ML20148G674
| ML20148G674 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 05/23/1997 |
| From: | Mcgarry J, Rowden M FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#297-18327 ML, NUDOCS 9706060079 | |
| Download: ML20148G674 (10) | |
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a UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION D
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BEFORE THE COMMISSION MAY 2 31997
'm DOCKETNG &
SERVICE BRANCH G
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6 In the Matter of
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Docket No. 70-3070-ML
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LOUISIANA ENERGY SERVICES, L.P. )
May 23,1997 l
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(Claiborne Enrichment Center)
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~1 OPPOSITION OF APPLICANT LOUISIANA ENERGY SERVICES TO INTERVENOR'S PETITION FOR REVIEW OF ORDER DENYING ITS WAIVER PETITION Introduction Intervencr Citizens Against Nuclear Trash (" CANT") has petitioned the Commission for review of a decision by the Licensing Board rejecting CANT's petition for a waiver of 10 C.F.R.
{ 61.55(a)(3) and (6). On January 17,1995, CANT filed a petition pursuant to 10 CFR 2.758 to waive the waste classification provisions of there regulations for this licensing proceeding. On March 2,1995, the Licensing Board denied the petition. Sgg Memorandum and Order (Ruling on Intervenor's Petition To Waive Certair Regulations), Docket No. 70-3070-ML (March 2,1995).
The petition asks that the depleted uranium tails to be produced by applicant Louisiana Energy Services, L.P. ("LES") at its Claiborne Enrichment Center (" CEC") be classified as Greater Than Class C ("GTCC") waste pfg 10 C.F.R. 61.55(a)(3). Depleted uranium resulting fiom CEC operations does not contain any radionuclides listed in Tables 1 and 2 of { 61.55(a)(3) and, consistent with { 61.55(a)(6), is therefore classified as Class A waste. CANT petitions for a waiver such that the waste will be reclassified as GTCC waste.
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The Licensing Board correctly ruled that CANT had not satisfied any of the three factors necessary for grant of a waiver:
CANT failed to prove "special circumstances" with respect to disposal of CEC e
depicted uranium tails under the rules governing this proceeding, "because Pan 61 establishes a broad regulatory scheme for the land disposal of radioactive waste other than dispowl in a geologic repository," which scheme "is intended to accommodate all manner of waste as long as the disposal meets the performance objectives of Subpart C" of Part 61. Memorandum and Order at 12.
CANT failed to establish that the purpose of the regulations at issue would be undercut by the classification of depleted uranium tails as Class A waste inasmuch as the " enrichment tails cannot be disposed of pursuant to Part 61 unless the performance objectives of Subpart C are met." M. at 15. Contrary to CANT's claim, the " mere classification" of LES uranium tails as Class A waste "does not guarantee.. that the waste can be disposed in a near-surface facility." M. at 16.
The waiver is not necessary to address a "significant safety proble.d' because, as e
shown by the expert affiants of LES and the NRC Staff, CANT misunderstands and vastly exaggerates the potential hazards associated with depleted uranium. CANT erroneously compares tails disposal to hazards arising from the disposal of GTCC transuranic waste. M. at 20.
In sum, the petition for review is a convoluted and ultimately futile attempt to show that the mere classification of LES's uranium tails has independent safety significance. As the Board aptly demonstrated, waste classification under Part 61 is merely a regulatory tool, and does not permit the licensing of any disposal methodology that would not adequately assure public health and safety as well as protect the environment. In fact, not until the final page of the petition does one find, buried in a lengthy footnote, so much as an allegation of any safety concem. Here, the Board correctly ruled that the NRC Staff and LES's enperts have refuted "the linchpin" ofCANT's claim "an assymetrical comparison.. between depleted uranium and the concentration oflong-lived transuranic waste.
M. at 20. Having failed to satisfy any of the three Commission requirements for granting a waiver of a regulation, CANT's petition should be denied.
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Arcument L
The petition is an untimely, collateral attack on the Commission's Hearing Order in 1991.
