ML19269C157
| ML19269C157 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 01/16/1979 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7901290178 | |
| Download: ML19269C157 (14) | |
Text
January 16, 1979 UttITED STATES OF AMERICA NUCLEAP REGULATORY COMMISSION N2C PUBLIC D6L A u d'
-N BEFORE THE AT0filC SAFETY AtlD LICENSING BOARD Y f.
+S In the Matter of
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'Ab.9' # S flVCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39 gi y
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(Sheffield, Illinois Low-Level
)
Radioactive Waste Disposal Site)
NRC STAFF OPPOSITION TO MOTION TO SUSPEND FURTHER PROCEEDINGS AND CROSS-MOTION TO DENY PART OF APPLICATION The NRC Staff opposes the Applicant's motion to suspend proceedings herein, and the Staff cross-moves under 10 CFR 802.108(c) and 2.102, to deny that part of the subject application seeking to expand the subject site to encompass an additional 168 acres, as Applicant has not supplied and apparently refuses to supply the Staff with requested infomstion.
The Staff also opposes suspension of the proceedings involving the original 20-acre waste disposal site as the Applicant seeks to continue current activities at the site which are being conducted pursuant to 5 U.S.C. 558(b) and 10 CFR 52.109 by virtue of a license renewal application filed in 1968.
It appears that this original site may be relicensed for currently permitted activities subject to conditions to protect the public
' health and safety.
A suspension of proceedings would be contrary to the public interest.
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The subject Sheffield low-level waste disposal site was licensed in 1967, for use until September 1968.
Applicant filed an application to extend that license in August 1968.
That application has not been acted upon, but by virtue of 5 U.S.C. 5558(b) and 10 CFR 82.109 the license was deemed extended until the renewal application was acted upon. The original site is presently full and no more waste may be buried there under the terms of the original license.
There is now pending before this Board the application to renew that original license, and a request filed on December 30, 1976, to expand the license to cover an additional 168 acres.
Applicant has not set forth any reason why the prcceedings should be suspended other than its desire to have its application considered under non-existent generic rules which might be promulgated years from now to govern the licensing of low-level waste disposal sites.
The Applicant has further stated'that it will not supply the NRC Staff with information the Staff needs and has requested under 10 CFR 852.102 and 51.40, to evaluate the application under the Atomic Energy Act and the National Environmental Policy Act.
I.
Pursuant to 10 CFR 62.108 applications may be dismissed for failure
~ to supply information within 30 days of a request for such information by the~ Staff. As detailed in the affidavit submitted herewith and the affidavits previously filed with the "NRC Staff's 0pposition to Compel Filing of Draft EIS" the Applicant, although requested more than ^1 days f-
s
~3 ago, has failed to supply the Staff with information necessary for the Staff to evaluate the site and its expansion in order to conclude that such expansion would be consistent with the public health and safety, or to weigh the site as required by the flational Environmental Policy Act.
The failure to supply information has encompassed such areas as geology, hydrology, and geotechnical engineering.
The Applicant has given incomplete and partial answers to the Staff's requests for information, and then complained that it was burdened with additional requests when the Staff sought complete answers to its original questions.
It further appeared from the answers supplied by Applicant that further information, on such matters as the continuity of sand lenses and the extent of underlying shale, was required before it could be concluded that the site could be safely licensed.
The Staff's affidavits submitted in this proceeding establish that the information Applicant refuses to supply is essential to evaluate the requested expansion. As stated in the affidavit of Michael J. Bell, submitted on the " Motion to Compel Filing of Draft EIS" (pp. 7-8):
Based on (1) the site data supplied to date; (2) the applicant's proposed site utilization plan; and (3) the hydrological and geotechnica'l findings of f1RR staff, LLW [ Low Level Waste Branch] staff is unable to conclude that there is reasonable assurance that the public health and safety is protected, given the site expansion plan as now proposed by applicant.
See also other affidavits submitted on that motion.
In view of Applicant's refusal to supply more information germane to this proposed expansion, that part of the application seeking to expand the site should be denied, without prejudice, under 10 CFR 52.108.
