ML20217P156

Nuclear Regulatory Commission Issuances for July 1999.Pages 1-65

ML20217P156
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Issue date:	09/30/1999
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NUREG-0750, NUREG-0750-V50-N01, NUDOCS 9910290236
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NUREG-0750 Vol. 50, No.1 Pages 1-65 NUCLEAR REGULATORY-COMMISSION.lSSUANCES July 1999 g

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-4 Available from Superintendent of Documents U.S. Government Printing Office RO. Box 37082 Washington, DC 20402-9328 A year's s' ubscription consists of 12 softbcund issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication are available from National Technicallnformation Service ~

Springfield, VA 22161-Errors in this publication may be reported to the

- Office of the Chief Information Officer .

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

.(301-415-6844) ,

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NUREG-0750 Vol. 50, No.1 Pages 1 -65 NUCLEAR REGULATORY COMMISSION ISSUANCES July 1999 This report includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' I Decis'.ons (DD), and the Decisions on Petitions for Rulemaking (DPRM)

The summaries and he4dnotes preceding the opinions reported herein are not to be dee:ned a part of those opinions or have any independent legal signdicance.

.U.S. N~UCLEAR REGULAT'O Y CQMMISSION '. '

Prepared by the  ;

Office of the Chief information Officer i U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844) 1 1

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'A, s l COMMISSIONERS

. Greta J. Dicus, Chairman

• Nils J. Diaz l

- Edward McGaffigan,~Jr. 1 Jeffrey S. Merrifield l i

G. Paul Bollwerk lil, Chic 4 Administrative Judge Atomic Safety & Ucensing Board Panel

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' *Ms Dieus began serving as Chairman on July 1,1999.

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1 CONTENTS Issuances of the Nuclear Regulatory Commission DUQUESNE LIGITT COMPANY and FIRSTENERGY NUCLEAR OPERATING COMPANY and PENNSYLVANIA POWER COMPANY (Beaver Valley Power Station, Units 1 and 2)

Dockets 50-334-LT, 50-412-LT (License Nos. DPR-66, F'F-73)

MEMORANDUM AND ORDER, CLI 99-23, July 23,1999 . . .. 21 HYDRO RESOURCES, INC.

(2929 Coors Road. Suite 101, Albuquerque, NM 87120) 4 Docket 40-8568-ML 1 MEMORANDUM AND ORDER, CL1-99-22, July 23,1999 . . . .. 3 I I

INIT.RNATIONAL URANIUM (USA) CORPORATION f (Request for Materials License Amendnat) i Dockets 40-8681-MLA-5,40-8681-MLA-6 ORDER, CLI-99-21, July 7,1999 .. .. . ... ... . 1 l l

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Issuances of the Atomic Safety and Licensing Boards CAROLINA IOWER & LIGHT COMPANY (Shearon Hanis Nuclear Power Plant)

Da;Let 50-400-LA (ASLBP No. 99-762-02-LA)

MEMORANDUM AND ORDER, LBP-99-25, July 12,1999 . 25 PRIVATE FUEL STORAGE, L.L.C.

(Independent Spent Fuel Storage Installation)

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

MEMORANDUM AND ORDER, LBP-99-26, July 27,1999 . . . . . . . . . 42 YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

Docket 50-029-LA-R (ASLBP No. 99-754-01-LA-R)

(License Termination Plan)

MEMORANDUM AND ORDER, LBP-99-27, July 28,1999 . . . 45 ili

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Issuance of Director's Decision

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1 NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 1)

Docket 50-245 (License No. DPR-21)

HNAL DIRECIDR'S DECISION UNDER 10 C.ER. 5 2.2%, {

DD-99-9, July 27,1999. . . ... .......... ... .. .... 59' l

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Cite as 50 NRC 1 (1999) CLl-99-21 UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Greta Joy Dicus, Chairman -. .,

Nils J. Diaz Edward McGaffigan, Jr.

Jeffrey S. Merrifield in the Matter of Docket Nos. 40-8681-MLA-5 40-8681-MLA-6 INTlRNATIONAL URANIUM (USA)

CORPORATION (Request for Materials License Amendment) July 7,1999

-In the int: rest of minimizing repetitious decisions by the Commission and pleadings by the parties, and repetitious lawsuits in the court of appeals, the Commission places in abeyance Envirocare's appeal of its dismissal from two separate Subpart L proceedings. Envirocare's dismissal from these proceedings was based upon its lack of standing as a mere " competitor" of a licensee. The Commission has already aflirmed Envirocare's dismissal on the same ground from two earlier proceedings. The Commission now holds Envirocare's latest appeals in abeyance, pending resolution of federal court litigation on Envirocare's standing.

ORDER Envirocare of Utah, Inc. ("Envirocare") has appealed its dismissal from two separate Subpart L proceedings, both involving license amendment requests made by the International Uranium (USA) Corporation ("IUSA"). See LBP-99-11, 49 NRC 153 (1999); LBP-99-20, 49 NRC 429 (1999). In both proceedings, the Presiding Officer found that Envirocare's asserted " competitor" injury does not fall within the zone of interests of the Atomic Energy Act or the National 1

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' Enviromnental Policy Act. Last year, on the same ground, the Commission af-firmed the dismissal of Envirocare from two other license amendment proceedings.

See Quivira Mir.ing Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI 'll,48 NRC 1 (1998); International Uranium (USA) Corp. (Receipt of Material from Tonawanda, New York), CLI-98-23, 48 NRC 259 (1998). Envirocare has i sought judicial review of the Commission's decisions in Quivira and 1 USA. See Envirocare v. NRC, Nos. 98-1426 & 98-1$92 (D.C. Cir., consolidated Jan.12,

.1999).

Envirocants latest appeals acknowledge the Commission's stance on competitor standing. Envirocare seeks only to preserve the opportunity to participate in the IUSA license amer.dment requests in the event that Envirocare wins its federal court appeal However, because the competitor standing issues are the same j here as in Quivira and IUSA, the Commission believes that in the interest of minimizing repetitious decisions by the Commission and pleadings by Envirocan:,

IUSA, and the NRC Staff, and repetitious lawsuits in the court of appeals, the best course is to hold Envirocare'i current appeals in abeyance, pending the outcome of Envirocare's petition for judicial review in the D.C. Circuit. Similarly, we would expect that the Presiding OfTicer will hold .in abeyance future hearing requests of Envirocare, if any, that rest solely on Envirocan:'s interest as an industry competitor.

Accordingly, Envirocare's appeals of LBP-99-il and LBP-99-20 an: hereby held in abeyance pending resolution of the federal court litigation on Envirocare's standing.

IT IS SO ORDERED.

For the Commissioni ANNE'ITE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 7th day of July 1999.

'I Conunissioner Diaz was not available for the attiriranon of tNa order. If he had been present. he would have approved the Order 2

Cite as 50 NRC 3 (1999) CLI-99-22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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COMMISSIONERS:

Greta Joy Dicus, Chairman Nils J. Diaz Edward. McGaffigan, Jr.

Jeffrey S. Merrifield in the Matter of Docket No. 40-8968-ML HYDRO RESOURCES, INC.

(2929 Coors Road, Suite 101, l

Albuquerque, NM 87120) July 23,1999 Dis proceeding concerns a materials license that authorizes Hydro Resources, Inc. ("HRl"), to conduct an in situ leach uranium mining and milling operation in Church Rock and Crownpoint, New Mexico, pursuant to 10 C.ER. Part 40. In this Decisica, the Commission considers petitions for review of four panial initial decisions issued by the Presiding Officer in this proceeding: LBP-991 (Waste Disposal Issues),49 NRC 29 (1999); LBP-99-9 (Historic Pmservation),49 NRC 136 (1999); LBP-99-10 (Performance-Based Licensing),49 NRC 145 (1999); and LBP-9913 (Financial Assurance),49 NRC 233 (1999). He Commission partially I allirms LBP-99-1, LBP-99-9, and LBP-99-10. He Commission requests that the parties submit briefs on LBP-99-13.

' NATIONAL lilSf0RIC PRESERVATION ACT: REQUIREMENTS De National Historic Preservation Act cor.tains no prohibition against taking a " phased review" of a propeny.

NATIONAL ENVIRONMENTAL POLICY ACT: REQUIREMENTS A Supplemental Environmental Impact Statement is not necessary every time new infonnation comes to light alter the EIS is finalized. As a general matter, 3

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y the agency must consider whether the new information is significant enough to require preparation of r supplement. The new information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.

NATIVE AMERICAN GRAVES PR(YI'ECTION AND REPATRIATION AC'n REQUIREMENTS l Under the Native American Graves Protection and Repatriation Act (NAGPRA), I consultation and concurrence of the alTected tribe take place prior to the intentional j removal from or excavadon of Native American cultural items from federal or uibal lands. Where no intentional removal or excavation of cultural items is planned,'the applicable rei;ulatory provision _ is 43 C.ER. I10.4, which applies

.to inadvertent discoveries of human remains, funerary objects, sacred objects, or objects of cultural patrimony. He regulations generally do not require prior consultation or concurrence with the affected tribe for unintentional activities.

MATERIALS LICENSE UNDER PART 40: PERFORMANCE-BASED LICENSING .

He use of performance-based licensing concepts in a Part 40 license does not reverse any long-established Commission policy on the use of such regulatory

' mechanisms. Indeed, it is consistent with the Commission's approach to reactor licensing in 10 C.ER. 550.59. It does not run counter to any agency mandate contained in the Atomic Energy Act or any established Commission regulation.

If anything, the use of such license conditions is entirely consistent with the Commission's efforts over the years to allow reasonable flexibility in its regulatory framework. It is simply an additional means through which the NRC can decrease the administrative burden of regulata x ' ile ensuring the continued protection of public health and safety.

MEMORANDUM AND ORDER INTRODUCTION

%is Decision stems from petitions for review of four partial initial decisions by the Presiding Officer in this Subpart L proceeding. Intervenors Eastern Navajo Din 6 Against Uranium Mining ("ENDAUM"), Southwest Research and Information Center ("SRIC"), Marilyn Morris, and Grxe Sam have jointly petitioned the Commission for review of the Presiding Officer's decision on waste 4

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i disposal issues in LBP-99-1, 49 NRC 29 (1999). ENDAUM and SRIC have

- petitioned for review of LBP-99-9 (Historic Preservation),49 NRC 136 (1999);

LEP-99-10 (Performana> Based Licensing),49 NRC 145 (1999); and LBP-99-13 (Financial Assurance),49 NRC 233 (1999). Finally, Intervenors Sam and Morris have also petitioned the Commission for resiew of LBP-99-10. He NRC Staff and Hydro Resources, Inc. (HlU) oppose Commission review of these decisions.'

De Commission has considered the petitions for review, and their attendant responses and replies, as well as the record developed before the Presiding Officer.

For the reasons given by the Presiding Officer, and for the reasons given below, the Commissico partially affirms LBP-99-1, LBP-99-9, and LBP-99-10.2 He Commission requests that the parties submit briefs on LBP-99-13 in accordance with Commission direction provjded in this Decision.

1 IIACKGROUND Dis proceeding concerns a materials license that authorizes Hydm Resources, Inc. ("HRl"), to conduct an in situ leach uranium mining and milling operation in Church Rock and Crownpoint, New Mexico, pursuant to 10 C.F.R. Part 40.

The license (SUA-1508), which was issued by the NRC Sta!T on January 5,1998, authorizes HRI to construct and operate ISL uranium mining facilities for a 5-year period on the Church Rock, Unit 1, and Crownpoint sites. HRI's planned ISL uranium recovery process involves two primary operations. De first occurs in the well fields where a mining solution containing a mixture of groundwater, oxygen, and bicarbonate known as lixiviant is injected through wells into an ore zone. The mining solution, in turn, oxidizes and dissolves uranium in the ground.

He solution is then withdrawn via production wells. During the second operation, the pregnant lixiviant (i.e., the uranium-bearing mining solution) is processed to 3

in e&liuon to t!rir pentions for Conunission review of the Presiding officer's decisions, intervenors have riled four petinons in the United states Court of Appeals for the thstnct of Columbia seclung judicial review of the sans decisions. Twice in recent trenths we faced sinklar situations and went on to decide pending appeals on the ground that "sinmhanecus alpals to the Comnussion and to the coat of appeals are impernussible." Comumwealth Ednun Ca (Zmn Nuclear Itwer Station, Units I and 2), C1199-4. 49 NRC 185,186 n! (1999). Acront Balrunroe Gas &

Dectric Ca (Calvert Cliffs . Nuclear Power Plant, Units 1 and 2). Ct198-25. 48 NRC 325,336 n 1 (1998). In bc,th cases, the court of appeals agreed with our view and issued orders dunussing. as premature, pentions for judicial review filed in advance of not yet-issued Comrrussion appe!!are decisions. See Dsenevial v. NRC, No. 99-1001 (D.C.

Cir Ms. 31. It99); Narmnal Whnrieblower Center v NRC. No.98-1581 (D C. Cir. Mar. 31, 1999).

2 See 10 CIR. I 21253. As &scussed in nwre detail in "Bifurcanon Iscues" in the "thscussion" secuen. infra.

the Comnussion will address in a later decision the "bifureauon" concerns raised by interverers. Thus. our action to uphold the Presiang Ofncer's deciuous here &rs not extend to thme peruons of the partial imual decisions that relate to bifurcation. In adanos,. m emphuird in note 28. the Commission demes review of one parucular issue

. involving waste dispossi.

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extract the mined uranium.5 To date, HRI has not begun licensed activities at the sites.

The Intervenors have raised a number of legal and factual challenges to llRI's license, many of which the Presiding Officer found germane to this proceeding and litigable under Subpart L. See LBP-98-9,47 NRC 261 (1998). In this opinion, the Commission reviews the first four partial initial decisions the Presiding Officer has issued (LBP-99-1, LBP-99-9, LBP-99-10, and LBP-99-13), resolving questions of waste disposal, historic preservation, performance-based licensing, and financial assurance. The Presiding Officer expects to issue additional partial initial decisions by July 23.

DISCUSSION For the most part, this Corrunission opinion does not revisit Presiding Officer determinations with which we agree or have no reason to second guess. Because the Presiding Officer has reviewed the extensive record in detail, with the assistance of a technical advisor, the Commission is generally disinclined to upset his findings and conclusions, particularly on matters involving fact-specific issues or where the affidavits or submissions of experts must be weighed.' Unless otherwise stated herein, the Commission agrees with the results reached by the Presiding Officer.

However, since the petitions for review raise a number of issues that call for further review and elaboration, the Commission has considered several matters in some detail.

In considering this first round of Presiding Officer decisions, the Commission has decided not to request plenary appellate briefs from the parties, except on one issue, financial assurance, where we find the current record and briefs inadequate to complete our i view. Given the petitions for review, the responses and replies, and the voluminous pleadings and submissions filed with the Presiding Officer, the Commission does not believe additional briefs are necessary or would enhance its ability to decide these issues. The Presiding Officer is in the process of issuing decisions on the remaining issues in the proceeding. In accordance with its May 3, 1999 Order in this proceeding, the Commission will consider petitions for review of these remaining decisions after all of them have been issued by the Presiding Officer.

3 See 'Tinal EnvironnrntalImpact statenent; To Construct and o wrme r the Crownpoint Uranmm solution Minmg Project," NUREG t508 (February 1997)(Fels), at 2-2.

4 Ste, e g Imisiana Energy Services. LP (Claiborne Ennehment Cemer), CLI-98-3. 47 NRC 77. 93 (1998).

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l Difurcatioe Issues l In the fall of 1998. the Presiding Omcer issued orders5 " bifurcating" the f proceeding and limiting die current phase to questions concerning the only parcel

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of property (the so-called " Church Rock Section 8" property) where HRI has  !

indicated that mining activity may begin soon. In issuing these orders, the Presiding l Omcer reserved until later the consideration of issues pertinent solely to the remaining three properties (i.e., Church Rock Section 17, Unit 1, and Crownpoint {

sites). Subsequently, the Conunission denied Intervenors' petition for interlocutory review of the Presiding Officer's bifurcation decision.6 In a footnote to their petition for review of the partial initial decision on Historic Preservation (LBP-99-9), Intervenors ENDAUM and SRIC have raised the bifurcation question anew and claim that the Presiding Officer's action has '

resulted in impermissible segmentation under the National Environmental Policy Act (NEPA).' In their petition on the Financial Assurance partial initial decision (LBP-99-13), Intervenors again have attacked the Presiding Officer's bifurcation decision and argued that the financial assurance requirements must be met for the entire project at the time of licensing. To ensure a unified review of all bifurcation issues raised by the Intervenors, the Commission will address these matters, and any bifurcation issues raised on appeals from subsequent final initial decisions, later, after the Presiding Officer compless his current series of decisions on the "Section 8" property.

LEP-99-1: Waste Disposal Issues In situ leach (ISL) or " solution" mining produces two categories of waste: (1) gaseous emissions and airborne paniculates resulting from drying of yellowcake and the injection of groundwater with "lixiviant," a mixture of water, dissolved oxygen, and bicarbonate ions; and (2) liquid waste associated with operations including well-field processing and aquifer restoration.8 A variety of methods exist to address liquid waste disposal and storage at ISL facilities, including the use of evaporation ponds, deep-well injection, land application, and surface discharge under a National Pollutant Discharge Elimination System (NPDES) permit. In the present case, the license limits HRI to the use of lined evaporation ponds for the storage of liquid waste. Once water in the ponds is lost to the atmosphere through sttrface evaporation, the Licensee must send the resulting sludge to a 3

Merrmndurn and Or&r (Scheduhng and Parual Grant of Mouon for Bifureauon? (September 22, 1999).

Memorandum and order t Reconaideration of de Schedule for the Proceeding) tochiber 13, 1999).

6 CLI-98-22,48 NRC 215 (1998).

7 imervenors' Petition for Review of Preudmg othcer's Partal Iruual Deciuon t.BP-949, at 7 n 11 (March II, 1999).

8 rEIS at 15,6,14, and 16.

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licensed disposal facility. Currently, the license does not authorize HRI to dispose of materia! on eitc. If HRI seeks to employ one or more onsite disposal techniques in the future, it will have to receive approval from NRC and, depending on the method used, other appropriate regulatory bodies.'

