[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Proposed Rules]
[Pages 62931-62935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25290]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 73, No. 205 / Wednesday, October 22, 2008 /
Proposed Rules
[[Page 62931]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
[Docket No. PRM-2-14; NRC-2007-0011]
State of Nevada; Denial of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for Rulemaking: Denial.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is
denying a petition for rulemaking submitted by the State of Nevada
(Nevada or petitioner). The petition requests that NRC modify its
regulation regarding issues specified for review in a notice of hearing
for the Department of Energy (DOE) application for a high-level waste
(HLW) repository construction authorization at Yucca Mountain, Nevada.
The petitioner asserts that the proposed regulation would ``fill a
gap'' in the NRC's current regulations. Further, petitioner asserts
that the proposed regulation fulfills the Commission's intent when it
first required a hearing for any docketed applications for construction
of a HLW repository. NRC is denying the petition because it is
inconsistent with current NRC rules and inconsistent with the
Commission's intent when it originally established regulations
requiring an opportunity for a hearing for all docketed HLW repository
construction applications.
ADDRESSES: Publicly available documents related to this petition,
including the petition for rulemaking, the comments received, and NRC's
letter of denial to the petitioner may be viewed electronically on
public computers in NRC's Public Document Room (PDR), 01F21, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR
reproduction contractor will copy documents for a fee. Selected
documents may also be viewed and downloaded electronically via the
federal rulemaking Web site at http://www.regulations.gov by searching
Docket ID: [NRC-2007-0011]. For questions about regulations.gov,
contact Carol Gallagher at (301) 415-5905.
Publicly available documents are also available electronically at
the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, the public can gain entry into the NRC's
Agencywide Documents Access and Management System (ADAMS), which
provides text and image files of NRC's public documents. If you do not
have access to ADAMS or if there are problems in accessing the
documents located in ADAMS, contact the PDR reference staff at (800)
387-4209, (301) 415-4737 or by e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Sean Croston, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Mail Stop O15-D21,
Washington, DC 20555-0001, telephone: (301) 415-2585, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Regulatory Background
B. The Petition
C. Public Comments on the Petition
II. Reasons for Denial
A. Recent Amendments to Sec. 2.104
B. Conflict With 10 CFR Part 2, Subpart J
C. Conflict With 10 CFR Part 51
D. Determination of Issues at Hearing
E. Commission's Intent in Issuing Sec. 2.101(e)(8)
III. Conclusion
I. Introduction
On June 19, 2007, the State of Nevada (Nevada) submitted a Petition
for Rulemaking (PRM), docketed as PRM-2-14. The NRC published a Federal
Register notice of receipt for PRM-2-14 on August 29, 2007. See 72 FR
49668. PRM-2-14 asks NRC to amend 10 CFR 2.104, Notice of hearing, one
of the 10 CFR Part 2 rules of practice for licensing proceedings.
A. Regulatory Background
10 CFR 2.101(e)(8) states the Commission's finding that ``a hearing
is required in the public interest, prior to issuance of a construction
authorization'' for a HLW geologic repository. See 46 FR 13974
(February 25, 1981). The proposed facility at Yucca Mountain is a HLW
geologic repository and falls within the scope of Sec. 2.101(e)(8).
Section 2.101(e)(8) also requires the NRC to ``recite the matters
specified in Sec. 2.104(a)'' in the notice of docketing for any such
hearings.
When Nevada filed its petition on June 19, 2007, the former 10 CFR
2.104(a) (2006) set out requirements for notices for hearing, which
included specifying ``the matters of fact and law to be considered.''
For mandatory hearings (hearings required by statute for production or
utilization facility construction permit applications and for licensing
the construction and operation of uranium enrichment facilities), this
regulation effectively required the presiding officer to review
specified matters, even if those matters were not raised by parties in
admitted contentions. After Nevada filed PRM-2-14, the Commission
concluded a prior rulemaking amending Sec. 2.104, which removed all
specified matters from notices for hearing under Sec. 2.104(a). See 72
FR 49412 (August 28, 2007).
