ML20202E252

Nuclear Regulatory Commission Issuances for November 1997. Pages 257-285

ML20202E252
Person / Time
Issue date:	02/28/1998
From:	NRC
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References
NUREG-0750, NUREG-0750-V46-N05, NUREG-750, NUREG-750-V46-N5, NUDOCS 9802180107
Download: ML20202E252 (35)

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WUREG-0750 Vol. 46, No. 5 Pages 257-285 NUCLEAR REGULATORY COMMISSION ISSUANCES November 1997 d* "" %,

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U S. NUGLEAR REGULATORY COMMISSION Ill,11111.l!(IDI,ll,1ll 9002180107 900228 0

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I Available froin Superinteident of Documents U.S. Government Printing Office RO. Box 37082 Washington, DC 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 24 hardbound editions for this publication.

Single copies of this publication are available from National Technical Information Service Springfield, VA 22161 f

F rors in this publication may be reported to the Of' ice of the Chief Information Officer l

U.S. Nuclear Regulatory Commission i

Washington, DC 20555-0001 (301-415-6844)

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NUREG-0750 Vol. 46, No. 5 Pages 257-285 NUCLEAR REGULATORY COMMISSION ISSUANCES November 1997 This rerort includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemeing (DPRM)

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

Independent legal significance.

1 i

U.S. NUCLEAR REGULATOR 9_C,OMMISSION,

l Prepared by the Office of the Chief information Officer U.S. Nuclear Regulatory Commission I

Washington, DC 20555-0001 (301-415-6844)

f i

COMMISSIONERS Shiricy A. Jackson, Chairman Greta J. Dicus Nils J. Diaz Edward McGaffigan, Jr.

l B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Sa'ety & Ucensing Board Panel

CONTENTS

'Insuances of the Atende Safety and Licensing Boards

' IN111RNNHONAL URANIUM (USA) CORPORATION

- (White Mesa Uranium Mill)

Docket 40-8681 MLA 1 (ASLBP No. 98 733-01 MLA)

(Re: License Amendment)(Alternate Fred Material).

- MEMORANDUM AND ORDER. LBP 97 21, November 7,1997... 273

, LOUISIANA ENERGY SERVICES, L.P.

(Claiborne Enrichment Center)

Docket 70 3070-ML (ASLBP No. 91-64 l-02-ML-R)

(Special Nuclear Material License).

MEMORANDUM, LBP 97 22, November 13.1997...............

275 QUIVIRA MINING COMPANY (Ambrosia Lake Facility, Grants, New Mexico).

l Docket 40-8905 MLA (ASLBP No. 97 728-04-MLA)

(Amendment to Source Material License No. SUA 1473)

MEMORANDUM AND ORDER, LBP-97-20, November 4,1997... 257 ill

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Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge James R Gleason,* Deputy Chief Administrative Judge (Executive)

Frederick J. Shon,* Deputy Chief Administrative 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*

Emest E. Hill Thomas S. Moore

• se G. Paul Bottwerk lit

• Dr. Frank F. Hooper Dr. Peter A. Morris Dr. A. Dixon Callihan Dr. Charles N. Kelber*

Thomas D. Murphy

• l Dr. James H. Carpenter Dr. Jerry R. Kline*

Dr. Richard R. Parizek i

Dr. Richard F Cole

• Dr. Peter S. Lam

• Dr. Harry Rein Dr. Thomas E. Elleman Dr. James C. Lamb Ill Lester S. Rubenstein Dr.GeorDe A.Fer;;uson Dr. Unda W Uttle Dr. David R. Schink Dr. Harry Foreman Dr. Emmeth A. Luehe Dr. George F.Tidey

• Perrnanent panelmembers

Cite as 46 NRC 257 (1997)

LBP-97 20 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:

Charles Bechhoefer, Presiding Offcer Dr. Peter S. Lam, Special Assistant in the Matter of Docket No. 40-8905-MLA (ASLBP No. 97 728-04-MLA)

(Amendment to Source Material License No.

SUA 1473)

QUIVIRA MINING COMPANY (Ambrosla Lake Facility, Grants, New Mexico)

Novembet 4,1997 De lYesiding Officci denies a request for a hearing because the Petitioner lacks standing to participate in the proseeding.

RULFS OF PRAC11CE: INTERVENTION /INFORS1AL PROCEEDINGS To become a party in a proceeding governed by 10 C.F.R. Part 2 Subpart L, a petitioner is required to set forth (1) its interest in the proceeding -i.e., its standing: (2) how that interest may be affected by the results of the proceeding:

(3) its areas of concern about the licensing activity that is the subject matter of the proceeding; and (4) the timeliness of the petition.10 C.F.R. 9 2.1205(e).

RULES OF PRACTICE: INTERVENTION /INFORSIAL PROCEEDINGS To admit a petitioner to a proceeding governed by 10 C.F.R. Part 2, Subpart L, a Presiding Officer must find that the petitioner's specified areas of concern 257

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. are germane to the subject matter of the proceeding, as well as the timeliness of the petition and that the petitioner has standing.10 C.F.R. 6 2.1205(h).

RULE" OF PRACTICE: STANDING The standing requirement in NRC's Rules of Practice arises from the hearing authorization in section 189(a)(1) of the Atomic Energy Act, providing a hearing "upon the request of any person uhose interest may be afected" by a proceeding (emphasis supplied).

RULES OF PRACTICE: STANDING ONFORMAL PROCEEDINGS) s The same 2tanding requirements govern Subpart L proceedings as govern

- formal, Subpart G proceedings.

RULES OF PRACTICE: STANDING In determining standing, the Commission looks to " contemporaneous judicial concepts of standing." A contemporary delineatian of those concepts appeared in llennert v. Spear, 520 U.S. _,117 S. Ct.1154, i 163 (1997), where the Supreme

- Court observed that constitutional minimurn standards of standing are that (1) the plaintiff suffer injury in fact, both actual or imminent; (2) there is a causal connection between the injury and the conduct in question; and (3) the injury -

likely will be redressed by a favorable decision. In addition, a " prudential" standing requirement is that the plaintiff's grievance must arguably fall within the " zone of interests" protected or regulated by the statutory or constitutional pmvisions invoked in the suit.

RUL.FS OF PRACTICE: STANDING (INJURY IN FACT)

Ibr standing purposes, injury in fact need not be substantial. Although such injery must be " actual,"" direct," and " genuine " it need not have already occurredi Ibtential or imminent injury is sufficient.

RULES OF PRACTICE: STANDING (INJURY IN FACT)

Potential competitive injury from a new facility has been recognized as a legitimate basis on which to assert injury in fact.

258

RUll'S OF PRACTICE: STANDING (INJURY IN FACT)

Although potential competitive injury may stem from operation of a facility and not technically from its licensing, such a rationalitation invokes a distinction without a difference by ignoring the obvious fact that the claimed potential competitive injury could not and would not occur absent the licensing. Such potential injury may thus be used to establish injury in fact.

RULES OF PRACTICE: STANDING (ZONE OF INTERESTS)

Although competitive injury may constitute injury in fact in an NRC licensing proceeding, a party relying for its standing o wh injury must also demonstrate that it arguably falls within the tone of inte protected or regulated by the Atomic Energy Act or the National Environmental Policy Act (NEPA).

RULES OF PRACTICE: STANDING (ZONE OF INTERESTS)

'The standing of a petitioner asserting a particular type of injury may be derived from a specific section of a statute pertinent to the litigation rather than from the statute as a whole.

RULES OF PRACTICE: STANDING (ZONE OF INTERESTS)

Although economic matters may not be generally comprehended by the Atomic Energy Act or NEPA (unless the economic injury stems directly from alleged radiation hazards or other environmental impacts of a project), economic injury may be comprehended in litigation under section 84 of the Atomic Energy Act, which was amended in 1983 to include economic considerations concerning the regulation of byproduct material.

RULES OF PRACTICE: STANDING (ZONE OF INTERESTS)

Although certain types of alleged economic injury are within the zone of interest. protected under amended section 84 of the Atomic Energy Act, the legislative history of amended section 84 indicates that the amendment was designed to provide the NRC Staff more latitude in regulating byproduct material and was not intended to include injury to a competitor caused by the business adivities of another competitor.

259

RULES OF PRACTICE: STANDING (INJURY IN FACTt ZONE OF INTERESTS)

Although matters such as groundwater contamination, seepage of waste material into the substrate, additional radicactive releases, and transportation of large volumes of byproduct waste material to a site fall within the zone of interests protected by NEPA, the impacts must themselves, in some manner,

- cither economically or physically, have a direc impact on a petitioner in order for it to use those impacts to establish its standmg.

