ML20107G772

Nuclear Regulatory Commission Issuances for February 1996. Pages 13-49

ML20107G772
Person / Time
Issue date:	04/30/1996
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V43-N02, NUREG-750, NUREG-750-V43-N2, NUDOCS 9604230336
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i i NUREG-0750 Vol. 43, No. 2 Pages 13-49 1 i l NUCLEAR REGULATORY COMMISSION ISSUANCES i February 1996 1 1 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards 4 i (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM). I ] The summaries and headnotes preceding the opinions reported herein j are not to be deemed a part of those opinions or have any independent legal significance. 4 i i U S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844) 6

4 COMMISSIONERS ~ Shirley A. Jackson, Chairman Kenneth C. Ro9ers Greta J. Dicus Q l 1 i j B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and ucensing Board Panel { l 3 i e

1 CONTENTS Issuances of the Nuclear Regulatory Commission KERR McGEE CIIEMICAL CORPORATION j (West Chicago Rare Earths heility) Docket 40-2061-ML ORDER, CL!-96 2, Rbruary 21,1996........................... 13 l SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore. Oklahoma Site) Docket 40-8027-EA (Decontamination and Decommissioning Rnding) MEMORANDUM AND ORDER, CLI-96-3, Rbruary 27,1996...... 16 Issuance of the Atomic Safety and Licensing Board NORTIIEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 1) Docket 50-245-OLA (ASLBP No. 96-711-01-OLA) MEMORANDUM AND ORDER, LBP-96-1, Ibbruary 7,1996....... 19 Issuance of Director's Decision YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station) Docket 50-029 (License No. DPR 3) DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 DD-96-1, Itbruary 22,1996................................. 29 lii

4 I ) i 1 1 1 l 1 l j Commission Issuances i. i i f 4 i I i e l l I L.

Cite as 43 NRC 13 (1996) CLI-96-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Shirley A. Jackson, Chairman Kenneth C. Rogers Greta J. Dicus in the Matter of Docket No. 40-2061-ML KERR-McGEE CHEMICAL CORPORATION (West Chicago Rare Earths Facility) February 21,1996 he Commission considers a request by the Licensee to terminate this pro-ceeding as moot and to vacate the proceeding's underlying decisions. Because this proceeding solely concerns the Licensee's request for onsite disposal of mill tailings, and all parties concur that the Licensee no longer seeks onsite disposal, the Commission terminates the proceeding as moot. He Commission chooses as a policy matter to vacate and thereby eliminate as precedent all three underlying decisions in this proceeding. RULES OF PRACTICE: VACATUR He Commission is not bound byjudicial practice and need not followjudicial standards of meatur. ORDER Ris proceeding came before the Commission in March 1991, when Kerr-McGee filed a petition for review of Atomic Safety and Licensing Appeal Board decision ALAB-944,33 NRC 81 (1991). He proceeding concerns Kerr-McGee's application for NRC authorization to dispose of mill tailings by onsite 13

... - - -. =__ l l a j burial at its West Chicago Rare Earths facility. In ALAB-944, the Appeal Board reversed in part and vacated in part an Atomic Safety and Licensing Board decision that had approved onsite disposal. See LBP-89-35,30 NRC 677 l (1989). De period within which the Commission may act on Kerr-McGee's petition for review has been held in abeyance since July 3,1991, at the joint request of Kerr McGee, the State of Illinois (the State), and the City of West Chicago (the City), to allow for a negotiated settlement. On December 9,1993, Kerr-McGee moved to terminate this proceeding as moot, and to vacate the proceeding's underlying decisions: ALAB-944, and the earlier decisions of the Atomic Safety and Licensing Board, LBP-904,31 NRC 150 (1990), and LBP-89-35, 30 NRC 677 (1989). Kerr-McGee indicated that it had abandoned its original plan to dispose of mill tailings on site in West r Chicago and, to that effect, had contracted with Envirocare of Utah, Inc., to transfer the wastes to Utah. Kerr-McGee claimed that its commitment to pursue offsite disposal of the wastes rendered this proceeding moot. De State and the City responded that although they did not oppos,e termina-tion of the proceeding, pacatur of the underlying decisions was inappropriate. In particular, the State and the City questioned whether the proceeding indeed had become moot. Both parties expressed various doubts about Kerr McGee's comminnent to removing the wastes from the West Chicago site, citing such factors as the executory and conditional nature of Kerr-McGee's contract with Envirocare, and Kerr-McGee's continued related litigation in other forums. De Commission recently requested and received updated status reports on this proceeding. All parties are now in agreement that this proceeding has become moot. Kert-McGee states that it has begun shipping wastes from West Chicago to Utah. He State and the City are satisfied that Kerr-McGee "has clearly agreed to remove" the wastes from West Chicago. %c Nuclear Regulatory Commission Staff, although not a formal party to the pending appeal, finds it "no longer realistic" to believe that the Commission will need to address a proposal for onsite disposal at the West Chicago site. Although the parties present differing theories on what factors or events rendered the proceeding moot, at bottom all agree that Kerr-McGee no longer intends to pursue onsite disposal, the subject of this proceeding. The Commission therefore agrees that the proceeding is moot. Kerr-McGee also requests the Commission to vacate the underlying decisions in this proceeding. He NRC Staff concurs, urging the Commission to vacate "three unreviewed decisions involving highly controversial issues in the waste disposal area." He State and the City, however, oppose vacatur, claiming that this proceeding became moot only after Kerr-McGee in 1994 entered into a settlement agreeing to remove the mill tailings from the West Chicago site. Voluntary settlement, according to the State and City, deprives litigants of any claim to the equitable remedy of vacatur. Cf. United States Bancorp Corp. v. 14

Bonner Mall Partnership,115 S. Ct.'386 (1994). Kerr McGee and the NRC Staff do not agree that the 1994 settlement is what rendered the Commission proceeding nxxx, and instead argue that the proceeding became moot in 1990, when the Commission - over Kerr-McGee's objection - transferred regulatoiy jurisdiction over section ll(e)(2) byproduct material to the State of Illinois.' In short, the parties do not agree on precisely why this long-pending case is moot, but do agree that there no longer is any point to Commission review because of Kerr-McGee's commitment to move the mill tailings off site. De Commission, in any case, is not bound by judicial practice and need not follow the Bancorp ruling. In these circumstances, and because these unreviewed Board decisions involve complex questions and vigorously disputed interpretations of agency provisions for disposal of byproduct material, the Commission as a policy matter chooses to vacate and thereby eliminate as precedent all three underlying decisions in this proceeding. This will permit any similar questions that may come up to be considered anew, without the binding influence of an apparently controversial Appeal Board decision thatthe Commission has not had the occasion to review. By vacating the decisions, the Commission does not intimate any opinion on their soundness. Without engaging in a full inquiry into the merits - which no party any longer requests, and the Commission sees no compelling reason to undertake on its own - the Commission cannot properly evaluate the analyses of the Licensing and Appeal Boards. Bis proceeding is terminated as moot, Kerr-McGee's application for on-site disposal is deemed withdrawn, and the following decisions are vacated: ALAB 944, 33 NRC 81 (1991); LBP-90-9, 31 NRC 150 (1990); LBP-89-35, 30 NRC 677 (1989). It is so ORDERED. For the Commission l JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 21st day of February 1996. I KerrMOee challenged the traeder of juris hetion in a D C. Orcuit newset against the NRC. Kerr-McGee later withdrew the suit. apparemly because of provisions in the 1994 settlenwnt agrernum with the Stue and Oty. Kerr& Gee, though. clains that the seulerneut agreenwm neither encornpasses this Commission pro 6eeding nor resolves nunwrous outstanding disputes with the State and Oly over the removal of the material. 15

Cite as 43 NF, 16 (1996) CLl-96-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Shirley A. Jackson, Chairman Kenneth C. Rogers Greta J. Dicus in the Matter of Docket No. 40-8027-EA , (Decontamination and Decommissioning Funding) SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site) February 27,1996 l 'Ihe Commission grants the Intervenors' petition for review of the Atomic Safety and Licensing Board's Memorandum and Order approving a joint set-tiement agreement between the Licensee, Sequoyah Fuels Corp., and the NRC Staff. 'Ihe Commission also permits the State of Oklahoma to file a brief amicus curiae to aid the Commission in its review of the Board's order. RULES OF PRACTICE: PARTICIPATION BY AN INTERESTED STATE OR LOCAL GOVERNMENT A state that does not seek party status or to participate as an " interested state" in the proceedings below is not permitted to file a petition for Commission review of a licensing board ruling. If the Commission takes review, the Commission may permit a person who is not a party, including a state, to file a brief amicus curiae.10 C.F.R. 6 2.715(d). 16

1 1f MEMORANDUM AND ORDER l l ne Intervenors in this enforcement proceeding, Native Americans for a j Clean Environment (NACE) and the Cherokee Nation, have filed a petition for Commission review of the Atomic Safety and Licensing Board's Memorandum and Order, LBP-95-18,42 NRC 150 (1995). He State of Oklahoma also filed a petition for review and motion for leave to file an amendment to its original petition. He NRC Staff, the Licensee Sequoyah Ibels Corporation and its parent, General Atomics (GA), oppose Commission review. In accordance with the considerations discussed in 10 C.F.R. 62.786(b)(4), the Commission has decided that review of LBP-95-18 is appropriate. De record does not show, nor does the State of Oklahoma contend, that it is a party to this proceeding. It also did not participate as an " interested State" before the Licensing Board pursuant to 10 C.F.R. 6 2.715(c). Herefore, it may not file its own petition for review.' Neverthele_ss, our regulations provide 1 that if the Commission takes review of a Board order a person who is not a party may be permitted to file an amicus curiac brief, if the person requests by motion to file such a brief.10 C.F.R. 6 2.715(d). De Commission views the State's petition for review and subsequent motion as fulfilling this requirement. I Accordingly, the State will be permitted, along with the parties, to provide a i brief on the matters discussed below. In LBP-9518, a majority of the Board concluded that a joint settlement l agreement between the NRC Staff and SFC is in the public interest. 42 NRC i 150 (1995). Judge Bollwerk did not join the majority and in a separate statement raised several issues which in his opinion merited further inquiry before reaching a final conclusion about whether to approve the settlement agreement. 42 NRC 1 at 156-59. l Answers to the following questions would aid the Commission in its review l of this matter: l. Does SPC lack the financial resources to provide any surety instrument to guarantee additional funds for cleanup beyond the $750,000 letter of 7 credit? 2. Under paragraph 5 of the agreement, what process'does the NRC Staff i intend to implement to ensure proper and timely review of SFC's annual audited financial statements? I i I $se long 15fand Dg4reng Ca (Shoreharn Nuclear Power Station. Unit ik Ct191 8. 33 NRC 461. 46s-69 (1991); . Pac @c Ces and Decenc Ca (Diablo Canyon Nuclear Power Plant. Units 1 and 21 At.AB 583, il NRC 447 448-49 (1990). 17 r i ~

3. What prejudice, if any, wili xcur if the Commission were to delay fmal approval of a settlement with SR until after the NRC Staff and General Ato nics conclude their settlement negetiations? Answers to these questions may address son, of the inquiries raised by Judge Bollwerk in his separate statement. In their briefs, the parties and the State should also address the ternaising matters raised by Judge Bollwerk. Pursuant to 10 C.F.R. 5 2.786(d), the Commission sets the following briefing schedule: 1. %c Intervenors and the State (hereinafter " Petitioners") shall file their briefs within 21 days after service of this Order. Reir briefs shall be no longer than 25 pages each. 2. The NRC Staff, SFC, and GA shall file their responsive briefs within 21 days after service of the Petitioners

• brief. Deir responses shall be no longer than 25 pages each.