When the Commission defined the governing regulatory criteria for this proceeding in 1991, it explicitly stated that specified regulations, Part 61 among them,"are to be applied according to lhe_ir terms " 56 Fed. Reg 23310,23313 (1991)(emphasis added). The Commission explicitly stated that governing regulations " require that the applicant address the technical, financial, and insurance provisions and resources for dealing with the disposition of depleted uranium hexafluoride i
tails." Id. Moreover, SECY-91-019, to which the Hearing Order refers, stated that "DUF tails are 6
Class A waste" and "can be disposed of as LLW waste under the requirements of 10 CFR Part 61."
]
SECY-91-019, Disposition of Depleted Uranium Tails from Enrichment Plants, Enclosure at 4-5.
CANT, like others, had an opportunity to comment upon and ask reconsideration of the stated uiteria forlicensing the CEC. Eeg 56 Fed. Reg. 23313 (1991). Yet, CANT challenged the Hearing Order only with respect to proposed exposure limits for uranium hexafluoride and proposed safeguards for standards for nuclear materials at the facility. Egg CANT's Objection to Commission Order dated May 21,1991 and Comments on Proposed Licensing Standards for Uranium Enrichment Plants, Docket 70-3070 at 3-4 (October 7,1991).
Hence, CANT slept on its rights for nearly four years, until petitioning the Licensing Board j
for a waiver in 1995. CANT should not be permitted to come forward under the auspices of 10 CFRQ 2.758 with an argument it had every opportunity to make in 1991. The petition constitutes an untimely collateral attack on the Commission's licensing criteria, as well as the procedure for challenging those criteria under the earing Order, and should be rejected on this basis alone.
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J IL CANT has failed to satisfy the Commission's standards i
for waiver obn NRC regulation in a licensing proceeding.
4 To obtain a waiver, CANT must prove that "special circumstances with respect to the subject matter of the particular proceeding are such that the application" of Part 61 "would not serve the purposes for which the rule or regulation was adopted." 10 C.F.R. 2.758(b). Additionally, CANT must show that these special circumstances are such "as to undercut the rationale for the rule sought to be waived," and that "a waiver is necessary to address, on the merits, a significant safety problem related to the rele sought to be waived. Memorandum and Order at 7, quoting Public Service C2 of New Hampshire (Seabrook Station, Units 1 & 2, CLI-88-10,28 NRC 573,597 (1988).
A.
CANT's petition does not establish "special circumstances" warranting a waiver.
CANT has failed to show any "special circumstances" warranting a waiver. Its pleading of special circumstances does nothing more than argue that the waste classification scheme under Sections 61.55(a)(3) and (6) has independent safety sgnificance, aside from Part 61 performance l
objectives. The Licensing Board aptly showed, however, that this is not so.
As the Board held, Part 61 establishes "a broad regulaton scheme for the land disposal of l
radioactive waste other than disposal in a geologic repositoy" and includes "the performance objectives of Subpart C that apply to all wastes," regardless of classification, and "regardless of whether it is near-surface disposal or some other intermediate or deeper land burial." Memorandum and Order at 12 (emphasis added). The Commission has underscored that the flexibility of Part 61 f
enables licensee to meet these performance objectives by a " wide variety of disposal methods, t
including all those currently oroposed as ' intermediate' disposal methods [which] could be licensed under Part 61." 54 Fed. Reg. 22578, 22581 (1989) (Statements of Consideration accompanying amendment of 10 C.F.R. 61.55(a)(2)(iv)) (emphasis added); Memorandum and Order at 12 n.19.
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Further, any " additional technical criteria {that] might be needed.. would be added to Part 61 heforc licensing an ' intermediate' disposal facility." 54 Fed. Reg. 22578,22581 (1989)(emphasis added). Conversely, '[t]echnical critena to implement the performance objectives and environmental standards would be developed aftn [the licensee] had selected a specific disposal technology and decided to pursue development of an intermediate facility." [d at 22579 (emphasis added).I' B.
CANT has not shown that the purpose of the Commission's Part 61 regulations is undercut by classifying depleted uranium tails as Class A waste.
The Licensing Board observed that the safety objectives of Part 61 are: protection of the general population from radioactive releases, protection ofindividuals from inadvertent site intrusion, 1
protection of individuals during operations, and assuring stability of the site after closure.
