ML20148G619

NRC Staff Answer to Applicant & Intervenor Petition for Review of LBP-97-3.* Staff Supports LES Petition for Commission Review of LBP-97-3.Citizen Against Nuclear Trash Petition Should Be Denied.W/Certificate of Svc

ML20148G619
Person / Time
Site:	Claiborne
Issue date:	05/23/1997
From:	Bachmann R, Holler E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#297-18328 LBP-97-03, LBP-97-3, ML, NUDOCS 9706060068
Download: ML20148G619 (10)

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UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION W MAY 23 P1 :46 l BEFORE THE COMMISSION OFFICE OF SECRETARY 00CKETlHG & SERVICE BRANCH In the Matter of )

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i Louisiana Energy Services, L.P. .) Docket No. 70-3070-ML j

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i NRC STAFF'S ANSWER TO l l

APPLICANT'S AND INTERVENOR'S PETITIONS FOR REVIEW OF LBP-97-3'  !

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l l Richard G, Bachmann Eugene Holler  !

Counsel for NRC Staff I May 23,1997  :

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May 23,1997 >

UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION l I

In the Matter of )

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LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070-ML

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NRC STAFF'S ANSWER TO APPLICANT'S AND INTERVENOR'S PETITIONS FOR REVIEW OF LBP-97-3 INTRODUCTION Pursuant to 10 C.F.R. s 2.786 of the Commission's regulations, the staff of the Nuclear i I

Regulatory Commission (Staff) hereby answers the petitions for Commission review of Louisiana  !

Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-3, 45 NRC (March 7,1997) filed by Applicant Louisiana Energy Services, L.P. (LES) and Intervenor Citizens Against Nuclear Trash (CANT).2 For the reasons set for*.h below, the Staff supports the LES Petition and I

opposes the CANT Petition, i l

! 3 Petition of Applicant Louisiana Energy Services for Commission Review of LBP-97-3, dated May 9,1997, (LES Petition) and Citizens Against Nuclear Trash's Petition for Partial Review of LBP-97-3, dated May 8,1997, (CANT Petition). On May 19,1997, CANT filed " Citizens Against Nuclear Trash's Opposition to Louisiana Energy Services' Petition for Commission l Review of LBP-97-3." l

BACKGROUND In this combined constmetion permit-operating license proceeding, LES seeks a 30-year license to possess and use byproduct and source materials, and special nuclear material (SNM),

to enrich uranium using a gas centrifuge process at the proposed Claiborne Enrichment Center (CEC) to be constructed in Claibome Parish, Louisiana. CANT opposes issuance of the license I

and, after establishing standing and proposing several admissible contentions, was granted leave to intervene and admitted as a party to the proceeding. On March 7,1997, the Board issued a partial initial decision, LBP-97-3, resolving Contentions B and J.3.2 The Board sustained the contentions to the extent that, in the Board's view, LES's cost estimate for the conversion of DUF 6to U 0,3 was not a reasonable one given LES"s failure to include the costs of neutralizing ,

the conversion process byproduct hydrofluoric acid. LBP-97-3, slip op. at 59-60.

2 This was the third of four partial initial decisions in this proceeding. In hs first partial initial decision, the Board resolved three safety contentions in favor of the Applicant. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-96-7, 43 NRC 142 (1996); petition for review grantedin part and denied in part, CLI-96-8, 44 NRC 107 (1996); motionforpartial reconsideration denied, CLI-97-2, 45 NRC 3 (1997). In its second partial initial decision, resolving Contentions J.4 and K, dealing with LES's environmental report (ER), the Board concluded that the Staff's treatment of the need for the facility and the no-action alternative in the final environmental impact statement (FEIS) is inadequate. Louisiana Energy Services, L.P.

(Claiborne Enrichment Center), LBP-96-25,44 NRC 331,404 (1996). The Board also sustained Contention Q which challenged LES's financial qualifications to construct the CEC. Id. In response to petitions filed by LES and the Staff, the Commission has taken review of LBP-96-25.

In its fourth partial initial decision, resolving Contention J.9, which the Board styled the Final Initial Decision, the Board sustained the contention and denied the Applicant's request for a construction and operating license, without prejudice to the Applicant amending the license application. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-8, 45 NRC (May 1,1997). The time within which parties may petition for review of LBP-97-8 has not expired yet.

. DISCUSSION A. Standard for Commission Review A petition for review must raise at least one of the following kinds of substantial questions to merit Commission consideration:

(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii) A substantial and important question of law, policy or discretion has been raised; (iv) The conduct of the proceeding involved a prejudicial procedural error; or (v) Any other consideration which the Commission may deem to be in the public interest.

