ML103560752

NRC Staff Response to December 8, 2010 Board Order and Notification Regarding SER Volume 4 Issuance

ML103560752
Person / Time
Site:	06300001
Issue date:	12/22/2010
From:	Jessica Bielecki NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 09-892-HLW-CAB04, RAS 19282, 63-001-HLW, HLW Application Docket, HLW License App 63-001 All CABs, HLW License Application 63-001
Download: ML103560752 (12)

Text

December 22, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

U. S. DEPARTMENT OF ENERGY ) Docket No. 63-001-HLW

)

(High-Level Waste Repository) ) ASLBP No. 09-892-HLW-CAB04

)

NRC STAFF RESPONSE TO DECEMBER 8, 2010 BOARD ORDER AND NOTIFICATION REGARDING SER VOLUME 4 ISSUANCE INTRODUCTION The U.S. Nuclear Regulatory Commission staff (Staff) files this answer in response to the Construction Authorization Board 04 (Board) Order (Addressing Nevadas Motion and Discovery Status), dated December 8, 2010 (unpublished) (Order). The Board directed the Staff to provide a full explanation for (1) the timing of its November 29, 2010, notification regarding the schedule for issuance of Volume 3 of the Safety Evaluation Report (SER) related to Yucca Mountain,1 and (2) why it cannot establish a date for issuance. Id. at 2. The Staffs explanation is provided below.

BACKGROUND On September 30, 2009, the Board issued a case management order pacing Phase I discovery in the above-captioned proceeding with the planned SER schedule. See CAB Case Management Order #2, dated September 30, 2009 (unpublished), at 3. This schedule was based on Staff responses to Board inquiries as to whether the SER would be issued in accordance with the 10 C.F.R. Part 2, Appendix D schedule or serially, and the Staffs 1

NRC Staff Notification Regarding SER Schedule, dated November 29, 2010 (Notification).

anticipated schedule for SER issuance. See id. at 1, 3.2 Phase 1 discovery, which includes all safety, environmental and legal contentions related to the subject matters in SER Volume 1 or 3 began in the fall of 2009, and was initially scheduled to end on November 30, 2010 (or two months after issuance of Volume 3, whichever is later). Id. at 3.

In February, after DOE stated its intent to withdraw its license application (LA), the Board granted a suspension of discovery and stay of the proceeding, pending disposition of DOEs expected motion to withdraw. See Order (Granting Interim Suspension of Discovery), dated February 2, 2010 (unpublished); Order (Granting Stay of Proceeding), dated February 16, 2010 (unpublished). On March 3, 2010, DOE filed its motion to withdraw. U.S. Department of Energys Motion to Withdraw, dated March 3, 2010 (Motion to Withdraw). In June, the Board denied the Motion to Withdraw3 and the Secretary of the Commission invited briefs as to whether the Commission should review, and reverse or uphold, the Boards decision. See Order, dated June 30, 2010 (unpublished). Petitions for review were filed in July 2010.4 Also during this period, the State of Nevada filed a motion requesting, among other 2

The Staff informed the Board that SER Volumes 1 and 3 would be issued in March 2010 and September 2010, respectively, and that the Boards assumption that remaining SER volumes would be issued in December 2010 (Volume 4), October 2011 (Volume 2), and February 2012 (Volume 5) was not unrealistic. See NRC Staff Answer to the CABs July 2, 2009 Order Concerning Scheduling, Dated July 10, 2009 (Staff July 10 Answer); NRC Staff Answer to the CABs July 21, 2009 Order Concerning Serial Case Management, dated July 28, 2009. However, the Staff noted that Volumes 2, 4, and 5 may not be completed according to the Boards estimated schedule. See Differing Views of the NRC Staff to the Response of the State of Nevada to Memorandum and Order dated August 25, 2009, dated September 10, 2009, at 3 n.3. At oral arguments in January and June 2010, the Staff stated that target dates for SER Volumes 1 and 3 were August 2010 and November 2010, respectively. Transcript at 398 (Jan. 27, 2010); Transcript at 328-29 (June 4, 2010). The Staff issued SER Volume 1 in August 2010.

