ML20236A384

Second Motion for Reconsideration of CLI-88-10.* Commission Should Reconsider CLI-88-10 & Admit Contentions Dealing W/ Cost & Availability of low-level Waste Disposal for Litigation.W/Supporting Info & Certificate of Svc

ML20236A384
Person / Time
Site:	Seabrook
Issue date:	03/03/1989
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#189-8235 CLI-88-07, CLI-88-10, CLI-88-7, IEIN-89-013, IEIN-89-13, OL-1, NUDOCS 8903170151
Download: ML20236A384 (15)

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4 ]g Si b COL KEii.T-UtNH' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

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Before the Commission GFF!C. . '

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IN THE MATTER OF ) Docket Nos.

) 50-443-01-1 PUBLIC SERVICE COMPANY OF ) 50-444-01-1 NEW HAMPSHIRE, ET AL. ) (On-Site EP Issues)

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(Seabrook Station, Units 1 and 2) )

) March 3, 1989

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SECOND MOTION FOR RECONSIDERATION OF CLI-88-10 On December 27, 1988, the Mass AG filed its Motion for Reconsideration of CLI-88-10 raising both factual discrepancies on the costs of operating the spent fuel pool after low-power operation and legal concerns over certain rulings. On or about February 13, 1989, the Mass AG received a copy of NRC Informa*cion Notice No. 89-13: Alternative Waste Manacement Procedures In Case Of Denial Of Access To Low-Level Waste Qisposal Sites ("Information Notice"). The Information Notice notified NRC license holders that recent events indicated that certain states might be denied access to the three existing low-level radioactive waste facilities and, therefore, they i should consider actions to mitigate the potential impact of loss of disposal capacity. On February 28, 1989, the Mass AG received a copy of an order of the South Carolina Department of 4

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Health and Environmental' Control Board denying New Hampshire 1 access to the Barnwell,. South Carolina facility. The Applicants' Decommissioning plan relies upon the shipment of low-level waste generated by low-power. testing off-site, presumably'to the Barnwell facility presently used by New Hampshire. CLI-88-10 refused to consider contentions relating to the unavailability of waste disposal facilities.because no evidenco of unavailability had been presented. CLI-88-10 at n.10. Because of the' actions taken by the South Carolina authorities and similar action taken by the State of Washington with respect to Richland and likely to be taken shortly by the State of Nevada with respect to Beatty, the Mass AG, SApL and NECNP (" Interveners") move the Commission to reconsider CLI-88-10. The Interveners urge that upon reconsideration the Commission remand the issue of low-level waste generation and disposal to the Licensing Board for litigation.

DISCUSSION In response to CLI-88-07, each of the Interveners filed contentions relating to the Decommissioning Plan and, in this case, the cost to ship to and the availability of low-level waste disposal facilities. For example, the Mass AG alleged:

The decommissioning cost estimate used in the plan is incomplete, and, thus, understated because it does not (1) identify any low level waste disposal facility where the low level waste from the plant may be disposed of, (2) specify the terms and rates under whict' the low level waste from the plant can be shipped to a low level waste disposal facility, (3) provide

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i support for assumed costs ofLthe disposal at a-

. low level' waste disposal f acilit-y of . the . low level waste from the plant.

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There is no.~information in~the plan filed'by.the j Joint Applicants concerning where the low level j

. waste f rom the plant will txa disposed .of nor .the '

source.or basis of.the estimated costs;of disposal which appear in the cost estimates.

(Plan at p. 8-14).,This is unacceptable in-light of.the fact-that there is widespread concern

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regarding the continued viability of many interstate compacts for the disposal of low level radiological. waste and that burial is a large percentage of decommission cost (10-20%) and costs of burial have been rising.at rates 3 to 4 times the general rate of inflation.

There is-also no information concerning the carrier (s) and the term and rates under which sucli carrier (s) will carry the low level waste from the plant.

Motion'of Massachusetts Attorney General _ dames M. Shannon Under 10 C.F.R. $ 2.734 to Reocen the Record to Consider Evidence Concernina the Joint Aeolicants' Decommissioning Plan for the Seabrook Nuclear Power Station and to Admit the Attached Late Filed Contentions Concernino Said Commissioning Plan, Attachment 1(f) (November 2, 1988).

