President might submit to Congress a recommendation of a site that had previously been recommended to him by DOE. By law, the President's recommendation would not require the preparation of an EIS or other NEPA environmental review. Sec. 114(a), 42 U .s. C. 10134 (a). A State might disapprove a site recommended by the President, by giving notic1: of such action to Congress. Any such notice of disapproval is to be accompanied by a statement cf the State's reasons. Sec. 116(b), ll2 U.S.C. 10136(b). In the

case of a site on a reservation, the affected Indian tribe might submit such a notice of disapproval. Sec. 118(a), 42 U.S.C. 10138. The President's recommendation would then become effective only if Congress passes a resolution approving the site, and such resolution thereafter becomes law.

Sec. 115(c), 42 U.S.C. 10135(c). In considering a notice of disapproval, Congress might obtain comments of the Commission, but the provision of comments would not bind the Commission with respect tc, any licensing action Sec. 115(9) , 42 U.S.C. 10135(9).

If the site desigmition becomes effective - by virtue of a State or Tribe's failure to disapprove within the specified times or by virtue of the Congressional override of the State's or Tribe's notice of disapproval - DOE was directed then to submit its application to the Commission. Sec. 114(b), 42 U.S.C. 10134(b). The Commission was to consider an application in accordance with the laws applicable thereto. Sec. 114(d), lt:7. U.S.C.

10134(d).

If DO E's application is acceptable, the site selection process would then end, subject to judicial review, with the Commission's issuance of a construction authorization.

NRC NEPA Responsibilities in Light of NWPA The Nuclear Waste Policy Act of 1982 generally preserves the Commission's obligation to comply with NEPA. Nevertheless, the scope of the inquiry and the standards and procedures to be applied in arriving at findings in accordance with NEPA are clearly influenced by the express and implied mandates of the later statute. The import of NWPA is especially forceful in

relation to site selection, but the Commission regards the statute as having a pervasive effect upon all of its NEPA responsibilities.

First, there are several express provisions of NWPA that narrow the range of alternatives that must be considered in the environmental impact statement, especially for the first repository. Thus, DOE's compliance with the procedures and requirements of the Nuclear Waste Policy Act "shall be deemed adequate consideration of the need for a repository, the time of the initial availability of a repository. and all alternatives to the isolation of high-level radioactive waste and spe:nt nuclt:ar fuel in a repo~itory. 11 Even more forcefully, the 1982 Act declares that any EIS prepared with respect to the first repository shall not consider the need for a repository or nongeologic alternatives to the site; and the alternative sites to be considered are those candidate sites (three in the case of the first repository. and at least three in the castl of subsequent repositories) with respect to which site characterization has been completed and the Secretary of Energy has made a preliminary determination that such sites are suitable for development of repositories.

Sec. 114(0. 42 U.S.C. 10134(f).

11 In addition, Section 114(f) directs the Commission to adopt DOE's EIS to the extent practicable." As a minimum. this requires the Commission to give substantial weight to the findings of other bodies, where relevant to the de-termincttions to be made by the Commission itself. This is consistent with pri-or practice. For example, in Public Service Company of New Hampshire (Seabrook Station. Units 1 and 2). CLl-77-8, 5 NRC 503, 527 (1977). the Commission observed that a competent and responsible state authority's approval of the environmental acceptability of a site or a project after

extensive and thorough and environmentally sensitive hearings is properly entitled to such substantial weight in the conduct of its own NEPA analysis.

Similarly, to the extent that Congress has enacted legislation approving a spe-cific project, an agency's obligation to discuss alternatives in its EIS is 11 relatively narrow; although the rule of reason 11 applies, such action does have a bearing on what is considered a reasonable alternative and a reasonable dis-cussion. Izaak Walton League v. Marsh, 655 F.2d 346, 372 (D.C. Cir. 1981),

- citing Sierra Club v. Adams, 578 F.2d 389, 396 (D.C. Cir. 1978). ThE:

concept of adoption, as it appears in NWPA, is examined more fully below.

The Nuclear Waste Policy Act provides that adoption of the EIS shall be 11 deemed to satisfy the Commission's NEPA responsibilities and no further consideration shall be required. 11 While the purpose of this provision is not entirely clear, it appears to counsel against the wide-ranging independent examination of environmental concerns that is customary in NRC licensing proceedings.

The final limitation on the Commission's consideration of NEPA issues stems from the judicial review provisions of the Nuclear Waste Policy Act.

Section 119, 42 U.S.C. 10139 provides for the United States courts of appeals to have original and exclusive jurisdiction over any civil action for review of any environmental impact statement prepared with respect to a geologic re-pository and Imposes a deadline of 180 days ( with certain exceptions) for com-mencing such an action. Thus, review of the adequacy of DOE 1s environmental impact statement must be sought, if at all, within 180 days after the Secretary has made a site recommendation to the President. As a minimum, any judicial findings with respect to the adequacy of the EIS prepared by DOE would be entitled to substantial weight in the Commission's deliberations. But this

statement is incomplete. As explained below, if the EIS prepared by DOE has been adjudged to be adequate for purposes of the site recommendation made by the Department, further litigation of the issues In NRC adjudications would be precluded under the doctrine of collateral estoppel. Toledo Edison Co.

(Davis-Besse Nuclear Power Station, Units 1, 2, and 3), ALAB-378, 5 NRC 557, 561 (1977). And, if an issue bearing upon the adequacy of that EIS could have been raised, but was not raised in a timely manner, the deadline for com1T1encing action set out in Section 119 operates to bar a cha I le:nge at a later date in NRC licensing proceedings.

In the light of the policies and procedures established by the Nuclear Waste Policy Act, the Commission regards the scope of its NEPA review to be narrowly constrained, with those issues that were ripe for consideration after issuance of DO E's El S being excluded from independent examination, for purposes of NEPA, in the course of NRC licensing proceedings. It will be useful to review the legislativ~ history of the Act and certain regulations of the Council on Environmental Quality, and to discuss applicable; principles of repose, in order to explain the: basis for the Commission's views.

Legislative History The Nuclear Waste Policy Act of 1982 reflects a judgment that the Commission is to concern itself primarily with issues of health and safety rather than the other kinds of issues that are ordinarily considered in the context of reviews under NEPA. This judgment is especially clear in connection with the screening and selection of repository sites. The only provisions for NRC involvement in the site screening and selection process

concern the issuance of the general guidelines for the recommendation of sites for repositories (in which the Commission is required to concur), the Department's plans for site characterization {which must be submitted to the Commission for review and comment), and the preparation of preliminary comments by the Commission to accompany the Secretary's recommendation of a site concerning the extent to which DOE 1s site characterization analysis and waste forl'T' proposal seem to be sufficient for inclusion in a license application.

With the possible exception of the guidelines, the Commission's role is defined so as to address the safety issues (which are the subject of DOE's site characterization program and waste form proposal) that rr.ust be resolved in licensing proceedings. Where Congress sets up a detailed mechanism for consideration of particular issues by an agency, and both judicial and legislative review of that agency's decisions, as it has here done with respect to the NEPA actions of DOE, it may be inferred that it did not intend to rely upon this Commission to challenge DOE's possible "disregard of the law" after all these procedures have run their course. Cf.

Block v. Community Nutrition Institute, 467 U.S. 340, 351, 81 L.Ed.2d 270, 279 (1984).

A consideration of the legislative history lends further support to this analysis. Although there were several bills dealing with nuclear waste issues before the 97th Congress, the provisions dealing with site selection issues can be traced directly to H. R. 3809, as rt:ported out by the Committee on Interior and Insular Affairs. H.R. Rep.97-491, Part 1, 97th Cong., 2d Sess. (1982}.

The bill included sections - similar to those ultimately enacted - on guidelines, site characterization. site approval and construction authorization, review of repository site selection by Congress. participation of States and Indian

tribes, etc. The provision relating to the site characterization plan to be prepared by DOE was drawn directly from the corresponding NRC regulation.

