ML22230A078
| ML22230A078 | |
| Person / Time | |
|---|---|
| Issue date: | 12/21/1977 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M771221 | |
| Download: ML22230A078 (24) | |
Text
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC SESSION Policy Session 77-60 SECY-A-77 State of Illinois
- v.
NRC and Nuclear Engineering Corp., Inc.!
No. 77C 4190, N.D. Ill. (Litigation in Sheffield.)
Place -
Washington, D. C.
Date -
Wednesday, 21 December 1977 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 20001 NATIONWIDE COVERAGE -DAILY Pages 1 -
21 Telephone :
(202 ) 347-3700
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DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on *December 21., 1977 in the Commission's offices at 1717 H Street, N. t~./-\>Jashington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9. 103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.
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25 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:MMISSION PUBLIC SESSION Policy Session 77-60 SECY-A-77-78
- State of Illinois
- v.
NRC and Nuclear Engineering Corp., Inc.,
1 No. 77C: 419.0., *:R~D.i.; Ill... * (Li t.iga t;.ion.,:in Sheffield.)
Room 1130 1717 H Street, N.W.
Washington, D.C.
Wednesday, 21 December 1977 Hearing in the above-entitled matter was convened at 1:40 p.m., pursuant to notice, JOSEPH HENDRIE, *chairm~n, Presiding.
PRESENT:
JOSEPH HENDRIE, Chairman RICHARD KENNEDY, Commissioner VICTOR GILINSKY, Commissioner PETER BRADFORD, Commissioner
- s. Eilperin
- w. Bishop
- s. Trubatch
- w. Dircks K. Pedersen K. Dragonette R. Fonner
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P R O C E E D I N G S CHAIR}1AN HENDRIE: ;_I have 'a* riot ion :that Pet:er *Bradfdr will be a few minutes late, but I hope not over five or ten.
And I think we ought to go ahead and kick off on this matter.
Let's see, Steve, this is your lead.
MR.EILPERIN: Yes.
GHAIID~ <HENDRIE: * -In th:e *.It!a tter *.of the_ ::~ta te q{.,_,Ju -_ 3 Illino~s.v.ensus,the -Nuclear *,R,egu1ator:;v Commission.
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MR. EILPERIN: That is correct.
I want to give the Commission-a short briefing on this lawsuit, and suggest to the Commission the possibility that we should seek a settlement in this suit.
Basically what has happened here is that the State of Illinois, the Attorney General has sued both.the Nuclear Regulatory Commission and Nuclear Engineering Corporation over matters pertaining to the Sheffield Low Level Waste Disposal Site.
The basic claim of the State of Illinois is that the company.. back in 1968 submitted to *the Commission its application to renew its license, which was going to expire shortly thereafter.
And that in the intervening nine-year oeriod of time, the Commission has not yet taken final action on that renewal application.
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Basically, from that set of facts the State of Illinois has two claims; One, nine years is enough, and the Commission shouJdbe complelled to act.
That is called a mandamus action.
I was just explaining to Commissioner Gilinsky, mandamus is a term which means that the Court grabs you by the scruff of your neck and says, do it. That is basicallv what mandamus is.
CH.AIRMAN *HENDRIE:*
.. Good, I I m glad you inserted that explanation for my benefit, as well.
(Laughter.)
COMMISSIONER KENNEDY:
It is not a very good translation from the Latin, however.
(Laughter.)
MR. EILPERIN: No, I guess maybe, leads one by.the hand.
And then the second aspect -- well, the first aspect is that the Commission should be compelled to act upon the license.
It doesn't tell the Commission how it should act.
It is an action just saying, do it, pass u~on it.
The second claim is that,because the low level waste disposal site has been operating for all these years without the Commission passing upon the renewal application, that that has been tantamount to a denial of all of the statutory rights to which one would normally be entitled, had
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the Commission acted, the most pertinent of which is NEPA.
In other words, the claim is since this would have been a major federal action and would1have had to have don~
an impact statement; the Nuclear Regulatory Commission,,
by just sitting around and not acting, you have basically
.denied us our rightsjto have an impact statement done.
The complaint also seeks to invalidate what is called the Timely Renewal Section about regulations.
That is a provision which is authorized by the Administrative Procedure Act, and is basically intended to protect companies throughout their dealings with government.
And basically that provision says if a company has a license and submits a renewal application for that license to a public agency, the company can keep operating until the government agency passes it.
That has governmentwide effect.
