ML043500480

Applicants Response to State of Utahs Request for Admission of Late-Filed Contention Utah Uu

ML043500480
Person / Time
Site:	07200022
Issue date:	12/06/2004
From:	Barnett D, Gaukler P, Silberg J Private Fuel Storage, ShawPittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
72-22-ISFSI, ASLBP 97-732-02-ISFSI, RAS 8971
Download: ML043500480 (53)

Text

- 'A5 I891/

DOCKETED USNRC December 10, 2004 (3:54pm)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF PRIVATE FUEL STORAGE L.L.C.

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DOCKET NO. 72-22 ASLBP NO. 97-732-02-ISFSI (PRIVATE FUEL STORAGE FACILITY) )

APPLICANT'S RESPONSE TO STATE OF UTAH'S REQUEST FOR ADMISSION OF LATE-FILED CONTENTION UTAH UU Jay E. Silberg Paul A. Gaukler D. Sean Barnett SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037 Counsel for Private Fuel Storage L.L.C.

Dated: December 6,2004 iep (ate= Sec y lyf

TABLE OF CONTENTS I.

AFTER THE RECORD IS CLOSED, A LATE-FILED CONTENTION OFFERING NEW EVIDENCE MUST SATISFY THE REQUIREMENTS OF § 2.734............................................

2 II.

APPLICABLE LEGAL STANDARDS..........................................

3 A.

Standard for Reopening a Closed Evidentiary Record............................................ 3 B.

Standards for the Admissions of Contentions........................................... S 5

III.

UTAH UU DOES NOT MEET REQUIREMENTS FOR ADMITTING CONTENTIONS UNDER § 2.714 OR REOPENING THE RECORD UNDER § 2.734 5

A.

The Factual Bases for Utah UU Do Not Meet the Requirements for Admitting Contentions Under § 2.714 or for Reopening the Record UNDER § 2.734

.5

1.

Yucca Mountain Will be Designed to Accept Canistered Fuel

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2.

DOE is Obligated to Accept all Commercial Spent Nuclear Fuel

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a.

The NWPA and Judicial Interpretations Require DOE to Accept all Commercial SNF

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b.

The Standard Contract Obligates DOE to Accept All Commercial SNF.10

c.

DOE's Acknowledgement of its Obligation to Accept All Commercial SNF...............................................

12 B.

The State's Asserted New Information is Immaterial

.....I........................ 14

1.

Lack of Material Impact on the PFS FEIS NEPA Analysis...................... 14

2.

Lack of Material Impact on PFS's Financial Qualifications...................... 17 IV.

SHOULD UTAH UU BE ADMITTED, THE BOARD SHOULD EXERCISE ITS PRO-TANTO AUTHORITY AND APPROPRIATELY AMEND THE FEIS.............

19 V.

CONCLUSION.............

20 i

December 6, 2004 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF

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PRIVATE FUEL STORAGE L.L.C.

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DOCKET NO. 72-22 (PRIVATE FUEL STORAGE FACILITY))

ASLBP NO. 97-732-02-ISFSI APPLICANT'S RESPONSE TO STATE OF UTAH'S REQUEST FOR ADMISSION OF LATE-FILED CONTENTION UTAH UU Applicant Private Fuel Storage L.L.C. ("Applicant" or "PFS") hereby responds to the "State of Utah's Request for Admission of Late-Filed Contention Utah UU (Ramifications of DOE's Refusal to Accept Fuel in Welded Canisters from the PFS Site) or in the Alternative Peti-tion for Rulemaking," filed November 12, 2004. ("State Req."). On November 16, 2004, the Atomic Safety and Licensing Board ("Board") ordered the State to supplement its request by ad-dressing (1) the possible impact of 10 C.F.R. § 2.734 on the admission of the contention, and (2),

if admitted, whether the merits of the contention should be addressed directly by the Board rather than initiallyby a Staff supplement to the Final Environmental Impact Statement ('FEIS").' The Board's Order also directed PFS and the Staff to address these issues in their responses to the State's Request. The State filed its supplement on November 29, 2004.2 PFS hereby files its re-sponse to the State's Request and the State's Supplement.

Because the evidentiary record for the proceeding has been closed, the State must satisfy the requirements of 10 C.F.R. § 2.734 for reopening the record as well as those for late-filed con-tentions under 10 C.F.R. § 2.714. The State meets neither, and thus Utah UU must be rejected.3 X Order (Addressing Applicant's Request for Extension and Related Matters) (Nov. 16, 2004).

2 State of Utah's Supplement to Contention Utah UU Pursuant to Board Order Dated November 16, 2004" (Nov. 29, 2004) ("State Supp.")

3ITe State requests Utah UU to be treated as a petition for rulemaking should it be determined to challenge NRC regulations. State Req. at 9-10. PFS does not argue herein that Utah U challenges NRC regulations. In any event, treating Utah UU as a petition for rulemaking is not a function of the Board. See 10 C.F.R. Part 2, Subpart 4.

I.

AFTER THE RECORD IS CLOSED, A LATE-FILED CONTENTION OFFER-ING NEW EVIDENCE MUST SATISFY THE REQUIREMENTS OF § 2.734 Section 2.734 of the NRC's regulations governs the reopening of closed evidentiary re-cords in NRC licensing proceedings in order to offer new evidence into the record. Subsection 2.734(d) provides:

A motion to reopen which relates to a contention not previously in con-troversy among the parties must also satisfy the requirements for non-timely'contentions in § 2.714(a)(1) (i) through (v).

As the Board noted in its November 16, 2004 Order, the inclusion of the word "also" in subsec-tion (d) regarding contentions not previously in controversy seems to require a motion to reopen the record not only for issues previously litigated but also to offer evidence underpinning a new contention. Otherwise there would be no purpose for including subsection (d) in the regulation.

What this reading of the regulation provides by necessary implication, the Statement of Consid-eration ("SOC") issued with the promulgation of 10 C.F.R. § 2.734 stated directly:

A motion to reopen must be filed whenever a proponent seeks to add new information to a closed record, whether the information concerns a new contention or one which has already been heard.

51 Fed. Reg. 19,535,19,538-39 (May 30, 1986). The Commission went on to say:

The purpose of this rule is not to foreclose the raising of important safety issues, but to ensure that, once a record has been closed and all timely-raised issues have been resolved, finality will attach to the hearing proc-ess. Otherwise, it is doubtful whether a proceeding could ever be com-pleted.

Id. at 19,539.

NRC precedent both prior and subsequent to the promulgation of §2.734 further demon-strates that after closing of the evidentiary record, a request to admit a new contention which of-fers new evidence as part of its basis, must meet the criteria for motions to reopen as well as the criteria for late-filed contentions. For example, in Palo Verde, the licensing board addressed a petition for late intervention based on a purported discovery of substantial new information sub-sequent to the closing of the evidentiary record but prior to the board's issuance of its initial de-2

cision.4 After weighing the late-intervention criteria of § 2.714, the board determined that the petitioner had met the "additional burden of proving that its motion to reopen the record to admit new testimony should be granted." Id. at 2031. Since promulgating §2.734, the Commission has similarly ruled that new contentions filed during a pending appeal or remand of an initial deci-sion must similarly satisfy both the requirements for reopening the record under §2.734 as well as the late filing requirements of §2.714.5 The State baldly asserts - without any legal support - that requiring it to meet the criteria under § 2.734 for reopening the record would offend due process. State Supp. at 2. Requiring Contention UU to meet the § 2.734 criteria can hardly be said to offend due process. As set forth in the SOC quoted above, the rule serves important competing purposes of allowing the raising of significant safety issues balanced against achieving finality of the hearing process. Given the duration of this proceeding, such a balancing is particularly appropriate here.

II.

APPLICABLE LEGAL STANDARDS A.

Standard for Reopening a Closed Evidentiary Record Under 10 C.F.R. § 2.734, a motion to reopen a closed record to consider additional evi-dence will not be granted unless the following criteria are satisfied:

(a) (1) The motion must be timely...

(2) The motion must address a significant safety or environmental issue.

(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

(b) The motion must be accompanied by one or more affidavits which set forth the factual and/or technical bases for [each of] the movant's claim[s] that the criteria of paragraph (a) of this section have been satis-fied....

10 C.F.R. § 2.734.

4 Arizona Public Service CompanY (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-82-1 17B, 16 NRC 2024, 2025, 31-32 (1982). The Commission approvingly cited this decision in its SOC. 51 Fed. Reg. at 19,535.

5 See, eg., Long Island Ligbting Company (Shoreham Nuclear Power Station, Unit 1), CLI-89-1, 29 NRC 89 (1989); Public Service Company of New Hampshire (Seabrook Station, Units I and 2), CLI-90-6,31 NRC 483 (1990).

3

On the matter of reopening the record, the Commission has held that:

The burden of satisfying the reopening requirements is a heavy one.

Bare allegations or simple submissions of new contentions are not enough to meet these standards.

At a minimum, the new material in support of a motion to reopen must set forth with a degree of particularity in excess of the basis and specific-ity requirements contained in 10 C.F.R. § 2.714(b) for admissible contentions. Such supporting information must be more than mere allegations; it must be tantamount to evidence and possess the attributes set forth in 10 C.F.R. § 2.743(c) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be relevant, material, and reliable.

Louisiana Power & Light Co. (Waterford Steam Electric Station), CLI-86-1, 23 NRC 1, 5 (1986)

(citations and quotations omitted).

In addition to satisfying evidentiary requirements, "it must be established that 'a different result would have been reached initially had [the material submitted in support of the motion]

been considered."'6 The focus is on the outcome of the proceeding; the record should not be re-opened merely because new information has been proffered, even if it is relevant.7 Finally, a decision to reopen must consider the proffered evidence in light of the re-sponses to the motion:

[E]ven though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidavits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, t.e if the undisputed facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the out-come of the licensing proceeding.

Vermont Yankee Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); see also Public Service Company of New Hampshire (Seabrook Station, Units I and 2), CLI-90-10, 32 NRC 218,222-23 (1990).8 6 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-756, 18 NRC 1340, 1344 (1983) (bracketed wording in original), guoting Northern Indiana Public Service Co. (Bailly Generating Sta-tion, Nuclear-I), ALAB-227, 8 AEC 416,418 (1974).

7 See Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB462, 7 NRC 320, 338 (1978).

8 The applicant and staff responses may include affidavits, letters, and other materials in support of their response filings. See Vermont Yankee, ALAB-138, 6 AEC at 523-524.

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B.

Standards for the Admissions of Contentions The Board has previously set out at length the standards for the admission of contentions.

S, eg., Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 178-81 (1998). Relevant here are the requirements for (1) "factual information or expert opinion" that provide an adequate factual basis for claims that are (2) "material to the grant or denial of the license application." Id. at 179-80. As set forth below, Utah UU meets neither of these requirements.9 III.

UTAH UU DOES NOT MEET REQUIREMENTS FOR ADMITTING CONTEN-TIONS UNDER § 2.714 OR REOPENING THE RECORD UNDER § 2.734 A.

The Factual Bases for Utah UU Do Not Meet the Requirements for Admit-ting Contentions Under § 2.714 or for Reopening the Record under § 2.734 Proposed Contention Utah UU is premised on reported statements by Gary Lanthrum, the Director of the National Transportation Program of DOE's Office of Civilian Radioactive Waste Management ("OCRWM'), "recently announc[ing] that DOE was only obligated to accept bare fuel or fuel packaged in bolted canisters." State Req. at 1. According to the State, "DOE's latest announcement" means that "fuel stored at PFS in welded canisters will not be accepted at the permanent repository unless repacked in bolted canisters." Id. at 3. Hence, the State claims that the PFS FEIS and PFS's financial qualifications need to be revisited "to address the certainty that fuel will not be shipped directly from the PFS site to Yucca Mountain" and that rather "it will have to be shipped back to the reactor site (if available) for repackaging and reshipment." Id. at 12 (emphasis added); see also id. at 3-6, 8-9. The State further asserts that by licensing the Pri-vate Fuel Storage Facility ("PFSF"), the NRC would be creating a "a dysfunctional national waste management system" by "either pre-determining waste packaging for Yucca Mountain and thereby preempting DOE's statutory authority, or alternatively creating a disruption and added expense to the national waste management and disposal system." Id. at 2, 6 (emphasis added).' 0 9 PFS is not challenging the timeliness of the contention, and therefore it is not necessary to consider here the late-filed factors in 10 C.F.R. § 2.714(a)(1).