10 C.F.R. 5 2.786(b)(4); Babcock and Wilcox Co. (Pennsylvania Nuclear Service Operations, Parks Township, Pennsylvania), CLI-95-4,41 NRC 248, 250-251 (1995). A pany not aggricved by the result reached on an issue is precluded from taking an independent appeal of the result. j Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-282,2 NRC 9,10 n.1 (1975). A pany not aggrieved by the result, but not in agreement with some of the findings of fact or conclusions of law contained in the imtial decision is limited to challenging all of these findings or conclusions in defending the result should it be challenged by another pany. Id. The prevailing pany is free to urge any ground in defending the result, including grounds rejected by the Board. Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347,357 (1975).

B. CANT's Petition for Review Should be denied on Procedural Grounds.

Although content with the Board's decision that LES's cost estimate for the conversion of DUF to U 0,3 was not a reasonable one, CANT seeks review of other pans of the Board's

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-4 decisionin LBP-97-3. CANT Petition at 1. CANT seeks review of the those parts of the Board's decision in LBP-97-3 approving the other aspects of LES's cost estimate for the disposition of depleted uranium hexafluoride tails from the CEC. Id. at 1-2.

CANT is the prevailing party in the Board's decision resolving Contentions B and J.3.

As such, CANT may not appeal the decision. Midland,2 NRC at 10 n.1. CANT may, however, raise any disagreement with the Board's findings of fact and conclusions of law in defending an appeal of the Board's decision, if review is granted. Nine Mile Point,1 NRC at 357. CANT argues that it is an " aggrieved party" because of subsequent events that may or may not occur.

The events CANT cites as supporting CANT's status as "an aggrieved party" are a successful appeal of the Board's decisions by LES and/or an amendment of the license application to conform with the Board's partial initial decisions.3 Petition at I n.2. The fact that the Commission may take review of one of the Board's partial initial decisions does not support CANT's claim to be an aggrieved party. In a review taken by the Commission of any of the Board's partial initial decisions, CANT will have the opportunity to urge, on appeal, any grounds supported by the record in defending the result of the Board's decision, including those rejected by the Board. Nine Mile Point,1 NRC at 357. Thus, if the Commission grants LES's petition for review of LBP 3, regarding disposal costs, CANT would have the opportuuy to argue that the Board wrongly decided the plausibility of the disposal plan.

3 In its fourth partial initial decision, the Final Initial Decision, the Board denied the requested license without prejudice to LES amending its license application "in accordance with the Partial Initial Decisions in this proceeding." LBP-97-8, slip op. at 90. See supra note 2 for a summary of the Board's partial initial decisions.

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• l t i i Also, the chance that LES might amend its application to conform with the partial initial

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- decisions in this proceeding does not make CANT a.1 aggrieved party. Before issuance of its final  !

L l initial decision, LBP-97-8, the Board had at least two choices regarding the issuance of a license.

[ i It could deny the application and thereby relinquishjurisdiction over the proceeding, or, it could  !

inform the parties of its findings on the various issues and provide for further proceedings before the Board to cure any adverse finding preventing the grant of a license. See Commonwealth l Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770,19 NRC .1163,1166., The l Board chose to deny the license.* LBP-97-8, slip op. at 90. Thus, CANT will have the  !

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opportunity to petition the body with jurisdiction over this. matter for review or for reconsideration, as appropriate,'if LES submits an amended license application. l t

. CANT's arguments should be rejected as speculative. The prohibitionof a party appealirs >

a decision in which it has prevailed conserves resources and avoids the litigation of matters not l I

in controversy. Toleds Edison Co. (Davis Besse Nuclear Power Station), ALAB-157, l 6 AEC 858,859 (1973). Allowing a part- _ j to appeal an initial decision in which it has prevailed 'l on the speculation that the reason underlying the decision may be cured in the future would render  !

meaningless this sound judicial principle. Accordingly, CANT's petition for review of LBP-97-3 l should be rejected. .

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d In ConsolidatedEdison Co. ofNew York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC -[

947 (1974), the Commission stated that a " Board could choose to authorize issuance of a license-- l with the deficiencies to be subsequently cured under the scrutiny of the Director of Regulation"  !'

in those instances in which the Licensing Board is able to make the findings requisite to issuance of the license. Id. at 951 n.8. In the instant proceeding,- however, the Board was not able to i make the findings requisite to issuance of the CEC license and this option was not available.

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C. T M's Petition for Review Should Be Granted.  !

I The Staffis of the view, however, that Commission review of LBP-97-3 should be granted t i 2

for the reasons stated in the LES Petition. LES seeks review of the Board's decision in LBP-97-3 l

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) that found LES's cost estimate deficient because it does not include the cost of neutralizing .

t hydrofluoric acid produced as a byproduct of the tails conversion process. LES Petition at 1-2.

i i The Staff agrees with LES that the law governing this proceedmg requires that LES need provide

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4 only a " plausible strategy" for conversion of depleted uranium hexafluoride tails to depleted U3 0s.