3. Within 10 days after service of the responsive briefs, the Petitioners may file reply briefs. %eir replies shall be no longer than 10 pages each. Briefs in excess of 10 pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited. Page limitations on briefs are exclusive of pages containing a table of contents, table of cases, and of any addendum containing statutes, rules, regulations, etc. j IT IS SO ORDERED. For the Commission JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 27th day of libruary 1996. 18

t t 1 l i 1 i l Atomic Safety and Licensing i Boards issuances l j l ATOMIC SAFETY AND UCENSING BOARD PANEL \\l l B Paul Cotter, Jr.,* Chlef Adm/n/straf/ve Judge l James P. Gleason,* Deputy Chief Administrative Judge (Executive) Frederick J. Shon,* Deputy Chief Administrative Judge (Technical) Members Dr. George C. Anderson Dr. FUchard E Foster Dr. Kenneth A. McCollom Charies Bechhoefer* Dr. David L Hetrick Marshall E. Mmer Peter B. Bloch* Emest E. Hin Thomas S. Moore

• l G. Paul Bollwerk lil*

Dr. Frank E Hooper Dr. Peter A. Morrie Dr. A. Dixon Callihan Eltzabeth B. Johnson Thomas D. Murphy

• i Dr. James H. Carpenter Dr. Charles N. Kolber*

Dr. Richard R. Partzek l Dr. Rchard E Cole

• Dr. Jeny R. Kline*

Dr. Hany Rein Dr. Thomas E. ENeman Dr. Peter S. Lam

• Lester S. Rubenstein Dr. George A. Ferguson Dr. James C. Lamb Ill Dr. David R. Schink j

Dr. Hany Foreman Dr. Emmeth A. Luebke Dr. George E 11dey i I t i

• Permanent panelmembers l

l i i i 1

Cite as 43 NRC 19 (1996) LBP-96-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: James P. Gleason, Chairman Dr. Alchard F. Cole Dr. Peter S. Lam In the Matter of Docket No. 50-245-OLA (ASLBP No. 96-711-01 OLA) NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nucisar Pos. :r Station, Unit 1) February 7,1996 MEMORANDUM AND ORDER (Ruling on Intervention Petition) j We have before us the request for a hearing and petition to intervene in this i proceeding on the license amendment application filed by Northeast Nuclear Energy Company (NNECO) for its Millstone Nuclear Power Station, Unit 1, which is located in New London County, Connecticut. The petition challenging the amendment was filed by We the People, Inc. (NTP), the Seacoast Anti-Pollution League (SAPL), the New England Coalition on Nuclear Pollution (NECNP), and Mr. Donald W. Del Core. Generally, the petition asserts that the proposed license amendment would permit the routine offloading of the full reactor core to the spent fuel pool during refueling which, in turn, would present a significant increase in the risk probability and consequences of an accident involving the spent fuel pool, thereby resulting in injury to the Petitioners. For the reasons set forth below, the petition on behalf of Mr. Del Core and WTP is granted and the petition on behalf of NECNP and SAPL is denied. 19

~. _ _ _ _. j BACKGROUND J On July 28, 1995, NNECO submitted a license amendment application seeking to add new technical specifications to its operating license for its 4 Millstone Nuclear Power Station, Unit 1. The change would require that (1) the j reactor be suberitical for at least 100 hours before the start of reactor refueling; (2) the spent fuel pool bulk temperature be maintained at less than or equal l to 140'F; and (3) two trains of shutdown cooling be operable during reactor refueling operations. In a letter accompanying the application, NNECO states that these changes will permit the practice of full-core offloading as a normal i end-of-cycle event.' On August 30,1995, the Staff published in the Federal RegiSfer a proposed "no significant hazards determination" pursuant to 10 C.F.R.150.91 and a notice of opportunity for hearing concerning the amendment request.2 In response to the notice, a timely request for hearing and petition to intervene was filed on behalf of WTP, SAPL, NECNP, and Mr. Del Core.3"Ih~e Applicant and Staff each filed answers opposing the petition and the Petitioners then filed a " Corrected 4 . Request." Besides making certain spelling and typographical corrections, this 4 filing contained a list of twelve (12) " member supporters" associated with WTP 3 living in the neighborhood of the Millstone plant and an assertion that Mr. j Del Core would face increased risk to his person and propeny ii the license i amendment were granted.3 Thereafter, the Petitioners filed a Memorandum of L Law in support of their petition.' We then issued an order setting a final deadline for any further amendments to the petition.the Applicants and the Staff filed responses to the Petitioners' Memorandum' and Petitioners subsequently filed on December 4,1995, an affidavit of a WTP member.' After challenging most of the factual allegations set forth in the Petitioners' filings, NNECO argues that neither the organizational Petitioners nor the indi-i 'See taense freen J F. opeka, Executive Vice President, NNECo. to NRC, July 28,1995 (Attachment 111 to NNECo's Answer to Request for a Hearing and f%udos to inservene (Oct. 13, 1995)). 360 fed Reg. 45,172 (Aug. 30,1995). 3 Request for a Hearing and Petition to laservene on Behalf of WTP. SAN NECNP and Donald Delcore [ sic] i (Sept. 28,1995). ' Northeast Nuclear Energy Conipany's Answer to Request for a Hearing and Petition to leervene (oct.13. 1995)[ hereinafter NNrCo Answer). NRC staff Response to Request for a Heanns and Pention to Imervene on Belulf of WTP. SAN NECNP and Donald Del Core (oct. 18,1995)[hereinafier Staff Answer). i 3Coneesed Request for a Heanns and Petition to Imervene on Behalf of WTP, SAN NECNP and Donald W. Del Core (oct. 18,1995)(hereinafter Corrected Request). l 'Memwandum of Law in Support of the Request for a Hearing and Pention to intervene on Behalf of WTP, i SAN NECNP and Donald W, Del Core. Sr. (Nov. 8,1995) [ hereinafter Peutioners' Memorandum). j 7 order (Nov. 7, IMS)(unpubbshed). 8 NNECo's Response to Supplemensed Intervention IVtition (Nov. 21,1995)[ hereinafter NNECo Response), NRC Staff Response to Memorandum of Law in Support of the Request for a Hearing and Pettion to lmervene on Behalf of WTP, SAN NECNP and Donald W. Del Core, Sr. (Nov. 21,1995) (hereinafter Staff Response). ' AfRdavit of Glen Cheney. 20 4 f I i

k i vidual Petitioner has standing to intervene in this license amendment proceeding. lbr its part, the Staff generally does not address the factual merits of the Peti-l tioners' allegations. Although the Staff argued that none of the Petitioners had standing to intervene, the Staff changed its position with respect to Mr. Del Core. In its latest filing, the Staff states that Mr. Del Core has arguably made (although not articulated very well) a case for standing based upon his allegation of radiological harm to his health, safety, and property," Accordingly, the Staff j no longer objects to Mr Del Core's participaticci in the proceeding. la is noted that on November 9,1995, the Staffissued License Amendment 89 i to NNECO for its Millstone Nuclear Power Station, Unit 1. That amendment did j not add the technical specifications to the facility license requested by NNECO. Instead, the amendmem added a license condition to the facility license that permits t~ e same activie.a.~ ] n PETITIONERS' STANDING TO INTERVENE i 4 'Ihe recital of the requirements for standing in the Commission's most recent decisions regarding standing are all quite similar, Hence, we quote the discussion from Georgia Tech, CLI 95-12, its most recent discussion on this 4 - subject: Under section 189a of the Atomic Energy Act (AEA), the Commission must grant a 4 hearing upon the request of any person "whose interest may be affected by the proceeding." j 42 U.S.C. 4 2239(a) To detenmine whether a petitioner has alleged a sufncient interest to intervene, the Commission has long apphed judicial concepts of standmg. Cleveland Electric j tilaminating Co. (1%rry Nuclear Pbwer Plant, Unit 1), CLl-93-21,3s NRC 87,92 (1993) (Perry). For standing, the petitioner must allege a concrete and particularized injury that is fairly traceable to the challenged action and hkely to be redressed by a favorable decision. j See generally Lejan v. Defenders of Wildlufe, i12 S. Ct,2130,2l36 (l992); Perry, 38 NRC at 92. Injury may be actual or threatened. Kelly v. Salin 42 F.3d 1501,1508 (6th Cir.1995); i Wilderness Society v. Griles, 824 F.2d 4, II (D.C. Cir.1987).,,, An organisation may base its standing on either immediate or threatened injury to its j organizational interests, or to the interests of identined numbers Warth v. Seldin, 422 U.S. 490, $11 (1975); Nossson Lighting and Power Co. (South Texas Project, Units 1 and 2), At.AB 549,9 NRC 644,646 47 (1979). To derive standing from a menber, the organization nwst denumstrate that the individual member has standing to participate, and has authorized I'Saaff Answer at 4 9. ) Staff Resposee as 910. H U 5ee tseest to Judges Moore, t.am and Cole trom Catherine L Marco. Counsel for NRC Staff (Nov. 13, 1995) enclosing November 9,1995 agency cover letter, Amendment 89, and the Staff's safety evaluatiort I' 21 4 1 l 4 I l I , -... - - -.. ~..

