[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Notices]
[Pages 40681-40687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15172]
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NUCLEAR REGULATORY COMMISSION
Regulatory Guide; Issuance, Availability
The U.S. Nuclear Regulatory Commission (NRC) has issued a revision
to a guide in its Regulatory Guide Series. This series has been
developed to describe and make available to the public such information
as methods acceptable to the NRC staff for implementing specific parts
of the NRC's regulations, techniques used by the staff in its review of
applications for permits and licenses, and data needed by the NRC staff
in its review of applications for permits and licenses.
The NRC has issued Revision 1 to Regulatory Guide 3.69, ``Topical
Guidelines for the Licensing Support Network,'' which provides guidance
acceptable to NRC Staff regarding the scope of documentary material
that should be identified in or made available via the Licensing
Support Network (LSN). The original version of this regulatory guide
was published on September 19, 1996 (61 FR 49363). The LSN is an
electronic information system that makes relevant documentary material
available (via the Internet at http://www.lsnnet.gov) to parties,
potential parties, and interested governmental participants in the
adjudicatory proceeding on an application for a license to receive and
possess high-level radioactive waste at a geologic repository
operations area. The LSN facilitates document discovery similar to that
available in NRC licensing proceedings. A proposed draft revision 1 of
Regulatory Guide 3.69 (DG-3022) was made available for comment on July
2, 2002 (67 FR 44478). The proposed revision modified the topical
guidelines to be consistent with the license application content
specified in 10 CFR Part 63, ``Disposal of High-Level Radioactive
Wastes in a Geologic Repository at Yucca Mountain, Nevada,'' (66 FR
55732, November 2, 2001), the structure of proposed Revision 2 of the
``Yucca Mountain Review Plan,'' NUREG-1804, published for comment on
March 29, 2002 (67 FR 15257), the topics in the U.S. Department of
Energy's ``Final Environmental Impact Statement for a Geologic
Repository for the Disposal of Spent Nuclear Fuel and High-Level
Radioactive Waste at Yucca Mountain, Nye County, Nevada,'' dated
February 2002, and the topics in Draft NUREG-1748, ``Environmental
Review Guidance for Licensing Actions Associated with NMSS Programs,''
dated August 2001. The comment period for proposed Revision 1 of
Regulatory Guide 3.69 (DG-3022) closed September 30, 2002.
This revision also reflects modifications made in response to
comments and a recently issued change to 10 CFR 2.1005, which excludes
``Correspondence between a potential party, interested governmental
participant, or party and the Congress of the United States'' from
documentary material to be identified in or made available via the LSN.
See ``Licensing Proceeding for a High-Level Radioactive Waste Geologic
Repository; Licensing Support Network, Submissions to the
[[Page 40682]]
Electronic Docket,'' 69 FR 32836 (June 14, 2004). Minor editorial
changes were also made.
Comments and suggestions in connection with items for inclusion in
guides currently being developed or improvements in all published
guides are encouraged at any time. Written comments may be submitted to
the Rules and Directives Branch, Division of Administrative Services,
Office of Administration, U.S. Nuclear Regulatory Commission,
Washington DC 20555. Questions on the content of this guide may be
directed to Mr. Jeffrey A. Ciocco, (301) 415-6391, e-mail [email protected].
Regulatory guides are available for inspection or downloading at
the NRC's Web site at www.nrc.gov under Regulatory Guides and in NRC's
Electronic Reading Room (ADAMS System) at the same site. Single copies
of regulatory guides may be obtained free of charge by writing the
Reproduction and Distribution Services Section, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-001, or by fax to (301) 415-2289, or
by e-mail to [email protected]. Issued guides may also be purchased
from the National Technical Information Service (NTIS) on a standing
order basis. Details on this service may be obtained by writing NTIS at
5285 Port Royal Road, Springfield, VA 22161; telephone 1-800-553-6847;
http://www.ntis.gov. A copy of the Yucca Mountain Review Plan, NUREG-
1804, Revision 2, Final Report, is also available for inspection, and
copying for a fee, in NRC's Public Document Room, One White Flint
North, Public File Area, O-1F21, 11555 Rockville Pike, Rockville,
Maryland. Regulatory guides are not copyrighted, and Commission
approval is not required to reproduce them.
In preparing Revision 1 of Regulatory Guide 3.69, ``Topical
Guidelines for the Licensing Support Network,'' NRC Staff reviewed and
considered all the comments received during the public comment period
from eight commenters:
Commenters
(1) A.S. Hunjan, India.
(2) Board of County Commissioners, Lincoln County, Nevada,
(submitted on behalf of Lincoln County and the City of Caliente).
(3) Eureka County, Nevada.
(4) Nuclear Energy Institute.
(5) Exelon Generation, Warrenville, Illinois.
(6) State of Nevada.
(7) CP&L and Florida Power, Raleigh, North Carolina.
(8) U.S. Department of Energy.
Commenter: A.S. Hunjan, India
Comment 1. The commenter recommended that the definition of
``document,'' in the third paragraph of Section A, ``Introduction,'' of
the regulatory guide, be revised to include optical media, because
magnetic media are included in this definition.
