ML20209G807

Nuclear Regulatory Commission Issuances for May 1999.Pages 411-439

ML20209G807
Person / Time
Issue date:	07/31/1999
From:	NRC
To:
References
NUREG-0750, NUREG-0750-V49-N05, NUREG-750, NUREG-750-V49-N5, NUDOCS 9907200016
Download: ML20209G807 (36)

Text

.

f NUREG-0750 Vol. 49, No. 5 Pages 411-439

,, y s,

w'(8

'~

yS..NUCLEARJREGULATORY:

M~,[, iCOklMISSIDNilSSUANCES-

~

i:,,

S

,7 1

L

=

May 1999 f** """%r>

(

3 U S. NUCLEAR REGULATORY COMMISSION 9907200016 990731 PDR NUREG 0750 R PDR

L Available from l

Superintendent of Documents i

U.S. Government Printing Office RO. Bex 37082 Washington, DC 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication

. are available from NationalTechnicalInformation Service Springfield, VA 22161 Errors in this publication may be reported to the Office of the Chief information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844)

i 4

i NUREG-0750 Vol. 49, No. 5 Pages 411-439 i

NUCLEAR REGULATORY COMMISSION ISSUANCES May 1999 This report includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM)

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independentlegal significance, U.S. NUCLEAR REGULATURY COMMISSION Prepared by the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844)

>g..

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

Jeffrey S. Merrifield J

i i

1 i

G. Paul BoHwet til, Acting Chief Administrative Judge Atomic Sa'ety & Licensing Board Panel l

i t

l.

{

1 I

t Li_

CONTENTS Issuance of the Nuclear Regulatory Commission HYDRO RESOURCES, INC.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120)

Docket 40-8968-ML MEMORANDUM AND ORDER, CLI-99-18. May 27,1999..... 411 Issuances of the Atomic Safety and Licensing Boards HYDRO RESOURCES, INC.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120)

Docket 40-8968-ML (ASLBP No. 95-706-01-ML)

(Re: Leach Mining and Milling License)

PARTIAL INITIAL DECISION, LDP-99-18, May 11,1999.

415 HYDRO RESOURCES, INC.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120)

Docket 40-8968-ML (ASLBP No. 95-706-01-ML)

(Re: Leach Mining and Milling License)

PARTIAL INITIAL DECISION, LDP-99-19, May 13,1999 421 INTERNATIONAL URANIUM (USA) CORPORATION (Receipt of Material from St. Louis, Missouri)

Docket 40-8681-MLA-6 (ASLBP No. 99-766-06-MLA)

(Re: Materials License Amendment)

MEMORANDUM AND ORDER, LBP-99-20, May 21,1999..... 429 PRIVATE FUEL STORAGE, L.L.C.

(Independent Spent Fuel Storage Installation)

Docket 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI)

MEMORANDUM AND ORDER, LBP-99-21, May 26,1999 431

(

l

!il l

i l

i Commission Issuances

i Cite as 49 NRC 411 (1999)

CLl-99-18 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I

COMMISSIONERS:

Shirley Ann Jackson, Chairman Greta Joy Dieus Nils J. Diaz Edward McGaffigan, Jr.

Jeffrey S. Merrifield V

i in the Matter of Docket No. 404988-ML HYDRO RESOURCES,INC.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120)

May 27,1999 l

The Commission grants Intervenors' motion for reconsideration of a May 3.

1999 Commission order which set a page limit for final petitions for review in the current phase of the proceeding. The Commission denies Intervenors' petition for interlocutory review of the Presiding Officer's Memorandum and Order (Questions) issued on April 21,1999.

RULES OF PRACTICE: COMMISSION AUTHORITY The Commission's plenary supervisory authority allows it to interpret and customize its process for individual cases.

l l

RULES OF PRACTICE: INTERLOCUTORY REVIEW I

In determining whether to grant a petition for interlocutory review, the l

Commission considers whether the Presiding Officer's action either (1) threatens the party adversely affected with immediate and serious irreparable harm that could not be remedied by a later appeal or (2) affects the basic structure of the l

proceeding in a pervasive or unusual manner. See 10 C.F.R. 5 2.786(g)(1) and (2).

411 i

j v

PRESIDING OFFICER: AUTHORITY TO QUESTION PARTIES He Commission's rules grant the Presidin3 Officer discretion to seek addi-tional information; See 10 C.F.R. 6 2.1233(a).

MEMORANDUM AND ORDER In this Memorandum and Order, we address two recent filings by Intervenors Eastern Navajo Din 6 Against Uranium Mining ("ENDAUM") and Southwest Research and Information Center ("SRIC") in this proceeding. He first is a May 13,1999 motion for reconsideration of a May 3,1999 Commission order.

The second is a May 14,1999 petition for interlocutory review of the Presiding Officer's Memorandum and Order (Questions), issued on April 21,1999, and reaffirrned on May 3 in response to a motion for reconsideration. We addt:-

each of these filings in turn.

INTERVENORS' MOTION FOR RECONSIDERATION Intervenors seek reconsideration of a May 3,1999 procedural order issued by the Secretary. That order indicates that, among other things, "each party may file a single petition for review, not to exceed thirty pages, addressing all remaining challenges to decisions rendered by the Presiding Officer" after the

)

Presiding Officer has issued his final decision related to the "section 8" property.

Intervenors believe that the thirty-page limit set out by the Commission is too short and, instead, urge the Commission to extend the limit to 60 pages on the ground that the Presiding Officer may issue as many as six additional partial initial decisions, giving rise to a potential for six petitions for review, which ordinarily are governed by a ten-page limit. See 10 C.F.R. 9 2.786(b)(2).

He Commission's " plenary supervisory authority allows it to interpret and

- customize its process for individual cases." Ba!rimore Gas & Electric Co.

(Calvert Cliffs Nuclear Power Plant, Units I and 2), CLI-98-15,48 NRC 45, 53 (1998). Thus, contrary to the Intervenors' view, page-limit adjustments are lawful. Ilowever, the Commission understands the practical concern the Intervenors have raised here and vacates the thirty-page requirement in the May 3 order We will allow parties to file a single petition and responses up to 60 pages in length. No more than ten pages, however, may be devoted to any individual partial initial decision.

' For the foregoing reasons and to the above extent, the motion for reconsid-eration is granted.

l l

412

r o

PETITION FOR INTERLOCUTORY REVIEW The Presiding Officer's April 21, 1999 order posed a series of questions to the parties related to groundwater, the adequacy of the Final Environmen-tal Impact Statement (FEIS), and environmental justice. The Intervenors seek reversal of the order because, in their view, the Presiding Officer has inappropri-ately provided Hydro Resources, Inc. (HRI), and the NRC Staff with a second opportunity to address issues that those parties had failed to address earlier. In-tervenors argue that the Presiding Officer is not conducting this case impartially and has shown bias toward the NRC Staff and HRI. Intervenors have previously filed similar petitions in this proceeding that were denied by the Commission.

See CLI-99-7,49 NRC 230 (1999), and CLI-99-8,49 NRC 311 (1999).

In determining whether to grant a petition for interlocutory review, the Commission considers whether the Presiding Officer's action either (1) threatens the party adversely affected with immediate and serious irreparable harm that cculd not be remedied by a later appeal or (2) affects the basic structure of the proceeding in a pervasive or unusual manner.10 C.F.R. 5 2.786(g)(1) and (2); see Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-94-15,40 NRC 319 (1994); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-94-2,39 NRC 91,93 (1994). Intervenors seek review and revnt pursuant to the second standard. As with our earlier decisions on similar issues, the Commission does not agree with Intervenors that the Presiding Officer's order has altered the basic structure of the proceeding in a pervasise or unusual rnanner. As such, we deny Intervenors' petition.

