ML20141C643
| ML20141C643 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 05/08/1997 |
| From: | Curran D, Walker N CITIZENS AGAINST NUCLEAR TRASH, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., SIERRA CLUB LEGAL DEFENSE FUND, INC. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#297-18307 LBP-97-03, LBP-97-3, ML, NUDOCS 9705190122 | |
| Download: ML20141C643 (11) | |
Text
'
- o
/2307 UNITED STATES OF AMERICA DOCKETED USHRC BEFORE THE COMMISSION
)
97 MAY -9 P3 :16 In the Matter of
)
7((h70 Nb 0
Louisiana Energy Services (Claiborne Enrichment Center)
)
)
CITIZENS AGAINST NUCLEAR TRASH'S PETITION FOR PARTIAL REVIEW OF LBP-97-3 r
Introduction Pursuant to 10 C.F.R. 5 2.786(b), Citizens Against Nuclear Trash (" CANT") hereby petitions for partial review of LBP-97-3, Partial Initial Decision (Resolving Contentions B and J.3) (March 7, 1997).1 In LBP-97-3, the Licensing Board judged the adequacy of Louisiana Energy Services' ("LES'") decommissioning cost estimate for the disposal of depleted uranium tails from the pro-posed Claiborne Enrichment Center (" CEC").
Although the Board found that LES' cost estimate for the conversion of depleted uranium hexafluoride ("DUF6") to uranium oxide ("U308") was inadequate, it approved the cost estimate in all other respects.
CANT seeks review of those aspects of the Board's decision which approve LES' decommissioning cost estimate.2 As discussed 1
As directed by Commission order CLI-97-4 (March 21, 1997),
this petition is being filed within seven days of the issuance of LBP-97-8, Fourth Partial Initial Decision (Resolving Contention J.9), _ NRC _ (May 1, 1997).
2 Although.LBP-97-3 rejects LES' construction permit / operating license application, CANT nevertheless constitutes an aggrieved party for purposes of this petition.
If LES alters and resubmits its application and/or successfully appeals this and other Board decisions rejecting its application (LBP-96-25, 44 NRC 331 (1996) and LBP-97-8, _ NRC _ (May 1, 1997)), LES may yet be able to obtain a license for the CEC.
Thus, this. petition is necessary to ensure the inadequacies in LES' decommissioning cost estimate are addressed, in the 3
9705190122 970508 PDR ADOCK 07003070 C
~
l
. below, the cost estimate is based on a decommissioning stra.tegy l
that is presumptive?.y implausible. and lacks any credib;e techni-
. cal basis.
The Board also incorrectly refused to consider that the strategy presumed by NRC regulations -- disposal in a licensed geologic repository -- could cost ten times more than LES' estimate.
Finally, given the tremendous uncertainty associ-ated with DUF6 tails disposal, the Board erred in refusing to grant the license-unless LES' corporate parents accepted finan-cial responsibility for disposal of the tails.
i Factual Background The proposed claiborne Enrichment Center (" CEC") would. pro-
-duce approximately 90,000 tons of DUF6 tails during its operating life.
LES' Decommissioning Funding Plan proposes to convert the uranium tails from DUF6 to U308, with subsequent deep subsurface burial.
LBP-97-3, slip op. at 15, 18.
LES' cost estimate for I
this processing and disposal strategy is $485.3 million over the plant's 30-year operating life.
Id.
Of this, approximately $1 per kilogram of U308 is allocated to actual disposal.
LES Decom-missioning Funding Plan at EX.I-4.
This estimate is based on a 1991 Martin-Marietta study of the costs of disposing of the tails in a near-strface low-level waste disposal facility in Hanford, Washington.
LBP-97-3, slip op. at 15.
In the Final Environmen-tal Impact Statement for the facility, the NRC Staff predicts that " deep disposal" is the likely disposal strategy for the LES tails, and sets forth an analysis purporting to show that such (continued) event the NRC accepts LES' license application on other grounds.
. deep burial is safe.
NUREG-1484, Vol.
1, Final Environmental Impact Statement for the claiborne Enrichment Center at.4 4-68, Appendix A (August 1994) ("FEIS").
In LBP-97-3, the Licens-ing Board found this disposal strategy to be " plausible," reject-
?
ing arguments and evidence submitted by CANT that the disposal strategy was neither lawful nor supported by a reasonable techni-cal analysis.3 Id., slip op. at 20.
ARGUMENT I.
T11E COMMISSION SHOULD TAKE REVIEW OF LBP-97-3.
