ML20141C710
| ML20141C710 | |
| 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-#297-18308 ML, NUDOCS 9705190170 | |
| Download: ML20141C710 (13) | |
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UNITED STATES OF AMERICA DOCKETED llSHRC BEFORE THE NUCLEAR REGULATORY COMMISSION
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97 MAY -9 P3 :16 In the Matter of.
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h Louisiana Energy Services Docke
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May U,
.!T9 BRANCH (Claiborne Enrichment Center)
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CITIZENS AGAINST NUCLEAR TRASH'S PETITION FOR REVIEW OF ORDER DENYING CANT'S WAIVER PmnON I.
INTRODUCTION Pursuant to 10 C.F.R. 5 2.786(b), Citizens Against Nuclear
~ Trash (" CANT") hereby petitions the Commission for review of a decision by the Licensing Board to reject 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 Deple,ted Uranium Tails as Greater Than Class C Radioactive Waste (January 17, 1995) (hereinafter " Waiver i
Petition").1 Contrary to the Memorandum and Order, CANT's waiver i
petition presents a significant safety issue, previously unaddressed by the commission in any case or rulemaking.
The petition demonstrates that continued application of the existing waste regulations to the unique form and quantity of radioactive vaste to be generated by the proposed Claiborne Enrichment Center
(" CEC") would severely undermine the purposes of the NRC's waste 1
Memorandum and Order (Ruling on Intervenors' Petition to Waive Certain Regulations) (March 3, 1995) (hereinafter
" Memorandum and Order").
CANT sought review of the Memorandum and Order at the time it was issued, but the Com-mission denied review on the ground that it was inter-locutory.
Now that the Board has issued its Final Initial Decision, LBP-97-8 (May 1, 1997), CANT's Petition for Review is ripe for review.
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. disposal and decommissioning. funding regulations, and threaten public health and safety.
Accordingly, the commission should take review of the Board's decision.
II.
FACTUAL BACKGROUND A.
Regulatory Framework NRC regulation 10 C.F.R. S 61.55(a) establishes a four-tier classification system for radioactive waste other than high-level wasta and uranium and thorium mill tailings:
Class A, B, and C, and Greater Than Class C ("GTCC"), depending on the amount of radioactivity per unit of mass or volume, i.e.,
its specific j
activity.2 Under a catch-all provision in 10 C.F.R.
S 1
61.55(a) (6), radioactive waste whose constituents are not specif-ically addressed in this classification scheme is automatically
. classified as Class A, the least stringent of the Commission's waste classifications.
Because the Commission has established no waste classification for uranium, the d'nleted uranium tails to be produced by the CEC fall into this caten-all category, and thus are classified as Class A low-level waste.
2 Class A waste has the lowest concentration of radioactivity, while GTCC waste has the hightst.
Table 1 of 10 C.F.R. S 61.55(a) (3) sets forth, for certain long-lived radionuclides, the maximum concentration limits for Class A, B, and C low-level radioactive waste.
Similarly, Table 2 sets forth maxi-mum concentration limits for Class A, B, and C waste for short-lived radionuclides. The limits in Tables 1 and 2 apply, if only the particular element (or set of elements) for which a limit is set is present.
If more than one element, or set of elements, is present, the limit for each is lower.
If the concentration of any of the radionuclides listed in Tables 1 and 2 is above the concentration limit for class C, then the waste'is classified as GTCC.
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. The. classification of radioactive waste determines the type of disposal measures that will be required, with higher con-centrations of radioactivity requiring more stringent disposal methods.
Thus, Class A, B, and C waste may be disposed of in i
near-surface facilities licensed by the NRC.
For Class A or B l
low-level waste, the NRC requires that the protection from i
intruders be effective for 100 years; and 500 years for Class C wasta.
In contrast,.GTCC waste must be buried in licensed geologic repositories unless the Commission specifically approves i
an alternative disposal site.
10 C.F.R. S 61.55 (a) (2) (iv).
4 These geologic repositories must provide for protection of the vaste for at least 10,000 years.
Id., 10 C.F.R.
$ 60.112, 40 C.F.R. S 191.13(a).
B.
Proposed Claiborne Enrir-himerit Center If licensed, the proposed Claiborne Enrichment Center
(" CEC") would generate an enormous quantity -- approximately 120,000 tons -- of radioactive waste, in the form of depleted uranium hexafluoride ("DUF6) tails.
Pursuant to 10 C.F.R. 5 70.25, the Applicant is required to submit a decommissioning cost estimate, based on a " plausible strategy" for disposal of these tails.
Egg Memorandum and Order at 19, note 23.