Response 1. The definition of ``document'' in the regulatory guide
is quoted from 10 CFR 2.1001, ``Definitions.'' It is not necessary to
add optical media to this definition because optical media are
encompassed by the words ``'or other documentary material, regardless
of form or characteristic.''
Comment 2. The commenter recommended that Item 1.1, ``General
Description,'' under Section C, ``Topical Guidelines,'' include the
position of the facility with respect to the site.
Response 2. The topics in Sections C.1 and C.2 of the regulatory
guide are the subjects listed in the ``Table of Contents,'' of NUREG-
1804, ``Yucca Mountain Review Plan,'' Revision 2, dated July 2003
(hereafter ``Yucca Mountain Review Plan''), which the NRC Staff would
use to review an application for a high-level waste repository at Yucca
Mountain, Nevada, submitted under 10 CFR Part 63. The topical
guidelines identify a list of general topics for documentary materials
related to the adjudicatory proceeding on a license application for a
geologic repository at Yucca Mountain, Nevada. Information on the
location of facilities for a high-level waste repository is addressed
in the Yucca Mountain Review Plan and is encompassed by the topics
listed in Section C of the ``Topical Guidelines.'' Additional detail is
not necessary.
Comment 3. The commenter recommended that Item 1.2, ``Proposed
Schedules for Construction, Receipt, and Emplacement of Waste,'' under
Section C, ``Topical Guidelines,'' include the basic attributes of the
spent fuel (such as chemical form, date of removal from reactor, burnup
at date of removal).
Response 3. The topics in Sections C.1 and C.2 of the regulatory
guide are the subjects listed in the ``Table of Contents'' of the Yucca
Mountain Review Plan, which the NRC Staff would use to review an
application for a high-level waste repository at Yucca Mountain,
Nevada. The ``Topical Guidelines'' identify a list of general topics
for documentary materials relevant to an adjudicatory proceeding on a
license application for a geologic repository at Yucca Mountain,
Nevada. Information on the basic attributes of the spent fuel is
addressed in the Yucca Mountain Review Plan and is encompassed by
Section C of the ``Topical Guidelines.'' Additional detail is not
necessary.
Comment 4. The commenter recommended that Item 1.3, ``Physical
Protection Plan,'' under Section C, ``Topical Guidelines,'' include the
design basis threat against which the physical protection plan is to be
effective.
Response 4. Sections C.1 and C.2 of the regulatory guide reflects
the structure of the Yucca Mountain Review Plan, which the NRC staff
would use to review an application for a high-level waste repository at
Yucca Mountain, Nevada. The general topics in the ``Topical
Guidelines'' are not intended to identify all the specific information
that would be evaluated during an NRC licensing review. Information on
the physical protection plan is addressed in the Yucca Mountain Review
Plan, which references 10 CFR 73.51, and is encompassed by Item C.1.3
of the ``Topical Guidelines.'' Additional detail is not necessary.
Comment 5. The commenter recommended that Item 2.1.1.2,
``Description of Structures, Systems, Components, Equipment, and
Operational Process Activities,'' under Section C, ``Topical
Guidelines,'' include the facility and individual area layout.
Response 5. The topics in Sections C.1 and C.2 of the regulatory
guide are the subjects listed in the ``Table of Contents'' of the Yucca
Mountain Review Plan, which the NRC Staff would use to review an
application for a high-level waste repository at Yucca Mountain,
Nevada. Information on the facility and individual area layout for a
high-level waste repository is addressed in the Yucca Mountain Review
Plan and is encompassed by Section C of the ``Topical
Guidelines.''Additional detail is not necessary.
Commenter: Board of County Commissioners, Lincoln County, Nevada
(Submitted on Behalf of Lincoln County and the City of Caliente)
Comment 1. The commenter stated that, without additional detail
being provided, it is not clear, in the second paragraph of ``Purpose
of the Regulatory Guide,'' under Section B, ``Discussion,'' how the
regulatory guide might be used by the Pre-License Application Presiding
Officer in evaluating petitions for access to the LSN during the pre-
license application phase under 10 CFR 2.1007. The commenter asked
whether a petition would be evaluated to determine if the petitioner's
issues were
[[Page 40683]]
reflected in the topical content of the LSN.
Response 1. The second paragraph of Section B of the draft
Regulatory Guide (DG-3022) contained a misnumbered reference to an
outdated provision in 10 CFR Part 2, Subpart J, that required
individuals to petition for access to the system that makes documentary
material electronically available. That requirement was deleted as part
of the December 30, 1998 LSN rule (63 FR 71729), which changed from a
central database, Licensing Support System, to a publicly available,
web-based system called the LSN. The cited paragraph has been removed
from Revision 1 of Regulatory Guide 3.69.