As we stated in CLI-99-7 and again in CLI-99-8, the propriety of the Presiding Officer's inquiry turns on fact-specific questions. We see no reason to interfere in the proceeding at this time, especially'where such interference is likely to cause celay while we undertake the detailed inquiry necessary to resolve Intervenors'

- bias complaint. However, as we stated in CLI-99-8, our denial of interlocutory review does not reflect any position on the substance of the bias question.

Intervenors may raise their bias concerns on appeal if, in the end, they do not prevail before the Presiding Officer on the merits of a particular issue and can show prejudice from information that entered the record improperly or unfairly as a result of the Presiding Officer's questions.

Intervenors have suggested that the Presiding Officer's questions regarding the adequacy of the FEIS will require the Staff to prepare a supplement to that document. However, we note that this is not always the case. Ultimate National Environmental Policy Act (NEPA) judgments with respect to any facility are to be made ca the basis of the entire record before the adjudicatory tribunal. See, e.g., Philadelphia Electric Co. (Limerick Generating Station, Units I and 2),

ALAB-262,1 N'RC 163,196-97 (1975). Accordingly, the Presiding Officer's modification of information in an FEIS does not always require recirculation 413 1

l

or, a supplement. See, e.g., Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347,372 (1975). In issuing the questions in the April 21 order, the Presiding Officer appears only to be seeking additional information. The need, or lack thereof, for a supplement to the FEIS is speculative at this time,'

Intervenors also sought a stay of the Presiding Officer's April 21 and May 3 orders pending disposition of the petition for review. In view of our denial of the petition, the stay request is moot.

For the foregoing reasons, the perhion is denied.

IT IS SO ORDERED.

For the Commission 2 ANNETTE L. VIE'ITI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 27th day of May 1999.

3 See 10 C.F.R.151.92, YunAce Asomic Electric Co. (Yankee Nuclear Power Stationk CU47,43 NRC 235, 269 (1996),

2 Commissioner Diar was not avmlable for ahnnarnn of this Memorandum and Order. Had he been prnent, he would have afhnned the Memorandum and Order. '

414

Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL Q

G. Paul Bollwerk \\\\l,* Acting Chief Administrative Judge 3

Vacant,* Deputy Chief Administrative Judge (Executive) l;tederick J. Shon,* Deputy Chief Administrative Judge (Technical)

O.

Members Dr. George C. Anderson Dr. Harry Foreman Dr. Linda W. Little Charles Bechhoefer*

Dr. David L. Hetrick Thomas S. Moore

• Peter B. Bloch*

Dr. Frank F. Hoopcr Thomas D Murphy

• Dr. Robin Brett Dr. Charles N. Kelber*

Dr. Harry Rein Dr. James H. Carpenter Dr. Jerry R. Kline Lester S. Rubenstein

[

Dr. Richard F. Cole

• Dr. Peter S. Lam

• Dr. David R. Schink Dr. Thomas S. Elleman Dr. James C. Lamb lil Dr. George F. Tidey O

• Permanent panelmembers I

Cite as 49 NRC 415 (1999)

LBP-9918 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

s Peter B. Bloch, Presiding Officer Thomas D. Murphy, Special Assistant Robin Brett, Special Assistant In the Matter of Docket No. 40-8968-ML (ASLBP No. 95 706-01-ML)

(Re: Leach Mining and Milling License)

HYDRO RESOURCES, INC.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120)

May 11,1999 TECHNICAL AND FINANCIAL QUALIFICATIONS This Partial Initial Decision finds that Applicant was technically qualified to conduct its project and that there is no regulatory requirement that it demonstrate that it is financially qualified to conduct the project. The technical qualification finding was based on a review of the qualifications of employees now employed by the company and this was considered an adequate demonstration that qualified employees will be employed by the company when economic conditions permit the project to proceed.

TECHNICAL QUALIFICATIONS: TIMING Intervenors have raised a senous question concerning whether economic conditions will permit Applicant to proceed with its in situ leach mining project for the extraction of uranium. They argued that, in light of this uncertainty, l

Licensee could not demonstrate that qualified personnel will conduct this project 415 l

4

r I

e when the time becomes ripe. His argument was found to be invalid. The Presiding Officer ruled that the technical qualifications presented for approval demonstrated the Applicant's capacity to hire technically qualified staff.

. FINANCIAL QUALIFICATIONS FOR A LEACH MINING PROJECT Section 40.32 of 10 C.F.R. requires adequate equipment and procedures to protect the public but it does not require any findings concerning the financial qualification of an applicant for a license.

' PARTIAL INITIAL DECISION (Technical Qualification Issues) i His Partial Initial Decision is one of sevesal decisions covering challenges to proposed in situ leach (ISL) uranium mining operations for which License SUA 1508 has been issued to Hydro Resources, Inc. (HRI). This Decision ad.

dresses Eastern Navajo Dine Against Uranium Mining (ENDAUM) and South-west Research and Information Center (SRIC) (collectively, "Intervenors") joint written presentations on technical and financial qualification issues,' pursuant to 10 C.F.R. 5 2.1233. It also considers responses to my questions of March 3, The responses were filed on March 15 (HRI Question Response and Staff Question Response) and March 29,1999 (Intervenors' Question Response).

His Partial Initial Decision does not consider issues related to financial assurance for decommissioning. See LBP-99-13,49 NRC 233 (1999).

L HRI'S TECHNICAL QUALIFICATIONS l

A.

Intervenors' Argument SRIC and ENDAUM are concerned with the conclusion in the Staff's De-cember 4,1997 Safety Evaluation Report (SER) that HRI meets technical qual-ifications requirements merely because HRI has proposed minimum acceptable qualifications for key staff positions, Intervenors argue that HRI cannot qual-l ify merely by describing criteria for as yet unfilled positions. Hey also argue i

that HRI relies for its credentials on allegedly deficient work done for Uranium j

Resources. Inc. (URI), which is HRI's parent firm.

' Eastern Navajo Dine Against Uranium Mining nd Southwest Research and informanon Center's B ief.

January 11,1999 (Intervenors' Quahricauons Bner), HRI Responw. Rbruary 11, 1999; staff Response. hb-ruary 18,1999.

416 l

i L:

, Intervenors set forth extensive arguments concerning the need for the NRC to examine the qualifications of URI before deciding that HRI is qualified by training and experience to conduct this project. Intervenors' Qualifications Brief at 3-10. They then argue that the experience gained by URI is not applicable to the HRI project because the Crownpoint mining will be at greater depth (1840 to 2290 feet in Utah, compared to 760 feet to 1030 feet in Texas) and because the Crownpoint water is of better quality. Id. at 10-12. They also allege that URI encountered some problems in Texas that indicate that it is not qualified to do the work in Utah. Id. at 1214.

l l

B.

Findings and Conclusions l

. I find that Mark Pelizza, who has 19 years of employment with URI (including j

three years'as Vice President of Health, Safety and Environmental Affairs),

has extensive relevant experience. HRI Question Response at 2-6 (thirteen projects). He has supervised all radiological and nonradiological health, safety, and environmental planning activities associated with HRI. Id. at 2.

I am not persuaded to disregard that experience by Intervenors' assertion that the Crownpoint Uranium Project will allegedly be conducted with deeper wells than HRI personnnel previously employed or on the ground that the Crownpoint water is cleaner. Furthermore, I find, after consulting with my special advisors, that Mr. Pelizza's affidavits demonstrate necessary analytical abilities and knowledge of the field. I also find that HRI is correct in stating that "HRI already has uniquely qualified key personnel who form the core of the company's expenise."1d. at 7-9.

Intervenors' argument, which is presented in just three pages of its brief, is unpersuasive. For example, Intervenors refer to Table 3 of the Written Testimony i-of Dr. William P. Staub, Ph.D., filed as Exhibit 2 to Intervenors' Brief Concern-ing Ground Water Protection Issues. Intervenors' Brief at 12. Intervenors do not, however, explain why the occurrence of excursions in URI projects indicates that URI or the HRI personnel employed by URI were technically incompetent.

