ML20216G240
| ML20216G240 | |
| Person / Time | |
|---|---|
| Issue date: | 09/13/1999 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-99-228, SECY-99-228-01, SECY-99-228-R, NUDOCS 9909300003 | |
| Download: ML20216G240 (16) | |
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ADJUDICATORY' ISSUE l (Information)
September 13, 1999 SECY-99-228 FOR: The Commission FROM: John F. Cordes, Solicitor
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SUBJECT:
LITIGATION RE RT - 1999 - 5 Grand Canyon Trust v. NRC, No. 99-70922 (9* Cir., filed July 22,1999)
This lawsuit challenges the NRC's handling of a radioactive tailings pile near the Colorado River at the Atlas site in Moab, Utah. The petitioners are a coalition of individuals and organizations who seek removal of the tailings pile. The petition for review challenges an NRC decision under 10 C.F.R. $ 2.206 refusing to grant immediate relief and the NRC's issuance of a license amendment approving a reclamation plan for the Atlas site. Petitioners apparently intend to argue that these NRC decisions violated the Endangered Species Act.
Many of the same petitioners are seeking Endangered Species Act relief before the NRC's hearing tribunal, the Atomic Safety and Licensing Board Panel, and before a federal district court in Utah. Those proceedings remain pending. The court of appeals has set the case for briefing later this autumn.
CONTACT: Marjorie S. Nordlinger 415-1616 Envirocare of Utah. Inc. v. NRC, No. 99-1294 (D.C. Cir., filed July 29,1999)
This lawsuit challenges the NRC's handling of a petition filed by Envirocare under 10 C.F.R. 9 2.206. The petition claimed, among other things, that the NRC failed to satisfy the National Environmental Policy Act (NEPA) both when it issued generic guidance on uranium mill feed material and when it granted license amendments to International Uranium (USA) allowing it to process and dispose of certain low-level waste. The NRC staff responded to the petition with a letter maintaining that Envirocare's NEPA claims were not cognizable under section 2.206 and that, in any event, the NEPA claims lacked merit.
This case may well implicate " competitor's standing" issues similar or identical to those now l awaiting decision by the court of appeals in Envirocare of Utah. Inc. v. NRC, Nos. 98-1426 and 7
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2 98-1592 (D.C. Cir., argued on September 8,1999). The court of appeals has not yet set a briefing schedule for Envirocare's latest suit.
s CONTACT: Grace H. Kim 415-3605 i
DISTRIBUTION:
Conunissioners -
OGC OCAA' OIG OPA OCA CIO CFO EDO REGIONS SECY I
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1 Grand Canyon Trust v. NRC, No. 99-70922 (9* Cir., filed July 22,1999) ,
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AUG-10 '99 12:15 ID:EAJUS-ROCKY MTN OFC TEL NO:4922118 #713 P02 l
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i UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Grand Canyon Trust, et al., )
) No. W- 70?n Petitioners, )
) Petition for Review of
- v. ) Two Orders of the i U.S. Nuclear Regulatory Commission, -) Nuclear Regulatory Commission
)
1 Respondent. )
- The Grand Canyon Trust, Dave Bodner, Ken Sleight, Joseph Knighton, Colorado Plateau River Guides,3-D River Visions, Inc., Sierra Club, and, Grand County, Utah, (collectively l
" Grand Ca7 yon Trust") hereby petition the court for review of two orders of the U.S. Nuclear Regulatory Commission: (1) an order entered on May 27,1999, denying the Grand Canyon Trust's requests for immediate action pursuant to a supplemental petition under 10 C.F.R.
{ 2.206 and postponing resolution of claims set forth in the Grand Canyon Trust's 6 2.206 1
supplemental petition and petition; and, (2) an order entered on May 28,1999, amending license
- condition 41 of Source Materials License No. SUA-917. A copy of the first order is attached to l
this petition as Exhibit A, and a copy of the second order is attached to this petition as Exhibit B. !
l Respectfully submitted this 22"d day of July,1999.
$$l
Susan D. Daggett i Robert B. Wiygul l Marie A. Kirk '
Earthjustice Legal Defense Fund -
1631 Glenarm Place, Suite 300 ,
Denver, CO 80206 Attomeys for Petitioners
I' AUG-10 '99 12: 16 ID:EAJUS-ROCKY T1TN OFC TEL NO:4922118 M713 PC3 l' .