10 These broadly worded policy claims are clearly beyond the scope of this licensing proceeding. Moreover, they plainly lack merit. See Section III. A. 1., infra.

5

Although the State repeatedly refers to Mr. Lanthrum's "announcement" as if it were a formal DOE pronouncement, it is not. Although Mr. Lanthrum testified before the Nuclear Waste Technical Review Board (NWTRB"), the State cites no transcript for his remarks. In-stead, the State relies on a declaration by Dr. Diane Nielson, a State official, which states that she attended the October 14, 2004 NTRWB meeting in Salt Lake City, and "[d]uring part of that meeting" she "had occasion to talk with [Mr.] Lanthrum." State Exh. 1, ¶ 4. "During the conver-sation," Mr. Lanthrum reportedly stated that "under the DOE standard contract with the nuclear industry, DOE was only required to accept bare fuel" and that, "[als such," "DOE would not ac-cept spent nuclear fuel in welded canisters" and "had no obligation to pickup fuel" sealed in can-isters at the PFSF. Id. at 1 4. In addition to Dr. Nielson's declaration, the State refers to a Salt Lake City Tribune article attributing similar statements to Mr. Lanthrum (State Exh. 2) and an excerpt from the NWTRB transcript of a representative from the State of Nevada Nuclear Waste Project Office referencing off-the-record statements made by Mr. Lanthrum (State Exh. 9).*l Since the State's filing does not include any transcript of Mr. Lanthrum's remarks, the Board can fairly infer (as confirmed by our review of the entire transcript), that no support for the State's argument can be found in Mr. Lanthrum's on-the-record statements. DOE's obliga-tions under the Standard Contract12 was not a topic covered by Mr. Lanthrum in his presentation to the NTRWB. Indeed, Mr. Lanthrum as the OCRWM Director of the National Transportation Program is responsible for transportation issues, and not for waste acceptance or interpretation of the Standard Contract. See Att. 1 at 3.

Reports of Mr. Lanthrum's informal, off-the-record comments are insufficient either to form the basis for an admissible contention or to support reopening the record.'3 In Utah UU the I The transcript of the statement by the Nevada representative simply does not say what the State claims that it says.

The representative did not say that "DOE would not accept spent fuel in welded canisters from the PFS site," State Req. at 11, but only that the "standard contracts" would need to be "renegotiated" prior to such acceptance. State Exh. 9 at 435-36.

12 Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste (10 C.F.R. § 961.11)

("Standard Contract").

13 Indeed, the State's suggestion that the Board use its subpoena power "to obtain information under oath from the Department of Energy," State Supp. at 8, recognizes the underlying weakness of its proffered evidence. This sug-6

State asserts as a "certainty that fuel will not be shipped directly from the PFS site to Yucca Mountain" and also claims that, by licensing the PFSF, the NRC would be "preempting" DOE's authority "to set the policy and standards of shipments to Yucca Mountain" or to establish "the design" for Yucca Mountain. State Req. at 6, 12. The remarks attributed to Mr. Lanthrum did not address DOE transportation policy or Yucca Mountain's design. Nor did those remarks ad-dress the potential for amending the Standard Contract in order to accept canistered fuel at Yucca Mountain. Thus, Mr. Lanthrum's remarks provide no basis for the State's claims in Utah UU.

Moreover, as discussed below, the implications drawn by the State from Mr. Lanthrum's reported remarks are clearly erroneous. Contrary to the State's claims, Yucca Mountain is being designed to accept both bare and canistered spent nuclear fuel. Further, by statute, case law and contract, DOE is required to accept all spent fuel from the utilities. DOE has acknowledged this obligation and has repeatedly represented to Congress and to Federal, State and utility officials that any necessary changes would be made to the Standard Contract in order to accept spent fuel stored in NRC-licensed canisters.

1.

Yucca Mountain Will be Designed to Accept Canistered Fuel The State's claims that Yucca Mountain would only accept "bare fuel" and that NRC's licensing the PFSF would thus preempt DOE's authority to establish Yucca Mountain's "design" or to set "standards" for shipping fuel to Yucca Mountain (State Req. at 6-8, 11-12) are baseless.

DOE documents show that Yucca Mountain will be fully designed and capable of accepting can-istered fuel. Among many other references, this is clearly set forth in both the Civilian Radioac-tive Waste Management System ("CRWMS") Requirements Document - which "specifies the top-level requirements" for DOE's waste disposal activities 1-and the Yucca Mountain FEIS."5 The State cites no documents to the contrary; nor are we aware of any.

gestion is simply an ill-disguised attempt to engage in impermissible discovery: "[a] movant in seeking to meet the heavy burden required to justify reopening a closed record 'is not entitled to engane in discovery in order to support

[thel motion." Waterford, CLI-86-1, 23 NRC at 6 (quoting Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985) (emphasis added).

14 "Civilian Radioactive Waste Management System Requirements Document,". U. S. Dept. of Energy, Office of Ci-vilian Radioactive Waste Management, DOE/RW-0406, Revision 6 (Sept. 2004), at 1 (excerpts attached as Att. 1).

7

The CRWMS Requirements Document "establishes requirements for the design, devel-opment and operation" of the various elements of the CRWM System, which are "Waste Accep-tance, Transportation" and the Geologic Repository, the latter being Yucca Mountain. Att. I at 1-3. The most recent revision of the Requirements Document - issued September 2004 - spells out the "Overall System Performance" requirements for these elements of DOE's waste program to accommodate both bare and canistered spent nuclear fuel ("SNF") as follows:

E. CRWMS elements and facilities shall be capable of accommodating a range of storage and transportation technologies, including multipurpose.

dual-purpose, and single-purpose canisters, as well as bare SNF assem-blies.

F. CRWMS facilities shall be capable of opening sealed stor-age/transportable commercial canisters, handling the SNF, and managing associated site generated waste streams.

Id. at 9 (emphasis added). Further, the revision history for the CRWMS Requirements Docu-ment states in pertinent part:

Provides notice to users on MPC Policy Change, i.e., The CRWMS will accept and accommodate a variety of cask/canister systems for commer-cial SNF which are currently available or are being developed. These may be individual spent fuel assemblies; or single, dual or triple purpose cask or canister systems.

Id. at vii (emphasis added).

The FEIS for Yucca Mountain similarly makes clear that Yucca Mountain will be techni-cally capable of handling both bare and canistered fuel. Examples of such statements from the FEIS (attached as Attachment 2) include the following:

Section S.3. 1.1 of the Summary of the FEIS (on Repository and Waste Package Design) states that "DOE would receive materials at the repository in one of three configurations: uncanistered fuel (spent nuclear fuel placed directly in a shipping cask), dual-purpose canisters (containers designed to store and transport commer-cial spent nuclear fuel), or disposable canisters (canisters for spent nuclear fuel or high-level radioactive waste with multiple specialized overpacks to enable their storage, trans-portation, and emplacement in a repository)." FEIS at S-12 (emphasis added).

15 "Final Environmental Impact Statement for a Geologic Repository for Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, U. S. Dept. of Energy, Office of Civilian Radio-active Waste Management, DOE/EIS-0250, (Feb. 2004) (excerpts attached as Att. 2).

8

Section S.3..l.1 goes on to state that "[oommercial spent nuclear fuel would be received in any of the three packaging configurations. DOE cannot predict the particular combination of uncanistered fuel, dual-purpose canisters, or disposable canisters it would receive at a repository because the managers of the commercial sites would determine the canister type, if anL. they will use." FEIS at S-13 (emphasis added).16 Discussing the waste handling facilities, the FEIS declares that "[c]asks that con-tain commercial spent nuclear fuel in dual-purpose canisters... would go to the assembly transfer system." FEIS at 2-21.

The discussion of the waste handling facilities goes on to state that "[i]f the cask contained dual-purpose canisters, they would be removed and placed in an over-pack, where the top of the canister would be cut off." Id. (emphasis added). 17 In short, Yucca Mountain is being designed to accept commercial SNF in sealed canisters. Thus, licensing of the PFSF will not disrupt the national waste management system.

2.

DOE is Obligated to Accept All Commercial Spent Nuclear Fuel The State's assertion in Utah UU that DOE will accept only bare, i.e., uncanistered, fuel is inconsistent with DOE's statutory and judicially-recognized responsibility to accept all SNF for disposal and the terms of the Standard Contract implementing DOE's obligation. Moreover, it ignores DOE's acknowledgement of its obligation and its repeated representations that DOE will accept spent fuel stored in NRC-licensed canisters.

a.

The NWPA and Judicial Interpretations Require DOE to Accept all Commercial SNF Section 111 of the Nuclear Waste Policy Act ('"NWPA") establishes that "the Federal Government has the responsibility to provide for the permanent disposal of... spent nuclear fuel

." 42 U.S.C. § 10131 (a)(4). That responsibility has been confirmed by numerous U.S.

Courts of Appeals decisions. See, e.g., Indiana Michigan Power Co. v. DOE. 88 F.3d 1272, 1277 (D.C. Cir 1996) ("section 302(a)(5)(B) creates an obligation in DOE, reciprocal to the utili-ties' obligation to pay, to start disposing of the SNF no later than January 31, 1998"); Northern States Power Co. v. DOE, 128 F.3d 754, 758-59 (D.C. Cir. 1997) ("DOE's duty to act could 16 The body of the FEIS, Section 2.1.1.1 Packaging Scenarios, similarly states that 'rciommercial spent nuclear fuel could be received either uncanistered or in disposable or dual-purpose canisters." FEIS at 2-7 (emphasis added).

17 See also FEIS at 2-23 ("Commercial spent nuclear fuel would arrive as either individual fuel assemblies placed di-rectly into transportation casks, or in dual-purpose canisters in transportations cask that would have to be opened to remove the fuel assemblies.") (emphasis added).

9

hardly be more clear....The contractual obligations created consistently with the statutory con-templation leave no room for DOE to argue that it does not have a clear duty to take the SNF from the owners and generators...."); see also Alabama Power Co. v. DOE, 307 F.3d 1300,1302 (11th Cir. 2002) (under NWPA "the U.S. Government would take responsibility for disposing of the [nuclear] waste"); Roedler v. United States, 255 F.3d 1347, 1350 (Fed. Cir. 2001) (NWPA "enacted to establish Federal responsibility and a definite Federal policy, for the disposal of such

[high-level radioactive] waste and spent fuel"; Standard Contract provides that "DOE will dis-pose of their accumulated and future nuclear waste."); Maine Yankee Atomic Power Co. v.

United States, 225 F.3d 1336-38 (Fed. Cir. 2000)(Federal Government responsible to provide for permanent disposal of spent fuel).

b. The Standard Contract Obligates DOE to Accept All Commercial SNF Pursuant to the NWPA, DOE has entered into Standard Contracts with all nuclear utilities which provide for DOE's obligation to take the utilities' spent fuel. As summarized in the DOE regulation setting forth the Standard Contract, Under the contract set forth in § 961.11 of this part, DOE will take title to, transport, and dispose of spent nuclear fuel and/or high-level radioac-tive waste delivered to DOE by those owners or generators of such fuel or waste who execute the contract.

10 C.F.R. § 961.1. The Contract itself provides the numerous statements attesting to DOE's ob-ligation to take the utilities' spent nuclear fuel. See generally 10 C.F.R. § 961.11. The Whereas clauses of the Contract state DOE's obligations broadly as included:

DOE has the responsibility for the disposal of spent nuclear fuel and high-level radioactive waste of domestic origin from civilian nuclear power reactors... ;

DOE has the responsibility, following commencement of operation of a repository, to take title to the spent nuclear fuel or high-level radioactive waste involved as expeditiously as practicable upon the request of the generator or owner of such waste or spent nuclear fuel; Article IV.B.l broadly sets forth DOE's responsibilities as follows:

B. DOE Responsibilities 10

1. DOE shall accept title to all SNF and/or HLW, of domestic origin, generated by the civilian nuclear power reactor(s) specified in Appendix A, provide subsequent transportation for such material to the DOE facil-ity, and dispose of such material in accordance with the terms of this contract.