(Compare H.R. 3809, Sec. 113(b)(1)(B) with 10 CFR § 60.11(a) {1982).) All the matters related to the ability of the site to host a repository and isolate radioactive waste were carried over from the regulation to the *bill. But matters pertaining to the screening and selection of sites, though set out in the regulation, were omitted in the bill. These include the requirements that DOE discuss the decision p.rocess used by DOE in selecting sites for characterization and identify alternative media and sites at which DOE intt::ncied to conduct site characterization. Under the proposed legislation, this information would no longer come to the Commission for review. H. R. 3809 also included the provision, ultimately enacted, that the Commission would be required to adopt the EIS prepared by the Secretary "to the extent practicable. 11 The limited nature of the Commission's role was emphasized by the explanatory language of the report to the effect that the Commission would be required so to adopt the EIS "to the maximum extent practicable" {emphasis added). Moreover, the EIS "is intended to suffice regarding the issues ad-dressed and not be duplicated by the Commission unless the Commission deter-mines, in its discretion, that significant and substantial new information or new considerations render the Secretary's statement inadequate as a basis for the Commission's determinations." H. R. Rep.97-491, Part 1, 53-54.

There was no specific provision in H. R. 3809 requiring DOE to carry out and document a comparative evaluation of sites considered for site character-ization. Later in the year, however, such a provision was incorporated into the bill {now H. R. 6598), as reported by the Committee on Energy and Commerce. H. R. Rep.97-785, Part I, 97th Cong., 2d Sess. (1982). Among

other things, the bill (In Sec. 113(b)(1)(A)(v)) would have required DOE to prepare, prior to site characterization, an environmental assessment which would include a description of any other sites considered for site characterization. This information would have been submitted to the:

Comrr.ission for its review and comment. The purpose of providing reports at 11 this stage was to assure that adequate information is available to the Commission regarding the Secretary's proposed activities." Id. at 64. H.R.

6598 retained tht: provision for NRC adoption of DOE's environmental impact statement. The report explained, id. at 69:

This provision Is intended to avoid the duplication caused as a result of the applicability of NEPA to the actions of both the Secretary and the Commission regarding the: preparation of an environmental impact 'statement. While the Commission is encouraged to adopt the Secretary's statement, or parts of such statement, the indt::pendent responsibilities of the Commission are spe:cifically recognized. To the extent the Commission determines it is not practicable to adopt all or part of the Secretary's environmental impact statement, the Commission's responsibilities under NEPA remain in force, thus requiring the preparation of a supplemental environmental impact statement.

Floor consideration in the House was addressed to H. R. 7187, as a substitute for both H. R. 3809 and H. R. 6598. The EIS-adoption language appears once again. However, the provisions for an environmental assessment were modified In two important ways. First, DOE would now explicitly be required to make "a reasonable comparative evaluation" of the sites that had been considered for site characterization. Sec. 112(b)(l)(A). Second, under H. R. 7187 the environmenta I assessment would precede, rather than follow, the President's approval of sites to be characterized, and it would no longer be submitted to the Commission for review and comment. Ibid.

There was no committee report on H. R. 7187, but a summary of its provi-sions noted:

In issuing the construction permit and license the NRC will rely on the Environmental Impact Statement prepared by the Secretary of Energy in recommending the repository site. The Commission will have to supplement any environmental impact statement with considerations of the public health and safety required under the Atomic Energy Act of 1954.

128 Cong.Rec. H8163 (daily ed. Sept. 30, 1982) (statement of Rep. Udall).

Rep. Moorhead also characterized the Commission 1s role in terms of its health and safety responsibilities:

" *** an extensive environmental assessment must be developed by the Secretary of Energy in consultation with the States. There will be a full and complete review of the planned site under the National Environmental Policy Act, culminating in a comprehensive environmental impact statement. This as well as all other final agency actions - will be open to full judicial review. The Nuclear Regulatory Commission will have oversight authority over the development of this repository under its independent public health and safety standards."

Id. at H8170. Congressman Ottinger. too, differentiated in passing between "full environmental review" on the one hand and "full NRC licensing procedures to assure that the storage is safe" on the oth~r. 128 Cong. Rec.

H8527 (daily ed. Nov. 29, 1982).

The legislative history in the Senate is less illuminating, inasmuch as its bill, S. 1662, differs substantially from the final legislation. (S. 1662, as reported from the Committee on Energy and Natural Resources, appears at 128 Cong.Rec. S4139 ff., daily ed. Apr. 28, 1982.) Under S. 1662, the Commission would have a more substantive role with respect to Implementation of NEPA. There would be no direction to the Commission to adopt the DOE environmental Impact statement. Rather, under Section 405, the Commission would be required to consider the application in accordance with the laws applicable thereto; as an exception, however, the bill provided that the Commission need only consider as alternate sites for the proposed repository

those sites which have been approved by the President for characterization.

Senator Simpson, sponsor of the legislation, explained that the NRC licensing 11 process would provide opportunities for a detailed evaluation of the health and safety and environmental aspects of the proposed project" (emphasis added). 128 Cong.Rec. S4302 (daily ed. Apr. 29, 1962).

In December 1982, the: Senate turned to consider legislation following the pertinent language of the bill which had by that time been passed by the House of Representatives. Senator Mitchell declared that the national nuclear 11 waste policy should preserve the integrity and full scope of the NRC licensing review and environmental analysis under the National Environmental Policy Act," 128 Cong.Rec. S15669 (daily ed. Dec. 20, 1982), but the broad scope of his remarks leaves it of doubtful import in the context of geologic repositories alone. Of more significance, perhaps, is the colloquy Yvith respect to an amendment proposed by Senator Levin, and passed, to include in Section 114(f) the language that nothing In the Act should be construed to amend or otherwise detract from the Commission's licensing requirements. Sen. Levin stated his understanding that the Act was not intended to restrict, or amend, or modify NRC requirements for the repository in any way "including, but not limited to, findings of need." Senator McClure, the floor manager of the bill, 11 replied that Sen. Levin was correct and added that that is my understanding also. 11 Since findings of need have generally been regarded as NEPA issues, this could be taken to mean that the Commission should discharge its NEPA requirements in the same way as it would in the absence of the revi~w procedures prescribed by the Nuclear Waste Policy Act. This cannot be t~e case, however, in light of the other provisions of the Act, including those /in 1

Section 114(f) itself. It seems clear that the law was not intended to modi fy

any of the Commission's licensing requirements under the Atomic Energy Ac

• The Commission construes the clause in question to be requirements; it does not pertain to the provisions of NEPA. The remarks f a single: legislator, even the sponsor, are not controlling in analyzi legislative history, Chrysler Corp. v. Brown, 441 U.S. 281, 311, 60 L.Ed.

208, 231 (1979), especially where as here their significance is not appare t without further study. Whatever the understanding of Sen.

been, the Nuclear Waste Policy Act manifestly does affect the manner in whi the NEPA responsibilities of the Commission must be carried out, and the rul s proposed below indicate the approach which we intend tc, take.

Although .the views of Congress are not entirely unambiguous, the over II tenor is that the Commission's role should focus upon radiological safety, wi h an independent review of NEPA factors only where warranted in the light f "significant and substantial new information or new considerations. 11 "Adoption" and the Nuclear Waste Policy Act The Council on Environmental Quality has established procedures to guile agencies that are engaged in actions that have related environmental impact .

These procedures allow for several approaches to NEPA compliance, includi one approach in which the environmental impact statement prepared by o e agency is "adopted" by another agency. 40 CFR § 1506 .3. In appropria e circumstances, an EIS prepared by another agency may be adopted, in I

accordance with CEQ regulations,.in whole or part by NRC. 10 CFR Part 51, I

Appendix A to Subpart A 11'1 (b). An examination of those regulations will illuminate the direction to the Commission, in Section 114(f) of the Waste Poli ly

11 Act. to adopt" the DOE EIS to the extent practicable. In the absencejof irreconcilable conflict with other provisions of NWPA. those regulations sho Id be fol lowed.

