ML20203C616
| ML20203C616 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 02/18/1998 |
| From: | Chancellor D UTAH, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#198-18822 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9802250220 | |
| Download: ML20203C616 (34) | |
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% FEB 23 p2;49-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFIC6 cy g' ;,
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In the Matter of:
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Docket No. 72 22-ISFSI
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PRIVATE FUEL STORAGE, LLC
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ASLBP No. 97 732-02-ISFSI (Independent Spent Fuel
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Storage Installation)
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February 18,1998 a
STATE OF UTAH'S RESPONSE TO CASTLE ROCK LAND & LIVESTOCK, LC., ET AL'S NON APPLICATION OR WAIVER OF COMMISSION p
REGULATIONS, RULES AND GENERAL DETERMINATIONS
{
Pursuant to the Beard's Memorandum and Order of February 2,1998, the S ste files this response in support of the Petition for Non-a; piication or Waiver of Commission Regulations, Rules and General Determinations filed by Castle Rock Land & Livestock, L.C., et al (" Castle Rock") on January 21,1998.
Discussion Castle Rock filed its petition for waiver or exception pursuant to 10 CFR !
2.758(b), which in part provides:
The sole ground for petition for waiver or exception shall be that special circurnstances with respect to the subject matter of the panicular proceeding are such that the application of the rule or regulation would not serve the purpose for which the rule was adopted.
If the presiding officer determines that the petitioner has made a prima facie showing based on the petition, affidavit and any response, that application of the rule or 9902250220 990210 yh')
PDR ADOCK 07200022 C
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<o-regulation to a specific aspect of the proceedings would not sen e the purpose for
< which the :ule was adopted, the presiding officer shall directly certify the ruatter to the Commission.10 CFR $ 2.758(d), A determination is then niade by the Comminion-xwhether to grant an exception to or waiver of the rule. Id.
. Castle Rock's two part petition setks first, a determination that the Commission does not have authority to grant a license to PFS under 10 CFR Part 72
. thus making Part 72 inapplicable to this proceeding, and second, a waiver of, or exception permitting a challenge to, portions of 10 CFR $ 51.23 and the Waste Confidence Rule, as each applies to this proceeding, e
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)
. A. -
NRC's Authority to License the PFS ISFSI Neither NRC's general statutory authority nor the Nuclear Waste Policy Act,:
' 42 USC $$ 10,101 to 10,270 allow it to license a facility su:h as that being proposed by Private Fuel Storage, LLC ("PFS").: The State of Utah, on November 23.1997,- filed Contentions A through DD in this proceeding. Utah Contencion A states: " Congress -
has not authorized NRC to issue a license to a private entity for a 4,000 cask, away -
from reactor, centralized, spent nuclear fuel storage facility." Utah Contentions A through DD at 3. The State's Contention A and'its basis, at 3-9, are incorporated by
- reference into this Response and attached hereto as Exhibit 1. On January 16,1998,
._ the State filed a Reply to the NRC Staff's and Applicant's Responses to State of Utah's
-J 2
3 l
._9
' :s
- -
- o :
LContentions A through DD (" Reply"). The State's Reply at 915 is incorporated by __
reference into this Response and attached hereto as Exhibit 2.'
The Commission cannot rely on its general statutory authority to issue a license -
W to,000 MTU away-from reactor national storage facility proposed by FFS. Part
.faons dealing with licensing Independent Spent Fuel Storage Installations l
("lSFSIs") are an outgrowth of Part 70 regulations, Domestic Licensing of Special i'
Nuclear Material. See Notice of Final Part 72 rule,45 Fed. Reg. 74,693 (Nov.12, D
l1 1980), Summary at Id. Chapter 6 of the Atomic Energy Act addresses Special Nuclear 4-i
^ Material. Section 53(a) of the Atomic Energy Act,42 USC $ 2,073(a) authorized the JAtomic Energy Commission (AEC) to license private persons to possess and use, but not own special nuclear materials.. An amendmem to $ 53(a) in 1967 authorized the u
AEC to license private ownership. possession and use of special nuclear materials. : See-
- State's Reply, Exh.' 2, at 10-13, which discusses the history of $ 53. Thus, there is no clear statutory authority for NRC to license the centralized off site storage of spent -
nuclear fuel. After passage of the Nuclear Waste Policy Act and the policy choices e
.- made therein by Congress, there can be no doubt that such general authority does not
- exist.
M Utah Contention A and the Reply reiterate Castle Rock's premise that r
I Congress, in the Nuclear Waste Policy Act ("NWPA"), has developed a comprehensive
^
I scheme to address interim norage of spent nuclear fuel.- Nowhere in the NWPA does s.
i 3
I Congress authorize NRC to license private away-from-reactor ISFSIs. To the contrary, in the NWP. Congress specifically acc!ressed private storage of spent nuclear fuel at reactor sites. See e.g.,42 USC $ 10,152 (use of on site storage at civilian power reactors), $ 10,153 (Commission authority license technology for use at the site of civilian power reactors) and $ 10,155(b)(1)(B) Congress authorized interim storage of spent nuclear fuel away-from reactors only at federally owned facilities. 42 USC $
10,151(b)(2) (" establishment of a federally owned and operated system for the interim storage of spent nuclear fuel at one or more facilities owned by the Federal Government with not more than 1,900 metric tone of capacity...") ' Sec also.Id. $
10,155(a,? and (h).