Under the Standard Contract, the utilities are free to designate facilities other than the reactor (such as the PFS facility) as the location from which DOE shall arrange transportation of their spent nuclear fuel. Article I (15) ("Purchaser may designate" the location at which DOE takes the utility's SNF.)

Moreover, the Standard Contract makes clear that "DOE's obligation for disposing SNF under [the] contract also extends to other than standard fuel." Article VI.A.2 (b). Thus, even if the State argues that canistered SNF, as opposed to bare SNF, is not "standard fuel," DOE re-mains contractually obligated to take it. Indeed, the Standard Contract specifically provides that "previously encapsulated [fuel] assemblies" are categorized as "other than standard fuel." See App. E, Section B.6.b.18 While under Article VI.A.2 (b), DOE may "advise" on schedule ad-justments necessary for "other than standard fuel" based on "technical feasibility" considera-tions, DOE's obligation to take and dispose of the fuel remains unaltered.'9 In this respect, how-ever, as discussed above, there is no question about the technical capability of Yucca Mountain to handle canistered fuel, as the facility is being designed to handle dual purpose canisters and to provide for their unsealing at the Yucca Mountain repository.

In short, DOE is obligated under the Standard Contract to take and dispose of all SNF ir-regardless of whether the SNF is bare or contained in dual purpose canisters.

18 See also Article IV.B.2 (a) of the Standard Contract which provides that DOE is to provide "specifications on Purchaser-furnished cannisters [sic] for containment of failed fuel."

9 Article VI.A.2(b) provides as follows:

DOE's obligations for disposing of SNF under this contract also extends to other than standard fuel; however, for any SNF which has been designated by the Purchaser as other than standard fuel, as that term is defined in appendix E, the Purchaser shall ob-tain delivery and procedure confirmation from DOE prior to delivery. DOE shall ad-vise purchaser within sixty (60) days after receipt of such confirmation request as to the technical feasibility of disposing such fuel on the currently agreed to schedule and any schedule adjustment for such services.

(Emphasis added.)

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c.

DOE's Acknowledgement of its Obligation to Accept All Commercial SNF The head of DOE's spent fuel program - the Director of OCRWM - has formally recog-nized DOE's obligation to accept all SNF under the Standard Contract. Furthermore, DOE has repeatedly assured Congressional and Federal, State and utility officials that DOE would take all appropriate actions necessary to accept SNF stored in NRC-certified canisters.

For example, prior to the NRC certifying the dual purpose spent fuel canister system planned for use at the Maine Yankee facility, the Governor of Maine requested the NRC to ob-tain "binding assurances" from DOE that DOE would accept spent fuel stored using that system.

In a May 3, 2000 letter, DOE's Director of OCRWM responded directly to the Governor and represented that the Standard Contract with DOE already provided assurances that DOE would accept Maine Yankee's SNF in an NRC-approved, dual purpose canisters:

Your letter... requests that the Commission, as a pre-requisite to ap-proval of the proposed rule [approving Maine Yankee's canister system],

acquire binding assurances from the Department of Energy that the De-partment will accept spent fuel for transport and disposal that has been stored in accordance with NRC approved procedures. It is my belief that there is no need for the Commission to obtaih such assurances from the Department, as they already exist under the terms of the contract for dis-posal that the Department has with Maine Yankee Atomic Power Com-pany. The contract covers the acceptance, transport and disposal of all spent nuclear fuel from the Maine Yankee reactor. regardless of the con-dition of the spent nuclear fuel.

Att. 3 (emphasis added).2 0 The Commission expressly relied upon the OCRWM Director's letter to the Governor - specifically pointing to the Director's assurance that DOE would accept "all spent nuclear fuel from the Maine Yankee reactor, regardless of [its] condition" - in its State-ment of Considerations certifying the canisters to be used at Maine Yankee. 65 Fed. Reg.

62,581, 62,595 (2000) (emphasis added).2 ' These formal and official statements made the head of OCRWM - expressly relied upon by the NRC in performance of its official functions - are far 20 The letter went on to note that "while the condition of the fuel does not impact the Department's ultimate respon-sibility for disposal under the contract, it may require" an adjustment of schedule, as already discussed above.

21 See also Att. 4, November 9, 2000 letter from the NRC Director of the Office of Nuclear Material Safety and Safeguards ("NMSS") to the counsel for the State of Maine in which the Director of NMSS relied upon the May 3, 2000 letter from the DOE OCRWM Director as addressing the State's concerns of whether DOE would accept Maine Yankee canistered fuel.

12

more probative than the informal off-the-record comments of a person not responsible for waste acceptance or the Standard Contract relied upon by the State.

Similarly, in other instances DOE has provided assurances that canistered spent fuel would be an acceptable waste form under the Standard Contract for canister systems licensed by the NRC. For example:

In a letter dated September 2, 1993, the then Acting Director of OCRWM assured the Sacramento Municipal Utility District ("SMUD") that DOE "would be willing to initiate the appropriate actions to include [SMUD's dual purpose canister sys-tem] as an acceptable waste form... " under the terms of the Standard Contract

"[o]nce the Nuclear Regulatory Commission has certified" the system. Att. 5.22 In the same time frame, in a letter dated October 4, 1993, DOE responded to an inquiry from Congressman Dick regarding DOE acceptances SNF from SMUD in which DOE reiterated its assurances that SMUD's dual-purpose canisters system

- if licensed by NRC - would be made an acceptable waste form. Att. 6.

In a letter dated August 20, 1996, DOE similarly assured Yankee Atomic that once the NRC "has certified the NAC storage-transport system, the Department would be willing to initiate appropriate actions to include such a system as an ac-ceptable waste form under the terms of the standard contract." Att. 7.

In an April 6, 2001 letter, David Zabransky, then OCRWM's "Team Leader for Waste Acceptance and Transportation," acknowledged the previous "commit-ment" DOE had made to SMUD and reaffirmed that DOE "will initiate action to include storage systems certified by the Commission for both transportation and storage (dual-purpose systems) as acceptable waste forms under the disposal con-tract with SMUD." Att. 8.23 In short, DOE has repeatedly represented to Federal, State and utility officials that either (1) the Standard Contract provides assurances that commercial SNF in canisters will be accepted; and (2) DOE is willing to undertake whatever actions might be necessary to make dual-purpose canisters acceptable waste forms under the Standard Contract upon their being licensed by the NRC. Thus, there can be no reasonable doubt that DOE will accept SNF sealed in dual purpose 2 The Acting Director went on to note that after NRC certification, DOE "would be in a better position to evaluate its acceptability as either a standard or nonstandard waste form." Id.

23 Mr. Zabransky further stated DOE's expectation that the canisters, if they needed to be opened, would be opened at the repository. "It is our current expectation that after receipt at the repository, dual purpose systems will be opened and the spent nuclear fuel removed for placement in a waste disposal package unless the internal canister can be demonstrated, and Nuclear Regulatory Commission licensed, as part of the final waste disposal package assem-bly." Att. 8 at 2.

13

canisters, certified by the NRC, such as those designated for use at the PFSF. Indeed their accep-tance is clearly mandated by the Standard Contract and the numerous appellate decisions con-firming DOE's statutory obligations under the Contract to accept and dispose of all SNF, regard-less of condition.

In sum, the State has (1) supplied an insufficient factual basis to admit Utah UU under

§ 2.714, and has (2) failed to provide sufficient evidentiary or legal basis to establish a signifi-cant safety or environmental issue for which the evidentiary record should be reopened under

§ 2.734.

B.

The State's Asserted New Information is Immaterial As demonstrated above, the State's asserted bases for admitting Utah UU and reopening the record are both factually and legally erroneous. Moreover, as demonstrated below, even ac-cepting the State's faulty premises, the State has failed to show any material effect on the out-come of this licensing proceeding. For this reason also, the State fails to meet the requirements for admitting contentions under § 2.714 or for reopening the record under § 2.734.

1.

Lack of Material Impact on the PFS FEIS NEPA Analysis The State argues that a materially different result would ensue had the alleged revelation regarding DOE's asserted lack of willingness to accept fuel in welded canisters been before the NRC Staff because the PFS FEIS lacks any discussion of the "cost and benefit evaluations" de-manded under NEPA taking into account the asserted inability to ship canistered fuel to Yucca Mountain. State Supp. at 3-4. This inability would assertedly "undermine[] the cost-benefit analysis" in the PFS FEIS. State Req. at 3. To the contrary, such information would not have changed any cost-benefit calculus in the FEIS, nor would a materially different NEPA analysis have ensued based on any such asserted information. The PFS FEIS enumerates a wide range of benefits flowing from the PFS facility - unaffected by any asserted inability to ship spent fuel di-rectly from PFS to a permanent repository - and expressly considers the potential need to ship 14

spent fuel back to the utilities should a permanent repository be unavailable at the end of PFS's licensing term.

As both the Board and the Commission have already ruled, the FEIS demonstrates that the PFS project will have minimal environmental impact. CLI-04-22, slip. op. at 22.24 Indeed, the Commission noted that Board had observed that a "cost-benefit analysis might not even be required for the project because the environmental harms are slight" Id. Further, where the envi-ronmental consequences are relatively insignificant, the project's overall benefits do not have to be great to allow the project to go forward. Id. Thus, as "aptly observed" by the Board "the cost-benefit analysis [is] not be 'central' to the ultimate decision" under NEPA here. Id.

The State asserts, however, that the "real benefit of the project" (referred to by the Board in ruling on Utah SS) to act as an "insurance policy" in the event a permanent repository suffers additional delays "evaporates if sites must maintain their spent fuel pools." State Req. at 4. The State, however, supplies no evidence or affidavit to support its claim that a materially different result would ensure, only mere allegation. To the contrary, the overall benefits of the PFS pro-ject identified in the FEIS as outweighing its disadvantages would remain intact even assuming the fuel would have to be shipped back to the original reactor site, or some other location, to transfer the fuel from a sealed canister. See CLI-04-22, slip op. at 24-25.25 The State has failed to demonstrate that a materially different result would ensue, i.e., a decision not to allow the pro-ject to go forward because its proffered scenario allegedly eliminates any and all potential socie-tal benefit.

Integral to the State's argument on the environmental cost side of the NEPA analysis is its claim that under the alleged DOE non-acceptance scenario spent fuel would have to be 24 Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC slip op. at 24 (August 17, 2004).

25 As set forth there by the Commission, the PFS FEIS at 9-16 concludes that the "overall benefits of the proposed PFSF outweigh the disadvantages and costs based on a consideration" of (I) "the need for an alternative to at-reactor SNF storage... ;" (2) "the minimal radiological impacts and risks from transporting, transferring and storing the proposed quantities of SNF canisters and casks;" (3) "the economic benefits that would accrue to the Skull Valley Band....;" and (4) "the absence of significant conflicts with existing resource management plans and land use plans within Skull Valley."

15

shipped back to the utility fuel owners, rather than directly shipped to a central repository. Even if State's scenario were true, it is not clear how this fact alters the NEPA analysis with respect to the transportation of the fuel. As stated, the transportation of the canisters and casks is expected to have "minimal impact" on the environment. FEIS at 9-16. The State fails to provide any ba-sis for concluding that the result of additional analysis will be materially different and only ar-gues that more analysis should be performed in this regard. State Req. at 6. The State has pro-vided neither affidavit nor evidence to conclude that multiple shipments will result in anything other than "minimal impact."