We have analyzed the complaint,and Clifford Smith has given the Commission a ground ~a~er a while back on the facts.
Basically, we think that the State of Illinois has the better argument in suggesting that.nine years is time enough for the Commission to act, and we are not exceedingly sanguine about prevailing on that sort of complaint.
What we have consequently suggested is that we should attempt to engage the State of Illinois in discussions
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seeking an amicable settlement.
As we see it, the State of Illinois basically wants us to do an impact statement regarding both this current 20-acre site as it now exists, as well as the company's pending application to expand their site for an additional 168 acres.
The current 20-acre sit is fast being used up, and the company has before us an application to expand the*ir operations accordingly.
Back in December, the Staff published in the Federal Register, our intention to do an imnact statement on CHAIR..TvIA.N HENDRIE: This December, or last?
MR. EILPERIN: This december.
So we have already told the world that in fact we are going to do an impact statement. The company has submitted its*; Environmental Report to us and we are going to do an impact statement on the application as it is presently before us.
That, I think there is no quarrel about,and it would at least be one aspect of what the State of Illinois apparently seeks in a lawsuit.
The other aspect is what to do about the immediate problem at hand, which is the fact that the site is fast running out of space, and it will run out of space unless ther
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25 are further trenches authorized in the near future.
Those trenches cannot be -- those trenches will be needed, as we understand it, prior to the expected time of completion of our impact statement.
If I am correct, I think we are 'j.ust 6
seeking a contractor to work on ~he impact stab~ment for us.
It is probably a good year away.
MR.BISHOP: We are shooting for something like eight months or nine months?
year.
MS. DRAGONETTE:
In July for draft.
MR. EILPERIN:
For draft.
MR. BISHOP:
The final will be better part of a MR. EILPERIN:
So, we are looking about about another year until we have completed an impact statement on both the current operations as well as the expansion to another 168 acres.
COJYIMISSIONER GILINSKY:
Is this impact statement going to cover current operations?
MR. BISHOP:
Yes.
CO}'.L.1\1ISSIONER GILINSKY:
On the 20-acre site?
MS. DRAGONETTE:
Yes.
Full range of options.
Just closing it down to let them finish filling up the 20 acres, to a se~ies of expansions.
There is a couple of different types of land that they are expanding on, one which has been zoned for
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25 waste, some which hadn't.
So a full range of options.
CHAIRllilAN HENDRIE: Would it cover this proposed expansion of the site?
~1S. DR~GONETTE:
Yes.
7 In stages, in additional to that.
It is not just -
COMMISSIONER GILINSKY:
Is that what was announced in the December --
MR. EILPERIN:
Yes, that was announced in the Federal Register.
MS. DRAGONETTE: The announcement said we will do the impact statement on'the renewal and on the proposed expansion.
It did not go into all the alternative~.
But it wa for renewal and expansion.
COMMISSIONER GILINSKY:
I see.
MR.EILPERIN:
So that is sort of looking about a year ahead.
And as I understand at sometime within the* next month or so,the presently authorized activities on:the site, namely the uses of two particular trenches, 14 and 14-A, one of them is filled already, and the other one \.vill be filled within the next month or so.
So that at that point there is no longer any authorization to the company to bury lmv level waste.
COMMISSIONER GILINSKY: Do we specifically
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authorize each trench1 MR. EILPERIN: Yes, we have.
In this instance, Amendment No. 11 which specifically authorized the two trenches involved here.
I think it was partly because those trenches utilized a different method than had earlier been authorized.
It is a compact and fill method.
Apparently the land was running out on high level ground, so it was a question of utilizing the lower level ground by compacting it and filling it. It required a license amendment and the authori~*
zation runs only to those two trenches right now.
COMISSIONER BRADFORD:
Who sends stuff to Sheffield?
MR. EILPERIN: It is basically -- well, it is about 60 percent power reactors and the remainder is big hospitals, places such as that.
Primarily the North Central States, Illinois --
(Inaudible.) -- Nuclear Power, so it is about 70 percent local--* (Inaudible.)
MR. BISHOP:
Just less than half of it is from Illinois, proper.
COMMISSIONER BRZ-\DFORD: Ivhat sorts of volume go in the trench?
MR. EILPERIN:
It is a total of 2,600,000 cubi9 feet, I know, since the site was started.
MR. TRUBATCH:
Trench 15 itself will take 450,000
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cubic feet of waste.
It is a 900,000 cubic foot hole.
COMMISSIONER KENNEDY:
I didn't hear you.