The CEQ regulations provide that where more than one agency is involv d l

In the same action, either one agency will be designated a lead agency lto prepare an EIS, or two (or more) agencies will be: designated as joint lead agencies. Any agency which has jurisdiction by law with respect to the actiln shall be a cooperating agency, if so requested by the lead agency. An agenby

- even if it has jurisdiction - need not serve as a cooperating agtncl,,

however. unless the lead agency has requested it to do so. Whether or not It is a cooperating agency. a Federal agency with jurisdiction by law or special expertisE. w Ith respect to any environmental impact involved has a duty to comment on a lead agency'&

jurisdiction, expertise, or authority.

statement 40 CFR within

§§ the commenting 1501.5, 1501.6, 1503.2.

In the context of NWPA, it is apparent that the Department of Ener y l

agency's would be the lead agency and that the Commission would not be a lead agenc~.

The Commission could either be a cooperating agency, with the partlcutr responsibilities set out in § 1501

• 6 of the CEQ regulations, or a commenti g agency. The:: NWPA points to the Commission's assuming the latter role.

cooperating agency is required to participate. In the NEPA process at earliest possible time, to participate in the scoping process leading to preparation of the environmental impact statement. and to assume on request ;of the lead agency responsibility for developing information and preparing environmental analyses including portions of the EIS concerning which the co-operating agency has special expertise. The framework of NWPA. as rehearsed above. contemplates no such involvement by the Commission. It would be far

more faithful to the statutory scheme for this agency merely to providt: its comments, from time to time, with respect to environmental impacts falling within its jurisdiction or areas of special expertise. This is entirely consistent with the statutory provision that the Secretary of Energy's recommendation to the President of a site for repository development shall be accompanied by a final EIS, together with comments made by the Commission concerning such EIS. Sec. 114(a)(1)(D), 42 U.S.C. 10134(a)(1)(D).

As a commenting age:ncy, the Commission would be authorized to adopt the EIS prepared by DOE provided that the statement meets the standards for an adeC!uate statement under the CEQ regulations. The pendency or outcome of.

litigation with respect to the DOE EIS is one factor to be considered. This is apparent from CEQ's dired:ion to the adopting agency to specify, where applicable, that "the statement's adequacy is the subject of a judicial action which is not final." Since the actions covered by the DOE EIS and the Commission's action are substantially the same - namely, dev~lopment of a geologic repository of the proposed design at the proposed

• site - the Commission would not be required to recirculate the DOE EIS except as a final statement. 40 CFR § 1506.3.

The Commission can follow the CEQ procedures for a commenting agency, including the procedures for adoption of DOE's EIS. But the EIS can only be adopted if it meets the standards for an "adequate statement *." The approach being taken by the Commission, in these proposed rules, is that NWPA and tht.

principles of res judicata obviate the need for an entirely independent adjudication of the adequacy of the EIS by this agency. As this might be seen as a departure from established practices, the differences merit some further discussion.

It is well established that the Commission has a responsibility to consider environmental issues just as it considers other matters within it5 mandate.

Moreover, the duty to consider environmental issues extends through all stages of the Commission's review processes, including proceedings before hearing boards. And the Commission may not simply defer totally to the standards set by other regulatory authorities with respect to environmental matters within their jurisdicticri; to do so would be an abdication of the Commission's NEPA authority. Calvert Cliffs'-Coordinating Committee v. U.S. Atc,niic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971). There would be an abdication because NEPA mandates a case-by-case balancing judgment - a judgment that is entirely different from the piecemeal certification by another agency that its own environmental standards are met. The only agency in a position to make the kind of balancing judgment contemplated by NEPA is the agency with overall responsibility for the proposed federal action. Id. at 1123. In Calvert Cliffs, cnly the Atomic Energy Commission could make the required dt:cision. In the case of a geologic repository, the Department of Energy is required to make precisely the kind of analysis that the court there deemed to be essential. For the Commission to adopt the DOE EIS without independent analysis, after there had been opportunity for judicial review thereof, would be entirely consistent with the reasoning of the earlier case. Similarly, the overlap between DOE and Commission actions distinguishes the present situation from other NEPA decisions which required an independent balancing judgment by each of the agencies involved in a project. See Silentman v. Federal Power Cormission, 566 F.2d 237, 240 (D.C. Cir. 1977);

Henry v. Federal Power Commission, 513 F.2d 395, 407 (D.C. Cir. 1975)

( Bureau of Reclamation control of relevant water rights for coal gasification plant; FPC regulation of gas transportation).

The similarity of DOE and Commission actions, from the standpoint of their respective environmental impacts, has not in the past been considered, by itself, to be sufficient to persuade the Commission to defer to DO E's balancing judgments. The fact that thE: applicant for a licenst to build c1 nuclear power plant is another Federal agency has not excused NRC from carrying out its usual NEPA obligations, even though both agencie:s were considering the same impacts associated with construction and operation of the facility. Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and -

2), ALAB-506, 8 NRC 533, 545 (1978). But in prior practice there was no prior judicial determination that the other agency's EIS was adequate and there was no special statutory scheme for consideration of environmental impacts by interested parties and Congress. It is the judgment of the Commission that these unique considerations warrant, and indeed require, adoption of an EIS that is adequate to meet the obligations of DOE.

To repeat: the Commission must consider the environmental impacts resulting from the construction and development of a geologic repository for high-level radioactive waste. All that is in question is the basis for the Commission's consideration. The factors discussed above make it entirely reasonable for the Commission not to reopen issues that have been, or could previously have been, brought before the courts for resolution. The Commission does not derogate the Importance of NEPA issues. Under the Nuclear Waste Policy Act, they are extremely important - and in fact they are central to many of the elaborate procedural provisions incorporated in that legislation. It is to those provisions that parties concerned must turn. But

once an application is submitted to the Commission, the primary question to be addressed is no longer one of environmental balancing, but rather the critical issue of radiological safety. That is an issue that is entrusted solely to the Commission, and the Commission can discharge its duties most effectively if it makes that the primary basis for decision.

The Preclusive Effect of Section 119 The approach being proposed by the Commission reflects the policies of repose associated with the rules of res judicata. Before examining those rul~s in detail, it might be helpful to go over, once again, salient features of the NWPJ\ site selection and approval procedures.

The NWPA procedures really reflect two different kinds of review. The first requires judgments regarding the radiological safety of H LW di~posal -

matters to be adjudicated solely by the Commission, taking into account the standards issued by the Environmental Protection Agency. The Act clearly recognizes that while the Commission's preliminary views are to be solicited and considered on several occasions, a final judgment on radiological safety can only be made at the conclusion of the adjudicatory licensing process. The Commission is expected and requirt:d to deny an application - long after other procedures had run their course - if it is unable to find, with reasonable assurance, that the relevant safety criteria have been met. The responsibility for consideration of the radiological consequences of a proposed action is advisedly vested in the Commission, which can bring its experience and expertise to the task, in accordance with the Atomic Energy Act.

The second kind of review involves the weighing of the range of environmental concerns that are addressed by NEPA. This review focuses heavily on the comparison of alternatives, including alternative sites, rather than with the narrower task of evaluating a specific site. Moreover, the relevant concerns under NEPA are multitudinous, as opposed to the single issue of radiological safety that is the primary concern of the Atomic Energy Act. While the Commission does have experience and expertise in carrying out a review und~r NEPA, Congress in 1982 elected not to rely upon the Commission in this regard. It structured the process in such a way that the evaluation of alternatives - in particular, alternative sites - would have been attended to before the Cunimission was required to act. This was accomplished largely through the State and Tribal participation provjsions, including the requirement of Congr~ssional action to proceed In the face of a notice: of disapproval. And, additionally, it was accomplished through requiring early judicial review.

The consequence cf this approach is that the Commission would carry out a licensing review to assure that a repository could be operated safely - but that it would, in general, treat as settled those other issues arising under NEPA.

