ML20198G381

Nuclear Regulatory Commission Issuances for July 1997.Pages 1-20

ML20198G381
Person / Time
Issue date:	12/31/1997
From:	NRC
To:
References
NUREG-0750, NUREG-0750-V46-N01, NUREG-750, NUREG-750-V46-N1, NUDOCS 9801130019
Download: ML20198G381 (27)

Text

___- _-_____ _ _ _______

NUREG-0750 Vol. 46, No.1 Pages 1-20 NUCLEAR REGULATORY COMM SSION ISSUANCES July 1997 BREG9

1. y5.4  %

e "4

• • • +4 U,.S. NUCLEAR REGULATORY COMMISSION 113 971231 0750 R PDR l _____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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

k Available from i

)

Superintendent of Documents -

U.S. Government Printing Office RO. Box 37082 i Washington, DC 20402-9328 -

A year's subscription consists of 12 softbound issues, '

4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication "

are available from National Technical Information Service Springfield, VA 22161 -

b I

a Errors in this publication may be reported to the Office of the Chief Information Officer

!- - U.S. Nuclear Regulatory Commission

' Washington, DC 20555-0001 (301 ~-415-6844) _

I' I p

I'

\ .l-n

~ , ,- .

~ .  ;. .. ,

NUREG-0750 Vol. 46, No.1 Pages 1-20 NUCLEAR REGULATORY COMMISSION ISSUANCES July 1997 l

I This report includes the issuances received during the specified period from the Commission (CLl), the Atomic Safety and Licensing Boards (LBP), the Adrilinistrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Peti'.lons for Rulemaking (DPRM)

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.

U.S. NUCLEARHEGULATORY'COM911SSION Prepared by the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington. DC 20555-0001 (301 - 415 - 6844) i l

COMMISSIONERS Shirley A. Jackson, Chairman Greta J. Dieus Nils J. Diaz Edviard McGaffigan, Jr.

B. Paul Cotter, Jr., Chiti Adrninistrative Judge, Atomic Safety & Ucensing Board Panel i

..- -. .~ . ., . ~ ~ - ~ - .- .. . - . - , .

s

. b

.t

- CONTENTS -  :

'i t N lasuaeces of the Atende Safety _and Licendag Boards . 1 IlGRNATIONAll URAN 1UM (USA) CORPORATION - ,

f(White Mesa Uranium Mill) .

i  ;

~ l Docket 40-8681 MLA (ASLBP No. 97 72643-MLA) .

i(Rc: License Amendment)(Alternate Feed Material)

. MEMORANDUM AND ORDER, LBP 9712, July 23,1997 . . , . . . . <- 1 --

" NORTHERN STATES POWER COMPANYL r (Independent Spent Fuel Storage Installation) -

~ Docket 7218 ISFSI (ASLBP No. 97-720-01 ISFSI) -

! MEMORANDUM AND ORDER. LBP-9713.- July 30,1997 .~ . . . . . . iI ,

i t

I lascance of Director's Decision ~ ,

' MAINE YANKEE ATOMIC POWER COMPANY and YANKEE ATOMIC ELECTRIC COMPANY. '

. (Maine Yankee Atomic Power Station)

'f Docket 50 309 DIRECTOR'S DECISION UNDER 10 C.F.R.12.2%.

DD 97 17, July 3 0, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I

L 4

d h

s i F

c

Atomic Safety anc Licensing '

Boarc s issuances l l

l ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge James R Gleason,* Deputy Chief Administrative Judga (Executive)

Frederick J. Shon,* Deputy Chief Adr. nistrative Judge (Technical)

Members Dr. George C. Anderson Dr. Richard F. Foster Dr. Kenneth A. McCollom Charles Bechhoefer* Dr. David L. Hetrick Marshall E. Miller Peter B. Bloch* Ernest E. Hill Thomas S. Moore

• G. Paul Bollwerk 111* Dr. Frank F. Hooper Dr. Peter A. Morris ,

Dr. A. Dixon Callihan Dr. Charles N. Kelber a Thomas D. Murpny*

Dr. James H. Carpenter Dr. Jerry R. Kline* Dr. Richard R. Partzek Dr. Richard F. Cole

• Dr. Peter S. Lam

• Dr. Harry Rein Dr. Thomas E. Elleman Dr. James C. Lamb 111 Loster S. Rubenstein i

Dr. George A.Ferguson Dr, Linda W. Little Dr. David R. Schink Dr. Harry Foreman Dr. Emmeth A. Luebke Dr. George F. Tidey i

I Il l

4 1

• Permanent panel members l

.'i, I

l l

Cite as 46 NRC 1 (1997) L8P-9712 UNITED STATES OF .'.MERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Admhlstrative Judgee: ,

Peter B. Bloch, Presiding Officer Charles N. Kolber, Special Assistant in the Matter of Docket No. 40-tS81 MLA (ASLBP No. 97 726-03-MLA)

(Re: Licence Amendment)

(Alternate Feed Material)

INTERNATIONAL URANIUM (USA)

CORPORATION (White Mesa Uranium Mill) July 23,1997 Even after receiving detailed guidance from the Presiding Officer, Petitioners have not filed pleadings that demonstrate an injury in fact resulting from the proposed license amendment. 'ihey are, therefore, not entitled to a hearing.

ENVIRONMENT: ENVIRONMENTAL JUSTICE

- A uranium mill requested a license amendment to receive a different kind of feedstock material without any increase in the amount of radioactive material processed or disposed of. An allegation by some native American neighbors that they have been discriminated against by the license amendment does not demonstrate any improper discrimination against them.