Comment 2. The commenter stated that, in the last paragraph of
``Use of the Regulatory Guide,'' under Section B, ``Discussion,'' it is
not clear what the qualifying statement regarding the scope of
transportation-related information is seeking to limit. The commenter
recommended inclusion of one or more examples of transportation-related
information that would be inappropriate for submission to the LSN. The
commenter also asked how the Commission intends to prevent the
submission or inclusion of ``non-relevant'' transportation-related
information if information is not identified as excluded or privileged
under 10 CFR 2.1005 or 2.1006. The commenter asked whether, for
example, U.S. Navy waste stored at the Idaho National Engineering and
Environmental Laboratory would be considered to be from a reactor, from
an independent spent fuel storage facility, or from a monitored
retrievable storage facility. The commenter concluded that this
ambiguity may make consistent adherence to this guidance difficult.
Response 2. Information regarding the impacts of transporting high-
level waste that could be disposed of at Yucca Mountain, Nevada, is
analyzed in the DOE Final Environmental Impact Statement, and is
encompassed by Section C of the ``Topical Guidelines.'' Classified
information (for example, regarding Naval reactor spent fuel) is
excluded from LSN documentary material by 10 CFR 2.1005(g).
The purpose of the ``Topical Guidelines'' is to inform parties,
potential parties and interested governmental participants regarding
documentary material to be identified (by bibliographic header only) or
made available (by image or searchable full text) via the LSN. As the
NRC indicated when revising the definition of documentary material,
non-relevant information could affect the responsiveness and usefulness
of the LSN by cluttering the system with extraneous material (63 FR
71729, 17130, December 30, 1998). Additional detail in the regulatory
guide is not necessary.
Comment 3. The commenter recommended that Item 2.5.7, ``Emergency
Planning,'' under Section C, ``Topical Guidelines,'' be expanded to
include emergency planning and implementation, because, beyond
demonstrating an adequate plan for emergency situations, the applicant
will need to demonstrate that the plan can be implemented and that it
has the capability to implement the plan.
Response 3. The topics in Sections C.1 and C.2 of the regulatory
guide are the subjects listed in the ``Table of Contents'' of the Yucca
Mountain Review Plan, which provides guidance for the NRC Staff review
of an application for a high-level waste repository at Yucca Mountain,
Nevada. The ``Topical Guidelines'' identify a list of general topics
for documentary materials relevant to an adjudicatory proceeding on a
license application for a geologic repository at Yucca Mountain,
Nevada. Information on emergency planning and implementation for the
high-level waste repository is addressed in sections of the Yucca
Mountain Review Plan and is encompassed by the general topics in
Section C of the ``Topical Guidelines.'' Additional detail is not
necessary.
Comment 4. The commenter recommended that the following items be
added to the list in Appendix A, ``Types of Documents,'' to be included
in the LSN:
1. Any U. S. Department of Energy (DOE) draft and final
environmental impact statement preparation plans;
2. Any DOE ``Record of Decision'' relating to any DOE final
environmental impact statement; and
3. Any as-built drawings and specifications for the exploratory
studies facility and any related facilities that may be potentially
converted or modified for use in the permanent geologic repository.
Response 4. The topics in Section C.3 of the regulatory guide are
the subjects listed in the ``Table of Contents'' of DOE's ``Final
Environmental Impact Statement for a Geologic Repository for the
Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at
Yucca Mountain, Nye County, Nevada,'' dated February 2002, which
evaluated the impacts of a potential high-level waste repository at
Yucca Mountain, Nevada. Sections C.1 and C.2 are the subjects from the
table of contents of the Yucca Mountain Review Plan. These general
topics for documentary materials encompass information relevant to an
application for a potential repository at Yucca Mountain, Nevada.
Appendix A, as modified, includes the License Application, published
draft and final environmental evaluations or assessments, as well as
published draft, supplemental, and final environmental impact
statements. Any relevant ``Record of Decision,'' should be identified
in or made available via the LSN (see 10 CFR 2.1003(b)) as part of the
environmental impact statement documentation submitted with the license
application. A ``Record of Decision'' could also be a readily available
reference. See, for example, DOE's ``Record of Decision on Mode of
Transportation and Nevada Rail Corridor for the Disposal of Spent
Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye
County, NV (69 FR 18557, April 8, 2004). Additional detail in the
regulatory guide is not necessary.
Comment 5. The commenter encouraged the Commission to maintain the
listing of ``Information for a Geologic Repository Environmental Impact
Statement'' in Section C, ``Topical Guidelines,'' and to urge the
submission of such information.
Response 5. The regulatory guide still retains the stated
information.
Commenter: Eureka County, Nevada
Comment 1. The commenter stated that the language of the second
paragraph of ``Purpose of the Regulatory Guide,'' under Section B,
``Discussion,'' is unclear and should be clarified. The commenter asked
whether not following the ``Topical Guidelines'' may be grounds for
disqualification as a participant and stated that ``access to the LSN''
is confusing terminology. The commenter opined that a participant in
Yucca Mountain licensing hearings must first be certified by the LSN
Administrator based on the function and conformity of a Web site with
Commission LSN guidelines rather than on the content of the documents.
If the intent is to allow the judge to disqualify potential parties
based on the ``Topical Guidelines,'' the commenter recommended that
this be clearly stated.
