ML20198R038
| ML20198R038 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/09/1998 |
| From: | Marco C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#198-18731 ISFSI, NUDOCS 9801230202 | |
| Download: ML20198R038 (13) | |
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16 AN 12 P5 36 UNITED STATES OF AMERICA NUCLEAR REGUL ATORY COMMISSION OFFCF OF SECRiMW BEFORE TliE ATOMIC SAFETY AND LICENSING BOARII
[ [ [ fpp In the Matter of
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PRIVATE FUEL STORAGE,I LC
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Docket No. 72 22 ISFSI
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(Independent Spent
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l Fuel Storage Installation)
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l NRC STAFF'S RESPONSE TO STATE OF UTAll'S REOUEST FOR CONSIDERATION OF LATE FILED CONTENTIONS EE AND FF l
INTRODUCTION Pursuant to th Atomic Safety and Licensing Board's " Order (Granting leave to ' file Response to Contentions and Schedule for Responses to Late Filed Contentions)," dated December 31,1997 (Board Order), and 10 C.F.R. I 2.714(c), the staff of the Nuclear Regulatory Commission (Staf0 hereby responds to the " State of Utah's Request for Consideration of Late Filed Contentions EE and FF" (" Late-Filed Contentions"), dated December 23,1997. For the reasons set fonh below, the State's Late Filed Contentions should not be entertained for failure to satisfy the balancing test set forth in 10 C.F.R. I 2.714(a)(1)(i)-(v) for late-filed contentions, or, altematively, should be admitted in the manner and to the extent set forth below.
BACKGROUND In its " Memorandum and Order (Ruling on Motions to Suspend Proceeding and for Extension of Time to File Contentions)" (Extension Order), dated October 17,1997, the Licensing Board orderW m' heving request / intervention petition supplements, including contention lists, be filed
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2-by November 24,1997.' Extension Order at i1. On or about November 24,1997, contentions were filed by each of the petitioners for leave to intervene in this proceeding.' On December 24,1997, i
the Staff and Private Fuel Storage LLC. (Applicant) filed their responses to tne petitioners' contentions. Ser Staff's Response to Contentions:" Applicant's Answer to Petitioners' Ccatentions" (Applicant's Response)'
Meanwhile, on December 23, 1997, the State filed its Late Filed Contentions. On 1
December 31,1997, the Board issued its Order, which, among other things, provided that responses to the State's late filed contentions pleading shall be filed by January 9,1998. Board Order at 2.
DISCUSSION A.
The State lias Failed to Meet the Standards for Late Filed Contentions.
1.
inal Standards for Late Filed Contentions The criteria to be considered when determining the admissibility of a late-filed contention are set forth in 10 C.F.R. 2.714(a)(1)(i)-(v). Sacroornto Municipal Utility District (Rancho Seco Nuclear Generating Station), CL193 12,37 NRC 355,363 (1993). The five factors are:
(i) Good cause, if any, for failure to file on time.
This date reflected the Board's grant of a thirty-day extension of time for filing of contentions at the request of the State. Src Extension Order at 8 9; see also " State of Utah's Motion for Extension of Time to File Contentions," dated October 1,1997, 1
A list of the various Petitioners' filings is set forth in the Staff's December 24,1997,"NRC 2
Staff's Response to Contentions Filed by (1) the State of Utah,(2) the Skull Valley Band of Goshute Indians, (3) Ohngo Gaudadeh Devia, (4) Castle Rock Land and Livestock L.C., et al., and (5) the Confederated Tribes of the Goshute Reservation and David Pete," at 1-2 and nn,2 6 (Staff's Response to Contentions).
8 The Board had extended the original response date of December 22,1997 to December 24, 1997. Sec " Order (Granting Motion for Extension of Time to File Responses to Co.entions and Supplemental Petitions," dated December 18,1997.
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3-(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's panicipation may reasonably be expected to assist in developing a sound record.
I (iv) The extent to which the petitioner's interest will be represented l
by existing parties.
(v) The extent to which the petitioner's participation will biwiden the issues or delay the proceeding.
