ML20196J905

Response of Duke Energy Corp to Licensing Board Order Requesting Info Concerning high-level Radioactive Waste Transportation Rulemaking.* Util Requests That Board Certify Question Immediately.With Certificate of Svc

ML20196J905
Person / Time
Site:	Oconee
Issue date:	12/09/1998
From:	Repka D DUKE POWER CO., WINSTON & STRAWN
To:	Atomic Safety and Licensing Board Panel
References
CON-#498-19786 LR, NUDOCS 9812110069
Download: ML20196J905 (14)

Text

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/CG 00CKETED USHRC December 9,1998 98 DEC 10 P 3 :27 UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION OFS,. , , ; c

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. $FF BEFORETHE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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Dul:e Energy Corporation ) Docket Nos. 50-269/270/287 LR

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(Oconee Nuclear Station, )

Units 1,2, and 3) )

RESPONSE OF DUKE ENERGY CORPORATION TO THE LICENSING BOARD ORDER REQUESTING INFORMATION CONCERNING THE HIGH-LEVEL RADIOACTIVE WASTE TRANSPORTATION RULEMAKING I. INTRODUCTION On November 16,1998, both the NRC Staff and Duke Energy Corporation (" Duke")

responded to the October 30,1998 supplemental petition to intervene submitted by the Petitioners l in this proceeding. On November 19,1998, the NRC Atomic Safety and Licensing Board (" Board") I in this proceeding issued an OrderF requesting information from the NRC Staff regarding the j rulemaking on transportation ofhigh-level radioactive waste ("HLW"). Pursuant to the terms of that Order, Duke herein responds to the NRC Staff's response to those questions, filed December 2, 4

l 1998.

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l Duke concurs with the NRC Staff's filing and the Staff's conclusion that the impacts 4

of the transportation of HLW js not an appropriate issue for litigation in this proceeding.

F

" Order (Requesting Additional Information From Staff)," Duke Enerev Comoration (Oconee Nuclear Station, Units 1, 2 and 3), ASLBP No. 98-752-07-LR, 48 NRC _, slip op.

(November 19,1998).

9812110069 981209 PDR ADOCK 05000269 0 PDR

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At the outset, Duke observes that the pending miemaking at issue relates to 10 C.F.R.

Q51.53(c)(3)(ii)(M) -- which itselfrelates to the very narrow question of the generic and cumulative environmental impacts of transportation of HLW in the vicinity of the candidate repository site at Yucca Mountain. Petitioners, in proposed contention 4, have raised no specific technical issue (w{

supporting basis) on potential environmental impacts of such transportation attributable to license

. renewal. Nor do the Petitioners acknowledge the ongoing generic initiatives (either the Staff's l

technical initiatives or the pending rulemaking), or present any evidence of unrecognized environmental impacts.

Considering the Commission's recent admonitions regarding the formulation of admissible contentions,d' the Petitioners should not be assumed to have proposed a valid Oconee-specific contention on this pcint.

In any event, Duke has addressed 10 C.F.R. Q51.53(c)(3)(ii)(M) in its license renewal I

application Environmental Report (Elt) in a manner consistent with the Commission's expectations

.%t the matter be addressed generically, and not in individual proceedings. In the ER, Duke explained:

Based on its additional consideration of this issue, plus its preliminary analysis of DOE information on HLW transportation impacts and the analysis provided in the GEIS, the NRC has recently determined that HLW transportation should be a Category 1 issue and 2'

The Commission " Statement of Policy on Conduct of Adjudicatory Proceedings," CLI L 12,63 Fed. Reg. 41872,41874 (August 5,1998) states that:

"[A] board may appropriately view a petitioner's support for its contention in a light that is favorable to the petitioner, but the board cannot do so by ignoring the i requirements set forth in section 2.714(b)(2) . . . . A contention's proponent, not the

[ licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of l

j contentions in 10 C.F.R. Q 2.714(b)(2)." [ citation omitted]  !

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that it "may be generically adopted in a license renewal application."