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j UNITED STATE 3 NUCLEAR REGULATORY CofAMISSION
& WASHINGTON, ft.C. 20tWH1001
\, *,.../ May 27, 1999 Ms. Susan D. Daggett Mr. Robert Wiygul RECEIVE , j agg Ms. Marie A. Kirk Earthjustice Legal Defense Fund 1631 Glenarm Place, Suite 300 Denver, CO 80202
SUBJECT:
10 CFR 2.206 PETITION CONCERNING ATLAS CORPORATION
Dear Mas. Daggett and Kirk and Mr. Wiygul:
By letter dated January 11,1999, you requested that the U.S. Nuclear Regulatory Commission (NRC) take specific actions, pursuant to 10 CFR 2.206, with regard to Source Material License No. SUA-917 held by Atlas Corporation for its shutdown facility near Moab, Utah. In my acknowledgment letter of January 26,1999, I denied your request for immediate action and stated that your request would be addressed, under NRC's 2.206 process, within a reasonable time. On January 27,1999, you filed a request for a hearing with the Atomic Safety and Licensing Board. The issues identified are similar to those raised in your 2.206 petition. Your j hearing request is pending the Board's decision on the timeliness of your petition. However, because the technical issues are similar in both petitions, we are deferring action on the 2.206 l
) request until after the Board's decision on granting a hearing. After that decision, we will infomi '
you of what action will be taken with respect to your 2.206 petition.
We have also received your May 13,1999, supplement to the above-mentioned petition, in this supplement, you request that the NRC take immediate action to suspend the issuance of the .
license amendment to permit reclamation, to initiate a supplemental National Environmental Policy Act process, and to reinitiate consultation with the Fish and Wildlife Service (FWS) under the Endangered Species Act. We have reviewed your requests for immediate action and
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conclude that none of these addresses a health, safety, or environmental concem that requires immediate steps before action is taken on your request. As stated above, we will consider the petition supplement in conjunction with a final resolution of your original petition in accordance with the provisions of 10 CFR 2.206.
We are aware of no immediate steps that are necessary or that could be taken to alleviate your concems. The current license stready addresses cleanup of existing ground-water contamination. In addition, the NRC already has a requirement that the licensee explore options for accelerating the ground-water cleanup. Proceeding with the pending license amendment to approve the reclamation plan for the site would not prejudice the development of options for ground-water protection. Any suitable option would be the subject of a separate license amendment action. In addition, we are not aware of, nor does your petition supplement provide, any new and significant information that would require NRC to take immediate steps to supplement the Final Environmental Impact Statement (FEIS). The conclusions in the FEIS were not premised on an accelerated ground-water cleanup plan. Therefore, it does not appear that the bankruptcy filing has an impact on those conclusions.
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S. Daggett, et al. 2 Finally, there is no data to indicate that there is an imminent danger that the current biological opinion Will not be met; thus, it would be inappropriate to immediately reinitiate consultation.
Again, the pending license amendment is intended to take steps necessary to implement the FWS's ' Reasonable and Prudent Alternative." The NRC will continue to be in contact with FWS as the settlement agreement in the bankruptcy proceeding is implemented and remediation progresses. Both agencies are well aware of our statutory obligations and are committed to meeting our respective responsibilities for public health, safety, and the environment.
If you have any further questions, please feel free to contact either me or Mr. John Surmeier, the Branch Chief responsible for the Atlas site. I can be reached at (301) 415-7358, and Mr. Surmeier can be reached at (301) 415-7238.