Similarly, Intervenors allege that URI failed to restore seven of its eight well fields to the 0.020-mg/L proposed Environmental Protection Agency drirk:ing water standard and that it permitted a " final restoration value for uranium at the Rosita mine ~... [that was] a threefold increase in average baseline." In-tervenors' Brief at 13. It is, however, not at all clear that either the occurrence of excursions or a failure to restore water purity to baseline measurements is a j

demonstration of incompetence.

l:

To successfully cast doub' on technical competence, there would need to be a reasonable basis to doubt the technical analyses or the implementation done by URI. As it is, I have before me evidence that certain excursions occurred and that baseline water quality was not restored. I have no basis for finding that i

417 r

U.RI failed to plan appropriately for the risk of these excursions when it should

. have, that it treated the excursions incorrectly when they occurred, or that it faibi to learn from its experience.

On the other hand, my special assistants and I have reviewed technical submissions from HRI's experts and I am satisfied that these experts show a high degree of technical sophistication and skill. I am satisfied that Mark Pelizza, in particular, has demonstrated the technical skills and abilities required to qualify for this license. Accordingly, I find that the concern that HRI is unqualified should not affect its license to conduct this project.

In making this finding, I am aware that it is uncertain when this project will commence or whether the people HRI relies on for its expertise will be available when the project commences. The bleakness of the economic future for the uranium mining industry, testified to by Dr. Michael Sheehan, Ph.D.,

and Mr. David Osterberg, Intervenors' Brief at Exhibits I and 4, is conceded by HRI, as follows (Brict at 13):

HRI acknowledges that Uranium Resources, Inc. and its subsidiaries, including IIRI, are experiencing financial difficulties associated with a depressed uranium market. However, as discussed in the attached Affidavit of Joe Card. Uranium Resources, Inc.'s Senior Vice President, Marketing (atached hereto as Exhibit F) the financial anG other considerations that go into seeking a license properly are distinguished from the decision-making process surroundir.g the commencement of operation. HRI agrees with Intervenors that carrent market conditions do not warrant noving forward to commence active mining operations.

As explained by Mr. Card, however, the license itself is a valuable asset which increases the net worth of the company, facilitates attracting needel developnent capital, and positions IIRI to take advantage of market opponunities when they arise.

HRI's technical qualifications provide a positive indicator that HRI will have a group of technically qualified people when work on the project commences.

It is not important that the key personnel are curreruly qualified, as there may yet be years before the rubber meets the road and the project starts. Logically, HRI must be qualified when the project commences. However, I find that HRI is technically qualified at this time. I accept this as adequate proof that it will be technically qualified when it decides to commence this project. See SUA-1508, January 5,1998,15 9.3,9.7 (radiation safety officer); see Consolidated Operations Plan (COP), Rev. 2, Hearing File 10.3, August 15,1997, at 128-33.

IL MUST IIRI DE FINANCIALLY QUALIFIED?

ENDAUM and SRIC would have me infer from 10 C.F.R. 5 40.32 that HRI must be financially capable of conducting its project. However, none of the language relied on supports this interpretation of the regulations. Intervenors'

~ Qualifications Brief at 15-23. The cited section requires that "the proposed 418

I l

equipment, facilities and procedures must be adequate to protect health and minimize danger to life and property." With the exception of the requirement that there be financial assurance for decommissioning, which has been addressed in an earlier opinion (LBP-99-13,49 NRC 233 (1999)), there is no mention of a j

separate financial qualification. The regulations seems to require only that there be adequate " equipment, facilities and procedures." The adequacy of those items is not part of the challenge that is contained in the ENDAUM and SRIC brief that is the subject of this PID.

l Consequently, the concern about technical qualifications should not stand in the way of having HRI proceed with this project whenever it considers itself sufficiently financially capable to fulfill its licensing commitme sts. There is no need for the NRC to review the financial aspects of HRI's operation. If it meets l

the requirements of its license, then it may proceed. If it cannot fulfill those requirements, whether for financial reasons or for any other reasons, then it will I

be subject to enforcement actions, including shutdown by the NRC should the violations be sufficiently serious.

He financial capability argument is, therefore, dismissed because of insuffi-cient basis in the regulations.

Order j

Br all the foregoing reasons and upon consideration of the entire record in this matter, it is, this lith day of May 1999, ORDERED thet:

L Re relief requested by Eastern Navajo Din 6 Against Uranium Mining (ENDAUM) and the Southwest Research and Information Center (SRIC) in their joint "Brief in Opposition to Hydro Resources, Inc.'s (HRI] Application for a Materials License with Respect to: Hydro Resources, Inc.'s Lack of Technical and Financial Qualifications, dated January 11,1999, is denied.

' 2.

There is no reason for further filings or for oral argument.

3.

Pursuant to the Commission's order of May 3,1999, no additional peti-tions for Commission review shall be filed in this proceeding until the Presid-ing Officer completes his consideration of all questions related to the "Section 8" property (currently expected by June 15, 1999). Within 14 days after the Presiding Officer issues his final decision related to the "Section 8" property, each party may file a single petition for review, not to exceed thirty pages, addressing all remaining challenges to decisions rendered by the Presiding 1

419 i

I

e-2;F

.C

. t:

Officer. Responses to such petitions for review shall be filed within 14 days

' after the pe'ition is filed, and shall not exceed thirty pages.

Peter D. Bloch, Presiding Officer

' ADMINISTRATIVE JUDGE Rockville, Maryland

. p.

l I'

I i

l 8

I t

1 l-l l

420 l

f.

l f

Cite as 49 NRC 421 (1909)

LBP-99-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

ATOMIC SAFETY AND LICENSING BOARD PANEL l

Before Administrative Judges:

Peter B. Bloch, Presiding Officer Thomas D. Murphy, Special Assistant in the Matter of Docket No. 40 8968-ML (ASLBP No. 95-706-01-ML)

(Re: Leach Mining and Milling License)

HYDRO RESOURCES,INC.

(2929 Coors Road, Suite 101, l

Albuquerque, NM 87120)

May 13,1999 AIRBORNE EMISSIONS

'Ihe Presiding Of'icer agreed with Intervenors that radiation from source ma-terials on the Applicant's site ought not to be considered to be part of back-ground radiation. However, after reviewing Intervenors' arguments concerning radiation doses to the public, the Presiding Officer determined that Applicant is in compliance with Part 20 limitations on radiation received by a member of the public from sources under its control.

PARTIAL INITIAL DECISION (Radioactive Air Emissions)

'Ihis Partial Initial Decision (PID) covers Radioactive Air Emission issues

. raised by the Eastern Navajo Dine Against Uranium Mining (ENDAUM) and i

421 l

l l

I the Southwest Research and Information Center (SRIC).8 ENDAUM and SRIC (collectively Intervenors) request me (see Intervenors' Brief at 1, 2) to reject the license application of HRI on the grounds of these two principal alleged air emission deficiencies:

First. liRI and the NRC Staff fail to provide tensonable assurance that radioactive emissions from the Crownpoint Project will be maintained within regulatory limits in 10 C.F.R. Part

20. In fact, existing non-background levels of radiation at Church Rock already exceed regulatory limits, thus piccluding the addition of a new source that would funher jeopardize public health ord safety. Second, the Final Environmental Impact Statement purported to support the issuance of the license misrepresents, distorts, or fails to disclose key information about the significant impacts of airborne emissions from the Crownpoint site.

'Ihis PID deals with the assertion that Part 20 will be violated. Other partial initial decisions will address NEPA concerns, in general, and a concern about the adequacy of the Final Environmental Impact Statement with respect to the cumulative impacts of previously existing radiation sources attributable to the HRI Crownpoint Uranium Project.