10 C.F.R. 6 2.714(a)(1). Although the regulations call for a balancing test, it has been long held that where a petitioner fails to show good cause for filing its contention late, the other four factors must weigh heavily in its favor in order for its petition to be granted. Sec, e.g., Virg/nla Electric Power Co. (North Anna Station, Units I and 2) ALAB 289,2 NRC 395,398 (1975); Public Service Co.
ofNew Hampshire (Seabrook Station, Units 1 and 2) LBP 90-1,31 NRC 19,34 (1990), ag'd on other grounA ALAB-938,32 NRC 75 (1990); Commonwealth Edison Co. (Braidwood Nuclear Power Station Units 1 and 2), LBP-8511,21 NRC 609,629 (1985). In addition to the showing that a balancing of the five factors favors intervention, a petitioner must also meet the requirements for setting forth a valid contention.10 C.F.R. 6 2.714(c)(2).
2.
The State lias Failed to Establish Good Cause For the late Filing of These Contentions.
As suppon for the filing ofits late-Filed Contentions, the 3 tate claims that until November 13,1997, it was not able to obtain and review the proprietary information on which its late filed contentions are based. Late Filed Contentions at 1-2. Nevenb iess, the State notes that it had obtained non-proprietary parts of the Holtec Repon Calculation Package as early as September 1997.
Id. at 2. The State does not specify what information,if any, it needed from the proprietary version of the report that was not already in its possession in September. Absent a showing that it needed
4 the proprietary information to fonnulate its contentions, the State has not demonstrated good cause for filing its contentions late. See Duke Power Co. (Carawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC INI,1043 (1983)(unavailability of a document does not constitute good cause for filing an untimely contention when the factual predicate for the contention is otherwise available).
Funber, the Staff notes that except for its complaint that the preparation of contentions c,n the nonproprietary ponions oithe application ecmumed all ofits time until the Board's Nove nber 24, 1997, filing date, the State does not provide any explanation as to why it could not have submitted its contentions on time. The appropriate action in these circumstances would have been for the State to file a request for an extension of time before the Board for the filing of these contentions, rather than to ignore the November 24,1997, filing date and to seek to file the contentions late.
The State's failure is particularly egregious in that its request for an extension of time of October 1,1997, is largely based upon its assertion that it needed time to review the 1,500 page calculation package. The State asserted:
At a meeting held by PFS in Tooele County on September 11, the State learned for the first time that some time in July, PFS had submitted a multi volume calculation package to the NRC. The
}iackage contained about 1,500 pages of computations concerning such significant matters as storage pad parameters, cask stability, ground motion and settlement, storage pad analysis, geotechnical design criteria and parameters, meteorology, raciation protection, and dose calculation 2. Upon the State's request, PFS provided a copy of the calculations on September 22,1997.'
In its Extension Order of October 17,1997, the Licensing Board, in granting the State's request for an Extension of Time, stated as its most imponant consideration the State's need to provide its d " State of Utah's Motion for Extension of Time to File Contentions," dated October 1,1997, at 3-4.
5 expens with more time to review the application. See Extension Order at 8. To this end, the Board reasoned that "[g]! :n the length and complexity of the original application (which is in excess of 2000 pages) and the State's more recent acquisition of some 1500 additional pages of technical calculations that support the application, we agree with the staff that an extension for filing contentions is warranted." Extension Order at 8. The Staff submits that in light of the fact that the Board granted the State's extension request for the express purpose of reviewing the calculation package, the State's failure to review this package and submit contentions by the date set by the Board in its Extension Order demonstrates the absence of good cause.
Further, it is significant that no showing has been made by the State that it could not have obtained the proprietary version of the repon in question prior to November !?,1997. The State has had the license application in its possession since June 25,1997,5 and has had the non proprietary ponions of the calculation package in its possession since some time in " September of 1997." Late-Filed Contentions at 2. No reason has been provided to show that the State could not reasonably have obtained the proprietary version of the llottee report prior to November 13,1997, nearly five months after it received th: application and two months after it received the non-proprietary ponions of the report. Finally, although the State indicates that the preparation of contentions on other ponions of the license application " consumed virtually all of the State's attomey's ad experts' time until November 24,1947" (Id.), the State fails to indicate any reason why it chose to defer review of the calculation package until it had finished its review of and preparation of contentions on other 8 See " State of Utah's Mudon for Extension of Time to File Contentions," dated October 1, 1997, at 2,
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6-portions of the application. ~ Accordingly, the State has not demonstrated good cause for the late
- filing of these contentions.
l 3.
