ML20198R377
| ML20198R377 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 01/07/1998 |
| From: | Chancellor D UTAH, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#198-18734 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9801230294 | |
| Download: ML20198R377 (15) | |
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f ussc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In the Matter of
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Docket No. 72-22.ISFSI PRIVATE FUEL STORAGE, LLC
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ASLBP No. 97-732-02-15FSI (Independent Spent Fuel Storage
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January 7,1998 STATE OF UTAH'S RESPONSE TO APPLICANT'S AND NRC STAFF'S PLEADINGS ON THE LICENSING BOARD'S AUTHORITY TO ISSUE A FINAL INITIAL DECISION PRIOR TO ISSUANCE OF THE NRC STAFF'S DRAFT OR FINAL EIS AND SER INTRODUCTION The State of Utah responds to the question raised by the Board in its October 17,1997 Memerandum and Order about the Boarrs authority to issue a final initial decision on the safety, environmental, or other issues that may be admitted in the absence of the NRC Staffs draft or final Safety Evaluation Reports (SERs) and EnvironmentalImpact Statements (EISS). The Staff and the Applicant addressed this question in pleadings filed with the Board on December 30,1997.' As discussed below, the State asserts that the Board lacks authority to issue a final initial decision in the abm.e of the introduction of the Staffs final SER and final EIS into the record.
' NRC Staffs Response to the Licensing Board's Question Concerning its Authority to Issue a Final Initial Decision Prior to Issuance of NRC Staff's Safety and Environmental Reports ("NRC Staffs Response") and Applicant's Memorandum on the Board's Authority to Issue Partial Initial Decisions Prior to the Issuance of the SER or EIS (" Applicant's Memorandum").
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In addressing the Board's question, it is useful to keep in mind that the application submittsd by PFS is different in kind and scope from other ISFSI license
- applications: it is for a centralized away from-reactor facility that will receive fuel 3
shipments from all over the United States and store up to 4,000 casks of spent nuclear fuel at : facihty sited on Indian trust lands. The Applicant intends to use casks from two different manufacturers for casks that have yet to receive cenihcates of compliance from NRC. In fact, this is the reason for the NRC staff's delay in completing its Safety Evaluation Report. NRC Stff's Status Report and Response to Request for Hearing and Petitions to Intervene, dated Octobcr 1,1997, at 5. Moreover, the Applicant is a newly formed limited liability company with no track record in the areas of safety, health or the environment.
DISCUSSION 1,.
Safety Evaluation Report The NRC Staff, citing 10 CFR 2.743(g) and relevant case law, states that the SER must be introduced into evidence and that no final initial decision may issue on safety and other issues w,
' for litigation in this proceeding. NRC Staff Response at 2 3. The Applicant's view is that the Board may issue partial initial decision on health 7.nd safety issues raised by petitioners absent the Staff's final issurance of a draft or final SER.- Applicant's Memorandum at 2 3. The State disagrees with the Applicant's analysis.
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It is undisputed that the NRC staff must make safety findings before a license
- for the proposed 13FSI issues. Indeed, the initial hearing notice states that *[p]rior to the issuance of the requ sted license, the NRC will have made the findings required by the Atomic Energy Act of 1954... and the NRC's rules and regulations." 62 Fed. Reg.
41,900 (July 31,1997). Consistent with its standard practice, the NRC staff has
. announced its intention to issue those findings regarding the proposed ISFSI in the 4
form of a Safety Evaluation Report. NRC Staff's Status Report and T esponse to Request for Hearing and Petitions to Intervene, dated October 1,1997, at 5. As required by 10 CFR $ 2.743(g), any SER that is prepared by the staff in this case must be introduced as evidence into the record.
Moreover, if the Board were to reach a final initial decision without the benefit of the Staff's conclusions regarding the safety of the proposed project, the licensing of the proposed ISFSI would be reduced to a dispute between the Applicant and the Intervenors, with the Board acting as umpire. Such an approach would render the agency's own technical review and oversight an irrelevance, and would constitute an
' abd% tion of the agency's ultimate responsibility as regulator of the Applicant.
