ML20055E624

Nuclear Regulatory Commission Issuances for February 1990. Pages 131-195

ML20055E624
Person / Time
Issue date:	04/30/1990
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V31-N02, NUREG-750, NUREG-750-V31-N2, NUDOCS 9007120148
Download: ML20055E624 (70)

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[ Avellable from Superintentendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication. Single copies of this publication are available from National Technical Information Service, Springfield, VA 22161 i Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

l l { NUREG-0750 Vol. 31. No. 2 Pages 131-195 NUCLEAR REGULATORY COMMISSION ISSUANCES February 1990 s This report includes the issuances received during the specified period [ from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad-ministrative Law Judge (Al.J). the Directors' Decisions (DD), and the Donlets of Petitions for Rulemaking (DPRM). r The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance. L US NLK'l F All 'f1f GUI Al OflY COM M h;SION l Prepared by the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 l (301/492-8925) i f ~! ...........-..2.. . _. _.._. _ ;.. J

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~;; '... ^ ^. ~~: ~ '::^~~ ~~~ ^~-^~ ^ ^ " "^~ ^ ^ ~ - ^ ^ - ~ " ^ ^ - ' i I t e 6 t i COMMISSIONERS Kotteth M. Carr, Chairman Thomas M. Roberts l Kenneth C. Rogers James R. Curtiss t i Forrett J. Remick t k Christine N. Kohl, Chairman, Atomic Safety and i.loonsing Appeal Panel B. Paul Cotter, Chief Administrative Jud0s, Atomic Saky and Lloonsing Board Penel ? d 4 b y P

CONTENTS Issuance of the Nuclear Regulatory Commission llOUSTON LIOllTING AND LOWER COMPANY (South Texas Project, Units 1 and 2) Dockets 50-448, 50 449 ORDER, CL1901 Itbruary 8,1990.......................... 131 lasuance of the Atomic Safety and Licensing Appeal Board PUBLIC SERVICE COMPANY OF NEW liAMPSillRE, et al. (Seabrook Station, Units I and 2) Dockets $0 443 OL,50-444 OL (Offsite Emergency Planning issues) MEMORANDUM AND ORDER, ALAB 927, February 26,1990.... 137 Issuances of the Atomic Safety and Licensing alourds KERR McOEB CllEMICAL CORPORATION (West CWago Rare Earths thcility) Docket 40 2061 ML (ASLBP No 83 495 01 ML) INITIAL DECISION, LBP 90 9,itbruary 13,1990.............. 150 S APETY LIOllT CORPORATION, et al. (Bloomsburg Site Decontamination) Dockets 030-05980,030 05981,030-05982,030-08335,030-08444 (ASLDP Nos, 89 590 01 OM,90-598 01 OM 2) ORDER, LDP-90-8, Itbruary 8,1990.......................... 143 1 1 ill 1 1

,,_.__.,.--..-.x .. _ m.- -. - Cite as 31 NRC 131 (1990) CLl 901 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO'. COMMISSIONERS? Kenneth M. Catr, Chaltman Thomas M. Roberts Kenneth C. Rogere James R. Curtiss Forrest J. Remick in the Matter of Dockel Nos. 60 448 60 449 HOUSTON LIGHTING AND POWER COMPANY (South Texas Project, Units 1 and 2) February 8,1990 The Commission denics the motion of Mr.Jolm Corder for a protective order staying the enforcement of an administrative subpoena issued to him by the NRC Staff in connection with his concerns and allegations regarding the South 'Itxas Project. The Commission believes that Mr. Corder is in a position to comply i with the subpoena, notwithstanding the pendency of an FOIA request he filed j' with the NRC. NRC: ENFORCEMENT OF SUllPOENAS ENERGY REORGANIZATION ACT: SECTION 210 SETTLEMENT AGREEMENI'S The NRC Staff's request that an alleger provide to it any concerns that the I allegcr had not provided previously should not be construed as an invitation to allow an alleger the opportunity to review all prior NRC Staff actions on his previous concerns or allegations, or to pass judgment on the technical correctness l of the NRC Staff's actions. Rather, the purpose of the request is to give the alleger the opportunity to express concerns to the Staff that he may have failed l 1 l 131 j l

i f I to furnish previously because of the existence of a settlement agreement, entered ) into by the alleger and his former employer, which may have been read to restrict l the alleger from bringing his concerns to the agency. NRC: ENFORCEMENT OF SUllPOENAS The Commission believes that an alleger nee 4 not awalt the processing of a pending ICIA. request regarding his previous concerns and allegations in order to comply with an administrative subpoena requesting that he provide the NRC with information on whether he withheld safety concerns from Oc NRC, developed new concerns since his termination of employment with the Licensee, or has an interest in the manner in which his previously expressed concerns were i addressed, ORDER I. INTRODUCTION i This matter is before the Commission on a motion by Mr. John Corder for a v protective order staying the enforcement of an administrative subpoena issued by the NRC Staff on December 1,1989. Mr. Corder asks that the Commission stay the subpoena until the NRC has responded to a request under the Freedom of Information Act ("fOlA") for all records " relevant to and/or generated in connection with (his) concerns and allegations about the South itxas Project ("STP") from June 1986 to the present," POIA Request (Sept. 28,1989) at 1. After due consideration, we deny the motion for protective order for the reasons stated herein. 9

11. FACTUAL llACKGROUND In the spring of 1989, the NRC became aware of the possibility that settlement agreements in several Department of Labor (" DOL") employment discrimination cases might contain possibic barriers to individuals bringing safety concerns to the NRC, Accordingly, on April 27, 1989, the NRC's Executive Director of Operations ("EDO"), issued a letter to all utilities, major architect engineers,-

nuclear steam supply system vendors, fuct cycle fncilities, and major materials ] licensecs, concerning provisions in settlement or other agreements that might be interpreted to restrict a person or party from communicating safety concerns r 132 ) 1 ) I 1 I

_ ~ r, i l to the NRC Among othct actions, this letter requested those entitics to identify any such restrictive provisions in any settlement agreements to the NRC. In response to the EDO's letter, the Bechtel Corporation, Mr. Corder's former employer, identified a settlement agreement between it and Mr. Corder resolving an employment discrimination dispute under secdon 210 of the Energy Reorganization Act as having potentially restrictive language. See in the Matter of John A. Corder, 88 ERA.9 (Oct. 28,1988). In turn, an NRC Staff representative wrote Mr. Corder's attorney of record asking if Mr. Corder h i had any "information concerning potential safety issues which have not been provided to die NRC" and inviting him to bring any concerns that he might have to the NRC's attendon. Sec l.etter from Dennis Crutchfield to Robert T. Rice, Esq. (Sept. 5,1989) (emphasis added). In the interim, Bechtel notified Mr. Corder's attorney that "the settlement lagreement] does not prevent nor should it discourage" Mr. Corder from asserting any safety concerns and that he was free to bring "to the attention of the appropriate agencies any information about nuclear power plant safety...." See Letter from II. Roger McPike to Robert T. Rice, Esq. (June 29,1989) at 12. In response, Mr. Corder - through new counsel - did not allege that he had failed to provide information to the NRC, Instead, he indicated that he had " concerns Omt he believes the NRC has not evaluated" and sought to impose " terms" or " conditions" on his presentation of such information to the NRC, Sec letter from Billie P. Garde, Esq., to Dennis Crutchficld (Sept. 28, 1989). Among those " terms" was a request that the Staff subpoena Mr, Cordet "to protect him from a potential breach of contract action by Bechtel for violating the terms of his settlement."id. at 2, notwithstanding Bechtcl's June 29th letter. On the same day, Mr. Corder's counsel fit-4 the IVIA request noted above. Negotiations between the parties continued until December 1,1989, when die Staff issued the subpoena now before us. '!he subpoena called for Mr. Corder's appearance on Decemler 19, 1989, at a location near his residence. On December 11, 1989, Mr. Corder filed a motion seeking (1) to modify the subpoena making it returnable at another location and (2) to delay the subpoena until after the Staff had responded to his ICIA request. Subsequent negotiations have resolved die first issue, the location of tb ;nRrview. Accordingly, the Imrties agree that this issue is now moot. 'T*.ie NRC Staff has responded to the motion for protective order and Mr. Cort.cr has filed a reply, i Briefly, Mr. Corder alleges that he has provided informadon to the NRC Staff on numerous occasions and that he "has no way of knowing without reviewing ^ documents in possession of the NRC staff (sic] what issues were recorded by die NRC for inspection or investigation and what became of those issues." Reply at 4. lie also alleges that he "is not satisfied that the issues he raised which have teen previously evaluated by the Staff and apparently closed were even understood... l' /d. at 4 5. Finally, he alleges Omt hc cannot be expected to 133 e 3

remember all the specific details that have teen previously provided to the Staff with any degree of accuracy or reliability" regarding the South Texas Project. Id. at 5. Ibr all those reasons. Mr. Corder seeks to delay responding to the subpoena until after he receives and reviews the response to his ICIA request. According to both Mr. Corder's Motion and his Reply, the NRC's FOIA Offices have responded to his request by asking that he pay the necessary search and copying fees. See 10 C.F.R. 66 9.37-9.40. Mr. Corder also alleges that on December 11, 1989, he filed a request for a walver of fees,10 C.F.R. 6 9.40, and that he filed a second FOIA ques. wnich he hopes will be exempt from the fee requirement. Ill. ANALYSIS Mr. Corder apparently confuses the purpose of the invitation issued to him on September 5 by the Staff. He purpose of the invitation was not to allow him the opportunity to review all prior NRC Staff actions on his previous concerns or allegations and to pass judgment on the technical correctness of the NRC Staff's actions. Instead, the purpose was to give him the opportunity to present any concerns to the Staff which he had not previously provided to the NRC. In sum, the Stafi's request did not involve Mr. Corder's previously expressed. concerns but was simply an opportunity for Mr. Corder to express concerns that he may have failed to furnish previously l<cause of the existence of a settlement agreement that might have been read to restrict such communications. Lest there be any doubt, the NRC Staff will listen to any concerns Mr. Corder wishes to express - whether they le concerns he withheld from the NRC. concerns he has developed over the years since his termination with Bechtel, or concerns he simply suspects may not have been adequately addressed. But independent of his FOIA request. Mr. Corder should be in a position to know whether he withheld concerns from the NRC, developed new concerns since his termination with Bechtel, or has an interest in the manner in which his previously expressed concerns were addressed. NRC records are not necessary for any of those purposes. Accordingly, we see no tvason to delay Mr. Corder's compliance with the subpoena. We see no legal obstacle to Mr. Corder's presenting any safety concerns to the NRC at this tinic and we emphasize the need for the communication of safety concerns without delay, if Mr. Corder wishes to communicate other concerns or information after his FO!A request has been processed, he is welcome to do 50. l l 134 'a

.,_a_,_..... IV. CONCLUSION For the foregoing reasons, the motion for protective order is denied. It is so ORDERED. For the Commission - SAMUEL LCHILK Secretary of the Commission. Dated at Rockville, Maryland, this 8th day of February 1990, y u V ) >0 f -l 135 t Y 6. .v.: L

04e as 31 NRC 137 (1990) ALAB 927 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: G. Paul Bollwerk, lil, Chairman Alan S. Rosenthal Howerd A.Wilber in the Matter of Diieket Nos. 50-443 0L 50 444 OL . Offsite Emorgency Planning issues)- PUBLIC SERVICE C0h,' ANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Units 1 and 2) February 26,100 %c Appeal Board denies an intervenor's motion to reopen a portion of the record in the operating license proceeding involving the Seabrook nuclear power facility as untimely and because it does not present an " exceptionally grave issue." within the meaning of 10 C.F.R. 6 2.734(a)(1). RULES OF PRACTICE: MOTIONS TO REOPEN RECORD %e Commission's Rules of Practice explicitly require the denial of an untimely motion to reopen a record unless the motion presents "an exceptionrJ1y ? grave issue." 10 C.F.R. 5 2.734(a)(1). 137

RULES OF PRACTICE: MOTIONS TO REOPEN RECORDI MULTIPLE Il0ARD PROCEEDINGS Where two licensing boards were considering different aspects of an emer. gency response alert and notification system, pendency of reopening motion i before one licensing leard based on a particular event does not excuse delay of three months in filing a motion to reopen before the second board based on the same event because the first board could not assess the impact of that event upon those matters that were within the jurisdiction of the second board. Cf. Long Island Ligluing Co. (Shoreham Nuclear Ibwcr Station, Unit 1), ALAB 902,28 NRC 423,429 (licensing board can dismiss a party from only the part of the proceeding within that board's purview), review declined CLI 8811,28 NRC 603 (1988). This being so, there was no potential for "the dual litigation of the same issue with possibly inconsistent results." Pubtle Service Co. of New Hamp.t/dre (Seabmok Station, Units 1 and 2), ALAB 916,29 NRC 434,439 (1989). APPEARANCES I Leslie ll, Greer, Iloston, Massachusetts, for the intervenor James M. Sharmon, Attorney General of Massachusetts. Thomas G, Dignan, Jr., George 11. Lewald, Kathryn A, Selleck, and Jeffrey P, 'IYout. Iloston, Massachusetts, for the applicants Public Service Co. of New Hampshire, et al. I isa 11, Clark for the Nuclear Regulatory Commission staff. MEMORANDUM AND ORDER Before us is the February 1,1990 motion of the intervenor Attorney General of Massachusetts to reopen a portion of the record in this operating license proceeding involving the Scabrook nuclear power facility. The motion is founded upon a developrnent said to have affected the adequacy of a segment f of the alert and notification system for the Massachusetts communities within t the piume exposure pattnvoy emergency planning r.one (EPZ) for the Seabrook facility. 'that development was the decision of radio station WCOY to repudiate a previous letter of agreement calling for the station's participation in the alert and notification system. That decision was memorialized in an October 20, q l 138 i { I

l I 1989 letter from a stadon of0cial to the applicants, a copy of which was sent to counsel for the Attorney General.8 The Commission's Rules of Practice exp!!citly require tie denial of an undmely modon to reopen a record unless de modon presents "an exceptionally grave issue,"8 in this instance, there can be little doubt that the motion is untimely. It is equally clear diat the tnotion does not present an " exceptionally grave" issue. Accordingly, we agree with the applicants and the NRC staff that it must le denied. l A. Timeliness

1. Issues pertaining to the alert and notification system for Massachusetts communities were put before two separate Licensing Boards, one chaired by Judge Bloch and the other by Judge Smith. R>r its part, de Bloch Board was assigned de question of the efficacy of that pordon of de system involving the applicants' proposal to use vehicles upon which strens would te mounted (referred to as the VANS proposal), in a June 23,1989 decision, that Board upheld the VANS proposal. In the course of doing so, the Bloch Board took note of the Emergency Broadcast System (EBS) component of the overaP, alert and notincation system.8

• Ihe Smith Board's role in de alert and nonfication sphere was considerably broader than that of the Bloch Board. Its jurisdiction extended to all matters in that sphere other than the VANS issue specincally assigned to the Bloch Board. In this connecdon, on November 9 and 22,1989, de Attorney General (in conjuncdon with other intervenors) Gled reopening modons with the Smith Board. Those motions were based upon the WCOY repudiation action and requested the reopening of the record before the Smith Board to allow the introduction of a new contention addressed to the repudiation. According to the intervenors, the repudiation brought into question the adequacy of the overall emergency response plan for the Massachusetts portion of the EPZ. On January 8,1990, de Smith Board denied the motions on a variety of grounds.' 'Ihat denial is now on appeal.

2. 'Ihe Attorney General's motion to us socks to reopen the record before the Bloch Doard, its deory is diat that Board's decision last June was vitiated -

by the WCOY repudiation because the decision took into account an EBS for i I 3 See neuer from John F. Dassou to B. Iloyd. Jr. (oct. 20.1989). amended to the Attreney concril's Feb:very 1 maion es it.aMMt C to Auschment F of 1:ahiWt 2 810 C.F.R. I 2.734(a)(1). 8 1JIP-8917,29 NRC s19. S32 34 (1989). arrealpeneas. '!JIPWI.38 NRC 19 0990). arpeelpendag. 139 ~ n. ~ y me'

tic Massachusetts portion of the EPZ in concluding that the applicants' VANS proposal was acceptable. Assuming the validity of that theory, the Attorney General should have raised it promptly upon learning of the WCOY action taken in October-rather than more than three months thereafter The Attorney General attempts to justify the delay on the ground of the pendency of the reopening motion filed with the Smith Board, which rested upon the same event, That explanation will not do, it overlooks the fact that the Smith Board obviously could not decide whether the WCOY action had any impact (let alone the dire effect now suggested by the Attorney Ocneral) upon the Bloch Board's conclusion respecting the adequacy of the VANS proposal. Only tre Bloch Board, or this Board or the Commission on appellate review, is in a position to pass judgment on that matter,s indeed, the Attorney General himself appears implicitly to acknowledge the line of separation existing between the jurisfliction of the two Licensing Boards. But for that separation, there would have been no need for him to file the February 1 motion in light of his then (and stili) pending appeal from the Smith - Board's denial of the motion filed with that Board,

11. Exceptionally Grave Issue The motion at hand falls to raise such an " exceptionally grave issue" that we would be free to ignore its manifest untimeliness. We, are unpersuaded from a reading of the Bloch Board's June 1989 decision on the VANS proposal that its approval of that proposal hinged to any significant extent on the participation of WCOY. On this score, it is noteworthy that the principal BBS relle41 upon by the applicants for the Massachusetts commulittles does not include WCOY ttt, rather, employs two stations (Wil AV and WLYT) with which the applicants have a contractual arrangement.'

It may not necessarily follow that the WCOY repudiation is irrelevant to the issue of the overall adequacy of the emergency itsponse plan for the Massachusetts EPZ. As cattler noted, the Attorney Ocneral is seeking our consideration of that matter on his appeal from the Smith Boafd's denial of the. s Cf Long hdusha Co (shoreham Nuclear Ibwer station, Unit 1), At.AB 9c2,28 NRC 423,429 Oicensms boant can dismtse a pany Imn only the pan of the procesihng within that beard's purview), reWew dochned, CL185 II,28 NkC 60)(1988). 'Dus being so, thete was no patential here for "the dual htigation of the same issue with posslNy inconsistent sosuks.* See AtAB 916,29 NRC 434,439 (1989).