1

MEMORANDUM AND ORDER;

• ' ' (Denying a Hearing)--

Memorandum .

~

. Here is little reason to suspect, based .on the pleadings, th t the requested license amendment would result in any harm to health and safety or to the~

environment. There is, however, an important issiae of conununication because -

'the infoemation 'available to the public in this case does not indicate the composition of the " Cotter Concentrate" that is the nexus of the complaint of =

the Native American Petitioners. His problem may be solved, even though the petitions for a hearing are denied._ .

The Native American Petitioners have not accepted the clear invitation to establish the basis for granting standing to them.- In this case, which involves an _ amendment to an operating license, it is incumbent on Petitioners to show zi how they are harmed by the amendment. Although I have provided guidance to I them about how to do that, they have not respondcd adequately to the guidance.

Consequently, the request for a hearing is denied. Petitioners may appeal this

' determination to the Commission.

In the abscrice of a hearing, the Staff of the NRC and International Uranium

-(USA) Corporation might consider providing information to assure the Petition-ets and the public that mixed wastes are not being processed or stored at White Mesa.

I. PROCEDURAL HISTORY nis proceeding involves a challenge to a license amend nent that was issued by the Staff of the Nuclear Regulatory Conimission (Staff) on April 2,1997.8 He amendment permits the receipt and processing of alternate feed material (l.c., material other than natural ore) at Licensee's White Mesa Uranium Mill .

located near Blanding, Utah. See 10 C.F.R. Part 40, Appendix A, which sets forth several desig criteria and requires that licensing decisions "take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved . . ."; 40 C.F.R. Part 192, Subparts D and E. See also the following nonbinding Staff guidance: " Final Position and Guidance on the Use of Uranium Mill Feed Material Other han Natural Orcs," 60 Fed. Reg. 49,296 (Sept. 22,1995). ,

'I Lenar from Ameph j Holonich. Chief, Uranium Recovery Branch. Division of waste Management. Oftwo of .'

Nuclear Marial Safety and safeguards, April 2.1997. Anachment 4 to the Lauer of $s Native Amencan Peoples Hiserical roundance, April 25.1997.

2-l 4

a +, - -p h .-4 x n-.wb- A o A- -.a

• s - + - 4 2a ,,~ m,

. De following requests for a hearing or for participation in a hearing have .

' been filed:

i 1. Native American People's Historic Foundation, Apcil 16,1997, Winston 1

- M. Mason, Head of Council.

/2. : Mr. Norman Begay, April 30, 1997.- Mr. Begay writes on behalf of =

himself and his community,

3. LWestwater Navajo Community, May 5,1997 Lula J, Katso, Community

-- Spokesperson. . _ _

. 4.- U.S. Department of Energy May 5,1997,- O. Leah Dever, Assistant

~ Man.ger for Environmental Management.

nne Staff filed its response on May 21,1997 (5taff Response). Subsequently, I issued LBP 9710, 45 NRC 429 (1997). Dat decision accepted the Staff-.-

Response, even though it was untimely. Pursuant to that decision, the following filings also have been received:

1. Native American Petitioners, by Norman Begay (White Mesa Utes),

Lula Katso (Westwater Navajo Community), and Winston Mason (Native American Peoples IIistorical Wundation, Inc., Orcat Aviknn House),

June 6,1997 (Supplemental Petition).

2. NRC Staff's Response to the Supplemental Requests for Hearing Filed by (Native American Petitioners) . .~ July 10,1997 (Staff Supplemental:

Response).

3. Response of International Uranium (USA) Corporation to Hearing Re-

. quests Regarding Amendment to Source Material License (IUSA Sup-plemental Response).

II. HASIS OF STAFF ACTION.

A. The Technical Evaluation Report (TER)

De Staff approved the issuance of a license amendment for White Mesa Uranium Mill in a ' Technical Evaluation Report for Request to Receive and Process Alternate Fuel Material, Docket No. 40-8681" (TER), sent to Energy

- Nels Nuclear, Inc., by letter of April 2,1997. See Attachment 4 to the Clarification of Petition for Standing of Great Avikan House, April 25,1907.

In the TER, at 2, the Staff concluded that the feed materird did not con-tain hazardous waste. He following language in the TER is, however, diffi-cult to understand and appears to be lacking a full explanation of its legal and 3-m , -

factual basis, perhaps because the request for an amendmerit redacted or omitted information claimed to be proprietary 2:

Under tie mRernate feed guidaam proposedfeed material whkh cont uns a htted hazardous warte will not be ppproved by the NRC staBfor processing at a licensed mill.1%ed materials which ethibit only a characteristic of hazardous waste (i c., ignitability, corrosivity, reactivity, or toxicity) would not be regulated as hazardous waste and could therefore be approved by the '

- stan for recycling and extraction of source material liowever, this does not apply to residues from water treatment Therefore, NRC staff acceptance of such residues as feed material would depend on their not connatning any han.rdous or characorristk (sic) hazardant waste.

The uranium-bearing rnaterial's owner has determined that the material does not contain a listed hazardous waste, flowever, the maternaldoes exhibit two characterirtscs of hatardous wasta corrosivity (due to a pH in excess of 12.5) and toxicity due to scienium concentrations above the Toxicity Characteristic Leaching Pro edure (TCLP) regulatory threshold. The material's owner has addressed these nadings with tle State Department of Environ mtal Protection (DEP) in the state in which the mater!al is located. He State DEP, which has been granted final authortration from the U.S. Environmental Protection Agency for the State-administered Resource Conservation and Recovery Act (RCRA) program, concurred to the material owner's determmation. Copies of thL correspondence between the material owner and tie State DEP were provided with the anendment application: the NRC stag has reviewed this correspondence andfinds the urantum bearing snaterial, while exhibiting charactertstics of ha:ardous warte, does not contam a listed hazardous warte.

