ML20196B670
| ML20196B670 | |
| Person / Time | |
|---|---|
| Issue date: | 11/18/1998 |
| From: | Mcgaffigan E NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20196B643 | List: |
| References | |
| FRN-63FR71729 AF88-2-025, AF88-2-25, SECY-98-237-C, NUDOCS 9812010160 | |
| Download: ML20196B670 (2) | |
Text
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. A F F I R M A T I O N VOTE RESPONSE SHEET TO: John C. Hoyle, Secretary FROM: COMMISSIONER MCGAFFIGAN
SUBJECT:
SECY-98-237 - FINAL RULE, PART 2, SUBPART J,
" PROCEDURES APPLICABLE TO PROCEEDINGS FOR THE ISSUANCE OF LICENSES FOR THE RECEIPT OF HIGH-LEVEL RADIOACTIVE WASTE AT A GEOLOGIC REPOSITORY" Approved _X Disapproved Abstain Not Participating COMMENTS: :c i
See attached comments.
l Edward McGaffigan, J )
SIGNATURE w, 18 , 199 8 DATE Entered on "AS" Yes '4 No jaga cob $ M bb CORRESPONDENCE PDR '
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Commissioner McGaffigan's Comments on SECY 98-237:
l With one exception, involving the definition of "docum.entary material", I approve the staff's L
recommended final rule and statement of considerations. Iinclude here the FRN's statement (on page 15) that "the NRC intends to undertake a separate rulemaking to ;
amend [62.715] to include federally recognized Native American tribal govemments," and '
the FRN's descriptions of two approaches (on pages 13-15) to funding participants in the l LSN. It is time that we made good use of technological developments since the original promulgation of Subpart J.
I would remove the 4th element Iri the definition of " documentary material"- "any information that is likely to lead to the discovery of relevant material." (See $2.1001;
- . conforming changes would need to be made to the draft statement of considerations.) l
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l- The main argument for including this element is that "it states one of the generally l~ accepted parameters for discovery." It is true that this element, besides conforming to the existing text of Subpart J, tracks closely a long-standing parameter of discovery practice in the Federal District Courts. Rule 26(b)(1) of the Federal Rules of Civil Procedures says in part, "The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." However, this District Court Rule and the proposed final definition of " documentary material" operate in quite different contexts. The Rule says what a party is obliged to provide if asked, but
! the definition of " documentary material" helps define what a party must provide -without
! I being asked. It is not too difficult to apply Rule 26(b)(1) to a finite and usually reasonably small set of requests and deduce what one's obligations are, but I do not see how a party to a repository licensing can reasonably be expected to usefully distinguish among vast amounts of material just that information that is likely to lead to the discovery of relevant material. It is far more likely that parties will burden the system and themselves with every document around than that they will be able to use the 4th element of the definition to distinguish one thing from another. The Chairman's proposed revision of this language j has the virtue of making the implicit explicit, but it does not remove the difficulty I see.
The proposed rule recognized that the system for electronic availability of documentary
, material could not contain everything. The proposed rule accordingly contained a narrowed definition of " documentary material" that focused on the important material (see pages 3-5 of the draft FRN attached to SECY 97-154). The arguments the staff then made for the narrower definition are still good and should be reinstated in the FRN for the final rule. During drafting of the proposed rule, the ASLBP argued for restoration of the breadth of the existing definition, or, in the alternative, some medium expansion of the existing definition. In my vote on the proposed rule, I adopted the medium expansion, which consists of the first three elements of the draft final definition before us (amended
- slightlyin light of comments received). That expanded definition, together with the great detail required by 92.1003, should feed the system with what is likely to be a great deal more information than can reasonably be digested and put to good use. I see no need for
, . more.
l Last, I note, and agree with, the staff's comment (on page 6 of the SECY paper) that, if
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the Commission eventually makes changes in the hearing process for high level waste disposal, the regulations that are the subject of this rulemaking will need to be revisited.
L Ud
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