B. The Petition
PRM-2-14 would add a new paragraph (f) to 10 CFR 2.104. The
proposed paragraph would apply to hearings on construction
authorizations for HLW geologic repositories, such as the Yucca
Mountain proceeding. Paragraph (f)(2) would order the Atomic Safety and
Licensing Board (ASLB) to independently ``determine'' whether the
application, hearing record, and staff review contain sufficient
information. Paragraph (f)(3) would mandate an independent ASLB review
of compliance with the Nuclear Waste Policy Act of 1982 and 10 CFR Part
51, along with an independent review of environmental and other factors
in the record, before the presiding officer could make a decision on
authorization. Finally, paragraph (f)(4) would reiterate that the ASLB
must make the required determinations regardless of whether the issues
were covered by admitted contentions. Paragraphs (f)(2) and (f)(4) also
state that, in making the required ``determinations,'' the ASLB should
not conduct a de novo review of the application.
Nevada suggests that in the Yucca Mountain hearing, ``the scope of
[the] issues and of [the] required findings by the presiding officer
must extend beyond admitted contentions,'' as is the case in reactor
construction permit hearings. See PRM-2-14 at 4. Nevada argues that in
requiring a hearing for
[[Page 62932]]
HLW geologic repositories, the Commission ``must'' have meant to
require procedures and reviews analogous to those in its reactor
construction permit hearings, ``because otherwise, [NRC's] decision to
hold a mandatory hearing would be nothing more than an empty gesture.''
Id. Nevada also comments that it would be inappropriate to allow the
staff, rather than the Commission, to specify the scope of issues for
the Yucca Mountain hearing.
C. Public Comments on the Petition
The NRC received two comments on the petition. A comment submitted
by the Nevada Nuclear Waste Task Force, Inc. (NNWTF) supported the
petition. The NNWTF asserted that NRC hearings often fail to cover
``many important safety and environmental issues.'' The NNWTF also
claimed that mandatory reviews of uncontested issues would ``provide an
independent check on the NEPA and safety decisions of the NRC Staff,
whose conclusions on uncontested issues would otherwise escape any
meaningful and public review.'' On the other hand, a comment submitted
by the Department of Energy (DOE) opposed the petition. The DOE argued
that the petition was late and unnecessary in light of recent
amendments to 10 CFR 2.104, and would impose greater requirements for
the Yucca Mountain HLW hearing than would apply to other mandatory NRC
hearings. The DOE also stated that PRM-2-14 would conflict with 10 CFR
51.109(e).
II. Reasons for Denial
A. Recent Amendments to Sec. 2.104
PRM-2-14 does not take note of recent NRC rule changes regarding 10
CFR 2.104, which removed many of its previous requirements. The rule no
longer requires presiding officers in mandatory reactor construction
permit hearings to consider a specific list of procedural, safety, and
environmental issues regardless of admitted contentions. See 72 FR
49412 (August 28, 2007). As a result, the issue-review procedure that
Nevada would like to apply to the Yucca Mountain HLW hearing no longer
exists elsewhere in the agency's procedures; thus the requested
provisions would no longer be ``patterned essentially after 10 CFR
2.104(b),'' see PRM-2-14 at 4, nor would they conform to agency
``precedents.'' Id. Rather, granting PRM-2-14 would lead to different
issue review requirements and would not provide the consistent process
that Nevada allegedly seeks. In particular, PRM-2-14 would impose
greater requirements for the Yucca Mountain HLW hearing than now apply
to other NRC hearings.
B. Conflict With 10 CFR Part 2, Subpart J
By petitioning for ``independent determinations'' of various
procedural, safety and environmental issues in the Yucca Mountain HLW
hearing, see PRM-2-14 at 5-6, Nevada is essentially asking the
Commission to mandate sua sponte review of those topics by the
presiding officer to the extent that they are not reviewed pursuant to
admitted contentions. But the NRC has previously adopted 10 CFR 2.1027,
which specifies that in a HLW hearing, ``the Presiding Officer * * *
shall make findings of fact and conclusions of law on, and otherwise
give consideration to, only those matters put into controversy by the
parties and determined to be litigable issues in the proceeding.'' In
the Federal Register, the Commission explained that it did ``not
believe that sua sponte authority is necessary * * * where a hearing is
required * * * and where the parties will include entities that should
be well-prepared and have had substantial involvement in the HLW
licensing process.'' 54 FR 39389 (September 26, 1989). Nevada has not
provided any information that contradicts the premise in that
assessment.
Additionally, 10 CFR 2.1023(c)(2) already provides that ``the
Commission shall review * * * those issues that have not been contested
in the proceeding before the Presiding Officer.'' This Commission-level
review is explicitly ``not part of the adjudicatory proceeding.'' Id.