DISCUSSION in support of its first allegation, Intervenors argue that radon-222 and radium-226 are a part of uranium ore; therefore, radiation doses from those radioactive materials cannot be considered to constitute background radiation dose and cannot be excluded when evaluating compliance with 10 C.F.R. Part

20. Intervenors' Brief at 3-6. Intervenors claim that the Staff and HRI ignore the statement of purpose of Part 20 which clearly provides that the regulations are designed to protect members of the public from all sources of radiation other than background, including unlicenced sources. Intervenors' Brief at 7; see also 10 C.F.R. 6 20.1001(b). Intervenors assert that HRI and the Staff

^ in their Environmental Report and FEIS, exclude from their dose calculations contributions from existing anthropogenic sources of radon and gamma radiation at the Church Rock site by mischaracterizing them as " natural background radiation." Intervenors' Brief at 8.

Intervenors cite section 3.7 of the DEIS as evidence for elevated radiation levels near the Church Rock site. Intervenors theorize that based on combined elevated radon emissions and elevated gamma radiation readings at offsite locations resulting from prior mining activities, the 8 ENDAUM and sRIC hied their brief Ontervenors' Bnef), accompamed by Testimony of Bernd Ranke (ftanke Testimony), on January 11,1999. Hydro Resources. Inc. response on February 11,1999 (HRI Response) included an Afhdavit of Alan C. Eggleston. Ph D., dated Itbruary 10.1999 Eggleston Afhdavit). The staff of the Nuclear Regulatory Comnussion responded on february 18.1999 (Staff Response)and attached an Afhdavit of Christepher A. McKenney (Staff Exhibit 1) 422 l

i t

. dose to the nearest resident is already in excess of the limits set in Part 20.

Intervenors' Brief at 9-14.

Finally, Intervenors challenge HRI's dose projections by citing their expert's contention that a time-weighted groundwater source term should have been used as the basis for the calculations instead of the arithmetically averaged groundwater source term used by the Staff and HRIin its use of the MILDOS code to calculate offsite doses. Intervenors' expert, Ranke, postulates that j

a large part of the annual dose from radon-222 in a given year occurs from exposures over very few hours at situations where wind speed and atmospheric dispersion is low. Ranke calculates in a " worst case" situation that there is a 50% chance that the regulatory limits will be exceeded. Intervenors' Brief at 14-19. Ranke Testimony Exh. 2 at 10-12.

HRI responds that Intervenors misinterpret Part 20. HRI argues that:

j demonstrating both common sense and a grasp of the obvious, the agency charged with

(

promulgating regulations to control airborne radiological emissions from Atomic Energy Act replated facihties has developd a regulation requiring licensee's operations to meet prescribed emissions lindts calculated based solely on radiation sources within the licensee's control.

HR1 Response at 7. HRI continues with itr response, arguing that concentra-tions of radon in lixiviant show a high frequency of low values and that past 2

experience with use of the NRC MILDOS code shows.that, after field verifica-tion, the MILDOS has proven to predict doses in a conservative fashion. Id. at

10. HRI argues that since the production water containing radon is continuously circulating in the well fields, it is not valid, as the Intervenors claim, to assume a concentranon distribution of radon that varies greatly over time. Id. at 10-11.

Finally, HRI argues that NRC requires (see License Conditions 9.8 and 10.30) and HRI proposes a complete field verification of air emission doses as part of its licensed operations. HRI Response at 11.

'Ihe NRC Staff agrees with HR1 that the Intervenors have misread Part 20 and disagrees with the findings in Ranke's testimony. The Staff argues that 10 C.F.R. 5 20.1302(b)(1) actually refers to the total effective dose equivalent to the individual likely to receive the highest dose from the licensed operation.

Staff then states that the dose can and should be calculated or measured to a real individual, not a hypothetical individual. The Staff's expert, McKenney, demonstrates that, with the most conservative assumptions. HRI could not release sufficient radon to exceed the regulatory requirements during plant operations. McKenney also postulates an alternative worst-case scenario for a 2

-Groundwater diat is enriched with diswived osygen and bicarbonate ions and is injected into the ground for the pu. pose of recovenng uranium is called "haiviant " When the haiviant is passed through the uranium. it becomes

" pregnant" and contains uramum oxide, radon. and radium. The pregnant haiviant is then prncensed.

423 I

I i

t hypothetical individual and calculates a dose less than regulatory criteria. Staff Response at 4-5 cifint Ranke Testimony Exh. 2 at 10-11 and Staff Exit 119 and 10.

In order to resolve this issue properly, on March 18, 1999, the Presiding Officer issued LBP-99-15,49 NRC 261, asking the parties a series of questions.

The answers and responses) to those questions clarify the reccrd and confirm

' for the purposes of this case that NRC regulations exempt from the definition of" background radiation," radiation coming from source material or byproduct material. There is no byproduct or special nuclear material (see Pelizza Affidavit at E; McKenney April 7,1999 Affidavit at 2) on the Church Rock site. A small quantity of source material exists on Section 8. McKenney April 7,1999 Affidavit at 3.

ANALYSIS Intervenors' allegations and supporting opinions raise the issue of whether HRI and NRC Staff correctly addressed potential radiation exposure resulting from operations at Church Rock Section 8. Intervenors, relying on the testimony of Bernd Ranke, complain that dose calculations in the Environmental Report

("ER") and FEIS, excluded contributions from sources of radon and gamma ra-diation at Church Rock Section 8 by characterizing them as natural background.

Intervenors' Brief at 8, Similarly, in their response to questions, Intervenors rely on tneir definition of background for the conclusions presented. Intervenor LBP Response at 6-12. The validity of Ranke's testimony turns on the definition of

" background" as his calculations and conclusions are based on the fact that "[he]

believe[s] that doses from other source and byproduct materials not regulated by the Commission.. must also be accounted for in the compliance assess-ment." Franke Declaration at 6. Franke states (Ranke Testimony at 6,7) that radioactivity released from source and byproduct materials from prior uranium mining and milling activities in the Church Rock area contribute in excess of 0.2 pCi/l to the calculation of the TEDE.

3.NDAUM and sRIC filed a Response to LUPN 15, Quesuons Concerning Radioactive Air Enussions, dined f

Apnl 7,1999 (Intervenor LDP Responne) accompanied by a Declaration of Bernd Franke dated April 6,1999 (hanke Declarauon). ENDAUM and sRIC filed a response to HRrn and NRC staff's Answers to LBP-99-15.

dated April 21,1999 finicrvenors' Responw). accompamed by a Response Declaration of Bernd hanke dated Apnl 21.1999 (hanke Response Declarunon) und a Response Afhdavit of Dr. Richard 1 Abitz. dated April 16,1999 (Abitz Reponne Afhdavit). Hydro Resources, Inc.. tiled a Response to LBP-99-15 dated Apnl 7,1999 OIRI LBP Response) accompamed by an Afhdavit of Douglas B Chamber Ph.D., Pertaining to Radiation, dated April 7,1999 (Chamber's Affidavit), and an Afhdavit of Mark s Pehzza Penaining to Radsation da:ed Apnl 5, 1999 UYlizza Afhdavit). Hy*o Pesources, lat.'s Reply to Intervenors' Respana to LBPMI5, dated April 21, 1999 (HRI Reply). The staff rephed to my quesuons by letter dated April 7,1999 (staff letter) accompamed by an Afhdavit of Chnstepher A. McKenney dated April 7.1999 (McKenney Apnl 7.1999 Affidavit). The NRC Stafr's Response to Intervenors' Air Enussions Arswers d.ned April 21,1999 (staff Reply) was accornpamed by an Affidavit of Christepher A. McKenney dated April 21,1999 (McKenney April 21,1999 Affidavit).

424 l

t

m i

0

,Intervenors' concern, succinctly, is whether HRI's operations at Church Rock Section 8 will cause the total effective dose equivalent ("TEDE") to the individual likely to receive the highest dose from the licensed operation to exceed the annual dose limit. Since background radiation is excluded from the TEDE, it is important to understand the 4 gal definition of background when calculating the TEDE for purposes of determining whether a project will be in compliance with NRC regulations.