Furthermore, a situation where spent fuel might not proceed directly to a national reposi-tory was in fact already considered in the FEIS (a fact the State concedes, State Req. at 8). A review of the FEIS thus demonstrates that, now, even if the Board were to accept DOE's alleg-edly new stance regarding its lack of obligation to accept PFS fuel, the NEPA analysis would not change. The PFS FEIS states:

Service agreements (i.e. contracts) between PFS and Companies storing SNF at the proposed PFSF will require that these companies remove all SNF from the proposed PFSF by the time the PFS license is terminated and PFS had completed its licensing or regulatory obligations under the NRC license. The service agreement requirement to remove the SNF from the proposed PFSF is not dependent upon the availability of a per-manent geological repository. Therefore, if the PFS license is terminated prior to the availability of a permanent geological repository, the reactor licensees storing SNF at PFSF would continue to retain responsibility for the fuel and must remove it from the proposed PFSF site before termina-tion of the PFS license.

FEIS at 1-6 (emphasis added). This statement shows that the environmental impacts of the PFS site in case a permanent repository were unavailable - a scenario whose impact on licensees would be exactly the same as that in the scenario put forth by the State, where DOE simply re-fuses to accept fuel - was fully considered in the FEIS. Further, contrary to the State's claim that "now, in each in every case..." spent fuel will have to be shipped back to its owner, State Req. at 8, the FEIS statement is in no way limited by the amount of spent fuel that might have to be re-moved from the PFS site and transferred back to its owner. If a repository is unavailable at the 16

end of the PFS license term, ore in the State's scenario, if DOE refuses to accept the fuel, the li-censee responsible for the fuel will remove all of it from the PFS site, only to be shipped again once a permanent repository becomes available.

The State also claims that the purported need to open the welded canister and repackage the fuel poses significant environmental cost and an unanalyzed risk because of the potential for worker exposure to radiation. State Req. at 5. Again, the State has failed in its burden to dem-onstrate that a materially different result would ensue based on consideration of this information.

First, that the canisters might have to be opened and the spent fuel repackaged is already con-templated for fuel that is shipped to the Yucca facility. See Yucca Mountain FEIS quotations above. Under the State's scenario, radiological impacts to workers will occur at different loca-tions, i e., the utilities' reactor sites. However, the State has failed to prove, or even allege, that the overall impact to workers, will be materially different from that already expected. Moreover, NRC regulations preclude any worker from receiving an annual radiation does in excess of 5 rems and require that licensees make every reasonable effort to maintain radiation exposures as far below the dose limits as possible. 10 C.F.R. § 20.1003 (definitions for "annual limit on in-take" and "ALARA"). The State has neither asserted nor proved evidence that compliance with these regulations will be materially different should utilities need to repackage spent nuclear fuel.

In sum, the State's NEPA allegations fail to meet the burden imposed by § 2.734. A ma-terially different result regarding economic, societal, or environmental impacts will not ensue from the new information put forward by the State.

2.

Lack of Material Impact on PFS's Financial Qualifications The State asserts that:

[A]bsent a condition that fuel will only be accepted at PFS's Skull Val-ley site if it can be shipped directly from PFS to a permanent repository, PFS must provide reasonable assurance that each and every fuel owner will accept fuel back for repackaging, and PFS or the fuel owner will place, up front in an escrow account, sufficient funds to cover the cost of fuel shipment back to the reactor or other facility for repackaging.

17

State Req. at 2. In support of this part of the contention, the State asserts that "[t]he reasonable assurance the Commission found that PFS provided in its financial plan did not involve an evaluation of operating revenue required to ensure that all casks will be shipped back to the fuel owner." State Req. at 8. In its supplement, the State further claims that because each and every cask to be shipped from the PFS site will not, as anticipated, be paid for by DOE, there is a gen-eral unresolved issue of fact as to the lack of financial assurance in the operation of the 4,000 cask storage facility. State Supp. at 4.

The State's assertions, however, are baseless. They totally ignore the previous litigation in this proceeding on PFS's financial qualifications to construct and operate the PFS facility in Contention Utah E/Confederated Tribes B ("Utah E"). This litigation clearly established that PFS's utility customers are responsible for removing the spent fuel from the PFS site at their own expense. Thus, the cost of transporting spent fuel from the PFS site is not a PFS expense regard-less of its destination.

Specifically, in the Board's initial granting of summary disposition on basis 5 of Utah E, (concerning allocation of financial responsibility among the owners of the spent fuel and PFS),

the Board relied on commitments that PFS would require "that each customer retain title to its

[spent] fuel throughout the storage period" and would include "in each customer service agree-ment an assignment of legal financial responsibility among the customers as the owners of the spent fuel and PFS." Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installation)

LBP-00-06, 51 NRC 101, 126 (2000). Therefore, in granting summary disposition, the Board required PFS to include in each service agreement provisions that would provided for An assignment of legal and financial responsibility between the custom-ers, as the owner of the spent fuel, and PFS including an acknowledge-ment that each customer must retain title to its fuel throughout the stor-age period.

Id. at 137. In its review of the Board's decision, the Commission required that this commitment (and others made by PFS and relied upon by the Board) be made conditions to any license issued for the PFS facility. It further issued a remand that required PFS to develop a Model Service 18

Agreement ("MSA") incorporating these conditions and that provided the State an opportunity to challenge the adequacy of the MSA's implementation of the license conditions.

In accordance with the Commission remand, PFS developed a MSA which included an assignment of legal and financial responsibility between PFS and the customers (as owners of the spent fuel) for spent fuel to be stored at the PFS site. As part of the remand, the Board revisited the appropriateness of its previous summary disposition rulings in light of the MSA. With re-spect to basis 5 of Utah E, the Board reviewed the relevant provisions of the MSA and found that summary disposition "on this subpart of Contention Utah E is again appropriate." Memorandum and Order (Rulings on Summary Disposition Motion and other Filings Relating to Remand from CLI-00-13) (May 27, 2003) ("MSA M&O") at 67. Among the provisions of the MSA found ac-ceptable by the Board in renewing its grant for summary disposition of basis 5 was Section 24.4 of the MSA which makes each "customer/owner responsible for removing its SNF from the site at the end of the agreement at its own expense." Id. at 66 (emphasis added).

In short, the issue of financial responsibility for removal of the casks at the site at the end of the term has been litigated and resolved. The State raises no new issues that would materially alter this outcome.26 IV.

SHOULD UTAH UU BE ADMITTED, THE BOARD SHOULD EXERCISE ITS PRO-TANTO AUTHORITY AND APPROPRIATELY AMEND THE FEIS As set forth above, we respectfully submit that admitting Utah UU would be inappropri-ate and improper. However, should Contention UU be admitted to the proceeding, the Board should address the issue in the first instance, rather than have the Staff prepare a supplement to the FEIS. 10 C.F.R. § 51.102 provides that the initial decision of the presiding officer or the li-censing board "will constitute the record of decision" on an action for which an FEIS is required 2 6 The State claims that in order to ensure that an owner will not "abandon" its fuel at the PFS site, an escrow ac-count should be established with "sufficient funds to cover the cost of fuel shipment back to the reactor or other fa-cility for repackaging." State Req. at 8-9, 10. Both Commission and the Board have previously rejected analogous arguments by the State that PFS's customers would simply ignore their contractual obligations and have furthermore found that the remedy mechanisms in Section 15 of the MSA provide sufficient protection to PFS to assure customer fulfillment of their obligations under the MSA. Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Instal-lation), CLI-04-10, 59 NRC _, slip op. at 10 (March 24, 2004); MSA M&O at 61, 71-72 19

and for which a hearing is held under Part 2, Subpart G. If a licensing board reaches a conclu-sion different from that set forth in the FEIS, the statement "is simply deemed amended pro tanto." Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility),

ALAB-296, 2 NRC 671, 680 (1975); accord Philadelphia Electric Co. (Limerick Generating Sta-tion, Units 1 and 2), ALAB-819, 22 NRC 681, 705-07 (1985). The board's conclusion is ordinar-ily based on evidence presented by the parties. Id. Therefore, in assessing Contention UU, the Board can consider all of the evidence and information put forward by the parties in their respec-tive pleadings.27 V.

CONCLUSION For the foregoing reasons, the Board should reject proposed Contention Utah UU.

Respectfully submitted, Jay E. Silberg Paul A. Gaukler D. Sean Barnett SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037 December 6, 2004 Counsel for Private Fuel Storage L.L.C.

Document#: 1447929 v.1 27 The circumstances present here differ markedly from those present with respect to SUWA B referred to by the Board in its November Order. There, the Board denied the Applicant's summary disposition motion because the Staff had not formally evaluated the rail-line alternatives at issue, and the FEIS containing such an evaluation was then soon expected. Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installation), LBP-03-30, 58 NRC 454,468 (2003). Here, the Staffs evaluation is complete and the FEIS available. Any material disputes of fact or law regarding the sufficiency of the Staffs evaluation can be aired by the parties' pleadings'and submissions, and then ruled on by the Board.

20

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of PRIVATE FUEL STORAGE L.L.C.

(Private Fuel Storage Facility)

)

))

))

Docket No. 72-22 ASLBP No. 97-732-02-ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Response to State of Utah's Request for Admission of Late-Filed Contention Utah UU were served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by U.S. Mail, first class, postage prepaid, this 6th day of December, 2004.

Michael C. Farrar, Esq., Chairman Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 e-mail: MCF(i)nrc.gov Dr. Peter S. Lam Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 e-mail: PSL()nrc.gov Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudications Staff e-mail: hearingdocket(~,nrc.gov (Original and two copies)

Dr. Paul B. Abramson Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 e-mail: pba(Thnrc.gov

• Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

• Adjudicatory File Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

Sherwin E. Turk, Esq.

Laura C. Zaccari, Esq.

Office of the General Counsel Mail Stop 0-15 B18 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 e-mail: pfscase(anrc.gov Denise Chancellor, Esq.

Assistant Attorney General Utah Attorney General's Office 160 East 300 South, 5th Floor P.O. Box 140873 Salt Lake City, Utah 84114-0873 e-mail: dchancellor().utah.gov John Paul Kennedy, Sr., Esq.

David W. Tufts, Esq.

Confederated Tribes of the Goshute Reservation and David Pete Durham Jones & Pinegar 111 East Broadway, Suite 900 Salt Lake City, Utah 84105 e-mail: dtufts(.diplaw.com Joro Walker, Esq.

Land and Water Fund of the Rockies 1473 South 1100 East Suite F Salt Lake City, UT 84105 e-mail: lawfund(ainconnect.com Diane Curran, Esq.

Harmon, Curran, Spielberg &

Eisenberg, L.L.P.

1726 M Street, N.W., Suite 600 Washington, DC 20036 e-mail: dcurran(i)harmoncurran.com Tim Vollmann, Esq.

Skull Valley Band of Goshute Indians Suite 302 Albuquerque, NM 87120 e-mail: tvolimann(hotmail.com Paul EchoHawk, Esq.

Larry EchoHawk, Esq.

Mark EchoHawk, Esq.

EchoHawk PLLC P.O. Box 6119 Pocatello, ID 83205-6119 e-mail: paul(eechohawk.com

• By U.S. mail only Paul A. Gauk er 2

a DI: DOEIRW-0406 REV 06.'

WBS:9:

QA: QA Civilian Radioactive Waste Management System Requirements Document Revision 06 September 2004 Prepardd by:

U.S. Department ofEnergy Office of Civilian Radioactive Waste Management Office of Systems Analysis and StrategyDevelopment E1000 Independence Avenue, SW Washington, D.C. 20585 Having determined completion of technical review underprocedure AP-6.28Q and compliance with requirements in accordance with the Program Change Control procedure LP-PMC-009, the change to the baseline document is approved for Telease.

SIGNATURE ON FILE

i. L Margaret S. Y. Chu, Ph. D Director Office of Civilian Radioactive Waste Management Date S

..1 SI t

.

5'

Title:

Civilian Radioactive Waste Management System Requirements Document DI: DOE/RW-0406 REV 06 Page: vii OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT PROGRAM BASELINE CHANGE CONTROL BOARD REVISION/CHANGE RECORD Document Number: DOE/RW-0406/AOOOOOOOO-00811-1708-0003 Document

Title:

Civilian Radioactive Waste Management System Requirements Document Rev/DCN BCP Number Revision/Change Description Pages Number & Date Affected Rev. 01 BCP-00-94-0001 Incorporates the Multi-Purpose Canister (MPC) concept into All March 1994 the CRWMS technical baseline.