The NRC StaE has determmed also that the eranium-bearing materialis not a residue from water treatment.

Derefore, the NRC staff considers the uranium-bearing material acceptable for recycling and eatraction of source material.

[ Emphasis added.]

Whether or not this waste is hazardous is not merely an academic concern.

The Native American People state, at 2 of their Supplemental Petition (citing, in Attachment C, slides purportedly presented on April 2,1997, by Colleen O'Laughlin, the Department of Energy's [ DOE's] Project Manager for the Cotter Concentrate Project):

The amendment covers 790,000 pounds of " Cotter Concentrate," defined as " Mixed Waste Containing Radionuelides and Hazardous Constituents, comprising 'Eight cight percent of NTS current hfixed Waste Inventory."'

Lula Katso, spokesperson for the Westwater Navajo Community, wrote, at I and 2 of a letter of June 7,1997, that:

ISee Request to' Anand Source klaterial Liceme SUA 1338, Wlues klesa hidl Docket No 448681, rev.

klarch 5,1997. This materal is Anachment 3 to the Request for Sta.hhng faxed to the NRC on Agril 16,1997, by the Native American Prople's thuorical Foundauan.

4 l

l' l-

The teach frids naght drain down into the canyon water and to the river.

The Supplernental Petition stated, in Attachment I,119, without citing any authority:

It islourl, , understanding that the centents of the Cotter Co centrate include radionuclides and hazardous constituents, some of which are heavy tr.stals, organic wastes and plutonium-244.

The filings indicate that there may be credible reasons for a fimding of the nonhazardous nature of the Cotter Concentrate, As previously me'itioned, the NRC treated much of the data about the Cotter Concentrate as proprietary, however, and kept it confidential. Therefore, the information is not publicly avk !able. Some public statements, including one made by the NRC before the Utah Radiation Control Board. May 9,1997 (Supplemental Petition, Appendix H, at 2,19), are equivocal as to whether the Cotter Concentrate is hazardous corrosively and toxicologically. The NRC has said, relying primarily on a health physicist, whose expertise may be limited to radiation safety:

prior to submitting the request for the license amendnwnt, Energy Ibels conducted an analysis of the issue end concluded the Cotter Concentrate does avr prestar any unique or estrm rdinary sqfety issues The NRC agreed that the material can be processed without posing additional risk or ist pacts to the environment. Energy Ibels3 employees or the public's heahh ard safety. The safety of the processing was confimed independently by a heahh physicist.1le reviewed the potential health and environmental hopa ts that may be associated with the processing of the Cotter Concentrate. He physicist found that the data demonstrated conclusively that the rnaterial has no potential to ine ease any radiation risk to the general pubhc or the environment. The company is takitig all of the radiation safety precautions to protect their emplopes, th6 public and the environment.

[ Emphasis added.]

11 Conclusion After reading the Staff's materials, I conclude that it is impossible for me to ascertain the basis for the Staff determination that this material is not hazardous, Tie basis is not found either in the TER or in a::y other material filed with me.

In particular, I do not know the composition of this material, how hazardous it is, or how a determiaation was made that the material "is not residue from water treatment." Since I earnot make these deteratinations, I understand the concerns of the Native Amrican Petitioners, whose fears cannot at this time be properly addressed by avail.tble facts.

3 Whue Mese %U was acquind from Energy Fuel Nuclear, hw., t>y IUSA, 5

Determining whether this material is hazardous is crucial to the consideration of the health and safety aspects of the concerns of the Native American Petitioners. llence, the Staff and IUSA may choose voluntarily to supply the legal and factual basis for this determination to the Petitioners and the public, III. CONCERNS: INJURY IN FACT A. The Law of the Case Above, I have just stated a concern about public information about the Cotter Concentrate. Nevertheless, the Native American Petitioners have not complied with NRC requirements for a hearing, including:

• They have not stated whom they represent.

• They have not stated in a sworn statement where any of the represented individuals reside or how far they reside from the alleged threat from the Cotter Concentrate.

• 'lhey have not provided a plausible scenario concerning how they may suffer health or safety consequences from the Cotter Concentrate' An earlier decision in this case, LDP 97-10,45 NRC at 431 states that "One way or another, a petitioner must show the specific injury that is fcared and how that injury might occur " It also states, at 431, that:

To show standmg, an individual or an organization must show how they nay be harmed

(*injary in fact' ) by the amendment.8 it is ty pical in our proceedings that an individual would subnut an affid. nit concerning where they live and how far that is from the proposed activity.

An organt.tation typically would file an aflidavit showtug that its interests as an organization will be injured or that a particular person or group of peopic, whom it is authonzed to represent, hve in particular addresses, statmg how far they hve from the proposed activity.

11. State of the Record it is a punie that the straightforward requirements of the law have been largely ignored even after effort has been expended to make thc requirements understandable.' What Petitioners' filings lack even now is:

' Alleged future events, sah as bnnging wastes from "I'ttnald and other doe sues." era not relevant to tbn heense request our arrenuon is huuied to the alleged evils of this 1:ceme amendment and this day.