See Letter from Daniel W. Lenehan to Administrative Judges, dated August 23, 2010; NUREG-1949, Safety Evaluation Report Related to Disposal of High-Level Radioactive Wastes in a Geologic Repository at Yucca Mountain, Nevada (Aug. 2010) (ML102350193).

3 U.S. Dept of Energy (High-Level Waste Repository), LBP-10-11, 71 NRC __ (June 29, 2010)

(slip op.) (LBP-10-11).

4 See, e.g., Brief of the State of Nevada in Support of Review and Reversal of the Licensing Boards Decision Denying the Department of Energys Motion to Withdraw its License Application with Prejudice, dated July 9, 2010; U.S. Department of Energys Brief in Support of Review and Reversal of the Boards Ruling on the Motion to Withdraw, dated July 9, 2010; NRC Staff Brief in Response to the Secretary of the Commissions June 30, 2010 Order, dated July 9, 2010.

things, that the Commission direct the Staff to suspend all efforts to complete and issue Volume 3 pending a final Commission decision on DOEs Motion to Withdraw. State of Nevada Petition for Relief with Respect to Possible Issuance of a Partial Safety Evaluation Report for Yucca Mountain, dated June 14, 2010, at 3 (Nevada Petition). The Staff responded, stating, in part, that it would comply with any direction it receives from the Commission regarding issuance of SER volumes. NRC Staff Response to State of Nevada Petition for Relief with Respect to Possible Issuance of Partial Safety Evaluation Report, dated June 24, 2010, at 2 (June 24 Response). In addition, in response to a July 2, 2010, motion by the NRC and Department of Justice, the Federal Court issued an order holding the related proceedings challenging the authority to withdraw the LA in abeyance pending further proceedings before the Nuclear Regulatory Commission. See In re: Aiken County (No. 10-1050) (D.C. Cir. July 28, 2010).5 On October 1, 2010, the Commission began operating under a Continuing Resolution (CR). See Pub. L. 111-242, 124 Stat. 2607 (Sept. 30, 2010).6 In response to an October 7, 2010, motion by Aiken County, joined by the States of Washington and South Carolina requesting, in part, that the Commission direct the Staff to resume its review of the LA,7 the Staff informed the Commission that it had been directed to continue its activities on the Yucca Mountain license application in accordance with the Commissions decisions on the FY 2011 budget . . . during the period of the CR. See NRC Staff Answer to Motion for an Order Restoring Technical Review of the Yucca Mountain License Application, dated October 18, 2010, at 3 (October 18 Answer) (quoting Memorandum from J.E. Dyer, Chief Financial Officer, and R.W. Borchardt, Executive Director of Operations, to the Office Directors and Regional 5

On December 10, 2010, the Court lifted the stay and set an expedited briefing schedule. In re: Aiken County (No. 10-1050) (D.C. Cir. Dec. 10, 2010).

6 See also Pub. L. 111-290, 124 Stat. 3063 (Dec. 4, 2010); Pub. L. 111-317 (Dec. 17, 2010);

H.R. 3082, 111th Cong. (Dec. 22, 2010).

7 Motion for a Commission Order Resorting the Technical Review of the Yucca Mountain License Application, dated October 7, 2010, at 2, 7 (Aiken County Motion).

Administrators, Guidance Under a Fiscal Year 2011 Continuing Resolution, dated October 4, 2010 (ML102770484) (October 4 Memorandum)).