• $ee Attachment A to Enhlhit i of 1:.nhibit 4 sppended to the Attas my oeneral's I-obruary I mouan. In light of i

thw consideration,it appears of no present moment whenhar there is an entsting Comma,iweshh of Massachusetts I (i.e., state) IJ13 for seabrook. 'Dius, we nead not concern ourselves here with the Aucrney oeneral's ashance i on the fact that %UoY's repudiation of he louer of agreemas calhng fur parucipathm in ce sesbrook alen and i nouricetion system wied (et least in pan) on that statkm'a eenclusian that no such I;Bs is now in existence. IW all that swears, the Atintney oeneral dul not make a timely challenge herare the Bloch llaard to the abihty of wilAV and wl.YT, under their ccoursetual arrangement with the opphcants, to provide the necessary radio nouncation. 140 l

... _ -,. ~. m 3 i 4 reopening motion filed with that Board. Such consideration is not foreclosed by l our ruling here, which is simply that the section 2.734 requirements have not been met insofar as the Bloch Board's decision in LBP 8917 is concerned. l I 'Ihc Attorney Ocneral's February 1,1990 reopening motion is dented.. It is so ORDERED. J - i FOR Tile APPEAL BOARD 1 1 Barbara A.Tompkins i Secretary to the Appeal Board j i l 1 l I l 141 l l: x

s Cite as 31 NRC 143 (1990) LBP 90-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Marshall E. Miller, Chairman Oscar H. Paris Frederick J. Shon in the Matter of Docket Nos. 030 06980 030-06981 030 06982 030-08335 030 08444 (ASLBP Noa. 89-690 01 OM i 90 698 01 OM 2) SAFETY LIGHT CORPORATION, et a!. j (Bioomsburg Site Cocontaminatlan) February 8,1990 I l The Licensing Board reconsiders and modifies its prior stay pendente lite j of the immediate effectiveness of one of two Staff enforcement orders. The J Staff order in questio't required the parties to begin monthly payments into a fund intended to defmy the costs of a site characterization study, and made the monics in that fund immediately avallnble for expenditure, in modifying its prior stay, the Licensing Board permits the requirement of payment to become immediately effective but stays any expenditure of such funds pending further i onler of t?e Board. 1 i RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERI A) The four factor test was codified by the Commission with regard to requests for stays of immediately effective decisions in 10 C.F.R 6 2.'Nt. Although the t 1 l l 143 l I I o

b g _ 1 i l regulation does not explicitly apply to decontamination enfortement orders, it is logical to apply those wc!! recognized standards in considering the equitable l remedy of a stay of such orders. l l RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA) in a decontamination enforcement proceeding, the public interest is the l t most important consideration. This factor argues against a stay where the documentary record tends to establish that it is in the public interest for prompt i I action to be taken to require corporations and others responsible for polluting a site with nuclear contamination to clean up the site, ORDER (Reconsidering and Modifying Stay rendente Life of immediate Effectiveness Orders of March and Auguht 1989) - l i On November 22, 1989, this Board issued an Order that converted our temporary stay of the immediate effectiveness of the Staff's Order of August 21,1989, to a stay pendente life. Our Order also directed USR Industries to file a statement within 30 days describing its plan to fund the costs of (1) site characterization and (2) decontamination of the Bloomsburg site if the Board should conclude that USR Industries and/<er its subsidiaries are legally liable for such costs. That statement was to include the sources of the funds, indicating l what percentage of a sum equal to one half of the necessary site characterization funds set out in the Director's Order Modifying Licenses (Effective immediately) of August 21,1989, would be derived from (a) proceeds of insurance policies, (b) current cash accounts not otherwise legally committed, and (c) noncash assets. At a prehearing conference held on. November 29,1989, the Staff requested the Licensing Bonitt to issue a memorandum discussing its application of the l'irginia ferroleum Jobbers criteria to the facts os this proceeding.' By an Order dated December 1,1989, the Board clarified that its November 22,1989 Order imposed a stay pendente file of both the March 16 and August 21 Orders, and that the stay included the Safety Light Corporation (SLC) as well as USR Industries, USR Industries submitted the funding information directed by this Board i in its November 22 Order by means of a letter from counsel dated December 21, 1989, Timt letter stated that their was no funding plan because "USR 3Tr.12421. I 1 I 144 L l

-.-. a....... _ _ _ J Industries maintains that die NRC lacks regulatory jurisdiction over it, and considering die current uncertainties regarding availabic insurance proceeds and USR Industries' patendy inadequate fmancial rc60urces in the abscree of such insurance... USR Industrics currendy does not have a plan to fund the costs of s!!c characterir.ation, much less the costs of site decontamination. Obviously, if, in die final analysis, USR Industrics is held liable for characterization and i cicanup of the Bloomsburg site, it will have no choice other than to seek t protection under the bankruptcy statutes." The Board on January 29,1990, entered an Order denying die motions of USR Industries to dismiss the NRC orders of March 16 and August 21,1989, for lack of jurisdiction over those parties. The March Order required all of 8 the named parties to prepare plans for site characterization and decontaminadon of the Bloomsburg, Pennsylvania site, and to specify that amount of funds that cach party would provide for implementation of the plan. The August Orders stated that the Corporatians' failure to provide assurance of adeqt. ate funding to complete Implementation of a satisfactory site characterisation plan. Os uncertainty regarding de nature and euent of contamination et the likxwnsburg facility, and the statements made by the Corporations' ? principal off cers as to the limited Anancial resources eveuable for site characterization let elone deccolamination, denuwutrete that additional actions are immedentely needed to protect public heahh and safety by esauring that sufficiera resources are made eveDelde by die Corporaties to initiate and complete the site characterivation and take tecessary immediate remedial action for any significant henhh end safety problems. %c August Order further directed USR Industries and SLC to establish a trust fund into which specified sums were to be deposited monthly from October 2, 1989, to September 4,1990. These monthly deposits would total $1,000,000, and the USR Industries were to be joindy and severally responsible for satisfying the payment schedule thus established. Disbursements could be made from the trust funds to designated contractors to implement an NRC-approved plan to characterize the type and extent of the radioactive contamination at the Bloomsburg facility, and to take immediate remedial action at any time such action was necessary,' Both the March Order and the August Order were made "Etfcctive immediately." _l De Board's Order of January 29,1990, found that the NRC has jurisdiction over the parties as a result of their unauthorized transfers of control of Ilcenses dealing with the use of byproduct or radioactive material. Section 184 of the Atomic Energy Act of 19545 provides that no license or right to utilize 2 34 g:ott Reg.12.03s (Mar. 23,1989). 3 54 I ed. Reg 36fr/0 (Aug. 21,19:9). d.t at 36.079 80. 1 842 U.s.C. I 2234 (19s2).tse eine 10 C.FA 6 30.34(b). 145 k 1

~~ l special nuclear material, shall le transferred, assigned or disposed of in any manacr, unless the Commission shall qficr securing full friformation, find that Oc transfer is in accordance with the Atomic Energy Act, and shall give its consent in writing, None of these explicit, mandatory statutrary requirements was met at any time by any of the corporate parties to this enforcement proceeding, 1 Accordingly, die NRC could disregard the " series of complicated and interrelated corporate restructuring actions which fundamentally changed the form and status of this license "$ 1he transfers of control of the licenses, by the fundamental and undisclosed restructuring of the corporate licensee, were invalid under section 184, supra, and should be disregarded by the NRC, which has jurisdiction over die corporate parties.' This Order is intended to respond to the Staff's request for a discussion of the Board's reasons for granting a stay of Oc immediate effectiveness of the March and August Orders, llowever, diere have been various changes of circumstances which have modified oar conclusions regarding the previous stay perufcate lite of the NRC Orders,8 Accordingly, the Staff's request willle treated as a motion for reconsideration of the stay order, Briefs and memcranda of law filed by counsel for both USR Industries and 1 Oc NRC Staff have stated that this Board has die power and authority to stay dic J immediate effectiveness of such orders,' We concur in those conclusions. We also agree that in considering a stay a determination should be made regarding die four factors stated in Virginia Pctrolcum Jobbers, The Commission has i codified the tests for consideration of stays of the immediate effectiveness of initial decisions regarding construction permits or operating licenses, issued under the provisions of 10 C,F.R. I 2,764, 'ihe four factors test was codified by die Commission widi regard to requests for stays of such immediately effective decisions, in 10 C.F.R. I 2,788 Although the latter regulation does not explicidy apply to enforcement orders such as are involved in the instant proceeding, it is logical to apply those well recognized standards in considering the equitable remedy of a stay sought herein, The factors to be considered by the Board under { 2,788(c) are: (1) %hether die moving pany has made a strong showing that it is like.ly to prevall on. die nwrits; (2) %hether Ow pany will te irreparably injured undess a stay is stanted; (3) %hether de stanting of a stay would harm other parties; and (4) Where the public interest ties. 'onier Denying Mahans to thamins NRC onlars lesued Much 16, 1989, and August 21,1989, rar lack or Junsdiction, et 19-2a 114 et 2122. 8tJeamns Board order issued Nmember 22 1989. 'Bners liy ticah panies filed Nmember 6,1989, and sisfr's Respanes or Nmember 16,1989. 30 Virginia repelews Joners An'a v. Federal re or Ceaun,smen,259 F.2d 921,925 (D.C. Ca 195s). 146 l

i The first factor to te weighed is whether the moving party has made a strong i showing that it is likely to prevail on the merits, By reason of our holding on the ( issue of jurisdiction in our January 29,1990 Order, this factor is strongly against l die movant, USR Industrics. De entire record to date including numerous undisputed documents was reviewed in detail by the Board. Coupled with the mandatory but unfulfilled requirements of section 184 of the Atomic Energy Act, spra, it is not likely that USR Industries will prevail on the merits of this issue. he second factor consi.1ers whether the moving party will be irreparably irdured unless a stay is granted, USR Industries alleges that it does not have the l' financial means to comply with the August Order, and that the " result of that order is likely bankruptcy."" However, the fact that the company is in financial. j difficulty formed part of the very reason that the August Order was made J l -Immediately effective, It seems logical that NRC concern over the financial l ability of USR Industries to meet its site decontamination responsibilitics 1 would cut against a stay, Any delay in setting aside funds monthly for site characterization could also result in this company's ultimate failure to discharge its site decontamination obligations. De Staff challenges the showing of a likely tankruptcy by citing a verified letter from the Chairman and President of USR Industries stating that the companies had a consolidated worth of $1,6 '~i.t* - nat letter furthet stated that USR Industries was planning on complw.t a sale of interests in a limited partnership which owns a sma'l commercial office building in llouston, Texas, "so as to provide immediate corporate liquidity,"3 It disclosed that five primary insursnoe companies had previously "provided assistance of over $2,000,000 Pursuant to a Defense Agreement executed in 1985, between such insurers, Safety Light and nose Respondents."I' Finally, the President of USR Industries stated that "[w]hile very small, hese Respondents provide meaningful employment in a rural area of Pennsylvania, and are operating profitably (m a monthly cash flow tesis (before legal fees)."58 t Since the alleged facts concerning the financial condition of USR Industries are in controveny, the Board cannot make fmdings on the persent record. Such findings must await the evidentiary hearing in June 1990 to the extent that dioso issues may be relevant and material, llowever, on principle we note that in HUsR Indusuien nner d Novenhar 6,19s9. at 20. u taun de'ed september it.1989, snan Ralph T. hkuvenny, Jr., Iwudent, io watam T Rue,ett, Regumal Adnunintrator. NRC Region I. at d (AttaA 9, starr nner dawd November 16.1989). Old u t M14 Uld at 3 I47 t t

I l l its various filings USR Industrics has frequently raised the specter of incipient bankruptcy.$' If these threats of bankruptcy proceedings are merely tactical efforts to avoid the deposit of funds as ordered, then thc short answer is that the NRC should not permit itself to be coerced thereby. On the other hand, if the financial condition i of the company amounts to insolvency in the bankruptcy sense, then possibly the sooner the better as far as filing for Innkruptcy is concerned either in a Chapter 11 reorganization or a liquidation proceeding. %c record made by the corupany j indicates that several million dollars were raisul some years ago for litigation, but apparently none was spent for site characterization of decontamination." He company has resumed the present litigation with its resultant expenses but has failed or refused to make monthly payments for decontamination purloses. l De second factor weighs against the stay requested by the moving party. De ditrd factor considen whether gmnling a stay would harm other parties. De Staff contends that soil, groundwater, and buildings on the Bloomsburg site are contaminated with various radioactive materials, and that latent site conditic" ney affect pubtle health and safety. De Board views this factor as, in effect, coalesced with the fourth element discussed next. De Staff does not have nor does it picad an interest other than the public interest. We treat that l Interest trifra. 7 %c fourth factor concerns where the public interest lies. In a decontamina-tion enforcement proceeding such as this, the public interest is the most impor-tant conside1ation. %e present documentary record tends to establish for the purpose of considering a stay motion that it is in the public interest for prompt 6 action to be taken to require corporations and others responsible for polluting a. site with nuclear contamination to clean up the site. It agycars in this case that continued delays will make ultimate decontamination efforts more difficult and more expensive. De companics here involved claim to be losing money, and litigation certainly contributes significantly to that result. By the time a decision, on the merits has been made after a hearing and potential appeals, there may be no money left for any site decontamination," which is greatly contrary to the public interest. De Board finds that upon weighing the four factors stated in Virginia Petrotrum Jobbers, the motions to stay the immediate effectiveness of the NRC March and August 1989 Orders should be denied. However, we further find that all funds that are deposited by the USR Industrics should he paid into an escrow fund but not be disbursed or committed until the evidentiary hearings requested I'UsR Induzines' Bner Aled Novernher 6,1989. et 20, Dner of Novanber 20,1989. et 4 n 4; and Decenber 21. 1989 Lauer inun ecunsel or USR Industries to en naard et 2. U See note 12, mers. 18 We note that enunsel for the safey tJght Carparstaan (510) has withdrawn Ier oppearance in this proceedug en January 4.1990, and no sotatitute appearance has been Eled. s 148 I l [ i N

~.. .r..-.-....._..--. i 3 in these proceedings have been concluded and appropriate orders issued by the - Board, i IT IS SO ORDERED, I i POR THE ATOMIC SAFETY AND LICENSING BOARD ~' Marshall E. Miller, Chairman ADMINISTRATIVE JUDOE. r i Bethesda, Maryland ' Fettuary 8,1990 -

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~' ,e Cite as 31 NRC 160 (1990.5 LBP 90 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Adminlettative Judges: John H Frye,lil, Chairman Dr. James H. Carpenter Dr. Jerry R. Kilne in the Matter of Docket No. 40 2061 ML (ASLBP No. 83 495 01 ML) KERR-Mc0EE CHEMICAL CORPORATION (Weet Chicago Rare Earthe Facility) February 13,1990 i 'Ihis initial Decision directs Staff to issue a license amendment to Kerr. McOcc Chemical Corporation which will permit it to dispose of certain therium mill tallings in an engineered disposal cell to be constructed on its West Chicago, 111inois site, it follows LBP-89 35,30 NRC 677 (1989), in which certain issues 1 wem resolved in Kerr McOce's favor on cross motions for summary disposition, and certain other limited issues were set down for learing, in this initial Decision, the Licensing Board interprets Criterion 1 to 10 C.P.R. Part 40 Appendix A, finds facts following a hearing on those limited issues, and decides a motion for summary disposition of all other issues remaining to be decided. 'Iho Licensing Board concludes that Kert McGec's proposed disposal cell sntisfies the requirements of 10 C.P.R. Part 40, Appendix A, by wide margins and that there is a high degree of assurance that no significant contamination will occur as a result of the disposal of the West Chicago mill tallings in it. ] i 150 4 i b /

- - ~ - -. -..~. -.- -. ~ l J ~ ^- i 10 C.F.R. PART 40, APPENDIX A, CRITERION 11 OPTIMlZATION OF GOALS Criterion I requires that the goals of remoteness from population and hy. drologic factors must be optimized in choosing among alternative mill tallings disposal sites. 10 C.F.R. PART 40, APPENDIX A, INTRODUCTION: FLEXilllLITY IN APPLYING CRITERIA i ne Introduction to Appendix A provides that consideration must be given to economic factors in choosing among alternatives and permits applicants to propose alternatives to specific requirements. %csc provisions dictate that the i Appendix A criteria must be applied flexibly with due consideration of the costs of achieving certain benefits under the criteria. 10 C.F.R. PART 40, APPENDIX A, CRITERION 11 OITIMlZATION OF GOALS Where the evidence supports the Conclusion that the proposed disposal cell will have only a negligible impact on groundwater quality, there is no y justification for incurring the expense of disposing of the mill tailings at another site where the impact on groundwater might be less. 10 C.F.R. PART 40. APPENDIX At NATURE OF ANALYSES SUPPORTING PREDICTIONS Analyses of disposal cell behavior must have an appropriate. degree of conservatism. They should permit realistic predictions of the impact of the proposed disposal cell which, to the catent they err, overstate that impact. llowever, they should not be so conserva3ve as to be misicading, overstating that impact to the extent of calling the feasibliity of the proposed cell into question. INITIAL DECISION (Ruling on All Remaining Issues) l. INTRODUCTION Kerr.McGec sccks an amendment to its license for the' West Chicago Rare Earths Ihcility that would authorize Kerr.McGec to permanently staNilze wastes arising from that facility's operations in an onsite disposal cell, i 151 w y y

Operations at die facihty vxte commenced in 1932 by de Lindsay Light and Chemical Company %e Lindsay Company was merged into he American Potash & Chemical Company in 1958, and American Potash merged into Kerr-McGec in 1%7, in 1973, Kerr McGee closed the West Chicago facility, and no production operations have leen conducted at the facility since diat time. %c facility produced rare carth compounds and thorium. Kerr-McGec believes that the waste remaining at the site following operations is section 11c(2) byproduct material.8 42 U.S.C. 62014(c)(2) (1982). Roughly 376,400 cubic meters of materials at the facility or in the West Chicago environs must te stabilized. Staff points out that of this amount, 81,900 cubic meters is considered source material and may be the responsibility of the State of Illinois, citing CL188 6,28 NRC 75 (1988).* lilinois points out that some of the waste at the facility and in the West Chicago environs is the subject of a proceeding now before the U.S. Court of Apicals for the District of Columbia Circuit and that, as a result, that waste may le classified either as ill(e)(2) byproduct material or as source material.8 Kerr McGee submitted a Stabilization Plan in support of its license amend-ment application in 1979, in 1986, Kerr McGee submitted a twelve volume Engineering Report.d The Engineering Report, which fills twenty binders, pro- - vides detailed information about the West Chicago site, and the design and performance of die proposed disposal cell Kerr McGec's application is being processed under Title 11 of the Uranium Mill Thllings and Radiation Control { Act of 1978. De NRC Staff issued a Final Environmental Statement ("FES") relating to the Kert McOce application in 1983.s in the FES, Staff conchuled that onsite storage for a period of years, rather than perinanent disposat, was appropriate and should be approved, Illinois requested a hearing on Kerr McOce's application and Staff's pro-posed action on it set forth in the FES. Illinois argued that the issue of permanent onsite disposal must be considered and rejected, in response to Illinols' argument, we required Stati to consider whether permanent onsite disposal should be authorized, circulate its conclusions for - public comment, and prepare a Supplemental Final Environmental Statement i Ken.uco.e.iwim dIwiu, 11 8 Stafr's 1%pused themes,13. 3 I hlumia* Prqesed thdmga,13. 4 Kerr Meose Chemiest Carp, West Chicese Project Engineering Repers (Ap 019s6) (heruna!J 'I:nsmeense l R mrti 9 8 NUR!io emi,'I'inal imiraimemal statement Related to the Daarnmissianmg of Die Ram Eanhe Itcihty. West Chicem BlmoW' (May 1983). 152