3"The requirement of ' injury la fact' nest not be taken literally. k 6s fulfilled by demonstraung that there is reason in beheve an accident may occur. Cararnes of #As t!ntverrity e/ Musomrl LBP 9118,31 NRC 559. 566 (1990) Note that this subpart L caw interprets " injury in fact" in hght of the estent to which facts nuy be availaMe to a pecunai..."

'The Staff Supplernental Respom, at 312, is a actularly approach to the subject of standing as previously interpetted in this case 6

1 The specifte address of a person on whom the group relies la proving that it is placed at risk by the proposed twense amendnrnt.

2. The carnes of the peo;te who are mentcts or aie otherwise represented by the group and how they have ai,thonred representation. A precise description of the g mgraphical areos in which these members or represented people reside or live.

3. At least some supwAcial information about the paths that surface water or streams take in the area and the reason to beheve that represented individuals are at risk despite the precaunons and monitoring undertaken under the license to which this amendnrnt is requested.

4. The distance that pollution would have to travel to cause physical injury to

. ntesented individualt This could be measured along water or atmospheric pathways.

S Specincations of reasons to beheve in the inadequacy of the precautions taken by IUSA to prevent water and air polluuon.

It is my conclusion, after reviewing the last section of the TER, that this amendment makes very little substantive change in milling or tailing-disposal operations, making it difficult for Petitioners to show " injury in fact." The Staff found, at 3-4 of the TER, that:

(Tjhe processing of this materal will not result in (1) a significant change or increase in the types or amounts of effluents that may tw released offsite; (2) a significant increase in individual or cumulative occupauonal radiation exposure: (3) a significant construction impact; or (4) a signiQcant increase in the potential for or consequences from radiological accidents. This conclusion is based on the following information:

a processing of this material will not result in the currently-approved annual yellow.

cake production limit of 4380 tons being exceeded, b No physical changes to the mill etreuit are required to process this material.

c. Processing this material will not require EHN [or IUSA) to enlarge its taihngs' dnposal faciliues. ,

d. Trucks transporting the material to the mill site will be sursc>ed and decontam-inated, as necessary, in accordance with EBN [OR IUSA]'s procedures, before leavbg this site.

e. Employees invohed in handhng the material will be provided with personal protecuve equipment.

C. Pleadings of the Native American Petitioners Mr. Begay comes closest to alleging a ground for standing. He states:

Our Commumty and our water wells lie adjacent to, as well as downstream and downwind from the EBN [OR IUSA) hhlt. The radionucleids which make up the Cotter Concentrate 7

l l

i 1

originally came from Belgium Congo Orc containing approximately 60% Uranium, and now still contalo 10% Uranium. Not only does this hazardous waste contain extremely high 7

radioactivity and radon gas properties, but each time it is processed it adds further harmful constituents, wMeh are perhaps more immediately dangerous to human health than the radio-nuclides. According to reports, your agency, and the Departmers of Energy have stated that

- DOB is unable to stabilize the Cotter Concentrate, Therefore, on the basis of concerns for the health and safety of myscif, my family, and my community, I au for standing to argue against bringing these comaminants to the White Mesa khlt7 Mr. Begay, however, writes from a post office box and does not provide his residential home addres.s. a statement of how he is authorized to represent other Ute citizens, or the residence of any Ute citizen. Nor does his concern show an injury in fact resulting from the amendment, as contrasted with continuing operations of the mill under its existing license. So Mr. Begay fails to provide a basis for standing, either for his organization or himself.

Lula Katso, who is styled as "Spokesperson for Westwater Navajos,"' does not provide a residential address, a statement of authorization to represent other Navajo citizens, or the residence of any represented person. Lula Katso thus fails to show " injury in fact" or any basis for standing, either for the Westwater Navajos or personally.

Mr. Winston M. Mason, llead of Council of Great Avikan House, uses the address of the Native American lYoples llistorical Tbundation. He does not provide his own residence or the residence of any member of the Historical Foundation. Nor does he state the distance from White Mesa of the Native American Peoples Historical Foundation or any plausible explanation of how it might be harmed. He fails to provide a basis for standing, either for his organization or himself.

D. Environmental Justlee I conclude that, contrary to the position of the Native American Petitioners, the Executive Order 12898," Federal Actions to Address Environ:: :1 Justice in Minority Populations and Low-Income Populations"(1994) is not .mplicable.

'lliis case is about continued operation of a site that has already been licensed. It is my responsibility to evaluate the petitions and to ensure that health and safety is protected. There is no reason to think that this action could discriminate against Native Americans. 59 Fed. Reg. 7629.

7 Normen Begay's letter or Apr0 30.1997 at t.

8 Jet Lula Kano's letters or June 7.1997, and April 30, 1977. appeanng as atrachnwnia at the front or the Nauve American's Supplenuntal Feudon.

8

i J

_ i

-: E. Spiritual and Psychological Effects -

ne Native American Petitioners have expressed profound concerns about - ,

the effect of the placernent of the Cotter Concentrate near their ancestral burial .

grounds. While this argument strikes a responsive chord, it does not invoke any'-

legal authority, and 1 know of.no such authority. De Atomic Energy Act and

the National Environmental Policy Act are concerned with public health and '  !

l safety and harm to the human environment. See PANE v. NRC, 678 F.2d 222,  :

249 53 (D.C. Cir.1982), and Metropolitan Edison Co, v. PANE 460 U.S. 766,'

772 79 (1983).

IV. - NEGOTIATION : ,

he Presiding Officer would be pleased'to facilitate productive discussions among the parties. While the case is pending, this should be done in an open _

forum. After the time for appeal expires, if the case is no longer active, the -

facilitation could, with 'special app. oval of the NRC, occur at private meetings.