MR. TRUBATCH: I'm sorry. Trench 15, the one that is under review now, will take 450,000 cubic feet of waste.
CO:Mr1ISSIONER BRADFORD:
How many cubic feet of low level waste does, li.a power plant put out in a year?
MS. DR~GONNETTE:
22,000.
MR. EILPERIN:
As I understand it, each of the trenches now under review are expected to hold something like a ten-month capacity of the materials generated in that area.
COM,.'v1ISSIONER GILINSKY: How many trenches --
MR. EILPERIN: Well there is an application pending for five additioRal trenches.
The Staff so far has been proceeding trench-by-trench, so that as of now there is only one additional trench presently under review.
COMMISSIONER GILINSKY:
Did we individually review the trenches 1 through 13?
MR. BISHOP:
It was done under the original licensing.
COMMISSIONER BRADFORD: All 13 trenches under the license that expired in '68?
MR. BISHOP:
Under the Timely Renewal Act --
COMMISSIONER BRADFORD:
They were all done under the Timely Renewal Act?
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25 10 MR. EILPERIN:
That's right, the digging post-dated 1968 as well.
COMMISSIONER KENNEDY: But they are authorized under individual licenses?
MR. EILPERIN: That's right.
COMMISSIONER KENNEDY: Did it actually say 13 trenches?
MR. TRUBATCH:
(Nodding negatively.)
Hhat was specified originally was called a curie density, a certain number of curies per cubic foot.
And a certain qualification on the trench with relation to water tables.
COMMISSIONER GILINSKY:
Leaving aside the nine-year period and so on, why do they need authority for these additional trenches?
I understand 14 and 14-A go into a different category.
Do these others also go into that category?
MR. TRUBATCH: Yes, they do.
CHAIRMAN HENDRIE: What is the difference?
MR. BISHOP:
The compact and fill technology means bringing in extra earth from somewheres else.
CHAIRMAN HENDRIE: Okay.
If they weren't compacting and filling they could presumably go ahead with work on 14, 14-A and 15 under the original licensing without a by your leave.
But the fact
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25 11 that they have changed the construction detail, presumably an improvement ". - -
MR. BISHOP:
That's right.
Or the same.
CHAIRMAt:-J HENDRIE:
Or the same for MR.BISHOP: But it is a different construction technique, and therefore we wanted to review it separately.
CHAI3.1'1AN HENDRIE:
Okay.
COMMISSIONER GILINSKY:
Why do vou think it is equal to or better?
MR. BISHOP:
I am a little bit over my head in terms of technical expertise in that.
But our hydrogeologists tell us that preparing the earth carefully by com~acting it gives a reasonable consistency which is predictable, and therefore it is as good or even better than the original style.
It is what you do in building up a base for a road, in any case.
COMJ\JlISSIONER KENlJEDY: Or the base of a dam.
MR. BISHOP:
Or the base of a dam.
MR. EILPERIN:
So as matter stand now, the company has an application before us in a sense it has had an application before us since 1968.
We are obligated by our Federal Register Notice *to*
do an impact statement, and we are going to do that. That will take approximately a year.
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25 12 And one of the immediate questions is, what happens to the Sheffield site during that time period once they fill up the presently-authorized trench.
What we have suggested as a possible settlement to this suit, is that the Commission treat the request:*.for additional trenches as an exemption from the requirements of Part 30.
Part 30 makes specific reference to procedures by which, if you would otherwise have to do an impact statement, and if you could not otherwise begin construction, you could come to the Commission and say, look, we don't think we are going to foreclose any alternatives, we don't think we are going to ;significantly affect the environment, let us keep working and keep operating as you go about preparing the impact statement.
We are suggesting that that procedure be followed here, which would.have the plus ~f the Commission taking a look for the first time now, rather than somewhat later on, at the environmental impact of these upcoming trenches and analyzing them, looking into whether or not alternatives wouldbe foreclosed and at least doing that sort of environ-mental assessment at this stage.
COM!.USSION GILINSKY:
Well, some advantage to looking at it now -- let's see, you lose nothing by looking at it later if you are not going to put anything into the trenches?
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25 13 MR.EILPERIN:
That's right.
I mean, if you are content not to have any further burial at Sheffield, that is right.
I mean, the Staff could deny the exemption and everything could cease.
The effect of that probably -- and this is sornethin for the Staff to judge -- the effect of that probably would just mean that the low-level waste from that North Central region of states would have :*.to be transported a greater distance to burials near Richland, 1'1ashington, or 'I3eatty;)
Nevada.