Furthermore, the Applicant is applying for a one-of-a kind away from reactor centralized ISFSI that is sure to raise novel health and safety issues. See e.g., State's Contention B on the intermcdal transfer point. Accordingly, it is the State's position that the Licensing Board lacks authority to issue a final decision in the absence of the 3
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introduction of the 3taff's SER into the record.
The Applicant's reliance on The Curat2n_of the University of Missouri (TRUMP-S Project), CLI 95-1,41 NRC 71 (1995) and Fbrida Praltr_F.1ight Compr.nv (St. Lucie Nuclear Power Plant, Unit 1), ALAB-921,30 NRC 177 (1989) in its attempt to substantiate that "the Board is authorized to issue partid initial decisions on health and safety issues raised by petitioners 2bsent the Staff's issuance of a draft or fm' al SER" is misplaced. See Applicant's Memorandum at 2 3. In UnirniY_of Missomi, the Commission held that the NRC staff was not obligated to make " specific findings of fact or to explain its approval" of proposed license amendment > and that it was not required by the regulation to prepare a SER. 41 NRC at 122-23. That case did not question whether the staff was required to make safety findity,s before a license could be approved, but rather the degree to which it was required to explain or justify those findings on the record. Moreover, although the staff may not necessarily be required to issue its findings in the fcrm of an SER, in this case it has decided to follow that procedure and, therefore,10 CFR $ 2.743(g) applies. Similarly, in St. Luc.is, the Commission merelv held that the staff was not required :o independently verify the Applicant's calculations regarding a particular issue, and that the adequacy of the application, not the staff's review, is the proper focus of a licen;ing hearing. 30 NRC at 185-7. Neither of these holdings undermines the fundamental and longstanding principle that the staff must issue its safety findings before the Board may decide safety 4
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' issues, he, e.g., Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2),
LRP 77 2L 5 NRC 680 (1977). holding that summary disposition of safety issues is e
pre. mature before issuaice of the SER.2 4
2.
Eniironmental Impact Statement ano NEPA
,y The Applicant suggests that the Board may consider environmental issues prior 4
to the issance of the EIS "so long as it does not consider the ultimate NEPA cost-benefit balance of the proposed action." Applicarr.'s Memorandum at 9. By contrast, 3
t the NRC Staff paints out that the regulatory requirements of 10 CFR $$ 51.100,102(c) and 104 and 10 CFR $ 2.743(g) preclude the Licensing Board from issuing, a final initial decision on any environmental or other is ue that is admitted for litigation until the j-Suff has issued its final EIS and SER and offered them i,.to eddence. See NRC Staff's Response.
E The State agrees with the Staff's position. The regulations on their face require that prior to any decision by the Comniission, the EIS be distributed to EPA, other
- commenting agencies, and made available to the public and that the Commission take no action that would have an adverse environmental impact or limit the choice of
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reasonable alternatises.10 CFR $$ 51.100,51.101. As the Board derives its authority from tise Commission it would be subject to the same constraints. See 10 CFR $ 2.704, 2 The Applicant suggests, at page 5, that the Staff may issue a " partial" SER which would allow the disposition of contested issues. The State submits that'given the interrelationship of the is ues raised by this application, this is unlikely to be a practical or efficient approach.
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.717. Not only is distrib'ution of the EIS and limitations on federal action a q
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l regulatory requirement but it is only required by federal law as enacted by Congress in NEPAf See 42 USC $ 4332(C)..
The Staff suggests that the Board could direct other panies to present their1 witnesses and take positions in the hearing prior to issuance of the fm' al EIS. However, n
this would bs an inexpedient way to proceed, may require re-litigation of issues after
. the issuance of the EIS and, moreover, could be prejudicial to the Intervenors if the.
