ML20197D664
| ML20197D664 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 12/18/1997 |
| From: | Bachmann R, Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#497-18680 LBP-97-03, LBP-97-3, ML, NUDOCS 9712290099 | |
| Download: ML20197D664 (12) | |
Text
'hh December 18 00CKEIED ,1997
' USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION vt EC 18 P2 39 BEFORE THE COMMISSION ,
, jggg RULE C W W O W ADJUDCAM NAN-in the Matter of )
)
LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-3070-ML
)
(Claiborne Enrichment Center) )
NRC STAFF'S RESPONSE TO INTERVENOR'S SUPPL EMENT TO PETITION FOR REVIEW OP LBP-97-3 INTRODUCTION Pursuant to the Commission's Order dated November 19,1997, the staff of the Nuclear Regulatory Commission (Staf0 hereby responds :o the supplement to the petition for Commission review of Loulslana Energy Services, L.P. (Claiborne Enrichment Center), LBP-97-3,45 NRC 99 (1997) tiled by Intervenor Citizens Against Nuclear Trash (CANT).8 For the reasons set forth below, the Staff submits that the petition, as supplemented, should not be granted.
BACKGROUND On March 7,1997, the Atomic Safety and Licensing Board (Board) issued a partial initirJ decision, LBP 97 3, resolving Contentions B and J.3. The Board sustained CANT's contentions to the extent tha,. in the Board's view, the cost estimate proposed by Applicant Louisiara Energy Services (LES) for the conversion of DUF. to U 30, was not a reasonable one givea LES's failure Citizens Against Nuclear Trash's Supplement to Petition for Partial Review of LBP-97-3, dated December 3,1997 (Supplement).
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7 to include the costs of neutralizing the conversion process byproduct hydrofluoric acid. l i i LBP 97 3,45 NRC at 119.
Both LES and CANT filed petitions for review of LBP 97-3 with the Commission.8 On
- September 3,1997, before deciding whether to grant the petitions for review, the Commission i
- issued an Order, CLI 9711,46 NRC _ (1997), in which the Commission remanded one issue to the Board for further explanation. In its Order, the Commission noted that, while the Staff 1
3 in its Final Environme.1tallmpact Statement (FEIS) cited data that establish the range of potential values likely to be found for each sensitive parameter in deep groundwater, the Staff calculated dose impacts using only a single set of values. CL197-11, slip, op. at 3. The Commission -
remanded to the Board the issues of the basis upon whicl. m. oard found that the Staffs dose l impact calculations can be taken as representative of disposal in mines with groundwater characteristics that differ from the Staff s single set of values, and what effect, if any, varying the :
values within the expected range would have on dose impacts . Id. at 3-4. .,
After receiving proposed findings from the paities on the Commission's Order, the Board issued a Memorandum (Explanation Required by Remand), LBP-97 22,46 NP.C _ Slip.op.
i (November 13,1997), in which the Board explained its rationale for accepting the Staffs dose p estimate calculations. Subsequently, the Commisalon issued its November 19,1997 Order, in
, which CANT was invited to file a supplement to its petition for review of LBP 97-3 based on the i 2 Petition of Applicant _ Louisiana Energy Services for Commission Review of LBP 97 3, dated May 9,1997, (LES Petition); 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
~ Review of LBP-97-3." On May 23,1997. LES filed "Oppositionof Applicantleuisiana Energy Services to Intervenor's Petition for Review of LBP-97-3," and the Staff filed "NRC Staffs Answer to Applicant's and Intervenor's Petitions for Review of LBP-P-3."
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3 Board's explanationin LBP 97 22. Order at 1. The Order also provided for the Staff and LES 1
to file responses to CANT's supplemert. Id. at 2. As noted sbove, CANT filed its Supplement on December 3,1997. The following is the Staff's response. I DISCUSSION A. The Licensing Board Correctly Rejected CANT's Witness's Testimony The CANT Petition, as supplemented, does not satisfy any of the standards for Commission review set forth in 10 C.F.R. I 2.786(b)(4). In general, CANT argues that 1.ES's tails disposal strategy is not plausible because the Staffs dose estimate analysis is flawed. In seeking review of LDP 97 3, CANT merely complains that the Board erred in finding the Staffs witness more credible than CANT's witness, thus accepting the Staffs testimony (including the FEIS) and rejecting that of CANT.3 In LBP-97-22, the Board made it very clear that it found the Staffs witness more credible.