1 Sincerely, j
i Martin J. srgilio, Deputy Director l Office of Nuclear Material Safety and Safeguards cc: See attached list i
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AUG-10 '99 12:18 ID:EAJUS-ROCKY MTN OFC TEL NO:4922118 u?13 P06 I Addressees for Letter Dated: 05/27/99 Sylvia Barrett U.S. Fish and Wildlife Service -
Metropolitan Water District of Lincoln Plaza, Suite 404 Southem California Salt Lake City, Utah 84115 700 Moreno Avenue LaVeme, California 91750 Dave Hutchenson Grand County Administrator Richard Blubaugh - 125 East Center Moab, Utah 84533 Vice President and Government Atlas Corporation Affairs of Environmental [
Dan Kimball, Chief j
370 Seventeenth Street, Suite 3150 Water Resources Division !
Denver, Colorado 80202 National Park Service U.S. Department of Interior I R.L. Christle, ATL 1201 Oakridge Drive, Suite 250 P.O. Box 1366 Fort Collins, Colorado 80525 Moab, Utah 84532 William Lamb John E. Cook, Reg. Dir. Associate State Director Rocky Mountain Region Burosu of Land Management National Park Service 324 South State Street U.S. Department of the Interior Salt Lake City, Utah 84111-2303 12795 Alameda Parkway -
P.O. Box 25287 Milton K. Lammering Denver, Colorado 80225-0287 U.S. Environmental Protection Agency Region Vill Walt Dabney, Superintendent 99918th Street, Suite 500 Canyonlands National Park Denver, Colorado 80202-2405 National Park Service 2282 S. West Resource Blvd. Bart Leavitt Moab, Utah 84532 Grand County Council 125 East Center Dale Edwards Moab, Utah 84533 Radiation Protection Coordinator Atlas Corporation AlMcLeod l P.O. Box 1207 Grand County Council l Moab, Utah 84532 125 East Center ,
Moab, Utah 84533 Grand County Library i 25 South 100 East Harvey Merrill l Moab, Utah 84532 Grand County Council 125 East Center Reed Harris . Moab, Utah 84533
l ALG-10 '99 12:19 'ID EAJUS-ROCKY MTN OFC TEL NO:4922118 #713 P07 O O .
i Marcia Moore WO780 Bureau of Land Management 1849 C Street, NW Washington, DC 20240 Salt Lake City, Utah 84114-4850 Kerry Moss National Park Service Anthony J. Thompson Mining and Minerals Branch Shaw, Pittman, Potts & Trowbridge P.O. Box 25287 2300 N Street, N.W.
Denver, Colorado 80236 Washington, DC 20037-1128 Vijal Rai Christine Turk, Chief senior Environmental Review Officer Branch of Compliance Office of Environmental Polley and National Park Service Compliance 12795 W. Alameda Parkway U.S. Department of the interior P.O. Box 25287 1849 C Street, NW Denver, Colorado 80225 Mail Stop 2340 Washington, DC 20240 Joe Webster U.S. Fish and Wildlife Service Steve Rauzi Region 6 416 West Congress #100 P.O. Box 25486 Tucson, Arizona 85701 Denver Federal Center 134 Union, Suite 400 Robert M. Reed, Supervisor Lakewood, Colorado 80225-0486 Environmental Ane'ysis and Assessment Section Wes Wilson Oak Ridge Nations' Laboratory U.S. EPA - Reg'on lli Bethel Valley Road 99918th Street,' Suite 500 P.O. Box 2008 Denver, Colorado 80202-2405 Oak Ridge, Tennessee 37831-6200 Gabrielle Sigel Jenner & Block One IBM Plaza Chicago, Illinois 60611 William J. Sinclair, Director l Division of Radiation Control l Department of Environmental Quality State of Utah 168 North 1950 West P.O. Box 144850 1
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AUG-10 '99 12:20 ID:EAJUS-ROCKY T1TN OFC TEL NO:4922116 n713 Pas pa t,ec y I**. UNITED STATES
, y NUCL REGULATORY COMMISSIOO
- WASHINGTON, D.C. 30606 4001 May 28, 1999 i
Mr. Richard E. Blubaugh l Vice President of Environmental !
and Govemment Affairs -
Atlas Corporation 370 Seventeenth Street, Suite 3140 Denver, CO 80202 l
SUBJECT:
APPROVAL OF REVISED RECLAMATION PLAN AND EXTENSION OF ;
MILESTONE DATE IN LICENSE SUA-917 FOR THE MOAB, UTAH, URAN!UM !