Suspension cf that part of this proceed.ing seeking to expand the site would not be in the public interest. As stated in Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separation Facility), ALAB-296, 2 NP.C 671, 684(1975):
We need not subscribe to the applicant's claim
' hat its facility is vitally needed... to
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agree that there is a compelling public interest in having an early decision on the... facility whether that decision is positive or negative.
See also Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539, 552 (1975).
A suspension would merely delay the conclusion of that pa;t of the pro-ceeding seeking site expansion without reason. The Commission has often emphasized the need to minimize delay.
See e.g.: Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 6-7(1978).
Applicant's site expansion application shou'Id now be dismissed, as requested and needed information has not been supplied.
Should the rules Applicant desires to await become available in the future, and should the Applicant have the information required by those rules, it can retile an application for expansion of the Sheffield site.
No reason exists to suspend the proceeding on this part of the application rather than denying the application for failure to supply necessary information.
h II. Applicant seeks to continue its currently authorized activities at the Sheffield site.
Under the terms of the original license, as amended, the site is filled to capacity and no further burial of low-level waste may take place.
However, the site must be maintained and monitored, and Applicant seeks to continue " limited collection and processing of waste at Sheffield for transshipment." The Applicant apparently believes it has a right to continue these activities at the site because it filed a ren.ewal application in 1968 before expiration of the original license, and thus has a right to continue its activities at Sheffield by virtue of 5 U.S.C. 558(b) and 10 CFR 92.109. However, the statute provides:
When the licensee has made timely and sufficient application for renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.
This proceeding should continue so that it can be determined if the license should be renewed and under what conditions. A " timely and sufficient application" must be one an applicarit diligently pursues.
It is not cori.emplated by either the statute or the Conmission's regulation that one may apply for renewal of a license, then ask that consider-ation of that application be indefinitely deferred, and hope that the license would continue in perpetuity.
C_f_. Sullivan County v.
C. A.B., 436 F.2d 1096 (2d Cir.1971).
The purpose of 5 U.S.C. 558(c) as a whole is to protect applicants from arbitrary agency action, and from agency delays in acting on timely and sufficient applications.
However, what applicant asks is that it be granted rights because of a delay it seeks, without any consideration of the public interest and
. without any consideration of whether the license granted in 1967 should still continue. The suspension of consideration of a license renewal application at the behest of an applicant so that its prior rights might continue by virtue of 5 U.S.C. 558 is contrary to the purpose of that statute, and should not be granted.
Moreover, a delay in the consideration of this application to consider the relicensing of the original site, like a delay in consideration of licensing the additional 168 acres, would be contrary to policies of this agency.
See Potomac Electric Co., supra; Allied-General Nuclear Services supra.
The NRC Staff presently believes, although final analyses have not yet been completed, that the 1967 license which Applicant seeks to have renewed may be reissued for waste collection for transhipment, incidental processing and site care, subject to conditions to protect the public health and safety.
The Staff hopes 'to complete this work within two months.
In order to accomplish this we are asking the Applicant to supply adequate information on the limited activities it now wishes to continue at the site, and to develop and implement a reasonable plan to prepare the site for long-term care.
W9 e om ww-6
. In any event, the Staff opposes the motion to suspend proceedings involving the 1968 application for license renewal.
Matters have been allowed to drift for too long. There should be no further suspension or delay.
Respectfully submitted, au M Edwin J.
,eis Counsel or NRC Staff Dated i ' Bethesda, Maryland, this 16th day of January,1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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NUCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39
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(Sheffield, Illinois Low-Level
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Radioactive Waste Disposal Site)
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AFFIDAVIT OF MICHAEL J. BELL Michael J. Bell, being first duly sworn, deposes and says:
1.
I am Chief of the Low-Level Waste Branch of the Division of Waste I:anagement of the Nuclear Regulatory Commission (NRC).
The statements made herein are based upon my knowledge, and informatiu.. =vailable to me in my official capacity.