The Commission in.CLI-88-10,- ruled that it would not require of Applicants "the details of the low level waste disposal sites and disposal fees so long as the plan contains reasonable cost estimates of these matters." Id. at 11. With respect to the suggestion that the Applicants be required to calculate availabilities of disposal capacity, the Commission concluded that "[a]bsent any evidence that waste disposal is unavailable the Commission need not embark on speculation of this nature." Id. n.10.

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I That " speculation" has now become reality. On February 2, 'l 1989, South Carolina denied New Hampshire-access to the Barnwe11' facility because of the stste's failure to meet both 3

January 1, 1988 and January 1, 1989 milestones under the Low-Level Radioactive Waste Policy Act of 1985, 42 U.S.C.

$ 20llb, et. seg. Exhibit A. Washington took the same action on December 19, 1988 with respect to New Hampshire's use of Richland. Exhibit B. On February 17, 1989, the Rocky Mountain Low-Level Radioactive Waste Board asked New Hampshire to show cause why it is not in compliance with the Act and its access to the Beatty facility should not be denied. Exhibit C. The hearing on the matter will be held on March 16, 1989. Given New Hampshire's lack of compliance with the Act, it is a distinct possibility that access to Beatty as well will be denied. In short, low-level radioactive waste generated by low-power operation at Seabrook cannot now be shipped off-site. The contrary assumption of the Applicants, the Staff and ultimately the Commission has proven erroneous.1#

1/ In a related development, the Commission recently issued its final rule establishing criteria and procedures for evaluating requests for emergency access to operating non-Federal or regional, low-level radioactive waste disposal facilities. 54 Fed. Reg. 5409 (February 3, 1989). The regulations were promulgated in connection with section 6 of i

the Act and become effective on March 6, 1989.

Under the regulations, requests for emergency access begin with detailed submissions on the need for access, the quantity and type of material requiring disposal, impacts on health and safety or common defense and security if emergency access is not granted, and consideration of alternatives to access.

10 C.F.R. $$ 62.12, 62.13. Among the alternatives to be considered by the applicant and the Commission in naking its I

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4 The possible' consequences in the event of low-power operation at Seabrook'but no full-power operation in terms of I both' increased costs for storage of the waste, increased 1

insurance costs,' changes in schedules and environmental consequences must be' explored. The Commission should reconsider CLI-88-10, and admit the contentions dealing wi.th the costs and availability of low-level waste disposal for litigation before the Licensing Board.

Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL By: ephen A. Jonas eputy Attorney General hief, Public Protection Bureau John Traficonte Chief, Nuclear Safety Unit One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: March 3, 1989 i

(footnote continued) determination is "[cleasing activities that generate low-level radioactive waste." 10 C.F.R. SS 62.13(a)(7), 62.21, 62.25. I The situation faced by New Hampshire at the present time demands that the Commission reconsider CLI-88-10. The Commission should admit the relevant contentions in order to obtain the information it has deemed relevant and necessary, in the context of the new rule, to address the problem of inaccessibility to disposal sites, i I

, EXHIBIT-A i;' .

• 0 South Carolina Department of Health and Environmental Control 2600 Bull Street Columbia. S.C. 29201 .

Board Harry M. Hallman.Jr Chairman Comadeeleur Toney Graham. Jr. M.D. Yke.Chairinen Michul D. Jarnte +

' John B. Pete. M.D., Secretary One 3 Jr.

y Euta M. Calvin. M.D.

February 2, 1989 Henry S. Jordan. M.D.