Of particular concern to the State is its status as a litigant in d.h proceeding contrasted with the role Congress ascribed to States for siting, developing and licensing facilities authorized under the NTPA. 42 USC $ 10,155(d). - Utah Contention A at 6-'
8 cuntrasts the State's role under the NWPA, such as the information exchange and L
cooperative agreements between the federal and state governments, and the State's ability to voice its d!sapproval to Congress, with its diminished role in an adjudicatory _
~
. proceeding such as this one. Also, Congress recognized that large, centralized storage facilities wouk1 carry with them social and economic costs and provided economic impact assistance to State and local governmems for planning, public services and other -
costs. 42 USC $ 10,156(e). See also Id. $ 10,173. Furthermore, shipping fuel across the 4
country to Utah under the PFS proposalis in direct contradiction to the NWPA which directs that transportation of spent fuel be minimized. 42 USC $ 10,155(a)(3).
The decision by a private limited.c.oility company to site, construct and operae a national storage facility for spent nuclear fuel on an Indian reservation in Utah creates a special circumstance in defining the scope of Part 72. And the scope of Part 7.2 is bounded by the statutory authority granted to NRC to license such facilities.
Bowen v. Georeetown Univ. Hosp.,488 U.S. 204,208 (1988)("It is axio:: oic that an administrative agency's power to promulgate legislative regulations is limited to the uthority delegated by Congress.") Thus, the scope of Part 72 as it applies to NRC's satutory authority is a discrete question that has not been addressed before by the Cmmission.
The scope of ISFSI licenses issued by NRC to date, range from 2 casks to up to 247 casks at Fort St. Vrain, Colorado.5 See Casks at Independent Spent Fuel Storage Installations attached hereto as Exhibit 3. The PFS proposalis vastly different than any other facihty licensed by the NRC. It creates a special circumstance in which the Commission should determine whether it has the statutory authority to proceed with the licensing of the proposed PFS facility.
For the reasons stated above, the State requests the Board to certify this matter to the Commission for its determination in accordance with 10 CFR $ 2.758(d).
' Casks at Fort St. Vrain, which are smaller than those proposed to be used at PFS, will only be stor:d there until decommissioning is complete.
5 l
B.
Waste Confidence Rule The initial 1984 Waste Confidence Decision and 1990 resision thereto, codified at 10 CFR $ 51.23, basically state that NRC has generically determined that spent fuel may be stored safely for at least 30 years beyond the term of a reactor's operating license at the reactor basin or either on-site or off-site at an ISFSI; that one permanent repository will be available within the first quarter of the 21st century; that sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of spent fuel originating in reactors and generated up to that time; and that in issuing an initial ISFSI license or amendment no discussion of any environmental impact of spent fuel storage is required in any environmental report or environmental impact statement. In the 1990 Review and Final Revision of the Waste Confidence Decisicn,55 Fed. Reg. 38,474, the Commission extended review of its Waste Confidence Decision from once every five years to once every ten years.
Id. at 38,475. The Commission stated that this change "would not, however, disturb the Commission's original commitment to review its [ Waste Confidence) Decision whenever significant and pertinent unexpected events occur." Id.
As Castle Rock has pointed out in its Petition at 18-24, "significant and pertinent unexpected events" have occurred since the 1990 decision. And one of those events is the application by PFS for a 4,000 cask,40,000 h TU facility located on 6
a
Indian trust lands in Utah. The initial ISFSI license term would be for 20 years, plus.
one 20 year extension.- The State pointed out in its Reply to Contention S at 70-71, that it is likely that spent fuel will be stored in Utah beyond the 40 year licens: and
- amendment term (i.e. beyond 2040). Assuming PFS is issued a license in 2000 and Yucca Mountain begins to accept fuel for entombment in 2020, by the year 2040 the prognosis for fuel receipt at Yucca Mountain would be about 38,000 MTU. See State's l
Reply to Contention S at 69 74, which is incorporated by reference into this Response and attached hereto as Exhibit 4. Furthermore, PFS would not be the only facility
- vying to send fuel to Yucca Mountain. First,7,000 MTU storage capacity has been set aside at Yucca Mountain for the federal government Second, interim storage of fuel at a federal facility must, by law, be removed within three years following the date on which a repository on MRS is available for disposal of such fuel. 42 USC $ 10,155(e).
There is no such linkage for removing spent fuel to Yucca Mountain for a private
' facility such as that proposed by PFS. Finally, there would be insufficient capacity at Yucca Mountain to timely accommodate all fuel stored at PFS by 2040. Even if Yucca Mountain'were on track the premises of the Waste Confidence Rule do not hold up when applied to the huge centralized storage facility prcposed by PFS. Therefore, the Waste Confidence Rule should be waived and an exception to NRC's generic determination granted to the extent that the Rule precludes analysis of the
. environmental impacts of storage of tpent fuel; permits PFS to presume spent fuel will 7
]
be removed at the end of a 40 year license term; and allows PFS to address and fund decommissioning to the extent that spent fuel will not be stored at the facility beyond a 40 year license term.
A special circumstance, unique to this facility, is that the PFS facility will be located on the Skull Valley Reservation. PFS and the Skull Valley Band of Goshutes have entered into a 25 year lease with an option to extend for an additional 25 years.