RULES OF PRACTICEt STANDING (ZONE OF INTERESTS)

Economic injury resulting directly from the environmental impacts of a projed may serve as a basis for a petitioner's standing under NEPA. Although NEPA does not encompass monetary interests alone, a petitioner is not precluded from asserting cognizable injuries to environmental values because his real or obvious interest may be viewed as monetary.

U.S CONSTITUTION: EQUAL TREATMENT ATOMIC ENERGY ACTt LICENSING STANDARDS Although similarly situated licensees must be accorded equal treatment by the NRC, the law does not require consistency of treatment of two parties in different circumstances.

l MEMORANDUM AND ORDER-(Denying Request for IIcaring)

This proceeding involves an amendment to the source material license (SUA-1473) of Quivira Mining Company (QMC or Applicant) to permit it to receive defined quantities of section lle(2) byproduct material from outside generators for disposal at its Ambrosia Lake uranium mill and tailings site, located near Grants, New Mexico.3 It is being conducted pursuant'to the Commission's informal hearing procedures, set forth in 10 C.F.R. Part 2, Subpart L.

I That matenal is defined by secuen lle(2) of ttw Atonue rnergy Act of 1954. as amended. 42 U.s C.

4 2014(eX2k as 'the taihngs or wastes produced by the extracuon or concentrauon or uramum or thonum from any are processed pnmanly for its source nwenal content."

260 1

One timely request for a hearing (Request), submitted by tinvirocare of Utah, Inc. (Envirocare or Petitioner), has been received. ibt reawns set forth herein, I am denying that request and terminating the prc,cceding.

A, llackground l

As set forth in my Memorandum and Order (Request for llearing), dated June 20,1997 (unpublished), Envirocare filed its Request on May 28,1997.

QMC and the NRC Staff (Staff) filed responses in opposition to Envirocare's Request, dated June 12 and 19,1997, respectivc'y.8 Both of those responses were founded, in large part, on Envirocare's lack of demonstrated standing to participate, in my June 20 Memorandum and Order. I noted that in Subpart L proceedings such as this one, a petitioner is required to set forth (1) its interest in the proceeding - i.e., its standing; (2) how that interest may be affected by the results of the proceeding; (3) its areas of concern about the lisensing activity that is the subject matter of the proceeding; and (4) the timeliness of the petition.

10 C.F.R. 5 2.1205(c). I also stated that to admit Envirocare, I must find that its specified areas of concern are germane to the subject matter of the proceeding, that its petition was timely, and that the Petitioner has standing. 10 C.F.R. 5 2.1205(h).

In that Memorandum and Order, I went on to find that Envirocare's petition was timely cubmitted and that, as asserted by the Staff, certain (although not all) of its areas of concern are germane to the subject matter of the proceedmg.5 But I determined that the Petitioner's statement of standing - particularly injury in fact - was not sufficiently specific for me to determine whether the relevant factors had been seisfied.

Accordingly, taking into account (1) in Subpart G proceedings there is a right for a petitioner to supplement its request for a hearing, (2) in Subpart L proceedmgs there is no bar to that practice, (3) the lack of local availability of information concerning the proceeding, and (4) the complexity of questions concerning standing and injury in fact, I permitted Envirocare to file a sup-plement to its petition (Supplement) and the Applicant and Staff to respond.

Envirocare filed a timely Supplement on July 3,1997, and the Applicant and Staff filed timely responses in opposition to Envirocare's Request on July 15, 1997 (Applicant's Supplemental Response Staff's Supplemeraal Response).

a r.'sy in response (at 2), the stafr stated that, en accordance with 10 C.F R. I 21213. it wistra to p.rticipate as The Staff also shred (at 3 n 7) that, conquent with 10 C f R 6 2.1205(m), the beense anendrnent was approved tiy the Stafr on May 16,1997 amt that, as mued, the beense anrndnunt effers in certun reyects from that upphed for t>y QMC.

3 1n particut.r. taking into accourn Lavirucare's supplenratary statenwnt, the miequacy of the environmental rev6ew carned out ror sfus heense anwndnrne (Request at 18,13 6 9) La cle.wl; germane 261 u

In my June 20,1997 Memorandum and Order, I also indicated that i might convene a prehearing conference to resche questions of standing either near the site (if a site visit would prove uwful) or by telephone conference call. I invited sugEestions from the parties and Petitioner. Envirocare did not comment. The Statf opined that a site visit would not be helpful in determining the issue of standing. De Applicant suggested that, because the legal issue of standing can be decided on briefs alone, such a conference would not be beneficial. In light of the issues before me at this time, I agree with these positions and accordingly am issuing this Order based on the various briefs (i.e., petitions and responses) to which I have referred.

II.

Envirocare's Standing De standing requirement in NRC's Rules

.netice - including that applic 'le in 10 C.F.R. Part 2, Subpart L proceedings such as this one -

d arises nom the hearing authorization in section 189(a)(1) of the Atomic Energy Act of 1954, as amenced,42 U.S.C. 0 2239(a)(1), providing a hearing "upon the request of any person whose interest may be affectect' by a proceedir.g (emphasis supplied). Through a long series of cases, the Commission has held l

that, in determining standing, it will look to " contemporaneous judicial concepts of standing." Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and 2), CLI 76-2',4 NRC 610,613-14 (1976); see also Afetropolitan Edison Co. (Three Mile Island Nuclear Station, Unit I), CLI-83-25,18 NRC 327,332 (1983); id., CLI 85 2,21 NRC 282,316 (1985); Sacramento Afunicipal Utility District (Rancho Seco Nuclear Generating Station), CL1-92 2,35 NRC 47, 56 (1992); Envirocare of Utah, Inc., LBP-92 8,35 NRC 167,172 (1992).

As set forth by the Applicant (Supplemental Response at 3), a contemporary delineation of judicial concepts of standing appeared in a recent Supreme Court decision, henvit v. Spear, 520 U.S. _, i17 S. Ct. I15 ', i163 (1997) (citing Lujan v. Defendes of Wildhfe, 5(M U.S. 555, 5(0 61 (1992)). In Bennett, the Court observed that constitutional minimum standards of stanJing are that (1) the plaintiff suffer injury in fact, both actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the injury and the conduct in question; and (3) the injury likely will be redressed by a favorable decision in addition, a " prudential" standing requirement is that the plaintiff's grievance must arguably fall within the " zone of interests" protected or regulated by the statutory or constitutional provisions invoked in the suit (here, the Atomic

• The same staneng requerenwas giwern subpart t. proceedings as gowra formal, subpart G proceedmgs Cheartnwi Cory (Bert Awnue. Havard Avenue. and hkGears-Rohcu sites, Newburgh Heights and Cuyahoga Heights, otnot t.BPA02n. 40 NRC 17.18 (19m 262 1

f Energy Act, the National Environmental Policy Act (NEPA), and Amendments V and XIV of the Constitution itself) 117 S. Cf. at 1160 61.

Commission decisions are consistent with these requirements. To satisfy

" judicial" standing, the Commission has held that a petitioner must demonstrate, inter alia, that it could suffer an actual " injury in fact" to its interest, that the injury occur as a consequence of the proceeding, and that the petitioner's interest is " arguably" within the " zone of interests" to be protected by the statute (s) under which the petitioner seeks to intervene. Georgia Power Co. (Vogtle Electric Generating Plant, Units I and 2), CLI 93 le 38 NRC 25,32 (1993);

Rtmcho Seco, CLI-92 2, supra, 35 NRC at 56. To conform to the " injury in fact" requirement, the injury must also be " concrete and particularized, fairly traceable to the challenged action, and likely to be redressed by a favorable decision." Vogtle. CLI 93-16, supra 38 NRC at 32; Envirocare, LUP-92-8, supra, 35 NRC at 173; Dellums v. NRC, 863 F.2d %8,971 (D.C. Cir.1988).

Each of these elements is in dispute here.

I, Envirocure's Position Envirocare, which operates a waste disposd facility at Clive, Utah, some 500 miles from Q:,1C's Ambrosia Lake facility, claims that it will suffer injury through the NRC's licensing of a facility that will be its competitor. It claims (Request at 3) to be "the first private facility in the United States to be licensed

, to accept i l1.c(2) material from outside generators for disposal." It alleges potential economic harm from the licensing of the Ambrosia Lake facility to acupt the same type of byproduct waste material from outside generators that it now accepu at its Clive, Utah site.