The NRC staff has determined that burial of the tails in a shallow land facil-ity, as permitted for Class A waste, would violate the NRC's Part a
61 performance standards; accordingly, the Applicant has pro-posed, with the staff's approval, to convert the tails to about i
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91,000 tons of DU308 and bury them in a. deeper-than-surface
' facility such as an' abandoned mine.
3.g3 NUREG-1484, Final Environmental Impact Statement at 4-66 (1994).
The Applicant's cost estimate for-tails conversion and disposal is $485.3 mil-i lion,. including approximately $1 per kilogram for actual tails disposal.
This estimate is based on a study of Class A low-level
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waste disposal, which the Applicant presumes will be slightly more expensive than its proposal for deeper-than-surface burial.3 c.
CMrr's Wasta classification Petition 2
On January 17, 1995, CANT filed a petition seeking reclas-1 sification of the depleted uranium tails as GTCC waste.
The Waiver Petition demonstrated that classification of the tails as 1
Class A waste is inappropriate, and that depleted uranium is most closely comparable in its radiological characteristics to GTCC i
i transuranic ("TRU") wasta.
Like GTCC TRU waste, depleted uranium
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is alpha-emitting, has a half-life greater than five years, and has a specific activity of more than 100 nanccuries per gram
("nci/g"), which is the threshold limit for GTCC TRU waste.
In the form of U30s, the specific activity of depleted uranium is approximately 300 nci/g, thirty times the limit for specific activity in Class A TRU waste, and three times the threshold specific activity for classification as GTCC TRU wasta.
As discussed in CANT's Waiver Petition, the inappropriate classification of the tails completely undermines the purpose of 3
Martin Marietta, The Ultimate Disposition of Depleted Uranium at 17-(December 1990).
. l 10 C.F.R..Part 61, to ensure that radioactive waste is disposed i
'of in a manner that is adequate to protect public health and the environment.from radioactive releases.
It also undermines the J
purpose of 10 C.F.R. S 70.25, to ensure that license applicants l
set aside sufficient. funds for decommissioning of their facilities.
If the tails are appropriately classified as GTCC waste, they must be presumed to be disposed of in a licensed geologic repository, unless the Applicant identifies a specific, acceptable, alternative site.
The cost of disposal in a Part 60 repository could be ten times higher than the decommissioning cost now being estimated by the Applicant.
Thus, if the tails are misclassified, the Applicant may not set aside enough money to dispose ~of them safely.'
III.
THE LICENSING BOARD ERRED IN DENYING CANT'S PETITION.
Pursuant to 10 C.F.R. S 2.758, the " sole ground" for a waiver petition "shall be that special circumstances with respect to the subject matter.
. are such that application of the rule would not serve the purpose for which the rule or regula-j tion was adopted."
The Licensing Board erred in finding that i
CANT did not meet this standard.
i A.
Special Circumstances Exist in This Case.
The Board correctly found that the Commission did not pre-viously consider the appropriate' classification of depleted uranium tails.
Memorandum and Order at 1d-12.
This, by itself, is sufficient to demonstrate the existance of special circum-j
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.6-stances.4 However, the Board went on to conclude that CANT had
'not established "special circumstances" because "the Part'.61 regulatory scheme.is intended to accommodate all manner of wistes as long as the disposal meets the performance objectives of Sub-part c."
Memorandum 'and order at 10-12.
The Board's ruling is wrong on a number of counts.
- First, contrary to standard principles of statutory and regulatory interpretation, the Board read the classification scheme right out of the regulations in Part 61.
As discussed in Section B below, the classification scheme has purposes which are undercut by application of the rule in this instance.
Second, there is no basis for the Board's speculative assertion that in promulgating Part 61, the Commission dee'med the Part 61 performance criteria i
sufficient to cover "all manner" of radioactive wastes, regard-less of type, quantity, ce c.ancentration.
To the contrary, the Commission carefully considered the types of radioactive waste under its authority, and established a classification for all such waste that was generated in significant volume.
Depleted uranium was excluded because it was produced in large quantities i
only by government-owned enrichment facilities which were not 1
subject to NRC regulation.
Egg Memorandum and Order at 11.
Finally, the history of this proceeding demonstrates that from the outset, the NRC has considered the issue of the " proper waste i
t 4:
3g3 Public Service connany of New Mannshire (Seabrook Sta-4 tion, Units 1 and 2), CLI-88-10, 28 NRC 573, 597 (1988).
1 i
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. classification" of the depleted uranium tails to be an open ques-tion. relevant to the identification of " plausible strategies" for tails disposal.5 Accordingly, not only did the Commission fail to explicitly consider the issue of depleted uranium waste clas-sification in the Part 61 rulemaking, but it anticipated that the issue would be addressed in this proceeding.
4 B.
Application of the Regulations Undercuts Their Purpose.