The Commission's understanding, based in particular upon its reading of Section 119, merits a fuller statement of the legal doctrines that are collectively referred to as the rules of!!!. judlcata. One of these doctrines is the rule of "claim preclusion" - that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance to do so. The related rule of "issue preclusion" (or collateral estoppel) reflects the principle that one who has actually litigated an issue

should not be allowed to relitigate it. The effect, and value, of these rules is that they compel repose, so that the indefinite continuation of a dispute can bf:

avoided. Judgments must in general be .accorded finality despite flaws in the processes leading to decision and the unavoidable possibility that the results in some instances were wrong. Only when there is a substantial possibility of injustice might relitigation be warranted. Restatement (Second) of Judgments 2-12.

The clearest application of these principles would occur where thert: has actually been a timely chalie:nge to the adequacy of DOE's environmental statement. A final judgment in such litigation would be conclusive, in any subsequent action between the parties, as to any issue of law or fact that had actually been litigated, id. § 27. Moreover, the party who had challenged the EIS would thereafter be precluded from litigating such issues with another person as wel I, id. § 29.

The judgment in an action, under Section 119(a) (1) (D), for review of DOE's environmental impact statement will therefore preclude the petitioner from later litigating the same i~sues with NRC (even assuming that NRC is a different person, for these purposes, from its sister agency DOE). The dimensions of the issue that were determined by the judgment may be a matter of debate. But if the litigant has had an adequate day in court, a desire to prevent repetitious litigation of what is essentially the same dispute justifies preclusion of the Issue's being raised anew. While the action being taken by DOE is the recommendation to the President of a site for repository development and the action being taken by the Commission is the issuance of a construction authorization for a repository, the relevant considerations in the two situations are identical. Both agencies will be addressing the development

of a repository at a specific location and both will require an environmental impact statement that describes the pertinent environmental impacts ar.d considers appropriate alternatives. If the DOE EIS is found to be adequate to meet the requirements of NEPA, then it would ordinarily be proper to preclude a challenge to the "adequacy" of the identical EIS, if relied upon by the Commission. See id., § 27.

The preclusive effect of a prior judgment sustaining DOE 1s environmental impact statement would not ne~essarily be limited to the petitioner of record iii that proceeding. It can be argued that those who were represented by that petitioner would also be barred from litigating the issue in a subsequent oction. 'l_/

Section 119 specifically requires that a civil action for review of an environmental impact statement with respect to any action under Subtitle A

{pertaining to geologic repositories) be brought within a period of 180 days after the date of the action (or after obtaining actual or constructive knowl-edge thereof). Thus, a failure to meet the deadline for challenging the DOE environmental impact statement would foreclose any subsequent litigation with respect to the action to which that EIS pertains. The objective appears to have been to identify issues promptly and to seek to resolve them in a timely man-2/ For example, if the EIS had been challenged by the public officials of the State In which a repository was proposed tc be located, members of the public who had been represented by those officials might be precluded, tc the same extent, from raising the Issues anew. Restatement (Second) of Judgments §41, comment d. The basis for this argument would be that, under the doctrine of parens patriae, a state is deemed to represent all of its citizens, when the state Is a party in a suit involving a matter of sovereign interest. See, ~ . Environmental Defense Fund, Inc.

v. Higginson, 631 F.2d 738 (D.C:-:-Cir. 1979); U.S. v. Olin Corp., 606 F.Supp. 1301 (N.D. Ala. 1985).

ner. Where there is litigation in accordance with this provision, the principles described above would preclude further judicial exarr.ination of the same issues as they relate to the Commission's action. But what would happen If for some reason the adequacy of the DOE environmental impact statement had not been challenged judicially before it was time for the Commission to act -- or if it had been challenged, the action had been brought by other parties? If the Commission were to adopt the DOE environmental impact statement, would the merits of the decision to adopt be subject to further review'? The Commissicn suggests that the courts shoulC: deny a petition under these circumstances as being untimely. There would be, in this case, only one environmental impact statement; and, in accordance with section 119, there would be but one opportunity for review. To conclude otherwise would be to frustrate the objective of seeking an early resolution of the environmental issues that might be involved. See Eagle-Picher Industries v. U.S. Environmental Protection Agency, 759 F.2d 905, 911-919 (D.C. Cir. 1985). See also National Wildlife Federation v. Gorsuch, 744 F.2d 963 (3rd Cir. 1984), in which the National Wildlife Federation, having been aware of prior litigation and having elected not to intervene, was barred from later raising the issues of concern to it.

THE NUCLEAR WASTE POLICY AMENDMENTS ACT OF 1987 The Nuclear Waste Policy Amendments Act of 1987 (Amendments Act).

Title V, Subtitle A, Ommibus Budget ReconcUjat_ionAct of 1987, P. L. 100-203, redirected the nuclear waste program. Under Section 5011 of that law site characterization for the first repository is to be carried out exclusively at the Yucca Mountain site in the State of Nevada, with site specific activities at

other candidate sites to be phased out promptly. NWPA as amended, §160(a),

42 U.S.C. ___ The provisions of NWPA that contemplated a second repository are removed, and DOE is expressly prohibited from conducting site specific activities with respect to a second repository unless Congress has specifically authorized and appropriated funds for such activities. NWPA as amended, §161 (a), 42 U.S. C.

Conforming to this redirection of the waste program, th~ law revises the provisions of Section 114 of NWPA that deal with the application of NEPA to the licensing process. The language of §114(a)(1)(D) describing DOE's final environmental impact statement, which is to be submitted to the President with DOE's recommendation of approval for development of a repository, is revised so that DOE "shall not be required ... to consider the need for a repository, tht: alternatives to geological disposal, or alternative sites to the Yucca Mountain site", NWPA as amended, §160(h), 42 U.S.C. _ _ _ (emphasis supplied). Section 11!J(f), 42 U.S.C. 10134(f), is revised in the same way, so that DOE "need not consider alternative sites to the Yucca Mountain site;"

and, moreover, the Commission in its NEPA. review is similarly advised that it need not consider such alternative sites. NWPA as amended, § 160 (I),

1,12 U.S.C. _ _ _ (In the case of a site negotiated under Title IV of NWPA, added by Section 5041 of Pub. L. 100-203, at a site other than Yucca Mountain, consideration would be given to Yucca Mountain as an alternate site. NWPA as amended, § 407, 42 U.S.C. ___ ).

The merits of multiple site characterization were addressed in the course of the Congressional debate that immediately preceded passage of the Amendments Act. Senator Burdick, in particular, noted that full

characterization of three sites (according to the original NWPA) was based, in part, on the important NEPA principle of fully considering reasonable alternatives when making important decisions that will significantly affect the human environment. In discussing the different approach (in the conference report on the pending budget reconciliation legislation) that was soon to be adopted, he stated:

"Other than the elimination of the consideration of three alternate sites for the repository, which as just outlined, is a major and dangerous departure from current law, the rconference] substitute does not affect the applicatior. of NEPA to the repository program." Congressional Record, S 18674 (daily ed., Dec. 21, 1987).

The conference report expresses the same point. It declares:

"The provisions of the Nuclear Waste Policy Act pertaining to the application of the National Environmental Policy Act (NEPA) are preserved except that the existing requirement that the environmental impact staterr.ent accompanying DOE's repository siting recommendation consioe:r alternative sites is eliminated. NEPA applies to the redirected program under this Act in the same way as NEPA applied to the Nuclear Waste Policy Act of 1982. The conferees do not intend that enactment of the conference substitute result in any chan9e in NEPA application except as expressly provided

• 11 Omnibus Budget Reconciliation Act of 1987, Conference Report to Accompany H. R. 3545, 100th Cong., 1st Sess.