When the Commission indicated in the regulations that it would review
the uncontested matters outside of the adjudicatory process, it clearly
contemplated that these issues would not be subject to a hearing. It
states that, ``even if no hearing has been held, the Director of
Nuclear Material Safety and Safeguards will not issue a construction
authorization * * * until expressly authorized to do so by the
Commission.'' 46 FR 13974 (February 25, 1981). Thus, even if there were
no admitted contentions, the Commission, not a presiding officer, would
review the construction authorization, including all uncontested
matters.
The NRC also set out a schedule for the Yucca Mountain HLW hearing
at Appendix D to 10 CFR Part 2. See also 10 CFR 2.1026(a) (requiring
the presiding officer at the Yucca Mountain HLW hearing to adhere to
the schedule at Appendix D). The Commission did not include time for
review of uncontested issues by the presiding officer. This is
additional evidence that, contrary to Nevada's assertion, the
Commission clearly did not intend to require reviews and procedures
analogous to those then in existence for construction permit
proceedings.
C. Conflict With 10 CFR Part 51
Nevada's proposed Sec. 2.104(f)(3) would require the presiding
officer to ``determine whether the requirements of section 102(2)(A),
(C), and (D) of NEPA * * * have been complied with in the proceeding.''
This proposed requirement is inconsistent with 10 CFR 51.109, which
prescribes the presiding officer's review of environmental impact
statements (EISs) under section 102(2)(A), (C) and (D) of the National
Environmental Policy Act (NEPA). Section 51.109(e) requires the
presiding officer to conduct such a review only if it is impracticable
to adopt DOE's EIS. The petition would ignore this limitation and
mandate an independent review in each case, regardless of the adequacy
of DOE's EIS.
D. Determination of Issues at Hearing
Nevada recommends specifying the issues for the Yucca Mountain
hearing by regulation because it would be inappropriate to allow the
staff, in an adversary role, to specify the scope of issues. The long-
standing agency practice outside of reactor construction permit
proceedings, however, has been to specify issues for hearing in the
notice of hearing, not through regulation. Nevada must have been aware
of this because it openly models its proposed rule after the issues
listed in the USEC notice of hearing, which were not spelled out by any
regulation. See USEC, Inc. Notice of Hearing, 69 FR 61411 (October 18,
2004). Moreover, Nevada's concern that the NRC staff will be
responsible for determining the scope of issues is unfounded. ``The
Commission,'' not the staff, ``will clearly define the precise scope of
the hearing [and] outline the appropriate general issue areas to be
considered in the proceeding * * *.'' 56 FR 7794 (February 26, 1991).
E. Commission's Intent in Issuing Sec. 2.101(e)(8)
Nevada argues that when the NRC required a hearing for a HLW
repository construction authorization at 10 CFR 2.101(e)(8), the
Commission ``must'' have meant to require exhaustive procedural, safety
and environmental reviews by the presiding officer, because otherwise a
mandatory hearing would be ``meaningless.'' See PRM-2-14 at 4.
[[Page 62933]]
Nevada suggests that if there were no contested issues, the required
hearing would have to cover something, so the presiding officer should
review key procedural, safety and environmental issues at a minimum.
An examination of the Commission's development of the position that
a hearing would be held for Yucca Mountain indicates that it evolved
from the unique nature of any decision on an application for a HLW
repository, not from the regulatory framework for reactor licensing.
Before the Commission issued 10 CFR 2.101(e)(8), commenters noted
``the national importance of [HLW repositories] and the concern that
state and local governments and the general public have expressed with
regard to nuclear waste disposal'' and asked the NRC to require
hearings before the construction of a HLW repository. See SECY-80-0474:
Final Rule--10 CFR Part 60, Disposal of High-Level Radioactive Wastes
in Geologic Repositories, Encl. B, App. B, PDR No. 6, ADAMS Accession
No. ML041350273 (October 17, 1980). In response, the Commission
determined that it would require a hearing, agreeing that a Yucca
Mountain hearing would involve ``numerous novel technical, policy, and
legal issues of national importance.'' See NRC Response to Nevada's
Petition on Procedures for the Yucca Mountain Licensing Hearing at 2,
ML031631253 (July 8, 2003).
The Commission then reaffirmed its motivation for requiring a
hearing when it noted that the Yucca Mountain proceeding would be a
``unique'' hearing, ``likely to involve multiple parties,'' with ``a
large number of disputes over material facts.'' See 69 FR 2204 (January
14, 2004). In such an environment, the Commission believed it would be
best to ``provide an on-the-record hearing'' in order to ``advance
public confidence in the Commission's repository licensing process.''