Other Factors
'Ihe Staff believes that the other factors specified in 10 C F R I 2 714(a)(1) marginally weigh 1
in favor of consideration of the State's late filed contentions - but the State has no'shown that, on
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balance, these factors compensate for the State's lack of good er '
failing to fileits contentions l
by the November 24,1997, doe date. In this regard, other means 1 not appear to be available to
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protect the State's interest with respect to the issues raised in these late filed contentions; the.itate's r
participation may be expected to assist in developing a sound record with respect to these issues; and
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~ he State's interest may not be represented by existing parties with respect to these issues. However, l
t the admission of these late filed contentions will certainly broaden the issues in this proceeding and I
will commensurately delay the proceeding. With respect to this Inst factor, the contentions set forth i
. by the State raise centain matters that have not been previously alleged, and the disposition of these contentions could require special procedures and hearing sessions for the handling of proprietary information. See Board Order at 2 3 (establishing procedures regarding treatment of proprietary
. information that may be addressed in conjunction with the State's late filed contentions).
The Staff submits that the State's failure to establish good cause for filing these contentions out of time outweighs the other factors in this balancing test, given the State's awareness of the existence of the infermation and its failure to request an extension of time for the submission of.
itheE contendons For these reasons the State's Late Filed Contentions should not be entertained r
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7 B.
Staff Resoonse to Contentions EE and FF.
The Staff's response to the State's two late filed contentions is as follows:
Utah Contention EE. Failure to Demonstrate Cask Pad Stability During Seismic Event The Applicant has failed to demonstrate that storage casks and pads will remain stable during a seismic event.
Accordingly, tbc Applicant fails to satisfy 10 C.F.R. il 72.122(b)(2) and 72.128(a).
Staff Response:
The Staff objects to the admission of this contentit n, in p at, insofar as it repeatedly asserts that the Applicant's calculation package or proprietary portions thereof do not present sufficient infonnation to allow the State to determine whether the Applicant's analysis is sufficient. See Late.
Filed Contentions at 5,6-7,8, and 12. Such assertions fail to demonstrate the existence of a genuine dispute with the Applicant, and therefore do not satisfy the requirements of 10 C.F.R.
I 2.714(b)(2)(ii)-(iii).
Utah Contention FF. Inadequate Analysis of Radiation Shielding PFS has not demonstrated satisfaction of NRC dose limits at 10 C.F.R. 6 72.104, because its analysis of radiation shielding for the proposed PFS facility is inadequately documented or explained.
Staff Response:
The Staff opposes the admission of this contention, with exceptions noted below, on the grounds that it does not show with specificity that a genuine dispute of material fact exists with the Applicant, and fails to set forth facts to suppon the underlying assumptions of the assertions contained in the basis statements. 10 C.F.R. I 2.714(b)(iii).
In this contention, the State raises three areas (source term, dose calculations, and uncenainty analysis / conservatism) that it cbims are insufficiently addressed in the dose rate analysis. Late-
-8 Filed Contentions at 13-17. The State first claims, with respect to the source term, that the lloltec analysis is inadequate because it "gives no indication that it has considered transuranic and alpha-n reactions, which are inherent neutron sources," which "may result in underestimation of the source term, which could in tum lead to underestimation of doses." Late Filed Contentions at 13.
Ilowever, the State does not address lloltec's source term analysis, which is summarized in the lioltec Radiation Shielding Report (Shielding Repon). Shielding Report at 6 7.0. The lioltec Shielding Repon references the Topical Safety Analysis Report (TSAR) for the III Storm 100 Cask System (111951312). Shielding Repon at i 7.1. TSAR Section 5.2, " Source Specification,"
discusses the neutron and gamma source term analyses. In panicular, section 5.2.2 provides a discussion of the neutron source term for zircaloy clad fuel, indicating that, among other things, alpha n reactions were considered, and section 5.2.3 discusses stainless steal clad fuel source for both gamma and neutron source terms. In addition, the calculated neutron source per assembly, by energy range, is listed in TSAR Tables 5.2.15-5.2.20. The State does not provide any discussion of Iloltec's analysis to show that it is in error. Therefore, the State has not met the specificity requirements of 10 Cf.R. 5 2.714(b)(iii).
The State also claims, with respect to the source term analysis, that lioltec provides no evidence that it considered the multiplication effect on the neutron source term of multiple casks.