MILL - AMENDMENT NUMBER 30
Dear Mr. Blubaugh:
The U.S. Nuclear Regulatory Commission (NRC) staff is amending License Conditions (LCs) 41, 55, and 56 of Source Material License Number SUA-917, for the Moab, Utah, uranium mill site.
LC 41 is being modified to require reclamation of the tellings disposal area in accordance with Atlas Corporation's October 1996 reclamation plan, with additional specified conditions. j LC 558.(2)is being modified to revise the projected date for completion of ground-water -
corrective actions to July 31,2006. LC 56 is being modified to reflect a change in NRC's 4
organization.
By letter dated August 2,1988, Atlas submitted a revised reclamation plan, to supersede the May 1981 plan identified in LC 41, for NRC's review and approval. After extensive review and interaction between NRC and Atlas and considerable public involvement, Atlas submitted a modified version.
- Final Reclamation Plan, Atlas Corporation Uranium Mill and Tailings Disposal Area," in October 1996. The staffs assessment of the plan's compliance with NRC regulatory requirements is contained in NUREG-1532, " Final Technical Evaluation Report for the Proposed Revised Reclamation Plan for the Atlas Corporation Moab Mill," March 1997 and Supplement 1 to NUREG-1532, April 1999. The environmentalimpacts of the proposed reclamation were evaluated in NUREG-153'1, " Final Environmental Impact Statement Related to Reclamation of the Uranium Mill Tailings at the Atlas Site, Moab, Utah," March 1999. Copies of those documents were sent to you previously.
By letter dated March 2,1999, NRC identified 7 conditoa that we would require Atlas to commit to in order for us to amend LC 41. By letter dated Apli 15,1999, Atlas agreed to the conditions with revisions to two dates specified in the conditions. Those revised dates are based on the projected schedule of the Atlas bankruptcy proceeding and are acceptable to NRC. The revision to LC 41, therefore, contains the conditions identified in the March 2 letter with the dates modified to those in Atlas' April 15 letter.
e By letter dated December 22,1998. Atlas requested that the date, in LC 558.(2), for the projected completion of ground water corrective actions, be extended. The enclosed Technical Evaluation Report (TER) contains NRC's assessment of the licensing action and the I
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R. Blubaugh -2 recommended license change. Based on this assessment, the projected date for completion of ground-water corrective actions.in LC 558.(2)is being changed from December 31,1998, to July 31, 2006 An environmental assessment for this action is not required. since it is categorically exclud3d under 10 CFR 51.22 (c)(11), and an environmental report from the licensee is not required by 10 CFR 51.60 (b)(2).
Requests for hearing have been filed on Atiss' requested amendments to LCs 41 and 559.(2) and, as a result, Presiding Officers have been appointed to consider these requests and conduct any hearings that may be held on these amendments. On May 14,1999, the Presiding Officer granted the request for hearing on the amendment to LC 558.(2). In accordance with 10 CFR 2.1205(m), the staff hereby issues the requested amendments, notwithstanding the pendency of the requests for hearing, based upon the evaluations contained in the documents identified above.
The license is being reissued to incorporate the changes identified above end is enclosed if you have any questions, please contact me or Myron Fliegel, the NRC project meneger for Atlas. I can be reached at (310) 415 7238 and Dr. Flio9el at (301) 415-6629.
Sincerely, J l
1 John J. Surmeier, Chief Uranium Recovery and Low-LevelWeste Branch Division of Weste Management Office of Nuclear Material Safety and Safeguards Docket No. 40-3453 Source Material License No. SUA-917 Amendment No. 30 ,
Enclosures:
As stated cc: See attached list
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Envirocare of Utah. Inc. v. NRC, No. 99-1294 (D.C. -Cir., filed July 29,1999)
- TiTETATE5t00RT0iWrtNO l ,. : J.DISTRICTOFCOWt*BIACIU:.
jut. 2 I 1999 i IN THE UNITED STATES COURT OF APPEALS l
FOR THE DISTRICT OF COLUMBIA CIRCUIT RECEIVED ENVIROCARE OF UTAH, INC., )
)
PETITIONER, )
v.