Response 1. Under 10 CFR 2.1009(b), a responsible official of an
LSN participant must certify to the Pre-License Application Presiding
Officer (not the LSN Administrator) that, among other things,
procedures implementing the requirements to make documentary material
available (10 CFR 2.1003) have been implemented. As stated in response
to Comment 1, above, from Lincoln County, the second paragraph of
Section B pertained to an outdated
[[Page 40684]]
regulation in 10 CFR Part 2, Subpart J, that required individuals to
petition the Pre-license Application Presiding Officer for access. That
requirement was deleted in 1998 (63 FR 71729, December 30, 1998) with
the change from a central database to a publicly available, web-based
LSN. The cited paragraph has been removed from Revision 1 of Regulatory
Guide 3.69.
Comment 2. The commenter noted that the terms ``draft and final
environmental assessments,'' used in Item 8.1 of Appendix A, ``Types of
Documents,'' to be included in the LSN are specific terms in the
National Environmental Policy Act (NEPA). The commenter requested
clarification as to whether these terms refer only to NEPA-defined
environmental assessments or more broadly to all environmental reviews.
If the latter, the commenter suggested using the term ``environmental
reviews.''
Response 2. Item 8.1 is now Item 7.1 of Appendix A due to the
removal of former Item 7, ``Congressional questions and answers,''
consistent with the exclusion of Congressional correspondence from LSN
documentary material, effective July 14, 2004 (69 FR 32836, June 14,
2004).This item encompasses published environmental documentation
related to a geologic repository at Yucca Mountain, Nevada. For
clarity, the category ``draft and final environmental assessments'' has
been expanded to include draft and final environmental evaluations or
assessments that are prepared under the National Environmental Policy
Act (NEPA), 42 U.S.C. 4321 et seq. A new Item 7.7, ``DOE environmental
report,'' has been added to encompass any DOE environmental report that
DOE may decide to submit with its license application.
Comment 3. The commenter noted that Item 8.8 of Appendix A, ``Types
of Documents To Be Included in the Licensing Support Network,'' refers
only to DOE's environmental impact statements. The commenter
recommended revision to allow for environmental impact statements not
generated by DOE, including those generated by other Federal agencies,
such as land-use environmental impact statements produced by the U.S.
Department of Interior, Bureau of Land Management and U.S. Department
of Defense-generated environmental impact statements that might pertain
to the topic.
Response 3. Item 8.8 (now Item 7.9) of Appendix A encompasses any
published draft or final environmental impact statements related to a
license application for a geologic repository at Yucca Mountain,
Nevada. The text of Revision 1 of Regulatory Guide 3.69 has been
modified accordingly.
Commenter: Nuclear Energy Institute
Comment 1. The commenter recommended the addition of a clear
statement of purpose for this guidance, because the currently stated
purpose ``to provide a list of the topics for which Licensing Support
Network participants should submit documentary materials;'' is not
sufficient. The commenter stated that the regulatory guide needs to
clearly describe at least one method that, if followed by participants
in the Yucca Mountain licensing process, will meet LSN requirements.
The commenter also provided several suggested wording changes,
including those described in the following two comments, to accomplish
this objective.
Response 1. The purpose of the regulatory guide is to provide
guidance on the scope of material that should be identified in or made
available via the LSN. The regulatory guide contains references to 10
CFR Part 2, Subpart J, and includes quotes from regulations defining
documentary material (10 CFR 2.1001), excluded material (10 CFR 2.1005)
and privileged material (2.1006). The purpose statement in the
regulatory guide has been modified to clarify that it lists topics of
documentary material that LSN participants should identify or make
available via the LSN. Additional detail regarding LSN requirements is
not necessary.
Comment 2. The commenter recommended the deletion of the second
paragraph of ``Purpose of the Regulatory Guide,'' under Section B,
``Discussion,'' because the currently stated additional use of the
regulatory guide ``* * * in evaluating petitions for access'' is not
supported by guidance regarding the identification of relevant types of
documentary material for inclusion in the LSN. The commenter stated
that, if the Commission believes that guidance concerning access to the
LSN is necessary, it should promulgate separate guidance specifically
focused on that purpose.
Response 2. As stated in response to Comment 1 above from Lincoln
County, the second paragraph of Section B addressed an outdated
regulation in 10 CFR Part 2, Subpart J, that required individuals to
petition the Pre-license Application Presiding Officer for access. That
requirement was deleted with the 1998 rule (63 FR 71729, December 30,
1998) with the change from a central database to a publicly available,
web-based LSN. The cited paragraph has been removed from Revision 1 of
Regulatory Guide 3.69.
Comment 3. The commenter recommended that the last sentence of the
second paragraph of ``Use of the Regulatory Guide,'' under Section B,
``Discussion,'' be deleted, because the statement is too broad and
contradicts the purpose of the guidance. The commenter suggested that
inclusion in the LSN of other documents related to topics in the Yucca
Mountain Review Plan and the DOE Yucca Mountain Final Environmental
Impact Statement defeats the purpose of providing guidance on what
types of documents relating to these topics should be included.