With regard to redox potential (ell), the Board notes that "Dr. Makhijani (CANT's witness]
nowhere claimed to have rigorously investigated the critical dose as cH is varied and he readily acknowledged that the 'very back-of the envelope' figuring he had done could not be represented as ' scientific work.'" LDP-97-22, slip op at 13.
With regard to pH value, the Board noted that Dr. Makhijani's challenge to the Staff s pH value "is not based on rigorous investigation of the critical dose as pH is varied." Id. at 15.
Finally, with regard to retardation value, the Board noted that CANT's expert " cited another value without performing any calculations and neither convincingly stated why that value was preferable 5
The fact that CANT has a view of the record evidence different from the Board does not warrant Commission review. See Kenneth G. Pierce (Shorewood, Illinois), CLI-95-6, 41 NRC 381, 382 (1995).
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nor provided any direct experimentalsources for the data." Id. 3t 18. An expert witness may not state ultimate conclusions ar.d then profess an inability to provide the foundation for them.
Virginia Electricand Power Co. (North Anna Nuclear Power Station, Unit . I and 2), ALAB 555, 10 NRC 23,26 (1979); see alco General Public Utilities Nuc! car Corporation (Three Mile lslard Nuclear Station, Unit 2), LDP-89 7. 29 NRC 138,17172 (1989) (Licensing Board rejected the testimony of intervenor's expert witness as lacking in probative value, as the witness was unable to explain the derivation of the risk estimates in his testimony).
From the Beard's statements in LDP 97 22 and the citations to the record therein, it is clear that Dr. Makhijani did not prmide a sufficient foundation for his conclusions. The Board was entirely correct in rejecting his testimony.
B. Ihc. Licensing Board Correctiv Accepted the Staff's Representative Values As described in Appendix A to the FEIS,' to determine expected doses from deep burial of the U 30, tails, the Staff postulated two possible " generic" sites to evaluate whether LES had developed a plausible strategy for disposalof those tails. FF.lS at A 10; FEIS, Figure A.2. The Staff used a computer code to assess the transport of radionuclides from the disposal facility.
FEIS at A 8. The Staff selected characteristics of deep groundwater in performing its analysis.
FEIS at A-11 to A 12; FEIS, Table A.S. In its Supplement, CANT attacks the choice of values used by the Staff for certain of these characteristics. CANT has not raised anything in its Supplement which would point to the need for review of the Board's decision. This response focuses on specific assertions made by CANT in its Supplement.
d Appendix A to the FELS is entitled " Assessment of the Environmental Impacts of Depleted UF. Disposition," and contains all the material here at issue.
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CANT first assens that, with respect to redox potential (ell), the FEIS " grossly misrepresent.or incompletely represents the relevant data." Supplement at 4. This assertion is inaccutate. The KBS study5 referred to by CANT does, in fact, show a range of values for eII in uranium mines as the one set out in Table A.5 of the FEIS.
CANT then assens that the Staff used an eli value of.100 my, which is outside the range reported in the FEIS for uranium minas. Supplement at 4. This assertion is misleading. Staff witness Dr. Price clearly testified that the Staff chose the eII value from the range of values in the KBS study for deep groundwater rather than uranium mines. Tr. 1118 19. The KBS study's deep groundwater rar.ge is -26 my to 210 mv. Id. Thus, as reported both in the FEIS and in the Staffs testimony, the Staffs eli value is not only within the proper range, but also close to the midpoint of that range.
CANT makes the false statement that the Staff, in its FEIS, claims to have based its dose analysis on the llanford basalt site. Supplement at 4. CANT also states that the FEIS asserts that the llanford site is "icpresentative" of the type of site where tails will be di: posed of. Id. at 5.
Tnis statement is also incorrect. There is no reference in Appendix A of the FEIS to the llanford site, either as s
- representative" site or for any other reason. CANT's statements are based solely on the testimony of its witness, Dr. Makhljani.' In addition, at the hearing, counsel for CANT pressed the Staff witness, Dr. Price, to acknowledge that Hanford was a " representative" site for
- Karn Bransle Sakerhet, flandling and Final Storage of Unprocessed Spent Nuclear Fuel, Vol.1, Karn Bransle Sakerhet, Stockholm, Sweden (1978)(KBS). This document is referenced in Appendix A to of the FEIS. FEIS at A 16. The KBS study is not itself pan of the record in tnis proceeding.
- It appears that CANT intended to cite to page 6 of the testimony of its witness, rather han page 11. See Supplement at 4.
6-the FEIS analysis. Tr. I141-45. Dr. Price did not agree and repeated that he used the range of parameters from the KBS study. Id. at 1143-44.