l the organization to represent his or her inscrests, llomston Ligliting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB.535,9 NRC 377,390-% (1979)." 1 To determine whether any of the Petitioners have the requisite standing to challenge NNECO's license amendment application, we first consider the three petitioning organizations, WTP, SAPL, and NECNP before considering the petitioning individual, Mr. Del Core. According to the Petitioners' original and corrected intervention request, WTP is a Massachusetts-based nonprofit corporation with its principal office in Rowley, Massachusetts, whose primary purpose is to support employees of nuclear licensees and the NRC who may face retaliatory action for bringing forward allegations of license violations or nuclear safety issues. Wl'P alleges that the organization has worked with Millstone employees on safety issues and references one employee, George Galatis, as consulting with Wl'P on 1 the Licensee's fuel offloading practices. He petitions state that individuals " associated" with WTP live in the " neighborhood" t>f the Millstone complex and it lists by name twelve members with addresses in Connecticut towns." Next, the petition states that SAPL is a New Hampshire nonprofit corporation with its principal place of business in Portsmouth, New Hampshire. It claims that SAPL has members living in Massachusetts and New Hampshire within 10 miles of the Seabrook nuclear facility and that SAPL participated as an intervenor in the licensing proceedings for the Seabrook Station. The petition further alleges that the operator of Seabrook Station, like NNECO, is a subsidiary of Northeast Utilities, so it can be expected that full-core offloading during refueling also will be undertaken at the,Scabrook Station, thereby increasing the risk and consequences of a spent fuel pool accident at that nuclear plant.u Finally, the petition declares that NECNP is a nonprofit corporation with its principal place of business in Brattleboro, Vermont, and that it has been an active voice in New England on nuclear safety issues for 25 years. It states that NECNP intervened in the Vermont Yankee and Seabrook licensing proceedings and that NECNP has members residing within 50 miles of both the Seabrook and the Millstone nuclear plants. Although an organization may have standing in its own right to intervene in an NRC adjudicatory proceeding, none of the three organizations has sought to demonstrate an injury to its organizational interests. Nowhere in the interven-tion petition, corrected request, or supporting memorandum do the Petitioners "Georgan Insurvie of Terknology (Georgia Tech Research Reactor) CLJ 95-12,42 NRC lli, 11$ (1995). See sho Japo>e4 Tech Corp. (Gore, oklahoma sne) CLI-94-12,40 NRC 64. 7172 (1994); Gu{f States Utiltries Co. (River Bend Stanos Umt l), C1J44-lo. 40 NRC 43,47 (1994); Perry, 38 NRC at 92. ' N Request for Hearing at 4; and Concied Request si 2 3. U a at 5-6. l 14 at 4. 22 3 0 .r.

identify any organizational interest of WTP, SAPL, or NECNP that is harmed

or threatened with injury by the license amendment at issue. Dus, none of these organizations has standing in its own right to intervene. However, WTP, SAPL, and NECNP seek to establish standing to intervene as the representative of one or more or its members. For such representational standing the petition-ing organization must show that at least one of its members suffers "immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit."" Fur-ther, agency case law teaches that the organization must identify at least one member by name and address and provide "some concrete indication that, in fact, the member wishes to have that [ member's) interest represented in the pro-ceeding."'8 Moreover, that concrete indication of representational authorization should be provided " preferably by affidavit."

Here, two of the three petitioning organizations, SAPL and NECNP, have not complied in any respect with the requirements for establishing standing as representative of one of their members. De Corrected ~ Request, as indicated, sets forth a list of names and addresses of twelve WTP members who purportedly ' live in the " neighborhood" of the Millstone plant, but the petition is silent with respect to the names and addresses of any SAPL or NECNP members. Accordingly, these Petitioners have provided no " concrete indication" from any member of their organizations that a representation of their interests has been authorized in ti.is proceeding. Dis, despite the fact that their supporting memorandum reciter the requisites for representational standing: {t)o assert representa enal injury-in-fact. an organization nuest specifically identify individual nwmhers by name ar.d address, identify how that member may be affected and show that the organization is awhorized to miuest a hearing on behalf of the nwmber. Pact)ic Gas & Electric Co. (Diablo Canyon Nuclear Power Ptant. LJnits No. I and 2). LBP 92-27,36 NRC 1 %. 199 (1992)20 Accordingly, SAPL and NECNP have failed to demonstrate that they have standing to intervene as the representative of one of their members.8' In considering WTP's standing posture, Petitioners' Corrected Request fails to establish that the twelve (12) WTP members, with Connecticut residences, "worrA 422 u s. a sil. 38 Allens Creet 9 NRC at 393 %, Jee Georgia TrcA CLl-95-12. 42 NRC at 115. I'facilic Gas and Dectric Co. (Diablo Canyon Nuclear Power Plant. Umts I and 21 LBP-92 27,36 NRC 1%, 199 (19921 2c retitioners' Mernorandum at 5 2ile ad& tion to its failwe to provide the name and address of a SAPL number and some evidence of representational ausherisation. the Petitioners' inserveme60s petition also fails to set fonh any imerests of SAPL that relane to the Millstone facihty - the subject of this proceedins. Rasher. SAPL's asserted interests all reime to the seabrook facihty and, as such. are clearly outside lhe scope of this proceeding as de6acd by the Comrmision's heanns notice, 4 t 6 9 1

.. -. ~. ~ -.-_ L i ? l T authorized WTP to represent them in this proceeding. On December 4,1995, WTP attempted to cure this deficiency by filing an affidavit of one of these members, Glen Cheney, wherein Cheney states that he and the other eleven members wished to be represented by WTP. 'Ihis filing ignores our scheduling order cf November 7,1995, wherein we stated that "the Petitioners shall have unt'.1 Ecsday, November 14,1995, to file any amended intervention petition. After that date, the Licensing Board will not entertain any further amended or corrected intervention request."22 Petitioners' l-counsel's letter stated that (lla view of the position of both the NRC staff and the Licensee, that the organizational 8 petiuoners need to Ale an Af6 davit to sepresent the concerns of individuals residing within the area of the plant in question, I have obtained, and 61e herewith, the afndavit of Glenn Cheney, stating that he, and the other individuals listed on the corrected petition do desire 1 to have their interests represented through We The People, Inc.23 De Commission has declared in its Statement of Policy on the Conduct oflicensing Proceedings that "[f]airness to all involved in NRC adjudicatory procedures requires that every participant fulfill the obligations imposed by and 4 in accordance with applicable law and Commission regulations."24 Petitioners' counsel has participated in NRC adjudicatory proceedings for 20 years,25 and a there is no excusing this deficiency based on a lack of familiarity with agency procedures. De presiding officer in this proceeding elected not to hold a special pre-hearing conference and, as indicated, set November 14,1995, as the cutoff date for amending petitions.2' Being out-of time, WTP should have addressed the five lateness factors required by 10 C.F.R. 6 2.714(a)(3) on December 4,1995, when it attempted to amend its petition by filing the Cheney affidavit.27 Failing l that, WTP has not demonstrated standing in this proceeding as a matter of right. However, as explained subsequently, in an effort to expedite and develop the record of this proceeding, the Board has decided to exercise its discretion and grant WTP's petition for intervention. We also hold that the amended petition's attempt to authorize representation by eleven (11) other individuals listed in Petitioners' Corrected Request of October 18,1995, has no validity. Under the ) i 22 order (Nov. 7,1995) at 2 (unpublished). 23 tetter to Judges Moore tam, and Cole from Robert A Backus, Backus Meyer. Soloman & Rood. Manchester, NH (Dec. 4,1995K j 24Ct.1-St 8,13 NRC 452,454 (1981). 235ee, e t, public Service Ca of New Hamp4 Aire (Seabrook Staaion, Umts I and 2), ALAB-949, 33 NRC 484, 485 (1991y, ed. LJIP 76-4,3 NRC 123 (19761 1 26 The Board presiding over this proceeding was teconstnused January 4.1996. j 27 The Board was perhaps renuss la not granting a Staff December 12,1995 tequest to respond to the Cheney arsdavit, but in light or our denial of the late petition and the exercise of discretion in granting standing, we 3 conclude that our mistake was not prejudicial i 24 4 d 5 4 i t , -,.-. ~ ~ - ~.

d Commission's practice, averments by one member of an organization by affi-l davit that other members have authorized representation would not satisfy the requirement that those members have given some " concrete indication" that a - representation of their interest is authorized.28 i ne Petitioners' Request for Hearing argues a case for standing under the Commission's proximity presumption for individuals who live within 50 miles i i of the Millstone plant. We tum to that argument because it forms the basis for the claim that Mr. Del Core has standing to intervene. In construction permit and operating license proceedings, Commission case law recognizes a proximity presumption that persons who live, work, or oth-crwise have contact with the area around a nuclear plant have standing to in-tervene.8 Dat presumption is based on an unsurprising premise, i.e., that the construction or operation of a nuclear power reactor cairies with it " clear impli-cations for the offsite environment"" so that individuals residing in reasonable proximity to the plant are likely in at least some small way to be injured in their persons or property by a plant accident, and th6s such persons fall within the geographic zone of interests protected by the Atomic Energy Act.8' Simi-larly, agency case law recognizes the same presumption in license amendment proceedings that involve " major alterations to the facility with a clear poten-tial for offsite consequences" or other circumstances that present "such obvious i potential for offsite consequences.")2 j According to the corrected intervention request, Mr. Del Core lives in j Uncasville, Connecticut, within 20 miles of the Millstone plant, and he owns j property within the Emergency Planning Zone for the facility. His clearly would j be sufficient for gaining intervenor status in construction permit or operating l license proceedings. i De Petitioners' case relics, in part, on the Appeal Board decision in ALAB- $22.5) Rat determination involved a license amendment to expand the capacity of the spent fuel pools at both of the North Anna nuclear power plants. In i reversing the Licensing Board's ruling denying the petitioners intervention, the Appeal Board found the proximity presumption applicable. In this license amendment case, a residence near the Millstone plant also implicates the i proximity presumption because the license amendment at issue, even though not involving a major alteration of the plant, may involve the potential for offsite p 2s llens Creed ALAB $35,9 NRC a 396. A "See Secune4 raals. CLI 9412,40 NRC m 73; Gulf $tates Usduias Ca (River Bend Stasion, Units I and 2k ALAB 183,7 AEC 222,226 (1974L "florido rmr and Lig4r Ca (St Lucie Nuclear Power Plant, Umts I and 2), CL1-89 21, 30 NRC 325,329 gl989k I3ee Aiver acad, ALAB 183,7 AEC at 223-24 & a 5. l 32, g,,j,, CLI-89-21,30 NRC et 329 30. 3 3 33 Virginia Electne sad Power Ca (North Anna Power Station, Units I and 2A ALAB 522,9 NRC $4 (19791 1 25 l l e s 1 a -n,+ l

