ML20148G709

From kanterella
Jump to navigation Jump to search
NRC Answer Opposing Citizens Against Nuclear Trash Petition for Review of Order Denying Waiver Petition.* Petition for Review Must Be Denied for Failing to Raise Substantial Question Specified in 10CFR2.786(b)(4).W/Certificate of Svc
ML20148G709
Person / Time
Site: Claiborne
Issue date: 05/22/1997
From: Bachmann R, Holler E
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
NRC COMMISSION (OCM)
References
CON-#297-18324 ML, NUDOCS 9706060096
Download: ML20148G709 (9)
v • d • e


Text

- -_ . . .. . - - . . . .. - - - ---

fl$3Y )

. DOCKETED USNRC' UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION 97 MAY 22 P3 :33 l BEFORE THE COMMISSION 0FFICE OF SECliETARv, .

DOCKETING A REi"GrE 1 iP/~ > i

]

In the Matter of ).

)

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

) .

(Claiborne Enrichment Center) ) i

) l l

l 1

NRC STAFF'S ANSWER OPPOSING CITIZENS AGAINST NUCLEAR TRASH'S PETITION FOR REVIEW OF ORDER DENYING CANT'S WAIVER PETITION-1 l

'l l

'l l

l 1

)

i 1

i

)

6

,1

~

Richard G. Bachmann  !

Eugene Holler l Counsel for NRC Staff

)

May 22,1997 j

- i

! 9706060096 970522 i  !'

l PDR ADOCK 07003070 0 C PDR

}$ -

i . .

. . - - . - . - .- -_-- - . .- .--- - - _ . ~ . _ . - _ .

n. ;.

+ e 4 .

May 22,1997 2

UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION ,

  • 1 BEFORE THE COMMISSION I

i In'the Matter of ).  !

)

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

) I (Claiborne Enrichment Center) ) {'

)

' NRC STAFF'S ANSWER OPPOSINO CITIZENS AGAINST NUCLEAR TRASH'S PETITION FOR REVIEW OF ORDER DENYING CANT'S WAIVER PETITION 1

INTRODUCTION  ;

On May 8,1997, Intervenor Citizens Against Nuclear Trash (CANT) filed a petition f pursuant to 10 C.F.R. Q 2.786(b) of the Commission's regulations for review of the Atomic l

- Safety and Licensing Board's (Board's) March 2,1995 ruling denying CANT's petition for 2

waiver of certain waste classification regulations.2 The staff of the Nuclear Regulatory-Commission (Staff) hereby files its answer. CANT's petition merely repeats assertions properly  ;

j rejected by the Board. Accordingly, as set forth below, CANT's petition fails to satisfy any of l the standards in 10 C.F.R. I 2.786(b)(4) which would warrant review and should be denied. ,

l Memorandum and Order (unpublished) (Ruling on Intervenor's Petition to Waive Certain Regulations), March 2,1995, (Ruling).

2 Citizens Against Nuclear Trash's Petition for Review of Order Denying CANT's Waiver Petition, May 8,1997, (Petition). j I

t

. __. _ ~... _ _ . . .__

't BACKGROUND i

This proceeding involves the application by Louisiana Energy Services, L.P. (LES) for a license to build and operate a uranium enrichment facility, the Claiborne Enrichment Center (CEC). During the course of the proceeding, CANT petitioned the Licensing Board, pursuant ,

to 10 C.F.R. Q 2.758, for a waiver of the waste classification provisions of 10 C.F.R.

{ 61.55(a)(3) and (a)(6).3 CANT argued that the uranium tails generated by operation of the CEC should be treated as greater than Class C (GTCC), transuranic (TRU) waste because of the tails' high concentration of radioactivity, extremely long half life, and other characteristics, and

]

that classification of the tails pursuant to the Commission's regulations would result in an inadequate basis for estimating the costs of di-posing of the tails. Waiver Petition at 2-3. On March 2,1995, the Licensing Board denied CANT's waiver petition. Ruling at 21-22. On April 3,1995, CANT filed a petition for review of the Board's ruling, which the Commission {

I denied as interlocutory, thus leaving CANT's challenges to the merits of the Board's ruling unresolved.d CANT filed its petition following issuance of the Board's final initial decision in i

3 Citizens Against Nuclear Trash's Petition for Waiver of 10 C.F.R. { 61.55(a)(3) and 10 C.F.R. @ 61.55(a)(6) and for Classification of Depleted Uranium Tails as Greater Than Class C Radioactive Waste, dated January 17,1995 (Waiver Petition).