Intervenors ENDAUM, SRIC, Graec Sant, and Marilyn Morris raised a variety of waste ' .posal issues before the Dresiding Officer and now have raised many of the same tnatters before the Commission ii. their petition for review. 'Iheir principal concern is f nat the NRC Staff and the Presiding Offnr failed to apply the appropriate regulato.) requirements to HRI's application. Specifically, they believe that the Presiding Officer erroneously refused to apply 10 C.ER. 54031(h) and.

Part 40, Appendix A, in their entirety to ISL mining. According to the Intervenors, this reading of NRC mies frees liRI from complying with a large number of relevant requirements. . , .

The Presiding Officer emphasized the.t Appendix A wasIipecifically promul-gated to address the pr,blems related to mill tailings from conventional milling activities and not those. ster..uing from solution (ISL) mining. Nevertheless, while he found that thmteria in Appendix A do not apply wholesale to tk HRI license, he agreed with the NRC S.aff that "[s]pecific criteria within Appendix A are ap-plicable to this license only when they explicitly apply to ISL mining."80 We agree with the Presiding Olricer's general conclusion that section 4031(h) and Part 40, Appendix A, "were designed to address the problems related to mill tailings and not pmblems related to injection mining."" in passing the Uranium Mill Tailings Radiation Control Act (UMTRCA), Congress sought to address the potential harm ari+Jng from unregulated uranium tailings piles left at milling sites." Likewise, when the NRC promulgated regulations to implement UhflRCA, it did so with the primary focus of ensuring the control of tailings at sites involving conventional mining ar.d milling." While, as a general matter, Part 40 applies to ISL mining,"

some of the specific requirements in Part 40, such as many of those found in Ap-pendix A, address hazards posed only by conventional uranium milling operations, and do not carry over to ISL mining. In amending the requirements in Part 40

'See SUA.15W, licenne Condition 1 L8! "Priu to land applicanon of waste water. tte licensee shall subnut and ruewe from NRC acceptance or u plan outhmng how the hcensee will nonmr constituent buildup ir smis resulung trarn the land apphcanon."

30 1SP 941,49 NRC at 33,

'U Id.

"Sce 42 U S C, 6790ltat "Sec. e g,44 Fed Reg. 50.015 ( Aug 24. l'rs9). Urunium Afdlliceming Requirrmrna 00 CI'R Parts 30. 40. 70

& 130). CLI-Bi-9.13 NR4. 460. 462 (1981);and NURiiM106, rmal Genenc I.nvirtmmenud impact staierwnt en thanium Mitbng (GEIS) dated September 1980.

"Ser 10 C.f;R. I40 4 Weramtions sr "bygiinduct nmienal" and "uramum milbng")

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. over the years, NRC has refrained from addressing issues specific to ISL mining and, instead, has generally addressed tailings from conventional operations."

In issuing the HRI license, the Staff appropriately did not insist that itti meet Part 40 requirements across the board. We agree that those requirements in Part 40, such as many of the provisions in Appendix A, that, by their own terms, i apply only to conventional uranium milling activities, cannot sensibly govern ISL mining. At the same time, there are a number of general safety provisions in Part 40, Appendix A, such as Criteria 2,5A, and 9," that are relevant to ISL j

mining and, as such, have been appropriately reflected in the license? 'The current i version of Part 40 specifically addresses ISL mining only to a limited extent. In a recent rulemaking proposal (SECY-99-Oll)," the Staff providal some background information on its current approach 8- ISL mining:

1he cunent Part 40 regulatory franrwork for uranium and thorium recovery is difficult to administer. The staff's nost significant concem with tie cunent requirenents is diat (try prinarily address de regulation of conventional uranium mills, the prevailing net!xxl when Part 40 was originally pmmuirmed, not ISL facilities. flowever, ISL facilities have becone the source of most of the uranium production in the United States, which is expected to contmoe into the foreseeable future. Regulating the ISL facilities in the absence of r.;rcific regulatory tequirenents for ISL recovery activities has becone increasingly pmblematic and note compliented for the staff, which has relied heavily on guidance docunents and license conditions in this area, as the recovering uranium pmduction industry acckr to e':rxind ISL facility production am! submits new applications for additional facilities.

Until the Commission develops regulatory requirements specifically dedicated to the particular issues raised by ISL mining, we will have no choice but to follow the case-by-case approach taken by our Staffin issuing HRI's license. As the Presiding Officer concluded, the " principal regulatory standards governing this application for a license are 10 C.F.R. Q4032(c) and (d), which mandate protection of the public health and safety,"" For the purposes of waste disposal issues, we agree with the Presiding Officer that the license in this case ensures compliance with these general requirements. While Intervenors disagree with the choices made by "Sec e g,50 red. Reg 41.852 (oct 16,1985) 52 Fed Reg. 41553 (Nov.13,1987) 55 ied. Reg 41591 (oct.

30.19W), and 5? Fed Reg. 28.220 (Jure I,19W).

"Critenon 2 i.uncates that, in mnst cases, waste fmm in sism extracuan operanons simuld te disposed of at exisung large null tailings disposal sites. Cntenon 5A appbes to Ltc conserwuon of surface impoundnrnts. Cntenon 9 applet to financial surety arrangenents "See, e g. Liceme Conditam 10.26 (refemng to Critenon 5 A) and 9.5 trelemng to Cnienon 9).

"on June 17, 1999, tie Commissmn hekt a pubite nreung on slG99 Oli (and on two other NRC staff pupersi at wtuch nunrrous "stakeholdm," includmg counsel for sRIC and F.N!'AUM, spoke. After tir nreung.

ttie secretary of the Conmussion otYered all panies to tius and other pending pmceedmgs related to uramum recovery an oppurtumty to subaut comnents on tir nreung discussmns to the Comnussion by July 23. Tie Conutusion urulerstatuts that any conments it receives will discuss genene uranium recovery issues ordy, not caseapecafie issues "s liPM1,49 NRC at 32.

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the Staff (and approved by the Presiding Ollicer), we believe that the requirements imposed on llRTs operations are reasonable and appropriate.

Intervenors' petition for review raises a variety of additional arguments related to waste. None is persuasive. They claim, for example, that IIRI has not obtained the necessary approvals under 10 C.ER. 520.200220 for tb disposal of waste through land application. In rejecting this claim, the Presiding Officer relied on a statement in the Safety Evaluation Report (SER) that says "'[c]urrently, HRI would be limited to using either surface discharge (with appropriate State or Federal permits / licenses), brine concentration, waste retention ponds, or a combination of these three notions to dispose of [mstoration] wastewater.' "2l The Presiding Officer concluded that IIRI need not satisfy section 20.2002 at this time because it has not submitted an application to the Commission for deep-well injection, surface water discharge, or land application. In its reply to Intervenors' petition for review, the Staff clarifies that License Condition (LC) 11.8 specifically requires IIRI to submit "and receive NRC acceptance of" a plan prior to land application of wastewater.22 in addition, License Condition 9.6 specifically requires ifRI to dispose of lle(2) byproduct material from the project at a waste disposal site licensed by the NRC or an Agreement State to n ceive such material. Accordingly, IIRI is not required to submit a section 20.2002 request at this time because the license does not authorize disposal of material at the site. HRI must receive prior NRC approval before it can conduct waste disposal through land application.

Intervenors also renew their claim that the HRI project's FEIS fails to provide a full discussion of the impxts of evaporation ponds and, instead, only covers the impacts from retention ponds. Intervenors annarently believe that these are difTerent types of structures. The Staff, however, has explained that the terms " retention pond" and "evaporauon pond" are used interchangeably in the FEIS. We find the Staff's explanation is supported by the FEIS, which specifically indicates that a purpose of " retention ponds" is to promote loss of water through " evaporation."21 Intervenors also take issue with the characterit.ation of the " bleed rate" in the technical documents supporting the license. 'lhe " production bleed" refers to the l amount of water that is withdrawn from production wells in excess of that which is injected into the ground. 'Ihis practice creates negative pressure which causes uranium-rich lixiviant to flow toward the production wells and prevents lixiviant i

I 20 secuan 20.2002 requires hcensees to " apply to the Conutussion for app oval of propoed procedures, not otherwise autimrized in the regulauom m ttus chapter, to dnpme of heensed maternal generated in the beennee's acuviues.*'

l l t 21.BP-99-1. 49 NRC at 35 (cmng SER at 26). l 22 '

See NRC Staffs Response to Peuuon for Review of LBP 99-1 (stafra Response to waste Peutian) at 'l-8 (March

5. !W9)

D $ee tEIS at 2-12. "The purpose of retenuun ponds as to store wastewater unu, tuatnrnt pronuxe evapwauve Insa of water that cantxH te discharged to the emironnrnt. and nemiam ccmtrol of soura and lle(2) by-product matenal tound in the liquid effluents fram solution nunmg "

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in the ground fw mignting outward." he bleed rate is a pementage of the total amount of the production from the mine zone. Intervencrs believe that the FEIS provides inconsistent descriptions of the bleed rate, ranging from 40 gallons per minute (gpm) to 1 gpm. We disagree. De phcnned Need rate for HRI's project is 1% De maximum flow rate allowed in the license is 4000 gpm. As such, the maximum bleed rate that can be expected is 40 gpm." After extraction, the Licensee concentrates the waste from the production bleed. Depending on the treatment technique used, the final waste stream resulting from a 40-gpm bleed rate could be either 1 gpm or 10 gpm. Le clean water from this treatment (i.e.,

the portion of the production bleed that is not waste) will be reinjected elsewhere."

Rese various figures account for the different waste-stream rates identified by the Intervenon;. We are unconvinced by Intervenors' arguments regarding the absence of data for manganese, molybdenum, and selenium in the water quality data. As both I!RI and the Staff have pointed out," these elements have been measured and are either present only in insignificant amounts or absent altogether.8 Intervenors also argue that the Presiding Officer ignored their claims that HRI has violated 10 C.ER. Pan 40, Appendix A, by failing to accommodate foreseeable operations expansions. He language in Appendix A cited by Intervenors refers to "the amenability of the disposal system" to accommodate future expansion."

As stated above, HRI is not currently authorized to dispose of waste at the site.

, Any disposal or subsequent expansion of disposal capacity would require IIRI to obtain approval from the NRC" The NRC would consider any consequences arising from such appro als at that time and, thus, detailed examination of the impact from these speculative actions is not necessary or warranted here 31 M

See ITIS at 24 and 2-7.

D See IEls i 4.31, at 4-26.

"Sce NRC Staffs Response to Intervenor Presentauons on Uqmd Waste thspmal Issues at 30 December 16, 1998. "[C} lean water from reverse osnumis or bnne concentracon will te reinjected into the Westwater Canyon Fornannn where individual consutuent concentrauuns are less than those found in tte pause ground water, and that ifer recharge will be perforned pursuant to 40 Cf R. Il144-148of I PA's regulauons." M

'See IDu's Response to intervenors' November 9.1998 Briefs in opposinon to Appheauon for a Matenals Ucense with Respect to Uguid waste Dispnsal issues at 51 (Decenter 9,1998); NRC staffs Response to intervenor Presentauons on Uquid Waste Dispcmal lasues at 35 (tkcember 16, 1998).

3 1nterwnors have also raised concerns regar&ng the Presi&ng Officer's treatnent of "two restorauon flow desenpuons" in the IIIS. However, de concem, wtuch includes a claim that tic Presidmg Officer adopted a Siaff puuuon regarding restorabon flow informatum, is too vague tojustify nents review under the Conmussion's standards.

See 10 CIR. 5 2.786(bt in addmon. It does not contam a reference to the Presi&ng officer's decision. Tirrefore, we do not take review of ilus particular natter.

D See 10 CT R. Part 40, Appendia A (Introduction).

3"See Ucense Con &uon 11.8. St.R at 7.0, and FUS at 2.1.2.

M These potenual future authuruauons also fall outside of the scope of this Imuted proceedmg Intervenurs' Peuuon for Review of Presi&ng officer's Partial imual Decision (Waste Pennon) at 26 (Decenter 16,199Bk sitrularly, .

Imervennrs' concerns about land apphcanon data do not vppear gernane to this procee&ng, gnen that tie HRI

' heense at laaue here (kra not autimrue such acuvmes 11

)

4 i

intervenors believe that the FEIS fails to include an adequate discussion of retention ponds.52 liowever, impacts to soils from evaporation pond construction are described on pages 4-6 through 4-14 of the FEIS, along with estimates of disturbed acreage of various alternatives." See Staffs Response to Waste Petition at 31. Intervenors also claim that the Presiding Officer neglected their concern regarding the adequacy of pond liners. The Presiding Officer, however, specifically addressed this argument in 49 NRC at 36-3'1 of his decision?

For the preceding reasons, the Commission declines to overturn the Presiding OfGcer's conclusions reganiing waste disposal issues in LBP-99-1.

LilP-9%9: IIistoric Preservation In their petition for review, Intervenors ENDAUM and SRIC assert that NRC has failed to comply with section 106 of the National 11istoric Preservation Act (NHPA) and applicable regulatory provisions such as 36 C.ER. 5 800.3(c). In particular,

{

they argue that the StafT has inappropriately " phased" its historic preservation compliance process. Intervenors acknowledge that the regulations allow for phased NHPA compliance but argue that the Staff has not completed the necessary section 106 review for any part of the project. 'a addition, they claim that the StalT has failed to make a reasonable and good-faith effort to identify historic properties and has not applied the appropriate criteria to determine any adverse effect on identified properties.

The Presiding Officer considered the range of arguments and testimocy regard-ing NHPA compliance and concluded that Intervenors had failed to demonstrate any violation of the Act" We.see no reason to revisit the Presiding Officer's conclusions in detail. Intervenors have offered no compelling argument against the type of phased compliance utilized by the StalT and have fai'ed to identify any significant defect in the Staff's NHPA compliance. Both the Presiding Officer and the Commission have already addressed the issue of phased compliance in decisions issued at earlier stages in this proceeding? While the previous adjudi-catory decisions concerned a stay motion, we see no reason to depart from our N Cet Waste Petiuan at 9.

U sinularly. Imervenors incorrectly state that the ITIS fads to a&lress the a&Nuacy of p nd hners Ser filS at 4 25 to 4-26. ser ano Hki I; cense Cmhuon 10.5 (provieng a&huonal safeguardst in adition. contrary to Imervenors' anr,ertion. the Iris does discuss evanwauon ponds in the land use secuon Ser lits 3-53 to 3-55.

M imervenors also argue that the "Ill$ does not a&lmss the snym of IIRrs plan to use existmg ponds." Waste Ituuon at 9 As llRI mdicated tefore tir Iwsiang officer. howewr. HRI does not plan to use any of the exixung ponds for opernuuns related to Seehon 8 Src HRI s Response to intervenurs' Novemte: 9.1998 EincIn (Waste) ni 48 (Decetuber ?,1998k D lllP 99-9,49 NRC 136 (1999).

• See IllP-9tt-5. 47 NRC i19.125 o 998), C11948. 47 NRC 314, 323 24 (19981 12

p fundamental conclusion that phased compliance is acceptable under applicable law.21 In their petition, Intervenors offer a vague argument that the Presiding C 'ficer has impermissibly shifted the " burden of proof" on this issue. Ilowever, in challenging the license, it is incumtent upon the Intervenors to identify, with some specificity, what the alleged deficiencies are. Based on his review of the arguments made by Intervenors and the responses from liRI and the Staff, the Presiding Officer reasonably found that Intervenors had failed to identify deficiencies with the Staff's compliance."

Intervenors also present the Commission with a variety of alleged National Environmental Policy Act (NEPA) violations and factual errors on cultural and historical issues. In particular, they argue that the FEIS sets out a plan for identifying cultural resource impacts but does not contain a complete evaluation of the proposed action's impacts on cultural resources. The Presiding Officer found that the treatment of cultural resources in the FEIS was acceptable tecause both the FEIS and the license require that "if unidentified cultural resources or human remains are found during the pmject activities, the activity would cease, protective action and consultation wc! occur, and artifacts and human remains would be evaluated for their sipificance.""Intervenors claim that since the FEIS was completed before the Staff had finished its section 106 compliance for Section 8, the FEIS does not contain a description of the actual cultural resource impacts on Section 8 but instead simply lays out a plan to consider those impacts.* The Staff, in its response, essentially argues that any concern with the information published in the FEIS has been cured because the studies conducted for tis 106 process were completed and released before NRC issued the license in January 1998."

""tW]e are not connneed by TYuuonets' argunent that the NirC and HR1 are pmhibited from takmg a Thased review' appeach to complying with the N!!PA - the legal pasioon that forms the foundation of Peuuoners' NHPA argurrents regarang severe, imnediate, and irreparable injury. The statute itself contams no such potuNuon, federal case law suggests none, and the supportmg tegulatums are ambiguous on the rnatter, even when read in de hght rnost favorable to Peutioners." 47 NRC at 323-24 (footnotes omittedi "Tte Conunissum notes that both the New Meuco siate Historic Preservauon Departnrnt and de Navag Nauonal Histanc Preservation Departnrnt responded to Nhc Staff conauhation requests with letters concurring with dw conclusion that there would be "no effect" on all cuhural resources within tiv parcel. See LBPW9,49 NRC at 142.

"LBP 99-9,49 NRC at 143 "See IIIS at 3-73 through 3-77.

M After pubhcanon of the FEIS in Iebruary 19% tie staff received a repnt prepared by tie Munum of New Meuco's ofracer of Archaeological Sipses (Bhnman. " Cultural Resources hwentory of Proposed Uranium Soluuan Extraction and Monitonng l acihues at the Church Rock Site and Proposed surface Irngation Facihues North of the Crownpoint site, McKinicy County, New Mexicu") This reput wins entered into the tranng record See Heanng Record ACN 9704140140 (April 4,19W), on June 19, 1997, tlw staff provided copies of its report for revew arui comnent to f O tte New Mexico state Historic Preservauon officer,(2) the Navajo Nanon Hishwie Preservauon Departnent (NNHPD); (3) Roger Anyon, Director of the Pueblo of Zuni Hentage and Histonc Pteservahon Otlker; and (4) teigh Jenkins. Duector of tic Hopi Cuhural Preservanon OfHce, NRC Staff's Respmse to Petation for Review of LDP-99 9 at 6 (Maeth 22.1999) 13

i i- The Staff has completed its review of the cultural resource impacts that will result from the conduct of licensed activities on Section 8. The FEIS contains much of this information. However, some of the supporting documents were l completed after the FEIS was published. Even if one assumes that the FEIS did

! not contain all the information considered by the Staff in its decision, the overall

)

record for the licensing action includes a complete analysis of the cultural resources for Section 8. Cf Claiborne Enrichment Center,47 NRC at 94 (adding post-FEIS

)

Board findings to " environmental record"). We find the StatT's appmach here '

acceptable. A Supplemental Environmental Impxt Statement is not necessary "every time new information comes to light after the EIS is finalized."" As a general matter, the agency must consider whether the new information is significant enough to require preparation of a supplement. 'lhe new information must present ]

l "a seriously different picture of the environmental impact of the proposed pmject from what was previously envisioned.""In this case, the public had access to the j

relevant information and the agency decision makers considered that information i

- before a final decision on the matter was reached." The new infonnatiori did not present a " seriously different" view of the environmental impacts. We do not find any legal liaw with its later release and consideration and, therefore, decline to alter the Presiding Oflicer's decision.