Late-Filed Contentions at 14. The State claims that the multiplication of fission neutrons by adjacent casks may increase the neutron source term by a factor of 1.5 or two. Id. The State's claim that the multiplication effect would increase the source terms by a factor of 1.5 or two is not supponed by any supporting facts or expen analysis, and, therrfore, is insufficient to show that there exists a genuine dispute with the applicant with respect to this issu-
9 With respect to dose calculations, the State claims lht lioltec has provided insufficient information to demonstrate adequacy of its dose calculation "for the horizontal and vertical cornponents of radiation transport." late Filed Contentions at 14. The State claims that lloltec's analysis of modeling doses out to 550 and 1,050 meters from the center of the cask and extrapolating doses from that point is inadequate in that: (1) 11oltec has not shown where the peak dose occurs or how the calculations were integrated in a single dose; (2) lioltec's use of extrapolation instead of actual modeling is not " consistent with fundamental principles of shielding analysis"; (3) lloltec does not account for effects on doses of a large array of casks at the ISFSI; and (4)11ollec has not demonstrated that it considered contributors to skyshine doses. Late-Filed Contentions at 1417.
The Staff opposes these issues, with three limited exceptions noted below, on the grounds that the State has failed to provide suPicient factual support or expert analysis to show that a genuine dispute exists with the Applicant with respect to lioltec's dose calculation. The State first does not provide information to show that an analysis of peak dose is required for this application and does not provide any support to show that lloltec's integration of the two distances in its dose calculation is not adequate. The State does not address lloltec's discussion in section 7.6 of the Shielding Report that "[s]ince the combined width of all of the casks is approximately 400 meters, the distance from the first cask to the ite boundary is approximately 650 meters (600 meters + 150 feet) and the distance from the last cask is approximately 1050 meters." Further, as noted above with respect to Late-Filed Contention EE, the State's claim that lloltec has not provided sufficient information with regard to its calculation is insufficient to show that a material dispute exists with the applicant on this issue. Sec 10 C.F.R. I 2.714(b)(iii).
10 With respect to the State's claim that extrapolation is not consistent with " fundamental principles of shielding analysis"(Late-Filed Contentions at 15), this assenion is not supponed with any facts or expen opinion explaining what these " fundamental princip%s" are; nor does the State explain the rationale for its assertion that lioltec's use of extrapolation fails to meet accepted analytical principles. With respect to the State's claim that lioltec has not provided sufficient data on assumptions used to support extrapolation (Id.),lioltcc has provided the assumptions used in extrapolating the dose at a distance of two miles, lloltec Radiation Shielding Report at i 7.7.
Inasmuch as the State has not provided any discussion or analysis to show that lioltec's assumptions are in error, this issue should be rejected.
The State's discussion regarding the dose effects of a large array of casks at the ISFSI(Late-Filed Contentions at 1516), in large part, fails to show that a genuine dispute exists with the Applicant The State does claim, with specificity, that lloltec neglects the effects of small angle scattering (/d. at 15 16), that lloltec does not explain the effects of particle release from the upper portion of the sides of the cask (/d. at 16), and that lioltec does not explain the effects of skyshine
(/d. at 1617). Ilowever, the State has not set fonh any other information in suppon of this issue that demonstrates that a genuine dispute exists with the Applicant pertaining to dose effects of a large array of casks; therefore, if this contention is admitted at all, it should be limited to the three matters that have been sufficiently particularized by the State, as discussed above, With respect to the State's claim that no evidence exists that lioltec performed any uncertainty or sensitivity analysis on its calculations and that lioltec fails to suppon its claim that its analysis is conservative (Id. at 17), the State has not provided any support, with reference to the information in support of the application, to show that the application is in error, In determining
11 radiation sources, section 7.2," Radiation Sources" of the Applicant's Safety Analysis Repon (SAR) describes the assumptions used to determine the bounding fuel. The SAR also indicates that 11oltec had performed calculations using the SAS21{ and ORIGEN S computer models to confirm which fuel would have the source strengths that bound all other boiling water reactor and pressurized water reactor fuel assemblies. SAR $ 7.2. The results of the computer program McNP calculations for dose rates, found in the Radiation Shielding Report, do include relative error for each distance.