4 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-95-7,41 NRC 383, 385 (1995). Subsequent to the Board's ruling and the Commission's denial of review, the Board issued its third partial initial decision, in which it decided whether LES has provided sufficient decommissioning funding, including funding for depleted uranium tails disposal. Louisiana Energ Services, L.P. (Claiborne Enrichment Center), LBP-97-3,45 NRC (March 7,1997) slip op. at 20. The Board found that LES has a plausible disposal strategy for depleted uranium tails disposal and LES's estimate for transportation and disposal of the depleted uranium is reasonable. . Id. at 31,35. On the other hand, the Board found LES's estimate of the cost of conversion of the depleted tails prior to disposal not reasonable. M at 39-50. Petitions for review of LBP-97-3 are pending before the Commission.

l.: l

. this proceeding.5 As discussed below, CANT satisfies' none of the criteria set forth in  ;

I

.10 C.F.R. f 2.786(b)(4) in its petition, and, therefore, CANT's petition for review should be l l 1 l denied.

i r

DISCUSSION l

L -A. Standard for Commission Review

)

l.. 2,786(b) must raise at least one of the A petition for review pursuant to 10 C.F.R.

e 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 vithout 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. i 10 C.F.R. f 2.786(b)(4).

B. CANT Has Not Addressed the Grounds for Review.

The Commission's regulations provide that a party may file a petition for review with the Commission on the grounds specified in 10 C.F.R. Q 2.786(b)(4).10 C.F.R. ! 2.786(b)(1).

The regulations further provide that the Commission may, in its discretion, grant a petition for l

' review after "giving due weight to the existence of a substantial question with respect to the )

\

i i

considerations" enumerated in Q 2.786(b)(4).10 C.F.R. 3 2.786(b)(4). To merit Commission i

{ review, therefore, the petition for review must raise a substantial question that satisfies at least i

l- )

8 Louisiana Energy Services, LP. (Claiborne Enrichment Center), LBP-97-8,45 NRC  ;

(May 1,1997). l 1 ,

i l i'

i l

4 . - . - _ , .

one of the criteria set out in 10 C.F.R. 2.786(b)(4). Babcock and Wilcox Co. (Pennsylvania Nuclear Service Operations, Parks Township, Pennsylvania), CLI-95-4,41 NRC 248,250-251

. (1995).

CANT's petition does not address the criteria in 10 C.F.R; { 2.786(b)(4). CANT merely repeats assertions, initially made in its January 17,1995 Waiver Petition, that the existing waste a

classification regulations would " severely undermine the purposes of the NRC's waste disposal and decommissioning funding regulations, and threaten public health and safety." Petition at I-

2. In its ruling, the Board properly rejected these assertions.

C. The Board' Ruline Does Not Undermine the NRC's Waste Disposal and Decommissionine Fundine Reculations.

Part 61 of the Commission's regulations sets out, in seven subparts, the licensing requirements for the land disposal of radioactive waste.6 10 C.F.R. Part 61. The regulations set forth the Commission's method of classifying low-level radioactive waste for purposes of determining appropriate disposal.10 C.F.R. Q 61.55(a). In addition, Subpart C of 10 C.F.R. Part 61 establishes performance objectives, supplemented by technical requirements, for: 1) protection of the general population from releases,2) protection of individuals from inadvertent ,

intrusion, 3) protection of individuals during operations, and 4) stability of the disposal sita after closure. See 10 C.F.R. $l 61.41, 61.42, 61.43, and 61.44.