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Board considered the evidence in such a piecemeal fashion.
F The Applicant inappropriately relies on PhilnMphia Electric Company
) (Lirrerick Generating Station,' Units 1 and 2), ALAB 785,20 NRC 848 (1984),
t timerick involved the Board's' decision to conduct early hearings in an operating license proceeding prior to the issuance of a draft or final EIS, because cenain specific 4
-impacts may have become moot if they were not subica to an early hearing In that case a construction permit was issued in 1974, juQia review was complete in 1975,.
p construction commenced in December 1982 but was later suspended, and the Board J
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supplemental cooling water system would have environmental effects prior to continuation of construction activities. The Board's review and the Commission's--
- review on appeal were conducted under the former 10 CFR $ 51.52(a). The ik Commission stated that the Boafd did not act in literal accordance with agency
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4 regulations," that "in the usual case, environmental hearings await the preparation and circulation of the staff's FES," and that the regulations now in effect (i.e. the current to CFR $ 51.52(a)) make it clear that "the FES is to precede the hearing on enviror. mental issues." Limerick at 863-864 and n. 43. The Commission ack nowledged that the Board did not resolve the ultimate cost / benefit balance under NEPA, which would await the issuance of the staff's environmental statement. Idst 864.
Nor do the other cases cited by the Applicant support its positio< that some NEPA issues may be litigated and decided before issuance of the EIS. puke Power Co (Catawba Nuclear Station, Units 1 and 2), CLI 83-9,17 NRC 1041,1049, merely held that as a time-savi:.g mechanism, intervenors could be required to initially base their contentions on the license application, before the EIS 6 sues. Contrary to the
- Applicant's suggestion, the Commission explicitly recognized that once the case is ready for litigation, the proceeding must focus on the adequacy of the EIS. Id.
Another case cited by the Applicant, Allied General Nuclear Services. et al (Barnwell Nuclear Fuel Plan Separations Facility), ALABJ96,2 NRC 671,681 (1975) concerned a proceeding in which an EIS for the proposed facility was already prepared prior to the hearing but wu being partia'ly revised. The Appeal Board refused to hold, u a general mat.er, that the hearing should be postponed pending the revisions, noting that a decision on whether some of the issues should be held up pending the revisions was
- premature. Id at 681. Nothing in that decision can be read to soggest the acceptability 7
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' of proceeding with a NEPA hearing N the absence of an EIS.-
Neither Umerick nor other NEPA cases support the Applicant's proposition -
that allo.ws a Licensing Board "to consider environmental issues prior to the issuance 3
of the EIS by the Staff so long as it does not cosider the ultimate NEPA cost be.efit balance of the proposed action." Applicant's Memorandum at 9. See e.g., hhlis Service Company of Oklahoma (Black Fox Station, Units 1 and 2),CLI-80 31,12 NRC 264,274-275 (1980) (NEPA is an essential element of the agency's decision making procus. An agency dischar6es its obligation to consider every significant aspect of the environmentalimpact of the proposed action by filing an EIS); Kan=== Gas and Elgsgic Company (Wolf Creek Nuclear Generating Station, Unit No.1), CLI 771,5 NRC 1,5 (1977) (The broad and general prohibition of construction so as not to affect the environment of a site is easily read to bar such construction activities as road and 4
railway construction leading to the site, at least where substantial clearing or grading is involved.).
Another reason for the Board not to proceed with the issuance of any initial decisions until introduction into evidence of the NRC Staff's final EIS is the requirement for' NRC to consult with other federal agencies. For example, under its 4
NEPA analysis, the NRC may give considerable weight to action taken by another
- competent and responsible a government authority in enforcing an environmental.