So that is the downside to just stopping all activities at the Sheffield site.
COMMISSIONER GILINSKY:
I didn I t follow you *,
when you were saying there was some advantage to looking at the environmental impact.now.
MR. EILPERIN: Well so far we have a complaint that says, "Look Commission, you have now looked at the impact of this, you have been.violating NEPA from day 1 of 19 7 0
- II COMMISSIONER GILINSKY: Correct.
MR. EILPERIN:
The advantage we gain by looking at the environmental impact now --
COMMISSIONER GILINSKY: For that one trench.
MR.EILPERIN: -- for that one trench, is that we have at least gone some few steps in the direction of looking
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25 14 at the environmental impact.
COMI'-1:ISSIONER GILINSKY:
Now what did we do when we authorized 14 and 14-A?
those?
Did we not look at the environmental impact of MR. BISHOP:
I assume we granted an exemption.
MS. DRAGONETTE:
Normal review of the application includes looking at things such as what the effluent release is, or ground water migration at the boundary might be, and these types of things.
It was not done in the NEPA format or in a formal environmental impact statement, but the hydrologists, geologists, seismologogy, geotechnical engineers and NRR reviewed the application and the procedures and how they plan to conduct business --
COM1USSIONER GILINSKY: When was that done?
MS. DRAGONETTE:
That was done during, say 1976.
COMMISSIONER GILINSKY: And was.a negative declaration filed?
MS. DRAGONETTE: No, because this was for additional activities -- well, Bob Fonner is our ELD represen-tative -- the authorization for trenches 14 and 14-A were for,activities within the original licensed 20 acres.
And I think the Staff and legal view at the time was that it did not require an impact statement or a negative declaration
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15 be made.
MR. FONNER:
At the time, based upon a review by the NRR scientists, it was felt that there was no significant impact on the environment from the use of trenches 14 and 14-A, and therefore under Part 51, neither an EIS nor a negative declaration was required.
I think that would still be our position today, but for the fact of the suit in Illinois, which indicates, as Mr. Eilperin has been saying, a better course of discretion might be to do the mini-review under the exemption regulation.
CO.'YIJVIISSIONER GILINSKY:
What does the negative declaration say?
Doesn't that say there has been significant impact?
MR. FONNER:
Yes, it does in a sense, but it is a much more exte.nsive review.
It practicaly is the scale of a full environmental impact statement less some of the specific statutory requirements, such as cost-benefit analysis and analysis o5 alternatives.
COMMISSIONER GILINSKY: Wait a minute.
A negative declaration can't be comparable MR. FONNER:
It is.
In its scope it frequently almost approaches the size of an impact statement in practice.
COMMISSIONER BRADFORD:
Did I just understand you to say that it would still be your conclusion today,, that n*o
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25 16 statement *.were.riecessary,if the suit hadn't been filed; that if the suit hadn't beeri filed
~1R. FONNER:
As far as trench 15 is concerned.
Yes, sir, not as far as the renewal of the license in total and the amendment to expand the acreage.
COI~~ISSIONER BRADFORD:
Oh, I see.
COMMISSIONER KENNEDY: That is a trench within the existing licensed 20 acies?
MR. FONNER:
Right.
COMi'-1:ISSIONER GILINSKY: Could I ask why this thing was not taken up at some earlier point?
I mean, was this simply left to lie there?
Or, was this a deliberate decision for some reason or another?
MR.FONNER: Are1you asking me, sir?
COMMISSIONER GILINSKY: Well I am asking anybody who knows the* anmver.
rrn. FONNER:*
Maybe I could answer it if I knew what part you were talking about.
COM.MISSIONER KENNEDY:
You mean the renewal?
COMMISSIONER GILINSKY: Yes, timely renewal.
Why was that not acted upon?
MR. BISHOP:
I have the delightful position of saying it was on somebody else's "watch."
(Laughter.)
CHAIRMAN HENDRIE:
I have been trying that lately,
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right.
(Laughter.)
MR.BISHOP:
It doesn't help a great deal, :that's 17 In the Staff paper that was sent down to you, there was a ahronology of the events as well as a tabular format, showing the history.
CHAIR-."1Al""\J HENDRIE:
There is a period in there of about five years where it remarks that there was a correspon-dence, but not much else seems to have happened.