)
) Case No.
99 .1294
)
U.S. NUCLEAR REGULATORY )
COMMISSION, UNITED STATES )
OF AMERICA ) ,
) I l
RESPONDENTS. )
)
PETITION FOR REVIEW Envirocare of Utah, Inc. ("Envirocare") hereby petitions the Court for review of the U.S. Nuclear Regulatory Commission's April 27,1999 order denying Envirocare's 10 C.F.R. I 2.2% petition, which order became final on May 22,1999. A copy of the April 27,1999 order is attached to this petition.
On March 26,1999 Envirocare filed a 10 C.F.R. I 2.2 6 petition with the ;
l NRC seeking the revocation of International Uranium (USA) Corporation's ("IUC")
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Ashland license amendments and the denial of any future license amendment requests i absent the satisfaction of NEPA requirements. By letter dated April 27,1999, the -
l Director of the Division of Waste Management in the Office of Nuclear Material Safety
! and Safeguards (the " Director") denied the requested relief. The Director's decision l
became a final agency action on May 22,1999, and is now appealable to the Court of j Appeals for the District of Columbis Circuit.
Envirocare appeals from the NRC's decision on the basis that in denying the requested relief, the NRC abdicated its statutory responsibilities and abused its discretion in finding that IUSA's license amendments satisfied NEPA. By this appeal, Envirocare seeks reversal of the NRC's denial of its petition and requests that this
, Court grant the relief prayed for therein.
DATED this 21" day of July,1999.
Respectfully submitted,
- , M Robert A. Nelson, Jr. Esq.
Stoel Rives LLP y
1275 K Street N. W.
Suite 810 Washington, D.C. 20005-4006 (202) 347-7744 David J. Jordan Jill M. Pohlman Stoel Rives LLP One Utah Center, Eleventh Floor 201 South Main Street Salt Lake City, Utah 84111-4904 Attorneys for Petitioner Envirocare of Utah, Inc.
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%,.....'/ April 27, 1999 Mr. David J. Jordan Ms. Jill M. Pohlman Stoel Rives LLP One Utah Center 201 S. Main Street, Suite 1100 Salt Lake City, Utah 84111-4904
Dear Mr. Jordan and Ms. Pohlman:
I am responding to your letter of Maren 26,1999, in wnien you submitted, on behalf of Envirocare of Utah, Inc., a petition for action pursuant to 10 CFR 2.206. A Petition Review Board (PRB) was formed to review your petition. The PRB met on April 15,1999, and concluded that your request does not qualify as a petition under 9 2.206. Tne reasons for that cecision are oiscussed below.
Your petition addresses U S. Nuclear Regulatory Commission (NRC) Source Matenat Licen SUA-1358, held by intemational Uranium (USA) Corporation (luc), for the White Mesa Mdl ne Blanding, Utah. Your petition requested that the NRC:
- 1) revoke License Amendments 6 and 10, allowing the processing of the altamate feed '
material from tne Ashland 1 and 2 Formerly utilized Sites Remedial Action Program (FUSRAP) sites near Tonawanda, New York, that are being remediated by the U.S.
Army Corps of Engineers; and
- 2) deny any future altamate feed licer.3e amendments until NRC determines that its guidance satisfies National Environmental Pol cy Act (NEPA) requirements.
Your second request concems prospective licensing actsons, not enforcement action, and, therefore, does not meet the enteria of a 2.206 petition. A 2.206 petshon must request enforcement achon; a request that NRC not issue license amendments in the future is not a request for enforcement schon.
Your first request also does not qualify for treatment as a 2.208 petition. The 2.206 process is primarily aimed at two types of situabons 1) where a lecensee has been violating NRC requirements and the petitioner requests NRC enforcement action; and 2) where a potential safety concem has been identified, regardless of whether the licensee is complying with requirements, and the pet: boner requests NRC action to alleviate the safety concem. The bases for your first request involve assertsons that the NRC staff failed to satisfy NEPA in approving license arnendments, not that 10C violated NRC requirements. Thus, this request also is outsuse the acope of 2.206.