Finally, Intervenors have raised a Native American Graves Protection and Repatriation Act (NAGPRA) issue that they believe was not adequately addressed by the Presiding Ollicer. In LBP-99-9, the Presiding Oflicer dismissed Intervenors

! I NAGPRA claims with regard to the Church Rock Section 8 property because the Act only applies to the disposition of Native American cultural items excavated or discovered on federal or tribal lands. According to the Presiding Officer, Section l 8 does not consist of such lands. In its petition for review, Intervenors take issue with this finding, claiming that portions of sites in question are federal or tribal land. Wlule we defer to the Presiding Officer's factual finding on this matter, we note that the Staff appears to have complied with NAGPRA whether or not federal j or tribal land exists at the site. Under NAGPRA, consultation and concurrence of the affected tribe take place prior to the " intentional removal from or excavation of Native American cultural items from Federal or tribal lands." 25 U.S.C.

5 3002(c) (emphasis added). Ilowever, HRI does not plan any the iatentional removal or excavation of cultural items. 'Ihe applicable regulatory provision in this instance is 43 C.F.R. i 10.4, which applies to inadvertent discoveries of " human remains, funerary objects, sacred objects, or objects of cultural patrimony."" The

" March u orig <m. 490 U.S. 360. 373.109 s CL 1851.1859 (1989).

• Sierra Club u Frtoehue. 8l6 V2d 205,210 (5th Cnt.19tt1); see also South Turnton Residents Agwnst 29 v Federuf Nighway Adnunbarutwn. No. 98-5226.1999 WI,294717, at 4 (3rd Ctr May 5,1999).

" Sew, es EnenJr of the Rwer v Federal Energ) Regulatory C<munkswn. 720 V2d 93, in6-07 (nc. Cit l98%

"43 Cf.R. I 10.4th).

I 14 t

regulations generally do not require prior consultation or concurrence with the affected inbe for these kinds of " unintentional" activities.

LBP-99-10: Performance-Hased Licensing De Presiding Officer's decision in LBP-99-10 addresses a series of Intervenor concerns with the incorporation of " performance-based licensing" concepts into the IIRI license, and upheld the Licensee's performance-based approach. The Commission received two separate petitions for review of this decision, one from ENDAUM and SRIC and the other from Grace Sam and Marilyn Morris. The primary concern raised by both sets ofIntervenors is that the license permits HRI to make certain changes to its operations without prior approval by the NRC.

In particular, License Condition 9.4 allows the Licensee to make changes to its facilities or processes, alter its standard operating procedures, and conduct tests or experiments, without NRC npproval, so long as such actions do not conflict with the requirements of the license, do not cause degradation in the safety or environmental commitments made by HRI, and are consistent with NRC's findings in NUREG-1508, and the FEIS and SER for the project. If these conditions are -

not met HRI must seek a license amendment. Determinations to make changes under License Condition 9.4 must be made by HRPs Safety and Environmental Review Panel (SERP) and reported to the NRC annually. The decisions of the panel must be submitted to NRC. j Intervenors claim that this license condition impermissibly delegates threshold safety determina3ns from the NRC to HRI and gives the Licensee unilateral liseretion in these matters. According to Intervenors, neither the . Atomic EnerFy e et, the Administrative Procedure Act, nor 10 C.ER. Part 40 allows for such

" performance-based licensing." Citing Citizens Awareness Network v. NRC,"

Inter renors ENDAUM and SRIC also claim that the Staffs decision to apply performance-based licensing in the Part 40 context is impermissible because it was accomplished without issuance of any Commission regulations or policy.

In rejecting these arguments, the Presiding Officer found that the license condition in question " demonstrates that the license has been carefully thought through so that HRI might make low-risk changes in its mode of operation without t advance approval but may not alter its license or make high-risk changes in its operations."" In addition, he disagreed with Intervenors' arguments regarding the l

authority of the NRC to apply performance-based licensing in the Part 40 context, finding that they had failed to identify any rule or statute prohibiting it. De Presiding Officer also pointed favorably to an analogous practice that has been followed for years in the reactor context under 10 C.ER. 6 50.59.

"59 FM 284 Uit Cr 199.9 U

LDPW10,49 NRC at 147 (emphasis m ongmat).

i .

15 l

l l

1 I

The Commission sees no reason to reverse the Presiding OfTicer's conclusion.

License Condition 9.4 simply identifies types of minor operational modifications, without rignificant safety or environmental impact, that IIRI may make without obtaining a license amendment from NRC. The use of this licensing concept l in HRI's license is consistent with well-publicized Commission direction to the StafT to employ risk-informed and perfonnance-based concepts in NRC regulatory activities" The Commission has also repeatedly and clearly called for use of ,

probabilistic risk assessment concepts, whenever possible, in nuclear regulatory j

. matters." We believe that the license condition in question here is consistent with -

the Commission's overall direction to the Staff. It is sensible regulatory policy to allow licensees on their own to make minor adjustments and modifications that have little safety or environmental impact. To require license amendmei.ts for ,

all changes, no matter how inconsequential, would burden both licensees and the l NRC, to no good end.

Despite Intervenors' suggestion to the contrary, there appears to be no similarity ,

between the facts here and those in Citizens Awareness Network. 'lhe Court in that case stated; '

The pnar Conunission policy regardmg decommissioning, embodied in 10 CFR. I 50.59 and explicated in the Commission's publisted Statenrnt of Consideration, tequired NRC approval of a decommissioning plan before a licennee undertook any major structural ci anFes to a facility, This policy was developed through a lengthy notice and comment penod. with substantial public '

panicipation. [ Citations omitted1 The Commission adhered to this pahey for almost five l years, reiterating its position in at least two adjudicatory decisions. Then, rather suddenly, the i Commission circulated two internal Staff nemos that comp!ctely reversed this settled puhey, without any notice to the affected pubbe More troubling, however, was the Commission's failure to provide in those nemos, or anywhere else, any jusufication or reasonmg whatsoever for the change."

The use of performance-based licensing concepts in the HRI license does not I l reverse any long-established Commission policy on the use of such regulatory I mechanisms. Indeed, it is consistent with the Commission's approach to reactor j licensing in 10 C.F.R. 950.59. It does not run coun'er to any agency mandate i contained in the Atomic Energy Act or any established Commission regulation. If anything, the use of license conditions such as 9.4 is ent1ely consistent with the Commission's efforts over the years to allow reasonable flexibility in its regulatory i framework. It is simply an additienal means through which the NRC can decrease the administrative burden of regelation while ensuring the continued protection of l

l "Sec. e g., Staff Requirenems - CoMsECY-9M161 - Risk inkrned. Perforrnance-Bawd Regul.iuun (DSI-

! 12), April 15,1997. "Use of Piobabihstic Risk Auessnent Mettuts m Nuclear Regulatory Acuvities. I' mal Polry )-

Statement," 6n Iht Reg 42.622 ( Aug,16,1995).

l "See M at42,628-29.

l

• Chuens Awareness Netwwt 59 V3d at 291.

16

L public health and safety. In addition, the NRC Staff has provided a clear, reasoned basis for the employment of this concept in the in situ leach mining context /' a rationale that we agree with and hereby adopt.

He Intervenors exaggerate the amount of discretion the license affords HRI.

License Condition 9.4 sets cut an organized procedure that mforms the Licensee

. of the type of operational changes that require specific approval from the NRC. h does not grant MRI unfettered discretion to make all decisions free of regulatory oversight. Rather, it allows HRI the Hexibility to make only those changes that are consistent with existing license conditions r.nd applicable regulations and do not result in any degradation in the Liccu.see's responsibility to conduct its activities in a inanner that is protective of public health and safety. Any changes made by the Licensee must be fully documented and reported to the NRC annually. IIRI will be subject to NRC enforcement action if it takes an action that is inconsistent with License Condition 9.4.

ENDAUM and SRIC also claim that License Condition 9.4 violates NEPA by authorizing actions without any consideration of their environmental impacts.

We disagree. He Staff has considered the impacts of HRl's licensed activities in the FEIS published in February 1997. By its own terms, License Condition 9.4 requires HRI to apply for a license amendment if any change, test, or experiment it undertakes is not consistent with the findings in the FEIS. If the action contemplated by HRI does require a license amendment, NRC will have to follow the necessary NEPA compliance measures consistent with the rtgulations in lo C.ER. Part 51. Accordingly, the condition is fully consistent with the Commission's requirements and sound NEPA practice.

In addition to their specific concerns with License Condition 9.4, Intervenors ENDAUM and SRIC have also raised a variety of alleged inconsistencies and irregularities in the license itself. The Presiding Officer rejected some of these

, claims as being outside the scope of this particular partial initial decision and called on the Intervenors to raise their claims with respect to specific substantive issues addressed elsewhere in the proceeding. In their April 1,1999 motion before the Commission for leave to reply to responses from HRI and the Staff, Intervenors atternpt to clarify their concems and argue that "(t)he issue that ENDAUM and SRIC have raised here is that the performance based license issued 1 to HRI (SUA-1508) violates applicable law and regulations because it incorporates I

M "Tlw perfornance based hi:ense conditi on is suwtureJ such that uranium recovery beemees are required to submit apphcatwns for all license anrndernwas, uolens dry can denonstrate det the provimons specirsed in Or pedarmancobased beense condition haw been sausrrd in adthuon. de perro6mance-bawd b ense condiuon requaes j that a summary or allchanges nude under de cot.dstion be provided to NRC m an annual report Therefore. the i

.perfomance-based hcrne condition provides e e sans degree of HensNhty contained in the regulations and hcenses for otler %uclear faahues, and is consistent with estabhshed NRC puhey." See " stair 1.tfons to Reduce Regul~ j impact on Uramum Recovery lxensees." Menorandum from Japrs M. Taylor. Executin Director of operr, w a '

the Cui.uTussien, August 26.19%

1 17 i

I the inconsistent arid self-contradictory terms of the application."" We decline to

. disturb the Presiding Officer's decisica on this point. Intervenors appear to argue that several alleged inconsistencies and confusing items in the license are the direct result of a performance-based licensing policy. Like the Presiding Officer, we fail to see the connection. The Presiding Officer appropriately declined to consider these concerns in the context of LDP 10.

LBP-99-13: Financial Assurance In their March 30, 1999 petition for review on LBP-99-13, Intervenors IMDAUM and SRIC take issue with many of the conclusions made.by the Presiding Officer regarding HRI's compliance with NRC's limmcial assurance requimments. In essence, Intervenors beheve that HRI must comply with the fi-nancial requirements contained in both 10 C.ER 140.36 and 10 C.ER. Part 40, Appendix A. In particular, they insist that the surety requirements in Appendix A must be met before NRC issues a license.

'Ihe StafY has acknowledged that the financial assurance requirements in Crite-rion 9 of Appendix A to Part 40 do in fact apply to HRI. "Ihe license itself requires HRI to submit an NRC-approved surety arrangement as a prerequisite to operating under a license." However, it is unlikely that HRI will begin operation in the near future and it has yet to submit final surety arrangements. Thus, the question has arisen whether the surety is due before licensing or only before operation. Simi-larly, Criterion 9 also requires that the amount of funds to be ensured be " based on Commission-approved cost estimates in a Commission-approved plan."" Pur-suant to Criterion 9, this plan must be submitted by the Applicant along with its environmental repon, prior to licensing. Criterion 9 does not specify what con-stitutes "a plan" M carly stages of licerising or when the Licensee must receive NRC approval for its plan.

The Presiding Officer reasonably concluded that the surety requirement in 10 C.ER. 640.36 does not apply to this license. See LDP-99-13,49 NRC at 235. By its own wording, Criterion 9 does not require the creation of a surety arrangement until operations begin. However, our rules on financial assurance plans are much less clear. Further proceedings are necessary to clarify whether and when HRI submitted a plan in this case and the extent to which Intervenors may contest that plan.

In their latest filing, Intervenors claim that "HRI admits that a financial assurance plan does not exist although HRI submitted its ER's six years ago and a "See ENDALN's and sRIC's Monon foi leave to Reply to the Responrs hied tiy liR1 and the NRC sunff to Dl!MUhrs and sRIC's Peuuon fur Review of LBP.99-10 (Perfonunce-Bacd Ikensing) at 4-5 (Apnl 1. 4W91 "Licens: Condinon 9,5.

"10 CTR. Part 40. Appendas A. Cnicnon 9 18

i t,

.'. ' Jicense was issued in January.1998,"" In addition, in their view, the Staff failed f to follow NRC regulations when it did not review and approve the plan prior to granting the license. . Before the Presiding Officer, HRI argued that it had in I

' fact submitted infoimation regarding decommissioning costs - tantamount to a '

" financial plan" -lin response to an NRC Staff Request for Information (RA1) containing " detailed plac's addressing the full-cycle economics of the CUP as part .

ofits license application."56 'lhe Staffs views on whether the RAI response meets

.. the provisions of Criterion 9 are undear. For its part, the Staff has indicated that

.)

)

~

' si in the process of eva!Jating this' [liRTs financial assurancel plan, which' was recently -

amended by HRI in tesponse to co nnents received from the Sta:e of New Mexico. ICitations -

-. omitted.1 Accordingly, attil tir Staff completes and docunents its evnluation of IIRTs surrey,

! arrangements, the record on which the firsidmg fMicer snust tase his decisions will be incomplete in this regard, and the issue is thus not yet npe for his review. In short, there -

was .nothing for the Presiding Officer to analyze in tids negard, contrary to the IN:ntioners'

. implication. 1 NRC Stairs Response to Petition for Review of LBP 99-13 at 4-5 (April 14, 1999). In its brief before the Presiding Officer, the Staff indicated that -it is in the proecss of reviewing ";urety materials" submitted by HRI." In its response to . i 4

lIntervernors' petition to review, HRI added that "Intervenors' complaint that the I

'. Presiding Oflicer failed to determine the adequacy of HRI's financial assurance. >

plan is prematuret them is, as yet, no approved plan to determine the adequacy ac s< ]

Confusion, obviously, permeates this issue. The varicus statements of the par-ties raise several unanswered questions. To clarify these positions, the Commission requests that the parties submit briefs addressing the arguments raised in Inter-venor's petition for review of LBP-99-13. !!n doing so, the parties should also -

.. address the following questions; (l) '.Was financial assurance information submitted by HRI adequate to meet the requirements for licensing?

"ENDAUM's and $1pC's Reply in Response 33 ilRrs and tie NRC stafra Respomes to Peuunns for Review of

- 4.ftP410 (Performance-Based licensing issues) and 1.BP49-13 LFinancial Anurance for Deconurussioning) at 4 o (May 10,1999). -

YScc [HRrs] Resnonse to truesvenors' Bnefs wM Respect to [lIRI s) Technical and Financial Quahlications and

~. .fi.r.mcia Assurance for Decommissiorung at 19 (f ebruary 11.1999) ciong to RAl.-Ql 91 "Jer NRC siafra Respome lo intentures' Presenrauons on Technical Quahficatiott Fmancial, and Decomnas-siomng lasues at 3 v.4 (Ietutary 18, 1999) We staff attacled two HRI 1ruers to their tmef: (i) a June 25,1997 letter that contained a ?'Churchrock Section 6 Fmancial Assurance Plan" that HRI subrmued to the State of New Mexico Erwuonnent Deparurent. and (2) a Ikcemter 11.1998 letter contaimng dran versions of Perfortnance Bond, Perfonnance ouaranter Bond ami Trust Agreenent for the Crownpnint Project."

8"(HRTs] oppnasuon to intervenors' Peuuoe for Review of Presiding Ofncer's PartialImtial tkcision L.BP 9413 at 3 (Apn! 13.1999).

.g 3,

M ,

(2) If HRI is correct in its assertion that an approved financial assurance plan is not a prerequisite to the issuance of a license, what is the meaning of the Staffs assertion in its n:sponse that "the issue is thus not yet ripe for . . [the Presiding Office r's] . , review?"

CONCLLUION For the reascas stated in this decision, the Commission hereby partially affirms LBP-99-1, LDP-99-9, and LltP-9910. He Commission will address Intervenors' claims regarding bifurcation in a later decision. He Commission requests that the parties submit briefs on LBP-99-13 ccisistent with the directions set out above.

After reviewing these briefs, the Commission will consider whether to hold oral argument. He Commission sets the following briefing schedule:

(1) Intervenors ENDAUM and SRIC shall fde their brief within 21 days of the date of this Order. De brief shall not exceed 30 pages.

(2) %c NRC Sta!T and HRI shall file their n sponsive briefs within 21 days after receipt of Intervenors' briefs. %cir briefs shall be no longer than 30 pages, (3) Intervenors may file a reply brief within 10 days of receiving the briefs -

of the NRC Sta!T and HRI. The reply brief shall be no longer than 10 pages.

All briefs sha!! be filed and served in a manner that ensures their receipt on their dee date. Electronic or facsimile submissions are acceptable, but shall be followed by hard copies within a reasonable time. Briefs in excess of 10 pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited. Page limitations on briefs are exclusive of pages containing a table of contents and of any addendum containing statutes, rules, regulations, etc.

IT IS SO ORDERED.

For the Commission

• ANNETTE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 23d day of July 1999.

"Conmsssurer Dia4 was not avadable for aftirmation of this kknuandum and order. Had he been present he woukt have affirned the Merrurandum and order 20

I i

Cito as 50 NRC 21 (1999) CLI-99 23 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

COMMISSIONERS:

l Greta Joy Dicus, Chairman i

Nils J. Diaz j Edward McGaffigan, Jr.