Memorandum and Order at 13-14, citing 10 C.F.R. Q 61.7(b). The Board correctly ruled that none i
t of these purposes would be undercut by the classification of LES's enrichment tails as Class A waste.
As the Board held, such classification would undercut the purposes of Part 61 only ifit guaranteed "that the waste can be disposed ofin a near-surface facility." Memorandum and Order at 16. But because waste classification is not "the sole determinant" of burial methodology, and LES must meet the performance objectives of Subpart C, the purposes of Part 61 are not undercut. Idm Indeed, the NRC Staff has directed LES, for purposes of developing a plausible tails disposition strategy, to assume that tails will be disposed ofin an other-than-near-surface disposal facility. LES's cost estimate proceeds on this assumption. The SER states that " applicant's financial t
l' Fu ther, CANT errs in asserting that the Commission linked the " proper waste classification" j
of depleted uranium tails to identification of" plausible strategies" for tails disposal. CANT's Petition for Review at 6-7 (May 8,1997). The Hearing Order simply identified uranium hexafluoride conversion to uranium oxide as a resource "or for dispotif' as a plausible strategy for tails disposition. Egg 56 Fed. Reg. 23313 (1991).
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assurance will be based on conversion o.' depleted UF. to U 0, and dispositioned in a deeper than 3
shallow land burial facility (for example, an abandoned mine cavity)" SER at p. 15-21. Hence, the Board refuted CANT's erroneous notion that the classification of enrichment tails as Class A waste permits the applicant to dispose of the waste in a "near-surface facility," thereby endangering the public health and safety cr, if some other burial method will ultimately be required, causing LES to underestimate its disposal costs substantially at the outset. Memorandum and Order at 16-17.# In sum, CANT's argument fails because the Commission's regulatory scheme for land disposal " allows alllow level waste, regardless ofits classification as A, B, C or GTCC waste, to be disposed of under I
Part 61 ifit meets the perfonnance objectives of Part 61." Memorandum and Order at 18 (emphasis added).
Finally, CANT mistakenly asserts that if the CEC tails were reclassified, LES "would have to adhere to the Commission's presumption that the waste would be disposed ofin a licensed geologic repositci c" unless LES "were to identify and demonstrate the suitability of a specific disposal site." Petition at 9, citing 53 Fed. Reg. 17709, 17710 (1988). CANT appears to be arguing i
that, assuming the CEC waste were reclassified as GTCC waste, the Commission has predetermined that the tails must be buried in a geologic repository unless LES has Commission approval today for a specific site.
CANT has forgotten that, at this point, LES is required only to have developed a plausible strategy for tails disposition, and one may plausibly strategize that the Commission will approve a site-specific disposal arrangement when necessary. As noted, LES does not disagree that 10 C.F.R.
I The Board observed that the FEIS itself states "that the disposal of enrichment tails in a near-surface facility likely would not meet the performance objectives, specifically the dose limits, of Subpart C," requiring disposalin other than a near-surface facility. Memorandum and Order at 17-18, giting FEIS at pp. 4-66 to 4-68, and App. A at A-9 to A-15.
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61.55(a)(2)(iv) requires the Commission to approve its proposal for tails disposition in the event that near-surface disposal is inappropriate. But the need for Commission approval does not imply, as CANT argues, that unless a specific alternative disposal site has already been approved, LES must place its tails in a deep geologic repository. Rather, it simply means that the Commission must approve the disposal arrangement when necessarv. as the preceding discussion of the Commission's Pan 61 rulemaking amply shows.
C.
CANT has not addressed any significant safety problem.
CANT attempts to address the safety significance ofits requested waiver in a single footnote at the end of its petition. The " linchpin" of CANT's safety allegations is "an asymmetrical comparison.. between depleted uranium and the concentrations oflong lived transuranic wastes listed in C.F.R.