[ Reference 19] For those license renewal applications filed with the NRC before the completion of the above-referenced Part 51 rulemaking, the Commission has directed that a discussion of this topic in the plant-specific ER be required only if a " delay due to the generic rulemaking might affect the licensing process for a license renewal." (SRM M970612). Although Duke's license renewal application for Oconee Nuclear Station was submitted to the NRC {

before completion of the rulemaking, it would be premature to say at ,

this time that a delay in the completion of the rulemaking has affected l

[ the licensing process for Oconee license renewal. Accordingly, Duke has not addressed the existing requirements of Section 51.53(c)(3)(ii)(M)in this ER. Significantly, Duke anticipates that the NRC will initiate this miemaking later in 1998, which should allow for completion of the rulemaking and promulgation of Part 51 amendments on a schedule that will not delay the Oconee license renewal prt> cess.

r Oconee license renewal application, Vol. IV, Section 4.14.3, pp. 4 4-55.F The information submitted by the NRC Staff on December 2 in response to the Licensing Board's questions reinforces Duke's conclusion that this matter can and should be addressed in a rulemaking.d' L

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A copy of the pertinent pages of the Oconee license renewal application is provided as l Attachment A to this Response.

8' On this point, Duke's application is consistent with the NRC Staff's position in the NRC Draft Regulatory Guide DG 4005, " Preparation of Supplemental Erwironmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses,"(July 1998). In Section 4.21 (Transportation ofRadiological Waste) of the draft regulatory guide, the NRC states (pp. 45-46) that this issue is the subject of a rulemaking, that the rulemaking will be supported by an EIS supplement to NUREG-1437, and that:

l l "The staff anticipates that the rulemaking will be completed well before a decision on the first license renewal application. If the rulemaking is not completed prior to issuance of the draft supplemental environmental impact statement on the first license renewal application, the staff will incorporate the report in the statement.  !

Until this rulemaking is completed, an applicant need only reference the technical i

report in its ER."

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II. RESPONSES TO BOARD OUESTIONS

1. What is the date Staffanticipates the license renewalprocessfor Oconee will be ,

completed?

Duke concurs with the December 2,1998 Response of the NRC Staff (" Staff l Response") to Board Question 1. As stated in that Response, the NRC Staff's current proposed schedule for a safety and envimnmental review for the Oconee license renewal application F calls for issuance of a Supplemental Safety Evaluation Report (SSER) and Final Environmental Impact Statement (FES) by February 12,2000. Moreover, the September 15,1998 Commission Order i F

issued in this proceeding provided that any hearing held should reflect the Commission's goal of issuing a decision on the renewal application within two and one-half years from the date that the Oconee application was received. Since the Oconee renewal application was filed on July 7,1998, j Duke currently anticipates that the license renewal process for Oconee will be completed by l December,2000 or January,2001.2r I

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July 31,1998 letter from Christopher I. Grimes, Director of the License Renewal Project Directorate, NRC Office ofNuclear Reactor Regulation, to William R. McCollum, Jr., Vice President, Oconee Nuclear Station, Duke Energy Corporation.

F Duke Enerev Comoration (Oconee Nuclear Station, Units 1,2, and 3), CLI-98-17,48 NRC l

_, slip op. at p. 4 (September 15,1998).

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Such a schedule is consistent with the specific milestones set forth in the w. "mion Order in this proceeding directing that any evidentiary hearing required be con.gieted within 125 days of the issuance of the SER and FES (that is, by June,2000), and that an initial Board decision on the application be completed within 220 days of the issuance of the SER and FES (that is, by September,2000). Duke Enerev Cornoration, CLI-98-17,id., slip op. at p.

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2. When was [the] HLW transportation rulemaking initiated and what is the approximate date that a completed rule will become effective?

The NRC micmaking in question will eliminate the need for license renewal applicants to perform a plant-specific analysis of the generic and cumulative environmental impacts of transporting HLW in the vicinity of Yucca Mountain.8' The effect of the rulemaking is cogently summarized in the July 1,1998 memorandum from NRC Executive Director for Operations Joseph Callan to NRC Chairman Shirley Jackson, a copy of which is included as Attachment B to this i

Response.

The NRC Staff Response states that the HLW rulemaking was formally initiated by the Commission in Staff Requirements Memorandum ("SRM") M970612, dated January 13,1998, and that the Staff currently anticipates that the NRC final rule promulgating these Part 51 l

amendments will become effective no later than September,1999. Duke has no basis to question this infonnation and accepts the Staff's projection as realistic and achievable.

3. Under the schedule identified in response to questions 1 and 2, will this ndemaking delay the license renewalprocessfor the Oconee umts in the manner ofconcern to the Commission in SRMM970612 so as to require HL Wtransportation impacts to be addressed in theplant specific environmental report? Ifnot, please explain why.