In its Request (at i I), Envirocare claims an economic intetest in ensuring that all licer. sees that propose to accept section lle(2) byproduct material from other persor.s for disposal comply with applicable NRC standards. It adds (Request at 11 12) that if Qh1C need not comply with the same requirements as were imposed on Envirocare, then Envirocare will be placed at a " severe competitive disadvantage, because Qh1C's lower costs will allow it to attract customers away from Envirocare."

in its Supplement. Envirocare acknowledges that QNIC is currently authorized to store certain specified section lle(2) materials at the Ambrcd. Lake facility.

Envirocare, however, differentiates the limited, strictly defined authorization for disposal activities under Qh1C's license prior to this amendment (derived for the most part from in situ leach uranium facilities) with the amendment which allegedly " changed the nature of QNIC's facility f..,m a uranium mill to a commercial disposal facility" (Supplement at 3). Envirocare claims that this " fundamental" change was permitted by the NRC without requiring a full environmental review under NEPA, comparable to the full review previously 263 m

4WNW carried out for the petitioner's own facility (id at 3-4). It adds that no full environmental revi:w was ever carried out for the QMC facihty (Request at 5; Supplement at 3). Among impacts allegedly created or esacerbated by the amendment aad never reviewed, Envirocare lists groundwater contamination, scepage into the substrate, additional radioactive releases and transportation of large volumes of section lle(2) material to the site (Supplement at 8-9).

In sum, therefore, Envirocare relies for standing on alleged economic injury to its interests coupled with pur 'rted environmentalimpacts of the project that it does not appear to be clainnng directly affect it. With respect to a cauul connection with this proceeding, it asserts that a favorable decision by me -

overturning the Staff's Finding of No Significant Impact (FONSI) and, as a result, requiring QMC to prepare an Environmental Report that would initiate further environmental reviews - will redress the injury both to itself and to the environment (Supplement at 12).

2.

QMC and Staff Responses QMC and the Staff directly controvert Envirocare's claims of injury in fact as well as its formulation of a causal connection. First, they assert that the additional storage authority is essentially a de minimis addition to amounts already authorized to be stored (although, admittedly, stemming from different cources).5 QMC A 'ts Envirocare for failing to show a causal connection between the asserted economic injury and the allegedly deficient environmental review of the project, or any potential health and safety violation under the Atomic Energy Act (Applicant's Supplemental Response at 2,5-7). The Staff asserts that the alleged environmental harm is " speculative, at best," that the economic harm is not a direct harm to Envirome flowing from the physical or environmental effects of the project, and that Envirocare has not demonstrated that the alleged injuries can be fairly traced to the issuance of the license amendment under review (Staff Response at 10, 13, 15).

3.

Economic impacts I turn first to whether Envirocare may suffer economic injury from the license amendment and conclude, for purposes of standing, that it has indeed demonstrated injury in fact. For standing purposes alone, such injury need not 8 QMC aueris in its Raponw (at 2 n 2) tlut it had previamly been authoined to accept source-spect6e section lle(2) bypenduce matenal tot dupos.d at the Ambrwa take facihty la Hs beense anendment apphcanon dan d Noventer 20,1995 ** varded to tre on June 27.1997, with copies to Envirocare and the staf0. QMC sules that "Itihe a&huon er a pnerator's 10.000 (cubvl yard per year quanury is nummal in cumpunnon to the 16 nuthon tons or capacity available for storage,. and si; tompanson h1 the U frulhon tons of talhngs malenal already at the ute "

264

be st,bstantial. Houston Lighting and fourr Co. (South Texas Project, Units I and 2), LBP 7910,9 NRC 439,447-4R, aff *d, ALAB 549,9 NRC M4 (1979).

Although it must be " actual," " direct," and " genuine," id. at 448, it need not have already occurred. Potential or immit ent injury is sufficient. Here need only be a real possibility of concrete harm to a petitioner's interest as a result of the proceeding. Nuclear Engineering Co. (Sheffield, Illinois, Low Level Radioactive Waste Disposal Site), ALAB 473,7 NRC 737,743 (1978).

llere, it is clear that the facility authorized uy the instant license amendment j

might be a competitor to Envirocare's existing facihty There clearly is a real possibility, although not a certainty, that competition from the Ainbrosia Lake facility will cause economic harm to Envirocare. Competitive injury such as this has been recognized as a legitimate basis on which to assert injury in fact.

UPS Worldwide Forwarding, Inc. v. U.S. Postal Service, 66 F.3d 621,626 (3d Cir.1995), cert, denied, i16 S. Ct.1261 (1996); Panharulle Producers and Royalty Owners Association v. Economic Regulatory Administration, 822 F.2d i105,1108 (D.C. Cir,1987).

Given the realities of market competition, the possibility of economic hann appears to be stronger than " speculative." Moreover, although any such injury would stem from operation of the facility and not technically from its licensing (as claimed by the Applicant and Staff *), such a rationalitation invokes a distinction without a difference by ignoring the obvious fact that the claimed potential competitive injury could not and would not occur absent the licensing.

Cf Bennett v. Spear, supra, i17 S. Ct. at 1163 M.

l Accordingly, I conclude that injury in fact, as well as a causal connection to this proceeding, has been shown for standing purposes. He real standing question, to which I now turn, is whether that injury arguably falls within the

" zone of interests" protected by the Atomic Energy Act or NEPA so as to be redressable here. Rancho Seco, CL192-2, supra, 35 NRC at 56. De Applicant and NRC Staff both claim that competitive injury is not within the zones of interests protected by any of these statutes, whereas Envirocare claims that it is.'

With respect to the Atomic Energy Act, Envirocare claims that one should inquire about the zones of interests to be protected by particular sections of a statute pertinent to the litigation, and not necessarily to the statute as a whole, it refers specifically to section 84 of the Atomic Energy Act, which was amended in 1983 to include language that permi'.4 consideration of economic matters and encompsses the section lle(2) byproduct material at issue here. As further authority, Envirocare cites several cases under various environmentally oriented

• Apphcant's Supplemental Responw at 6,- stan's Supplenental Response at 2 I rn n

cert.ua ecorumuc stand ng cl.ums tiawd on purponed consutunonal violanons, I deal 265

~.

statutes (including NEPA) that permit economic injury to serve as a basis for standing, in particular, a recent U.S. Supreme Court decision, Bennett v. Spear, supra (Endangered Species Act); and Port of Astoria. Oregon v. Hodel, 595 F.2d 467,476 (9th Cir.1979)(NEPA).

He Applicant and Stiff each rely on a long series of Commission decisions to assert that economic matters are not comprehended by the Atomic Energy Act or NEPA (unless the economic injury stems directly from the alleged radiation hazards or other en,ironmental impacts of the project). See, e.g., Public Service Co. of New //ampshire (Seabrook Station, Unit 2), CLI-84-6,19 NRC 975, 978 (1984)("[tlhe zone of interests affected does not include general economic considerations"); Gulf States Utilities Co. (River Benu Station, Unit I), CLI-94-10,40 NRC 43,48-49 (1994); Rancho Seco, CLI-92 2, supra, 35 NRC at 56-57, nese decisions cacii involve the licensing of nuclear power reactors.

He licensing authority app!icable to this proceeding stems from section 84 of the Atomic Energy Act which, as noted above, was specifically amended in 1983 to include economic considerations. See Envirocare of Utah, Inc., LDP.

92 8, supra, 35 NRC at 180-81. At least insofar as the Atomic Energy Act is concerned, the "/one of interests" affected by byproduct material regulated under section 84 of the Act (includirig the disposal of section lle(2) wastes) is thus different from that protected under the sections of the Act regulating nuclear reactors or other production or utilization facilities.

Moreover, as the Petitioner claims, under emTent judicial authority standing may be derived from a specific section of the statute (i.e., 9 84) rather than from the statute as a whole. Bennett v. Spear, supra,117 S. Ct. at 1166-67.

Decisions excluding all economic mauers from the zone of interests protected by the Atomic Energy Act and based on regulation other than under the amended section 84 (most of the cases relied on by the Applicant and Staff) are therefore not relevant or applicable in this respect to a case such as thispne arising under the amended section 84.

De one case involving standing under the amended sAtion 84 opined (by way of dictum) that standing could arise from economic injury but rejected standing because the petitioner had failed to demonstrate injury in fact caused by the licensing action under review. Envirocare, LDP 92-8, supra. He Staff distinguishes LDP-92-8 from this proceeding on the ground that the Compre-hensive Environmental Response, Compensation, and Liability Act (CERCLA) liability invoked there by the petitioner (although held by the Licensing Board to have not been sufficiently demonstrated to satisfy injury-in-fact standards) would allegedly have resulted directly from the project's asserted environmental and safety deficiencies (concerning the adequacy of material storage and iso-lation) nod is different in substance from the competitive injury alleged here, which is not directly attributable to any of the project's environmental or safety aspects (Staff Response at 11 n.1l).