Jeffrey S. Merrifield l

in the Matter of Docket Nos. 60-334-LT 50-412-LT l (License Nos. DPR-66 NPF-73)

DUQUESNE UGHT COMPANY l and l FIRSTENERGY NUCLEAR OPERATING l COMPANY and PENNSYLVANIA POWER l COMPANY l (Beaver Valley Power Station,

! Units 1 and 2) July 23,1*'-

! On June'3,1999, Local 29, International Brotherhood of Electricsl Workers l filed a petition to intervene with regard to the proposed transfer of interests in the Beaver Valley Power Station. Since the Petitioner specifically declined to request a hearing, the Commission considers the petition as a submission of comments on the license transfer application pursuant to 10 C.ER. 6 2.1305.

RULES OF PRACTICE: LICENSE TRANSFER PROCEEDINGS The Commission's rules for license transfer at 10 C.ER. Part 2, Subpart M, set out two possible avenues to address issues that may arise from license transfer applications: written comments or hearings.

l

'.( 21 l

l MEMORANDUM AND ORDER b In this Memorandum and Order, we address a June 3,1999 petition to intervene filed by Local 29, International Brotherhood of Electrical Workers with regards to a proposed transfer ofinterests in the Beaver Valley Power Station from Duquesne Light Company (DLC) to FirstEnergy Corporation. In separate answers filed on June 16,199, DLC and FirstEnergy opposed Local 29's petition and argued that it did not have standing to intervene and had failed to raise a valid contention.

On June 23,1999, Local 29 filed a reply in which it stated:

11 lears repeating that tocal 29 has not requested a hearing, is not opposing the transfer, and is not seeking to delay Commission action on the apphcation. It is only scebng to ensure that the Conunissian has full and complete infonnabon about the proposed operating conditions at the plant before it takes action on the applicanon.'

The Commission's newly promulgated rules for license transfer set out two possible avenues to address issues that may arise from license transfer applications:

written comments or hearings.2 Ir. this instance, Local 29 has filed a " petition to intervene" but has explicitly stated that it has not requested a hearing. In the absence of a hearing request, there is no potential adjudicatory proceeding in which to intervene. Accordingly, we must deny Local 29's " petition to intervene" and treat it as a submission of comments on the license transfer application pursuant to 10 C.ER. 9 2.1305. We note that our denial of the petition here in no v'ay reflects a judgment regardiag the merits of the concems raised by the Petitioner. The Commission will consider and, if appropriate, respond to Local 29's comments b accordance with section 2.1305. We are referring the comment to the NRC Staff for its consideration as it reviews the license transfer application. See General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), CLI-99-2,49 NRC 23,24 n.2 (1999).

I Reply of I xal 29. Imernatwnal Bnxhcrtiood of 1:lectncal workers (June .3.1999) at 2-1

'2 Streamhned Hennng Process for NRC Approval of lacenw Transfers. 63 Fed. Reg 66.721 (Ike. 3,1998).

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! Fcr the foregoing reasons, the petition is denied.

IT IS SO ORDERED. t l

For the Commission 1 I l ANNEI TC L VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, li j this 23d day of a uly 1999.

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Conmduio:rr Diu was inn available for affnauon of this Memwandum arvj Order. flaJ tw t=co premt tw would have affumed the Nkn4randum and Order.

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4 Atomic Safety 1- .,

and Licensing Boards Issuances -

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I ATOMIC SAFETY AND LICENSING BOARD PANEL G. Paul Bailwerk \\\,* Chief Administrative Judge .

Q t Vacant,* Deputy Chief Administrative Judge (Executive) ,

Frederick J. Shon,* Deputy Chief Administrative Judge (Technical) ~

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Members

• Dr. George C, Anderson Dr. Harry Foremar_ Dr Unca W. Little A- '

Cha$s Sechhoefer*

Peter B. Bloch*

Dr. David L. Hetrick Dr. Frank F. Hooper Thomas S. Moore

• Thomas D. Murphy *

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Dr. Robin Brett Dr. Charles N. Kelber* Dr. Harry Rein . h Dr. James H. Carpenter Dr Jerry R. Kline Lester S. Rubenstein . /.. .

Dr. Richa'd F. Cole

• Dr. Peter S Lam

• Dr. David R.Schink '

Dr. Thomas S. Ellenan Dr. James C. Lamo ill Dr. George F. Tidey i

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• Permanent panelrnembers "b 'V ~

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I Cite as 50 NRC 25 (1999) LBP-9945 UNffED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .

ATOMIC SAFETY AND LICENSING BOARD k Before Administrative Judges:

G. Paul Bollwerk, lit, Chairman Frederick J. Shon Dr. Peter S. Lam in the Mitter of Docket No. 50-400-LA (ASLBP No. 99-762-02-LA)

CAROLINA POWER & LIGHT COMPANY (Shearon Harris Nuclear Power Plant) July 12,1999 1

I in this proceeding concerning Applicant Carolina Power and Light Company's (CP&L) request to increase the spent fuel storage capacity of its Shearon Harris Nuclear Power Plant through a 10 C.ER. 650.90 facility operating license amend-ment, the Licensing Board grants the hearing request of the Board of Commission-

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ers of Orange County, North Carolina (BCOC), concluding BCOC has standing and has proffered two admissible contentions challenging CP&L's pmposed fuel storage expansion plan.

RULES OF PRACTICE: STANDING TO INTERVENE Those who seek pany status in NRC adjudicatory proceedings must demonstrate that they fulfill the contemporaneous judicial standards for standing, which require j that n participant esta)lish: (1) it has suffered or will suffer a distinct and palpable I injury that constitutes injury in fact within the zone of interests arguably protected by the governir; statutes (e.g., the Atomic Energy Act of 1954 (AEA), the National Enviromnental Policy Act of 1969 (NEPA)); (2) the injury is fairly traceable to the l

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- challenged action; and (3) injury is likely to be redressed by a favor.ble ducision.

' See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1,43 ]

NRC 1,6 (P)96).

MULES OF PRACTICE: STANDING TO INTERVENE (ZONE OF INTERESTS: REDRESSABILITY OF INJURIES)

The safety and environmental concerns alleged by a local govemtnental orga-nization relative to its citizens and their local habitat fall within the statutory zone

of interests implicated in this proceeding and those inptries could be redn:ssed by f

a favomble decision in this proceeding. ]

1 RULES OF PRACrlCE: STANDING TO INTERVENE (ORGANIZATIONAL)

As the Conunission hr.s recognized in a somewhat different context, the strong interest that a govemmental body has in protecting the individuals and territory that fall under its sovereign guardianship establishes an organizational interest for -

standicg puiposes. - See Private Fuel Storage LLC (Independent Spent Fuel Storage Installation), CLI 98-13,48 NRC 26, 33 (1998). l l RULES OF PRACTICE: STANDING TO INTERVFNE (INJURY IN FACf; FACTUAL REPRESENTATION) l l During 'the threshold standing inquiry, a petitioner need not establish an l . asscrted injury in fact basis for assertions of offsite radiological consequences with

" certainty" _or provide extensive technical studies. See Sequoyah Fuels Corp.

(Gore, Oklahoma Site), CL1-94-12,40 NRC 64,72 (1994). Such an assertion of injury in fact will be accepted if it is at least facially plausible that it is neither i remote nor speculative and the opposing party fails to establish a fatal flaw in its analysis.

I RULES OF PRACTICE: CONTENTIONS (POSSIBLE FAILURE TO )

L COSIPIX WITil REGULATORY REQUIREhlENT) .

In order to posit a contention that requires the analysis of an action violating a specific technical specification, a petitioner would have to mak: some particularized demonstration that there is a reasonable basis to believe that the applicant will act contrary to the terms of such a requirement. See General Public Utlities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23,44 NRC 141164 i (1996).

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- RULES OF PRACTICE: HEARING PROCEDURES FOR SPENT FUEL POOL EXPANSION PROCEEDING A spent fus! capacity expansion proceeding is subject to the hybrid hearing process outlined in 10 C.F.R. Part 2, Subpart K, to the degree that any party wishes to invoke those procedures. Any party that wishes to invoke this process

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must do so within,10 days of an erder granting a hearing request. See 10' C.F.R. { 2.1109(a)(1). If invoked,' die process would consist of the following:

a 90 day discovery period followed by the simultaneous written submission of relevant facts, data, and arguments and an oral argument on the issue whether 4

an evidentiary proceeding is required for any of the contentions; and finally a decision by the presiding officer that both designates disputed issues of fact for an evidentiary hearing and resolves any other issues. See 10 C.F.R. 952.1111, 2.1113(a), 2.1115(a)-(b).

MEMORANDUM AND ORDER (Ruling on Standing and Contentions)

Responding to a January 7,1999 notice of opportun:ty for a hearing,64 Fed.

Reg. 2237 (1999), Petitioner Board of Comminioners of Orange County, North Carolina (BCOC), has filed a timely hearing request and intervention petition that is now before the Board. In its Felruary 12,1999 petition, BCOC challenges the

- December 23, 1998 request of Applicant Carolina Power & Light Co. (CP&L) for permission to increase the spent fuel storage capacity at its Shearon Harris Nuclear Power Plant (Harris), which is located in Wake and Chatham Counties,

' North Carolina. If granted, CP&L's 10 C.F.R. t 50.90 facility operating license amendment request would permit it to add rack modules to spent fuel pools C and D and place those pools in operation.

- Both the Applicant and the NRC Staff have contested the BCOC request. CP&L asserts that BCOC lacks standing to intervene, while Imth CP&L and the Staff argue that none of BCOC's eight contentions are admissible. Having concluded that BCOC does have standing and has proffered two admissible contentions, for the reaso , set forth below we grant its hearing request. i I. BACKGROUND l

In its December 1998 license amendment request, CP&L indicated that the fuel l handling building (FHB) at the Harris site was originally designed and constructed with four separate spent fuel pools to accommalate the four reactor mits that were ,

planned for the site. Pools A through D were anticipated to serve Units 1 through

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i a j 4, respectively. Although three of the units were canceled in the early 1980s, the FHB, the four pools (with liners), and the cooling and cleanup system to support pools A and B were completed and tumed over to CP&L. Construction on the cooling and cleanup system for pools C and D, however, was not completed. CP&L also declared that because a Department of Energy high-level waste repository is not expected to be available in the foreseeable futme, it has been shipping spent fuel from its three other nuclear facilities for storage in the Harris pools in order to maintain full core offload capability for those facilities. According to CP&L, the present amendment request to utilize pools C and D is designed to provide storage capacity for all four CP&L units - Harris, Brunswick Steam Electric Plant, Units 1 and 2, and H.B. Robinson, Unit 2 - through the end of their current operating licenses. See CP&L Request for License Amendment (Dec. 23,1998) Encl.1, at 1 [ hereinafter License Amendmentl.

Asserting it had standing to intervene or behalf of its citizens, in its February 12,1999 intervention petition BCOC contestal this CP&L request as involving both safety and environmental risks. See [BCOC] Request for Hearing and Petition to Intervene (Feb. 12,1999) at 2-4 [ hereinafter BCOC Petition). CP&L filed a March 1,1999 answer declaring that the BCOC petition to intervene should be denied because BCOC has failed to establish its standing. See [CP&L] Answer to BCOC's Request for Hearing and Petition to Intervene (Mar.1,1999) at 711

[ hereinafter CP&L Petition Response), "Ihe NRC Staff, on the other hand, asserted in its answer that BCOC had established its standing to intervene. See NRC Staff's 1 Answer to Orange County's Request for Hearing and Petition to Intenene (Mar.

4,1999) at 5 [ hereinafter Staff Petition Response].

In its initial prehearing order, the Board set an April 5,1999 deadline for BCOC to submit a supplement to its petition specifying its contentions. See Licensing Board Memorandum and Oaler (Initial Prehearing Order) (Feb. 24,1999) at 3 (unpublished). BCOC filed a supplemental petition on that date, which set forth three technical and five environmental contentions. See [BCOC] Supplemental Petition to Intervene (Apr. 5,1999) at 4-44 [ hereinafter BCOC Contentions]. In responses filed May 5,1999, both CP&L and the Staff took the position that BCOC had failed to present a contention that would meet the admissibility standards set forth in 10 C.ER. 6 2.714(b) and, as such, its petition should be dismissed. See

[CP&L] Answer to Petitioner [BCOC] Contentions (May 5,1999) [ hereinafter CP&L Contentions Response]; NRC Staff's Response to IBCOC] Supplemental Petition to Interwne (May 5,1999) [ hereinafter Staff Comentions Response].

Thereafter, at a one<!ay prehearing conference conducted in Chapel Hill, North Carolina, on May 13,1999, the Board heard oral arguments from the participants on the issues of BCOC's standing and the admissibility of its eight contentions.

' See Tr. at 11-170.

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IL ANALYSIS I A. Standing I

l Those who seek party status in NRC adjudicatory proceedings must demonstrate l that they fulfill the contemporaneous judicial standards for standing, which require that a participant establish (1) it has su1Tered or will suffer a distinct and palpable l injury that constitutes injury-in-fact within the zone of interests arguably protected by the governing statutes (e.g., the Atemic Energy Act of 1954 (AEA)., the National Environmental Policy Act of 1%9 (NEPA));(2) the injury is fairly traceable to the challenged action; and (3) injury is likely to be redressed by a favorable decision.

See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1,43 NRC 1,6 (1996).'

In this insamcc, BCOC asserts in its intervention petition that, as a political subdivision of the State of North Carolina, it is " authorized to protect the citizens of the County through its police powers," and indicates it wishes to intervene because the proposed spent fuel pool expansion amendment " threatens the County's interest in protecting the health and welfare of its citizens and the integrity of the environment in which they live." BCOC Petition at 3; see also Tr. at 12. BCOC also declares that "[t]he entire county lies within the 50-mile ingestion exposure emergency planning zone around the llarris facility, nd part of the county lies within 15 miles of the plant." BCOC Petition at 3. According to BCOC, in light of the showing in the attachments to ita petition regarding the increased risk of, and offsite consequences resulting from, reactor or spent fuel pool accidents that could occur if the CP&L expansion proposal is implemented, it has ,

demonstrated its injury in fact. See Tr. at 12-15. The Staff agrees that BCOC has

- made a showing sufficient to establish BCOC's organizational standing. See Staff Petition Response at 5 & n.2. CP&L objects, however, declaring that BCOC -

which CP&L maintains is located approximately 17 miles from the Harris facility

- has not established its organizational stading. See CP&L Petition Response at 7-8; Tr. at 15-21.

It is appamnt that the safety and environmental concerns alleged by BCOC fall within the statutory zone of interests implicated in this proceeding and that those injuries could be redressed by a favorable decision in this proceeding. Moreover, as the Commission has recognized in a somewhat ditTerent context, the strong intemst that a governmental body hke BCOC has in protecting the individuals and territory that fall under its sovereign guardianship establishes an organizational interest for standing purposes. See Private fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-98-13,48 NRC 26,33 (1998).

Indeed, there seems little doubt that if the Harrir facility were located within the boundaries of Orange County, the requisite injury in fact would have been estab- i lished relative to Petitioner BCOC. See Private fuel Storage, LLC.

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I ilnfependent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,169 (find.

inr,, State of Utah has standing relative to facility located within the State, albeit on Native American reservation), afd on other grounds, CLI-98-13,48 NRC 26 {

(1998). It is not so located, however. Instead, the county's closest boundary is approximately 17 miles from the facility. Previous standing rulings regarding spent l

fuel pool expansion and reracking indicate that standing has been accorded to in-terested persons within approximately 10 miles of the reactor facility.3 See Florida Ibwer & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A,27 NRC

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452,455, afd, ALAB-893,27 NRC 627 (1988); Vermont ranAce Nuclear Ibwer Corp. (Vermont Yankee Nuclear Power Station), LBP 87-17, 25 NRC 838, 842, l i

afd in part and rev'd in part on other gmunds, ALAB-869, 26 NRC 13 (1987);

Vermont Yankee Nuclear Ibwer Corp. (Vermont Yankee Nuclear Power Station),

LBP-87-7, 25 NRC 116,118 (1987). While CP&L declares that the additional 7 miles to the BCOC border negates BCOC's standing claim, we conclude the

. additional distance is not a bar to Petitioner's standing in this instance.

In an affidavit attacheo both to BCOC's petition and its contentions supplement, Dr. Gordon Thompson, the executive director of the Institute for Resource and i Security Studies, analyzes the hazard posed by the Harris spent fuel pool expansion as it relates to cesium-137.2 Noting that cesium-137 is an important hazard potential

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j indicator because it emits intense gamma radiation and is released comparatively j readily in severe accidents, Dr. Gordon declares that activation of pools C and D will potentially result in an inventory of spent fuel containing cesium-137 in

. amounts that, if released in a significant fraction to the environment because of a severe acddent, would create offsite radiation doses in amounts that would be an order of manitude larger than the exposure from the Chernobyl accident and as much as two times higher than those from a similar accident involving only pools A and B. He also notes that, as is the case with many facilities, the spent fuel pools at the Harris plant are not within the containment area, so that any released radioisotopes are likely to exit the building in an atmospheric plume. He further postulates what he asserts are the previously unanalyzed consequences of a partial uncovering of the fuel, which he declares could be more severe than the total water loss circumstances previously analyzed in terms

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of the possibility of creating exothermic reactions that could resuh in significant i atmospheric discharges. Finally, he identifies several events involving the pools I

ln addition to the canes cited above. in Virgmus Ektric and Amer Cu (North Anna Nuclear Power Stacon.