The Commission has received Congressional inquiries regarding the Yucca Mountain proceeding and LA review activities.8 On August 18, 2010, the Secretary of the Commission stated that the Commission was moving with all due haste in arriving at a decision relative to review of LBP-10-11. See Letter from Annette L. Vietti-Cook to Congressman Hastings, dated August 18, 2010 (ML102310231) (August 18 Letter). By October 29, 2010, Chairman Jaczko and Commissioners Ostendorff, Svinicki and Magwood had voted on petitions related to the Motion to Withdraw.9 On November 19, 2010, the Commission received a Congressional inquiry requesting release of a Commission decision on DOEs Motion to Withdraw.10 On November 29, 2010, the Staff filed its Notification indicating that it would not be issuing SER Volume 3 in November and that a revised schedule is indeterminate. On December 8, 2010, the Board directed the Staff to provide a full explanation for (1) the timing of its November 29, 2010, Notification regarding the schedule for issuance of Volume 3 of the SER related to Yucca Mountain, and (2) why it cannot establish a date for issuance. Order at 2.

8 See, e.g., Letter from Congressmen Sensenbrenner, Hastings, Hall, & Barton to Chairman Jaczko, dated October 13, 2010 (ML102880534); Letter from Congressman Hastings to Chairman Jaczko, dated August 17, 2010 (ML102310519); Letter from Annette L. Vietti-Cook to Congressman Sensenbrenner, dated July 30, 2010 (ML102160118); Letters from Annette L. Vietti-Cook to Senators Hewitt & Honeyford, dated July 30, 2010 (ML102160121); Letter from Annette L. Vietti-Cook to Senator Delvin, dated July 30, 2010 (ML102160120).

9 See Letter from Chairman Jaczko to Senator Inhofe, dated November 5, 2010 (ML103120483);

Letter from Commissioner Ostendorff to Senator Inhofe, dated November 4, 2010 (ML103090280); Letter from Commissioner Svinicki to Senator Inhofe, dated November 4, 2010 (ML103090048); Letter from Commissioner Magwood to Senator Inhofe, dated November 5, 2010, available at http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=e70db547-7058-4f1f-aa27-87d80de5f2e9. Commissioner Apostolakis filed his Notice of Recusal from this matter on July 15, 2010.

10 See Letter from Congressmen Hastings, Issa, & Sensenbrenner to Chairman Jaczko, dated November 19, 2010 (ML103400123). The Secretary of the Commission responded, stating that the Commission did not have a completion date for its decision. See Letters from Annette L. Vietti-Cook to Congressmen Hastings, Issa, & Sensenbrenner, dated December 6, 2010 (ML103410010).

DISCUSSION As indicated by the events described in the preceding section, there has been interest in and uncertainty about the future of the Yucca Mountain proceeding. This uncertainty and the commencement of orderly closure activities explain the timing of the November 29, 2010, Notification and why the Staff is currently unable to provide a date for issuance of remaining SER volumes.

Petitions for review of LBP-10-11, the Nevada Petition seeking an order directing the Staff to suspend its work on Volume 3, and the Aiken County Motion seeking an order directing the Staff to resume its review of the LA are currently pending before the Commission. The Commissions resolution of these matters will impact when, or if, the Staff will issue Volume 3 and remaining SER volumes. See, e.g., June 24 Response at 5 (stating that the Staff will not issue any pending SER volumes if the Commission decides to grant the Motion to Withdraw).

Issuance of a Commission decision would enable the Staff to provide the Board with information regarding future issuance dates, if necessary. Accordingly, the Staff decided to await Commission action before filing its Notification on November 29, 2010.

The Staff also previously informed the Board and Commission that budget decisions could affect licensing activities. See October 18 Answer at 4-5; June 24 Response at 6-7; Staff July 10 Answer at 2. In October 2010, when the Commission began operating under a CR, the Staff indicated that it was commencing orderly closure activities that would not preclude future completion of an SER. See October 18 Answer at 4-5. As the Chairman explained in a letter to Congress, the first step of this process is to preserve the staffs work products, and complete and implement a detailed and comprehensive plan for this effort. Letter from Chairman Jaczko to Congressman Sensenbrenner, dated October 27, 2010, encl. at 1 (ML102980673).

Uncertainty regarding whether future appropriations will include funding for Yucca Mountain licensing activities impacts the Staffs ability to provide SER issuance dates, if necessary.