.....-.-.~.L..~ ("SFES")* which considered diat issue. LBP 84 42, 20 NRC 1296 (1984), reconsideration dented, LDP 85 3,21 NRC 244 (1985). Illinois, the City of West Chicago (" City"), and oders commented. SFES, Appendix H. After considering Die comments, Staff found in the SFES that de Kerr McGee proposal is the " preferred course of action" with regard to the stabiltration of the wastes rrising from facility operations. SFES at 120. After its issuance, the parties were afforded an opportunity to submit addi-tional contendons based on Oc SFES. Illinois submitted additional contentions outlining its continuing objections to the Kerr McOce plan. Many of these werc admitted'sind considered by us, either in our earlier ruling on Kerr McOce's and Illinols' motions for summary disposidon,' or in this Initial Decision. Following Die admission of the contentions, Staff advised us of a then- + pending U.S, Environmental Psotoedon Agency review of the SFES. Illinois subsequently advised us of certain specific EPA concerns. On August 24,1989, i we issued a Memorandum and Order calling for the parties to address five questions concerning the impact of this review. These questions sought he parties' views as to how EPA's concerns might impact the admitted conter'.nons j 1 and, in the event dicy did impact the contentions, how those concerns sh9uld be taken into account. We also sought briefing on die extent of EPA's jtv4sdiction t over Kerr.McGee's application, whether any EPA appfuvals are nec4:4 before the Staff's preft:rred alternative could be implemented, and whedit r NRC is subject to the provisions of 40 C.P.R. part 1504, related to the res)lution of interagency disagreements, Illino'd found a nexus between most of the EPA coricerns and its own cdmitted l contentions while die Staff and Applicant fmd the relationship reinote. Ht. wever, 5:aff and Applicant argue that none of EPA's concerns have a direct impact on the case unless the Board wishes to adopt them as issues to be addre4 sed by all parties. Similarly, Illinois finds no direct impact but suggests amending its contentions to encompass EPA concerns or having the board adopt dic concerns as its contentions.' 4 v 'NURIlo-opM. supp. No.1."supplanent to en Fmst Environmanat sinisment Releied to the -. "aning r of de kare F.anha heitity, west Odcago. Ulinou" (April 1949) '3n t.nP 8916. 29 NRC 50s (1959s 8 See L.llit 89-35. 30 NRC 677 (l959) 'mmnu sinies that EPA has agulatory authwity to revww ow proposed action undw secuan 309 of the Osen Air Act. 42 U.s C. 6 7609. Ilowever, sisff ansons that 13% permined tu time for bnnsing lu Qaan Air Act cancerne to CEQ under 40 C.F.R. Pan ISM to espa., so that 04 6npeet of a daffwing agency opinian is not an tasvo' Kwthoes states that so appriwans or pomsts for dus pmject sto required from El% and no applicatiau have been submined to I.PA. sisff egrees that me IJW permits em reguuod.111mais essens that permits are rapdad under Ow Osan Air Act twceuse the prqmsed action constitutes a mod 66cetian of an omistmg saune of a haraninus air pathmant. 'Ihe siste etso assau that en NPDES porndt is reguled but concedes that uds is tasued by the 11tuuss Envuunmentst Protection Agency, EPA did not assen Junsdwtian over any penniu in its commems e Ow slT.s. 153 ~ r

. ~. -. We conclude that EPA's concerns constitute comments on the SFES which have no direct impact on the admitted contentions. Accordingly these concerns need not be considered in this proceeding, in proffering its new contentiom, Illinois represented that many of them could be decided on briefs. As a result, we directed Illinois to move for summary disposition on those contentions which we had admitted, or indicate why it could not do so,58 On July 31, Illinois filed a motion for summary disposition of most of its newly admitted contentions. Then, on August 22, Kerr McOcc also filed a motion sccking summary disposition of all of Illinois' newly admitted contentions, as well as many of its previously admitted contentions, omitting only some portions of Contention 2, in LDP 89 35, Supra, we resolved all of the contentions that were the subject of diose motions in Kerr McGee's favor save two, Contentions 4(a) and 3(g)(2)." These two contentions were the subject of a hearing held in Chicago, Illinois, on December 14 and 15,1989, in this Initial Decision, we resolve those issues in Kerr McGec's tsver. On December 22,1989, Kerr McOcc moved for summary disposition of those portions of Contention 2 that remained to be resolved. In this initial Decision,' we also resolve this motion in Kerr McOce's favor That action disposes of the last of the admitted contentions in th!3 proceeding. Consequently, we direct Staff to issue a license amendment permitting onsite disposal of the West Chicago mill tallings. Tile IIEARING ON CONTENTIONS 4(a) AND 3(g)(2) llackground These two coctentions were the subject of an unpublished Memorandum and Order of November 14, 1989. In it, we denied the motions for summary disposition on Contentions 4(a) and 3(g)(2) and required the parties to prepare I and submit testimony concerning certain limited issues relating to the impacts of Kerr McOce's proposed disposal cell on groundwater.52 While we fully set forth our reasoning for the denial of the motion for summary disposition of Contention 3(g)(2) in the November 14 Memorandum and Order, we indicated that we would give our reasoning with respect to Contention 4(a) following the l hearing on those limited issues. We do so here, l 38,s 1.BP 8916,29 NRC at 515. 3 U tn one instance, concerning Contention 4(r), we agreed wuh lumcas d.at Criterian 7A or 10 C.F.R. Part 44 Appendts A, requires that Kerr Mcoes instan a so called detection monitonng systen when the tailmes are placed in the disposal cell. See 1.DIA8&s3. so NRC at 69192. Ilowever, this tulms does not challenge the acceptability under Appendia A or Kca Meone's proposal and thus does not stand as e barner to the grant or the hcense - amendrnent Kerr.Mcoes seeks. 12 we added two issues to be so addressed in an urpubbshed Memorandum and order or Novenber 20. 154 1 1

1 Contention d(a) asserts that Staff has misapplied Criterion 1," which states that. j the general goal of siting and design decisions is permanent isolation by mini-mizing dispersion by natural forces without the need for ongoing maintenance. This criterion mandates that remoteness from populated areas, natural conditions y that contribute to the isolation of the tallings from groundwater, and the ;.oten- { tial for minimizing dispersion by erosion be considered in judging alternative and exisung sites. his contention goes to the heart of the ultimate issue to be decided:. Is the West Chicago site acceptable for the disposal of the tallings? We begin our consideration with a review of the positions of the parties on the -i proper interpretation of Criterion 1 of Appendix A to 10 C.F.R. Part 40, Goal of Criterion 1 to Part 40, Appendix A - )

i Criterion 1 begins with the statement that

The gerwral goal or twund objectin in siting and design decisions is pennanent isotation. ti tallings and associated cauarninants by minimizing disturbance and dispersion ty natural forces, and to do so without ongoing maintenance, t Criterion 1 requires that, in cither selecting among alternate sites or in judging. O existing sites, considefullon must be given to the remoteness of the sites from populated areas, hydrologic conditions that will contribute to the isolation of i s contaminants from groundwater, and the sites' potential for minimizing crosion, disturbance, and dispersion by natural forces over the long term. His criterion - requires.the 0;:$nization of these factors to the maximum extent reasonably achievable. The criterion also states that isolation is to be given primary emphasis, not short term considerations'such as economics, and that siting - considerations should be emphasized rather than engineering, It closes with the admonition that active maintenance must not be necessary. 1 Illinois Motion for Summary Disposition l In its motion for summary disposition, Illinois focuses primarily on Staff's approval of Kerr McGec's proposal despite its recognition that the proposal j conflicts with Criterion 1.12 lilinois notes that Staff justifies its position as j follows: 4 83 staff enmes Ininats' motion on two punds. Ftrit, hi Elinois has provided no suppen for the assenian in its suppating afAdavit that human intrum.cn is more likely to occur at the West Oticago site than at a more remme site, and second, that Staff's supporting af5 davit demonstrates that the contenti<m is tactuaDy inaccurate in stating that staff declared Qiterion 3 to be inapphcable, 3se Staff's opposition of August 22,1989 at 14. 1 155 i l

f he West Chicago site does not nwet the general goals contained in Criterion I tecesse the site is not remote from populated areas and it duce not posicas hydmlogic or odier natural conditions that would provide isotation of contaminants from the groundwater. %csc objectives apply to the siting of a new facihty but do not apply as striedy to caisting shes. An ahernative will le acceptable if it achiever a level of stabilization and containment at a site and a level of pnnection for public healu and safety and the environment that, to the l extent practicable, is equivalent to or more stringent than the tevel that would be achieved . by strict compliance with all the criteria. %c NRC staff believes that this level is met for the Proposed Action. De fact that de Propoicd Action does not striuly conform to Criterion i does not disqualify de she for daposal. %e Proposed Action cmforms to all technical criteria and will achieve a level of protectim for public heahh and safety and the environment that meets de intent of the criteria. SFES at 2 24. Illinois maintains that this justification is lilogical and contrary to both the 1 letter and intent of the Commission's regulations, it begins its argument by taking issue with the statement that the objectives in Criterion I apply to the siting of a new facility but "do not apply as strictly to existing sites," lilinois correctly points out that Criterion I expressly provides that remoteness from pop-ulated areas and hydrologic conditions "must be considered in selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites" Frorn its reading of Criterion 1 and the statement of considerations that accompanied its promulgation in 1980,"-Illinois concludes that the Commis-sion intended that, while it will not always be possible to provide all of the site ' itures that contribute to the general goals of Criterion 1, the site-selection process 61.4 result in an optimization of these features, lilinois maintains that the Commission clearly intended that Criterion I should not be ignored by selecting a site, such as the West Chicago site, which fails to optimize any of the three specified features.18 Illinois tahes issue with Staff's position that:- An ahernative will be acceptable if it achieves a level of stabilization and cmtainment at a site and a level of protection for public heahh and safety and the environment that, to the extent practicable, is equivalent to or more stringent than the level that woukt be achieved by strict compliance with all the criteria. SFES at 2-24, Illinois notes that this position is based on the statement in the introduction to Appendix A which provides applicants and licensees flexibility i L to propose " alternatives to specific requirements in this Appendix" provided d Uranium hLD IJcesing Requirements,45 Fed. Reg. 65,52b3s (oct. 3,1980). 18 The third fasture specirmt in Criterion 1,in addition to remo:cncas rna poplatim and hydrologie conditions, is the potential to munimize emsion. We have found Kerr htcGee's tvunosat ?- vable on Ous gruuni ses 1.nF89 35,30 h'RC at 686 89, unpubbshed htemnranA. .e vrver er February 13 day Pimais' motion tar recmsideration. 156 t

V s. 1 l } 1he West Chicago site does not meet the general goals contained in Criterion i tecause the site is mz remote fran populated areas and it ducs viot possess hydrologic or other natural cmdines that wot.ld provide isoladon of contaminants from the groundwater. These objectives apply to the sinns of a new facility but do not apply as strictly to calsting sites. An ahernadve will be acceptable if it achieves a level of stabilliation and containment at a site and a level of prutection for public heahh and safety and the enviemment that, to the catent pacticable,is equivalent to or more stringent thin the level that would be achieved by strict ecanpliance with all Ose criteria. 'lhe NRC staff telieves that this level is met for the Proposed Action. The fact that the Proposed Actica, does not strictly conform to Criterim 1 does not disqualify the site for disposal. 'fhe Proposed Action conforms to all p tedmical criteria and will achieve a level of protection for rublic heahh and safety and the environment that meets the intent of the criteria. SFES at 2 24. lilinois maintains that this justification is illogical and contrary to both the l letter and intent of the Commission's regulations, it begins its argument by taking issue with the statement that the objectives in Criterion 1 apply to the siting of a new facility but "do not apply as strictly to existing sites." Illinois - correctly points out that Criterior. I expressly provides that remoteness from pop-ulated areas and hydrologic conditions "must be considered in selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites." From its reading of Criterion 1 and the statement of considerations that accompanied its ptomulgation in 1980,54 Illinois concludes that the Commis. i sion intended that, while it will not always be possible to provide all of the site features that contribute to the general goals of Criterion 1, the site-selection process should result in an optimization of these features. Illinois maintains that the Commission clearly intended that Criterion I should not be ignored by selecting a site, such as the West Chicago site, which fails to optimize any of the three specified features,u Illinois takes issue with Staff's position that: An ahernative wn! be acceptable if it achieves a level of stabilization and containment at a "j site and a level of protection for public heahh and safety and the envirmment that, to the extent practicable, is equivalent to or more stringent than the level that would be achieved tv/ strict compliance with all the criteria. SFES at 2 24. Illinois notes that this position is based on the statement in the g introduction to Appendix A which provides applicants and licensees lle..bility to propose " alternatives to specific requirements in this Appendix" provided I' Uranium Mal t3cesms Ra;uirements,45 Fed. Reg. 65,521-38 (oct. 3,1980K U The thud feature specified in Cntene 1,in addition to remoteness fran popitauen and hydrologic condaions, is the potential to nunimiae emsion. We have found Kerr4tcoco's penposal accepable on t}us smurd. See IJIP 89 35,30 NRC at 686 89; unpubbshed Memorandum and order of February 13 denying niinois' monon for reconsideration. 156 O

. w--n,, . ~. -, ~ ~ l J -- t Diose alternatives " achieve a level of stabilization and containment of the sites. a t concerned,,. ; which' is equivalent to,. to the extent poeticabic, or more stringent than tie level which wuld be achieved by the requirements of the Appendix',,." tilinois believes diat Staff's reliance on this statement for its conclusion that tic Kerr McOce's proposal is acceptable is improper for two reasons. First, Illinois points out that the language of the Introduction allows for . alternatives to specific tequirements." Because the Commission believed that

too much specificity in Criterion I would have been imprudent, Criterion 1, unlike other criteria, does not contain " specific' requirements." Thus Illinois j

argues thut the flexibility to propose alternatives to specific requirements does [ not allow for an alternative that does not meet the general goals of Criterion 1. L I Second, Illinois points out Diat the language, on its face, does not support the NRC Staff's conclusion.- Ibr the Commission to approve alternatives to 4 the specife requirements, the alternativer.nust achieve a level of stabilization and containment that is equivalent to that which would result from the specific _ requirements.- Illinois mainta!ns that, compared with the fourLallernatives postulated in the SFES, the Proposed Action:is the only onc under which the radionuclides from the wastes will not be contained.within disposal site boundaries for 1000 years. Illinois cites the SFES at E-15. Tabic E 6, for this il proposition. lilinois expresses puzzlcment with Staff's statement that: "Ihe fact thas' the Proposed Action does not strictly conform to Critericn 1 does not disqualify the cite for disposal ' Die Proposed Action conforms to all the technical criteria and will achieve a level of protectice for imblic heahh and safety and the environment that meets the : Intent of the critena, SFES at 2 24. Illinois believes that Staff has confused compliance with the goal in Criterion 1 (permanent isolation of the wastes) with compliance with all of the requirements that contribute to the achieving of that goal Moreover, Illinois ' views Staff's ' statement that the proposal " conforms to all technical criteria" as d' obviously incorrect and flatly inconsistent with other statemen:s in the SFES.' Because of the inexxtness of predictions 1000 years into the future, Illinois. believes that the Commission did not adopt mill tailings regulations that would ~ o make approval of a disposal option dependent on dose rates or excess cancer. deaths. Rather, the Commission adopted the criteria in Appendix A' to 10l C.F.R. Part 40. - Illinois submits that Criterion 1 is the most fundamental of, the criteria, and that many of the other criteria (e.g., Criteria:3,10,11,12)' are actually corollaries of Criterion 1. Criterion 1,'in Illinois' view, reflects 2845 F.d. Reg. 65.524. t x 157 i e 'l I i 4 ,g

w the Commission's general concern for conservatism in the use and disposal of radionctive materials, It points to a statement made in r.omulgating Appendix A that "the problem of tailings disposal cannot be app cached with the attitude that inadequate siting features can be compensated fr.t by design,"" and notes that, if inadequate siting features cannot be compe 4 sated for by design, surely they casmot be compensated for by ignoring therr, Illinois asserts that the Kctr McOcc propo'al is deficient under Criterion i because it does not give " primary emphasis" to the site-selection process to achieve isolation of the. wastes, in support of this assertion, Illinois cites 4 Staff's conclusions that the West Chicago site is not remote from population j areas and does not possess hydrologic or other natural conditions that would provide isolation of contaminants from the groundwatet.88 lilinois believes that l Staff completely reversed the prioritics to be given to permanent isolation of. j the wastes on the one hand and consideration of short term convenience or benefits (such as minimization of transportation costs) on the other hand, Finally, j lilinois asserts that the proposal is inconsistent with Criterion 1 because under it the tallings would be disposed of in such a manner so as to require active maintenance to ensure their continued isolation over the years, j -l Kerr McGee's Response and Cross Motion for Summary Disposition' i Whlic it does not quarrel with Illinois' characterization of the West Chicago f site, Kerr McGee argues that the legislative history and judicial interpretation of the criteria, and, in particular, Criterion 1. support Staff's position Kerr McGec ~ makes three basic points. First, Kerr McOcc points to the requirement for cost benefit balancing con-tained in section 84(a)(1) of the Atomic Energy Act. 42 U.S.C. 6 2114(a)(1),~ which obligates NRC in its management of tallings to: takiel into account the risk to the public heahh, safety, and the environment with due ~ counideration of the economic costs and such other factors as the Commission determines -l to be agpropriatE." .l-Kerr McGee argues that NRC is thus obligated to ensure that the disposal of mill tallings is guided by a balancing of costs and benefits, an obligation that it t s 37g isSee sfT.s at 244,4-23. "Tlus requirement was added to 6 84(a)(1) by NRC Authonzation Act,1%. t No. 91415 d 22(a),96 stat. 2067, - i 2080 (1983). The Conference Rapost explained that this provision was intended to ensure "that the economic and envirmanental costa sanociated with the standards and requirwnents asublished,,i. bear a teasenable relationship to the bene 6is espected to be denval." ILR. Catt. Rep. No. 884,97th Cong.,2d Sess 47,1982 U.S. Cede Cear. A Admin. Newr 3603,3617. i 158 i