The Board correctly found that classification of the tails as Class A waste does not undercut the rationale of the decommissioning funding regulations because, "[t]he performance objectives of Subpart C are the final determinant on the type of land disposal for the wastes

.- .. - - - . . .=. - - - . . .. .- -

involved, not the waste classification. Ruling at 18. In fact, the Staff has concluded that near-surface disposal of the depleted uranium tails for the CEC would likely be prohibited by the 10 C.F.R. Part 61 performance objectives, n fact which CANT acknowledges in its petition.7 Petition at 3-4. Further, the current disposal plan calls for deeper-than-surface burial of the tails, a fact that CANT also acknowledges. Petition at 3-4. Accordingly, because LES's decommissioning cost estimate does not assume near-surface disposal or a particular waste classification but only that the depleted uranium trails can be disposed of in accordance with the performance objectives of Part 61, classification of the tails as Class A waste does not i.mpact estimated decommissioning costs. CANT's petition fails to demonstrate any error in fact or law, or any question of policy concerning the Board's ruling on this matter that raises a substantial question justifying Commission review.

D. The Board's Ruline Does Not Threaten Public Health and Safety.

The Board correctly found that the safety purpose underlying 10 C.F.R. Part 61 is not

~

affected by the classification of depleted uranium tails as Class A waste since, "[t]he mere classification of the Applicant's enrichment tails as Class A waste does not guarantee, as CANT's argument implicitly assumes, that the waste can be disposed in a near-surface facility."

Ruling at 16. The Board's ruling thoughtfully and fairly considered CANT's claim that the classification of the tails as Class A waste is unsafe and, therefore according to CANT, that l depleted uranium should be classified as GTCC transuranic waste. The Board explained that the l

" linchpin" of CANT's claim was "an asymmetrical comparison (i.e. apples to oranges comparison)" between depleted uranium and the concentrations of transuranic wastes listed in 7

Sec NUREG-1484. Final Environmental Impact Statement for the Construction and Operation of Claiborne Enrichment Center, llomer, Louisiana, Vol.1, Appendix A, at A-9.

I

F l'

l 10 C.F.R. 6 61.55. Ruling at 20. The Board concluded that experts for LES and the Staff

" fully rebut [ted]" CANT's conclusions and demonstrated why CANT's argument was "not technically sound." Ruling at 20. The Board stated that it need not repeat the explanations of the LES and Staff experts, but speci0cally noted that " potential hazards associated with the disposal of GTCC transuranic waste are many times higher than those for depleted uranium." i Ruling at 20. Again, CANT's petition merely repeats the arguments rejected by the Board and fails to demonstrate any error in fact or law, or any question of policy concerning the Board's mling oi. this matter that raises a substantial question justifying Commission review.

CONCLUSION CANT's petition for review must be denied for failing to raise a substantial question on the grounds specified in 10 C.F.R. s2.786(b)(4).  !

I Respectfully submitted, n -

l r( [ ,

1 Richard G. Bachmann

]

Counsel for NRC Staff  ;

1

/ .

I Euge e Holler Counsel for NRC Staff l

Dated at Rockville, Maryland this 22rd day of May 1997 l

l l

l

00CKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION W MY 22 P3 :33 '

BEFORE THE COMMISSION 0FFICE OF SECRETARY In the Matter of ) 00CKETING & SERVICE

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

)

(Claiborne Enrichment Center) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER OPPOSING CITIZENS AGAINST NUCLEAR TRASH'S PETITION FOR REVIEW OF ORDER DENYING CANT'S WAIVER PETITION" 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 22nd day of May,1997:

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

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

l 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.

P.O. Box 1004 2600 Virginia Avenue, N.W.

Charlotte, NC 28201-1004 Suite 608 Washington, DC 20037 Marcus A. Rowden, Esq.* Office of the Commission Appellate Fried, Frank, Harris Adjudication Shriver & Jacobsen Mail Stop: 16-G-15 OWFN 1101 Pennsylvania Avenue, N.W. U.S. Nuclear Regulatory Commission Suite 900 South Washington, DC 20555 Washington, DC 200(M 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.*

Ilarmon, Corran, & Spielberg Urenco Investments, Inc.

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

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

Thomas J. Henderson, Esq.

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

Eugene 14oller Counsel for NRC Staff l

l

!

Retrieved from "https://kanterella.com/w/index.php?title=ML20148G709&oldid=2847248"