The dose limits governing our inquiry for individual members of the public are set by the NRC in 10 C.F.R. 5 20.1301(a)(1):

(a) Each licensee shall conduct operations so that-(I) The total effectm dose equivalent to individual members of the public from the licensed operation does not exceed 0.1 rem (1 millisievert) in a year, exclusive of the dose contriburirm.,from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with 9 35.75, from voluntary participation in medical research programs, and from the licensee's disposal of radioactive material into sanitary sewerage in accordance with 6 20.2003; and.

(Emphasis added.) In 10 C.F.R. 5 20.1003, the NRC defines background radiation:

Background radiation means radiation from cosmic sources; naturally occurring radioac-tive material, including radon (except as a decay product of source or special nuclear rnate-rial); and global fallout as it exists in the environment from the testing of nuclear explosive devices or from past nuclear accidents such as Chernobyl that contribute to background radi-ation and are not under the ccmtrol of the licensee. " Background radiation" does not include radiation from source, byproduct, on special nuclear materials regulated by the Commission.8 (Emphasis added.)

As pointed out in LBP-99-15, this definition places a limit on the " total effective dose equivalent" and "then defines a class of contributions to dose that

• The tenna " source material" and " byproduct material." which are relevant for purposes of regulating in sita lesh mining and milling, are defined in 10 C.F R. I20,1003 as follows:

Source murertal menus-(1) Uratuum or thorium. or any combinauon of uranium und thanum in any physical or chemical farm-,

or (2) ores that contain, by weight. one-twentieth of I percent (005 percent). or rmre. of uranium, thonum, or any combination of uranium und thonum. source matenal does not include special nuclear material.

Byproduct material neunn-(1) Any radioacuve matenal (estcept special nuclear matenal) yielded in, or made radioactive by, caposure to the radsauon incident to the process of producmg or utilizing special nuclear matenal, and (2) The tashngs or wantes pmduced by the extruction or concentration of uranium or tMrium from are processed pnmarily for its source material content. includmg discrete surface wastes resulung from uramum solution extracnon procenes, Underground ore bodies depleted by these solution estracuen operations do not connutute ** byproduct nuuerial" within this definiuon.

425

are excluded," c.g., bxkground radiation. 49 NRC at 265. Based on this fact, the Presiding Officer concluded that "if the source of a dose is not excluded then it is included in the total effective dose equivalent from licensed operations, for the purpose of complying with 10 C.F.R. 65 20.1301 and 20.1302."Id.

As Intervenors assert, " background" radiation does not include radiation from source or byproduct material. Although HRI would apply the phrase

" regulated by the Commission" to each of the antecedent nouns, that is not the way English grammar treats subordinate clauses. The normal meaning of this sentence is that " regulated by the Commission" applies only to the last

{

noun in the series, "special nuclear materials." To interpret it otherwise would be to find that the regulation contains a drafting error and should have said:

j

" Background radiation" does not include radiation from materials regulated by the Commission, including source, byproduct, or special nuclear materials." I am not persuaded to interpret this language in such a stilted way.

Nevertheless, I disagree with Intervenors concerning the calculation of offsite doses. I have reviewed Ranke's worst-case scenario from which he calculates a 50% probability that NRC regulations may be exceeded. Ranke Testimony at 1011. Franke cannot properly utilize his worst-case scenario to calculate a limit that is based on annual average exposures. See 10 C.F.R. ( 20.1302(b)(2)(i) and Table 2 of Part 20 Appendix B. The probability that an individual will be present during the worst-case scenario is less than 100% and it is therefore inappropriate to act as if the individual would defmitely be these during a " worst case."

. in addition, Franke does not show how Be existing elevated levels from on site have an impermissible impact on an individual off site. Notwithstanding the corrections made by Ranke to the calculation (see Ranke Declaration at 14-16; McKenney April 21,1999 Affidavit at 2-5), I understand McKenney's worst-case dose calculation and consider it reasonable. It indicates that doses from radon released from eperations at the Church Rock site will not exceed dose limits to a hypothetical individual 100 meters off site. I find that this conclusion is correct.

'the issue of radiation from source materials is also addressed by the Staff, which concludes that some of the surface radiation on Church Rock Section 8 may be from source material. McKenney April 7 Affidavit 13, at 2-6. However, by making conservative assumptions (calculating the highest reasonable dose based on the information available), Mr. McKenney concludes that; the total radon production [ attributable to source materiall.

over one year would be 0.2 Ci. If I funher assume that all of the rudon escapes from this ground area into the atmosphere, the teriulting annual TEDE exposure to the nearest resident would be a small fraction of one millirem.

426

7 __

f M at 3. Accordingly, there is no substantial risk attributable to radium from source materials on Section 8.

Though there may be a risk associated with radium from source material on HRI's Church Rock Section 17, that question may be held in abeyance and not addressed in this portion of the proceedings.5 In bypassing the issue of proper calculation of background radiation from Sect on 17, it has not yet been i

determined whether radiation released from the underground mine on Section 17 may be excluded from background. Staff and Licensee have argued, based on the Statement of Considerations (SOC) published with 10 C.F.R. 5 20.1301, that material can be " background" only if it is "under the control of the licensee." See 56 Ibd. Reg. 23,360,23.374 (May 21,1991). However, there is an important defect in this argument. The cited language from the SOC was used to support the proposition that " dose should not be all-inclusive and should not include fallout from nuclear weapons tests, transportation of radioactive material, or

)

other sources of radiation not under the control of the licensee." The comment does not focus on whether dose can come from underground sources on the licensee's land. Arguably, those sources are under the licensee's control because remedial measures may be taken to reduce radiation from those sources. In addition, licensee obtained its title from a prior land owner who is in the same chain of title and whose acts may reasonably be said to pass with the title, thus preventing a successor to the title from disassociating himself from actions of a prior owner.

I CONCLUSION On the basis of the analysis above, which rests on the interpretation of the relevant regulations (10 C.F.R. il20.1301(a)(1) and 20.1003), I conclude that the HRI has demonstrated by a preponderance of the evidence that the airborne doses from the proposed operation of the Church Rock site will not exceed regulatory requirements.

ORDER i

For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 13th day of May 1999, ORDERED that:

1.

'Ihe relief requested by Eastern Navajo Dine Against Uranium Mining (ENDAUM) ard the Southwest Research and Information Center (SRIC)in their j

83rr intervenors' Respome to HRl's and NRC staffs Answers to t.BP-99 l$. Aprd 21,1999, at 3. Under the Presading ofheer's interpretation, rudon released from nource nuterial in secuan 17 is excluded from background radianon.

I 427 l

l

i Brief(Intervenors' Brief), accompanied by Testimony of Bernd Ranke (Ranke Testimony), on January 11,1999, is denied.

2. There is no -reason for further filings or for oral argument.

3.

Pursuant to the Commission's order of May 3,1999, no additional petitions for Commission review shall be filed in this proceeding until the Presiding Officer completes his consideration of all questioni related to the "Section 8" property (currently expected by June 15, 1999). Within 14 days after the Presiding Officer issues his final decision related to the "Section 8" property, each party may file a single petition for review, not to exceed 30 pages, addressing all remaining challenges to decisions rendered by the Presiding Officer. Responses to such petitions for review shall be filed within 14 days after the petition is filed, and shall not exceed 30 pages.