The lease must be approved in writing by the Bureau ofIndian Affairs on behalf of the Secretary of the Interior. 25 USC 5162.5. C; May 23,1997, the BIA conditionally approved the lease between the Band and PFS. See Exh.15 to State of Utah's Contentions. By statute, the maximum term of the lease shall not exceed 25 years with one additional term not to exceed 25 yea;s. 25 USC $ 162.8. Fuel stored on at the PFS ISFSI located on It.dian trust lands probably will remain beyond the 50 year lease term and extension (i.e. by 2043). Regardless of NRC's Waste Confidence Rule, it would be illegal under 25 USC $ 162.8 to store fuel on the Skull Valley Reservation after 2043.
This is a critical issue to be resolved in the EIS for the PFS facility. Use of the Waste Confidence Rule to eliminate this issue from analysis would be a derogation of the federal governme.it's fiduciary responsibility to Indian tribes as well as unsound from an environmental and safety perspective. This is yet another reason why the Waste Confidence Rule is inappropriate in this proceeding.
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a DATED this 18th day of February,1998.
Respectfully submitted,
~y
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4 Denise Chancellor Fred G Nelson Assistant Attorneys General Diane Curran Connie Nakahara Special Assistant Attorneys General Attorneys for State of Utah Utah Attorney General's Office 160 East 300 South,5th Floor P.O. Box 140873 Salt Lake City UT 841144 873 Telephone:
(801) 366-0286 Fax:
(801) 366-0292 e
9
DOCKETED USHRC e
'98 FEB 23 P2 :49 CERTIFICATE OF SERVICE 4
I hereby certify that copies of STA"I OF UTAH'S RESPONShe re n etc in m,qy gASTEEM,.99 ADJUDCATONS STAFF ROCK LAND & LIVESTOCK, L.C., ET AL*S NON APPLICATION OR WAIVER OF COMMISSION REGULATIONS, RULES AND GENERAL -
DETERMINATIONS, were served on the persons listed below by electronic mail.
(unless otherwise noted) with conforming copies by United States mail first class, this ;
18th day of February,1998:
Attn: Docketing & Services Branch
-- Dr. Peter S. Lam Secretary of the Commission AdministrativeJudge U. S. Nuclear Regulatory Commission Mail Stop: Ol6G15 l Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission 11555 Rockville Pike, One White Flint -
Washington, DC 20555 l
North E-Mail: psl@nrc. gov -
Rockville, MD 20852-2738 (originaland two copin)
Sherwin E. Turk, Esq.
Catherine L. Marco, Esq.
G. Paul Bollwerk, III, Chairman Office of the General Counseli Administrative Judge Mail Stop 15 B18 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission -
U. S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 E-Mail: set @nrc. gov E-Mail: gpb@nrc. gov -
E-Mail: cim@nrc. gov Dr. Jerry R. Kline _
Jay E. Silberg, Esq.
1 AdmininrativeJudge Ernest L. Blake,Jr.
Atomic Safety and Licensing Board Shaw, Pittman, Potts & Trowbridge
- U. S. Nuclear Regulatory Commission
_2300 N Street, N. W.
Washington, DC 20555 Washington, DC 20037-8007 E Mail: jrk2@nrc. gov E-Mail: Jay _Silberg@shawpittman.com 10 l
i Clayton J. Parr, Esq.
Danny Quintana, Esq.
Kimball, Parr, Waddoups, Brown &
Danny Quintana & Associates, P.C.
I Gee 50 West Broadway, Fourth Floor 185 South ~ State Street, Suite 1300' Salt Lake City, Utah 84101 1
P. O. Box 11019 E Mail: quintana @xmission.com Salt Lake City, Utah 84147-0019 g
E Mail: karenj@pwlaw.com James M. Cutchin --
Atomic Safety and Licensing Board.
John Paul Kennedy, Sr., Esq.
- Panel 1385 Yale Avenue U.S. Nuclear Regulatory Commission -
Salt Lake City, Utah 84105 Washington, D.C. 20555-0001 E Mail: john @kennedys.o g E Mail: jmc3@nrc. gov (electronic copy only)
Jean Belille, Esq.
Land and Water Fund of the Rockies 2260 Baseline Road, Suite 200
-Office of the Commission Appellate Adjudication Boulder, Colorado 80302
- Mail Stop: 16-G-15 OWFN E Mail: landwater@lawfund.org U. S. Nuclear Replatory Commission
=
Washington, DC 20555
. (UnitedStates mail,first class only) l btW,
- Denise Chancellor Assistant Attorney General State of Utah s.
11
A. Statutory Authority CONTENTION: Congress has not authoriud NRC to issuc a license to a i
private entity for a 4,000 cask, away from reactor, centralind, spent nuclear fuel storage facility.
BASIS: The NRC m.ty only license the storage of spent fuel at facilities which are authorind by statute. Bowen v. G 3rgetown Univ. Hosp.,488 U.S. 204,208 (1988) ("It is axiomatic that an administrative agency's power to promulgate legi. dative repilations is limited to the authority delegated by Congress."). The Nuclear Waste Policy Act (NWPA), Pan B, Interim Storage Program,42 USC $$ 10151 - 10157, defines the scope of facilities authorind for interim storage of spent nuclear fuel. In light of the NWPA, NRC cannot rely on its general statutory authority or authority to license spent nuclear fuel as the source of its authority to license a centralized 4,000 cask away from reactor facility operated by a limited liability corporation.- American Petroleum Institute v. EPA,52 F.3d 1113,1119 (D.C. Cir.1995) ( EPA cr.nnot rely on its general authority to make rules necessary to carry out its functions when a specific ser tory directive defines the relevant functions of EPA in a panicular area."); Sima Club v. EPA,719 F.2d 436,455 (D.C. Cir 1983), cert, denied,468 U.S.1204 (b64).