H. R. Rept. 100-495, 776.

Tht: Commission has explained above that, under NWPA as originally enacted, it should make an independent re:view of NEPA factors only when warranted in the light of "significant and substantial new information or new considerations." Further, it was the duty of the Commission, under that law, to adopt an EIS that is adequate to meet the obligations of DOE. Since the Amendments Act was not intended to affect the, implementation of NEPA with respect to the repository program - except as to the consideration of alternate sites - the Commission will follow the same procedures, discussed below, that it would have had the Amendments Act not been passed.

THE PROPOSED RULES This rulemaking proceeding is primarily concerned with amendments to 10 CFR Part 51, "Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions. 11 The proceeding also encompasses conforming amendments to other parts of the Commission's regulations.

Subpart A of 10 CFR Part 51 sets out NRC regulations for implementing Section 102 ( 2) of NEP.A. The principal matters addressed by Subpart A are the following: ( 1) identification of licensing and regulatory actions requiring the preparation of environmental impact statements or environmental assessments; ( 2) requirements for the subrr.ission of environmental reports and information by license applicants and petitioners for rule:making; (3) contents and distribution of draft and final environmental impact statements; (4) NE::PA procedure and administrative action; and (5) public notice of and access to environmental documents. Sine~ each of these topics is treated, expressly or implicitly, by the Nuclear Waste Policy Act, as amended, the Commission proposes to develop as part of Subpart A certain new rules, discussed below, that will apply to geologic repositories and that will take into account the provisions of that Act. 2_!

3/ The Nuclear Waste Policy Act applies only with respect to geologic reposi-tories that are used, at least in part, for the disposal of waste from civilian nuclear waste activities. Sec. 8, 42 U.S.C. 10108. Under the Act, however, high-level radioactive waste resulting from atomic energy defense activities is to be disposed of in such repositories, along with civilian wastes, unless the President finds that a separate facility is required. The President has determined that such a separate facility is not needed. In the light of these developments, the Commission believes (FOOTNOTE CONTINUED ON NEXT PAGE)

Actions Requiring Preparation of Environmental Document Under Section 121 of the Nuclear Waste Policy Act, 42 U.S.C. 10141, the Commission's promulgation of technical requirements and criteria in 10 CFR Part 60 does not require the preparation of an environmental Impact statement or other environmental review under section 102 (2) of NEPA. The proposed

- rules incorporate this provision. E_/ Under existing 10 CFR Part 51, certain procedural actions pertaining to the licensing of geologic repositorits have been determined to be categorically excluded from environmental assessment.

See references to 10 CFR Part 60 in 10 CFR § 51 .22 (c). No change in those provisions is needed.

Under 10 CFR § 51.20(a), an environmental impact statement is required if the proposed action is a major Federal action significantly affecting the qual-ity of the human environment or if the Commission, in the exercise of its dis-cretion, determines that the proposed action should be covered by such an EIS. Section 114(f) of the Nuclear V'.1aste Policy Act, 42 U.S.C. § 10134(f),

reflects a Congressional understanding, with which the Commission is in full accord, that the issuance of a construction authorization and license for a geologic repository will require an environmental Impact statement. This has (FOOTNOTE CONTINUED FROW. PREVIOUS PAGE) that It is sufficient to limit the scope of this action to those facilities that may be situated and constructed in accordance with the Nuclear Waste Policy Act.

4/ See§ 51.22(d). Conforming amendments would be made in§ 51.21 and in the caption of § 51

• 22 .

been incorporated into the proposed rules. Other licensing actions, unless covered by existing categorical exclusions (see paragraphs (10), (11), and (12) of 10 CFR § 51.22(c)), would require an environmental assessment under 10CFR§51.21.

Ordinarily, a determination that an environmental impact statement (or supplement) will be prepared triggers public notice and the initiation of c:.

scoping process. Where anothe:r agency prepares the EIS, however, it has the responsibility to carry out these functions. We are proposing to clarify this point by limiting the application of these procedure!:> to situations in which the appropriate NRC stcff director determines that an environmental impact statement will be prepared "by f\lRC. 11 See the amendment to Section 5l.26(a).

Submission of Environmental Information The Commission's regulations encourage prospective applicants cir petition-ers for rulemaking to confer with NRC staff before submitting environmental information. 10 CFR § 51.40. The regulations also provide that the Commission may require such persons to submit information which may be:

useful in aiding the Commission in complying with Section 102(2) of NEPA. 10 CFR § 51.41. These general provisions are compatible with the requirements of the Nuclear Waste Policy Act.

The more specific regulations dealing with the submission of environmental reports are inappropriate in the context of the geologic repository program.

Instead of providing for the submission of an environmental report, the Nuclear Waste Policy Act requires that NRC consider, and if practicable adopt, a final environmental impact statement prepared by DOE at the time of its

recommendation to the President for the development of a repository at a particular site. Sec. 114, 42 U.S. C. \ 10134. The recommendation for development of a repository includes, as a minimum, the obtaining of a license from NRC to receive and possess wastes. The environmental impact statement must therefore address not only the environmental effects of construction but those of repository performance as well. This is reflected in the statutory direction to the Commission to adopt the environmental impact statement, to the extent practicable, "in connection with the issuance by the Commission of a construction authorization and license for such repository. 11 DOE will therefore be required to submit an environmental impact statement instead of an environmental report. The Commission may nevertheless be unable to adopt that statement, with respect either to the construction authorization or the license, unless it has been supplemented to take into account significant new information such as that developed during the course of construction as part of the performance confirmation program or significant ch2nges in the plans of DOE since the time of its site recommer.dation to the President. See LJO CFR § 1502.9(c) (1) (CEQ regulations). Accordingly, the proposed rules provide for the timely submission by DOE of supplemental environmental impact statements as needed.

The information to be contained in an environmental impact statement is set out in section 102(2) of NEPA itself, and the submission of such informa-tion is required by the proposed rules. The scope of alternatives to be con-sidered in the EIS is restricted, however, to take into account the limitations fn section 114(f) of the Nuclear Waste Policy Act, 42 USC 10134(f), with re-spect to the need for a repository, the time of the initial availability of a repository, alternatives to the isolation of waste in a repository, and the

identification of alternate sites. ~oreover, the proposed rule requires DOE to inform the Commission of the extent to which, pursuant to section 119, 42 U.S.C. 10139, the environmental impact statement may have been found to be adequate or inadequate and the extent to which, under that section, issues related to the adequacy of the environmental impact statement may remain subject to judicial review.

Because one of the alternatives available to the Commission is denial of the application, the environmental impacts of such denial need to be addressed. Even though denial

• of an application involves action by the Commission, it is proper for the environmental impacts to be addressed by DOE, since the lead agency is required by CEQ requlations to include reasonable alternatives not within its jurisdiction. 40 CFR § 1502.14(c).

The Commission has not included any specific requirements for the submission of environmental information by petitioners for rulemaking. The only rules lik~ly to have significant environmental effects would be technical requirements and criteria to be used in licensing; as already noted, such rules

- would be exempt from the requirement of environmental review under NEPA.

Section 121(c), 42 U.S.C. 10141(c). In a particular case, however, environmental information could be required, if needed to comply with law, pursuant to the general language of 10 CFR § 51.41.

Preparation of Environmental Impact Statements The NRC regulations include a group of sections that prescribe a procedure for preparation and distribution by the NRC of draft and final environmental impact ,tatements. With respect to materials licem,es, these

r~quirements apply to certain specified categories of MRC actions other than the issuance of a construction authorization or license to receive and possess high-level radioactive waste at a geologic repository. 10 CFR § 51.80 (citing § 51.20 (b)(7)-(12)). Because NRC, under the Nuclear Waste Policy Act, will in general have no need to prepare Its own environmental impact ~tatement, the proposed amendments would provide (in accordance with CEQ regulations) for the distribution of the EIS, if and as adopted by the Commission, only as a final statement.