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LES Petition at 4. For the reasons stated by LES in its Petition, such plausible strategy need not i-

!. include neutralizing hydrofluoric acid. Id. at 4-5. Accordingly, the Staff agrees that the Board

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} . wrongly applied the established law governing this proceeding when it,found that the plausible 4

l disposal strategy for depleted uranium hexafluoride tails must include the cost of neutralizing i

hydrofluoric acid. The Board's result rests on the application of a less demanding standard to the i

overall plan - a plausible strategy - and a more rigorous standard - evidence of a sufficient market I for hydrofluoric acid - to one part of the overall plan. The Staff, therefore, agrees with LES that f

the Board's finding is not reasonable because it is based o' n the application of a standard to one a

part of the disposal plan that exceeds the standard the Commission requires to be applied to the whole disposal plan. Id. at 8-9.

The Staff further agrees with LES that the Board's decision is not consistent witil the resolution of this same issue, the conversion cost estimate, found acceptable by the agency in the -

certification of the United States Enrichment Corporation's (USEC's) operation of its gaseous )

.i diffusionuranium enrichment plants.' LES Petition at 9-10. Thus, LES has demonstrated that the Board's initial decision is not in accordance with the past practice of the agency without any J

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explanation for the change in direction or explanation for the different treatment of USEC and LES regarding cost estimates for depleted uranium tails disposal. Louisiana Energy Services, L.P.

(Claiborne Enrichment Center), LBP-96-25,44 NRC 331, 375 (1996), citing Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 291 (1st Cir.1995). Accordingly, a substantial question exists meriting Commission review pursuant to 10 C.F.R. 6 2.786(b)(4)(ii). l 1

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CONCLIR QR )

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For the reasons provided by LES, the Staff supports the LES Petition for Commission Review of LBP-97-3. For the reasons discussed above, the CANT Petition for Review of LBP-97-3 should be denied.

Respectfully submitted, J

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Richard G. Bachmann Counsel for NRC Staff 1

Eugen Holler Counsel for NRC Staff 1

Dated at Rockville, Maryland

this 23rd day of May,1997  !

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. Doexeno l UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION E i NAY 2 31997 n

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BEFORE THE COMMISSION k c "sYcVNc" " @

'N- J In the Matter of ) x ,

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LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070-ML

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(Claiborne Enrichment Center) .)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO APPLICANT'S AND INTERVENOR'S PETITIONS FOR REVIEW OF LBP-97-3" in the above captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's internal mail system, or by deposit in the United States mail, first class, as' indicated by an asterisk, this 23rd day of May,1997:

' Office of the Secretary (16) Richard F. Cole ATTN: Rulemakings and Adjudications Administrative Judge Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l Thomas S. Moore, Chairman Frederick J. Shon Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear. Regulatory Commission U.S. Nuclear Regulatory Com;nission Washington, DC 20555 Washington, DC 20555 Mr. Ronald Wascom* J. Michael McGarry, III, Esq.*

Deputy Assistant Secretary Winston & Strawn Office of Air Quality & 1400 L Street, N.W.

Radiation Protection Washington, DC 20005 P.O. Box 82135 Baton Rouge, LA 70884-2135 Robert G. Morgan

• Roland J. Jensen*  ;

Duke Engineering & Services, Inc. Louisiana Energy Services, L.P. l P.O. Box 1004 2600 Virginia Avenue, N.W.  !

Charlotte, NC 28201-1004 Suite 608 Washington, DC 20037

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Marcus A. Rowden, Esq.* Office of the Commission Appellate i Fried, Frank, Harris Adjudication Shriver & Jacobsen Mail Stop: 16-G-15 OWFN 1101 Pennsylvania Avenue, N.W. U.S. Nuclear Regulatory Commission 4 Suite 900 South Washington, DC 20555 Washington, DC 20004 )

Atomic Safety and Licensing Board Nathalie M. Walker, Esq.*

Panel Sierra Club legal Defense Fund U.S. Nuclear Regulatory Commission 400 Magazine Street, Ste. 401 Washington, DC 20555 New Orleans, LA 70130

. Diane Curran, Esq.* Joseph DiStefano, Esq.*

Harmon, Curran, & Spielberg Urenco Investments, Inc.

2001 S Street, N.W., Suite 430 Suite 610 Washington, D.C. 20009-1125 2600 Virginia Ave., N.W. 1 i

Washington, DC 20037 David S. Bailey, Esq.*

, Thomas J. Henderson, Esq.

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Lawyers' Committee for Civil Rights Under Law 1450 G Street N.W., Ste. 400 Washington, DC 20005 ,

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1 EugenS Holler Counsel for NRC Staff