4 4 t consequences. He petition alleges that an increase in heat load in the spent fuel pool presents the potential of offsite consequences if an accident were to occur. j At this stage of the proceeding without more, it cannot be concluded that the potential safety issues involved in the offloading and storage of a full core is not comparable to the safety issues associated with a spent fuel pool expansion. i As previously indicated, the Petitioners allege in their corrected intervention - request and supporting memorandum that the Millstone spent fuel pool has never been analyzed or approved for a routine full-core offloading as part of refueling, j According to the Petitioners, the failure of any equipment important to safety, the j loss of electrical power, or an carthquake could result in the loss of pool water j inventory during an offload through pipe breaks, siphon effects, or boiling that, in tum, would uncover the stored fuel and expose those living near the plant to dangerous levels of radioactivity. In countering the Petitioners' claim of injury, j NNECO argues that there has been no showing of offsite consequences from the license amendment and states that " Petitioners rely instead only on a muddle of factual errors and half truths regarding the authorized full-core offload to concoct a theory of injury.")* Although the affidavits accompanying NNECO's opposition to the Petition-ers' filings challenge almost all of the Petitioners' factual assertions, the most recent Commission ruling involving standing in the Georgia Tech case makes it l cvident that we are not to determine the essential validity of the asserted facts in ruling on intervention petitions.33 Citing the recent decision of the United i States Court of Appeals for the Sixth Circuit in Kelly v. Selin.3' the Commission j stated in Georgia Tech that "[tjo evaluate a petitioner's sumding, we construe the petition in favor of the. petitioner."37 l When we do that here,.we conclude that the Petitioners have alleged at least an acceptable injury. Further, the Petitioners' alleged injury is traceable to the challenged license amendment and would be alleviated by a decision denying the i requested license amendment. Hus, we find that Mr. Del Core and WTP, on the i-basis of the Board's discretion, have standing to intervene and their intervention l petition is granted subject to the filing of at least one admissible contention. L As a final matter, it is necessary to delineate our evaluation of the factors guiding the Board's decision in exercising discretion to grant standing to WIP. See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and ^ 2), CLI 76-27,4 NRC 610,616 (1976). He major consideration of importance to the Board is that WTP's panicipation reasonably can be expected to assist in developing a sound record in the proceeding. De petition not only alleges 4 i 3* NNECo Respoone a 10. i 33 Georgia Ter4. al-9512. 42 NRC m Il$. 3'42 F3d a 1508. 37 Ct.8 9512. 42 NRC m 115. 26 I !~ l I ^ e t Y ny.-

a previous involvement of the organization with Millstone employees on safety issues but specific consultation with employee George Galatis on offloading practices at the plant. Dese may involve safety issues in the proceeding and information that might not otherwise be available in the case. We have no basis for concluding that WTP's participation will broaden or delay the proceeding and, as set forth previously, a favorable ruling would redound to the benefit of ~ %TP and its memben. CONCLUSION For the foregoing reasons, it is hereby ORDERED that: 1. De request for hearing and petition to intervene filed on behalf of New England Coalition on Nuclear Pollution and Seacoast Anti-Pollution League is denied: 2. De request for hearing and petition to intervene filed on behalf of Donald W. Del Core, Sr., and We the Peopic is granted, contingent upon the filing of an admissible contention as set forth in 10 C.F.R. 5 2.714; and 3. De Petitioners above shall have 30 days from the date of service of this - Order to file contentions. In accordance with the provisions of 10 C.F.R. 6 2.714a, this Order may be appealed within 10 days after its service.38 THE ATOMIC SNFETY AND LICENSING BOARD James P. Gleason, Chairman ADMINISTRATIVE JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDGE Dr. Peter S. Lam ADMINISTRATIVE JUDGE Rockville, Maryland Ibbruary 7,1996 3s Copies of this Menorandum and order have been sem tids date to counsel for NNEco, WrP. SAPt. NECNP. and Donald W. Del Core by facistnile wansrnission and to Staff counsel by E-mal transnession through the NRC's wide-area network. 27

i Directors' Decisions i i Under i l 10 CFR 2.206 i i i l i i i 1 l i 4 ) ) i i i l

i Cite as 43 NRC 29 (1996) 00-961 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l OFFICE OF NUCLEAR REACTOR REGULATION William T. Russell, Director In the Matter of Docket No. 50 029 (License No. DPR-3) i YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station) February 22,1996 He Director of the Office of Nuclear Reactor Regulation denies in part and grants in part a petition dated January 17, 1996, submitted to the Nuclear Regulatory Commission (NRC) by Citizens Awareness Network and New England Coalition on Nuclear Pollution (Petitioners), requesting that the NRC take action with respect to five activities conducted by Yankee Atomic Electric Company (YAEC or Licensee) at the Yankee Nuclear Power Station in Rowe, Massachusetts (Yankee Rowe or the facility). The petition was also moot in part. He petition requests that the NRC comply with Citizens Awareness Network Inc.

v. United States Nuclear Regulatory Commission and Yankee Atomic Electric Co., 59 F.3d 284 (1st Cir.1995) and inunediately order: (A) YAEC not to undertake, and the NRC Staff not to approve, further major dismantling activities or other decommissioning activities, unless such activities are necessary to ensure the protection of occupational and public health and safety; (B) YAEC to cease any such activities; and (C) NRC Region I to reinspect Yankee Rowe to determine whether there has been compliance with the Commission's Order in CL1-95-14,42 NRC 130 (1995), and to issue a report within 10 days of the requested order to Region 1.

He Petitioners' request that shipments of low-level radioactive waste be prohibited is denied because that activity is pennissible, prior to approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations. Petitioners' request that four other activities be prohibited is moot, although the activities would have been permissible, prior 29

to approval of a decori ssioning plan, under the pre 1993 interpretation of the Commission's decommissioning regulations. Additionally, Petitioners' request for an inspection of Yankee Rowe to determine compliance with CLI 9414 and an inspection report was granted. DIRECTOR'S DECISION UNDER 10 C.F.R. I2.206 I. INTRODUCTION An " Emergency Motion for Compliance with Circuit Court Opinion"(peti-tion), dated January 17, 1996, was submitted by Citizens Awareness Network and New England Coalition on Nuclear Pollution (Petitioners). Petitioners re-quested that the United States Nuclear Regulatory Commission (NRC or Com. mission) take action with respect to activities conducted by Yankee Atomic Electric Company (YAEC or 1.icensee) at the Yankee Nuclear Power Station in Rowe, Massachusetts (Yankee Rowe or the facility). Dy an Order of the Commission dated January 23, 1996, the Emergency Motion was referred to the NRC Staff for treatment as a petition pursuant to 10 C.F.R.12.206 of the Commission's regulations. 'Ihe Commission ordered the Staff to respond to the emergency aspects of the petition in 10 days and to issue a decision on the petition as a whole within 30 days. Petitioners request that the NRC comply with Citizens Awareness Network h:c. v. United States Nuclear Regulatory Commission and Yankee Atomic Electric Co., 59 F.3d 284 (1st Cir.1995) (CAN v. NRC), Specifically, Petitioners request that the Commission immediately order: (A) YAEC not to undertake, and the NRC Staff not to approve, further rnajor dis-mamling activities or other decommissioning activities, unless such activities are necessary to assure the protection of occupational and public health and safety; (B) YAEC to cease any such activities; and (C) NRC Region I to reinspect the Yankee Nuclear Power Station in Rowe, Mas-sachusetts (Yankee Rowe) to determine whether there has been compliance with the Comnission's Order of October 12,1995 (CLI 9514), and to issue a report within ten days of the requested order to Region I. As the bases for their requests, Petitioners state that: (1) CAN r. NRC requires the cessation, and prohibits commencement. of decommis-sioning activities at Yankee Rowe, pending final approval of the licensee's decom-rnissioning plan aner opportunity for a hearing. CLI-95-14 forbids YAEC from 30 a

conducting any further major dismantling or decommissioning activities until naal approval of l's decornmissioning plan aAer completion of the hearing process; (2) CAN v. NRC obhges the Commission and the Staff to provide an opportunity to intciested persons for a hearing to approve a decommissioning plan; (3) CAN v.'NRC requises the Commission to reinstate its pre-1993 interpretation of its decommissioning reguistions, General Requirementsfor Decommissioning Nu-clear Facihn'es, 53 FR 24,018,24,025-26 (hne 27,1988), limiting the scope of permissible activities prior to approval of a decommissioning plan to decontami-nation. minor component disassembly, and shipment and storagw of spent fuel, if permitted by the operating license and/or 10 C.P.R 150.59. Under long fstand Lir4 ring Co. (Shoreham Nuclear Power Station, Unit I), CLI.90-08. 32 NRC 201, 207, n.3 (1990), this means that the licensee may not take any action that would materially affect the nwthods or options available for decommissioning. or that would substantially increase the costs of decomnussioning, prior to approval of a decommissioning plan. Under CLI-91-2, 33 NRC at 73, n.5, and CLI-92 2, 35 NRC at 61, n.7, other decommissioning activities, in addition to major ones, are prohibited, including offsite shipments of low-level radioactive waste produced by decommissioning activities, until after approval of a 3ecommissioning plan; (4) decommissioning activities permitted by NRC Inspection Manual, Chapter 2561, 106.06, "Modincations or Changes to the Facility", before approval of a decom-missioning plan are limited to maintenance, removal of relatively small radioactive components or non-radioactive components, and characterization of the plant or site; (5) YAEC is conducting decommissioning activities, with the approval of the NRC technical staff, in Gagrant violation of CAA v. NRC and of CLI-95-14, thus threat-ening to render the decosamissioning process nugatory and to deprive petitioners of their hearing rights under Section 189a of the Atomic Energy Act; (6) by letter dated October 19,1995, YAEC described nine decommissioning activities in progress, and by letter dated October 24,1995, interpreted permissible " major" dismanding as removal of non-radioactive material required to support safe storage of spent fuel and of those portions of the facilities which remain, or to support future dismantlement; (7) by letter dated November 2,1995, the NRC staff approved the activities described by the Licensee in its letter of October 19, 1995; (8) Ave of the nine activities approved by the NRC staff's letter of November 2, 1995, are major dismantling or other decommissioning activities, in the nature of Component Removal Project activities, prohibited, until after approval of a decommissioning plan, by CAN v. NRC and CLI-9514. Petitioners object to: (a) completing removal of the remainder of the Uppet Neutron Shield Tank; (b) removal of Component Cooling Water System pipes and components and Spent Puel Cooling System pipes and components; (c) Fuel Chute isolation; (d) Spent Nel Pool electrical conduit installation; and (e) radioactive waste shipments. Petitioners do not object to waste Tank removal, Ion Exchange Pit cleanup, remont of Emergency Diesel Generators, or the Brookhaven National Laboratory Cable Sampling Project. 31 4 V

._m ~ _.. _. i 1-(9) heitioners advocme the SAFSTOR deconmussioning alternative because is allows levels of radioactivity and waste volwnes to decrease, thus rooocing occupational and public radiation exposuses, and lowenng deco- '--t costs; (10) ' NRC Inspection Report No. 50-29/95 05 (December 16,1995) concludes that the y-j hasue whether activities observed were in connpliance with CL1-95-14 is unresolmi, but approves YAEC's proposed activities, consrary to the requirements of NRC lespection Manual. Chapter 2561,106.06 %dincations or Changes to the Pacilky"(March 20,1992); and (11) YAEC's criterion for permissible deconunissioning activities, that any activity in-volving less than i percent of the on-site radioactive inventory is not " major and i may take place before approval of a deconuniuloning plan, violates CAN v. NRC because it would allow completion of deconunissioning befose any decommission-j- ing plan could be approved in haanag, and constitutes unlawful segmentation under 1 ' the National Environmental Policy Act. { By letter dated January 29, 1996, Yankee Atomic Electric Company re-sponded to the petition. YAEC supplemented its response by letters dated l Rbruary 15,1996. February 21,1996, and February 22,1996, and by an E-mail j message to the NRC Staff on January 31.1996. j By letter dated February 2,1996, the NRC Staff denied in part and granted j in part Petitioners' requests for emergency action. He petition was also found moot in part. Petitioners' requests that the NRC take emergency action to order (A) YAEC not to undertake and the NRC Staff not to approve further major j dismantling activities or other decon)missioning activities, urless necessary to j ensure the protection of occupational and public health and safety and (B) YAEC to cease any such activities were found moot in part and denied in part. Petitioners' request for emergency action to require NRC Region I to reinspect 1 Yankee Rowe to determine whether YAEC has complied with the Commission's 3 i Order of October 12,1995 (CLI-9514), and to issue a report within 10 days { after the Commission orders such an inspection, was granted. Petitioners then requested the Commission to reverre the NRC Staff's Febru-ary 2,1996 decision on the emergency aspects of the petition. See