266

In my view, certain types of alleged economic injury are within the zone of interests protected under amended section 84 of the Atomic Energy Act. As outlined by the Applicant (Response at 9,10) and Staff (Response at II), the legislative history of the 1933 amendmeot so xctian 84 suggests that it was designed to afford flexibility to the Staff to perant it to bdance health and I

safety requirements with cost of compliance, so that cost of compliance would bear a reasonable relationship to expected benefits. As amended, section 84 contemplates that, in dealing with section lle(2) byproduct material, the Staff will have somewhat more latitude than under other Atomic Energy Act licensing provisions to take into account the economic impact of regulatory compliance.

"Ihis, however, is very different from the competitive injury invoked by Envirocare, which apparently was not considered by Congress in amendina section 84 and accordingly does not appear to be the type of economic injury that may form a basis for standing under amended section 84. Indeed, at its heart, Envirocare's economic argument is aimed at depriving the Staff of additional flexibility by making the precise licensing requirements governing its own facility the floor (rather than the ceiling) for any authorization that might be given to QMC, Ultimately, to rule that Envirocare has standing to obtain such a result would mean not only that a,'y competitor of QMC anywhere in the country would also be entitled to such standing, but also would run contrary to the congressional pupose behind amended section 84 and wonid counter the mne-ol. interests requirement's purpose to " exclude *, hose (petitioners) whose suits are more likely to frustrate than to further" the statutory objectives. ?

l Land Action Association v. U.S. Forest Service, 8 F.3d 113,716 (9th Cir.

l 4,

EnvironmentalImpacts Under NEl%

i turn next to whether the alleged environmental impacts of the Ambrosia Lake facility, which surely fall within the zone of interests protected by NEPA, must affect the petitioner directly in order to serve as a foundation for injury in fact. I conclude they must.

In this connection, I am not dealing with the magnitude of the alleged impacts, or whether they are truly de minimis, as claimed by the Applicant and Staff, or to the adequacy of the Staff's environmental review. Those are matters for the merits, if the preceeding progresses that far But my interpretation of the various cases cited by all parties or the Petitioner convinces me that the specific environmental or radiological impacts allegedly emanating from the project itself (listed, supra, at p. 264) must themselves, in some manner, either economically 8 the Atornse thergy Act &als with certun arutrust aspects or the beenung at nuclear power reattws. but those proviuona are agciahud in their apphcahhty and are or no relevance here.

267 J

or pysically, have an impact on the Petitioner in order for it to uw those impacts to estelish its standing.

He cow relied on most strongly by Envirocare in support of its position (see Supphment at 6, 8,10,11,13 and 14) is Port of Ast t Orrgon v.

Hodel, 595 P 2d 467, 476 (9th Cir.1979). There, various plaintiffs, including a port district and the corporate owner of commercial radio facilities, brought suit under NEPA, claiming that an environmental impact statement (EIS) was

)

required in connection with the execution of a power supply contract which obligated the Ilonnevdle Power Administration to supply electrical power to a proposed aluminum redection plant. He Court ruled the corporate sponsor of s

commercial radio facilities did have standing to bring suit, but the port district did not.

He port district was far removed from the facility site and claimed injury from the new facility only throgh losses of potential tax base and potential

%e Court co amented that these alleged injuries " represent only revenue.

pecuniary losses and frustrated finandal expectations that are not coupled with environmental consideratior,s" and thus are outside NEPA's zone of interests (595 F.2d at 475); it denied standmg on that basis.

On the other hand, it granted standing to the corporate owner of broadcast facilities which alleged that the innsmission hacs to be built to service the new plant would interfere with its broadcast. He Cort acknowledged that the injury was economic in nature - static caused by the transmission lines would cause ceonomic injury to the radio station - and was the "immediate and direct result of the building of the [ facility)." It added that this injury, unlike that of the port district "[isl causally related to an act that lies within NEPA's embrace" Id.

at 476. Rus, the corporate owner of the broadcast facilities was found to have standing whereas the port district was not, Envirocare intctprets this case to periait standing on the basis of economic injury in a proceeding subject to NFPA. It equates itself with 6e corporate owner of broadcast facilities, ilut it has not shown the direct injury alleged by the broadcast facilities arising from one of the environmental attr6utes of the project in question that was crucial to the finding of standing. In my view, Envimcare in this proceeding is more equivalent to the port district that was found not to have standing than to the broadcasters who had standing.

His view is supported by Western Radio Services Co. v. Espy, 9 F.3d 896,902-03 (9th Cir.1996), cert. denied,117 S. Ct. 80 (1996), also cited by Envirocare (Supplement at 6,14). Dere, the Court denied standing to a radio communication company also assertmg economic injury from a transmission tower, Defore the trial court, the plaintiff had asserted only economic harm, and the appellate court refused to allow the plaintiff on appeal to characterize its injuries as environmental. It interpreted Hodel as permitting standing on the basis of economic injury that was " causally related" to the environmental 268

impacts of the facihty. It characterized the alleged econcmic injury as "not one that NEPA aims to redress." 79 F.3d at 903.

Envitocare also ci'.es Overseas Shipholding Group, Inc. v. Skinner, 767 F.

Supp. 287 (D.D C.1991) (Supplement at 9,1415), for the proposition that anerting a competitive interest does not preclude a firm from falling within the zone o,' interests protected by NEPA. The case granted standing to a cor-3 potate shipholding group attempting to challenge a Department of Transporta-tion / Maritime Administration rule for failing to follow NEPA requirements. Al.

though the case does hold economic interests within the rone of interests pro-tected by NEPA, as claimed by Envirocare, it involved economic claims result-ing directly from the environmental impacts allegedly produced by the rule in a stion. This direct connection is what is lacking here, where there has not even been an anettion that the alleged environmental impacts of the Ambrosia 1.ake facility in any way directly affect Envirocare. As the Supreme Court has observed, standing is never allowed " solely on the basis of a ' procedural right' unconnected to the plaintiff's own concrete harm." Lujan v. Defenders of Wildlife, supra. MM U.S. at 573 n.8.

County of /o.sephine v. Watt, 539 F. Supp. 696, 7034M (N.D. Cal.1982),

another case cited by Envirocare (Supplement at 6,11), supported standing en the basis of " direct use in a recreational or occupational sense of the areas and places" involved. Certain lumher plainttffs were " causally affected by a matter of NEPA concern." This was not merely a case where, as asserted by Envirocare (Supplement at II), the act that causes the economic harm (the licensing action) is also one that will harm the environment. A direct causal connection was also involved.

Similarly,Inte Eric Alliance v. United States Army Corps of Engineers,486 F. Supp. 707, 712 (W.D. Pa.1980) (Supplement at 6), found standing under NEPA to challenge the adequacy of an environmental impact statement for a complex steel production facility by individual steelworkers (among others) who might lose or be required to change their jobs because of the new facility. The court observed that NEPA does not encompass monetary interests alone but that a party is not precluded from asserting cognizable injuries to environmental values because his "real" or " obvious" interest ma.y he viewed as monetary. It added; While the real"interent of the steelworkets before us n undoubtedly in job scunty. all hve in or around the.

area which wilt be affected enuronnwntally by this project, and all have adeged a concern with those adverse envir mnental effeett 486 F. Supp. at 713. In other words, those found to have standing were directly affected not only economically but also by the environmental impacts of the project (alleged quality of air, water, lands, and wildlife in the region). This is 269 i

s

the direct conneuion to environmental in 9 acts that Envirocare has not claimed here. To the same effcct, see Realty income Trust v. Eckerd. SM F.2d 447,452 (D.C. Cir,1977) (Supplement at 14).

"Ihe Applicant points to another NEPA case where a direct causal connection to alleged environmental impacts was req sired for standing. Applicant's Supple-mental Response at 7. Absence of a direct connection to potential harm to the plaintiff caused by the environmental impact in a case involving allegations of economic injury was crucial to the court's holding of lack of standing. Clinton Community Hospital Corp. v Southern Alaryland Afedical Center, 374 F. Supp.

450, 455-56 (D. Md.1974), ag'd. 510 F.2d 1037 (4th Cir.), cert. denied, 422 U.S. IN8 (1975).'

Envirocare cites several other cases which it characterizes as not requiring a direct link between economic injuries and environmental harm to the petitioner.

Port of Astoria, supra: Western Radio Services, supra. (Supplement at 10.) As discussed earlier, however Envirocare is misinterpreting these cases. A direct link was indeed required. Envirocare also tries to distinguish the results in cases requiring direct environmental injury (e.g., Defenders of Wildlife, supra, and Florida Audubon SoCirty v. Rentsen,94 F.3d 658 (D.C. Cir.1996)) on the basis that those cases did not involve a combination of economic and environmema.

harm (Supplement at 10). Again, however Envirocare has misconstrued the cases that did involve such a combination.N Cornmission holdings under NEPA are consistent with the foregoing tone-of interests and causal effect rulings. For example, in Rancho Seco, CLI.