Rev. 01, DCN 01 BCP-00-94-0005 Resolves issues needed for the procurement of the MPC Misc.

May 1995 system.

Also incorporates the collocation of the Cask Maintenance Facility at the MGDS.

Additional changes were made to address CAR HQ-93-031.

Rev. 02 BCP-00-94-0005 General revision to incorporate the Program Approach.

All December 1995 Rev. 02, DCN 01 BCP-00-96-0002 Provides notice to users on MPC Policy Change, i.e., The Misc.

June 1996 CRWMS will accept and accommodate a variety of cask/canister systems for commercial SNF which are currently available or are being developed. These may be individual spent fuel assemblies; or single, dual or triple purpose cask or canister systems. The existing MPC design, if deployed, will be in accordance with the MPC procurement specification.

Until specific canister or cask systems are developed, certified and licensed, interface requirements affecting the designs of CRWMS structures, systems and components must be adequately documented and controlled in accordance with the OCRWM QARD (DOEIRW-0333). Some items may be identified as To Be Verified or To Be Determined.

Rev. 03 BCP-00-96-0009 Streamlines the CRD to include only Program-level All November 1996 requirements. The Waste Acceptance System Requirements Document (SRD), Storage SRD and Transportation SRD are transferred to the WAST Project (the Mined Geologic Disposal System Requirements Document was previously transferred to YMSCO by BCP-01-96-0047).

Custodian requirements (e.g., DOE SNF) will be transferred from the WASRD to the CRD in the next revision of the CRD.

Rev. 04 BCP-00-98-0004 Incorporates Producer/Custodian (DOE SNF, HLW, Navy Misc.

May 1998 SNF) requirements and the Hanford 15 fR. canister.

Rev. 05 BCP-00-99-0001 Incorporates Immobilized Plutonium Waste Form (IPWF)

Misc.

January 1999 and mixed oxide SNF into the HLW requirements.

Incorporates the signed MOA for Acceptance of DOE SNF and HLW as well as naval SNF. Incorporates for planning purposes expanded repository capacities. Defines the Level 0 Scope Baseline. Incorporates the repository closure policy. Incorporates DOE SNF in Government-managed Nuclear Material.

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 1 DI: DOE/RW-0406 REV 06

1. INTRODUCTION 1.1 IDENTIFICATION This document specifies the top-level requirements for the Civilian Radioactive Waste Management System (CRWMS). The document is referred to herein as the CRD, for CRWMS Requirements Document.

1.2 PURPOSE The CRD addresses the requirements of DOE Order 413.3, Program and Project Management for the Acquisition of Capital Assets, by providing the Secretarial Acquisition Executive (Level

0) scope baseline and the Program-level (Level 1) technical baseline.

The Secretarial Acquisition Executive approves all of OCRWM's critical decisions and changes against the Level 0 baseline; the OCRWM Director approves changes against the Level 1 baseline. These baselines establish the top-level technical scope of the CRMWS and its three projects, as described in section 1.3.2.

In turn, organizations responsible for design, development, and operation of system elements described in this document will prepare subordinate project-level documents that are consistent with the CRD. Changes to requirements will be managed in accordance with established change control procedures.

The CRD establishes requirements for the design, development, and operation of the CRWMS.

It specifically addresses the top-level governing laws and regulations (e.g., Nuclear Waste Policy Act (NWPA), 10 CFR Part 63, 10 CFR Part 71, etc.) along with specific policy, performance requirements, interface requirements, and system architecture.

The CRD shall be used as a vehicle to incorporate specific changes in technical scope or performance requirements that may have significant program implications.

Such may include changes to the program mission, changes to operational capability, and high visibility stakeholder issues.

The CRD uses a systems approach to: 1) identify key functions that the CRWMS must perform,

2) allocate top-level requirements derived from statutory, regulatory, and programmatic sources, and 3) define the basic elements of the system architecture and operational concept. Project-level documents address CRD requirements by further defining system element functions, decomposing requirements into significantly greater detail, and developing designs of system components, facilities, and equipment.

The CRD addresses the identification and control of functional, physical, and operational boundaries between and within CRWMS elements. The CRD establishes requirements regarding key interfaces between the CRWMS and elements external to the CRWMS. Project elements define interfaces between CRWMS program elements.

The Program has developed a change management process consistent with DOE Order 413.3.

Changes to the Secretarial Acquisition Executive and Program-level baselines must be approved by a Program Baseline Change Control Board. Specific thresholds have been established for identifying technical, cost, and schedule changes that require approval.

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 2 DI: DOE/RW-0406 REV 06 The CRWMS continually evaluates system design and operational concepts to optimize performance and/or cost. The Program has developed systems analysis tools to assess potential enhancements to the physical system and to determine the impacts from cost saving initiatives, scientific and technological improvements, and engineering developments.

The results of systems analyses, if appropriate, are factored into revisions to the CRD as revised Programmatic Requirements.

1.3 SYSTEM OVERVIEW The mission and waste management concept of the system and system elements are described in this section.

1.3.1 CRWMS Mission The NWPA assigned the U.S. Department of Energy (DOE) the mission to develop and operate an integrated waste management system for acceptance, transportation, and disposal of Spent Nuclear Fuel (SNF) and High-Level Radioactive Waste (HLW). The NWPA also established the Office of Civilian Radioactive Waste Management (RW) to carry out that mission. RW, in turn, is developing the CRWMS as the operational and physical system capable of performing the integrated management system functions. The mission of the CRWMS is to manage and dispose of SNF and HLW in a manner that protects the health, safety and the environment; enhances national and energy security; and merits public confidence.

The CRWMS is developing a monitored geologic repository (MGR) at Yucca Mountain, Nevada

- a site recommended by the President and approved by Congress in July 2002. The MGR is being licensed to dispose of 70,000 metric tons of SNF and HLW, as authorized by the NWPA, Section 114(d). Projections of SNF and HLW that are expected to be generated indicate that significantly more than 70,000 metric tons will require geologic disposal.

Although RW has analyzed the impacts of disposal of more than 70,000 metric tons in a single repository, RW will request a license from the Nuclear Regulatory Commission for emplacement of only 70,000 metric tons. In accordance with the Nuclear Waste Policy Act, the Secretary of Energy will report to Congress on the need for a second repository between January 1, 2007, and January 1, 2010. The report will consider the total projected future inventory of SNF and HLW, the physical capacity of the first repository site at Yucca Mountain, and the capabilities of existing and future waste form development technologies.

1.3.2 Waste Management System Concept The mission of the CRWMS is accomplished by three system elements: Waste Acceptance, Transportation, and Monitored Geologic Repository.

These system elements work in conjunction with each other to fulfill a variety of functional and performance requirements intended to make the transportation and disposal of SNF and HLW in a geologic medium safe, environmentally acceptable, and cost effective.

The CRWMS will provide appropriately documented conformance verification, accountability, and traceability of the SNF and HLW from initial acceptance to final closure of the MGR.

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 3 DI: DOE/RW-0406 REV 06 CRWMS Waste Transportation Acceptance Element Element Element Figure 1. CRWMS Architecture The responsibilities of each element are summarized below:

• The Waste Acceptance element is the primary interface with Purchasers (non-Federal entities who have entered into a contractual agreement with DOE), Custodians (government entities possessing SNF considered candidate for disposal), and Producers (generators of HLW). The element establishes the waste acceptance and waste form requirements; manages the contract/agreement process; accepts title to the waste; and maintains records of CRWMS capacity, SNF/HLW quantities, location and characteristics.

• The Transportation element is responsible for designing, acquiring, constructing, operating, and maintaining the infrastructure necessary to transport SNF and HLW from Purchaser/Custodian/Producer sites to the Monitored Geologic Repository. This element is also responsible for establishing the institutional relations with industry, States, tribes, and local governments needed to support the Transportation mission.

• The Monitored Geologic Repository element is responsible for designing, licensing, constructing, operating, and permanently closing the geologic repository at the Yucca Mountain site to emplace and isolate 70,000 metric tons of SNF and HLW.

The CRWMS architecture is influenced by supporting elements that ensure a systems approach is utilized in the development, evolution, and acquisition of the system elements.

These supporting elements ensure that continued, ongoing enhancements are factored into all Program activities, including:

• Systems Analysis and Strategy Development supporting element implements technical management approaches at the Program-level and provides policy guidance to system elements.

These approaches include top-level design and operations concept system analyses and analyses of total system life cycle costs of the CRWMS.

• Science and Technology and International supporting element evaluates alternative, cutting-edge technologies and improved scientific methodologies, and recommends initiatives for implementation to system elements for further development. This

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 4 DI: DOE/RW-0406 REV 06 supporting element also monitors international approaches to waste management and incorporates beneficial plans, policies, and techniques into the CRWMS.

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 8 DI: DOE/RW-0406 REV 061 3.2 OVERALL SYSTEM-LEVEL REQUIREMENTS 3.2.1 Overall System Performance A. The CRWMS shall be designed to accept, transport, and dispose of commercial SNF, DOE SNF, vitrified defense HLW, and vitrified commercial HLW, in accordance with the NWPA and implementing regulations.

B. The CRWMS shall be capable of receiving SNF and HLW at the annual receipt rates are specified in Table 1.

Table 1. CRWMS Receipt Rates;' 3 (in MTHM or EquivalentlYear (nominal))

Commercial SNF and HLW Govemrnment-managed Nuclear Materials Year Received Annually at Year Repository Received Annually at Repository 2010 400 Naval SNF - 3 canisters DOE SNF and DHLW4 Naval SNF -3 canisters 2011 600 DOE SNF and DHLW 4 2012 1,200 Naval SNF -6 canisters 1

1DOE SNF and DHLW4 Naval SNF -6 canisters 1

2DOE SNF and DHLW 4 Naval SNF - 12 canisters 2014 3,000 DOE SNF and DHLW4 2015-20323,000

[Balance of naval SNF, DOE SNF, and DHLW 2033 1,800 within planning allocation]

TOTAL 63,000 7,000 X The actual operational load is a function of the numbers, types and sizes of casks and canisters in which the SNF and HLW are accepted from the points of origin. Since these specific numbers will not be determined until PurchaserfProducer/Custodian agreements are reached and schedules are established, the receipt rates are estimated in terms of desired systems-level MTHM acceptance rates.

2 The receipt schedule of Government-managed nuclear materials will be provided by the DOE Office of Environmental Management (EM) and the Naval Nuclear Propulsion Program (NNPP), in accordance with memoranda of agreement (MOA), S years prior to acceptance. For planning purposes, naval SNF is to be included among the earliest shipments to the repository.

3 The rates in this schedule are targets only and do not create any binding legal obligation on the Department of Energy.

4Target receipt rates for these wastes will be further defined in the Integrated Acceptance Schedule developed in accordance with the RW/NNPP and RW/EM MOAs.

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 9 DI: DOE/RW-0406 REV 061 C. The CRWMS shall accept 70,000 MTHM or equivalent of SNF/HLW for disposal in the first repository as authorized by the NWPA, Section 114(d). The allocation, by waste type, is specified in Table 2.

Table 2. Amount of SNFIHLW To Be Accepted in First Repository (in MTHM or Equivalent)

Type Amount Commercial SNF and HLW 63,000 Defense HLW 4,667 DOE and naval SNF 2,333 Total 70,000 D. The CRWMS shall only accept, transport, and dispose of SNF or HLW that is not subject to regulation as hazardous waste under the Resource Conservation and Recovery Act of 1976 (RCRA) Subtitle C in the first geologic repository licensed by NRC under the NWPA.

E. CRWMS elements and facilities shall be capable of accommodating a range of storage and transportation technologies, including multipurpose, dual-purpose, and single-purpose canisters, as well as bare SNF assemblies.

F. CRWMS facilities shall be capable of opening sealed storage/transportable commercial canisters, handling the SNF, and managing associated site generated waste streams.