J, --.---a-ww-maintains was reiterated in Oulvira Mining Co. v. NRC,866 F.2d 1246,1252 - (10th Cir,1989). Second, Kerr McOcc points to the requirement that the criteria be applied flexibly, contained in i84(c) of the Atomic Energy Act,42 U.S.C, 62114(c),. which permits a licensec to propose alternatives to the pecific requirements. adopted by the NRC where: such thernatives will achieve a level of stabilization and containment of the sites concerned, and a level of potection for public heehh, safety, and the envirosunent from radiological and nonradiological hazards associated with such sites, which is equivalers to, to the extent I Facticable, or more stringent than the level which would be achieved by standards and requirements adoped and enforced by IEPA and NRC1.8 Third. Kctr McOcc points to the need in administering UMTRCA to distin- - i guish between new and existing sites. Kerr McOcc believes that the legislative. 1 history of UMTRCA and the provisions of 684 of the Atomic Energy Act dis. -} cussed above support this view,8 l Kerr McOcc points out that after Congress added these provisions to 6 84 in J 1983, the Commission amended the criteria 50 Fed, Reg. 41,852 (1985). Kerr-McOcc and others asserted in the course of that rulemaking that the NRC should make specific changes to reflect the obligation 10 balance costs and benefits. 'Ihc i Commission chose to meet this obligation on a case by casc basis. It adopted new introductory language in Appendix A which provides: All site specific licensing decisions based on the criteria in &is Appendia or alternatives . l poposed by licensees or applicants will take into account the risk to the public health and ' 1 safety and the environmcnt with due consideration to the economic costs hwolnd and any q other factors the Coenmisske determines to be appropriate. In implenunths this Appendix,. } the Commission will consider " practicable" and " seasonably achievable" as ouivalent terms. Decisions involved 1. tic) these terms will take into account the state of techrdosy, and the - e! economics of improvements in relation to benents to the public heahh and safety, and other societal and socioeconomic considerations, and in relation to the utilization of atomic erty j in the public interest. i 50 Fed. Reg, at 41,862. Kerr McOcc maintains that this language requires costs - . and benefits to be considered in site-specific liccasing decisions.. i Similarly, the Commission implemented the congressional directive to permit s applicants and licensees to propose alternatives to the criteria by paraphrasing ; that directive in the Introduction to the criteria as follows: i j "his was added by NRC Autherkation Act. Pub.1 No. 9Mt5,(20, % siat. 2067,2719 (19s3). i ' stSee Ken Mcome's Motion at 23.' g ] 159 i 1 I .m a l n

_--w.-- - - -. ~. l 1.icensees or aplicants may propose abernatives to the specific requirements in this Ap. pendia. %e ahernative proposals may take into account local or Vianal senditions, in. cluding geology, topography, hydrology, and meteorology. He Commission may fmd that the proposed ehernatives meet the Commission's requirements if the ahernative will achieve a level of stabilization and containment of the sites cmccrned, and a level of protection for public health, safety, and the environment from radiological and neradiological heards l associated with the shes, which is equivalent to, to the extent practicable, or more stringent Gian the level wht:h would be achieved by the requirements of this Appendia and the stan. dards promulgated by the Environmental Protection Agency in 40 C.F.R. part 192, Subparts D and E.23 Kctr McOcc and various other compan!cs soughtjudicial review of the NRC's actions in a proceeding before the Tenth Circuit, QuMra Mining Co, y, NRC, supra Kctr McOcc asserts that, although the Tenth Circuit ultimately found that the NRC's efforts to balance costs and benefits in promulgating the criteria were sufficient to support the rule, it emphasized the NRC's assurance that i it would also achieve such a balance in site specific decisionmaking. Id. at 1254, Similarly, Kerr McOcc points out that, while the court provided for challenges to specific NRC licensing actions, it assumed that the Commission would implement the criteria in such a way as to provide for the flexibility mandated by Congress. Id. at 1259, And, with respect to the need to distinguish between new and existing sites, Kerr-McOcc believes that the court relied on the Commission's assurances that it wuld treat new and existing sites differently in I concluding that the flexibility provided in the Introduction to the criteria meets that need. In sum, Kerr McGeo believes that; the history surrounding the prurnulgation and amendment of the criteria shows that the NRC has a fundam.ntal obligation to castrue the criteria so as to achieve a reasonable relatimship betwee costs and benefits. His obligation is particularly important in this case. %e staff has established - and the State does not challenge - that the coat of onsite disposal 1 soughly $40 million less than any of the offsite ahernatives. %e State thus must carry i the bunlen of demonstrating that extraordinary benents would accrue from cmstruing the UMTRCA criteria so as to require offsite disposal. Ilut, other than a minor challenge to the i staff's assessment of radiological impacts, the State has not even presented a contention to j challenge the staff's assessment of costs and benefits.23 in the context of the above arguments, Kerr McGec defends Staff's construc-tion of Criterion 1." First, Kerr-McGee points to the language of the criterion which states that it expresses a " general goal or broad objective." Because, in 22 50 Fed. Reg, at 41,s62. 'i 13 Kerr.Meone's opposition to Ilhness' Motion and Kerr Mcoce's Cross Mation rce summary Disposition at i 19 20 (footnote mune4 M stafr suppong Ken Mcoce's crcas-motion. see Staff's Response in suport, september 20,1989 et 2. 160 l l

..,. _,.. ~ i 1 i i Kerr McGee's view, its proposal will be more protective of groundwater than any of the alternatives,25 is not subject to crosion or intrusion,88. and will not rc. quire active maintenance, Staff's conclusion that the' criterion is satisfied cannot be seriouly challenged. [ Second, Kerr McOcc states that Illinois has ignored Congress' intent that the : criteria be applied with due regard for the differences between new and existing sites, as well as the Commission's statement that it will recognize this difference. Finally, Kerr McOcc notes that Illinois has not disputed that the costs of offsite disposal cxceed those of onsite disposal and has not demonstrated that. significant benefits would arisc from offsite disposal Thus, argues Kerr McOcc, even if its proposal is a departure from Criterion 1. It is a departum in keeping with the flexibility that Congress intended _would guide the management of tallings. Illinois' Response to Kerr McGee's Cross Motion .[ lilinois believes that the cornerstone of Kerr McOce's argument is its position that a cost benefit analysis is required in applying the Appendix A criteria. Illinois believes that Kerr McGeo would make industry cost thc. overriding _. consideration in judging whether the proposed action meets the criteria. While it recognizes that the 1983 amendment to the Atomic Energy Act mandated-that cost be considered, Illinois maintains that Kerr McOce's inter-picmuun runs afoul of congressional intent, case law, and public policy, Illinois cites H.R. Rep. No. 97 884,97th Cong.,2d Sess,47I (1982), for the proposition that Congress intended that its directive to consider costs should not " divert EPA - and NRC from their principal focus on protecting public health and safety nor ,, require that the Agencies engage in cost benefit analysis or optimization." lillnois believes that Quivira Mining, supra, supports its view of ('ongress' in-tent. Illinois sums up its position as follows: q the tinchpin to Kerr.McGee's arguments falls. Neither lesialative intent not case law dictnes that costs are the determinative factor in this case. He NRC minimum compliance : '1 l requirements, as embodied in Appendix A Criteria, have already considered costs as a factor. ! Kerr McGee's self serving extension of cost-benent interpretation is not warranted. Indeed, as Congress has directed, the NRC and this Board must be mindful of its primary role - that of protecting the public heahh and safety and the environment." Itrther, Illinois states that-I l I 25 Kerr.Meoes cites sFEs at s.28 to s42, s.7, Appendix E. 26 l _l Kert Mcose cines 1,r., B-6 to n ll, H-1:D. U l llhnois' opposition to Kerr Meone's Cross Motion for summary Disposaion at s. !( i L -161 ? ~ -l ?lq t m +

J Kerr Mcgee has ignored the espress tanguage of Criterian 1, has ignored the NRC staff's factual statemer.ts in the STES about the West Chicago site, has misstated the NRC staff's findings alunit the failure of the West Chicago site to comply with specific provisions in Criterion 1, and has totally ignored the People's demonstration that the NRC staff has misinterpreted Criterion 1.2s In support of this statement, Illinois points out that Kerr McGee does not contest Staff's recognition in the SFES that the wastes would not be permanently isolated if Kerr McOce's proposal is implemented. Indeed, Illinois notes that Kerr McOce did not respond to the reference to this statement in the SFES. Illinois states that Kerr McOcc has ignored the site features identified in Criterion 1 - remoteness from population, hydrologic condidons, and the potential to minimize erosion or intrusion - which must be considered, as wc!! as the admonition that, to the extent reasonably achievable, the site selection process must be an optimization of these features, Kerr McOcc to the contrary notwithstanding, Illinois asserts that it has r.ever argued that Criterion I must be " rigidly" applied, either to new or existing sitee Rather, Illinois has recognized that it is not necessary that a dispost! site have all of the features identified in Criterion 1, Rather, Criterion I states that the site-selection process must optimize these features, %c West Chicago site has none of the features, and therefore optimizes none of them. In responding to comments on the proposed criteria in 1980 that existing sites should be treated more leniently than new sites, the Commission stated that while some requirements can and must be met in all cases, objectives concerning remoteness from people, below grade burial, and transferring ownership of sites "may not be met to the same degree at an existing site as at a new site.""In Illinals' view it is significant that the Commission did not indicate that new sites and existing sites should be evaluated differently for geological conditions.' lilinois believes that there is no basis in Criterion 1 or its history to approve disposal at the West Chicago site when the geologic conditions at that site do not contribute to continued immobilization and isolation of comaminants from groundwater, it views Kerr-McGee's suggestion that geologic conditions in West Chicago are actually good for a waste disposal site as both creative and 1 outrageous, and as highlighting n fundamental prob!cm. He reason that the West Chicago site may be abla to comply with regulatory concentration limits l for contaminants is that there is such a great movement of groundwater to carry the contaminants off site: According to the model results (Table E.7), peak concentraticos in the groundwater in the t,000-year period are predicted to be lower for most chemical species for the Proposed "See Rhanis o omtice at 30, w

1. ,s 45 Fed. Reg. 65,523, 3

162 .1

- - - ~ ~ - - =1 1 Action than for Ahernatives A D, his is mainly due to the fact that the pore water velocity and diffusion coefficient for the groundwater are snuch higher at the Wes Odcago site than at the other disposal sites, which resuhs in rnare diffusion and dilution of leadi in the { 1 groundwater at the West Oilcago site than at the other sites. I. SI'ES at E 13 through E 14. Illinois asserts that Kert McGee may not argue that "dllution is the solution to pollution," and that Kerr McGee has not even addressed the provision of Criterion 1 that requires that primary emphasis be placed on isolation of the tailings rather than minimization of transportation or land acquisition costs. Analysis -i Essentially, Kerr McGee argues that we may look at cell performance and doses to arrive at the conclusion that the West Chicago site is acceptable under. Criterion 1, while Illinois argues that we may not. Kerr McGee correctly points out dmt the 1983 NRC Authorization Act amended I84(a)(1) to require the Commission to take into account risks to public health and safety and the. environment while giving due consideration to economics." The Commission responded by inserting language in the introduction to Appendix A which requires that all site-specific decisions take economics into account.51 This j language goes on to state that in interpreting the terms " practicable" and " reasonably achievable" (which are to be considered equivalent), consideration must be given to, among other things, "the economics of improvements in relation to the benefits to the public health...." tilinois is correct in its observation that Criterion I requires consideratica of remoteness from population and hydmlogic factors in choosing among al-ternatives, as well as that it din, cts that the site selection process should result i in an optimization of these goals. Were this proceeding concerned with the I siting of a new facility so that cost differences among potential sites wre ml. nor, Criterion I clearly would result in the disapproval of the West Chicago site because of its population density, But this proceeding concerns the disposal of.- an existing tailings pile located on the West Chicago site Kerr.McGee correctly. t points out that, like it or not, we must deal with that site. We believe that the amendments to the introduction to Appendix A, which require that consideration be given to economics in all siting decisions and permit applicants to propose l

1. uinois points out h ht limse Conference Report accompanyvig this act stated that this prtwision was not to l

divent IPA or NRC fecun their pnmary taski of protecting the pubhc heahh and safety. 344 llouse Rep. No. 884, 9hh Cong,2d sess. 47; 1982 U.S. Cnds Cong. & Ahun. Nms 3603,3617, 33 See 50 Fed. Reg at 41.855. .j 163 I i i

JTL.:.;LZ.C.'11.LJ C 'L.-.a-MJJ "' ' 4 ' " ' ' ' ~ ' ' ' - F( i alternatives," require that we approach this case with due regard for the fact - l that West Chicago is an existing site, if those provisions were not in plxe,- Illinois' position would be correct and it would be necessary to reject the West Chh2go site at the outset." The requirement to consider economics as well as alternatives means that West Chicago may be rejected only after consideration is given to the costs and benefits that would be incurred by moving the tailings to another site. Criterion is when read in conjunction with the introduction to. Appendix A, clearly requires this resulti Criterion I requires ' optimization of l Its enumerated goals "to the maximum extent reasonably achievable. J.." The. Introduction to Appefxlix A directs that we interpret "to the maximum extent j Icasonably achievable" in light of the costs and potential benefits that would be achieved by moving the tailings to another site which would optimize those. l goals," i ~ While Illinois' arguments concerning hydrology are somewhat varied, essen-tially they boil doWn to the proposition that the West Chicago si'c is the only ~ ! l site that will not isolate the tailings from groundwater. Staff re:ognizes and Kerr McOcc does not contest this proposition. Illinois believes ' hat there is j no basis in Criterion 1 or its history to approve disposal at the W '.st Chicago . I site when the geologic conditions at that site do not contribute tc. continued i immobilizallon and isolation of contaminants from groundwater"' Doth Staff and Kerr McOcc take the position that the fact that 'he West Chicago site will not completely contain the tailings is not a problem Oiven i 'E llhnnis' argumana that because Criserian i does not contain specino requimments, one may not prc,pase shamatives to it is inconect, Illmosa is conect that the Canunissian in amending Pan 40 in 1980 stated that too much speciAcity in sating siting seguirements was not good and thus sofused to peuvide speciAc ruins in Catenon - - 1. Illino6s overlooks the fact ht the Commission subsequently added the language ht clearly contemplates a weighing of ecais and praential bannats in seeldng en opsimization of the Cruanan I goals. Dus Criierian I permits appheants to propose ahernatives.1%r the sams season, Rhnais' argument ht we may not considst such things as dose sases or eacess cancer deaths in judgms KeroMcoes's psoposal against Appendix A unast fail. Closely, considenne the scanamic cosu and potenual public huhh benents of optimizaden er the Crhed m I i goals requires that we adiass such mouess.. aecaues of these provisians, we am not imubled by es non asceiner ha Elinois Ands in Staft's position that, i despite the fact that the Wat Oticago site does na most the sosis ernenessted in Criteriun 1, it nonetheless is secepable. Su 11hnois' october 2 oppositics to suff's Response in Support of Kesr McGee's Cmes Motim. j 8 This decision dispose of Corsention 7. That crmtention rehes m I.BP 84-42,20 NRC 1296,1323 0984), ^ and LDP 85-3,21 NRC 244,255 n.16 0985),for the proposition ht staff may not property select the West - i Oticago site es the best of those considered under NEPA if ht site does nas most the Appendix A criteria. This . pmposition is conect. Ilowever, Appendix A requires that the detnments of disposal at Wat Chicago must be a weighed against the costs of moving to another site his cost bensAt analysis may, independently of NEPA, dactate the selectim of the West Chicago site. Contenuan 7 is dismissed as moat. Cf LEP 89 35, apro,30 NRC. i at 697. Similarly, this decision provides the rationale for our disposition of -- 3(b)(i),3(bXii), and 3(g)o). %sse cmtentions assent ht staff impropedy failed to apply uniform cnieria to potendal ahernstave sites sad the West Chicago site. Kerr.Meoce's Cross Motion for summary thsposition of these corsentions ws: granted 3 in LEP 89 35. Su M st 694,696 I M Despite its interest in smundweter quality,111mois dul nas 61e a contention challenging Kerr Mcoce's compliance with Critanian 5 which acu specific weter quahty standards. We And this panicularly interesting in light of Illinois' ? lengthy litigation with Kerr4tcote concerning the latter's compliance with 111inais' water quahty standards. f 164 m + i ~ i t r

.,m _m s that the site will not contain the wastes, we were troubled by the inconsistent hy. - drogeological analyses by Kerr-McOce and Staff, which predict quite disparate groundwater concentrations of some heavy metals and anions. This prevented j~ our approval of Kerr McGee's cross motion. In our unpublished November 14 Memorandum and Order, we noted that we must decide what degree of groundwater quality changea should be expected at the West Chicago site, including an understanding of th degree of confidence - associated with any particular forecast. There, we stated that: %ese predictions are a major elemers in this proceeding becam t they are es.ential in ' weighing the extent of the benefit which would be ottained by i noving to another site J against the cost of such a move. We find the SFES and the Kerr McG e Engineering Report inoansistent in the respects enumerated below. %e error tamds c i the results of both Ken.McGee's and Staff's analyses are apt to be large. While the resuhs of Kerr.McGee's analyses are small enough to permit the emelusion that the West Qiicago site is acu:ptable, we find that the analyses catained in the SFES are too close to the line between what is acceptable and what is not to permit us to aprovvc the West Chicago site with an appropriate degree of confidence in the correctness of that resuh. These disparate resuhs prevers cur. I reaching a favorsble emclusior, on Kerr McGee's cross motion on Contention 4(a). Consequently, we scheduled a hearing that was limited to certain issues that., j we enumerated. The hearing was held in Chicago on December 14.and 15, j 1989. Findings of Fact on Contention 4(a) Issues Kerr McGee submitted testimony by a panel consisting of Charles W.- Fetter, 'i Jr., James L. Grant, and John C. Stauter. Dr. Fetter is a professor in the j Department of Ocology at the University of Wisconsin Oshkosh; he is an '- expert in hydrogeology. Dr. Grant _ is President and Chief Executive Officer - 1 of James L. Grant & Associates, Inc., a consulting enginecting firm;' he has' been extensively involved in the preparatlon of hydrogeological assessments. l Dr. Stauter h the Director, Environmental Affairs, Kerr McOce Corporation; ) he is an expert in a variety of chemical and sampling issues relating to the i Kerr McGee wastes. ) lilinois submitted testimony by Dr. Don L. Warner Dr. Warner is Dean of the School of Mines and Metallurgy at the University of Missouri-Rolla." Dr. Warner is an expert in hydrology lie has been a consultant on many projects involving landfill disposal. Illinois also submitted the testimony of Dr. Octald j Thiers, but this testimony was stricken on motion of Kerr McGee in which 1 "Kerr Meose Eled a motion to suike the testimony of Dr. Werner with nospect to Cornention 3(aX2) which was. 4 gunted. Tr. 488. >j a i 165 d u 1-j ! f l l 1