CERTIFIED j RETURN RECEIPT REQUESTED P 434 498 959 f, The Honorable John H. Sununu Governor, State of New Hampshire j Office of the Governor Concord, New Hampshire 03301 Re: Compliance with Low-Level i

Radioactive Waste Policy Act January 1, 1989 Milestone ~

Deer Governor Sununu:

• Enclosed please find the South Carolina Department of Health 1 and

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Environmental Control Board's Order in the above-captioned matter, along with an Affidavit of Hailing.

i very truly yours, l

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Samuel L. Finklea, III Staff Counsel SLP:bt Enclosure j cc: Heyward Shealy Virgil Autry

Bill House i

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.r Y STATE OF SOUTH CAROLINA ) BEFORE THE BOARD OF HEALTH

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} AND COUNTY OF RICHLAND ) ENVIRONMENTAL CONTROL-IN RE: )-

Compliance with Low-Level }

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Radioactive Waste Policy Act ) ORDER

) January 1, 1989 Milestone )

) . m This matter comes before the. Board pursuant to S.C. Code Ann.- Sec.48-(8-70 (Cum."Supp. 1987).- Provisions of the Low-Level Radioactive Waste Policy Act of 1985,'42 U.S.C. 2011b, et seq.',

.. ("LLRWPA") establishes milestones which must be met by those states and interstate compact regions which do not have operating low-level radioactive waste disposal sites.

In particular, section 5(e)(1)(B)~of the LLRWPA requires each such sta'te or compact to identify a host state for a future disposal site and to develop a siting plan which establishes a procedure for orderly development and licensing of a disposal site. Failure to meet this milestone by January 1, 1988, subjects the state or compact region to penalties in the form of increased.s /rcharges on all waste shipped to the Barnwell low-t; level radioactive waste disposal site; failure to meet the milestone by January 1,'1989, may result in action by the Board' to bar future shipments of waste into South Carolina from the non-compliant state or compact.

The General Assembly enacted 1986 Act No. 523, codified as Code Sections 48-48-10 et seq., to implement the provisions of

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the LLRWPA. In particular, Code Sec.48-48-70 requires each state or compact to submit evidencs of compliance with the requirements ,

1 of the LLRWPA to the Board of Health and Environmental Control, I

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and -furthar requiran the Board to determine, within thirty days i of each occurrence, whether a state or compact is in non-q compliance with the Act. '

At'its regularly scheduled meeting on January 19, 1989, the- i Board considered the status of the States'of New Hampshire and vermont. New Hampshire has never elected whether it would' develop its own. waste d'isposal facility or enter into a compact which has or will develop a facility. Vermont originally entered'

, into an approved compact; however, that compact has dissolved, and vermont'has not entered into any other approved compacts.

Accordingly, the Board makes the following FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The States of New Hampshire'and Vermont are not in ~

compliance with the LLRWPA, Section 5(e)(1)(B).

IT IS FURTHER ORDERED that the Department of Health and Environmental Control take such steps as are necessary to enforce the penalty provisions of the LLRWPA, Section 5(e)(2)(B), against the States of New Hampshire and Vermont. Pursuant to Section 5(e)(2)(B)(ii), generators of low-level radioactive wasta located t

in the states of New Hampshire and Vermont are denied access to the disposal facility located at Barnwell, SC.

AND IT IS SO ORDERED.

FOR BOARD:

February 2 ,198 9 e#

Columbia, SC #e ney G h W, Jr., M.jg Chai n, Board of Health and environmental Control i

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STATE OF SOUTH CAROLINA ) BEFORE THE BOARD OF HEALTH

) AND COUNTY OF RICHLAND ) ENVIRONMENTAL CONTROL IN RE: .

. Compliance with Low-Level )

Radioactive Waste Policy Act ) AFFIDAVIT OF MAILING January 1, 1989 Milestone )

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The undersicjned for the South Carolina Department of Health and Environmental Control hereby certifies that she has this 2nd day of February, 1989, served the South Carolina Department of Health and Environmental Control Board Order in the above-captioned, upon The Honorable Madeleine M. Kunin, Governor, State of Vermont, Office of the Governor, Montpelier, Vermont 05602, and The Honorable John H . Sununu, Governor, State of New

, Hampshire, Office of the Governor, Concord, New Hampshire, 03301, by depositing a copy of same in the U.S. Mail with proper postage ,

affixed thereto.

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,r ' o SWORN to before me this A, nd day of February, 1989.

OdomvwN (L.S.)