Accordingly, the Staff also decided to await Congressional action before filing its Notification.

The Staff is mindful of, and takes seriously, its commitment to inform the Board of its SER schedule. See, e.g., Transcript at 329 (June 4, 2010); Order (Concerning Serial Case Management), dated July 21, 2009, at 3 (unpublished) (July 21 Order); Staff July 28 Answer at 2; Staff July 10 Answer at 2. Consistent with its commitment to keep the Board informed of its SER schedule, the Staff hereby advises the Board that it is no longer realistic for the Board to assume for case management planning purposes that SER Volume 4 will be issued in December 2010. See July 21 Order at 1; July 28 Answer at 2. Due to commencement of orderly closure, and in the absence of Commission adjudicatory decisions and/or Congressional budget approvals, the Staff will not issue SER Volume 4 in December 2010 and the schedule for issuance of Volume 4 is also indeterminate.

CONCLUSION The timing of the Notification was due to uncertainty regarding, and the decision to await, potential Commission action on the pending adjudicatory matters and Congressional action on the FY 2011 budget. In addition, due to these uncertainties and the commencement of orderly closure, the Staff will not be issuing SER Volume 4 in December 2010. The Staff will provide the Board information regarding the issuance of remaining SER volumes after Commission and Congressional actions.

Respectfully submitted,

/Signed (electronically) by/

Jessica A. Bielecki Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15 D-21 Washington, DC 20555-0001 (301) 415-1391 Jessica.Bielecki@nrc.gov

/Executed in accord with 10 C.F.R. § 2.304(d)/

Daniel W. Lenehan Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15 D-21 Washington, DC 20555-0001 (301) 415-3501 Daniel.Lenehan@nrc.gov Dated at Rockville, Maryland this 22nd day of December, 2010

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of )

)

U. S. DEPARTMENT OF ENERGY ) Docket No. 63-001-HLW

)

(High-Level Waste Repository) ) ASLBP No. 09-892-HLW-CAB04

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF RESPONSE TO DECEMBER 8, 2010 BOARD ORDER AND NOTIFICATION REGARDING SER VOLUME 4 ISSUANCE in the above-captioned proceeding have been served on the following persons this 22nd day of December, 2010, by Electronic Information Exchange.

CAB 04 Thomas S. Moore, Chairman Martin G. Malsch, Esq.

Paul S. Ryerson Egan, Fitzpatrick & Malsch, PLLC Richard E. Wardwell 1750 K Street, N.W. Suite 350 Atomic Safety and Licensing Board Panel Washington, DC 20006 U.S. Nuclear Regulatory Commission E-mail: mmalsch@nuclearlawyer.com Washington, DC 20555-0001 E-mail: tsm2@nrc.gov Brian W. Hembacher, Esq.

psr1@nrc.gov Deputy Attorney General rew@nrc.gov California Attorney Generals Office 300 South Spring Street Office of the Secretary Los Angeles, CA 90013 ATTN: Docketing and Service E-mail: brian.hembacher@doj.ca.gov Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Timothy E. Sullivan, Esq.

Washington, DC 20555 Deputy Attorney General E-mail: HEARINGDOCKET@nrc.gov California Department of Justice 1515 Clay Street. 20th Flr.

Office of Commission Appellate P.O. Box 70550 Adjudication Oakland, CA 94612-0550 ocaamail@nrc.gov E-mail: timothy.sullivan@doj.ca.gov Charles J. Fitzpatrick, Esq. Kevin W. Bell, Esq.

John W. Lawrence, Esq. Senior Staff Counsel Egan, Fitzpatrick, Malsch & Lawrence PLLC California Energy Commission 1777 N.E. Loop 410, Suite 600 1516 9th Street San Antonio, TX 78217 Sacramento, CA 95814 E-mail: cfitzpatrick@nuclearlawyer.com E-mail: kwbell@energy.state.ca.us jlawrence@nuclearlawyer.com

Bryce C. Loveland Martha S. Crosland, Esq.