MR. BISHOP:
I think the bottom line reason for it was given on the far right; it was a low-priority, it was just one of many materials licenses, no problems had been identified, the 'entire policy was under review, and it was given exactly a fraction, a very small fraction of one individual's time.
And I think that is probably the fundament 1 reason.
That was.a conscious decision ort the nart of th~
old AEC in terms of giving resources to this particular licensing action as opposed to licensing reactors and other major actions.
COM.1'-USSIONER BRADFORD: Have we '.got many others that this can happeri to?
CHAIRMAN HENDRIE:
Vic wanted a list of the COMMISSIONER GILINSKY: I think Commissioner Kennedy
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25 18 wanted that.
CHAIR~AN HENDRIE: Oh, you wanted a list.
COMMISSIONER KENNEDY:
That's right.
COMivIISSIONER BRADFORD: I want to see it, too.
CHAIRMAN HENDRIE: I hope it doesn't turn out to be something like -- you know.
COMMISSIONER BRADFORD:
I didn't realize that included these type of facilities.
MR.. BISHOP:.. That ~as the list you *asked for yesterd y?
CH.AIRMA.l~ HENDRIE:
Yes.
MR. DIRCKS:
It includes some reactors, too.
. COM.MISSIONER,KENNEDY:..
Each day a new one.
COMMISSIONER GILINSKY: Except reactors all have impact statements to them, don't they?
CHAIRMAN HENDRIE: Do they?
MR. DIRCKS:
We will know better when we see the list.
I think we have some (Laughter. )
MR. EILPERIN:
I think there are a number of reasons why _the better part of discretion would be to try to settle the case rather than to manfully say that nine years was not sufficient for us to decide this matter, and that since 1970 we were not obligated to~- :(Inaudible.f*-~
So.that is basically what we are suggesting, that the Commission give us authority to use the good offices of
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25 the Department of Jusice and contact the State of Illinois and see whe.ther or not some sort of an amicable settlement can be arranged along these lines.
COM.MISSIONER KENNEDY:
Okav with me.
COMMISSIONER BRADFORD:
I would certainly not object to that.
19 CHAIRT\*1AN HENDRIE:
I would be interested in what we would say to support a nine-year licensing time.
COMMISSIONER KENNEDY:
Maybe they could send us their brief on that.
I really would like to read it, too.
COMMISSIONER BRADFORD:
Is there any reason to think the state would not be interested --
(Inaudible.)
MR. EILPERIN: Well I 1m not -- one problem is that I am not sure what the state is interested in.
So I am not sure how easy it will be to settle the suit.
If -the state is interested in closing down the Sheffield site, and if that is what they want to do, it may not be very simple to settle.
There was just a Congressional delegation tour and hearing.tramping around Sheffield in Morris.
I did read Attorney General Scott's prepared statement and it basically talked in terms of unconscionable delay and the need for an impact statement.rt didn't specifically state --
COMMISSIONER KENNEDY:
Didn't Senator Percy say, grand idea?
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25 20 MR. EILPERIN:
I didn't read Senator Percy, but CHAIR.MAl"\J HENDRIE: Well let's see.
This is --
it circ~lated to us in the beginning as a consent calendar item.
I have been holding mine for--
MR. CHILK: You have been holding yours, and CoITu.~issioner Gilinsky has been holding his, and it was his office among.others that requested a discussion on it?
CHAI Ri.'1AN HENDRI:E :
Do you want to hold and conside and then do the paper?
go ahead By the_ way, would it be 1*egal and proper just to MR. CHILK: You could take a vote right now.
CHAIRMAN HENDRIE: _::.. or whatever way one wanted
- to hold it. I don't want to press a vote.
COMMISSIONER G*ILINSKY:
The vote is on what?
CHl\IRMAN HENDRIE: Just on the proposition bf the General Counsel, to see if *we can nego_tiate a settlement*
with the State of Illinois, rather than leave us trying to defend this nine-year hiatus, the reasons for which I under-stand, but which are certainly not going to be viewed very cheerfully by the District Court that says, you know, for pity sakes, nine years -- why not forever -- why bother to license.
So I recommend that. So moved.,
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9 10 l l 12 13 14 15 16 17 18 19 20 21 21 Steve, you have got our position.
I will be interested to see what the settlement possibilities are~
MR. EILPERIN:
Well we will definitely give *the Commission the settlement to pass upon before any action, if we can arrange one.
CHAIID1AN HENDRIE: Very good.
1:--vell, thank you very much.
(Whereupon, at 2:05, the hearing in the above-entitled matter was adjourned.)