NRC's general licenshg authority does not give NRC cane blanche authority to make any rules it wishes regarding away from reactor storage of spent nuclear fuel.
_ _ _ =
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O Initially, NRC licensed ISFSIs under its general regulation for the Domestic Licensing of Special Nuclear Material,10 CFR Part 70. See 45 Fed. Reg. 74,693 (Nov.
12,1980). Chapter 6 of the Atomic Energy Act deals specifically with special nuclear material in terms c'the acquisition and domestis and foreign distribution of spechl nuclear material. 42 USC $$ 2071,2073 to 2077. Under the Atomic Energy Act congressional authorization extended to NRC's authority to license civilian ownership and possession of special nuclear material. 42 USC $ 2073. However,it was not until the NWPA that Congress specifically addressed storage of spent nuclear fuel.
In the NWPA of 1982 Congiess specifically authorized private storage of spent nuclear fuel at reactor sites. Congress authorized storage of spent nuclear fuel AEax from reactors only at federally owned facilities. 42 USC $ 10,d(h). Neither the NWPA, nor the statutory basis in 1980 for NRC to promulgate Pan 72, can be construed as authorizing NRC to issue a license for a 4,000 cask, centralized, privately owned, away from reactor, nuclear waste storage facility that is being sot'ght by this -
. Applicant..
The NWPA expresses Congress's purpose and intent in dealing with spent nuclear fuel storage.' 42 USC $ 10,1St. Congress directed the NRC and other
- 8. As stated in the legislative history of the Nuclear Waste Policy Act of 1982, PL 97-425, House Report No.97-491, Pt.1, p.26 " Background, U.S. Code Cong. R Admin. News 1982, at 3,792: "The need for legislation to address problems besetting
- nuclear waste management, and Congressional efforts to address these pt oblems, has
= - - - -
increased and become urgent since the early 1970's. Prior to this time, the inventory of wastes from nuclear activities grew with little public notice and minor -
4 J
authorind federal officials to encourage and expedite the stortge of spent nuclear fuel at the site of each civilian. nuclear power reactor. 42 USC $$10,151 and 10152.
Congress granted the NRC rulemaking authority for licensing 1rchnologies for the storage of civilian spent miclear fuel at the site of any civilian nuclear power reactor.
Id. 510,153. Finally, the NWPA authoriud the " establishment of a federally owned and operated system for the interim storage of spent nuclear fuel at one or more facilities owned by the Federal Government with not more than 1,900 metric tons of capacity....* Id. $ 10,151(b)(2).
Congress imposed limits on centralind storage of spent nuclear fuel. First, t'.e l
facility is to be federally owned and operated. 42 USC $ 10.155(a). Second, maximum storage capacity is no more than 1,900 metric tons. Id. Third, when providing storage capacity, Congress directed the Depanment of Energy (DOE) to seek to minimize the transponation of spent nuclear fuel. Id. at $ 10155.j(3). Founh, storage of sper.t fuel 1
must be removed from the site not later than 3 years following the date on which a repository or monitored retrievable storage (MRS) facility is available. Id. $ 10,155(e).
Finally, Congress imposed annual reponing requirements on DOE. Id. $ 10155(f).
The stark contrast between what the Applicant is requesting NRC to authorize under Pan 72 and the directives Congress imposed on the federal ownership and operation of centralized interim away.from reacter storage under the NWPA bespeaks Congressional concern. (emph. sis added).
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the lack of statutory authority for NRC to license the proposed PFS facility. First, the Applicant's facility would not have the backing of the federal government but would be owned and operated by a IImited M Ility company with no independent assets.
Second,instead of a maximum limit of 1,900 metric tons the Applicant requests a maximum limit of 40,000 metric tons. Third, s nt nuclear fuel would be transported from all over the United States, primarily from the eastern states, thousands of miles to the Utah 5.teility. Founh, the Applicant's facility is de linked from completion of Yuces Mauntain or an MRS. There is no assurance that the stored fuel in Utah will ever be moved. Finally, as the licensing of an off site ISFSI is totally an NRC regulatory crtation, there are no Congressional reponing requirements.
l Another glaring aberration between this Applicant's proposal under Pan 72 and the centralized away from reactor storage under NWPA is to contrast the involvement of States. Sec 42 USC $ 10,155(d). First, under NWPA, the Secretary of Energy must appraise the State Governor and its legislature of potentially acceptable interim storage sites and the Secretary's intention to investigate those sites. 42 USC $
10,155(d)(1). Second, the Secretary is required to give timely updates and results of investigations to the Governor and State legislator and enter into negotiations to -
establish a cooperative agreement between the Secretary and the State. Under such an agreement the State "shall have the right to panicipate in a process of consultation and cooperation... in all stages of the planning, development, modification, expansion, 6
operation and closures of storage capacity at a sits or facility within.uch State for the interim storage of spent fuel from civilian nuclear power reactors." M. $ 10,155(d)(2).