92 2, supra, the Commission indicated to be cognizable for standing purposes, economic harm under N!!PA must be occasioned by the environmental impacts alleged: "NEPA does protect some economic interests; however, it only protects against those injuries that result from environmental damage." 35 NRC at $6.

Economic standing based on loss of emr'loyment at a nuclear plant that was l

closing did not r,uffice.

In contrast, marina operators were admitted to a proceeding (and accordingly found to have standing) to complain of shipworms in the vicinity of their business, resulting from operation of a nuclear power plant. /crsey Central

'It perforce dies not follow, si clanwd by Lavirocare (Supplement at II.15L thm ratuirms a dueci connecuen to enurunmental impacts to support standing undercuts the informatmnal and educauonal purposes wrved by NEPA.

"Sull other cases cited by Enstrucare involve specthe statutory promions - not prewns twre - alinemg partacipauon of cornpeutors to fu*tter the intent of the purucular statute to reguise a dehoed area or competmon, without a direct connecemn to the physical or ennrunnwntal impacts Uf any) of the action under review Clarte

v. Sarsinws Industry Armadan,w 479 U S 3As. 396 (1987)(Naional nank Actt ferrt Norwmol Rank & Trust Co. m Narumal Creda Unkm Admmurrurun 9s8 F 2d 1272,1277 (D C car K rare demed. Sie U S 907 (1993) tiederal Credit Union Acth sdsrsas Corp r fewd and Drug Adamnriutum. 31 F 3d 390 04 Cir K rert denwd.

lib 5 Ct 214 t1993)(Drug Price Compeuuan and Patent Term Resuwauon Aco Cf //uzardous hue Treatmens Comad v Thwnu. 883 F.24 918,922 2.1(D C Ctr 1989)(Remurce Conservauon and Recovery Act, standing densed to trale associanon facing compention as a result of new LPA rulet 270

Power & Light Co. (IbrLed River Nuclear Generating Station, Unit 1), ALAB.

139, 6 AIIC 535 (1973). And a commercial fisherman was found to have standing under NEPA to complain of the discharge of coaling water that might affect his catch. Pac #ic Gas and Electric Co. (Diablo Canvoa Nuclear Power Plant, Units I and 2), ALAB-223, 8 AEC 241 (197d). See also Gulf States Utilities Co. - (River lieid Station, Unit 1), LiiP 94 3, 39 NRC 31, 37 38, aff'd CLI 9410, 40 hRC 43, 47-48 (1994) (interest in ' protecting property from radiological haiards sufficient for standing).

In summary, the cnws seem unifonnly to hold that, to establish standing, there must be a direct connection between the environmental or physical injury alleged to emanate from the project and the plaintiff. Economic injury may be permissible, as long as the environmental or physical damage assertedly resuh;ng from the activity directly affects the plaintiff (or, here, the Petitioner.) Because Envirocare canrot satisfy this aspect of standing, I am compelled to find that it does not have standing under the Atomic Energy Act or NEPA.

S.

Constitutional Basis for Standing Envirocare also claims that the competitive interests it asserts are cognit.able under the Equal Protection and Substantive Due Process clauses of the fifth and fourteenth amendenents of the Constitution, inasmuch as it has suffered injury in fact from the differing treatment nccorded by NRC to QhlC and itself.

Envirocare also asserts that its interest in ensuring that the NRC consistently applies its regulations and standards to similarly situated licensees is within the tone of interests protected by those two clauses. Supplement at 27-28. The single case it cites, however. Metropolitan Life Insurance Co. v. Ward. 470 U.S.

869 (1985), concerns the differing applicability of certain state taxes to in state l

and out of state companies and appears to have nothing to do with standing.

Moreover, Eny u are has failed to develop adequately its thesis that it in fact is similarly utuated with QMC. That the two facilities may eventually be in competition for the same busiress and that they are governed by the same statutes is not sufficient; indeed, the very circumstance that Envirocre was involved in the first such Leility may well constitute a difference, as might the circumstance that QMC will be using an existing facility for purposes similar to that for which the facility already is licensed.

Ibrther, regulatory requirements, particularly with respect to impact state-ments, may well not be similar, because of the different years in which applica-tions were submitted. As QMC observes,"the law does not require consistency in treatment of two parties in different circumstances." Ogshore Power Systems (Floating Nuclear Power Plants), ALAB 489,8 NRC 194,222 (1978)(Appli-cant's Supplemental Response at 17 n.ll.) Envirocare's assertions conceming 271 o

these clauses, therefore, do not provide an approoriate basis upon which I could found its standing."

6.

Conclusion Enviroca,e has not demonstrated stanJing to be F' anted the hearing it requests, and its request for a hearing must therefore be dismissed and the proceeding terminated.

C.

Order ihr the reasons stated, it is, this 4th day of November 1997 ORDERED:

1.

The request for a hearing and petition for leave to intervene of Envirocare, Inc., h hereby denied.

2.

This proceeding is hereby terminated.

3. This order is effective immediately and, absent appeal, will become the final order of the Commission thirty (30) days after the date of issuance. Sec 10 C.F.R. I 2.1251(a).

4.

This Order is appealable to the Commission in accordance with the provisior,s of 10 C.F.R. 5 2.1205(o). Any appeal must be filed within ten (10) days of utvice of this Order and may be taken by filing and serving upon all parties a statement that succinctly sets out, with aupporting argument, the errofs alleged, Any other party may support or oppase the appeal by filing a counter-statement within fifteen (15) days of the service of the appeal brief.

Charles Bechhoefer, Presiding Officer ADMINISTRATIVE JUDGE Rockville, Marylar.J November 4,1997 H Although Enytrocare lacks standing to parnapace in this proceedmg. it muy not lack a rernedy to correct what it may peteeive an mirqual usatmem by the Stafr. At lent to terms or regulatory requirenwms curantly being apphed to geranon or the two facihtiet Enytrocare is always fue en seek to have its heense ananded to incorpete proviuons sinular to those it may perceive give QMC a comprative utvantage. It demed by the Stafr.

Envirocare could requent a heanng on the vahdity or the demal.

272 s

x

Cite as 46 NRC 273 (1997)

LBP-97 21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:

Peter B, Bloch, Presiding Officer Charles N. Kolber, Special Assistant in the Matter of Docket No. 4H681 MLA 2 (ASLBP No 96 733-01 MLA)

(Re: License Amendment)

(Alternate Feed Material)

INTERNATIONAL URANIUM (USA)

CORPORATION (White Mesa Uranium Mill)

November 7,1997 i

i

'Ihe Presiding Officer in this Subpart L proceeding held that: " Petitioners have failed to demonstrate grounds for their standing in this case, in particular they have not provided any plausible explanation of how the milling of Cabot Corporation Nuclear Waste by a licensed mill operator would cause Petitioners (or people they are authoriicd to represent)

• injury in fact.' Consequently, the request for a hearing shall be denied."

MEMORANDUM AND ORDER

. (Denial of Petit!on for a Hearing)

Petitions for Leave to Intervene were sent on September 16,1997, to Shirley Jackson, Chairman, Nuclear Regulatory Commission, by Norman Begay, White Mesa Utes; Lula J. Katso, Community Spokesperson for the Westwater Navajo Community; and Winston M. Mason, for Great Avikan House. The amendment sought by International Uranium (USA) Corporation in this case would permit it 273

to mill Cabot Corporation Nuclear Waste, at a facility that it is already licensed to mill uranium. Petitioners oppose this amendment.

In a Memorandum and Order of October 21, provision was made that "la] mended petitions may be filed by 5 p.m. October 31.1997." That date has come and gone with no amended petition being filed. As a result, Ittitioners have failed to demonstrate grounds for their standing in this case. In particular they have not provided any plausible explanation of how the milling of Cabot Corporation Nuclear Waste by a licensed mill operator would cause Ittitioners (or people they are authorized to represent)" injury in fact." Consequently, the request for a hearing shall be denied.

Order Ibr all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 7tti day of November 1997. ORDERED that:

'Ihe Petition for Leave to Intervene filed by Norman Begay, White Mesa Utes; Lula J. Katso, Community Spokesperson for the Westwater Navajo Communi;y; and Winston M. Mason, for Great Avikan House is denied.