Id. This language also affirms that the Commission expectation was that
it would offer an opportunity for a hearing on Yucca Mountain and
expected to receive requests from multiple parties for such a hearing,
indicating that the Commission discussion was in the context of a
``contested'' hearing and was not addressing uncontested issues.
Nevada's claim that the Commission must have required hearings for
HLW geologic repository applications solely to increase the scope of
issues before the presiding officer does not find support in the
record. In the second paragraph of its own petition, Nevada explicitly
recognized ``the wide public interest in Yucca Mountain. * * *'' See
PRM-2-14 at 1. The record clearly shows that the Commission focused on
a hearing as a method of public involvement, rather than a means of
mandating or expanding the scope of review. The petition does not
advance the Commission's prior plans in any form.
Nevada's theoretical question regarding the Commission's intent
where a ``mandatory'' HLW construction authorization request did not
result in any admissible contentions is, as a practical matter, only an
academic exercise. The regulatory history shows that the Commission
reasonably anticipated and was providing for a contested hearing for
Yucca Mountain. See Appendix D to 10 CFR Part 2 (listing the milestone
schedule for the Yucca Mountain HLW hearing, which does not include a
review of uncontested issues); 10 CFR 2.1001 (assuming standing for a
number of interested parties in the Yucca Mountain proceedings); 56 FR
7792 (February 26, 1991) (stating the Commission's expectation of well-
prepared parties and thorough identification of issues for litigation);
54 FR 39389 (September 26, 1989) (expressing the Commission's view that
there was ``little likelihood that a significant issue will be
overlooked'' by admitted parties).
While the discussions in the supporting documentation for the
rulemaking process addressing the hearing issue could have been
clearer, the regulations themselves leave little doubt as to the
Commission's intent. That intent always was to assure that an
opportunity to request a hearing was provided. The Commission
anticipated that the opportunity would result in the filing of a
successful request. However, as noted earlier, 10 CFR 2.1023(c)(2)
shows that the Commission always contemplated, and expressly provided
that uncontested issues would be considered outside of the adjudicatory
process.
The NRC has always expected to receive large numbers of
contentions, and recent events show that these predictions were well-
founded. The DOE submitted its repository license application for Yucca
Mountain on June 3, 2008, and Nevada alone disclosed its plan to file
between ``251-500'' contentions in the proceeding. See U.S. Department
of Energy (High-Level Waste Repository: Pre-Application Matters,
Advisory PAPO Board), Nevada Response to the Board's Notice and
Memorandum of March 6, 2008 (March 24, 2008) at 2. The Commission
stated that the contested hearing on DOE's Yucca Mountain application
would likely be ``one of the most expansive and complex adjudicatory
proceedings in agency history.'' See U.S. Department of Energy (High-
Level Waste Repository: Pre-Application Matters, Advisory PAPO Board),
CLI-08-18 (August 13, 2008). In such an environment, there is little
likelihood that the presiding officer at the Yucca Mountain hearing
will be left without any issues to review.
Finally, Nevada refers to the Yucca Mountain hearing as a
``mandatory hearing'' and suggests that its proposed rules are
necessary because of the hearing's ``mandatory'' nature. In 2005, the
Commission clarified that in current usage, a ``mandatory hearing'' is
``a hearing that must take place even if no intervenor contests the
license application,'' covering both contested and uncontested issues.
See Exelon Generating Company, LLC (Early Site Permit for Clinton ESP
Site) et al., CLI-05-17, 62 NRC 5 (July 28, 2005). This conception of a
``mandatory hearing'' stems from statutory provisions concerning
reactor construction permit applications and construction and operation
of uranium enrichment facilities. Id. at 26-27. The Commission did not
extend its definition of ``mandatory hearing'' to hearing
opportunities, such as the Yucca Mountain construction authorization
hearing opportunity referenced in 10 CFR 2.101(e)(8). Any references to
the Yucca Mountain hearing as a ``mandatory'' hearing used that term as
a common synonym for the Commission mandating an opportunity to request
a hearing as a matter of discretion, and do not indicate any intent to
extend uncontested hearing procedures to the Yucca Mountain proceeding.