N6tary Public for South Carolina My Commission Expires: 2.- n - 9 F I

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WIl M0p PV II DEPARTMENT OF ECOLOGY e

(hmpa aanytep, w)jty.n?y1 e g, nrm; 49.sgm December 19,'1988 The Honorable John H. Sununu Covernor State House Concord, NH 03301

Dear Governor Sununu:

in January of 1988, we advised you of the state of Washington's r ng Ne~w determ 4 radioactive wasts (letter enclosed). At that time, w l determined to be out of compliance with the 1988 milestone. Penalties ass Policy Amendments Act of 1985, were described in t .

The purpose of this letter is to advise you that, effective January 1,1989 a regional disposal facillty located near Richland, Washington will be denied radioactive waste originatin8 in the state of New Hampshire.

If you or your staff have any questions regarding this notification, p 459 6244.

1 Sincerely.

4" Pb Elaine Carlin, Manager Low-Level Radioactive Waste Program E.C:ec Enclosure cc: Arnie Wight Jerome Griepentros, Sta:e of Nevada Heyward L. Shoaley. State of South Carolina Bill Newberry, U.S. Department of Energy

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/ Rocxy MOWTAm LoaLsyst RADI0ACTM WAsn BOARD

' EXHIBIT C

• 1675 Broadway, Suite 1400 i' '

Denver, CO 80202 (303) 825-1912 CERTIFIED MAIL.-RETURN RECEIPT REQUESTED February 17.1989 Governor Judd Gregg Office of the Governor State House .

Concord, New Hampshire 03301 I

Dear Governor:

l The Rocky Mountain Low-level Radioactive Waste Board (Bostd) is in the process  !

of reviewing which states are in compliance with the January 1. 1988, l

" milestone" requirement of Section 5(e)(1)(B) of the federal Low-Level Radioactive Waste Policy Act Aimendments of 1985. 42 U.S.C. Section 20:le(e)(1)

(D). Dased on the information currently available to the Doord, it appears that the State of New Hampshire is not in compliance with the Policy A ct's provisions. Under the Policy Act any state not in compliance with . the 1988

" miles to ne" after January 1, 1989, rnay be denied access to the regional facility located at Beatty, Nevada. , Therefore, the Doard has nuthorized me, to ask the State of New Hampshire to show cause why it should not be found not to be in compliance with the Policy A ct's 1988 " milestone" and why acects to low-level radioactive waste mannsement facilities in' the Rocky Mountain Compact should not continue to be denied.

The Doord will hold a hearing on March 16, 1989, to consider whether the State of New Hampshire is in compliance with the 1988 " milestone." and if not, whether access should continue to be denied to low-level radioactive waste management facilities in the Rocky Mountain Compact. The Hearing will commence at 9:00 a.m. in the Lodge Room of the Elks Lodge, 801 S. Hitlerest Street, Montrose. Colorado. The State of New Hampshire is wc!come to make a presentation regarding its position as to whether (1) it is in compliance with the January I, 1988, "milestonet" and (2) whether access to low-level radioactive waste manngement facilities in the Rocky Mountnin Compact, should continue to be denied.

Whether or not the State of New Hampshire chooses to appear at the March 16.

1989, hearing, the Board requests that New Hampshire submit on or before March I, 1989. any written material that it wishes the Board to consider. Please send all written materials and direct any questions to the Board's Executive Director, Leonard C. Slosky,1675 Broadway, Suite 1400, Denver, Colorado 80202.

MEMBER STATES: COLORADO. NEVADA. NEW MEXICO, WYOMING EXECUTIVE DIRECTOR: LEONARD C. SLOSKY fl

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4- Page 2 If no response to this letter is received and if a representative of the State of New Hampshire does not appear at the March 16, 1989, hearing, New Hamp will continue facilities to be in the Rocky denied Mountain access to to low-level radioactive waste management Compact.