...a.w._...---,..---.,_ l the Staff concurred." lilinols also filed four modons at the beginning of the hearing." The NRC Staff submitted testimony by various officials from.Argonne Na-tional Laboratories who had assisted in the preparation of the SFEb. The NRC witnesses were Dr. Paul Benloff, Dr. Charley.Yu, and Dr. Jeffrey P. Schu-bort. Dr. Benloff is an environmental chemist and served as project manager 1 in the preparation of the SFES. Dr. Yu is an environmental systems engi-j neer/ radiological analyst with responsibilitics for developing pathways analysis j computer codes and performing sito specific environmental impact assessments. Dr. Schubcit serves as a Scientific Associate in the Environmental Research Division at Argonne and has engaged in a variety of the projects involving the ] assessment of the geochemical evolution and transport of contaminants in sub-j surface systems. I Both the Kerr McOcc and Staff witnesses were cross cxamined by tilinois, j We granted a request by the City of West Chicago that it be allowed to participate .i in the proceeding pursuant to 10 C.F.R. 52.715(c) and directed that the City was to be added to the official service list." Counsel representing the City attended - t depositions of witnesses and participated in the hearing. Counsel for the City l also cross-examined both the Kerr McGee and the NRC witnesses. . In our November 14 Memorandum and Order, we limited the issues to be l explored at hearing. We posed specific questions with regard to the following i subjects encompassed by Contention 4(a):. (1) infiltration; (2) hydrogeologic -{ properties; (3) 11uoride concentrations; (4) groundwater flow; (5) recharge of the il Silurian aquifer; and (6) groundwater usage. l In an unpublished Memorandum und Order of November 20,1989, we requested testimony on two additional issues: (1) the estimation of teachate l concentrations; and (2) the conclusion by the NRC Staff that cyanide might bc - present in the wastes. l i Kerr McGee and Staff Groundwater Models ' i 4 1 Our orders did not open a general inquiry into the groundwater models used ' [ by Kerr McOcc and Staff. Despite this, Illinois filed Contention 10 two days Usee our anpublished Memorandum and order of December 6.1989. " ne fust of these motions requested that we vssit the west Chicago sue; we denied it as moot in baht of our psevious site visits. Tr. 46241 similarly, wo darued niinois' motion to submit a new Contention 10 ccmcmans the adequacy of the groundweter models employed by Ke&Mcoes and Stafr and its motion he &mine which - would have provented Kerr-Meoen tram intmducing evidenso of any sarnphes and laboratory analyses conducted after November 20.1989. The lauer mutism was denied without pn@ dice to Ilhnois conducting its own sampling -and analyses ror cyanide and advising us of the resuhs by January 16.199c. Tr. 488-89; unpublished enter or December 20.1989. Clinois did not avail hselt of this opponunity. Finauy, we denied nunois' motion io sinke the testimony orJohn stauter en behair of Kerr.Meoee. Tr. 468. i "see eut unpubbshed Memorandum and onfer or september s.1989. ? 166

{

d I

,._,..u...-.~.~. -. _ m ' before the hearing, sccking to litigate the adequacy of Kerr McOce's and Staff's groundwater models." Specifically, that contention alleged that, ll)n order to accurately model the sertical movement of chemical ard/or radiological cmstituents themgh the disposal cell, the parties should have used a three dimensional, site specific model. Neither the NRC Staff model nor the Kerr.McGee model provides sesuhs upm which la can be conduded that groundwater in the Silurian Dolomite equifer will be - protected.dl I Both Kert McOcc and Staff objected to this contention.' in part, we rejected ~ it because, within the framework of the issues we had identified, Illinois was. free to demonstrate that the models actually used were flawed. We observed that if Illinois did so, it would prevail regardless of the merits of a site-specific l three-dimensional groundwater model, in its proposed findings, Illinois has attempted to show that a dirce-dimen-slonal groundwater model was necessary to accurately predict the effects _that the Kerr McOcc proposal would have. While Illinois points.to the advantagesi of a three dimensional model, it totally failed to demonstrate that the models ) actually employed were flawed. Although Kerr McGee submitted general testimony on modeling, some of. which went beyond the scope of out order, no motion to strike those portions l was made, and all parties have addressed it in their proposed fmdings. We view this testimony as providing valuable background for the issues that we identified, j and, in particular, for the issue of the degree of confidence to be placed in i disparate groundwater analyses by.Kerr.McOcc and Staff. Consequently, we address it first. a. Kerr McGee Analyses The Kctr McOcc model of impacts of the disposal cell consists of three clements: (1) estimation of infiltration through the cover; (2) estimation of. leachate that wuld be generated by water passing through the wastest and (3) i prediction of the impact of leachate on groundwater quality at the site boundary, KM Exh. 2 at 4 5. Kerr McOcc estimated infiltration through the cell cover by.the use of a. ' computer model, the Hydrologic Evaluation of Landfill Performance model d ("IIELP" model). The model was developed by the U.S. Army Corps'of Engineers' Waterways Experiment Station for the U.S. Environmental Protection "s,, note 33,,,re. we atio stn.ck usat portion or the iemurnony or niinod opert. Dr. Warner, which sought' to raise the issue or three dirnensmnal groundwater snodels in connection with Contention 3(g)(2). See note 37, syra. 4 34e luinois' Motion for Leave to submit Contention 10, Deconher 12.1989. .-l 167 . i -i 1 j y-

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- ~ -- - --. -._ _ m Agency Tic model is well documented; it is often used to design landfill covers. 1d.at5-6. Kerr McGee perforrhed groundwater modeling using a model developed by _ the U.S. _Ocological Survey De 'model has been verified in the published literature and has been successfully employed in the evaluation of contaminant transport. it is known to be accurate in actual applications 1d. at 11 12. %c topmost aquifer at the site is the E stratum. That aquifer would be the. first and most significantly affected stratum that could be impacted by leachate - i from the cell. Kerr McGee estimated the potential post-closure impacu of the - cell on water quality in the E stratum using the groundwater model. Id. at 4, 13. 1 The values of various parameters that enter the model were estimated from l tte data that had been collected at the site. Numerical valua for transmissivity were adjusted by trial and error until the model results matched the observed potentiometric surface in the E stratum. The dispersivity factv was adjusted until model results for dissolved solids and sulfates were similar to the observed dispersion at the site. Id. at 12-13; Tr. 844 45 (Grant); Tr. 764 (Sci ubert). he Kerr McOcc model was a two-dimensional model that aOowed the observed variability in hydraulic properties at the site to be acconvuodated. KM Exh. 2 at Il 13,25-26; see Tr. 733 39 (Schubert); Tr. 822 23 (Orant), The model does not specifically calculate vertical movement of teachate or mixing in the E stratum. Rather, it is assumed that leachate mixes instantaneously in the E stratum after emerging from the bottom of the waste cell. "IY. 543 45 (Fetter); Tr. 822 (Grant). t The Kerr McGee model does not include the effects of retardation of solute movement through strata underlying the cell, Retardation of solute movement l will occur in actuality and will delay impacts predicted by the model. At the best i estimate of infiltration (0.1 inch per year), radium will not enter the groundwater I system from the wastes for over 6000 years, and uranium will not enter the groundwater for 3000 years. KM Exh 2 at 16,' Appendix 5; see'also Tr. 712, I 752 (Schubert); Tr. 813 (Yu). Dr. Warner, Illinois' expert, criticized the Kerr McOcc model because that~ model assumed instantaneous vertical mixing in the E stratum. fly. 669 70~. (Warner). Dr. Warner stated however, that he did not know whether this assumption produced unrealistic modeling results. Tr. 670 (Warner). %c assumption of vertical mixing is a consequence of the fact that Kerr. ~ McOce applied a two-dimensional groundwater model...De assumption.of-- vertical mixing is reasonable because'Kert McOce has verified that complete. I vertical mixing will occur within a short distance after the teachate reaches the~ j top of the water table. Tr. 822-23 (Grant); 'lY. 591 (Fetter); see also Tr. 543 46 (Grant, Fetter). In the modeled area the aquifer is from 5 to 30 feet thick, and. . i the dimension of the source is nearly 1000 feet in the flow direction. Calculation 168 j 1 q l I ?

m ..m.a,.wa.-.---_____._.._._..._._____._- t - shows that complete vertical mixing will occur within about 25 fect from the point at which the leachate enters the groundwater system. The mixing is enhanced at the West Chicago site because the aquifer thins in the downgradient direction to about 5 feet at the site lxn;ndary, enhancing the mixing that will occur. Tr. 824 26,828 32 (Orant); KM Exh. 3.- %c modeling conducted by Kerr McGee provides a characterization of the - effects of the cell on the groundwater system. The model results show that the disposal cell will have negligible effects on groundwater. KM Exh. 2 at 161 see Tr. 620 (Grant); Tr. 621 (Fetter).

b. StqWAnalyses

%c NRC performed an independent assessment _of the groundwater impacu of the Kerr.McOce proposal and of various alternative sites, it chose a model ' that would facilitate the comparison of_ alternative sites. - Quantitative site l comparison for the SFES was made difficult because of the lack of hydrological data at the alternative sites. De NRC groundwater model was simpler than the ] one used by Kert McGee but it permitted approximate conservative analyses to be made where detailed site-specific data were not available. The NRC Staff used the same model at all of the sites including West Chicago because of .j its judgment that differences among sites obtained under uniform methodology ]j would reasonably reflect the relative properties of the sites even if fully accurate calculations could not be made at all of them. Although detailed hydrological data were available for the West Chicago site, Staff felt that a simplified approach was necessary and appropriate for its study of alternative sites including the West. Chicago site KM Exh. 2 at 17: 'n,768-69 (Benloff), j no NRC used its simplified model to assess the suitability of the West Chicago site. He Staff could have used a more detailed groundwater model j at the West Chicago site because data were available that would permit it to. l do so; however, it decided that such an analysis was unnecessary because the a' results from the simplified model using conservative assumptions showed that groundwater under the proposed cell would conform to regulatory limits. De y simplified model was used to provide a bounding analysis rather than a realistic. estimate of water quality beneath the cell. Because the modci showed impacts q on groundwater below regulatory limits with highly conservative assumptions, the Staff concluded that more detalled modeling was unnecessary. Tr. 691,768- - 1 69,772'(Benloff). 1 The NRC Staff applied a standard model - the AT123D model developed l by the Oak Ridge National Laboratory - to estimate the impacts of the ccll on ' groundwater. The model represents the application of an analytical solution j to the groundwater flow equations. Although the model embodies certain, simplifying assumptions, the NRC chose values for aquifer parameters that ,q 169 ,x ~

m. a __ _

m. _. - _ _. -

..-._a... _..=..a._ n r

i would provide a conservadve estimate of cell performance. KM Exh. 2 at 18, l

b ble 6. %c Staff modified its model to account for the passage of leachate from" l the cell through the unsaturated zone above the groundwater system. De i modification allows the esumation of retardadon effects on solutes as they pass - 1 through the unsaturated zone. KM Exh. 2 at 39 40. Staff approached its modeling in an entirely different fashion from'Kerr-f McGee. Staff's effort was a bounding or worst case assessment, while Kerr. [ McGee's effort was a more detailed attempt to obtain a realistic assessment. Both independent approaches reach the same conclusion that the impacts of - -) the cell on groundwater will be small and within applicable regulatory limits, I However, the differences in approach are helpful in explaining the apparent disparides in the results obtained by Kerr McOcc and Staff which concerned us. De NRC model shows that with the exception of cyanide ion the Kctr. McOcc proposed cell will satisfy IEPA general use standards by wide margins at both the slte boundary and the edge of the wastes.' SFES at E-15, E 16.8 Dr. Watner, Hlinois' expert, agiced that the NRC groundwater model repre-sented an appropriate mathematical solution to the equations governing ground < water flow. Tr. 663 (Warner). However, Dr. Warner thought that the NRC model had been unrealistically applied at the West Chicago site so that leachate was introduced into the groundwater by the lowering of a single block of contami' 1 nants into the gmundwater system, rather than allowing the continuing leaching of contaminants into the groundwater system over a period of time, *1Y 662, q 666 (Warner).' Dr. Warners' observations as to how contaminants were introduced to the. groundwater system in the NRC modeling were incorrect. He NRC model used a three-dimensional model that did not rely on an assumpdon of instantaneous vertical mixing in the E stratum. Rather, it calculated the mixing that would .1 occur as teachate entered the aquifer from above. 'lY. 766,810-11 (Yu); 'lY. 843 (Grant). Moreover, the NRC model did not introduce the contaminants as a. l I single slug, but allowed the continuing leaching of contaminants from the waste e over a period of time. Tr. 843-44 (Grant). Dr. Warner also thought the NRC model was unrealistic in that it allowed a unifoin release of teachate from all parts of the cell, whereas in reality more conantrated leachate might be released from certain parts of the cell. 'IY. 662 (Wtener). Although the NRC model did assume the uniform release of.- leachate from 311 parts of the cell, this assumpdon is not unrealistic. Kerr-McGee analyzed the effect of the placement of different types of waste in the cell and 4 As appean h(re, we do na accep Stalt's finding on cyanide. ii. t 170~ l

.~. m ~ showed that the leachate from one past of the cell did not differ significandy from - de Icachate generated in other parts of the cell, KM Exh. 2 at 8-9. Moreover, the Kerr McOcc analysis showed that even if all the leachate were released from - one point in the cell, the impacts on groundwater were not significandy affected., Id, at 15. Thble 4 (Case 1!). Dr. Warner found the results of the NRC mo& ling to be physically unrealistic in that tie model predicted extensive dilution of leachate at the downgradient edge of the waste. W. 665 66 (Warner). The cell extends in the upgradient direction for nearly 1000 feet, and leachate is released to the aquifer over that entire length. A simple calculation using the actual aquifer dimensions shows that vertical mixing would be complete within-about 25 feet of the point o release. nus, less than 1% (in fact. 0.25%) of the. r leachate would be released olthin the mixing 40ne distance of the downstream edge of the wasic, ne remainder of the teachate would be fully mixed with the o groundwater well before it reaches the downstream boundary of the waste cell, i Extensive dilution of leachate is to be expected at the downgradient edge of the '

i waste. W. 829 32,835 37 (Grant, Fetter).

Dr. Warner testified that the NRC model showed the same dilution at the-edge of the waste as at the boundary of the slic and that he found this to be-physically unreasonable, W. 665 (Warner). - The NRC calculations show a slight dilution between the center of the downgradient edge of the waste ad the center of the downgradient site boundary. W. 839 (Grant); KM Exh,5. The dilution between the edge of the waste and the edge of the site would be slight because the downstream edge of the cell ; j is close to the edge of the site. Peak concentrations would not be expected j' to diminish significantly at the edge of the site in these circumstances because there is little opportunity for dilution by water from beyond the edge of the. - 1 waste cell, W. 839-40 (Grant), j We conclude that the NRC groundwater model:was unrealistic in some - 4 . respects but not as alleged by Illine.is. Lack of realism in NRC modeling.'esulted, from the exceptionally conservative approach to analysis that was adopted by ' the Staff. The Staff conclusions erred in the direction of overstating possible impacts by a wide and in some cases misleading margin. ~ I Specific issues Under Contendon 4(a) a. lit l\\ltration Our inquiry with regard to infiltration was as follows: I Accordins to the Kerr McGeo Ensineerins Report, the estimate of ceilinnkretian is 0.025 cm q per year. (Vol.11, p. 2 80). Ilowever, the solute transport analysis in the SFI;S assumes an 171' 1 e ) 9 i e. J;;

^ inrtheation rate of 3 cm per year. (SFES p E10). We need to resolve this 100 fold difference in the estimated source strength in terms of a most probable value and its uncertainty. - De normal percolation through natural soils in the West Chicago area to the top-most aquifer, which is found in the B stratum, is about 3.7 inches - per year. no IIELP model shows that a waste cell cover built according to the Kerr-McOce design would allow infiltration of less than 0.001 inch per year, llowever, cell infiltration was calculated to be about 0.1 inch per year. KM Exh. 2 at 6 7, 'ntble 1 Kerr.McOcc made adjustments of the hydraulic conduedvity of the topsoll layer to account for weathering and the effects of roots. His adjustment yicided an infiltration rate of roughly 0.1 inch per year (0.25 cm/yr). Kerr McGee used an infiltration rate of 0.1 inch per year in its l modeling as its conservative best estimate of infiltration. Id. at 7,' 21. Most of the groundwater in the E stratum at the site flows horizontally and discharges, after significant dilution, into Kress Creck. Id. at 34, Some minor amount of teachate released from the cell could move downward Constituents in any downward migrating groundwater could be sorbed onto soils and, in any event, would be significandy diluted before scaching deeper aquifers. Impacts in deeper aqulfers will be less than in the E stratum and insignificant in comparison. 'lY. 571 (Grant); Tr. 610-11 (Fctter); Tr. 738 39,747 (Schubert). Kerr McOcc calibrated its groundwater model in order to ensure that the model accurately represents the behavior of groundwater at the site. Nonetheless,- ~ after model calibration was completed, the model was applied in a number of simulations of post closure site behavior in which the sensitivity of the results to changes in parameters could be idendfied. KM Exh. 2 at 1415,25 28. De calibrated model was used to estimate the post closure impacts of the disposal cell. If the best estimates of infiltratice and aquifer parameters are applied, the cell is shown to have negligible impacts on groundwater quality at the site boundary, Id, at 15. If significant variations of the assumed parameters are assumed - increasing infiltration by a factor of 50, assuming that the teachate has the properties of the maximum leachate, or reducing tmnsmissivity by a factor of 10 - the IEPA general use standards are still generally sausfied by wide margins. Id. at 15, Table 4. He predicted infiltration is insensitive to increased rainfall after an infiltration - of about 0.1 inch per year is achieved. His is because the amount of infiltration during wetter years is controlled by the low permeability barricts in the cell-cover, including in particular the 2 foot clay cap that forms the lowest layer of the cover. Id. at 24 25; Tr. 628 30 (Orant). De determinadon that the cell will yield infiltration of about 0.1 inch per year is therefore robust. Kerr McOcc assessed the sensitivity of its estimate of infiltration by per-forming groundwater modeling with various assumed infiltration rates. De range of rates spanned fmm 0.01 inch per year to 5 inches per year. He upper i 172

y i L. L limit gave no credit for de effectiveress of the cover; it exceeds the regional average annual infiltration rate that Kerr McGee gave of 3.7 incies per year." Infiltration through a constructed cover like that proposed by Kerr McOcc would be less than the local average. 71. 699 700 (Schubert); Tr. 710 (Yu). With as-sumed infiltration of 5 inches per year, the cell would have only a small impact 1 on groundwater quality at the site boundary, and applicable water quality stan-dards would not be violated. KM Exh. 2 at 22. Table 4 (Case 3). The NRC used an infiltration.into the cell of roughly 1.2 inches (3 cm) per year..The NRC estimate was not the result of computer modeling but - was developed through a water balance calculation. Infiltration was determined by subtracting estimates of cvapotranspiration and surfacc runoff from annual precipitation. 'Ihe NRC estimate reflects subjective consideration of possible - changes in infiltration in the proposed cell as a function of time but does not rely quantitatively on properties of the laycts overlying the waste cell it is likely to be a high or worst case estimate. TY,700-04 (Yu); Yu Testimony on Y Contention 4(a), ff. Tr. 688, at 2 3; 'IY,767-68 (Benloff). lilinois' witness, Dr. Warner, had not performed any calculations of infil-j trution through the cell cover. He accepted that estimates calculated by Kerr. / McGee from the HELP model were real!stic based on the assumptions that were the input to the model. However, he challenged the assumption that the clay j cap would retain its integrity and initial low infiltration rate over tie life of the ccil as assumed by Kerr McGec. TY,647 (Warner). Observations elsewhere show that enginected caps like ' hat proposed by Kerr-McGee are effective in limiting lufiltration. 'IY,704 05 (Yu); see also Tr. 717 18 - l (Benloff);'IY 721 (Schubert). Dr. Warnet suggested that cracks might form in the chy cap over a sustained I period of time and that infiltration rates tiuough the cell might be much larger than estimated by Kerr McOcc Mechanisms for cracking in the cap might be fruczing and thawing, wetting and drying, and subsidence within the cell. He - could not state with certainty that the cover proposed for the West Cidcago site q wuld fail to perform as predicted. His general experience suggested to him that such failure could occur.1Y. 647 56 (Warner). Dr. Warner urged the Board to accept infdtration of 3.6 inches per year as a i worst case assessment of annualinfiltration through the cell. This is the regional y average infiltration arx1 assumes that the cell cover will fall entirely to restrict infiltration because of the possible failure mechanisms listed by Dr. Warner. State Exh. I at 1. Kerr McOce's assessment of the impacts of 5 inches of infittation exceeded - ' l Dr. Warner's recommendation for a worst case assessment of infiltration. Tr 648 U staff gave an irahratim rats er 3.s h:chas per year, while Dhnoia* expert. Dr. warner, used 3.6 hu:hos per. year. 1 ~! 173 t _m.