• Citizens Awareness Network's and New England Coalition on Nuclear Pollution's Mo-tion for Exercise of Plenary Commission Authority to Reverse NRC Staff 2.206 4

Decision, and Renewed Emergency Request for Compliance with Circuit Court Opinion." By Order dated February 15,1996 (unpublished), the Commission declined to grant the emergency relief requested, as there was no showing that the Licensee would take any action before the issuance of a Director's Decision on February 22,1996. He Commission directed the NRC Staff to address the arguments advanced by Petitioners in their February 9 motion in this Decision, with the exception of the new issues raised on page 13 of the motion, which are to be addressed in a supplementary 10 C.F.R 5 2.206 decision. 1 32 I d 4 i ,p 5 ..m.,

. ~.. l Rr the rusons discussed below, Petitioners' requests that the NRC prohibit YAEC from undertak g or continuing five of the nine activities evaluated by the i NRC Staff's letter of November 2,1995, are moot in part and denied in part. Of the nine activities, all with the exception of radioactive waste shipments were completed before submission of the January 17, 1996 petition. Accordingly, Petitioners' request for relief with respect to (1) completing removal of the 4 remainder of the upper neutron shield tank, (2) removal of the component cooling water system pipes and components and spent fuel cooling system pipes and components, (3) fuel chute isolation, and (4) spent fuel pool electrical l conduit installation is moot. Petitioners' request for relief with respect to radioactive waste shipments is denied. As explained below, all five contested activities were permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations, and thus are in compliance with CAN v. NRC and CLI-95-14. Petitioners' request that the NRC inspect Yankee Rowe to determine compliance with CLI-95-14, 3 and issue an inspection report, was granted. 1 IL BACKGROUND On Itbruary 27, 1992, YAEC announced its intention to cease operations permanently at Yankee Rowe. On August 5,1992, the NRC issued a license e amendment to limit the license to a possession-only license. 57 Fed. Reg. 37,558,37,579 (Aug.19,1992). In late 1992, YAEC proposed to initiate a Component Removal Project (CRP). On December 20l 1993, YAEC submitted a decommissioning plan i based on a phased approsch, starting with DECON, then SAFSTOR, and then finally dismantlement. Notice of Receipt of Decommissioning Plan and Request for Comments was published in the Federal Register. (59 Fed. Reg.14,689 (Mar. 29,1994)). On January 14,1993, and on June 30,1993, the Commission issued two Staff l Requirements Memoranda which, in pertinent part, interpreted the Commission's regulations to permit many decommissioning activities prior to approval of a 4 decommissioning plan, as long as the activities do not violate the temis of the l existing license or 10 C.F.R. 650.59 with certain additional restrictions. See " Staff Requirements - Briefing by OGC on Regulatory Issues and Options for Decommissioning Proceedings (SECY.92-382),10:00 a.m., 'Ibesday, November 24,1992, Commissioner's Conference Room, One White Flint North, Rockville, 1 Maryland (Open to Public Attendance)"(January 14,1993) and "SECY-92-382 - Decommissioning - Lessons Leamed" (June 30,1993). On several occasions between late 1992 and early 1994, CAN asked the NRC 1 to offer an opportunity for an administrative hearing regarding decommissioning 33 8 f= i x

~ activities conducted by YAEC at Yankee Rowe. The Commission denied each such request. CAN sought judicial review and challenged the denials - and the January 14,1993 interpretation of the Commission's decommissioning regulations. On July 20,1995, the United States Court of Appeals held that the Commis - sion had:. (1) failed to provide an opportunity for hearing'to CAN, as required by section 189 of the Atomic Energy Act, in connection with the Cemmis-sion's decision to permit the CRP decommissioning activities; (2) changed its pre-1993 interpretation of its decommissioning regulatire without notice to the public and in violation of the Administrative Procedure t.c; and (3) impermis-sibly allowed the Licensee to conduct CRP decommissioning activities prior to compliance with the National Environmental Policy Act requirement to conduct an environmental analysis or environmental impact statement. CAN v. NRC,59 F.3d at 291-92,292-93, and 294-95 (1st Cir.1995). The court remanded the matter to the Commission for proceedings consistent with the court's opinion. In response, the Commission issued a Federal Wegister notice advising: (1) that the Commission did not intend to seek further review of CAN v. NRC; (2) that the Commission understood that decision to require a return to the interpretation of NRC decommissioning regulations that were in effect prior to January 14,1993; and (3) that the Commission was requesting public comments on whether the Commission should order YAEC to cease ongoing decommissioning activities pending any required hearings and any other matters connected with that issue. Sec 60 fid. Reg. 46,317 (Sept. 6,1995). After consideration of comments filed in response to that notice, the Commis-sion implemented CAN v. NRC by issuing CLI-95-14,42 NRC 130 (1995). In CLI-95-14, the Commission reinstated n.4 pre-1993 interpretation of its decom-missioning policy, required the issuance of a notice of opportunity for an adju-dicatory hearing on the Yankee Rowe decommissioning pisn, held that YAEC may not conduct funher " major decon missioning activities at Yankee Rowe until approval of a decommissioning plar after completion of any required hear-ing, and directed YAEC to inform the Commission within 14 days of the steps it is taking to come into compliance with the reinstated interpretation of the Commission's decommissioning regulations. CLI-9514, supra. Pursuant to CLI-95-14, a proceeding is now under way to offer an oppor-tunity for hearing on the Licensee's decommissioning plan for Yankee Rowe. Petitioners have sought intervention and a hearing. As of July 20, 1995, when the court issued CAN v. NRC, YAEC had completed its Component Removal Project. In response to CLI-95 14, by letters dated October 19 and 24,1995, YAEC identified nine ongoing activities that YAEC believed were permissible under CAN v. NRC and CLI-95-14. In its letter of November 2,1995, the NRC Staff evaluated those nine activi-ties and found them permissible under the Commission's pre-1993 interpretation 34 e e v

of its decommissioning regulations, and thus under CAN v. NRC and CLI 14. He Staff also identified certain activities, although not proposed by the Licensee, which may not be conducted before reapproval of a decommissioning plan. Those activities include dismantlement of systems such as the main reac-tor coolant system, the lower neutron shield tank, vessels that have significant radiological contamination, pipes, pumps, and other such components, and the vapor container (containment). He Staff also identified segmentation or removal of the reactor vessel from its support structure as a major dismantlement not to be conducted until after the decommissioning plan is reapproved. IV. DISCUSSION ) A. The Nine Activities Were Permissible, Prior to Approval of a Decommissioning Plan, Under the Commission's Pre 1993 Interpretation of Its Decommissioning Regulations, and Thus Are Permissible Undcr CAN v. NRC and CLI 9514' Petitioners contend that five of the nine activities evaluated by the NRC Staff's letter of November 2,1995, are major dismantling or other decommis-sioning activities prohibited until after approval of a decommissioning plan, by CAN v. NRC and CLI 95-14. Specifically, Petitioners object to: (1) complet-ing removal of the remainder of the upper neutron shield tank; (2) removal of t component cooling water system pipes and components and spent fuel cooling i system pipes and components; (3) fuel chute isolation; (4) spent fuel pool elec-trical conduit installation; and (5) radioactive waste shipments. Petitioners do not object to waste tank removal, ion-exchange pit cleanup, removal of emer-gency diesel generators, or the Brookhaven National Laboratory Cable Sam-pling Project. Petitioners acknowledge that completion of waste tank removal and ion-exchange pit cleanup are required for safety reasons. Petitioners also acknowledge that the removal of the emergency diesel generators is permissible because they are not radioactive, and that the Brookhaven National Laboratory Cable Sampling Project is a research project unrelated to decommissioning. Of the nine activities, all with the exception of radioactive waste shipments were completed before submission of the January 17,1996 petition. Under the Commission's pre-1993 interpretation of its decommissioning reg-ulations, a licensee "may proceed with some activities such as decontamination, minor component disassembly, and shipment and storage of spent fuel if the activities are permitted by the operating license and/or 6 50.59," prior to final approval of a licensee's decommissioning plan,8 as long as the activity does not 'statemem of Conuderation. " General Requirements for Decomrnessioning Nuclear Facihties." $3 Fed. Reg. 1 i 24.01s, 24.025 26 (June 27,1988). 35

j involve major structural or other major changes and does not materially and demonstrably affect the methods or options available for decommissioning or substantially increase the costs of decommissioning. lent sland Lighting Co. I (Shoreham Nuclear Power Station, Unit 1), CLI-90-8,32 NRC 201,207 n.3 (1990); long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-912,33 NRC 61,73 n.5 (1991); and Sacramento Municipal Utility Dis-trict (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47,61 n.7 - (1992). l ~ Under the pre 1993 interpretation of the Commission's decommissioning. regulations, examples of activities that were considered permissible and that were conducted at various facilities under a possession-only license before approval of a decommissioning plan included: i Shoreham' Core borings in biological shield wall e Core borings of the reactor pressure vessel Regenerative heat exchanger removal and disassembly e e ' Various sections of reactor water cleanup system piping cut out and re-moved to determine effectiveness of chemical decontamination processes 4-being used 1 ' * ' Removal of approximately half of reactor pressure vessel insulation and preparation for disposal Removal of fuel support castings and peripheral pieces removed and i e shipment offsite for disposal at Barnwell, South Carolina 4 ' * ' Reactor water cleanup system recirculation holding pump remcved and shipped to James A. FitzPatrick Nuclear Power Plant

• . Control rod drive' pump shipped to Brunswick Nuclear Station One full set of control-rod blade guides sold to Carolina Power and Light