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

428 l

l

Cite as 49 NRC 429 (1999)

LBP-99-20 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:

Peter B. Bloch, Presiding Officer Richard F. Cole, Special Assistant in the Matter of Docket No. 40-8681-MLA-6 (ASLBP No.99-766 06-MLA)

(Re: Materials License Amendment) 4 lNTERNATIONAL URANIUM (USA)

CORPORATION (Receipt of Material from St. Louis, Missouri)

May 21,1999 Envirocare's Request for a Hearing was dismissed because Envirocare based its claim for standing on economic-competitor injuries that are not associated with any environmental harm associated with the proposed licensing action and that are therefore not cognizable under the National Environmental Protection Act or the Atomic Energy Act. Ouivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI 98-11,48 NRC 1 (1998), and International Uranium (USA) Corp. (Receipt of Material from Tonawanda, New York), CLI-98-23,48 NRC 259 (1998).

MEMORANDUM AND ORDER (Dismissal of Envirocare)

On April 26,1999, Petitioner Envirocare of Utah, Inc. ("Envirocare") filed a Request for Hearing challenging the Nuclear Regulatory Commission's ("NRC")

amendment of International Uranium (USA) Corporation's ("IUSA") Source 429 1

m Material License SOA-1358 to allow for the receipt and " processing" of uranium-bearing material from a site being managed under the Formerly Uti-lized Sites Remedial Action Program ("FUSRAP") near St. Louis, Missouri.'

In its Request for Hearing at 1-2, Envirocare states that it disagrees with prior Commission decisions but it acknowledges that Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1 (1998), and In-l ternational Uranium (USA) Corp. (Receipt of Material from Tonawanda, New York), CLI-98-23,48 NRC 259 (1998), may well affect its standing in this case.

Envirocare states, on page two of its Request, that:

While its appeals are pending, Envirocare hereby files this request, in good faith, to preserve its right to participate as a party in a hearing on IUSA's latest license arnendment application.

Because the Request bases Envirocare's standing on economic-competitor injuries that are not associated with any environmental harm associated with the proposed licensing action and that are therefore not cognizable under the National Environmental Protection Act or the Atomic Energy Act, I am convinced that this case is on all fours with the cases Envirocare has cited and which it contests. Accordingly, the Request for a Hearing is dismissed for lack of standing.

IT IS SO ORDERED.

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

i on May 4,1999,IUsA hied its opposinun to the request for hesmg, clung Envirocare's penistence in rnaking l

I its sixth attempt to secure standing in an NRC proceeding beed on alleged economic or "compeutive" injury.

I 430

)

l l

I i

i 1

I f

l l

i i

I

E Cite as 49 NRC 431 (1999)

LBP-99 21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 1

Before Administrative Judges:

l i

G. Paul Bollwerk,lil, Chairman Dr. Jerry R. Kline Dr Peter S. Lam in the Matter of Docket No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI)

PRIVATE FUEL STORAGE, LLC.

. (Independent Spent Fuel Storage

]

installation)

May 26,1999 j

j in this proceeding concerning the application of Private Fuel Storage, L.L.C.

(PFS), under 10 C.F.R. Part 72 to construct and operate an independent spent fuel storage installation (ISFSI), the Licensing Board denies the request of Intervenor State of Utah to require Applicant Private Fuel Storage, L.L.C. (PFS), to submit an exemption request 'under 10 C.F.R. 9 2.758(b) or, in the alternative, permit the State to amend its geotechnical contention to allow it to contest the PFS

{

exemption request in this proceeding.

j RULES OF PRACTICE: WAIVER OF RULES OR REGULATIONS Section 2.758(b) of 10 C.F.R. and the waiver / exemption provisions found in

'the various substantive provisions of the Commission rules, see, e.g.,10 C.F.R. 10 30.11 (Part 30 byproduct material), 40.14 (Part 40 source material), 50.12 (Part 50 production and utilization facilities),70.14 (Part 70 special nuclear material); 72.7 (Part 72 ISFSIs), offer alternative methods for seeking waivers of or exemptions from Commission rules. See Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-86-24,24 NRC 769,774 n.5 (1986);

431 l

4 see also Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-85-33,22 NRC 442,445-46 (1985), ag'd, ALAB-841,24 NRC 64 (1986). Prior adjudicatory rulings suggest that section 2.758 need not be invoked unless (1) the exemption request is directly related to a pending contention, see Shearon Harris, CLI-86-24, 24 NRC at 774 n.5; or (2) the interpretation or application of a regulation to specific facts is questioned, Perry, LBP-85-33,22 NRC at 445.

RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSE FOR DELAY; FACTUAL CONCRETENESS AND PROCEDURAL RIPENESS)

'Ihe question of when a new or amended contention must be filed in order to meet the late-filing standards of 10 C.F.R. 5 2.714(a) - and specifically the critical criterion concerning " good cause" for late filing - calls for a judgment about when the matter is sufficiently factually concrete and procedurally ripe to permit the filing of a contention.

RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSE FOR DELAY; FACTUAL CONCRETENESS AND PROCEDURAL RIPENESS)

Relative to the good cause finding, when dealing with information supplied to the agency by a license applicant, the concept of factual concreteness reqwes an inquiry into the question of when the moving party had access to information sufficient to permit it to frame an issue statement with reasonable specificity and basis. And for applicant-supplied information, the concept of procedural ripeness involves consideration of whether, within the context of the agency administrative process that is the subject of an adjudication (e.g., license application review process), the applicant information to which the moving party had access to frame the contention is being put before the agency in a context that is (a) reasonably likely to have a material impact on the administrative process (e.g., will influence Staff consideration of the pending license application); and (b) is subject to consideration in the related adjudicatory proceeding.

RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSE FOR DELAY; PROCEDURAL RIPENESS)

On the question of the procedural ripeness of a rule waiver request, by its nature, an exemption request is atypical. The rules promulgated by the 432

Commission reflect a considered judgment about the requirements necessary to

protect the public health and safety and the environment. In contrast to a license application that generally seeks to demonstrate the requester's compliance with agency requirements, an exemption request attempts to show why those regulatory requirements should not be applied to the requester. The latter thus is more problematic in terms of its like.'y impact on the administrative process.

Indeed, the uncertain nature of an exemption request (i.e., that the request many not be granted) counsels that consideration of an exemption-related contention should await Staff action on the exemption. Accordingly, the timeliness of a contention based on an applicant's exemption request is more properly judged from the time of Staff action on the exemption rather than when the exemption request is filed..

RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSS FOR DELAY; PROCEDURAL RIPENESS)

The matter of procedural ripeness of a rule waiver request is further influ-enced by the question of how that request is to be considered in the adjudicatory process. The Commission has made it clear that, in the absence of a contrary Commission directive, exemption requests falling outside the ambit of section 2.758 are not subject to challenge in an adjudicatory proceeding. See United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-81-35, 14 NRC 1100,110344 & n.2 (1,981). Consequently, to countenance an ad-judicatory challenge to the PFS exemption petition, a presiding officer would have to invoke his or her certified question or referred ruling authority under 10 C.F.R. Il 2.718(i),2.730(f) to determine whether the Commission wants the presiding officer to consider the contention. Obviously, in invoking such author-ity, the presiding officer should present the Commission with questions that are as concrete as possible. Any concerns about presiding officer consideration of the merits of a rule waiver or exemption will be most determinant if, and when, the Staff acts favorably on the request.

MEMORANDUM AND ORDER (Denying Modon to Require Rule Waiver Request or to Amend Contention Utah L)

'Ihe genesis of the motion now pending with the Licensing Board is an April 2,1999 request from Applicant Private Fuel Storage, L.L.C. (PFS), to the NRC Staff for an exemption from some of the seismic criteria of 10 C.F.R. Part 72 -

43

. -. ~..,

m.

relative to the proposed PFS Skull Valley, Utah independent spent fuel storage

. installation (ISFSI). Specifically, PFS asks that it be given an exemption from

- the requirements of section 72.102 such that it can substitute a probabilistic ap,1 roach to calculating the PFS design-bmis earthquake for the deterministic methodology mandated under the existing rule. In its April 30,1999 motion,.

which both PFS and the Staff oppose, Intervenor State of Utah asks that we either require PFS to frame its exemption application as a rule waiver petition under 10 C.F.R. 52.758(b), which would be subject to Board consideration as part of this proceeding, or that we permit an amendment of contention Utah L,

~

which deals with the PFS facility's seismic design, so as to allow the State to contest the PFS exemption request in this proceeding.