Response 3. The last sentence of the second paragraph of ``Use of
the Regulatory Guide'' indicates that Appendix A lists document types
to be identified in or made available via the LSN, but is not
exhaustive. That sentence has been revised to indicate that LSN
documentary material should include material ``relevant'' to the topics
listed in Section C of the regulatory guide.
Comment 4. The commenter recommended restructuring the regulatory
guide so that it provides specific guidance that will aid participants
in determining what should (and should not) be included in the LSN. The
commenter provided specific recommendations for accomplishing this
restructuring, including reorganizing, relocating, and renaming various
sections of the regulatory guide.
Response 4. The structure of the regulatory guide is consistent
with NRC Staff guidance on the format and content of regulatory guides.
Additionally, Section C of the regulatory guide reflects both the
structure and content of the Yucca Mountain Review Plan, DOE's Final
Environmental Impact Statement, and NUREG-1748, ``Environmental Review
Guidance for Licensing Actions Associated with NMSS Programs,'' dated
August 2003. The regulatory guide identifies the scope of documentary
material to be identified in or made available via the LSN. The
suggested revisions are not necessary.
Comment 5. The commenter recommended clarifying the distinction
between preliminary (or pre-decisional) and final (or post-decisional)
documentary material. The commenter also recommended providing specific
guidance for assessing relevance for each type of information because a
different test of relevance may apply at different points in a
participant's decision-making process. The commenter provided specific
suggestions for reorganizing, relocating, and renaming various sections
of the
[[Page 40685]]
regulatory guide, as well as additional provisions regarding levels of
authority, levels of formality, and the time frame during which
preliminary information is relevant to the hearing process.
Response 5. Traditional uses of the term ``pre-decisional'' and
``post-decisional'' under NRC and Federal case law would apply in the
licensing proceeding. In addition, in issuing recent changes to 10 CFR
Part 2, Subpart J, the NRC indicated that ``reliance'' information
(i.e., information an LSN participant intends to rely on and/or cite in
support of its position, or information it possesses or develops that
is contrary to that position) is difficult to identify prior to the
filing of contentions in a proceeding. See ``Licensing Proceeding for a
High-Level Radioactive Waste Geologic Repository; Licensing Support
Network, Submissions to the Electronic Docket,'' 69 FR 32836, 32843
(June 14, 2004).
The regulatory guide provides guidance on the general scope of
documentary material to be identified in or made available via the LSN.
The suggested revisions relating to relevance, levels of authority,
levels of formality, and time frames are not necessary.
Comment 6. The commenter recommended clarifying that only
information that has some nexus to the license application need be
included in the LSN, and that examples be provided to guide
participants in determining when such a nexus exists.
Response 6. Revision 1 of Regulatory Guide 3.69 contains the 10 CFR
2.1001 definition of ``documentary material'' to be identified in or
made available via the LSN. That definition also includes two
categories of ``reliance'' information as discussed in the previous
comment response. No further clarification is necessary.
Comment 7. The commenter stated that its separate comments on the
``Yucca Mountain Review Plan'' should also be taken into account when
making changes to the regulatory guide, including comments that could
result in a change to the outline of the Yucca Mountain Review Plan.
The commenter also noted that the outline of the ``Table of Contents''
from the Yucca Mountain Review Plan (Sections C.1 and C.2 of the
``Topical Guidelines'') and the outline from the ``Table of Contents''
of the DOE ``Yucca Mountain Environmental Impact Statement'' in Section
C.3 of the ``Topical Guidelines'' could be replaced with references to
these two documents to make it easier to update one document without
the need to revise the others.
Response 7. Any structural changes made to the Yucca Mountain
Review Plan in response to public comments have been incorporated in
Revision 1 of Regulatory Guide 3.69. In the interest of completeness
and making the regulatory guide easy to use, however, text from the
table of contents of the ``Yucca Mountain Review Plan'' and the DOE
Final Environmental Impact Statement has been retained.
Commenter: Exelon Generation, Warrenville, Illinois
Comment. The commenter stated that it is essential that the
regulatory guide be as clear and unambiguous as possible in
establishing the scope and content of the LSN. The commenter provided
comments to the Nuclear Energy Institute and strongly endorses the
comments submitted by the Nuclear Energy Institute.
Response. Section B of the regulatory guide has broad topics to
encompass information that may bear on a party's position in the
licensing proceeding or on a license application for a geologic
repository issues. Additional detail is not necessary.
Commenter: State of Nevada
Comment 1. The commenter stated that several pending actions may
further define the appropriate topics for LSN documentary material.
These actions include pending litigation relating to the content of 10
CFR Part 63, a petition for rulemaking with respect to the content of
10 CFR Part 63, State of Nevada comments regarding the draft Yucca
Mountain Review Plan (NUREG-1804), State of Nevada reply comments to
the DOE comments on the draft Yucca Mountain Review Plan, and
litigation challenging the content and scope of the final DOE Yucca
Mountain environmental impact statement. The commenter stated that the
``Topical Guidelines'' should be expanded to incorporate shortcomings
specifically addressed by the State of Nevada in each of actions listed
above regarding the scope of the licensing proceeding. The commenter
also indicated that five additional comments are made without waiving
its position in any of the pending actions and with the understanding
that the draft regulatory guide, as well as 10 CFR Part 63, NUREG-1804,
or the DOE Final Environmental Impact Statement on Yucca Mountain
should be expanded or modified to incorporate those subject areas that
are ultimately deemed meritorious in the pending litigation.