G. The CRWMS design shall comply with the agreements established under the Integrated Interface Control Document (DOE/RW-051 1) to ensure:

1. compatibility of DOE-owned SNF and HLW waste forms with MGR surface facility interfaces, including canister handling interfaces, and

2. compatibility between transportation equipment (e.g.,

transporters) and transported items (e.g., casks and canisters) with mechanical and envelop interfaces.

H. The CRWMS is responsible for the transport of DOE SNF and HLW in casks certified by the NRC. NNPP is responsible for canistering and transporting naval SNF to the repository.

I.

CRWMS facilities shall manage hazardous, nonhazardous, and mixed radioactive wastes in a cost effective manner that meets or exceeds compliance with applicable regulations and protects the health and safety of the public, workers, and the environment consistent with DOE Order 0 450.1, Environmental Protection Program.

Title:

Civilian Radioactive Waste Management System Requirements Document Page: 10 DI: DOE/RW-0406 REV 061 J. All CRWMS element structures, systems, and components shall be designed and fabricated in accordance with appropriate industry codes, standards, and engineering principles and practices with particular attention to those which incorporate system safety, human factors, reliability, availability, maintainability, habitability standards, and environmental protection.

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 Readers Guide and Summary U.S. Department of Energy Office of Civilian Radioactive Waste Management DOEIEIS-0250 February 2002

Summary issued the Supplement to the Draft EIS that evaluated the repository design described in the Yucca Mountain Science and Engineering Report: Technical Infonnation Supporting Site Recommendation Consideration, which it issued in May 2001. The flexible design analyzed in the Supplement includes an improved understanding of the interactions of potential repository features with the natural environment, the addition of design features for enhanced waste containment and isolation, and evolving regulatory requirements. Rather than analyzing the three thermal load scenarios (high, intermediate, and low thermal loads) as in the Draft EIS, the Final EIS analyzes a range of operating modes (higher-to lower-temperature) for the flexible design. Because (1) thermal load is no longer the descriptive parameter for specifying thermal management scenarios for the proposed repository, and (2) an effort was made in the Final EIS to avoid confusion and to clarify the impacts of the Proposed Action, DOE has not carried the earlier thermal load scenarios through to the Final EIS. (A comparison between the thermal load scenarios and the repository operating modes for the flexible design is provided in the Supplement to the Draft EIS.)

FLEXIBLE DESIGN The flexible design includes the ability to operate the proposed repository in a range of operating modes that are characterized by higher and lower temperatures and associated humidity conditions.

Higher-temperature means that at least a portion of the emplacement drift rock wall would have a maximum temperature above the boiling point of water at the elevation of the repository.

The ranges analyzed for the lower-temperature operating mode include conditions under which the drift rock wall temperatures would be below the boiling point of water, and under which the surface temperature of the waste package would not exceed 850C (1 850F).

Modifications from the repository design introduced in the Draft EIS and analyzed in the Supplement to the Draft EIS include:

The ability to blend hotter and cooler commercial spent nuclear fuel assemblies (the assemblies produce most of the heat generated by waste materials in a geologic repository) to control the heat generation of waste packages The flexibility to include a facility on the surface for aging (that is, cooling) of hotter commercial spent nuclear fuel to control the heat of waste packages Increased ventilation (forced and natural) to enable a cooler repository Increased spacing between emplacement drifts to allow a moisture pathway between drifts The operational flexibility to vary the spacing between the waste packages in a drift to manage the heat load Modified waste packages and the addition of titanium drip shields to improve overall performance and divert moisture The purpose of the flexible design is to improve the long-term performance of the proposed repository, and reduce associated uncertainties.

DOE would receive materials at the repository in one of three configurations: uncanistered fuel (spent nuclear fuel placed directly in a shipping cask), dual-purpose canisters (containers designed to store and transport commercial spent nuclear fuel), or disposable canisters (canisters for spent nuclear fuel or high-level radioactive waste with multiple specialized overpacks to enable their storage, transportation, and emplacement in a repository). All DOE materials (spent nuclear fuel and high-level radioactive waste)

S-12

Summary would be received in disposable canisters. Commercial spent nuclear fuel would be received in any of the three packaging configurations. DOE cannot predict the particular combination of uncanistered fuel, dual-purpose canisters, or disposable canisters it would receive at a repository because the managers of the commercial sites would determine the canister type, if any, they will use. For that reason, in the Draft EIS the Department analyzed two fuel packaging scenarios [mostly uncanistered and mostly canistered (including dual-purpose canisters and disposable canisters)] that cover the possible range of repository and transportation impacts to human health and the environment. DOE's analysis shows that the mostly uncanistered fuel packaging scenario would result in the highest short-term impacts, with the exception of (1) the empty dual-purpose canisters that some commercial sites could use that would require disposal or recycling, and (2) some attributes of offsite manufacturing of disposable canisters. To simplify the presentation in this Final EIS, the impacts throughout this document include those associated with the mostly uncanistered fuel packaging scenario, plus the impacts of the waste management and offsite manufacturing impacts, which are also included to represent potential impacts associated with the canistered scenario. This approach ensures that the impacts presented in this Final EIS would bound the impacts of any packaging scenario ultimately selected.

I DEFINITIONS OF PACKAGING TERMS Shipping cask: A vessel that meets applicable regulatory requirements for shipping spent nuclear fuel or high-level radioactive waste.

Dual-purpose canister: A metal vessel suitable for storing (in a storage facility) and shipping (in a shipping cask) commercial spent nuclear fuel assemblies. At the repository, dual-purpose canisters would be removed from the shipping cask and opened. The spent nuclear fuel assemblies would be removed from the canister and placed in a disposal container or in the fuel pool to accommodate blending. The opened canister would be recycled or disposed of offsite as low-level radioactive waste.

Disposable canister: A metal vessel for commercial or DOE spent nuclear fuel assemblies or solidified high-level radioactive waste suitable for storage, shipping, and disposal.

At the repository, the disposable canister would be removed from the shipping cask and placed directly in a disposal container. The disposable canister is sometimes referred to as a multi-purpose canister in discussions of repository design.

Uncanistered spent nuclear fuel: Commercial spent nuclear fuel placed directly into shipping casks. At the repository, spent nuclear fuel assemblies would be removed from the shipping cask and placed in a disposal container or in the fuel pool to accommodate blending.

Disposal container: A container for spent nuclear fuel and high-level radioactive waste consisting of the barrier materials and internal components. The filled, sealed, and tested disposal container is referred to as the waste package, which would be emplaced in the repository.

Waste package: The filled, sealed, and tested disposal container that would be emplaced in the repository.

.*-.11~-'

~

~.

~.~

Material received at the repository would be unloaded from the shipping casks and placed in disposal containers called wastepackages. To control the heat generation of the waste packages, the flexible design includes thermal blending of commercial spent nuclear fuel assemblies. Remote-controlled transporters would place the waste packages in emplacement drifts.

DOE considered waste packages containing two layers-a corrosion-resistant Alloy-22 shell on the outside and a stainless-steel inner shell to provide structural support. The highly corrosion-resistant outer S-13

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 Volume I - Impact Analyses Chapters 1 through 15 U.S. Department of Energy Office of Civilian Radioactive Waste Management DOE/EIS-0250 February 2002

Proposed Action and No-Action Alternative Proposed Action Flepositoryfacilities and operations I

~Surface and.

l Subsurface facilities Higher.

Lower-temperature temperature operating 0

operating mode modes Transportation activities K

National Mostly legal-weight Mostly rail truck scenario scenario Nevada Mostly Mostly legal-weight rail and heavy-haul truck scenario tnuck scenarios flTI Rail Heavy-haul truck implementing Implementing alternatives alternatives n-rn 111m1 Figure 2-5. Analytical scenarios and implementing alternatives associated with the Proposed Action.

2.1.1.1 Packaging Scenarios DOE operations at repository surface facilities would differ depending on how the spent nuclear fuel in shipping casks was packaged. Commercial spent nuclear fuel could be received either uncanistered or in disposable or dual-purpose canisters.

The EIS assumes that DOE spent nuclear fuel and high-level radioactive waste would be shipped to the repository in disposable canisters. In addition, it evaluates the following packaging scenarios for commercial spent nuclear fuel to cover the potential range of environmental impacts from repository surface facility construction and operation:

A mostly uncanistered fuel scenario A mostly canistered fuel scenario For this Final EIS, DOE simplified the presentation of the packaging scenarios that were analyzed in the Draft EIS by analyzing only one bounding packaging scenario (the Draft EIS considered both mostly canistered and uncanistered scenarios). DOE was able to simplify the presentation of impacts in the Final EIS because the Draft EIS analysis demonstrated that the mostly uncanistered fuel packaging scenario bounded the analysis in all cases with the exception of (1) the empty dual-purpose canisters that some commercial sites could use that would require disposal or recycling, and (2) some attributes of offsite manufacturing of the disposable canister. The presentation of potential impacts in Chapter 4 of this Final 2-7

Pmposed Action and No-Action Alternative principal facilities in the Radiologically Controlled Area for handling spent nuclear fuel and high-level radioactive waste would be the Carrier Preparation Building and the Waste Handling Building. If DOE uses aging to achieve lower-temperature operation, the commercial nuclear fuel aging area would also be included within the Radiologically Controlled Area. Other support facilities in the North Portal Operations Area would include basic facilities for personnel support, warehousing, security, parking and visitors center, and transportation (motor pool). A concrete plant for fabricating and curing precast components and supplying concrete for in-siti placement would be near the North Portal Operations Area.

2.1.2.1.1.1 Waste Handling. When a legal-weight or heavy-haul truck or a railcar (depending on the transportation mode) hauling a cask containing spent nuclear fuel or high-level radioactive waste arrived at the repository site, it would move through the security check into the Radiologically Controlled Area parking area or to the Carrier Preparation Building. Operations in the Carrier Preparation Building would include performing inspections of the vehicle and cask, removing barriers from the vehicle that protected personnel during shipment, and removing impact limiters from the cask. The vehicle would then move to the Waste Handling Building for unloading.

At the Waste Handling Building carrier bay, the carrier/cask handling system would lift the transportation cask to a vertical position and place it on a cask transfer cart. Depending on the cask's contents, the cart would move to one of two transfer systems. Casks that contain disposable canisters (for example, DOE canisters that would not be opened but transferred, as is, directly into a disposal container) would go to the canister transfer system. Casks that contain commercial spent nuclear fuel in dual-purpose canisters or individualfitel assemblies would go to the assembly transfer system. Figure 2-11 is a flow diagram of Waste Handling Building operations.

The Waste Handling Building would have one canister transfer line that moves the disposable canisters through the building to prepare the waste for emplacement in the repository. The system would move arriving casks through an air lock on a transfer cart into a cask preparation area. Once a cask arrived inside the cask preparation area, workers would use remotely operated equipment to vent and sample gases from the cask, remove the lid bolts, and open the cask. An overhead crane would move the cask to a transfer cart, which would take the cask to a shielded transfer area. Inside the transfer area, machines would remove the canister from the cask. The canister could go directly into a disposal container for repository emplacement, or to a holding rack for later placement in a disposal container. Another transfer cart would move loaded disposal containers to the disposal container handling system. A transfer cart would move the empty transportation casks back to the cask decontamination area, where they would be surveyed and decontaminated, if required, before return shipment. From the decontamination area, casks would be moved to the carrier/cask handling system, which would place them back on a transporter. The empty cask and cask transporter would return to the Carrier Preparation Building to be readied for offsite shipment.