In fact, the Commission generally disfavors the broad ``mandatory
hearing'' process and will not apply it when it is not legally
required. See generally Staff Requirements Memorandum--COMDEK-07-0001/
COMJSM-07-0001, Report of the Combined License Review Task Force,
ML071760109 (June 22, 2007). Likewise, the adoption of 10 CFR 2.1023,
2.1027, and Appendix D to 10 CFR Part 2 show that the Commission never
planned to grant the presiding officer in the Yucca Mountain hearing
any authority to conduct sua sponte review of uncontested issues.
III. Conclusion
The petition would conflict with existing 10 CFR Part 2, Subpart J
regulations by requiring the presiding officer at HLW repository
application hearings to review procedural, safety and environmental
issues without regard to whether those issues were raised in admitted
contentions. The requested provisions are also
[[Page 62934]]
inconsistent with 10 CFR 51.109 and the amended 10 CFR 2.104
requirements for other NRC hearings. Most importantly, the proposal is
contrary to Commission intent when, in its discretion, it decided on
the specific hearing requirements to apply to the Yucca Mountain
application for a construction authorization. Nevada does not provide
adequate support for its claim that its proposed provisions are a
necessary consequence of the Commission's past positions. The requested
rulemaking is both unwise and contrary to the Commission's long-
standing policy.
For these reasons, the Commission denies PRM-2-14.
Commissioner Gregory B. Jaczko's Disapproval of the Denial of Petition
for Rulemaking PRM-2-14
I disapprove the decision denying the State of Nevada's petition
for rulemaking to specify issues for the Yucca Mountain proceeding.
With respect to PRM-2-14, I believe some changes to the issues
specified for hearing with respect to the Department of Energy's (DOE)
application to construct a geologic waste repository at Yucca Mountain
may be warranted, but that a rulemaking is not necessary to effect
those changes. Instead, the Commission can formulate the Notice of
Hearing on the DOE application to address whatever issues raised by the
petition that may have merit. Accordingly, I would grant the petition
with the understanding that it would be addressed in the hearing
notice, and not in a rulemaking.
In its petition, Nevada presumes that a hearing will be conducted
on all uncontested issues. With respect to such uncontested hearings, I
believe that the goal of the petition's request that the Licensing
Board conduct uncontested hearings on the application is better
accomplished by the Commission. We have decided in the context of
combined license (COL) proceedings to conduct uncontested hearings
ourselves, and the rationale for that decision applies equally to this
proceeding as to COL proceedings. For a matter as significant as this
proceeding--and the majority references the significance of this
proceeding in its denial of petition--I do not believe the Commission
should eliminate the review of uncontested issues in the hearing
process. If, as the majority argues, there are no uncontested issues
because ``there is little likelihood that the presiding officer at the
Yucca Mountain hearing will be left without any issues to review,''
then there will be nothing to address in this hearing. If, however,
some issues are not contested, my approach would ensure that all issues
are properly addressed in a hearing. Simply put, the majority
decision's reliance on intervenors to divulge and review all matters
relevant to safety is misguided. In addition, I do not believe the
majority interpretation of our regulations--namely that the Commission
never intended to address uncontested issues in the hearing--is
torturous and weak, relying on an unsubstantiated interpretation of
Sec. 2.1023(c).
I note that the majority would interpret the Commission's rules as
follows: 10 CFR 2.101(e)(8) requires that the Notice of Hearing state
that ``a hearing is required in the public interest'' but this does not
mean that there will be a hearing on all uncontested issues. The
interpretation refers to Sec. 2.1023(c)(2), which states that the
Commission will review uncontested issues outside the adjudicatory
process, as precluding hearings on uncontested issues. Nonetheless, 10
CFR 51.109(e)(4) requires that the presiding officer (which could be an
Atomic Safety and Licensing Board) make findings with respect to
uncontested environmental issues, and the Notice provides for
consideration of such issues in the hearing. Moreover, the Licensing
Board would not have jurisdiction to consider uncontested safety
issues, pursuant to 10 CFR 2.1027. Only the Commission would have such
jurisdiction.
The upshot of the above is that under the view favored by the
majority, uncontested environmental issues would be decided by the
presiding officer (the Licensing Board or the Commission itself) in a
hearing, but uncontested safety issues would only be considered by the
Commission outside the adjudicatory process. I do not believe it makes
sense to have a ``mandatory'' hearing on uncontested environmental
issues, but not on uncontested safety issues, which fall within our
core Atomic Energy Act responsibilities. Rather, in order to bolster
public confidence, I would rewrite the Notice of Hearing to provide for
hearings on both uncontested safety and environmental issues. I believe
the Commission itself should hear these uncontested issues, whether
safety or environmental, within the context of the adjudicatory
process, just as we plan to do in combined license (COL) proceedings.