Response 1. Subsequent to receipt of the comment, the State of
Nevada petition for NRC rulemaking regarding 10 CFR Part 63 was denied
(68 FR 9023, February 27, 2003). Federal litigation on 10 CFR Part 63
and on the DOE Final Environmental Impact Statement is still pending.
The NRC will make appropriate changes to its regulations or guidance,
if required, as a result of the outcome of such litigation.
Comment 2. The commenter stated that the second paragraph of
``Purpose of the Regulatory Guide,'' under Section B, ``Discussion,''
refers to the Pre-License Application Presiding Officer using the
regulatory guide in evaluating petitions for access to the LSN. The
commenter recommended deletion of this paragraph because it is not
relevant to the current LSN rule.
Response 2. As previously noted in response to other commenters,
the second paragraph of Section B, ``Discussion,'' of the draft
regulatory guide, which referred to an outdated regulation, has been
removed from Revision 1 of Regulatory Guide 3.69.
Comment 3. The commenter stated that Sections C.1 and C.2 of the
``Topical Guidelines'' track the ``Table of Contents'' of the draft
Yucca Mountain Review Plan and stated that this is an acceptable and
efficient approach. The commenter requested that, when the Yucca
Mountain Review Plan becomes final, the regulatory guide should be
reviewed and, if necessary, revised, to remain consistent with that
guidance document.
Response 3. Revision 1 of the Regulatory Guide 3.69 is consistent
with the content of NUREG-1804, ``Yucca Mountain Review Plan,''
Revision 2, dated July 2003.
Comment 4. The commenter noted that Section C.3 of the Regulatory
Guide tracks the ``Table of Contents'' of the DOE ``Yucca Mountain
Environmental Impact Statement'' and is consistent with the
Commission's draft ``Environmental Review Guidance for Licensing
Actions Associated with NMSS Programs'' (NUREG-1748). The commenter
stated that this is an acceptable and efficient approach,
notwithstanding the State of Nevada challenge to certain aspects of the
legality of the DOE Yucca Mountain environmental impact statement. The
commenter requested that the regulatory guide be reviewed for
consistency with NUREG-1748 when NUREG-1748 becomes final.
Response 4. The environmental topical guidelines in Section C.3 of
Revision 1 of Regulatory Guide 3.69 are based on the DOE Final
Environmental Impact Statement and are consistent with the content of
NUREG-1748, ``Environmental Review Guidance for
[[Page 40686]]
Licensing Actions Associated with NMSS Programs,'' dated August 2003.
Comment 5. The commenter suggested that the third level headings
from the ``Table of Contents'' of the DOE Final Environmental Impact
Statement on Yucca Mountain be added to the first and second levels now
in the draft revision of the regulatory guide.
Response 5. Section C.3 of the regulatory guide reflects the
structure of the ``Environmental Review Guidance for Licensing Actions
Associated with NMSS Programs'' (NUREG-1748). The ``Topical
Guidelines'' are not intended to identify all the specific information
that would be evaluated by NRC Staff during a licensing review. Rather,
the ``Topical Guidelines'' identify categories of documentary material
that should be identified in or made available via the LSN and is
sufficiently detailed to encompass the suggested topics.
Comment 6. The commenter stated that Item 8.8 of Appendix A,
``Types of Documents To Be Available Via the Licensing Support
Network,'' should not be limited to environmental impact statement
materials developed by DOE, because there are other agency
environmental impact statements (similar to the environmental
assessments of Item 8.1) that could be included in the LSN.
Response 6. Item 8.8 (now Item 7.9) of Appendix A encompasses any
published draft or final environmental impact statements prepared under
NEPA. The text of the Revision 1 of Regulatory Guide 3.69 has been
modified to delete the word ``DOE'' to clarify that all relevant
environmental documents are encompassed by Section C.3 of the ``Topical
Guidelines.''
Commenter: CP&L and Florida Power, Raleigh, North Carolina
Comment 1. The commenter stated that the purpose of the regulatory
guide should be clearly stated and supported with examples of types of
documents that should be included in the LSN.
Response 1. The purpose of the regulatory guide is to provide
guidance on the scope of documentary material that should be identified
in or made available via the LSN. Appendix A already provides examples
of types of documents that are encompassed. No additional detail is
necessary.
Comment 2. The commenter stated that the regulatory guide should be
consistent with the latest revision of the ``Yucca Mountain Review
Plan'' (NUREG-1804).
Response 2. Revision 1 of Regulatory Guide 3.69 is consistent with
the content of NUREG-1804, ``Yucca Mountain Review Plan,'' Revision 2,
dated July 2003.