~ Order -

For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 23rd day of July 1997 ORDERED that:

1. Pursuant to 10 C.F R. 5 2.1205(n), the decision to deny the petitions to

, ~

intervene is appealabic to the United States Nuclear Regulatory Commission within ten (10) days of service of this Order of the Presiding Officer.

2. A petition for review and a response to a petition for review must meet the requirements of 10 C.F.R. 5 2.786(b)(2)-(6).

3. Pursuant to 10 C.F.R. 5 2.771, a petition for reconsideration of a final decision may be filed by a party within (10) days after the date of the decision.

He petition for reconsideration shall state specifically the respects in which the final decision is claimed to be erroneous, the grounds of the petition, and the relief sought. ~

4. ' Under 10 C.F.R. 6 2.734,' a party may file a motion to reopen a closed record to consider additional evidence. The motion must be timely, must ad.

dress a significant safety or environmental issue, and must demonstrate that

- 'This secuan is conuined in kunes of General Appucability and appears to have no parallel secuan in 10 C.F R.

Part 2. subpart t.,

9 __

~

k 4

a materially different result would be likely had the newly proffered evidence been considered initially.

Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDGE Rockville, Maryland 10

Cite as 46 NRC 11 (1997) LBP 9713 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chainnan Thomas D. Murphy Frederick J. Shon in the Matter of Docket No. 72-18-ISFSI (ASLBP No. 97 720-01 ISFSI)

NORTHERN STATES POWER COMPANY (Independent Spent Fuel Storage Installation) July 30,1997 he Licensing Board grants the Applicant's motion to withdraw its applica-tion and terminate the proceeding. (He Board thereafter on August 7,1997, considered a petition for reconsideration of this Order.)

MEMORANDUM AND ORDER (T t ninating Proceeding) his proceeding involves the application of Northern States Power Co.

(Applicant) for a license for an Independent Spent Fuel Storage Installation (ISFSI) at an away-from-reactor site. The Applicant on July 22,1997, wrote the NRC Staff withdrawing its license application and, by motion dated July 24, 1997, has moved to terminate this proceeding.

By Memorandum and Order (Motion to Suspend Proceeding), dated Decem-ber 3,1996, LBP-96-26,44 NRC 4%, we granted the Applicant's motion to suspend this proceeding pending the outcome of State-court litigation concern-11

ing the ISFSI site.' At the time, several petitions for leave to intervene had been filed. We had not yet ruled on contentions -indeed, we cancelled a forthcom-ing prehearing conference designed to consider, inter alia, various Pet itioners' proposed contentions. Accordingly, no Notice of Hearing has been issued or could appropriately have been issn.xl prior to the suspension.

• In filing its termination motion, the Applicant advises that the Stateeourt litigation is now complete and that it need not continue seeking a license for the proposed ISFSt. Under 10 C.F.R. 6 2.107(a), we have authority to grant a motion to terminate a proceeding. Where, as here, a Notice of Hearing has not been issued, it is inappropriate for us to evaluate or impose conditions on the termination. Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station. Units 1 and 2), LDP-86-37,24 NRC 719,724 (1986). That being so, we are granting the Applicant's motion to terminate without seeking the views of various parties or Petitioners for intervention.

Pursuant to 10 C.F.R. 5 2.760 of the Commission's Rules of Practice, this Memorandum and Order will constitute the final decision of the Commission forty (40) days from the date of its issuance, unless a petition for review is filed in accordance with 10 C.F.R. 5 2.714a or the Commission directs otherwise.

IT IS SO ORDERED.-

THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE

' thomas D. Murphy ADMINISTRATIVE JUDGE Frederick J. Shon ADMINISTRATIVE JUDGE Rockville, Maryland July 30,1997 12

1 .. _

~

y

/

i l Directors' 4

Decisions

Under l 10 CF9 2.206 co 2 -

' D _

l 0

W O

E

'D _ .-

i

' .u I

4 1 e e

O g

Cite as 46 NRC 13 (1997) 00-9717

- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J.- Collins, Director in the Matter of Docket No. 50 309 MAINE YANKEE ATOMIC POWER COMPANY and YANKEE ATOMIC ELECTRIC COMPANY-July 30,1997 (Maine Yankee Atomie Power Station) he Director of the Office of Nuclear Reactor Regulation grants in part a petition dated August 19,1996, submitted to the Nuclear Regulatory Commis-sion by Patrick M. Sers (Petitioner). De petition requests that the NRC: (1) fine Maine Yankee Atomic Power Company (MYAPCO) and Yankee Atomic Electric Company (YAEC) if records-regarding use of the computer code

-RELAP5YA have not been kept in accordance with YAEC's computer code quality assurance procedures, and (2) inspect all users of RELAP and fine those users not operating within required computer code verification procedures.

Because there is no basis to conclude that the problems identified with the RELAPS/ MODI vintage ECCS code used by MYAPCO are or may be present in the different RELAP code vintages at other NRC-licensed plants, because the two other users of the RELAPS/ MODI vintage code have been inspected or are permanently shut down, and because the NRC will conduct computer code inspections of selected NRC licensees and vendors, not limited to users of RELAP, Petitioner's first request is granted in part. By virtue of the NRC Staff's previous and current inspection and review activities, Petitioner's second request is granted in part.