Nevertheless, we nave considered the bases sdentsfied in your petition and will address them here. Your petstion idemified three bases, the first being that the guidance used in reviewing the two license amendment requests was promulgated by NRC in violation of NEPA. That
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D. Jordan, et al.
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1 guidance. Final Position and Guidance on the use of Uranium Mill Feed Material Other Than Natural Ore," was published in the Federal Reaister on September 22,1995, after appr the Commission. A draft of tne gurdance had been published in thefsLqqral Reoister for pub comment on May 13,1992. You argue that because an evaluation of the environmental impact was not performed, the guidance violated NEPA.
De basis of your first argument is that NEPA requires the NRC to perform an environmental evaluation of agency policy decisions; therefore, the NRC guidance on the use of attemate feed materials should have included an environmental evaluation because it is a de facto policy decision that allows uranium mill licensees to accept off-site radioactive materials for proces as ore. However, NRC guidance is categoncally excluded from the NEPA requirement for an environmental assessment pursuant to 10 CFR 51.22(c)(16) because these guides do not impose legal requirements. And, quite clearty, the guidance does not authorize the process of alternate feed material, but rather, provides guidance to the staff in reviewing such reque Your second argument is that the arnendments themselves violated NEPA. You argue tnat the staff erred in relying on 10 CFR 51.22(c)(11) in categorically exclu' ding the amendments from the requirement for an environmental review. However, the granting of both of these amendments was based on NRC staff technical reviews that concluded that an environmen report covering the information identified in 10 CFR 51.45 was not required from the licensee because environmental impacts associated witn the excavation of the material and associated site cleanup activities were addressed by the U.S. Army Corps of Engineers, and found to be not significant1 in addition, tne NRC staff found tnat issuance of tne amendments would not result in:
- 1) a significant change or increase in the amounts of effluents that may be released offsite; 2) a significant increase in individual or cumulative occupational radiation exposure; 3) a significant construction impset; or 4) a significant increase in the potential for or consequences from radiological accedents. Therefore, the action met the entena to be categorically excluded pursuant to 10 CFR 51.22(c)(11).
Your third argument is that the staff improperly applied the guidance in considering the license l amendment requests. You then provide specific details to support this contention. However, this argument is the basis for the State of Utah's petitions before the Atomic Safety and )
Licensing Board (ASLB) chattengmg both license amendments in the case of the Ashland 2 license amendment, the Presiding Officer issued an initial decisson denying utan's hearing request. Utah has appealed that deosion to the Commission. The Ashland 1 license amendment ASLB proceeding is being held in abeyance pending the outcome of the appeal on the Ashland 2 decision. The results of those promedings will determine the merits of your thirt! j argument; therefore, it would be inappropriate for us to address tnis argument here. As evidenced in the Commission's November 24,1998. Memorandum and Order, CU-98-23 however, if appropnate, you may partecipate in the ongoing proceeding as amicus curiae.
e
, 07-21-08 11:52 Fros-$TOELRIVESLLP 48015786000 T-758 P.06/07 F-004 D. Jordan, et al.
3 If you have any further questions, please feel free to contact either rne or Dr. N the Acting Branch Chief responsible for the Atlas site. I can be reached at (301) 415 Dr. Stablein can be reached at (301) 415-7238.
Sincerely,
& i John T. Greeves, Director !
Division of Waste Management Office of Nuclear Material Safety and Safeguards i
e,
< 1 CERTIFICATE OF SERVICE Pursuant to Rule 15(d) of the Federal Rules of Appellate Pro certify that I have this day served a copy of the foregoing Petition f respondent, the U.S. Nuclear Regulatory Commission, at the address set Ms. Greta Dicus, Chairman U.S. Nuclear Regulatory Commission i Washington, D. C. 20555 There were no other parties to the proceedings before the U.S. Nu Commission.
Dated at Washington, D. C. this 21" day of July,1999.
9
-1/b Robert A. Nelson, Jr., Esq.
j Stoel Rives LLP 1275 K Street, N. W. l Suite 810 Washington, D. C. 20005 (202) 347-7744 i
Counsel for Petitioner Envirocare of Utah Inc.