Comment 3. The commenter endorses the comments submitted by the
Nuclear Energy Institute.
Response 3. This comment is addresses in the above responses to
Nuclear Energy Institute comments on the regulatory guide.
Commenter: U.S. Department of Energy
Comment 1. The commenter recommended that the term ``potentially''
be deleted from the last sentence of the first paragraph of Section A,
``Introduction,'' which states that the LSN is being designed and
implemented to provide for the entry of and access to potentially
relevant licensing information. The commenter stated that, although
this term was used previously in conjunction with the LSN, it is not
used in the current 10 CFR 2.1001 definition of documentary material.
Response 1. The phrase ``potentially relevant licensing
information'' has been replaced with the phrase ``relevant documentary
material,'' consistent with changes made to 10 CFR 2.1001 in 1998, when
the Commission adopted the current definition of ``documentary
material.'' In issuing that rulemaking, it was noted that the term
``documentary material'' defines the body of material that will be
important for and relevant to the licensing proceeding. See 63 FR
71729, 71730 (December 30, 1998).
Comment 2. The commenter recommended that the first sentence of the
first paragraph of ``Use of the Regulatory Guide'' under Section B,
``Discussion,'' be modified to add the term ``draft'' before the
reference to the ``Yucca Mountain Review Plan'' (NUREG-1804) to more
accurately represent the current status of the ``Yucca Mountain Review
Plan.''
Response 2. Revision 1 of Regulatory Guide 3.69 is consistent with
the content of NUREG-1804, ``Yucca Mountain Review Plan,'' dated July
2003, which was issued after this comment was received.
Comment 3. The commenter recommended that the third sentence of the
second paragraph of ``Use of the Regulatory Guide,'' under Section B,
``Discussion,'' be modified, for clarity and consistency, to read:
``Types of documents not included in Appendix A should also be included
in the LSN if they are relevant to a topic in Section C of this
regulatory guide.''
Response 3. The suggested word changes were made to the third
sentence of the second paragraph of ``Use of the Regulatory Guide''
under Section B, ``Discussion,'' to clarify the scope of LSN
documentary material. The regulatory guide was also modified to reflect
that under 10 CFR 2.1003 documentary material is either identified (by
bibliographic header information only) or made available (in image or
searchable full text) via the LSN.
Comment 4. The commenter noted that the last paragraph of ``Use of
the Regulatory Guide,'' under Section B, ``Discussion,'' addresses
information to be included for a geologic repository environmental
impact statement, and that the last sentence states that ``* * * [o]nly
information on transportation of high-level waste from a reactor, from
an independent spent fuel storage facility, or from a monitored
retrievable storage facility to a repository should be included under
the transportation topical guideline.'' The commenter stated that it is
not clear from this statement what information is meant to be included
in the LSN. The commenter requests further clarification of this
statement and guidance from the Commission on the type of information
to be included in the LSN regarding transportation of high-level waste
and spent nuclear fuel to a repository at Yucca Mountain, Nevada. The
commenter further stated that such clarification would be useful,
particularly with respect to interpreting the guidance in Item C.3.6 of
the ``Topical Guidelines,'' which identifies environmental impacts from
transportation as a topic of information to be included in the LSN.
Response 4. Section C of the regulatory guide reflects the
structure of the Yucca Mountain Review Plan, the DOE Final
Environmental Impact Statement, and NUREG-1748, ``Environmental Review
Guidance for Licensing Actions Associated with NMSS Programs.'' These
documents and the regulations in 10 CFR Parts 51 and 63 indicate the
scope of transportation information encompassed by the various
``Topical Guidelines.'' Consequently, the last sentence of the last
paragraph of ``Use of the Regulatory Guide,'' under Section B,
``Discussion,'' has been deleted from Revision 1 of Regulatory Guide
3.69.
Comment 5. The commenter noted that Sections C.1 and C.2 of the
``Topical Guidelines,'' appear to mirror the ``Table of Contents'' of
the draft ``Yucca Mountain Review Plan'' and the draft ``Yucca Mountain
Review Plan,'' and that Section B, ``Discussion,'' states that the
``Topical Guidelines'' have been kept broad and at a fairly high level
of detail. The commenter recommended that the more detailed
subcategories (e.g., 2.1.1.5.1 and 2.2.1.3.1) of Section
[[Page 40687]]
C of the ``Topical Guidelines'' be deleted for consistency with the
more general categories in the document. The commenter stated that
deleting many of the subcategories would not detract from the scope of
the topics to be included in the Licensing Support Network, because the
regulatory guide makes clear that ``* * * the user should consider each
topic to be inclusive rather than exclusive with regard to documents
germane to that topic. * * *'' The commenter also stated that
maintaining the ``Topical Guidelines'' at a high level of detail
provides flexibility to all parties or potential parties to the
proceeding to include documents in a broad sense, and not to be
constrained by detailed subtopics that may change in the final ``Yucca
Mountain Review Plan.''