Shielding Report at 31-35. In failing to discuss these or other relevant portions of the application, the State has not shown that it has a genuine dispute with the Applicant with respect to this matter, and therefore, this issue should not be admitted for litigation.10 C.F.R. 5 2.714(b)(2),
in sum, the State's Late-Filed Contention IP should be rejected, with the exception of three issues penaining to dose calculations, for failure to satisfy the requirements of 10 C.F.R.
I 2.714(b)(2)(iii).
CONCLUSION For the reasons set fonh above, the Staff submits that the State of Utah has not demonstrated good cause for filing its contentions late, and has not satisfied the balancing test set fonh in 10 C.F.R. 5 2.714(a)(1)(i)-(v) for late filed contentions. Otherwise, Contentions EE and FF should be admitted,if at all,in the manner and to II+ ntent set fonh above.
Respectfully submitted, bch WW Catherine L. Marco Counsel for NRC Staff Dated at Rockville, Maryland this 9th day of January 1998
r 00CKETED l
UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND IJCENSING BO&JAN 12 PS :M f
In the Matter of
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OFHCf OF SECPJiijmy
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RULELMN3S /40 PRIVATE FUEL STORAGE, LLC
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Docket No. Q.gjjCNS MAFF
)
(Independent Spent
)
Fuel Storage Installation) _
)
CERTIFICATE OF SERVICE r
I hereby certify that copio of "NRC STAFF'S RESPONSE TO STATE OF UTAH'S REQUEST FOR CONSIDERATION OF LATE FILED CONTENTIONS EE AND FF" in the above captioned proceeding have been served on the following through deposit in the, Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk, by Email (with conforming copies by deposit in the Nuclear Regulatory Com;.ilssion's internal mail system or by deposit in United States mail, first class) this 9th day of January,1998:
Office of the Secretary G. Paul Bollwerk, III, Chairman
- 4 ATTN: Rulemakings and Adjudications Administrative Judge Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 (E mail copy to GPB@NRC. GOV)
Dr. Peter S. Lam
- Administrative Judge Dr. Jerry R. Kline*
Atomic Safety and Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission (E mail copy to PS14NRC. GOV)
Washington, DC 20555 (E mail copy to JRK2@NRC.G01)
James M. Cutchin, V*
. Atomic Safety and Licensing Board Atomic Safety and Licensing Board
- U.S. Nuclear Regulatory Commission Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission (by E mail to JMC3@NRC.OOV)
Washington, DC 20555 7
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2-4 Office of the Commission Appellate Jean Belille, Esq
- Adjudication Land and Water Fund of the Rockies Mail Stop: 16-015 OWFN 2260 Baseline Road, Suite 200 U.S. Nuclear Regulatory Commission Boulder, CO 80302 Washington, DC 20555 (E mail copy to landwater@lawfund.org)
Denise Chancellor, Esq.*
Danny Quintana, Esq.*
Fred G. Nelson, Esq.
Danny Quintana & Associates, P.C.
Utah Attorney General's Office 50 West Broadway 160 East 300 South,5th Floor Fourth Floor P.O. Box 140873 Salt lake City, UT 84101 Salt Lake City, UT 84114-0873 (E-mail copy to quintana (E mail copy to dchancel@ Suite.UT.US)
@Xmission.com)
Connie Nakahara, Esq.*
Clayton J. Parr, Esq.*
Utah Dep't of Environmental Quality PARR, WADDOUPS, BROWN 168 North 1950 West GEE and LOVELESS P. O. Box 144810 185 S. State St., Suite 1300 Salt take City, UT 84114-4810 P.O. Box 11019 (E mail copy to enakahar@ state.UT.US)
Salt Lake City, UT 84147-0019 (E mail copy to karenj@pwlaw.com)
Diane Curran, Esq.*
Harmon, Curran & Spielberg John Paul Kennedy, Sr., Esq.*
2001 S Street, N.W., Suite 430 1385 Yale Ave.
Washington, D.C. 20009 Salt Lake City, UT 84305 (E mail copy to dicurran@aol.com)
(E rrall copy to john @kennedys.org)
Jay E. Silberg, Esq.*
SIIAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, N.W Wa.hington, DC 2003 % 8007 (E mail copy to jay,_silberg
@shawpittman.com)
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3 Catherine L. Marco Counsel for NRC Staff e