The Waste Handling Building would also have two assembly transfer lines. Each line would operate independently to handle waste throughput and support maintenance operations. The assembly transfer process would begin by moving the cask on a transfer cart through the air lock into the cask preparation area. Once inside the cask preparation area, workers would use remotely operated equipment to inspect, vent, and cool the cask and remove the cask lid bolts. A large overhead crane would lift the casks and place them in a cask unloading pool, where fuel-handling machines would open the casks and unload the fuel assemblies. If the cask contained dual-purpose canisters, they would be removed and placed in an overpack, where the top of the canister would be cut off. The system would move the empty casks and dual-purpose containers back out through the cask decontamination area. The fuel-handling machines would transfer the fuel assemblies, one at a time, to a holding pool, where they would be placed in assembly baskets. A transfer cart would move the baskets containing the fuel assemblies underwater.

from the assembly holding pool through a transfer canal to a fuel-blending inventory pool. (See 2-21

Waste Handling Building

.I.-..,;.n-Canister transfer system From Carrier Preparation Building

• Casks

• Large canisters

• Small canisters

• Disposal containers

~~~........ l.

X.....-

z

fi! 4 Disposal container handling system Disposal containers (called waste packages after being filled stead and tested).

To Waste

s Emplacement

> Operations t~J e.)

10

-i R0 (51 Carrier/cask handling system

• Casks

• Empty canisters Assembly transfer system

• Casks

• Dual-purpose canisters

• Spent nuclear fuel assemblies

• Disposal containers Spent nuclear fuel blending Inventory pools Orrawn not to sale.

&sw.

CiAS lsMa9 DMcm. o" ri2-.io Figure 2-11. Key components of Waste Handling Building operations.

Proposed Action and No-A ction Alternative Section 2.1.2.1.1.2 for further information on the processes for blending, use of small waste packages, and aging to meet the flexible design linear thermal load criteria.) When a fuel assembly was selected from the fuel inventory pool for packaging, a transfer cart would move it underwater back through the fuel blending pool to an inclined transfer canal and onto a cart that connects to the assembly drying area.

After fuel assemblies arrived at the assembly drying area, a fuel-handling machine would transfer them into one of two drying vessels. After drying, the system would retrieve the assemblies and transfer them, one at a time, to a disposal container. The empty assembly baskets would be returned to the pool area for reuse. After installation of the sealing device and the inner lid, the system would then evacuate the disposal container internal cavity and fill it with nitrogen gas to exclude oxygen and prevent corrosion from the inside of the waste package. Finally, the transfer cart would transfer the container to the lid welding and inspection area.

The disposal container handling system would receive loaded disposal containers from both the canister transfer system and the assembly transfer system. Each disposal container would again be evacuated and filled with helium, after which the container's lids would be welded and the welds inspected. If the welds meet inspection criteria, the sealed disposal container would be reclassified as a waste package. A crane would transfer the waste package to the transporter loading area, where it would be decontaminated and placed on a pallet, then on a transporter for emplacement in the subsurface repository.

For more details on waste handling, see Section 2.2.4.2 of the Science and Engineering Report (DIRS 153849-DOE 2001).

2.1.2.1.1.2 Approach to Fuel Blending. Spent nuclear fuel and high-level radioactive waste arriving at the repository would be in solid form, but in a variety of types and sizes. Hence, the materials would arrive in a variety of transportation casks, all certified for use by the Nuclear Regulatory Commission. Commercial spent nuclear fuel would arrive as either individual fuel assemblies placed directly into transportation casks, or in dual-purpose canisters in transportation casks that would have to be opened to remove the fuel assemblies. DOE spent nuclear fuel and high-level radioactive waste would arrive in disposable canisters (that is, canisters that would not be opened, but would be transferred directly into a disposal container). Because of the variety of waste forms to be disposed of, about 10 different designs for disposal containers (called waste packages after being loaded, sealed, and certified) would be needed (DIRS 153849-DOE 2001, Section 2.2.1).

The radioactive decay process generates heat. The concentrations of particular isotopes would vary among the different waste forms, and among different fuel assembles in the same type of waste form, so different waste packages would generate different amounts of heat. Because the repository would have established temperature limits, DOE would establish a maximum heat output for all waste packages. For the repository, the maximum heat output would be 11.8 kilowatts per waste package (DIRS 153849-DOE 2001, Section 2.2.1).

The limit on heat output from individual waste packages would impose special considerations for operations and costs. The DOE strategy for controlling heat output would be to load waste packages that mixed low-heat-output spent nuclear fuel with high-heat-output spent nuclear fuel to balance total waste package heat output. This process, calledfiel blending (DIRS 153849-DOE 2001, Section 2.2.1), would apply only to commercial spent nuclear fuel, which generates much more heat than DOE spent nuclear fuel or high-level radioactive waste (see Appendix A).

To manage heat output, DOE would hold some fuel assemblies in the fuel blending pool in the Waste Handling Building inventory until they generated less heat from radioactive decay or until additional low-heat-output fuel assemblies arrived for blending. The repository would be designed with a fuel blending inventory capacity of approximately 5,000 MTHM, or 12,000 spent nuclear fuel assemblies. By 2-23

l j.Depaftment of Energy Waiv1*toin, DC 2051S5

-MAY 3, 2WO TheH Honorblc Angus S. KinMJr.

Gvernor of Maine I State House Stadon Augusta, Malue 04333'-OO0

Dtae o ~g Secrcty Richwdson hu received your Iettr of Apui 4, 2000 to Nuclear Regulatory C6mrnlssloa Chalrman Meserve 9a9ts requested dtat I respond on bchaf otht Deparnzcnt of Energy. Your lener provlded CihAmad Mesiive with commaents On behalf of the Sw of Maine oA ihZ amnmlssion's proposed ndte 6S Fed. Rec. 3397, which amends 10 CFR Nt 7214 to approve te NAC-UMS Ujdvcrsci StMe Sysem tor spent nulear fel.

The Deparment ofEnei bes yo iewt d hspent fucl a Maint Ysnke nust be stored In a innne: that ensures the pt eov of te public bulth at safely. The N:Suclear Regletory Comrnnsson ha he mponslltlcy to unsure that storae casks are

• desisscd. febtued ani~ operated In mannet s

cw 5 Wthobjetive Is meL I am sure z ;

hnxt Chainu tv will idrss Aa*.u y the ftsclead concnia ralsod In your Your letr also requtst that the Co

=sion as AP*-=quWte tw pproval of the prmposed rulce, equirc binding asrurances from tfe Diepiment of Enersy th the Depuarnt will azpept spent lucl faj traport and disposaJ that has ben stored In accordance with VRC appmed prOde&

. It Is my belief that diro IS wno need for the

• Comaisioin to obtain such a ncr s from %be Depnzea as they slreardy t wider the tcrms of the contct for disposalhl te Deprte hs with Waine Yankee Atic Power Compzny. The cotrict tyct the a ccp transport, and disposl of all spnt Duclear fudl from tht Malmc Yankee ioctor, regnidles of [e condidon, or the speot

• nuclea fuel. However, whie the condtilon of the fuel does not impct the Deparunent's ultimae responsibility for disposal uhder te contract lt may require an nfljustinenl in owr schedule to allow us to address any ziehnicl issues that may be elated to tip fuel's stor handling and dispoxal. The Depunmn: wIllo meto a11 applicable Commission requirecmens for the saie trznsporion and disposal otspe.nt auckar fuel.

i

i1 Iassuz~ you stU whlul wJ may b cgzdty dc~yed Izi our abiiz to beg3V dispoizl of the Ntion's cormcIII spepi otwclcw fu1 wew bsav try laten on of f suI io our contztual oblipdons io Molne Y&W= and our offier utlty cumomem If yoU htve any furlher qucstido or concres, plewc feetl fr to couet me at (202) 5864842.

'Ivan Zkm Dire=

Oi-ce of Qvilax RPdioucfiv WaBie MzruRCaot c c: Bill Kasic. Nluiear~ P~eiulazouy Cocimisaion

• ~

~

a I

UNJTED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 2055S-001 November 9, 2000 Mr. Randall Speck Kaye, Scholer. Fternan. Hays L Handler, LLP The McPherson building 901 Fifteenth Street N.W., Suite 1100 Washington, D.C. 20005-2327

SUBJECT:

REQUEST TO STAY THE EFFECT1VENESS OF AMENDMENT TO 10 CFR § 72214

Dear Mr. Speck:

This Is in response to your letter of November 1, 2000, requesting, on behalf of the State of Maine (the State), that the Nuclear Regulatory Commission (NRC) stay the effective date of Its amendment to 10 CFR § 72.214 adding the NAG Univerzal Storage System (NAC-UMS) cask system to the list of approved spent fuel storage casks (65 FR 82581 (October 19, 2000)).. The State makes this request Un order to obtain a timely review of the Commission's rule" preparatory to deciding whether to file a petition for judicial review. In partlcular, you are concerned that the NRC did not agree to the State's request, made In Its April 4, 2000 comment letter on the proposed rule, that "the NRC acquire binding assurances from the (Department of Energy] that DOE wil accept spent fuel for transport and disposal that has been stored in accordanco with NRC-approved procedures.7 We believe that.NRC'S response addressed the State's cormrment by citing DOE's response to the comment letter. See 65 FR 62595. In DOEs response, Dr. ivan itkin, Director of DOE's Office of Civilian Radioactie Waste Management, confirmed, in a letter dated May 3, 2000, to the Govemnor of Main, thiat DOE's contraet for disposal with Maine Yankee "covers the acceptance, transport, and disposal of all spent nuclear fuel from the Maine Yankee reactor, ragaridles of the conditlon of tho spent nuelear fuel" (emphasis added). Dr. Itkin further assured the State that DOE has 'every intention of fulfilling our contractual obligations with Maine Yankee and our other utility customers." Id.

Your letter expresses the State's add Wonal concern that unless DOE agrees now that the NAC.

UMS canisters will preserve the spent fuel Intact and in an acceptable condition for transport and disposal for the aecades of storage that may be necessary before DOE finally removes it, the canisters may have to be unsealed and inspected before any fuel can move. Because Dr.

Itkn's letter of May 3, 2000 prrvidez =zurance that DOE will accept the spent fuel for transport and disposal. regardless of its condition, opening the canisters for Inspection may not CO necessary prior to DOE's ultimate acceptance of the spent fuel. Dr. icin's letter does indicate that DOE's schedulig of transport and acceptance may be affected by the condition of the fuel.

If inspection of the spent fuel Is required for any unanticipated reason, opening of the canisters will be conducted in accordance with established procedures that reasonably assure the safety of all persons involved in the operation. As we said in reply to the State's comments on the proposed rule, the NRCskiff has reasonable assurance that the spent fuel is adequately protected against degradation that might otherwise lead to gross rupture during storage. The NRC requirements for the design of the NAC-UMS cask system are such that perodic verification of cladding conditions during storage and prior to transportation, i-e., unseating and Inspection of the cask system, is not warranted.

R. Speck 2

We note that the Maine Yankee schedul dzcs not call for the loading of spent fuel into the NAG-UMS asks until April 2001, at the eariest. Therefore, no harm will befall the State if the nile placing the NAC-UMS cask on the approved list is allowed to take eftect on thi scheduled date of November 20, 2000. For that reason and because the safety Issues raised with respect to this cask design were addressed in the final rule, we decline to stay the effecttve date of the rule. Nevertheless, in recognition of the State's concerns, i the State believes a meetng will be helpful. we will initiative planning for such a meeting. Please feel free to call me at 301-415-7800.

Sincerely, WilamF. Kane, Dircor Office of Nuclear Materlal Safety and Safeguards cc:

Michael Meisner, Maine Yankee Lake Barrett. OOE

I *..

i.

Department ot Energy.

Washington. DC 20585

-September 2, 1993 Mr. James R. Shetler Deputy Assistant General Manager Sacramento Municipal Utility District 6201 S. Street Sacramento, California 95852-1830

Dear Mr. Shetler:

Thank you for your letter dated June 22, 1993, Energy's acceptance of spent nuclear fuel from Utility District's Rancho Seco plant.

concerning the Department of the Sacramento Mdnicipal In a letter dated June 15, 1993, to Mr. S. David Freeman, General Manager of the Sacramento Municipal Utility District, I discussed the Secretary's meeting with Congressman Fazio and Dicks and addressed the issue of acceptability of Sacramento Municipal Utility District spent nuclear fuel in a canistered system certified for storage and transportation offsite to a Federal facility.

I have enc3osed a copy of this correspondence for your iniformation. %e-e--the Nuc.iear-Reguta'to-;'om1's m~a crt~~ed Scramueuto HhAlC-Tat 1JLl'f1fy7 ~

DticdTfs. -transport'-storage systemi,.