FOR THE ROCKY MOUNTAIN LOW-LEVEL RADIOACTIVE WASTE BO Leonard C. Slosky Executive Director LCS/ks

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cc: George Mollineaux ' "

Arnold Wight FEB 211989 Doard Members U I f

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IsX XEiED UNITED STATES OF1 AMERICA LNiC '

L NUCLEAR REGULATORY COMMISSION p Before the Commission 'E9 tMR -6 P1 :49

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OFF!Ci O H:  : -

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In the Matter of ) Docket Nos. 50-443-OL-1

) 50-444-OL-1 PUBLIC SERVICE COMPANY )

L OF_NEW HAMPSHIRE, EI AL. ) l

) i (Seabrook Station, Units 1 and 2) ) March'3, 1989 l

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CERTIFICATE OF SERVICE l i i

I',--John Traficonte, hereby certify that on March 3, 1989, I I

made service of the within Second Motion For. Reconsideration of l CLI-88-10, by First Class Mail, or by Federal Express as ]

l indicated by [*], or by telefax as indicated by [**) to:  ;

Peter Bloch, Chairman Dr. Emmeth'A. Luebke Atomic Safety & Licensing Board 5500' Friendship Boulevard U.S. Nuclear Regulatory Commission Apartment 1923N Washington, DC 20555 Chevy Chase, MD 20815 Dr. Jerry Harbour ** Gregory Barry, Esq.

Atomic. Safety & Licensing Board U.S. Nuclear Regulatory-Commission U.S. Nuclear Regulatory Office of General Counsel Commission 11555 Rockville Pike Washington, DC 20555 Rockville, MD 20852

• Docketing and Service ** Thomas G. Dignan, Jr.

U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110 1

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k H. Joseph Flynn, Esq.

Assistant' General Counsel Atomic Safety & Licensing Appeal. Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC Agency 20555 500 C Street, S.W.

Washington, DC 20472 Robert A. Backus, Esq.

Backus, Meyer & Solomon Atomic Safety & Licensing Board'  ;

U.S. Nuclear Regulatory Commission 116 Lowell. Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane Doughty Seacoast Anti-Pollution League Dianne Curran, Esq.

Five Market Street Harmon, Curran & Towsley Portsmouth, NH Suite-430 03801 2001 S Street, N.W.

Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq.

Kopelman & Paige, P.C. '9 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham  !

Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq. Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O. Box 38 Washington, DC Bradford, MA 20510 01835 (Attn: Tom Burack)

Senator Gordon J. Humphrey George Dana Bisbee, Esq.

One Eagle Square, Suite 507 Assistant Attorney General Concord, NH 03301~

(Attn: Herb Boynton)

Office of the Attorney General 25 Capitol Street Concord, NH 03301 Phillip Ahrens, Esq. Sandra Gavutis, Chairperson Assistant Attorney General Board of Selectmen Department of the Attorney General RFD 1, Box 1154 Augusta, ME 04333 Rte. 107 Kensington, NH 03827 Calvin A. Canney City Manager Gary W. Holmes, Esq.

City Hall Holmes & Ellis 126 Daniel Street 47 Winnacunnet Road Hampton, NH 03842 Portsmorth, NH 03801

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i Richard A.'Hampe, Esq.- Robert Carrigg, Chairman #

.Hampe & McNicholas Board of Selectmen 35 Pleasant Street Town Office Concord, NH 03301 Atlantic Avenue 3 North Hampton,'NH 03862

< 'J. P. Nadeau ' William S. Lord

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Selectmen's Office Board of Selectmen 10' Central Road LRye, NH -03870 Town Hall - Friend. Street Amesbury, MA 01913.

• • Lando W. Zech, Jr.,-Chairman ** Thomas M. Roberts,' Commissioner Commissioner U.S. Nuclear Regulatory Commission-U.S.. Nuclear-Regulatory-Commission Washington, DCJ.20555.

Washington, DC 20555

• • Kenneth C. .. Rogers, Commissioner **Kenneth M. Carri Commissioner U.S. Nuclear Regulatory-Commission U.S. Nuclear Regulatory Commission i

~ Washington,'DC 20555 Washington, DC' 20555

• • James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission ~

Washington, DC 20555 Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERALL l

c n:Traficonte ief,. Nuclear Safety Unit ne Ashburton Place Boston, MA 02108 1 (617) 727-2200 )

o Dated: March 3, 1989 L

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