Peter B. Bloch. Presiding Officer ADMINISTRATIVE JUDGE Rockville, Maryland 274 l

\\

Cite as 46 NRC 275 (1997)

LBP 97 22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Thomas S. Moore, Chairman Richard F. Cole Frederick J. Shon in the Matter of Docket No. 70 3070-ML (ASL8P No. 9164102-ML R)

(Special Nuclear Material IJcense)

LOUISIANA ENERGY SERVICES, L.P.

(Claiborne Enrichment Center)

November 13,1997

' In this Memorandum, the Licensing Iloard provides the additional explanation required by the Commission's remand order in CLI 97-II,46 NRC 49 (1997).

conceming one aspect of an issue decided in the Board's original findings on

- cententions B and J.3 set forth in LBP-97 3,45 NRC 99 (1997).

MEMORANDUM (Explanation Required by Remand)

In CLI-97 II,46 NRC 49 (1997), the Commission remanded "one issue" from LBP 97 3,45 NRC 99 (1997), for "further explanation" LDP-97 3 is a

- Partial Initial Decision containing the Board's findings of fact and conclusions of law on contentions B and J 3. Those contentions were filed by the Intervenor.

Citizens Against Nuclear Trash (" CANT'), in this combined construction permit-operating license proceeding on the application of Louisiana Energy Services, L.P. (" Applicant"), for a 30-year materials license to build and operate the Claiborne Enrichment Center, a gas centrifuge uranium enrichment facility to 275

be located in Claiborne Parish, Louisiana. Int rvenor's contentions 11 and J.3 are primarily economic cost contentions reF.rding the reasonableness of the cost estimates contained in the Applicant's Decommissioning Ibnding Plan and Environmental Report and the Nf!C Staff's Final Environment impact Statement ("FEIS") for the disposal of tie depleted uranium tails (DUF ) from the anrichment process. 45 NRC at 100-01. This Memorandum provides the requested additional explanation.

I, HACKGROUND As explained in LilP-97-3, the Commission's hearing notice initiating this licensing proceeding required the Applicant to develop a " plausible strategy" for disposing of the tails from the enrichment process - a requirement the Board interpreted as necessitating a reasonable or credible plan for disposing of DUF, tails. 45 NRC at 101,105. In addition to that hearing notice requirement, the Commission's regulations further prescribe that an applicant's decommissioning funding plan contain reasonable cost estimates for the various components of the plan. Id. In LDP-97 3, the Board fount that the Applicant's tails disposal plan of first converting depleted UF, to U 0, and then transporting the U 0, 3

3 to a final site for deep land burial (such as in a deep mine) was a plaunble strategy for purposes of estimating the Applicant's tails disposal costs. Id. at 108. With one exception not relevant here concerning the Applicant's failure to include in its cost estimate the substantial costs of neutralizing the byproduct hydrofluoric acid when converting DUF, to U 0,, the Board found that the 3

Applicant's estimates for transportation and dispoul of U 0, for disposal by 3

deep burial were reasonable. Id. at i12, i13.

Along with its direct challenge to the Applicant's tails disposal cost estimate, l

CANT also challenged the Staff's analysis in the FEIS of deep bunal of U 0,.

3 The Intervenor generally claimed that the Staff's analysis was so flawed that it could not support the conclusion that deep burial of U 0, in an existing 3

abandoned mine will adequately protect the health and environment, thereby mandating disposal in a geologic repository at much higher costs. Id. at i19-20.

In this regard, because no deep burial site has been licensed for the disposal of depleted uranium tails, the Staff modeled two hypothetical sites in the FEIS making, inter c!ia, a number of assumptions about geologic and groundwater characteristics. From its analysis, the Staff concluded that the dose impacts for a deep disposal site me less than those set forth in the applicable regulations, 10 C.F.R. Part 61. /d. at 107-08.

In challenging the FEIS analysis, the Intervenor claimed, among other things, that the Staff used inappropriate and misicading values for groundwater regarding redox potential ("eH"), pH, and retardation factor. Id. at 119421.

276

)

in each instance, the floard found that the Intervenor's challenge was without merit and that the representative values for groundwater generally selected by the Staff from a range of values with respect to ell pil, and tetardation factor were reasonable. Id. at 120 21. Further, the Board concluded, contrary to CANT's claim, that an uncertainty analysis to obtain upper and lower bounds for estimated doses was unnecessary for the Staff's evaluation of the impacts from two representative hypothetical disposal sites. Id, at 12122.

In its remand order, the Commission sought a more detailed explanation of the basis underlying one aspect of the floard's finding that the Applicant's cost estimate for the deep burial disposal of U 0, was reasonable. Specifically, the 3

Commission questioned whether the Board had found that it was plausible that a deep mine will be available in the United States with the exact values selected by the Staff for each groundaater parameter or whether the lloard instead had found that it was plausible there will be a mine in the United States with characteristics falling within the expected range. CLI 97 l1,46 NRC at 50. The Commission opined that it was most likely that the lloard only relied upon the plausibility of the existence of a mine with characteristics lying within the potential range and, if so, it directed the floard "to discuss why it found that the Staff's dose impact calculations can be taken as representative of disposal in mines with groundwater characteristics that differ from the Staff's single set of values." Id.

at 50-51 Further, the Commission noted that the Board had not identified the effect that varying the values within the expected range would have on dose impacts. Id, at 51.

In response to the Commission's remand order, the lloard held a hearing conference and directed the parties to file new proposed findings addressing various Board questions as well as the matters raised in the Commission's remand order.' No party advocated that the Board reopen the record to take I Along with the petws' pmposed hnengs of fact Aled in responne to the Board's erection, the Apphcant Aled a mouca to suike and tie Intervenor Aled a mnuon for lesw to hie surreply Andangs as weu as a counter monon to sinke See Apphtant's Mouon to Strike (oct 15, IM7), CANT's Mouan for Leave to Hle suneply propmed Supplenwnral Hahngs (oct 16. IM7). CANT's Responne to Louaniana Energy services' Mouon to sinke and Counser Monon to $nika (oct 22. IM71 fach of these mouons an denwii further, in its proposed kn&ngs on the mariers rerrunded by the Conutunsson, the staff rehed upon a previously Aled afndavit, with anachments, that hul been kled by the Stafr after the skue of the evalenuary record. See NRC Staff's proposed Hndmgs Aalrnung issue in Comrrsuma Remund onler CLI 97-11 (oct.

7, IM7). The Staff bled this matenal as pat of its response to the Board's post-heanng direeuve that i

the patwa ble legal nwmoranda a&hessmg. Direr elas, the legal status or waste generated at the Claiborne I:nnchment Center. In this regard, the Board ingmred of the parues whether, under current law, the Appbcant's waste must be dnponed of in tanvana or a state bekinging to a compact with Lomsuna and whether the charactensues of such locanons were compauble wuh tle Staff's two hypothescal uten nedeled la the FEli order (Marth 24, IMS).

As part of its response, the 'taff Aled an aftidavit, with attachments, by its espert s

witnestes at the twanns to the effect that the uates in the Central Interstate Compact commned layered-shale and gramus formnuons that are compauble with the hypotheti,,al sites modeled in the l'EIS NRC Swif Memorandum in Responw to (Jcenung Baard order Dated Mach 24, IMS Regarang Legal Status or Depkted UF, Generated at the Cl.uborne Farichment Center and legal Standad for Anessmg Hnancial Quahheauon

( Apr. 2 8, IMS). In its reply to the Staff's nwmorandum. CANT objected to the tjcenung Board mahng any fContmurd) 277

new evidence to respond to the Commission's order. Nor did any party object to the Board's decision not to accept any new evidence.

II. DISCUSSION ne Board's earlier findings in LDP-97-3 on contentions 11 and J.3 based on the original evidentiary record remain the Board's principal findings of fact on these contentions. His further esplanation is intended to answer the Commission's inquiry and set forth in greater detail the basis for the Board's findings that the Applicant's cost estimate for the deep burial of U 0, was 3

reasonakle and that the Intervenor's challenge to the Staff's dose estimate analysis in the WIS was without merit.

A.

Plausibility of Loemting a Suitable Disposal Site As previously mentioned, the lloard found in LDP 97 3 that (1) the Appli-cant's tails disposal strategy, including the deep hurial of U 0, (such as in an 3

abandoned mine), was a reasonable plan for purposes of estimating its tails disposal costs, and (2) its estimate for the deep burial of U,0, was reason-able. Ibrther, the Licensing lioard found that (1) the Intervenor's challenge to the Staff's dose estimate analysis of two hypothetical burial sites in the FEIS was without merit, and (2) in each instance, the Staff's use of a representative value for ell, pH, and retardation factor of deep groundwater was reasonable.

in rnaking these findings the Licensing Board necessarily concluded that it was reasonable to assume that a mine can be located in the United States for U,0, disposal that will have groundwater parameters sufficiently close to the repre-sentative values used in the Staff's analysis so that any deviation will not result in dose estimates exceeding the regulatory limits of 10 C.F.R. Part 61. Rus, the short answer to the initial question asked by the Commission in its remand order, as the Commission correctly discerned, is that the Licensing Board found that it is " plausible that there is a mine in the U.S. with characteristics falling within the expected range." CLI 9711,46 NRC at 50.