Umts I and 2). ALAN.522. 9 NRC 54. 55 57 (1979).the Appeal Board pcmutted intervenuun in a spent fuel pool expansion proceedmg for an intervener group that had adenufied snenmers who resuled 35 and 45 nules from the facshty, are of whom also engaged in caruring on a nver "in tir generid viemity" of de plant. Ahhough the enact basis for tius ruhng is not enurely clear, because a appears to test on tir close prominuty of the recteauonal acoviues to,the facihty rather than the nuue tenmte residences of the mdividuals. we do not consider it controlhng here. ,

• This anachnent was ongin.dly prepared to support a challenge to tir stafra preposed no sigruficant huards j consideranon rmdeng that accornpamed tir heanng opporturuty nouce for tir CP&l. anrndnrnt. The vahsty of that I prgwed deternunauon is, of course, not a matter belure us. see 10 C F R. 5 50 91(al(4). l 30 ,

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- or an interaction between the pools and the Harns reactor, that might cause such a partial water loss accident. See BCOC Contentions, Exh. 2, at 6-10, see also BCOC Contentions at 29-32. -

Relative to the standing criterion of injury in fact, what Dr. Thompson's decla-ration indicates is that the proposed CP&L expansion could create circumstances in which there could be releases that could go beyond the Harris facility boundry 1 and could have health or environmental impacts equal to or in excess of those that

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now exist for pools A and B. CP&L, however, posits two reasons why this show-

' ing is insufficient to establish BCOC's standing. First, citing the Commission's decision in Sequoyah fuels Corp. (Gore, Oklahoma Site), CL1-94-12,40 NRC 64, 72 (1994), it argues that Dr. Rompson's analysis relies on beyond4 sign-basis

- accident sequences that am too conjectural or hypothetical to provide a basis for .

standing. See CP&L Petition Response at 10. In addition, it points o'it that the j Staff recently has granted a series of exemptions waiving offsite emerger,cy plan- 1

. ning requirements for power reactor facilities that have been shut down, but will I retain spent fuel inventories in pools during the decommissioning process. See id.

at 11 & n.8 (citing, as an example,63 Fed. Reg. 48,768 (1998) (Maine Yankee exemption)); Tr. at 19.

j We find neither of these arguments persuasive. He Commission indicated in i Sequoyah Fuels. CLI-94-12, 40 NRC at 72, that during the threshold standing l inquiry, a petitioner need not establish an assened injury in fact basis with

" certainty" or provide extensive technical studies. Id. Here, in 'conformance {

i with that standard, BCOC has produced an explanation of why Dr. Thompson's accident concerns are not n: mote and speculative that is at least facially plausible.

See BCOC Contentions at 31-32. At the same time, nothing presented by CP&L, includ ng the referenced emergency planning exemptions, establishes a fatal flaw j

in his analysis. The exemptions involve facilities in which the power reactors are 1 no longer operating, a crucial distinction given Dr. Thompson't specific references

' to pool-reactor operation interaction as a supporting basis for his analysis.

Accordingly, we conclude that BCOC has made a showing sufficient to establish that it meets the criteria for standing in this proceeding.

B. Contentions As was noted earlier, in seeking to gain party status to this proceeding, BCOC has profTered eight contentions, three involving technical issues and five that concern envimnmental matters. For reasons that will become apparent, we deal with the admissibility of the technical contentions individually, but rule on the environmental sontentions as a group.

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1. Technical Csmtentions' l

TEClINICAL CONI'ENTION I (TC-1) - Inadequate Emergencj Core Cooling and j Residual lleat Removal .

CONTENTION: In order to cool treint fuel storage pools C and D, CP&L proposes to rely on the Unit 1 Component Cooling Water (" COW") system. coupled with administrative I prasures tu ensure that the heat load from the pools does not overtax the CCW systern CP&L's reliance on the Unit I CCW system and administrative ncasures for cochng spent fuel storage i

pools C and D will unduly compromise the effectiveness of the residual heat renuval("RilR")

system and the Energency Core Cooling System ("ECCS") for the Sheamn liarris plant, such that the plant will not comply with Criteria 34 and 35 of Append;x A to 10 C ER. Part 50.

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DISCUSSION: BCOC Contentions at 4-10; CP&L Contentions Response at 12- l 28; Staff Contentions Response at 4-10; Tr. at 29-87.

RULING: In discussing this contention, we utilize the six-basis construct outlined in the CP&L response to the BCOC contention supplement, which we  ;

find both useful and accurate.

a. Ilasis 1 - Even without the anendarnt to add pools C and D. the llams Fmal Safety Analysis Report (FSAR) shows that the CCW system is incapable of accomnaxiating the heat load from the re irculation phase of a design-basis loss of coolant accident (IDCA).

Although it questions the adequacy of the existing CCW system. BCOC has failed to provide any factual information or expert opinion that gives us n'ason to believe the relatively small addition to the heat load during a LOCA would have any effect on the ability of the system to cool the reactor. CP&L presented figures in its contention response and at the prehearing conference indicating that the heat removal capabilities of the system are adequate. See CP&L Contentions Response

at 16-17; Tr. at 56-57. Petitioner BCOC does not otter any specific calculation showing otherwise, nor did BCOC's expert allege that any specific limit would be violated. See Tr. at 34-39. The fact that BCOC's expert used an outdated version of the FSAR casts further doubt on the notion that any limits would be exceeded, and the Petit'ioner's dilliculties in identifying the latest version of the FSAR, while unfortunate, cannot form the basis for a valid contention.

j Accordingly, lacking adequate factual and expert opinion support, this basis is {

insufficient to support the contention. See Private Fuel Storage, LBP-98-7,47 l NRC at .180-81. In fact, in its present form, this basis appears to be a challenge f to the design of the emergency core cooling system (ECCS), which would place j 1

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Decause we prefer to have these first ehru contenuons designated by their subject maner category,i c. techsucal, we haw re,nrnbered them as technic.! contentmns i through 3. j l

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it outside the scope of this proceeding, and so again does not provide support for an admissible contention. See id. at 179.

b. Basis 2 - The analysis of CCW margin supporting the ticense anendarnt apphcation does not addms: the tune dependence of the CCW system heat load during a design-Lasis LOCA.

Basis 2, questioning the time depende:ce of the heat load analysis, likewise is without foundation. He shott of it is that CP&L did indeed take account of the time variation, as teth it and the StafT point out. See CP&L Contentions Response at 17-20; Staff Contentions Response at (w7; Tr. at 63-65. Petitioner's plea that the time dependence is complex, see Tr. at 40, raises no litigable issue.

No one doubts this issue is complex; however, an allegation of complexity is not a substitute for an adequately supported explanation of the exact nature of the matter in controversy. Nor is the BCOC complaint that some calculation sheets may not have been signed, see id., adequate to call the sebstance of the calculations into question, as would be necessary for any cognizable challenge to their accuracy.

Thus, besides problems with its materiality, *.his basis lacks sufficient factual and/or expett opinion support to make this a litigable issue. See Private fuel Storage, LBP-98-7,47 NRC at 179-81.

c. Basis 3 - The analysis of CCW nurgin supporting the hcense amendnent applicauon does not address the degradation of CCW and Ri!R heat exchanger perfonnance due to heat exchanger fouling and plugging.

TC-1, Basis 3, alleging a failure to account for fouling and plugging factots in the calculation of the analysis of the CCW margin, is simply incorrect. CP&L apparently did account for such factors, see CP&L Contentions Response at 20-22; Staff Contentions Response at 7, and the fact BCOC generally is dissatisfied with the level of detail in the calculation and is not sure whether the calculation has been finalized, see Tr. at 44, cannot form the basis of an admissible contention.

See Privare Fuel Storage, LBP-98-7,47 NRC at 180-81.

d. Basis 4 - The license nnendnent application does not address the potential for failure to comply with the adnsnistrative nrasure hnuting the heat load in pools C and D to 1.0 MBTU/ hour.

Basis 4, asserting an improper reliance on an administrative limit to keep the heat load in pools C and D withm safe tmunds, scarcely represents a change introduced by the proposed license amendment, as Petitioner would have us find.

The heat load in existing pools A and B, and indeed many other limits, depends j ultimately upon administrative controls. And there are many safety parameters like these administrative controls that could, at the discretion of the operating l

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organization, be pushed beyond their appropriate limits. hat, however, is precisely the reason for the adoption of technical specifications.

Among other things, technical specificaticas are intended to prevent the licensee organizatior, fmm exceeding a limit in a way that could pose a hazard. In the case of this license amendment, there is a proposed technical specification, Technical Specification 5.6.3.d, see License Amendment, Encl. 5, at unnumbered

p. 4, that would dictate that the stored fuel heat load for pools C and D not exceed 1.0 MBtu/hr. Given this provision, we agree with CP&L and the Staff, and the Licensing Board's ruling in General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23,44 NRC 143,164 (1996), that in order to posit a contention that requites the analysis of an action violating a specine technical specification, a petitioner would have to make some particularized demonstration that there is a reasonable basis to believe that the applicant will act contrary to the terms of such a requirement. Rus, in this instance, BCOC would need to show that circumstances exist that make the proposed technical specification especially prone to violation, which it has not done.

c. Basis 5 - De license amendm:nt application does not address the potential for increased operator error in diverting CCW system flow to nret the cooling needs of pools C and D during a LDCA cvent.

Basis 5 lacks specificity, as well as failing to raise any issue that is directly related to the change prornised in the present amendment. In this regard, CP&L and the Staff have indicated that the added burden on the operators is vanishingly small; the requirement to restore pool cooling already exists (and, indeed, exists for pools A and B with their substantially greater heat load); and the failure to perform that minor function would not lead to a substantial hazard. See CP&L Contentions Response at 23-26; Staff Contentions Response at 8-9; Tr. at 69-71).

In the face of this information, Petitioner's speculation that there may be excessive strains on the operators or that there may be critical temperature or humidity limits, see Tr. at 49-51, is simply that - speculation. Because BCOC has not identified any specific errors or hazards that may be occasioned or any specific limits that may be violated and has presented no calculations that can form the basis for this coatention, it lacks adequate support. See Private Fuel Storage, LBP-98-7,47 NRC at 180-81.

f. flasis 6 - The analysis supportmg the hcense amendment apphcation does not a<khrss the ability of Unit I clectncal systems to mect the needs of pools C and D while also supporting essential safety functions.

Basis 6, a complaint that CP&L has failed to analyze the new demands on the emergency diesel generator system, also lacks adequate support. See CP&L Contentions Response at 26-28; Staff Contentions Response at 9. The analysis 34 I

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supporting the amendrnent indicates that the diesel generators have capacity to

. spare. See Tr. at 66-67 And Petitioner's additional plea that the time dependency .

of these loads may,somehow show the system to be inadequate, see Tr. at 42, is again purely speculative. BCOC has given no reason to assume there is a time-dependent load that exceeds the peak given by CP&L in its analysis. See Private fuel Storage, LBP-98-7,47 NRC at !80 81.

In ' sum, we find ~101 lacks' an adequate basis and thus fails to meet the requirements for admissibility specified in 10 C.F.R. 6 2.714(b).

ThCilNICAL CONTENTION 2 (TC-2) - Inadeg'u ate Criticality Prevention CONTENTION: Storage of pressurized water reactor ("PWR") spent fuel in pools C and D at the liaris plant, in the manner proposed in CP&L's license anendnent application, wou!J violate Cnterion 62 of tie General Design Crienia ("GDC") set forth in Part 50, Aprendix A.

GDC 62 requires that' " Criticality in the fuel storage and handling system shall be prevented by physical sysems or processes, preferably by use of geonstrically safe configurations." In violation of GDC 62, CP&L propors to prevent criticality of PWR fuel in guols C and D by '

employing administrative nrasures which limit the combination of burnup and enrichnent for PWR fuel assemblics that are placed in those pools. This proposed reliarre on adrninistrative

, measures rather than physical systems or processes is inconsistent with GDC 62.

DISCUSSION: BCOC Contentions _ at 10-13; CP&L Contentions Response at 29-36; Staff Contentions Response at 10-13; Tr. at 88-118.;

RUUNO: ~In discussing this contention, we utilize CP&L's two-basis construct, which we again find both useful and accurate,

s. ' Basis 1 - CP&L's proposed use of credit for burnup to prevent criticahty in piols C and D is unlawful because GDC 62 pruhibits the use of administrative nrasures, and the use of credit for burnup is an administrative nrasure.

The Board has determined that this basis for the contentior: does indeed raise a genuine material dispute that warrants further inquiry so as to be cognizable in this proceeding. Specifically, the litigable issue essentially is a question of law: Does GDC ( : permit an applicant to take credit in criticality calculations for enrichment and burnup limits in fuel, limits that will ultimately be enforced by administrative controls?

While it is apparent that draft Regulatory Guide 1.13, at 1.13-13 to 15 (pro-posed rev. 2, Dec.1981), see Staff Contentions Response, Attach. 3, would permit ctiticality control by such limits, the PFS-referenced Commission admonition that

"[i]f there is conformance with regulatory guides, there is likely to be compliance with the GDC," Petition for Emergency and Remedial Action, CLI-78-6,7 NRC 400,407 (1978), is not a blanket endorsement of the notion that regulatory guides necessarily govern. Further, the instances cited by PFS in which the Staff issued licenses embodying administrative controls based on burnup and enrichment to 35

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prevent criticality are instances that stand, to the extent they stand for anything, for the proposition' that the Staff agrees with itself that its interpretation of this

' GDC is correct. The propriety of that interpn:tation cf GDC 62 has apparently never been tested in the crucible of an adversary adjudication. We will pennit such a test here by entertaining legal arguments on whether the use of ad.ninistrative limits on burnup and enrichment of fuel stored in pools C and D properly conforms to the requirements of GDC 62 for the ptevention of criticality,

b. Ilasis 2 - The use of crecht for bumup is proscribeo becs.use Regulatory Guide 1.13 requires the entic.tlity not occur without two indepemient f.iilur s, and txe failure, misplacerneid of a fuel nuembly; could cause enticality if credit for bumup is used.

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'Ihe sceond basis raises a question of fact; Will a single fuel assembly

mieplacement, involving a fuel element of the wrong burnup or ertrichment, cause criticality in the fuel pool, or would more than one such misplacement or a misplacement coupled with r.ome other error be needed to cause such criticality?

While CP&L and the Staff both assure us that, when account is taken for the boron present in the fuel pool water, a single misplacement cannot lead to criticality, the fact that the Staff has sought further information on this point, as evidenced by exhibit I proffered by Orange County during the preHaring conference,' suggests that further inquiry on the validity of any ca'culations involved is warranted in determining whether the required single failum criterion is met. Clearly the nature of the amendment, introducing as it does the presence of high density racks on the site, irr,olves a change that may call ints question conformance with this aspect of the regulations. Accordingly, we admit contention TC-2 relative to this basis as well.

TECilNICAL CONTENTION 3 (TC-3) - Inadequate Quality Assurance' CONTFNTION: CP&L's pmposal to provide conhng of pools C & D by relying upm the use of previously completed portions of the Unit 2 Fuel Pool Cooling and Cleanup System and the Unit 2 Conponent Coohng Water System fails to satisfy the quahty assurance enteria of 10 CFR. Part 50, Appendix 11, specifically Cnterion X1ll (failure to show that the piping and eqarpnrnt have been stored and preserved in a manrer that prevents damage or detenoration),

Criterion XVI(failure to institute near.ures to correct any darmge or deterioration), and Criterion XVII (failure to maintain necessary records to show that all quahty assurarre requirenrnts are

%sfied).

'%hde de petulency of a Staff requests for adhuonal intornation (RAI) such as llCoC extubit 1 is not a basis for delaying de ribng of contenuons. such an RM nuy provide the hans for a contenuon See Bahmwre Gas &

Dectric Co. (Calvert Ch8s Nuclear Power hant. Uruts I and 2). CLI-94-zS. 48 NRC 325,349 50 (1998), pesarma

. /sr om.<w peruhng. Nos 941002 & 99-IN3 (oC Car. Jan 4.1999 & Feb. R,19991 S

The wur&ng of dus contenuun reflects the uccantested BCOC revision provided to de Board, ne (BC(E']

~ Respanne to iPISj Protuned Rewur&ng of Contentum 3, Regarding Quahty Assurance (May 27.199u) at 2. with c#e Board clant: cation tPat is innhcoted by bradets.

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Moreomr, the Alternauve Plan semitted by Applicard iails to satisfy de requirerrentr, of 10 CER. 9 50.55a for an exception to the qtnbry a'isutwee enteria because it does nr4 descnbe any pogram fur maintaining the idle ppng in goni condition over the intervesng ytn between consu.iction lam 1impleocriation of the proposed license anenbent, in dies it descnbc a pogram for i&nufying and enrdutmg potendai corrosian AM fealing.

Tte Alternative Man submined t>y Applicant is also d.:hs.icts tm.ause 15 welds for which ~

certain quabty assurance records are usring are emNdied in encretc and inacction of the wlds to demonstrate weld quahty cannot be achquawly accomphshed with a mnote cunera.

Firw4y. the Alterr.atm Plan subnvited by Apphcant is deficier.t became not it other welds entedded in concrete will te irupected by the remote cantra, and the weld quahty cannut tc

&mmstrated adequately by ciretuntamtial evidence.

DiscussicN: ~ BCOC Contendas at 13-19; CP&L Cotitentions Pesporse at 36-48; Staff Contentions Response at 13-16; Tr. at 118-53.

f' ROUNG: We alSO will admit conten6cn TC 3 for litigation. First, it is uncleat from the present filings whether the criteria of Appendix B are to be enforcui or

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not. CP&L says they will be complied with. See CP&L Contentions Response j at 40. The Staff says they need not be. See Staff Contentions Response at 15.

BCOC clearly triieves they must be met. If, indeed, the enteria here applicah!c are : hose of 10 C.F.R. 5 50.55a(a)(3), they require tne Applicant to demonstrate that:

(i) Tie pmpned a'tematives would provide an acceptaM: level of quality and safely. or (ii) Compliance with the specified requirenents of this section would result in tenhp or I unusual drfFmity without a conpensating increase in the level of quahty and safety Such criteria are inherently more nebulous and governed by subjective judgment to {

a prater degree than those otherwise applicable to quality assurance matters under

{

,0 C.F.R. Part 50, App. B, and the American Society of Mechanical Engir.cers 1 (ASME) Boiler and Pressure Vessel Code. In particular, we have heard nothing about such points as " hardship," " difficulty," or " compensating increase in the i level of quality and safety." And, of course, if CP&L's plea is that the proposed ahernatives provide an acceptable level of safety, we will need to confront direct!y the question of whether a failure of quality control could lead to a hazard, a  !

question about which there is clearly a dispute between CP&L and BCOC.

It also is clear from the positions of all the participants that some of the piping and equipment have not been properly stored and proper records regarding i's quality during that period have not been maintained. Whe:her such storage and v maintenance are necessary as a matter of law and fact is clearly a subject of dispute l

among the participants. The argument conceming this point is not a simple one, nor do we have material on which we can rely to determine the matter. 1 We are prescally uncertain as to the euct scope of the failure to meet the requirements of the regulations, and that scope is uncertain concerning both the i

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equipment involved and the extent to which r.ach piece of equipment may itself be lacking. Although we heard participant presentations on these matters, much of this borJered on testimony submitted without the purifying challenge of cross examination by parties familier with the details through discovery.