Moreover, under the approach taken in the draft Notice of Hearing,
the provision for Licensing Board review of uncontested environmental
issues under Sec. 51.109 appears to conflict with the prohibition on
Board review of uncontested issues in Sec. 2.1027, and the
Commission's ultimate review of such uncontested environmental issues
in the adjudication would seemingly conflict with the provisions of
Sec. 2.1023. In contrast, the approach I recommend has the advantage
of interpreting 10 CFR 2.1027 together with Sec. 51.109(e)(4) such
that the Licensing Board would be precluded from hearing uncontested
environmental issues (under Sec. 2.1027), and the Commission would
function as the presiding officer for such uncontested issues (under
Sec. 51.109(e)(4)). This approach would similarly apply Sec. 2.1027
with respect to uncontested safety issues, so that the Commission,
rather than the Licensing Board, would conduct a hearing on such
issues. This approach would also apply the language of Sec.
2.101(e)(8) in a more literal fashion. Given the murkiness of the
history and meaning of Sec. 2.101(e)(8), such clarification is
warranted.
This approach is also consistent with Sec. 2.1023. Section 2.1023
provides for Commission review of both uncontested and contested issues
outside the adjudicatory process under the Commission's supervisory
authority. Obviously, contested issues will be decided in the
adjudicatory proceeding. I believe Sec. 2.1023 merely states our
inherent supervisory authority to review any particular issue if the
result of the adjudicatory proceeding is that the application should be
granted, but a license has not yet been issued. The Commission would
have this authority even if Sec. 2.1023 did not exist. The language of
Sec. 2.1023(c)(2) (regarding uncontested issues) that states the
Commission review is not part of the adjudicatory proceeding is
parallel to language in Sec. 2.1023(c)(1) (regarding contested
issues). To interpret the language in Sec. 2.1023(c)(2) to bar
uncontested safety issues from adjudication (but not uncontested
environmental issues) seems strained to me.
With respect to the issues specified for adjudication, I note that
the Commission stated in the 1991 Statements of Consideration on
Subpart J (56 FR 7787) that we would more clearly define the precise
scope of the hearing in the Notice. The time has come for us to do so.
In this regard, Nevada's petition for rulemaking requests that the
Notice of Hearing specify that the presiding officer make findings that
the standards of in Sec. Sec. 63.10, 63.21, and 63.24(a) and the
requirements of Sec. 63.31 have been met. I believe that specifying
these sections in the Notice of Hearing has merit, particularly with
respect to Sec. 63.31, and I would include in the Notice a
[[Page 62935]]
paragraph similar to paragraph 2.(1) on page 5 of Nevada's petition.
While the Notice of Hearing requires the general finding that all the
Commission's regulations have been met, and I would not delete this,
reference to the specific regulations may help the parties and
Licensing Boards focus on the issues most pertinent to the Yucca
Mountain proceeding.
Additional Views of the Commission
The Commission majority does not share Commissioner Jaczko's
dissenting views. The Commission is responding to Nevada's arguments,
which rest largely on a mistaken interpretation of the current rules.
Nevada did not show that the existing rules are inadequate to permit a
thorough and probing evaluation of a HLW repository application. The
Commission's notice of denial reflects careful consideration of
Nevada's petition and explains in considerable detail the reasons why
the petition should be denied.
We also see no need for Commissioner Jaczko's proposal that the
Commission hold adjudicatory hearings on uncontested safety and
environmental issues. Such an approach would not only be a departure
from long-standing rules but would likely and unnecessarily prolong
what promises to be the most thoroughly-contested and complex licensing
review in NRC history. Our existing rules require the staff to conduct
a sound and exhaustive review, permit interested parties to intervene
and litigate what we anticipate to be a very large number of
contentions about the adequacy of the application, and, as Commissioner
Jaczko acknowledges, provide for a Commission review of both
uncontested and contested issues outside the adjudicatory process.
While we agree with Commissioner Jaczko that public confidence in our
decision making is of vital importance, we also believe that the
multiple layers of review provided under our existing rules will be
more than adequate to provide that confidence. Deviating from our well-
established rules would not serve that objective.
Dated at Rockville, Maryland, this 17th day of October 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-25290 Filed 10-21-08; 8:45 am]
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