The Board also erred in concluding that the purpose of Part 61, protection of the public from inadvertent releases of radioactivity, is not undermined by classification of the depleted uranium tails as class A waste, because vaste classifi-cation is essentially irrelevant and unnecessary to compliance with Part 61.
Memorandum ind Order at 13-16.
Contrary to the Board's holding, the classification scheme is both relevant and necessary to the safety of waste disposal in two major respects.
First, appropriate classification of the tails is necessary in order to determine whether the performance standards in Part 61 apply at all, or whether instead the tails should be subject to the much more stringent performance requirements for geologic repositories, found in Part 60.
The standards in Part 61 are intended to maintain the integrity of low-level waste disposal sites for'a period of several hundred years, after which low-5 Notice of Receipt of Application for License, 56 Fed. Reg.
23,310, 23,313 (May 21, 1991), citing SECY-91-019, Memorandum from James M. Taylor to the Commissioners re:
Disposition of Depleted Uranium Tails From Enrichment Plants at 1, 4 (Janu-ary 25, 1991).
i 8.-
. level waste will have decayed to a level that no longer poses a significant threat.
47 Fed. Reg. 57,446, 57,452, Col. 3 (Decem-ber 27, 1982).
However, the Commission has recognized that these standards may not be effective or appropriate for waste contain-ing'relatively high concentrations of long-lived isotopes; thus, Part 61 " limits the initial concentrations of these radionuclides i
to values that will be acceptable after several.hundred years when the intrusion protection measures are not considered to be
. effective."
Id. (emphasis added).
The question in this waiver proceeding, which the Board has ignored, is whether the con-4 l
centration of radioactivity in the CEC tails ~is higher than the 4
i level which the Commission considers acceptable after a period of a few hundred years --
i.e.', whether it is appropriately clas i
sified as GTCC radioactive waste.
In such cases, the NRC presumptively requires waste disposal measures to meet the much j
more stringent performance objectives 'and requirements of Part j
60, involving isolation from the environment for 10.000 years, l
"unless proposals for disposal of such waste in a disposal site
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licensed pursuant to this part are approved by the Commission."
10 C.F.R. 5 -61.55 (a) (2) (iv), 10 C.F.R. S 60.112, 40 C.F.R. S 191.13.
Accordingly, contrary to the Board's Memorandum and Order, application of the Part 61 performance criteria cannot, by itself, substitute for the appropriate classification of the
. depleted uranium tails.
Second, appropriate classification of,the tails is necessary in order to establish the appropriate presumption for purposes of i
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decommissioning cost estimates.
In promulgating Part 61, the l
- Commission expressly refused to presume that burial of GTCC l
radioactive waste in " intermediate" disposal facilities (i.e.,
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deeper than shallow land burial, as has been proposed in this case)f,-is.a plausible disposal strategy.
Rather, because it' l
' lacked confidence that such: facilities would ever income avail-1 able, or that they would-be effective if they were available, the
- Commission took the " alternative, technically conservative" approach of requiring that radioactive waste for which such i
' " intermediate" disposal methods might be considered must be put l
in a deep geologic repository, unless a soecific alternative dis-posal site were approved.
53 Fed. Reg. 17,709, 17,710 (May 18, 1988).
Egg Ala2 citations'in CANT's Waiver Petition at 21-23.
Accordingly, if the CEC tails were properly classified, the Applicant could no longer presume, based on a generic analysis, that'the CEC tails could be disposed of safely in an "intermedi-ate" burial site.
Instead, it would have to adhere to the Com-l~
mission's p::esumption that the waste would be disposed of in a licensed geologic repository, unless the Applicant were to identify and demonstrate the suitability of a specific disposal I
site.
As d.Lscussed above, this change in presumptions would l
greatly affect the amount of decommissioning funds'that the' Applicant would have to set aside.
Clearly, a gross' deficiency in decommissioning funds, based on generic wasta disposal t
strategy deemed implausible by the commission, could have a J
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, tremendous. impact on the safety of decommissioning the CEC.
The Board's decision' failed entirely to address this issue.6
' CONCLUSION 4
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For the foregoing reasons, the Commission should take review
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I of the Licensing Board's decision to deny CANT's Waiver Petition.
2.
6 In addressing the safety significance of the issues raised in i
CANT's Waiver Petition, the Board also arred in dismissing the comparability of depleted ~ uranium tails with GTCC TRU l
l wasta.
333 Memorandum and Order at'20-21.
Of the several i
aspects of comparability addressed in CANT's Waiver Petition, the Board responded specifically to only one:
their compara-tive radioactivity.
In rejecting CANT's petition, the Board
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erroneously compared the radioactivity of elemental i
. transuranic radionuclides with that of elemental depleted uranium.
Such a comparison is irrelevant for purposes of determining appropriate radioactive waste classifications.