' Company Control-rod drives removed, cleaned, and stored in boxes for salvage i' e Process initiated fa segmenting and removing reactor pressure vessel p e cavity shield blocks i Process initiated for removal of instrument racks, tubing, conduits, walk-ways, and pipe insulation presenting interferences for decommissioning activities and/or removal of salvageable equipment Fort St. Vrain' e Control-rod drive and orifice assemblies and control rods removed from 23er tener dated Decondner 11,1991, from John D.14anard, Jr., tong Island tighting Company to U.S. Nuclear Regulaeory Commission, Docket No. 50 322. 3 { 5ee tener deced September 4,1992, from Donald M. Warembourg. Pubhc Service Company of Colorado, to the U.S. Nuclear Regulaiory Comaussion, Docket No. 50 267. a.. 36 i 4

core during defueling and shipped off site for processing or disposal as low-level waste All helium circulators removed and shipped off site for disposal e, Core region constraint devices (internals) removed and approximately one-half shipped off site for disposal About fifty core metal-clad reflector blocks (top layer of core) removed e and stored in fuel storage wells Removal of remaining hexagonal graphite reflector elements, defueling e elements, and metal-clad reflector blocks begun Prestressed concrete reactor vessel (PCRV) top cross-head tendons and e some circumferential tendons detensioned Some detensioned tendons removed from PCRV e Work initiated to cut and remove PCRV liner cooling system piping e presenting interferences to detensioning of PCRV tendons Asbestos insulation completely removed from piping under PCRV Activities such as normal maintenance and repairs,' removal of small radioac-tive components for storage or shipment, and removal of components similar to that for maintenance and repair also were permitted prior to approval of a decommissioning plan under the Commission's pre-1993 interpretation of the Commission's decommissioning regulations. See NRC Inspection Manual, ch. 2561,106.06 (Issue Date: 03/20/92).* Of course, licensees are also permitted to complete or to conduct activities required for compliance with safety. requirements before approval of a decom-missioning plan. In addition, special consideration must be given to activi-ties required to comply with-Other federal and state safety requirements. See Memorandum of Understanding Between the Nuclear Regulatory Commission and the Occupational Safety and Health Administration," Worker Protection at NRC-licensed Facilities"(Oct. 21, 1988), 53 fid. Reg. 43,950 (Oct. 31,1988). See also NRC Inspection Manual, ch.1007, " Interfacing Activities Between Regional Offices of NRC and OSHA." Petitioners concede that completion of activities already under way is permissible if completion is required for imme-diate safety purposes. 'Ihe Staff's November 2,1995 letter evaluated the nine activities identified in YAEC's letter of October 19, 1995, based on the Commission's pre-1993 d" Examples of modi 6 cations and acuvines, that are allowed during the post-operational phase [the imerval between permones shutdown and the NRC's approval of the licensee's decommissioning plan] are (1) those that could be perfarnied under normal maialenance and repair activities, (2) segnovel of certain, seletively small radioacave... .such as conirol red drive enechamam, control rods, and case kneernals for disassenddy, and storage or shipment. (3) removal of non-rabosctive components and siructures nos required for safety la the pose-operational phase, (5) slupment of scactor fuel offsite. and (6) activitses relased to sie and equipment radiation and contanunasion characterization." 37 t 1 4

l interpretation of its decommissioning regulations,5 and determir,ed that the nine activities were permissible before approval of a decommissioning plan. Upon review of the petition and its supplement of February 9,1996, the Staff took a fresh look at the nine activities and again found them to be permissible before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations, and thus under CAN v. NRC and CLI-95-14. 1. Completion of Remosel of the Remaining Portions of the Upper Neutron Shield Tank As stated in the NRC Staff's letter of November 2,1995, completion of this activity was necessary to avoid a significant lead hazard to plant personnel j due to lead dust or powder deposits on surfaces of the structure (particularly if the plant were to go into an extended SAFS1DR configuration, as desired by Petitioners). That contamination, if disturbed dudng Licensee maintenance activities or NRC inspections would pose a significant health hazard to Licensee and NRC personnel. Petitioners object that this safety rationale is unsupported by factual informa-tion regarding actual lead levels in the tank and whether the lead levels violated OSHA standards.. Dismantlement of the upper neutron shield tank required cutting sections of the tank that had lead shielding., Cutting was completed before November 2,1995, and lead cleanup was completed by November 8,1995. Lead dust was created by dismantlement of the tank, already under way and completed ~ before issuance of the November 2,1995 Staff letter. Surface lead residue measurements in those areas ranged between 13,000 micrograms (pg)/ft2 and 2 390,000 pg/ft, The Licensee's operating procedures require the Licensee to implement industrial hygiene control methods as specified by the Occupational Safety and Health Administration in areas where there is potential for employee exposure to lead. Procedure No. AP-0713, " Lead Control Program," Revision 1 Major, iC (" Discussion"), at 3. The target for removable lead contamination is 200 pg/ft. Id., " Discussion," i C, " Decontamination," at 4. 2 Lead dust resulting from dismantlement of the upper neutron shield tank was at a concentration such that surface lead contamination exceeded the target 4 I petruoners claim that YAEC's "I percent" cnterion for deternuning what constitutes major structural or other snapr change (and thus what activines are pernussable before approval of a decommissiomag plan) would allow completion of deccennussioning before any decomnussioning plan could be approved in hennas. The Staff does not accept or approve, and has not used this enterion to desernune whether any YAEC acavines, including the nine activines. are pernussible before approval of a decommissioning plan. 38

for removable lead contamination.' Licensee personnel were and are required to enter the area in order to conduct surveillances to monitor radioactive contamination and for compliance with fire protection requirements. In view of the above, this activity was permissible for r.afety reasons, and, therefcre, would have been allowed in a comparable situation before approval of a decofr. nissioning plan, under the pre 1993 interpretation of the Commission's decommiss;aing regulations. 2. Waste T<mk Remomi(Activity Decay and Dilution Tank) Petitioners concede that completion of this activity was required for safety reasons. . 3. Remont of Component Cooling Water System Pipes and Components and Spent Fuel Cooling System Pipes and Components Contrary to Petitioners' assertions, the Staff's February 2,1996 letter did not " abandon'* the November 2,1995 rationale for finding this activity permissible. He Staff's February 2 letter repeated the November 2 rationale and provided a more detailed explanation for the Staff's conclusion that this activity is permis-sible under the pre-1993 interpretation of the Commission's decommissioning regulations. He Licensee had installed a self-contained spent fuel pool cooling system, isolated from the fluid components and installed conduit to allow future electrical isolation from other systems, iri order to enhance safety and integrity of the spent fuel pool for prolonged storage of fuel. As a result, the component cooling ] water system pipes and components and spent fuel cooling system pipes and components were rendered redundant and were no longer useful. i Removal of the no-longer-useful pipes and components was not decommis-sioning, but maintenance that would have been allowed, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations.1 Petitioners erroneously contend that removal of 'd use of sespirasary protection by workers would not have sanshed the licensee's operating pocedures. Until a devrrnination s made that any employee working with lead will not be exposed to lead at the action a level, respera*ary protect on is required. Procedure No. AP-0713. " Procedure." IC (" lead Work Practices"), at

11. De action level is enployee exposure, without tesard to use of respiralors, to an airborne concentration of 8

3 and the pernussible exposure Enut is 50 lead of 30 pghn of air celculated as an S-hour time-weigheed ap,ir over a 14 hour tine weighied average. 3 pghn of sur over sa B-host tiene weigheed everage, and 30 pahn of a l f., "Dennitions " at I. Beeween october 5,1995,y october 11,1993, airborne lead concentrations in the areas 3 } aNected ranged between 3 pghn and 2500 pghn. aetware Oeiobee 12,1995, and october 26,1995, airborne 3 3 lead concentrations ranged between i pahn and 250 pghn. I Pennoners assert that the Staff provided no factual support for its conclusion that leaving the component cooling water system and sprat fuel coohng synaem pipes and components is place would pone a safety hazard. Upon further review, the Staff has dek mned that rernovel was not necessary to prevent a safety hazard. 39 ] 4 ,l 6 .,.m

this equipment is not maintenance. Removal of replaced equipment (as opposed to removal of dismantled equipment not intended to be replaced) is a normal maintenance activity. In view of the above, this activity was permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations. 4. lon Exchange Pit Cleanup Petitioners concede that completion of this activity was required for safety reasons. 5. Fuel Chute isolation The Licensee made a commitment to NRC to complete a fuel chute isolation . project, needed to enhance spent fuel pool integrity and long-term reliability, in response to NRC Bulletin 94-01, " Potential Fuel Pool Draindown Caused by inadequate Maintenance Practices at Dresden Unit 1" (April 14,1994). ENRC Bulletin 94-01 explicitly identified potential siphon or drainage paths and freezing failures as hazards that could lead to drainage of the spent fuel pool.8 NRC Bulletin 94-01 required licensees to identify which of the suggested actions that the licensees would take to prevent such hazards, or to identify an alternative course of action, if the licensees needed to take such measures to bring themselves into compliace as described in NRC Bulletin 94-01. YAEC's fuel chute isolati6n project eliminated a potential freezing threat and siphon path that could lead to drainage of the spent fuel pool. 'Ihe NRC Staff determined actions taken to prevent potential siphon paths and freezing hazards connected with the fuel chute to be adequate. NRC Inspection Report No. 50 029/94-80 (Dec. 9,1994). Petitioners erroneously maintain that isolation of the upper fuel chute is not necessary to prevent a risk of siphoning or freezing, because the upper fuel chute lies above the fuel pool and cannot serve as a siphon for liquid in the pool. The fuel chute pipe originally ran from the lower lock valve at the outside wall at the bottom of the spent fuel pit (SFP) on a diagonal path to the outer shell of the vapor container (VC), through the shell and into the VC. During former plant operations a blank flange was inserted in the pipe, outside the VC shell, in order to maintain VC leak-tight integrity, 8 i ParW action number 2 was: "Easwe that systems for essemial men heating and ventilmion are adequase and appropriase. = so thes potential freesing Imheres that could cause loss of sFP water inwemory are precluded" Requessed action nurnber 3 was: "Enswo that piping or boses in or attached to the SFP cannot serve as siphon or drenage pashs in the esent of piping or home degradation or failure or the mispositioning of system vehes a 40

As part of the NRC Bulletin 94-01 project, one 8-foot length of this 12-inch-diameter fuel chute pipe was removed from the top of the lower lock valve and a blank flange placed over the lower lock valve so that the valve could be encased in concrete. His, in effect, made the valve part of the SFP wall. He removal of this section of pipe also eliminated a potential leak path through the pipe out of the SFP wall. Isolation of the fuel chute, accomplished by removing the lowest flanged pipe section and sealing the lower portion of the fuel chute with concrete, eliminated a freezing and siphon hazard. Scaling the fuel chute with concrete prevents accumulation of water in the fuel chute. Accumulated water could freeze during severe winter weather and possibly damage the lower lock valve outside the spent fuel pool wall, thus opening a leak path near the bottom of the spent fuel pool. Petitioners incorrectly maintain that the Licensee did not need to remove the upper fuel chute in order to comply with NRC Bulletin 04-01. The Licensee did not remove the upper fuel chute. The Licensee has fastened a blaF *lange at the wall of the VC by wedging open a flanged joint. His was a mainicaance activity. This blank flange is normally in place and was removed, in the past, when fuel transfer operations took place. These transfers are now prohibited by the POL. The fuel chute isolation project was necessary to prevent potential siphon and freezing risks, was one of the actions determined to be an adequate response to NRC Bulletin 94-01, and brought the Licensee into compliance with NRC requirements. In any event, this activity is not decommissioning, but maintenance and a safety upgrade that would have been allowed under the pre 1993 interpretation of the Commission's decommissioning regulations. In view of the above, this activity was permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations. 6. Remomi of Emergency Diesel Generators Petitioners acknowledge that removal of the emergency diesel generators is a permissible activity prior to final approval of a decommissioning plan. 7. Spent Fuel Pool Electrical Conduit installation his activity involved underground installation of a power cable and its protective covering and did not involve the removal of radioactive material. De modification also enhanced the integrity and long. term safe storage of spent fuel in the spent fuel pool, by isolating spent fuel pool power supplies from potential 41 4