A.
The Board Erred in Concluding that LES Presented a
" Plausible" Decomunissioning Strategy.
In determining that LES' proposed tails disposal strategy is
" plausible," the Licensing Board made several fundamental errors.
First, the Board misinterpreted 10 C.F.R. S 61.55 (a) (2) (iv).
This regulation provides that:
1 Waste that is not generally acceptable for near-surface disposal is waste for which form and disposal methods must be different, and in general more stringent, than those specified for class C waste.
In the absence of specific requirements in this part, such waste must be l
disposed of in a geologic repository as defined in part 60 of this chapter unless proposals for disposal of such waste in a disposal site licensed pursuant to this part are approved by the commission.
While the CEC tails are technically classified as Class A waste, the NRC Staff has determined that they are not suitable for burial according to the methods provided by NRC regulations for 3
In support of Contentions B and J.3, CANT submitted the l
Testimony of Dr. Arjun Makhijani.
CANT also submitted Pro-posed Findings of Fact and Conclusions of Law Regarding Con-tentions B and J.3 (May 26, 1995) (" CANT PF"), and Proposed Reply Findings of Fact and Conclusions of Law Regarding Con-tentions B and J.3 (June 26, 1995)
(" CANT Reply PF").
l
l near-surface disposal of either Class A, B,
or C waste.
See FEIS at 4-67.
Thus, they consititute waste "that is not generally acceptable for near-surface disposal" under.10 C.F.R.
S
- 61. 55 (a) (2) (iv).
Because there are no " specific requirements" for disposal of waste other than requirements for near-surface disposal, S 61.55(a) (2) (iv) clearly requires that the wasto must be disposed of in a geologic repository, unless the Commissien itself approves a proposal to dispose of the waste in a specific site.
The Licensing Board refused to apply the plain language of 5 61.55 (a) (2) (iv), erroneously rejecting CANT's argument as a restatement of the arguments made in CANT's petition to reclas-sify the DUF6 tails as Greater Than Class C waste.
LBP-97-3, slip op, at 23, citina CANT's Petition for Waiver of 10 C.F.R.
S 61.55(a)(3) and 10 C.F.R. S 61.55(a) (6) And For Classification of I
Depleted Uranium Tails as Greater Than Class C Radioactive Wastes t
(January 17, 1995).4 However, the applicability of 5 61.55(a)
(2) (iv) is not restricted to Greater Than Class C Waste, but applies to waste of any classification that meets the regula-tion's descriptive definition of " waste that is not generally 4
In a Memorandum and Order dated March 2, 1995, the Licensing Board rejected CANT's waiver petition.
The Commission sub-sequently denied CANT's Petition for Review of that decision on the ground that it was interlocutory.
In addition to this Petition for Review, CANT today filed a separate Petition for Review of the Board's March 2, 1995, Memorandum and Order.
Although CANT believes that DUF6 tails should be classified and treated as GTCC waste,. reclassification is not a prerequisite to a finding
~
that the LBP-97-3 erred in approving the plausibility of LES' disposal strategy.
+
4
suitable for near-surface disposal."
The CEC DUF6 tails clearly meet this definition.
Thus, the Board need not consider whether the tails should be reclassified in order to apply the require-ments of 5 61.55(a) (2) (iv).5 Under S 61.55 (a) (2) (iv), LES did not have the option of establishing, based on a generic analysis, that the tails can be disposed of in some form of " intermediate" nuclear waste disposal between shallow land burial and burial in a licensed geologic repository.
geg CANT PF at 21-22.
Rather, " plausible" disposal.
5 The Board also ignored the legislative history of Part 61, which shows that when the Commission promulgated 10 C.F.R. Part 61, it specifically declined to establish any regula-tions for deeper-than-surface burial facilities, because it lacked confidence that,those facilities coQld be sited and used.
In the Proposed Rule, the Commission discussed an additional report, performed by Oak Ridge National Laboratories, regarding the potential for use of "intermedi-ate" disposal measures for GTCC waste:
[The Oak Ridge report) described a number of conceptual
" intermediate" disposal facilities which would use either engineered barriers or deeper burial to pro-vide a degree of waste isolation intermediate between that of shallow land burial and a deep geologic repository.
The authors attempted an analysis of the waste isolation capability of such facilities but, emphasizing the site-specific nature of such analyses and the very large uncertainties involved, concluded that "[a]t the 1
present time (such facilities are) not suf-ficiently developed to provide a basis for defining waste classes, and disposal of ABY wastes using (such facilitiesi at be considered on a case-by-case basis."