l m ' (Warner). Kctr McOce's analysis showed that tte prediction of small impacts ~to groundwater is not dependent on Oc effectiveness of the cell cover in limiting infiltration. KM Exh. 2 at 15. Thble 4 (Case 3); TV. 550 (Fcuer). Kerr McOcc has considered mechanisms;of possible degradation'of cell performance. The 2-foot clay layer at the base of the cover is protected from freezing and thawing and from wetung and drying by the overlying layers. The : protecdon of 8e clay layer minimizes the likelihood that cracks might develop as a result'of freezing and thawing or wetting and drying. Tr. 527 (Fetter); 'IT. 61213 (Orant). Dr. Warner asserted that cracking of the clay cap might result from consoll-i dation or compaction (subsidence) of underlying layers of the cell De assertion was expressed as a physical possibility not as the result of an analytical process, ' TY. 653 54. (Warner). Dr. Warner had not examined the analysis of consolida-tion presented in the Kerr McOcc Engineering Report.1Y. 669 (Warner). Kerr McGee considered the possibility of subsidence in its analysis of cell performance. Most subsidence would be expected in' die early years after . placement of the wastes. The final. cap at the Kerr.McOcc site will not }l be installed until several years.after waste placement conunences, to allow: subsidence to occur. After the initial compaction period, the likelihood of -cracking of the cap as a result of subsidence is small.1Y. 531 (Feucr);'IY,614 (Grant); TY. 722, 811 12 (Schubert). t The Board finds that the most likely infiltration rate for the Kerr McGec waste disposal cell falls in the interval of 0.1 to 1.2 laches per year as proposed i respeedvely by Kerr McOcc and Staff. Because the Staff deliberately chose. - [ values of parameters that would cause estimates of impacts to be overstated, the Board concludes that Kerr-McOce's estimate of infiltration rate is likely to be more realistic than the Staff's. In formulating their estimates, Kerr McOcc and Staff considered possible increases in permeability of the capping layers of the - 1 cell from roots and from subsidence. There is no genuine hazard of cap failure - from freezing and thawing or wetting and drying of a deeply buried clay layer. The estimates of infiltrathn provided by applicant and Staff already include q conservative assumptions as urged by lilinois. The Staff estimate of infiltration rate may have been unnecessarily conservative since it did not take account of -the low conductivity of the clay layer. The Board rejects Illinols' assertion that we should accept an infiltration rate of 3.6 inches per year because that rate is unnecessarily and unrealistically _a conservative. That rate requires the assumption that the cell cap will fait entirely to retard infiltration. Although we accept that cell cap performance could be degraded during its design life we find that Applicant and Staff have taken 1 uccount of that possibility and that no basis exists for concluding that the cap. will fall totally in its design function. Nevertheless, even under that assumption, t 174 h 4 i' l

_ - - ~ - - _ mm, m ~. _ m I Kerr McOce's sensitivity analyses show that Illinois' general use sumdards for l groundwater would not be exceeded. l. De lloard concludes that its concern for apparent disparity between Kerr-McOcc and Staff concerning infiltration rates has been resolved. De range of estimate shows a variance of a factor of 10 - not 100 - and the analyses by Kerr McGee show that its final conclusion of no impact on groundwater is not sensitive to the infiltration rate used in the model. A conclusion of small impact on groundwater therefore stands robustly against a broad range of l. possibic uncertainty in infiltratic rates into the cell,

b. Hydrologic Properties We sought testimony concerning the fo' lowing issue:

Both the SI'ES and the Hegineering Repon analyses are predicated on similar values for the hydraulic gradies and hydraulic conductivity of the E straturn groundweer ame, llowever, j neither report clearty describas the uncenalWy in these values. Moreover, neliher report .I ilg provides any insight as to the probable variations in the groundwater Row during the next several centuries,in response to periods of either wet or dry climatic episodes. l; Kerr McOcc analyzed the potential effects of climatic fluctuations over a period of cen'urics, as well as the potential effects of residual uncertainties or j variations in Ltc hydraulic properties of the site, he results show that the cell poses no.hreat to groundwater even if there were changes in climate or. significant alt aration of the observed or predicted aquifer properties. KM Exh. 2 at 22 28. ] De cover of the Kerr McOcc disposal cell is designed to minimize the l amount of rainwater that can infiltrate below the zone of evapotranspiration.' i Kerr McOcc ran the HELP model to estimate infiltration based upon simulated weather conditions representative of the site area over a 100-year period. Although the average annual percolation through the disposal cell is about j 0.1 inch, the maximum calculated infiltration through the cell was about 0.14 j inch. During wet years the percolation through the cell,ls governed by the - l low permeability barricts in the cell's cover. Climatic changes thus do not ' l ~ significantly change cell percolation because the capacity of the low-gwrmeability i barriers and the drainage layer in the cover will not bc exceeded even by extreme - ] climatic fluctuations. KM Exh. 2 at 24 24; 'n. 626 30 (Orant).. t De Kerr McGec simulations indicated that the predicted concentrations in the groundwater were sensitive to transmissivity, Smaller transmissivity. resulted in larger concentrations of constituents in.the aquifer. ~ Simulations. assuming an order of magnitude decrease in transmbstvity were performed. it is highly. improbable that actual transmissivity at the site would vary so -

)

'l 175 ) j 1 i \\ . l l g.

. _ _..~.. _. _.- _ - _. _ ~ i s much. Nonetheless, even with this change, the cell does not seriously threaten groundwater quality, KM Exh. 2 at 26. .s De hydraulic' gradient was not varied during the Kerr McOcc or NRC .[ simulations. Hydraulic gradient at the West Chicago site is governed largely by the geometry of the E stratum.' Thus, the hydraulic g' <dient will not vary significan0/ because the physical circumstances do not permit significant variations. Id. at 26 27. Dr. Warrer criticized the NRC model for groundwater flow because the NRC model did not allow for the variability in the thickness and hydraulic conductivity of the E stratum at the site. State Exh. I at 1. De NRC chose values for i - parameters in the model that would provide a bounding or worst case analysis of the site. Tr. 691,768-69,772 (Benloff). The Warnet criticism is inapplicable to i Kerr McOce's modeling because the KemMcOco model incorporated variability in transmissivity. KM Exh. 2 at 25-28. (7Yansmissivity is defined as the product of thickness and hydraulic conductivity. Schubert'Itstimony on Contention 4(a), ff. Tr. 688, at 3. f De Board fmds that infihration through the cell is not a sensitive function of climate because percolation through the cell is governed by the low permeability r barricts and the drainage layer in the cover. There is therefore reasonable assurance that the cell will not have an adverse impact on groundwater quality i because of possible climate change during its design life, c. Fluoride Concentration.s j We requested testimony on the following point: Staff view that there has been no decrease in Suoride concentrations'with time (SFES, p. 4 99 and figure 4.34) needs to be resolved with the Kerr McGee Engineering Report. Volume ' 'i 11 statement that Suoride concentrations are decreasing (p. 2.61). Chemical analyses of groundwater samples permit a characterization of the major lon chemistry of groundwater at the site and its change over time.' In general, a time-dependent decline is observed in the concentration of the major 1 chemical species. The decline arises from the contimious removal of constituents q by natural leaching processes. KM Exh. 2 at 28. As a result, these analyses sometimes provide a valuable indication of groundwater flow. Fluoride observed in the glacial aquifer is presumably an artifact of hydroflu. 3 oric acid used in the ore-refining process at the facility. The hydrofluoric acid in the discharged waste waters underwent a chemical reaction in the soil to produce I substances such as calcium fluoride and magnesium fluoride. Compared with - other constituents the fluoride compounds are relatively insoluble and thus are expected to teach from the soll more slowly. The decline in fluoride concen- ,\\ .i ,176 r s

..-..-m m tradon in groundwater should proceed more slowly than that observed with the ' ' other more soluble constituents.14. at 29. . Staff's interpretations as to the absence of a decline in fluoride concentrations are based on the averaging of certain data (wells B 1 through B 5) and the

l plotung of de averages. Staff's statement appears to be based on a visual analysis which concluded that the average of the data appear to be generally-j constant (with the exception of the first two data points). SFES at 4-99, Fig.4.34 ~

f' if a linear regression is performed on the average (including the first two data points). De concentration of fluoride in fact does decline, and the downward trend is statistically significant. KM Exh. 2 at 30. Kerr McOce's interpretations as to the decline in fluoride concentration were based on a well by well analysis of fluoride concentrations. Declines are observed in all wells with the exception of B 1. De results of the stadstical. analysis show that Oc downward trend is statistically significant in wells, B-2, 11-4, B 5, and B 7 and is statistically indeterminate for wells B 3 and B 6. Id. at-. 31,'lable 8. Illinois offered no testimony with regard to fluoride concentrations. Discrepcacica in the interpretations of Staff and Kerr.McOcc with regard to fluoride concentrations result from differences in the way the data were analyzed. _4 Benloff Testimony on Contention 4(a), Issue 3, ff. 'IY. 688, at 4; KM Exh. 2 at 29 30. Because of the formation of insoluble fluoride compounds in solls, fluoride concentrations in groundwater have no direct utility in characterizing grotmdwater flow. Thus whether the wells are showing constant 'or slowly - declining fluoride concentrations has no bearing on resolution of Contention 4(a), j d.; Groundwater Flow q' We requested testimony on the following issue: The sepon do not describe what groundwater Row is indicated by the observed decisase - with time in the sulfatels) chloride and Ruoride concentrations in the alacial drift strata, in order to use the observed data on solute concentration to estimate gmuNd. water flow, it is necessary to know the mass of the solute in the source and-j{ its rate of clease. Because this information is not known at the West Chicago ' site, it is not possible to use the observed decline in concentrations as a tool to estimate groundwater flow. Denloff Testimony on Contention 4(a), Issue 4; j ff. 'IY. 688, at 2 3; KM Exh. 2 at 31-32. .[ Illinois offered no testimony with regard to the.cstimation of groundwater flow from the observed decrease in solute concentrations. He Board finds that 4 there is no issue in controversy on this matter and that Staff's and Kerr McOce's j I 177 l

~l-T T ~ ~ ~ ' l a, --ww-. a - -~ m . -~ b answers resolve our uncertainty. The referenced solute concentrations have no bearing on estimation of groundwater flow or resolution of Contention 4(a), p -r

e. Rccharge of the Silurian Dolomite We requested testimony on the following issue:

%e SFES states that *about 38% of recharge water enters the Silurian" dolomite equifer (p. 4 91). In contrast, the Engineering Report states that "only a very small percentage of the water erdering the glacial aquifer fruen the surface nnds its way to the dolomite aquifer." (Vol.1. p. 5). We need to understand the reasons for these discrepant statements. ' nere is no quantitative discrepancy between the SFES and the Engineering j ' Report with regard to the estimate of water that recharges the glacial dolomite aquifer. Both the NRC and Kerr McOcc estimate the recharge in the general area to the Silurian dolomite to be about 1.33 inches per year. Moreover, both, ii the NRC and Kerr McOcc estimate the recharge to the glacial aquifer in the: 5i general area to be about 3.7 inches per year. (The NRC estimates the recharge i as 9 cm (3.5 inches) per year.) Thus, both NRC and Kctr McOcc agree that l about 36% of the recharge to the glacial aquifer in the general area maches the - j dolomlic aquifer. KM Exh. 2 at 32 33. j ne statement in the Engineering Report that "a very small percentage" of j the water entering the glacial aquifer fmds its way to the dolomite is a qualitative characterization of the data as to recharge that are presented in the Engineering Report. Id. at 33. l ne recharge to the dolomite in the general area does not reflect the recharge p to the dolomite from the surface of die West Chicago site. Groundwater in the - E stratum under the site is flowing predominantly horizontally toward discharge j into Kress Creek. Because the site is near Kress Creek, the horizontal component s of flow is enhanced, as in the vicinity of any discharge point. The tendency to horizontal flow is accentuated at the West Chicago disposal site by the clay, strata (B and D strata).vhich serve as a barrier to vertical flow. Thus, less than. >i 36% of the water entering the glacial aqu!rer from the surface of the disposal site enters the dolomite. Id. at 33 34; 'IY. 594 98,61819 (Grant. Fetter).... The Board's concern about recharge rates to the Silurian Dolomite has been j resolved by Kerr McOce's answer. Dere is no inconsistency between Kerr. McOcc and Staff technical position on recharge rate of the aquifer. Illinois does - i not contest the rate accepted by Kerr McOce. De Board finds that there will be no significant recharge of the Silurian Dolomite from waste water leaching-from the proposed waste cell. q l 178 ~' -l s '.i) 4

- f. Groundwater Usage We requested testimony concerning the following point: 'Ihe SES states that 60 wctis were identified within a 2 mile radius of the Kerr.McGee site (p. 4-91) but does not tell the reader how much water is being withdrawn nor is there any indication of the extent to which such withdrawal cont <ihutes to the movement of recharge surface waters down into the dolomite aquifer. Ibrther, there is no discussim of possible and/or probable increases in the withdrawal and the resulting effects on the groundwater kinematics. As a matter of Grst impression, we take this issue to be quite cmsequential for both Staff and Kerr McGee analyses (modelling). ( De SFES states that there are sixty four mils within a 3 kilometer radius of the Kerr McGee site. Some fifty two of these wcils draw water from the Silurian dolomite aquifer, seven withdraw water from the deeper Cambrian Ordovician aquifer, and four withdraw water from the Pleistocene sand and gravel aquifer. SFES at 4 91" ; KM Exh,2 at 35. De effects of these wells have been included in Kerr McGee's modeling by the matching of the predicted potentiometric surface with the observed potentiometric surface in the process of model calibration. KM Exh. 2 at 35 36; see also Schubert Wstimony on Contention 4(a), ff. R 688, at 6). De water in the E stratum at the disposal site is separated from the Silurian . j dolomite aquifer by two confining layers, the B stratum and the D stratum. He deeper Cambrian-Ordovician aquifer in West Chicago is further confined by the - overlying Maquoketa shale. De E stratum is thus hydrologically separated from both the Silurian and the Cambrian Ordovician aquifers KM Exh 2 at 36.- The isolation of the E stratum is demonstrated by the fact that the potentlo-metric surface of the E stratum is much higher than the potentiometric surface of the Silurian dolomite aquifer, Because the average head difference across the B stratum aquitard is greater than unity, the Kerr McGee experts testified that any additional pumping of the Silurian aquifer will have no impact upon downward movement of water from the E stratum. Thus, further pumping from new wells would have no impact on the results of groundwater modeling. Id. at 36-37: W. 600-04 (Fctter). Illinois' expert, Dr. Warner, testified that further pumping of the Silurian 3 might cause further downward leakage, lie agreed with Kerr McGee's experts, j however, that there would be a limit on the amount of downward leakage as a ~ result of hydraulic-gradient effects, 'Ilr. 656-59 (Warner). Here are only four wells in the glacial drift aquifer within 3 kilometers of the Kerr McGee site. All of these wcils are private wells and are further than 1200-- meters away fmm the Kctr McGee site. FES at 4 64; 'Ilr. 777 78 (Benloff). An - "The sFEs is inconsistent wuh regard to the total number or weas. 179 1 d'.