Third, the coope.ative agreement must include sharing of all technical and licensing information; use of s.vailable expertise; joint project review, surveillance and monitoring arrangements; and schedule of milestones and decisions points and opponunities for State review and objection. M. $ 10,155(d)(3). Founh, the Secretary must periodically repon tc, Congress. M. $ 10,155(f). Finally, a State may voice its disapproval to Congress of a proposal to constmet storage capacity of 300 metric ton or larger at any one site. M. $ 10,155(d)(6).
In contrast to a cooperative agreement and meaningful role ascribed to the State under the NWPA, Part 72 requires no cooperation or involvement with the State.
What has occurred to date is indicative of the pitiful role assigned to the State under Pan 72. First, the Applicant made no effon to apprize the State ofits proposed facility. The State first learned about the facility through press releases and by sending State officials to Washington, D.C. to attend meetings between the Applicant and the l
)
i NRC that were open to the public. Second, there has been no cooperation or consultation between the Applicant and the State. Failure to even allow the Sta to review and comment on the Emergency Plan, as required by 10 CFR $ 72.32(a)(14), is just one conspicuous example of the Applicant's refusal to deal up front with the State.
Finally, there is no opponunity for State review or oversight of the project, except 7
through litigation. The State endeavored to place some its concerns before the NRC, prior to NRC's acceptance of the application, through 2.206 petitions but the NRC ignored those effons. Instead, the State has to expend thousands of dollars to participate through intervention in the NRC formal liceme adjudication if it wants to have any voice in the siting and licensing of this fecility. This is a far cry from the role Congress assigned to the State under 510,155(d).
Another salient factor in the analysis of whether NRC has statutory authority i
to license the PFS facility is the way in which the Applicant will use public services without any compensation to government coffers. Congress recognized that there I
would be social and economic impacts associated with a large centralized storage facility. 42 USC $ 10,156(e). Accordingly, Congress authorized payment of up to $15 per kilogram of spent fuel or ten percent of costs associated with planning, public servicu and other social and ecopamic impact costs. Part 72 imposes no requirements on the Applicant to give financial assistance to governmental entities. For example, if hRC licenses the PFS facility, annual shipments of up to 200 casks of nuclear waste may travel through the rail congested and populated Wasatch front area, including downtown Salt Lake City. The State at least receives training and financial assistance from the federal government for the military nuclear waste shipments (such as WIPP wastes) passing through the State as it would if this facility were authc.rized by the NWPA. But no such usistance will be fonhcoming from this Applicant. In fact, the 8
State is unaware of what arrangements the Applicant intends to use to safeguard shipments and respond to emergencies en route, at Rowley junction, or along Skull Valley Road. Rather than receiving financial usistance, the State of Utah will be forced to expend funds to ensure that its citizens will not be harmed.
After comparing what this Applicant is requesting and what Congress requires under the NWPA,it should be obvious that NRC by regulation is thwarting the national policy and directives Congress set in the NWPA. NRC is without statutory authority to license the proposed PFS facility.
l 9-u
III Reply to ^pplicant's and Staff's Response to. State's Content!8 qui REPLY: CONTENTION A The Applicant asserts that the State in Contention A is impermissibly challenging a Commission rule. Applicant's Answer at 23. This b incorrect. The State in Contention A is challenging the statutory authority of the NRC to license a centralized 4,000 cask away from reactor ISFSI. The NRC S.aff initially made the same assertion as the Applicant in its December 24,1997 Response at 7, n.11, and et 14, but on December 31,1997 the Staff filed substitutes for pages 7 and 14,5 deleting any reference to an impermissible challenge to the Commission's regulations. Thus, the Staff does not consider Contention A to be a challenge to the Commission's regulations.
The Applicant, citing Siegel v. AEC. 400 F.2d 778,783 (D.C. Cir.1968), argues that the regulatory scheme authorized by the Atomic Energy Act is " virtually unique I
in the degree to which broad responsibility is reposed in the administering agency" (then the Atomic Energy Commission] to decide how to achieve statutory objectives.
Applicant's Answer at 23 24. The Applicant is apparently implying that the NRC now has broad discr etion to license any spent fuel storage facility it deems appropriate.
That view glosses over the critical distinction between the great deference courts give i See Letter from NRC Staff attaching corrected pages 7 and 14 to its December 24,1997 Response to Contentions..., filed December 31,1997.
9
to NRC's " technical" decisions "at the frontiers of science" and " policy choice [s] made by Congress," such as those " embodied in the NWPA." Kellev v. Selin,42 F.3d 1501, 1521 (6th Cir.1995).
The language the Applicant cites from Siegel describes the authority of the Atomic Energy Commission (AEC), not that of the NRC. The Atomic Energy Commission had br.,ader statutory authority than does the NRC. In the Energy Reorganization Act of 1974, Congress abolished the AEC, separated its functions, and transferred them to other agencies. 42 U.S.C. 55 5801(c) and 5814(a)-(c). The AEC's functions were split between the newly created Energy Research & Development Administration (now the Department of Energy) and the newly created Nuclear Regulatory Commission. 42 U.S.C. $5 5801(b),5814(c) and 5841(f), respectively.
The Applicant has used Siegel's description of AEC authority in 1968 to characterize NRL authority 30 years and major events later.
The " backdrop" for the unique degree of broad responsibility given to the Atomic Energy Commission, as described in Siegel. was that Congress allowed such fle...bility under the Atomic Energy Act of 1954 in the hope of fostering the new civilian atomic energy industry. At that time, Congress agreed that "it would be unwise to try to anticipate by law all of the many problems that are cenain to arise."
Siegel,400 F.2d at 783.