Thus, to recap, contention 'IC-1 is rejected as inadrnissible while contentions TC 2 and TC-3 are accepted for litigation in the form and subject to the interpre-tations set forth above.

, 2. Environmental Contentions *

, Petitioner BCOC specined five environmental contentions in its supplement, as

~ follows:

't ENVIRONMENTAL CONUNTION 1 (EC-1)- Proposed License Amendment Net Exempt from NEPA '

CONTENTION: CP&L errs in clainsng that the proposed license anruhirnt is exempt ftr.un NEPA under 10 C.FR. t $1.22.

ENVIROMifNTAL CONTFNTION 2 (EC-2) - Environmental Impact Statement Required CONTENTION: The proposed hcense anendnent is not supported by an Environnental impact Statenrat ("EIS"), in wolation .>f NEPA and NRC's inplenrnung rtgtdations. An EIS should cumine the effects of the proposed license amendarnt on the probability and consequen:es of acculents at me llanis plant. As nx;uired by NEPA and Cornmission policy, it should alAo examine the costs and tenef.ts of the prv> posed action in comparison to various altenutives, ircluding Severe Accident Design Mitigation Altematives and the attematrve of

. dry cask storage.

ENVIRONMFNTAL CONTmTION 3 (EC-3) - Scope of EIS Shouki include Brunswick and Robinson Storage CONTINTKN Tie EIS for the proposed licerne anondment should include within its scope the storage of spent fuel fmm the Drunswick and Robinson nuclear power plants.

ENVIRONMENTAL CONTE 14 TION 4 (EC-4) - Even if No EIS Required, Envi-ronmental Assessment Required

/ CONTENTION: Even if the Liecnsing Board finds that no EIS is required, it must order

- the pirparation of an EA.

• 1KT)C nunibreed these c<,elenuona sequenua[y as coruentiorm 4 through 8. is with dr techmcal amientions, we greier to see them designated t'y thcar subject maner catepny i e. envimnmental, and so renumber them accardmgly n

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ENVIRONMENTAL CONTENTION 5 (EC-5)- Discretionaq EIS Warranted CONTENTION: Even if the Licensing Ikiard deterusres that an EIS is not required under NEPA and 10 C.ER,151.20(a). de Board should neverdeless require an EIS as an exercise of its discretion, as permitted by 10 C.ER. Il $1.20(h)(14) and 51.22(b).

l DISCUSSION: BCOC Contentions at 19-41; CP&L Contentions Response at 49 65; Staff Contentions Response at 16-2C; Tr. at 153-70.

RUUNG: BCOC essentially agroes 'with the CP&L and Stati assertions that these contentions have been superseded by a StafT decision pursuant to 10 C.ER.

0 51.30 to issue an environmental assessment (EA) m /c 'll of this year. See Tr. at 153, We would agree because, in connection with such an assessment, the Staff will consider whether an EIS is needed relative to the CP&L amendment.

See 10 C.ER. 6 51.31. CP&L and BCOC nonetheless do seek direction from the Board regarding two of the contentions in CP&L's case, it seeks a dismissal with prejudice of EC-3, regarding the transfer of spent fuel from the Brunswick and Robinson facilities, asserting that consideration of the environmental impacts of storing fuel from 1:se facilities was incorporated into the operating license proceeding for the Harris facility. See CP&L Contentions Response at $4,57-59; see also StafT Contentions Response at 17. And for its pan, BCOC seeks guidance on EC-5 regarding the Board's discretionary authority to order the Staff to prepare an EIS. See Tr. at 155.

In both instances, we decline the invitation to delve further into these con-tentions. Wha:ever validity these arguments may have in the context of further late-filed contentions subnutted after the Staff's EA, see 10 C.ER. 6 2.714(b)(2)(iii),

for now we consider any Board rulings to be premature. Accordingly, we dismiss all BCOC's contentions, but without prejudice to their being raised before the Board at some later juncture, as appropriate.

IIL ADMINISTRATIVE MATTERS As we noted during the prehearing conference, see Tr. at 171, this spent fuel capacity expansion proceeding is subject to the hybrid hearing process outlined in 10 C.ER. Pan 2, Subpart K, to the degree that any party wishes to invoke those procedures. Under Subpan K, following a 90-day discovery permd, which can be extended upon a showing of exceptional circumstances. the parties simultaneously submit a detailed written summary of all facts, data, and arguments that each party intends to rely upon to suppon or refute the existence of a genuine and substantial dispute of fact regarding any admitted contentions. See 10 C.ER. 65 2.1111, 2.lll3(a). 'lhen, an oral argument is conducted by the presiding officer in which 6e parties address the question whether any of the issues require resolution in an aa;udicatory proceeding because there are specific facts in genuine and substantial 39

F' dispute that can be resolved with sufficient accuracy only by the introduction of evidence. See id. Q 2.1115(b1 Dereafter, the presiding officer issues a decision that designates the disputed issues of fact for an evidentiary hearing and resolves any other issues. See id. 6 2.1115(a).

Subpart K specifies that within 10 days of an order granting a hearing request

'in a proceeding such as this one, a party may invoke its procedures by filing a written request for an oral argument. See id. 5 2.1i'(a)(1). Accerdingly, if CP&L, the Staff, or BCOC wishes to use the Subpart K pocedures, it must file a request within 10 days of the date of this Memorandum and Order, or on or before Thursday, July 22,1999.

IV. CONCLUSLON As a local governmental entity with a sovereign interest in protecting the health and welfare of its citizens and the environment within its boundaries, which come within approximately 17 miles of the Harris facility, Petitioner BCOC has made a showing, sufficient to establish its standing to intervene as of right in this spent fuel pool expansion proceeding. Further, we find two of its eight contentions, TC-2 and TC-3, are supported by bases adequate to warrant further inquiry so as to be admitted for litigation in this proceeding. Accordingly, we grant BC(X"s intervention petition and admit it as a party to this prcceeding.

For the foregoing reasons, it is, this 12th day of July 1999, ORDERED that:

1. Relative to the contentions specified in paragraph two below, BCOC's hearing request / intervention petition is gmnted and BCOC is admitted as a party to this proceedmg.

2. The following BCOC contentions are admitted for litigation in this pro-ceeding: TC-2 and TC-3.

3. The following BCOC contentions are rejected as inadmissible for litigation in this proceeding: TC-1, EC-1. EC-2. EC-3, EC-4, and EC-5.

4. The parties are to file any request for an oral argument under 10 C.ER.

9 2.1109(a)(1)in accordance with the schedule established in Section III above.

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S. In acconiance with the provisions of 10 C.ER. 5 2.714a(a), as it rules upon an intervention petition, this Memorandum and Order may be apper. led to the Commission within 10 days after it is served.

TIIE ATOMIC SAFELY AND LICENSING BOARD' G. Paul Bollwerk, til ADMINISTRATIVE JUDGE Frederick J. Shon ADMINLSTRAT1VE JUDGE Peter S. Lam ADMINISTRATIVE JUDGE Rockvi'le, Maryland July 12,1999 I

i T

Cques of dus Menmndum and order were wnt tlus date tiy Internet e-miul transnusson to counul for (1) '

Apphcant CP&L;(2) Intervetur BCoC, and (3) the Staff 41 J

' Cite as 50 NRC 42 (1999) LBP-99-26 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

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

P.91VATE FUEL STORAGE, LLC.

(Independent Spent Fuel Storage installation) July 27,1999 MEMORANDUM AND ORDER (Dismissing Contention. Utah F/ Utah P)

By motion filed July 13, 1999, Intervenor State of Utah (State) has requested that the Board dismiss contention Utah F/ Utah P, with prejudice. This consolidated issue concerns the adequacy of training and certification of personnel for the proposed Skull Valley, Utah independent spent fuel storage installation (ISFSI) of Applicant Private Fuel Storage, LL.C. (PFS). In its motion, the State declares

' that dismissal of this contention is appropriate because it is now moot. According to the State, it has settled its dispute with PFS in connection with this issue, as evidenced by an attached July 13, 1999 letter from PFS counsel outlining the terms of an agreement between the parties regarding contention Utah F/ Utah P.

The State also indicates that the NRC Staff supports its motion. See [ State] Motion to Dismiss Utah Contentions F and P (July 13,1999) at 1 (hereinafter State Motion to Dismiss]. No other party to this proceeding has filed a response objecting to, or otherwise commenting on, the State's request.

42

7 Under the terms of the settlement between the State and PFS relative to this issue, PFS has agreed to make language changes that incorporate six items into the Safety Analysis IUport (SAR) accompanying its 10 C.F.R. Part 72 ISFSI application. These changes include SAR revisions indicating that PFS will use a training approach for its personnel that includes the five elements of the Systematic Approach to Training (SAT) set forth in 10 C.F.R. 955.4: that PFS, to the extent it acts as n' rail carrier from the existing main rail line to the PFS facility, will comply with applicable United States Department of Transportation (IXIT) statutes and regulations and the rail carrier requirements of 49 U.S.C. Subtitles IV (Part A) and V and tne associated implementing regulations in Title 49 of the Code of Federal Regulations; and that PFS, to the extent it acts as a motor canier between

- the main rail line and the PFS facility, will comply with the DUT motor carrier requirements, i. eluding 49 U.S.C. Subtitle IV. Several of these items, however, are subject to a disclaimer, requested by the Statiand apparently not objected to by the State, that the PFS SAR commitment does not constitute a license condition i or licensing commitment under any 10 C.F.R. Part 72 license issued for the PFS facility; does not rer. der ti,e commitment subject to 10 C.F.R. 672.48; and does not obligate the Staff to enforce the requirements or undertake enforcement action with respect to a violation of the requirements under any 10 C.F.R. Patt 72 license issued to PFS. See State Motion to Dismiss, unnumbered attach. at 1-3 (July 13, 1999 Letter from Paul Gaukler, Counsel to PFS, to Diane Curran, State Counsel).

After reviewing the State's motion and the accompanying attachment, and finding nothing therein that is inconsistent with the public interest,i we grant the State's July 13,1999 motion to dismiss. Further, as requested by the State, contention Utrh FIUtah P is dismissed with prejudice.

I ln granung de staie's nouon to 6snuns. we express no opinion on de extent to which de stairequested 6sdainers regarding tte effect of incorporaung de its conmuunents into de facihry SAR rnay inpct er Board's mathunty relative to any funire attene to enfurce de agreenent betwen ITS and de state.

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It is so ORDERED.

THE ATUMIC SAFETY AND LICENSING BOARD 2 1

G. Paul Bollwerk,111 ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISMATIVE JUDGE Peter S. Lam ADMINISTRATIVE JUDGE Rockville, Maryland July 27,1999 2

Colnes of this Menuwandum and Or&r were sent this date by Internet e.nsul transnnsson to counsel for (1)

Apphcani FTS; (2) Intervernws 5kull %!!ey Hand of Goshute imbans. Ohngo Gauda&h Ikvia, Confederated Tnbes of the Goshule Reservanon. Southern Uuth Wdderness Athance. and tir State, and (3) tie Staft 4-I I

I J

o, Cite as 50 NRC 45 (1999) LBD-99 27 UNrrED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Thomas S. Elleman Thomas D. Murphy in the Matter of Docket No. 50-029-LA-R (ASLBP No. 99-754-01-LA-R)

(License Termination Plan)

YANKEE ATOTAIC ELECTRIC COMPANY

. (Yonkee Nuclear Power Station) July 28,1900 in a proceeding involving the adequacy of a License Tennination Plan (LTP) for the Yankee-Rowe reactor, where the Licensee seeks to withdraw its LTP and to substitute another one (using a modified survey metbdology) at a future dMe, the Licensing Board grants th: Licensee's motion and terminates the proceeding (except for matters pending before the Commission itself) without prejudice. The Licensing Board declines to impose termination conditions, such as reimbursement of fees and costs, sought by the Intervenors.

LICENSING BOARDS: DELEGATED AUTIIORITY Given the prior issuance of a Notice of Hearing, a licensing board has authority pursuant to 10 C.F.R. 6 2.107(a) to permit a licensee to withdraw its application on "such terms as the [ licensing board] may prescribe." Such terms may include, as appropriate, withdrawal with prejudice, the payment by the licensee of fees and costs of the intervenors, or the performance of requested discovery.

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' LICENSING BOARDS: DELEGATED AUTilORITY The wording of 10 C.ER. 6 2.107, granting the Commission the authority to terminate a proceeding "with prejudice" prior to issuance of a Notice of liearing, does not preclude a licensing boant under its general termination authority from terminating "with prejudice" after issuance of a Notice of IIcaring. See Puerto Rico Electric Ibwer Authority (North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125 (1981); Philadelphia Electric Cn (Fulton Generating Station, Units I and 2),.ALAB-657,14 NRC 967,974 (1981). l I

RULES OF PRACTICE: TERMINATION OF PROCEEDING l

Where contentions have been admitted but not yet litigated, dismissal of the proceeding with prejudice would amount to an adjudication on the merits of those

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contentions. ,

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LICENSING BOARDS: JURISDICTION.

' Licensing boards lack jurisdiction to terminate a matter pending before the Commission itself. In addition, where rulings on intervenors' standing were those of the Commission, the licensing boa icks jurisdiction to accord a "with -

prejudice" termination with respect to such standing rulings.

RULES OF PRACTICE: TERMINATION OF PROCEEDING A licensee that has submitted an LTP cannot unilaterally withdraw that ITP when it disagmes with conditions imposed aner litigation. That practice might subject the licensee to payment of fees and costs to the intervenors. ,

RULES OF PRACFICE: TERMINATION OF PROCEEDING A licensing board has authority, in appropriate circumstances, to condition termination on the licensee's payment of fees and costs to the intervenors. But the prospect of a second proceeding, standing alone, is not a legally cognizable harm that would warrant payment of fees and costs. See Duke Ibwer Co. (Perkins Nuclear Station, Units 1, 2, and 3), LBP-82-81,16 NRC 1128,1135,1140-41 (1982).

RULES OF PRACTICE: TERMINATION OF PROCEEDING Although the licensing board would have authority to impose, as conditions of termination, the licensce's completion of its responses to discovery previously 46

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, , submitted by imer*,enors and pending as'of the dat'e of the termination motion, such conditions are not warranted 'or appropriate in the present factual situation.

Intervenors' request for further discovery relating to not.yet-admitted contentions is denied as being beyond the scope of the discovery rules.

MEMORANDUM 'AND ORDER (Termination of P veeeding)_

His proceeding concems the adequxy of the License Terminatica Plan (LTP) t submitted by Yankee Atomic Electric Company (YAEC or Licensee) for the Yankee

Nuclear Power Station located in Rowe, Massachusetts. YAEC has withdrawn its .

curmnt LTP, has indicated that it'will file another substantially different LTP at ~

a later undetermined date that could be a decade or more in the future, and has moved to terminate the proceeding. For reasons hereafter set forth, we are granting -

the requested withdrawal and terminating the proceeding.-

L PROCEDURAL BACKGROUND The pmcedural background to the Licensee's termination : notion is set forth in our June 14, 1999 Memorandum and Order (Requesting Replies to NECNP Response to Termination Motion), LBP-99-22,'49 NRC 481. Here, we determined that, pwsuant to 10 C.ER. 52.107, the Licensing Board rather than the Commission should rc in the first instance on the termination motion, notwithstanding the

' circumstance that YAEC's motion to terminate was directed to the Commission.

We also observed that the Intervenors, the New England Coalition on Nuclear l'ollution (NECNP) and the_ Citizens Awareness Network (CAN), were opposing temination absent payment by the Licensee to the Interw ors of specified costs oaciuding attorneys' fees) and performance by YAEC of c tain discovery-related .

activities 2 We invited replies to the NECNP/CAN proposals for payment and

. perfonnance of specified tasks.

._YAEC tiled two recponses to the NECNP/CAN proposals - the first accom-panied by a motion for leave to reply (filed befom we had issued LBP 99-22) and the second a' supplemental response covering additional matters' raised by I lioard Nonricadon (Withdrawal of Apphcanon) anti Madon To Ternunate Proceeding and !%smiss Appeal, dated r May 26,19W (Ternunation Motiont 2

intervenors' opposinon to Yankee Atonne Electric Cornpany's (YAICs] Mouca to Ternunate and Proposed Form of order far Expenses, hra and Responses to thscotery, dated June 7.1999 {Mution for Condidons).

47

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1 LBP-99-22.5 'Ihe Franklin Regional Council of Governments (FRCOG) filed .

response to LDP-99-22 on June 22,1999 [FRCOG Reply). CAN filed a reply on June 23,1999 [CAN Reply). NECNP's reply was filed on June 24,1999 [NTENP  ;

Reply]. On June 29,1999, YAEC filed a Motion for leave to Reply to NECNP's

)

and CAN's Replies, a motion that we grant.d Finally, on July 6,1999, the NRC  !

StafT filed its timely response to LBP-99-22, as well as to the replies or responses I filed by various other parties [ Staff Response]. Faced wifh the foregoing plethora of papers, we turn m 6 substance of the proposals before us.

I J'

IL TIIE NECNP/CAN PROPOSALS l

As set forth in their June 7,1999 proposal (" Motion for Conditions"), as well l

as their June 23, 1999 and June 24, 1999 replies, Intervenors are seeking, as a condition of termination, YAEC's payment of attorneys' fees and other costs of litigation. In addition, NECNP and CAN seek to have YAEC complete the j discovery previously requested by NECNP or CAN and to have those responses and j documents placed in the local public document room. Finally, they seek to have '

any termination be "with prejudice" insofar as it would affect the Commission's ruimg as to their standing, in wpport of this proposal, NECNP/CAN cite the extensive costs of litigating 1 this proceeding that they have incurred. 'lhey state (backed by an affidavit I specifying particular expenses and fees for which they are seeking reimbursement) that they have invested "considerabic time and money" for "over a year."5 They list costs and expenses of $15,603 and attorneys' fees of $44,254 (442.54 hours6.25e-4 days <br />0.015 hours <br />8.928571e-5 weeks <br />2.0547e-5 months <br /> 05100foour), for a total of $59,857.*

1 1 hey claim that at the future date when a new LTP will likely be filed, their )

expenditures on this proceeding will have gone for naught: "Intervenors will not likely be able tu use any M the materials or experience they have assembled to date l

I to tackle a new LTP submitted a decade from now."7 They assert that, pursuant j to 10 C.F.R. 6 2.107(a), and in the situation where, as hen:, the Board has issued a Notice of Hearing, we possess legal authority to condition the termination on YAEC's payment to Intervenors of such costs.