2.
Through my official duties I have become acquainted with the licensing actions, health and safety determinations, environmental procedures, and adminirtrative proceedings undertaken by the Nuclear Regulatory Commission in its regulation of the low-level waste burial facility operated by Nuclear Engineering Company, Inc. (NECO) near the town of Sheffield, Illinois.
3.
NRC Staff is unable to proceed with review of NEC0's application to expand the Sheffield site from 20 to 188 acres because of essential information needs. The need for a revised site utilization plan was O
-2 identified in our letter to Mr. James N. Neel dated December 5,1978.
The December 5 letter also reaffirmed the need for a detailed strati-graphy of the entire 188 acres.
4.
NEC0's site utilization plan submitted by letter dated September 20, 1978 must be revised to mitigate the proximity of shale. NEC0's plan called for trenches either into hard shale or in close proximity to shale.
NRC's position that trench bottoms founded in or near rock formations are unacceptable in humid areas was explained to the Board in the Joint Affidavit of Gale P. Turi and William S. Bivins dated November 29, 1978 attached to the "NRC Staff's 0pposition to Motion to Compel filing of Draft EIS," dated December 1,1978.
See Item 13 in particular.
5.
LLW staff technical position on the site expa--ion was stated in the Affidavit of Michael J. Bell dated November 29, 1978 as:
LLW Staff Position on Site Excansion:
Based on 1) the site data supplied to date; 2) the applicant's proposed site utilization plan; and 3) the hydrological and geotechnical findings of NRR staff, LLW staff is unable to conclude that there is reasonable assurance that the public health and safety is protected, given the site expansion plan as now proposed by the applicant.
The presence and properties of shale were not considered in the applicant's proposed site development and radionuclide transport' modeling. Although the location of trench bottoms with respect to the shale is not clear from information submitted for some trenches, the planned bottom of most trenches appear to be either into hard shale or ten feet or less from shale.
Thus, as orally communicated to the applicant, the presence of shale raises questions about the proposed site utilization plan for essentially the entire expansion area. The model for the trench infiltration and leaching of radioactivity from the waste described in paragraph 12 is reasonable for any humid eastern site such as Sheffield.
In
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light of the above, staff are not able to demonstrate that the applicant's proposed site development plan meets the criteria described in paragraph 11 and cannot recommend licensing of the expansion area as proposed.
6.
LLW staff is not able to conclude that wastes buried on the presently licensed 20 acres have been buried in a manner to assure the protection of the public health and safety. The Applicant has not submitted sufficient information to determine whether sand formations are continuous. Assuming continuous sand lenses leads to the result summarized in Items 7 and 8 of the affidavit of Turi and Bivins:
7.
Radionuclide migration from the 20-acre site was evaluated using (1) ground water velocities determined by the applicant as a result of the field tests conducted during February and March,1978, (2) equilibrium distribution coefficients based on information requested in a February 13, 1978..r n g by the staff and submitted by the applicant May 10, 1978, (3) a source term for the 20-acre site provided by NUS based on their inventory of wastes buried at I'effield, (4) and leach rates provided by the Low-Level Waste Branch.
8.
The results of the staff migration analysis from the 20-acre site show tilat the radionuclide concentrations offsite exceed the concentrations set forth in 10 CFR Part 20, Appendix B, Table II, Column 2.
7.
Pctential impacts that the adjacent, upgradient hazardous waste. disposal site may have on the licensed 20 acre site must also be evaluated b'efore we can assure protection of the public health and safety.
(Reference Item 14 of Turi and Bivins.) Although we have requested information from the Illinois Environmental Protection Agency, the Applicant, who also owns and operates the hazardous site, will have to supply additional information to resolve this issue.
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8.
In a number of areas, the Applicant has given incomplete or inadequate answers to questions designed to solicit information needed for prepara-tion of our environmental impact statement.
The following are examples of such areas:
A.
Geotechnical aspects of the site as shown in the chronology of attempts to obtain information in items 2-8 of Sandra Wastler's Affidavit dated flovember 29, 1978.