. _ - ~.. - -. 4 I problems that could be caused by power circuits in other systems or heavy load l impacts at the plant. The activity was part of the Licensee's overall project to enhance the safety of the spent fuel pool by establishing independent systems dedicated to spent fuel pool reliability. 'Ihe conduit installation was also consistent with NRC Bulletin 94-01, specifi-cally the first requested action, which involves ensuring the integrity of structures and systems, necessarily including electrical systems, required for containing, cooling, cleaning, level monitoring and makeup of water in the spent fuel pool. 'Ihe conduit installation project enhanced integrity of the spent fuel pool by ensuring operability and adequacy of structures and systems required for spent fuel pool integrity, specifically the electrical system. Petitioners object that the November 2,1995 letter implies that this activity is l a decommissioning activity because it will provide a separate power supply for future decommissioning activities. Petitiorers contend that there is no present threat to the integrity of the spent fuel pool, and that as long as the Licensee performs no major dismantlement activities, there is no immediate need for conduit installation. While it is true that conduit installation will isolate the spent fuel power - supply from potential problems associated with future decommissioning of other systems, conduit installation also serves the larger purpose of isolating spent fuel pool power supplies from potential problems that could be caused by power circuits in other systems at the plant, wholly apart from the conduct of any decommissioning activities. This activity represents a safety enhancement. In view of the above, this activity was permissible, before approval of a decommissioning plan, under the pre 1993 interpretation of the Commission's decommissioning regulations. i 1 8. Brookhaven Nationallaboratory Cable Sampling Project Petitioners acknowledge that this activity is a research project unrelated to decommissioning. j 9. Radioactive Materials Shipments Under the pre 1993 interpretation of the Commission's decommissioning reg-ulations and 10 C.F.R. 650.59, the NRC has permitted shipment of radioactive waste and contaminated components prior to approval of a decommissioning plan, as long as it does not materially and demonstrably affect the methods or ~ options available for decommissioning or substantially increase the cost of de-commissioning, and because such shipments do not constitute a " major" activity. 42

e NRC Staff practice prior to 1993 permitted activities such as shipment of waste or contaminated components at a permanently defueled facility pursuing - decommissioning, Prior to approval of a decommissioning plan, the licensee may dismantic and dispose of nonradioactive components and structures not re-quired for safety in the shutdown condition, After issuance of a possession-only license, the licensee also may dismantle and dispose of radioactive components not required for safety in the shutdown condition, provided that such activity does not involve major structural or other major changes and does not foreclose alternative decommissioning methods or materially affect the cost of decom-4 missioning. l.ong bland Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 NRC 461, 471 (1991), approving Staff recommendations in SECY-91 129, " Status and Developments at the Shoreham Nuclear Power Sta-tion" (May 13, 1991). See also NRC Inspection Manual, ch. 2561, 56 06.06, 06.07 (Mar, 20,1992); Fort St. Vrain Nuclear Generating Station Amendment No, 82 to Facility Operating License No. DPR-34 (Possession-Only License. l May 21,1991); and Rancho Seco Nuclear Generaiting Station Amendment No.117 to Facility Operating License No. DPR-54 (Possession-Only License, Mar.17,1992). Petitioners contend that the February 2,1996 letter of the NRC Staff applied the post-1993 interpretation of the Commission's decommissioning regulations to determine that shipment of low-level radioactive waste is permissible ' based on the Staff's citation to SECY-92 382 and the associated June 30,1993 SRM. The particular language Petitioners point to is: Shipnent of contaminated teactor internals needed for operation could proceed after issuance 3 of a possession-only limase because such components are not " major": i.e., they are not needed to maintain safety in ihe defueled condstion. See SECY 92 382," Decommissioning - Lessons Learned" (November 10,1992) and Staff Requisements Memorandum,"SECY-4 92-382 - Decommissioning - lessons Leamed" Oune 30, 1993). 4 The Staff's February 2,1996 letter derived this language from a discussion at pages 22-24 of SECY-92-382, " Decommissioning - Lessons Learned." l ] ' pensioners inconectly comeruf than the Stafr's conclusion, that the methods or options available for decommis-sioning will not be maser 6any or dernonstrably affected because the Licensee's acovities involve approximately i 2.3 cunes of residual acuvity, constituus applicesion of sha Licensee's 1% criterion. The Ucensee had proposed in its lener of october 24,1995, that decommissioning acavities levolving less than 1% of the total cunes of > nonfuel congonema not inclu&ng grener than Class C components, are not " major" decommissionmg acovities and thus are permissible under the pre-1993 inserpretation of the Comnussion's decommissioning regulations. As previously stated, the NRC Staff does not accept or approve, and &d not use, this enterion in its rebruary 2,1996 (or its November 2,1995)lener to dearmine whether activities proposed by the Ucensee, including dupping, are " major" activthes for purposes of permissitde dec- "ng before approval of a decommissionios plan. See, e g note 5, supre. The Staff in fact stated that since the Licensee's acuvities involve only 2.3 cunes out of a outal 4448 cwws sesidual activiry which nmat be decommissioned, shipment of low level radioactive waste will 2 not dernonstrably affect the methods or options available for decomnussioning. 43 e k

J l De Commission had in fact permitted shipment of low-level waste prior to approval of a decommissioning plan under its pre-1993 interpretation of its de-commissioning regulations, as explained above. SECY-92-382 accurately stated that the Commissiofs had in fact permitted shipment of not only low-level ra-dioactive waste and some components, but also some reactor internals, before approval of a decommissioning plan." He particular reference to " major" com-ponents in SECY-92 382 was in the context of permissible dipment of waste; 4 that language did not define " major" for the purpose of determining what com-i ponents may be dismantled or removed prior to approval of a decommissioning plan. No component can be shipped unless it is first removed or dismantled, and authority to ship a component already removed or dismantled does not ipso j facto constitute authority to remove or dismantic the component in the first place. Likewise, the citation in the NRC Staff's February 2,1996 letter to Petitioners 4 was not intended to define " major" for the purpose of determining what compo-nents could be dismantled or removed prior to approval of a decommissioning j plan, but referred to what could be shipped. He Staff's reference to SECY-92 382 was made in the context of permissible shipments only, not permissible ) d component dismantling or removal. Regrettably, the Staff's February 2,1995 reference to SECY 92-382 may have been insufficiently detailed to make the purpose of the reference clear. In the case at hand, the Licensee's proposal was to ship low-level radioac-tive waste." De NRC Staff's conclusion that the Licensee's proposal to ship radioactive wasteu is permissible under the pre-1993 interpretation of the Com-mision's decommissioning regulations was based on the understanding that the j l propesal was to ship low-level radioactive waste, and was not intended to be and was not a determination that the removal or dismantling of major compo-nents was permissible under the pre-1993 interpretation of the Commission's decommissioning regulations," under CAN v. NRC, or under CL1-94-14 MSte Shoreham, CLI 912,33 NRC at 471. See else SECY.91 129, " Status and Dewlopmems at the Shore'iam Nuclear Power simien (SNPS)," at 3 (May 13,1991)(contanunated fuel support castings and peripheral piecesk HPetitioners comend that there is no basis to deerrmine the accuracy of the 1)censee's estimate that it will make 54 shipmems of lon level radioactiw waste between october 1995 and July 1996. Peticoners, howewr, fad to set f forth any facts or rasionale that raise a question as to the reasonableness of the LJccanee's estimate of the nuniber 2 of shipmenss. U Petitioners state that neither YAFC mor the NRC Staff provided any information about the radioacuvery levels in the 54 shipmems that YAEC estimases it shipped and will ship between october 1995 and July 1996, and that the IJcenare's January 29,1996 estimase of 2.3 curies involved in activities aheady completed does not provide informasion about radioactivity levels of the 54 shepmens that YAEC estimaies it will haw shipped before the 1 end of July 1996. The tJcensee has now provided that information and estirnates the total radioactivity involved in the packaging and shipment of low lewt radioecove waste between November I,1995, and July 1996, to be 1817 curies. See 14 tier desed Febsuary 21.1996, from K.J. Heider, YAEC, to Mortoa B. Fairule, NRC, The four i contested activities, other than shipping, amoumed so only approumasely 8.2001 cunes of tesidual radioactivity. u rentioners assert that the NRC Stafra February 2,1996 lener states that the shipmem of low lewl radioactive waste is permined under the pre 1993 criseria because the radioactivity of the shipments amoums to 2.3 curies fContinued) i 1 4 4 T ~

De Commission's decisions in Shoreham, CLI 912, 33 NRC at 73 n.5, and Rancho Seco, CLI-92-2,35 NRC at 61 n.7, do not, as Petitioners contend, prohibit shipment of low-level radioactive waste. No issue concerning such shipments was addressed in those decisions. He language cited by Petitioners paraphrases the general guideline, that " major dismantling and other activities that constitute decommissioning under the NRC's regulations must await NRC approval of a decommissioning plan," and is derived from the 1988 Statement of Consideration " General Requirements for Decommissioning Nuclear Facilities," supra.. As explained above, it was agency practice before 1993 to permit shipment of low-level radioactive waste and contaminated components before approval of a decommissioning plan. Rather than store low-level radioactive waste on site for extended periods, it has long been agency policy that such waste should be shipped to disposal sites - if the ability to dispose of waste at a licensed disposal site exists. Shipping of waste at the earliest practicable time minimizes the need for eventual waste reprocessing due to possibly changing burial ground requirements and - reduces occupational and non-occupational exposures and potential accident consequences. NRC Generic Letter 8138, " Storage of Low-Level Radioactive Wastes at Power Reactor Sites"(Nov. 10, 1981). Petitioners contend that YAEC may not ship low-level radioactive waste because the Yankee Rowe possession-only license does not permit it." Although Petitioners are correct that no language in the Yankee Rowe POL explicitly states that shipment of low-level radioactive waste is authorized, the Yankee Rowe POL does authorize that activity. Section 1.H of the POL, issued August 5,1992, authorizes Yankee Rowe to receive, possess, and use byproduct, source, and special nuclear materials in accordance with the Commission's regulations in 10 C.F.R. Parts 30, 40, and 70. Authority to ship low-level radioactive waste is conferred upon all byproduct material, source material, and special nuclear material licensees by NRC regulations in 10 C.F.R. Parts 30,40, and 70. Byproduct materials licensees, source materials licensees, and special nuclear l or less out of the remaining 4448 curies of residua! radoactivity to be deconunissioned la the foren of Class C or less wases. What the Stafr said was that because the Licensee's activities involve appromirnmely 2.3 curies of 194 remaining 4448 cwies of tessdual radoactivity to be decomrnissioned in the form of Class C or less wasse, shipment of low-level raecactive wesee produced by the activities evalumed in the Staff's November 2.1995 i lener will not enawnally or demonstrably affect the methods or opt.ons available for decommissioning the Yankee Rowe site. H Petitioners claim that the Comrnission's decommissioning regulasions pmhibit low-level ra&oactive waste shipmess thN are not authorned by YAEC's hcease, ciong the 1988 Stewned of Consideration See " General Requirements for Decommissioning Nuclear Faciliuts," $3 Rd. Res 24,025 26 (June 27,1988). The Statement of Consideration makes no mention of shipment of low level rn6cacuve wasie. The language cited gives examples of activines d,4 k nsees may conduct before approval of a decomrmssioning plan, but does not stase or imply that the hst is inclusio: "Ahhough the Commission nest approve the decomminioning abernative and major i swuctural changes to radiortive composess of the facihty or other major changes, the licensee may proceed with some acuvities such as 6 contamination. minor component disassembly. and slupment and storage of spent fuel if these acuvides are permitted by the operating hcense and/or 150.59." (Emphasis added.) i 45 4