Jennings Strouss & Salmon, PLC Angela M. Kordyak, Esq.

8330 W. Sahara Avenue, Suite 290 Nicholas P. DiNunzio Las Vegas, NV 89117-8949 James Bennett McRae, Esq.

Email: bloveland@jsslaw.com Sean A. Lev U.S. Department of Energy Alan I. Robbins, Esq. Office of the General Counsel Debra D. Roby, Esq. 1000 Independence Avenue, S.W.

Jennings Strouss & Salmon, PLC Washington, DC 20585 1350 I Street, NW Suite 810 E-mail: martha.crosland@hq.doe.gov Washington, DC 20005-3305 angela.kordyak@hq.doe.gov E-mail: arobbins@jsslaw.com nick.dinunzio@rw.doe.gov droby@jsslaw.com ben.mcrae@hq.doe.gov Sean.Lev@hq.doe.gov Donald J. Silverman, Esq.

Thomas A. Schmutz, Esq. George W. Hellstrom Thomas C. Poindexter, Esq. U.S. Department of Energy Paul J. Zaffuts, Esq. Office of General Counsel Alex S. Polonsky, Esq. 1551 Hillshire Drive Lewis Csedrik, Esq. Las Vegas, NV 89134-6321 Raphael P. Kuyler, Esq. E-Mail: george.hellstrom@ymp.gov Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W. Jeffrey D. VanNiel, Esq.

Washington, DC 20004 530 Farrington Court E-mail: dsilverman@morganlewis.com Las Vegas, NV 89123 tschmutz@morganlewis.com E-mail: nbrjdvn@gmail.com tpoindexter@morganlewis.com pzaffuts@morganlewis.com Susan L. Durbin, Esq.

apolonsky@morganlewis.com Deputy Attorney General lcsedrik@morganlewis.com 1300 I Street rkuyler@morganlewis.com P.O. Box 944255 Sacramento, CA 94244-2550 Malachy R. Murphy, Esq. E-mail: susan.durbin@doj.ca.gov 18160 Cottonwood Rd. #265 Sunriver, OR 97707 Frank A. Putzu E-mail: mrmurphy@chamberscable.com Naval Sea Systems Command Nuclear Propulsion Program Robert M. Andersen 1333 Isaac Hull Avenue, S.E.

Akerman Senterfitt Washington Navy Yard, Building 197 801 Pennsylvania Avenue N.W., Suite 600 Washington, DC 20376 Washington, DC 20004 USA E-mail: frank.putzu@navy.mil E-mail: robert.andersen@akerman.com

John M. Peebles Gregory L. James Darcie L. Houck 712 Owens Gorge Road Fredericks Peebles & Morgan LLP HC 79, Box 1I 1001 Second Street Mammoth Lakes, California 93546 Sacramento, CA 95814 Email: gljames@earthlink.net E-mail: jpeebles@ndnlaw.com dhouck@ndnlaw.com Arthur J. Harrington Godfrey & Kahn, S.C.

Shane Thin Elk 780 N. Water Street Fredericks Peebles & Morgan, LLP Milwaukee, WI 53202 3610 North 163rd Plaza E-mail: aharring@gklaw.com Omaha, Nebraska 68116 E-mail: sthinelk@ndnlaw.com Steven A. Heinzen Douglas M. Poland Ellen C. Ginsberg Hannah L. Renfro Michael A. Bauser Godfrey & Kahn, S.C.

Anne W. Cottingham One East Main Street, Suite 500 Nuclear Energy Institute, Inc. P.O. Box 2719 1776 I Street, N.W., Suite 400 Madison, WI 53701-2719 Washington, DC 20006 E-mail: sheinzen@gklaw.com E-mail: ecg@nei.org dpoland@gklaw.com mab@nei.org hrenfro@gklaw.com awc@nei.org Robert F. List, Esq.

David A. Repka Jennifer A. Gores, Esq.