NEPA Procedure and Adrninistrative Action Although the procedures established in Part 51 are designed for the case in which NRC prepares its own environmental impact statemE:nt, they can equally well be applied in th~ situation where the EIS is prepared in the first instance by a license applicant. Thus, no action will be taken by the Commission until necessary documents have been filed - in this csse by DOE rather than NRC - with the Environmental Protection Agency. See 10 CFR

§51 .100. NRC will not take actior. concerning the proposal which would have an adverse environmental impact until a record of d~cision is issued. See 1C CFR § 51.101. A record of decision will be prepared as part of the initial or final decision on issues adjudicated in formal hearings. See 10 CFR § 51

• 102.

The record of decision will state the decision, including alternatives considered and the relevant factors upon which preferences among the alternatives are based. See 10 CFR §51 .103. In the case of the adoption of an EIS prepared by DOE concerning a geologic repository, the relevant factors would include the special provisions of the Nuclear Waste Policy Act.

. In addition to these rules c,f general application. Part 51 includes specific procedural provisions for different categories of licensing actions. A new section 51.109 would be added to describe the NEPA procedure to be followed with respect to licenses issued under 10 CFR Part 60.

The basic premise of § 51.109 is that it is practicable to adopt the EIS prepared by DOE if that statement is adequate to meet the requirements of Section 102(2)(C) of NEPA. The focus of the procedure, therefore, is the presiding officer's determination of the extent to which it is practicable to adopt the DOE EIS. To the extent adoption is practicable, the issues would be excluded from independent NRC inquiry. The adoption of the statement does not necessarily mean that NRC would independently have arrived at the same conclusions on matters of fact or policy. And, of course, the adoption of the EIS would have no probative weight with respect to any safety findings that th~ Commission must make under 1 O CFR Part 60.

It would still be proper to consider NEPA contentions with respect to significant matters that arose after issuance of the EIS. But note, even in this regard, that if there are significant new circumstances or information relevant to environmental concerns and bearing on the action proposed by DOE or its impacts, DOE would be obliged to prepare a suppletnentc:11 EIS that would be subject to adoption by the Commission under the same standards as the original document. Challenges to DOE's supplement should be adjudicated in the courts of appeals, pursuant to Section 119 of NWPA, in the same manner as challenges to the original EIS.

The Commission fully expects that supplementation of the EIS by DOE will resolve any new circumstances or information that might arise, and that supplementation by the NRC will not be necessary. Neverthele!iS, in theory

there might be situations when NRC must prepare a supplemental environmental impact statement. Under the proposed regulations, such action might be initiated by the staff before the hearing or might be found to be necessary in light of the record of the proceedings after the hearing. The former case is addressed in § 51.26(c), the latter (implicitly) in § 51.109(e). In each situation, though, the standc:rds for adoption set out in§ 51.109(c) would be observed.

The proposed rules provide a structured mechanism to address NEPA concerns in a licensing hearing. This is the presentation of the staff position with respect to the practicability of adoption, which appears in § 51.109{a) (1).

\As noted above, it is expected that DOE would, where necessary, supplement its EIS. Accordingly, the staff position is likely to be that it is practicable for the Commission to adopt the DOE EIS, as it may have bten supplemented by DOE and as filed with the Commission. Nevertheless, in some situations, the staff position could be that it is not practicable to adopt the DOE EIS, as it may have been supplemented, in which case an NRC EIS would be required.

In that event, the staff is under an obligation to have prepared the: necessary final EIS so as to be able to present its position on matters within the scope of NEPA. Whatever the staff position may be, any other party may seek to have the issue regarding practicability of adoption resolved by the presiding officer, but any contentions to that effect must set forth the basis of the claim under the criteria set out in the proposed rule. Moreover, it is contemplated that the procedures that would be used by the presiding officer to resolve disputes regarding adoption would resemble those employed to rule on motions to reopen records. See 10 CFR §2.734.

Several situations in which adoption of DOE's EIS is impracticable could conceivably arise. For example, if the Commission we:re to impose license conditions requiring DOE to take actions other than thuse which DOE had proposed, the Commission would need to consider the environmental impacts of such actions in accordance with NEPA. However, the Commission does not ar.ticipate imposition of license conditions with significant environmental impacts. Under NWPA, DOE has the primary responsibility for consideration of environmental mutters; and if significant changes from DO E's original proposal are needed, the Commission believes that DOE should amend its license application and supplement its EIS, precluding any need for NRC supplementation. Should DOE fail to do so, the Commission might deny DO E's application rather than impose license conditions requiring NRC supplementation of DOE's EIS. In theory, though, it would still be possible for NRC to prepare its own EIS. The scope of the review would be limited, however, to the actions being required by the Commission. It is not intended that other environmental issues would be reopened and relitigated in the licensing proceeding.

Another situation in which NRC would prepare a supplemental EIS re:lates to new information which It regards as significant even though DOE may not have treated It as such. We recognize that DO E's failure to supplement the EIS might arguably be viewed as a final action, so that objecting parties might have to seek review in the courts within the statutory 180-day review period, with any failure to do so barring later challenge in NRC proceedings. But such a reading of the law would have undesirable consequences upon NRC administrative proceedings. It would require NRC to decide whether or not adoption is practicable on the basis of factual and legal considerations

(pertaining to DOE's duty to supplement the EIS and, in particular, the time such duty may have arisen), which go far beyond the materials otherwise requiring NRC review. Accordingly, NRC proposes to prepare a supplemental EIS, if DOE is not doing so, whenever NRC regards such a supplemental EIS to be required by law. 5/

Furthermore, the Commission will review any statements in the DOE's environmental impact statement relating to radiological concerns. If such statements are inconsistent with the facts found by the Commission on the basis of the record cf the proceedings, the Commission will specifically determine whether or not the findings constitute "significant and substantial new information or new con_siderations" which, under the rule, would render the environmental impact statement to that extent inadequate. The statement will be supplemented where required by law, or otherwise will be deemed modified to the extent necess~ry, in accordance with Commission practice.

Citizens for Safe Power v. NRC, 52!! F.2d 1291, 1294, n. 5 (D.C. Cir. 1975);

Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2),

CLl-78-1, 7 NRC 1, 29 (1978).

The Commission would make its own NEPA findings, including an independent balance of relevant factors, "to the extent that it is not practicable to adopt" the DOE EIS - that is, to the extent that the Commission finds that the balance of these factors would be affected by the new information or new considerations involved. This procedure is consistent with 5/ The Commission once again emphasizes that, under NWPA. DOE has the primary responsibility to supplement an EIS to take significant new information into consideration. This obligation is reflected in the proposed revision to §60 .24(c).

10 CFR § 51.41; which states that the Commission "will independently evaluate and be responsible for the reliability of any information which it uses. 11 Public Information Sections 51. 116 through 51 .118 concern public notices about the prepara-tion of an environmental impact statement. They apply in any situation in which a notice of intent to prepare an EIS is prepared "in accordance with § 51 .26." But, c1s discussed above, §* 51.26 would be amended so as to app,ly only when NRC itself intends to prepare an EIS. Since the EIS with respect fo a repository would be prepared by DOE rather than by NRC, the notice provisions of §§ 51.116 - 51.118 would not come into play. Section 51.118 would be amended, however, to require circulat.ion of a final environmental impact statement, if and when adopted by NRC.

CommentinQ It is the policy of the Commission to comment on draft environmental im-pact statements prepared by other Federal agencies, consistent with the provi-sions *of 40 CFR §§ 1503.2 and 1503.3. 10 CFR § 51.124. The Commissicr.

intends to follow this policy in connection with the draft environmental impact statement prepared by DOE in connection with a geologic* repository recommendation. The submission of such comments is specifically called for, in fact, by the Nuclear Waste Policy Act. See Sec. 114(a)(1}(O), 42 U.S.C.

10134(a) (1) (D).

NRC will comment on environmental issues even though those issues may be precluded from litigation in the licensing proceedings. The reason for this

is that an inadequate EIS may be set aside in the course of judicial review.