- One unanticipated future problem involved the storage and disposal of spent j
10
o nuclear fuel, which was of minor,if any, concern to Congress in the 1960's. Pub. L.
No. 97 425, Legislative History, Nuclear Wsste Policy Act of 1982, House Report No.
97491,1982 U.S.C.C.A.N. (96 Stat. 2201) '>792. Back then, Congress recognized that it could not predict with certainty 'the events of 1975 or 1980," and that 'many unfereseeable developments may arise in this field [ atomic energy) requiring changes in leeislation from time to time." Pub. L. No.88-489, Legislative History, Private Ownership of Special Nuclear Materials Act of 1964, Seriate Report No.1325,1964 U.S.C.C.A.N. 3113,3123 (emphasis added). For example, the general recognition that storage of spent nuclear fuel, prior to its ultimate disposal, vould be a likely
" additional new step in the nucicar fuel cycle" came about only after the deferral of reprocessing of spent fuel in 1977. 45 Fed. Reg. 74,693 (Comment No.1) (1980). In other words, Congress was not concerned with interim storage of spent fuel when, in the 1950's and 1960's,it provided the Atomic Energy Commission with the broad general authority described in the Siegd case.
Siegel held that since the Atomic Energy Commission's expedited licensing of a nuclear reactor in the 1960's was notin conflict with the Congressional purooses underlying the IAtomic Energyl Act. it was within the AEC's broad authority to realize those purposes. Siegd,400 F.2d at 783 784. Since then, Congress enacted the Nuclear Waste Policy Act of 1982, which declares the national policy regarding nuclear waste. The broad AEC authority to further the Congress' Atomic Energy Act (AEA) 11 i
o objective of promoting the civilian commercial nuchar power industry in the 196Cs, does not equate with NRC authority to thwart the current Congressional policy on interim storage of spent fuel as expressed in the NWPA,42 U.S.C. $$ 1015110157.
Moreover, the NWPA does not delegate policy decisions to the NRC. Kellev v. Selin, 42 F.3d 1501,1521 (6th Cir.1995).
The Staffin its Response at 8 9, cites various sections of the AEA dealing wi.h authority to license source ar.d hyproduct materials,in addition to special nuclear material, as support for authority to license spent fuel under Part 72.1-iowever, the NRC's notice of the final Part 72 rule, published at 45 Fed. Reg. 74,693 on Nov.12, 1980, specifically states that Part 72 was developed to provide a more definitive regulation for spent fuel storage in lieu of the general ri,ulation, Domestic Licensing of Special Nuclear Material,10 CFR Part 70. The rationale for enacting Part 72 calls into question NRC's claim that its byproduct and source material authority also authorize it to lica- ; awa from reactor ISFSIs. In addition, NRC's reliance on $ 53(a) of the AEA,42 U.S.C. $ 2073(a),8 for its authority to license private away from reactor ISFSIs does not comport with the legislative history of the enactment and amendment of $ 53(a).
As enacted, $ 53(a) of the AEA,42 USC $ 2073(a), authorized the AEC to license private persons to possess and use, but not own, specirl nuclear materials, 2 The Staff (Response at 7 8) incorrenly cites 42 U.S.C. 5 2071 instead of 5 2073 for authority to license special nuclear material.
12
which were then in short supply. By 1964 special nuclear material was no longer scarce and Congress believed that private ownership legislation would enable utilities to negotiate long term supply contracts and encourage long term planning for the development of civilian, commercial nuclear power. Pub. L No.88-489, Legislative History, Private Ownership of Special Nuclear Materials Act of 1964, Senate Report No.1325,1964 U.S.C.C.A.N. 3,111 13. Thus, in 1967, Congress amended 5 53(a) of the AEA,42 USC $ 2073(a), to clarify the AEC's authority to license private p.nmhip, Possession and use of special nuclear material. Id. ("Section by Section Analysis"),1964 U.S.C.C.A.N. at 3125. The NRC is inappropriately trying to use $
5)(a) of the AEA to overcome the interim storage policy choices made by Congress a the NWPA.
In disputing Utah's contentions that the NWPA rejects NRC authority to license a private away from reactor ISFSI, the Applicant (An:wer at 24) confuses the scheme established for a federal MRS,42 U.S.C. 51016110168 with the nterim storage program under the NWPA,42 U.S.C. $ 10151 10157. It is the interim storage 1
program, not the MRS program, that reflects Congressional intent on the issue of at-reactor versus away from reactor private storage of spent fuel. The MRS program does not address these pliyau storage issues.
Both the Staff (Response at 7) and the Applicant (Answer at 24) argue that the NWPA did not repeal, impinge or limit the NRC's existing authority which they both 13 W
3
_ presumed has existed under the Atomic Energy Act to license interim storage of spent nLelear fuel at awaydrom reactor sites. The Applicant cites Morton v. Mancuri,417 l
U.S. 536 (1974) for the proposition that " repeal of statutes by implication are strongly disfavored as a matter oflaw." Applicant's Answer at 24 25. But by the same token, courts should not presume the existence of rulemaking power (such as for licensing of spent fuel storage in privately owned, away from reactor ISFSIs) based solely on the fact that Congress has not expressly withheld such power. American Petroleum r
Institute v. EPA,52 F.2d 1113,1120 (D.C. Cir.1995); National hiining Assochtion v.
Department of Interior,104 F.3d 691,695 (D.C. Cir.1997).