It is Duke's view that the ongoing rulemaking will not delay the Oconee license renewal proceeding so as to requite the generic and cumulative environmental impacts of HLW 1

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A generic technical analysis has already been performed to support the rulemaking See t

" Supplemental Analysis: Cumulative Environmental Impacts of Spent Nuclear Fuel Transport in the Vicinity of the Proposed Yucca Mountain High-Level Waste Repository Attributable to License Renewal, and Implications of Higher Burn-Up Fuel for the Conclusions in Table S-4,"(April 1998). Petitioners do not reference and do not challenge this analysis.

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transponation in the vicinity of the repository to be addressed in the Oconee-specific environmental report. This position is consistent with that set forth by Duke in Section 4.14.3 of the Emironmental Report included as part of the Oconee license renewal application, as discussed above.

4. To what extent, if any, must licensing boards in NRC adiudicatory proceedings adhere to Commission directives in SRMs?

Duke concurs with the NRC Staff's December 2,1998 Response to Board Question

4. The Commission directive in SRM M970612 is not specifically directed to this Licensing Board, 1

does not reflect any attempt to provide direction to a particular NRC adjudicatory proceeding, and )

is not legally binding upon this Board. (Staff Response, at p. 4). At the same time, however, the ,

SRM does provide conclusive evidence of the Commission's expectation and intention that the cumulative, generic environmental impacts of transporting HLW in the vicinity of the repository not be adjudicated on a plant-specific basis, but rather generically via the Generic Environmental Impact Statement, NUREG-1437. Gd.) In Duke's view, there is no reason for this Licensing Board to act in a manner inconsistent with the Commission's express intent to eliminate plant-specific consideration of the HLW transportation issue for license renewal through rulemaking.

i In addition, as observed by the NRC Staff, NRC precedent has generally established that issues which are the subject, or that will be the subject, of NRC rulemaking should not be l

adjudicated in individual licensing proceedings.2' As the NRC Staff concludes in its December 2 l Response, the impacts of spent nuclear fuel and HLW transportation are inappropriate for litigation in this proceeding. If the Board disagrees, or seeks additional clarification of the Commission's 2'

Sg the "NRC Staff's Response to Petitioner's First Supplemental Filing," November 16, 1998, at pp. 21-23.

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l' intent, Duke requests that the Board refer or certify this question to the Commission immediately.  !

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Such a referral wou'd clearly fall within the scope of the September 15,1998 Commission Order in -

l i this proceeding dealing with the handling of" novel legal or policy questions." Sig Duke Enerev j

' Comoration, id., CLI-98-17, slip op. at p. 3.

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l Respectfully submitted, i

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David A.Repka Anne 'V. Cottingham l I

Paul R. Newton  ;

! Lisa F. Vaughn l l Counsel for Applicant DUKE ENERGY CORPORATION Dated at Washington, D.C.

This 9th day ofDecember,1998 i

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l APPLICATION FOR RENEWED OPERATING LICENSES l

i OCONEE NUCLEAR STATION, UNITS 1,2, AND 3 Volums IV l

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l Contents l Exhibit D:

Applicant's Environmental Report Operating License Renewal Stage i

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s O'conee Nuclear Station

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Applicant's Environmental Report g Operating License Renewal Stage Environrnental Consequences of the Proposed Action 4.14 Transportation of High Level Wiste 4.14.1 Requirement [ 51.53(c)(3)(ii)(M)]

The environmental effects of transportation of fuel .md waste shall be reviewed in accordance with {51.52. He review ofimpacts shall also discuss the generic and cumulative impacts associated with transportation operation in the vicinity of a high-level waste repository site. The candidate site at Yucca Mountain should be used for the purpose ofimpact analysis as long as that site is under consideration for licensing.

This regulatory requirement is scheduled to be revised by the NRC, as discussed below.

4.14.2 Finding from 10 CFR 51, Appendix B to Subpart A, Table B-1

" Table S-4 of this part contains an assessment ofimpact parameters to be used in evaluating transportation effects in each case. See {51.53(c)(3)(ii)(M)."

4.14.3 Duke Energy Response As promulgated in 1996,10 CFR { 51.53(c)(3)(ii)(M) requires license renewal applicants to address in their Environmental Report the generic and cumulative environmental impacts of transporting spent nuclear fuel (SNF) and high-level radioactive waste (HLW) to a DOE geologic repository that may be located at Yucca Mountain, Nevada. However, the Commission has recently authorized the commencement of a Part 51 rulemaking as a "long-term solution" intended to eliminate this requirement from Part 51. This rulemaking will amend Part 51 to re-categorize the HLW transportation issue as a generic (Category 1) issue for purposes oflicense renewal. [ Reference 17] Once the Part 51 amendments become effective, a plant-specific analysis of the environmental impact of l

HLW and SNF transportation as part of a license renewal applicant's ER will no longer be required.