Response 5. Section C of the regulatory guide reflects the
structure of Revision 2 of the ``Yucca Mountain Review Plan,'' dated
July 2003. Detailed subcategories such as 2.1.1.5.1 and 2.2.1.3.1 refer
to 10 CFR Part 63 requirements, are consistent with the level of detail
in other areas, and provide explanatory information useful to the
reader. The suggested deletion is not necessary.
Comment 6. The commenter stated that Section C.3 of the ``Topical
Guidelines'' appears to mirror the ``Table of Contents'' of the DOE
Yucca Mountain environmental impact statement, including several
subcategories of information. The commenter recommended that many of
the subcategories could be deleted without impacting the scope or
topics of documentary material to be included in the LSN.
Response 6. Section C.3 of the regulatory guide provides a listing
of environmental impact statement topics. This is consistent with the
level of detail in Sections C.1 and C.2, which are based on the Yucca
Mountain Review Plan, and other areas of the regulatory guide. The
subcategories provided useful information and no deletion is necessary.
Comment 7. The commenter recommended that the regulatory guide
explicitly state whether Item 1 of Appendix A, ``Types of Documents To
Be Included in the Licensing Support Network,'' when read together with
the 10 CFR 2.1001 definition of documentary material, should be
interpreted to mean that the requirement to include circulated drafts
in the LSN applies only to circulated drafts related to technical
reports and analyses.
Response 7. Item 1 of Appendix A paraphrases the definition of
documentary material in 10 CFR 2.1001, which requires, in part,
availability of all reports or studies, and all related ``circulated
drafts,'' relevant to both the license application and the Topical
Guidelines in Regulatory Guide 3.69. No further clarification is
necessary.
Comment 8. The commenter stated that several other items in
Appendix A, ``Types of Documents To Be Included in the Licensing
Support Network,'' could be clarified, in addition to the item
described in comment 7 above. Specifically, the commenter noted that
Items 8.12 and 8.13 indicate that public and agency comments on
documents and responses to comments are to be included in the LSN. The
commenter stated that it interprets these items to be specific to those
public and agency comments received by DOE in response to a DOE request
for comments (e.g., comments on the draft Yucca Mountain environmental
impact statement or the Secretary of Energy's consideration of site
recommendation). In addition, the commenter noted that Items 8.16 and
8.17 indicate that DOE project-decision schedules and program-
management documents are to be included in the LSN. The commenter
suggested that further clarification is appropriate to help identify
documents covered by these categories.
Response 8. Items 8.12 and 8.13 (now Items 7.13 and 7.14)
encompasses public comments by agencies, including by the DOE, that are
relevant to the licensing of a repository at Yucca Mountain or bear on
a party's position in the proceeding. The DOE, as the developer of a
potential Yucca Mountain repository, is required by section 114(e) of
the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10134(e), to
prepare a project decision schedule and is in the best position to
identify documents encompassed by Items 8.16 and 8.17 (now Items 7.17
and 7.18). Further clarification is not necessary.
Comment 9. The commenter recommended that the term ``relevant'' be
clarified in the regulatory guide, because it is used in the 10 CFR
2.1001 definition of documentary material and its clarification would
be beneficial to all parties. Because it is the general practice of the
Commission to follow the Federal Rules of Civil Procedure, the
commenter recommended that the term be interpreted in light of Rule 26
of the Federal Rules of Civil Procedure and case law interpreting it.
Response 9. The term ``relevant'' does not need clarification in
the regulatory guide. The regulatory guide includes the 10 CFR 2.1001
definition that was promulgated in 1998 (see 63 FR 71729, 71736-71737,
December 30, 1998). The NRC has previously indicated that relevance is
defined in terms of whether documentary material (1) has any possible
bearing on a party's supporting information or a party's position in a
proceeding or (2) is a report or study that has a bearing on the
license application and any of the Topical Guidelines in Regulatory
Guide 3.69. See 66 FR 29453, 29460 n.3. (May 31, 2001).
Comment 10. The commenter requested additional guidance on how
potentially sensitive documents are to be handled in the LSN, because
10 CFR 2.790 and 10 CFR 2.1003(a)(4)(iii) do not cover all potentially
sensitive information, such as sensitive homeland security information.
Response 10. Subsequent to receipt of this comment, the NRC revised
10 CFR Part 2 (69 FR 2182, January 14, 2004), and 10 CFR 2.790 is now
10 CFR 2.390. The purpose of the regulatory guide is to identify the
scope of documentary that should be identified in or made available via
the LSN. The regulatory guide also indicates that certain documents may
be excluded or withheld from disclosure under 10 CFR 2.1003, 2.1005,
and 2.1006. Under 10 CFR 2.1003(a)(4) documents withheld from
disclosure are to be identified by a LSN bibliographic header only (for
example, safeguards, privileged, or confidential financial
information). No additional guidance is necessary. (5 U.S.C. 552(a))
Dated at Rockville, MD this 23rd day of June, 2004.
For the Nuclear Regulatory Commission.
John W. Craig,
Deputy Director, Office of Nuclear Regulatory Research.
[FR Doc. 04-15172 Filed 7-2-04; 8:45 am]
BILLING CODE 7590-01-P