CANT takes issue with the Board's assertion in LBP-97 22, based on Dr. Price's testimony, that when a mine is closed, precluding contact with the atmosphere, the mine returns to a reducing state. Supplement at 4. CANT claims that "Dr. Price's testimony was not so unequivocal," stating that he said conditions "may" return to reducing. Id. at 4 5. CANT ignates Dr. Price's statement shortly thereafter that "the conditions that prevail in the surroundhg groundwater will be reducing. Tr.1148 [ emphasis added). CANT also ignores that Dr. Price testified that two of the studies cited in the FEIS, the Dearlove' and the KBS studies report that groundwater moving through the uranium formation becomes reducing as it proceeds downward.
Tr.1147. Thus, data in the record support the plausibility of occurrence of reducing conditions in deep groundwater and the CANT objection is not persuasive, as it is premised on conditions that are not fully representativeof deep groundwater. See Tr.1148. CANT's argument that the Board should not have accepted the Staff's assumption of reducing conditions for deep groundwater is not supported by the record.
With respect to pli, CANT asserts that the Staff " inexplicably" ignored availab;c data from the llanford site showing pil values for deep disposal could be over 9. Supplement at 5. As discussed supra, llanford was not considered a " representative" site for the FFlS dose analysis.
Dearlove,
J.P.L., D. C. Green, and M. Ivanovich, " Uranium Transport and Partitioning of U, Th, and Ra Isotopes Between Solid and Aqueaus Phases in the Krunkelbach Mine, Federal Republic of Germany" in Scientyic Basisfor Nuclex Waste Managemmt XII, W. Luke and R.C.
Ewing (et al.), Materials Research Society, Pittsburgh, PA,1989.
Thus, the Staff's lack of reliance on the llanford data is not " inexplicable" at all. Moreover, CANT witness Dr. Makhljani provided no testimony on the effect of a higher pli on dose.
Finally, in its criticism of the retardation factor, CANT refers to the same National Academy of Sciences (NAS) report that it cited in its testimony. Supplement at 5. The Board chose to reject the NAS values and accept those of the Staff. LBP-97-22, slip op, at 1617.
CANT argues that "there was no justification for ignoring readily available data on the very sites on which the FEIS claimed to base its analysis." Supplement at 6. As discussed supra, the FEIS's analysis did not cialm to be based on specific sites, but rather on two " generic" sites.
CANT's argument is without merit.'
C. Ihe Licensing Board was correct in Not Evaluating Varving Parameters CANT states that "(t]he Board could not demonstrate the effect on doses of varying the values in the expected range, because no such evidence was presented on the record."
Supplement at 6. The statement is correct as far as it goes. However, as noted above, the gist of the Commission's remand Order, CLI 97 II, was that the Board should explain why the Staff's dose impact calculations could be taken as representative of sites with varying groundwater characteristics and the effect of varying the values of the characteristics. CLI 97-11, slip op.
at 3-4. This is the basis of LDP 97 22, and, in the Staff's view, the Board has thoroughly explained its position. Moreover, as Dr. Price testified, an uncertainty analysis is impractical and 8 CANT also cites to the KBS study for the proposition that the KBS experiments were done in a laboratory and did not measure actual conditions and that the results of the 'ests should be "used with caution." Supplement at 6. CANT is in the wrong on two counts. First, as noted previously, the KBS study is not part of the record and it is impermissible for CANT to cite to it. Seconi, even were it permitted, the portions of the KBS study cited by CANT have nothing to do with the retardation factor, but rather discuss the leaching of irradiated nuclear fuel pellets.
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requires significant amounts of site specific data, which were not available. Tr.1120. TM objective of the FEIS analysis was to establish plausibility, rather than to establish suppon for a 1
licensing position for a specific facility. Id. l D. The Licensine Board was Correct in Finding 1be Simff's Dose Estimates Credible j
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l CANT argues that the dose estimates criculated by the S:aff are not credible. Supplemers I
at 810. The Board has addressed this issue with regard to the lower than brckground doses and the insolubility of uranium in a reducing environmentin LBP-97 22. LBP 97 22, slip op, at 20-
- 21. CANT makes certain impermissible or misleading statements in its arguments that need to be clarified.
CANT notes that the calculated dot ts are " lower than any published uranium measurements for any site," and cites a Draft Toxicological Profile for Uranium prepared for the U.S. Depar: ment of Ilealth and liuman Services. Supplement at 8, n.4. This report is not in the record and the footnote should be stricken. CANT notes that the KBS study reports uranium j levels in reducing groundwater that are higher than those predici 4 by the Staff. Supplement at 8 n.5. As noted supra, n.4, the KBS study likewise is not in the record and the footnote should be stricken.