Drt meb -oud'WfT iig-t6' I itjatethe -appropriater-act-Ions to-inc1iude suctra -system as a. accepta1te yiaste¢* for~mt nder the terms of the Standard Contract for the Distibsai of'vent NolrFue'l and/or.-H4gh Level..Radioactfve-Waste-,(10 CFR Part 961).

At that time;7the Department would be In a better position to evaluate its acceptability as either a standard or nonstandard waste form. While we share mutual goals of minimizing spent fuel handling and repackaging, until the Nuclear Regulatory Commission completes its certification, it is premature, as I explained in my letter, for the Department to commit to accept such canistered fuel, either as a matter of policy or under the terms of the Standard Contract.

0 I have also considered your request to refocus the proposed Sacrament6 Municipal Utility District, Department of Energy, and Electric Power Research Institute cooperative demonstration program to provide maximum benefits to the Department's multi-purpose canister activities. As proposed, this program to demonstrate a transportable storage system and a dry spent fuel transfer system will address several important issues relating to the multi-purpose canister system. These issues include: the resolution of licensing and operational issues related to canister transport and storage; the development of a dry cask-to-cask spent fuel transfer system to maximize the use of the canister system at all utilities; and burn-up meter validation tests.

Therefore, because of the proposed important contributions of this demonstration program to the multi-purpose canister system, a refocusing of.

the program does not appear warranted;.

2 I appreciate your continued interest and involvement in the Department's efforts to design a multi-purpose canister system that considers utility experience with at-reactor storage systems.

Sincerely, XLake H. Barrett, Acting Director Office of Civilian Radioactive Waste Management Enclosure 0*.

g

@o o -

Z I-*

Department of Energy Washington. DC 2058S October 4, 1993 The Honorable Norman Dicks U.S. House of Representatives Washington, D.C. 20515

Dear Eongressumn Dlicks:

Secretary O'Leary has asked me to respond to your lettor of August 26, 1993, regarding the Department of Energy's acceptance of spent nuclear fuel from the sacramento Municipal Utility District's Rancho Saco plant.

in a letter dated Siptember 2, 1993, to.Mr. James R. Shetler, Deputy Assistant Manager of the Sacramento Municipal Utility District, I provided the assurances you requested concerning the acceptability of the Rancho Seco spent nuclear fuel In a canistered system certified for storage and transportation offsite to a Federal facility. Specifically, I assured Mr. Shetler that:

"Once the Mucleir Regulatory Commission has certified Satrnsento municipal Utility District's transport-storage system, the Department would be willing to initiate the appropriate actions to include such a system as-an acceptable waste form under the terms of the Standard

• 'Contract for the Visvosal of Svent.H!uclear Fuel and/orBtah-Level

.adioiztlye Waste 11O CfR Part 961)

J.

I have enclosed a copy of this correspondence for your information.

I have also considered the Sacramento Municipal Utility District's request to refocus the proposed cooperative demonstration project with the Department of Energy and the Electric Power Research Institute. As indicated in my September 2, 1993, letter to Mr. Shetler, the cooperative deionstration project, as presently planned. will address a number of Important Issues relating to the.development.of the multiepurpose canister system. Therefore, a refocusing-of.the project does not appear warranted.

The Department of Energy, in concert with the National Acidemy of Sciences, the Edison Electric Institute and others, identified the reed for the development, demonstration, and licensing of a system to facilitate the dry transfer of spent nuclear fuel assemblies between storage cksks and/or storage

.canisters.

This system could facilitate earlier operatloh of a Monitored

• Retrievable Storage facility. It would also allow those utilities with small capacity cranes to use the multi-purpose canister systefd and result in reduced handlings of spent fuel and lower cost for the utilities and the Federal government.

The Sacramento Municipal Utility District's proposal to refocus the demnonstration project would eliminate full scale testing ind licensing of

.the dry spent fuel transfer 5ystem because it is not needed to support the

decoamissioninq of Rancho Seco.

7he development of the dry tfinsfer system was the basis for involvement by the Department.of Energy and Electric Power Research Institute in the demonstration project.

7he Department of Energy and the Sacramento Hunicipal Utility District have begun negotiations on the cooperative agreement. While a number of issues remain to be resolved, I believe.agreement can be reached in these areas and the demonstration project can proceed in a-manner-which satisfies the intent of the Congress, as specifically set forth in the House Appropriations Coniittee Report 101-536.

Thank you for taking the time to share your views with the Department of Energy.

I appreciate your continued interest and involvement tn.the Department's qfforts to address the challenges facingsthe nuclear utility 1ndustrj in managing their spent nuclear fuel.

Sincerelys e

arrett, cting Director Of1ice f Civilian Radioactive Waste management Enclosure

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Department cf Energy Washingon, DC 20685 i August 20, 1996.

.Mr. IL M. rsc..

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• Director, Fuel Management Depaitment Yankee Atonic 3etric Company S80 Main Street "Bolton,MAO1.740-1398

., If Dear *r Sube 8

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• Thank you 6or your letter of August 6,1996, informing us that Yankee Atomic has chosea

, NuclcarAssuranccCorporan rntional (DAC) to sig a transportation and sto

• .. y rem rYanne..e.f..L...

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eprding the acceptability otthe Yankee transportation and storage system, the Stindird r*

Contract for the Disposal of Speint Nuclear Fuel and/or H2 Level Radioactive Wase (10 CFR Part 961) signed by the Deiartrment tif eath uiilityis the key instrnT gtidJ.g-the specific te..

• s and conditions for spent nuclearfuel acceptate. *At thctime this contract.was developed

.* trough the pubtic-rilu ing pero;ess the issue of ting large multipls fui eme nt

¢ containers was not contemplated by thedepartneni or:ulities. lheroir, these containeis are currntly not identified as an accptable wasie form under.th-.contmcL Howover, consisfte.

with tegoaIsscon c ininizing spenit zuclear fuel hanidlings; once the Nudear Regulatcry w

Cornission (NRC) Jas certified the NAC transport-storige systen, the bliartmemt would be willing to wi'iate the approp.riate actions Co include stich a s ystem as an acceptable ihte fonn

• under the termt of the stanidard contiact..Any fransportition amd sto;ae system d signedto the Multi-Purpose Canister (MPC) speciecation shbod be able to receiveiCn NRC certication fr tUansportation and storage.

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.*@- ';.1 As you inay be awa're, the -departmentis miovingiforwardin thc area of coat gencyplanziingwth regard to interim storage of spenfnucdearIfild so that ifand khen the admninstration and Congreis agree on a site for such a facility,*the Department will, be in position to move quickly toward accelerated waste acceptance. To that end, the.Department is presently conducng non-site-specific design and engineering analysis for anjnteruin sto, f k~ludsipd at.

* *:vi avi]ity al y locati niif-the coti4stat&nis p

.conseativ, des'igid en"Ahn4 p

minet4These, in irp wwll -e incorpqratepWto a topical safety. analysis seport (I

); desciln t:facility ii ts oftatiop nd subritted to

.. theNRC stafffor reiewlasnd acceptanac prior to any site designation.'

S The Department has quantiiled on a predecisional basis k number of dsxsii. and vironmental paramtersandwifl be meetin, vith the NRC staff in the near futi~re to discussther acceptability.

.Subseunt to this, the Depainment pians to make the values selected for thecdcsipgn and environmental jaramqest availalke to inteested parties by the end of 1996,

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- It is important to note that thc M, C spezificati6n was written withone objective being to pfQvide systems for at-reactor storage..

he envI onmetalparametersofthe TSAR i bc brosdq than hose of the MPC specification.

system that is designed to the environnetal pairineters of the MC speciicatior would require an evaluation to deterrnine.whth~er hs meets the conditions of any off-site storage site if o :site storage.woud be reqiired pnior to isposal...

,,*. Uniil the btrn i9 cestifed by the NRC and it is detemined what :tbe environmental parameter*.

may be for any required ofT-sitc-storage, it is preinatir to evaluate a system for iti actptabilty as either a standard or non-standard-waste form. Withireardto theaccbptb!lityotany. -.

canistered fuel pystem as a standard waste:form, webelieve that any NRC-approved storage and '

trinsport sytem that meets the parameters approved by theNRC stiffin o TSAR can be

• .defined to be A standard wae fdrm und&e the tenns of the Standard Couitract for the Disposal of SpPnt Nuclear Fud tandtor Hgh-Leved Raioactive 'aste (10 CFRPart 961).

. Sh6uld you wish to 'discuss any aspect of the nformation contained in this leteyou may contact Mr: Sam Rousso at (202) 586-6046. Mr. Rousso win be pleased ttranae for the appropriate Oiof

( vi2 dioadt1VC Waste ager t stafto meet vith you to discuss your storage

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.- L e H Barret, Deputy Director

. Office ofCivilian Radidactive.

Waste Managemedt - '.

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'Department of Energy fWsngto DC 20585 APR06 igo Mr. Steve Redeker Manager. Plant Closu and Decommissioning Sacramento Municipal Utility District P.O. Box 15830 Sacramento, CA 95852-1830 Dear Mr. Redeker ne Department has received your letter oLJanuary22, 2001. providing notice of your plans to begin the loading activitdes at the Rancho Seco Independent Spent Fuel Storage Intallation in spring 2001. Tbe Depanment has no current plans to observe these operations.

Your letter also raises several other questions related to the Department's acceptance of Nuclear Regulatory Commission (Commission) certified dual-purpose storage/ransport systems under the disposal contract between SMUD and the Department. As you have indicated, the Department has previously stated its willingness to initiate the appropriate actions to include such dual-purpose storage/transport systems as acceptable waste forms under the terms of the disposal contract.

As requested in your letter, and in accordance with the commnitment made in our previous correspondence, the Department will initiate actions to include storage systems certified by the Comnmission for both transportation and storage (dual-purpose systems) as acceptable waste forms Under the disposal contract with SMUD. We are in the process of identifying the extent of and methods for effecting such contract modificadons, Including the development of specifications that may be placed on 'Standard' dual-purpose systems, where `Standard"xefers to canistcred spent nuclear fuel that could be accepted as if it were standard spent nuclear fuel under the contract.

While the Departnt continues to believe In the overall benefits that may accrue to a multi-pmpose storigettransport/disposal system. we am unable at this time to complete fmal design and acceptance criteria for the disposability aspects of such a system for commercial spent nuclear fuel. However, since there may be some benefit during disposal attributable to the Integrity of zirconiumbased cladding. the Department would prefcr that reasonable efforts be made to preclude further degradation of the cladding during storage or transporL

It is our currmat expectation that after receipt at the rcposit9ry. dual-purpose systems wiU be o d and tbe.spent nuclear fucl rmoved for placmcnt in awastc disposa package unless the internal canister can be demonstrated. and Nuclear Regulaory Commission licensed. as part of the finml waste disposal package assanbly. Therefore, in order for a dual-purpose system to be classified as 'Standard." we anticipate thai, at a minimum, it must provide thalt thc spnCt nuclar fuel stored Illows for tsunloading and hdng like an intact fud assembly. Dual-purpose systims that can not be unloaded and handled in the same tuanner as an intact assembly will be classified as "Noo-standard' uider the tms of the conaract Your letter also reqsts that the Departmnit afford SMUD's spent nuclear fuel advanced

,accptanc duc to the permanently shutdow. status of your faiUty. Te Dlepartrncnt has previously considered such requests for other similariy-sitated contract holders, and has determined that such priority acceptance cannot be granted without adversely impacting other contract holders in the waste acceptance queue. Instead, we suggest you explore utilizing the proyisions of the contrc that allow contract.holders to advance the acceptan=c of their spent nuclcar fucl by tading acceptanceallocadons with other contract holde.

I have enclosed a copy of a previous letter fom Mr. Barrett o this I

subject 1or your information.

When we have further developed our ideas regarding modifications to tbe disposal contract, we will contact you to schedule discussions on this mar. Ifyou require any furtoer information. please contact me at 202-586-9198.

Sincerely, David K.

sky, Team Leader Waste Acceptance and Transportadon Enclosure.

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