.~ .o 1 assessment of the wc!!s shows that none of these wells has an effect on or is 1 4 +1 affected by the Kert McOcc site, KM Exh,2 at 37-38, Appendix 6, Because of the limited ' yield of the glucial aquifer, the widespread s.d cxpected contamination of that aquifer from a multitude of sources in an urban area, and the available alternative sources of supply, it is highly improbable that l-the use of the glacial aquifer will grow l il is thus not reasonable to expect significant changes in pumping of the glacial-orift aquifer in the West Chicago area that would affect the modeling results, /d, at 38,88 Regardless of future groundwater use, we find that increased pumping of l' groundwater from the Silurian dolomite off site would have no sigrdlicant impact on the rate of infiltnition of Icachate from the waste cell because the E stratum is isolated from the Silurian Dolomite by intervening low permeability strata. t g,' Leachate in our November '20 Memorandum and Order. we requested testimony-from the parties which would clarify and explain the contmst between Kerr-McGec's and Staff's estimates of concentrations of cyanido and of the chemical - constituents in leachate We deal with leachate first, l In its Enginecting Report,' Kctr McGee estimate'd the concentrations' of constituents in leachate through laboratory measurements The Kerr McOcc. estimates were based on chemical extractions of waste material in a mildly acidic l solution The tests were done according to EPA toxicity specifications and were used to estimate the concentration of leachate that could be generated by cach - waste type (e,E., tailings, sludges, pond wastes), Acidic extraction would tend to overstate the concentration of constituents in leachate relative to that expected : in rainwater leachate from the actual waste cell, KM Exh,2 at 4it Tr. 632 33 -j (Stauter)! 'IY,78182 (Benloff), Kerr McOco also tested the effects of neutralization of the wastes and the-effects of the relative volumes of liquid and waste in characterizing the leachate. quality, KM Exh,2 at 8. Kerr McOcc considered the effects of waste placement during cell construc-tion on the expected teachate. Oulded by estimates of where the types of wastes 4 would be placed, Kerr McOcc calculated the teachate concentration that would be produced in various portions of the cell, Because the variation of Icachate. 3 l }l 43 Kerr.Meoec': Kaese, Dr. Fetter, gathered some information to the effect that seliance on gneundweier ror - w. .ep;', general will dechne in the area. Accordmg to Dr. Fetter's infornution, DuPage County is now cmstrucung a pipelme to carry water tram 14e Mchigan to the county. When the pipeline is finished, many t4 - canranines now using grwndwater may switch to surface water. '!his change ahmld serve to alleviate reliance on groundwater supply in the area and,if anything, reduce the possible impacts of the West Chicago disposal cell. KM Enh. 2 at 34. Ahhough West Chicago is not now planning to swiwh to surface water supply,it may have the opponunity to apply ror surface water supply in the ruture. Tr. 605 0 ctier). [ 180 a M I a f' 4 n .g

e._ . -. _.. ~.. _ _ _ _ quality across the cell proved not to te large, Kerr McOc4 assumed that a uni-l form quality leachale would te released from the cell, in its subsequent mod. cling, Kerr McOcc used a so-called " composite" leachate that was made up of l de largest concentrations calculated for any portion of die cell. %c composite l Icachate is a conservative estimate of leachate quality.1d. at 8 9. in order to bound its analysis, Kerr McOce also estimated a " maximum" leachate. %e maximum icachate is the highest concentration of a constituent that + was observed in the analysis of the various waste types (e.g., tallings, sludges, solls). De maximum leacluite assumes that all the wastes yield concentrations at the level of the most teachable waste component. %c maximum leachate i highly overestimates teachate constituents expected for the actual cell. Id. at 9. Kerr McOce recently conducted further analyses to estimate the concentration of the teachate that might be generated by the wastes. A large number of r samplet were collected from the various waste materials at the site. A master composite of the samples was prepared in rough proportion to k amount of wastes of each type (e.g., tailings, sludges, soils) on the site. De leachate was generated by stirring a mixture consisting of 20% solids and 80% water while maintaining the slutt/ pli between 8 and 9 with reagent grade calcium i hydroxide. he water used in the test had been drawn from die E stratum and represents the chemical properties of water that might percolate through de cover.~ ne recent tests showed lower leachate concentradons than were given in the Engineering Report. De values for leachate concentrations in k Engineering Report overstate significantly the concentradons of constituents that would be released from the cell and thus the impacts of the cell on groundwater.

14. at 10-111 TY. 632 38 (Grant, Stauter); D. 845 46 (Grant).

)' %c NRC estimated leachate quality by calculating the concentradon in leachate based on k concentration of a constituent in the waste. De calculation uses distribution coefficients drawn from the literature. De distribution coeffi-cients given in the literature vary by orders of magnitude for each constituent. nc NRC selected conservative values for each coefficient for the purpose of estimadng concentrations of consutuents in leachate. De technique served to - overstate the concentrations in leachate relative to those that would be generated } by actual wastes in the cell.' KM Exh. 2 at 42 43; 'IT. 784 87 (Benloff). De NRC concentrations for most consutuents in leachate aa about 10 to 100 times higher than the estimates made by Kerr McOcc. KM Iah. 2 at 43, hble 3. Illinois submitted no testimony with regard to the estimation of teachate con-centration. i Because of the comp!!cated chemistry associated with the dissolution process and the consequent difficulty in calculating leachate concentrations frota simple equations, the actual measured values are likely to be more reliable than the l values calculated by the NRC. Id. at 43; see 'IY 786-87 (Benloff). De NRC 6 estimates were intended to provide a bounding or worst case assessment of 181 f i k 't t i h

. _ _..... _. _ ~ _, m., leachate quality and not to predict leshate concentration accurately. TY. 800-02 ) (Benloff). We find that the NRC leachate values were unnecessarily conservative. S%ff's intent was to produce a bounding analysis; however, the bounds it adopted deviated so far from realistic possibility as to te misleading. Staff declined to i use Kerr McGee's leachate values given in the Engineering Report because ky might be unrealistically high by virtue of W weakly acidic extraction method ] used to obtain them. The Staff then performed its own analysis using distribution j coefficients selected from the literature which gave even higher results dian found by Kerr McGee. The general concept of performing constrvative analyses j when data sets contain substantial uncertainty may well te velid llowever, in this case the Staff pursued conservatism to the point of misleaCing die Board to i pursue unfounded concerns.** The best estimate of leachate quality is provided by Kerr-McGee's recent leachate test. The determination of leachate quality was performed under circumstances that approximate the actual leaching pecess in the cell. TY 638 (Grant, Stauter); sec *n. 789-90, 81416 (Benloff). The recent leachate test i i yields concentrations that in general are well below even the composite teachate defmed by Kert.McGee in its Engineering Report and used in the groundwater modeling. KM Exh. 2 at 1011,43, Thbic 2 3. The recent leachate tests support a conclusion that the small impacts on groundwater quality appearing in the Engineering Report may be overstated. Actual impacts are likely to te less than Kerr McGee has previously estimated. The Board finds that Kerr-McGee's estimates of leachate water quality were obtN6' by reasonable mediods and that the data are a reliable basis for assessing the uMts of the proposed waste cell on the groundwater of the West Chicago a

site, j

h. Cyanide As part of its waste characterization pocess. Kerr McOcc determined the concentrations of priority pollutants in the waste material at the West Chicago site. The concer.: rations of cyanide in the wastes were generally Miow tic detection limits. Flowever, a single sample from the pond 2 wWs had s'gported I cyanide concentration of 2.2 parts per million (ppm), W other sample fiom ( the pond 2 wastes had a concentration telow the detec.km limit. The Staff estimated the cyanide concentration in the pond 2 wastos by avernging the cyanido concentration in one sample of 23 Jepm and in the other at "hr eaarnple, for Wd. to reject de Kerr.Meone Mchste data as bang unmalistk*!V too high at Owr:.n'eucs e distdtstaan coefficient that does not opply to the West Chcago matenals and tWah peicee a @latsd yA.k far lead in the Mchste even higher than the Kerr Mcose ssponmental vahe <abes lasia 182 i t

~~^ ~ 1 m,_.__ 1 l the detection limit of I ppm. In its subsequent modeling, Staff further assumed that cyanide was present in all the wastes - not just the pond 2 wastes -- at k resulting average level of 1.6 ppm. SFES at 214. Tables 2.5, E.1. Based l on this assumption, the peak value of cyanide at the site boundary was found by the NRC to exceed the IEPA general use standard. SFES at E 15. De Staff conclusion was based on a single positive result that was applied to the projected groundwater contamination attributable to the entire waste cell. Cyanide was not used to process are at the West Chicago facility, and none of the processes would be expected to produce cyanide as a by product. KM Exh. 2 at 44 45. If significant quantities of cyanide are present in the wastes, cyanide should be seen in groundwater samples, but it was not. Samp!!ng for cyanide conducted by _Weston Oulf Coast Laboratories, Inc. ("Weston"), on November 27 and 28,1989, found no cyanide in the groundwater at the disposal site, De t analyses had a detection limit of 0.010 milligrams per liter (mg/L) KM Exh.1. De Weston data are consistent widi data collected by Illinois in 1986 which showed no cyanide above the detection limit of 0.001 mg/L level in groundwater samples. SFES at 4 97. De absence of cyanide in the groundwater at West Chicago demonstrates that cyanide is also not present in k waste materials at k site. KM Exh. 2 at 45, lilinois submitted no testimony on this issue and did not avail itself of the opportunity that we afforded it to conduct its own analyses for cyanide and advise of k results." De waste sample with a reported concentration of cyanide above the detec-tion limit probably represents a laboratory reporting error.14. at 44; but see 'n. 79198 (Benloff). De Board concludes that Staff calculations in the SFES showing a possible short term violation of Illinois water quality standards for cyanide were based on unreliable data and were unnecessarily conservative and l_ misleading. Cyanide would be expected to undergo hydrolytic decompositio.1 or blodegradation in the environmentt however, the NkC Staff did not consider i these effects in its modeling. Tr. 794 (Benloff). Iltsed on the preponderance of cyanide analyses, the Board finds that cyanide i is not present above chemical detection limits in the waste material at West Chicago. If a waste cell were constructed as proposed, there would be no significant likelihood that Illinois water quality standards for cyanide would be I exceeded even temporarily as asserted in the SFES. Conclusion with Regard to Contention 4(a) We find that Kerr McOce's analyses have an appropriate degree of conser-l vatism that permits us to make real!stic predictions of the impact that its pro-

• su me ss.see.

I83 'f a 4 1

-... _ _,. _ _. _... _. - ~..., - - - - _ - posed disposal cell will have on groundwater quality which, to the extent they err, overstate that impxt. In contrast. Staff's analyses were so conscrvative as to te misleading, overstating the impact to the extent of calling the feasibility of Kerr McOce's proposal i..iu question. We conclude that it is reasonable to expect that Kerr hicoec's proposed cell will have only a negligible impact on groundwater quality, and that conseqtimtly no justification exists for incurring the expense of disposing of these mill tdlings at another site. Kerr hicOce's proposal satisfies the requirements of 10 C.F.R. Part 40, Appendix A Criterion 1; we resolve Contention 4(a) in Kerr hicOce's favor. Findings of Fact on Contention 3(g)(2) Contention 3(g)(2) states: he evaluation of the thernative sites was not done ai a standard evaluadve ba:Is and was otherwise Arnproper in that.... (2) ne modified solute transport analysis of the Proposed Action and Ahernadve D was not tenAma:LeJ. In our November 14 hiemorandum and Order, we noted that certain comments by the ll!!nois Department of Nuclear Safety on the SFES provide further explanation of the thrust of this contention: ne computer enodel used for the solute transport analysis as originally written for modeling naturated ame transport. SITS at 516.... %e NRC S'aff assumed that the West Chicago site and the Alternadve D site would have en unsaturated ume directly beneath the disposal cell. %e NRC Staff modified the canputer program for unsaturated rene modeling. Id. No discussian of tenchmarking of this program was provided in the SIIS. IDNS sutunits that the modified car. ster model could not accurately model the Prgoned Action and Ahernadve D sites.as We found that neither Staff's nor Kerr hicOce's affiants had validated the challeriged equation by derivation from first principles or cited obsenational data that empirically confirm the equation, hioreover, we had some difficulty in reconciling Dr. Fetter's statement in his affidavit that such an equation "is typ-Ically used by professionals" with his statement that, for unsaturated flow,"the flow equations are nonlinear and not subject to easy solutions." (C.W. Fetter, Jr., Applied Ilydrogeology, hierrill Pub. Co.,1980, at 89) Therefore, we found that a dispute of material fact existed and denied Kerr hiedec's motion. '8 tthanis' Reply in Kerr Mcoes's and Staft's Raspanse to tu Motim to An.end Contentims. Attach. A. at 5-6 Duns 15.1959). l 184 J

Kerr McOcc has submitted a derivation of the challenged equation. De equation is shown to be readily derived from first principles. KM Exh. 2 at 39 Appendix 7. Staff's modification of the computer code did not require any modification of die lasic AT123D code. De modification introduced time dependence into the source term to reflect the fact Diat the dissolved constituents from the ce!! will have a delayed impact on groundwater. De effect of the modification is to permit estimation. of the time at which the maximum concentration of a constituent will be observed in the groundwater. The calculation does not estimate the maximum concentration level that is predicted. The modification has no bearing on predicted groundwater quality or predicted performance of the waste cel! during its design life KM Exh. 2 at 40. Illinois submitted no admissible testimony in support of its position on Contcution 3(g)(2). Although lilinois raised the contention, Illinois made no effon to show that tie modification of the AT123D code was inappropriate, in light of Kerr McGee's derivation of the equation from first principles and Staff's explanation, we find that the equation could accurately model the groundwater flow under the West Chicago alte and alternative site D. Staff's use of a solute transport equation adds an apparent element of realism to its modelling by taking account of the effects of the unsatulated r.one underlying these sites. Contention 3(g)(2) is resolved in Kerr McGee's favor, Kerr.McGee's Motion for Summary Disposition of the Remaining Contentions On December 22, Kerr McOce moved for summary disposition of the re. I maining contentions. These contentions were initially advanced in 1983 prior to the publication of Kerr McOce's Engineering Report (April 1986) and the SFES (April 1989). Kerr.McOcc klieves that the matters raised by these con-tentions have been adequately addressed in the above documents, reflect a mis-understanding taf Kerr-McGee's proposal, or are misguided. Illinois and Staff-I responded on January 19,1990. On January 29, Kerr.McOcc moved for leave to file a reply to Illinois, attaching its reply to its motion. Dat motion is granted. Contention 2(a)(1) nls contention provides: Whh sespect to levels of inorganic containments Isici in the onsite wastes, the applicant has conceded (Stabilization Plan 3A3) that because the sludge and tailings piles are nonhomogeneous, everaging the resuhs of the samples does not yield tiumhers which are necessailly reprssentatin of the snass of the wastes. 'Ihe applicant did.however, use averages 185

in calculating the concentrations of inorganic antaminants released from the disposal ceR. In order to prwide amservative arul reliable estimates of dispersion and dilution effects, the awlicant should base its calculation <m the hat spots in the wastes. Kerr McGee maintains that this contention is misdirected for several rea-sons." First, Kerr McGee asserts that it has conducted exhaustive random sam-pling in order to accurately characterize the wastes at the West Chicago site.88 Illinois disputes that the sampling was either " exhaustive" or " random." Illinois points out that, according to Kerr McOce, the sarnples were '.creened" prior to analysis and that it is not shown that this " screening" was proper.88 Illinois also notes that while Kerr McOce conducted 906 EP Toxicity test, only 612 of those samples were used in the analysis of the wastes, and questions why not all tests were used. Kerr McOce counters that it employed a " statistically based random sampling protocol prescribed by the EPA for characterizing sites con-talning hazardous waste," and notes that all samples from areas where disposal is known to have taken place wefe given EP Dxicity tests.sa Illinois furnishes no citations to the Engineering Report in support of its claims but does discuss them in 114 and 5 of the Enno affidavit Mr. Enno states that "Kerr McOcc has not demonstrated that it has not screened out the grossly contaminated samples thus leaving the less contaminated samples for the more detailed analysis.as8 Ilowever, a perusal of Vill Engineering Report 814 reveals that Kerr McOce has indicated how the screening was conducted and what criteria were employed to determine whether further analysis was requile4, These criteria did not screen out the grossly contaminattJ samples. Mr. Enno also states that Kerr McOce has reported the results of only 612 of 906 EP %xicity tests. It appears that the 612 EP Toxicity test results referred to by Mr. Enno were performed on samples taken from locations where disposal is known to have taken place, not those that were tested as a result of the screening procedure, which Mr. Enno apparently has overlooked " Mr. Enno alleges,that a suff surpans Karwom su surs Rupann ei1 80 Ken %oss's Mutam fa summary Dispannie at 21 The procedures for the samphng and channeal enslysis of the wane are repaned in Volums Vill of the liegmesnns Repet Vm Eng Rep. at 8-s to 812. s-14 to 816. s ll to 8 21; it.1.sh.1.1he samphng program wm performed to conform with epa pacodures far the samphng of e estes. It was designed to ensure that a suf6cient number of samples muro tellected so as to peduce a statasucally secursis charsetsnzanon of the meieruls. To that end, soms 330 tersholes was, draiad at the sua. The peitern of barehale placement and the esleenan of semples fiern sech barehole wise based an sutastical testimques that as, daigned to pavide a representauve sampimg. Chemical evaarung tests were then perfarmed on over 1800 samples. includmg same 906 EP Toxicity 1.sech Tesu. 2M infrared analyses, and numerous pr' *ty rs analyses. Viu 1:mg Rep. 8 2. 84 to 8 Is. Illmots' Rupann at s.11hnois selim en the stridevit of1hanas A. Iano, an environmental pietecnon speciahst at the tumots 1.nvironmental praestiun Agency, set out in Eihibit C to tu repmse. 83 Kerr Mcore's Reply at 1 83 1thnois also rsbes m this argument in questimms Kerr Mcoes's un of bah a " campsite" leechnie end o

• maximum"leachsts to asumsu gnamdwater impseu. Ilkncas' Rupmse et 4.