13

f i

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 l i

1. INTRODUCTION On August 19,1996. Patrick M. Sears (Petitioner) filad a petition with the U.S. Nuclear Regulatory Commission (NRC) pursuant to section 2.2% of Title 10 of the Code of federal Regulations (10 C.F.R. I 2.206). Petitioner requested the NRC to (1) fine Maine Yankee Atomic Power Company (MYAPCO) and j Yankee Atomic Electric Company (YAEC) if records regarding use of the computer code RELAP5YA have not been kept in accordance with YAEC's '{

computer code quahty assurt.nce (QA) procedures, and (2) inspect all isers of RELAP and fine those users not operating within required computer code .

verification procedures.  !

As the basis for these requests, the petition states that (1) the May 5,1989 oral I

sti ternent of Steve Nichols, then licensing supervisor of MYAPCO, to Petitioner, then NRC Project Manager for Maine Yankee Atomic Power Station (MYAPF),

( that RELAP5YA was " operable" and would be used for subsequent reloads was l

false;(2) no computer code inspections were performed by NRC before a 1992 l

irapection at YAEC by Mr. Sears, and t ot again unut 1995; (3) when Mr. Sears was in the Vendor Inspection Branch, he was told not to do any more computer code inspections; (4) RELAP is widely used; (5) RELAP has beca shown to have serious deficle..cles; and (6) the RELAP problem is not confined to the i I

MYAPS but is endemic to the industry as a whole.

On September 24,'1996, Mr. William T. Russell, then Director of the Office ^

of Nuclear Reactor Regulation, acknowledged receipt of the petition. By letter dated April 14, 1997, Petitioner supplemented his petition by correcting his '

characterir.ation of Mr Nichols' comment, substituting the word " operational" for " operable."

11. BACKGROUND  ;

Ar a result of concerns regarding small break loss-of-coolant accident 3

(SDLOCA) analyses of emergency core cooling systems (ECCS) raised by the

- 1979 accident at Three Mile Island Unit 2, and pursuant to 10 C.F.R. 6 50.54(f', ,

the NRC required licensees to submit revised, documented SBLOCA analyses which were to meet the guidance provided in NRC's " Clarification of TMl Ac-tion Plan Requirements" (NUREG 0737 or TM1 Action Plan), Itw. II.K.3.30

-- ar.d ll.K.3.31. In response to the guidar.cc of item II.K.3.30, on January 14,

.1983 Maine Yankee submitted a report, YAEC.1300P, *RELAP,5YA: A Com-i puter Program for Light Water Reactor System Thermal Hydraulic Analysis" to - '

th6 NRC, In January 1989, the NRC approved RELAP5YA for use by Maine 14 i

e h'k

,#.v- ,- ,. ,,,M ...--. - - - - , -- ,n. .---- , - - - -w-w,,,,',r-.--ym,.y,-~.- , y,,.mm--. --,y . , . e- . ,n .y.. , v-

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

Yankee as a 10 C.F.R. Part 50, Appendix K evaluation mod I, acceptable to demonstrate compliance with the requirements of 10 C.F.R. 6 50.46, "Accep-  :

tance criteria for emergency core cooling systems for light water nuclear power i

reactors." RELAP5YA is a generic, non. plant specific LOCA conwer code for calculating ECCS performance over the small break portion c.f the break

spectrum, item II.K.3.31 of the Bil Action Plan states that licensees are to submit plant specific calculations using the SilLOCA evaluation model approved by the NRC pursuant to item 1113.30. In response to TMI Action Plan item II.K.3.31, YAEC prepared for Maine Yanker, a plant specific Appendix K RELAP5YA SDLOCA evaluation model analysis and prepared a reprt in June 1993 identified as YAEC 1868: " Maine Yankee $ mall Break LOCA Analysis."

The SilLOCA analysis described in YAEC 1868 was used to prepare Core Performance Analysis Reports (CPARs) which were submitted to the NRC as part of Maine Yankee's reload analyses for Cycle-14 and Cycle.15 operations, and was the SilLOCA analysis of record throughout Cycle-14 operations; it was not used during Cycle-15 operations because of the latervening Jr iuary 3,1996, " Confirmatory Order Suspending Authority for and Limiting Power Operation and Containment Pressure (Effective Immestately), and Demand for Informtflon" (Order),' 61 Fed. Reg. 735 (Jan.10,1996).

On December 4,1995, the NRC received allegations that, among other inings, YAEC, a: ting as agent for the Licensee, knowingly performed inadequate analyses of the emergency core cooling system (ECCS) to support two license '

'tmendment applicatitas to increase the rated thermal power at which MYAPS operates to 2630 MWt, and then to 2700 MWt. It was further alleged that YAEC mamagement knew skt the ECCS for Maine Yankee,il evaluated in accordance with section 50,46, using the RELAP5YA SilLOCA evaluation model, did not meet licensing requirements.

in response to the allegations, NRC dispatched an Assessment Team to YAEC headquarters between December 11 and 14,1995, to examine, among other things, SULOCA analyses, especially the SBLOCA analysis which supported the Licensee's operating Cycle 15 reload application. Dased on the Assessment Team review, and a meeting held with the Licensee on December 18,1995, the NRC Staff issued its January 3,1996 Order. he Order concluded, Inter alla, that the Licensee had rot demonstrated that computer code RELAP5YA would teliably calculate the peak cladding temperature for all break sites in the small-break LOCA spectrum for Maine Yankee and that, for a variety of reasons, the plant-specific application of RELAP5YA did not confort. to the requirements IAmong comr things. On Order hrmord eteration or MYAPS in 2440 MWs. pe whos NRC review and approval of a plant aputac 8BIDCA anatyWe that corifornu to TM1 Acuan Plan tienu 11 KA30 and !! K131 and that onceta de resparenants or secuan 50 46.