Should this occur, it would of course not be practicable for the Commission to adopt it. If NRC has objections or reservations about the DOE proposal on grounds of environmental impacts, It will specify the mitigation measures it considers necessary tc., withstand challenge in court. The theory underlying such comments is that if the EIS is found not to be aaequate, in the course of judicial review, NRC could not adopt it and, in the absence of suitable revisions or supplementation, the Commission could not issue a construction authorization or license. Se~ 40 CFR § 1503.3(d) (duty to specify mitigation measures considered necessary to allow license to be granted).

Ordinarily an agency that receives comments from another agency must consider them, but it may exercise its discretion in determining how they should affect the decision at hand. In principle, therefore, DOE could in some cases reject comments made by NRC on grounds that might be unsatisfactory to the Commission. Still, the Commission's comments will be a matter of public record and will be available for consideration during judicial and Congressional review of DO E's EIS and related actions. The Commission regards these forums, rather than the NRC usual review, to be the appropriate place, under NWPA, for review of DOE's responses to comments as well as other matters related to the EIS.

Responsible Official No change is required in the provision establishing responsibilities within NRC for NEPA compliance.

Conforming Amendments Several changes to Part 60 of the Commission's regulations are needed in order to reflect the provisions of the Nuclear Waste Policy Act, as amended, that deal with environmental review.

Under the Nuclear Waste Policy Act, DOE is required to prepare an environmental impact statement instead of an environmental report. Several changes to Part 60 are propo?ed to reflect this direction. Revisions to the environmental impact statement would take the form of "supplements" instead of the "amendments" or "updates" referred to in the existing rule.

Th1:: requirement in §60. 15 that multiple sites be characterized is eliminated so as tc conform to the provision& of the Amendments Act.

The language of the findings for the issuance of the construction author-ization requires con&ideration of costs and benefits and consideration of al-ternatives. § 60.31(c). This language would not be changed. However, it should be understood that a determination that it is practicable to adopt the

- DOE environmental impac.t statement will necess.arily result in the specified environmental finding that the action called for is issuance of the construction authorization.

The construction authorization is to include such conditions as the Com-mission "finds to be necessary to protect

• environmental values." 10 CFR

§ 60.32(a). The Commission would include such conditions only where the environmental impact statement (as it may have been supplemented) specifically calls for them. In principle, the incorporation of appropriate conditions in the construction authorization could enhance environmental protection, since NRC would then have a basis to inspect, and take enforc~ment action where needta,

to assure that the conditions are observed. However, we doubt that the adequacy of the EIS would ever depend upon NRC's being vested with this authority. DOE can describe in the EIS - and in fact it must describe - the mitigation measures which are proposed to assure protection of the environment. Should DOE subsequently fail to implement these measures, affected parties c~m seek redress against DOE in the courts. Moreover, the written agreements to be entered into between DOE and the States and affected Indian tribes under Section 117(c) of the Nuclear Waste Policy Act, 42 USC 10137 ( c) , provide a supplementa I channel for identifying and resolving environmental concerns on an ongoing basis without direct NRC participation.

Our approach, therefore, will be to require the observance of environmental protection conditions where the environmental impact statement which we adopt provides for the Commission to include such conditions in the construction authorization (or license); but if it is practicable for us to adopt an EIS that makes no provision for NRC to impose and enforce such conditions, we would not on our own initiative find such conditions to be necessary. Even if NRC comments on the DOE proposal had specified mitigation measures considered necessary to allow NRC to grant a construction authorization or license, the5,e measures generally would not be incorporated as licensing conditions; for, a~

discussed above, the basis for NRC's comments was that the measures were necessary for the EIS to be considered "adequate" by the courts, and it is expected that this issue would already have been resolved.

The rules of practice (10 CFR Part 2) also need to be amended to take account of DOE's submission of an environmental impact statement instead of an environmental report. Because the EIS must conform to statutory requirements, and because its completeness would have been subject to

challenge in court prior to filing with NRC, a completeness determination by NRC at the time of docketing Is unnecessary, and provision for such determination would be omitted. As In the case of Part 60, reference would be made to "supplements" rather than "amendments, 11 to the environmental impact statement.

PETITION FOR RULEMA*~ING The States of Nevada and Minnesota have petitioned the Commission to amend 10 CFR §60.24 so as to adopt DOE 1s environmental impact statement only if such adoption "would net compromise tht: independent responsibilities of the Commissic.,n to protect the public health and safety under the Atomic Energy

,A.ct of 1954 11

• 50 FR 51701, December 19, 1985 (PRM-60-2A). (The language proposed by the petitioners also Includes several matters which would be considered by the Commission in making the foregoing determination). In this regard, the Commission notes its resolve that adoption of the environmental impact statement must not compromise its independent responsibilities under the Atomic Energy Act. Adoption of the rules proposed herein would be fully consistent with this resolve.

The matters identified by petitioners for consideration by the Commission relate largely to the adequacy of the procedures followed by DOE in implementing the Nuclear Waste Policy Act and in preparing Its EIS.

Nevertheless, as stated in the cited Federal Register notice, the Commission will give further consideration. in this rulemaklng proceeding, to the issues raised by the petitioners, as they may relate to this agency's responsibilities.

Generally, the Commission proposes to deal with these issues in a manner consistent with the discussion above.

Any person desiring to comment on the rulemaking petition, insofar as it relates to 10 CFR §60.24, should do so as part of this rulemaking proceeding.

ENVIRONMENTAL IMPACT: C,A.TEGORICAL EXCLUSION The N RC has determined that this proposed regulation is the type of action described in categorical exclusions 10 CFR §51,22(c)(1) and (3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed regulaticm.

PAPERWORK REDUCTION ACT STATEMENT The proposed rule contains no information collection requirements and therefore is not subject to the Paperwork Reduction Act (Pub. L.96-511).

REGULATORY FLEXIBILITY CERTIFICATION In accordance with the Regulatory Flexibility Act of 1980 (5 USC 605(b)), the Commission certifies that this rule, If adopted, will not have a significant economic impact on a substantial number of small entities. The only entity subject to regulation under- this amended rule is the U.S. Department of Energy.

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

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

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

ISSUANCE For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, the National Environmental Policy Act of 1969, as amended, the Nuclear Waste Policy Act of 1982, and 5 U.S.C. 553, the NRC is

proposing to adopt the following amendments to 10 CFR Part 51, and related conforming amendments to 10 CFR Parts 2 and 60.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

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

Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); SE:c.

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

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (L:2 LI.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sec-tions 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 7:?39). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also i5sued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C.

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

Sections 2.75l!, 2.760, 2.770 also issued under 5 U.S.C. 557. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 UoS.C. 552. Sections 2.800 and 2.808 also issut:a under 5 U.S.C. 553.

Section 2.809 also issued under 5 ll.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat.

2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec.

10, Pub. L.99-240, 99 Stat. 181.i2 (42 u.s.c. 2021b et seq.).

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

§ 2 .101 Filing of application.

(f) (1) Each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area pursuant to Part 60 of this chapter and any environmental impact statement required in connection therewith pursuant to Subpart A of Part 51 of this chapter shall be processed

n accordance with the provisions of this paragraph.

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

( 4) [ Reserved]

(5) If a tendered document is acceptable for docketing, the applicant will be requested to ( i) submit to the Director of Nuclear Material Safety and Safeguards such additional copies of the application and environmental impact

statement as the regulations in Part 60 and Subpart A of Part 51 of this chapter require, (ii) serve a copy of such application and environmental impact statement on the chief executive of the municipality in which the geologic repository operations area is to be located, or if the geologic repository operations area is not to be located within a municipality, on the chief executive of the county (or to the Tribal organization, if it is to be located within an Indian reservation), and (iii) make direct distribution of additional copies to Federal, State, Indian Tribe, and local officials in accordance with the requirements of this chapter cind written instructions from the Director of Nuclear Material Safety and Safeguards. All such copies shall be completely assembled documents, identified by docket number.

Subsequently distributed amendments to the application, however, may include revised pages to previous submittals and, in such cases, tht! recipients will be responsible for inserting the revised pages.