- statute. Public Service Company of Chinhoma (Black Fox Station, Units 18c 2), LBP-8 sy'
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t 78 28,8 NRC 281,282 (1978). Other federal agencies may be required to comment on the draft and final EIS in this proceeding and allowing any construction activities by PFS will be prema;ure for purposes of their review. Bureau of Land Management public land may be affected, for example, by Applicant's road widening activitie; or
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righu-of way or land acquisitions for the rail spur or intermodal facility. Another federal agency, the Secretary of the Interior, acting through the Bureau of Indian Affairs (BIA), has a clear statutory duty to evaluate leases on Indian lands giving consideration to a variety of factors including:
... the relationship betweer. the use of the leased lands and the use of neighboring lands;... the availability of police and fire protection and other services; the a
f availability of judicial forums for all criminal and civil
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causes arising on the leased lands; and the effects on ihs
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environment of the uses to which the leased lands will be subject.
25 USC $ 415(a) (emphasis added). The BIA has stated that it will rely on the NRC's environmental documents prepared under NEPA to evaluate the environmental impacts ofleasing Indian trust lands to the Applicant for storage of spent nuclear fuel rods. September 18,1997 letter from Jeanette Hanna, Acting Phoenix Area Director, Bureau of Indian Affairs, attached hereto as Exhibit 1.
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Conclusion
- For the reasons stated above, the Board should not proceed with the issuance of any initial decisions until introduction into evidence of the NRC Staff's final EIS and i
SER.-
' DATED this 7th day of January,1998.
Respectfully submitted, I
At44ct./
I1enise Chancellor Fred G Nelson Assistant Attorneys General Diane Curran Connie Nakahara
'Special Assistant Attorneys General Attcrneys for State of Utah Utah Attorney General's Office 160 East 300 South,5th Floor P.O. Box 140873 Salt Lake City UT 84114-0873 Telephonc:
(801) 366-0286 Fax:
(801) 366-0293
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CERTIFICATE OF SERVICE l hereby cenify that copies of STATE OF UTAH'S: RESPONSfssrQM 12 L P5 38
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> APPLICANT'S AND IJRC STAFF'S PLEADINGS ON THE LICENSING
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. BOARD'S AUTHORITY TO ISSUE A FINALINITIAL.DECISI ISSUANCE OF THE NRC STAFF'S DRAFT OR FINAL E?S ANDI were served on the persons listed below by Electronic Mail (unless otheM4se' 'sdie"d) INS "UAFF with conforming copies by First class mail this 7th day of January,1998:
T Attn: Docketing & Services Branch Sherwin E. Turk; Esq.
Secretary of the Commission Catherine L. Marco, Esq.
L U. S. Nuclear Regulatory Commission Office of the General Counsel
. Mail Stop: Ol6G15 Mail Stop 15 B18 11555 Rockville Pike, One White Flint U.S. Nuclear Regulatory Commission Nonh
. Washington, DC 20555 Rockville, MD 20852 2738 set @nrc. gov (originalandtwo copies) _
clm@ncc. gov G. Paul Bollwerk, III, Chairman Jay E. Silberg, Esq.
Administrative Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Board 2300 N Street, N. W.
U. S. Nuclear Regulatory Commission Washington, DC 20037 8007 Washington, DC 20555 Jay _Silberg@shawpittman.com j
E Mail: gpb@nrc. gov Clayton J. Parr, Esq.
Dr. Jerry R. Kline P.> :,,.Waddoups, Brown & Loveless AdministrativeJudge 185 South State Street, Suite 1300
- Atomic Safety and Licensing Board P. O. Box 11019 -
U. S. Nuclear Regulatory Commission-Salt Lake. City, Utah 84147-0019
- Washington, DC'20555 -
kareni@pwlaw.com E Mail: jrk2@nrc. gov John Paul Kennedy, Sr., Esq.