15 t

._ _ _ _ __ . _ . _ _ _ _ _ _ . _ . .=- _ _ _ _

I t

i of section 50.A6 and thus was not acceptable for use by the Licensee. De [

Order required the Licensee to W mit a SBLOCA analysis specific to Maine i Yankee for operation at power levels up to 2700 MWt, which must meet the. .,

requirements of acetion 50.46, and which must conform to the guidance of i l

NURE04737, items ll.K.3.30 and II.K.3.31,"SBLOCA Methods" and

• Plant-Specific Analysis," respectively, and NUREO-0737, item !!.K.3.5, " Automatic t

'Itip of Reactor Coolant Pumps During LCr.A."'Ihe Order suspended authority l to operate Maine Yankee at 2700 MW i..aximum power and limited power  !

to 2440 MWt, pending NRC review and approval of the required SBlOCA  ;

f antJysis. MYAPCO submitted the required SI)LOCA analysis specific to Maine Yankee on April 25,1996, and the NRC Staff is currently reviewing it, r

. He NRC also initiated an investigation by the NRC Office of Investigations  !

(01) to examine possible wrongdoing, ne NRC Staff is cunently reviewing

.the results of that investigation.

Ill. DISCUSSION A.: Do MYAPCO and Osher NRC Licenseeg Wiso Une RELAP Operate l

' Within Required Computer Code VeriAcation Procedures? .

lYtitioner toquests that the NRC inspect all users of Ril.AP and fine those users not operating within required computer code verification procedures. 'The Staff presumes that the phrase " required computer code verification proctJures,"

as used by Petitioner, rneans the conditions, if any, of the NRC's approval of the computer code, as well as the Licena e vendor quality assurance (QA) procedures pursuant to 10 C.P.R. Part 50, Appendix B.

Den are many vintages of RELAP, which was developed by Idaho National

• Engineering laboratory, such as RELAP4 RELAP5 MODI, RELAP5/ MOD 2,- -

and RELAP5 MOD 3 (higher suffix numbers indicate more current vintages).

Major improvements were made in each new vintage, including the use of more -

sophisticated modeling of two phase flow. For example, RELAP5 MODI has a "misture" rnodel with five governing equations, whereas RELAP5 MOD 2 has a full two fluid treatment with six equations.

Each vintage of RELAP has many versions, representing primarily modi- f' fications in suppceting models on constitutive relationships and corrections of errors. Idaho National EnF ineering Laboratory maintains a reporting system for .

- problem: discovered by users of th code, which are prioritized and referred ,

to the code development staff for resolution. Therefore, it cannot be assumed

- that a problem with a particular RELAP vintage or version also exists in other

- RELAP vintages or versions.

Vendors or licensees who use RELAP codes to support license applications t

normally take a specific vintage or version of RELAP aad create their own 16 [

5 i

1

r variations by mraing modifications and adding ee.tain features, such as those required by 10 C.F.R. Part 50, Appendix K 'fhe RELAP codes used by different vendors and licensees are not necessarily developed from the same versions or vintages of RELAP. Ihr example, the RELAP5YA code used by YAEC for Maine Yankee SilLOCA analysis was derived from RELAP5/ MODI, while most other RELAP codes used for the ECCS analyses of NRC-licensed nuclear plants were derived from diffescat vintages, namely, RELAP4 or RELAP5/ MOD 2, liefore a vendor modified or licensee modified RELAP code is m,ed for li-censing applications, it rnust be reviewed and approved by the Staff. The Staff's review and approval will require, arnong other things, beachmark compariso,e of the code's predictions against experimer,tal test data, in inany cases, the Staff's approval of a licensing RELAP code imposes conditions or restrictions for ap-niication of the code to ensure that licensing calculations are acceptably conser-vative, in accordance with the requirements of section 50.46 and Appendix K to Part 50. De implementation by a licensee or vende of an approved emergency core cooling system (ECCS) code is controlled by the licensee's or vendor's own quality assurance programs in accordance with Appendix B to 10 C.P.R.

Part 50. '

In view of the above, it cannot be presumed that all other vintages of RELAP codes used by the industry have the same deficiencies as those ex.

perienced by Maine Yankee with its particular vintage of RELAP, that is, RELAP5/MODl. Two NRC licensees other than Maine Yankee, however, used the RELAP5/ MODI vintage, that is, Yanbe Row: Nuclear Power Station and Vermont Yankee Nuclear Power Station. Yankee Rowe Nuclear Power Station

'sas been permanently shut down for decommissioning since October I,1991.

In May 1996, the NRC Staff conducted an 1:CCS code and analysis inspection, and in June 1996, a special inspection of Vermont Yankee As a result, the NRC issued a Notice of Violation and Proposed Imposition of Civil Penalty -

$50,000 (EA 96-210) on August 23,1996, for the licensee's failure to assume

= a specific failure r,cenario in the LOCA analysis. In that enforcement action, the NRC Staff also concluded that Vermont Yaakee's corrective actions were prompt and comprehensive. With respect to Maine Yankee, the NRC Staff has examined MYAPCO's use of RELAP5YA through the Assessment Team re-view and the 01 investigation. De Staff's evaluation of Maine Yankee's use

- of RELAP5YA in ongoing with regard to any violations of NRC requirements, includins; section 50,46. The Staff will keep Petitioner informed by providing Petitioner with copies of publicly available inspection reports and enforcement actions.