6ndings bued on the Staff's new factual aswet uns regar&ng the geologx: charactensucs of any sites in the Central Interstate Compact. CANT's Response Memor:andum Regar&ng Effects of im level Rahoactne waste Pohey Act on twpicted Uranmm Tails thsposal(May 8.19951 Due to the imervemng enactment of the USEC Privanzation Act. 42 U S C. 4 2297h-ll, the Board &J ax reach any quessons concermos the effect of the Im tavel Rahoactne Wases Polwy Act. 42 U S C. I 202tb er sey, on the Apphcanf a tails esposal strategy See 45 NRC at 110 a.7. The IWrd, therefwe, ed mx include in I.BP 97 3 any ruhng on the Intervenor's ob ection to l

the Staff's evidentiary matenal that wun 61ed after the ekwe of the heanog reconi Becauw this Staff evWntiary matenal mas 6ted after the cime of the evidennary tecord (Tr 1243) and the staff &d not seek to reopen the record, the Staff's late 6 led factual matenal la not propfly part of the evWnuary record of the procee&ng and it cannot n w pmperly be uwd by the Board as the baus for any factual 6:whngs 278 I

i l

l

Further, in finding that each of the representative values for ell, pit, and retardation factor used by the Staff in its dose estimate analysis was reasonable, the Board clearly recognized that each of the Staff's chosen values, generally selected from a range of values, was rot a worst case parameter but rather an acceptable compromise for assessing hypothetical sites - a situation necessi-tated by the fact that no licensed site for the deep disposal of enrichment tails exists. In this regard, the Board relied upon the Staff's assertions in the FEIS that "[t]he objective of [the Staf f's] analysis is to develop estimates of impacts for conditions which may be expected to occur at a carefully selected site"(Staff Exh. 2, at Appendix A, at A-7), and that "[t]he characteristics of these sites are representative of natural variability and expected conditions for deep disposal."

Id. at A 10. Moreover, in choosing the values for cil, pit, and retardation factor used in its analysis, the Staff's FEIS states that "[t]he literature values indicate

hat the selected groundwater analysis is representative of conditions expected for deep disposal locations." (/d. at A 12.)

11.

Reasonableness of Representative Valuu 1.

Redox Potential in finding that the redox potential value used by the Staff in its dose estimate analysis was reasonable, the Board's decision addressed the major arguments of Dr. Arjun Makhijani, the Intervenor's expert witness, and those arguments and findmps need not be repeated here. It suffices to note that, as indicated in LBP-97 3, the basis for the Staff's selection of an eli value of minus 100 millivolts

("mV")is not explained in the FEIS. In the FEIS, the Staff only provides a range of values for the cil of uranium mir.e water and the FEIS contains no data at all with respec. to the eli of deep groundwater. (Staff Exh. 2, at Appendix A, at A-12, Table A1) In his direct testimony, Dr. Makhijani, in effect, claimed that the l

Staff arbitrarily selected an eH value that fell outside the range of eH values of l

typical uranium mine water listed in the FEIS. According to Dr. Makhijani, this action minimized the amount of uranium in solution in the Staff's dose analysis because all of the eli values for uranium mine water set out in the FEIS would result in higher solubilities for uranium in groundwater. (Makhijani at 10-11 fol. Tr.1081.) Further, he declared that notwithstanding one of the Staff's own expert's admissions that uranium is 3500 times more soluble at an eH of 50 mV (a value within the range c.' uranium mine water set out in the FEIS) than at an cH of minus 100 mV, the latter value was the one used by the Staff in its dose analysis. (Id. at i1 12.)

As the Staff's expert Dr. Joseph D. Price, testified, however, the comparative eli values for uranium mine water set out in the FEIS likely do not represent the eH of waters in a closed uranium mine, in contrast to an uranium mine exposed 279

to the air, because reported studies show that once such a mine is closed and contact with the atmosphere is precluded, the mine returns to a ' educing state.

(Tr.1147.) Further, as noted in LilP 97 3. Dr. Price explained tant the Staff's analysis used n el' value of minus 100 mV because the comparative ell values for uranium mine water reproJuced in the 11!!S are not representative of cli values for deep groundwater. According to Dr. Price, reported experimental observations of deep groundwater show a range from minus 26 mV to minus 210 mV with some data going even lower. ('ll, l148 49,111819,1146.) In light of these data, the StafI crnployed a redox potential value of minus 40 mV, w hich is an approximate mid point negative eli value, because the majority of the range of available data for deep groundwater show reducing conditions.

(Price 'IY,1119.) And, ar, found in LilP 97 3 Dr. Price indicated that deplete 3 uranium tails only will be placed in a duposal site that has reducing conditions.

(Tr.1148.)

htoreover, in additional testimor y that the lloard found persuasive Dr. Price explained that the rnaximum dose by maay orders of magnitude over the next highest dose is received from the agricultural use of water from a nearby well and this critical dose, which is many orders of magnitude below the regulatory standard, is due to radium and its daughters, not uranium. (Tr.1152; Staff ihh.

2, at Appendix A, at A 14 Table A 7.) Further, the critical radium dose is not sensitive to the solubility of uranium in groundwater. (Price TL 1152.) Stated othe: wise, the solubility of utenium is largely irrelevac to the critical du. Dr.

Price also indicated that the Staff dose estimate calculation assumes that all the radium is " grown in" immediately at the disposal facility and, because radium has only a single valance state, it thus is not sensitive to ell. (/d.) Further, he hidicated that the dos.c estimate coming from uranium, which is the eli sensitive clorent, is negligible in comparison to the dose that comes from radium. (/d.;

Stoff Exh. 2, at Appendix A, at A 14 Table A.7.) In other words, even if the siubinty of manium - the primary characteristic detennining release rates -

incitased by a factor of 2500 in oxidiring conditions, that environment would not hau a signiGunt impact on the corresponding dose because the dose attributable to uranium is already infinitesimally small and would remain many orders of magnitude below the reguktory standard, in this regard, the lloard notes thit in his testimony Dr. Mathijani m where clsoed to have tigorously investigated the critical dose as cil is varico and he r(adily ackrawledged that the "very back of the-envelope" figuring he had donc could not be represented as " scientific work." (Tr.1881.) Rather, his assertion that it h possible that the Staff may have incorrectly estimated the tran port of uranium by " millions or tens of millions" of times is based almost entirely on bla adiustment of the calculation of uranium solubility. (Tr. I182; Mathijani at 1214 (oh Tr.108 t.) Yet, as Dr. Price emphasired in testimony that the lloard 280

i credited in finding the StafI's use of an eli value ofininus 100 mV reawnable, diswived uranium is not what delivers the critical dose. (Tr.1152.)

?,

pil \\'alue in ! IIP 97 3. the lloard indicated that the reference htcrature for deep groundwater pil showed a range of 7.2 to 8.5. It also found that the Staff's use of a mid point value of 7.8 in the 11!!S dose estimate analysis was appropriate and reasonable. 45 NRC at 120. In challenging the Staff's use of a pli value of 7.8, however, Dr. Mathijani claimed that the pit in the basalt rock formations at the llanford reservation, a geologic characteristic similar to one of two hypothetical sites modeled in the 11ilS, had been found to be greater than 9. lie astcried that such pil variations could have a significant effect on the solubility and transport of uranium and, therefore, the calculated dose to the public. (Mathijani at 910 tot Tr.1081.) Specifically, Dr. Makhijani argued that the Staff's n. :e of a pil value appeared to be designed to yield low dose estimates becauss 7.8 pil value is within the nanow range of values betweer. 7 aad 8 for which schoepite

- one chemical form of uranium into which U 0, might be transt'ormed in 3

some geologic environ'nents - has its lowest solubihty, while a change in pil from 8 to 9 would increase the solubility of schoepite by a factor of about 10, (Id. at 1415.)

Ilut as other parts of Dr. Mathijani's own direct testimony show, U 0, 3

converts to schoepite in osidiring geologic conditions, not reducing conditions.