l l l l l materials licensees, including Yankee Rowe, are authorized to transfer such material, as long as the recipient is authorized, see 10 C.F.R. Il30.41,40.51, and 70.42, and as long as preparation for shipment and transport is in accordance with the requirements of 10 C.F.R. Pan 71. See 10 C.F.R. Il 30.34(c),40.41(c), 70.41(a). In particular, 6 2.C of the Yankee Rowe POL states that the POL is deemed to contain and is subject to 10 C.F.R. Il 30.34 and 40.41. Accordingly, the POL authorizes the transport of low-level radioactive waste from Yankee Rowe. Petitioners state that the " cardinal consideration" that determines whether a decommissioning activity is " major" should be the radiation dose it yields, not the radioactivity of the component involved," and thus the NRC Staff's February 2,1996 letter erroneously relied upon the number of curies shipped rather than the radioactive doses involved in shipping low-level waste to determine whether the activity is permissible. De criteria for determining whether shipments of low-level radioactive waste will demonstrably affect the methods or options available for decommissioning have not been well defined. During review of the petition and its supplement, the NRC Staff has continued to examine the question of whether the Licensee's shipments of low level radioactive waste will demonstrably affect the metho6 or options available for decommissioning. In this case, the Staff has now also compared the radiation dose involved in the packaging and shipping of the low-level radioactive waste with the radiation dose estimated for decommissioning of the Licensee's facility, This is because, under Petitioners' theory regarding the choice of the decommissioning option, as we understand it, it seems that adoption of a different decommissioning option would most likely be required to reduce dose. He Licensee estimates that the radiation dose involved in the packaging and shipment of low-level radioactive waste between November 1,1995, and July 1990 to be 17 person-rem." He estimated total radiation "The Commission has moi articulased as a criterion for determining what consdrutes a " major" decommissioning acdvity, the radiados done yielded by the acovity, and Pendoners cite no authoriry for this argument. Nor has the Conunission ardculased the redsoactivity involved as a criterion for deternuning what constitutes " major" decommissioning activity. 36The Staff mistakenly understood the IJcensee's letter of January 29,1996, to mean that the activities evaluated by the Stafr's Nowmher 2,1995 letter involved 2,3 cunes. The radioacuvity involved in the four contesied acdvities, other than shipping of low-level ra&oactive waste, amounted to approximately 2001 curies of tesidual g radioactivtry. (Removal of the upper neutron shield tank involved less than 5 cunes, and removal of the component conhng water system pipes and components and spent fuel cooling system pipes and components involved 1.2001 curws. See 14 tier daled october 19,1995, from Russen A. Mellor, YAEC, to Morton B Fairtile, NRC. Imel chute isolation involved 2 curies, and spent fuel pool electncal conduit installation involved no curies. See letter dated february 21.1996, from KJ. Heider, YAEC, to Morton B. hamle, NRC.)In addenon, the licensee esumated that since compledon of the activites desenbed in the NRC letter, activities have been authorized by the tjcensees' Manager of operanons that remove components containing a total of 2.3 curies of radioactive maserial. See Leter dated January 29,1996.from Andrew C. Kadak. YAEC, to william T. Russell, NRC. "See 14 tier dated rebruary21,1996, from KJ. Heider, YAEC, to Morton B. Fairtile, NRC.

exposure for decommissioning the facility is 755 person-rem.88 'Ihe estimated ' dose from packaging and shipping is approximately 2% of the total dose from decommissioning. As can be seen, most of the dose will be incurred in activities other than shipment of low level radioactive waste. As the Commission has 4 previously held in this case, even potential dose reductions on the order of 900 person-rem, unless there is some extraordinary aspect to the case not apparent, cannot have ALARA significance such that one decommissioning option would j be preferable to another. Accordin ;ly, the Staff concludes that the Licensee's - shipment of low level radioactive waste will not demonstrably affect the methods and options available for decommissioning In view of the above, the shipments of low-level radioactive waste between October 1995 and July 1996, before approval of a decommissioning plan, is permissible under the pre-1993 interpretation of the Commission's decommis-sioning regulations. B, The Five Contested Activities Will Neither Individually Nor Collectively Substantially increase the Costs of Decommissioning YAEC estimates the cost of shipment and disposal of all low-level radioactive waste between the October 1995 issuance of CLI-95-14 and the scheduled date of completion of the hearing in mid-July 1996, to be $6.5 million, or approximately 1.75% of the estimated $368.8 million total decommissioning j cost. It would be speculative to conclude that the decommissioning method proposed by Petitioners, SAFSTOR, would be less expensive. There is no j evidence that the Licensce's shipments will increase decommissioning costs or that continued storage of the waste will decrease the ultimate costs. Thus, the Staff concludes that YAEC's shipment of low-level radioactive waste will not substantially increase the costs of decommissioning. Petitioners erroneously contend that the cost of shipments of low-level radioactive waste could be reduced by postponing the packaging and shipment of low-level waste, presumably because some waste ' < decay to levels such that the volume of waste that will require shipmen' aild decrease. Delay will not significantly reduce the volume of waste shipped because the waste is not segregated by the radioactive isotope involved, and sor of the radioactive isotopes involved have very long half-lives,i.e., nickel-63.& a half-life of 100 years. Cobalt 60, which has a half-life of 5.27 years, was the actope selected by the Petitioners to postulate a reduction in waste volume. Moreover, delay could l 4 38 order Approving the Decomnussioning Plan and Authorizing Decomnussiomns of Facihty (Yankee Nuclear Power station). Environmemal Assessment by the U s. Nuclear Regulatory Conmussion Related to the Request en Authorire Facihty Decommissiomag." at 22, CLI41,43 NRC 1 (1996L 47 s

i ) 1 i l possibly increase decommissioning costs because shipping and burial costs may increase. i The Licensee estimates costs for the five activities contested by Petitioners to be $6.5 million for shipments of low-level waste between October 1995 and i July 1996 and $2.4 million for the four other contested activities," for a total of $8.9 million, or 2.1% of the $368.8 million estimated total decommissioning costs. Dere is no evidence that these activities will give rise to consequences that will increase the total cost of decommissioning. Accordingly, the five contested activitics will not substantially increase decommissioning costs, either individually or collectively. C. Petitioners' Request for an Inspection and Inspection Report Was Granted Petitioners' request for reinspection of Yankee Rowe to determine compliance with CLI-95-14 and for issuance of an inspection report was granted. NRC Region I inspected the Yankee Rowe facility for a second time on December 5-18,1995, to determine compliance with CLI-95-14. NRC Inspection Report No. $0-029/95-07 was issued January 31, 1996. De Inspection Report concludes that the Licensee's activities were conducted ir6 accord with the specifications I of the Staff's November 2,1995 letter. De fire insimtion was conducted in October 1995, before the provision of technical guidance or criteria to assist the Region in determining compliance with CLI-95-14. Subsequently, the NRC Staf f issued its letter of November 2,1995, evaluating the nine activities, all of which are permitted by CAN v. NRC and CLI-95-14, as explained above. ~ Petitioners claim that the January 31,1996 Inspection Report merely repeats the Staff's erroneous interpretation of the Commission's decommissioning stan-j dards, and thus constitutes no relief. De inspection report explicitly states that the nine activities evaluated by the Staff's November 2,1995 letter were in-spected and that the Licensee limited the scope of its work to those activities. Petitioners' disagreement with the Staff's conclusion that the nine activities are in compliance with CAN v. NRC and CLI-9514 does not constitute denial of Petitioners' request for an inspection and an inspection report to determine com-pliance with CAN v. NRC and CLI-95-14.

1. The tkensee s ne s610,000 on the four activiues in the fourth mimatel 259, al cost for these four acuvities. See letter daiehvaner of 1995. which is Yssell A. blior i

l of the esumated I Rbruary 13.1996, from to Morton B. Fairtile. ) i 48 l 1 h

1 2 IV. CONCLUSION j l l Er the reasons given above, Petitioner's request that shipments of low-level I radioactive waste be prohibited is denied, and Petitioners' request that four other activities be prohibited is moot.28 Additionally, Petitioners' request for 4 an inspection of Yankee Rowe to determine compliance with CLI-95-14 and an inspection report was granted. As provided by 10 C.F.R. 6 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review. The Decision will become the fmal action of the Commission 25 days after issuance, unless the Commission on its own motion institutes review of the Decision within that j time. FOR Tile NUCLEAR REGULATORY COMMISSION William. T. Russell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, i this 22d day of Itbruary 1996, 4 T i al Pentioners claim that the NRC erroneously found ca Ibbruary 2,1996, that the request for emergency rehef was moot in part. Pendoners assert that the Licensee conunues to unlawfully ship low level radioactive waste and i that on January 29,1996, the 1)censee stated that it is considering whether to conduct seven activines,in addition to the nine evaluated by the staff's November 2,1995 letter. The february 2,1996 letter of the Staff and this Decision emphcitly denied Ittinoners' request to prohibit shipment of low-level rabosctive waste, and male no Anding that this requess is moot. The February 2,1996 letter and this Decision emphcitly state that Petmoners' request for emergency relief regarding the remaining four cornessed activines was moot because those activities had been completed before the subtrussion of the petinon. Nonetheless, both the february 2,1996 lener and tlus Decision found that those four activities were pernussible, pruw to approval of a decomnussiorung plan, under the a pre 1993 inserpretanon of the Commission's deconunissioning reguladons. Neither the Staff's february 2,1996 ktter nor this decision address the seven activines that the Licensee staies it is now considering. The Staff will address those activines in a supplemental Director's Decision, as required by the Conmussion's order of February IS,1996. 49 i 1

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