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

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

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

Subpart A also issued under National Environmental Policy Act of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 4335); and Pub.L.95-604, Title II, 92 Stat. 3033-3041. Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act of 1982, sec. 121, 96 Stat.

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

10134(f)).

4. In § 51 .20, existing paragraph (b) (13) is redesignated as paragraph (b)(14) and a new paragraph (b)(13) is added to read as follows:

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

(b) ***

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

5. Section 51

• 21 is revised to read as follows:

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

All licensing and r~gulatory actions subject to this subpart require an environmental assessment except those identified in § 51.20(b) as requiring an environmental impact statement, those identified in § 51.22(c) as categorical exclusions, and those identified in §51 .22(d) as other actions not requiring environmental review. As provided in § 51 .22 ( b), the Commission may, in special circumstances, prepare an environmental assessment on an action covered by a categorical exclusion.

6. Section 51. 22 is amE:nded, by revising the heading and adding a new paragraph (d), to read as follows:

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

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

7. In § 51 .26, paragraph (a) is revised and a new paragraph (c) is added, to read as follows:

§ 51 .26 Requirement to publish notice of intent and conduct scoping process.

(a) Whenever the appropriate NRC staff director determines. that an environmental impact statement will be prepared by NRC in connection with a proposed action, a notice of intent will be prepared as provided in § 51. 27, and wi II be published in the Federal Register as provided in § 51. 116, and an appropriate scoping process (see §§ 51 .27, 51.28 and 51.29) will be conducted.

(c) Upon receipt of an application and accompanying e:nvironmental impact statement under §60. 22 of this chapter (pertaining to geologic repositories for high-level radioactive waste), the appropriate NRC staff director will include in the notice of docketing required to be published by

§2.101(f)(8) of this chapter a statement of Commission intention to adopt the environmental impact statement to the extent practicable. However, if the appropriate NRC staff director determines, at the time of such publication or at any time thereafter, that NRC should prepare a supplemental environmental impact statement in connection with the Commission's action on the license application, the procedures set out in paragraph (a) of this section shall be followed.

8. A new § 51 .67 is added to read as follows:

§ 51.67 Environmental information concerning geologic repositories.

(a) In lieu of an environmental report, the Department of Energy, as an applicant for a license or license amendment pursuant to Part 60 of this chapter, shall submit to the Commission any final environmental impact

statement, and any supplement thereto, which the Department prepares in connection with any geologic repository dt:veloped under Subtitle. A of Title I of the Nuclear Waste Policy Act of 1982.

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

(c) Under applicable provisions of law, the Department of Energy is required to supplement its final environmental impact statement whenever the Department makes a substantial change in its proposed action that is relevant to environmental concerns or determines that there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The Department shall submit any supplement to its final environmental impact statement to the Commission at the time and in the manner described in § 60.22 of this chapter.

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

which the Department shall update from time to time to reflect changes in status, shall:

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

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

§ 51.109 Public hearing!:. in proceedings for issuance of materials license with respect to a geologic repository.

(a) (1) In a proceeding for the issuance of a license to receive and possess source, special nuclear, and byproduct material at a geologic repository operations area, the NRC staff shall present its position on whether it is practicable to adopt, without further supplementation, the environmental impact statement (including any supplement thereto) prepared by the Secretary of Energy. If the position of the staff is that supplementation of the environmental impact statement by NRC is required, it shall file its final supplemental environmental impact statement with the Environmental Protection Agency, furnish that statement to commenting agencies, and make it available to the public, before presenting its position.

In discharging its responsibilities under this paragraph, the staff shall be guided by the principles set forth in paragraphs (c) and (d) of this section.

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

§2. 714(b) of this chapter. Such contention must be accompanied by one or

-.65 -

more affidavits which set forth factual and/or technical bases for the claim that, under the principles set forth in paragraphs (c) and (d) of this section, it is not practicable to adopt the DOE environmental impact statement, as it may have been supplemented. The presiding officer shall resolve disputes concerning adoption of the DOE environmental impact statement by using, to the extent possible, the criteria and procedures that are followed in ruling on motions to reopen under §2. 734 of this chapter.

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

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

(1) (i) The action proposed to be taken by the Commissicn differs from the action proposed in the license application submitted by the Secretary of Energy; and (ii) The difference may significantly affect the quality of the human environment; or (2) Significant and substantial new information or new considerations render the environmental impact statement inadequate. New informcition or new considerations shall not be deemed to render the environmental impact statement inadequate, for purposes of this paragraph, if the new information or new considerations have been addressed in a supplemental environmental

impact statement that the Secretary of Energy has submitted to the Commission in accordance with the provisions of this chapter.

(d) To the extent that the presiding officer determines it to be practi-cable to adopt the environmental Impact statement prepared by th~ Secretary of Energy, such adoption shall be deemed to satisfy all responsibilities of the Commission under NEPA and no further consideration under NEPA or this subpart shall be required.

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

(1) Determine whether the requirements of section 102(2)(A), (C), and (E) of NEPA and the regulations in this subpart have been met; (2) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken; (3) Determine, after weighing the environmental, economic, technical and

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

(f) In making the determinations described in paragraph (e), the environmental impact statement will be deemed modified to the extent that findings and conclusions differ from those In the final statement prepared by the Secretary of Energy, as it may have been supplemented. The initial decision will be distributed to any persons not otherwise entitled to receive it who responded

• to the request in the notice of docketing, as described in

§51.26(c). If the Commission or the Atomic Safety and Licensing Appeal Board reache:s conclusions different from those of the presiding officer with respect to such matters, the final environmental impact statement wi II be deemed modified to that extent and the decision will be similarly distributed.

(g) The provisions of this section shall be followed, in place of those set out in §51. lO!J, in any proceedings for the issuance of a license to receive and possess source, special nuclear, and byproduct material at a geologic repository operations arec:1.

1o. In § 51 .118, the existing text is rede:signated as paragraph (a) and a new paragraph (b) is added, to read as follows:

§ 51 .118 Final environmental impact statement - Notice of availability.

(a) ***

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

PART 60 - DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES

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

Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 124l!, . 12l!6 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L.97-425, 96 Stat. 2213, 2228, as amended (42 U.S.C. 10134, 10141).

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

2273), §§ 60.10, 60.71 to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

12. In §

• 60. 15, paragraph (c) is removed and paragraph (d) is redesignated as paragraph (c).

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

§ 60. 21 Content of application.

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

14. Section 60. 22 is revised to read as follows:

§ 60 .22 Filing and distribution of application.

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

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

(c) DOE shall, upon notification of the appointment of an Atomic Safety and Licensing Board, update the application, eliminating all superseded information, and supplement the environmental impact statement if necessary, and serve the updated application and environmental impact statement (as it may have been_ supplemented) as directed by the Board. At that time DOE shall also serve one such copy of the appl.ication and environmental impact statement on the Atomic Safety and Licensing Appeal Panel. Any subsequent amendments to the application or supplements to the environmental impact statement shal I be served in the same manner.

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

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

(e) The DOE shall certify. that the updated copies of the application, and the environmental impact statement as it may have been supplemented, as referred to in paragraphs (c) and (d) of this section, contain the current contents of such documents submitted in accordance with the requirements of this part.

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

§ 60. 24 Updating of application and environmental impact statement.

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

(c) The DOE shall supplement its environmental impact statem1::nt in a I

I timely manner so as to take into account the environmental impacts of any substantial changes in its proposed actions or any significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or Its impacts.

., ,, r

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

§ 60.31 Construction authorization.

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

17. In§ 60.51, the introductory portion of paragraph (a), and

__ paragraph (b), are revised to read as follows:

• *§ 60.51 License amendment for permanent closure.

(a) DOE shall submit an application to amend the license prior to permanent closure. The submission shall consist of an update of the license application submitted under §§ 60. 21 and 60. 22, including:

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

Dated at Rockville, Maryland this -;i...9 ~ day of ¥11988.

Fqfi the Regulatory Commission.

)