Rather, as discussed in CANT'.s Waiver Petition at 17, note 11, it is necessary to compare TRU waste with depleted uranium vaste.
In TRU waste, transuranic radioactive materials are typically mixed with large quantities of.aon-radioactive materials.
As a result, for example, even though
.the specific activity of one gram of pure plutonium is 63,000,000 nCi/g, the specific activity of the TRU waste which contains it may be significantly lower as a result of l
dilution by nonradioactive materials.
In comparison, elemen-tal depleted uranium has a lower specific activity in pure 1
form (i.e., 380 nCi/g), but even when it is converted to a different chemical form by reacting it with a non-radioactive l
l element such as oxygen, its weight is still dominated by a
Thus, U308 has a specific activity of 300 nCi/g, which is three times the threshold level for GTCC waste con-taining only transuranic elements.
]
With respect to the other characteristics in which depleted
.. uranium and GTCC TRU are comparable, the Licensing Board was 1
arbitrary and capricious in failing to address CANT's argu-ments at all, other than to vaguely state that they had been rebutted by Applicant and staff.
The Memorandum and Order
'provides no explanation as ' to why the Board rejected CANT's assertions in its Waiver Petition, or the statements made in CANT's expert's reply affidavits.
333 CANT's Reply to NRC Staff's Opposition to CANT's Waiver Petition (February 21, 1995), and CANT's Reply to Louisiana Energy Services' Opposi-tion to CANT's Waiver Petition (February 10, 1995).
- Thus, the Board's decision should be reversed.
- i spectf ly submitted, Diane Curran Harmon, Curran, & Spielberg
[
2001 "S" Street N.W.
t Suite 430 Washington, D.C.
20009
.t (202) 328-3500 N N. h N Nathalie M. Walker Sierra Club Legal Defense Fund 400 Magazine Street, Suite 401 New Orleans, LA 70130 (504) 522-1394 May 8, 1997 i
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.1 CERTIFICATE OF SERVICE DOCKETED I,
Diane Curran,~ certify _that on May 8, 1
, copies of-the foregoing CITIZENS.AGAINST NUCLEAR TRASH'S. PETITION FOR REVIEW OF
~
LBP-97-3 AND CITIZENS AGAINST NUCLEAR TRASW SMTpdJt)$0R REVIEW OF ORDER DENYING CANT'S WAIVER PETITION were served by by first-class mail on the following parties:
OFFICE 0F SECRETARY psfYeB~ Adjudication Thomas S. Moore, Chairman MfEE&ti e
Atomic Safety and Licensing Board U.S.
NWd Regulatory Comm.
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Richard-F. Cole Peter G.
LeRoy
~ Atomic Safety and Licensing Board Duke Engineering U.S. Nuclear Regulatory Commission 230 South Tron Street 3'
Washington, D.C.. 20555 P.O. Box 1004 Charlotte, NC 28201-1004
]
Frederick-J. Shon 3
fAtomic Safety and Licensing Board W.H. Arnold,-President _
l U.S. Nuclear Regulatory Commission LES, L.P.
Washington,'D.C.
20555 2600 Virginia Ave.
N.W.,
Suite 608
?
Docketing and Service Washington, D.C.
20037 Office of.the Secretary U.S. Nuclear Regulatory Commission Nathalie M. Walker, Esq.
Washington, D.C.
20555 SCLDF 400' Magazine St.,
Suite 401 i
New Orleans, LA 70130-Eugene Holler, Esq.
- Office of' General Counsel
.Marcus A. Rowden, Esq.
U.S. Nuclear Regulatory Commission Fried, Frank, Harris, etc.
Washington, D.C.
20555 1101 Pennsylvania Av.
N.W.,
Suite 900S Washington, D.C.
20004 J. Michael McGarry, III, Esq.
David S.
Bailey, Esq.
Robert L.
Draper, Esq.
Thomas J.
Henderson, Esq.
Winston & Strawn Lawyers' Committee for Civil 1400 L Street N.W.
Rights Under Law Washington, D.C.
20005-3502 1450 G Street N.W.,
Suite 400 Washington, D.C.
Ronald.Wascom, Deputy Asst. Secretary Office of Air Quality &^ Radiation Protection Department of Environmental Quality P.O.
Box 82135 Baton Rouge, LA 70884
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o Shirley Ann Jackson, Chairman U.S. Nuclear-Regulatory Commission Washington, D.C.
20595 Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
2055,5 Greta J. Dicus, Commissioner U.S. Nuclear Regulatory Commission
-Washington, D.C.
20555 Nils J. Diaz, Commissioner 10.S.' Nuclear Regulatory Commission Washington, D.C.
20555 Edward McGaffigan, Jr., Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Diane Curran l
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