Proposed Rule, Disposal of Radioactive Wastes, 53 Fed. Reg.
17,709, 17,710 (May 18, 1988) (emphasis added).
Thus, the Commission expressed its view that
" intermediate (i.e.,
deeper-than-surface) disposal facilities may never be avail-able, in which case a repository would be the only type of facility generally capable of providing safe disposal for GTCC wastes."
53 Fed. Reg. at 17,710.
1
i*
i' i
,a
~
f
.I
- i strategies'are.l'imitedito (a) disposal"in a licensed. geologic l
' repository, orL(b)' demonstration of.the existence and safety of a specific disposal site for the tails and licensing by the NRC of 1such'a site.6 Thus, the' Board erroneously refused to apply the' i
l
- requirements of 5 61.55 (a) (2) (iv).
l 5
'Moreover, the Board ignored or wrongly discounted substan-i tial evidence submitted by CANT demonstrating that the FEIS.is l
^
seriously deficient in its analysis of the likely dose.calcula-l tions resulting from deeper-than-surface disposal, thereby fail-l J
ing to-provide an adequate basis for the NRC staff's conclusion
~
that deeper-than-surface disposal is safe without engineered bar-t 3'
t riers.
In attempting to just'ify deep disposal.without engineered I
barriers, the NRC used a v7ry -*-
mix of settings, and then.
a picked and chose data that 1/ere not representative of the range of potential conditions.
Dr. Makhijani testified to several a,
f important areas in which distortions or misrepresentation of I
groundwater data could result in the underestimation of the solubility of uranium by tens, thousands, or millions of times.
i Makhijani at 12-13, 14 ; Tr. at 1181-82.
The net effect of the NRC's biased assumptions in regard to sensitive parameters is that the transport of uranium into the human environment may have been misestimated by millions of times, tens of millions of
. times, or even-more.-
CANT PF at 22.
Even where he did not numerically quantify the effects of FEIS errors on the NRC's dose 6'
- Such disposal strategies could cost ten times more than'LES' estimate.- CANT PF at 46.
O L,
. calculations, Dr. Makhijani provided a qualitative evaluation of their effects on the FEIS' dose calculations.
Makhijani at 8, 10, 11, 12, 14, 16.
The Board's extremely brief discussion ignores or dismisses Dr. Makhijani's extensive and detailed criticisms.
LBP-97-3, slip op. at 51-55.
The Board repeatedly states that the NRC Staff's use of data was " reasonable," without addressing Dr. Mak-hijani's specific and detailed concerns about the effects of using selective and nonrepresentative data on the analysiv.
The Board also erred in summarily concluding that no uncertainty analysis was required to support the FEIS' analysis of deep burial.
LBP-97-3, slip op. at 55.
As Dr. Makhijani testified, in failing to permit an uncertainty analysis, the Staff failed to meet the pinimum requirements for sound scientific analysis.
The Board thus erroneously interpreted the term " plausible" to mean
" conceivable" rather than " credible," and shifted the burden of proof from LES and the NRC Staff to the Intervenor.
In short, the Board wrongly accepted a shoddy environmental analysis by the NRC Staff as proof that LES' disposal strategy was safe and " plausible."
The arbitrariness of the Board's deci-sion is best illustrated by the absurd fact that, as Dr. Mak-hijani testified, the dose delivered by a typical drinking water well in soil containing uranium at levels about 100,000 times less than pure depleted uranium is millions of times higher than the dose that the NRC estimates would be received from a well drilled in the vicinity of a depleted uranium disposal site.
Tr.
. at 1182.7 Thus, the NRC's dose calculations are fundamentally incredible, and the Commission should take review.
B.
This Case Raises Important Issues of Law,. Policy and Discretion.
LES' decommissioning cost estimate for DUF6 tails disposal is the first of its kind, and presents questions never before considered by the Commission.
As the NRC recognized at the inception of this proceeding, depleted uranium tails constitute a
" unique" waste form which has never before been disposed of in large quantities.
SECY-91-019, Memorandum from James M. Taylor to the Commissioners re:
Disposition of Depleted Uranium Tails From Enrichment Plants (January 25, 1991), LES Exhibit 3.
Because of their relatively high radioactivity levels, DUF6 tails may not be disposed of safely in a low-level waste facility.
FEIS at 4-67, A-9.