If the NRC already had generallicensing authority under the Atomic Energy
. Act to approve spent fuel storage in private facilities either at or away from re ctor sites (Staff's Response at 7), then why did Congress in the NWPA's interim storage program bother to specifically authorize private storage of spent nuclear fuel anly_at reactors (42 U.S.C. $ 10155(h))? The more sensible explanation is that $ 10155(n) simply expresses a Congressional policy choice to preclude private storage of spent fuel it away from reactor facility sites.
Even if the NRC did issue a license for an ISFSI to GE (Morris, Ill.) under Part 72 before the NWPA was enacted (Applicant's Answer at 4), that would not justify continuing to do so after the NWPA was enacted. 42 U.S.'C. $ 10155 (h). And now that Congress in amending the NWPA has rejecmi a proposal which would have _
I 14
4 expressly authoriad the NRC to license away from reactor ISFSis, the NRC's position is even more suspect. See Sec. 207, Private Storage Facilities, of H.R.1270, Nuclear
- Waste Policy Act of 1997. -
Response to Applicant's Rephrasing of Contention A The State objects to the Applicant's rephrasing of Contention A.
I 4
4
_ =
_ = =
= - -
_=
15 L.
i i
i 3 DEPENDENT SPENT FUFL $1MGE INSTALLATIONS Volume of ISFSh'd Type of i
- caib Spam Fuel Locztlon Llame Arkansas Nucicar 1,2 2
Entergy Operations, Inc?
Russellville, Genera?
Arkansas' 11/04/91' V
247 14d2 f"*!
- I""'"III
ofCol S ecific P
o' lorado'
)1/4/9;'
SAFSTORio OE Monis" Wet
?
Specific 11Iinois Clavert Cliffs,1,2 14 Annapolis, SpeciGe Baltimore Electric Co.
(120)
Maryland I t/25/02" outside of reactor area 3
As of February 12,1997. 1997 Infonnation Digest. Nuclear Regulatory Comnission.
'All current ISFSIlicens are owned and opettled by a 10 CFR Part 50 power reanor -
license holder. Information Handbook on Independant Spent Fuci Stora6e Installations, NUGREO 1571. Nuclear Regulatory Comminison. p. 21, De.emba 1996, i
SAll genetul license ISFSIs are located on the reactor site.
' Appendix D. 1997 Information Digest. Nuclear Regulatroy Conunission. p.106.
' Assume ISFSIlocated at reactor. Location determined by Appendix A.1997 I
Information Digest. Nuclear Regulatroy Comminion. p.
'Information Handbook. p. 5 2.
' DOE plarmed to transfer the license at the end of19"f Information Handbook. p. 4 7.
' Appendix B.1997 Information Digest. Nuclear Regulatroy Commission, p 100.
3nformation Handbook. p. 4 7.
=-
2* Storage until decomminaioning can be completed.
"No otherinformation, g
ulnformation Handbook. p. 4 2.
,. ~..,
.,,.. -. - - -, ~....
---,.m
o r
Palludes 13 Consumer Power Co.
Scath Haven, Genera!
Michlgan 11/4/91" Prarie Island 1,2 7
Minneapolis, Specific Northern State Power Co.
(48)
Miru.esota 10/19/93" at reactor site Davis Besst 3
To'ido Edison Co.
Oak Harbor, Gei,eral Ohio 01/23/o5" Oconee 34 Greenville, Specific Duke Powe, Company (88)
South Carolina 01/29/90" outside protected area ofreactor H.B. Robinson 8
- Florence, Specific Carolina Power & Light (8)
At reactor site South Carolina 08/13/86."
Surry 1,2 31 Speci e Virginia Electric Power (1764.Ws)
Virgina 08/13/86d at reactor site Point Beach 2
Wisconalu Electric Power General Wisconsin 11/4/91 "
"Information Handbook. p. 5-4
" Info:ination Handbook. p. 419.
"Information Handbook p. 5-3.
"Information Handbod ' p. 4-16.
"Information Handbook. p. 4-12.
"Information Handbook.- p 4 25.
"Information Handbook p. 5 8.
l
9 i
l REPLY: CONTENTION S (Decommissioning)
The NRC Staff does not oppose admission of Contention S as stated in basis 1, 2,4,5 and 10. Staff Response at 49.
The Applicant argues that the standards established in Yankee Atomic Electric Cm (Yankee Nuclear Power Station), CLI 961,43 NRC 1 (1996) (hereinafter Yankee 1), Yankee Atomic Electric Co. (Yankee N'iclear Power Station), LBP 96 2,43 NRC 61_ (1996) (hereinafter Yankee II), and Yanke Atomic Electric Co. (Yankee Nuclear Power Station), CLI 96-7,43 NRC 235 (1996) (hereinafter Yankee III) are applicable to
- many if not'all of the state's eleven decommissioning subcontentions." Applicant's Answer at 238 39. Contention S challenges the Applicant's ability to provide 69 G
sufficient funding for decommissionir.g and questions the Applicant's cost estimates.