( In the supplementary information accompanying the issuance of Section 51.53(c)(3)(ii)(M) in 1996, the NRC referred to insufficient information and unresolved issues concerning the magnitude of the cumulative impacts arising from the transportation of HLW in the vicinity of the repository; accordingly, the NRC declined to categorize this issue as Category 1 at that time. At the same time, however, the NRC also recognized the generic nature of this issue, and agreed to consider whether further l changes to the rule "are desirable to generically address" the issue oicumulative SNF and HLW transportation impacts. [ Reference 18]

,~ Based on its additional consideration of this issue, plus its preliminary analysis of DOE information on HLW transportation impacts and the analysis provided in the GEIS, the j

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Revision 0 Final ER. doc June 1998 i

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g Oconee % clear Statico Applicant's Environmental Report Operating License Renewal Stage Environmental Consequences of the Proposed Action NRC has recently determined that HLW transportation should be a Category 1 issue and tbt it "may be generically adopted in a license renewal application." [ Reference 19]

For those license renewal applications filed with the NRC before the completion of the above-referenced Part 51 rulemaking, the Commission has directed that a discussion of this topic in the plant-specific ER be required only if a " delay due to the generic rulemaking might affect the licensing process for a license renewal." (SRM M970612).

Although Duke's license renewal application for Oconee Nuclear Stlition was submitted to the NRC before completion of the rulemaking,it would be premature to say at this time that a delay in the completion of the rulemaking has affected the licensing process for Oconee license renewal. Accordingly, Duke has not addressed the existing requirements of Section 51.53(c)(3)(ii)(M) in this ER. Significantly, Duke anticipates that the NRC will imtiate this rulemaking later in 1998, which should allow for completion of the rulemaking and promulgation of Part 51 amendments on a schedule l that will not delay the Oconee license renewal process.

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Final ER. doc June 1998 I I

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" 3 ATTACIDIENT B )

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.. g UNITED STATES ' )

f ,,1 P' j , NUCLEAR REGULATORY COMMISSION  !

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• • • • • July 1, 1998  !

I MEMORANDUM TO: Chairman Jackson j Commissioner Diaz l Commissioner McGaffigan FROM: L. Jcseph Callan  !

Executive Director f r Operations i V

SUBJECT:

RULEMAKING FOR 10 CFR PART 51. ENVIRONMENTAL PROTECTION REGULATIONS l

In response to the' staff requirements memorandum (SRM) dated January 13,1998, pertaining to SECY-97-279, the staff plans to amend the 10 CFR Part 51 requirement that license renewal

. applicants address the ;;eneric and cumulative environmentalimpacts of trartsportation of high- 1 level waste (HLW) in the vicinity of an HLW repository. This rulemaking will also amend Part 51 to address the environmentalimpacts of the use of higher bum-up fuel and of transportation on

' local services during the renewal term.  !

The proposed rulemaking would revise 10 CFR Section 51.53 (c)(3)/ii)(M) and Table B-1 of Subpart A, Appendix B to 10 CFR Part 51, to reflect the generic and cumulative environniental impacts of transportation of HLWin the vicinity of an HLW repository as a Category 1 issue.

This revision would allow a license renewal applicant to adopt the stafs generic analysis so '

that a plant-specific analysis'of the generic and cumulative environmentalimpacts of HLW transportation in the vicinity of an HLW repository would not need to be performed. Specifically, Section 51.53(c)(3)(ii)(M) would be deleted and Table B-1 would be modified to reflect the Category 1 designation. As discussed in SECY-97-279, the basis for the rule change would be the stafs supplemental analysis performed to evaluate the environmental impacts of spent nuclear fuel tra'nsportation in the vicinity of the proposed Yucca Mountain HLW repository attributable to license renewal. The report, " Supplemental Analysis: Cumulative Environmental

, impacts of Spent Nuclear Fuel Transport in the Vicinity of the Proposed Yucca Mountain High-Level Waste Repository Attributable to License Renewal. and implications of Higher Burn-Up

= Fuel for the Conclusions in Table S-4,* was completed in April 1998. As discussed in SECY 279, the report has been placed in the PDR, and is available for near-term license renewal

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applicants to reference in their applications, consistent with Option 2 if Option 2 is deemed necessary under the guidance in the SRM.