3 Monon or YAEC for tanve to Respond to Intervenors' "oppouuon to . . . Motion to Termmate [Etc )." dated June 14,1999tYAEC Reply.11. Response of YAlf to LDP-99-22." &ned Juar 17. IW9 lYAEC Reply-2). We ymns YAICs request for us to anept for rshng YAEC Reply 4.

' Mason far Leave to Reply (Intervenors' June 23,1999 and June 24.1999 Fihngs), dated Jwie 29. lW9 {YArf j

R 1 7 y-3).  !

Mouan for Constions at 12.

6

/d at 2 n.l.

'id as 3.

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In support of the requested reimbursement, Intervenors portray YAEC's tennina-tion as an attempt to impose as much monetary cost as possible on the Intervenors.

They characterize the withdrawal as " untimely." They assert YAEC had knowl-edge of the MARSSIM protocols" mom than 18 months earlier. Adoption of those protocols at this time caused the LTP to be abandoned, after Intervenors expended much time and effort on the proceeding.' "YAEC's decision to defer filing for an entire decade is plainly an attempt to avoid both this [ Board's] jurisdiction of the j matter an

• responding to the Intervenors' legitimate and serious issues . . " ' ' i lhe Intervenors go on to assert that there has been extensive public interest in f

this proceeding and, in particular, in the information the Intervel. ors requested by I way of discovery. (That infc tation had not, as of the date of the tennination motion, and has not as a result of such motion. yet been provided). The Intervenors also reference the hydrogeological information provided by them as one of the bases for their proposed environmental contentions," to which (as a result of the

. termination) no parties have responded and on which we have not acted. (The Environmental Asseasment giving rise to those contentions is based on the cuitent LTP, leading us here to dismiss those proposed contentions as moot.) NECNP/CAN asselt that "Intervenors (and the public) have not obtained any reassurances about the actual levels of contamination" at the site. 2 And they call upon YAEC to perform proper hydrogeolot ical studies to fill this information gap. The discovery responses, studies, and documents may, in their view, be imposed as a condition pursuant to 10 C.ER s 2.107(a), and woul<1 be both provided to the Intervenors and filed in the Local Public Document Room.

IIL RESPONSES TO NECNP/CAN PROPOSALS Of the various other parties or participants, only FRCOG supports the termi-nation conditions sought by NECNP/CAN. It characterizes the sought discovery responses as "particularly important" to FRCOG."

YAEC strongly opposes the proposed tennination conditions and seeks our termination of this proceeding "without prejudice." It questions whether we have authority to award costs as a termination condition. Even assuming such authority, it questions whether the costs and fees should properly be assessed in

'NUREG 15710PA 402-R-97106. Muluagency Radiation survey and site Investigation M.mual (MARsslM).

dated December,1997.

' Proposed Findingt and Conclusions anached to Intervenors' Motion kr Condicons.11 N

id 13.

H [NECNP's) Request for Permission to File Contentions and Contenoons on the inadequacy of NRC staffs Apnl 12.1999 Environnrntal Anussnent and findmg of No sigmficant impact of Approval of the Yankee Nuclear Power Company's [LTP). dated May 17,199tJ UMotion for Cordiuons at 4.

U RCoG Reply at 4.

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this proceeding. YAEC characterizes the expensee incurred by NECNP/CAN as the normal type of litigation expenses for which a pany would not normally be reimbursed. And it opposes the sought discovery as inconsistent with the Rules of Practice, which limit the scope of discovery to admitted conteraions. With respect to applicability ;o a new LTP, YAEC assertr that the admitted contentions based on the withdrawn LTP would not have ar y relevance. Finally, it asserts that standing must be tied to each proceeding; whether NECNP or CAN would organi tationally qualify for standing regarding a new LTP, submitted many years into the future, would depend in part on the makeup and membership of the organizations at : Sat time and whether any member would be affected by a new LTP.

He Staff for the most part takes a similar approach, favoring tennination "without prejudice." He Staff agrees that standing is related to a particular proceeding. But it points out that no one has moved for the Commission to vacate its standing determination (CLI-98-21) and, accordingly, that decision remains on the books.

IV. LICENSING BOARD ANALYSIS It is clear that the Licensing Board has authority, given its prior issuance of a Notice of Hearing, to permit YAEC to withdraw its application or. "such tenns as the [ Licensing Board] may prescribe." 10 C.F.R. 6 2.107(a). That Rule itself does not define the conditions that may be imposed, but it manifestly does not J preclude either withdrawal with prejudice, or the payment of costs and fees, or the performance of the nxiuested discovery activities as requirements of withdrawal.

A. . Termination with Prejudice YAEC first takes the position that we have no authority to terminate the proceedings "with prejud;ce." It cites the rule itself (10 C.ER. 6 2.107(a)) as permitting this result only when the Commission itself grants termination and then only prior to the issuance of a Notice of Hearing.

In our opinion, YAEC's reading of the rule is tenuous at best, as well as contrary to earlier decisions. Merely because the rule explicitly permits the Commission at an early stage of the proceeding (" prior to the issuance of a notice of hearing")

to terminate "with prejudice" does not necessarily or even logically mean that the more general grant of authori'y to licensing boards acting after issuance of a Notice of Hearing does not include similar authority. At that stage of the proceeding, the licensing board has a more detailed knowledge of the scope of a proceeding than does the Commission and thus would be m a more appropriate position to evaluate whether a termination should be with prejudice (thus barring future relitigation of similar issues). In any event, the Appeal Board previously has sanctioned 50

i a Licensing Board's exploration of the possibility of dismissal of a prom ,g d with prejudice. Puerto Rico Electric Power Aut*mrity (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125 (1981). Further, the Appeal Board has explicitly  ;

confirmed a Licensing Board's authority under 10 C.ER. 92.107(a) to dismiss with I prejudice whem appropriate. Philadelphia Electric Co. (Fuh(m Generating Station, Units t and 2), ALAB 657,14 NRC %7,974 (1981).

But we need not here rexh the legal scope of the rule, inasmuch as we find no value to the Intervenors (to the extent they seek a "with prejudice" dismissal) of such a dismissal, except perhaps with respect to the Commission's ruling on standing. Dismissal with prejudice wculd amount to an adjudication on the merits of the admitted contentions. Duke Power Co. (Perkins Nuclear Station, Units 1,2, and 3), LBP-82-81,16 NRC 1128, i135 (1982). The contentions that we admitted were focused on the current LTP and alleged deficiencies and i.iadequacies therein; almost perforre they could have no relevance to a future LTP based on a differing survey methodology."

As for standing, the Commission's ruling in CLI-98-21 could be of utility to the Intervenors if they were to challenge a future LTP. As both the Staff and YAEC point out, however, standing is unique to every proceeding, depending in part on injury caused by a specific activity (such as an LTP), the identity of the person or group claiming to be affected thereby, and current judicial and administrative rulings on standing? We also believe that a "with prejudice" termination with respect to standing would igr.are the essential usefulness of standing to determine whether persons may have an actual interest in a particular proceeding? Although the Commission could treat the termination as "with prejudice" with respect to its standing rulings, we lack authority to grant such a dismissal because CLI-98-21 was a ruling of the Commission itself.

Ilowever, we note that, as both the Staff and NECNP point out, there has thus far been no motion to vacate the standing rulings in CLI-98-21? We believe that those rulings represent a useful discussion of the basic elements of standing and can serve as guidance to the boards and litigants generally as to the proper scope of requirements for standing. For that reason, we believe that the best course here would be for the Commission to let stand its decision in CLI-98-21 and for the Board to refrain from imposing a "with prejudice" termination with respect to standing.

" We express no opman with respect to YAEC's termmation nonon ii. sofar as it seeks disnnsal of YArCs appeal to the Conymssion wittout pejuece. We lack junsact<on to consider that smuon. or the intervenors' attempt to have the appeal 6srniswd with prejuece. That nxmon is currently before the Comnessica 35 YAEC Reply 2 at 2 3; staff Response at 67 & n 8. The staff pmnts out instances where the Commission has not required a fun denunstrauon of stanang by parties secking to intervene in poc.ce&ngs related to one in which they have been adnutted staff Resp nie at 6.

"Even though the scope of a puceceng on a future tIP is hkely to be similar to the scope of this procee&ng.

the makeup of the intervemng orgarszations nmy well change, 87 NICNP Reply at 3. staff Ressmse at 5-6.

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- B. Reimbursement of Fees and Costs I

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'Ihe hean of the NECNP/CAN propwb n iheir request that termination be conditirned on reimbursement to them of dur costs and fees of participatien.

q YAEC asserts that it is doubtful that the Commhsion has authority to coadition withdrawal on the payment of fees and expenm. It states that we could not order

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YAEC to pay fees and expenses and there A "gtave doubt" whether we could j condition withdrawal on such payment, citing an early decision in Phcific Gas and Elecfde Co. (Stanislaus Nuclear Project, Unit 1), LbP-83-2,17 NRC 45,54 (1983). It add.4 that the Commission tas never awarded such fees and casts. It i goes on to demonstrate why, even if we had the audiority, imposing costs and fees as a condition of withdrawal would be inappropriate.

According to YAEC, the payment of litigation expenses as a conditioc of termination without prejudice is limited to cases in which the intervenor has already prevailed on t,pecific aspects of the application (which has not hitppene,) here).

YAEC distinguishes the cases cited by NECNP/CAN as based on the Federal Rutes of Civil Procedure, which are not applicable here, and as premised on civil litigation, where different facton, are involved, particularly a tack of the public j interest function that governs NRC prmeedings. Finally, YAEC character,zes the 1 result of withuawal as a victory for the Intervenors, producing the result that they explicitly sought.'8 YAEC's analogies are not entirely appropriate. In the first place, the Intervenors are seeking not to defeat the LTP (as YAEC claims) but rather to ensure that whatever LTP might be adopted includes provisions that would ptotect its interests.

To assert, as does YAEC, that it could withdraw any LTP with which it does not entirely agree and thereafter replace it with another is essentially to claim that the hearing process can and should be ignored. The Commission has emphatically j ruled to the contrary:

The Commission [ finds] it " appropriate" "to use tie [ license] anendurnt process for approval of tennination plans, includir.g the associated opportunity for a hcanng. to alkw public l parncipation rm the specyic onter requurdfor license ternunaticn" i

. If the LTP were approved despite a failure to satisfy the requirements of 10 C.ER.

]

g 50 82(aX9.Xii), then the subsequent implenentation of the LTP and terminatian of the POL could result in the inappropnate release of a site that still poses a threat to public heahh and safety . a decision [ denying YAliC's n: quest for approval of the LTPJ would necessarily ]

conclude that tie LTP did not comply with 10 C ER.150 82(aK9Xii) and/or (10). and would require Yankee Atomic to draft tie LTP in a way that would satisfy the requirenents of those regulations . . [ emphasis supplied].

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Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21,48 NRC 185, 196, 209-10 (1998).

Moreover, another Licensing Board detennination appears to find authority for payment of fees'and costs in appropriate cimumstances, based in part on an Appeal Board observation in North Cc9st, ALAB-662, supra, la NRC at 1135 n.ll. See Duke Ibwer Ca (Perkins Nuclear Station, Units 1,2, and 3), LBP-82-81,16 NRC 1128,1140-41 (1982) (fmding payment of attorneys fees to be authorized although unwarranted in the pmticular circumstance)._ As that Boarri remarked, "[i]s there something about money that takes reimbursement of litigation expenses out of the bank of possible conditions available to avoid legal harm to an adversary?" Id. at 1140. He Boant ruled that "[t]he absence of specific statutory authority does not prevent boards from exercising reasonable authority necessary to carry out iu responsibilities and a money coadition is not necessarily barred from consideration." Id, We find that authority to be persuasive and will treat reimbursement of costs and expenses as a condition that, if warranted, we could impose under 10 C.ER. 5 2.107(a).

To determine whether litigation fees and expenses should be re%bursed, we would have to find that there has been legal harm to the interv' ars caused by some activity or action of the Licensee. The prospect of a second pnxeeding, standirig alone, is not a legally cognizaNe harm. Perkins, LBP-82-81, supra,16 NRC at 1135.

He latervenors, however, seenungly perceive that YAEC's withdrawal at this time was designed both to cause NECNP/CAN added expenses by requiring duplicative expenses for them to protect their interests at some future date and to permit YAEC in the future to confront a different Licensing Board more inclined than are we to accept their presentations on various issues. In short, they portray YAEC's withdrawal at this time as a type of forum shopping, in our view, the inferences drawn by NECNP/CAN are unwarranted. YAEC appears to have vahd, if not compelling, reasons or r.ot withdrawing its current LTP until this time. He major expressed tv tson for the withdrawal - the planned substitution of site survey methodologies - was based on the release of the MARSSIM rxthodology in December 1997. His methodology had been jointly developed by numerous federal agencies called upon to conduct site surveys - the Environmental Protection Agency, Department of Energy, Department of Defense, as well as NRC - and thus would avoid some of the multiagency criticism to which the earlier methodology in NUREG/CR-5849 [5849] had been subject.

According to YAEC, the Commonwealth of Massachusetts also concurs in the use of the MARSSIM technology. According to YAEC, "M^.RSSIM is considered to be snore rigorous than the 5849 metinxiology, and it enjoys a universality of approval that the 5849 Methodology never apparently achieved." YA2C Reply-1 at2.

53

The MARSSIM methodology is both lengthy and complex - its text is more than an inch of double-sided pages. It is not surprising to us that it took YAEC almost 18 months to determine that it would incorporate it into its ITP and would require a new LTP bawd on the complexities involved. Moreover, under NRC regulations, YAEC is permitted to withhold filing of any LTP until 2 years prior to license termination, which is not predicted to take plaec for nmy years "at least a decade," according to YAEC (Termination Motion at n.1). See also 10 C.F.R. I 50.82(a)(9)(i).

It may be true that YAEC's withdrawal of its current LTP at this time may result in the Intenenors' expending more in total than they otherwise would have spent in litigating the adequacy of the current LTP. The opposite may also be true

- Intervenors may fird less fault with a new LTP than they do with the current one. Forther, although YAEC may not have agreed with all the rulings of this Board, we find no evidence at all to indicate that their withdrawal of the current LTP was motivated by forum shopping.

In any event, the litigation fees and costs for which NECNP/CAN seek reimbursemeat seem to be no more than the legitimate expenses of litigating a complex proceeding, for which a party would not normally be reimbursed. We believe that YAEC did not take steps that would have reduced costs to Intenenors

- such as awaiting the outcome of its motion for reconsideration of Contention 4 prior to its filing of an appeal of all contentiora to the Commission. (We would have postponed the effective date of our decision on contentions to permit YAEC to seek reconsideration of one of them and nonetheless preserve its appellate rights.)

But YAEC complied with all regulatory requirements in this regard. Given our view that there has been no substantial evidence brought to our attention tlut YAEC intentionally caused the Intervenors to suffer unwarranted or unusual litigation costs, we are hereby denying as unwarranted the NECNP/CAN request for us to condition termination on reimbursement of fees and costs.

C. Continuation of Discovery As a condition of termination, NECNP/CAN would have us require YAEC to complete its responses to the Intervenor( interrogatories and requests for documents Jiat were pendir:g on the date of the termination motion and to provide the results to the Intervenora and to the NRC for plxement in the local public document room. Further, the Intervenors ask us to order YK.I to undertake hydrogeologi:al studies in response to the Intervenors' conclusions set forth as a basis for their proposed contentions on the environmental assessment (which, earlier in this Order, we have dismissed as r toot)"

"Mouon for Conetsons at 12.13.-

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As summarized earlier, FRCOG strongly supports the discovery-related con-ditions for termination. YAEC and the Staff each oppose their adoption. We conclude that, although we would have the authority under 10 C.ER. 6 2.107 to condition termination on LEC's performance of the requested discovery-related L eonditions, the proposed conditions are not warranted or appropriate in the present factual situation.

Discovery, of course, is peculiarly reitted to panicular proceedings and partic-ular contentions. In a proceeding of this type, discovery is not available absent a Licensing Board's approval of particular contentions,10 C.ER. # 2.740(b). The scope of discovery is confined to the contentions that have been admitted.

In the context of this proceeding, the Licensee would have been requin:d to respond to such discovery requests as are " relevant to the subject matter involved in the proceeding" - i.e., admitted contentions with respect to the Licensee's LTP under review." Information and documents that may be relevant to a new LTP to be submitted some time in the future are manifestly not relevant to the subject matter of this proceeding. (To the same effect, the information and documents requested here could not under present rules be relevant to a new LTP that is not under consideration at this time.)

We note that, in one proceeding, a Licensing Board conditioned the termination of a proceeding on the preservation by the applicant (for a constmetion permit) of discovery documents. See Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-83-2,17 NRC 45,53 (1983). In that case, the parties had undertaken extensive discovery involving production of in excess of a million and a half documents. The applicant itself had proposed the preservation of discovery documents for a reasonable period of time.

'Ihe facts in Stanislaus are distinguishable from those now before us. Docu-ments already produced were involved, rather than documents for which a request has been filed. Given the likelihocxi of the same construction-permit application being refded in the foreseeable future, and given the concurrence of the applicant and Staff in the proposal, the condition was believed by the Licensing Board to serve a legitimate and useful purpose.

In contrast, requiring the not-yet-undertaken discovery responses requested by f the Intervenors here as a condition of termination would not appear to serve any I useful purpose in this proceeding and would not be authorized with respect to a future proceeding. We are thus denying the request.

Intervenors' request for hydrogeological studies is, in the context of NRC's discovery mies, even less warranted than the other discovery requests. The studies j being sought would be in response to scientific opinions expressed as a basis for j proposed contentions on which we have never ruled, and which we are dismissing i

10 C.ER. 6 2.740(bxt). We expest. no op mon as to the pmpnety of any of the particular discovery requests /

' for which NECNP/CAN as well as ITCoo seek responses i

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i as moot by this Order. Ac studies would be outside the scope of the discovery ru..s because they would not even bear on an admitted contention. We are accordingly denying the Intervenors' request for hydrogeological studies.