1 H VI!! Engmocring Reput at 814; M. Fah. l. 21,2124. Tables 2 6 through 2.13. s-l. Appedia A. I86

i l l Kert McGee has not taken sufficient samples from the tallings and sludge piles but offers no rationale for this position. Such an unsupported allegation provides an inadequate basis on which to question Kerr McOce's samp!!ng procedures," We conclude that Illinois has not demonstrated that a genuine issue of material fact exists on these points and that Kerr McGec is entitled to a favorable ruling j on this contention,8' i s ) Contention 2(a)(ll) Dis contention provides he applicant's dispersion nuxlel assumes uniform dispersite of leadiate from the disposal cell and does twa take into accours the possibility of channelised flow. Given the historical experience canarning diannelised Row at the Sheffield Illinois low lew! radioactive wane daspetal site, and given the inhomogeneous dierscaer of the West Chicago Kert McGee site eubsurface, the possibility and tmpact of diannellred Row must be eddressed. Kerr McOcc relles on the affidavit of Charles W. Fetter, Jr., Concerning i Contention 2(a)(ll)," for the proposition that the occurrence of channelized flow at the Sheffield cisposal site has no bearing on the situation at West Chicago, Dr, Fetter states that groundwater at Sheffield is found in a pebbly sand unit that is found in a channel in material of much lower hydraulle conductivity, The pebbly sand channel principally dermes groundwater drainage, Dr, Fetter points out that the geology at the West Chingo site is entirely different, There the water tab!c is found in a sand and-gravel layer, termed the E stratum, which j exists under the entire disposal site, so that no subdrain elTects like those seen at Sheffield are observed. Channelized flow simply does not exist at the West. Chicago site in the aquifer that would be first and most significantly affected by. tie disposal cell, Illinois does not dispute Dr. Fetter's statements, Rather, it points to similari. ties between the E stratum and the pebbly sand channel at Sheffield,88 Assuming that these similarities exist, they do not provide reason to believe that channel-i ized flow exists at the West Chicago site, Kerr McOce's motion is granted. l 88 Mareover, w an shaded at the generalisd of foundation for Mr. Iann's alicastions. one signing en afridsvit ehauld take ears to ensus that there is amne basis in feet far his eDegations. liero that beau was Waauy lading. 8'lumois also orgues that, because of channelued now, Km Meose's clairn that maains or everaging of 94 westes will ehmmate siae hazards must be disregarded. Ilowver,Ilknois has isDed to povide reason to behevo l-that channelised now stists at on west Oiicago alta see our ruima mi Comentian 2(sXin, Mrs. Mr. I'ime also susde Kort.McGee's modelhng of seleases from the cen, ahhaugh Illirms make no such l argument in lis respansa We Imd that Mr. Enno's arguments are,in any event, outside the seape of this contention I whid snacks the input into die model, not de modal itssif, l 8Eudhit 2 to Km.Mcose's Mahan. 88 l 3ee Ethitut C to Chras' Responsa, r.nna Affidavit, t 11 i 187 i 4 I-l. ? l

t Contention 2(d) 'ntis contention provides: The applicant's proposed groundnter monitoring system is insufficient to detect the Lind and qua.itity of contaminant migration. Among tuher things, the stabilitation plan does sat describe the meduids for sample collection, preservation, analysis, and custody; the I plan unhelpfully states miy that

• standard potedures will te follot<ed for sampling and analysis? Plan,7 3. Similarly, the plan does not descrite how grourulwater data obtained from the samples will be statistically analyzed; withrait proper statistical analysis, significant changes in groundnter quality can go undetected. (The plan states mly that *Resuhs will te esamined for trends by a professional hydrologist? Id) Nor does the plan specifically indicate the dephs, locations, and screen lengths of monitoring wells; withota this information des applicara canrud show that screen settings are related to the protehle path contaminants would take as they migrated offsite. IJor is the nunder of wclls censin.

Ibrthermore, the prgosed system does ext include analysis for twganic waste constituents or t indicators of orgat.le waste constituents. Sd analysis must tw undertaken tecause residuals of organic solvents used in the Industrial pocess may be pescra in leachate. 'The applicant has nui shown that it will install a background goundwater mimitoring system capable d establishing the quality of groundwater which has not already be n cositaminated by leachste frorn die site. Groundwater contamination maps in the IES indica e dint po!!ution originating at the Kers McGee site spreads offsite in all directions, Samples fim inprgerly located tec& ground mils may yield water that has teen contaminated by site pollutants radier than water that is representative of the general area. '!he applicant does aca popose to monitor groundwater for an adequate length of time following closure. Regulations under the Resource Conservation and Recovery Act,42 U.S.C. Il6901 er seg. (" RCRA"), require, in this case, post closure monitoring for around 60 years, llowever, given the fact that the poposed dispanal site is located shove, and has already seriously degraded, the major groundwater source in the area, RCRA's monitoring requirements should te treated as a minimum mly. 'This contention principally attacks the adequacy of Kerr McOce's groundwa-ter rnonitoring plan which Kerr McOcc refutes with references to its Engineering Report, the SFES, and Exhibit 3 to its motion." In its response, Illinois mounts an attack on specific aspects of the monitoring plan." Specifically, Illinois raises the following points,

1. Ken-Moose's Mailan for sununary Duposition at 9.la "Ilhnois' Raspanse at 7 8 and Lahibit C at 7.la Kerr-Meoes arunrs these pouns in tis Reply to !!hnou' Response at 4-5.

188

First, Illinois offers the opinion of Mr. Enno that Kerr.McOce's rnonitoring program is inadequate for a sanitary landfill, let alone a hazardous waste site. We judge this conclusion in light of the specific shortcomings that Illinois alleges. Second, Kerr.McGee proposes to use monitoring wells that are of question-able integrity as well as upgradient monitoring wells diat will improperly sample groundwater which was previously contaminated by site operations, llowever, Illinois' reference in support of the asserdon that the wells are of quesdonable integrity states that one well (B 5) was found to be constricted. Kerr McOce points out that this well is in the center of the disposal site and consequently will not le used for monitoring?$ With regard to the sampling of contaminated upgradient groundwater, Kerr McOcc correctly points out that Criterion $D re-quires the earliest praedcable warning that die impoundment is leaking. As a consequence, it is ne%sary to compare samples taken from die groundwater immediately upgradient from the cell with those taken immediately downgradi. ent. Comparing the latter samples widi samples of uncontaminated groundwater could be misleading in that it could indicate cell leakage when none was occur. ring. Third, the plan ignores contamination in the A and C strata as well as die fact that organic solvents were used in die manufacturing process. Kerr. McGee correctly points out that, under Criteria 7A and $D, the proper focus of monitoring is the E stratum because it directly underlies the disposal cell and would be the first stratum affected by leakage, Moreover, Illinois' allegadon that organic chemicals were used in the process is unsupported and counter to the information given in Vill Engineering Report at 8 21, and the SFES at 2 14 to 217, diat no significant quantities of organic pollutants are present in the wastes. Kert.McGec maintains that Illinois conceded as much when it withdrew Contention 2(b) related to organic chemicals. Finally, ll!!nois asserts that the 10 year monitoring period proposed by Kerr-McOcc is too short. The contendon cites a 60 year monitoring period allegedly required under die Resource Conservation and Recovery Act, and Mr. Enno offers his opinion that the 10-year period proposed is too short, but provides no reasons. Kerr McGee points out tilat there are no wastes that are regulated under RCRA which will be placed in the cell. Staff concurs, it points out that it has found the 10-year period odequate, and that, until Kerr McGee's !! cense is terminated, Kerr.McOcc will be responsible for any monitoring.a Illinois has provided no basis to conclude that there are genuine disputes of material fact with respect to this contention: Kerr-McGec is entitled to a decision in its favor on it. 'I !! Engineerms Repan at 2 50, Fist 2 ID and 2-73. "staft's Resporue at 54 189

~ -..-.- -,-.,-.:.,- -. L ~ ^ i Contention 2(h) This contention provides: I t

• !he decommissknins proposal does not indade specif c had adequate measures for eactuding human beings frorn Ow site ovet de kmg term. Given on 14 billion year half life of thorium.

Ow NRC's teknowledgeme t that perpetual care of the slie will be necessary, and de she's groalmity so sosidences, commercial establishments, armi public schooh, discussion of sudi measures is crucial to evaluating de feasihihty of unsite disposal. Kerr McGee maintains that Illinois' contention is unfounded, pointing out that the thickness of the cell cover, including die intrusion barrier, will make it unlikely that casual digging would proceed far enough to penetrate de wastes. Kerr McOce also points out that we have already addressed the allegations of this contention." tilinois relics on the affidavit of Dr. Gerald R. Thiers for the proposition that the cell will invite digging by humans which when combined with rain storms will result in a breach of the disposal cell." In LBP 89-35, in ruling on Conte ions 4(e) and 4(g), we found that " die site would (not] consutute an attractive t. dance, so as to make intrusion probable," and that there is no credible basis for the proposition that the cell will not adequately resist... human intrusion."" We also found that the kind of damage postulated by Dr. Thiers could be repaired without violating the prohibidon on acdve maintenance." tilifuls does not directly confront these fmdings, but i repeats its previous arguments with one variation. Illinois now postulates diat human intrusion when followed by the probable maximum precipitation (PMP) event will result in breach of die cell. However, in LBP-89 35 w ruled that-it was not necessary to have considered the PMP event and have adhered to - that ruling in denying Illinois' modon for reconsideration in our unpublished Memorandum and Order of today's date. Moreover, Illinois has offered no reason to question our previous conclusion that damage caused by such events can be repaired without active maintenance Kerr McGee's motion is granted. Contention 2(1) This contention provides: "Kar Meoes's Motivi for sununary thspasition at 11 12. staff concun. Su staff's Response at 6. "3n 11hnam' Response et 910 and Eth. A. "3a tEP 89 3s 30 NRC at 689-90.'70102c e6 14 at689,690. e 190 4 1 i

. _..... ~. _ j i N applicant has not demonstrated that it will adequately control radianedve d.ist releases from hath mobile arut statimary sources during stabilizatim acsivities, or that the appticant's dust control measures will seieve NRC's AIARA requiremun. Kerr McOcc refers to volume IX of the Engineering Report which sets forth the dust control program that will be cmp loyed durmg stabilization acdvitics," and maintains diat the program is more than adequate to deal with dust releases during the stabilization period Kert McGee also points out that it has gained experience in controlling dust emission during the dernolition activitics at the West Chicago site, and provides an explanation of the control incasures." Illinc.s asserts that the assurances contained in the Engineering Report are so vagte as to be meaningless, Giat there is no mention of complying with state 01 acity limits, and no indication of what criteria will govern the cessation of opentions in windy conditions. Thus lilinois argues that there is no clear demons ration that Kctr McOcc will adequately control dust emissions during stabillrahm activities." in its reply, Kerr McOcc notes that it will comply with the Comn'ission's ALARA requirements and any applicable Illinois regulations. Staff notes that it will inspect to ensure compliance with Part 20 " Illinois ti correct that the statements in the Engineering Report are vague, llowever, this does not provide a reason to deny the motion for summary dispo-k sition. Kctr McOcc points out that it is committed to meeting the requirements of Part 20 and any applicable Illinois regulation and that it has had considerable experience in dust suppression at the West Chicago site. Staff represents that it will ensure that the requirements of Part 20 are met. Under these circumstances, we do not believe that more detail is required, llowever, we condition our grant of summary disposition of this contention in Kerr McGec's favor on the imple-mentation of the mitigative measures specified in 15.9.4.1 of the SFES. Contention 2(m) 'Ihis contention provides: h applicant has not demonstrated that radiological sit hazards vil be adequately monitored aher closure. Type and model of instrumentatim, location of monitoring points, and frequency of reading or nample cotlection are not discussed. Ilecause of the demographic setting of the prcposed site, adequate post closure radiological air mmitoring for an l a;propriate time period must be carried out. I l t I

1. ses lX Isg Rep. at 9 s. 9-18. 9-23 to 9 25.

I "see Kar htcoce's blouan tar sununary Dupositia at 1213. "ses nlutou' Response at 11 12. . #sse Kerr.htcoce's Reply at 67; starr's Respaue ai 67. 191 l l 1 l J l l l

s. In its notion, Kerr McOce states that the applicabla regulations establish a design sta idard, noting that it is required to design a cover that will limit radon flux to 20 pCi/m s.10 C.F.R. Part 40, Appendix A Criterion 6 (1989); sec 40 2 C.F.R. Il192.32(b)(1),192.41 (1989). Kerr McGee expects thnt the flux from the cell will le more than 50 times iclow the regulatory limit. Xfs Eng. Rep. at 12-4; ser also SFES at 5 57. Kerr McGee also points out that, although Criterion i 6 explicitly does not require post-closure monitoring, it noretheless plans to conduct post closure radiological alt monitoring." !!!!nois does not contest any of Kerr McGee's assertions, but instead points to 40 C.F.R. Part 61, Subpart T, *Hational Emission Standards for Radon Emissions l from the Disposal of Uranium Mill Tallings," which was published on December 15,1989. Illinois points out that this subpart requires post closure testing for radon emissions. Kerr McGee counters that Subpart T does not apply to thorium mill I jlings, and hence does not apply to the West Chicagt site.S Kerr-McGee's moti n for summary disposition of this contention is granted. Con mtion 2(o) ] This contention providesi ne applicant has not demonstroicd that the dispor,a! onsite of i1,000 cubic feet of rare earth 1 counpounds wiu not harm the enviranrnent. De applicant snust address the toxicity and md.ility of these ciunpounds as well as their potential effed on the clay liner, j In its motion, Kerr McGee points out that it possesses some 1825 drums of rarc-earth compounds resulting from facility operations which, if they cannot be otherwise disposed of, will be placed in the disposal cell, Tic total vclume of i the rare earth compounds is less than 1% of the total volume of wastes that are to be disp ised of in the cell. The rarc earth compounds have a strong tendency to becomo sorbed onto soll particles, so that the releases of rare-car'h compounds from t e cell will be negligible. Moreover, the rare earth compounds have an except.onally low order of toxicity, Kerr.McGee relies on the affidavits of John C. Sta ater and Edwin T, Still. Staff supports Kerr McOce's factual assertions, relying on the affidavit of Dr. Paul A. Denloff. Illinois has not controverte4 these a tscrtions." Kerr McGee's motion for summary disposition is granted. 73Kerr Meoss's totim ror sununsry thspasinan at 1s is. stafr egnes whh Kerr Meoest su stafr's Respanse at 7, s U nhnois' Response at 121s; Kerr-McGes's Reply at 7. Msu Kerr-Mcose's M<aiun rar sununary D.sposinon st Is 16; statr's Response at 7 8; Dhnois' Respunne at 14. 192 1 c \\ 1 l l l 1 l

s. ) i Contention 2(g) j This contention provides: Based on the calculatlans in the IT.S (Table $.5), the applicant has not shown that during stalilisation activities it will meet applicable radiological exposure and emission standards, I because urdustifiable assumpties have been made which effectively minimlae the calculated dose. Specifically: (i) %e IT.S answnes that the individual at the neares' residence will spend only 10 perwn of his time cuidoors, llowever, since the applicant's eenh movir.g activities are planned for the warm months, it is unlikely that individuals, especially children, will spend 10 perant f of their time outdoors. Underestimation of outdoor time results in underestimation of dose received. (ii) De F1:S assumes that redan and thovun will be uniformly released over eight weeks of einh<noving operstkms. To the contrary, releases will most likely occur as puffs of i high concentrations when crusted waste materials are breached. %e assumption of uniform release serves to minimire the calculati.v of dose received 1 'Ihe contention states tbn the Staff assessed the radiological dose to the ] maximally exposed individual on the basis that the person would spend only J 10% of his time outdoors. Kerr McGec relics on the Affidavit of Douglas B Chambers to demonstrate that the dose was calculated on the assumption that l the maximally exposed individual is outdoors 100% of the time." Kerr McOcc also relics on the Charnbers Affidavit for the proposition that it is the cumulative exposure, rather than the peak exposure, that is relevam l for purposes of assessing radiological impacts of radon and thoron, as well as for the factual assertion that carth moving will occur more or less continuously during the stabilization period so that uniform emissions of radon and thoron may accurately reflect the nature of releases from the site. Staff has furnished ^ the affidavit of YuChien Yuan who performed the calculations and defends their conservatism." In its response, Illinois steps outside of the allegations of the contention and alleges that the dose to the maximally exposed individual from waste handling activitics set out in Table 5.11 of the SFES is an annual mther than a committed dose." *Ihis allegation overlooks the fact that the SFES states that, "[u]nless otherwisc stated, the term ' dose' in this report represents the committed 50 year l I cffective dose equivalent."" SFES,15.9 at 5-43. Kerr McOcc is entitled to a favorable ruling on this contention. r "Kest Meose's Mosie fa summary Duposition et 1718. and 1:ah. 7. staff concurs and has submitted the v effidavit of YuOuen Yuan who performed the calculations. See staft's Response at 9. "Karr Mcose's Made for summary Duposition et ;s.19; siaft's Response at 9. "lumou' Response at 1416. "Kerr.M4es's Reply at s. 193 ,I

1 1i f

) ...a.a._._.~-..~~-------- a i Contention 2(r) nis contention provides: The applicant did nos conduct any tests utillt. ins representative taltings solutions and ) representative clay materials to determine whether significant deterioratkui of permeability 1 I to stabitity propenies will occur in the proposed clay liner. Indeed the appbcent has not pt decided what type of ctsy to use at the site, thus making sudi tests impossible. Kerr.McGee asserts that Illinols' contendon is completely misguided, point. Ing out that the disposal cell design does not rely on the clay liner for any i long. term purpose. Moreover, Kerr.McOcc points out that it has in fact con-ducted a test to determine the effect of continued exposure of the clay to teachate derived from tie waste materials. The test resuhs confirm that no significant deterioration of the permeability or stability of the chy liner will occur." /d., 115 9. in its response, Illinois submits "that Kerr.McOcc has failed to climinate any real doubt as to wicther exposure to the teachate from the wastes will result in the deterioration of the clay liner."" Illinois has failed to raise an issue for hearing. We are satisfied that summary disposition of this contention in Kerr. McGee's favor is required. CONCLUSIONS OF LAW Contentions 2(a)(1), 2(a)(ii), 2(d), 2(h), 2(1) 2(m), 2(o), 2(q), 2(r), 2(w), 3(g)(2),4(.t), and 7 are resolved in Kerr.McGee's favor in this initial Decision. Dus, subject to the conditions set forth below, all contentions admitted in dils proceeding have now been resolved in Kerr McOce's favor. On the basis of our findings and rulings contained in this Inlllal Decision and in LBP 89 35, we conclude that Kerr McGec's proposed disposal cell satisfies the requirements of 10 C.F.R. Part 40, Appendix A, by wide margins and that there is a high-degree of assurance that no significant contamination will occur as a result of the disposal of the West Chicago mill tallings in it. ORDER Pursuant to 10 C.F.R. 62.764(b), Staff is directed to issue the license amendment that Kerr McOcc seeks, subject to the following conditions: "Kerr McOsn's Motion far summary Doponnian at 19 20 and Exh. s. siaff emcum 3<< statr's Response at 10. "Inuus' Response at 1617. 194 l i 1. ~-

- _... -.. -.. ~. 1. During stabilitation activitics, Ken McOcc is to implement the mitiga-tive measures against radioactive dust specified in 15.9.4.1 of the SFES; and

2. Kerr McGee must institute a detection monitoring system pursuant to Criterion 7A of Appendix A to 10 C.FJ. Dvt 40 when the tailings are placed in de disposal area.

Pursuant to 10 C.F.R. Gl2.762(a) and 2.785(h), any party may take an appeal of this initial Decision by filing a notice of appeal with the Atomic Safety and Licensing Appeal Board within 10 days of service of this initial Decision. Pursuant to 10 C.F.R. 6 2.764, this initial Decision shall be effective immediately, and, pursuant to 10 C.F.R. 62.760(a), shall constitute the final action of the Nuclear Regulatory Commission 45 days after its date unless appealed. It is so ORDERED. Tile ATOMIC SAFETY AND LICENSING BOARD Dr. Jerry R. K'ine ADMINISTRATIVE JUD3B Dr. James 11, Carpenter ADMINIS*IRATIVE JUDOE John 11 Frye, III, Chairman ADMINISTRATIVE JUDGE tiethesda, Maryland 1 Felruary 13,1990 195 1 l 1}}