The stars supplemental analysis alss supports rutemaking to address the environmental impacts of the use of higher bum-up fuel. ,The proposed rulemaking would revise 10 CFR ,

< 51.53(c)(ii)(M) rand Table B-1 of Subpart A, Appendix B to 10 CFR Part 51 to reflect the use of j higher enriched uranium and higher bum-up values. Many licensees have requested and j received license amendments to use higher enriched fuel and to allow higher burn-up. The bases for these amendments and proposed rule change include the stars supplemental analysis, NUREGICR-5009," Assessment of the Use of Extended Burn-Up Fuelin Light Water j l

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. .O l The Ccmmission Power Peactors." datec February 1988. ano

• Extended Burn-Up Use in Commercial LWRs:

Environmental Assessment anc Finding of No Significant Impact * (53 FR 6040), dated i February 29.1988.

As an administrative amencment to the rule, the staff also proposes to address the environmentalimpacts of transportation on local services during the renewai term. This issue ,

was identified as a Category 2 issue in NUREG-1437, "Genenc Environmental impact I Statement for License Renewal of Nuclear Power Plants' (GEIS), dated May 1996. However it l was inadvertently omitted from 10 CFR 51.53(c)(3)(ii)(J) and Table 81. The proposed rule l would add this issue as a Categorf 2 issue for which a license renewal applicant would need to l provide a plant specific impact analysis in its environmental report. i 1

Absent significant public comment and identification of major issues. the milestones and  !

completion dates for the proposed rule are as follows:

Draft rule to the EDO: 8/30/98 l Draft rule to the Commission: 9/15/98 Comment period: 75 days '

Final rule office-level concurrence: 4/30/99 i Final rule to the EDO: 5/30/99

• Final rule to the Commission: 6/15/99 l Resources to conduct this rulemaking are budgeted at approximatel.r .25 FTE and $25K in l contract support.

l The Office of the General Counsel has no legal objection to this memorandum. The Office of Administration concurs in this rulemaking plan. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objections.

cc: SECY OGC OCA .

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UNITED STATES OF AMERICA USHRC i NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR}B DE

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In the Matter of )

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DUKE ENERGY CORPORATION

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) Docket Nos. 50-269/270/287-LR i (Oconee Nuclear Station, )

Units 1,2 and 3) ) I CERTIFICATE OF SERVICE l

I hereby certify that copies of the foregoing " RESPONSE OF DUKE ENERGY CORPORATION TO THE LICENSING BOARD ORDER REQUESTING INFORMATION CONCERNING THE HIGH-LEVEL RADIOACTIVE WASTE TRANSPORTATION RULEMAKING" in the above captioned proceeding have been served upon the following by electronic mail or facsimile as noted, with conforming copies and additional service deposited in United States Mail, first class, this 9th i day of December 1998.

Office of Commission Appellate Chief Administrative Judge <

Adjudication B. Paul Cotter, Jr., Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel One White Flint North U.S. Nuclear Regulatory Commission i 11555 Rockville Pike Two White Flint North,3rd Floor Rockville, MD 20852-2738 11545 Rockville Pike Rockville, MD 20852-2738 Administrative Judge (E-mail copy to bocl@nrc.cov)

Richard F. Cole j Atomic Safety and Licensing Board Panel Administrative Judge l U.S. Nuclear Regulatory Commission Peter S. Lam

Two White Flint North,3rd Floor Atomic Safety and Licensing Board Panel i 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Two White Flint North,3rd Floor (E-mail copy to rfcl@nre. gov) 11545 Rockville Pike Rockville, MD 20852-2738 ,

(E-mail copy to osl@nre. gov)

Marian L. Zobler Norman " Buzz" Williams Robert M. Weisman 190 Mountain Cove Rd.

Office of the General Counsel Mountain Rest, SC 29664 U.S. Nuclear Regulatory Commission One White Flint North William " Butch" Clay 11555 Rockville Pike P.O. Box 53 Rockville, MD 20852-2738 Long Creek, SC 29658 (E-mail co;.; to oconee@nrc. gov)

Chattooga River Watershed Coalition W.S. Lesan P. O. Box 2006 P.O. Box 66 Clayton, GA 30525 Long Creek, SC 29658 (facsimile copy to (706)782-6098; e-mail Adjudicatory File i Atomic Safety & Licensing Board Panel Office of the Secretary U.S. Nuclear Regulatory Coaunission U.S. Nuclear Regulatory Commission Two White Flint North One White Flint North 11545 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Attn: Rulemakings and Adjudications (original & 2 copies)

(E-mail copy to hearingdocket@nrc.cov)

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Anne W. Cottingham Winston & Strawn

! Counsel for Duke Energy Corporation l