Peter S. Lam -
1385 Yale Avenue Administrative Judge Salt Lake City, Utah 84105 Atomic Safc y and Licensing Board john @kennedys.org
- U. S. Nuclear Regulatory Commission Washington, DC 20555
' E-Mail:psl@nrc. gov 33
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Jean Belille, Esq; Office of the Commission Appellate Land and Water Fund of the Rockies Adjudication 2260 Baseline Road. Suite 200 Mail Stop: 16-G-15 OWFN
- Boulder, Colorado 80302 U. S. Nuclear Regulatory Commission landwater@lawfund.org
. Washington, DC 20555 (UnitedStata mailfirst clan only)
Danny Quintana, Esq.
Danny Quintana & Associates, P.C.
50 West Broadway, Fourth Floor
- Salt Lake City, Utah 84101 quintana @xmission.com James M. Cutchin Atomic Safety and Licensing Board
- Panel U.S. Nuclear Regulatory Commission
- Washington, D.C. 20555-0001
. E Mail: jmc3@nrc. gov (electronic copy only)
Dated this day of h 98.
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denise Chancellsr' Assistant Attorney General State of Utah e
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EXHIBIT 1 Department Of Interior Letter Dated September.18,1997
United Stato Department of the Interior SUREAU OF INDIAN AFFAIRS PHOENIX AREA OFFICE.
P.o.tox to PHOENIX. ARIEONA SW101 -
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-Branch of Real Estate Services (602) 379-6781 MS 181997 CERTIFIED MAIL - RETURN RECEIPT REQUESTED Phillip C. Pugsley Assistant Attorney General 160 East 300 South P.O. Box 140874 Salt. Lake City, Utah 84114-0874 Re Notice of Appeal, Statement cf Reasons, and Request for Immediate Relief Skull Valley Goshute Tribe Lease to Private Fuel Storage, Inc.
Dear Mr. Pugsley:
We received your Notice of. Appeal and' Statement of Reasons dated June 30,1997.
You are appealing the decision of the Superintendant of the Uintah and Ouray Agency, Bureau' of Indian Affairs (Superintendent), to conditionally approve the lease between the skull Valley Band of Goshute Ind. ans, a federally recognized Indinn i
Tribe (Tribe), and Private Fuel Storage, L.L.C., a Delaware limited liability company comprised of several Midwestern utility companies (Lessee Company).
The purpose ~ of the lease is to develop, construct, and operate a - private, interia, spent nuclear fuel storage facility on a portion of the Skull valley Indian Reservation.
We have also reviewed the Answer submitted by the Lessee Company, as well as the State's response.
We believe your appeal of the Superintendent's decision to cond* tionally approve the lease is premature.
Tae' Superintendent's approval is conditioned upen the successful completion of an environmental inpact statement, including the implementation of any necessary mitigation.
We disagree with your assertion that the Bureau of Indian Affairs (BIA) may not rely upon environmental I
documente prepared for the Nuclear Regulatory. Commission licensing
. process, obviously, the BIA will independently evaluate the-
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. environmental impacts disclosed by the-environmental impact i
statement.
. In addition, the state of Utah will. have ample i.
opportunity to intervene and provide its views during ~ both the environmental. review and NRC licensing process.
Kee 10 C.F.R. -
552.714 and 2.715(c).
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- We therefore affirm the Superintendent's dccision.to conditionally approve the.lemas.
If you choose to appeal-this decision. -.a notice of appeal must be mailed to the Interior Board of Indian Appeals at 4015 Wilson Boulevard, Arlington,. Virginie 22203.- within 30 days of receipt of this letter.
Any notice of appeal ;should clearly..
identify. the decision being appealed and certify that copies of -
such notice have been sent to the Assistant Secretary-Indian Affairs, this. of fice, and - all other interested parties.
Upon receipt of a notice of appeal, the Board will advise the appellant-of<further appeal procedures.
If no interested party appeals this-
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decision, it will become final for the Department of the Interior upon expiration of the appeal period.
If you should have any questions regarding this notice, please contact our office at 602-379-6781.
Sincerely O
Acting ta irector i
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