For the reasons set forth below, we deny the State's motion.

1.

BACKGROUND.

- Under the current provisions of 10 C.F.R. Part 72 relating to ISFSI seismic-analysis, a facility like that proposed by PFS must meet the same standards applicable to a nuclear power plant under 10 C.F.R. Part 100, Appendix A.

See 10 C.F.R.' 072.102(f)(1). 7he Part 100 standard for calculating a safe

shutdown or design-basis earthquake uses a deterministic approach.8 In an April 2,1999 request directed to the Staff, invoking 10 C.F.R. 0 72.7, PFS asked

. for an exemption from this Pan 72 standard to permit the use of a probabilistic

. seismic hazard analysis along with a consideration of the risk involved to establish the design-basis earthquake at the PFS facility. ' According to PFS, such a change would have some significance because its own probabilistic analysis indicates that the relative risk at the PFS ISFSI warrants a design-basis earthquake with lower peak ground accelerations than that calculated using the Part 100, Appendix A deterministic methodology. See [ State) Motion Requiring Applicant to Apply for Rule Waiver under 10 C.F.R. 6 2.758(b) or in the Alternative Amendment to Utah Contention L (Apr. 30,1999) Exh. A, at 12 [ hereinafter State Motion).

'The State apparently received this PFS exemption request on April 7,1999, and filed the motion now pending before us three weeks later. Citing the Commission's decision in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-16,1I NRC 674 (1980), the State declared that the Board should require PFS to make its exemption request under the provisions of I Appendia A to 10 CER. Part 100 dennes a safe shutdown or design-basis earthquake as *1 hat earthquake which is based upon an evaluation of the maximum earthquake potential considenng the regional and local geology and seismology and specine characteristics of local subsurface material. It is that earthquake which produces the marinum vibratory ground motion for which certain [ subsequently de6ned safetyl structures, systenu and components are designed to remain functional" 10 C.F.R. Part 100, App. A. lin(c).

434 i

e i

L

p 10 C.F.R. 5 2.758, which govern consideration of agency rules and regulations in an adjudicatory proceeding such as this one. Alternatively, the State has I

asserted it should be given leave to amend contention Utah L concerning the l

geotechn'ical aspects of the PFS application to permit it to contest what the State

]

asserts will be a diminution of the standard for determining the PFS facility's i

seismic design if the Staff acts favorably on the PFS exemption request. See State Motion at 3--9.

In their May 12,1999 responses to the State's motion, PFS and the Staff have opposed both prongs of its request. Each asserted that while section 2.758 is an alternative method for seeking a waiver of or exemption from a Commission regulation, it is not applicable in this instance. Both also declared that, pending Staff action on the exemption request, permitting an amendment of Utah L is premature and, in any event, would require Commission endorsement. See Applicant's Response to State's Motion Requiring Applicant to Apply for Full Waiver under 10 C.F.R. 6 2.758(b) or in the Alternative Amendment to Utah Contention L (May 12.1999) at 2-6 [ hereinafter PFS Response]; NRC Staff's Response to "[ State] Motion Requiring Applicant to Apply for Rule Waiver I

under 10 C.F.R. 6 2.758(b) or in the Alternative Amendment to Utah Contention L"(May 12,1999) at 2-10 [ hereinafter Staff Response].

II. ANALYSIS A.

Applicability of 10 C.F.R. 5 2.758(b)

The regulation the State seeks to invoke relative to the pending PFS exemp-tion request is paragraph (b) of section 2.758 of 10 C.F.R., which provides in pertinent part:

A party to an adjudicatory proceedmg involving initial or renewal licensing subject to this subpart may petition that the apphcation of a specified Commission rule or regulation or any provision thereof,

be waived or an exception made for the particular proceeding-Tir sole ground for petition for waiver or exception shall be that special circumstances with respect to the subjet ma'ter of the particular proceedmg are such that the application of the rule or regulation (or provision therroO would not serve the purposes for which the rule or regulation was adopted.

Assuming a party is able to make a prima facie showing regarding the existence of the requisite "special circumstances," the provision further provides that the presiding officer shall certify the matter directly to the Commission for a determination whether the application of the rule or provision should be waived or an exception made. See 10 C.F.R. 6 2.758(d).

435 1

r-

. Commission case law teaches that section 2.758(b) and the waiver / exemption provisions found in the mous substantive provisions of the Commission rules,8 offer alternative methods for seeking waivers of or exemptions from Commission rules. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 NRC 769, 774 n.5 (1986); see also Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units I and 2), LDP-85-33, 22 NRC 442,445-46 (1985), aff'd, ALAB-841,24 NRC 64 (1986). Moreover, prior adjudicatory rulings suggest that section 2.758 need not be invoked unless (1) the exemption request is directly related to a pending contention, see Shearon 1/arris, CLI-86-24,24 NRC at 774 n.5; or (2) the interpretation or application of a regulation to specific facts is questioned, Perry, LBP-85-33,22 NRC at 445.

In this instance we are unable to find that section 2.758 is a preferable method for proceeding with the PFS exemption request. There is a geotechnical issue in this proceeding - contention Utah L. A review of that contention I

leads us to conclude, in agreement with PFS and the Staff, that the requested exemption has no direct bearing on that issue statement. The seismic matters that are under scrutiny in contention Utah L, which include the adequacy of PFS's efforts to identify, characterize, and/or quantify surface faulting, ground motion, subsurface soils, and soit stability and foundation loading, are not matters that are directly impacted by whether the design-basis earthquake for the PFS facility ultimately is calculated using the Part 100 deterministic standard or the probabilistic methodology championed by PFS in its exemption request.

Similarly, PFS's request to use a probabilistic methodology in lieu of the deterministic approach of Part 100 does not raise any questions about regulatory interpretation or application relative to the facts at issue in this proceeding as expressed in contention Utah L.3 Accordingly, we see no basis for granting the

]

State's request to compel PFS to utilize section 2.758 as its exemption avenue.

3 See, e s 10 C.F.R. Il 3011 (Part 30 byproduct nuiteriah 40.14 (Purt 40 source materiaD. 5012 (Part 50 production and utilizacon facihues). 70.14 (Part 70 special nuclear rnateriu0; 72.7 (Part 721sf%).

3 Nor do we hnd that the Three Mile Island cme rehed upon by the State mandates a different resuh. In that instance. the Comnsuon found section 2.758 was not the appropnate vehicle for considenng whether an esempoon was needed relauve to a regulatory pmvision catablishing a design basis for post accident conhuntion gas control systems. Although the Conmussion acknowledged that hydrogen gas generauon dunng the then-recent Three Mde Ishmd Unit 2 accident was well in esces. of the design basis amount, the Conumasion concluded a secuan 2.758 waiver was not the appropriate respome to address the issue because that condition did not creare any special circumstances relauve to the particular case before the Bomd. Rather, the Conumssion held the issue was a generic matter relating to u!! light water power reactors that should te addressed in a rulemaking proceeding that it intended to iniuale. See CLI BO 16. Il NRC at 675. How the Commission's holding in that case provides any support for the State's pouuon here is not apparent.

436 l

I i

p i-B. Amending Contention Utah L Similarly, the State's alternative request for relief - the amendment of contention Utah L - also provides no basis for Board action at this time. Putting aside the fact there is a considerable question whether the State has really framed what could be considered a " contention" relative to the PFS request in these circumstances the State's request for adjudicatory consideration ofits concerns is premature.