B.
Field studies and analyses to demonstrate that sand lenses beneath the site are not continuous as requested December 16, 1977, on March 15, 1978, and incorporated into stratigraphy requests of December 5, 1978.
C.
Release scenarios for accidents as reflected by incomplete information concerning source terms, pathways, and receptors in response to questions of April 4,1978 and August 15, 1978.
D.
Lack of an acceptable site development plan as requested April 4, 1978, August 15, 1978, and December 5, 1978.
9.
LLW staff believe that use of the site as a collection point for transshipment of wastes to open sites and occasional ' solidification of wastes before transshipment can be conducted with negligible environ-mental consequences. The Applicant must clarify exactly what activities are planned, what procedures will be applicable, and what personnel will be available for interim operation at the site.
Based on this information and its own analyses, staff will make a final determination.
. 10.
Staff believes a two-fold a?nroach is required over the next few years.
First, ' procedures to provide for continued and adequate environmental monitoring, site maintenance, and surveillance are needed.
- Second, information to resolve whether the 20 acres can safely contain buried wastes, to specify and implement any necessary remedial actions and to prepare the site for eventual turnover to the State (decommissioning) is needed.
- 11. The renewal license for collection, incidental processing, and 20 acre site maintenance which LLW staff will propose is expected to specify in detail acceptable short term procedures and to require the develop-ment and implementation of a decomissioning plan.
Preparation of a proposed license and supporting rationale and assessments is feasible in about two months, provided the Applicant promptly provides infor-mation on its interim plans and activities.
MM/&dd MICHAEL J. BELL, Chief Low-Level Waste Branch U.S. Nuclear Regulatory Commission
' COUNTY OF MONTGOMERY
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Subscribed and Sworn to before me this 15th day of January, 1979.
Anne K. Baron g gg NOTARY PUBLIC My Commission expires July 1, 1982
UNITED STATES OF A" ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NUCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39
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(Sheffield, Illinois Low-Level
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.ladioactive Waste Disposal Site)
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CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF OPPOSITION TO MOTION TO SUSPEND FURTHER PROCEEDINGS AND CROSS-MOTION TO DENY PART OF APPLICATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 16th day of January, 1979:
Andrew C. Goodhope, Esq.
Cornelius J. Hollerich, Esq.
3320 Estelle Terrace State's Attorney
~ Wheaton, Maryland 20906 Bureau County Court House Princeton, Illinois 61356 Dr. Linda W. Little Research Triangle Institute Dean Hansell, Esq.
P. O. Box 12194 Susan N. Sekuler, Esq.
Research Triangle Park, N.C. 27709 State of Illinois Environmental Control Division Dr. Forrest J. Remick 188 Uest Randolph Street 305 E. Hamilton Avenue Suite 2315 State College, Pennsylvania 16801 Chicago, Illinois 60601 Scott Madson, Esq.
John M. Cannon, Esq.
Assistant State's Attorney Mid-America Legal Foundation 601 South Main Street Suite 2245 Princeton, Illinois 61356 20 North Wacker Drive Chicago, Illinois 60606 D. J. McRae, Esq.
217 West Second Street Kewaunee, Illinois 61443 o
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. Atomic Safety and Licensing Docketing and Service Section
- Board Panel
- U.S. Nuclear Regulatory Commission Office of the Secretary U.S. Nuclear Regulatory Corraission Washington, D. C.
20555 Washington, D. C.
20555 Atomic Safety and Licensing Troy B. Conner, Jr., Esq.
Appeal Panel
- fiark J. Wetterhahn, Eso.
U.S. Nuclear Regulatory Commission Conner, Moore & Corber Washington, D. C.
20555 1747 Pennsylvania Avenue, N.W.
Suite 1050 Robert Russell, Esq.
Washington, D. C.
20006 Johnson, Martin & Russell 10 Park Avenue West Princeton, Illinois 61356 o
/ W /'
W Edwin J. Reis /
NRC Staff Counsel forj a
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