ML19351F096
| ML19351F096 | |
| Person / Time | |
|---|---|
| Issue date: | 12/10/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Ahearne J, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19351F095 | List: |
| References | |
| FRN-44FR70408, FRN-45FR31393, REF-10CFR9.7, RULE-PR-60 NUDOCS 8012290479 | |
| Download: ML19351F096 (3) | |
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UNITED STATE.S fm 0,
NUCLEAR REGULATORY COMMISSION
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gg WASHINGTON D. C. 20555 h
December 10, 1980 e
MEMORANDUM FOR:
Chairman Ahearne CommissionerGilknsky Commissioner Hendrie /J.M.
Commissioner Bradford,P.A FROM:
Leonard Bickwit, Jr., General Counsel
SUBJECT:
FINAL RULE -- 10 CFR PART 60 -
" DISPOSAL OF EIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES" LICENSING PROCEDURES Staff has requested that you approve publication of the final rule to be codified as dae.part of 10 CFR Part 60 " Disposal of High-Level Radioactive Waste in Geologic Repositories" dealing with licensing procedures.
We believe that the fol-lowing legal issues associated with the Staff proposal require Commission consideration.
1 NRC Deference to DOE on Common Defense and Security Matters l
Section 60.37(b) would provide that before issuing a construc-tion authorization to DOE, NRC would have to find reasonable assurance that DOE's activities will not be inimical to the common defense and security.
Section 60.32(a) would expli-citly authorize the NRC to include in a DOE license conditions necessary for protection of the common defense and security.
However, Staff believes that the NRC may rely on DOE to protect the common defense and security because the legisla-l tive history of the Energy Reorganization Act shows that l
NRC's role is limited to protection of the public health and j
safety.
See Staff Response to Comment 59, Appendix B,
- p. 44,
[
Rule Preamble, pg. 15.
Consequently, Staff does not intend to perform a substantive review of DOE's proposed activities for the purposes of protecting common defense and security.
The legal concept that NRC must defer to DOE on all common defense and security matters was explored and rejected in connection.with the Commission decision in the clearance rule proceeding.
In our view, complete reliance on DOE would not I
Contact:
Martin G. Malsch, OGC x41465 Sheldon L.
Trubatch, OGC x43224 8012290
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"he Commissioners Decembar 10, 1980 c
he consistent with the NRC's licensing responsibilities under the Energy Reorganization Act and Atomic Energy Act.
Although.
Congress may have been more concerned with public health and safety at the time it enacted the Energy Reorganization Act, that Act did not abrogate NRC responsibility for protecting common defense and security with regard to licenseable DOE waste disposal activities.
Accordingly, we believe that the Statement of Consideration and Comment Analysis should be amended to delete Staff's statement of reliance on DOE in these matters.
If the Commission believes that common defense and security matters warrant special treatment, we suggest that the rule be amended to provide for certification to the Commission prior to litigation of common defense and security issues.
2.
Alternative sites In numerous places staff specifically disavows use of the Atomic Energy Act as a source of legal authority for request-ing information on alternative sites.
See Rule Preamble, p. 8; Staff Responses to Comments 13, 28, 33, Appendix B, pp.
8, 20, 24; Analysis of State Planning Council Comments, pg. 11.
There are no judicial decisions daat would preclude NRC from relying on the Atomic Energy Act as authority for considering alternatives to mitigate radiological safety impacts.
- Moreover, use of the Atomic Energy Act would make logical sense to the extent Chat the safety review of proposed repository sites focuses on maximizing the use of sito geology as a barrier to the spread of radionuclides as opposed to measuring the site against fixed quantitative standards.
We would prefer language that would at least preserve the argument that the Atomic Energy Act may serve as a source of authority.
At the last Commission meeting there was some discussion of site " banking".
See Transcript pp. 68-72.
Staff stated that the intent of the rule was that once the minimum number of sites were characterized for purposes of filing an initial application, subsequent applications could be filed for other sites on the initial list without characterizing any additional l
sites.
We believe that such a practice could violate NEPA if carried to the logical end of permitting applications to be filed for all " acceptable" sites within the original slate If the without any further consid3 ration of alternatives..
l Commission wishes to avoid sequential alternative site reviews, we suggest that the minimum number of sites to be characterized i
l
3-December 10, 1980 The Commissioners
.be selected with a specific view toward two or dhree, rather than ene repository application.
In this way
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the initial alternative site review would provide UEPA support for the " program" of several secuential repository applications over the course of some years.
Even if this were done, however,_ additional alternatives would need to be considered if significant new information were to develop.
3.
Mature of Construction Authorization Since the license contemplated by Section 202 of the Energy Reorganization Act is a materials license and not a production or utilization facility license, a
construction authorization is not, strictly speaking, a license of the type contemplated by the Atomic Energy Act.
See Staff Response to Cocment 99, Enclosure B, pg. 67.
Thus,.as presently drafted, the conforming amendments to Parts 20 and 21 would not subject DOE to these regulations until issuance of a license to store and dispose of nuclear materials at the repository.
However, the rule is ambiguous whether the enforcement provisions of subpart B of 10 CFR Part.2_ apply to DOE af ter it has received a construction authorization but before it has received a repository license. "We suggest that the regulations be clarified to indicate the extent which the provisions of subpart 3 of Part 2 apply to DOE once DOE has received a construction authorization.
The Commission should realize in this regard that while "violatien" of a construction authorization could lead to ultimate denial of the license to store and dispose of wastes, it could not lead to certain enforcement actions under subpart 3 such as. civil penalties.
l l
Finally, 10 CFR Part 60 is presently draf ted so that l
the notice of hearing on the application that requests construction authorization initiates a licensing proceeding -
j that is not finally terminated until final HRC~ action on the license to store and dispose of. wastes -in the.
repository.
This means that a formal adjudicatory l
proceeding, with a presiding atomic safety and : licensing board and application of the ex carte rules, will be l
pending all during repository construction.
.This l
result appears to flow from the nature of the.one-step j
materials licensing process.
However, odner forms of l
proceeding may be possible and we would be willing to l
discuss Ebis more with OELD if the Commission is interested in pursuing some different direction.
l cc:
OPE.
SECY EDO ELD
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