61.55." Memorandum and Order at 20. CANT has abandoned many ofits arguments below, but continues to mischaracterize the specific activity of depleted uranium and transuranic waste (having dropped its earlier arguments comparing radionuclide half-life and health effects). LES's expen pointed out, however, that the specific activity of U 0, is actually 200,000 3
times Ign than the specific activity of transuranic nuclides such as Pu-239, and that the specific activity of elements present in the human body is orders of magnitude Freater than the specific activity of U 0, The evidence presented by CANT does not call into question the classification of depleted 3
uranium as Class A waste and does not support reclassification of depleted uranium as GTCC waste.
Accordingly, no significant safety issue exists.
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Conclusion CANT has failed to satisfy the standards for waiver of a regulation in this proceeding and its i
petition should therefore be denied.
LOUISIANA ENERGY SERVICES, L.P.
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/ Michael McGanfIII Marcus A. Rowden Robert M. Rader Robert L. Draper FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON i
WINSTON & STRAWN l
t ATTORNEYS FOR LOUISIANA ENERGY SERVICES, L.P.
l Dated at Washington, D.C.
this 23rd day of May,1997 t
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UNITED STATES OF AMERICA c
NUCLEAR REGULATORY COMMISSION N 23 B97 E
E BEFORE THE COMMISSION
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In the Matter of
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- Docket No. 70-3070-ML 6
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LOUISIANA ENERGY SERVICES, L.P.
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May 27,1997 l
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(Claiborne Enrichment Center)
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l.
CERTIFICATE OF SERVICE 1
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I I hereby certify that copies of" Opposition of Applicant Louisiana Energy Services to Intervenor's i
Petition for Review of Order Denying its Waiver Petition" were served upon the following by deposit in the United States mail, first-class, postage prepaid, this 23rd day of May,1997:
l'
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l Administrative Judge Administrative Judge Thomas S. Moore, Chairman
- Richard F. Cole
- J Atomic Safety and Licensing Atomic Safety and Licensing L
Board
- Board l
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission l
Washington, D.C. 20555 Washington, D.C. 20555 l
l
_ (2 copies).
L Administrative Judge Office of the Secretary
- Frederick J. Shon*
U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555
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U.S. Nuclear Regulatory Attention: Chief, Rulemakings and
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Commission Adjudications Staff l
Washington, D.C. 20555 (Original plus 2 copies) i i
I Office of Commission Appellate -
Eugene Holler, Esq.*
Adjudication *
- Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory
(
Commission Commission j
Washington, D.C. 20555 Washingtc.n, D.C. 20555 l
....o. '
Ronald Wascom, Deputy Assistant Joseph DiStefano, Esq.
Secretary
- Quinn, Racusin & Gazzola Office of Air Quality &
1401 H Street, N.W.
Radiation Protection Suite 510 P.O. Box 82135 Washington, D.C. 20005 Baton Rouge, LA 70884-2135 4
Robert G. Morgan - WC26B Marcus A. Rowden Licensing Manager Fried, Frank, Harris, Shriver &
Duke Engineering & Services, Jacobsen Inc.
I101 Pennsylvania Avenue, N.W.
400 South Tryon Street Suite 900 South Charlotte, NC 28201-1004 Washington, D.C. 20004 Diane Curran
- Nathalie Walker
- Harmon, Curran, Gallagher &
Sierra Club Legal Defense Fund Spielberg 400 Magazine St.
2001 S Street, N.W.
Suite 401 Suite 430 New Orleans, LA 70130 Washington, D.C. 20009-1125 Adjudicatory File Roland J. Jensen Atomic Safety and Licensing Louisiana Energy Services, L.P.
Board Panel 2600 Virginia Avenue, N.W.
l U.S. Nuclear Regulatory Comussion Suite 608 Washington, D.C. 20555 Washington D.C. 20037 Thomas J. Henderson, Esq.
David S. Bailey, Esq.
Lawyers' Commmittee for l-Civil Rights Under Law 1450 G Street, N;W.
Suite 400 Washington, D.C. 20555 l
l LOUISIANA ENERGY SERVICES, L.P.
"Oh Robert M. Rader w
WINSTON & STRAWN, ATTORNEY FOR LOUISIANA ENERGY SERVICES, L.P.
Via facsimile lL
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