CANT also seems to have an erro.ieous concept of the well scenario. Supplement at 8, n.6. It appears that CANT believes the scenarlo involves a well driven directly into the disposal facility,1d. In fact, such a scenarlois treated separately in the FEIS, and was not considered in the calculations of dose estimates. FEIS at A 8 to A 9. For the well scenario, the analysis established that the maximum dose would occur at a well located 200 meters from both generic sites. FEIS at A 13.
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09-Also, CANT assens that it is not conservative not to take credit for retardation and decay during venical transport. Supplement at 8, n.6. CANT claims there is no venical transport involved in the well scenario. Id. *fhis is not correct. The FEIS clearly states that for both of the generic sites the disposal facility will be below the deep aquifer, and the radionuclides must be transported venically to reach the aquifer. FEIS at A 10, A 11, Figure A.2. CANT provides nothing additionalin its Supplement to demonstrate that the doses calculated by the Staff are not credible.
E. CANT's Supplement Does Not Raise Ouestions of Law. Policy or Discretion CANT's Supplement does not improve its previous argument in its May 8,1997 petition for review regarding raising a substantial and imponant question of law, policy or discretion. In fact, the Supplement is replete with errors, misstatements and non record citations. In the last part of the Supplenrnt, CANT essentially summarizes its previous arguments and couples them with unfounded and gratuitous attacks on the integrity of the Staff. Supplement at 8 9.
As discussed above, CANT's assertions are without merit. The Staff neser claimed to base its study on the llanford site. The Staff did not incorrectly report ranges of values for sensitive parameters. The Staff did not misrepresent figures as the midpoint of the range.
CANT's Supplement does not raise a significant question of law, policy or discretion,but merely complains that the Licensing Board found the Staff s expen witnesses more credible than CANT's expart witness, and accepted the Staffs testimony while rejecting CANT's. Such a complaint does not meet any of the standards for Commission review.
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0 CONCLUSION For the reasons discussed above and in the Staff's May 23, 1997 Answer, CANT's petition, as supplemented, should be denied.
Respectfully submitted,
^
Richard G. Bachmann Counsel for NRC Staff i yt w re( CW Ann P. Hodsdon ,~ ,
Counsel for NRC Staff Dated at Rockville, Maryland this 18th day of December,1997 4
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UNITED STATES OF AMERICA 00CKETED USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMM1RRION '97 KC 18 P2 :39 in the Matter of ) OmCE OF SECmi.^!U
) RULEW R :S / w LOUISIANA ENERGY SERVICES, L.P. ) Docket No. 70-301%M190G0f M 'TAFF
)
(Claiborne Enrichment Center) )
CERTIFICATE OF SERVICE c
I hereby certify that cop!cs of "NRC STAFF'S RESPONSE TO INTERVENOR'S SUPPLEMENT TO PETITION 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, c: by deposit in the United States mail, first class, as indicated by an asterisk or by facsimile transmission with a conforming copy, as indicated by a double asterisk, or by hand delivery, as indicated by a t:iple asarisk, this 18th day of December,1997:
Thomas S. Moore, Chairman Richard F. Cole Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board
, U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commiselon Washington, DC 20555 Washington, DC 20555 Frederick J. Shon Mr. Ronald Wascom*
Administrative Judge Deputy Assistant Secretary Atomic Safety and Licensing Board Oflice of Air Quality &
U.S. Nuclear Regulatory Commission Radiation Protection Washington, DC 20555 P.O. Box 82135 Baton Rouge, LA 70884 2135 J. Michael McGarry, Ill, Esq." Peter LeRoy*
Winston & Strawn Duke Engineering & Services, Inc.
1400 L Street, N.W. P.O. Box 1004 Washington, DC 20005 Charlotte, NC 28201-1004
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2-Dr. W. Howard Arnold
- Marcus A. Rowden, Esq.*
1eulslana Energy Services, L.P. Fried, Frank, Harris 2600 Virginia Avenue, N.W. Shriver & Jacobsen Suite 608 1101 Pennsylvania Avenue, N.W.
Washington. rK' 20037 Suite 900 South Washington, DC 20004 Office of the Commission Appellate Office of the Secretary (16)*" ,
Adjudication ATTN: Rulemakings and Adjudications Mall Stop: 16-G 15 OWFN Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Board Nathalle M. Walker, Esq."
Panel Eanhjustice 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.*
Hannon, Curran, Gallagher & Spielberg Urerr.o 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
/ <
Richard G. Bachmann Counsel for NRC Staff L
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