William A. Horin Armstrong Teasdale LLP Rachel Miras-Wilson 1975 Village Center Circle, Suite 140 Winston & Strawn LLP Las Vegas, NV 89134-6237 1700 K Street N.W. E-mail: rlist@armstrongteasdale.com Washington, DC 20006 jgores@armstrongteasdale.com E-mail: drepka@winston.com whorin@winston.com Diane Curran rwilson@winston.com Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

Jay E. Silberg 1726 M Street N.W., Suite 600 Timothy J.V. Walsh Washington, DC 20036 Pillsbury Winthrop Shaw Pittman LLP E-mail: dcurran@harmoncurran.com 2300 N Street, N.W.

Washington, DC 20037-1122 Ian Zabarte, Board Member E-mail: jay.silberg@pillsburylaw.com Native Community Action Council timothy.walsh@pillsburylaw.com P.O. Box 140 Baker, NV 89311 E-mail: mrizabarte@gmail.com

Richard Sears Michael L. Dunning District Attorney No. 5489 Andrew A. Fitz White Pine County District Attorneys Office H. Lee Overton 801 Clark Street, Suite 3 Jonathan C. Thompson Ely, NV 89301 Todd R. Bowers E-mail: rwsears@wpcda.org State of Washington Office of the Attorney General Donald P. Irwin P.O. Box 40117 Michael R. Shebelskie Olympia, WA 98504-0117 Kelly L. Faglioni E-mail: MichaelD@atg.wa.gov Hunton & Williams LLP AndyF@atg.wa.gov Riverfront Plaza, East Tower LeeO1@atg.wa.gov 951 East Byrd Street JonaT@atg.wa.gov Richmond, VA 23219-4074 toddb@atg.wa.gov E-mail: dirwin@hunton.com mshebelskie@hunton.com Thomas R. Gottshall kfaglioni@hunton.com S. Ross Shealy Haynesworth Sinkler Boyd, PA Curtis G. Berkey 1201 Main Street, Suite 2200 Scott W. Williams Post Office Box 11889 Rovianne A. Leigh Columbia, SC 29211-1889 Alexander, Berkey, Williams, & Weathers E-mail: tgottshall@hsblawfirm.com LLP rshealy@hsblawfirm.com 2030 Addison Street, Suite 410 Berkley, CA 94704 Connie Simkins E-mail: cberkey@abwwlaw.com P.O. Box 1068 swilliams@abwwlaw.com Caliente, Nevada 89008 rleigh@abwwlaw.com E-mail: jcciac@co.lincoln.nv.us Bret O. Whipple Kenneth P. Woodington 1100 South Tenth Street Davidson & Lindemann, P.A.

Las Vegas, Nevada 89104 1611 Devonshire Drive E-mail: bretwhipple@nomademail.com P.O. Box 8568 Columbia, SC 29202 Gregory Barlow E-mail: kwoodington@dml-law.com P.O. Box 60 Pioche, Nevada 89043 Dr. Mike Baughman E-mail: lcda@lcturbonet.com Intertech Services Corporation P.O. Box 2008 Carson City, Nevada 89702 E-mail: bigboff@aol.com

Michael Berger Philip R. Mahowald Robert S. Hanna Prairie Island Indian Community Attorney for the County of Inyo 5636 Sturgeon Lake Road 233 East Carrillo Street Suite B Welch, MN 55089 Santa Barbara, California 93101 E-mail: pmahowald@piic.org E-mail: mberger@bsglaw.net rshanna@bsglaw.net James Bradford Ramsay National Association of Regulatory Utility Don L. Keskey Commissioners Public Law Resource Center PLLC 1101 Vermont Avenue NW, Suite 200 505 N. Capitol Avenue Washington, DC 20005 Lansing, MI 48933 E-mail: jramsay@naruc.org E-mail: donkeskey@publiclawresourcenter.com

/Signed (electronically) by/

Jessica A. Bielecki Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1391 Jessica.Bielecki@nrc.gov