Finally, Intervenors have set fortn public-interest reasons why the discovery

> they seek and the studies they wish to have performed should be included as a termination condition. We, however, can find no justification for granting a discovery request that is essentially outside the scope of the discovery rules goverring this proceeding.

V. CONCLUSION Intervenots in this proceeding .mve played a useful role in pointing out possible ,

deficiencies in the IIP before tts. We commend their efforts in doing so. Ilowever, the proceeding has not yet progressed to the stage at which we could ascertain the

]

i legitimacy of their claims. YAEC has now withdrawn the l'17, for an expressed rationale that we find reasonable if not compelling and passibly premised in part on the criticisms raised by the Intervenors. We are accordingly granting YAEC's termination motion without prejudice and without imposing any conditions.2i VI. ORDER lbr the reasons set forth abwe, it is, this 28th day of July 1999, ORDERED:

1. He Intervenors proposed late-filed contentions, dated May 17,1999, are hereby dismissed as moot.

2. He Licensee's motions for us to accept for filing its replies dated June 14, 1999 (YAEC Reply-1) and June 29,1999 (YAEC Reply-3), and the Intervenors' requests for us to accept for filing their replies dated June 23 and 24,1999 (CAN reply; NECNP Reply) are hereby granted

3. Intervenors' Motion for Conditions, dated June 7,1999, is hereby denied

4. He motion of YAEC to terminate this proceeding without prejudice is hereby granted. (To the extent YAEC's termination motion seeks dismissal of its appeal to the Commissior., that matter is still pending before the Commission and is subject to Commission action.)

5. Bis Memorandum and Order is elfective immediately and will become the final anler of the Commissio. in this matter forty (40) days after its issuance date 21 In subnutting an LTP in the future (vduch it is rrquirtd by segulation to dot the licensee rray wish to peclude or knut further htigation of 6e type invohed here by consulting mterested persons (including representauves of NECNP, CAN, and IRCoG) pnor to such subnus6 ion. Consuhanon arnong the parues in the case of the LTP being reviewed j here ought have been preferable to linga8>n as a nrans r4 resolving the queaons raned by the contenuens in that  :

regard, ceruun of the conteuuons appear to us to haw focused on the clanty of the LTP rather than upm na substance and thus snight have tren tesolved through nunor negouauon.

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l unless any pany petitions for Commission review in accordance with 10 C.ER.

6 2.786, or unless the Commission takes review sua sponte. Any party may file'

! a petition for review within fifteen (15) days of service of this Memorandum and .,

l Onler, conforming to the requirements set fonh in 10 CF.R. 6 2.786(b).

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THE' ATOMIC SAFETY AND -

LICENSING BOARD l

Charles Bechhoefer, Chairman j ADMINISTRA11VE JUDGE j 1

Dr. Thomas S. Elleman (by CB) i ADMINISTRATIVE JUDGE l Homas D. Murphy ADMINISTRATIVE JUDGE Rockville, Maryland I I

- July 28,1999 l

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i Directors' Decisions Under 10 CFR 2.206 I

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p Cite as 50 NRC 59 (1999) DD-99-9 l

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UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION l OFFICE OF NUCLEAR REACTOR REGULATION l

L Samuel J. Collins, Director l

In tha Matter of . Docket No. 50-245 (License No. DPR-21)

NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 1) July 27,1999

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i in an August 21, 1995 petition request, as supplemented August 28, 1995, Mr. George Galatis and We the People, Inc. (the Petitioners) asserted that (1) l the Northeast Nuclear Energy Company (NNECO or Licensee) had knowingly, willingly, and flagrantly operated Millstone Unit 1 in violation of its licensing i

' basis; (2) two license amendments for_ Millstone Unit I wen: based on material i

false statements made by NNECO in documents submitted to the NRC; and (3)

( . the Petitioners asserted that the license amendment proposed in a letter dated July J' l- 28,1995, should be denied and the Licensee should be reqaimd to operate in full conformance with License Amendment No. 40.

i On the basis of these assertions, the Petitioners requested that the NRC (1) f institute a proceeding under 10 C.ER. 9 2.202 to suspend the license for Millstone Unit I for a period of 60 days after the unit is brought into compliance with the licensing and design bases; (2) revoke the operating license until the facility is in

' full compliance with the tums and conditions ofits license; (3) perform a detailed independent analysis of the offsite dose consequences of the total loss of spent fuel pool water; and (4) take enforcement action pursuant to 10 C.ER. 66 50.5 and 50.9.

In the supplement, the Petitioners made additional assertions that (1) Millstone Units'2 and 3 and Seabrook Unit I were operated in violation of their licenses j by ofiloading fuel to the respective spent fuel pools contrary to applicable license i requirements; (2) at Millstone Unit 3, there is a material false statement in a l

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previous license amendment submittal and there is an unanalyzed condition in the licensing basis regarding system piping; and (3) at Seabrook Unit 1, there is a license violation regarding the spent fuel pool criticality analysis.

In this Director's Decision it was noted that because the Licensee had decided to decommission Millstone Unit 1, the Petitioners' request to suspend the operating license of Millstone Unit I was in effect partially granted. De NRC had documented its technical review of full core offload issues at Millstone Units 1, 2, and 3 and Seabrook Unit 1 in its December 26, 1996 Partial Director's Decision (DD 96-23,44 NRC 419) to the Petitioners. This review showed that Millstone Units 1 and 3 and Seabrtxik Unit I could safely offload all the fuel in each of the reactors, and that Millstone Unit 2 was not routinely performing full core ofiloads. Further, the NRC took enforcement action against the Licensee for providing inaccurate information in a license amendment submittal, in effect partially granting the Petitioners' request for enforcement action.

FINAL DIRECTOR'S DECISION UNDER.

10 C.F.R. N 2.206 I. INTRODUCTION On August 21, 1995, George Galatis and We the People, Inc. (Petitioners),

filed a petition with the Executive Director for Operations of the U.S. Nuclear I Regulatory Comnussion (NRC) pursuant to section 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R. 52.206). A supplement to the petition was submitted on August 28,1995. Dese two submittals will hereinafter be referred  !

to as the " Petition."

He petition raised three issues regarding the Millstone Nuclear Power Station, Unit I (Millstone Unit 1), operated by Northeast Nuclear Energy Company (NNECO or the Licensee). First, the Petitioners asserted that the Licensee has knowingly, willingly, and flagrantly operated Millstone Unit 1 in violation of License Amendment Nos. 39 and 40. Specifically, Petitioners asserted that NNECO had offloaded more fuel assemblies into the Millstone Unit I spent fuel pool (SFP) during refueling outages than permitted under these license amendments. Second, Petitioners asserted that License Amendments Nos. 39 and 40 for Millstone Unit I are based on material false statements made by the Licensee in documents submitted to the NRC. Third, Petitioners asserted that the license amendment proposed by the Licensee under cover of a letter dated July 28, 1995, regarding ofiloading of the entire core of spent fuel assemblies at Millstone Unit I, should be denied and the Licensee should be required to operate in full conformance with License Amendment No. 40.

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On the basis of these assertions, the Petitioners requested that the NRC (1) institute a proceeding under 10 C.ER. 92.202 to suspend the license for the Millstone Unit I facility for a period of 60 days after the unit is brought into compliance with the licensing basis and the design basis, (2) revoke the operating license for the Millstone Unit 1 facility until it is in full compliance with the terms and conditions of its license, (3) perform a detailed independent analysis of the offsite dose consequences of the total loss of SFP water, before reinstatement of the license, and (4) take enforcement action against NNECO pursuant to 10 C.ER. 9950.5 and 50.9. Finally, Petitioners requested that the proposed license amendment sought by NNECO be denied.

In the supplement to the petition dated August 28,1995, the Petitioners made additional assertions in support of their first and third issues. Specifically, in support of Issue 1,'the Petitioners asserted that the Licensees for Millstone Units 2 and 3 and Seabrook Unit I also performed full core offloads in violation of their licenses. In support of Issue 3, the Petitioners asserted that there is a material false statement in a submission used to support a previous Millstone Unit 3 license amendment request, and that there is an unanalyzed condition in the Millstone Unit 3 Updated Final Safety Analysis Report in that system piping had not been analyzed for the full core offload normal end-of-cycle event. Also, with regard to Scabrook Station Unit 1, the Petitioners asserted that there are Technical Specification violations related to criticality analysis and gaps in Boraflex material.

By letter dated October 26, 1995, the NRC informed the Petitioners that the petition had been referred to the Office of Nuclear Reactor Regulation pursuant to -

10 C.ER. 9 2.206 of the Commission's regulations for preparation of a response.

I The NRC also informed the Petitioners that the NRC Staff would take appropriate j action within a reasonable time regarding the specific concerns raised in the )

petition. Additionally, the NRC Staff informed the Petitioners that their request I with regard to issues associated with the requested license amendment (i.e.,

Petitioners' third issue) was not within the scope of section 2.206 and thus was not appropriate for consideration under section 2.206.

In a Partial Director's Decision (DD-96-23, 44 NRC 419) dated December 26,1996, the Staff documented its technical review of the full core offload issue at Millstone Units 1,2, and 3 and Seabrook Unit 1. .The Staff concluded that Millstone Units 1 and 3 and Seabrook Unit I could safely offload full cores.

Additionally, the Staff found that Millstone Unit 2 was not routinely performing full core offloads as asserted by the Petitioners. However, the Stairs followup of SFP issues raised by the Petitior.ers led, in part, to the identification of a broad spectrum of configuration management concerns that had to be corrected before the Commission allowed restart of any Millstone unit.

On August 14,1996, the NRC Staff issued a Confirmatory Order establishing an Independent Corrective Action Verification Program (ICAVP) for each Millstone unit to ensure that the plant's physical and functional characteristics were in 61 l

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a I confonnance with its licensing and design basis. 'Ihe ICAVP was performed and completed for Millstone Units 2 and 3 to the satisfaction of the NRC before the Commission allowed the plants to restart.' To the extent that Millstone Unit 1 permanently ceased operation, as stated in the Partial Director's Decision, the Staff detennined that the Petitioners' icquests for suspension and revocation of the Millstone Unit 1 operating license was partially granted. The Sta!T further stated that it had evaluated spent fuel accidents beyond the design bases and, to this extent, the Petitioners' request to perfonn analyses of such accidents was also partially granted.

In the Partial'Dixotor's Decision, the Staff stated that since the Petitioners' letter of August 28,1995, contained assertions relating to the third issue (that the license amendment proposed by the Licensee under cover of a letter dated July 20, 1995, should be denied) and that the issue was not appropriate for consideration under section 2.206, the Staff would forward its findings to the Petitioners by separate correspondence. In a letter to the Petitioners dated July 1,1999, the Staff addressed these assertions.

In the Partial Director's Decision, the Staff stated that it was still considering the Petitioners' assertions that the Licensee knowingly, willingly, and flagrantly operated Millstone Unit 1 in violation of License Amendment Nos. 39 and 40 and submitted material false statements to obtain License Amendment Nos. 3v and 40 (as they support the Petitioners

• fourth request). As explained bcL)w, the NRC Staff has taken actions that, in part, grant the Petitioners' request.

IL DISCUSSION

11. Request for Enforcement Action Against NNECO Pursuant to 10 C.F.R.

il50.5 and 50.9

'Ihe Petitioners based their requests on their assertion that the Licensee has knowingly, willingly, and flagrantly operated Millstone Unit I in violation of License Amendments Nos. 39 and 40 and that License Amendment Nos. 39 and 40 for Millstone Unit I are based on material false statements. Specifically, the Petitioners stated that the Licensee conducted full core offloads as a routine practice when its licensing basis analyses assumed one-third core offloads as the normal refueling practice. In their supplemental letter of August 28,1995, the Petitioners asserted that the Licensees for Millstone Units 2 and 3 and Seabrook Unit I also perfonned full core offloads in violation of their licenses. The Petitioners further contend that the Licensee's actions subjected the public to an unacceptable risk..

I The Staff notes that by letter dated July 21. lW8. the Licensee inforned the NRC of its decision to pernunently shut down Millstone Unit L Upon the pennanent shutdown of Millstone Unit 1. t!r statt deternned that the requirenent to perfann an ICAVP at Mdistone Umt I was no longer necessary.

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As explained in the Partial Director's Decision, the Staff concluded that Millstone Units 1 and 3 and Seabrook Unit I could safely ofiload full cores.

Additionally, the Staff found that Millstone Unit 2 was not routinely performing full core offloads as asserted by the Petitioners.

In a letter to the Licensee dated May 25.1999, regarding a Notice of Wla-tion and Exercise of Enforcement Discretion, the Staff stated that it had com-

pleted the investigations concerning the performance of fuel offloads at Mill-stone Unit 1. Regarding the petitioners' assertion concerning the Millstone Unit I full core offload practice, the NRC has drawn a distinction between routinely conducting full core offloads and conducting any offloads before the delay times assumed in the Final Safety Ana!ysis Report (FSAR). The NRC has concluded that enforcement action is not warranted at Millstone Unit I and other nuclear facilities for conducting full core ofiloads on a routine basis. The NRC determined that the use of the terms " abnormal" and " emergency" in describing the full core offload scenario in the FSAR did not appear to be presented by the Licensee or understood by the Staff as a commitment to limit the frequency with which full core offloads were conducted at Millstone Unit 1. In this regard, the Licensee informed the NRC StalT of its practice of offloading the full core at Millstone Unit 1 in a meeting on June 16, 1988, associated with the License Amendment No. 40 request pertaining to SFP reracking. Further, although the analytical con-straints and assumptions for the full core offload were generally less restrictive than those for a partial core offload, in licensing actions (typically rerack amendraents) for nuclear plants, including Millstone Unit 1, the NRC found the plant design for removing the full core acceptable. Finally, as a way of addressing shutdown risk, the NRC encouraged, and still does, the practice of full core offloads. Thus, f consistent with the conclusions drawn for all other plants that routinely performed full core offloads, enforcement is not being proposed for the Millstone Unit i full core offloading practices.

'Ihe Staff's followup of spent fuel pool issues raised by the Petitioners, however, led, in part, to the identification of a broad spectmm of configuration management concerns that had to be corrected before the Commission allowed restart of any Millstone unit. On the basis of information developed during the investigation by the NRC's Oflice of Investigations, the NRC cited the Licensee for four violations of NRC requirements. Specifically, the NRC determined that, in careless disregard of NRC requirements, the Licensee (1) performed both partial and full core ofiloads before the delay times assumed in the FSAR without the appropriate engineering analysis, (2) utilized unapproved and unanalyzed system configurations to augment SFP cooling during refueling outages, without procedures to govern those activities, and (3) in two instances, submitted incomplete and inaccurate information to the NRC (violations of 10 C.ER. 5 50.9(a)) related to the performance of fuel omoads that were actually commenced before the de'ay times assumed in the analysis submitted to the NRC.

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g in its May 25, 1999 letter transmitting the Notice of Wlation, the NRC also stated that these violations, which existed for a long time, appeared to be the result of the deficient safety culture, which contributed to the shutdown of all three Millstone units for an extended period and resulted in a number of q

other violations for which the NRC issued a $2,100,000 civn penalty to the Licensee on Ikcember 10, 1997. Tnat penalty was based, in part, on (1) the Licensee's failun. u ;nsure that the plant was maintained in the configuration as designed and igufied in the licensing basis and (2) the Licensee'r failure to i

promptly correct nonconforming conditions. 'Ihe NRC concluded that the failure of '

Licensee management to establish standards to ensure that the plant was maintained and operated as designed, and te ensure that nonconforming conditions were promptly identified and conected, constituted careless disregard of requirements.

As such, the violations that resulted from that deficient safety cuhure, which fostered such disregard, were considered wihful in accordance with the " General Statement of Policy and Procedures for NRC Enforcement Actions NUREG-1600" (Enforcement Policy).

In its May 25,1999 letter, the NRC further stated that in consideration of (1) the undesirable consequences of performance of unanalyzed core offloads and the Licenwe's failure to ensure that SFP heat removal was conducted in accordance with approved procedures,(2) the significance of the Licensee's pivviding incom-plete and inaccurate information to the NRC, and (3) the significance that the NRC places on careless disregard of its requb the four violations had been classified, in the aggregate. as a Severf ,. Ntion in accordance with the NRC Enforcement Policy. For the - '- 1 its letter of May 25, i

1999, the Staff exercised enforcement d - a not issue a civil penalty for the violations. In its letter, the 't aat discretion is appropriate because the Licensee already impleniem., cc ve actions to address the un-derlying performance problems at Millstone L..a t'urther enforcement action is not necessary to achieve additional remedial actions, In their petition, the Petitioners requested that the NRC take enforcement action against the Licensee pursuant to scetions 50.5 and 50.9. Although not specifically for the reasons cited by the Petitioners (the Petitioners based their requests on their assertion that the Licensee has knowingly, willingly, and flagrantly operated Millstone Unit 1 in violation of License Amendment Nos. 30 and 40 and that License Amendment Nos. 39 and 40 for Millstone Unit I are based on material false statemems), the NRC did find that in two instances the Licensee submitted incomplete and inaccurate information to the NRC related to the performance of fuel officads that were actually being commenced before the delay times assumed in the analysis submitted to the NRC. Therefore, for the reasons oreviously given, the NRC's actions constitute a partial granting of the Petitioners' request regarding enforcement action pursuant to sections 50.5 and 50.9.

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III. CONCLUSION

'lhe Staff has completed the investigations concerning the performance of fuel offloads at Millstone and has taken enforcement action as outlined in its letter and Notice of Violation to the Licensee da'ed May 25.1999. Therefore, to this extent.

Petitioners

• request for enforcement action against NNECO pursuant to sections 50.5 and 50.9 is partially granted.

As provided in 10 C.F.R. 5 2.206(c), a copy of this Final Director's Daision will be filed with the Secretary of the Commission for the Commission's review. 1 This Final Director's Decision will constitute the final action of the Commission l (for Petitiorers' Request 4) 25 days after its issuance, unless the Commission, on  ;

its own motion, institutes review of the Decision within that time.

FOR THE NUCLEAn REGULATORY COMMISSION Samuel J, Collins, Director  ;

Oflice of Nuclear Reactor l I

Regulation i

Dated at Rockville, Maryland, this 27th day of July 1999.

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