Petitioner, nonetheless, correctly points out that the NRC Staff should conduct ECCS code and analysis inspections more frequently, in February 1997, the Staff's Maine Yankee Lessons Learned Task Group provided its report to the Commission, "Repart of the Maine Yankee Lessons Learned Task Group" 17 L~-s, m

~ .. - - - - . - __

t I

(Dec. 5,1996), Attachment i to SECY.97-042," Response to 010 Event Inquiry Regarding Maine Yankee" (Ibb. 18, 1997), The Task Group identified a need '

to I Jace additional emphasis on (1) audits and inspections of implementation by licensees and vendors of their ECCS codes and methodologies, not limited to j

-i the var as RELAP codes, and (2) verification of the conformance by licensees and vendors with the conditions specified in the NRC Staff's Safety Evaluation Reports as a basis for determining whether codes and methodologies conform '

with NRC:equirements. The Task Group also addressed inspe.tions pursuant to the Core Performance Action Plan, performed to assess the impact of reload core i design activities on plant safety, Licensees or vendors found to be in violation of NRC r egulations will be subject to enforcement actions.- _

As explained above, there is no basis to conJude that the problems identified with the 1LELAP5/ MODI vintage ECCS code used by Maine Yankee are or may be present in the different RELAP code vintaus at et NRC licensed plants. l Additionally, the two other users of the RELAP5/ MODI code vintage have either been inspected (Vermont Yankee) or are permanently shut down (Yankee Rowe). -!

Nevertheless, the NRC will conduct computer code inspections of selected NRC licensees and vendors, not limited to users of RELAP, as explained above.

i In view of the above, Petitioner's request to inspect all u:ers of RELAP

,and to fine those users not operating within required computer code verification procedures is granted in part, since some users of RELAP will be included in '

- forthcoming computer code inspections and since Maine Yankee and Vermont Yankee have already been inspected. i it. Have MVAPCO and YAEC Kept Recortis of the Une of the RELAP '

ECCS Computer Code in Accordance with YAEC's Computer Code Quality Assurance Procedures?

Petitioner requests that the NRC fine MYAPCO and YAEC if records regard-f- ing use of the computer code RELAP5YA have not been kept in accordance with YAEC's computer code quality assurance (QA) procedures. The NRC Staff's '

review of the application of RELAP5YA for Maine Yankee between Decem-ber 11 and 14,1995, focused on the adequacy of the RELAP5YA SBLOCA analysis to support operntion of Maine Yankee during Cycle 15. In particular, the Staff evaluated conformance of the code to SER conditions and compli.  ;

ance of the ECCS evaluation model with regulatory requirements. Although the Staff's review did not focus on record-keeping requirements, the Staff did not identify instances in which the appropriate records had not been kept.1hc

. Staff is continuing its evaluation of RELAP5YA for compliance with other NRC requirements, Siemens Power Corporation (SPC) has prepared a plant specific SBLOCA ECCS evaluation model for Maine Yankee, which has been submitted by 18 i

t l

f y ,m_.3,y r-e---v,g, +w-w.-,-,e-- - -e,y,-3 --, . ,,, ., , m.. r-

t Maine Yankee in response to the January 3,1996 Order. The evaluatior model is based on SPC's ANF-RELAP SBLOCA methodoloFy which was originally approved by the NRC in 1989, with further modifications approved by the NRC in 1994. Between libruary 10,1997, od April 4,1997, the Staff conducted a four-week QA inspection of SPC. The inspection included a comprehensive review of documentation associated with SPC's LDLOCA and SDLOCA ECCS evaluation rnodels, including the approved ANF RELAP SDLOCA methodology. The Staff's findings associated with ANF RELAP will be documented in the inspection repo,t, which will be issued by the NRC in the riear future. A copy of the inspection report will be provided to Petitioner when it is publicly availat ne. In addition, the NRC Staff is cunently performing a detailed technical review of the plant-specific ANF-RELAP ECCS evaluation model prepared by SPC for Mainc Yankee, and submitted by Maine Yankee.

The Staff's evaluation of the plant specific evaluation model will be documented in a Safety Evaluation Report (SER) when completed. "Ihe Staff concludes that these activities respond directly to the issues raised by Petitioner, in view of the above, the Petitioner's request for a QA inspection of Maine Yankee's and YAEC's use of RELAP ir granted in part, by virtue of the Staff's previous and current inspection and review activities. Additionally, the Staff will keep Petitioner informed by providing Petitioner with publicly available inspection reports, enforcement actions, urid other documents as appropriate.

IV. CONCLUSION As explained above Petitioner's request to inspect all users of RELAP and fine those users not operating within required computer code verification procedures is granted in part. Petitioner's request to fine MYAPCO and YAEC if records regarding use of the computer code RELAP have not been kept in accordance with YAEC's computer code quality assurance procedures is also granted in part.

A copy of this Director's Decision will be filed with the Secretary of the Commission for Commission review in accordance with 10 C.F.R. 5 2.206(c) of the Commission's regulations. As provided i / this regulation, this Director's Decision will constitute the final action of the Commission 25 days after issuance 19 l

d i

I unless the Commission, on its own motion, institutes review of the Decision  !

within that time.  :

FOR T11L NUCLEAR REGULATORY COMMISSION l Samuel J. Collins, Director - t Office of Nuclear React (x

, Regulation l Dated at Rockville Maryland, this 30th day of July 1997. r i

I

}

t 20 I

s W W - * , - -

--e e- p.=ir9- pg ,* - - - >- w*W . +v-m= - W-T