The question of when a new or amended contention must be filed in order to meet the late-filing standards of 10 C.F.R. 5 2.714(a) - and specifically the critical criterion concerning " good cause" for late filing - is one we have already explored in this proceeding in other contexts. See, e.g., LBP-99-7,49 NRC 124,128 (1999); see also LBP-99-3, 49 NRC 40, 47-48 (1999) (late-intervention petition), ag'd, CLI-99-10,49 NRC 318 (1999). In large part, this calls for ajudgment about when the n. 2ter is sufficiently factually concrete and procedurally ripe to permit the filing of a contention.

When dealing with information supplied to the agency by a license applicant, such as now is at issue in connection with the instant PFS exemption request, the concept of factual concreteness requires an inquiry into the question of when the moving party had access to information sufficient to permit it to frame an issue statement with reasonable specificity and basis. And for applicant-supplied ivormation, the concept of procedural ripeness involves consideration of whether, within the context of the agency administrative process that is the subject of an adjudication (e.g., license application process), the applicant information to which the moving party had access to frame the contention is being put before the agency in a context that is (a) reasonably likely to have a material impact on the administrative process (e g., will influence Staff consideration of the pending license application); and (b) is subject to consideration in the related adjudicatory proceeding.

In this instance, the exemption raaterial provided by PFS to the Staff and the State seems to be sufficiently well-defined to provide the information needed to formulate a contention. Considerably less cemin, however, is the question of its ripeness. By its nature, an exempWn request is atypical.'

The rules promulgated by the Commission reflect a cca ddered judgment about the requirements necessary to proact the public heth and safety and the environment. In contrast to a license application that generally seeks to demonstrate the requester's compliance with agency requironents, an exemption d An th, Stafr notes. see staff Renponse ut 3. in contrast to the exemphon proviuon for 10 C r R. Part 50 governing power reactors, the exempuon provision apphcable to ISTsis does not require a showing of "special cucumstances"in order to obtain a rule waver. Compure 10 C F R. I 50.12(a)(2) with id. 5 72.7. Ist the reasons we authne above. however, a requent to wave the agency's duly adopted rules is never a matter that can be treated as wholly rouune.

437 l

\\

2-.

i f

request attempts to show why those regulatory requirements should not be applied to the requester. The latter thus is more problematic in terms of its likely impact on the administrative process. Indeed, the uncertain nature of I

an exemption request (i.e., that the request may not be granted) counsels that consideration of an exemption-related contention should await Staff action on the exemption. Accordingly, the timeliness of a contention based on an applicant's exemption request is.more properly judged from the time of Staff action on the exemption rather than when the exemption request is filed.

In addition, the matter of ripeness is further influenced by the question of how that request is to be considered in the adjudicatory process. The Commission has made it clear that, in the absence of a contrary Commission directive, exemption requests falling outside the ambit of section 2.758 are not subject to challenge in an adjudicatory proceeding. See United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-81-35,14 NRC 1100,1103-04 & n.2 (1981). Consequently, to countenance an adjudicatory challenge to the PFS exemption petition,8 the Board would have to invoke its certified question or referred ruling authority under 10 C.F.R. 55 2.718(i),2.730(f) to determine whether the Commission wants the Board to consider :he contention. Obviously, in invoking such authority, we should present the Commission with questions that are as concrete as possible. And, in the case of the PFS exemption request, any concerns about Board consideration of the merits of the exemption will be 3

most determinant if, and when, the Staff acts favorably on the request.'

Accordingly, as the State itself has suggested may be true, See State Motion at 2-3, its request to amend contention Utah L is premature 7 We thus deny it as well, albeit without prejudice to a subsequent filing if the Staff acts favorably on the PFS request.

8 As far as we are aware, there is nottung that precludes the State presently from making the staff aware ofits views on the substance of the Apnl 1999 PFS caempuon request as part of the Staff's review of the request.

' As de Staff also notes, see Staff Responw at 4-5 & n4. there have teen instances in de past when the Commission has sanctioned Licensing Board considerauon of esemption requests, most notably hmg Island DgArms Co. (Shoreham Nuclear Power stauon. Unit 1). CL1-84-8.19 NRC 1154 (1984). There, the Commission directed that an applicant's planned but yet to-be-hied exempnon request should be treated as an application modincation that was subject to Board considerauon in the ongoing adju& canon regarding the application. See M at 1155.

Here. however, we cannot find that Shorcht.m supports the State's position. The PFS exemption application has already been filed with the Staff. Under the case law cited in Ile text above and the agency's management directives. see United States Nuclear Regulatory Commission. Managenent Direcoves. Directive 9.17 (sept.1991)

(authonty delegauon to Esecutive Director for operations (EDo)); M Directive 9.26 (NRC Manual Chapter Of 24 60124 0311 (oct.1989) (authority deleganon from EDo to Director, onice of Nuclear Materials Safety and Safeguards)). it is dw Staff that has the delegated authority to consider the request wholly outside this adjudicanon.

7 0ur detennination to forego action at this time on die State's concerns regardmg the Pf3 exempuan request is buttressed by the fact, as die staff notes, see Staff Response ut 810 & R.7. that there aheady is an outstanding Commission epproved Staff rulemaking pian to nmdify the seistrue design entena for ISFsis to encompass a probabilistic (i c., nsk informed) approach. See LHP-98-7. 47 NRC 142.179 (contenuon that aceks to htigate matter clearly about to become subject of rulemaking is inadnussible). af'd on urher grounds. CLI-9813,48 NRC 26 (1998). That rulemaking activity is capected to reault in the issuance of a proposed rule in hacal year 2000.

438

't III. CONCLUSION

'Ihe State has asked that a 10 C.F.R. 9 72.2 request by PFS for an exemption from the seismic design criteria of 10 C.F.R. Part 100, App. A, be resubmitted j

as an exemption request under 10 C.F.R. 62.758(b) so that the exemption can be litigated in this adjudicatory proceeding. We deny that request, finding section 2.758(b) inapplicable because the PFS request has no direct bearing on the only pending geotechnicalissue, contention Utah L. Additionally, we deny the State's alternative request to consider its motion as a request to amend its contention Utah L to' frame a challenge to tiie substance of the PFS exemption request. We find that the question of ndmitting or amending contentions relative to the PFS

• exemption request must await favorable Staff action on that request.

Ihr the foregoing reasons, it is, this twenty-sixth day of May 1999. OR-DERED that the State's April 30, 1999 motion to require Applicant PFS to apply for a 10 C.F.R. 6 2.758(b) rule waiver or, in the alternative, to amend contention Utah L is denied.

THE ATOMIC SAFETY AND LICENSING BOARD

• G. Paul Bollwerk, Ill ADMINISTRATIVE JUDGE Dr. Jerry R. Kline

- ADMINISTRATIVE JUDGE 1

i Dr. Peter S. Lam ADMINISTRATIVE JUDGE i

i Rockville, Maryland May 26,1999 -

I 8 Copies of this Memorandum and order wen ja date by Internet e mail transmission to counsel for-i (1) Applicant PFS;(2)Intervenors Skull Valley *

'1 t awhute ludians, ohngo Gaudadeh Devia. Confederated Tribes of the Goshute Reservation. Southern Utt

&'b aness Alliance and the State; and (3) the Staff.

439

~

i

)

' l fi y

>g-..,,-

. g.-..

Tz

{

8c I. m 3

C 6al ao I

1 I e"4 s

e.o ta I

I b*

Z P

m I

j

+l *&... *

...j 7..,...,.

., p tv. -

_.:.i. 7 e i..j ] : ";. ~.

/..

-..v..-

z i

co 120555154486 1 1ANIA21XP h

3 j

US NRC-0CIO DIV-INFORMATION MANAGEMENT m

TPS-PDR-NUREG g

2WFN-6E7 DC 20555 c

WASHINGTON O

2 f

aO E

.E_

Eoz I

Qc s-

• *g.

.e-S-

.g*

~'

2+-,+:m-

. J- ;:

>.. -5. '

Z

-'1.;.

,: j.

4,

,.- i : ' " y -;

O m

(A a

E M

J a

O