The status of Yankee Nuclear Power Station (Yankee Rowe facility) is entirely different from that of this Applicant, which is a newly formed limited liability company with no track record. The Yankee Rowe facility had existing rate based contracts. These firm contractual agreements had been a matter of public record for many years. Yankee 111,43, NRC at 259. Thus, the ability to raise funds was not the issue in the Yankee cases. In Contention S the State has shown the comprehensive failure in the Applicant's decommissioning funding, both with respect to estimates and ability to raise funds. The Applicant has act shown the reasonable likelihood of having the money it needs for decommissioning, so the estimates are relevant. Clearly, health and safety are jeopardized when the Applicant does not have sufficient money set aside to meet the costs of decommissioning.
l The Applicant's response to the State's assertion that the decommissioning plan must include contingency costs in the event that the ISFSI cannot be decommissioned at the end of the license term due to the unavailability of disposal or alternate storage,
)
is that it is barred as a matter of law. Applicant's Answer at 224, citing 10 CFR $
51.23(a). The fact that fuel may be stored on site beyond the license term is a distinct possibility. According to a 1993 GAO report Yucca Mountain may not open until between 2015 and 2023. Yankee II,43 NRC at 72. Assuming the license is issued to PFS in 2000 and Yucca Mountain begins to accept fuel in 2020, not all fuel would be -
70 1
O interred at Yucca Mountain even by the end of the initid license term plus a 20 year renewal (i.e., by 2040). DOE's prognosis for spent fuel acceptance for the first ten years is 8,200 MTU.' The Transpmtation of Spent Nuclear Fuel and High Level Waste, Nevada Nuclear Waste Project Office (September 10,1996) at 15, attached to OGD's Contentions as Exhibit 4. After acceptance year ten, the rate would be 3,000 MTU annually Id. Thus, by 2040 DOE would have accepted a total of 38,200 MTU.
However, unlike other interim stonge facilities authorized under the Nuclear Waste Policy Act, which by statute must have spent fuel removed no later than three years following fuel acceptance at a permanent repository or MRS, the PFS ISFSI is de-linked from Yucca Movmtain. 42 USC $ 10,155(e). It is probable that fuel from the PFS ISFSI will not have priori y of receipt at Yucca Mountain. Therefore,it is reasonable t
to require this yet to be constructed facility to include contingent costs in the realistic event the ISFSI cannot be decommissioned at the end of the license term.
The Applicant also argues that an admirdine contention "must allege more than mere uncenainty" and that "[ijt is unreasonable to require as much precision of an applicant's proposed decommissionmg procedures at the time of licensing as will be required ofits final procedures at the time of decommissioning." Applicant's Answer at 239, citing Lnktel,43 NRC at 8. Another argument by the Applicant is that
'[c)hallenges to the reasonableness of an applicant's decommissioning cost estimates are 8 The 8.200 MTU is computed as follows: In acceptance year one,400 MTU; in acceptance year two,600 MTU; then 900 MTU in years three thrm gh ten.
71 i
l l
l
O not admissible unle;s the petitioner shows that 'there is no reasonable assurance that the amount will be paid," and "[w)ithout such a showing, the only relief available would be the ' formalistic redraft of the plan with a new est: mate.'" Applicant's Answer at 239 240, quoting Yankee 1 at 9.
Contrary to the Applicant's argument, the State hn made this showing. First, as more fully discussed in State's Reply, Contention E (Financial Assurance), supr.:,
the Applicant is not an established electric utility company but a newly formed limited liability company. Clearly, the Applicant, devoid of any financial history or assets, l
cannn* ely on its own unsubstantiated statements of promised funding, whether i
through a letter of credit or other means, to demonstrate rcasonable assurance of providing funding. The Applicant funher argues that assurance of obtaining funds need not be an
- ironclad" one. Applicant's Answer at 240, citing Yankee III at 260.
The State is act asserting that the Applicant provide " ironclad" assurance; it 11 asserting, however, that the Applicant be required reasonably to demonstrate its abili:y to secure the selected financial mechanism - in this case, a letter of credit, as required by the regulations. This it has not done.
Second, the Applicant argues that "[s)hort of an allegation of ' gross discrepancy' in the decommissioning cost enimate" the contention is inadmissible.
Applicant's Answer at 240. The State's contention describes apparent contradictions and discrepancies in cost estimates, as well as unsubstantiated figures to the extent that-72
there is anything of substance to analyze in the application. See State Contentions at 126. The accumulation of potential discrepancies hidden in unsubstantiated statements and cost estimates could result in gross discrepancies, but without additional information it is an unreasonable burden to require specific claims beyond the examples that State has already cited in Comention S. For example,in Contention S, the State poir ts to a $4 per square foot discrepancy in the Applicant's cost to decontaminate cask surfaces. This gross disparity could result in underestimating costs by 500 : in 1997 dollars, ld.
Finally, unlike the ynhts cases, redrafting of a plm is not the only relief available to the State. Also, the Commission's policy that it considers decommissioning of an existing nuclear power plant to be a foregone conclusion in not applicable here.2 As stated in Yankee II "[i]n contrast to the construction permit and operating licensing action:, that brought Yankee Rowe into existence, there is not a 'no action' alternative in connection with facility decommissioning." Yankee II,43 NRC at 82, n 6. In this case the proposed ISFSI is still seeking a license and decommissionir.g is not a foregc,ne conclusion. Alternative relief may be granted by denying the license for failure to accurately estimate and provide reasonable assurance that the amount necessary for decommissioning will be available as required by 10 CFR $ 72.30(b).
Response to Applicant's Rephrasing of Contention S:
2 "It clearly is Commission policy that all commercial nuclear facilities will be
' decommissioned." Id., citing to CFR $ 50.82(t).
73
The State objects to the rephrasing of Contention S.
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