(/d. at 8,15). Moreover, as Staff espert Dr. I' rice testified, and the lloard found in Lilp.97 3, U 0, will only be dispesed of in a deep burial site with 3

reducing conditions, not oxiditing conditions. (Tr.1148.) Rus, Dr. Mathijani's challenge to the Staff's use of a representative pil value, much like his challenge to the Staff's representative cil value, is not based on rigorous investigation of the critical dose as pil is varied. Rather, he relied upon a single inappropriate and unpersuasive esample. Indeed,in his criticism of the Staff's selection of a pil value, Dr. Mathijani appeared to have ignored completely the domina.,t effect of the radium dose. Accordingly, in finding the Staff's use of a representative pil value of *,.8 in its dose ertimate analysis appropriate and reasonable, the lloard found nothing in D. Mathijani's testimony that showed that the value selected by the Staff was far from what might plausibly be found in an appropriately selected site or that a modest change in pil would present significant problems.

3.

Retardation \\'alue in 1.llP 97 3, the lloard also found that the Staff's use in its dose calcula-tion analysis of a retardation factor of 1200 for uranium was reasonable, nis 281

~

value was based on actual experimental observations for a comparable medium reported in a 1978 Swedish study and was corroborated by additional experi-mental observations reported in a German study. 45 NRC at 121. Dr. Makhljani criticited the Staff's use of data from the Swedish study based on a 1983 report by the National Academy of Scienem ("NAS"). His NAS report contained re-tardation factor data for basalt and granite rock formations in the United States, the general geologie characteristics of the two sites modeled in the Staff anal-ysis, that were lower than the value selected by the Staff. According to Dr.

Mathijani, the NAS report listed retardation factors for granite of between 10 and 500 and for br. salt of between 20 and l(XX), with 50 being the recommended estimate if one number was to be used for both geologi: settings. (Makhijani l

at 10 fol. 'D.1041.)

As stated in LDP 97 3, the lloard found the retardation factor value used by the Staff reasonable because it was selected from actual experimental observations for a comparable medium and cortoborated by a second set of experimental observations, in reaching that conclusion, the Board also took into consideration Dr. Price's testimony that the Staff's primary reference source for retardation factor values presented two sets of values for both uranium and l

radium: one set was labeled " cautiously conservative" while the enuch higher j

second set was labeled "best estimate." tbr uranimn, Dr. Price testified that the best estimate value was approximately 24,0(K), while the cautiously conservative value, and the one used by the Staff, was 1200. Ibr radium, he stated that the best estimate value was in the range of 50.(XX), while the cautiously conservative value, and the one used by the Staff, was in the 1200 to 1800 range. (Tr.1235.)

Ibrther, Dr. Price testified that the best estimate values were Usa corroborated by obse tions reporte3 in a second study. (/d.) Additionally, Dr. Price stated that, while he and his colleagues were aware of the lower values in the report of the National Academy of Sciences, the text of that study " qualified" the values and pre

' no direct citations for them. Ibr this reason, Dr. Price indicated that th

. I references for tetardation factors that cited experimental data directly

' provided the most reliable data. (Tr. Ii1(el7.)

As a coi, nee, in fmding the Staff's use of a retardation factor of 1200 for uranium wasonable, the Board essentially was confronted with differing professional opinions. He Staff's experts, after surveying all the data and selecting a conwrvative value, performed the calculations that produced a conservative result. De intervenor's expert, on the other hand, cited another value without p:rforming any calculations and neither convincingly stated why that value was preferable nor provided any direct experimental sources for the data, De Board was persuaded th6t the Staff's approach was the correct one.

282

C.

Compliance with Regulatory Standards llaving thus rejected the Intervenor's challenge to the Staff's choice of values for ell, pil, and retardation factor and found those valaes trasonable, the ihrd necessarily concluded that deep burial of the enrichment tails would comply with the regulatory standards of 10 C.F R. Part 61. His determination, in turn, was integral to the lloard's finding in Ll3PW7 3 that deep burial was a plausible disposal strategy by which to judge the Applicant's tails disposal costs. In making these determinations, the lloard also took into account the numerous conservatisms involved in the Staff's dose estimate analysis. As Dr.

Price testified, the Stalf's analysis did not take any credit for retardation and decay during vertical transport c.9d it assumed that all radionuclides " grew in" a the disposal site instantaneously. Additionahy, the dose calculation did not take into account resaturation time at the disposal site, (Tr.1124.'!5.) Moreover, the various computer codes used in the Staff's dose estimate analysis Oce Staff

!!xh. 2, at Appendix A, at A.8) are themselves inherently conservative. (Trice Tt. 1125.) In light of these factors, the lloard, like the Staff's expert who performed the analysis, reasonably concluded that the dose estimate analysis in the Fli!S overestimates doses and that the projected doses frota deep burial of enrichment tails are many orders of magnitude below the regulatory standard of 10 C.F.R. Part 61. (See Stalf Exh. 2, at Appendix A, at A 12, Table A 7.) In this regard, the Itoard also was cognitant that the methodologf. logic, approach, and major source documents used in the Staff's dose estimate analysis were reviewed by the Applicant's expert witnesses who concluded that "lt]his margin of safety provides confidence that a site can be located whose characteristics are similar enough to those of the generic sites analyred in [FEIS] Appendix A to allow disposal in accordance with the Performance Objectives of Part 61." (Dubici.Donelson at 1415 fol. Tr.1026.) They further concluded that,

"[blecause resultant doses are projected to be several orders of magnitude below the Performance Objectives in 10 C.F.R. Part 61, it is reasonable to assume that sites can be located which will ensure that the Part 61 Perfortuaiwe Gyectives are met." (/d. at 15.)

Finally, in determining on the basis of the Staff's dose estimate analysis that deep burial of enrichment tails would meet the standards of 10 C.F.R. Part 61, the lloard rejected two additional Interveaor arguments. First Dr Makhijani argued that the StafI's dose estimates attributable to uranium were " unbelievably low" and " incredible" in comparison to routi o groundwater samples. (Tr. Il!!2.)

According to Dr. Mathijani, a well drilled into typical groundwater in the United States would yield waten witii a concentration of uranium many times the dose esthnated by the Staff from the deep burial of pure depleted uranium. (Id.)

As the FEIS makes clear, however, the Staff's dose estimates are only the projected doses from the deep disposal of U,0,. (Staff Exh. 2, at 4-65.) nose 283

l dose estimates, therefore, do not reflect background radiation. Ibrthermore, and contrary to the Intervenor's anertions, the floard had no reason to find it surprising, much leu incredible, that the Staff dose estimates were far below regulatory limits. As the Staff dose estimate analysis demonstrated, U,0, from depleted uranium tails is essentially insoluble and largely impervious to water transport when buried deep in appropriate granite or basalt rock formations.

Second, the Iloard rejected Dr. Mathijani's argurnent that the Staff shnuld have performed an uncertainty analysis as part of its dose estimate analysis su that upper and lower bounds for doses muld be obtained. 45 NRC at 12122. In LIIP-97 3, the lloard found, based on Dr. Price's testimony, that an uncertainty analysis was unnecusary for the evaluation of the impacts of two hypothetical disposal sites. Id. at 122. As Dr. Price testified, an uncertainty analysis is useful and necessary in the analysis of an actual site when the range of parameters of site characteristics can be measured or carefully estimated For the evaluation of a hypothetical site, however, he indicated that an uncertainty analysis was impractical and unnecessary due to the lack of specific site data on the various site parameters. (Tr. 1120 21.) %e clear import of Dr. Price's testimony, with whhh the Iloard agreed, was that, for a hypothetical site analysis, the challenge was to select a reasonable value from a range of critical parameters for known sites that likely would be found in a reasonably thorough search for an actual site, in such circumstances, a worst chse analysi' would merely provide information about dose rates for sites that would not be considered in the " search" for an actual licensable site. As the lloard found, therefore, such an analysis wr.s

.mnecessary, Ill. CONCLUSION Ibr the foregoing reasons, the lloard concluded in LilP-97 3 that (1) it was plausible that a mine for the disposal of enrichment tails with characteristics within the range of parameters used by the Staff in its dose estimate analy,is can be found in the United States:(2) the cH, pil, and retardation factor values used by the Staf f in its dose estimate analysis were reasonable and representative val-ues; and (3) given the extremely low doses calculated in the FEIS and the conser-vatisms associated with those dose calculations, variations in the representative 284

I values of those parameters within the expected range likely would not cause the overall dose estimates to exceed the regulatory standards of 10 C.I:.R. Part 61.

Tile A'lOMIC SAlliTY AND LICENSING Il0ARD lhomas S. Moore, Chairman ADMINISTRA'I1VE JUDGE l

Richard F. Cole ADMINISTRATIVE JUDGE I'vederick J. Shon ADMINISTRATIVII JUDGE Rockville, Maryland November 13,1997 i

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