However, no facility for DUF6 tails disposal has ever been sited, characterized, or built.8 Thus, no disposal facilities for DU tails exist, nor are there any current cost figures for disposal of large volumes of tails that could be relied on for a future cost estimate.
Given the lack of ADy previous experience with the disposal of DUF6 tails, and the absence of any regulatory requirements for tails disposal, the Licensing Board's ruling that LES has pre-sented a " plausible" strategy for tails disposal merits review.
This testimony was uncontroverted.
8 Although the U.S.
Department of Energy (" DOE") has accumu-lated aoout 500,000 tons of DU tails at its former enrichment 4
facilities, it lacks any plan or facility for their disposal.
NUREG-1491, Safety Evaluation Report for the Claiborne Enrichment Center at 15-12 (January 1994).
. )
This is especially.true in light of the substantial evidence pre-sented by CANT regarding the abysmal inadequacy of the Staff's technical analysis of LES' disposal strategy.
l Finally, the Commission should take review because the Licensing Board has not made adequate provision to deal with the tremendous uncertainty associated with the disposal of DUF6 tails.
Egg NRC Proposed Findings at 30.
The answer to many-sig-f nificant cost-related questions remain unknown, such as where, how, by whom, and under what standards the tails will be dis-posed.
Thus, the range of potential disposal costs is enormous, potentially increasing by a factor of ten or more above LES' estimate.
Such potentially large increases are far above the inflation-based increases that were anticipated in the Commis-sion's decommissioning funding rule.
Moreover, LES has no practical means of substantially increasing the size of its decommissioning fund if decommission-ing costs prove to be substantially higher than originally estimated.
As discussed in CANT PF at 49-50, LES has no valuable assets that it can convert to decommissioning funds.
- Indeed, once the plant is contaminated, it may become a liability.
More-over, because of the highly competitive nature of the uranium market, LES will have limited flexibility to recover large addi-tional unplanned decommissioning costs through the pricing of enriched uranium.
The only apparent sources of significant addi-t tional decommissioning funding are LES' parent corporations, Urenco, Ltd., Northern States Power, Fluor Corporation, and Duke i
Y
~
10 -
Power Co.
However, despite general statements by LES that these parent corporations have confidence in the CEC project, the parents have deliberately shielded themselves from any of the risks that go with the privilege of operating the CEC, such as paying for increases in the tails disposal costs that are beyond the means of their subsidiary.
As discussed in the preamble to the decommissioning funding rule, the commission holds licensees fully responsible for the costs of decommissioning their facilities, including costs that go beyond the amount set aside in the decommissioning funds.
Egg CANT PF at 3, citina 53 Fed. Reg. 24,018, 24,036 (June 27, 1988)
It would make a mockery of this requirement if the NRC issued a license to LES, which does.not have the resources to compensate for the potentially large increases in decommissioning costs that it can be expected to incur, and which in fact was ournosefully structured to have limited assets and no access to the assets of the parent corporations for whose sole benefit it was created.9 The Commission should not repeat the errors of the sequoyah Fuels debacle.
Rather, it should explicitly require that before the CEC can be licensed, LES' parent corporations must accept liability for the decommissioning debts of their offspring.
9 Nor is it reasonable to presume that the NRC will be able to hold LES' non-licensee parent corporations liable for decom-missioning funds if at some time in the future these costs exceed LES' ability to pay them. Egg, e.a.,
Secuovah Fuels C.o r p. (Gore, Oklahoma Site Decontamination and Decommission-ing Funding), LBP-94-17, 39 NRC 359, (1994), interlocutory review denied, CLI-94-11, 40 NRC 55 (1994) (holding that Com-mission's jurisdiction to demand decommissioning funding from non-licensee parent was an issue of "first impression" that depends in part on the factual nature of the relationship between the parent and the subsidiary licensee.
. v.
....~ -.,,,.,
.. ~.
, :i 11.-
i
. i
- II.
. CONCLUSION-
- -Fornthe-foregoing reasons,'the Petition-for Review should be
'l
.l
- granted..
t
.\\
Respectfully submitted,1 p' %
i LDiane Curran
-Harmon, Curran, & Spielberg" 2001~"S" Street N.W.
Suite 430 Washington, D.C.
20009'
!a (202) 328-3500 t
& jf, A$lW C
Nathalie M. Walker Sierra' Club Legal Defense Fund-l 400 Magazine Street, Suite 401
'New Orleans, LA' 70130
.(504) 522-1394 i
)
.i May 8, 1997-J
,.f i-s 4
)
e f
' \\
y 9
RI